NYSAPE RESPONSE TO USDOE ON PENALTIES FOR OPT OUT

January 5, 2016
Ms. Ann Whalen, Senior Advisor
U.S. Department of Education
400 Maryland Avenue, SW
Washington, DC 20201

Dear Ms. Whalen & US Department 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 FULL compliance of the law. It 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 be addressed and
responded to by we, the parents of New York State.

Before the spring 2016 test administration, I would like to take this opportunity to remind you of key
assessment requirements that exist under the Elementary and Secondary Education Act of 1965, as
amended by the No Child Left Behind Act of 2001 (ESEA). These requirements will remain in place for
the 2015−2016 school year, and similar requirements are included in the recently signed reauthorization
of the ESEA, known as the Every Student Succeeds Act (ESSA).

A high-quality, annual statewide assessment system that includes all students is essential to provide
local leaders, educators, and parents with the information they need to identify the resources and
supports that are necessary to help every student succeed in school and in a career.
This was never designed as a system of support, but rather a system of punishment. This has
become the fatal flaw of education reforms.

Such a system also highlights the need for continued work toward equity and closing achievement gaps
among subgroups of historically underserved students by holding all students to the same high
expectations.

Section 1111(b)(3)1 of the ESEA requires each State educational agency (SEA) that receives funds
under Title I, Part A of the ESEA to implement in each local educational agency (LEA) in the State a set
of high-quality academic assessments that includes, at a minimum, assessments in mathematics and
reading/language arts administered in each of grades 3 through 8 and not less than once during grades 10
through 12; and in science not less than once during grades 3 through 5, grades 6 through 9, and grades
10 through 12. Furthermore, ESEA sections 1111(b)(3)(C)(i) and (ix)(I) require State assessments to “be
the same academic assessments used to measure the achievement of all children” and “provide for the
participation in such assessments of all students” (emphasis added). These requirements do not allow
students to be excluded from statewide assessments. Rather, they set out the legal rule that all students in
the tested grades must be assessed.

School districts must provide and administer the assessments. They have absolutely met that
requirement. No law can force a child to take the assessments or to pick up a pencil. For every
regulation or rule implemented to force compliance, parents have found loopholes, workarounds,
and ways to keep their children away from these assessments, and will continue to do so for the
sake of our children. No rule, law, financial bribe, or threat would be worth sacrificing our
children’s well-being.

In applying for funds under Title I, Part A of the ESEA, your State assured that it would administer the
Title I, Part A program in accordance with all applicable statutes and regulations (see ESEA section
9304(a)(1)). Similarly, each LEA that receives Title I, Part A funds in your State assured that it would
administer its Title I, Part A program in accordance with all applicable statutes and regulations (see
ESEA section 9306(a)(1)). Please note that the portions of the ESEA referenced above have not been
waived for States, including States that received ESEA flexibility.

One only has to go back to the start of the 95% participation rule tied to Title 1 funding to
understand its intentions. It 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 “cheat” the
system and boost scores. It would be very interesting to witness a court case of the USDOE trying
to argue that this is what districts were doing when 240,000 parents did not allow their children to
participate.

Over the last several months, many States have released 2014−2015 State assessment data. A few States
(had parents that instructed their children not to take the assessments) did not assess at least 95
percent of students in the “all students” group or individual ESEA subgroup(s)statewide. Additionally,
in some states, LEAs within some States did not assess at least 95 percent of their students. ED has
asked each of these States to submit information on the steps it is taking to immediately address this
problem and meet its assessment obligations under the ESEA. Each SEA was provided 30 days to
submit its response to the Office of State Support (OSS), and ED is currently reviewing information
submitted by these SEAs. As additional States release assessment results, ED will request such
information if the State or its LEAs do not assess at least 95 percent of their students. If a State’s
response does not adequately address this problem and meet the State’s assessment obligations under the
ESEA, ED may take enforcement action.

Don’t be surprised if these attempts at coercing states and districts to disregard parental rights
leads to increasing our resolve and boosting our opt-out numbers. The ED threat of “enforcement
action” will only serve to double our efforts to protect our parental rights and our children.
In each request for information, the SEA was asked to demonstrate that it has taken or will take
appropriate actions to enforce the requirements of the ESEA, describe how such actions will specifically
address the problem that occurred in 2014−2015, and ensure that all students will participate in
statewide assessments during the 2015−2016 school year and each year thereafter, recognizing that the
extent of the non-participation and other relevant factors should inform the SEA’s actions.
The fact that you are describing the country-wide history making actions of parents rising up to
protect their children, their public schools, and their communities as “the problem”, shows a  gross
lack of understanding on your part. Your new boss, Mr. King, has a very intimate
knowledge as to the resolve and tenacity of the parents of NY. (As a matter of fact we, along with
numerous other educational organizations in NY, called for his resignation and got just that. The
fact that he “failed up” is a discussion for another letter) He may be able to provide you with the
insight you lack.

Some examples of actions an SEA could take, alone or in combination, include:
* Lowering an LEA’s or school’s rating in the State’s accountability system or amending the
system to flag an LEA or school with a low participation rate.
Amending the accountability system would require legislative action or action by the Regents. If
they agreed to commit political suicide they would need to flag over 90% of the districts in NYS,
essentially making this “flag” useless. These “flags” would become a status symbol. Those without
one will be singled out as a test-based facility.
*counting non-participants as non-proficient in accountability determinations.
This would be of no consequence to students. Our legislature has already insured that these scores
mean nothing for our children. By NYS law, these scores cannot be used as ANY sole determining
factor in ANY placement decisions. Our teachers cannot be rated on these scores for four years as
well. We have essentially made state assessments completely irrelevant in NYS. As for school
districts, counting 20%+ of students as non-proficient would further make the data from state
assessments useless to interpret or use for any relevant purposes. In addition, this action would
essentially make the data from students TAKING the assessments equally invalid. This option
would boost our argument that these assessments are of no use, even for data purposes.
* Requiring an LEA or school to develop an improvement plan, or take corrective actions to ensure
that all students participate in the statewide assessments in the future, and providing the SEA’s
process to review and monitor such plans.
Parents do not ask for permission to refuse their children to participate in harmful state
assessments. Schools that fight against parents asserting their rights have equally high opt out
numbers as schools who honor that right. What exactly would this improvement plan look like?
Contracts with PR firms to market the common core assessment product? Perhaps meetings to
convince parents that 10 hour long tests are good for their children while serving free dinner and
drinks? Paid appearances from pro-reform celebrities? Marketing 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 are: garbage. Fixing the ENTIRE problem is
the only option to convince parents to opt back into this system.
* Requiring an LEA or school to implement additional interventions aligned with the reason for
low student participation, even if the State’s accountability system does not officially designate
schools for such interventions.
For every “intervention” we will implement 5 more to assure parents are not misinformed by such
marketing strategies. These strategies are futile and a waste of taxpayer money. However, this
again is irrelevant to parents opting their children out of assessments.
* Designating an LEA or school as “high risk,” or a comparable status under the State’s laws and
regulations, with a clear explanation for the implications of such a designation.

A “high risk” of what exactly? “High risk” of a thoughtful, child centered education? “High risk”
of community members thinking they are in control of their local districts? “High risk” of
students being considered and considering themselves more than a number? Again, since over
90% of our districts in NYS would be flagged and given a “high risk” status, it essentially negates
this as a consequence. As stated before, often high percentages of student refusals have become a
status symbol and an indication of a community that puts children before all else.
*Withholding or directing use of State aid and/or funding flexibility.
There is no current law or regulation allowing the State to withhold funds from a district based on
participation rates. NY is currently under a waiver from NCLB participation consequences. This
waiver is fully in effect until August 2016 when NCLB is replaced. This year there are no
regulations or laws which would allow funding to be withheld from public 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. Your
friend and colleague, NYSED’s Commissioner Elia, who upon being fired from her previous
position “failed up” as well, does not have that authority either. Although the Commissioner may
want to strip funding from all of the districts that honor parental rights and speak out against
your shared reform policies, thankfully our school funding formulas are not based on revenge or
who the commissioner does/does not personally like.
In addition, an SEA has a range of other enforcement actions at its disposal with respect to
noncompliance by an LEA, including placing a condition on an LEA’s Title I, Part A grant or
withholding an LEA’s Title I, Part A funds (see, e.g., section 440 of the General Education Provisions
Act).

Less than 2% of the entire NY public school budget comes from the Federal Government in the
form of title 1 money, with most district budgets comprising less than 1% of their funds from title
1 money. The basic principles of Title 1 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 40% impoverished students can use title 1 funds for schoolwide
programs. Districts with less than 40% can only use these funds for specifically targeted students.
Essentially, the Department of Education is laying the blame squarely at the feet of our most
vulnerable student population.
Description of students benefiting from title 1 funds that the Federal Government is targeting with
threats:
– migrant students
– students with limited English proficiency
– homeless students
– students with disabilities
– neglected students
– delinquent students
– at-risk students
– any student in need.

Title 1 money must be spent on services for children in poverty such as:
-Transportation to and from homeless shelters if a student is displaced, and transportation to after
school programs, and summer school programs
– breakfast programs
– after school programs
– teacher aides
– technology for high need students
– babysitting costs/childcare for parent involvement activities
– travel expenses for parent involvement activities
– specialized assessments
If a State with participation rates below 95% in the 2014−2015 school year fails to assess at least 95% of
its students on the statewide assessment in the 2015−2016 school year, ED will take one or more of the
following actions:
(1) withhold Title I, Part A State administrative funds;
The fact that these students with the highest needs are being placed in the crossfire of threats from
the Federal Government is discriminatory and bullying at best. Picking on our most vulnerable
children is a sign of a system in a complete state of dysfunction.
(2) place the State’s Title I, Part A grant on high-risk status and direct the State to use a portion of its
Title I State administrative funds to address low participation rates; or
Parents know exactly what these state assessments are and are not. They are not misinformed,
uninformed, or confused. We know exactly what is at stake and what veiled empty threats are. We
have already fully researched what you can and cannot do to punish our children and their
schools, and simply feel that your “could” and “possible” threats are as empty as the promise of
school reform. We choose truth and our children EVERY TIME.
(3) withhold or redirect Title VI State assessment funds.

For all States, ED will consider the appropriate action to take for any State that does not assess at least
95 percent of its students in the 2015−2016 school year — overall and for each subgroup of students and
among its LEAs. To determine what action is most appropriate, ED will consider SEA and LEA
participation rate data for the 2015−2016 school year, as well as action the SEA has taken with respect
to any LEA noncompliance with the assessment requirements of the ESEA.

Consider this: we will not comply.
WE will consider appropriate action against any state or federal official that attempts to:
– coerce parents and students into compliance through lies and misinformation
– use threats against our most vulnerable children to force participation
– claim you have jurisdiction over funds that you simply do not have control over
– mistake our actions as unintentional

We look forward to working with you to ensure that all students participate in statewide assessments
during the 2015−2016 school year and each year thereafter, and in supporting implementation of the
Every Student Succeeds Act, which includes a new focus on auditing and reducing unnecessary State
and local assessments and providing parents and families with better information about required testing.

We look forward to educating you on what our parental rights are. Through your acceptance of
these rights, we can return to a full and enriching partnership in the education of all children.
Additionally, States may find other useful information regarding assessments in the Administration’s
Testing Action Plan, released in October 2015. As the Plan describes in greater detail, all tests should be
worth taking, offer students an opportunity to learn while they take them, and allow them to apply realworld skills to meaningful problems.
Tests must accommodate the needs of all students and measure student success in a fair, valid, and
reliable way. In the coming months, ED will release additional resources and guidance to support your
efforts to eliminate duplicative local or State assessments and continue to develop new and innovative
approaches to using assessments effectively to support and inform classroom instruction.
We will assume that while our state assessments offer none of the above criteria, you are in
agreement with our current plan of action.

Please do not hesitate to contact your State’s program officer in the Office of State Support if you need
additional information or clarification. Thank you for your continued commitment to enhancing
education for all of your State’s students.

You’re very welcome. The 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 by our determination or disregard to threats
that were intended to cause panic and compliance. We will be happy to clarify.


Sincerely,
Jeanette Deutermann, Founder
Long Island Opt Out
NYS Allies for Public Education
Cc:
MaryEllen Elia, NYS Education Commissioner
NYS Board of Regents
Governor Andrew Cuomo
Jere Hochman, NYS Secretary of Education
NYS Legislature