First Amendment Rights Related to Opting Out
MTA members strongly want to end the use and abuse of high-stakes standardized tests and have voted to support students and parents who opt out of these tests. The MTA will provide a strong legal defense for any member who is disciplined or retaliated against for lawfully speaking out on this matter of public concern.
- Government employees are not obliged to completely relinquish their First Amendment rights. They are protected as citizens in commenting on “matters of public concern.”
- Under the First Amendment, a government employer such as a school district can restrict the speech of public employees that is made pursuant to the employees’ official duties. However, the employer cannot restrict employee speech on a matter of public concern simply because the speech deals with facts learned on the job.
- Even if an employee speaks outside the scope of employment on a matter of public concern, the public school employer can still discipline or dismiss the employee if the employer has reason to believe the speech would disrupt school operations.
- Education issues such as student testing (including opt-out policies), educational curricula and teacher evaluation systems are, in general, matters of public concern. Acting as citizens, educators may express their views on such issues in public forums — for example, by writing letters to newspaper editors, testifying before the Legislature, participating in nondisruptive demonstrations and participating in public forums.
- Advocating outside of employment for a change in law or policy governing the right to opt out, or generally speaking publicly about a test boycott, would likely be deemed protected speech.
- Directly advocating to students or parents in one’s own school in support of opting out of standardized testing may not be protected since a school district could reasonably view this as disruptive to test administration.
- The First Amendment will not protect an educator who refuses to administer a state standardized test, refuses to follow district procedures for such testing, tells students not take the state test or speaks out against the test while teaching a class.
- The more an employee's duties require him or her to implement a disputed policy, the less protected the employee will be in voicing opposition to it. For example, a school administrator may have less freedom to oppose state testing than a classroom teacher does.
- Speech and advocacy as a union member with other employees about the impacts of state tests or other educational policy initiatives on terms and conditions of employment are protected under the Massachusetts Public Sector Labor Law, G.L. c. 150E.
Document created by the Division of Legal Services at the Massachusetts Teachers Association.