Great news! The Senate Education Committee gave HB 1744, a bill that will break the testing stranglehold on our students and teachers, a favorable Ought to Pass recommendation. The bill now advances for a full vote in the Senate when they meet on Thursday, April 19th. See below for more details and contact information.
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 to measure individual performance; it was originally created for school district comparisons as well as school and teacher accountability.
This is the time to contact your senator urging him/her to support the Ought to Pass (OTP) recommendation.
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. 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.
To summarize, the bill is consistent with existing NH DOE policies, the federal Every Student Succeeds Act (ESSA), and US Supreme Court rulings. The federal ESSA law recognizes refusals if state law allows them; this bill will do exactly that. Even the American Federation of Teachers (AFT) acknowledges that parents may refuse their children’s participation in statewide assessments. Unions also oppose using them to evaluate teachers. There is demonstrated need for this bill for those handful of families who wish to refuse the statewide assessment in the best interests of their children. Accountability should be to parents, not politicians. This bill empowers parents to direct their children’s education within the public-school system. Also diminishing the hyper-testing mechanisms of Common Core will encourage educational options and variety.
For information about how to refuse your child’s participation in statewide assessments, read Testing Time.
Brief phone calls are most effective, but personalized emails directed to an individual are also helpful; mention you are a constituent.
2022 Legislation of Interest, Updated
Bill # link Prime Sponsor Additional Sponsors Title
HB 1051 http://www.gencourt.state.nh.us/lsr_search/billText.aspx?id=1197&type=4 Linda Tanner 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
HB 1074 http://www.gencourt.state.nh.us/lsr_search/billText.aspx?id=1265&type=4 Maureen Mooney Sharon Carson, Kenneth Weyler, Jeanine Notter, Ruth Ward, Robert Healey relative to notice to a chartered public school of a special education services meeting
HB 1113 http://www.gencourt.state.nh.us/lsr_search/billText.aspx?id=1927&type=4 Marjorie Porter 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
HB 1114 http://www.gencourt.state.nh.us/lsr_search/billText.aspx?id=1905&type=4 Patricia Cornell Marjorie Porter, Suzanne Vail, Mary Heath, Constance Van Houten, Sue Mullen relative to education service providers under the education freedom account program
HB 1115 http://www.gencourt.state.nh.us/lsr_search/billText.aspx?id=1904&type=4 Patricia Cornell Robert Renny Cushing, Mel Myler, Mary Heath, Arthur Ellison, Sue Mullen relative to record of educational attainment under the educational freedom account program
HB 1120 http://www.gencourt.state.nh.us/lsr_search/billText.aspx?id=1832&type=4 Sue Mullen 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
HB 1135 http://www.gencourt.state.nh.us/lsr_search/billText.aspx?id=1238&type=4 Sallie Fellows Richard Ames, Thomas Schamberg, Linda Tanner, Suzanne Vail, Mary Heath, Suzanne Prentiss, Mark Paige requiring a performance audit of the department of education, education freedom account program
HB 1141 http://www.gencourt.state.nh.us/lsr_search/billText.aspx?id=1469&type=4 Glenn Cordelli Andrew Renzullo, Kevin Avard, Ruth Ward, Denise Ricciardi relative to special education services for children in chartered public schools
HB 1152 http://www.gencourt.state.nh.us/lsr_search/billText.aspx?id=1504&type=4 Bonnie Ham Dan Wolf, Brodie Deshaies relative to verification of eligible students under the education freedom account program
HB 1208 http://www.gencourt.state.nh.us/lsr_search/billText.aspx?id=1240&type=4 Timothy Lang Jason Osborne, Kevin Avard, Michael Moffett, Howard Pearl, Bob Greene, Michael Yakubovich, Judy Aron, Gregg Hough, Aidan Ankarberg relative to driver education
HB 1283 http://www.gencourt.state.nh.us/lsr_search/billText.aspx?id=1869&type=4 David Luneau Marjorie Smith, Richard Ames relative to liability as taxable income of education freedom account payments
HB 1298 http://www.gencourt.state.nh.us/lsr_search/billText.aspx?id=1435&type=4 Glenn Cordelli Carol McGuire, Jason Osborne, Gregory Hill, Michael Moffett, Alicia Lekas, Tony Piemonte, Deborah Hobson relative to eligibility for the education tax credit
HB 1355 http://www.gencourt.state.nh.us/lsr_search/billText.aspx?id=1875&type=4 David Luneau requiring the scholarship organization to refer suspected cases of misuse of funds or fraud in the education freedom account program to the attorney general
HB 1376 http://www.gencourt.state.nh.us/lsr_search/billText.aspx?id=1612&type=4 Patricia Cornell Robert Renny Cushing, Marjorie Porter, Mary Heath, Arthur Ellison, Sue Mullen relative to participation in the education freedom accounts program by students with disabilities
HB 1428 http://www.gencourt.state.nh.us/lsr_search/billText.aspx?id=1271&type=4 Maureen Mooney Sharon Carson, Kenneth Weyler, Jeanine Notter, Ruth Ward, Robert Healey relative to the provision of special education services by chartered public schools
HB 1513 http://www.gencourt.state.nh.us/lsr_search/billText.aspx?id=1259&type=4 Bill Boyd 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
HB 1516 http://www.gencourt.state.nh.us/lsr_search/billText.aspx?id=1464&type=4 Marjorie Porter 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
HB 1615 http://www.gencourt.state.nh.us/lsr_search/billText.aspx?id=1744&type=4 Susan Almy David Watters, George Sykes relative to driver education and the driver training fund
HB 1627 http://www.gencourt.state.nh.us/lsr_search/billText.aspx?id=1911&type=4 Gregory Hill Kenneth Weyler, Rick Ladd, Glenn Cordelli establishing an education freedom account program administrator in the department of education and making an appropriation therefor
HB 1637 http://www.gencourt.state.nh.us/lsr_search/billText.aspx?id=1140&type=4 Brodie Deshaies 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
HB 1649 http://www.gencourt.state.nh.us/lsr_search/billText.aspx?id=1850&type=4 Linda Tanner Marjorie Porter, Mel Myler, Mary Heath, Stephen Woodcock, Sallie Fellows, Sue Mullen relative to unique pupil identification for pupils in the education freedom accounts program
HB 1663 http://www.gencourt.state.nh.us/lsr_search/billText.aspx?id=1636&type=4 Erica Layon Jeanine Notter, Glenn Cordelli, Kimberly Rice, Michael Moffett, Alilcia Lekas, Hershel Nunez relative to requirements for home education students
HB 1669 http://www.gencourt.state.nh.us/lsr_search/billText.aspx?id=1500&type=4 Bonnie Ham Mel Myler, Dan Wolf, Brodie Deshaies requiring the department of education to administer the education freedom account program
HB 1670 http://www.gencourt.state.nh.us/lsr_search/billText.aspx?id=1509&type=4 Bonnie Ham Dan Wolf, Brodie Deshaies relative to funds of the education freedom account program after termination of a student's participation and responsibilities of the scholarship organization
HB 1672 http://www.gencourt.state.nh.us/lsr_search/billText.aspx?id=1868&type=4 David Luneau Mel Myler relative to misuse of education freedom account funds
HB 1678 http://www.gencourt.state.nh.us/lsr_search/billText.aspx?id=1608&type=4 Erica Layon Michael Moffett, Alicia Lekas, Hershel Nunez relative to student participation in the education freedom accounts program and relative to administration of the program
HB 1683 http://www.gencourt.state.nh.us/lsr_search/billText.aspx?id=1871&type=4 David Luneau Timothy Horrigan, Mel Myler, Connie Lane repealing the education freedom account program
HB 1684 http://www.gencourt.state.nh.us/lsr_search/billText.aspx?id=1873&type=4 David Luneau Mel Myler limiting education freedom account funding to budgeted amounts
SB 235 http://www.gencourt.state.nh.us/lsr_search/billText.aspx?id=2014&type=3 Jay Kahn David Watters, Donna Soucy, Richard Ames, Mel Myler, Mary Heath, David Luneau, Dan Wolf, Tom Sherman, Cindy Rosenwald, Suzanne Prentiss, Rebecca Perkins Kwoka relative to the authority to offer multiple education instruction options
SB 237 http://www.gencourt.state.nh.us/lsr_search/billText.aspx?id=2092&type=3 Tom Sherman 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
SB 421 http://www.gencourt.state.nh.us/lsr_search/billText.aspx?id=1946&type=3 David Watters Lou D'Allesandro, Sharon Carson, John Reagan, Donna Soucy, Rick Ladd, Carol McGuire, Glenn Cordelli, James Gray, Ruth Ward, Bill Ganon, Kevin Cavanaugh, Tom Sherman, Cindy Rosenwald, Erin Hennessey, Suzanne Prentiss, Rebecca Whitley, Rebecca Perkins Kwoka relative to dual and concurrent enrollment for career technical education center students
SB 432 http://www.gencourt.state.nh.us/lsr_search/billText.aspx?id=2071&type=3 Jay Kahn 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