This Article May Be Illegal – Lifting the Veil of Silence on Standardized Testing



What you are about to read may be a criminal act.

I may have broken the law by putting this information out there.

Edward Snowden leaked data about civilian surveillance. Chelsea Manning released top secret military documents.

And me? I’m leaking legal threats and intimidation students and teachers are subject to during standardized testing.

Not exactly a federal crime is it?

No. I’m asking. Is it?

Because teachers are being fired and jailed. Students are being threatened with litigation.

All because they talked about standardized tests.

The US government mandates public school children be subjected to standardized assessments in reading and math in grades 3-8 and once in high school. Most schools test much more than that – even as early as kindergarten.

And since all of these assessments are purchased from private corporations, the testing material is ideological property. The students taking these exams – regardless of age – are no longer treated as children. They are clients entering into a contract.

At the start of these tests, students are warned of the legal consequences of violating the terms of this agreement.

In particular, the Pennsylvania System of School Assessment (PSSA) tests require students to read the following warning on the first day of the assessment:

DO NOT PHOTOGRAPH, COPY OR REPRODUCE MATERIALS FROM THIS ASSESSMENT IN ANY MANNER. All material contained in this assessment is secure and copyrighted material owned by the Pennsylvania Department of Education. Copying of material in any manner, including the taking of a photograph, is a violation of the federal Copyright Act. Penalties for violations of the Copyright Act may include the cost of replacing the compromised test item(s) or a fine of no less than $750 up to $30,000 for a single violation. 17 U.S.C. $ 101 et seq

So the first act of testing is a threat of legal consequences and possible fines.

There are no such warnings on my own teacher-created tests. Sure I don’t want students to cheat, but I don’t threaten to take them to court if they do.

The school has a plagiarism policy in place – as almost every public school does – which was created and approved by the local school board and administration. The first infraction merits a warning. The second one results in a zero on the assignment, and so on.

Moreover, this is something we go over once at the beginning of the year. We do not reiterate it with every test. It would be counterproductive to remind students of the dire consequences of misbehavior right before you’re asking them to perform at their peak ability.

Okay, Brady! Go out there and win us a football game! By the way, if you deflate that football, you will spend the rest of your life in jail. Go get ‘em!

But that’s not all.

In Pennsylvania, we also force kids to abide by a specific code of conduct for test takers. They must enter a quasi-legal relationship before they are even permitted to begin the tests we’re forcing them to take.

Much of this code is common sense. Get a good night’s sleep. Fill in bubbles completely using a number two pencil.

But some of it is deeply disturbing.

For example, students are told to “report any suspected cheating to your teacher or principal.”

They have to agree to be an informer or snitch to a government agency. My students aren’t old enough to vote or even drive a car, but they are directed to collaborate with the government against their classmates.

In addition, they are told NOT to:

-talk with others about questions on the test during or after the test.

-take notes about the test to share with others.

Sure kids shouldn’t talk about the test with classmates DURING the testing session. Obviously! But why can’t they discuss it after the test is over!?

Kids aren’t allowed to say to their friends, “Hey! Did you get the essay question about ‘The Tell-Tale Heart’?”

They aren’t allowed to discuss how difficult it was or compare how each of them answered the questions?

These are children. If you think they aren’t talking, then you just don’t know kids. You don’t know people!

And why shouldn’t they talk about it? They just shared a stressful, common experience. Who wouldn’t want to compare it to what others went through so as to decide how your experience rates? Did you answer the questions well or not? Did you get a more difficult question than others? Did the thing that struck you as odd also hit others the same way?

Personally, I do not consider talking like this to be cheating. It’s just human nature.

But we force kids into a legalistic vow they won’t do it. On the test, we make them fill in a bubble next to the following statement:

By marking this bubble I verify that I understand the “Code of Conduct for Test Takers” that my Test Administrator went over with me.

As a test administrator, I am not allowed to move on until all students have filled in that bubble. I wonder what would happen if one of them refused.

Technically, we aren’t making them promise TO ABIDE by the code of test takers. Perhaps we lack that legal authority. We are, however, making them swear they understand it. Thus we remove ignorance as an excuse for not following it.

But there is a veiled threat here. We imply that not following this code will have harsh legal consequences.

And I’m not sure it should.

Kids certainly ignore it. They almost definitely discuss the exam with their peers after the testing session. But we’ve given them a sense of guilt, fear and anxiety just for being normal human beings.

That’s wrong.

Teachers are forced to do it, too.

Just as there is a code for test takers, there is a code for test proctors.

I have to sign that I understand the “Ethical Standards of Test Administration.” Again, much of this is common sense, but it includes such statements as:


-Discuss, disseminate or otherwise reveal contents of the test to anyone.

-Assist in, direct, aid, counsel, encourage, or fail to report any of the actions prohibited in this section.

So even teachers technically are not allowed to discuss the test and should report students or colleagues seen doing so.

If I walk into the faculty room, and one of my co-workers describes a question on the test and asks my opinion, I’m supposed to report this person to the authorities.

What kind of Orwellian nightmare are we living in?

If we see a question that is badly worded, misleading, has no correct answer, contains misspelled words – anything out of the ordinary – we’re supposed to remain silent. In fact, we’re not supposed to read anything on the test other than the instructions.

I can’t talk about it to my colleagues, my principal, my spouse, my priest – ANYONE.

What are the consequences of breaking this code?

Ask those teachers in Atlanta who were convicted of cheating. Obviously they did more than just talk about the test and they deserve to be punished. But there is a specific threat to teachers if they violate this code.

According to the “Pennsylvania System of School Assessment Directions for Administration Manuel”:

Those individuals who divulge test questions, falsify student scores, or compromise the integrity of the state assessment system in any manner will be subject to professional disciplinary action under the Professional Educator Discipline Act, 24 P.S. $ 2070. 1a et seq, including a private reprimand, a public reprimand, a suspension of their teaching certificate(s), a revocation of their teaching certificate(s), and/or a suspension or prohibition from being employed by a charter school. [emphasis added]

So teachers may lose our certifications, livelihoods, etc. Heck! We could be charged with racketeering like the Gambino Family and face up to 20 years in jail!

And all just for talking!

I thought speech was protected by law. Doesn’t the First Amendment protect me from prosecution for speaking except under extreme and unusual circumstances?

If my colleagues and I were to discuss the appropriateness of certain test questions, would that really be such a bad thing? If we compared the questions being asked with how we prepared our students for the test, wouldn’t that – in fact – be the responsible thing to do?

I never give my students one of my own teacher-created tests without knowing exactly what’s on it. I’ve read the test from top to bottom. Heck! I made it!

One shouldn’t feel like a whistle-blower for talking about a standardized test. Discussing the appropriateness of specific test questions does not make me Julian Assange.

Therefore, I must ask an important question of you, dear reader: Did I violate these rules by writing this very article? Is the piece you are reading right now illegal?

I contend that it isn’t. The code of conduct for both test takers and test administrators is freely available on-line from the Pennsylvania Department of Education. The legal threat at the beginning of the test is reproduced almost word-for-word in a sample letter the state Department of Education suggests schools send to parents before testing begins.

I haven’t included anything here that is not freely available on the Internet or elsewhere.

But the need I feel to stop and answer this question is kind of scary.

There is a veil of secrecy over these tests and the way they are administered. And it’s no accident. The testing companies don’t want all of this to become public knowledge. They don’t want the quality or inferiority of the actual exams to be known.

And our state and federal governments are protecting them. From whom? Our teachers, parents, and students.

Shouldn’t our legislators be looking out for our rights and not just those of private contractors who were hired to provide a service? Obviously we have to allow test manufacturers the freedom to do their jobs – but some of this seems to go beyond that requirement.

We’re being silenced and intimidated to protect an industry that is of dubious quality and obscene profitability.

Every day more people are asking questions about the validity of standardized testing. Everything from the frequency of the tests to the value of cut scores has been the subject of criticism. Thousands of parents are refusing to let their children take these assessments at all.

Isn’t it time to throw back the Iron Curtain of standardization and look at these tests in the cleansing light of day? Isn’t it time to evaluate this process as well as the product? Do we really want to support a system that encourages silence and snitching from our children and educators?

Isn’t it time to move beyond standardization and toward a system of teacher-created curriculum and testing instead of relying on capitalist profiteers.

Big Corporation is watching.

Let’s poke him in the eye.

NOTE: This article also has appeared on Diane Ravich’s blog, and the Badass Teachers Association blog.

36 thoughts on “This Article May Be Illegal – Lifting the Veil of Silence on Standardized Testing

    • That was my thought to – impossible to enforce anything against kids’ talking after the fact as they are both too young and have not entered into any agreement or relationship making them beholden to the publisher. As adults, teachers have entered into contracts and agreements to do certain things required by our employer.


  1. It’s because they use the same tests over and over again. They don’t want to have to rewrite the tests even if there are bad questions, questions with no correct answer options, questions with more than one correct answer, etc. I asked a supervisor about this once, “how is a student supposed to answer a question correctly if they are not given the correct answer as a choice?” She told me that the test makers deliberately put those types of questions in the tests as a test – to see how the students are going to answer them.” Whaaaa??!? How is that useful? Honestly, I think she just made up that answer because she didn’t want to say “I don’t know.”


    • They don’t use the same tests over and over. The test is adaptive. NOT EVEN 2 kids, same grade, school, and intelligence level will have the same test. That is why it can not be considered valid or legitimate. Everyone gets a different test.


      • In Pennsylvania, we’re still using pencil & paper tests. They’re not taken on a computer so they are NOT adaptive. There are a few different versions that everyone takes.


  2. It seems that the testing companies are now a proxy for the LEA. Teachers do not have any contractual obligation to Pearson et al yet are to penalized if they have a critical view of the testing product. Doesn’t seem to be enforceable legally.


  3. I live in Canada, students in grades 4,7 and 10 are tested. I have two daughters, 16 and 13 years of age and both of my daughters have NEVER written a “standardized test.” Every year at testing time I write the school a simple letter stating that writing the test will cause my children undue stress and hardship and that I would like them to be exempt. You may think I’m crazy and that’s fine by me. But both my daughters are well adjusted young ladies who attain very high academic standards and lead a full and enriched extra curricular life. Let their school time be for learning and engaging with their peers and teachers. Not spending countless hours, class-time and resources on irrelevant tests.


  4. You’re missing an important point about discussing tests after the fact. Discussing test questions turns an evaluative experience into a learning experience. When a child asks a friend, “I didn’t understand #4. What did you get?” She is engaging with the material and trying to fill in gaps in her knowledge. When kids discuss essay questions, critiquing one another’s arguments, they are synthesizing information and using it to engage with one another and with whatever material they learned, beyond the requirement of the test. What is better than that?!

    Even criticisms of the test, if they are thoughtful and relate to what was taught, are an important part of learning. Good teachers will listen to honest criticism of their tests, because sometimes test questions aren’t fair, and only the people taking the test can spot that unfairness. When that happens, an ethical teacher will change the test and/or re-evaluate grades. And she will be proud of her students for finding her error, standing up for themselves, and making a reasoned argument to support their assertion.

    Preventing students from discussing a test after the fact is not just ignorant of human nature. It is robbing students of a learning opportunity. And that is just wrong.

    Liked by 2 people

  5. When I taught undergrad math, I told my students that tests were simply a means of communication between student and teacher designed to guide the instruction process, that it was a matter of some inconvenience that third parties had taken it on themselves to intrude upon that two-way dialogue — but that was just the way the world was and we had to deal with it as best we could without losing sight of the main purpose of what we were about.

    As things have turned out in today’s inverted world, corporations and corporate owned politicians have totally perverted the natural student-teacher relationship beyond all hope of recognition.

    And it has to stop.

    Or the nation will really be at risk …


  6. Hello from 2020,
    Is this article, “This Article May Be Illegal – Lifting the Veil of Silence on Standardized Testing”, still valid? Is there a follow up article where things have changed?


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