Children are More Than Test Scores

The House Education Committee recently held a public hearing on HB 1744, a bill that would empower parents with the ability to refuse their children’s participation in statewide assessments. No one spoke against the bill. The committee has not voted on it yet, but may soon. There is still time to contact committee members; their email is

HB 1744 is an important bill for educational options for several reasons. First, it empowers parents to direct their children’s education within the public-school system. Additionally, critics of educational options often claim that private schools and homeschoolers don’t provide an “adequate education,” but all that means for public schools is that they administer an assessment – it doesn’t specify achievement levels – and track graduation rates. Performance of public schools is also relevant when school choice opponents criticize options as not academically serving students, as it was stated in the Attorney General’s argument against Croydon’s choice program. Testing is also part of the discussion regarding homeschool accountability and regulations because homeschoolers are held to a higher standard and may face more severe consequences. Finally, diminishing the hyper-testing mechanisms of Common Core will encourage educational options and variety. Families do not surrender their ability to direct their children’s education at the schoolhouse steps. Accountability should be to families, not politicians.

We testified in support of the bill and share our remarks below.

For more information about HB 1744, read Break the Testing Stranglehold. To refuse your child’s participation in the statewide assessment, information and sample letters are available at Testing Time. Additional articles about testing can be found at Opt Out NH.

January 18, 2018

To: House Education Committee

From: Michelle Levell, School Choice for NH

Re: HB 1744, authorizing a parent to exempt his or her child from participating in the statewide assessment program

My name is Michelle Levell and I am the Director of School Choice for NH, a coalition of concerned citizens and leaders that advocates for educational options in the Granite State. I submit this testimony in support of HB 1744, authorizing a parent to exempt his or her child from participating in the statewide assessment program.

Three near identical bills passed the House, HB 603 in 2015, HB 1338 in 2016, and HB 276 in 2017. These bills are in response to increasing controversy about the statewide assessments and more parents not wanting their children to participate in them. This bill will not allow students or school districts to be penalized for a lower participation rate. While state law requires districts to administer the statewide assessment, this bill acknowledges parents’ rights to direct their children’s education which is consistent with several existing NH policies and US Supreme Court rulings.

a). The state Department of Education’s technical advisory dated January 13, 2015 (page 2) reads,

Although RSA 193-C-6 requires all public school students to participate in the statewide assessment (one assessment in English language arts, mathematics and science), there are no laws in the State of New Hampshire or rules at the New Hampshire Department of Education that would penalize a student for not participating in the statewide assessment. Additionally, the same is true if a parent determined that they would not allow their child to participate. However, the district will incur a lower participation rate, which is reported to the public.

b). The state DOE’s annual document titled Statewide Assessment Exemptions Request for State Approved Special Considerations, School Year 2016-2017, acknowledges that parental refusals are beyond their control. Parental refusals are not approved reasons for non-participation, but have always been accepted.

State assessment policies place a great deal of responsibility on school districts to include all students. Districts must juggle state requirements, student needs, and parents’ wishes. Despite a school district’s best efforts, situations will arise that prohibit the inclusion of every student. Extended absence, family vacations, significant medical and emotional issues, and parent refusals are but a few of the issues that are not entirely within the school district’s control.

c). The 2016 Every Student Succeeds Act (ESSA), the renewal of the NCLB and ESEA federal law, specifically acknowledges parents’ rights to refuse their children’s participation in the statewide assessments. In section 1111(e)(2) it says,

(A) IN GENERAL.— At the beginning of each school year, a local educational agency that receives funds under this part shall notify the parents of each student attending any school receiving funds under this part that the parents may request, and the local educational agency will provide the parents on request (and in a timely manner), information regarding any State or local educational agency policy regarding student participation in any assessments mandated by section 1111(b)(2) and by the State or local educational agency, which shall include a policy, procedure, or parental right to opt the child out of such assessment, where applicable.

And section 1111(b)(2)(K) reads,

‘(K) RULE OF CONSTRUCTION ON PARENT RIGHTS — 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.

d). Also note that the American Federation of Teachers (AFT) published a FAQ about the Every Student Succeeds Act and in it they explicitly state that parents may refuse their child’s participation in statewide assessments.

Q: Are parents allowed to opt their students out of assessments? A: Parents can opt their students out of any required assessments for any reasons. Every year, school districts are required to notify parents of the state’s testing policies. In addition, if requested, school districts must provide parents information regarding student participation in mandated assessments and the parents’ right to opt their children out of the tests. There will also be less pressure, as states will determine what weight they give student performance in the accountability system. So while 95 percent of students are required to participate in assessments, the stakes will not necessarily be as high.

e). Parents’ rights are not limited by state statute. Supreme Court decisions  have upheld parents’ rights to direct their children’s education in four 14th Amendment cases — the 1923 Meyer v. Nebraska case and the 1925 case of Pierce v. Society of Sisters. Prince v. Massachusetts says that parents, not the state, direct their children’s education and upbringing. Finally, Griswold v. Connecticut declares that the state many not interfere with parents’ rights to direct their children’s education.

Unfortunately, school districts and administrators are getting more aggressive with parents and children who do not participate in the statewide assessments. Examples of intimidation and harassment have been documented across the Granite State. One that was particularly egregious occurred in Alton. (Reference the email below. Shared with permission.) The parent is a former school board member and detailed several instances when her district tried to bully her and her two boys about her refusal in spring 2015. Not only was she threatened with truancy charges if her sons were not present on testing days, she was also told that they would be tested against her wishes if they were present on days the assessment was administered. Additionally, her youngest son was tested explicitly against his IEP agreement. Three additional families were harassed when the spring 2016 testing season began. One district challenged a Goffstown parent’s refusal to the point that one of her sympathetic state representatives had to intervene and only then did the principal relent. In another district, the SAU contacted the non-custodial, out-of-state parent to make it a point of disagreement between the divorced parents that put the child right in the middle. Another school district threatened the same actions with a different set of parents. These are all New Hampshire examples from the 2015 and 2016 assessments. These cases show a demonstrated need for this bill.

If the student does not participate in the assessment, this bill requires schools to provide an alternative educational activity which can be as simple as study hall or free reading time. This is not burdensome or expensive to districts. In fact, many districts — notably Nashua and Keene — offered options to families in 2015 without any problems, and routinely charter schools are able to accommodate non-participating students without it being disruptive to the schools.

This bill also protects the schools from non-participation. We have already seen scores adjusted for students who did not take the 2015 Smarter Balanced Assessment to indicate schools’ scores are not diminished by lower participation. In January 2016 Manchester’s scores were recalculated so that non-participating students’ scores were not included instead of being included as zeroes in the calculations.

Under Commissioner Barry, the Department of Education claimed that the state and districts risk funding if they do not meet the 95% minimum participation rate. This is not accurate. To date not a single district or state has lost federal funding due to low participation rates.  This is a threat by the US DOE to ensure compliance, but it is the last in a long line of possible consequences. The federal DOE exerts tremendous pressure on states to demand cooperation. Eight states — California, Colorado, Minnesota, Oregon, Pennsylvania, Utah, Washington, and Wisconsin — have laws expressly acknowledging parents’ refusals and they have not been sanctioned by the federal DOE. Neither was New York state although very few districts met the required 95% participation in 2015; they had an average of only 80% participation and still did not face a cut in federal funds. The FAQ by the American Federation for Teachers also acknowledges that the stakes will not be so high for states and districts to meet the 95% participation threshold. Nothing in this bill changes the requirement for schools to administer the exam and make it available to all students for compliance with federal waiver conditions. In 2015-2016 New Hampshire 11th graders had the highest percentage of non-participation at 8%, but the overall participation across grade levels was 96%, meeting the participation requirements defined in federal statute and waiver agreements. This is when 11th graders were given the Smarter Balanced Assessment. It was changed to the SAT in spring 2016 and participation levels rose.

Please give HB 1744 an Ought to Pass recommendation. There is a demonstrated need and it is consistent with the new federal law as well as state DOE technical advisories. It is not a hardship to districts to empower the handful of families who wish to refuse the statewide assessment in the best interests of their children.