Perdido 03

Perdido 03

Tuesday, September 1, 2015

Is NYSED Commissioner MaryEllen Elia Really Softening Her Stance On Opt Out?

NYSED Commissioner MaryEllen Elia made a couple of media appearances to try and calm the furor over her recent comments that parents who opt their children out of state tests are "not reasonable," teachers who support or encourage opting out are "unethical" and the state was looking into legal means to cut down on opt out rates next year.

The first was on NPR with Karen DeWitt:

“Superintendents have asked me, ‘Is it the law?’ ‘Exactly what does this mean for us?’ ‘What are the ramifications of (a high opt-out rate) in terms of the federal law?’,” Elia said. “So it would seem to me the logical thing for me to do as the commissioner in the state is to find out the answers to those questions, and tell my colleagues that. That’s what I said.

“This is not a threat — I’m just trying to get information out there so people understand it,” she said.
Elia discussed the “toolbox” SED is assembling to address a range of issues concerning the tests.

“Really, the idea of the toolbox for leaders in the state came from a request from a number of superintendents,” Elia said. “I think it’s really looking at what we can do to communicate better. I think the work that’s been done in New York, much of it is very good, but there are areas where we haven’t been on top of things like I think we could have been — and this is common across the country.

“Parents have a right to have their child test or not,” she continued. ” … But I think we haven’t done enough communication so that parents — if they understand it and they still want their child to opt out, that certainly is their right — but I think a lot of parents feel like the tests had problems with them, from their perspective.”

Elia then proceeded to list a number of the reasons why a parent might want their child to opt out — and seemed to agree with at least one of them.

“I’ve had teachers tell me the tests are too long. I’ve had them say they don’t think they’re matched to the standards. We’ve done a lot of work in matching and looking to see that that’s done,” she said. “But I would tell you, I think that they are long.”

Next was Capital Tonight:

During a CapTon interview last night, Elia said there’s definitely an ethical “line” teachers should not cross when it comes to the third-through-eighth-grade English and math exams.

The commissioner said educators should not use the “pulpit” provided by their positions to reach out to parents and encourage them to opt out, but should feel free to answer questions about their personal position on the issue when asked – especially if those questions are posed outside the classroom.

“What I’m concerned about is taking a position and influencing children and families simply because they know their telephone number or someone might come in,” Elia said.

Elia acknowledged that it is perfectly legal for parents to decide not to have their children sit for state tests, but also said she believes parents need to be educated about the importance of those tests as a diagnostic and “assessment” tool.

She said she isn’t threatening anyone with sanctions, but is reaching out to superintendents to provide them with information to give to parents on this issue. At the moment, Elia confirmed, no districts will be losing federal funding as a result of unusually high opt-out rates.

These interviews came on the same day that she backed up the right for parents to opt their children out of vaccinations for religious reasons.

She's still hammering home the idea that parents who are opting their kids out just don't know any better but by golly, she's going to educate them by communicating with them (“Parents have a right to have their child test or not…But I think we haven’t done enough communication so that parents..."; she believes parents need to be educated about the importance of those tests as a diagnostic and “assessment” tool.)

The State of Politics blog described Elia's media tour yesterday as Elia's "softening" her stance on the Opt Out movement, but I didn't hear much different from her yesterday on opt out at all.

She did acknowledge the tests are too long, so there's one minor concession from her, though she has always said the state was going to review the tests for quality, so presumably that length critique comes under that purview.

But other than the critique about the length of the tests, I didn't hear much that was new.

She has acknowledged parents have the right to opt their children out of the state tests (including parents who are also teachers), so that isn't new.

She's claimed before that her NYSED "toolbox" project isn't going to be a way for the state to coerce parents to have their children sit for the tests, so that isn't new either.

Quite frankly, I heard more that was new in her statement supporting the parent's right to opt her child out of the MMR vaccines for religious reasons than I did in her media tour yesterday.

It seems that Elia's trying to walk back the mess she made by calling parents who opt their children out of state tests "unreasonable" and teachers who support or encourage opt out "unethical," but that kind of language isn't easily erased from the minds of those who were targeted with it and while news reporters might have heard her "softening" her stance against opt out in yesterday's media tour, I heard much of the same old, same old message offered with less strident language.

She's still claiming parents who opt their children out need to be educated about the swellness of the tests.

She's still saying the "toolbox" will be a way for districts to educate these parents.

The threat is still implicit in the "It's the law..." remarks that districts that don't get parents to comply are going to have some legal trouble from the state (e.g., "at the moment" no districts will lose funding as a result of high opt out rates...)

Meet the new MaryEllen Elia message, same as the old MaryEllen Elia message, just with slightly less judgmental language.


  1. Do you think the "toolbox" will come with a 3020A wrench?

  2. They have to be very careful as due process rights include equal application of the law. When it comes to free speech rights, teachers, as public workers, do have legal constraints established through case law.

    From the ACLU:

    Teachers do not forfeit the right to comment publicly on matters of public importance simply because they accept a public school teaching position. Teachers cannot be fired or disciplined for statements about matters of public importance unless it can be demonstrated that the teacher’s speech created a substantial adverse impact on school functioning.

    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. Washington courts have upheld the authority of school districts to prescribe both course content and teaching methods. Courts in other jurisdictions have ruled that teachers have no free speech rights to include unapproved materials on reading lists.

    From the New York State Association of School Attorneys:

    School employees’ right to free speech appears limited when job-related.

    Does a school employee’s right to free speech stop at the schoolhouse door? While the outcomes of employee disciplinary cases and other cases involving adverse job actions always depend on the facts, court rulings suggest that there has been a deterioration of public employees’ rights to free speech in the workplace. Since the U.S. Supreme Court’s landmark 2006 ruling in Garcetti v. Ceballos, courts have been taking a different approach when public employees claim to be protected by the First Amendment in connection with an adverse job action. All such lawsuits now involve an examination of whether the employee was speaking pursuant to his or her job duties. According to Garcetti, if speech was made as a result of an employee’s job duties, no First Amendment protection applies (see sidebar below). For school districts, the change raises a question that is not always easily answered: What do the “job duties” of a specific school employee entail? Some New York courts have closely examined the employee’s “actual duties” as opposed to the employee’s job description in an effort to afford the most First Amendment protection. Nevertheless, the Garcetti decision appears to have made it harder for public employees to successfully assert First Amendment protection.

    The U.S. Court of Appeals for the Second Circuit, which has jurisdiction over all of New York State, made this ruling about free speech rights: “The general principle … is that, when a public employee airs a complaint or grievance, or expresses concern about misconduct, to his or her immediate supervisor or pursuant to a clear duty to report imposed by law or employer policy, he or she is speaking as an employee and not as a citizen.” In light of Garcetti, “the First Amendment does not protect the employee’s speech from discipline or retaliation by the employer,” the court said. The court continued: In such circumstances, the employer is free to “discipline” the employee without violating the employee’s First Amendment rights. If, however, the employee goes outside of the established institutional channels in order to express a complaint or concern, the employee is speaking as a citizen, and the speech is protected by the First Amendment.

  3. She has not softened her stance one bit, insofar as we are clear as to her stance previously. Her stance...her real that their focus for pushing back against opt out will be against TEACHERS. Everything else is static and noise, but one thing is clear, Elia will use the resources at her disposal to go after teachers.

    She doubled down on this, in fact, in these statements, especially in the CapTon report where she talks about "ethical" lines and whatnot. Elia and Cuomo and everyone else has softened their language for parents, the tests themselves, kids...but never once did they soften on teachers. Stay focused on that.

    Now, what about this "ethical line" Elia talks about? My response, as a teacher, is that I: 1) do not have a daddy issue or a need for an authority figure(s) in my life in general. I am a fully realized adult. I know this is difficult for many to understand as our profession has ALOT of people with daddy issues. 2) do not need anyone drawing ethical lines for me. If I needed someone to draw those lines or coach me on those lines, well then it wouldn't be ethics anymore. It would just be a law or rule IMPOSED. 3) When did the New York State Commissioner for Education become a source for and expert on ethics? Where in her job description is that? How is that gained? What coursework in philosophy, ethics itself, anthropology, sociology, history etc. does she have that allows her to speak on ethics in HER PROFESSIONAL CAPACITY? We are really getting into dangerous and murky territory when a state-level bureaucrat speaks to ANYBODY from her position on ethics and ethical behavior. I have to show my degree and coursework to NYS to prove that I am competent to be a social studies teacher, why shouldn't Elia be forced to show us what qualifies her as an ethics expert, coach, and leader?

    What if my ethics tell me that speaking out for Opt Out is not only a good thing to do, but a DUTY AS AN EDUCATOR WHOSE FIRST INTEREST IS TO NOT BRING HARM TO HIS STUDENTS? I can defend that ethical position from a legal, historical, philosophical, and professional perspective. Who is Elia to tell me I am wrong, and if she does it should be a requirement for her to show me where she gets to have that position and do something about it. One cant pull ethics calls out of their asses as they see fit here. She is spouting off and saying deeply arbitrary shit. We need to call her on it.

    I think we as vocal teachers should work to have folks in our union (yeah right!) and the media press Elia very hard on her comments regarding ethics. Force her to double down and step deeper into a very very sticky swampy mud, OR come clean and admit that she is out of her depth and way way way out of her job description even bringing up the word ETHICS.

    Someone told me once, maybe in college, maybe not, that when someone starts spouting off about their arbitrary views on ethical or moral behavior and holding them up as the bars YOU SHOULD BE MEETING, well, clearly they are just about out of any reasonable arguments. After that will come straight up ad hominem attacks and name calling. Alot of folks like to say that that is the point when we win. I disagree. That is usually the point when our side looks for a seat at the table and gives up something else.

  4. “This is not a threat — I’m just trying to get information out there so people understand it,” she said.

    Translation: This is a threat.

  5. Welcome to Thomas Credit Firm, I am an international business man and Lender that has offered Loans to so various individual and firms in Europe, Asia, Africa and other parts of the world. We give out our Loan for a interest rate of 2% per annul for a minimum of 100.00 to a maximum of 100,000,000.00 rubles, dollars, pounds, euros, etc. The maximum loan term we can offer is 30 Years at fixed interest rate.
    Available Loans
    * Personal Loans (Secure and Unsecured)
    * Business Loans (Secure and Unsecured)
    * Combination Loan (Secure and unsecured)
    * Consolidation Loan (Secure and unsecured)
    * Mortgage Loans (Secure and unsecured)

    Interested candidates should please contact us today for your online quick and easy loan without collateral deposits. E-mail: