The American Civil Liberties Union filed a lawsuit Wednesday challenging a regulation that prohibits New Mexico teachers and other public school employees from disparaging standardized tests.
The lawsuit against the New Mexico Public Education Department was filed in Santa Fe District Court on behalf of five public school teachers in Albuquerque and Santa Fe, along with a parent of an Albuquerque student.
The ACLU says the provision against making disparaging statements could result in a license suspension or revocation for teachers and that it restricts free speech and violates constitutional rights to due process and a public education.
The lawsuit asserts teachers are permitted only to provide praise for tests and that parents are thus unable to obtain honest and accurate information about the impact of the tests on children. The PED said the regulation dates back to 2009, under the administration of former Gov. Bill Richardson. It was designed to ensure students are encouraged to do their best on performance exams.
No one has been disciplined under the provision during the administration of Gov. Susana Martinez, the department said.
The agency said the ACLU lawsuit is designed to push an extreme agenda against all student testing.
“Any teacher spending time disparaging exams that students will be taking is a waste of valuable time and unquestionably detrimental to their students,” said Robert McEntryre, a spokesman for the PED.
Ellen Bernstein, president of the Albuquerque Teachers Federation, says the union began to refer to the non-disparagement provision as a gag order in recent years as it raised objections about the state’s increased emphasis on standardized testing in performance evaluations for teachers and schools. She said the federation sent a letter to its members in October 2014 advising them to add a note next to their signatures on test-security forms in protest of a possible violation of First Amendment rights to free speech.
The ACLU suit also alleges students with cognitive impairments are sometimes forced to take inappropriate tests because teachers are unable to raise concerns.
“Parents are dependent on teachers — the only ones uniquely positioned to speak to the impact of standardized testing on both individual students and the educational system as a whole — to make informed decisions about their children’s education,” the lawsuit states.
