Opting out: A civic duty, not civil disobedience

By Sandra Stotsky | March 16, 2016, 6:39 EDT

The writers who crafted the Every Student Succeeds Act (ESSA), the 2015 bill co-sponsored by Senators Lamar Alexander (R-TN) and Patty Murray (D-WA) re-authorizing the Elementary and Secondary Act (ESEA), thought they had worded an airtight case to prevent parents from removing their children from federal mandated testing.

States are responsible for ensuring a 95 percent participation rate of all its K-12 students in exchange for ESSA funds. If the rate is less than 95 percent, the US Secretary of Education has several options. Most allow USED to help the state come up with a plan to address the matter. In effect, ESSA turns state departments of education into school bullies.

Indeed, many state departments of education have begun to rattle their sabers, trying to bluff parents into believing that parents who opt their kids out of a federally mandated test and reduce overall participation to less than 95 percent thereby place the state at risk of not getting the money coming to it for its low-income kids. It remains to be seen how effective this version of a guilt trip will be. In the meantime, some bureaucrats are busy trying to figure out how to make the punishment fit the crime.

Some state departments of education have threatened to withhold a high school diploma if a student doesn’t take and pass a so-called college readiness test in grade 11. However, no state legislature has passed a statute linking the award of a high school diploma to passing a state or federal mandated college readiness test in grade 11 (and it’s highly unlikely any legislature would).

Without such a statute in place, state departments of education cannot make local school boards withhold a high school diploma from students who have met other, legal requirements for a high school diploma. And if a grade 11 test is called a high school exit test, it raises serious questions about USED’s recent decision to let states use the SAT or ACT for an accountability purpose. These tests are known as only college admissions tests, NOT achievement tests or high school exit tests. Moreover, they cannot be constructed validly for more than one of these purposes.

In addition, USED itself sent 13 states a letter in November or December 2015 telling them that they needed to address high opt-out rates throughout the state or in specific school districts. The letter helpfully included possible examples of how states could act, such as lowering a school or district’s rating on state accountability systems, and counting non-participating students as not proficient for accountability purposes.

Opt-outs are the Achilles Heel of federal attempts via mandated Common Core-aligned testing to get very low-achieving students into college and to lower above-average student achievement in order to close demographic gaps. The more opt-outs there are, the less valid are any tests aligned to Common Core’s standards, and the less control federal and state policy makers have over the content of the school curriculum.

It has become difficult to remember that the central purpose of ESEA was to improve the education of low-income children. Civil Rights organizations immediately bought into the first authorization of ESEA in 1965, believing that targeting the education of low-income students with federal money would improve their education. But these organizations have steadfastly hewed to this position for over 50 years despite the fact that low-income kids’ scores have shown almost no improvement on National Assessment of Educational Progress (NAEP) tests since their inception in the early 1970s, and despite the research showing little relationship between student achievement and spending for schools or per/student.

Will making states responsible for reducing opt-outs be effective and, if so, improve the education of low-income kids? All USED could say in its warning letter to the 13 states with high opt-out rates was that full student participation in its mandated assessments would provide “better information” to parents and teachers. Better than what? Is it the case that our teachers are incapable of discerning students who can read and write from those who can’t? What kind of information did PARCC or SBAC provide in 2015 that was more useful for instruction than information teachers had already gleaned from their own observations and tests?

After 50 years and billions of dollars, it is clear that increased regulations and more testing for all students in K-12 isn’t the answer.

If Common Core’s standards and tests are, as it is claimed, so much better than whatever schools were using before, why not use them only for low-achieving, low-income kids and let them catch up? Why can’t Congress amend ESSA to exempt students already at or above grade level in reading and mathematics and target ESSA funds to curriculum materials, teachers, and tests for just the kids who need a boost? That’s just the beginning. Maybe a different use of federal money is also needed.

We have no explanation from USED of why earlier incarnations of ESEA have been so fruitless. Nor do we know why Congress has been unwilling to demand accountability from its own policy-making education agencies, or why governors haven’t demanded accountability from their own education policy-making boards and departments? That’s where accountability needs to begin, not with teachers.