New Hampshire school districts administer the statewide assessment from mid March through June. Currently they administer the Smarter Balanced Assessment (SBA) to students in grades 3 to 8, and use the SAT for 11th graders. The SBA was designed to evaluate the performance of schools and districts, to provide a more apples-to-apples comparison across districts and states. The statewide assessments are also required as part of the state Department of Education’s waiver with the US DOE. Although schools are required to administer the exams, students cannot be compelled to participate.
There are many reasons why parents may not wish their children to participate in the statewide assessments including privacy concerns, the tests have no proven academic or diagnostic value, results are released months after children have moved to another class, loss of instructional time to test prep and testing, and the stress and pressures of testing.
There are several existing NH policies, federal law, and US Supreme Court rulings that support parents’ rights to refuse their children’s participation in assessments.
1) 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.”
2) The 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.”
3) 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.
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.
4) 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.
Parents have the right to refuse their children’s participation in any testing, including the statewide assessment. The critical word is refuse, not opt-out.
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. 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. You may wish to also send copies to friendly state Representatives and your Senator. Parents typically have less push-back from administrators when state legislators are also informed.
Some districts including Nashua, Manchester, and Keene have been cooperative with parents. Some prefer students to be out when testing occurs, so parents may need to bring their children to school at a different time on testing days. Other schools arrange supervised quiet time for independent reading or study hall.
Unfortunately, other 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.
Although officials may claim otherwise, schools are not penalized for non-participating students. We have already seen scores adjusted for students who did not take the 2015 Smarter Balanced Assessment; 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 counting as zeroes.
The NH DOE and superintendents have 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 coerce 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.
There is a bill, HB 276 (2017), moving through the legislature that explicitly empowers parents to refuse their children’s participation in statewide assessments. It already passed the NH House of Representatives and is scheduled for a public hearing with the Senate Education Committee on Tuesday, March 28th at 9:40am in room 103 of the Legislative Office Building. Please contact the committee members asking them to support the bill. To contact the Senate Education Committee, email or call them directly. Members of senate committees do not have a shared email address.
2022 Legislation of Interest
|Patrick Long, Linda Massimilla, Dan Wolf, Bonnie Ham, James Allard
|requiring parents of public school students to submit a survey when electing an education freedom account
|Sherry Frost, Stephen Woodcock, Jaci Grote, Sue Mullen
|relative to the state board of education rules for credit for alternative, extended learning, and work-based programs
|requiring a performance audit of the department of education, education freedom account program
|Jason Osborne, Kevin Avard, Michael Moffett, Howard Pearl, Bob Greene, Michael Yakubovich, Judy Aron, Gregg Hough, Aidan Ankarberg
|relative to driver education
|David Watters, John Reagan, Rick Ladd, Glenn Cordelli, Mark McLean, James Spillane, Michael Moffett, Kevin Verville
|relative to the definition of a child with a disability for purposes of special education
|Sharon Carson, Kenneth Weyler, Jeanine Notter, Ruth Ward, Robert Healey
|relative to notice to a chartered public school of a special education services meeting
|relative to the provision of special education services by chartered public schools
|Carol McGuire, Jason Osborne, Gregory Hill, Michael Moffett, Alicia Lekas, Tony Piemonte, Deborah Hobson
|relative to eligibility for the education tax credit
|Marjorie Smith, Paul Berch, Mel Myler, Linda Tanner, Mary Heath, Patricia Cornell, Jay Kahn, Stephen Woodcock, Arthur Ellison, Sue Mullen, Suzanne Prentiss
|relative to the source of funds for education freedom accounts
|relative to special education services for children in chartered public schools
|requiring the department of education to administer the education freedom account program
|relative to verification of eligible students under the education freedom account program
|relative to funds of the education freedom account program after termination of a student's participation and responsibilities of the scholarship organization
|relative to student participation in the education freedom accounts program and relative to administration of the program
|Robert Renny Cushing, Marjorie Porter, Mary Heath, Arthur Ellison, Sue Mullen
|relative to participation in the education freedom accounts program by students with disabilities
|relative to requirements for home education students
|relative to driver education and the driver training fund
|Marjorie Porter, Mel Myler, Mary Heath, Patricia Cornell, Stephen Woodcock, Arthur Ellison, Catherin Rombeau
|relative to education service providers under the education freedom accounts program
|relative to unique pupil identification for pupils in the education freedom accounts program
|relative to eligibility criteria for education freedom accounts
|relative to misuse of education freedom account funds
|Marjorie Smith, Richard Ames
|relative to liability as taxable income of education freedom account payments
|relative to transfers of adequate education grants under the education freedom account program
|repealing the education freedom account program
|authorizing any taxpayer to initiate a private cause of action for misuse or fraud involving education freedom account funds
|limiting education freedom account funding to budgeted amounts
|requiring the scholarship organization to refer suspected cases of misuse of funds or fraud in the education freedom account program to the attorney general
|Robert Renny Cushing, Mel Myler, Mary Heath, Arthur Ellison, Sue Mullen
|relative to record of educational attainment under the educational freedom account program
|Marjorie Porter, Suzanne Vail, Mary Heath, Constance Van Houten, Sue Mullen
|relative to education service providers under the education freedom account program
|relative to student eligibility under the education freedom account program
|Kenneth Weyler, Rick Ladd, Glenn Cordelli
|establishing an education freedom account program administrator in the department of education and making an appropriation therefor
|Mel Myler, Stephen Woodcock, Arthur Ellison, Sue Mullen
|prohibiting the department of education and the state board of education from directing or limiting school instructional options, such as remote learning
|relative to dual and concurrent enrollment for career technical education center students
|relative to the authority to offer multiple education instruction options
|Lou D'Allesandro, David Watters, Donna Soucy, Kevin Cavanaugh, Tom Sherman, Cindy Rosenwald, Suzanne Prentiss, Rebecca Whitley, Rebecca Perkins Kwoka
|repealing the education freedom account program
|Lou D'Allesandro, David Watters, Donna Soucy, Marjorie Smith, Mel Myler, David Luneau, Jay Kahn, Kevin Cavanaugh, Cindy Rosenwald, Suzanne Prentiss, Rebecca Whitley, Rebecca Perkins Kwoka
|relative to participation in the education freedom account program
Refusing is a School Choice Issue
Common Core (aka College and Career Readiness Standards) is a threat to school choice because the aligned high-stakes tests can readily drive standards and curriculum choices for public (including charters) and private schools as well as home education programs. Given that it has the potential for more standardization and uniformity of educational options, resisting it and the aligned testing, and informing families of Common Core’s short-comings are critical to protecting school choice. It is also a way to shift the accountability away from testing to parents.