Despite the clear language of the law, some schools have denied parental opt out from accelerated instruction and placed kids into STAAR prep classes. After you have submitted your opt out, you must follow up if your child has been denied access to electives. For that reason, we’ve added a new follow up letter to get those electives back. This video below will walk you through the letter.
Tired of those school district letters saying “there is no opt out” for accelerated instruction under HB 4545? Me too. Because it’s not only a lie, it’s deliberate ignorance. A minute of reading makes it clear. They’ve got me ranting tonight.
We’ve recently seen a number of communications from schools indicating that they cannot “permit” a parent to opt out of Accelerated Instruction under HB 4545 because it is subject to compulsory attendance. In this brief video, we look at the actual words of the opt out and compulsory attendance statute and consider an uncontroversial example that demonstrate how this claim is legally untenable and, if true, would render the opt out statute a complete nullity.
This video is a wide ranging discussion of the scope of HB 4545, the provisions regarding accelerated instruction, the limits placed on schools and the parental right to refuse/opt out of AI under Education Code sec. 26.010.
Ok, I’m lying. It is a ridiculous and an incredibly stupid piece of legislation, thrown together and pushed down onto schools with no grassroots input or support by a bunch of knee jerk politicians in thrall to for profit tutoring, software, and publishing companies. It reinforces both the idea that STAAR is a valid measure of anything, and that raising performance on STAAR is of vital import to the state. It furthers the transfer of needed education dollars from the classroom to the hands of political cronies. Business as usual in #TxEd.
But that’s not what I want to talk about. I want to talk about whether – from the perspective of the parent – HB 4545 makes things better or worse, and more specifically whether it should have any impact at all on the decision to opt out of assessment. I am going to say right up front, it is a net positive for parents and should make the decision to opt out easier, rather than harder. How do I come to this conclusion?
1 – HB 4545 Eliminates STAAR Based Promotion and Retention
The greatest deterrent that schools ever held over Opt Out parents was the threat of retention in 5th and 8th grade. Of course, it was really just a threat as we never saw a single Opt Out student retained. In fact, the very few instances of a retention based on STAAR that we were familiar with involved students who actually attempted but failed the assessment. For students that were absent or refused, we never saw a single student retained. But now, even that threat is gone, eliminated by HB 4545. Now some schools are pointing to TEA and Education code guidance the STAAR results must be “considered” as part of promotion, and that language does exist, but we have to dwell in reality. When STAAR WAS a promotion requirement, nobody with passing grades was being retained over STAAR. Now that it is no longer a requirement, that simply isn’t going to change. All districts have a promotion policy, and as the policies are amended to reflect HB 4545, I do not expect to see STAAR mentioned explicitly in any of them. Moreover, if you do not take it, or refuse it without answering, there really is no data to “consider.” This is another reason we do not recommend choosing all one answer or random bubbling. Those tactics do create data. Particularly in random bubbling, it will be exceedingly difficult to disavow your data.
2 – The Accelerated Instruction (AI/Tutoring) Has Always Existed
Amazingly, as HB 4545 came into play, I have seen parents come into an anti-STAAR group and bemoan how much they would like to opt out, but they just cannot fathom their child having 30, 60 or even 90 hours of tutoring to complete. But this complaint just shows how easily swayed parents are by the rhetoric of these schools. The schools warn “HB 4545 TUTORING!” as if the sky is falling, but any parent who has opted out in the past will tell you that the schools have always tried to impose accelerated instruction on Opt Out kids and STAAR failers alike. And they have done it in the summer. And they have done it in the school year. They’ve done it outside school hours. And yes, it was and always has been “subject to compulsory attendance.” There is nothing new here from HB 4545. The only thing new here is that HB 4545 has put a number of hours on it. Now, in a sense that is a step backwards, because the previous statute did not specify an amount of AI to be completed. The SSI manual confirmed this and said the school could tailor it to the needs of the students. Many parents were successful in arguing that they could meet the requirements with a 15-minute online worksheet. So, in a sense the 30-hour mandate is a step backward. But in reality, it is MUCH BETTER than what students often faced. Especially as we hit middle school and high school, the standard approach of the schools was to conduct AI by taking away electives from kids and sticking them into full year, full class period STAAR prep “classes”. The state even tacitly encouraged this by providing a pot of money for these AI classes that schools could use to cover portions of their teacher salaries. Consultants would advise districts on how to maximize their funds with these STAAR prep classes, so you can imagine schools were reluctant to let kids escape them. So rather the 30 hours of AI per subject, students might see 175 hours per subject, but it was hidden as a “class.” What we do know is that almost every opt out was followed by a fight over preserving electives and declining AI. So, while HB 4545 has put numbers to this tutoring requirement, it really has not added anything new. And I think most students who were stuck in a STAAR prep class would have happily traded that for 30 hours of tutoring.
3 – It is Easier to Decline the AI
So, having accepted that one concrete downside of HB 4545 is a set number of hours for AI, why does this not bother me more? Simple. The TEA has given us a gift. Now, we have always held that opt out applies to accelerated instruction. We have authored multiple articles and form letters for this purpose. But this year, the TEA actually examined the issue. More importantly, they did so in a way that makes clearer what they believe. TEA guidance is always very murky and equivocal. When they first put out their HB 4545 FAQ, they already anticipated our opt out approach and advised that “NO” a parent cannot opt out of HB 45454 AI. But then something happened. They went back and rethought that answer. And while their analysis of the question is not as sharp as it should be, it does recognize that HB 4545 AI falls into the same category as almost every other opt out situation – no language that removes it from opt out, and no specific opt out written into the bill. What they do not say is that when this is the case, we apply the general opt out rule of 26.010 — which means you can definitely opt out. And the TEA communicates this in two ways: first, the FAQ no longer says “NO.” Granted it is about three paragraphs of equivocation, but at the end it notes that schools can accommodate these parental decisions via INFORMAL process. This means you do not have to file an appeal or a grievance. There is not a hearing process. You can simply give your notice; the school can remove the child from AI, noting your opt out, and all parties will have followed the law. We never had this with AI under the Student Success Initiative. So, while the length of AI floor is higher under HB 4545, the ability to remove your student from it is now affirmed by the TEA.
4 – Students Are Not Subject to Losing Electives
Finally, one of the true fears that parents used to have over opting out was that as a result of AI, their student would be denied electives. If the kid was an artist, athlete or just in need of an enriching curriculum, opting out threatened to interfere with those objectives. Now most parents could usually negotiate some kind of compromise; but not always. We dealt with some stubborn and punitive districts. Thankfully, they were the exception and not the rule. But there was almost always a process and a negotiation. Under HB 4545, a school is forbidden to remove a student from foundation or enrichment curriculum or PE to administer tutoring. So, loss of electives should no longer be an issue.
As I look at HB 4545 from a parent’s perspective, while I find it annoying, I also find that on balance the situation is far, far better for parents. Worse for schools to be sure; worse for teachers also. But I am here from the parent perspective. Does HB 4545 make it harder or easier to fight STAAR by opting out and refusing to be part of the data collection for the TEA? It clearly makes it easier. It clearly lowers the stakes. And this is true from both a theoretical and practical standpoint. Any parent who raises HB 4545 as a reason not to opt out has not studied either the history of AI or the full scope of HB 4545 and its implementation. As opt out parents, HB 4545 is a mere annoyance at worst, and a help at best.
From the earliest days of the Opt Out movement, the TEA has carved out a dichotomy between Opt Out and parental refusal that has confounded and frustrated parents and, indirectly, led to increased conflict between parents and schools. However, as time has passed, the TEA’s outlook has become increasingly more realistic and focused on de-escalating conflict while still insisting upon participation. For years, we have argued against the scoring of refused assessments. One reason for this is that the practice of scoring refused assessments led to bizarre behavior by schools. While some schools adopted parent friendly approaches like permitting the child to refuse assessment with the parent present, other schools insisted that a child refusing the assessment must be placed in a room, read all the instructions, instructed to begin work, and not released until the full time to complete the assessment passed. Still other schools felt it was fair game to try to trick the students into taking the assessment, leading to predictable ploys like “Your mother just called” and requiring parents to implement password systems to thwart these childish games.
For several years, we have pushed back against those who lay all the blame for bad STAAR behavior on the TEA and pointed out that districts have broad authority to work with parents. In fact, most of the “bad behaviors” we experience due to STAAR are the result of local decisions. When the TEA has acted reasonably, we have applauded them and put the responsibility for bad conduct where it truly belongs. Today is another one of those days. Following several reports of students who stayed off campus for an entire assessment window being scored as having refused, we began to hear rumors that the TEA had told schools that if the parents indicated a refusal, the schools could submit the blank assessment for scoring, even if the student never set foot on campus.
This was a tidal shift, because for years the party line of the school has been “If the student is on campus, we must put the assessment in front of them and tell them to take it.” No more. In response to a recent Public Information Request, TPERN has received documents that confirm that “If the student/parent has refused to test during a particular testing window, the district . . . is not required to put the student in front of the test or a make-up test.” The district need only maintain local documentation of the refusal. This gives the Opt Out letter new importance. Under the guidance of the TEA, the letter now constitutes sufficient evidence to permit the school to submit a blank assessment. The student does not need to be absent for an entire administration window, or even for a single day. And explicitly, the school is not required to put the assessment in front of the student for refusal. As it should be, the word of the parent is sufficient.
Notably, this response was made directly to a district that was asking if it was permissible to not pull a student for makeup testing if they were absent on the assessment day and had a parent note of refusal. Julie Cole made clear, that even if they are there on the assessment day, the school does not have to put the student in front of a test. Similar guidance was given to ESC 14 when a school sought approval of instructions to parents that they must stay home the entire assessment window or take a makeup.
These communications should put to rest any school claims that they are “required” to present the assessment to the student. They aren’t. They never have been. This common sense approach permits schools and parents to work together. It de-escalates needless conflict and permits the viewpoints of both sides to be heard. We applaud the TEA for clarifying this matter once and for all.
For our parents, we suggest:
(1) Use the new opt out letter which contains the refusal language;
(2) Verify with the school that your child will not be presented with the assessment. Use these emails if needed.(Full Copy Lozano Email; Full Copy Wilson Email)
(3) We still suggest being willing to keep the student home for the main assessment days, as the schools are unlikely to be able to accommodate them with any normal learning activities.
In a YouTube video released today, Peaster ISD superintendent Lance Johnson called out the hypocrisy of Gov. Abbott’s political theatre ploy of announcing his fealty to the so called “parents’ rights” movement that is gaining political currency amongst the Republican electorate. After focusing on the school shutdown and mask mandates that came from the Abbott administration, Supt. Johnson then moves to the issue that motivates us at TPERN: the right of parents to refuse their child’s participation in the STATE STAAR accountability assessments. Johnson correctly notes that Abbott has never voiced support for parental rights in this area. And he points out that we haven’t heard STAAR opt out mentioned by Abbott in his latest “parents rights” speechmaking. Supt. Johnson labels it for what is is: political grandstanding that has no real basis in reality when you look at Abbott’s actual beliefs as evidence by his governance of the state, his appointees at the TEA, and his non-mentions of STAAR in any of these speeches. And he closes by arguing for the complete abolition of STAAR. Superintendent Johnson, whether our supporters agree about masks and school closures is unimportant. We thank you for standing up for parents rights and for the kids on the issue of STAAR and parental opt out.
This PDF contains the questions and answers from our weekly “Basic Questions” thread on the TxEdRights Facebook Page.
When the Texas legislature imposed EOC graduation requirements on Texas students, they threw out a very important bone that Opt Out parents utilize to their advantage: the right to use substitute assessments to satisfy graduation requirements. This is a legislative determination and can’t be restricted by local schools or the TEA. The TEA is charged with making rules to determine qualifying assessments and scores and the process (consistent with the statute) to use them.
In fall 2019, the TEA proposed a rule that would have required a student to sit for and fail an EOC examination before using a substitute assessment to meet graduation requirements. Long story short, the rule was an ill advised attempt to address the federal Dept. of Education decision to no longer accept substitute assessments as meeting the federal assessment requirements. Of course, this has nothing to do with graduation, but the TEA thought by requiring the EOC before approving a substitute assessment for graduation, they would increase EOC participation.
We immediately fought back against the rule, because it dangerously conflated federal accountability requirements (that have never been tied to state graduation policies) with our own state law graduation requirements which expressly allow the use of substitute assessments. Based on TPERN’s call to action, parents, teachers and other activists flooded the TEA with comments against the rule. Most obviously, we pointed out that there is no need to restrict graduation access based on EOC attempts just to meet federal accountability. The proposed rule already said that a student who uses a sub assessment to graduate must still take the EOC for accountability purposes. There was no need to add a hammer by saying “and if you don’t you can’t graduate.”
When this was announced, we were up against the wall. The TEA had already started telling districts that this would be the rule and training them to enforce it. We immediately told parents to submit all qualifying sub assessment scores before the rule went into effect. That drove the districts crazy. They actually thought they could deny complying with the current law on the basis that it would change in the future. It was like talking to children who had never taken a civics class. We wrote nasty letters. We ended up getting school district lawyers writing us letters telling us not to contact their counselors! We responded of course that their counselors should not give false information if they did not want to be contacted. It was a done deal we were told over and over. But the letters our members sent got their attention.
A public hearing was held and several parents testified making these same points. Nobody showed up to defend the test first requirement. And when the new rule was published, the TEA agreed with us! They struck the language from the rule that said a student must attempt the EOC before being eligible to use a substitute assessment to meet graduation requirements.
Note where this language appears. This is the section of Commissioner’s Rule 100.4002, which sets out when a student is eligible to use a substitute assessment to satisfy EOC graduation requirements. They removed the language that says the student had to take the EOC at least once to be eligible. That’s gone. And no other language anywhere in the rule is tied to eligibility to use the sub assessment to satisfy graduation requirements. Everything else has to do with federal accountability, which is completely unrelated to state level graduation requirements. The rule on eligibility is unchanged from prior years.
(Source: http://ritter.tea.state.tx.us/rules/tac/chapter101/ch101dd.html)
The removal of the prior attempt requirement was no mistake. The TEA recognized that they could simply ask sub assessment students to take the EOC for accountability reasons only regardless of the acceptance of the sub assessment for graduation purposes. They explicitly agreed that there was no need to add a prior attempt requirement when a different part of the rule (related to accountability not graduation) provided a means to assess students who have already met their graduation requirements by substitute assessment.
Source: https://tea.texas.gov/sites/default/files/20_02_101-4002.pdf
Not clear enough? In the section titled Reasoned Justification, this same adoption document is explicit:
The subsection that would have “require[d] students to take an EOC assessment . . . prior to being eligible to use a substitute assessment to meet graduation purposes” was “removed at adoption” because it was “not needed.” Simple enough, right? The TEA agreed with the parents, dropped the rule change and told the schools to handle accountability on the back end by giving the EOC to everyone, but that using substitute assessment for graduation was pretty much unchanged. What could be difficult about that?
Well as it turns out, almost everything. Because the TEA had spent much of the fall preparing districts for the new requirements (you know, the ones that were removed), the districts simply did not believe they had really gone away. Almost immediately, they began to deny acceptance of substitute assessments on the baseless ground that the student had to first sit for the EOC.
This situation was aggravated by the fact that the TEA failed to update it’s slide show on the new rule even after the amendments were made. We pointed that out to the TEA and they corrected that omission.
Note what is also clearly stated in this email. “[S]tudents are NOT required to take a STAAR EOC assessment prior to using a substitute assessment to fulfill graduation requirements. That requirement was removed from the rule during rulemaking.” This clear statement expresses precisely what happened with the rule and the current state. Unfortunately, this kind of clear information is foreign to the TEA in its official communications.
Schools continued to insist that the proposed, rejected and outdated version of the rule was in force. There never was any such rule, there was only a failed proposal.
To address this, the TEA issued a “clarification” to the schools. While the clarification accurately states that “Based on public comment, the proposed requirement to take an EOC assessment prior to using a substitute assessment for graduation purposes was removed,” it does not state the obvious corollary: “students are NOT required to take a STAAR EOC assessment prior to using a substitute assessment to fulfill graduation requirements.” So many schools continued to insist that such a requirement existed. Some even said “still” existed, though no such requirement ever existed before, during or after rulemaking. It was proposed; it was rejected; it doesn’t exist and never did exist.
So the confusion continued. Just days after the clarification, we see this:
Again, a lack of clear direction led to an inability of the district to understand that graduation purposes and accountability requirements are decoupled. They always have been in Texas. They never were linked. They just both used the same assessments to get to their end points. To her credit, Julie Cole at the TEA has been absolutely clear with districts that using substitute assessments for graduation is not related to taking the EOC for accountability. But still, the misinformation continues:
Why do schools continue to mislead parents about substitute assessment requirements? On the one hand, a large amount of blame lies with the TEA for training schools on a proposed rule that was ultimately not adopted. When the rule was actually adopted without the proposed change, there was no fireworks show on a level of the initial rollout to alert schools to the actual form of the adopted rule. So many just continued to use the process that was presented in the initial training. A clarification that did not use the same clear language that the TEA uses in emails did not help. However, at the same time, there is some amount of willful ignorance at play. Schools have always made claims about “requirements” and absolutes of STAAR if they felt it would motivate students to participate and try hard. Telling them they have to attempt STAAR first is just another instance of this. Some district even overtly lie and throw this nonexistent requirement onto their website. I’m looking at you Katy ISD – an embarrassment of a district that has been wedded to data obsession since the pathetic tenure of TEA-sycophant, Dr. Allison Matney. I’m looking at you Pine Tree ISD – spreading false information 9 months after the TEA clarification! And I am especially looking at you Round Rock ISD – for telling your parents and students the precise opposite of what the law and the TEA says. This deserves a special view:
RRISD Website: 
TEA Clarification:
Julie Cole’s Clear Language:
If a district has any doubts, ask Julie and she will tell them straight:
So how and why do sophisticated districts continue to get it wrong? Why am I so hard on RRISD especially? Because they prove my point that this isn’t confusion or innocent error. This is deliberate misinformation. Over the course of two years, I brought this error to the attention of the General Counsel of the Round Rock ISD after she had “forbidden” me from contacting their counselors directly. On the phone she acknowledged the effect of the rulemaking, but she steadfastly refused to do so in writing or to make any effort to change the misinformation on the district website. In fact, she never even responded to this March 2021 email – over a year after the TEA clarified its position and she and I had a verbal agreement on the matter.
So, no, schools don’t innocently get this wrong. Not after two years and numerous corrections. The lies are deliberate and they are designed to do one thing: prevent parents and students from exercising their statutory rights to use substitute assessments to meet graduation requirements. If your district does this please report it to us and to Julie Cole at the TEA.
What do we propose that parents do when they have a qualifying substitute assessment score?
I can’t tell you how tired I am of hearing this. Parents of kids as young as third grade hear this. Some parents have even been told that passing STAAR in elementary school is required to graduate high school. We’ll file that claim as “too stupid to merit a response.” But let’s consider what underlies these types of claims being made to parents of younger students. The only reason to mention the EOC requirements to a elementary or middle school student as a reason to take STAAR is an underlying belief that taking the 3rd to 8th grade STAAR somehow prepares the kids for their high school EOCs. (EOC is what STAAR is called in high school. Every EOC is a STAAR and there are no high school STAAR assessments that are not EOCs). Let’s consider three reasons why this argument is weak. First, the Grade 3-8 assessments are generalized grade level (in theory) academic assessments untethered from any specific class content. The EOCs on the other hand are designed to assess content mastery at the end of a specified course of instruction. These are two different objectives, and they should not be conflated. Second, there has never been any demonstration that simply taking STAAR makes students any better at taking it the next time. To the contrary, the research tends to show that the kids who pass one tend to pass others and kids who fail are not somehow elevated to passing by more test taking practice. Finally, it ignores the fact that the curriculum is packed with assessments – whether part of the class or part of district benchmarking – designed to mimic STAAR. Your students will have no shortage of “practice” before their first EOC. But let’s get back to the point. Do you really have to pass STAAR to graduate? The answer is no.
Now, let’s be clear. Passing all five EOC assessments is one way a student can meet the requirements for graduation from a public high school. (Notably no such requirements apply to private schools or home schoolers.) But it is not the only way. What are the other ways?
And if you don’t make any of those options work, you aren’t stuck. There are two remaining options to make sure your kid graduates. One is accredited. The other isn’t.
So the next time the school tells you that you have to pass five EOCs to graduate high school, you can just nod knowingly and wonder whether they really don’t know or whether it is just more subtle intimidation for parents.
