Stop Waiting for Permission; Make Your Own Decisions

Written by admin on . Posted in STAAR | EOC Testing. 10 Comments

If you are asking about Opting Out, as a parent you have already reached certain conclusions. Maybe you believe the STAAR has had a negative effect on curriculum and you can’t support it. Maybe you find it developmentally inappropriate. Maybe you have seen the physical and emotional toll it takes on kids and don’t want to subject your child to that. Maybe you just don’t like outsourcing the assessment of Texas school kids to a foreign corporation. Whatever the reason, if you are asking about Opting Out, you’ve either reached those conclusions, or you are concerned enough about some issue to want to take action. So what are you waiting for?

If you are waiting on permission from your school before deciding to Opt Out of the STAAR test, let me save you some time. You won’t get it. The TEA has given districts their marching orders. They are to tell all parents that it is not permitted, ever, under any circumstances. Nevermind the hundreds or thousands of parents who opted out last year. Never mind all the voices who post on this forum and will tell you they Opted Out with no consequences. Nevermind the TEA telling them they can accept refusals.  If you want your school’s permission, you don’t really want to Opt Out. What you want is to be excused. You want the school to do your job for you. They are usually all too happy to parent your child for you. That is, as long as it fits their rules. Since Opting Out doesn’t fit their rules, they won’t handle that part of it for you. You have to do the hard work.

2024 Update: The TEA has told schools they can accept parental refusals and not put the assessment in front of the student. THE DECISION TO OPPOSE YOU IS A LOCAL DECISION

What’s the hard work? The hard work is being a parent. The hard work is giving the school more respect than they give you and letting them know your decision. The hard work is listening to them lie and say that parents can’t opt their child out. The hard work is politely telling them that you weren’t asking their permission but have already decided. The hard work is letting them know that you understand the state ties their hands – that you don’t hold that against them and that you are sure they don’t hold your decision against you. The hard work is figuring out whether to refuse by staying home or by telling your child just not to fill out the test forms. The hard work being an advocate for your child if the school is upset by your decision.

The hard work is informing yourself and not taking any threats at face value. If they tell you your child will be retained, ask them why the TEA has published a website saying STAAR isn’t a promotion requirement anymore..   If they tell you that your child has to be tested on a makeup day, tell them you know it’s a district option and that you want your child in class even if it means they “grade” the refused assessment. If they tell you the state requires them to put the assessment in front you the student if they are at school, tell them the TEA says that isn’t true and SHOW THEM the truth.  If they tell you that you have to withdraw your child to avoid STAAR, tell them you know that’s not true. They can’t show you a law or regulation that says so.

We’ve EXPLAINED to you that they aren’t going to agree.  We’ve SHOWN you what you need to do when they don’t.  So when they write back and say you can’t opt out, put on your adult pants and ACT.  You know that parents have been opting out for a decade without the state patting them on the head and saying it is OK.  Either you want to opt out or you want permission.  Which is it?

We are here to support you. We’ll fight for you if you want. But what we can’t do is give you the backbone to do what you already know is right. Only you can do that hard work. You’ll have amazing support and cheering crowds. Your kids will have what they deserve. But not if you wait for permission. You don’t ask the school for permission on any of your other child rearing decisions. Why do you want it now?

Updated: April 12, 2024

OPTING OUT – Step by Step

Written by admin on . Posted in Homeschooling, STAAR | EOC Testing. 252 Comments

How to Opt Out/Decline/Refuse STAAR

January 2026 Update: Link to Facilitated Refusal letter added

In response to a lot of “how do I do this” questions, we’ve put together this step by step guide on opting out.  This is a general guide of the various steps and forms a parent can follow to Opt Out of the STAAR assessment. If you are looking for an easy, non-confrontational approach, we can’t offer you that. Schools have been instructed to state that they can’t permit it. Some schools go further and falsely claim that state or federal law requires all students to take the STAAR assessments. Others even make implicit or overt threats to parents.

So while all of our forms and letters are polite and civil, there is no guarantee that your school district will work with you. Fortunately, the past few years have brought more cooperation and the chances for a better outcome are greater than ever.  But if you are met with resistance, you still hold the power.  As Peggy Robertson of United Opt Out said, opting out is, at its heart, an act of civil disobedience. So join the hundreds and thousands of parents locally, statewide and nationally who are standing up and speaking out against the standardization of our children’s education.

STEP ONE:

Inform the school that you intend to opt out of the assessment. You are not asking them to let you. You are telling them your decision. You can use the Master Opt Out letter, and customize it to your needs.

A lot of parents have asked whether you must tell the school.  If you simply intend to refuse the assessment, you do not.  However, if you want to preserve the argument that Texas law permits you to Opt Out, you must give notice as described in the Opt Out letters.  We also encourage notice so that the school understands that the assessment system is being protested by the parents.

 

STEP TWO:

It is extremely unlikely you will receive a response from the school indicating that your child will not be administered the STAAR.  You will almost certainly receive a response from the school telling you they can’t permit it. At that time you can send either the response letter (if they are citing legalities) or a follow up refusal letter (if they simply say they can’t allow it).  In that case, go to STEP THREE.

Some schools have taken to simply acknowledging the letter which leaves the parent in a bit of limbo.  They acknowledge they received the letter but they don’t tell you what they are going to do.  We take this as an opportunity to explore the refusal option.  If you get one of these non-committal acknowledgements, we recommend you send a facilitated refusal request.

If the facilitated refusal request is agreed to, you simply need to follow up and iron out the details (will you stay home on the main administration day, if not where will she go, do they need you or her to sign anything, etc).  You may get emailed with the list of “consequences” for refusing.  Now is not the time to engage that list.  Now is the time to get a refusal set up.  You can simply acknowledge that you understand what they have communicated to you.  If your request for a facilitated refusal is granted, continue to STEP FIVE.  Otherwise go to STEP THREE.

STEP THREE:

At this point, unless the school relents, you will need to make a decision. The choices of the parent here are multiple:

(A) Keep your child home on STAAR days. If you choose (A), you must be aware of not only the primary test days, but the full testing window. Schools may assess students after the main STAAR administration day as long as it is within the window. Testing windows may be found here.  (2023-2024 Calendar, as TEA appears to have made its calendar page private!!) Now a school is not REQUIRED to use the full testing window, but they can.  Unless you learn that they school has completed all assessments and returned the testing materials to the state, then you should assume the entire window might be used.  NOTE: the assessment windows are very long now, and it may be difficult to completely stay out of all assessment days.

(B) Send them for the assessment and instruct them to page to the end  without answering any questions, submit it and confirm their submission.  This is a far easier option than refusing a paper administration ever was.  This is because the assessment can be submitted blank without ever interacting with the proctor.  Although some schools are adding steps of telling students to raise their hands before submitting, that is not a requirement.  Instruct your student to just submit it when they get to the end, being careful not to answer any questions along the way.  If you choose (B) be aware the some schools have told children during testing that their parents just called and said it was OK to take the assessment. Should you go this route, create a password that the child must hear before they take the assessment. If the teacher can’t repeat it, the child doesn’t take the assessment.  Refusing in this manner can be done without any notice to the school at all, although we strongly urge parents to make a written record of their protest.

(C) Keep your kid home the main day of STAAR and then return and refuse the assessment on the makeup day.  Some school districts have permitted children to return to class on makeup days without being assessed. They have required that the child and parent come together to the office before school and write “refused” on the assessment (or sign some other indicator). This is a common sense approach to a refusal to test. It keeps the child in class, minimizes absences and meets their requirements. You can request Return to Class on Makeup Days using this letter.

(D) Advocate for the school to accept your refusal.  This option has become available to parents over the last few years since the TEA has made clear that schools may accept a parental refusal.  Before this, the position of the school was always that “if the student is on campus, we are required to put the assessment in front of them.”  This led to numerous situations where devious test administrators lied to students, cajoled them to disobey their parents or otherwise pressured students who had been told to refuse to participate instead.  The TEA has made clear that this is not required and that the school may accept the parental refusal and simply submit the assessment for scoring as if the student refused in person.  Review this article on the parental refusal.

I want to be super clear – no matter what approach you take, you must prepare for the possibility that the school will try to pull your child for assessment.  No matter what they have said or how much you trust them — BE PREPARED.  Let your child know not to take it.  Tell the kid to call you if they pull him for STAAR.  Walk in with them.  Set up a password system.  Have them trained to tab through if they get stuck in an assessment room!  It’s sad but every year parents send their kids back to school thinking their opt out will be honored, and the school pulls the kid who is unprepared and caves in and takes the assessment.  That’s on us as parents.  BE PREPARED!  Hope for the best; prepare for the worst.  Be one of the many success stories, not the surprise and disappointed victim of school bullying.

 

STEP FOUR:

This step used to talk about how 5th and 8th grade parents had to fight threats of retention.  Great news!  Promotion is not dependent on STAAR results in ANY GRADE!  There is a recent change in the law which requires schools to provide 30  15 hours of tutoring (in a 4:1 3:1 ratio) for each reading or math STAAR not passed.  (HB 4545 HB 1416).  Parents can opt out of this (see letter) and schools are not permitted to remove a child from foundation or enrichment curriculum to tutor them (i.e. no loss of electives!).  Review school forms and enrollment documents carefully.  NEVER waive the 4:1 tutoring ratio unless it is part of an agreement that you are satisfied with to minimize or eliminate tutoring.  Never sign it as part of general enrollment documents.

STEP FIVE:

If your child either refuses to complete the assessment on an administration day or if they refuse on a makeup day, you may use the FERPA corrective letter to ask to have the scored assessment removed from your child’s educational records at both the state and local level. The TEA will still score the assessment, and your request will almost certainly be denied, but you can demand your letter be included in his academic file.  THIS SHOULD ONLY BE DONE AFTER YOU RECEIVE SCORE REPORTS.

STEP SIX:

Report back! We want to hear about any districts that act in a bad manner towards opt out parents. We also want to hear any stories of schools that are understanding and work with you! Use our contact form  to let us know how it goes!

A NOTE ON TRUANCY:

Some districts  threaten truancy charges or send notices about truancy to parents who keep their kids out for all or a large part of the assessment window. But we see this less and less since truancy laws have been modified (see 2017/2016 notes below), and because most parents use some type of agreed or in person refusal to get back to class.  However, if you are missing days to opt out and receive a threat, you should not ignore this.

Rather, inform the school that you have engaged in a home school program on the dates of absence. Let them know that your program included reading, writing, social studies, science and citizenship. Once you have done that, you will have laid the foundation for a defense of truancy charges. It is likely that the school district will not proceed further at that point.  For more information on Dual Enrollment Home Schooling, read this.

Update for 2017:   The following addition from 2016 holds true.  We have had no reports of any truancy related charges from opt out parents in 2016.  >>> Update for 2016: Truancy laws have changed.  The threat is no longer as great as it once was, although it has not entirely disappeared.  In particular, the three day in four week provision, which was used to intimidate parents who held their kids out for a full testing window, has been removed! This is great news.  An unvetted comparison of the old law and the new law is here.

Updated 1/22/24

Ten Texas Opt Out Myths, and the Real Story Behind Them

Written by admin on . Posted in STAAR | EOC Testing. 2 Comments

Updated January 19, 2021

STAAR season is upon us.  And with it comes the annual posting of opinions, “law” and procedures that people have been told are true or represent a sure path to successful refusal of the assessment.  In this post, we discuss seven common myths that represent things that schools say, that parents say or that simply float around as truisms, when they are not!

Myth #1. If you opt out, your child cannot be promoted.

Other than for grades 5 and 8, promotion is not tied to performance on the STAAR assessment. While some local school boards may have a different policy, most follow the state law and only require STAAR passage for promotion in Grades 5 and 8. Check your ISD board policy EIE (Local) for your specific rules. By the way, even for Grades 5 and 8, the statute provides a pathway to promotion for students who fail or refuse to take the STAAR assessment.

Myth #2. A school cannot retain a child unless the parent agrees.

Each school district can set its standard for promotion and retention. They do not need your permission to retain your student. For students who did not pass STAAR or who opted out in Grades 5 and 8, the decision to promote the student must be unanimous from the Grade Placement Committee (which includes you as a parent). The decision to retain does not have to be unanimous.

Myth #3. Students are required by law to take the STAAR test.

Schools are required by law to assess students. An administrative regulation suggests that the students must be assessed.  The statute places no obligation on a student or parent to take the assessment and provides no mechanism to compel participation.

Myth #4. A student who fails the STAAR or opts out must go to summer school.

Schools are required to offer students who do not perform satisfactorily on the STAAR what is called “accelerated instruction.” There is no specific definition of what constitutes AI or when it must take place. There is absolutely no rule that requires it to occur during the summer or on the school’s campus. A school has a high degree of flexibility to design an AI plan appropriate for each student, and parents have successfully refused on campus summer instruction or designed their own AI programs with no negative consequences.

Myth #5. There is a difference between Opting Out and Refusing the Assessment

This myth is based on the idea that our legal system operates using magic words. It doesn’t. Whether you are informing the school that you intend to Opt Out or Refuse, you are conveying the same message: that you will not permit your child to be assessed. The key here is to be clear with the school that you are not asking permission; you are simply informing them of your decision.

Myth #6. The Supreme Court has decided that parents have the right to refuse assessments for their kids.

There is absolutely no case law on this point at the Supreme Court level. People who perpetuate this myth take decisions that looked at the right to private education, or did not even deal with schooling, and try to stretch the language to fit standardized testing. The reality is that the overwhelming majority of cases involving curricular issues are decided against parents who are trying to exempt their child from curricular choices made by the school. However, we have never found a case where the court has said that a school may compel participation against a parent’s decision, even where the parent accepts the consequences of non-participation. We believe this is a fundamentally different question than those cases that seek exemption without consequence.

Myth #7. If you Opt Out, you must keep your child home the full week due to make up dates.

This may be a myth or it may be true. Some schools have used common sense and permitted students to return to class on make up days without completing the assessment. Those schools usually require the student to write refused on the assessment booklet. So this is something a parent can negotiate with a school. If you go this route, arrange it beforehand and be present for the refusal. Make sure your child knows that they should not take the assessment without hearing from you directly. You may want to have a “password” that the child must hear before they agree to take the assessment. Another option if schools refuse to permit a return to class is to keep your child home in the morning until it is too late in the day to start the STAAR. The STAAR cannot be administered unless time for the full testing window remains in the school day.

Myth #8. A school can’t retain a student with all passing grades just for failing STAAR.

Sadly in 5th and 8th grade this is not true.  In all other grades, including high school, grade level promotion is not based on passing STAAR.  However, in 5th or 8th grade, it is absolutely possible for a student to pass all classes, fail STAAR, and be retained.  This is part of what makes high stakes assessment so abhorrent.  Now, the reality is that almost no kids who are passing their classes are retained for failing STAAR, but it is irresponsible to suggest somehow that it can’t happen.  It also makes STAAR look less punitive than it is, and that minimizes the incentive of people to work to change the testing regime.

Myth #9. They can’t keep you from graduating if you are passing all your classes

Again, not true. The law requires a student to pass all five EOC assessments to be assured of graduation. If a student passes 3 out of 5, they may be approved for graduation by the Individual Graduation Committee. However, this is not automatic. Even if the student gets to an IGC, the IGC can still deny graduation to a student, even a student with passing grades in all classes. The IGC is not bound to graduate anyone, and each year students with passing grades still do not graduate at the IGC level. It’s not common, but it happens. And if the student has not passed three assessments, they never get to the IGC. (Different rules apply for Special Ed students, and the assessment count may vary for students transferring into Texas from another state or from a private school). High school parents should review our article What About High School? for more information on opt out and the high school student.

Myth #10. There really is no option to Opt Out of STAAR

Just shut up.  Thousands of parents opt out their kids out of STAAR every year.  The schools do not have to agree with it, they do not have to (and likely will not) give permission and they do not have to make it easy (though any true professional would).  There is absolutely no means created by statute for the school to compel the attendance and participation of any student in STAAR assessments.  Arguably, a statutory right to opt our exists, but even if it doesn’t, this is still a parental decision that the school has no means to override.  Schools don’t get to decide what is OPTING OUT and what is not. This type a language is an attempt to control the narrative and intimidate parents.  As parents we need to stop enabling this kind of nonsense talk.  You can keep your kid home, or send them and have them not answer a single question.  Done, you have OPTED to take your kid OUT of the data driven assessment game.  You win.  Just don’t tolerate this idiotic language game for a minute.

Dear Schools: Stop Lying about Math STAAR

Written by admin on . Posted in STAAR | EOC Testing. Leave a Comment

Note: the article refers to a single year suspension of Math SSI requirements.  It is left up here as additional examples of schools lying about STAAR.  However, the issue discussed in this article is not applicable to any other year.  That discussion is obsolete.

Tonight, I again received a question from a parent whose 8th grade child had been told by a teacher that they would fail 8th grade if they did not pass the Math STAAR test. This is about the fifth report of this that I have heard this year.

To recap, the State of Texas implemented new Math TEKS this year. This resulted in pushing down math instruction sometimes by as much as two grade levels. Thankfully, the Texas Education Agency did the right thing and suspended the requirement that 5th and 8th graders pass the STAAR covering all this new material in order to qualify for promotion to the next grade. In other words, Math STAAR doesn’t matter for promotion this year.

Still, teachers and principals are telling students they will be retained if they don’t pass. This is untrue. It is clearly designed to scare kids and parents into taking and performing well on the STAAR math assessment. The belief underlying this approach is that without a punishment, students cannot learn. This is a very primitive and disturbing educational philosophy and seems to totally ignore the physical and psychological manifestations that STAAR stress has put on our kids.

It’s time to stop the lying and the pressure and get back to learning for the sake of learning. If your child’s school is threatening retention based on STAAR math results this year, please report it to TPERN using our Incident Report form.

TPERN Opposes Proposed STAAR Percentile Rule

Written by admin on . Posted in English Language Learners | ELL, Section 504 | Special Education, STAAR | EOC Testing. Leave a Comment

On December 19, 2014, the TEA published a proposed amendment to 19 TAC §101.3041, dealing with STAAR performance standards.  This proposed rule ostensibly provides for the publication of percentile ranks on the STAAR, theoretically making comparison between test takers easier.  (TPERN believes that the purpose of an academic readiness assessment is to determine readiness of the individual student, not to provide for comparisons to other students).  However, the rule is confusing and raises the possibility that the published information could be misused by school districts in making promotion and retention decisions.  Moreover, the TEA found it necessary to publish a proposed formula for converting all STAAR scores to a 1-100 scale.  While the current formula is simply a restatement of what a percentile is, the inclusion of the formula leaves the conversion method open to amendment.  The formula could later be altered to create a “grade” that is percentile based, but not the actual percentile rank.  We think this is an improper use of an assessment instrument, and the rule should prohibit local districts from using the 1 – 100 percentile based score as a part of grades or promotion or retention decisions.  For that reason, TPERN has submitted a public comment in opposition to the rule urging various revisions before the rule is adopted.

Public comment on this proposed rule is open until January 20, 2015.  Comments may be mailed to rules@tea.state.tx.us

To view the TPERN submitted comment, click Read More

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Midland ISD Threatens to Retain Students for Opt Out

Written by admin on . Posted in STAAR | EOC Testing. 1 Comment

We have received two reports of parents in the Midland ISD being threatened with retention of their child if they follow through on their opt out plans.  These students are not in 5th or 8th grade.  As a result, state law does not require passage of the STAAR for promotion to the next grade level.  In fact, after receiving these reports TPERN investigated the local board policies for Midland ISD.  Midland ISD policy EIE (Local) is clear:

In grades 1–8, promotion to the next grade level shall be based on an overall average of 70 on a scale of 100 based on course-level, grade-level standards (essential knowledge and skills) for English/language arts, mathematics, science, and social studies.

In other words, if you pass your core classes, you get promoted.  Period.  Other parts of the policy make it clear that Grade Level Advancement contingent on STAAR passage applies only to 5th and 8th grade students.  So why the threats?  First, some administrators believe parents are too stupid or too passive to push back against a threat to their child, even when that threat would require the school to ignore its own policies.  Second, the TEA and school district attorneys are warning districts that 2015 could see massive increases in Opt Out numbers.  Rather than address the underlying issue, or seek reconciliation with district parents and taxpayers, the path of confrontation, threats and intimidation is being recommended to school districts.  Clearly, school district lawyers will benefit from this by generating more work and legal fees.  The reason for their recommendation is bathed in self-interest.  It is less clear why a school district led by elected trustees would feel fighting and threatening your constituents — to the extent of stating that the district will ignore its own policies — is good stewardship.

Parents looking to opt out of STAAR assessment should be prepared to critically examine every reason, excuse or threat given by the school district.  In particular please report any threats to retain students using our Incident Report form.  In many cases, the schools simply parrot the self-interested advice given to them by the TEA or their attorneys.  As seen by the Midland ISD example, these threats are often false and hollow.  What a sad state of affairs that lying and threatening parents and kids for data collection is seen as acceptable behavior.  But what a powerful testimony to the real strength of the opt out movement.  Stand your ground.  Change is coming!

An Opt Out Course for Schools

Written by admin on . Posted in Constitutional, STAAR | EOC Testing. 6 Comments

If there was any doubt that the Opt-Out movement is gaining steam and raising real concerns among school districts, administrators and the TEA, that doubt was put to rest when one of the state’s premier education law firms, Walsh, Anderson, which represents dozens, if not hundreds, of school districts around the state, created a special Audio Seminar for its client school districts entitled ““OPTING-OUT” OR “OPTING-IN”  – AN OVERVIEW OF PARENTS’ RIGHTS”.  Along with this audio conference, a handout was provided which will undoubtedly mirror the response letters parents receive this year from Walsh, Anderson represented districts.  The handout, which is linked at the end of the article, ranges from condescending to didactic to, at times, realistic about the growing demand from parents that school districts recognize their parental right to remove their children from state assessments administered as part of the STAAR/EOC assessment program.  In this article, I will focus on a limited number of the Walsh, Anderson arguments.  I want to preface this by saying that, notwithstanding the “hard line” espoused by the Walsh, Anderson lawyers who wrote this piece, we have resolved numerous disputes with Walsh, Anderson-represented districts to the satisfaction of our parent clients. My chief misgiving about this document is that the lawyers writing it had several opportunities to offer sound legal advice to administrators about how they can bridge the gap between the demands of parents and the demands of the TEA and still remain within the letter of the law.  They chose not to offer that advice.  This is disappointing, because it sets up unnecessary conflict that neither parents nor school administrators want.  Indeed, the paper opens by admitting that “many school districts and school personnel agree that Texas pedagogy has become too focused on standardized testing,” but then fails to help those districts or school personnel who may wish to find creative solutions to parent demands that will satisfy both the TEA, the district, parents, and, most importantly, student needs.  It is a missed opportunity, and one that will needlessly increase conflict between districts and parents.

The 26.010 Debate

Predictably, the seminar started with a review of the Education Code’s opt out provision contained in section 26.010 and the infamous “avoid a test” language.  Although the author accuses Opt Out groups of deceiving parents by not telling them about the portion of the statute that refers to avoiding a test, nearly every opt out group educates parents about this issue because it is the anticipated response parents receive from the school.  What the seminar fails to address is whether the “avoid a test” language refers to intent or effect.  The provision that states “[a] parent is not entitled to remove the parent’s child from a class or other school activity to avoid a test.” No cases have determined whether this language refers to the motivation of the parent or to the effect of the opt out decision.  If the former, then the myriad reasons that parents have to oppose the Texas assessment regime clearly evince a motivation that is far beyond avoiding a test.  If the latter, then the school’s interpretation is correct (assuming a STAAR assessment is the same thing as a “test”).  However, this question has never been answered and should not be so neatly dismissed by school districts.

However, the most disingenuous part of this paper is the contention that subsection (b) of the statute also serves to prohibit opt out rights.  Subsection (b) reads, in the relevant part, “[t]his section does not exempt a child from satisfying grade level or graduation requirements in a manner acceptable to the school district and the agency.”  This is no limitation on opt out rights, period.  To claim otherwise shows either an inabilty to read a statute or simple pandering to the TEA and school districts.  This section makes clear that simply because one opts out, they are not exempt from grade level or graduation requirements. (Incidentally, the inclusion of this section could be read as implicitly recognizing that parents can opt out of state assessments.)  In other words, if you opt out, you aren’t therefore exempt from promotion or graduation requirements.  Note, however, that it recognizes the existence of other acceptable means of meeting the requirements.  In Grade 5 or 8, that means a GPC meeting.  In high school, it may mean completion of a substitute assessment,  or simply accepting a certificate of completion rather than a diploma.  What it does not mean, however, is that this section is any type of limitation on the existence of opt out rights.

Finally, the author of this presentation dismissively treats the distinction, created by the Legislature, between an assessment and a test, using arguments intended to persuade non-lawyers, but which are ultimately weak legal arguments.  First, she suggests that to understand that the words “test” and “assessment” mean the same thing in the statute, we should look at the TEA rules.  However, most law students could tell you that regulations cannot alter statute.  Simply because the TEA wants it to mean the same thing, doesn’t make it so.  Quite to the contrary.  The author reliance on an Attorney General’s opinion that refers to assessments as tests in a clause in one sentence likewise proves the point.  Again, the starting point for interpreting the law is not the regulations and not an AG opinion, it is the plain language of the law and the rules of statutory construction to resolve any ambiguity.  Among the rules relevant here are “'[w]ords and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.’. . . .We further presume that the Legislature selected statutory words, phrases, and expressions deliberately and purposefully.” Great-W. Life & Annuity Ins. Co. v. Texas Atty. Gen. Child Support Div., 331 S.W.3d 884, 893 (Tex. App.—Austin 2011, pet. denied).  Here we know the Legislature has carefully distinguished between tests and assessments.  Although the author argues that the words “test” and “assessment” are used interchangeably throughout the statute, this is simply not true.  Take, for example, Chapter 39 of the Education Code, which is the very section that sets forth the assessment scheme for the State of Texas.  In that entire section, there is only one instance of “test” arguably being used to refer to the state assessments (and that is in reference to receipt of the materials from the contractor and is limited to 5th and 8th grade assessments). Every other usage of the word “test” in Chapter 39 refers to either field testing of questions, or to SATs or AP tests.  In contrast, that section uses the word “assessment” over 450 times.  That is not exactly interchangeable.  Moreover, in Chapter 26, the section on parent rights, “assessment” and “test” are never used interchangeably.

However, these are the best arguments that the schools could come up with, and we will see them again in 2014-2015.

What Constitutional Rights?

The memo further dismisses parental assertions that their 14th Amendment rights permit them to opt out.  The author of the memo writes that “such arguments [are] not based on any legal premise, rather, the argument essentially consists of ‘I’m right and you’re wrong.’”  Not to be too flippant, but the legal premise is quite clear and really not open to controversion.  It goes like this: “The US Constitution trumps state law where the two conflict.”  It’s called the Supremacy Clause and is well established.  This dismissive approach to parental concerns is not helpful, nor is it good counseling to school district clients.  Now, there is a real question as to whether the 14th Amendment permits a parent to opt out without consequence from state assessments.  I would suggest that the weight of current authority suggests that states have the ability to enact assessment schemes and attach consequences to the failure to perform satisfactorily on the assessments.  The 14th Amendment likely does not permit a parent to claim exemption from the assessment scheme.  However, that is a very different question than whether a school can (or should) contravene the instruction of a parent to their child that they are to refuse to complete the assessment.  We are very clear with any parent that we counsel that there are potential consequences to opting out.  Indeed, I find one of the greatest strengths of the opt-out movement is the willingness of the parents to accept the consequences.  We believe that under the 14th Amendment, parents have a relatively unfettered right to instruct their children not to participate in activities that they find morally objectionable or that they believe may pose mental or physical harm to their child.  The school may attach consequences to that decision, but they may not contravene or override a parent’s direction to their child on this issue.  We do believe this is a fundamental right of the parent and worthy of much greater respect from the districts and their attorneys.

Mark S for Score

The presentation next turns to another issue raised by TPERN and many parents: the insistence of the TEA that assessments assigned to students who refuse them be marked as “S” and returned for scoring as a zero.  As TPERN pointed out in an earlier article, this results in blatant data manipulation, resulting in a representation that students who never took the assessment were actually assessed.  Other codes currently exist which would accurately reflect the situation, and most states — including those with sizeable opt out movements — accurately reflect when students are not assessed.  For reasons that appear completely grounded in intimidation and shaming, the TEA insists that any student who refuses to be assessed be labeled as having been assessed and missing every question.  The TEA even instructs the school district to assist them with this data manipulation.

Walsh, Anderson’s advice to school districts is as expected: do whatever the TEA tells you to do whether it is right or wrong.  They do not address data manipulation, other than to assure the school districts that the chance of being prosecuted for marking the score sheet “S” is “extremely low”, which must be reassuring to an administrator.  Interestingly, they note that the TEA may change the scoring instructions this year.  We strongly urge the TEA (and districts actually engaged enough to offer input to the TEA) to mark refused assessments in a manner that tells an accurate story: this student was not assessed.  Shaming, blaming and intimidating parents and students is a strategy that will backfire and will only increase parental opposition to high stakes testing.  We can make a difference here.  It is a shame that given an opportunity to educate and engage their clients, this law firm has chosen instead to just urge them to go along with everything that the TEA says instead of engaging the TEA on a rule-making issue to assure that assessment results reflect reality.

Opting Out of Accelerated Instruction

Whatever the STAAR assessment may be, there is no question that the Accelerated Instruction (“AI”) that schools “offer” to students who have not passed the STAAR is not a test.  Thus section 26.010 clearly permits a parent to opt out of this objectionable instruction.  Amazingly, however, and without any legal analysis whatsoever, the school districts’ lawyer instructs her clients that a “school district is simply not permitted by law to grant these requests.”  This selective type of statutory interpretation reeks of cowering before the TEA, as the lawyer herself calls this “a legal interpretation that TEA has affirmed.”  The TEA and Walsh, Anderson are simply wrong about this.  There is no rational argument that section 26.010 does not mean precisely what it says.  If the legislature wanted to place accelerated instruction in the same category as a test, it knows exactly the language to use to do that.  It chose not to.  There is only one conclusion to draw from that: accelerated instruction is unambiguously within the scope of 26.010, and not within the small class of exclusions contained in the statute.

Moreover, the districts’ lawyers have missed an extremely important opportunity to find common ground between parents and schools.  Although the statute requires schools to offer accelerated instruction, there is absolutely no statutory delineation of what that instruction must include, the amount which must be offered, or the location where it takes place.  This intended flexibility contained in the statute has enabled us to reach very reasonable agreements with school districts to permit the AI to be a home study program, to be proposed by the parents as to content, and to include little to no on-campus component, thus assuring that students are not removed from electives, physical education or fine arts programming for test prep.  If the attorney counseling the school districts were interested in helping the districts work together with parents, this should have been pointed out immediately and offered as a way to reach an amicable resolution with parents.  Most parents don’t object to their child learning more math or English.  They object to the loss of curriculum-enriching courses; they object to mindless test prep worksheets; they object to the segregation and grouping of their students in activities that signify STAAR failure to their peers.  Schools have tremendous flexibility to craft AI programs for individual students.  Rather than (wrongly) telling schools they must deny all AI opt out requests, a far better approach would have been to tell administrators that they can work together with parents to find solutions that meet the needs of everyone involved.  It is a shame that opportunity was wasted.

Conclusions

Despite the dismal view of parental rights taken by counsel for the districts, there remains some good news in this handout.  First, the Opt Out movement is being recognized as a force in education that must be dealt with at the state and local levels.  Unfortunately, the chosen method of dealing with the movement still seems to be confrontation, rather than reconciliation.  Hopefully, some districts will realize that it is politically perilous to favor the central planners in Austin over their local parents and start to find solutions that work for parents and schools, both.  Likewise, we also hope that the TEA will change its scoring policy on refused assessments and accurately report who has been assessed and who has not been.  Again, the districts could have been urged to engage on this issue, rather than sit like potted plants waiting for the decision of the TEA to be passed down from on high.  Finally, the attorney’s advice, wholly lacking in legal analysis, instructing districts that they must reject AI opt out requests may be the shortest section of the memo, but it is, unfortunately, the one that signals that districts are being told to, and will, follow a path of confrontation, not reconciliation, with parents objecting to the overreach of standardized testing in the schools.  While this may be quite desirable for school law attorneys who will be busily responding to parent requests at growing rates, we do not believe this will be positive for districts, schools, or parents who are best served by finding ways to work together to improve the overall educational experience of the district’s students.

[The link to this presentation was removed due to a copyright claim by Walsh, Anderson.  Parents wishing to view the presentation should make a Public Information Act request to their local school district to see if they received it.]

Article by: Scott Placek, Arnold & Placek, P.C.

Pull Out Interventions – The Power to Say No

Written by admin on . Posted in STAAR | EOC Testing. 1 Comment

A recent posting on the Texas Parent’s Opt Out Facebook Group raised the issue of schools removing children from elective courses several days a week for STAAR Intervention or Tutoring.  Thanks to some information from teacher members of the group, we were alerted to a provision of HB 5 that limited pull out instruction to 10% of the total class days, unless a parent agrees in writing to a larger number.  This is consistent with attendance credit provisions found elsewhere in the statute that require 90% attendance to receive credit. (See discussion from Texas Music Educator’s Association) This provision was put in place to limit schools ability to remove kids from elective courses without parental agreement.

The actual statute is clear:

The board of trustees of each school district shall adopt and strictly enforce a policy limiting the removal of students from class for remedial tutoring or test preparation. A district may not remove a student from a regularly scheduled class for remedial tutoring or test preparation if, as a result of the removal, the student would miss more than 10 percent of the school days on which the class is offered, unless the student’s parent or another person standing in parental relation to the student provides to the district written consent for removal from class for such purpose.

Tex. Educ. Code sec. 25.083(b).  This does not mean, however, that a school district has the unrestricted ability to deprive a student of 10% of their elective class periods.  A parent can decline or opt out of accelerated and remedial STAAR instruction under section 26.010.  A form AI opt out letter is available on our site.

This 10% pullout statute may be one reason we see more school denying electives and creating actual remedial classes.  In that regard, the statute may have negative unintended consequences.  As a parent, you should continue to advocate for your child’s schedule and the removal of remedial classes that you deem unnecessary.  If your child is placed in a remedial class, the school may deny that Opt Out is permissible under the statute.  You should verify that the class is listed in the district’s course catalog, and if it is not, inform them that you are not avoiding an entire class, but rather that your are refusing remedial instruction.  If the school has placed a remedial STAAR course in their catalog, your can still argue that the class is not a “subject” as your student is already enrolled in subject courses.  Rather, it is a remedial tutoring class, which you object to and refuse to enroll your child in.

If a school district refuses to remove your child from a remedial class and refuses your right to opt out, please notify us using the Incident Report form!

TEA Commissioner Admits Teachers Unable to Align Instruction with STAAR

Written by admin on . Posted in English Language Learners | ELL, STAAR | EOC Testing. Leave a Comment

On August 21, 2014, TEA Commissioner Michael Williams announced that Texas would once again delay implementing increased performance standards for its STAAR examinations which are used to assess academic readiness, are required for automatic promotion to 6th or 9th grade, and which must be passed by high school students in five different areas in order for any public school in Texas to grant that student a diploma.

In 2011, the TEA awarded a foreign company, Pearson Education, a half billion dollar contract to develop the STAAR exam as a replacement for a well-established assessment system.  The TEA set a schedule of implementation that included regular increases in performance standards until an ultimate performance goal was attained.  However, despite not knowing how the test would align with the essential skills taught in Texas schools, the TEA determined that high school students would still be penalized with non-graduation if they failed to pass this new and unproven exam.  In fact, the TEA failed to require Pearson Education to obtain independent validation of the test instrument.  Instead, in a shocking example of conflict of interest, Pearson was allowed to self-certify the validity of its $500 million project.

But all has not been well.  The TEA’s own research demonstrated that Pearson’s accommodations for LEP students (a growing portion of Texas public school students) were completely ineffective.  Initial increases to performance standards were delayed due to stagnant test results.  Finally, the TEA commissioner announced yet another delay in increased standards – a clear indicator that the assessment system is not working.  But what is most shocking is the admitted reason for the delay.  In a memo to administrators, Commissioner Williams stated that the reason was to “provide additional time for educators to adjust instruction to align with the more rigorous TEKS measured by the STAAR program.”  In the public news release, the reason stated was to “give[] educators additional time to make the significant adjustments in instruction necessary to raise the level of performance of all Texas students.”

Thus, four years into STAAR, the TEA commissioner admits that teachers have not yet found a way to align the teaching of TEKS (essential skills) with the STAAR test that pretends to measure those skills.  In fact, he tells the public that this requires “significant adjustments.”  This should not surprise anyone, since the TEA threatens to pursue criminal charges against teachers who even ask a student what they found difficult on the STAAR exam.  How can teachers figure out how to teach TEKS in a way that the test measures when they can’t talk about the test itself with the students who have to take it?

So Commissioner Williams is delaying the implementation of the new standards.  But what about the Class of 2015?  For four years, these students have struggled to pass an assessment that our own TEA commissioner now admits the teachers are unable to prepare them for.  This is why almost 20% — over 50,000 real Texas kids — are being threatened with non-graduation.  What is Commissioner Williams’ solution for them?  Another year of ineffective preparation occasioned by a secret test?  Permanent labeling as a high school dropout?

There is only one solution:  Commissioner Williams must suspend the TEA STAAR graduation requirements until this system is fixed.  Anything less is simply cavalier disregard for the well-being of our kids, for the future of the Texas economy, and for the public education system itself.

A petition to delay implementation of the STAAR Graduation Requirements can be found here.

Fighting the Opt Out Truancy Threats: Dual Enrollment Home Schooling

Written by admin on . Posted in Constitutional, Homeschooling, STAAR | EOC Testing. 17 Comments

Schools are actively brandishing the threat of truancy charges against parents who exercise their fundamental liberty rights to direct the education of their children and protect them from abusive testing regimens.  Schools have sent threatening letters and in some cases actually filed truancy charges against both parents and children if they missed10 days (unexcused) in a six month period or more than three days in a four week period.  We have seen letters threatening to file truancy charges against nine year old students, even though the statute only makes truancy criminal if the child is between 12 and 18 years of age.  It is less clear if parents can be charged for truancy of children under age 12 because of the confusing way the statute is written.  One argument would say that the days missed calculation applies to students of all ages for purposes of charging the parent.  Another argument would say that the days missed calculation can only be determined by reference  to the age of the child, and therefore parents can’t be charged if the student is under 12.  We predict schools will take the first interpretation and file charges against parents and force them to argue in court, at risk of conviction, that the second interpretation should prevail.  We do not believe schools will file against any student under age 12.  (Please file an Incident Report with us if they do)

Rather than depend on legal semantics to fight the charges, parents do have other options.  Please note, none of these options have been tested in court.  There is always a risk that a judge may reject them, but we believe they are legally sound.  The first option is the withdraw/re-enroll option discussed in a previous article.  The main requirement here is that if charges are filed, you must demonstrate that you have an actual home school program during the time of disenrollment that includes a study of good citizenship.  Curriculum purchased or downloaded from the internet, along with assignments from the days of withdrawal would support this factual finding.  Of course, if you take this route, you are faced with multiple withdrawals and re-enrollments during a school year.  This is a time consuming undertaking.  We also believe local school boards may try to pass policies to combat this if this approach becomes prevalent.  For this reason, we are proposing a new approach.  Again, this approach is legally untested, but we believe it to be valid and consistent with state law.

The approach is what we call Homeschool Co-Enrollment.  At its heart, Homeschool Co-Enrollment is the essence of what schools should seek in a family’s approach to education.  In Homeschool Co-Enrollment, parents are actively involved supporting and supplementing the academic development of their child.  Homeschool Co-Enrollment exists informally in many ways.  Sunday School classes, academic tutoring centers, and family reading times are all examples of homeschooling that we engage in informally, not to mention giving homework help and quizzing your child to prepare for tests.  Our proposal is for a family that intends to take their kids out of school during STAAR testing to make this relationship formal.

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