OPT OUT NEWS: Principals told that parents didn't really opt out their children if they learned of their rights from their teachers! Chicago tries to abolish the First Amendment rights of Chicago teachers who informed parents about their legal rights to Opt Out

The administration of Chicago's Public Schools has increased its pressure on local school principals to abolish the First Amendment rights of Chicago teachers. The administration of the current "Chief Executive Officer" of Chicago's public schools, Barbara Byrd Bennett, provided a framework for principals to discipline teachers who informed parents of their Opt Out rights.

The first page of the three-page memo from CPS telling principals that teachers who have helped children and families learn about their Opt Out rights engaged in "unprofessional conduct" that "could result in suspension or revocation of licensure by ISBE."The revelation of the continuing attack on teachers' rights came in a memo demanding that principals do an audit of all children who did not take the ISAT (Illinois State Assessment Tests) tests.

In a March 12, 2014 memo distributed to all CPS elementary school principals, CPS administrators told principals that they had to fill out information about those children who had opted out, but the CPS memo insisted that children were not opted out if they had been informed of their opt out rights by teachers.


TO: Principals, ISAT Test Coordinators, and IAA Test Coordinators FROM: Department of Student Assessment RE: ISAT/IAA Reminders and Not Tested Reasons for ISAT/IAA DATE: March 12, 2014

The CPS memo directed principals "Per ISABE (click here for full documentation) Code 15"... Above is page one of the document that was linked.ISAT/IAA Testing Irregularity

The Department of Student Assessment will assist schools in resolving ISAT/IAA testing irregularities. The process will include several steps that must be followed in a timely manner. All schools are required to report any ISAT/IAA irregularities to the Department of Student Assessment immediately. The deadlines for reporting testing irregularities are as follows: ISAT: March 14, 2014 IAA: March 28, 2014

Please complete all sections of the attached 2014 ISAT/IAA Testing Irregularity Form (school name, contact person, phone number, detailed description of testing irregularity, and list all students involved). A separate form must be completed for each testing irregularity. ISAT/IAA Testing Irregularity Form is available on ISAT page of the Knowledge Center, Opted-out Students

105 ILCS 5/21B-75Per ISBE (click here for full documentation) Code 15 does not apply where a student is influenced by school personnel, either directly or indirectly, to refuse to engage with the test. School personnel who encourage, entice, or otherwise influence students to refuse testing, whether by direct communication with students or indirect communication to parents and/or guardians, will be considered to be engaging in unprofessional conduct as defined in the School Code: Unprofessional conduct also includes conduct that violates the standards, ethics, or rules applicable to the security, administration, monitoring, or scoring of or the reporting of scores from any assessment test or examination administered under Section 2-3.64 of this Code or that is known or intended to produce or report manipulated or artificial, rather than actual, assessment or achievement results or gains from the administration of those tests or examinations. (105 ILCS 5/21B-75). This impropriety could result in suspension or revocation of licensure by ISBE.

The claim that children could not legitimately opt out if they had been informed of their rights by their teachers is an unprecedented attack on the First Amendment rights of teachers and children. Earlier during the Chicago Opt Out movement, Illinois State Board of Education President Gery Chico and State Supt. of Schools Chris Koch had first told CPS officials that parents did not have the right to opt out.

The March 12 memo changed the official party line, which earlier had claimed that parents did not have the right to opt out their children.


March 14, 2014 at 7:11 PM

By: Sharon Schmidt

Conversations must remain legal

The ISBE language is insanely outrageous:

"School personnel who encourage, entice, or otherwise influence students to refuse testing, whether by direct communication with students or indirect communication to parents and/or guardians, will be considered to be engaging in unprofessional conduct as defined in the School Code."

This is clearly a violation of the First Amendment: "Congress shall make no law ... prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press"...

March 14, 2014 at 7:49 PM

By: Craig Cleve

opt out

What's all this gobbledy-gook about kids learning about their opt out rights from teachers? Didn't Triple-B essentially let the ISAT cat out of the bag when she sent her letter home to parents? Twice?

March 14, 2014 at 8:00 PM

By: Kimberly Bowsky

Notifying families about their rights

ISBE and the district are spending an awful lot of time making it hard to teach, and now despite the fact that teachers are mandated reporters and conveyors of information to help families, empowering families with opening access is "unprofessional conduct." Ethics should drive policy.

March 15, 2014 at 9:36 AM

By: Rod Estvan

Controlling legal decision on conversations

Public school teachers are in a very unique position. They are individuals and employees of the state. Therefore, school districts have an interest in making sure that the messages that students receive are in line with the districts goals and vision.

A teacher appears to speak for the school district when he or she teaches, so the district administration has a strong interest in determining the content of the message its teachers will deliver. While courts sometimes protect the academic freedom of college and university professors to pursue novel teaching methods and curriculum, these principles do not apply with equal force to K-12 teachers.

In the situation of Chicago teachers there is a controlling decision by the 7th Cir Court of Appeals. The case is Mayer v. Monroe County Community School Corp 474 F.3d 477. Among the things the Court wrote is "The First Amendment does not entitle primary and secondary teachers, when conducting the education of captive audiences, to cover topics, or advocate viewpoints, that depart from the curriculum adopted by the school system."

The court went even further writing: "This is so in part because the school system does not "regulate" teachers' speech as much as it hires that speech. Expression is a teacher's stock in trade, the commodity she sells to her employer in exchange for a salary." Legally in Chicago while in a classroom public school teachers have no legal right to even express their opinion about standardized tests authorized by either ISBE or CPS. I don't like this decision but it is the law and teachers need to understand that.

Rod Estvan

March 15, 2014 at 1:47 PM

By: Sharon Schmidt

Teachers speaking to parents is

1. Teachers speaking to parents especially on our own time is not the same as "conducting the education of captive audiences."

2. Teachers may present information in class without pushing a certain viewpoint. In my journalism class, when we covered the teacher boycott and student opt out, was I in violation of the law or ISBE guidance document by presenting news articles that cover the information? Of course not.

March 15, 2014 at 4:28 PM

By: Rod Estvan

Location of discussion with parent is critical

Even if the teacher's work day is done I would recommend having discussions with families about opting out of tests off of school property then your 1st amendment rights are clear. When I was an officer of the court overseeing a settlement agreement I had to review the legal implications of a disciplinary action taken against a special education teacher who appealed to our office for protection. I was shocked to discover the limitations placed by courts on the free speech rights of teachers inside of school buildings and on school property. For a special education teacher their ability to have a fully open discussion with families was limited to IEP meetings where their free speech rights were fully protected.

CPS could if it wanted to ban all discussions even at the high school level that involve issues related to mandated testing and based on the 7th Cir case I have cited be found within the law. This would have to be formally communicated to teachers for disciplinary action to be taken against teachers.

The 7th took a very extreme and expansive position in the Mayer case which is why it was appealed up to the Supreme Court which declined to hear it. This is a very bad decision and I am somewhat surprised people seem not to have been aware of it. I want the readers of Substance to understand I am not telling teachers not to do what they believe in, but I do think teachers need to know their free speech rights are limited on school property,

Rod Estvan

March 15, 2014 at 6:11 PM

By: Amy Kurman

Teachers opting own children out

So, if I'm a CPS high school teacher and I have opted out my own child from ISAT, could I be punished for that? My 3rd grader actually made his own decision not to test. I'm sure his school was very upset. He is currently in the high reading and math groups (working 2 grades above grade level).

March 15, 2014 at 6:52 PM

By: Rod Estvan

No Amy

No CPS as your employer can do nothing to you for opting your child out of testing. But if you told your high school class when asked a question about if you believed they should have to take standardized tests that you supported your daughter's decision not to be tested and it was the right thing to do, then based on the face of the Mayer case at least in theory there could be an action taken. I would suggest that it is unlikely.

But the facts of the Mayer case are very extreme. A teacher was in effect asked a question by a student whether the teacher would support a public demonstration against the Iraq war. The teacher basically just said yes I would because I don't believe in the war. Then the child went home and told a parent about this.

On the basis of just that the teacher was questioned and repeated what the teacher had told the class in response to a question. At the end of the year the teacher who was on a provision certificate was denied further employment and full certification only based on those comments. Basically those are the facts, it is really pretty extreme and frightening. If you read the 7th decision which is easily available on the web I think you will realize how far they took this case to curb any free speech rights of public school teachers within schools.

Rod Estvan

March 15, 2014 at 7:42 PM

By: Christopher Ball

Speech Outside School Unaffected by Mayer.

I don't think Mayer v. Monroe County is dispositive here. It established that a teacher does not have a 1st amendment right to make his or her personal beliefs on a matter clear to students when teaching. But the memo above doesn't restrict itself to conduct in the line of duty, but includes any communication to parents that would result in the student not taking the test. In this case, Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563 would be controlling, I would think.

March 15, 2014 at 7:56 PM

By: GeorgeN. Schmidt

Teachers can also comment during non-teaching

Between 1980 and 1982, Substance and I won the case called Substitute United for Better Schools v. Catherine Rohter et. al at the local federal district court. The issue was another teacher right -- First Amendment freedom of the press.

As some readers know, the First Amendment itemizes five specific areas protected: Religion, Speech, Petition, Assembly and Press. The press issue was whether the Board had the right to forbid the sale of Substance inside (yes, INSIDE) Chicago schools while other publications (Sun-Times and Tribune among them) were sold in the same schools.

CPS had gone so far as not only the "ban" Substance in the schools, but to arrest at least one of our people and threaten to arrest others for selling Substance during lunch in schools where we worked as subs.

In his lengthy decision, Judge Decker, a conservative Republican by the way, held that Substance could be sold by teachers in the schools in which we worked provided we sold it during our "own" time (lunch; prep) in a non-disruptive manner (i.e., viz., we did not barge into classes interrupting the lessons).

Citing Pickering, the judge held that we could sell Substance in the schools. It was a major victory at the time and still sits in the court records (at the district court level) because CPS did not appeal the case. For several years after that, we sustained our rights without incident.

The First Amendment rights -- all five areas of them -- have to be watered in each generation with the sweat, blood toil and tears of a new generation of teacher activists -- Pickering during the 1960s, substitute teachers during the 1980s, and Opt Outers today.

March 15, 2014 at 8:02 PM

By: Christopher Ball

Not a fact

We don't know if Mayer was denied a contract renewal "only based on those comments." Mayer claimed that was why but the court assumed that was true because to grant a summary judgment the court must examine the facts in a light most favorable to the plaintiff.

Since Mayer had been told not to discuss her personal views in class, and subsequently did so, she was insubordinate. That the subject was political did not give her immunity on 1st amendment grounds. It was substantively no different, the court held, than if a teacher was told not to introduce calculus until after trigonometry was covered, but defied the order.

March 16, 2014 at 12:51 AM

By: Rod Estvan

Chris the 7th example is more chilling

Unless we are taking about teachers sending home opt out memos the communication is probably oral between the teacher and parent or student. The memo does not indicate that non-school based communications are subject to disciplinary actions, you see it as implied and I do not.

There are OCR cases where special education teachers have made it clear to parents that they want to give them some advise, file due process against the district. If they do that inside or on the grounds of a school unless inside an IEP meeting OCR has not intervened against disciplinary action against the teacher for insubordination. If the teacher meets with the parent off of school property and makes clear they are not talking as a teacher but as a fellow parent OCR has ordered corrective action to rescind disciplinary actions against these teachers. So most of us that are involved in special education law always advise do it off school property and draw a line between your role as a teacher and your personal perspective as a parent. Because IDEA and section 504 are involved here these special education disciplinary actions can become OCR cases under administrative law.

The example the 7th used was very political by the way, it was based on a history lesson. The example used was Benedict Arnold and if the district curriculum held he was taught to be a traitor and the teacher expressed objection to that perspective. The 7th seized upon this case and expanded restrictions to curricular freedom of expression.

Rod Estvan

March 16, 2014 at 11:13 AM

By: Rod Estvan

Limits of Principal authority under school code

One more thing in relation to the memo and Chris from Raise Your Hands comment. The memo is addressed to CPS principals, their authority within Chicago is defined by the school code specifically at 105 ILCS 5/34-8.1.

I can see nothing in that section of the law that would authorize a principal to investigate the activities of a teacher beyond the confines of school property in relation to the opt out issue. For example a principal is not authorized to investigate possible sexual misconduct of teachers or staff beyond the building, that must be done by the CPS Department of law. But the principal must relate such complaints or suspicions for review.

ISBE also conducts teacher disciplinary actions and investigations pursuant to licensure, there are extensive FOIA records of completed cases. All investigations of teachers outside of school buildings I have seen have been related to criminal activity for which one can lose certification, sexual contact or other inappropriate contact with students, or school authorized external activities which are actually school functions like sports or field trips. I have never seen an external investigation relating to teachers attempting to persuade parents or children on any particular perspective, including of course religious recruitment. I could be wrong because the ISBE FOIA records are so massive, but I doubt it.

Rod Estvan

March 17, 2014 at 4:12 PM

By: John Kugler

Teachers Followed CPS Policy

"As Parents, you have the option to opt out of this or any test," (Barbara Byrd-Bennett, January 29, 2014)

Nunc Pro Tunc!!!!!!

March 18, 2014 at 11:22 AM

By: Susan Ohanian

Petition to end Standardized Testing

We the People petition the Obama administration to:

Direct the Department of Education & Congress to Remove Annual Standardized Testing Mandates of NCLB and RttT. . .

Sign this petition today. It takes 100,000 signatures to orce the White House to listen.

Pass the word.

March 20, 2014 at 6:20 PM

By: Rod Estvan

Maureen's comment

Have you heard that CPS is interviewing students who have opted out of ISAT testing? That wouldn't be real smart I would think.

The best idea for CPS would be to forget about all of this. Dr. Kruger is correct CPS did give out bad information on the opt-out situation to the public and really it can only do something going forward from March 12th not backward based on the ISBE determination.

Rod Estvan

March 20, 2014 at 6:40 PM

By: Maureen Cullnan

CPS interviewing children

How protective would it be if parents inform CPS in writing that they do not want any CPS staff to interview their child(ren) about the decision to opt-out of ISAT testing?

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