This is the fourth in a series of exchanges about the Every Student Succeeds Act. I asked the questions, and David P. Cleary, Senator Lamar Alexander’s chief of staff, responded.
What does the law say about parent opt outs from testing? Are states allowed to withhold funding from schools where the participation rate is less than 95%?
Short Answer:
Under ESSA, in section 1111(b)(2)(K) of the new law, states are allowed, if they choose, to allow parents to opt students out of the federally required 17 tests.
In section 1111(c)(4)(E) of the new law, states are required to ensure that 95 percent of all students participate in the federally required 17 tests.
But, in that same section, the federal requirement is that, as part of the state accountability system, states determine how to take into account—or “factor”—the participation rate of students in determining how to judge the schools within the state. The Secretary, in section 1111(e)(1)(B)(iii)(XI) of the new law, is prohibited from telling a state how that requirement must be factored into the state accountability system. This means that the Secretary cannot say a school must drop a rating in the state accountability system, or be forced to enter into some kind of school improvement, or dictate any solution from Washington. How the 95 percent requirement factors into the state accountability system and the consequences for a school that fails to meet the 95 percent requirement are state decisions.
As under NCLB, the new law allows the Secretary to withhold Title I administrative funds if a state does not measure 95 percent of all students (or meet other requirements of the law).
However, it is up to the state, and not the Secretary, to enforce the 95 percent requirement for schools and determine the consequences for schools who do not meet the 95 percent requirement.
Long Answer:
This was a tough issue in the discussions in the Senate and House conference process. We were unable to get agreement to drop the 95 percent participation requirement from NCLB, which we recognize can interfere with opt-out efforts by parents.
We tried to balance the concerns of those who supported the NCLB testing mandates (the civil rights groups, the disability groups, the business community, among others) against the concerns of those who were frustrated with overtesting (parents, teachers, students, and others).
But our primary goal was to allow states, if they choose, to de-emphasize the importance of testing as the only indicator of school accountability. We hope that this will cause states to re-evaluate the number and types of tests that they require students to take, and make better decisions about how important any single test is for school accountability purposes. This, in turn, will help reduce the emphasis placed on testing, and restore to teachers the freedom to teach and students to learn.
It is our hope that as tests and the high stakes associated with an unthinking, punitive accountability system as in NCLB become less significant, the pressure and stresses associated with the tests will diminish, and the time spent on testing and test prep will drop. And states can develop new, more innovative testing systems under the new law, if they choose.
We’ve also clarified within the new law that states can choose to have opt-out policies for all of the tests they administer if they would like. Nothing prohibits them from creating these policies.
States have to take into account what happens to a school if the individual school fails to meet the 95 percent participation requirement within the state accountability system. But this can be very flexible. A state could choose a variety of outcomes—including that test participation has no impact on a school’s identification; or that the school can no longer receive the top rating in the state accountability system; or that the school’s rating must be downgraded a level. A state could also decide to strictly enforce the 95 percent participation requirement. It is up to the state.
As for the Secretary, enforcement of this provision is after the fact, not up front, and not at the school level. This means that a state that fails to meet the 95 percent participation requirement would typically be given a warning, then placed on corrective action where the state and the Secretary work together on a plan to work towards meeting the requirement.
A state can also seek a waiver from the 95 percent testing requirement.
Diane Ravitch's blog 
” Innovative testing system” strikes me as a rhetorical coding device that means, in practice, non-stop assessment and data analysis enabled by making instruction and testing equivalent.
After all, the Institute of Education Sciences has “evidence” that testing is one of the most effective instructional strategies, so the more the better, interim a all the time, daily quizzes, weekly, and do on. This means you can do away with the big push for once or twice a year high stakes tests and associated time for test prep. Supply teachers with data dashboards offering up daily analytics for every student.
The fusion of instruction and testing can be accomplished by online and so-called personalized or adaptive testing systems. We have seen one version of this approach in pushing forward the common core with “aligned” curriculum resources, aligned instructional strategies, and aligned assessments not radically different from PARCC and SBAC.
Getting everything “aligned” to produce glitch-free testing and data analysis is, as we have be told over and over, not only innovative, but the testing part is the civil rights issue of time. Not.
ESSA could have been written to require many indicators of school, district, and state responsiveness to equitable treatment of all subgroups of interest, but that would have required more than outcomes-only measures such as tests, graduation rates, etc. And that would also have required greater attention to equity on the “inputs,” which the Chamber of Commerce, in particular, would never stand for, nor governors who are more willing to give tax breaks to corporations than relief from huge budget cuts to schools and even basic infrastructure, like lead-free water in Flint, or school maintainence in Chicago, Detroit and elsewhere. Ignore the pesky input side of equity. Turn a blind eye to schools with leaky roofs, broken plumbing, black mold, buckled floors, inadequate heating, duck tape on windows, violations of accessibility rules, and so on.
I suppose that Congress did not hear about these matters, even from civil rights groups and “the disability” groups, who seem to think that test scores come first. Even more disheartening is the fact that only a few of the many members of the Coalition of Civil and Human Rights were promoting testing. Among the most vocal were groups, many were heavily subsidized by foundations, notably the Bill and Melinda Gates Foundation, known for promoting the forms of segregation occurring nationwide in charter schools.
exactly right–thank you!
Yes, I can identify at least one school and probably a school district that shall remain anonymous where teachers are moving their classes from room to room in an attempt to find one that still has some heat. They are waiting for parts for an old an outdated heating plant. Meanwhile school takes place in a building where teachers chase the heat. I’m sure you can all see several problems besides lack of heat. Of course this school district is on a test score watch list. Apparently they are focusing on developing grit in both the students and teachers.
Laura, Brilliant reply to a very insightful post. Choosing to spend money on tests that exaggerate gaps for minority groups while ignoring toxins in the building -a literally toxic school environment.
I vote for the waiver.
The other choices are all punitive and I feel they violate a parents constitutional right to advocate for their child, especially since it is only students in public schools who are required to participate in the testing.
Sounds like more of the same old to me! Test or be punished! Or is it test and be punished?
I don’t know, what am I missing? It reads to me like they left it in, but rendered it completely meaningless.
“As under NCLB, the new law allows the Secretary to withhold Title I administrative funds if a state does not measure 95 percent of all students (or meet other requirements of the law).
“However, it is up to the state, and not the Secretary, to enforce the 95 percent requirement for schools and determine the consequences for schools who do not meet the 95 percent requirement.”
This sounds like double talk. But if this writer is to be believed, it looks like equivocation is embedded within the law itself. The attempt to “balance” the interests of self-appointed constituencies (without seeking testimony in open hearings from the educators, parents, and students most directly affected) has resulted in a mishmash that can and will be interpreted by both federal and state bureaucrats according to their politics (and their present and future sponsors–think tanks, foundations, rich donors, and so on).
The last three paragraphs of the post indicate that with this law, all bets are off. Nobody knows what the actual consequences of opting out would be, or how they could be carried out. Politicians and bureaucrats will use this uncertainty to spread fear.
It looks like the law encourages states to coerce parents and students into taking the tests. Yet while the threat of withholding federal funds remains, there’s also a smorgasbord of ways to mitigate the threat? The writer doesn’t say it directly, but his rhetoric looks like another effort to co-opt, preempt, and ultimately derail the opt-out movement.
Meanwhile, the opt-out parents have it right. No one can force their kids to take the tests. After all is said and done, the kids and their parents hold the power. The law can’t change that fact.
This. This is what drives me batty! “We tried to balance the concerns of those who supported the NCLB testing mandates (the civil rights groups, the disability groups, the business community, among others)…”
I was in DC a couple of weeks ago. The usual Gates-funded suspects were there, including The Leadership Conference. As special ed mom, I am absolutely sick of disability and civil rights groups perpetuating the myth that standardized testing is somehow, magically, going to the “level the playing field” for students like my daughter. It NEVER will. The national obsession with it turned my daughter’s school experience into an 11-year nightmare.
Near about any curricular/pedagogic focus can be shown to be able to raise academic success rates – even doing nothing but assigning students to class rooms with a teacher who has only her own intentions, an open mind, and a supportive administration can educate well, perhaps best: think Dewey. Of course the captains of industry want something more accountable TO THEM. The ‘civil rights’ issue fits into this by accepting the job-preparation paradigm for education, Competition for wealth in a system of grotesque distribution that perverts the notion of merit. Getting out of the positivistic testing regime opens up education for better; radical democratization of the economy and culture will positively address real concerns in a substantial manner. Opting out is one way to start pushing for a renewal of democracy in our schools, although it is not itself sufficient. The class war is on!
I would like an explanation of exactly what “participation” means. For example, could a state have a box on the test that can be bubbled in by the student that states they are opting out? That student has technically participated because they sat for the exam. Then the student could be moved to another area where they can participate in an engaging learning activity. This could satisfy the 95 percent participation rate without any harm to the student or the school.
I’ll be submitting my 4th grade daughter’s opt out letter soon. Last year it went pretty smoothly (only one back and forth letter exchange before the school acquiesced), since her excellent principal was quietly in our corner. This year, there is a new principal (the old one is interim superintendent).
I’m curious to see if opting out will be different/harder this time around under ESSA, and because 4th grade is a big testing year.
ESSA doesn’t go into effect until this summer. Still under NCLB rules. It should be no different than opting out last year.
Sounds like they’ll withhold title I so basically the get a waiver idea is the only out. Can’t see on what grounds that would even be allowed so it is probably irrelevant for now. Hopefully we can at least stop tying teacher eval and student grades to the tests and deemphasize the tests. Not sure that will be a reality for 5-10 years though as the system has to unwind itself.
My question about this: what about the states where opting out is enshrined in state law, such as in Utah? Will the feds punish a state where it is legal to opt out?