Despite parental misgivings over testing, law leaves little discretion for districts

Written by: Beth L. Sims, Esq.

While standardized testing has never been popular among students, it usually has been viewed as necessary by adults. However, recent controversy over state assessments in New York State has led parents to have their children refuse to participate.

Although parents and the media may describe test boycotting as “opting out,” there is no legal mechanism for a student to be excused from a state assessment, with or without parental permission. Nor does any law or regulation allow a school district to reduce its participation in the state’s testing program.

Nevertheless, students can avoid assessments by being absent, by refusing to take a test or not making any effort to complete a test as a political protest. This article will describe your district’s legal requirements and options regarding administration of state assessments.

Objections to testing

The state Board of Regents designed the state’s assessment program to track student proficiency levels and inform better instructional practices, as well as fulfill requirements associated with receipt of federal Race to the Top funding.

Critics say that the state’s testing program has reduced instructional time, increased anxiety among students and stifled academic freedom. Teachers have argued these tests fail to effectively measure student achievement and should not be used in teacher evaluations. Additional complaints include that testing is of an unreasonable duration, is too expensive, marginalizes English Language Learners and students with disabilities, and serves the interests of for-profit companies that have partnered with the State Education Department (SED).

As a result, school districts statewide have seen increasing numbers of students refusing (on their own or through parent writings) to participate in the administration of these required assessments. Some parents keep their children out of school on test days, which, depending on the circumstances, can raise issues of whether the absence is properly excused. If a student is absent on a test day, he or she will be given the test on the test make-up day unless the student is also absent on the make-up day. When students attend but refuse to participate in testing, school officials have to decide where to put them and what instructions to give them during testing hours.

Among the questions that districts are grappling with are:

• What protocols should schools follow when students refuse to participate in testing?
• What are the potential consequences for school districts when students refuse to participate?
• What information should be shared with parents regarding state testing requirements?

One fact that cannot be ignored is that the state’s testing program is a legal mandate. With very limited exceptions for medical excusal and English Language Learners in their first year of school attendance in the United States, all public school students must sit for assessments in New York State.

While parents may ask board members to join opposition to state tests by not offering the tests, such action clearly would be a violation of law. Actions that would arguably endorse test refusal, e.g. offering an alternate instructional program to those who refuse testing, is also problematic. In such instances, students who take required exams would be deprived of these curricular experiences. Employees should know that willful actions contrary to the district’s obligations to fulfill state requirements could have disciplinary consequences.

Consequences for school districts

The chief consequence for students who refuse to take state assessments is there will be less data for school officials to use in tailoring instruction to meet their individual academic needs. The consequences for the school district can include potential loss of funding, depending on how many students don’t participate.

State law and implementing regulations allows the State Education Department to withhold these funds if it determines that an insufficient portion of a district’s student population has taken the exams. SED’s accountability system requires a participation rate of 95 percent on state assessments within each school district in order for school districts to secure certain state aid allowances. Similarly, under both Title I and Race to the Top legislation, inadequate student participation may result in the loss of a school district’s state aid increase. Also, data from state assessments often inform decisions such as grade advancement, course placement, as well as how to provide targeted academic intervention and support. In the absence of such data, school districts may be forced to rely upon subjective opinions to inform these decisions rather than standardized measures.

Additionally, New York State Education Law currently mandates that districts use student performance data from state assessments to calculate teacher effectiveness ratings that may impact employment and tenure decisions of pedagogical staff.

How districts have responded

This spring, school districts throughout the state have struggled to develop protocols to manage and respond to test refusals. The following are among the procedures that have been implemented:

• Effectuating “sit and stare.” Districts have attempted to eliminate distraction and/or disruption caused by students who refuse to take tests by relocating these students to an alternate room shortly after testing begins. While this practice may effectively reduce distraction for the majority of students who participate in the tests, many parents have expressed dissatisfaction with this approach. Some parents and teachers contend that requiring students to sit quietly for extended periods of time is unrealistic and cruel, a form of corporal punishment and/or child abuse.
• Allowing child to sit and read quietly. Some districts have permitted students to sit quietly and read, either in the testing room or in an alternate location.
• Campaigns to explain and support the necessity of assessments. A number of school districts have responded to parents’ refusal requests by reaffirming that state assessments are an academic requirement and advising that the district has no authority to allow or support “opting-out.” Such school districts may also advise of the potential loss of revenue in the event of insufficient student participation.
• Sharing state guidance. Many school districts provided parents with copies of SED’s March 28 written guidance document on required assessment administration and/or followed advice in a letter that Education Commissioner John B. King Jr. issued on March 24 in which he suggested that districts send parents a letter reiterating the district’s position on testing (i.e. state assessments are mandatory), reassuring parents that assessment data will not be the sole measure of academic achievement and that the academic focus of the school will remain on well-rounded instruction and critical thinking, not on test preparation.

Educating the public 

As districts’ options regarding test refusal are limited by the law, continuing communication and dialogue with the public about this issue is advisable. Districts should:

• Keep good records to inform discussions. Internal records should reflect the number of student who refuse to take tests. In assessing the level of participation, your board may also want to examine data on student absences in comparison with prior years and the reason given for absences. Your district may find that some parents schedule medical appointments for children on exam days, although your district may have a policy that discourages parents from scheduling medical appointments during the school day.
• Describe the consequences that the district may suffer. Explain that absent compliance with testing mandates, the district may lose funding. Further, explain that the percentage of the student population that must sit for exams in order to develop reliable data and meet the state’s threshold is extremely high, and a mere portion of the population refusing to take exams jeopardizes the reliability of the data and the security of the district’s funding. Alert parents that absent a lawful reason, in accordance with the school district’s attendance policy, a child’s absence from school will be recorded as “unexcused.”
• Explain how the data is used. Parents need to know how data from assessments is used to inform instructional decisions. At the same time, reassure parents that test scores are not the sole source of information when making program or placement decisions, and that the school recognizes that scores are one of many measures of performance and growth schools consider.
• Ensure accurate information for scoring. It is important for district officials to communicate with the local examination submission and scoring agency and SED’s Office of State Assessment about how refusal and absent student exams should be coded and submitted. Ensure that you are complying with the state guidelines on reporting data. Comply with SED guidance pertaining to the treatment of a lack of summative data with respect to the calculation of educators’ annual professional performance review scores.
• Offer make-up exams when possible. Consult with the SED Office of State Assessment with respect to what exams may be made up and under what circumstances. Contact your school attorneys regarding concerns specific to your school district.

Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Beth Sims of Shaw, Perelson, May & Lambert, L.L.P.

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