I fully expect some public education supporters to blow a gasket when they read Mike Petrilli's flypaper piece today, in which he draws a parallel between Kim "God Told Me Not To Let The Gays Get Married" Davis and teachers who encourage opt-outy behavior in their districts. "Sputter sputter," they will likely sputter. Me, I am not so outraged.
I've never met Petrilli, though someday when I'm a highly-paid consultant and someone hires me to go speak in DC, I'm totally going to look him up. I feel like I've taught junior Mike Petrilli's many times. You know the guy-- he really enjoys a good debate, and he really gets a jolt of excitement out constructing a new argument that really stirs up the whole hornet's nest. He may or may not believe what he's saying, but damn-- playing the game of setting up an extra cool bank shot and seeing everybody's face spark up when they see what you've done. That's a rush. After watching Petrilli from a distance for a while, that's who I imagine he more or less is. I say all of this not in order to open the floor to an ad hominem attack, but to explain why Petrilli rarely outrages me by being outrageous. He's just found a cool new stick and he's poking things with it. It's a little thought experiment.
In this piece, you can watch Petrilli play with this argument, testing it to see if it holds water. I say it doesn't. Actually, I tweeted "Short answer: no" and Petrilli said he awaited the long answer. So here we are, and you, dear reader, have stumbled into the crossfire of my long answer.
Petrilli's rhetorical bank shot here is to use a common weakness in arguments-- the idea that something is wrong when you do it for the wrong reasons but right when you do it for the right reason. Petrilli's betting his argument has some juice because the people who think Davis is wrong refusing gay marriage licenses overlap heavily with the people who think teachers are right to encourage opting out. There is a special argumentative jolt you get with the leverage of hypocrisy, like noting that Kim "Marriage Is God's Sacred Union" Davis has been divorced three times, or when you notice that some folks think parent choice is awesome when we talk about schools and terrible when we talk about opting out.
So is there a substantive difference between Davis and opt-outers?
Davis is refusing to perform her sworn duties as an employee of the state. The analogous behavior for a teacher would be (as Petrilli hints at one point) refusing to give the test at all. A teacher promoting opt-out would be akin to Davis saying, "I think y'all should not have your gay wedding" but forking over a license anyway. Rude, but not a breach of her sworn duty.
Now, how close the analogy hits depends on which state you're in. New Mexico does in fact have a statute saying that test administrators may not " or diminish the significance, importance or use of the standardized tests." In that setting, a test administrating teacher who opens the test session with, "Remember, you don't have to take this terrible, stupid test," would definitely be pink slippable. But what (Petrilli also notes this option) if the teacher simply observes the fact of an opt out option in neutral terms and tones. Would that be like Davis simply observing that the gay couple was going to hell for their honeymoon?
The more I look at the two things, the less they look like each other. Davis was hired to do a specific list of duties, which includes issuing marriage licenses. Teachers are hired to teach, and our specific duties do not necessarily include giving Big Standardized Tests (as witnessed by the fact that many teachers in a building are not asked to perform that duty) and certainly don't include convincing parents to submit to the test-administering authority of the state. Davis cannot argue that issuing marriage licenses is not really part of her job; I will gladly argue that convincing people to take the BS Test is not really my job.
In fact, the law has declared very clearly that Davis is required, by law, to issue marriage licenses. The law, however, has nothing to say about whether teachers must verbally support and promote the BS Test. In fact, the law is pretty clear on NOT requiring students to take the test. So when Davis is refusing to issue marriage licenses, she is depriving citizens of their legal rights. When a teacher informs a parent of their opt out option, the teacher is actually alerting parents to their legal rights-- not interfering with them. What Davis is doing is against the law. What an opt-out encouraging teacher is doing is not against the law.
Let's consider the question of who defines the duties of a job? Davis's job is clearly defined and delineated by state and local authorities. Teachers' jobs are not. In fact, as we struggle with how to evaluate teachers, that is exactly part of the problem-- nobody has a clear, specific job description for teachers, which is why contract language often resorts to "subject to assignment" for a teacher during the day. If my principal tells me that from noon till one my job is to call parents and encourage them to take the BS Test, that's my job. But no "subject to assignment" language in the world says that I cannot say bad things about the test or good things about opting out between 6:00 and 7:00 in the evening.
Which is another difference between Davis and a teacher-- she is refusing to perform a duty while an opt-out boosting teacher is committing an act that some folks wish she would not. That matters, because if Davis wants to not issue licenses in her off-duty time, that's not exactly a problem that anybody's going to try to solve. But if a teacher wants to push opting out during personal time, how is trying to squelch that any different than insisting she may not work for a political candidate.
What Petrilli finally winds around to is a what if-- what if teachers who encourage opting out face sanctions? That's a big what if because it's going to involve a court and lawyers to make the case that a teacher should have her First Amendment rights suspended because her exercise of those rights interfered with successful marketing of a corporation's product (which after all is all the BS Test is). I suppose some state could pass some serious Test Libel Laws to go with Veggie Libel Laws, the kind of laws that got Oprah in trouble with the cattlemen. But until that happens, I would expect anyone who tried to sanction a teacher for speaking out about testing outside of school would have a hard time making that stick.
For all these reasons, I think the answer is, "No, an opt out supporting teacher is not like Kim Davis." I think Petrilli's point fails.
Of course, quiet employment sanctions could be visited upon teachers in states where all employment protections have been stripped, and the teacher in the above-posited First Amendment case would have to connect the dots to defend herself in court, making it more of a challenge to avoid those sanctions.
So while Petrilli hasn't created a very effective parallel here, he has, I think, laid the groundwork for an excellent argument in favor of tenure.