Prepared for Joint Hearings New York State Assembly and Senate Education Committees Albany, New York, October 22, 2003

My name is Joan Bertin. I am the Executive Director of the National Coalition Against Censorship ("NCAC"). NCAC is an alliance of 50 national non-profit organizations, including religious, educational, professional, labor and civil rights groups, united in their support for freedom of thought, inquiry, and expression.2 NCAC is the only national organization devoted exclusively to First Amendment education and advocacy.

Thank you for this opportunity to address an important issue regarding the quality of education—testing and graduation requirements. The techniques for measuring students’ knowledge and proficiency are obviously related to their educational experience. Teachers want to see their students graduate and move on to the next step, so will naturally be mindful of the content of mandatory exams, as they should be.

If statewide exams are poorly constructed, the educational process is at risk. In New York we now know that for several years the English Language Arts Regents Exam—a test that all students must pass to graduate—routinely altered literary passages without indicating that the original texts had been changed. Some of the changes were egregious and destroyed the meaning of the passage. For example, it is impossible to understand Isaac Bashevis Singer’s work if the references to religion are removed. Others were merely foolish—like changing the word "skinny" to "thin."3

According to the State Education Department, the changes were made pursuant to a "sensitivity review"process. This may represent a well-intentioned effort to accommodate the different experiences and concerns of students, but is in fact wholly unnecessary. Test bias is a serious issue, and one that is addressed directly through a separate bias review process, which is a statistical measurement to determine whether test questions have a disparate impact on test-takers. Changing words in literary and other passages to delete "controversial" or "sensitive" words or topics is not a way to eliminate bias in tests, and may even be counterproductive to that goal. Moreover, the process is intellectually dishonest, pedagogically unsound, and constitutionally suspect. Recognizing this, Commissioner Mills and the Regents immediately disavowed the practice—or purported to.

I am reminded of Claude Rains’ famous line in Casablanca. The Commissioner acted "shocked" to learn that censorship was going on. In fact, the SED had been on notice for more than a year that it was misquoting literary passages, because William Maxwell’s literary executor and publisher had written numerous times to complain about the practice.

Like gambling, censorship has not disappeared. In response to a freedom of information request filed on our behalf by Cahill Gordon & Reindel, the SED has admitted that it is still performing sensitivity review. I will not go into detail on the results of our FOIL request, since my colleague Joel Kurtzberg from Cahill Gordon is here to testify about it. Let me note, however, that religious organizations are the only outside organizations represented on the sensitivity review panels—the Catholic League for Religious and Civil Rights, the Islamic Education Fund, the Dioceses of Rockville Center, Albany and New York, the New Life Christian School, the Seventh Day Adventists, the Board of Jewish Education, among others.

Even prior to the response to the FOIL request, it was clear that the state is still sanitizing the ELA exams, but it is now doing so through the selection of bland, unobjectionable materials. Aside from poetry, literature is absent from the English Language Arts exam. For example, recent exams contained excerpts from a publication called Executive Speeches and Readers’ Digest. More on this point below.

Among the problems with the Regents Exams that you will hear about today, this may not seem like the most momentous. Certainly, for students, the deficiencies in the recent math exam and the threat that they would not graduate was more compelling. However, the protracted difficulty dealing with the SED and Board over censorship on the exams is telling, and the judgment exercised in the ELA exam casts a wider shadow of doubt about the integrity and professionalism of the testing process and calls into question the SED’s respect for the spirit, if not letter, of its obligations under the First Amendment.

Attached to my testimony are copies of the correspondence with the SED and Board of Regents which lay out in detail the history of censorship on the ELA exams over the past few years. I hope you will find them instructive. In the time I have remaining today, I want to focus on the issue of accountability.

Briefly, there is none. Regents are appointed to five year terms by the legislature, based on criteria better known to you than to me. The Regents appoint the Commissioner, who serves at their pleasure. The public is left out of the equation. For example, after receiving what we considered an inadequate response from the SED, we requested an opportunity to address the Board of Regents.

Here is the entire response:

 

Chancellor Bennett asked me to respond to your letter of June 11th in which you requested an opportunity to meet with the Board of Regents. The Chancellor asked me to inform you that he and the Board of Regents are satisfied that Commissioner Mills is dealing appropriately with the matter of editing text for questions in State exams. The Board of Regents traditionally does not grant requests from organizations or individuals who wish to address the Board. The Board will not be able to accommodate your request to address them, and they will not be holding public hearings on this topic.

The letter was signed by David B. Johnson, Secretary to the Board.

Accountability is of particular concern because the Commissioner has yet to deliver on the commitments he announced publicly in June 2002:

 

Last month, a number of authors objected to the Department’s practice of changing words in literature used on exams. I immediately ended that practice. I also directed that the ‘sensitivity guidelines’ that were a part of that practice would no longer be used…. We will use good literature without changing words. We will be fair to children. We will select passages that are understandable to children regardless of where they live…."

Notwithstanding this statement, in July of this year the SED stated in an initial response to our FOIL request that the Department "has not stopped performing Sensitivity Review." Nor does the ELA exam use "good literature" or material that is "understandable to children." In January 2003, the exam contained a listening passage from An Historical Anthology of Select British Speeches (1967) on "The Importance of the Vote," and an excerpt about Hurricane Mitch from a publication called Weatherwise.

In June 2003, the listening passage was taken from an article entitled "Speeches that Satisfy," in a periodical called Executive Speeches, published by the Fannie Mae Foundation. A reading passage about forest fires came from the New York Times and another, an excerpt from the journalist Carl Rowan, came from Readers’ Digest. In August 2003, the listening passage was written by Sam Walton, the founder of Wal-Mart, and concerned his rules for success in business. Under no definition do these passages qualify as "good literature."

Nor is this material accessible to students. One of the reading passages, entitled "No More Cookie Cutter Playgrounds," was about playground construction. It required students to read a chart dealing with the properties of playground surface materials, comparing the compressed depth of wood chips, engineered wood fibers, double shredded bark mulch, fine sand, course sand, medium gravel, fine gravel and shredded tires.

These examples reveal the lengths to which the SED will go to avoid referring to race, religion, ethnicity, death, war, violence, divorce, sex, disease, pregnancy, physical disability or appearance, and a host of other topics that are considered off-limits, even though they are part of every student’s everyday life.

The state has a constitutional obligation not to discriminate against words or ideas because some may find them disagreeable, offensive, or unwelcome. To date, the SED and the Board of Regents have shown little interest in this constitutional mandate.

Switching gears, I would like to speak for a moment as a parent. I have two children who have attended New York City public schools. My younger daughter graduated last June. I have personal experience with the consequences of poorly constructed and unfair tests for children and families and want to speak very briefly to this issue.

My younger daughter took and failed the 2002 physics regents. The experience was deeply demoralizing—as it would be for any conscientious student. It undermined her confidence and poisoned the subject for her. She will never take another physics course. This is a shame, since she apparently has some aptitude for physics: she received a 95 and 96 in the course, based not on the Regents exam—which the school did not factor into her grade in the course—but on the teachers’ assessments throughout the year, which presumably were designed to measure mastery of the curriculum actually taught.

Coincidentally, my brother-in-law is a physicist. He has a doctorate from the University of Pennsylvania and worked at Bell Labs for many years. I asked him to give me his professional assessment of the exam. His comments are attached to my testimony. Briefly, he observed that, because of the exam’s focus on a few areas, "taking an exam like this is like playing Russian roulette," and that the exam’s "shocking failure rate" was "readily predictable" and "was in fact the intended result." His conclusion: "This bespeaks a shocking willingness on the part of the administration to inflict harm on students—the least culpable, most vulnerable participants in a physics education/testing system that was apparently judged in need of repair."

After the similar, more recent fiasco with the math regents, I asked a retired high school math teacher I know to review that exam as well. This is someone with 39 years experience, 27 of which were as head of the math department at a NYC high school (and the father of the physicist quoted above). He found that the test contained "mathematically defective, verbose, and ambiguously worded questions." He concluded: "This exam is a disaster for the average and the below average student, and the examiners should have known this in advance. Giving such an exam to thousands and thousands of our young people was grossly unfair, especially when the results are of such importance."

There is a common theme in the problems with the English Language Arts, math, and physics exams. All reveal an unacceptable degree of arrogance and intransigence on the part of the state educational bureaucracy, and an apparent lack of concern for the educational purposes tests are supposed to serve. Censorship is incompatible with an appreciation of the role of literature in education and life. You cannot just change words around, because someone might disapprove or be offended. Words convey real ideas and emotions; they depict events in a particular way for a reason. They are not replaceable, and they are not interchangeable.

The composite picture is one of an educational bureaucracy that has forgotten its fundamental mission to teach children about the world and themselves, and to prepare them to function independently as informed members of a self-governing society. Instead, the system seems altogether too willing to write them off as individuals, to see them as numbers, and to concern itself primarily with the statistical profile of institutions. My brother-in-law, the physicist, phrased it this way:

 

What set of priorities allowed the administration to forsake a basic ‘first, do no harm’ principle…? What higher purpose could possibly justify such harm? I understand the desire to improve [ ] instruction through curriculum changes and that there is a need to monitor progress through measurement. I also understand that such changes may create tension between the central administration and local school districts. However, the ‘tension’ in this case seems more like warfare—vitriolic attacks countered by bureaucratic stonewalling—but with only civilian casualties.

Speaking as a parent, the legislature must stop high stakes testing unless and until it is clear that the tests at least "do no harm" to children. There are already too many civilian casualties in the protracted education wars.

Speaking for NCAC, the cavalier attitude expressed by the state’s education leadership towards the First Amendment is deeply troubling, from both a legal and educational point of view. The free speech clause is at the core of intellectual freedom, education, and democracy.

 

The classroom is peculiarly ‘the market place of ideas.’ The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers ‘truth out of a multitude of tongues, than through any kind of authoritative selection.’ Keyishian v. Board of Education (1967).

The Supreme Court did not create an exception for New York, but it seems the state’s educators have done so. The responsibility to correct this error now rests with the Legislature.

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1 This written testimony supplements an abbreviated version delivered orally on October 22, 2003, and supercedes the version provided to the Committees at that time.

2 The views expressed herein do not necessarily represent the views of all of NCAC’s participating organizations.

3 We are indebted to Jeanne Heifetz, parent of a New York high school student, who recognized the errors and omissions in passages on the ELA and notified NCAC. Her literary knowledge and research skills were invaluable in documenting the many instances of censorship on the exams.