Districts are Bullies

We are hearing that school districts are applying more pressure to parents who wish to refuse their children’s participation in this year’s statewide assessments. Don’t be bullied! While minors, children are the responsibility of their parents, and as such, parents — not the state — should direct their children’s education in the manner they believe best meets their individual needs. There are many reasons why parents may wish to have their children not participate in the statewide assessment — loss of instructional time, the tests are considered developmentally inappropriate, privacy concerns, and more.

In the last couple weeks one district challenged a 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 parent to make it a point of disagreement between the divorced parents. Another school district threatened the same actions. Other examples of intimidation and harassment have been documented across the Granite State. An Alton parent and former school board member 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.

Supporting Parents’ Rights

While districts are required to administer the statewide assessment, there is no law or mandate that all students must participate, and the state Department of Education admits it in their technical advisory dated January 13, 2015 (see page 2).

“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.

Decisions regarding placements, grade retention and/or teacher evaluations in regards to the statewide assessment or any other assessment required by the school or school district are made at the local level. Supports for students with disabilities must be in accordance with state and federal law; however, a school district may always go above and beyond what is required in law.”

Each year the state Department of Education issues a document titled NH Statewide Assessment State Approved Special Consideration. In it they acknowledge that parental refusals are beyond their control. Parental refusals are not approved reasons for non-participation, but have always been accepted.

“Despite a 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 district’s control.”

Parents have refused participation long before the Smarter Balanced Assessment was implemented. For example, for the 2013-2014 school year, a small but consistent number of students did not participate in the statewide assessment for reasons other than those approved by the state. For that year, the latest one available on the NH DOE’s website, 558 students did not participate in the Science assessment, 847 missed the reading assessment, 883 skipped the math test, and 723 did not participate in the writing assessment. This is when the state still administered the NECAP exams, so clearly this is not a new situation or limited to the Smarter Balanced Assessment.

While non-compliant students count against the district and school for participation levels, they do not impact test scores. In fact, Manchester incorrectly included scores as zeroes for their non-participating students, and they were recalculated a couple months later.

Districts will claim that they and the state risk losing federal funding. However, no district or state has lost money due to lower than 95% 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. It is critical to realize that the NH DOE receives 85% of their funding from the federal government, so it is not surprising that they would want to carry out those instructions. 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.

Also the new 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.

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.

Districts also claim that the statewide assessment provides meaningful information for teachers about the students’ performance. In their 2014 FAQ about the Smarter Balanced Assessment the NH DOE claims that the use of computerized adaptive testing would provide faster results. If that is true, then why were the spring 2015 results not released until mid November when the students had already moved on to another grade, classes, and teachers? So how exactly is the assessment benefiting students and teachers? These assessments are widely seen as providing no academic or diagnostic value.

Additionally, if the statewide assessment is supposed to provide meaningful information about districts and schools’ performances, why are the scores generally dismal across the state? If we examine the statewide assessment scores for 2015, we find that only 58% of NH students across all tested grade levels are Level 3 or better in English Language Arts. For mathematics, the scores are even lower at only 46%. That means that not quite 3 out of 5 students are at Level 3 or better in English and less than half are in math. Doesn’t that indicate that schools should consider devoting more time to instruction instead of testing?

It is also paradoxical that while the state and districts are pressuring compliance with the Smarter Balanced Assessment participation, the NH DOE is developing an alternative. The experimental and integrated assessment program, called PACE, is already being piloted in eight districts as of the 2015-2016 school year — Sanborn Regional, Souhegan, Epping, Rochester, Concord, Pittsfield, Seacoast Charter School, and Manchester’s Parker Varney Elementary School. The state intends to double this number each year until it is in use across the state. The PACE program would effectively eliminate participation refusals because assessments are integrated into the regular classroom activities. Why is the state pushing so hard for an assessment program that they intend to replace?

Finally, the state is accountable to taxpayers and parents, not the other way around. Statewide testing is part of the state’s accountability mechanism to “guarantee an adequate education” and fulfill federal ESSA and ESEA waiver requirements. However the state and districts’ pressure on compliance turns accountability on its head and puts it squarely on the child. It is inappropriate to force students to be a compliance tool to the state and federal governments.

How to Refuse

It is absolutely critical to use the word “refuse” in all correspondence. There is no “opt out” provision in state statute, but districts cannot legally challenge a parent’s refusal for their child to participate in the statewide assessment.

Send copies to the SAU office, principal, and teacher so all levels of the school are aware of your decision. All communication should be in writing to minimize misunderstandings and errors.

Anticipate resistance. As mentioned earlier, SAUs are pressured by the state Department of Education to have full compliance. Prepare your child so they know your wishes and are assured they are doing the right thing. Some districts will put considerable pressure on students, particularly at the high school level. Older students may have to specifically refuse participation themselves. Children should be encouraged to tell parents if school officials try to force them to participate or threaten some kind of punishment.

No specific form or letter is required; however, we posted several examples of refusal letters in March 2015 that can be readily adapted. There is an unaccredited template available here. FairTest.org also has valuable tips and guidance on how to refuse participation.

There are several NH-based organizations and groups that support parents refusing the statewide assessments. Join them to get help along the way, and encourage your friends to also consider refusing their children’s participation. This is how we strengthen our efforts and parents’ rights across the state. This is not a comprehensive list, but these are the largest and most active groups.

School Choice for NH and our Facebook group
Stop Common Core in NH and their Facebook group
Manchester Parents Against Common Core
Opt Out of State Standardized Tests – NH
Getting to the Core for NH Kids

Important Legislation

House Bill 1338, if passed into law, would specifically acknowledge parents’ rights to refuse their children’s participation in the statewide assessment without penalty. The bill is in direct response to NH parents’ objections to the Smarter Balanced Assessment and increased pressure on mandatory testing. This bill would require schools to provide an alternative educational activity which can be as simple as study hall or free reading time. Nothing in the bill changes the requirements for schools to administer the exam and make it available to all students for compliance with federal waiver conditions. However, it does protect students and schools from punishments for non-compliance.

HB 1338 was passed by the NH House of Representatives on March 23rd in a roll call vote. To see how your representatives voted, check here. A “yea” vote means the Rep supported the bill; a “nay” vote means they did not.

This bill will advance to the Senate Education Committee very soon — watch our blog and Facebook page for updates. The committee will hold a public hearing when anyone may provide written or oral testimony to the senate about the bill and is the best opportunity to make an impact. Watch here for more information.

Read More

For more information on how to refuse the Smarter Balanced Assessment, read the following.
Starting the Year Right
Parents Can Refuse

For more information on the statewide assessment, Smarter Balanced Assessment, and the alternative program currently under development, PACE, read the following:
NH’s Smarter Balanced Results
Where are NH’s Scores?
Responding to Critics
PACE — When is an Assessment Not a Test?
PACE: the Next Educational Reform