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New York State Opt-out and the ESSA Title I Showdown

August 2, 2016

On August 01, 2016, the New York State Allies for Public Education (NYSAPE) offered this press release regarding New York students in grades 3 through 8 opting out of the state’s Common Core-associated tests in math and English language arts (ELA).

The NYSAPE press release begins as follows:

This past Friday afternoon, the New York State Education Department (NYSED) released the results of the 2016 NYS Common Core 3-8 ELA and math results. Despite expensive ad campaigns from Gates-funded advocacy groups and the distribution of “Anti Opt-out” toolkits by Commissioner Elia aimed at persuading parents to opt in to state tests, the test non-participation rate increased from 20 percent last year to 22 percent. [Emphasis added.]

One could think of the opt out percentages in terms of test takers: 80 percent in 2015, and 78 percent in 2016.

Of course, when it comes to states’ applying to the US Department of Education (USDOE) for Title I funding, the magic number indicating what Congress has determined to be the minimum percentage of eligible test takers completing those state-level math and ELA tests is 95 percent.

According to a USDOE letter sent to the New York “Chief State School Officer” on December 22, 2015 (following that 80 percent test completion rate), USDOE stated possible actions for 2015-16 testing that did not meet the prescribed 95 percent threshold:

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 (USDOE) 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.

For all States, ED will consider the appropriate action to take for any State that does not assess at least 95 percent of its students in the 2015−2016 school year — overall and for each subgroup of students and among its LEAs (local education agencies). To determine what action is most appropriate, ED will consider SEA (state education agency) and LEA participation rate data for the 2015−2016 school year, as well as action the SEA has taken with respect to any LEA noncompliance with the assessment requirements of the ESEA.

So, the USDOE idea was to get states to pressure (or punish) districts that did not meet the still-NCLB 95 percent testing threshold.

New York had been warned, and as the NYSAPE press release notes, New York parents and students experienced a ‘PR push” to promote 2015-16 test participation.

What I find remarkable as noted in the NYSAPE press release is how few New York districts met the federal, 95 percent testing requirement for the 2016 tests:

only 5 percent.

As modified from the NYSAPE press release:

2016 Test Refusal Analysis- Public School Districts


# (and %) districts < 95% participation:  648 (94%)

# (and %) districts > 95% participation:   38 (06%)


# (and %) districts < 95% participation:  655 (95%)

# (and %) districts > 95% participation:   31 (05%)


Test Refusals by % Thresholds

20% and over test refusals:  74% of districts

30% and over test refusals:  48% of districts

40% and over test refusals:  30% of districts

50% and over test refusals:  19% of districts

What the above data show is that the New York opt out is not confined to a few districts. it is a statewide protest against federally mandated testing. And the fact that it is statewide draws quite the m]line in the sand when it comes to USDOE trying to prod New York to sanction so many individual school districts in the name of attempting to appease USDOE in order to secure those precariously-dangling 2016-17 Title I funds. (for more on that USDOE pressure, see this post.)

Yes, NCLB is dead. However, its replacement, the Every Student Succeeds Act (ESSA), also includes language that attempts to lock states into a minimum of 95 percent of students completing those federally-mandated ELA and math assessments. I wrote about the opt-out “catch 22” in this March 2016 post:

ESSA plays a game with states via its Title I 95 percent annual testing requirement for grades 3 through 8 and once in high school in English language arts (ELA) and math. On page 36, ESSA traps states into including 95 percent of all enrolled students in grades 3 through 8 and once in high school as the denominator in determining annual measures of achievement on the mandated (yet state-selected) standardized tests. At the same time, ESSA tries to exonerate itself from driving state and local opt out policies by offering a “rule of construction” regarding the right of parents to opt their children out of testing (see page 32).

ESSA requires the 95 percent of testing for the states even as it says, “Don’t pin your state opt-out policies on us for our federal policy.”

ESSA also requires that states include that 95 percent testing in state accountability systems (page 36).  States, districts and schools are able to apply for “waivers of statutory and regulatory requirements” (page 302), but this only puts states, districts, or schools at the mercy of the US secretary of education.

Of course, the great irony for the State of New York is that the US secretary of education who is seated to usher in ESSA is none other than former NY ed commissioner John King, who canceled public meetings when the New York public made its strong dislike of Common Core and its associated assessments undeniably known.

On page 20 of USDOE’s proposed ESSA “guidance” and relating to Title I and the 95 percent testing requirement, King includes lots of options to get schools and districts to meet that 95 percent testing threshold, including incorporating parental involvement– all the while ignoring the reality that many parents are opposed to the testing itself. Here is the excerpt:

Specifically, the State would be required to take one of the following actions for a school that misses the 95 percent participation requirement for all students or one or more student subgroups:

(1) assign a lower summative rating to the school…

(2) assign the lowest performance level on the State’s Academic Achievement indicator…

(3) identify the school for targeted support and improvement… or

(4) another equally rigorous State-determined action, as described in its State plan, that will result in a similar outcome for the school in the system of annual meaningful differentiation… and will lead to improvements in the school’s assessment participation rate so that it meets the 95 percent participation requirement.

…Further require schools that miss the 95 percent participation rate for all students or for one or more subgroups of students to develop and implement improvement plans that address the reason or reasons for low participation in the school and include interventions to improve participation rates in subsequent years…. The improvement plans would be developed in partnership with stakeholders, including parents, include one or more strategies to address the reason or reasons for low participation rates in the school and improve participation rates in subsequent years, and be approved and monitored by the LEA.

In addition… require each LEA with a significant number of schools missing the 95 percent participation rate for all students or for one or more subgroups of students to develop and implement an improvement plan that includes additional actions to support the effective implementation of school-level plans to improve low assessment participation rates, which would be reviewed and approved by the State.

Finally… require a State to include in its report card a clear explanation of how it will factor the 95 percent participation rate requirement into its accountability system. This section would also retain current regulatory requirements related to: (1) not allowing the systematic exclusion of students from required assessments; (2) counting as participants students with the most significant cognitive disabilities who take alternate assessments based on alternate academic achievement standards; and (3) counting as participants recently arrived English learners who take either the State’s English language proficiency assessment or the reading/language arts assessment.

And here are excerpts of the stated reasons for attempting to “remediate” schools and districts into opting-in:

Reasons: The ESEA, as amended by the ESSA, continues to require the participation of all students in the annual statewide assessments in reading/language arts and mathematics and includes this requirement as a significant component of State-developed accountability systems. In particular, ensuring that results on these statewide assessments are available for all students is essential for meeting accountability system requirements related to the establishment and measurement of interim progress toward State-designed, long-term goals… the annual meaningful differentiation of school performance… and the identification of schools for improvement ….

The proposed regulations reflect the critical importance of continuing to ensure that all students participate in annual statewide academic assessments so that parents and teachers have the information they need to help all students meet the challenging State academic standards and to maintain the utility of State accountability systems.

Given the critical importance of assessing all students and subgroups of students as part of providing a strong foundation for each component of a State’s accountability system, and in ensuring that parents and educators have information to support all students in meeting the challenging State academic standards, we are especially interested in receiving public comment on additional or different ways than those articulated in the proposed regulations to support States in ensuring that low assessment participation rates are meaningfully addressed as part of the State’s accountability system, either as part of annual meaningful differentiation of schools to increase transparency around assessment participation rates or as part of school-level actions to improve such rates.

In order to secure King-regulated Title I funding, it seems that New York will need a lot of, uh, remediation.

ESSA Title I leaves no room for test refusal, only punishment packaged as euphemistic “improvement.”

However, many of New York’s key stakeholders– its parents and students– appear ready to “cancel King’s guidance meeting,” so to speak.

Thus, the New York opt out will surely prove to be a show-down over the federally mandated testing required for states to secure Title I dollars from now-ESSA.

The required tests are central feature that holds ESSA Title I together, and the New York opt-out combined with King’s reputation for being the unyielding man in charge (as noted by the friction between him and Senator Lamar Alexander over King’s ESSA “guidance”) might just make ESSA Title I implode.

house implosion The house that federally-mandated testing built.


Just Released– Book Three:

School Choice: The End of Public Education? 

school choice cover  (Click image to enlarge)

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

    “However beautiful the strategy, you should occasionally look at the results.”
    ~ Winston Churchill ~

    We are not winning. Admit it.

    If we let this political season escape us and allow this reform to become a back-seat issue … we become the fools. And we deserve that tattoo.

    The Opt-Out movement has served us very well. It’s the first effort that stitched resisting states together in united opposition against Common Core’s high stakes’ testing. We owe those leaders great gratitude.

    But now we need to add to our resistance repertoire … and we need to seize a special circumstance that will not last long.

    We’re being smiled and nodded to death. Painted in nonsense words and soaped in foggy promises by political operatives who think us unserious and even peevish. And we are … because we seem easily soothed.

    Common Core cannot be conquered by a three-week skirmish each spring. This resistance needs to remain nimble and opportunistic.

    This is the current reality.

    John King smirks us and treats as an after-thought while he retools our schools, experiments on our children, and ignores us. He’s loathe to even mention the Opt-Out effort save for when he speaks of punishing schools for resisting his edicts.

    We must become more aggressive. And we had better do it quickly because the federal government is casting a larger shadow every day.

    Teachers have been declawed, parents dismissed, school leaders deceived … and the public is largely disengaged. Warriors in this effort are painted as amusing renegades, wayward anti-reformists … progress-blockers who are more a nuisance than anything else.

    And now King has proposed the coup de grace … the death blow … for the Opt-Out effort. Many schools will buckle under his threats … and our resistance may become crippled.

    If I were King, I’d do the same. He doesn’t fear us … he mocks us.

    King’s death-star for public education is nearly complete. If this issue becomes a back-bench concern for the major political players during this exciting election season … well, our time is up. And we will have lost.

    We need drama. BIG drama! Right now.

    Something that rises above the usual headline noise. And we need it in the next 8 weeks … NOT NEXT SPRING.

    We need to empty the schools … nation-wide … this fall. For a day or two or three.

    We need to capture the candidates … and the media … and make them want to inspect our issues. The optics of a school walk-out will demand attention … it’s serious attention we lack.

    Now we can talk ourselves out of this bold action … and reason away the best opportunity we’re likely to ever have … or … or we can spine-up and do what warriors do and make mayhem. Make people listen. And worry. And respond. To us.

    Or we can pretend a bit longer that we are who we are not … and search for words to explain an ugly future to our children.

    Now is the moment. We can be bold … or we can go home.

    Denis Ian

  2. Beth Novick permalink


  3. So, you suggest a massive walk-out of students, teachers and administrators?

    • Walkouts would garner media coverage, which is what the opt-out movt needs– steady publicity.

  4. Reblogged this on starmistriel and commented:
    Why the US Dept. of Education needs to be shut down and allow the states and local governments to serve their People without BIG US Government intrusion!!!!

  5. EXCELLENT explanation of the current Title I game. This money has been manipulated and misdirected in so many ways, over the past fourteen years, that often it appears to undermine poor students rather than aid them.

Trackbacks & Pingbacks

  1. Democratic Congressional Leaders Applaud Bush-Era Punitive Accountability | Diane Ravitch's blog
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  3. The ESSA and opting out of the SBAC | Seattle Education
  4. It’s time to restructure the US Department of Education | Seattle Education

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