The Department of Education’s decision to institute a high stakes test for 3rd graders has sparked enormous controversy. The Mayor and Chancellor are clearly committed to the tests. Parent advocates, educators and council members have raised serious concerns about racial bias, built in failure rates and reliability.

The New York Civil Liberties Union is here today because the controversy raises serious concerns about open government. We don’t doubt the City’s commitment to public education, but the City's heavy-handed response to the criticism of the high-stakes 3rd grade test is no lesson in democracy.

Instead of encouraging free, open and robust debate on this important issue of public policy, the city and the company that created the test under contract with the city have resorted to bullying.

Instead of simply responding to criticisms of the test on the merits, the city has threatened to subpoena a parent leader for an investigation. And the testing company has sent the same parent leader a threatening letter claiming copyright and trademark violations and "misappropriation of trade secrets." They have demanded that copies of the test manual - which is supposed to be a public document - be taken off the internet and that any and all copies be removed from circulation.

Let there be no mistake, government educational policy and practice, whether they come from the Department of Education itself or a private entity doing its bidding, cannot be shielded from public scrutiny as a trade secret.

Copyright protections cannot shield the government from public scrutiny and deny the public access to information we need to hold our government accountable for its actions.

The First Amendment requires that copyright protection yield to the public's right to know and to criticize the government. That's what the "fair use" exception in copyright law is all about.

There is something fundamentally wrong when, as here, the government responds to embarrassing public revelations by threats and intimidation.

The NYCLU urges the City and its testing company to respect the democratic process and deal with the 3rd grade test on the merits - not try to stifle debate with threats and intimidation.