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Legislators Send Letter to US Secretary of Ed John King about ESSA Mandated Testing

April 5, 2016

On April 04, 2016, nineteen legislators sent a letter regarding the USDOE’s expressed intent to enforce the federal 95 percent testing mandate to US Secretary of Education John King. (See letter below).

Regarding the language in the newly reauthorized Elementary and Secondary Education Act (ESEA) version, the Every Student Succeeds Act (ESSA), the legislators have some info correct and some incorrect as concerns exactly what ESSA states regarding the 95 percent participation in ESSA’s federally mandated tests tied to Title I funding.

The legislators rightly point out that ESSA allows states to determine how, exactly, to factor the 95 percent of required testing into school accountability plans. However, the ESSA language is clear in the federal expectation that states will indeed factor that 95 percent into their accountability systems. On page 36 of the ESSA 391-page final version, one reads that states are to “provide a clear and understandable explanation of how the state will factor [the 95 percent of federally mandated testing associated with Title I] into the statewide accountability system.”

In their letter, the legislators also point out the ESSA disclaimer that ‘‘nothing in this paragraph shall be construed as preempting a State or local law regarding the decision of a parent to not have the parent’s child participate in the academic
assessments under this paragraph” (page 32). However, what they miss is that ESSA plays a game by requiring states to guarantee the 95 percent of test takers even as it declares that ESSA is not responsible for influencing state laws regarding opting out of the mandated testing.

The key is in ESSA language added in the behind-the-scenes Fall 2015 conference– language that was in neither the Every Child Achieves Act (ECAA) nor the Student Success Act (SSA)– the two ESEA revisions approved by Senate and House, respectively, in July 2015.

The added language regards the denominator of calculations regarding the 95 percent. ESSA specifies that any related achievement-measurement calculations must be equal to or greater than 95 percent of all enrolled students:

Below is the entire section, as taken from ESSA page 36:


(i) Annually measure the achievement of not less than 95 percent of all students, and 95 percent of all students in each subgroup of students, who are enrolled in public schools on the assessments described under subsection (b)(2)(v)(I).

(ii) For the purpose of measuring, calculating, and reporting on the indicator described in subparagraph (B)(i),
include in the denominator the greater of—

(I) 95 percent of all such students, or 95 percent of all such students in the subgroup, as the case may
be; or

(II) the number of students participating in the assessments.

(iii) Provide a clear and understandable explanation of how the State will factor the requirement of clause (i) of this subparagraph into the statewide accountability system.

Thus, even though these 19 legislators are troubled by ESSA, they missed the chance to protest the rapid speed at which the final bill was presented to them by Senators Lamar Alexander and Patty Murray and Representative John Kline.

I documented the speedy, no-time-to-read-ESSA Race to Obama’s Desk in this December 09, 2016, post:

On November 30, 2015, the public first saw the 1,061-page final draft of the next Elementary and Secondary Education Act (ESEA) reauthorization, now named the Every Student Succeeds Act (ESSA).

On December 02, 2015, the House passed ESSA by a vote of 359-64.

On December 09,2015, the Senate passed ESSA by a vote of 85-12.

ESSA is not officially law until President Obama signs the bill.

That is scheduled to happen in short order, on the morning of December 10, 2015. (Which it did.)

So now, we have this letter from well-intentioned members of Congress to a man (John King) who will use the “gotcha” testing language in ESSA to his full advantage. (In their letter, the members of Congress refer to a letter from Ann Whalen. That letter can be accessed here.)


IMG_0197 IMG_0198

The legislators end their letter by stating that “No Child Left Behind created federally-mandated highs stakes testing…. ESSA ends this federally-mandated high stakes testing….”


ESSA tries to lock states into the same 95 percent testing requirement as NCLB, but ESSA tries to deflect any responsibility for doing so. Neither ECAA nor SSA– the two documents that entered the House-Senate conference on ESEA reauthroization– has the same opt-out-choking language as does the ESSA that emerged from that conference.

Congress should have insisted on time to actually read post-conference ESSA.

Good luck wrestling power from the likes of John King.

john-king-3-e1458431556734  John King


Coming June 2016 from TC Press:


school choice cover  (Click image to enlarge)

Stay tuned.



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. Rick Frueh permalink

    Are subscribers allowed to post your articles to Facebook groups???? Thank you.

  2. Michele permalink

    These nineteen signers want to work with John King to ensure a quality education for all children. That is what I’d like for my child, but increasingly, I see his public school education as a test-prep education.

  3. Laura H. Chapman permalink

    The “no time to read it” strategy was known to the people who put this bill forward. I have heard that this is a well-known strategy among lobbyists who want to nail an agenda and count on Congressional fatigue and/or indifference to get the legislation they want. Obama and his advisors added the rubber stamp. Much in this bill is a hodgepodge of ideas from the charter industry and favored projects of Gates and his lobbyists, especially on the engagement of for-profits and non-profits as “partners” in this or that initiative. I have the short (391) version of ESSA hand for some key-word searches. I found 345 references to assessment/evaluation/measurement. The term “test” was studiously avoided.

    • The final ESSA was written and approved long before the first vote was ever cast. That is obvious by several facts 1. look at how many Governors 1-2 years ago agreed to review and revise standards (they made it sound like they were addressing citizen concern… way….it was in preparation for what they knew was coming.) 2. In TN we were told that to implement ESSA we would not have to pass one single piece of legislation in order to comply (oh really???) ESSA has been sitting on the shelf for a long time. Our Governors knew the final outcome and prepared for it a year before the bill even passed. During the votes for HR5 and S1177 there was an amendment that was passed to allow parents to OPT OUT but that amendment was never included in the conference bill and not a peep about it. I truly believe the time has come for all of us to step up and build our own education system and bypass this mess. That is my goal and my plan. I refuse to continue a battle that has been fought for decades and the only thing we have accomplished is to slow it down. But it keeps coming back bigger and stronger each time. We have circumvent the system and save as many kids as we can and we need to do it fast. I know so many parents that would die to have their kids homeschooled but must work in order to feed these kids. There are so many baby boomers sitting at home doing nothing. What better way to end you time here on earth than to nurture and truly educate a child to be all they can be. How many teachers have left the profession or have retired that could volunteer their time to home school children or set up a small home school consortium. How many church rooms sit empty all week long that we might be able to use. If your home school laws need to be changed to allow for others beside parents to home school then get the laws changed. It is truly time to STARVE THE BEAST.

  4. Mary Byrne permalink

    Mercedes, you are correct about the conflicting details of the text (which makes for confusion and a bad piece of legislation), and that the legislators should have voted “no” if for no other reason than there was no time to read the bill for those troubling insertions that were not in the house and senate bills (although the 19 additional nay votes wouldn’t have affected the passage of the bill). That said, what is significant about the letter is the legislators’ statement of the intent of the bill. Intent is huge. Also, don’t forget that budget begins in the House. John King will not forget.

    • What the legislators believe to be intent will not matter given the actual language of the bill, and that bill clearly outlays that states are to test at least 95 percent of all enrolled students in grades 3 thru 8 and once in high school– and to show how that 95 percent of test scores will be incorporated in a state accountability plan. That is specified in the bill, and the apparent design is for the federal government to put the squeeze on states to get that 95 percent even as the feds say that they cannot be blamed one way or the other for state and local opt-out laws. The entire scene begs a lawsuit.

      • Intent is their way of convincing you that your concerns were addressed but intent is about as worthless as monopoly money. We faced that here in TN when the bill that would have truly repealed CC (and provided an alternative plan) was crushed and a fake bill presented that the Governor (that should have been the first clue) supported but in the bill it NEVER mentions “repealing Common Core.” When I continuously brought this up I was dealt the “intent” argument. I don’t have to explain my comments on that. So what did we get. We got a rebrand of Common Core. So much for “intent.” It is a stall tactics and nothing more. Lamar Alexander is a lying snake, always has been, always will be. Why did anyone think the very man that has pushed this progressive agenda since the 1980’s now all of a sudden had the best of interest of our children in his heart. I can proudly say I NEVER voted for him and never will.

      • What worries me as a veteran teacher is that it is not ever the letter nor the intent of the law mandating 95% participation which matters to reformers/school “fixers” — but simply that, because it exists, they see it as validation for their right to harass and abuse without consequence.

  5. Lets also not forget that any unconstitutional law (whack ESSA is) is not a law we need to adhere to. Parental rights are given to parents by God (natural law) and cannot be taken away by man’s law (common law). So I say “parents REFUSE away” and stand up to those that are trying to reduce parents to nothing more than breeders. Fight now or one day it will be too late and that day is fast approaching.

  6. Robin Sparks permalink

    Yes, troubling, frustrating, and annoying. Why did none of these elected officials take the time to fully examine this document before signing off on it to begin with. Hard to get that horse back into the barn isn’t it. In our county, Williamson County Tennessee, next years testing scores will count for 25% of the students 2nd semester average grade. Yup swallow that number. Try to opt out of that—if you have a 100% and opt out of that testing you will get a 75 in the course!

    I have not had time to see if this is just our district or the entire state—our students generally perform incredibly well on testing and our district is high achieving nation wide but I mean really talk about a penalty if you don’t test. This year our computer testing program crashed so they went to paper tests, and threw out the scores for the students, time will tell if the scores drop if that 25% is altered because there are going to be some seriously messed up children if their grades are impacted severely in a negative manner by one standardized test.

    What continues to fathom me, is with all the intel about increased youth depression, anxiety, suicide, drug abuse, why in the world are we/the powers that be continuing to heap more on these students? It makes no sense at all. Unfortunately the parents are left to pick up the mess when the children come home stressed out. I just don’t get it. Hope they add money in that education budget for all the counselors they will need to add to all the schools—its just going to get a ton worse.

    Sorry for the rant. Bless you for what you do. Robin Sparks in Tennessee

  7. Mercedes is correct about the language in the bill. But a state can can ‘factor in’ the percent as near zero and do nothing meaningful about it – and the Ed Dept, King and his successors, as far as I can tell, can do nothing about it given the much greater leeway given states in ESSA.

Trackbacks & Pingbacks

  1. Members of Congress Stand With Students, Parents Who Opt Out | THE OPT OUT FLORIDA NETWORK
  2. Root to Rise: Practicing the Future of the Opt Out Movement | educationalchemy
  3. Just a Smidge on the June 29th ESSA Hearing | deutsch29

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