Can you believe this? A reader of Peter Greene’s blog pointed him to New Mexico’s administrative code.
Section 6.10.7.11 of the NMAC deals with staff responsibilities regarding testing, and it includes a list of “prohibitive practices”– things that staff are forbidden to do. At the end of the list, that it shall be prohibitive practice for the staff member
disparage or diminish the significance, importance or use of the standardized tests.
This is ridiculous. Imagine if a class read chapter 4 in my book Left Back: A Century of Battles Over School Reform. They would learn about the history of standardized testing, about the flaws of I.Q. testing, about the eugenics movement, about the origins of the SAT. This would start a great debate about how students should be tested. But part of the discussion might lead some students to disparage the standardized tests and to question their significance, importance, use, and misuse.
But this discussion is prohibited. So which takes precedence: The First Amendment to the Constitution or the New Mexico Administrative Code. I wonder if any other states have similar gag rules for discussions of standardized testing.
Diane Ravitch's blog 
And the Lord God of Testing said unto Moses
“Thou shalt not disparage or diminish the significance, importance or use of the standardized tests.”
Correction the “idol god of Testing” said unto Arne Duncan
Or how about the “Lord Gates of Testing”?
I actually wrote this a while ago
“The Ten Commandments of Reform (For teachers)”
1. I am the LORD thy Gates. Thou shalt have no strange Gods before me
2. Thou shalt not make unto thee any non-digital image (no drawing, finger-painting, or any other kind of painting)
3. Thou shalt not take the LORD’s name in vain (eg, “Gates-damned VAMs”)
4. Remember the Common Core, to teach it wholey (and closely too)
5. Honour thy Secretary and thy President
6. Thou shalt kill poetry and literature (dead)
7. Thou shalt not commit art
8. Thou shalt not steal time for music that shalt be spent on math and close reading
9. Thou shalt not bear truthful witness against thy superiors (reveal that they don’t actually have a Ph D, that VAM is junk science, etc)
10. Thou shalt not covet thy principal’s salary, thy superintendent’s salary, thy superintendent’s kids’ private school (class sizes,resources,etc), thy local charter school’s resources or anything else that may not seem fair and equitable to you (Live with it. After Vergara, you’re just a lowly teacher who can be gone in the blink of a superintendent’s eye)
I clearly missed one
“Thou shalt not disparage or diminish the significance, importance or use of the standardized tests.”
Well done, SomeDAM Poet. Multiple thumbs up on your reformy commandments!
Such rules violate the Bill of Rights and the 1st Amendment (for the State would be demanding the “worship and reverence” of standardized tests, the religion of Determinism)
They violate the “Bill of Rights”, but not the “Right of Bills” (dollars and Gates) — which is all important.
I am sure you are still allowed to criticize standardized testing, ie. you won’t be arrested, but you may get fired or reprimanded. The best thing for teachers to do is find involved, vocal parents that can lead the charge, if you value your position. This sadly is the sick, twisted world we now live in. Repression takes many forms.
When are teachers going to grow a set? I will be damned if someone is going to tell me what I can and cannot speak about especially when it is the right thing to do. Stop being bullied and intimidated into complying with what we all know is wrong.
More than a set is needed. Try some great lawyers. With the loss of due process and union protections, we see the evolution of nondisclosure agreements and no compete clauses. But great bravado behind a keyboard, oh Real(?) One. The rest of us do fight those little battles every day. But I think we also keep in mind the military phrase “is that the hill I want to die on?”. You fight for the small victories and win the hearts and minds of real people. The tide will turn. But it takes time. Right now, we are throwing pebbles at tanks.
You can totally believe the New Mexico Administrative Code (NMAC) as stated will take precedence over The First Amendment in the State of New Mexico. Teachers can count on it. Teachers have been warned not to speak ill of the PARCC or any other mandated standardized test. Secretary of Education Skandera and the Public Education Department have made it very, very clear the consequences of speaking bad about the testing. The discussion of opting out by parents/students is also consider disparaging and diminishing the importance of standardized testing. Teachers will NOT discuss Opting Out with Students or Parents. If found in violation of this NMAC or 6.10.7.12 NMAC, Non-Disclosure of Student Test Materials the Teacher could be referred to the PED “…for possible suspension or revocation of a person’s educator or administrator licensure or other PED licensure pursuant to procedures set forth in the PED’s suspension/revocation rule.” 6.10.7.14NMAC. Skandera would not hesitate to enforce these codes even for a minor infraction. First Amendment rights do not exist in the New Mexico Public Education Department.
Bravado behind the keyboard my ass. I fought for thirteen years as outspoken as they will ever come and never did I go home after a day of teaching feeling like some administrator, crony, or politician got the best of me. Nor did I ever let anyone tell me how when and what to teach including my Principal and because of this I was respected. I did things my way and at the end of the day the results were always there so I was never messed with. Your attitude is the reason teachers continue to get taken advantage of. You are great in numbers so those pebbles you speak of can amount to boulders if thrown in cohesion. It’s sad you aren’t able to figure that out especially with a screen name like yours.
Diane, It says Nevada in the title but I think you meant New Mexico.
Teacher Ed,
Thank you for the correction. Brain drain.
I suppose it shouldn’t be surprising, but these arrogant know-nothing’s can’t even write their repressive laws correctly.
Those actions that scare the so-called reformers so much, formerly known as free speech, are not “prohibitive,” which suggests they are too expensive, but are “prohibited.”
A teacher might be at risk for receiving an “Ineffective” or “Developing” on their admin-bot’s observation checklist if they made such an error during class, for having insufficient professional knowledge, but we all know that the so-called reformers live to boast of their Merit, so I guess they needn’t be bothered by the rules of English usage that the riff-raff must follow.
Almost all of the internet discussions of the gag rule for teachers are linked to protestations from teacher unions, not to the more basic issue of freedom of speech.
So I spent over an hour this afternoon becoming officially certified to administer the MEA/Smarter Balanced Assessment, I reluctantly signed the testing confidentiality agreement that threatened, “investigation by the Department of Education for possible certification action” should I not comply with the test security and confidentiality protocols. I’ve administered standardized assessments for my entire career and never have I been asked to sign such a document. This goes against the very core of my being as an educator and parent, and yet I cannot risk my job, or credentials by being insubordinate. I am now full of anger that I cannot direct toward anyone or any thing because it is so massive, and because the whole damn thing is just so WRONG! WRONG! WRONG!! My children don’t become better learners by taking a poorly developed assessment over standards that may or may not be developmentally appropriate, and I certainly didn’t become a better educator today by spending an hour to become “certified” to administer the test. #TeachNotTest #PAARC #SBAC
It’s amusing that the person who wrote this piece of legislation misused the word prohibitive. The intended meaning was,of course, that of the wordprohibited, as in a prohibited practice.
A prohibitive practice would be “one that prevents people from doing something customary or desirable.” The word prohibitive does not mean “that which is not allowed,” which was probably the intended meaning.
I found two grammatical errors on the SBAC Classroom Activity instructions today.
Left Back is a brilliant work. Highly recommended!
Free Speech Rights of Teachers?
The following are a series of excerpts from various articles concerning the free speech rights of teachers as public employees. This information is intended to shed some light on the general sense of fear that many teachers are feeling in regards to speaking out against the federal test-and-punish reform movement. I am a teacher, not a lawyer, but perhaps this information will help some teachers of conscience make a more informed decision about voicing their concerns about what many of us perceive as the harmful effects of the federally coerced Common Core standards and the required companion assessments, as well as linking said scores to teacher evaluations. In the opinion of many educators, this toxic mix of bad educational policies are undermining classroom environments and often constraining the professional judgment of teachers and limiting or use of best practices.
From the ACLU: https://aclu-wa.org/news/free-speech-rights-public-school-teachers
Teachers do not forfeit the right to comment publicly on matters of public importance simply because they accept a public school teaching position. Teachers cannot be fired or disciplined for statements about matters of public importance unless it can be demonstrated that the teacher’s speech created a substantial adverse impact on school functioning.
A teacher appears to speak for the school district when he or she teaches, so the district administration has a strong interest in determining the content of the message its teachers will deliver. Washington courts have upheld the authority of school districts to prescribe both course content and teaching methods. Courts in other jurisdictions have ruled that teachers have no free speech rights to include unapproved materials on reading lists.
Depending on the precise form of message displayed on the teachers’ clothing, a school may have legitimate concern that a teacher’s display of a political message is more likely than a student’s to disrupt the school’s intended educational message. This right may be limited only if there is good reason to believe that the speech would cause a substantial and material disruption to education or violate the rights of others. Washington courts have not considered the question, but courts in other jurisdictions have differed over whether teachers have the same right as students to display personal political messages on their clothing. In one case, a court upheld a dress code that prevented teachers from wearing political buttons in the classroom because school districts have legitimate authority to “dissociate themselves from matters of political controversy.”
From the New York State Association of School Attorneys:
http://www.guerciolaw.com/school-employees-right-to-free-speech-appears-limited-when-job-related/
School employees’ right to free speech appears limited when job-related.
Does a school employee’s right to free speech stop at the schoolhouse door? While the outcomes of employee disciplinary cases and other cases involving adverse job actions always depend on the facts, court rulings suggest that there has been a deterioration of public employees’ rights to free speech in the workplace. Since the U.S. Supreme Court’s landmark 2006 ruling in Garcetti v. Ceballos, courts have been taking a different approach when public employees claim to be protected by the First Amendment in connection with an adverse job action. All such lawsuits now involve an examination of whether the employee was speaking pursuant to his or her job duties. According to Garcetti, if speech was made as a result of an employee’s job duties, no First Amendment protection applies (see sidebar below). For school districts, the change raises a question that is not always easily answered: What do the “job duties” of a specific school employee entail? Some New York courts have closely examined the employee’s “actual duties” as opposed to the employee’s job description in an effort to afford the most First Amendment protection. Nevertheless, the Garcetti decision appears to have made it harder for public employees to successfully assert First Amendment protection.
The U.S. Court of Appeals for the Second Circuit, which has jurisdiction over all of New York State, made this ruling about free speech rights: “The general principle … is that, when a public employee airs a complaint or grievance, or expresses concern about misconduct, to his or her immediate supervisor or pursuant to a clear duty to report imposed by law or employer policy, he or she is speaking as an employee and not as a citizen.” In light of Garcetti, “the First Amendment does not protect the employee’s speech from discipline or retaliation by the employer,” the court said. The court continued: In such circumstances, the employer is free to “discipline” the employee without violating the employee’s First Amendment rights. If, however, the employee goes outside of the established institutional channels in order to express a complaint or concern, the employee is speaking as a citizen, and the speech is protected by the First Amendment.
For instance, the Second Circuit ruled that statements by a special education counselor to administrators about the lack of physical education and art classes at a satellite BOCES facility were made within the scope of employment and were not protected by the First Amendment. On the other hand, conversations with other teachers about the same issues were not part of any official duty. Therefore, a teacher might be able to prevail in a free-speech defense against any alleged retaliation for critical comments about the school made to colleagues but not if the adverse job action stemmed from similar comments made in the line of duty.
From Joshana Jones, Esq. Atlanta, GA:
http://theeducatorsroom.com/2012/12/teachers-freedom-of-speech-rights/
Public school teachers are in a unique position. They are employees of the state and therefore school districts have an interest in making sure that messages from teachers are in line with the goals and vision of the district.
The following factors will help a teacher understand if their free speech is protected:
1) The speech must touch on a matter of public concern
2) The teacher’s speech must outweigh the district’s interest in efficiency. The courts may consider any of the following:
a) The effect of the speech on the harmony of the staff
b) Whether the speech has a detrimental impact on working relationships
c) Whether the speech interferes with the normal operation of the employer’s business
The Pickering Balance Test: http://publicpersonnellaw.blogspot.com/2010/01/essentials-of-pickering-balancing-test.html
Essentials of the “Pickering Balancing Test”
Pickering v Board of Education, 391 US 563
The so-called Pickering Test is applied in balancing the interests of a public employer with its employees’ right to Free Speech and requires the court’s consideration of the following:
1. Did the individual demonstrate that his or her speech address a matter or matters of public interest and concern?
2. Did the individual demonstrate that his or her speech was a significant or motivating factor in the employer’s decision?
3. Did the court balance the interests of the individual commenting on matters of public concern as a citizen and the public employer’s interest in “promoting the efficiency of public service?”
From Sherrod v, School Board of Palm Beach County, FL
http://www.leagle.com/decision/In%20FDCO%2020101012611
Protected Speech
In determining the threshold issue of whether a public employee has engaged in speech entitled to constitutional protection, the court first asks “whether the employee spoke as a citizen on a matter of public concern. If the answer is “no,” the employee’s speech is not entitled to First Amendment protection. If the answer is “yes,” “the question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.”
In Abdur-Rahman v. Walker, 567 F.3d 1278 (11th Cir.2009), the Eleventh Circuit discussed the rationale behind the requirement that a public employee speak “as a citizen” to receive constitutional protection for his speech: First, because “government offices could not function if every employment decision became a constitutional matter,” “Supreme Court precedents do not support the existence of a constitutional cause of action behind every statement a public employee makes in the course of doing his or her job.” Second, government employers, like private employers, need a significant degree of control over their employee’s words and actions; without it, there would be little chance of the efficient provision of public services. Because of the unique trusted position that public employees occupy, they ought not to receive constitutional protection for speech that “expresses views that contravene governmental policies or impairs the proper performance of governmental functions. Third, when complaints under the First Amendment are limited to instances in which a public employee proves that he “spoke as a citizen on a matter of public concern,” courts avoid “judicial oversight” of workplace communications and “permanent judicial intervention in the conduct of governmental operations to a degree inconsistent with sound principles of federalism and the separation of powers.”
Garcetti v. Ceballos (Wikipedia): http://en.wikipedia.org/wiki/Garcetti_v._Ceballos
Opinion of the Court
The Supreme Court reversed the Ninth Circuit, ruling in a 5-4 decision delivered by Justice Anthony Kennedy that the First Amendment does not prevent employees from being disciplined for expressions they make pursuant to their professional duties.
Kennedy’s majority opinion
The Court wrote that its “precedents do not support the existence of a constitutional cause of action behind every statement a public employee makes in the course of doing his or her job.” Instead, public employees are not speaking as citizens when they are speaking to fulfill a responsibility of their job.
Though the speech at issue concerned the subject matter of his employment, and was expressed within his office rather than publicly, the Court did not consider either fact dispositive, and noted that employees in either context may receive First Amendment protection. The “controlling factor” was instead that his statements were made pursuant to his duties as a deputy district attorney. Restricting such speech, which “owes its existence to a public employee’s professional responsibilities,” did not in the Court’s view violate any rights that the employee had as a private citizen. Instead, the restrictions were simply the control an employer exercised “over what the employer itself has commissioned or created.”
NYSUT “Free Speech” lawsuit:
http://www.nysut.org/news/2014/october/lawsuit-charges-state-education-department-ban-on-discussing-tests-violates-free-speech
ALBANY, N.Y. Oct. 9, 2014 – New York State United Teachers has filed suit in federal court seeking to invalidate confidentiality agreements the State Education Department requires teachers to sign before scoring state tests, saying the prohibition – with its accompanying threats of discipline, including dismissal, license revocation and criminal prosecution – is an unconstitutional prior restraint on teachers’ free speech rights.
The suit, filed Wednesday by NYSUT’s Office of General Counsel on behalf of five teachers, charges the State Education Department with violating teachers’ First Amendment and Fourteenth Amendment rights by preventing them from speaking out on matters of public concern. The suit charges SED’s rules unconstitutionally make teachers’ speech conditional on government approval while establishing a “system to police the free exchange of ideas and opinions regarding its compulsory and costly testing regime.”
Bobby Jindal’s Executive Order: http://eagnews.org/bobby-jindal-issues-executive-order-protecting-anti-common-core-teachers/
BATON ROUGE, La. – Louisiana Gov. Bobby Jindal has issued an executive order to protect teachers who are critics of Common Core national standards. Teachers statewide are feeling pressure from all sides, saying they are overworked and students are over-tested, and now many are saying they aren’t allowed to voice concerns or dissenting opinions.
The newspaper reports today, “Jindal issued an Executive Order to protect freedom of speech and the rights of teachers.”
The order reads, in part:
FREEDOM OF SPEECH PROTECTIONS FOR LOUISIANA TEACHERS
NOW THEREFORE, I, BOBBY JINDAL, Governor of the State of Louisiana, by virtue of the authority vested by the Constitution and the laws of the State of Louisiana, do hereby order and direct as follows:
SECTION 1: As part of the ongoing discussion among state and local education officials, teachers, parents, and stakeholders regarding classroom curriculum and testing, and as part of the larger discussion of the quality of Louisiana’s educational system, legal guarantees afforded to all citizens shall be maintained and provided to teachers;
SECTION 2: State and local school administration officials are not authorized under the existing laws of this state to deny a teacher’s constitutional freedom of speech in order to stifle the discussion and debate surrounding curriculum and standardized assessments by teachers.
Wow. Good for Jindal! Can’t help but wonder what he’s up to. Am I being too cynical?
He’s up to political expediency. Common Core is a TOXIC brand and he wants to distance himself from the stink.
The folks up in Concord (NH) seem to want to wallow in it.
He’s also taking legal action against the USDOE and Arne Duncan regarding the federal over-reach used to coerce states to adopt the CC standards and the de-facto curriculum required for test preparation.
Click to access Jindal%20Final%20Complaint.pdf
We are told there are rules in California similar to N.M.
We cannot mention anything about their right to Opt-out for example.
The forces with the money are getting stronger and more clever.
To change the subject from TESTING to focusing on implementation of the Common Core Standards, they are creating more new Foundations that only talk about Implementation. Knowledgeworks, Edworks, Nellie Mae and many others are now focusing on Common Core and Mastery vs Seat time for promotional purpose from grade to grade. In fact, they are talking about doing away with grade levels and having mastery levels or proficiency levels instead. This would work better if everyone worked online. Guess who is promoting this mastery idea? Just think of the money saved. No teachers needed or college professors, no expensive buildings to build, no FOOD ALL STADIUMS! This is sounding better and better, but we all need now is for everyone to read “Looking Backword” by Edward Bellamy first, especially the young people who have been reading only manuals to be college and career ready and do that “close read” stuff. Bellamy talked about this actually happening in the year 2000! However, he had a slightly different take on how advances in technology would change our lives for the better. It is a Great Book and a one hour read, but interesting. Sorry, I digressed or maybe regressed. What was the topic?
cross-posted
http://www.opednews.com/Quicklink/Peter-Greene-Teachers-in-in-Best_Web_OpEds-Peter-Greene_Practices_Rules_Standardized-Testing-150318-884.html#comment537730
This rule is about 15 years old.
We were told by our principal (Ohio) that we were to say nothing critical of her, the district, the curriculum, or the tests when speaking in the community or to parents. I did a lot of “knowing looks” and “I am not allowed to discuss this” when parents made statements or asked questions. We were told to refer all negative parents to her office. She also told us we weren’t to talk negatively with other staff members. . It wasxterrible. A reign of terror. She was there 10 years before she finally “left”.
It’s extremely concerning that our “fundamental rights” are being infringed upon by the incessant desire to push for standardized testing and have them be a cornerstone of modern education culture. By suppressing the ability to question, resist, and inquire, New Mexico is perpetuating even more resentment and skepticism in regards to standardized testing. Thankfully social media campaigns, many news programs, vocal teachers, and concerned parents are acting as a counterbalance to the steadfast standardized test supporters. It will be interesting to see how the next decade or two unravels and how dedicated our educational systems will be to standardized tests in the future.
What is prohibited is often done under the table. Think of prohibition! Think of teenagers! But I guess some of these reformers were never teenagers.