The Rhode Island NEA endorsed a resolution supporting the right of students to opt out of state testing and the right of teachers to discuss opting out with parents.
The resolution read, in part,
“There is an over-abundance of these tests in Rhode Island public schools. The Rhode Island Department of Education, through individual school districts, must provide all parents with yearly, written information fully explaining their right to opt out of these assessments. Students who opt out of high-stakes assessments, such as PARCC, will not be included in data used by state or federal entities in grading or ranking schools or districts, or for any other punitive measures. No parent or student should be penalized based on a parental decision to remove a student from standardized assessments.”
The resolution also said:
“Open dialogue is essential in the parent and educator relationship; as a result, no educator should be disciplined in any school or district for discussing – with students, parents, or community members – options available to parents for opting students out of PARCC or other high-stakes standardized assessment. These include individual conversations, parent/teacher conferences, community meetings, or any other social or professional conversations. Testing, and the frequency of testing, is a working condition, governed by collective bargaining, and educators have the right to speak openly and freely about those conditions.”
In a separate resolution, the NEA R.I. also recommended that, due to weather interruptions in the continuity of instruction, all further PARCC testing be suspended for this school year and the time be used for such instruction. It is clearly a much better use of student time if learning is not disrupted for testing. From this point forward, the validity of any testing should be questioned.”
Diane Ravitch's blog 
The Connecticut Education Association has finally come out of hiding and has addressed testing tied to the Common Core State Standards.
http://www.ctpost.com/local/article/Teachers-stop-common-core-testing-6097009.php
Teachers: Stop common core testing
Linda Conner Lambeck
A small part of that article …
“The state’s largest teachers’ union wants the state to do away with the test tied to new Common Core State Standards and develop a shorter, online test to measure student progress.
The proposal comes weeks before public school students statewide start taking the high-stakes tests in reading and math, which are administered over seven hours during the next three months.
The tests were given in most school districts last year as practice. This time, the scores will count and be reported, but still won’t be linked to teacher evaluations.
Sheila Cohen, president of the Connecticut Education Association, said eliminating the test would leave more time for instruction and will give teachers — and the public — more immediate and useful feedback on student achievement. The union surveyed 500 registered voters in January and found 67 percent thought students took too many standardized tests and could learn more from classroom-based assessments.”
Hope this is blessed by the NEA leadership because the AFT is once again walking behind the horse’s ass on this issue.
Boy, I wish the NEA affiliate in Utah would do the same thing. When I complained to the UEA that teachers were being threatened if they told parents about their ability to opt out, the UEA just told me that the state board of education has the right to tell us that, and there is nothing that teachers can do. I was even told that my children shouldn’t even tell their friends about the ability to opt out, which is in Utah state law, because that might be traced back to me.
There are “Right to Know Laws” that parents must be informed about. I don’t understand why the ability to opt out of standardized testing would not fall under these laws. Educators are suppose to be child advocates. It would seem you would be protected since you are advocating for students by informing parents of their rights under the law. The NEA needs to come out nationally instead of relying on state and local affiliates to be the mouth piece.
Exactly! My license has been threatened (hence my name) because I posted opt out information on my own personal Facebook, on my own computer, at my own home. And why limit what my children (both teenagers) can say?
The Rhode Island NEA resolution does NOT circumvent case law. Sorry. Their resolution does not protect teachers who choose to speak out against testing or openly promote test refusal.
Yes, it’s only a resolution. But it’s a major one that every union should endorse and then work to make it happen. So sick of the lies happening in NY because NYSUT and the UFT were endorsing Cuomo behind closed doors and turned their backs on Teachout.
It is only a major resolution if it becomes RI state law. Otherwise its just more empty rhetoric. Nothing in the piece suggests that the NEA is pushing their resolution into the legislative session. Hopefully they will. I will not hold my breath waiting for NYSUT to follow suit. This is all about the force of federal and/or state LAW. If NCLB/ESEA is re-written to Obama’s satisfaction (veto-proof), we will be stuck for 7 years with the same test-and-punish regime. The clock is ticking and not in our favor, unless NYSUT orchestrates a serious, unified work action. Just think schoolgal, the Pearson math and ELA tests could be disabled if every NY teacher took just two timely sick days.
In Newark, the powers that be recently had us sign a communications agreement that clearly states that criticizing district policy on social media is grounds for dismissal. I would not put any faith in the legal protections of an NEA resolution.
The NJ powers that be may be bluffing you. You have the legal right as “citizens” to speak out against a public concern (harmful effects of over-testing). That right is the result of a Supreme Court ruling (Garcetti v Ceballos) and in my amateur legal opinion, a communication agreement does not supercede Supreme Court case law. I would suggest that you ask a lawyer before signing such a potentially bogus agreement.
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.
” From this point forward, the validity of any testing should be questioned.
DOH! (Homer slapping himself up side the head). “No shit Sherlock?!?!” says Homer. (The invalidity of those educational malpractices is so easy to understand that even Homer Simpson gets it.)
It’s been known for quite a long time that standardized testing has no validity whatsoever, in other words, is COMPLETELY INVALID. To understand why read and comprehend what Noel Wilson has shown us in his 1997 dissertation “Educational Standards and the Problem of Error” found at: http://epaa.asu.edu/ojs/article/view/577/700
Brief outline of Wilson’s “Educational Standards and the Problem of Error” and some comments of mine. (updated 6/24/13 per Wilson email)
1. A description of a quality can only be partially quantified. Quantity is almost always a very small aspect of quality. It is illogical to judge/assess a whole category only by a part of the whole. The assessment is, by definition, lacking in the sense that “assessments are always of multidimensional qualities. To quantify them as unidimensional quantities (numbers or grades) is to perpetuate a fundamental logical error” (per Wilson). The teaching and learning process falls in the logical realm of aesthetics/qualities of human interactions. In attempting to quantify educational standards and standardized testing the descriptive information about said interactions is inadequate, insufficient and inferior to the point of invalidity and unacceptability.
2. A major epistemological mistake is that we attach, with great importance, the “score” of the student, not only onto the student but also, by extension, the teacher, school and district. Any description of a testing event is only a description of an interaction, that of the student and the testing device at a given time and place. The only correct logical thing that we can attempt to do is to describe that interaction (how accurately or not is a whole other story). That description cannot, by logical thought, be “assigned/attached” to the student as it cannot be a description of the student but the interaction. And this error is probably one of the most egregious “errors” that occur with standardized testing (and even the “grading” of students by a teacher).
3. Wilson identifies four “frames of reference” each with distinct assumptions (epistemological basis) about the assessment process from which the “assessor” views the interactions of the teaching and learning process: the Judge (think college professor who “knows” the students capabilities and grades them accordingly), the General Frame-think standardized testing that claims to have a “scientific” basis, the Specific Frame-think of learning by objective like computer based learning, getting a correct answer before moving on to the next screen, and the Responsive Frame-think of an apprenticeship in a trade or a medical residency program where the learner interacts with the “teacher” with constant feedback. Each category has its own sources of error and more error in the process is caused when the assessor confuses and conflates the categories.
4. Wilson elucidates the notion of “error”: “Error is predicated on a notion of perfection; to allocate error is to imply what is without error; to know error it is necessary to determine what is true. And what is true is determined by what we define as true, theoretically by the assumptions of our epistemology, practically by the events and non-events, the discourses and silences, the world of surfaces and their interactions and interpretations; in short, the practices that permeate the field. . . Error is the uncertainty dimension of the statement; error is the band within which chaos reigns, in which anything can happen. Error comprises all of those eventful circumstances which make the assessment statement less than perfectly precise, the measure less than perfectly accurate, the rank order less than perfectly stable, the standard and its measurement less than absolute, and the communication of its truth less than impeccable.”
In other word all the logical errors involved in the process render any conclusions invalid.
5. The test makers/psychometricians, through all sorts of mathematical machinations attempt to “prove” that these tests (based on standards) are valid-errorless or supposedly at least with minimal error [they aren’t]. Wilson turns the concept of validity on its head and focuses on just how invalid the machinations and the test and results are. He is an advocate for the test taker not the test maker. In doing so he identifies thirteen sources of “error”, any one of which renders the test making/giving/disseminating of results invalid. And a basic logical premise is that once something is shown to be invalid it is just that, invalid, and no amount of “fudging” by the psychometricians/test makers can alleviate that invalidity.
6. Having shown the invalidity, and therefore the unreliability, of the whole process Wilson concludes, rightly so, that any result/information gleaned from the process is “vain and illusory”. In other words start with an invalidity, end with an invalidity (except by sheer chance every once in a while, like a blind and anosmic squirrel who finds the occasional acorn, a result may be “true”) or to put in more mundane terms crap in-crap out.
7. And so what does this all mean? I’ll let Wilson have the second to last word: “So what does a test measure in our world? It measures what the person with the power to pay for the test says it measures. And the person who sets the test will name the test what the person who pays for the test wants the test to be named.”
In other words it attempts to measure “’something’ and we can specify some of the ‘errors’ in that ‘something’ but still don’t know [precisely] what the ‘something’ is.” The whole process harms many students as the social rewards for some are not available to others who “don’t make the grade (sic)” Should American public education have the function of sorting and separating students so that some may receive greater benefits than others, especially considering that the sorting and separating devices, educational standards and standardized testing, are so flawed not only in concept but in execution?
My answer is NO!!!!!
One final note with Wilson channeling Foucault and his concept of subjectivization:
“So the mark [grade/test score] becomes part of the story about yourself and with sufficient repetitions becomes true: true because those who know, those in authority, say it is true; true because the society in which you live legitimates this authority; true because your cultural habitus makes it difficult for you to perceive, conceive and integrate those aspects of your experience that contradict the story; true because in acting out your story, which now includes the mark and its meaning, the social truth that created it is confirmed; true because if your mark is high you are consistently rewarded, so that your voice becomes a voice of authority in the power-knowledge discourses that reproduce the structure that helped to produce you; true because if your mark is low your voice becomes muted and confirms your lower position in the social hierarchy; true finally because that success or failure confirms that mark that implicitly predicted the now self evident consequences. And so the circle is complete.”
In other words students “internalize” what those “marks” (grades/test scores) mean, and since the vast majority of the students have not developed the mental skills to counteract what the “authorities” say, they accept as “natural and normal” that “story/description” of them. Although paradoxical in a sense, the “I’m an “A” student” is almost as harmful as “I’m an ‘F’ student” in hindering students becoming independent, critical and free thinkers. And having independent, critical and free thinkers is a threat to the current socio-economic structure of society.
By Duane E. Swacker
If Cuomo is successful with his 50% plan, the NYSUT, AFT and the UFT better wake up. If they wish to save the teaching profession in NYS and the union, civil disobedience may be the only course. NY Teacher is correct. If all NYS and NYC teachers stay out for selective testing and make-up days, no valid score can be had to rate the teachers. If thee state then tries to create a partial cut score, the validity of the assessment can be successfully challenged.
As for speaking out, any statement made by a teacher as a private citizen cannot be used by the school district as long as all the teacher tells a parent comes wordl-for-word from state regulations. Years ago, the principal of another school tried to get me fired for telling a parent in her school her special education due process rights. She wrote to the chancellor saying that I was interfering influence that was negatively impacting her school. Obviously, nothing came of it. When I transferred into the District where her school was located, she even tried to stop the transfer. Again, this principal failed. Fortunately, these incidents occurred before the Bloomberg era.