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Holding Their Tongues? Public Employees’ Rights and the Testing Debate

My Tuesday post examined parents’ limited options in the age of the standardized test. But what is a teacher to do who is fed up with the testing regime? “I’d prefer not to” may work for Bartelby but won’t fly in a public school.

Nor will resistance to the test prep regime. This year, 3rd, 4th and 5th grade teachers were compelled to set aside 90 minutes of six instructional days for testing as well as offer weeks or months of practice tests to get the troops ready.

But while teachers must test and must, to some extent, teach to the test, they are free to denounce the whole enterprise on their own time. Or are they?

The First Amendment freedom of speech guarantee has taken some twists and turns in its application to public employees. The trend until recently was toward greater protection, with Pickering v. Board of Education (1968) setting the main precedent. In Pickering, the Supreme Court ruled 8-1 that a high school science teacher could not be fired for criticizing the board of education’s policy on athletics funding. The right to speak as a private citizen on “a matter of legitimate public concern,” the Court ruled, was at the core of the First Amendment.

In 2006, a 5-4 decision in Garcetti v. Caeballos introduced a significant caveat to this rule: speaking as a private citizen may be protected, but expressing an opinion in the line of one’s job is not. Justice Anthony Kennedy, in his characteristic swing role, wrote this about a district attorney who had doggedly questioned the legitimacy of a warrant and suffered professionally as a result:

The controlling factor in Ceballos’ case is that his expressions were made pursuant to his duties as a calendar deputy….That consideration—the fact that Ceballos spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case—distinguishes Ceballos’ case from those in which the First Amendment provides protection against discipline. We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.

This distinction seems to match exactly what Immanuel Kant counsels in his 1784 essay, “An Answer to the Question: What is Enlightenment,” which happens to be on the syllabus this week in my modern political theory course:

Which restriction is innocent, and which advances enlightenment? I reply: the public use of one’s reason must be free at all times, and this alone can bring enlightenment to mankind. On the other hand, the private use of reason may frequently be narrowly restricted without otherwise hindering the progress of enlightenment. By “public use of one’s reason” I mean that use which a man, as scholar, makes of it before the reading public. I call “private use” that use which a man makes of his reason in a civic post that has been entrusted to him.

So, for Kant, an officer must follow orders while on duty but “as a scholar he could not rightfully be prevented from taking notice of the mistakes in the military service and from submitting his views to his public for its judgment.” Likewise, a New York State teacher must fulfill the requirements of her position but is free to write, blog, speak up and protest all she wants.

Some teachers have done just that. Here is a harrowing report from one classroom:

I work with third graders. Two stopped and stared in a dead-panic for at least twenty minutes, hearts racing, freaking out over questions they weren’t sure about.

One spent 45 minutes trying to read, then stopping, then trying to read again, only to tell me, “I can’t do it. I can’t do it. I don’t deserve to go to 4th grade anyway.”

After the test, many kids rushed to ask me what would happen if they got a 2 on this test, but a 4 on the math, or any other combination of scores. They said, again and again, how worried they were, and how they didn’t want to fail. They didn’t want to have to repeat the grade.

I remember feeling maybe 1/4 of this stress and panic when I had to take the SAT when I was 17. These kids are 7 and feel the weight of the rest of their lives on their shoulders while they take these tests.

But while an association of principals is speaking out forcefully against the tests — calling the testing movement a “wrecking ball aimed at the schools we so cherish” and pronouncing testing week “a nightmare for New York students in Grades 3 through 8, their teachers and their principals” — relatively few teachers are coming forward. It seems likely some may be afraid of the consequences of speaking up, as this post from a few years’ back argues.

In an era when public school teachers are under attack in state legislatures and the polemic film “Waiting for Superman” has cast doubt on many teachers’ ability to teach, this is an understandable, if deeply lamentable, reaction. As Kant wrote, only an atmosphere of freedom can bring enlightenment. These days, when it comes to the question of how the United States assesses students, we seem sadly lacking in both departments.

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If you are a teacher who administers standardized tests, please share your perspective below in the comments section. (Of course, everyone else is welcome to comment too.)


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