Dec - Jan Issue
November 25, 2014

Union challenges SEDs gag order on teachers

Author: By Sylvia Saunders
Source: NYSUT United
Spencerport TA members launched an online petition drive to express their frustration over the state's order banning teachers from discussing state exams. Four members are now plaintiffs in NYSUT's lawsuit challenging the gag order. Photo by Steve Jacobs.
Caption: Spencerport TA members launched an online petition drive to express their frustration over the state's order banning teachers from discussing state exams. Four members are now plaintiffs in NYSUT's lawsuit challenging the gag order. Photo by Steve Jacobs.

NYSUT has filed suit in federal court asserting that the state's gag order on educators who score or administer the grade 3-8 state tests is unconstitutional.

The union argues the state is infringing on teachers' First Amendment right to free speech by restricting them from discussing their concerns about specific questions on standardized tests.

Under State Education Department policy, teachers who score exams must sign a confidentiality agreement. They could face dismissal or license revocation proceedings if they discuss the material on the exams.

"We believe teachers have a right — and a duty — to speak out, especially when they are protecting children in their classrooms from a testing system many believe is out of control," said NYSUT President Karen E. Magee. "If teachers believe test questions are unfair or inappropriate, they should be able to say so without fear of dismissal or losing their teaching license."

The suit was filed on behalf of five teachers, four from the Spencerport Teachers Association and one from the Taconic Hills TA, in an attempt to have the state-mandated confidentiality agreements thrown out.

Teachers from Spencerport, a Rochester suburb, attracted national attention when they launched an online petition drive earlier this year expressing their deep frustration about the state exams and the gag order. The grassroots effort, which was featured in the May/June issue of NYSUT United and posted at www.standwithspencerport.org, went viral and garnered more than 5,500 signatures.

NYSUT Vice President Catalina Fortino, who is the union's chief advocate on educational issues, said teachers must be free to raise their concerns when test questions are flawed, not age- or grade-appropriate or not linked to the curriculum.

"Free speech is a hallmark of our democracy. The State Education Department's rules violate this basic American right that teachers have to confront their government and speak out," Fortino said.

Aside from the constitutional issues, it's simply good teaching practice for educators to review test questions — and their students' answers — in order to improve their instruction and enhance student learning, Fortino said.

In 2014, for the second year, teachers who proctored and administered the state English Language Arts and math exams were prohibited from discussing or retaining the exams.

The only teachers permitted to read the content of any part of the exams were teachers directly involved in the scoring process and who had to sign confidentiality agreements.

The confidentiality agreements require teachers not to "use or discuss the content of secure test materials, including test questions and answers, in any classroom or other activities," which would include speaking in a public forum as a citizen.

The U.S. Supreme Court has repeatedly noted, as recently as June, that teachers are the members of the community most likely to have informed opinions about educational issues, NYSUT court papers contend.

Since their uninhibited speech holds special value in public debate, "it is essential that teachers be able to speak out freely on such questions without fear of retaliatory dismissal," the Supreme Court said.

NYSUT's lawsuit asks the U.S. District Court, Northern District, to declare the prohibition on disclosing and discussing the content of state tests to be unconstitutional, and to issue an injunction against the enforcement and implementation of the terms of the confidentiality agreements for state exam scoring.

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