Tag: accelerated instruction

“Unfortunately There is No Opt Out” – Try Again, Schools!

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.

Opt Out and Compulsory Attendance: A Red Herring

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.

HB 4545 Isn’t So Bad      

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.

Expressio Unius Est Exclusio Alterius

This Latin phrase, used in the law, means “the expression of one thing is the exclusion of the other.” In other words, when certain things are specified in a law, an intention to exclude all others from its operation may be inferred.

Why do I tell you this? Because the brilliant lawyers that school districts hire with your tax dollars love to ignore that age old maxim when it comes to parental requests to opt out of full period AI. You see, the Opt Out law says: “(a) A parent is entitled to remove the parent’s child temporarily from a class or other school activity that conflicts with the parent’s religious or moral beliefs if the parent presents or delivers to the teacher of the parent’s child a written statement authorizing the removal of the child from the class or other school activity.  A parent is not entitled to remove the parent’s child from a class or other school activity to avoid a test or to prevent the child from taking a subject for an entire semester.

Now catch that last part. The law specifies two things that define when a parent is NOT ENTITLED to remove the child from an activity. The first is to avoid a test, which does not apply to full period AI classes. The second is to prevent a child from taking a subject for an entire semester. This also does not apply to removal from full period AI as (a) the student already has other math or language arts classes and (b) by offering to do AI outside of the full period setting, the parent defeats any argument that AI itself is a subject we are trying to avoid.

So when the school tells you that you are not entitled to remove your child from full period AI because another part of the Education Code says its required (it doesn’t really say that, but let’s pretend with them), just remind them that under the principle of Expressio Unius Est Exclusio Alterius, accelerated instruction can never be considered an exception to 26.010, because the law presumes that all exceptions have been incorporated in the statute and unexpressed ones cannot be implied.

NOTE: This theory applies equally if not moreso to AI that is not in place of electives.

TEA Scraps 5th/8th Grade STAAR Consequences

Facing a pending deadline to answer the lawsuit filed by four Texas parents challenging the 2016 STAAR administrations for grades 3-8, TEA Commissioner Mike Morath announced major changes to 5th and 8th grade STAAR for this year.  In a letter to Texas administrators, Morath announced that the TEA was “removing student consequences attached to STAAR testing for grades 5 and 8 for the remainder of the 2015-16 assessment cycle.”  These changes include requiring passage for promotion or requiring accelerated instruction as a result of the STAAR results. GPC meetings (the source of promotion decisions and accelerated instruction plans) are also no longer required. In an interview with the Dallas Morning News, the Commissioner did state that he intended to use the results for accountability ratings for schools.  In keeping with the detachment of consequences, the June retest for 5th and 8th graders was cancelled.

The Commissioner left open for district decisions regarding continuing planned accelerated instruction, but made clear it was not a requirement imposed by the state.

Attorneys for the parents stated that they were reviewing the TEA’s announcement and awaiting the answer to the lawsuit.

The “Required” Summer School Notice

As the first results of the STAAR assessment come in and the days left in the school year slip away, more and more parentsof kids who failed or did not take the first assessment are receiving notices that their kids are “required” to go to summer school.  Round Rock ISD is even sending notices that the district has registered the student for summer school.  They may tell you that if they don’t attend, they will be in violation of the compulsory attendance laws.  They may tell you that unless you attend summer school you can’t be promoted by the GPC. As parents of 5th and 8th graders there is one simple and important fact you need to know:

Schools cannot unilaterally require your child to attend summer school as a result of their STAAR results.

The notices these schools are sending are a blend of truth and fiction, and it is important to understand what part is true and when you need to be concerned about it.  Let’s start with the part that has some truth to it.  The compulsory attendance statute does state that (d)  “Unless specifically exempted by Section 25.086, a student enrolled in a school district must attend:

* * *

(3)  an accelerated instruction program to which the student is assigned under Section 28.0211;

and Section 28.0211 (a-1) states that “[a]ccelerated instruction may require participation of the student before or after normal school hours and may include participation at times of the year outside normal school operations.”

This would seem to indicate that a school really can require your kid to go to summer school if they fail STAAR.  However, for parents of 5th and 8th graders, the key is this.  After the second administration of STAAR, if a child has still not passed, the accelerated instruction must be determined by the Grade Placement Committee that you are a part of.  This is clear in the statute where it states:

“After a student fails to perform satisfactorily on an assessment instrument a second time, a grade placement committee shall be established to prescribe the accelerated instruction the district shall provide to the student before the student is administered the assessment instrument the third time.”

And the parent is a member of this committee!  In other words, the school may not unilaterally send your kid to summer school for not passing STAAR.  A quick caution, there is no GPC process for grades 3, 4, 6 or 7.  If you get a summer school notice in those grades you will need to either protest and reach a new agreement with the school, exercise your 26.010 opt out rights, or withdraw your child from the school for the summer.

It is apparent based on parental reports that most schools are skipping the GPC meeting after the second administration and sending out summer school notices. So what should the strategy be for parents who are receiving these notices.  The first option would be to request your GPC meeting as soon as the second STAAR assessment is taken and come up with an agreeable Accelerated Instruction plan.  Since there is no required time, length, form or content of accelerated instruction, I recommend that parents propose a short home based or online program.  The more research you have done into what a plan like this would look like, the better chance you have of succeeding.  The school just needs to document their file for the state.  The more you help them do that, the better chance they agree.  The second option would be to simply ignore it.  Any accelerated instruction plan following the second assessment that is created by the school and not by the GPC is legally void.  Make sure that you are looking carefully for notices and do not miss the meeting if your school schedules one.  If you ignore the notice of the GPC meeting, the school can proceed without you.

Finally, please note that when the GPC meets to consider promotion, they are again required to prescribe accelerated instruction.  Further, for 5th and 8th graders note that “A student who fails to perform satisfactorily on an assessment instrument specified under Subsection (a) and who is promoted to the next grade level must complete accelerated instruction required under Subsection (a-1) before placement in the next grade level. A student who fails to complete required accelerated instruction may not be promoted.”  For this reason, it is dangerous to refuse the accelerated instruction that follows the first failed attempt.  It is very important that the parents and the school agree on what that accelerated instruction should be.  Make sure that when you refuse, the schools agreement is specifically phrased as an agreement on accelerated instruction – not just an exemption or excuse.  Again, accelerated instruction can be as simple as a single online lesson or one in school tutorial.  Whatever it is, make sure it is documented and agreed.

The GPC Process – TEA Flowcharts

For parents of 5th and 8th graders who have opted out or failed STAAR, these flow charts show the process for determination of Accelerated Instruction and Promotion/Retention.

General Education Students (p. 8 of SSI Manual)

gpc process - gened

Special Education

For special education students, the ARD committee acts as the GPC. (p. 27 of SSI manual)

gpc for sped

Denton ISD Issues Void Summer School Order; TPERN Responds

Following in the footsteps of Houston ISD, which hastily admitted its error, the Denton Independent School District has started sending notices to parents of

Denton ISD Illegally Orders 5th Graders to Summer School
Denton ISD Illegally Orders 5th Graders to Summer School

children who did not pass the 5th grade STAAR reading informing those parents that their children will be required to attend summer school if they do not pass the second administration of STAAR.  This “determination” is illegal and void.  This notification is of no legal effect.  Simply put, under the Education Code,  the District lacks the authority to mandate summer school for any student based on STAAR results.

The Education Code is clear.  Accelerated instruction, which may be, but does not have to be in the form of summer school, is determined by a Grade Placement Committee composed of the school principal (or his/her designee), the subject area teacher, and the parent.  The school district has no power under the Education Code to determine anything.

Section 28.0211(c) of the Texas Education Code provides:

After a student fails to perform satisfactorily on an assessment instrument a second timea grade placement committee shall be established to prescribe the accelerated instructionthe district shall provide to the student before the student is administered the assessment instrument the third time.  The grade placement committee shall be composed of the principal or the principal’s designee, the student’s parent or guardian, and the teacher of the subject of an assessment instrument on which the student failed to perform satisfactorily.” (emphasis added).

In this case, the second administration has not occurred.  The GPC has not even been formed.  Yet, Mary Helen Martin, Denton ISD’s Director of Elementary Curriculum, has taken it upon herself to refuse to follow the law.  This decision lies in the hands of the local school employees together with the parents.  Ms. Martin doesn’t get a vote.  Moreover, the Texas Education Agency clearly dictates that Accelerated Instruction should not be a one size fits all “everyone goes to summer school” approach.  In the Student Success Initiative Manual, the TEA indicates that accelerated instruction should be individualized to the needs of the individual student.

Neither the law nor the rules specify the amount of time to be provided for the accelerated instruction. To support the SSI grade-advancement requirements, the law and the commissioner’s rules provide districts and charter schools with flexibility to determine on an individual student basis the appropriate form, content, and timing of the accelerated instruction. The policy governing accelerated instruction is intended to allow districts flexibility to meet individual student needs.” (p. 33).

These types of blanker summer school orders go against everything accelerated instruction is intended to accomplish.  Texas Parents’ Education Rights Network calls on Ms. Martin and Denton ISD to issue a corrective letter to parents immediately.  These types of legally erroneous letters destroy trust between parents and schools.  They are intended to mislead parents into consenting to remediation plans that are not legally required.  They are designed to replace the cooperative relationship between parents and local school employees that the legislature envisioned with top down standardized decision making imposed by the district administration on its students.

TPERN attorneys believe that the summer school determination contained within Ms. Martin’s letter to Denton ISD is legally void as it was not prescribe in compliance with the Education Code.   Denton ISD must follow the legal process for determining accelerated instruction, which means each child’s parent must be an active partner and participant in the decision making process.

TPERN Responds to Houston ISD Warning Letter

The Houston Chronicle recently published an article noting that Houston ISD had sent a warning letter to parents who opted out of STAAR assessment.  The letter was full of legal and factual errors, but was also notable for its blatant declaration that mandatory summer school awaits all kids who have opted out of STAAR.  This is contrary to law.  TPERN’s response is found below.  This response will be sent to Houston ISD, the Chronicle and Houston CVPE.

Regarding the recent article:  HISD letter warns parents against opting out of tests (4/24/15)

In the Chronicle’s coverage of the CVPE alternative learning event, the following quote correctly summarized the ability of parents to refuse standardized assessment for their children.

“”The fact is parents can request their child be removed from standardized testing,” said Elaina Polsen, executive director of communications with Clear Creek ISD”.

Unfortunately, Houston ISD apparently cannot comprehend that there is no method in statute to force assessment.  Parents cannot and will not be compelled to submit to standardized assessment of their children.  Instead, Houston ISD and Mr. Gohl have chosen the route of fear-mongering and intimidation to try to persuade parents to provide data on an assessment that has serious validity issues.  In so doing, however, Mr. Gohl has apparently announced that it is Houston ISD, and not the parents, that will refuse to follow the Education Code.  Such a posture is intolerable, and Mr. Gohl or those who formulated this illegal policy should be immediately terminated.  Lawless behavior should not be rewarded with a paycheck from the taxpayers.

I refer to the following line from Mr. Gohl’s letter to the parents of opt-out kids.  “[S]tudents will be required to attend summer school and will be reevaluated by the Grade Placement Committee prior to the end of summer school for a determination of promotion or retention.”  Mr. Gohl even bolded and underlined “attend summer school” so parents would know he is serious.  Mr. Gohl is not following the law.

Section 28.0211(c) of the Texas Education Code provides:

After a student fails to perform satisfactorily on an assessment instrument a second time, a grade placement committee shall be established to prescribe the accelerated instruction the district shall provide to the student before the student is administered the assessment instrument the third time.  The grade placement committee shall be composed of the principal or the principal’s designee, the student’s parent or guardian, and the teacher of the subject of an assessment instrument on which the student failed to perform satisfactorily.” (emphasis added).

Now, the second administration has not occurred yet.  As a result, no Grade Placement Committees have been formed and no course of accelerated instruction can have been prescribed.  Indeed, the parent is a member of the committee and must be involved in developing the Accelerated Instruction plan.  Yet, Mr. Gohl seems to suggest that the decision has been made.  Summer school is required . . . for everyone.  If this is the case, Houston ISD is in plain violation of the law, and has not prescribed a valid accelerated instruction plan.  I would suggest that if Houston ISD is concerned about following the Education Code, it look at itself first.  Get rid of petty bureaucrats like Mr. Gohl who think that the law does not apply to them.

I would also note that a one size fits all summer school prescription goes against everything the concept of Accelerated Instruction is intended to address.  The TEA’s Student Success Initiative Manual is clear on this:

Neither the law nor the rules specify the amount of time to be provided for the accelerated instruction. To support the SSI grade-advancement requirements, the law and the commissioner’s rules provide districts and charter schools with flexibility to determine on an individual student basis the appropriate form, content, and timing of the accelerated instruction. The policy governing accelerated instruction is intended to allow districts flexibility to meet individual student needs.” (p. 33).

The idea the summer school is required for STAAR failures is a myth.  The idea that schools can unilaterally impose it is a myth.  Mr. Gohl knows this, but he chooses to ignore the law and try to scare parents into submitting their kids for assessment.

This type of behavior by a public servant is intolerable and I call on the Houston ISD to repudiate it immediately.

Sincerely,

 

R. Scott Placek
Chairman
Texas Parents’ Educational Rights Network

Note: This response does not address numerous other legal errors contained in the letter from Houston ISD.

Update:  Houston ISD has admitted the letter to Opt Out parents contained errors regarding required summer school.  The blame this on an editing error.  Full article here.

An Opt Out Course for Schools

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.

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