Five Responses When The School Says 26.010 Means You Can’t Opt Out

It’s that time of year.  Schools are sending around copies of Tex. Ed. Code sec. 26.010, accusing Opt Out groups of misleading parents, and trying to coerce people into subjecting their kids to assessments.  Don’t be a sheep.  The TEA’s interpretation of Tex. Education Code sec. 26.010 has never been affirmed by any court.  This is just what they hope it means.  There are strong legal construction arguments which indicate that the TEA is wrong.  Here are five different responses to the 26.010 argument.  If the TEA or any school district lawyer can provide a case that says any of these are incorrect, let’s see it.

Five Responses When the School Cites 26.010 Saying It Prohibits Opt Out

1 – The STAAR is not a test; it is an assessment. STAAR is created by Chapter 39 of the Education Code which refers to it as an assessment over 450 times, while referring to other testing instruments as tests. The Legislature is presumed to intend the words that it chooses. By choosing to call STAAR an Assessment and not a Test, the Legislature precludes the school from relying on the “avoid a test” portion of 26.010.

2 – Chapter 26, taken as a whole, shows STAAR is not a test. Chapter 26 contains parental rights provisions, including the right to access various curricular material. It contains a separate section for access to assessments (26.005) and access to tests (26.006). Thus, in the same chapter as 26.010, the legislature clearly indicates that there is a difference between assessments and tests. You can’t conveniently conflate the two concepts when the legislature has purposely distinguished them.

3 – Access to STAAR is available to parents only through 26.005 and not 26.006. Apart from the definitional issue, the practical reality shows that STAAR is not a test. If STAAR were a test, schools would be required to provide parents access on school premises under 26.006. They do not and cannot. The only access is from the TEA under 26.005. If you get a 26.010 letter from the school try this response: “Dear School: If STAAR is a test, I demand access to it after my child takes it at the school under Texas Education Code 26.006. If you cannot provide me a date to examine the STAAR assessment at the school within 30 days, I will presume that you do not really believe it is a test.” (Update for 2019: Although this point is still technically true, with the addition of STAAR questions to the parent portal, the difference in access is much less stark.  For that reason I’d don’t suggest using this tactic, other than to note what is stated in the first sentence).

4 – My purpose is not to avoid a test. Section 26.010 is written in terms of purpose and not effect. A parent can’t invoke 26.010 to avoid tests. They can invoke 26.010 on the basis of their religious or moral beliefs, and that may result in a missed test. If the school’s interpretation were correct, parents could opt their child out of sex ed classes, but then be required to return to the class and view graphic anatomical charts on a test. That is not how 26.010 works and the schools know it. They are simply reading it that way to coerce parents into letting their kids be assessed.

5 – Subsection (b) does not limit opt out rights. Subsection (b) simply codifies the fact that parents who choose to opt out must still satisfy grade level or graduation requirements. Reading (b) as a limitation on (a) even though it contains no limiting language or exception language is sloppy lawyering.  It indicates a desire to reach an outcome, not analyze an issue.  Since substitute assessments and GPC processes exist to accomplish both promotion and graduation requirements, subsection (b) cannot be read as a limitation on the right to Opt Out of an assessment, even if that was the intent of the subsection! In fact, the better argument is that the existence of subsection (b) shows that parents can opt out but must still meet grade level or graduation requirements of the school.

April 13, 2015


August 30, 2019

Comments (7)

  • In 2002 the Texas Attorney General ruled that “test” and “assessment” and be used interchangeably. Tex. Att’y Gen. Op. JC-0478 (2002)

    • That most certainly was not what the AG “ruled.” The AG was dealing with an issue of delegated authority and rulemaking as between different agencies. The fact that the AG used the terms interchangeably on two occasions is not a “ruling”. It is not even what a lawyer would call “dicta”. It is a word choice used by the drafting attorney. That is quite different than deliberate word choices made by the Legislature. The actual ruling in that AG opinion is that “The State Board of Education may not adopt a rule infringing on the authority over [preparation of assessment instruments] that the legislature has specifically delegated to the Texas Education Agency.”

      Moreover AG opinions are not binding on courts, they are not even persuasive authority on statutory construction issues. I am sure if you asked your school lawyer about that in a venue other than a pamphlet intended to intimidate parents, they would tell you the truth about exactly what an AG opinion means and doesn’t mean. This is true even if the AG opinion was directly on point, which this one is not. You really should stop posting misleading information taken from TEA and TASB publications without subjecting it to at least a little legal analysis. Don’t parents deserve better from school administrators?

  • Whether it is an assement or a test it causes undue hardship and stress on students and parents of students who are making grades high enough to advance to the next grade level. No student should be punished by being held back or being required to do extra work as an result of this “test or assessment “.

    • What causes undue hardship and stress on students is asinine administrators who think they know what is best for other people and other people’s children. Why don’t you put your focus on why assessments and tests are being dumbed down and test scores in America are plummeting despite increased funding?

    • I couldn’t agree with you more! I never got my diploma in 94’despite have more credits that were needed to graduate and being able to exempt my finals due to passing grades but take the TAKS test just the math portion several times and finally giving up after being 7 pts away from passing it. I ended up having to take the GED in order to go to community college. What’s the point of all the of hard work if the test bc it’s definitely not just an assessment, if you end up up having to take the GED??? It should have nothing to do with whether you move on to the next grade or if you get your diploma.

  • My son is home schooled through Khan academy and ” Texas virtual network! ” He’s THINKING ABOUT FUTURE W PURPOSE AND PASSION!! When in public school he was bullied due to autism spectrum disorder and socially awkward?!
    He was bullied by staff and students.. I am blessed to be a witness to this amazing opportunity..

    • Wow this also happens to my child he also has autism with as bugers and a learning disbilty and I just moved him to New Mexico education because Tx didn’t not keep up with his evaluations on him I’m looking at Tx rights lawyer now they did wrong to my child ! Needed 1/2 creit to graduate !!

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