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New York Plays the NCLB Testing Game

January 3, 2016

On January 02, 2016, I wrote a post about former US Secretary of Education Arne Duncan’s departure from the US Department of Education (USDOE).

In that post, I included a letter dated December 22, 2015, written to state superintendents by Ann Whalen, whose temporary title is, “Delegated the authority to perform the functions and duties of Assistant Secretary for Elementary and Secondary Education.” In the letter, Whalen tells state superintendents that they had better deliver on testing the No Child Left Behind (NCLB)-mandated 95 percent of students in grades 3 through 8 and once in high school, just as NCLB requires.

According to Whalen, it isn’t good enough for the states to plan to assess the 95 percent of students; the states better deliver the scores no matter if parents prefer not to have their children forced into taking federally mandated tests.

Of course, this has the makings of textbook dysfunction in adult relationships; Whalen’s putting states on the spot for the actions of parents is similar to a relationship triangulation in which one adult makes an agreement with another adult, and as part of that agreement, Adult Two must guarantee some action on the part of Adult Three, who has no direct agreement with Adult One, even as Adult One holds the greater advantage than Adult Two (and certainly Adult Three) in the deal.

In her letter, Whalen makes it clear that in her temporary, delegated US assistant secretary of education capacity, she plans to either withhold or redirect NCLB funding for states that did not have that 95 percent of students tested in 2014-15:

If a State with participation rates below 95% in the 2014−2015 school year fails to assess at least 95% of its students on the statewide assessment in the 2015−2016 school year, ED will take one or more of the following actions: (1) withhold Title I, Part A State administrative funds; (2) place the State’s Title I, Part A grant on high-risk status and direct the State to use a portion of its Title I State administrative funds to address low participation rates; or (3) withhold or redirect Title VI State assessment funds.

New York was one such state that did not have the federally-expected 95 percent test completion rate in 2014-15. According to the August 13, 2015, New York Times, 20 percent of New York State students supposed to complete those NCLB-mandated federal tests opted out.

New York State experienced no federal sanctions for its high 2015 opt out rates, with New York Chancellor Merryl Tisch confirming no sanctions, not even the federally-suggested financial penalties to New York districts with high opt out numbers.

In her December 22, 2015, letter, Whalen suggests that states take action to penalize districts if they don’t deliver that 95 percent for spring 2016 testing.

In August 2015, New York education commissioner MaryEllen Elia stated that she does not view opting out of federal testing as “reasonable” and even added that she considers educator support for opting out as “unethical.”

On December 22, 2015 (same date as Whalen’s letter to state superintendents), Elia sent this letter to USDOE. In it, Elia outlines the steps that she plans to take to promote the 95-percent testing rate that Whalen wants. Directed to acting director of state support Patrick Rooney, Elia’s letter opens as follows:

Dear Mr. Rooney:

I am writing to follow up on Dr. Monique Chism’s letter of October 19, 2015 requesting information about how New York is addressing deficits in meeting the participation rate requirements in the Elementary and Secondary Education Act (ESEA) of 1965.

The Board of Regents and I understand the importance of a high-quality, annual statewide assessment system that includes all students. We believe that these statewide assessments provide critical and timely information on all students so that we can better support students and improve educational outcomes in schools across the state. That has been our consistent message to teachers, principals, school district leaders, parents and other stakeholders.

Per the request of the United States Department of Education, please see below our efforts to demonstrate that we have already and will continue to take actions to address the low participation rates that occurred in the 2014-15 school year. These actions have been developed after extensive discussions with key stakeholders and are intended to specifically address many of the reasons cited by stakeholders for the significant increase in the rates of non-participation compared to historical trends.

The remainder of Elia’s letter details what she and Regents are trying to do to entice New York parents to let their children participate in the 2016 federally-mandated tests.

Included is a “toolkit” for parents so that they understand the alleged importance of federally-mandated tests– which is, bottom line, the federal money, no matter how the toolkit might decorate such news. Other actions: Stakeholder review of standards and assessments; shortening the tests, and revising score reports.

Then comes the hazy concession that promotion decisions should not be based “solely on assessment results”– despite the pairing of this “description” with the “action” that assessment high stakes be “eliminated” for students in grades 3 through 8.

There is also the temporary concession that the results of high-stakes tests not be part of the student’s permanent record:

The Department has communicated to districts and BOCES (Boards of Cooperative Education Services) that, pursuant to New York State Law and regulation, for the period commencing April 1, 2014 and expiring December 31, 2018, no school district or BOCES may include on a student’s official transcript or maintain in a student’s permanent record any individual student score on the grades 3 – 8 student tests, and any grades 3 – 8 tests results sent to parents must include notice of this and must inform parents that the results are being provided for diagnostic purposes.

Once January 01, 2019, arrives, forget “diagnostic purposes.” Those scores will become part of a student’s permanent record/transcript. The above description is paired with the action, “Eliminate high stakes for students by reminding districts that, until December 31, 2018, scores on the grades 3 – 8 tests may not be included on a student’s official transcript or permanent record.”

Thus, the above high stakes elimination is only temporary, as is the one that follows, which regards measuring New York teachers and principals using the federally-mandated tests.

Elia presents an additional list of concessions, which includes 25 percent fewer students taking field tests; using alternatives to pre-testing in order to grade teachers using student test; capping local testing to one percent of classroom time; prohibiting “traditional” standardized testing in grades K-2, and eliminating some double-testing in eighth-grade math.

If parents are opposed to high-stakes testing, period, or if they are opposed to the federal government mandating testing, then Elia’s concessions completely miss the mark.

In any case, in this dysfunctional, fed-to-state-“make-the-parents-give-in” arrangement, Elia simply cannot guarantee a 95 percent participation rate in spring 2016. But she is willing to bet on a decrease. Elia closes her letter to USDOE as follows:

Thank you for your continued support and assistance on this issue. We are confident that the measures outlined above will help to decrease the number of student (sp.) opting out of the required statewide tests and we look forward to continuing the dialogue with the United States Education Department regarding how to best encourage participation of all students in those assessments.

In other words, “We want the federal money, and we want to be able to control how it is spent, so we’ll go along with the National School Board game using Whalen’s temporary, NCLB game board”– without exactly guaranteeing to deliver.

The game continues.



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?.

both books

Don’t care to buy from Amazon? Purchase my books from Powell’s City of Books instead.

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