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Learning at its Best

Using the Power of Litigation to End the Addiction to Testing and to Further Student Voice

Now that educators and parents are on a full revolt against the addiction to testing in the United States when it comes to public education, we have to arrive at a point where we have to consider the possibility of suing the U.S Department of Education and a few SEA’s. The suits would occur on the premise that NCLB and RtTT do not grant administrators, parents, and students due process protections when it comes to opting out of federally mandated tests and that the initiatives enacted create hostile learning environments.

The suit on the basis of the lack of or the practically nonexistence of due process protections would have to argue that in cases where students, parents, or administrators want to opt out of testing they are not given the chance in some cases to due process so that they can argue their cases. School officials and SEA officials are literally running around scared of the implications they can face if they allow students to skip these exams and that fear is inhibiting their access to an appropriate public education. The suit can further argue that when teachers and school administrators have professional objections to the tests that they do not have access to a due process discourse under NCLB, which allows for the forcing of testing onto children when such testing is not beneficial.

The second suit based on sponsorship of a most restrictive (learning) environment can follow the same discourse in argument but further elaborate on how the tests cause anxiety and thus can trigger other physical or psychological impairments in the classroom. It can argue that both NCLB and RtTT promote a learning environment where fear of failure and the drive of competition become central to the learning environment and clouds judgment, which hinders education from taking place in the Least Restrictive Environment that IDEA guarantees.

Simply refusing to take these tests, staging boycotts, and homeschooling children out of frustration with these tests and the lack of voice within the public education system is not going to change much. Yes, while these are all effective methods to reiterate just how serious parents and students value their options, they ultimately do not challenge lawmakers or the laws themselves and leave educators in a vulnerable position where these tests and lack of voice are forced onto them. Further, for the children, parents, and administrators who cannot afford to take a stand against this corporatist driven agenda are essentially abandoned because they are left to deal with a system they not is not doing right by its students. With each school year, these tests seep into new arenas of suppression and now districts and states are investing in these tests as a measure to pull effective teachers from the classroom while ignoring the problems that actually cause poor academic performance in students. The only way to reclaim public education is to piece-by-piece work to ensure that learning can actually take place within the classroom and that the prospect of democratic education remains central to public education.


10 thoughts on “Using the Power of Litigation to End the Addiction to Testing and to Further Student Voice

  1. In my opinion, it’s not the tests that are the biggest part of the problem, it’s what we have chosen to do with the results of the tests. It’s sad to watch the never ending blame game and that neither argument serves to advocate for the improved literacy, math skill, critical thinking abilities of the STUDENTS. The longer we refuse to look at these issues from the students perspectives, the longer these failing issues will persist. The hard to digest truth is that for a variety of reasons, including diet, video games television, psychotropic drugs, our students can not see, hear and process information accurately and efficiently. Until those abilities are built, most gathered test data is flawed from the start and the revolving door will just keep spinning in place.

    Posted by jack marcellus | January 16, 2013, 5:05 pm
    • I am not anti-testing, I think testing can be very beneficial if used in the correct manner. However, the way that RtTT and NCLB uses tests is not beneficial because no one is actually learning relevant information but just what the state says is on the assessment.

      Posted by Jabreel Chisley | January 16, 2013, 5:09 pm
  2. Jabreel,

    Speaking tongue-in-cheek (but not really), my compatriots and I love a good lawsuit – especially one as complex and time-consuming as a challenge to standardized testing would assuredly prove to be. The thought of the number of billable hours makes us giddy with anticipatory joy…

    I discussed the “standardized test issue” with a client faced with producing graduates of a technical-training program who could pass a standardized test that, by administrative fiat (and therefore by legislative and legal fiat), would entitle them to act as Emergency Medical Services personnel. While that situation is not identical to the one you raise, there are several lynch-pin issues applicable to both. I won’t go into all the legal issues, but here are a few of the large ones:

    1. The tests used are privately owned “intellectual properties”.
    2. The value of intellectual property greatly depends upon either 1) controlling access to the property or 2) assuring the “secret ingredients/recipe” cannot be used by those who have not paid for that property.
    3. The secrecy-or-pay situation shields from disclosure what lies beneath the test – those who developed the test questions carried out “scientific”, or at least a statistical studies of the questions in order to “prove”, through the use of “best practices” that the questions are “valid”.

    Please take note I have not even come close to issues regarding Constitutional Law or Civil Rights, matters of economic status, verbal abilities, social position, or power. I did not approach those issues because the foregoing matters forestall reaching the meat of the matter – I ask you this question, not that I expect or even want you, Jabreel, to answer it:

    Have you noticed that “Civil Rights” are in full retreat?


    Posted by Brent Snavely | January 17, 2013, 8:38 am
  3. I would love to see lawsuits over this! I would dearly like to keep my kids out of the standardized tests our state mandates, but I’m also cognizant of the dangers our school would face when they scored lower for it – student not taking the tests are counted as zeroes, as opposed to merely not being counted. 😦

    In addition, where are the lawsuits from unions on behalf of teachers who lose their jobs to unwarranted poor evaluations based on test scores, in some cases scores of students they’ve never even taught?

    Posted by tiedyedeb | January 19, 2013, 7:55 pm
    • This might get me some sour feedback from some, but union leadership wouldn’t dare go up against Obama’s administration because they put so much (effort and money) behind him. Though, if they did happen to come back around to reality and go full force against the battleground state’s education system, New York’s, and Obama’s Dept. of Education, the conversation would happen as quickly as we need it to happen.

      Posted by Jabreel Chisley | January 19, 2013, 8:39 pm
      • Nationally, yes, teacher unions supported and continue to support the POTUS. However, there are pockets of resistance all across the nation. In Washington state, teachers are refusing to give mandated high stakes tests because they do not test what is taught. In Chicago, teachers went on strike to better the learning environment for their students. In Hamburg, NY teachers refused to sign on to a flawed teacher evaluation system that is based on student test scores – again high stakes tests that are being forced on all children in NYS. There are the NY Principals resisting high stakes testing. United Opt Out is coordinating “Occupy the Dept. of Education” in Washington, DC in April. There is the petition signed by hundreds of educators, administrators and parents.Parents are opting their children out of mandated testing all across the nation. Teachers are resisting in ways that they can. I am a NYSUT member completely fed up with my state union leadership’s decision to kiss the butt of Governor Cuomo and doing what I can in my corner of the world. We are not “coming around” quickly – but we are coming around and we need the support of parents and community members to be heard.

        Posted by antiqueteacher60 | January 19, 2013, 11:42 pm
  4. Sign me up for a lawsuit! My son was forced to sit for high stakes assessments for twelve hours, against our documented wishes. We were also threatened with truancy court (and I have an oopsie sent to the wrong person–me–district e-mail that proves they were serious)

    Posted by make it stop! | January 19, 2013, 8:25 pm
    • Its a d*mn shame that districts are so entangled in this “race” to get to the place that years before no one wanted to be at that they are willing to bully parents into making sure their child is there to take the tests. I understand they have to get their money from the fed and from their state but come on… threatening truancy court against a student is at the fringes of justifiable action.

      Posted by Jabreel Chisley | January 19, 2013, 8:43 pm


  1. Pingback: Using the Power of Litigation to End the Addiction to Testing and to Further Student Voice | Cooperative Catalyst | Into the Driver's Seat | - January 18, 2013

  2. Pingback: Using the Power of Litigation to End the Addiction to Testing and to Further Student Voice | Cooperative Catalyst | :: The 4th Era :: | - January 18, 2013

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