Education Was An Afterthought by R.M. Reid

As Susan DuFresne noted in her book, “The History of Institutional Racism in U.S. Public Schools” [ for hyperlink https://www.garnpress.com/…/the-history-of-institutional-ra… ] education seems to have been an afterthought when American government was being established because nowhere is it explicitly mentioned with regard to the Constitution except perhaps as a States’ rights topic or issue of discussion.

In my opinion, from the onset there weren’t serious considerations of adequate funding for public education and its survival and sustenance nor of adequate income for the individuals who would serve as the practitioners of the education profession.

For too long, there’s been the dependence on property taxes to fund public education. For too long, the politics of education have been left to the devices of the politicians rather than those on the education front lines, educators and education-related service providers. Those very politicians seemingly forgetting that “students’ learning conditions are teachers’ working conditions.” There’s no equivalency to saying you care about children’s maximum learning potentials if the environment of their learning space is minimized.

If American public education is to have its fullest potential effect for students met, the insecurities (income, shelter, food, clothing, health/welfare - IOW, basic human needs) of their parents/caregivers are not addressed.

In conclusion, after the publication of “A Nation at Risk” in 1983, this nation, the United States did not fully grasp the intersectionality of the approaches needed to remedy whatever ‘ailed’ our public education system. Instead, this country chose the route of relying on testing and test outcomes to determine the course of treatment.

Contributed by R.M. Ried, BAT

Understanding the Need for and the Current Protections of Upstanders

If we are ever truly going to achieve the goal of eliminating workplace harassment and bullying from the American workplace, including the bullying of teachers and other K12 employees, there are a number of things that must be done. First and foremost, we will need a strong federal law, with strong enforcement. The current legal protections against workplace harassment have failed to even protect all targets of status-based harassment, much less the broader phenomena of workplace bullying. Second, even if a strong law is passed, we also need the help of bystanders. We need bystanders to become upstanders to defend and protect targets of bullying and to call out the bullies in their workplaces. Even in the absence of strong laws, upstanders can help to eliminate a great deal of the bullying in our workplaces. The focus of this blog will be on this former part of the solution to workplace bullying. 

In 2015 the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA), convened a task force to explore the reasons why harassment continued to be such a huge issue in the American workplace nearly 30 years after harassment was ruled to be a form of discrimination by the Supreme Court. After months of testimony from experts from human resource departments, labor unions, law firms, worker organizations, employer organizations and numerous meetings of the 17 members of the task force, the EEOC Commissioners came up with a list of recommendations. One such recommendation was that we all needed to play a role to end harassment. 

Harassment in the workplace will not stop on its own. The ideas noted above (earlier in the report) are helpful, but ultimately, may not be sufficient. It is on all of us to be part of the fight to stop workplace harassment. We cannot be complacent bystanders and expect our workplace cultures to change on their own. (from the Lipnic and Felblum, Report on the Select Task Force on the Study of Workplace Harassment, 2016). 

The conclusions were clear, if we are to eliminate workplace harassment, we will need co-workers and others to move beyond being mere bystanders - or even worse participants in the bullying behaviors – to being upstanders. Those who will stand with the targets of bullying and take steps to end the bully’s behavior. There is a clear need for an increase in this type of bystander intervention. The same need exists for upstanders to end all forms of workplace bullying whether the harassment is based on a protected status or not.

To shift from being a bystander to an upstander, co-workers can take a number of steps. Sometimes it is as simple as being a sounding board for targets of workplace harassment and bullying. Allowing targets to vent and work through their issues. However, there are also other steps an upstander can take. The upstander may assist the target of the bullying or harassment in filing a complaint against the bully. The upstander may intervene on the targets behalf when they see the bullying occur, by changing the topic of the conversation or interaction with the bully or deflecting the bully’s attention away from the target. The upstander, may stand as a witness for the target of bullying if a complaint is filed. Of critical importance, the upstander must make sure to never fuel the bullying behavior or doubt the target in terms of their experiences or the damage to their psyche. According to the EEOC STF report, Green Dot, a bystander training organization suggests that upstanders can help to confront the bully and ask them to cease their behavior, can distract the bully and remove the target from the situation and can help report the behavior to someone with authority to address the bully. The EEOC also suggests there is a need for upstander training in workplaces. Upstanders can and should be proactive and request such training.

Union leaders and even co-worker union members should be upstanders and advocates for targets of workplace bullying. While another blog will discuss specific things union leaders can and should do to address workplace bullying, a few of these things should include – believing the target of workplace bullying, understanding workplace bullying is real and the effects are severe for targets, witnesses, family members and organizations, understand bullying is a violation of the basic human rights of the target and stand up for the targets of bullying by engaging in both formal resolution processes (the grievance process) as well as other forms of concerted activity.

Being an upstander can be difficult and scary. While there is a clear need for greater protections for upstanders, it is important to understand the protections that exist. When upstanders, stand up for the civil rights of targets of employees, or when they engage in upstander behavior as a form of concerted activity, there are legal protections for these actions. When bullying behavior might be a violation of the Civil Rights Act, the ADA, ADEA or state human rights laws (i.e. status-based harassment), upstanders are protected against retaliation. Standing up for the targets of such harassment is a protected activity under the Civil Rights Act and other Equal Employment Opportunity (EEO) laws. Retaliation against someone engaged in such an activity is unlawful. There are three elements to a claim of unlawful retaliation:

1. There was a protected activity,

2. There was an adverse employment action,

3. But for the protected activity the adverse action would not have occurred.

The key here is that reasonable behaviors in standing up for a target of workplace harassment are all protected activities. From assisting in the filing of a claim, to interceding and asking the bully to stop, to being a witness, to reporting the bully’s behavior - all of these are protected activities. If the upstander receives any form of adverse employment action that would having a chilling effect in terms of engaging in such protected activities, then the this would be unlawful retaliation. The underlying behaviors do not have to be found to be harassment or discrimination for the upstander behavior to be protected. As long as there is a good faith belief that unlawful harassment or discrimination has occurred, the act of standing against these behaviors is a protected activity. 

Upstanders also are protected when the actions they take are a form of concerted activity – in other words working with or for the target or other co-workers to improve working conditions. For workers who are protected under the National Labor Relations Act (i.e. have the right to form a union under this law), such concerted activity is a protected activity. Again, any adverse action for engaging in such activity would be a form of retaliation. Where public sector workers (i.e. K-12 teachers) are protected by state collective bargaining laws, these concerted activities would have a similar level of legal protections. If an employer were to take or allow adverse actions in response to the protected, concerted activity the employer would be committing an unfair labor practice under these laws and both the upstander and the target would have legal recourse. 

Being an upstander can be scary. However, if we are ever to assure dignity in the workplace for all teachers and all workers, we need bystanders to become upstanders. We must rely upon each other to stand up against the bullies in our workplaces. To demand that bullies cease their behaviors, to provide safe places for targets of the behaviors, and to demand that employers take steps to remove bullies from our places of work. Upstander are not always going to be protected, but if we stand together, utilize the protections that exist and demand our union leaders to protect targets and upstanders, we can all take steps to eliminate bullying from our workplaces. 

Examples of Upstander Behavior

Listening to the target, so that they can share their experiences

Asking the target if they are OK and letting them know you found the behavior by the 

bully/harasser to be inappropriate. Ask them if they would be comfortable if you intervened - 

spoke to the harasser, helped the target to file a claim with the HR department, etc. 

Distracting the bully by changing the conversation, to take their attention away from the target. 

This simply gives the target an escape from the ongoing bullying. After this refer to #2 above. 

Confronting the harasser/bully - let them know their behavior is unacceptable and that it needs 

to stop and that you will stand with the target. 

Helping the target to file a formal report and acting as a witness on behalf of the target.

Examples of Protected Activity: Like most legal terms, protected activity can vary from case to case. However, the general rule is that any type of reasonable participation in a good faith claim of potential harassment is protected. This includes all of the above upstander behaviors. It also includes:

1. Filing a formal complaint of harassment or retaliation

1. Filing an informal complaint of harassment or retaliation
2. Acting as an advocate for a co-worker during an investigation of a complaint
3. Sharing information about a complaint of harassment for mutual aid or protection (i.e. a complainant informing co-workers or their union rep that they are concerned about the claim, potential retaliation, or ongoing harassment).

Examples of Adverse Action - Retaliation comes in many forms and whether those forms fit into the legal definition will often be a question for the trier of fact (i.e. jury or judge). However, the following are examples of retaliatory behaviors that do occur and that have been found to be an adverse action in some instances:

1. Any type of formal adverse job effect is almost always going to be an adverse action - firing, demoting, changing assignments, denying a promotion or raise, cutting pay, cutting benefits, disciplinary action
2. Intensification of supervision - micromanaging, increased demands for production records (i.e. lesson plans), intensification of performance reviews or classroom visits
3. Applying different performance standards to those who have engaged in a protected activity versus those who have not
4. Changes in working conditions - reassignment to a different classroom, changing planning periods, assignment of extra work, taking away meaningful work, reassigning favorite classes to someone else
5. Ostracizing - in several cases giving an individual who has participated in protected activity the cold shoulder or ostracizing them from co-workers has been found to be a form of adverse action that had enough of a chilling effect to be retaliation.

Know your Rights – The Workplace Bullying You Face May Indeed be Unlawful Harassment

In the United States there is no law that protects targets against workplace bullying. While we have seen some state and local laws addressing workplace bullying (i.e. Tennessee and Virginia parts of California), the reality is that for the most part there still are no legal protections for targets of workplace bullying. We also do not have any specific laws addressing workplace harassment. However, what we do have is over thirty years of recognition by the SCOTUS that harassment that is based on a protected status (race, color, national origin, religion, gender, age status over 40 or disability) is a form of discrimination under the Civil Rights Act, the Age Discrimination in Employment Act or the Americans with Disabilities Act. 

The complex system of laws around the US working relationship can cause a great deal of confusion. As a result, many working people believe they have more rights in the workplace than they do. For instance, many workers believe they have a right to only be fired for just cause (which is not the case for most non-unionized workers) or have a right to free speech in their place of work (again not the case for most workers). However, the complexity of the employment laws also leads many to think that certain rights that they do have, do not exist. The area of harassment and bullying often falls into this latter category. 

Unlawful workplace harassment is subset of workplace bullying. The behaviors and outcomes of both are often identical, but for the bullying behavior to be unlawful it must be based on a protected status. So we often differentiate the two based on whether the behavior is based on a protected status and thus is unlawful (harassment) or is not based on a protected status and thus not unlawful (bullying). In my own research, I have found that a definition of bullying that is built around the legal definition of harassment (but expands to include non-status-based behaviors) captures a larger amount and number of bullying incidents than do other definitions often used in research or in proposed anti-bullying laws. While unlawful harassment is defined as: 

unwanted objectionable behavior that is based on protected status and is severe and pervasive enough to create an intimidating or hostile environment or to unreasonably interfere with the working environment, 

bullying would be defined as: 

unwanted, objectionable behavior that has the intent or effect and is severe and pervasive enough to strip the target(s) of such behavior of their esteem, voice or other human rights or creates in intimidating or hostile environment 

So, the overlap between harassment and bullying is not a negative thing, we just need to clear up any confusion about these two areas. 

Too often targets or their representatives, will identify behaviors as being bullying and thus assume they are not unlawful without digging deeper to consider whether the behaviors are based upon or impact the target based on a protected status. In many cases, the behaviors that are bullying may indeed also be a form of unlawful harassment. 

What is critical is that the targets understand the definition of workplace harassment. So that they can understand when they may have a legal remedy to address their bully’s behavior. The definition of workplace harassment is straightforward. According to the recent proposed guidance from the Equal Employment Opportunity Commission (the EEOC), the federal regulatory body that enforces the laws which make harassment unlawful, harassment must be at least partially based on a protected status[1], the conduct must be subjectively and objectively offensive, the conduct must be unwanted and it must be severe or pervasive enough to create a hostile working environment (an environment that unreasonably interferes with work, or is intimidating or hostile for the target of such behavior). 

As mentioned earlier, the definition of workplace bullying can and often does contain these exact same elements with the exception on needing to be based, at least partially, on a protected status. So, this would indicate that if someone has been a target of workplace bullying, they will have some legal protection unless the bullying is not based on (even in part) some protected status. According to workplace bullying research only 1 in 4 acts of bullying are based on a protected status. So, the reality is that most targets of bullying will not be protected legally. However, what I am hoping to help targets and their advocates to avoid here is assuming they do not have protection because the behavior they have identified is a “bullying” behavior. “Bullying” is offensive conduct both subjectively and objectively and thus falls under the definition of harassing behavior. Let’s explore the remaining elements with a bit more depth. 

First, to recap and then to give a bit more meaning to two potentially overlooked statuses, the first element requires the harassment to be based on a protected status. Based on a protected status might seem straightforward. However, too often when someone hears the term harassment or unlawful harassment, they automatically narrow the term to sexual harassment. This makes sense given the types of harassment covered in the press, addressed by organizations like the #METOO movement, portrayed in movies and even covered by employer policies. However, sexual harassment, harassment based upon gender is just one form of unlawful harassment. Notice I also stated sexual harassment as that harassment based upon gender. The use of the term “sexual” often also leads to a narrowing of our understanding of unlawful harassment. Gender based harassment may indeed be sexual in nature (inappropriate advances, staring, touching, etc.) but in most cases even gender-based harassment is not sexual. It might instead entail things like treating women differently in the workplace, avoiding giving the tougher jobs to women, speaking down to female employers, etc. In fact, about 90% of gender-based harassment is NOT sexual in nature. So, when we think about unlawful harassment, it is important that we do not narrow our thought to sexual harassment and even when we think of sexual harassment we should not narrow our thoughts to sexual types of behaviors, but instead any offensive behaviors directed at someone due to their gender. 

Second, it is important to note that according to the EEOC, sexual orientation and sexual identity are both inherently a part of gender and the harassment that occurs based on these is a form of unlawful gender harassment. We also must be aware of another often-overlooked protected status, that is the intersectional statuses. Sometimes targets are targeted not because of one protected status, but because of an overlap of statuses. For instance, we often seem black females subjected to discrimination and harassment that their white female and black male counterparts are not subjected to. This might also exist for any type of intersection of protected statuses - women with a disability, older black employees, Asian men, etc. The EEOC recognizes that workers might be harassed because of the intersection of two or more protected statuses and recognizes this form of harassment as unlawful. So protected statuses include race, color, national origin, gender (including sexual identity and sexual orientation), religion, age status over 40 and disability, as well as any intersection of these statuses. 

We also must make sure that when we think about whether harassment is based on a protected status, we look at all the protected statuses – race, color, national origin, religion, age status over 40. We must also be aware that harassers today often avoid the obvious forms of harassment. They are not likely to use racial epithets (although this is far from unheard of), instead they are more likely to degrade racial minority employees in other ways. They are not likely to make specific statements about one’s age but would be more likely to apply age-based stereotypes. Analyzing whether the behaviors are partially or fully based on a protected status takes some time and reasoning. Advocates and targets should not be too quick to dismiss a protected status as the reason or partial reason for their torment. Ask yourself if not for my race, color, national origin, gender, etc. would I be being treated this way? Does my bully treat people of a different race the same way? Does he treat others of my color the same way? Is there other evidence of my bully’s bias against people of my race, or gender (or based upon the intersection of two or more statues)? 

To be unlawful, the second element is that the behaviors must also be unwanted. This means that the target has not asked for the behaviors. This might seem like an obvious element of the definition, but here is where targets and their advocates do not necessarily narrow the definition, but sometimes they give the other side ammunition to argue the behaviors are wanted. Engaging in the same behaviors towards others, laughing off the behaviors, or even failing to make it explicitly known that the behaviors are unwanted can provide ammunition for employers to argue that the behaviors were not clearly unwanted. How to avoid this and other tips about protecting your legal rights will be covered in a separate blog and you can further read about these in an e-book available on Amazon Know your rights: Ending Harassment in your Workplace by Jerry Carbo. 

The third element is the behaviors must be offensive. This means that the target found the behaviors offensive and that a reasonable person also could have found the behaviors to be offensive. Some of these behaviors are obvious – degrading treatment, ostracizing, berating, yelling at, intimidating, threatening, ogling the target are all obvious forms of offensive behaviors. However, the behaviors often take the form of misuse of otherwise common employment/HR practices. The abuse of an attendance policy, scheduling policy, performance evaluation policy can all be offensive behaviors. 

The fourth element relates to the prior two and that is the behavior must be severe or pervasive enough to alter the terms and conditions of employment. A few key considerations here. First, severity (level of the behavior) is balanced with the pervasiveness (how often it occurs). Even low-grade incivility that occurs often enough may indeed be severe and pervasive enough to create a hostile environment. Second, the behaviors do not have to have led to a diminishment in one’s work to be actionable. In fact, what we tend to see is that targets persevere. They work hard to prevent the harassment from altering their work outcomes. Third, the harassment does not have to lead to tangible health effects or tangible economic harm to be actionable. Harassment that creates a hostile environment, that is intimidating or that creates barriers in the workplace is unlawful. 

This article is not meant to provide you with all the information you need to determine if you have been the target of unlawful harassment. Again, to read more about your rights to be free from a harassing workplace, you can purchase a copy of Know your rights in the workplace and ebook I have posted on Amazon or speak to a local attorney. The purpose here is to help you to understand that just because the behaviors you are experiencing have been labelled as bullying by you, your advocates, your employer or anyone else does not necessarily mean that they are not a form of unlawful harassment. When you have been targeted for workplace bullying, the question as to whether the behavior is unlawful will in most cases come down to whether it was in part or fully based on a protected status. Was your bully engaged in these behaviors because of your race, your color, your age, your gender, your sexual orientation, your disability, your national origin or heritage?? Do not be too quick to dismiss this possibility. If you find, that you are the target of offensive behaviors that are interfering with your conditions of employment and that there is a possibility that such behaviors are based upon your race, color, national origin, age statues over 40, disability, religion, gender or some combination of these you may indeed have legal recourse. 

[1] The current code of federal regulations also includes harassment that impacts a target(s) based on a protected status. However, this form of harassment seems to have been largely ignored by courts and the EEOC in recent years.Jerry A. Carbo is a Professor of Labor Relations and Business and Society in the Grove College of Business at Shippensburg University. He is a member of the BAT Quality of Worklife Team and author of "Understanding, Defining and Eliminating Workplace Bullying.

Cower and the World Cowers With You; Stand Up and You Stand Alone

The blog post you are about to read may be painful to digest, but carries some hard truths.

Teachers in public schools have been under siege since the 1983 President Reagan Report,

“A Nation At Risk.” This report heralded in an era of privatization of public entities, and planted the seed to privatize public education.

A few decades later Corporate policies have nearly obliterated America’s Public Schools; a former Public Social Institution is now run as a business and Principal teachers have been replaced with CEOs.

There have been many casualties as a result of this Corporate Reform run approach to public schools. Experienced older teachers were summarily eliminated while their colleagues stood by, and younger less experienced teachers were hired who came through the ranks of Corporate-sponsored “Education” programs with Teach for America being the most well-known.

What may not be apparent about this culling of teachers is that many of them were victims of Workplace Bullying. While most teachers acknowledge there are Administrators who engage in bullying behaviors, what is not usually acknowledged is the accompanying bullying by fellow colleagues.

Nurses, social workers, and teachers are the most likely to participate in bullying their colleagues, the so-called “Caring Professions.” (1) Surprised to learn this?  Most people are. Perhaps that is why it catches so many people off-guard because they see teachers as part of a caring and nurturing profession.

This bullying by colleagues can take several forms.  The most common being active participants or by being passive bystanders.  Passive bystanders? How on Earth can they be responsible for workplace bullying of their colleagues?

According to the Alberta Bullying Research, Resources and Recovery Centre this bullying by bystanders often manifests itself as “moral disengagement.”  People develop standards that guide their moral behavior; what they will or will not do according to their own personal moral code. (2) However in the case of workplace bullying, bystanders tend to develop self-serving behaviors and justifications for overriding their personal moral standards.

People may feel they have a moral justification for standing by while others are bullied; that is there is a higher purpose for doing so such as fear of losing their jobs, and what would happened to their families, etc. if that should happen.

Colleagues often willfully refuse to understand just how serious the bullying of a colleague can be and the harm it causes to the target emotionally and even physically. They will minimize it or even ignore it in order to save themselves.  This often leads to diminishing the humanity of the targeted colleague; people will not even try to put themselves in the shoes of the targeted individual or even try to understand what is happening to that person, thereby disregarding the consequences suffered by the targeted person. (3)

People often throw up their hands and say this is how the system works and diminish their own responsibility and complicity in how this system works. They try to keep a low profile because they believe this to be the only way to avoid getting bullied themselves.  They are wrong.

People will stand by if someone does come forward in support of the targeted colleague but will not offer to band together in support of the target and even themselves.  By their self-serving behavior, they often can not see how galvanizing support would seriously hamper workplace bullying not only of the target, but also of themselves at a possible future time.

So they blame the victim.  The victim should not have spoken out or not have been so forceful or forthright about their standards and principles.  It’s their own fault.

As one who has experienced many of the above scenarios, my best counsel for those undergoing workplace bullying is this:

Realize you are going to be alone.  One cannot expect help, comfort, or solace from fellow colleagues.  For that I am truly sorry.  Moral disengagement by colleagues is real and pervasive. If you are fortunate enough to get any comfort or sympathy from others be grateful.  More often than not you won’t.

Do what you need to do to take care of you.  Get therapy, take a leave of absence, or anything you can to diffuse the impact this bullying has on your life and the lives of your loved ones.

Do this without any guilt or remorse.

Follow the procedures and policies outlined by your school district, but with the caveat they may be just lip service without any real teeth behind them.  Document all that you can.

Use a search engine and look for sites that deal with workplace bullying such as The Workplace Bullying Institute, (workplacebullying.org) and and others and get to know them.  Study all that you can about bullying and how it operates.  For background information, a good friend recommends, “Teacher Wars: A History of America’s Most Embattled Profession”, by Dana Goldstein.

Last but not least do the unthinkable, plan an exit strategy.  Prepare and find a way extricate yourself from the situation just in case it becomes an intolerable nightmare for you.  That is not cowardice, it is intelligence and there is no reason to feel bad about that.

Be true to yourself.  Prepare yourself.  Love yourself.

© 2019 Wilma de Soto

Wilma de Soto is a member of the Quality of Worklife Team of the Badass Teachers’ Association

1. “When Teachers Bully Other Teachers” https://blackboardtalk.com/2018/02/04/when-teachers-bully-other-teachers-bullying-in-the-teaching-profession/
2. “Workplace Bullying and its Relationship to Moral Disengagement”, Sereda, Terry
3. “Moral Disengagement and the Bystanders of Workplace Bullying-Reflections”, Creighton-Lacroix, Wendy

Threats, bribes, deceit and glitches highlight another testing debacle in New York

A version of this article originally appeared at The Progressive

In the ongoing national parent revolt against high-stakes standardized testing, New York has had the largest test refusal movement by far, with approximately one in five students refusing each year since 2015. The first round of this year’s grades 3-8 tests began last week amid fresh outrage over punitive new regulations and an official misinformation campaign designed to intimidate and confuse parents. The drama now unfolding in New York in response to this year’s testing troubles foreshadows a growing national clash over what really counts in our schools. 

Seeing their concerns ignored, New York parents began publicly sharing district letters showing threats, bribes, and false information. The chaos and contention was compounded by a large online system crash almost immediately after testing began April 2; reports emerged that the state’s computer-based testing platform would not let some students log on or submit tests they had worked on for hours. By day’s end, headlines from Long Island to Buffalo and everywhere between declared the online testing a “debacle”. 

According to the NY State Education Department, some 6,600 students were affected; all online testing was postponed one day as experts scrambled to troubleshoot the problem. Because a similar crash plagued New York schools last year (along with student data breaches), the NYS Council of School Superintendents, the largest state teachers’ union NY State United Teachers, and the NY State Parent Teachers Association immediately called for the firing of the testing vendor Questar. The Minnesota-based testing corporation has also presided over disastrous system crashes in Mississippi and Missouri, and in Tennessee where the legislature responded with a multi-year moratorium on online exams.

Leading up to test time, State Education Commissioner MaryEllen Elia touted shorter tests, developed by New York teachers. But long testing times remain a major complaint, and claims of teacher involvement are over-hyped, as teachers only get to choose readings and questions from choices provided. Ultimately left unclear was whether parents even had a right to refuse testing, so in a significant development, the teachers union stepped up to inform parents. Last year, NYSUT publicized parent’s right to opt-out, but this year, led by Executive Vice President Jolene DiBrango, NYSUT prominently challenged the underlying validity of the tests, noting that the hidden scoring formulas are shockingly misaligned with high school level exams and inaccurately label thousands children across the state as “failing.”

In a campaign called #CorrectTheTests, NYSUT published a blistering fact-check of SED’s 2019 information, also noting that the highly flawed tests are too long and developmentally inappropriate. On the ground, teachers reported this year’s 4th and 6th grade English Language Arts tests contained the same 10th grade level passage, and the 8th grade exam had an abstract poem studied at the university level. There were, as usual, ambiguous questions teachers felt had more than one plausible answer.

There are many reasons parents reject the high-stakes tests, but chief among them are the lack of any tangible benefit to students, schools or taxpayers. Widely considered scientifically invalid, standardized tests are vulnerable to cheating and manipulation, highly subjective, inaccurate and arbitrary, but have also been weaponized in New York to advance a narrative that has helped expand charter schools and corporate privatization. Recent flare-ups challenging testing length and validity in Texas, Ohio, North Carolina and other states show that tests remain as controversial as ever.

The time wasted on testing is insane. Most of my students finished within 70-90 minutes on Day 1, but still had to sit silently in the testing room for another two hours. They are allowed to read, but are not allowed to draw or do homework. Day 2 tests took longer, and a few students in my school tested from 9:15 a.m. straight through to the end of the school day, stopping only for a “monitored” lunch break.

This untimed testing regime, now in its fourth year, was questioned from the start. Introduced without any supporting research, the idea was to relieve student stress; instead, it has by greatly increased testing time. Untimed tests are frowned upon by the American Psychological Association and actually run afoul of a 2014 NYS law that limits to only 1% the annual instruction time that can be interrupted for testing.
 
A disturbing story emerged this year from a district that had incorrectly informed parents the tests were mandatory. A 6th grader spent 4 hours testing on Day 1 and then almost 7 hours on Day 2, with only a 20-minute lunch break and no recess. The child appeared anxious when his test was collected at the end of Day 2 and he reportedly collapsed when he got home, ending up in the hospital where he was treated for dehydration. He apparently hadn’t eaten or drank during the day and was monitored past 2 a.m., missing school the next day.

Across the state, social media buzzed with reports of schools using rewards such as candy, pizza parties, field trips, and extra recess and punishments such as denial of privileges or a trip to the principal’s office. One school told students they could not be in the honors program unless they take the tests while another threatened summer school. An upstate principal told students they needed to take the tests because their school loves them, and they love their school, telling students that “say YES to the test” will be exempt from June English finals, while telling students who opt-out they must take their English finals during state testing time, in the same room as the others. The principal also promised that if the school reached 100% compliance, “...5-6 of your FAVORITE Teachers will do something FUNNY ‘like’ KISS A PIG”.

Once the coercion and resultant nightmare stories came to light, SED would publicly blame local superintendents. At the end of the week, SED finally issued a long-overdue statement clearly affirming a parent’s right to opt out:

“We would like to remind school leaders of the importance of honoring requests received by parents to opt their children out of the exams. While federal law does require all states to administer state assessments in English language arts and mathematics, parents have a right to opt their children out of these exams.”

Up until this point, SED had danced around the question, giving many districts impetus to deceive and exaggerate, telling students the tests were mandatory or inventing hurdles. Parents reported being required to come in person to speak directly to the principal, or to submit opt-out letters by an artificially imposed deadline.

Why this manipulation by some school administrators? Because the stakes were dramatically raised for schools this year. As a direct result of SED’s new ESSA implementation plan, a number of schools with high opt-out rates ended up on the state’s list of schools in need of intervention. Led by Betsy DeVos, the US Department of Education has been forcing testing compliance under threat of withholding Title I funding, meant for students in poverty. In NY, Commissioner Elia assured schools there would be no consequences if parents refuse testing, but changed her tune after a meeting with DeVos.

The Patchogue-Medford School District is a prime example, with several well-regarded, high-performing elementary schools ending up on the list after as much as 80% of students opted-out in 2018, leaving a non-representative test sampling. The Pat-Med community is outraged over being wrongfully “labeled” and is even concerned about local home values. But urban schools in impoverished areas were also put on the list, threatened with eventual closure or conversion to charter schools if they do not improve under a complicated new formula that treats opt-outs students as if they got the lowest score on the test.

One alternative school in the South Bronx that exclusively served over-aged, under-credited students will now need to shift resources towards new compliance plans to boost test scores and test participation. A well-loved “progressive” school in Manhattan with opt-out rates topping 80% ended up on the list this year, prompting NYC schools Chancellor Richard Carranza to speak up in their defense.

In bald hypocrisy, SED blamed districts for deceiving and coercing parents and students to test, writing: “To be certain, the vast majority of schools honor parents' requests to have their children not take the tests; however, we have also heard of isolated but troubling reports of parents' requests being ignored.”

The NYS Council of School Superintendents immediately responded with a heated letter, upset that SED “cast aspersions” on all superintendents instead of dealing directly with the bad apples. The letter also reveals that district superintendents doubted the policy from the beginning, yet felt pressured to carry out SED’s dirty work, out of fear of the new “corrective action plans.” From the letter:

“Since the inception of high-stakes testing, school leaders have done their best to carry out the directives of the State Education Department… many superintendents are now questioning why they have stood side-by-side with the Department to implement its assessment agenda, even when they disagreed with it.”

SED indeed gave their stamp of approval for schools who used alternative tests as a scare tactic. Asked about the tumultuous first week of testing, embattled SED Commissioner MaryEllen Elia said Questar’s connectivity problems were inexcusable and their contract would be reviewed. But she said the grades 3-8 tests are federally-mandated and unavoidable, and claims to seek the best tests possible through the involvement of NYS teachers. Educators maintain the opposite, claiming they’ve been ignored and marginalized since Elia first took office when they presented her evidence of the many flaws in NY’s high-stakes standardized testing. Teachers also were ignored during regional policy implementation workshops, public hearings and comment periods.

In a radio interview, when Commissioner Elia was asked to respond to criticism that her actions have fallen short, she momentarily admitted as much (at 5:48), awkwardly trailing off in an unclear sentiment:

“Everyone doesn’t agree that that’s enough and to be perfectly honest I don’t think it’s enough, but what we have done is clear, and I think incontra-futable [sic] that that’s what we’ve been working on.”

If the Commissioner is listening now, high-stakes testing in New York does more harm than good. It is incredibly intrusive and skews what’s important in our classrooms. When I was a kid in my NYC public elementary school, I remember a combined math/literacy bubble test held one afternoon, late in the year, that was short, diagnostic and low stakes. My middle school today has over 12 days of high stakes testing and other schools have over 20 days. All across the country, it’s time to reduce standardized testing, make the tests developmentally appropriate for all learners, and finally end this damaging testing obsession.

Written by NY BAT Jake Jacobs
Additional assistance provided by Deborah Abramson-Brooks.