Every Student Succeeds Act

States With High ‘Opt Out’ Rates Brace for Possible Penalties

By Daarel Burnette II — August 23, 2016 4 min read
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Education leaders in states where resistance to taking annual exams remains strong are bracing for penalties that the U.S. Department of Education could send down in the coming months for falling short of testing enough qualified students last school year.

Under both the previous No Child Left Behind Act and the recently enacted Every Student Succeeds Act, the Education Department has required that states administer their annual standardized exams to at least 95 percent of qualified students.

But in New York and Colorado—two hotbeds of testing “opt out” activism—state K-12 officials have reported in recent weeks that they missed that benchmark last school year. Participation rates in some grades in New York and Colorado actually dipped below the previous year during 2015-16, evidence that the opt-out movement isn’t going away anytime soon.

Federal education officials have not yet decided how they will penalize states with high opt-out rates, placing some state leaders on edge. The department in the past has been reluctant to talk tough about potential consequences. It’s not even clear whether U.S. Secretary of Education John King Jr. (who was at the helm of the New York education agency when the opt-out movement first took hold) will make the decision or if the Obama administration will leave it to the new president and his or her secretary of education.

ESSA Regulations

Any heavy sanctions, such as withholding millions of federal dollars or specifying punishments for schools with high opt-out rates, could lead to a battle over state versus federal rights, similar to the one launched after the department tried to entice states to adopt the Common Core State Standards through a series of incentives.

In its proposed regulations under the Every Student Succeeds Act, the Education Department calls for states with opt-out rates above 5 percent to either choose from a series of options the department provides or come up with their own “satisfactory” way to handle districts with high opt-out rates. Responding to those proposed regulations, state leaders say they have limited influence when it comes to persuading parents to have their children take statewide exams.

“Just as [New York] law requires that no school district shall make any student or promotion or placement decision based solely or primarily on student performance on the grades 3-8 [English/language arts] and math examinations, there should be no consequences for any individual student based upon whether that student participates or does not participate in state assessments,” New York Commissioner of Education MaryEllen Elia wrote in an Aug. 1 letter to the department.

“For example, no student should be denied promotion to the next grade based on failure to participate in a state assessment,” she wrote.

“Although we recognize that the statute contains the ’95 percent denominator’ provision, we are disappointed that USDE has not been creative in providing states with flexibility to address the potential unintended consequences of this provision of the law.”

The opt-out movement, a form of protest in which parents refuse to allow their children to take their state’s standardized tests, began in 2014 and has built strong momentum in Northeastern and Western states. Parents have argued, among other things, that taking so many tests stresses out students, that the test questions are too heavily based on the common-core standards, and that the tests’ results are unfairly being used to punish teachers.

Who Is Harmed?

Parent activists, along with some teachers and the unions that represent them, have staged large rallies days before exams are administered and have provided tips to parents in social-media posts on how to opt their children out of exams.

Buffering their movement is a bevy of laws that state legislatures passed in recent years that protect students from being punished academically if they don’t take the exams.

But critics of the movement say that having so many students opt out of statewide exams delegitimizes the results and the accountability systems that states use to judge schools’ performance. That lack of valid test results, which are at the heart of most school accountability measures, disproportionately hurts low-income children and students of color, they argue.

A recent Teachers College, Columbia University, survey found that the vast majority of parents who opted their children out of statewide exams are white and higher-income.

Before students took state exams last spring, Commissioner Elia traveled around touting the tests as a reliable way to measure students’ progress on New York’s learning standards, gave teachers a chance to vet the questions, and then tossed out time limits on the test. It was all part of an effort to drive down the number of students who would opt out. In the end, though, more students—21 percent—in grades 3-8 refused to take the state exams, up slightly from the previous year.

In Colorado, local media reported that only 90 percent of students in grades 7-10 completed common-core-aligned exams.

A version of this article appeared in the August 24, 2016 edition of Education Week as States With High ‘Opt Out’ Rates Brace for Possible Penalties


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