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ESSA Is Designed to Quell Opting Out. It Won’t Work.

March 18, 2016

One of the more disturbing changes between the two versions of the Elementary and secondary Education Act (ESEA) revisions approved by House and Senate in July 2015 (the Student Success Act and Every Child Achieves Act, respectively) and the resulting document that emerged from largely secretive conferencing and arguably rapid conferencing-to-official-reauthorization by December 10, 2015, the Every Student Succeeds Act (ESSA), is the ESSA language that tries to make opting out of Title I mandated standardized testing virtually impossible for the federally desired 95 percent of test takers in grades 3 through 8 and once in high school. (I wrote about the tightening of the ESSA’s 95-percent-testing language briefly in this March 07, 2016, post.)

US senate Committee on Health, Education, Labor, and Pensions (HELP) Chair– and chief director and promoter of ESSA– Lamar Alexander, refers to ESSA as the No Child Left Behind (NCLB) “fix.” On March 14, 2016, at now-Secretary of Education John King’s confirmation, Alexander referred to ESSA as “the law to fix No Child Left Behind” twice in the first minute of his speech prior to the vote. After a few more minutes, Alexander adds:

We passed this law because, as Newsweek said, No Child Left Behind was a law that everybody [in Congress] wanted fixed, and fixing it was long overdue. Governors, teachers, superintendents, parents, Republicans, Democrats, students all wanted No Child Left Behind fixed. Not only was there a consensus about the need to fix the law; there was a consensus about how to fix it, and the consensus was this:

Continue the important measures of academic progress of students; disaggregate the results of those tests; report them so everyone can know how schools and teachers and children are doing, but then restore to states, school districts, and classroom teachers, and parents the responsibility for deciding what to do about those tests and about improving student achievement.

This new law is a dramatic change in direction for federal education policy. In short, it reverses the trend toward what had become a national school board and restores to those closest to children the responsibility for their well being and academic success.

In pushing for King’s confirmation, Alexander also notes, “I want to be sure that we’re working together to implement the law the way that Congress wrote it.”

Well. The “way that Congress wrote it” includes an attempt to quash any opting out of the mandated tests even as the law purports to reverse a trend toward a national school board.

But ESSA is sneakier than the direct, punitive approach of the testing mandate in NCLB. ESSA seals the deal for 95 percent of enrolled students in grades 3 through 8 and once in high school as being required to complete the mandated tests even as it includes a disclaimer that states are not to hinge any opt out laws on ESSA’s Title I testing mandate.

And what does this do? It plays the ends against the middle. In other words, through the ESSA testing mandate– and in this post-NCLB atmosphere of growing parent, student, teacher, and administrator resistance against test-centric reform– schools and districts will be pitted against states regarding the federally required, ESSA Title I tests. Thus, the feds will pressure the states to make that 95 percent testing happen (even as the feds say, “Don’t pin any formal opt out decision on us.), and the states, in turn, are left to strong arm districts and schools (i.e., parents) into forced testing– all of which increasingly provokes parents to increasingly opt out of those federally mandated tests.

For the remainder of this post, I offer this column from the New Boston Post and written by former Massachusetts Department of Education Senior Associate Commissioner and dissident Common Core validation committee member, Sandra Stotsky. Stotskey’s piece, entitled, “Opting Out: A Civic Duty, Not a Civil Disobedience,” is worth the read and is presented below, in full:

Opting out: A civic duty, not civil disobedience

By Sandra Stotsky

March 16, 2016

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.


Given the current atmosphere of growing resistance to mandated testing, perhaps Alexander ought to reconsider how he markets ESSA.

Instead of being a “fix,” the forced testing component has likely only landed the USDOE in a fix.

Groups lobbying in the Beltway might well be fine with mandated annual testing, but from parents, students, teachers, and administrators, this NCLB trade mark will continue to face growing resistance.


*Schneider’s note: According to Fairtest, NAEP scores were improving but were hampered by NCLB.

**Schneider’s note: I wonder if the issue is one of funds not filtering down through bureaucratic channels. This University of Delaware study suggests that NAEP score gains are related to higher local funding (as opposed to state or federal funding). So, in making assertions about the effect of per-pupil funding on NAEP scores, one should also examine the filters through which money must go (and the bureaucratic hurdles it must cross before it lands with the district or school).

hour glass_____________________________________________________________

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.

  1. YES. You explain a very interesting school “turnaround.” I truly believe that the deep abuses brought by an NCLB/R2T test-score reform are becoming so transparent to the public that, in a logical quid pro quo reaction, instead of allowing ESSA to viciously invade and “fix” our schools, it is putting ESSA “in a fix.”

  2. Mercedes? How are we going to stop it? Fairtest, NEA, AFT and other supposed allies are now lobbying for “proficiency based assessment reform” in coalition with Clinton’s TeachStrong partners. They are telling legislators to file for Testing Innovation Zone waivers, instead of actually refusing the tests. Can you help us? Will you?

    Please answer somebody. Teachers are in despair, because this is the trap that ESSA was set up to close. I asked you only because I believed you’re honest enough to answer. Such hope dies hard.

  3. Send in the clowns.

Trackbacks & Pingbacks

  1. Utah Asked USDOE for ESSA Testing Waiver to Honor Parents’ Rights; USDOE Said (Wait for It…) No. | deutsch29

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