New York State Allies for Public Education is an organization that represents 50 parent and educator groups across the state. It has led the opt-out movement in the state. This letter was written in response to punish schools where the “participation” rate in mandated testing fell too low. The very best response to the state’s threats and warnings would be to opt out; the more that parents opt out, the less likely it is that the state can “punish” them for exercising their constitutional rights.

Dear Board of Regents, Chancellor Rosa, Commissioner Elia and Dr. Lisa Long,

We find it reprehensible that under the guise of ESSA, NYSED is seeking to punish schools when parents exercise their legal right to opt their child out of the grades 3-8 state tests and is overreaching by requiring the collection of confidential student data. These proposed provisions of the New York State ESSA regulations show a blatant disregard for the amount of public outrage over the last several years regarding the flawed New York State testing system, unproven revised common core standards, and the unnecessary collection of personally identifiable student information.

Strong opposition to the grades 3-8 common core state tests has been evidenced by 20%- 22% of eligible students throughout New York opting out of these state exams over the past three years, despite threats from the state and individual districts and a one-sided state-initiated persuasion campaign (the Commissioner’s “Toolkit”).

Only 8% of school districts in New York met the 95% testing participation rate in 2017, and while the state has not yet released the opt out figures for the 2018 grades 3-8 tests, several news accounts reveal that the opt out number will remain high, and that the majority of school districts will not have met the 95% participation rate as a result.

In addition, it took a legislative act to stop NYSED and then-Commissioner John King from collecting personally identifiable student data in the name of inBloom, a $50 million database that was going to be used for corporate data mining purposes without parental consent.

The proposed New York ESSA regulations will allow the Commissioner to mislabel schools with opt out rates over 5% — including highly effective schools — as needing Comprehensive or Targeted Support and Improvement, with the potential of wrongfully identifying schools as needing these interventions. These proposed regulations allow the Commissioner to require schools to misuse Title I funds in an effort to increase test participation rates. Moreover, the proposed regulations allow the Commissioner to close these schools, and/or convert them to charter schools. This is a dangerous path for NYS to take.

The mere suggestion of using Title I funds for ‘marketing’ of these tests is a misuse of authority that results in the revictimization and intimidation of communities that have a long history of being underserved and disempowered. Furthermore, it should be regarded as a civil rights issue as these actions will disproportionately aim to quiet the voices of schools with high populations of students from low-income households which tend to correlate with families of color.

None of these proposed provisions are required by ESSA law, none of them will improve learning conditions or outcomes for our children, and all of them contradict earlier statements from the Board of Regents and NYSED officials that schools with high opt out rates would not be punished or otherwise targeted, and/or wrongfully labeled for interventions, etc. The intention of the 95% participation rate in the ESSA law is to deter institutional/systematic exclusion by schools not to usurp parental rights.

We strongly request that NYSED remove these provisions from the proposed regulations and refrain from punishing schools when parents assert their legal right to opt out of the state tests. Moreover, under no circumstances, should NYSED collect confidential, personally identifiable student data. The ESSA law does not require punishing schools for opt out; rather, it fortifies a parent’s right to opt out. Furthermore, the ESSA law does not require collecting individual student data for the purposes of accountability, nor should the Commissioner and NYSED.

Until NYSED embraces teaching our children through the lens of whole-child education and stop test-driven classrooms, we will continue to squander opportunities to truly help all children reach their full potential. It’s time we give the children of New York a meaningful, well-rounded education, and create a nourishing environment where children flourish because they genuinely love to learn.


Lisa Rudley, Executive Director