Senate Gives Parents’ Rights Bill a Chilly Welcome

Earlier today the Senate Education Committee held a public hearing for HB 1338, a bill that recognizes parents’ rights to refuse their children’s participation in the statewide assessments. It passed the House in a roll call vote in late March. The bill is very similar to last year’s HB 603 that passed the House and Senate, but was vetoed by Governor Hassan. This time around, the bill received a chilly welcome in the committee.

Sen. Nancy Stiles asked what would comprise an “appropriate alternative activity” and whether it would be burdensome. Our submitted testimony addressed this issue, as well as others, and is included below.

The state Department of Education representative, Ann McDonald, said that in order to hold schools accountable, they must have at least 95% participation. She repeated the claim that schools risk funding if they do not meet that threshold although not a single school or district across the country has lost federal funds for low participation rates. It is also ironic that the feds and state want greater accountability, but they turn it upside down. Instead of their accountability to taxpayers, they mandate compliance as a mechanism to “guarantee an adequate education” and to fulfill federal waiver promises made by our state DOE.

Sen. David Watters asked the DOE representative about the Every Student Succeeds Act (ESSA)  position on parental refusals. Although the law was passed in December 2015, a preliminary explanation (or rules) aren’t expected until May, with the final anticipated sometime between October and December. The senator seemed to be setting up justification to send the bill to interim study (considered a “soft kill”) while states await further details on the ESSA.

The committee may exec the bill at any time, so the public is urged to contact them as soon as possible, asking them to give HB 1338 an Ought to Pass recommendation. Their decision will be very influential on the entire Senate’s final vote.

John Reagan  — District 17, Deerfield

Nancy Stiles — District 24, Hampton

Kevin Avard — District 12, Nashua

Molly Kelly — District 10, Keene

David Watters — District 4, Dover

For more information on HB 1338, please read the following:
HB 1338, Respecting Parents’ Rights
Districts are Bullies


To:          Senate Education Committee
From:    Michelle Levell, representing School Choice for NH and NH Liberty Alliance
Re:         HB 1338, relative to student exemption from the statewide assessment.

Dear Honorable members of the Senate Education Committee,

HB 1338 is 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 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.

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. The 2016 testing season started a few weeks ago. Just before it started 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, 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 last year 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.

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. And, as already mentioned, the new ESSA explicitly allows for non-participation.

Please give HB 1338 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.