The lawsuit was filed in federal court in Albany Wednesday by the New York State United Teachers (NYSUT) union on behalf of five tenured teachers.
It claims that the state-mandated confidentiality agreements they were required to sign are unconstitutional due to the threat of dismissal, revocation of their teaching license or criminal prosecution if they reveal test questions.
A spokesman for the NYSED, who declined to comment on the lawsuit, said that "obviously, items to be used on future tests must be kept secure," adding that the state's testing system is "among the most transparent in the country."
However, in August the department publicly released about 25 percent of the test questions under pressure from parents and state legislators.
The teacher plaintiffs agreed to "not use or discuss the content of secure test materials, including test questions and answers, in any classroom or other activities."
But the union believes that the provision violates teachers’ First Amendment right to free speech as well as the 14th Amendment's “equal protection under the law” by restricting them from talking about their concerns about specific questions on the standardized tests.
According to the lawsuit, middle school English teacher Robert Allen “became concerned about several facets of the exam” while scoring it, “including but not limited to: the length of each exam made it difficult to nearly impossible for most students to complete each of the exams within the 90 minutes allotted; some of the passages were poorly written; the tasks were well-beyond grade level; and there were inconsistencies in the scoring rubrics.”
But under the confidentiality agreement, Allen is prohibited from voicing his concerns even to colleagues, friends and family members.
The other teachers similarly claimed that the Common Core tests put lower-achieving students at “a severe disadvantage” and that their content does not align with state curriculum standards.
"If teachers believe test questions are unfair or inappropriate, they should be able to say so without fear of dismissal or losing their teaching license," union president Karen Magee said in a statement.
“Teachers must be free to protect their students and speak out when they have concerns about state tests… Instead, they are under a 'gag order' to be silent — and that is hurting children," she said.
In 2013, New York started withholding English, math and science test questions from the public for 3rd-8th grade students after the exams were already graded, claiming it was related to costs. But it also allowed the state to reuse the same questions on future tests.
The lawsuit comes in wake of demonstrations against Common Core in August, including one where teachers picketed and occupied the steps of the state Education Department building in Albany and another protest in Brooklyn.