ACLU of Massachusetts Speaks Out on "High Stakes"Testing in Public Schools

April 11, 2000 12:00 am

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BOSTON, MA — Beginning tomorrow, all Massachusetts public school students in the 4th, 8th and 10th grades will be required to take a lengthy series of examinations known as MCAS (Massachusetts Comprehensive Assessment System). Next year’s 10th grade students will be required to “pass” the English and math portions of MCAS in order to receive a high school diploma in 2003.

Although the graduation requirement does not become effective until 2003, already there is evidence that students are discouraged and are dropping out, are not being promoted, and possibly are encouraged to drop out so as not to affect a town’s testing average.

Because of the many telephone calls and inquiries our office has been receiving about concerns over these tests, the ACLU of Massachusetts would like to advise the public of our views on a number of the issues relating to the testing program.

1. Discrimination

  • At current failure rates, between 80 and 90 percent of African American and Latino students across the state will not receive their high school diplomas. The testing gap between rich and poor communities remains as wide as ever, with 65% of students in low income districts but only 12% of students in affluent towns failing a portion of the test.
  • Many of the students who “fail” the MCAS are able to pass other nationally recognized standardized tests, raising questions about the validity of the MCAS, particularly in light of its grossly discriminatory impact.
  • The state requirement that students pass the MCAS before receiving a high school diploma is unfair in light of the historic disparities in funding education in the communities throughout Massachusetts. Despite some changes in allocation of state education funds, many students still receive an inadequate education and have school in substandard conditions, yet are being tested on subjects they have never been taught and will be denied diplomas because of a defective test and lack of real education reform.
  • The rigid high stakes MCAS requirement is inappropriate and inadequate to be the sole determinant of the quality of education in Massachusetts and whether students are learning. Many students, including those who are bilingual or disabled, are subject to the same MCAS requirement, regardless of their course of study or need for additional accommodation.
  • Freedom of thought, academic freedom, and creativity all are being stifled in the state demand for conformity and the need to pass the MCAS. Increasingly, teachers are forced to “teach to the test,” and administrators are dropping courses that develop critical thinking, artistic, and vocational skills.

2. Right to protest

Tremendous numbers of parents, students, teachers, and administrators have been speaking out publicly and organizing against the MCAS. Our office has received many calls requesting advice on what rights people have to protest. The following is a brief summary in response. For many specific questions, we do not have simple clear answers because the courts have not decided these issues.


Parents have the right to speak out publicly, to distribute leaflets, hold rallies, to lobby legislators, and engage in other such traditional exercises of free speech rights. In general, we have the right to engage in these activities in “traditional forums for expression,” like public sidewalks, public parks, and other traditional gathering areas for expression. Meeting space in public buildings (including schools) that is made available for community use must be made available to groups wishing to discuss the MCAS. Parents who choose to keep their children out of school or who send them to other educational programs on the days of the MCAS could potentially run afoul of the state compulsory attendance law which provides for a fine of $20 if a child is absent for more than 7 days or 15 half days in any 6 month period. Another law punishes anyone who “induces or attempts to induce a minor” to be absent unlawfully or “harbors a minor who, while school is in session, is absent unlawfully.” The fine for that is a maximum of $200.

We do not believe that a parent or child should be punished more severely for absences due to the MCAS tests than other absences. (Of course, unless state regulations are ultimately changed, tenth graders who do not receive a passing grade by 2003 or after will not receive a diploma.) Nor do we believe that students should be disciplined because their parents oppose the MCAS and keep them out of school on the testing days.

B) Students

Public school students have many of the same rights as parents to speak out against the MCAS. Outside of school grounds, on public sidewalks, parks, and other public forums, students, too, can picket, leaflet, rally, write pamphlets, distribute materials, wear buttons, and use the Internet. Inside the school, students have a right of free expression as long as they do not disrupt the school or interfere with the rights of others. So, students may hand out leaflets, write ‘independent’ newsletters, wear buttons or armbands with protest messages, and use meeting rooms that other students are allowed to use after school.

No student should engage in ‘free speech activity’ in such a way that classes or other school events are interfered with or disrupted.

We have been asked if school officials can suspend students who protest the MCAS test. The answer may depend on what form the protest takes. No student can be punished by suspension or in any other way for the peaceful expression of ideas that does not disrupt classes or other school programs. As to boycotts of the exams, in general, it is our view that if students are not where they are supposed to be during the giving of an examination, they could be punished the way they would if they intentionally skip out on other exams. If the usual punishment is a failing grade on the test, that is the punishment that could be imposed for failure to take the MCAS. But if a more severe punishment is imposed on MCAS critics, we believe they are being punished more harshly because of their ideas and this is not permissible. However, this has not been decided by the Massachusetts courts and we can make no guarantees about what the ruling of a court might ultimately be.

If students go to the MCAS testing room on schedule, write their name on the paper, and then don’t write any answers, they should not be punished other than by receiving a failing grade. These students are present, but they cannot be forced to write answers to questions. We do not believe these students can be treated differently from other students who have no political views about MCAS but who do not know the answers.

Students who object to the MCAS test may be more protected against discipline if they show up on schedule and write only randomly chosen answers or chose the wrong answers. On essay tests, students can surely write about any subject they wish. These students may ‘fail’ but surely they cannot be disciplined because they have put down the ‘wrong’ answers.

C) Teachers

Teachers who are public employees do not lose their right under the First Amendment to speak out as citizens on matters of public concern. This right is not absolute but will be balanced against the public employer’s right to carry out its work. Without doubt, the MCAS is an issue of major public concern. Teachers who speak out as citizens – by writing letters and articles, organizing, attending rallies, and lobbying legislators and other officials – should be protected by the First Amendment guarantee of free speech.

Organizing a boycott or encouraging students in a teacher’s own school to boycott would more likely be considered disruptive of the school and would be harder to defend.

We have just been told that Brookline High School’s headmaster has ordered that teachers lower the semester’s grades in relevant classes for students who boycott the MCAS. This appears to be unwarranted interference with the decisions of teachers who know the subject matter and requirements of their classes and the performance of their students. Discipline of a student should not be misused to alter and misrepresent a student’s academic achievement in particular classes.


In sum, there are many ways in which people have the right to speak out against MCAS. We cannot give definitive answers to certain specific questions students and parents have about punishment that school officials may attempt to impose, however, we will continue to monitor the situation.

We are very concerned that the power of the state is being brought to bear on parents, students, teachers, and administrators who are participating in an important debate about the nature of education reform in Massachusetts, a matter of utmost public concern.

Silencing the critics – through a variety of coercive methods – will not advance the public policy debate and will not teach constructive lessons about the democratic process. We urge school administrators to resist the impulse to punish and, instead, allow the debate over the questionable use of a questionable exam to be heard.

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