ACLU-NM lawsuit pushes PED to remove ban against “disparaging” standardized tests
SANTA FE, NM—In response to a free speech lawsuit filed in March by the American Civil Liberties Union (ACLU) of New Mexico, the New Mexico Public Education Department (PED) announced that it will begin the process of removing the rule that prohibits PED employees from “disparaging” standardized tests. The PED will ask the court for a stay in the lawsuit while it goes through the necessary steps to remove the gag rule from the books.

“We are extremely pleased that the Public Education Department has chosen to do the right thing and strike this unconstitutional gag rule from the books,” said ACLU-NM Staff Attorney María Mártinez Sánchez. “Many NM educators have serious and legitimate concerns about overreliance on standardized testing, and the harms it can cause to individual students and the educational process as a whole. We should be listening to the teachers’ expertise on these issues, not trying to stifle their free speech by threatening their jobs.”

The ACLU of New Mexico filed the lawsuit on behalf of four Albuquerque elementary school teachers, a special education teacher in Santa Fe, and an Albuquerque parent who currently has a child in the public school system. The suit alleged that the gag rule violates New Mexico constitutional free speech protections. The non-disparagement regulation states that teachers and other employees are prohibited from “disparag[ing] or diminish[ing] the significance, importance, or use of standardized tests,” on pain of “suspension or revocation of a person’s educator or administrator licensure or other PED licensure…” The lawsuit brought multiple state constitutional claims against PED including viewpoint discrimination, denial of due process of law, and violation of New Mexico public school students’ fundamental right to education.

“This end to the testing gag rule is a weight off our shoulders,” said plaintiff Mary Mackie, a teacher at Montezuma Elementary School in Albuquerque, NM. “Educators need to be able to have open and honest conversations about standardized tests, not just in the public sphere, but also in talking with parents about what’s best for their children. I’ve seen situations where standardized testing can actually be harmful to the education and well-being of certain students, and parents have a right to hear that from their child’s teacher.”

ACLU-NM Legal Director Alexandra Freedman Smith, ACLU-NM Staff Attorney Maria Sanchez, and ACLU-NM Cooperating Attorneys Laura Schauer Ives, Katherine Wray, and Jane Katherine Girard represent the plaintiffs in this case.