It’s right there in the U.S. Constitution. Look it up.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
That limit applies to state regulators, too.
While there are limitations on the 1st Amendment – you can’t yell “fire” in a dark, crowded theater (unless there is a fire) – telling teachers and principals they can’t comment on a widely debated public issue doesn’t fit the bill.
So it was an overreach in 2009 for the state to add to its Administrative Code – under the administration of Democratic Gov. Bill Richardson and Education Secretary Veronica Garcia – a rule stating that teachers and state Public Education Department employees may not “disparage or diminish the significance, importance, or use of standardized tests” on pain of “suspension or revocation of a person’s educator or administrator licensure or other PED licensure.”
Notice there are no limitations here. It is a simple prohibition on speech because of its content.
Now, the American Civil Liberties Union of New Mexico is suing on behalf of five educators and a parent who are accusing the PED of violating constitutional free speech rights by prohibiting teachers from “disparaging” standardized tests.
Teachers unions have long complained about this part of the New Mexico Administrative Code. After seven years, it’s about time for such a move.
The lawsuit says the PED has essentially imposed a gag order on discussion of testing. One of the teachers represented in the lawsuit, Mary Mackie of Montezuma Elementary School, says teachers at her school have been getting emails from the principal saying that if parents want to opt out of the PARCC test, they are not allowed to talk to them about it. Instead they should send them to the office, where she says “the principal will try to talk them out of opting out.” She may be right, since last year Montezuma’s school grade dropped to an “F” in part because of the number of students who opted out of standardized tests.
And some teachers have their own motives for opposing the tests – that include not wanting parents to know their kids trail their counterparts elsewhere. But Maria Sanchez, a staff attorney for ACLU, says many teachers have been fearful of discussing the process for students to opt out of testing because they are “petrified of doing anything that could result in discipline.”
PED spokesman Robert McEntyre says the issue is a “straw man” by opponents of testing and points out that the department has never disciplined anyone based on the 2009 rule.
Ellen Bernstein, president of the Albuquerque Teachers Federation, said the time is ripe for a lawsuit, “Now – because of the high stakes and the way PED is constantly threatening teachers’ licenses based on test scores – people feel very differently about it. These tests are being used in a radically different way than they were before.”
But free speech has nothing to do with distaste with a job evaluation system and standardized tests are not the reason this regulation should be removed from the books.
Of course, the state or a school district can adopt a policy on testing, and employees in the scope of their employment can be required to provide the official position and not undercut it in carrying out official duties. However, this rule is much broader in scope and would seem to limit even private comment.
For those reasons, it should be removed from the PED’s rule book.
This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.