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Gagging New Mexico Teachers

a broken pencil on top of a Scantron test form
photo by Josh Davis

A lot of parents have strong concerns about the nature and number of the standardized tests their children are required to take in public school.

As the spring testing season gets underway, it is not hard to find parent-driven organizations criticizing the tests and urging other parents to opt their kids out of taking them. Objections include the length of the tests, loss of regular instruction time, excessive stress for students and unfair treatment of students with disabilities. The opt-out movement, while not new, has grown substantially in recent years as parents, along with some older students, boycott the tests as a way to draw attention to these problems.

A lot of teachers share their concerns. While most movements consist largely of parents, individual teachers and some teachers’ unions have either expressed support for parental choice or gone so far as to proactively urge parents not to have their children take the exams.

It is easy, and not necessarily unfair, to observe that teachers may have self-interested reasons to disparage the tests, whose use in judging those teachers’ performance is a sore point in many places. But that doesn’t mean the teachers or parents are necessarily wrong. Teachers who opt their own children out of testing or risk their jobs to speak out despite discouragement clearly have more than just their own evaluations in mind.

But even if teachers’ motives were entirely driven by their own self-interest, it would not give the education bureaucracy either the right or a reason to try to muzzle what teachers say to parents or to the public.

That is exactly what is happening in New Mexico. The state’s branch of the American Civil Liberties Union has filed a lawsuit on behalf of five teachers and a parent, contending that a state Education Department rule banning “disparaging” remarks about standardized tests violates teachers’ free speech protections. The rule applies not only to teachers, but to school administrators, office workers and even volunteers, who may not “disparage or diminish the significance, importance or use of the standardized tests.” Doing so could put teachers’ licenses in jeopardy. Teachers are still welcome to speak out about testing – as long as their remarks are positive.

The plaintiffs contend that many teachers find the rule so severe that they sometimes refuse to answer parents’ direct questions about the tests. Teachers who might be inclined, under other circumstances, to lay out a test’s benefits and drawbacks instead choose to say nothing because of the fear that any remarks that express less than total enthusiasm could mean the end of their careers.

New Mexico is not an isolated case. New York state has been an opt-out hotspot, with a full fifth of the state’s students sitting out either the reading or math tests last year, according to The New York Times. But while the Board of Regents, the state education agency that oversees the test, has responded by making changes, the state Education Department has taken steps to chill teacher speech. New York teachers do not face a formal ban on disparaging remarks such as the one in New Mexico, but superintendents and other Education Department officials have warned teachers that speaking out could result in disciplinary action.

Teachers, like everyone else, have First Amendment rights. Forbidding teachers from discussing a topic at all is probably a violation of those rights in many contexts. Dictating exactly what a teacher can say leaves no doubt. When officials tell teachers they cannot bad-mouth standardized tests or encourage parents to exercise their opt-out privilege, while leaving them free to take the opposite position, officials are not just crossing the First Amendment boundary; they are obliterating it.

If we really view each teacher as a professional, and each parent as a responsible party holding both the right and responsibility to decide whether their child should take a test, then there is no reason not to let teachers give parents their unvarnished views. Parents can accept those views or not, using them as one factor among several in making an informed decision. We certainly do not need the very bureaucracy that is imposing these tests in the first place to tell us what we can or cannot say about them.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us,” and Chapter 4, “The Family Business.” Larry was also among the authors of the firm’s book The High Achiever’s Guide To Wealth.

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