Educators and the Testing Opt-Out Movement

Education headlines last spring focused on the opting out of standardized testing movement and the actions of students and parents. You may have heard about, or even witnessed, instances of parents who claimed a constitutional right to opt their child out of testing. The current lay of the land Thus far in Maryland, no court has ruled, nor are there any state laws or policies, that provide parents with a legal right to opt their children out of standardized testing. In fact, doing so may constitute an act of civil disobedience, and one that could have adverse academic consequences for the child, their teacher, and their school. While MSDE contends that there is no provision in state law allowing a student to opt-out, and that standardized testing is part of the educational program, it also says that individual school systems may decide how to handle students who refuse to participate.

Consider this case in Frederick County: The local board of education was sued by a parent who demanded that their child remain in class during the testing window, but not be administered the test. The board of education settled with the parent and met the demands, clearly a precedent that seems to acknowledge that parents have a right to opt their child out of taking the test.

Your First Amendment rights

While your on-the-job First Amendment rights are fairly clear, your off-duty speech on issues of public concern, which includes excessive testing and opting out, enjoys only qualified protection under the First Amendment. Be careful when you speak to local newspapers (including opinions and editorials) and the media, or public bodies, like boards of education or parent–teacher organizations. The line between protected and unprotected speech for educators is fuzzy at best, and off-duty speech can result in discipline. We urge that educators’ off-duty speech with parents or the media on the opt-out movement be fact-based, objective (not personal), and focused on what, if any, legitimate educational purpose the test serves. Opting-out may ultimately have consequences for a student’s academic success depending if the assessment is used for course grades, promotions, placement in advanced programs, or graduation. If there are a significant number of students opting out, there may also be consequences for the local school system and certain teachers whose evaluation may hinge on the student growth component. Beginning in 2017, that component might include the state standardized test for some teachers.

At MSEA’s Representative Assembly, October 16–17, delegates will vote on a new business item that, if passed, will call on MSDE to clarify parents’ rights to opt out of state standardized testing and if the county or school has a policy regarding opt out, that educators should not face disciplinary action for sharing this information.