- Opting-Out is an act of civil disobedience in most places.
- There are different models for opting out of just locally-mandated tests, or both state and local tests.
- Remember that as a public employee, your speech on the job is not protected by the First Amendment.
If you are an educator, you are all-too familiar with the incredible amount of standardized testing now mandated in our nation's public schools. But there is a growing–and successful–movement among educators, activists and parents to opt-out children from standardized testing. As an educator, here's what you need to know to support this movement.
Before You Act
Remember: opting-out is an act of civil disobedience in most places.
Ten states have laws that permit parents to opt their children out of certain standardized tests. In a small number of other states and districts, state education departments or local education agencies have indicated that they will respect parents’ opt-out wishes at least as to certain tests and for certain (often religious) reasons.
In states and school districts without laws protecting this choice, parents who opt their children out may put their children at risk for academic consequences. Educators who advocate for such opt-outs while on duty or using school resources may risk discipline and even their jobs.
How to Take Action
1. Determine which policy best serves your community.
NEA has model opt-out legislation, school board resolutions, and local affiliate resolutions available for download below.
Each model policy protects educators who advise parents of the opt-out policy and give parents their professional opinion about whether a particular standardized test will or will not serve an educational purpose for a particular student. By doing so, these model proposals break new ground. Educators generally are not protected against offering such opinions under current state and local laws and policies.
The difference between these model laws and resolutions are whether they permit opt-outs from all standardized tests, both state and local, or only from locally mandated tests. In thinking about which to advocate for, you need to know that the U.S. Department of Education has told at least one state (New Jersey) that it may jeopardize a portion of its funding under NCLB if it permits parents to opt-out their children out of the NCLB mandated standardized tests. A state or district’s adoption of a broad policy permitting opt-outs from NCLB mandated tests may therefore trigger adverse financial consequences.
2. Remember the rules of the road for effective advocacy.
As a public employee your speech on the job is not protected by the First Amendment. Your off duty speech may be protected by the First Amendment and is most likely to be protected when you are speaking to a school board or state legislature, or to the general public (in a letter to the editor or a public demonstration or rally) advocating for the adoption of a public policy position, like a school board policy permitting opt-outs.
You may lose protection, however, if your off-duty speech is engaged in with school resources or otherwise disrupts school operations. For example, leafleting parents dropping children off at school about opt-out rights or emailing parents of the students in your class encouraging them to opt their children out of tests, may both be actions that a court could conclude to be unprotected by the First Amendment. Before you engage in such advocacy, be sure to check with your local counsel.
3. Act in solidarity with other educators and your local and state affiliates.
Only by joining together as one can we end the tide of toxic standardized testing in our schools. NEA supports parents who choose to opt their children out of standardized tests that serve no educational purpose. And NEA stands in solidarity with its members who advocate against the administration of tests that serve no legitimate educational purpose and refuse to participate in the administration of such tests with the support of their local and state affiliates.