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Accountability Articles STAAR | EOC Testing

Graduating By Committee – General Ed Students

This article will discuss the Individual Graduation Committee Process for students who have not passed all five of the EOC exit exams as they approach graduation.  This articles does not address the graduation options for Special Education students.  It does include any student covered by a 504 plan.  The IGC process allows a student to graduate by committee decision if they have failed to comply with the EOC requirements “for not more than two courses.”  So let’s start at the beginning and walk through it.

The Texas Education Code requires passage of five End of Course assessments to receive a diploma from a public high school.  (CITE).  Those five courses are English I, English II, Biology, Algebra I and US History.  Three of those are usually taken in ninth grade, one in tenth grade and one in eleventh grade.  A student who does not pass the assessment has another opportunity in the summer and then three opportunities in each following year to try to pass.  So a parent who permitted their kid to stay on this merry go round could potentially have their kid take 46 EOC assessments while chasing that paper.

Fortunately, there are alternatives.  Many parents choose to have their kids attempt substitute assessments.  But usually when a parent comes here looking for help, it is because their junior or senior has passed some of the EOCs, but still lacks having all five needed for graduation.  And time is running out.

The good news is that for many of these kids, they do not need to pass all five EOCs to graduate.  For most of them, the IGC (Individual Graduation Committee) option offers them a path to the diploma.  A diploma issued by the IGC is precisely the same as the diploma a student who passes all five EOCs will receive.  There is no notation or limitation on the student’s ability to attend college, enter the military, or make any other use of their high school diploma as a result of using the IGC process.

Who is Eligible to Graduate Via IGC?

This is determined by the plain language of the statute: “This section applies only to an 11th or 12th grade student who has failed to comply with the end-of-course assessment instrument performance requirements under Section 39.025 for not more than two courses.” Tex Educ. Code §28.0258 (a).  Now this seems simple enough – pass three out of five and you are eligible — but there are a few caveats to deal with.

First, the Commissioner has added requirements to the statute.  We can argue about whether he can restrict access to IGC graduation in a manner that the legislature did not, but for purposes of this article we are trying to get you to the IGC without a fight.  The commissioners rules add an “attempt” requirement to IGC eligibility.

A student may not graduate under an individual graduation committee if the student did not take each EOC assessment required by this subchapter or an approved substitute assessment in Subchapter DD of this chapter (relating to Commissioner’s Rules Concerning Substitute Assessments for Graduation) for each course in which the student was enrolled in a Texas public school for which there is an EOC assessment. A school district or charter school shall determine whether the student took each required EOC assessment or an approved substitute assessment required by Subchapter DD of this chapter. For purposes of this section only, a student who does not make an attempt to take all required EOC assessments may not qualify to graduate by means of an individual graduation committee.

19 TAC §101.3022(e).  Here the commissioner rules say two different things while repeating itself.  First, it says that to graduate by IGC, the student must have actually taken each EOC or a substitute assessment for each course they took in a Texas public school that has an EOC attached to it.  Then at the end, it seems to say that they must actually have attempted all of the EOCs, not the EOC or substitute assessment.  Let me be clear that I do not think this intends to say that a student who passes a substitute assessment and never attempts the EOC cannot graduate by IGC.  Or similarly, if the student took and passed Algebra I in Oklahoma (and thus exempt from EOC passage), I don’t think this rule means he has to attempt the Algebra I EOC before being eligible to graduate by IGC. But I do think that if they fail to pass the substitute assessment and never attempt to the EOC for that course, the school might deny them access to the IGC.  For that reason, if you are relying in an IGC to graduate, we recommend that you attempt each EOC that you are missing one time.  Refusing in person (turning in a blank answer sheet or tabbing through to the endand submitting) is an attempt.

How do we count “no more than two.”

As a matter of shorthand, we often say things like “3 out of 5” makes you eligible for an IGC.  But we really do need to use the no more than two language.  The number of required assessments to graduate is going to vary according to the student.  As sec. 29.025 points out, the satisfactory performance requirement only applies to “a course in which the student is enrolled and for which an end-of-course assessment instrument is administered.”  If the student was in private school or out of state at the time of their enrollment, they do not have to pass an EOC to graduate.  So those do not count when counting whether the student “has failed to comply with the end-of-course assessment instrument performance requirements under Section 39.025 for not more than two courses.”

Example 1: Joe takes and passes Algebra I and English I in private school in 9th grade.  In 10th grade, he goes to public school, takes and passes the Biology I course and EOC, passes English 2 course but fails the EOC, and then passes US History in 11th grade, but fails that EOC also.  Joe is eligible to graduate by IGC.  Sec. 39.025 only required that he take and pass Biology, English II and US History to graduate.  Even though he has only passed one EOC, he has failed to comply with the requirement in only two classes.  Because he has not failed to comply in more than two classes, he remains eligible to graduate under an IGC.

Example 2: Miranda is a newly arrived ELL student in 9th grade.  She received the ELL exemption from passing English I and the assessment is not administered to her.  She fails all her 9th grade EOCs that she attempts, but later passes Algebra I and Biology.  She fails passes all her classes, but fails her English 2 EOC and her US History EOC.  Miranda is not eligible to graduate by IGC.  Although she has only failed two EOCs, her exemption from English I comes from an administrative rule, and not from sec. 39.025. She has failed to comply with sec. 39.025 requirements in English I, English 2 and US History.  This is more than two classes.  Note that if Miranda passed all EOCs other than the English I exempted EOC, she would not need an IGC because she could graduate using her exemption.

When does the IGC meet?

This is one of the most frustrating parts of the statute.  The law provides that the school “shall establish an individual graduation committee at the end of or after the student’s 11th grade year to determine whether the student may qualify to graduate as provided by this section.” Unfortunately, the day before 12th grade graduation is still “after” the 11th grade year, and many schools have taken this approach of waiting to the last minute.  The good news?  The  law expressly permits schools to start the IGC process as soon as 11th grade ends.  There is no need to sweat graduation to the last minute.  Parents should request the IGC be established at the end of 11th grade and be persistent in the Fall of 12th grade.  The IGC can meet, prescribe any remediation required, and ease everyone’s concerns as the student completes any required work. If the school claims they do not meet until late spring, remember this is not a legal requirement.  Rather it is just a local preference.  There is no reason the school cannot get started in the fall.  You should  be  persistent with the campus and district administration seeking an early start to the process.  Engage your local school board if needed.  Keeping people hanging on and worried is unnecessary, counterproductive and often just punitive.  We should not tolerate it.  In all things, document in writing and record phone calls.

Do I have to keep taking the EOCs every time they come up?

NO!  Even the commissioner’s rules only require a single attempt.  The school is required to offer it.  Your choice not to take it does not disqualify you from IGC eligibility. When the IGC process was new, a very uninformed ESC put out a powerpoint claiming there was a two attempt requirement for IGC eligibility.  It spread like wildfire because there was no other guidance available.  We had to intervene to get this corrected at the ESC level, but many campuses still believe it.  Even in the last two years, Pearland ISD has claimed a two attempt requirement existed. It doesn’t.  We even wrote an article about it.  IGC Graduation Does NOT Require Two Failed Attempts on EOCs  The myth was so pervasive that the TEA even had to respond to it in its rulemaking,

99 Tex Reg 5900, 5901 (Oct. 11, 2019).  One attempt satisfies the commissioner’s rule.  Nothing else is required.

Who is a member of the IGC?

The commissioner rules (19 TAC 74.1025) answer this question.  The individual graduation committee shall consist of the following:

(1) the principal or principal’s designee;
(2) for each EOC assessment instrument on which the student failed to perform satisfactorily, the teacher of the course;
(3) the department chair or lead teacher supervising the teacher described by paragraph (2) of this subsection; and
(4) as applicable:
(A) the student’s parent or person standing in parental relation to the student;
(B) a designated advocate if the person described by subparagraph (A) of this paragraph is unable to serve; or
(C) the student, at the student’s option, if the student is at least 18 years of age or is an emancipated minor.

In the event that the teacher identified in subsection (f)(2) of this section is unavailable, the principal shall designate as an alternate member of the committee a teacher certified in the subject of the EOC assessment on which the student failed to perform satisfactorily and who is most familiar with the student’s performance in that subject area.

In the event that the individual identified in subsection (f)(3) of this section is unavailable, the principal shall designate as an alternate member of the committee an experienced teacher certified in the subject of the EOC assessment on which the student failed to perform satisfactorily and who is familiar with the content of and instructional practices for the applicable course.

A few practical notes: schools often try to stack these committees with all sorts of people that are not on the list above: counselors, testing coordinators, multiple administrators.  So long as the outlook is “how do we get this kid graduated” that shouldn’t be a problem.  However, if it starts to get contentious, realize that there may be people piping up who shouldn’t even be in the room.  It may make sense to identify who is actually on the committee and ask those who are not to either leave, or not interrupt the discussions.

With students who are 18, the parent is the presumed representative.  However, because the student has the option to serve instead, schools often pull students from class and try to do these meetings on little to no notice.  This is one reason to be proactive in getting the meetings scheduled.  Also, discuss the importance of the meeting with your kid and see if he will write a directive to the school that they want you representing them and should contact you for any meetings.

How does the IGC make its decision?

To understand the various factors the legislature requires the committee to review, it is helpful to look at the IGC meeting guide from ESC 12. (View the form here.)

In Section III you will find the required committee considerations.  No single factor has dispositive weight.  It is not the case that one “no” on a factor means you can’t graduate.  Rather the test is a balancing test and the committee can use its discretion to weight each factor as it sees fit.  At the end of the day, the committee can make a recommendation to graduate the student or not.  If the decision is to graduate them, they must require either a project in each lacking EOC course or the preparation and review of a portfolio demonstrating mastery of the subject.  We strongly urge parents to retain work from each EOC course that is not passed so the portfolio is a viable option.  Save good test results, papers that got good grades and any other work that shows the student has a mastery of the subject.  Without this, it is impossible to do a portfolio and you must default to a project, which means new work.

What can the IGC require for graduation?

A project or a portfolio for each course that does not have a passing EOC or substitute assessment must be assigned if the student is permitted to graduate.  The committee is also permitted to assign additional remediation in the subject areas.  This is another reason to demand an early IGC meeting.  If there is going to be remediation, the student should know about it well before graduation.

My schools says a project is required for the IGC, is this true?

No, there is no specified project requirement.  In theory, the IGC makes an individual determination for each student.  A project is one potential requirement.

How many votes do I need to graduate?

The decision of the committee must be unanimous.  This is why it is important that only the actual members participate and vote, and that anyone with a conflict of interest not participate.

Can I appeal a determination that denies graduation?

No, the decision of the committee is final.

Recommendations for Parents

  1. Try to use substitute assessments to graduate/gain eligibility for IGC.  If your student has successfully completed the substitute assessment requirements, they do not need an EOC result to graduate.  For students who approach senior year lacking assessments, ask whether the student has taken PSAT, SAT or ACT.  Many schools give PSATs to 9th graders.  Those results are in their file and may meet Algebra I or English I standards.  If the sub assessment score is good enough, you don’t need the EOC and might pick up the missing assessment you need to graduate or get to committee.
  2. Save all work from EOC courses.  Preserve the portfolio option!  Set aside tests, worksheets, projects and papers from each EOC course until you know if they have passed the EOC of substitute assessment.
  3. Start the IGC process early.  Do not wait for the school to contact you!  As soon as 12th grade starts, get that IGC issue in front of the school and get a meeting set.

Categories
Accountability STAAR | EOC Testing

TPERN Condemns TEA Proposal On Substitute Assessments; Accuses Commissioner of Exceeding Authority

Today the Texas Education Agency proposes a rule[1] that would tell a high school student who has met the required passing scores on state approved nationally recognized assessment instruments that they are not entitled to a Texas High School Diploma unless they also submit to take a state created assessment for which they have no required performance standard.  It is the ultimate bureaucratic creation of data for the sake of data, and it is an unnecessary, punitive measure intended to threaten and intimidate parents into abandoning control of the education of their children.  More importantly, it is an illegal attempt by the commissioner to substitute his judgment for the judgment of the legislature.  Any Texan who believes in the separation of powers and the rights of parents to direct the education of their children must oppose this rule.  TPERN will be asking its supporters to voice their opinion through the public comment process.

The TEA proposed rule is an unnecessary and improper incursion into the constitutional powers of the legislature.  The substitute assessment statute allows the commissioner to define a method for the use of substitute assessments, but it does not permit him to add impediments to their use not contained in the statute.  The law is clear that the legislature intends that “a student’s satisfactory performance [on a substitute] assessment instrument shall be used to satisfy the requirements concerning an end-of-course assessment instrument.”

The commissioner errs by adding an EOC attempt requirement where none exists and where the existing statute in fact contemplates the opposite.

“A student who fails to perform satisfactorily on a test or other assessment instrument authorized under this subsection, other than the PSAT or the ACT-Plan, may retake that test or other assessment instrument for purposes of this subsection or may take the appropriate end-of-course assessment instrument.  A student who fails to perform satisfactorily on the PSAT or the ACT-Plan must take the appropriate end-of-course assessment instrument.”

As set forth above, for instruments other than the PSAT and the ACT-Plan, the legislature clearly gives the student the choice of attempting another substitute OR taking the EOC.  The commissioners rule deprives the student of this choice.  Likewise, consider the clear statutory imperative of initial attempts in allowing the use of the TSI as a substitute assessment.  In that case the legislature wrote:

A student who, after retaking an end-of-course assessment instrument for Algebra I or English II, has failed to perform satisfactorily as required by Subsection (a), but who receives a score of proficient on the Texas Success Initiative (TSI) diagnostic assessment for the corresponding subject for which the student failed to perform satisfactorily on the end-of-course assessment instrument satisfies the requirement concerning the Algebra I or English II end-of-course assessment, as applicable.

Here the legislature has clearly required two attempts as a condition to using TSI scores as a substitute for Algebra I or English II EOCs.  The substitute assessment statutes are notably silent on any other pre-requisite attempts as a condition for the use of substitute assessments.

Where the legislature has expressed its will in one area relating to substitute assessments, but withheld any such requirements from other areas, the commissioner may not impose additional restrictions by rule.  The commissioner’s efforts to amend the statute by rulemaking exceed his authority and must be rejected.

Moreover, the restriction on graduation is wholly unnecessary.  What the commissioner wants is higher participation in the EOCs for accountability purposes.  This is accomplished simply with his amendment of Rule 101.4002 (e).  This amendment alone would require a student to take each EOC one time, but it would not prevent a qualified student from graduating if they failed to take the EOC.

By attempting to condition the use of substitute assessments on an initial failure of the state EOCs, the Commissioner markedly changes the law.  This is not a permissible use of rulemaking.  Moreover, it is wholly unnecessary.  The commissioner’s decision threatens to keep good students from graduating by rule when all statutory requirements have been met.  It cannot stand.

Finally, TPERN condemns the TEA’s willful avoidance of the legislature as the proper venue to address this issue.  In the proposed rule, the TEA admits that it was aware of the accountability issue since December 2018.  An entire legislative session passed without ANY ATTEMPT to adjust the substitute assessment statute.  Once the legislature had safely adjourned, the commissioner then undertook to change the law in the darkness of agency rulemaking, rather than in the sunshine of the Capitol dome.  This cynical approach to the rule of law demeans the vote of every Texan and should be repudiated by every sitting legislator.

[1] The proposed rule can be viewed at https://docdro.id/khK93zB

Categories
STAAR | EOC Testing

What About High School? (updated 2019)

The Opt Out movement has grown steadily with parents in Grades 3 through 8 learning to navigate the intricacies of opting out, declining accelerated instruction and handling grade placement committee meetings for Grades 5 and 8.  However, the usual thought process has always been that when the kids hit high school, the stakes rise.  Now, the TEA wields its biggest hammer: the EOC graduation requirement.  A standard line amongst opt out activists is that you simply can’t do it in high school.  But more and more Texas parents are proving that the opposite is true.  More and more Texas kids are finishing their Texas high schools without having taken some or all of the EOCS.  I go a step further.  I hold that, for a committed opt out parent, if you can put aside sentimentality and about $2.50 a week, you, and not the school, hold all the power.

Let’s begin with the best news about high school opt out.  EOC passage plays no role in grade advancement.  Advancement by grade is wholly dependent on passing the classes — just the way it should be.  Since the repeal of the 15% law, EOC exams form no part of a student’s class grade.  Again, as it should be.  EOC results have no bearing on UIL eligibility.  That is strictly based on classroom grades, as it should be.  In other words, the threats that most often deter parents at the elementary and middle school level, that their child will be retained, do not exist in high school.  If your child passes the class and obtains the academic credit, they move on with their grade.

Instead the threat is overt and codified in statute.  Unless your child passes all five EOC examinations, they cannot receive a Texas public high school diploma.  Except they can graduate via the IGC (Individual Graduation Committee) process by passing just three out of five EOCs.  Still, you say, that’s three EOCs we have to take and we want to refuse them all.  But the schools say pass three STAARs or don’t graduate.  That’s not true.  In reality, there are approved substitute assessments that neither the TEA nor the school districts publicize.  And the schools have no choice here.  The Education Code permits the use of substitute assessments.  Other than using the TSI assessment as a substitute, there is ZERO requirement that you first attempt and fail the STAAR EOC.  These substitute assessments, which can be found on the TEA website usually take the form of college readiness assessments, such as AP, IB SAT and ACT assessments.  While they are still standardized testing, these assessments have a much longer history and are much better written than the STAAR examinations.  A student who is “close” on STAAR may find these assessment levels more readily attainable.  Parents are responsible for providing the school with adequate proof of the substitute assessment score. But once they do, that student has met the EOC graduation requirement and does not need that STAAR EOC to graduate.

But maybe you are a hard core resister.  Or maybe you want to be! (Don’t we all?)  Even taking the substitute assessments is too much compliance for you!  I’m right there with you.  I never took an “EOC” to graduate.  My grades and credits earned me my diploma, not some scaled four digit score that nobody can understand.  What can you do to fight STAAR and still have your kid be an accredited high school graduate?  Well here is where the $2.50 a week and lack of sentimentality comes in. Now why did I say put aside sentimentality?  Because in my experience, the biggest impediment to a parent proactively fighting STAAR at the high school level is the parental dream of seeing their child walk across the stage and receive their high school diploma.  It is a scene played out in the parent’s head that in most instances holds far more meaning for the parent than the student.  For students, events like prom, class trips and mementos such as class rings mean far more than sitting in the Texas sun to receive a piece of paper.  To live out this dream, parents readily subject their children, despite learning disabilities, test anxiety, English language acquisition or a myriad of other causes that render STAAR an unreliable assessment, to the annual dreaded cycle of testing, retesting and summer school.  A student challenged in language arts, may take 20 ELA assessments in their high school career in hopes of getting a passing grade.  A math challenged student may take 11 assessments hoping to get that passing mark.  Hours upon hours will be spent in STAAR tutorials and summer school.  Jobs, family vacations and curriculum enriching courses will go by the wayside all for the parent’s dream of seeing the child walk the stage.

In my mind, this is foolishness.  The psychic benefit of that “moment” is grossly outweighed by the psychological trauma to the child.  My son talks about his STAAR tutorial classes as the classes for the “stupid kids.”  That is how he sees himself.  That is how his peers categorize the students pulled out for STAAR remediation. Every ounce of educational privacy rights is obliterated by pull out instruction and remediation that is visible to the peers of these students.  If I had only known . . .

Remember the $2.50 a week I told you to put away?  For about $500, a parent can transfer all the class credits their child earns during their high school career to a private school, and after a short online “tutorial”, receive a fully accredited diploma.  Your child becomes a high school graduate.  There is no stage and no cap and gown, but that credential that opens the door to high school, military service our other pre-requisites is obtained without taking a single standardized test.  The parent wins.  The child wins.  You use your taxpayer provided public schools for every single classroom credit your child needs.  Then you say “thank you very much” send a check for $500 and get the accredited diploma from a private school.  One such program is the CVEP program through The Oaks Private School.   The school is fully accredited.   The diploma is accepted for post-secondary education.  You receive full transcripts.  You win.  (The Texas Success Academy is another option.  In full disclosure, I have spoken with the person who runs the program but do not know any parents who have used it.

Personally, I have spent well over $500 on tutoring, test prep materials, and other services designed to help my now senior level son pass STAAR. (Update: My son only passed three STAARs.  We refused to continue with them and he graduated via IGC in 2015.  He’s since earned vocational certificate at the local community college and decided he wants to give academic courses a try.)  We’ve studied, crammed, argued, fought and cried over this ridiculous STAAR assessment.  When I discovered CVEP, that all stopped.  We made a deal to focus on the areas we agree he needs to improve, continue his strong classroom achievement, and when the school year ends, we’ll do the CVEP program and receive his diploma.  It’s the credential, not the ceremony that matters.  The stress level has dropped dramatically.  Had I known of this program when my son entered 9th grade, he would never have taken a single EOC.

High school parents, with a little planning and an objective outlook, you really do hold all the power.  Take as many or as few EOCs as you wish.  Try the substitute assessments, or don’t. The only threat the school has is to withhold the diploma, but you can tell them “so what.”  You don’t have to homeschool.  You don’t have to pay four years or even one semester of private school tuition.  You can use and exploit the public education you pay for with your taxes.  Your child can play sports with their peers, join the band, compete in One Act Play, and every other activity available to their neighborhood friends.  And they can do it without taking a single EOC.  All you have to do is let go of sentimentality, make it about your child, and tell the school “No thanks, we don’t need your diploma.”  High school opt out, in many ways, is easier than younger levels because the kids are more likely to be able to assert themselves and it won’t affect their class standing.  Just be informed and have a plan, and you might be surprised how easy the rest of it is.

Updated 9/13/19

A special note for SpEd parents:  Once your child hits 9th grade, ask the ARD to write into his IEP that graduation will be based on credits and not on EOC results.  They will require him to attempt each one once. Make sure the IEP says only one attempt.  Because the TEA insists on grading refused assessments, your child can meet the “attempt” requirement simply by turning in his blank assessment.  He will be permitted to graduate with a foundation level diploma.

Discuss this Article:  This article can be discussed on our user forum at this link: http://www.txedrights.net/forum/viewtopic.php?f=18&t=13

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Categories
STAAR | EOC Testing

Jerk of the Week – Drew Scheberle, Austin Chamber of Commerce VP


The Jerk of the Week award is not given out every week. It’s only given out when someone engages in particularly jerky behavior. Our winner this week is none of than Austin Chamber of Commerce vice president (sorry, SENIOR vice-president) Drew Scheberle. Young Mr. Scheberle is quite the accomplished scholar. Growing up in the affluent Northern Virginia suburbs, Mr. Scheberle attended James Madison High School in Vienna, VA. James Madison is currently an 80% white/Asian-American school; presumably it was even whiter back in the 90s. Even today it’s Hispanic population is only 11% with African-Americans comprising 2% of the student body. Less than 6% of its students receive ELL services. Obviously, he is personally acquainted with the challenges facing Texas high schools. Following what we can only presume was a stellar high school career, Scheberle attended the private Trinity University (current tuition $36,000 per year). Here his exposure to African American students would have risen 50%, since they comprise 3% of Trinity’s student body.

Mr. Scheberle has earned this award for his testimony before the Senate Education Committee in opposition of SB 463, which would make permanent the extremely popular and successful implementation of Individual Graduation Committees that were created on a temporary basis by the 2015 legislature. Individual Graduation Committees let students who have passed 3 of 5 End of Course STAAR exams be reviewed on an individual basis for graduation with their class. These students must, at a minimum, have earned all the credits in the classroom that are required for graduation. A variety of factors are required to be considered and either a project or portfolio of work must be part of the process. Of course the Austin Chamber and the Texas Association of Business both opposed SB 149 in 2015, claiming it would lead to what they termed “social graduation,” playing on overstated fears of “social promotion.” Over the last two years, the data shows that nothing of the sort has happened. Rather, students are individually reviewed and carefully screened for readiness for graduation. Only about 2/3 of students reviewed are actually approved for graduation.

Believing it his duty to advocate for more test bubbling proficiency for graduation (a real world skill notably absent from any job requirements at any Chamber member we could find), Scheberle rose to the challenge! “Continuing to lower the bar is not helping,” said Drew Scheberle, vice president at the Austin Chamber of Commerce. “There are always going to be students who are right on the margin.” (Texas Tribune Article) .Now, it might be too easy to point out that a law that keeps the bar exactly where it is can’t really be said to be “lowering” the bar, but Scheberle was all in. Challenged by Sen. Kel Seliger, the author of SB 463, Scheberle was asked if he could support “the graduation of a student in Flower Mound who failed to pass one required [EOC exam] in social studies?” Snootily raising his Trinity-educated nose, Scheberle scoffed that “I would give her a GED if she earned it.” Bad idea, Drewski, bad idea. Sen. Seliger wasn’t speaking in hypotheticals. He was speaking on an actual FMHS student who graduated by IGC and now maintains a 3.6 GPA at Oklahoma Christian University. And he could have been speaking of any of the thousands of IGC graduates now making their futures in universities, community colleges, trade schools and the military, thanks to IGC process.  For many students who are English Language Learners, suffer from learning disabilities or medical impediments (and some who are just bad test-takers but perfectly proficient in the classroom), the IGC process is their only road to a diploma.  But for Country Club Drew, their worth and ability is only definable in terms of test bubbles.

For this amazing show of arrogance, snobbery and general jackassery, we congratulate Drew Scheberle, TPERN’s Jerk of the Week.

Categories
Constitutional STAAR | EOC Testing

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.

Categories
Constitutional Homeschooling STAAR | EOC Testing

Fighting the Opt Out Truancy Threats: Dual Enrollment Home Schooling

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.