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ACLU Sues PED Over PARCC Gag Order

ACLU Sues PED Over PARCC Gag Order

It is deeply "unsettling that a government entity has passed a regulation that prohibits negative comments about its own policy" – and the ACLU intends to restore teachers' free speech.


The ACLU of New Mexico has sued the New Mexico Public Education Department, charging that a PED rule prohibiting teachers from disparaging standardized testing is unconstitutional.

The lawsuit, brought by five teachers and a parent, alleges the department squelched all teacher dialogue critical of testing under the Partnership for Assessment of Readiness for College and Careers (PARCC) testing regimen.

The lawsuit also alleges that the department engaged in Big Brother-like surveillance of teachers’ social media accounts looking for violators of the non-disparagement rule.

“In addition to the prohibitions on protesting and speaking negatively about the test, they were also told they could not post anything negative about the PARCC exam on their personal Facebook accounts, as those accounts were being monitored by PED,” the lawsuit alleges.

At a training session in preparation for testing in Santa Fe, “The school’s instructional coach told teachers that they were not permitted to protest, assemble or speak negatively about the PARCC test,” the suit alleges.

The lawsuit, filed in Santa Fe District Court, cites violations of free speech provisions of the New Mexico Constitution through discrimination by viewpoint – a policy of prohibiting teachers from criticizing PARCC but allowing them to praise it.

It also alleges that the PED’s non-disparagement rule interferes with a child’s right to an education and a parent’s right to receive accurate information about a child’s education.

The harm is when parents have questions, because teachers are in best position to give input – except, under this regulation, they can’t give accurate feedback if it’s negative. Parents have a constitutional right to receive information, and their critical right to make informed decisions is affected,” said María Martínez Sánchez, staff attorney at the ACLU of New Mexico. “It could also cause the state to lose some excellent teachers.”

The lawsuit seeks an injunction against PED to bar enforcement of the non-disparagement rule and to bar the PED from disciplining any teacher who speaks out against PARCC testing.

“We’re hoping to get this settled in a timely manner and get the regulation stricken, whether through the PED voluntarily or through a judge,” Sánchez told ABQ Free Press. “Now [that the lawsuit has been filed], the state has opportunity to respond, and we hope that they agree to strike. It’s unsettling that government entity has passed a regulation which specifically states that teachers can only speak positively about their own policy.”

The lawsuit criticizes the validity of the PARCC exams on grounds that its “one size fits all” methodology disadvantages students with cognitive disabilities. In the lawsuit, one of the plaintiffs, Mary Mackie, a Montezuma Elementary School teacher in Albuquerque, described the circumstances of one child’s testing:

“She had a student who has trouble speaking and cannot read or even hold a pencil. Despite this, the young girl was forced to take a standardized test required by Defendant. Plaintiff Mackie, the teacher administering the test to the young girl, was prohibited from reading her the test questions.

“To answer each question on the test, Plaintiff Mackie was forced to put up her hand and ask the student to point to a finger which stood for a corresponding letter (A, B, C, D) on the testing bubble sheet.

“Plaintiff Mackie identified whichever finger the student pointed to and then recorded the corresponding letter on the bubble sheet. It did not matter that the student could not read the questions or that the student had no idea that she was answering standardized test questions; she was still forced to take it.”

Dan Vukelich is editor of ABQ Free Press. Reach him at editor@freeabq.com.

Juani Hopwood, online editor of ABQ Free Press, contributed to this story. Reach her at juani@freeabq.com.

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Juani Hopwood is Online Editor of ABQ Free Press. Reach her at juani@freeabq.com.

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