NYSAPE REsponse to USDOE on Penalties for Opt out – by jeanette deutermann, founder – long island opt & nysape

January 5, 201!s. Ann “#alen, Senior Ad$isor %.S. &epart’ent of Education(00 !aryland A$enue, S”“as#ington, &) 20201&ear !s. “#alen * %S &epart’ent of Education,
Please allow us, the parents, to respond to your latest threats towards our school districts, school officials, educators, and children. Every school district and school official in NY offered the State assessments to EVERY single student. Our districts are in !”” compliance of the law. #t is we, the parents, who have refused to comply with your regulation. Since this letter is regarding our $parent% actions to protect our children, we felt that this letter should instead &e addressed and responded to &y we, the parents of New Yor’ State.
+efore t#e spring 201 test ad’inistration,  -ould lie to tae t#is opportunity to re’ind you of ey assess’ent re/uire’ents t#at eist under t#e Ele’entary and Secondary Education Act of 15, as a’ended by t#e No )#ild eft +e#ind Act of 2001 3ESEA4. #ese re/uire’ents -ill re’ain in place for t#e 20156201 sc#ool year, and si’ilar re/uire’ents are included in t#e recently signed reaut#ori7ation of t#e ESEA, no-n as t#e E$ery Student Succeeds Act 3ESSA4.A #ig#8/uality, annual state-ide assess’ent syste’ t#at includes all students is essential to pro$ide localleaders, educators, and parents -it# t#e infor’ation t#ey need to identify t#e resources and supports t#atare necessary to #elp e$ery student succeed in sc#ool and in a career.
(his was never designed as a system of support, &ut rather a system of punishment. (his has &ecome the fatal flaw of education reforms.
Suc# a syste’ also #ig#lig#ts t#e need for continued -or to-ard e/uity and closing ac#ie$e’ent gaps a’ong subgroups of #istorically underser$ed students by #olding all students to t#e sa’e #ig# epectations.Section 11113b43941 of t#e ESEA re/uires eac# State educational agency 3SEA4 t#at recei$es funds under itle , Part A of t#e ESEA to i’ple’ent in eac# local educational agency 3EA4 in t#e State a set of #ig#8/uality acade’ic assess’ents t#at includes, at a ‘ini’u’, assess’ents in ‘at#e’atics and reading:language arts ad’inistered in eac# of grades 9 t#roug# ; and not less t#an once during grades 10t#roug# 12< and in science not less t#an once during grades 9 t#roug# 5, grades  t#roug# , and grades 10 t#roug# 12. =urt#er’ore, ESEA sections 11113b43943)43i4 and 3i434 re/uire State assess’ents to >be 1
t#e sa’e acade’ic assess’ents used to ‘easure t#e ac#ie$e’ent of all c#ildren? and >pro$ide for t#e  participation in suc# assess’ents of all students? 3e’p#asis added4. #ese re/uire’ents do not allo- students to be ecluded fro’ state-ide assess’ents. @at#er, t#ey set out t#e legal rule t#at all students int#e tested grades ‘ust be assessed.
School districts must provide and administer the assessments. (hey have a&solutely met that re)uirement. No law can force a child to ta’e the assessments or to pic’ up a pencil. or every regulation or rule implemented to force compliance, parents have found loopholes, wor’arounds, and ways to ‘eep their children away from these assessments, and will continue to do so for the sa’e of our children. No rule, law, financial &ri&e, or threat would &e worth sacrificing our children*s well+&eing.
n applying for funds under itle , Part A of t#e ESEA, your State assured t#at it -ould ad’inister t#e itle , Part A progra’ in accordance -it# all applicable statutes and regulations 3see ESEA section 90(3a43144. Si’ilarly, eac# EA t#at recei$es itle , Part A funds in your State assured t#at it -ould ad’inister its itle , Part A progra’ in accordance -it# all applicable statutes and regulations 3see ESEA section 903a43144. Please note t#at t#e portions of t#e ESEA referenced abo$e #a$e not been -ai$ed for States, including States t#at recei$ed ESEA fleibility.
One only has to go &ac’ to the start of the - participation rule tied to (itle / funding to understand its intentions. #t was meant to prevent school districts from purposely leaving low performing children or groups of children out of the testing pool in an attempt to 0cheat0 the system and &oost scores. #t would &e very interesting to witness a court case of the !S1OE trying to argue that this is what districts were doing when 234,444 parents did not allow their children to participate.
$er t#e last se$eral ‘ont#s, ‘any States #a$e released 201(62015 State assess’ent data. A fe- States
 $had parents that instructed their children not to ta’e the assessments%
did not assess at least 5  percent of students in t#e >all students? group or indi$idual ESEA subgroup3s4state-ide. Additionally, inso’e states, EAs -it#in so’e States did not assess at least 5 percent of t#eir students. E& #as ased eac# of t#ese States to sub’it infor’ation on t#e steps it is taing to i”ediately address t#is proble’ and ‘eet its assess’ent obligations under t#e ESEA. Eac# SEA -as pro$ided 90 days to sub’it its response to t#e ffice of State Support 3SS4, and E& is currently re$ie-ing infor’ation sub’itted by t#ese SEAs. As additional States release assess’ent results, E& -ill re/uest suc# infor’ation if t#e State or its EAs do not assess at least 5 percent of t#eir students. f a StateBs response does not ade/uately address t#is proble’ and ‘eet t#e StateBs assess’ent obligations under t#e ESEA, E& ‘ay tae enforce’ent action.
1on*t &e surprised if these attempts at coercing states and districts to disregard parental rights leads to increasing our resolve and &oosting our opt+out num&ers. (he E1 threat of 0enforcement action0 will only serve to dou&le our efforts to protect our parental rights and our children.
n eac# re/uest for infor’ation, t#e SEA -as ased to de’onstrate t#at it #as taen or -ill tae appropriate actions to enforce t#e re/uire’ents of t#e ESEA, describe #o- suc# actions -ill specificallyaddress t#e proble’ t#at occurred in 201(62015, and ensure t#at all students -ill participate in state-ide assess’ents during t#e 20156201 sc#ool year and eac# year t#ereafter, recogni7ing t#at t#e etent of t#e non8participation and ot#er rele$ant factors s#ould infor’ t#e SEABs actions.
(he fact that you are descri&ing the country+wide history ma’ing actions of parents rising up to protect their children, their pu&lic schools, and their communities as 0the pro&lem0, shows a gross
lac’ of understanding on your part. Your new &oss, 5r. 6ing, has a very intimate ‘nowledge as to the resolve and tenacity of the parents of NY. $7s a matter of fact we, along with numerous other educational organi8ations in NY, called for his resignation and got 9ust that. (he fact that he 0failed up0 is a discussion for another letter% :e may &e a&le to provide you with the insight you lac’.
So’e ea’ples of actions an SEA could tae, alone or in co’bination, includeC
o-ering an EABs or sc#oolBs rating in t#e StateBs accountability syste’ or a’ending t#e syste’ to flag an EA or sc#ool -it# a lo- participation rate.
7mending the accounta&ility system would re)uire legislative action or action &y the Regents. #f they agreed to commit political suicide they would need to flag over 4 of the districts in NYS, essentially ma’ing this 0flag0 useless. (hese 0flags0 would &ecome a status sym&ol. (hose withoutone will &e singled out as a test+&ased facility.
)ounting non8participants as non8proficient in accountability deter’inations.
(his would &e of no conse)uence to students. Our legislature has already insured that these scores mean nothing for our children. ;y NYS law, these scores cannot &e used as 7NY sole determining factor in 7NY placement decisions. Our teachers cannot &e rated on these scores for four years as well. <e have essentially made state assessments completely irrelevant in NYS. 7s for school districts, counting 24= of students as non+proficient would further ma’e the data from state assessments useless to interpret or use for any relevant purposes. #n addition, this action would essentially ma’e the data from students (76#N> the assessments e)ually invalid. (his option would &oost our argument that these assessments are of no use, even for data purposes.
@e/uiring an EA or sc#ool to de$elop an i’pro$e’ent plan, or tae correcti$e actions to ensuret#at all students participate in t#e state-ide assess’ents in t#e future, and pro$iding t#e SEABs  process to re$ie- and ‘onitor suc# plans.
Parents do not as’ for permission to refuse their children to participate in harmful state assessments. Schools that fight against parents asserting their rights have e)ually high opt out num&ers as schools who honor that right. <hat e?actly would this improvement plan loo’ li’e@ Aontracts with PR firms to mar’et the common core assessment product@ Perhaps meetings to convince parents that /4 hour long tests are good for their children while serving free dinner and drin’s@ Paid appearances from pro+reform cele&rities@ 5ar’eting campaigns will not convince parents to participate. Every educator, school official, legislator, Regent, and even those in your office have called out these assessments for what they areB gar&age. i?ing the EN(#RE pro&lem isthe only option to convince parents to opt &ac’ into this system.
@e/uiring an EA or sc#ool to i’ple’ent additional inter$entions aligned -it# t#e reason for lo- student participation, e$en if t#e StateBs accountability syste’ does not officially designate sc#ools for suc# inter$entions.
or every 0intervention0 we will implement – more to assure parents are not misinformed &y suchmar’eting strategies. (hese strategies are futile and a waste of ta?payer money. :owever, this again is irrelevant to parents opting their children out of assessments.
&esignating an EA or sc#ool as >#ig# ris,? or a co’parable status under t#e StateBs la-s and regulations, -it# a clear eplanation for t#e i’plications of suc# a designation. 9
7 0high ris’0 of what e?actly@ 0:igh ris’0 of a thoughtful, child centered education@ 0:igh ris’0of community mem&ers thin’ing they are in control of their local districts@ 0:igh ris’0 of students &eing considered and considering themselves more than a num&er@ 7gain, since over 4 of our districts in NYS would &e flagged and given a 0high ris’0 status, it essentially negates this as a conse)uence. 7s stated &efore, often high percentages of student refusals have &ecome a status sym&ol and an indication of a community that puts children &efore all else.
“it##olding or directing use of State aid and:or funding fleibility.
(here is no current law or regulation allowing the State to withhold funds from a district &ased onparticipation rates. NY is currently under a waiver from NA”; participation conse)uences. (his waiver is fully in effect until 7ugust 24/C when NA”; is replaced. (his year there are no regulations or laws which would allow funding to &e withheld from pu&lic school districts even in the case of another significant year of non+participation in state assessments. You simply do not have the authority or more importantly the support to change funding formulas for districts. Yourfriend and colleague, NYSE1*s Aommissioner Elia, who upon &eing fired from her previous position 0failed up0 as well, does not have that authority either. 7lthough the Aommissioner may want to strip funding from all of the districts that honor parental rights and spea’ out against your shared reform policies, than’fully our school funding formulas are not &ased on revenge or who the commissioner doesDdoes not personally li’e.
n addition, an SEA #as a range of ot#er enforce’ent actions at its disposal -it# respect to nonco’pliance by an EA, including placing a condition on an EABs itle , Part A grant or -it##olding an EABs itle , Part A funds 3see, e.g., section ((0 of t#e Deneral Education Pro$isions Act4.
“ess than 2 of the entire NY pu&lic school &udget comes from the ederal >overnment in the form of title / money, with most district &udgets comprising less than / of their funds from title / money. (he &asic principles of (itle / state that schools with large concentrations of low+income students will receive supplemental funds to assist in meeting students* educational goals. Only districts with more than 34 impoverished students can use title / funds for schoolwide programs. 1istricts with less than 34 can only use these funds for specifically targeted students. Essentially, the 1epartment of Education is laying the &lame s)uarely at the feet of our most vulnera&le student population.1escription of students &enefiting from title / funds that the ederal >overnment is targeting withthreatsB+ migrant students+ students with limited English proficiency+ homeless students+ students with disa&ilities+ neglected students+ delin)uent students+ at+ris’ students + any student in need.
(itle / money must &e spent on services for children in poverty such asB+(ransportation to and from homeless shelters if a student is displaced, and transportation to afterschool programs, and summer school programs+ &rea’fast programs+ after school programs + teacher aides+ technology for high need students+ &a&ysitting costsDchildcare for parent involvement activities+ travel e?penses for parent involvement activities + speciali8ed assessments
f a State -it# participation rates belo- 5 in t#e 201(62015 sc#ool year fails to assess at least 5 of its students on t#e state-ide assess’ent in t#e 20156201 sc#ool year, E& -ill tae one or ‘ore of t#e follo-ing actionsC 314 -it##old itle , Part A State ad’inistrati$e funds<
(he fact that these students with the highest needs are &eing placed in the crossfire of threats fromthe ederal >overnment is discriminatory and &ullying at &est. Pic’ing on our most vulnera&le children is a sign of a system in a complete state of dysfunction.
324 place t#e StateBs itle , Part A grant on #ig#8ris status and direct t#e State to use a portion of its itle  State ad’inistrati$e funds to address lo- participation rates< or
Parents ‘now e?actly what these state assessments are and are not. (hey are not misinformed, uninformed, or confused. <e ‘now e?actly what is at sta’e and what veiled empty threats are. <e have already fully researched what you can and cannot do to punish our children and their schools, and simply feel that your 0could0 and 0possi&le0 threats are as empty as the promise of school reform. <e choose truth and our children EVERY (#5E.
394 -it##old or redirect itle F State assess’ent funds.=or all States, E& -ill consider t#e appropriate action to tae for any State t#at does not assess at least 5 percent of its students in t#e 20156201 sc#ool year G o$erall and for eac# subgroup of students anda’ong its EAs. o deter’ine -#at action is ‘ost appropriate, E& -ill consider SEA and EA  participation rate data for t#e 20156201 sc#ool year, as -ell as action t#e SEA #as taen -it# respect toany EA nonco’pliance -it# t#e assess’ent re/uire’ents of t#e ESEA.
Aonsider thisB we will not comply. <E will consider appropriate action against any state or federal official that attempts toB+ coerce parents and students into compliance through lies and misinformation+ use threats against our most vulnera&le children to force participation+ claim you have 9urisdiction over funds that you simply do not have control over+ mista’e our actions as unintentional
“e loo for-ard to -oring -it# you to ensure t#at all students participate in state-ide assess’ents during t#e 20156201 sc#ool year and eac# year t#ereafter, and in supporting i’ple’entation of t#e E$ery Student Succeeds Act, -#ic# includes a ne- focus on auditing and reducing unnecessary State and local assess’ents and pro$iding parents and fa’ilies -it# better infor’ation about re/uired testing. 5
<e loo’ forward to educating you on what our parental rights are. (hrough your acceptance of these rights, we can return to a full and enriching partnership in the education of all children.
Additionally, States ‘ay find ot#er useful infor’ation regarding assess’ents in t#e Ad’inistrationHs esting Action Plan, released in ctober 2015. As t#e Plan describes in greater detail, all tests s#ould be -ort# taing, offer students an opportunity to learn -#ile t#ey tae t#e’, and allo- t#e’ to apply real8-orld sills to ‘eaningful proble’s. ests ‘ust acco”odate t#e needs of all students and ‘easure student success in a fair, $alid, and reliable -ay. n t#e co’ing ‘ont#s, E& -ill release additional resources and guidance to support your efforts to eli’inate duplicati$e local or State assess’ents and continue to de$elop ne- and inno$ati$e approac#es to using assess’ents effecti$ely to support and infor’ classroo’ instruction.
<e will assume that while our state assessments offer none of the a&ove criteria, you are in agreement with our current plan of action.
Please do not #esitate to contact your StateBs progra’ officer in t#e ffice of State Support if you need additional infor’ation or clarification. #an you for your continued co”it’ent to en#ancing education for all of your StateBs students.
You*re very welcome. (he parents of NY and the rest of the country that have played an active role of resistance for the purpose of improving education in our country accept your gratitude. Please don*t hesitate to contact us if you are confused &y our determination or disregard to threatsthat were intended to cause panic and compliance. <e will &e happy to clarify.
Sincerely,Jeanette &euter’ann, =ounder 
 Long Island Opt Out  NYS Allies for Public Education
)cC!aryEllen Elia, NYS Education )o”issioner  NYS +oard of @egentsDo$ernor Andre- )uo’oJere Ioc#’an, NYS Secretary of Education NYS egislature
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