Every Student Succeeds Act

States Seek Guidance in Face of ‘Opt Out’ Push

By Lauren Camera — March 31, 2015 5 min read
Mayfield High School student Isabela Bencomo, 15, holds a sign during a walkout with her classmates at the school in Las Cruces, N.M., last month. Students were protesting new exams aligned to the Common Core State Standards.
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A flurry of parents opting their children out of taking new state assessments in places like Colorado, Florida, New Jersey, and New York has both the U.S. Department of Education and state education departments reviewing policies and procedures for dealing with such instances.

The No Child Left Behind Act—the current version of the Elementary and Secondary Education Act—requires each school to test at least 95 percent of its students or else the district or state could face sanctions, some as severe as losing Title I money for low-income students. That requirement must be met for all students in a school, as well as for subgroups of students, such as those living in poverty or from racial-minority groups.

States and schools that narrowly miss the 95 percent threshold are allowed to average participation rates over a two- or three-year period to help meet it.

Assessment Season

As schools begin state assessments for the 2014-15 school year, an anti-testing movement is generating attention at both the grassroots and national levels. It is difficult to gauge accurately how many students are opting out of the exams, or even how many districts are experiencing opt-outs, but the number of media reports highlighting pockets of anti-testing advocates raises the question of whether some schools won’t meet their participation threshold. At least one state—Colorado—has requested flexibility from the federal mandate.

In an interview with Education Week, John King, senior education advisor at the Education Department, said that he anticipates additional reports of students opting out of the assessments as the testing window goes on, but credited teachers and principals for so far holding the line.

“It’s important to say that there have been relatively few opt outs to date,” said Mr. King, based on conversations various officials at the department have been having with states. “This has really been an issue that has occurred in pockets.”

The federal participation mandates, however, are bumping up against a dizzying number of state- and district-specific policies that run the gamut from allowing parents to withhold their children from a state test to explicitly mandating that all students must take the state test.

Amid antipathy in many places toward the Common Core State Standards and aligned assessments, the myriad opt-out policies are proving confusing for state education departments, and some have sought guidance from the federal Education Department.

Alaska, New Jersey, and West Virginia, for example, have all recently written to the department with questions regarding the federal standards and assessment requirements in the current law. In letters responding to those questions, Deborah S. Delisle, the assistant secretary, detailed sanctions the department may use against states that don’t adhere to the 95 percent threshold, which are also sanctions states may use against their own districts that fail to comply.

According to those letters, the tools at the Education Department’s disposal include (in escalating order of severity):

  • A formal request that a state comply;
  • Increased department monitoring of a state;
  • Conditions on federal Title I aid provided for low-income students, or on the state’s waiver from provisions of the NCLB law for the 42 states that have one.
  • Placing a state on “high-risk” status, although the letters did not give more specifics;
  • Issuing a cease-and-desist order;
  • Entering into a compliance agreement with a state;
  • Withholding all or a portion of a state’s Title I administrative funds;
  • Suspending, and then withholding, all or a portion of a state’s Title I grant.

Potential Funding Loss

In the letters, Ms. Delisle also noted that states and districts that don’t meet the assessment requirements would be putting funding for other programs at risk as well, including those under the Individuals with Disabilities Education Act, the School Improvement Grant, programs for English learners, programs for rural schools and migrant education, and programs focused on professional development for teachers.

In addition, Ms. Delisle pointed out that states and districts can’t duck the assessment requirements by pre-emptively declining Title I dollars.

Mr. King didn’t want to speculate on any potential sanction the department may take regarding opt-outs this testing season, but he said any such decision would be made on a case-by-case basis.

“The specific enforcement action that the department would take would depend on the severity of noncompliance on the state level,” Mr. King said. “But the key issue is that we expect districts and states to follow the federal law and they have and they are.”

Mr. King also said it is important to remember the context in which the participation requirements were adopted into law.

“There is a history of states around the country where there was less than full participation in assessments,” he said, referring to the pre-NCLB era. “Students with disabilities and English-learners were rendered invisible [in many states]. This is a civil rights issue.”

Although states have yet to sound any opt-out alarms at the Education Department, state officials in Colorado want to add language to the state’s waiver from provisions of the NCLB law through the waiver-renewal process that would ensure that opt-outs don’t count against a school’s 95 percent participation threshold.

Testing is already underway in Colorado, where students are taking for the first time the Partnership of Readiness for College and Careers, or PARCC, exam, one of two federally funded testing consortia.

“Schools and districts in Colorado are in the challenging position of balancing the requirements of state law (all students must be assessed) and honoring parent requests that their students do not participate in the state assessments,” state officials wrote in the waiver-renewal application.

“Some schools and districts are frustrated by parents refusing to have their child participate in the state assessments, as it could have a negative impact on the school/district rating,” the Colorado officials explained. “The tension has been increasing in Colorado as more parent and student voices are speaking out against participating in the new state assessments.”

The department is still considering Colorado’s request, but, overall, Mr. King said he doesn’t anticipate opt-out cases will rise to a level that would require action by the department.

“We would enforce the federal law if a state were to fail to act,” he said. “But we have not had to do that. State leaders have been doing a good job helping to explain the importance of the assessments.”

Coverage of efforts to implement college- and career-ready standards for all students is supported in part by a grant from the Bill & Melinda Gates Foundation, at www.gatesfoundation.org. Education Week retains sole editorial control over the content of this coverage.
A version of this article appeared in the April 01, 2015 edition of Education Week as ‘Opt-Out’ Push Sparks Queries for Guidance


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