Remember how the Every Student Succeeds Act was transferring power from the Feds to the states? Well, not everything. The law still requires annual testing as before. It still requires a participation rate of 95%. The U.S. Department of Education sent a letter to education officials across the nation to advise them about these basic facts.

But what happens when large numbers of students opt out to protest over testing, loss of the arts, and lousy tests?

As Alyson Klein explains in Edweek,

When it comes to opt-outs, ESSA has a complex solution. It maintains a requirement in the previous version of ESEA, the much-maligned No Child Left Behind Act, that all schools test at least 95 percent of their students, both for the whole school, and for traditionally overlooked groups of students (English Language Learners, racial minorities, students in special education, kids in poverty). Under NCLB, though, schools that didn’t meet the 95 percent participation requirement were considered automatic failures—and that was true under the Obama administration’s waivers from the law, too. (That part of the NCLB law was never waived.)

Now, under ESSA, states must figure low testing participation into school ratings, but just how to do that is totally up to them. And states can continue to have laws affirming parents’ right to opt their students out of tests (as Oregon does).

This is the year of opt-outs, and no less than a dozen states—Rhode Island, Oregon, Wisconsin, Washington, Delaware, North Carolina, Idaho, New York, Colorado, California, Connecticut, and Maine, received letters from the U.S. Department flagging low-participation rates on the 2014-15 tests—statewide or at the district or subgroup level—and asking what they planned to do about it. The department is reviewing the information it got from states. So far, the administration has yet to take serious action (like withholding money) against a state with a high opt-out rate.

So what’s this letter about? It sounds like the department is reminding states that they must come up with some kind of a plan to address opt-outs in their accountability systems, even in this new ESSA universe. And if they don’t have some sort of a plan in place, they’ll risk federal sanctions.

And, in a preview of what guidance could look like now that ESSA is in place, the department gives a list of suggested actions states could take in response to low participation rates. These actions are all pretty meaningful, like withholding state and district aid, counting schools with low participation rates as non-proficient for accountability, or requiring districts and schools to come up with a plan to fix their participation rates.

The letter makes it clear that states can come up with their own solutions, though. So it’s possible a state could decide to do something a lot less serious than the options listed in the letter. But importantly, states’ opt-out actions would likely have to be consistent with their waiver plans, since waivers are still in effect through the end of the school year. 

But the bottom line is that no state can prevent parents from opting their children out of state tests. They may threaten sanctions, but the larger the number of opt outs, the hollower the threats. This is called democracy. When the government announces a policy–in this case, a policy that was agreed upon behind closed doors, without any democratic discussion or debate–the citizens can register their views by saying NO.

No other nation in the world–at least no high-performing nation–tests every child every year. Annual testing was imposed on the nation by Congress in 2001 and signed into law as NCLB in 2002. We were told that annual testing meant that “no child would be left behind.” That didn’t happen. What we got instead was narrowing the curriculum, billions for the testing industry, cheating, and teaching to bad standardized tests.

The people who love high-stakes testing make sure that their own children attend schools like the University of Chicago Lab School (Arne Duncan, Rahm Emanuel) or Sidwell Friends (Barack Obama), where there is no high-stakes testing. The onerous testing of NCLB and the Race to the Top is not for their children, just yours.

Despite the failure of annual testing to fulfill the promise, Congress imposed it again. The more parents opt out, the sooner Congress will get the message that this policy is wrong.

Protect your children. Protect education. Cut off the money flow to Pearson and friends.

Opt out in 2016.