ESSA and Opt Outs

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Diane and Lamar Part Four
This is Part Four in a nine part series of a conversation between NPE Action President Diane Ravitch and Senator Lamar Alexander’s Chief of Staff, David P. Cleary. You can access the entire series here.



What does the law say about parent opt outs from testing? Are states allowed to withhold funding from schools where the participation rate is less than 95%?



Under ESSA, in section 1111(b)(2)(K) of the new law, states are allowed, if they choose, to allow parents to opt students out of the federally required 17 tests.

In section 1111(c)(4)(E) of the new law, states are required to ensure that 95 percent of all students participate in the federally required 17 tests.

But, in that same section, the federal requirement is that, as part of the state accountability system, states determine how to take into account—or “factor”—the participation rate of students in determining how to judge the schools within the state. The Secretary, in section 1111(e)(1)(B)(iii)(XI) of the new law, is prohibited from telling a state how that requirement must be factored into the state accountability system. This means that the Secretary cannot say a school must drop a rating in the state accountability system, or be forced to enter into some kind of school improvement, or dictate any solution from Washington. How the 95 percent requirement factors into the state accountability system and the consequences for a school that fails to meet the 95 percent requirement are state decisions.

As under NCLB, the new law allows the Secretary to withhold Title I administrative funds if a state does not measure 95 percent of all students (or meet other requirements of the law).

However, it is up to the state, and not the Secretary, to enforce the 95 percent requirement for schools and determine the consequences for schools who do not meet the 95 percent requirement.



This was a tough issue in the discussions in the Senate and House conference process. We were unable to get agreement to drop the 95 percent participation requirement from NCLB, which we recognize can interfere with opt-out efforts by parents.

We tried to balance the concerns of those who supported the NCLB testing mandates (the civil rights groups, the disability groups, the business community, among others) against the concerns of those who were frustrated with overtesting (parents, teachers, students, and others).

But our primary goal was to allow states, if they choose, to de-emphasize the importance of testing as the only indicator of school accountability. We hope that this will cause states to re-evaluate the number and types of tests that they require students to take, and make better decisions about how important any single test is for school accountability purposes. This, in turn, will help reduce the emphasis placed on testing, and restore to teachers the freedom to teach and students to learn.

It is our hope that as tests and the high stakes associated with an unthinking, punitive accountability system as in NCLB become less significant, the pressure and stresses associated with the tests will diminish, and the time spent on testing and test prep will drop. And states can develop new, more innovative testing systems under the new law, if they choose.

We’ve also clarified within the new law that states can choose to have opt-out policies for all of the tests they administer if they would like. Nothing prohibits them from creating these policies.

States have to take into account what happens to a school if the individual school fails to meet the 95 percent participation requirement within the state accountability system. But this can be very flexible. A state could choose a variety of outcomes—including that test participation has no impact on a school’s identification; or that the school can no longer receive the top rating in the state accountability system; or that the school’s rating must be downgraded a level. A state could also decide to strictly enforce the 95 percent participation requirement. It is up to the state.

As for the Secretary, enforcement of this provision is after the fact, not up front, and not at the school level. This means that a state that fails to meet the 95 percent participation requirement would typically be given a warning, then placed on corrective action where the state and the Secretary work together on a plan to work towards meeting the requirement.

A state can also seek a waiver from the 95 percent testing requirement.