HB 276, Refusing Participation in Statewide Assessments

HB 276, a bill that would explicitly empower parents to refuse their child’s participation in statewide assessments had a public hearing in the House Education Committee on January 17, 2017. Below is the testimony (both written and oral) with links that we supplied to the committee. This is an important school choice bill because parents – not the state – should direct their children’s education. It is also important to empower parents in the opposition to College and Career Readiness Standards (aka Common Core) that reduce educational diversity and options. Additionally, the statewide assessment is not designed as a measurement for individual performance; it was originally created for school district comparisons as well as school and teacher accountability. There is a demonstrated need for this bill and it is consistent with the new federal law, Every Student Succeeds Act, as well as existing parental rights and state DOE policies.

This bill will be exec’d by the committee on Thursday, January 19th at 9:30am. This is when the committee will decide to either support (Ought to Pass) or oppose (Inexpedient to Legislate) the bill, or send it to interim study which is also a way to effectively kill the bill. Their recommendation is very influential when the bill is voted on by the entire House of Representatives. To contact the entire House Education Committee, you may send one email to HouseEducationCommittee@leg.state.nh.us. Brief phone calls are most effective, but personalized emails directed to an individual are also helpful; mention if you are a constituent. Below is a list of the committee members’ emails for an easy copy/paste.

2021 Home Education Enrollment

Participating Agencies20212020201920182017
Public Districts3,8425,8092,9523,0052,865
NH DOE1058431210
Private Schools23821702350
Home education data provided by the NH DOE.



January 17, 2017

To:          House Education Committee

From:    Michelle Levell, School Choice for NH and NH Liberty Alliance

Re:         HB 276, relative to student exemption from the statewide assessment

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 276, relative to student exemption from the statewide assessment.

Two near identical bills passed the House, HB 603 in 2015 and HB 1338 in 2016. 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 would 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.

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.”

b) The state DOE’s annual document titled NH Statewide Assessment State Approved Special Consideration acknowledges 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.”

c) The 2016 Every Student Succeeds Act (ESSA), the renewal of the NCLB and ESEA federal law, specificallyacknowledges 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.

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.

d) 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. 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 (my home town), 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, Manchester, 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.

The Department of Education has previously 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.

Please give HB 276 an Ought to Pass recommendation. There is a demonstrated need and it is consistent with the new federal law as well as existing parental rights and state DOE technical advisories.