Gagging Teachers, Selling Student Data: Test Secrecy and Privacy Rights Under the Common Core State Standards Regime

What most people don’t know is that with the adoption of the Common Core State Standards Initiative (CCSSI), the New York State Education Department (NYSED) has instituted a provision to limit the speech of professional educators beyond what I think would normally be considered reasonable or necessary. I wonder if this has occurred in other states.

These limitations are broad and indefinite, and govern educator conduct in and out of school.

I am speaking of the “Exam Scoring Confidentiality Agreement” and directives to teachers articulated in the test-administration manuals. Teachers score portions of the exams, once they have been “calibrated” by Pearson/NYSED. This is a process whereby teachers are forced to evaluate student responses as Pearson/NYSED wish, resulting, according to some teachers, in more student failure. Note that school administrators indicate, in jest, that they must sign the form in blood (I assume they’re joking).

The anti-public education theory of teaching.
The anti-public education theory of teaching.

To my knowledge, no such agreement existed when teachers constructed and graded Regents exams, as was the practice many years ago — an education past that few seem to know about.[1] This earlier practice was before test development was contracted out to powerful for-profit publishing companies that have come to dominate education policy and practice.

There are some fairly obvious problems with the Agreement.

The first problem is that the language of the Agreement is overly broad. “I agree that I will not use or discuss the content of secure test materials, including test questions and answers, in any classroom or other activities.” For how long one must be silent? If a teacher discusses a test item at a Christmas party this coming December, is she in violation of the agreement? What happens if a student wants to discuss a test item a week after the test has been completed? The “Teacher’s Directions” manual says: “At no time may the contents of the test books be reviewed, discussed, or shared through any electronic means.” Of course the contents should not be shared during the week of testing. But the other restrictions are striking in their reach.

A second problem is this: the restrictions absolutely contradict the propaganda that these tests are to help teachers improve their teaching, and thus, help students. If teachers are not allowed to discuss the content, how might it inform their practice?[2] How are teachers to respond to student questions about last week’s test items? “I’m sorry Mark, but I was required to sign an agreement barring me from even talking about the test with you. This is to ensure you are ‘career and college ready’.”

And, by not being able to discuss the actual test and how students responded, teachers and the public are pressured to rely solely on official versions of what the tests results mean. This is a means for blocking knowledge of direct experience for both teachers and students and imposing the official interpretation of state authorities.

Yet, there is another significant problem. Is it not a violation of the basic principle of due process to block teachers from discussing the standard that is used to judge their performance and ultimately their employment status? “I judge you ineffective, but you cannot see the evidence!”

Last year I toured a school during the 3-8 NYSED testing period. I was astounded to see the extensive set of rules that administrators must follow to ensure test security, including requirements that a private company destroy unused test booklets, as if they were state secrets (and school administrators incapable of using a shredder). I think the process made a mockery of airport security! I thought then as I do now: “If only students were treated with such care!”[3]

I am sure that part of the pressure to keep test items secret is to ensure Pearson receives maximum profits (exposed test items might increase the amount of work needed to craft tests each year; of course, public items might make the company look bad as was the case with “pineapple gate” last year). This in itself suggests contracting out test development is anti-public and should be opposed. The public has a right to see the actual tests by which public school students and teachers are judged. If the tests were meant to help, we would all benefit from such publicity.

Cartoon by Kevin Moore /
Cartoon by Kevin Moore /

And here’s a tie-in to a much more widely discussed problem: the inBloom, Inc. scandal, which NYSED has refused to comment on (reportedly the Board of Regents met about this yesterday, at least in part as a result of public outcry).[4] Private corporations get to see, discuss and sell private, personal student and teacher information, without any consent from parents or education workers, while teachers and students are told they cannot even discuss (or see, in the case of parents) the tests.

This demand for secrecy while recklessly sharing student and teacher data without any form of consent is indeed an example of arbitrary political power. The over zealous test secrecy is itself a signal that the insurgents are illegitimate. They seek to hide what they are doing to students and teachers. Thus I feel compelled to hammer home this point: it is not just the tests or test policies alone that are the problem. These “high stakes tests” reflect the growing arbitrary anti-public power that established them, and as such, it is this arbitrary anti-public power that must be confronted. For the public schools to serve the public good, they must be accountable to and governed by the public.


  1. I’m interested in and researching this history, but if you have information, please post it in the comments.
  2. One wonders if the State will move to out rightly block thinking, adopting the use of Bill Gates’ new “Thought Blocker Pro” software
  3. Of course, I’m referring to the effort to make sure the tests are “safe” and “well cared for”, not the police-state atmosphere!
  4. See my earlier posts on the issue here and here, and this very useful update

16 Comments Gagging Teachers, Selling Student Data: Test Secrecy and Privacy Rights Under the Common Core State Standards Regime

  1. Sheila April 23, 2013 at 4:20 pm

    [Private corporations get to see, discuss and sell private, personal student and teacher information, without any consent from parents or education workers, while teachers and students are told they cannot even discuss (or see, in the case of parents) the tests.]

    inBloom isn’t selling personal information HOWEVER student directory information CAN be sold without restrictions.

  2. Mark Garrison April 23, 2013 at 4:31 pm

    How do you know this? So far, there has been no public disclosure of the details of the arrangement. Yet, educorporations are “extremely excited” by the prospects. I doubt they’d be drooling over information limited to what might be found in a phone book (which is what I assume is meant by “directory”). The almost certain link to PARCC assessment data has been promoted at a recent White House conference; that information is definitely personal. There is no way they can pull off what they promise without selling or otherwise distributing via some scheme personally identifiable information. I welcome proof of being wrong.

  3. Delia Stone April 23, 2013 at 5:07 pm

    I have taught in NJ for over 10 years. I usually test the students whose IEPs allow the questions to be read aloud. In doing so, I obviously cannot un-know what I have read. I believe they want these tests so secure, even after testing, because they reuse many of the questions year after year. Theoretically, I could teach these very questions to my kids ahead of time. As for the discussion bit, if the only people in the room are the kids who took the test, then I would absolutely allow such a discussion. I guess when Pearson comes to NJ, I won’t be one of the trusted few…

  4. Penni June April 23, 2013 at 6:57 pm

    Please see this petition- it lists TWO bills that are pending in NYS whicih would require parental consent prior to data being shared with 3rd parties. If it wasn’t happening, why would these bills exist??? Read the justificaiton on the Senate bill – scroll through the petition (after signing) and you’ll see the links to the bills.

    Thank you
    Here’s the link:

  5. Sheila April 23, 2013 at 9:51 pm

    You’re asking to show something that may not exist? I’ll pass on that. I’m not saying it doesn’t happen.

    I am saying inBloom is not selling student information although they can legally sell student directory information. CrazyCrawfish had a post about inBloom data elements & wondered why name, address, phone & some additional FERPA directory information fields (maybe not correct term) were left blank.

    I suggested perhaps they are considered directory information & in a different part of the data system.

    When I say student directory information I mean this:

    Not at all innocuous. It gets worse every day. The solution is simple. Apply FIPS to KIDS. Protect students as consumers because they are not only marketed — they are the market.

    That’s different than saying inBloom is selling students’ personal information.

    There is a very simple solution to this problem. Districts can pull the data & not supply more to inBloom or similar data trains.

    I would turn to my school district. They’re making the decisions.

    So who is making the decision on the district level? In NYC it’s Bloomberg. No school board.

    Outside of mayoral control, the burden is on school boards. They hire & fire the superintendents & attorneys who give them either good guidance or bad guidance. I see kids at risk.

  6. Jill Tatara April 24, 2013 at 7:57 am

    State and local districts are in control of the privacy of student information. In Bloom wouldn’t be selling the information. It’s telling when you said “How do you know this?” in the comments section. A little bit of research would have helped with this article.

  7. Mark Garrison April 24, 2013 at 10:56 am

    The fact of the matter is the actual documents describing the relationship between NYS and inBloom have not been made public. So, inBloom says its not selling student data, that it only wishes to help local initiatives. Jill may be content with that; many are not.

    Here’s the sentence in question in my article: “Private corporations get to see, discuss and sell private, personal student and teacher information, without any consent from parents or education workers, while teachers and students are told they cannot even discuss (or see, in the case of parents) the tests.”

    If you actually understands the larger project of which inBloom is a key instrument, you’ll come to see very quickly that student data is most definitely being sold (not simply shared). Read the original article about the inBloom database and what celebrated activities such data will make possible. The database is akin to a natural resources; inBloom exists to distribute this resource to educorporations who will in turn sell a database-driven service to states, districts and individual schools, or other educorporations. This plan is not a secret and openly promoted by educoproations, such as eScholar. (So, inBloom is not the only issue.) How is this not the selling of student data? Even if inBloom provides free access to the data, that data is the basis for the product that is developed and sold (inBloom has said, however, that it is likely it will charge fees for access to its services in the future. Fees are charges for services; as such, they constitute a form of sale (“give or hand over something for money”) even if the entity is nonprofit). I’m not even sure why this particular feature needs to be argued out, but so be it.

    Without actual individual level data, all these forms of “personalized learning” being promoted by the “education industry” are impossible. Student data is being mined for profit, under the hoax that this is what is needed for quality education. The data will also be used to hyper sort and track students, and thus function as a social control mechanism. This system is supported with public funds, and the operations of public schools and public assessment systems. Without those publicly funded data “roads and bridges” educorps would not be able to make and sell their products.

    Second, based on what we know, the inBloom agreement in NYS is with the State, not the districts (there are districts in other states that do appear to have arrangements with inBloom directly). But in NYS, parents cannot opt their children out of their child’s test data being shared with the state. Schools are required by law to turn that data over to the state. In Louisiana, the “agreement” between inBloom was, apparently, with State Superintendent White himself, not school districts or even the Board. Finally, news reports indicate that the database already exists, and NYS is reported to be a full participant. That means, as is the case in Louisiana, that, at least some NYS student personal data is already in the database and already being distributed (hence the companies appearance at education technology conference in Texas). As such, I’m doubtful that folks can FEPRA their way out of this…its much bigger than that. The public shouldn’t be reduced to opting out of everything! This inBloom arrangement should be dismantled all together, now.

  8. Michael Tenhagen April 25, 2013 at 11:58 am

    Has anyone filed a FOIL request to permit the public to view the exams? Is such a request applicable under the law? Curiously, Mike

  9. Mark Garrison April 25, 2013 at 12:00 pm

    I’m looking into that later today.

  10. Kristin May 3, 2013 at 4:57 pm

    I didn’t want to sign the agreement today. I brought in my union leaders, the principal and the assistant superintendent to voice my concerns. This agreement is intended to keep us from communicating about the idiocy of the materials, the inconsistency in the scoring rubrics, and the general failure of these exams to fairly assess students. It was like during slavery when it was a felony to teach slaves to read and write- if they had the power to communicate and organize, the corrupt system could be overturned. Teachers can not succumb to this kind of silencing by a corporation, even if it’s in cahoots with our own government- which, by the way, indicated on the form that failure to comply could lead to action toward termination of our employment AND criminal misdemeanor charges.

  11. Carolyn May 27, 2013 at 7:11 am

    My job was threatened and I was forces to score and sign the confidentiality agreement. I am angry because the test I was forced to score was the 8 the grade ELA exam. The same test my daughter with an autism spectrum disorder took. She is the child of a single parent adoption, I am the only parent she discuss the test with and now she cannot even do that. On top of it all, I am sure her test results are being used because she as an IEP. If I had known in March what I know now I would have had her refuse to take the test.

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