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

June 7, 2018

On May 01, 2018, Utah state superintendent Sydnee Dickson sent this waiver request to Betsy DeVos’ USDOE regarding parental rights to opt their children out of state tests– as protected by state law. The Every Student Succeeds Acts (ESSA) (the latest version of the Elementary and Secondary Education Act of 1965, or ESEA) requires that 95 percent of eligible students participate in state tests in order to qualify for Title I funding.

A primary concern is that scoring opt-out students’ tests as zeroes skews test-based school accountability and potentially misidentifies “low performing” schools– with opt-outs “highest” at charter and virtual schools. Some excerpts:

The waiver request, if granted, would enable the state to maintain one coherent accountability system, allow Utah to more accurately identify schools in need of improvement, and avoid undermining the transparency of our accountability system, including the ability of policymakers, educators, parents, and students to make informed decisions.

Utah policymakers strongly support parents’ rights in directing and overseeing a student’s education. State law authorizes a parent to excuse a student from taking a statewide assessment…. State law also requires the Utah State Board of Education (USBE) to prevent negative impact to a local education agency’s (LEA) or an LEA’s employees through the school accountability system due to parental opt-out….

ESEA section 1111(c)(4)(E) requires that, for the purpose of measuring, calculating, and reporting on the achievement indicator in the school accountability system, a state education agency must include in the denominator the greater of the number of students participating in the assessments or the number equal to 95 percent of all students. This methodology essentially requires states to include non-tested students as zeros, or non-proficient, in the calculation of the achievement indicator for a school when the assessment participation rate of a school is below 95 percent. …

Parental opt-out in Utah is not highly concentrated in Title I schools or among traditionally underserved student groups. Only twelve percent of the schools with an opt-out rate above five percent are Title I schools (about one-third of our schools overall are Title I schools). Additionally, students who are not economically disadvantaged and not minority are choosing to opt-out of statewide assessments at
higher rates than other student groups….

Utah’s accountability system operates under the theory of action that the accountability indicators accurately measure school performance and therefore: 1) accurately identify gaps in achievement; and 2) accurately identify the lowest performing schools in need of state support and improvement resources. Counting non-tested students as non-proficient in school accountability calculations undermines the validity of the accountability system by inferring that non-tested students are non-proficient. The reality is that the proficiency of the non-tested student is unknown. The intent of the ESSA requirement is presumably to
eliminate perverse incentives to discourage low performing or targeted groups of students from participating in statewide assessments. However, this policy does not translate as intended in a state with liberal parental opt-out laws. …

The accountability system is used to identify low performing schools and direct school improvement resources to the lowest performing five percent of schools in the state, with the intention of advancing student academic achievement. Counting non-tested students as non-proficient in school accountability calculations (ESSA methodology) may redirect resources away from schools where students have the lowest proficiency levels and highest academic needs to the schools with high opt-out rates. Charter schools and online schools in Utah would be disproportionately impacted by applying this methodology because opt-out rates are highest in these educational settings.

USDOE said nothing doing. From USDOE’s waiver denial letter to Dickson, signed by “principal deputy assistant secretary” Jason Botel. The heart of Botel’s reasoning is as follows:

At the core of the ESEA are the requirements that each state that receives Title I, Part A funds adopt challenging academic standards and aligned academic assessments that the State administers to all public students in the State. These provisions ensure that a State holds all students to the same State-determined challenging academic standards and annually measures whether students have learned the content those standards demand. The State assessments provide invaluable information to parents…

Let me stop there.

It’s the parents who are choosing to opt their children out of the tests.

USDOE is led by a “parental empowerment” zealot, Betsy DeVos. However, her parental choice stops short of parents’ choice to forego state tests.

DeVos also frequently defaults to “states’ rights” when pitching school choice (or when simply dodging confrontation about her preference for corporate freedom over student protections, for example).

Perhaps it’s unfair of me to pursue DeVos over USDOE’s denial of Utah’s request for waiver. ESSA was drafted to pretend to empower states. From a post I wrote in June 2016:

ESSA is sneakier than the direct, punitive approach of the testing mandate in NCLB (ESSA precursor, No Child Left Behind). 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.

So, in Botel’s response to Dickson, USDOE is telling a state, “If you want Title I funding, you better meet the 95-percent testing threshold.”

I don’t think any federal funding will be lost by states without that 95 percent this year; according to ESSA, those states will be allowed to offer a remediation plan to get that testing participation up.

In other words, the federal government expects states to even *remediate* their state laws and local policies ensuring a parent’s right to opt out of ESSA-mandated state tests.

Parental empowerment hypocrisy, as I noted 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.

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,” but this only puts states, districts, or schools at the mercy of the US secretary of education.

No mercy for Utah.

No surprise to me.

getschooled test


Want to read about the history of charter schools and vouchers?

School Choice: The End of Public Education? 

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Schneider is a southern Louisiana native, career teacher, trained researcher, and author of two other books: A Chronicle of Echoes: Who’s Who In the Implosion of American Public Education and Common Core Dilemma: Who Owns Our Schools?. You should buy these books. They’re great. No, really.

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  1. Jill Reifschneider permalink

    Excellent article. Thank you.

  2. Laura H. Chapman permalink

    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,” but this only puts states, districts, or schools at the mercy of the US secretary of education.

    I hope to live to see ESSA dumped, and Devos out of office. The shell game is set up so testing is the weapon of “math destruction” as Cathy O’Neal puts it.

Trackbacks & Pingbacks

  1. Mercedes Schneider: DeVos Denies Utal Parents their Right to Opt Out | Diane Ravitch's blog
  2. Utah Asked USDOE for ESSA Testing Waiver to Honor Parents’ Rights; USDOE Said (Wait for It…) No. — deutsch29 – Nonpartisan Education Group

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