Both House and Senate ESEA Bills Allow for Opt-out Without Penalty

Both the House and Senate have passed proposed authorizations of the Elementary and Secondary Education Act (ESEA) of 1965, and both House and Senate versions have opt-out provisions that allow for states to avoid being penalized for students whose parents opt them out of federally-mandated testing.

That’s right: Both House and Senate versions of the ESEA reauthorization provide a means for students who opt out to not be counted against the “95 percent” that the state is supposed to test as a condition for receiving Title I funding.

They just go about it differently.

I realize all of this can be difficult to follow. In this post, I hope to make the issue clear.

Opt-out and ECAA

Here’s how the parental opt-out provision works in the Senate’s Every Child Achieves Act (ECAA) of 2015:

Paragraph (2) of Title I, entitled, “Academic Assessments,” (page 36 of the ECAA draft linked above) details the ECAA requirements for annual testing, including what tests are to be given and to whom. The last section of paragraph (2) is subparagraph (K), which is the text of Isakson’s first opt-out amendment, which was approved in the Senate ed committee in April 2015 (page 52 of the ECAA draft linked above):

(K) RULE OF CONSTRUCTION ON PARENT AND GUARDIAN RIGHTS.—Nothing in this part shall be construed as preempting a State or local law regarding the decision of a parent or guardian to not have the parent or guardian’s child participate in the statewide academic assessments under this paragraph.

In other words, nothing in this part, comprised of more than paragraph (2) on academic assessments and paragraph (3) that follows related to Title I, shall be seen as preventing state or local law regarding parental rights to opt out of the statewide tests that states are required to administer as part of Title I funding.

This is the parental opt-out provision in ECAA, and its inclusion as part of paragraph (2) is key. Keep that in mind.

Now, as to the “95 percent” mandated testing participation requirement as written in ECAA Paragraph (3),”State Accountability System,” subparagraph (B), clause (vi) (page 57 of the ECAA draft linked above), note the bolded text:

(B) DESCRIPTION OF SYSTEM.—Each State plan shall describe a single, statewide State accountability system that will be based on the challenging State academic standards adopted by the State to ensure that all students graduate from high school prepared for postsecondary education or the workforce without the need for postsecondary remediation and at a minimum complies with the following: …

(vi) Measures the annual progress of not less than 95 percent of all students, and students in each of the categories of students, who are enrolled in the school and are required to take the assessments
under paragraph (2) and provides a clear and understandable explanation of how the State will factor this requirement into the State-designed accountability system determinations. [Emphasis added.]

Students “required to take the assessments under paragraph (2)” include those whose parents have not opted them out according to state or local law, as noted in subparagraph (K) of paragraph (2).

There it is: the opt-out provision in ECAA.

Moreover, Senator Isakson’s second opt-out amendment to ECAA, SA 2194 (approved by a vote of 98-0 on July 14, 2015), requires districts to inform parents of state or district opt-out policies:

At the beginning of each school year, a local educational agency that receives funds under this part shall notify the parents of each student attending any school receiving funds under this part that the parents may request, and the agency will provide the parents on request (and in a timely manner), information regarding any State or local educational agency policy, procedure, or parental right regarding student participation in any mandated assessments for that school year….

The ECAA opt-out provision is not stated as clearly as is the opt out provision in the House version of the ESEA reauthorization, the Student Success Act (SSA), but it is there, nonetheless. The difference is that the ECAA opt-out is left up to the states to decide– in contrast to the House version, which has already made the decision for the states.

Opt-out and SSA

Here is the House’s SSA opt-out amendment (page 31):

‘‘(2) ACADEMIC ASSESSMENTS.—

‘‘(B) REQUIREMENTS.—Such assessments shall—

‘‘(xiii) be administered to not less than 95 percent of all students, and not less than 95 percent of each subgroup of students described in paragraph 18 (3)(B)(ii)(II), except that States shall allow the parent of a student to opt such student out of the assessments required under this paragraph for any reason and shall not include such students in calculating the participation rate under this clause;

Again, in contrast to the Senate opt-out version, which leaves the opt-out decision up to states, the House version of its opt-out has already decided for states that they are to allow parents to opt their children out of federally-mandated testing.

The Important Takeaway

But here is the important takeaway:

There will be no federal revoking of Title I funding for states or districts that provide for parents to opt out of mandated testing under ECAA, and there will be no revoking of Title I funding for parents who opt out of mandated testing under SSA regardless of state opt-out policy.

Neither House nor Senate opt-out sets states up to have to choose between allowing students to opt out of testing and meeting the federal, “95 percent of students testing” requirement.

Important to know.

 

________________________________________________

Schneider is a southern Louisiana native, career teacher, trained researcher, and author of the ed reform whistle blower, A Chronicle of Echoes: Who’s Who In the Implosion of American Public Education.

She also has a second book, Common Core Dilemma: Who Owns Our Schools?, newly published on June 12, 2015.