Thursday, September 23, 2021

One way or another, getting out of standardized tests


I received a message yesterday from a long-time friend, the mother of school-age children in a state where tests developed by the Partnership for Assessment of Readiness for College and Careers, or PARCC, began today. She was considering opting out her children from the tests and wanted to know what I thought.

(Girl Ray via Flickr)

I’ve gone on the record (here, here) to oppose the opt-out movement in general, since I think that although parents have a right not to send their children to public schools, they don’t have the right to pick and choose which mandatory programs in the public schools their children take part in. I wouldn’t, for example, tell her that her child only needs one year of English to graduate high school if the state requires more than one year.

That’s also the position of the attorneys general and legal experts in at least a few states, including Maryland, and several superintendents, including James Crisfield, a former superintendent of the school district in Millburn, N.J.

“What you have is a right to a free public education, and here’s the package we have for you,” the New York Times quoted him as saying. “You can’t choose to have PE on Tuesday and every other Thursday. You can’t choose not to take the calculus test. … I just worry about opting out as a conceit, that if it extends beyond PARCC, it will start eating away at the strength of public education.”

However, strong backlash from both sides of the political aisle seems to be throwing a wrench in those legal opinions and encouraging civil disobedience. Movements to derail the tests developed by both PARCC and the Smarter Balanced consortium are gaining traction. It’s not possible to gauge the true size of the opt-out movement, but several different prongs are being tried in the assault on the Common Core and standardized testing.

In Maryland, for example, Common Core and PARCC opponents plan to launch a lobbying campaign that hinges on a close reading of the memorandum of understanding that tied the state to PARCC, Politico reported. If the MOU is read strictly, it would be possible to pocket-veto Maryland’s involvement in the multi-state consortium.

Former Gov Martin O’Malley was one of the three signatories to the MOU, but Mr O’Malley was replaced by Larry Hogan, who opposes the Common Core.

The MOU states that he must “affirm in writing” within five months of taking office the state’s continued involvement in PARCC. So Common Core and PARCC opponents, including most prominently, Delegate David Vogt III, are asking, What if the governor doesn’t affirm the state’s ongoing participation in writing by May? Would Maryland, which is PARCC’s fiscal agent, then be out of PARCC?

If that works, someone in Illinois will soon figure out that new Gov Bruce Rauner is in exactly the same position, and other states may find loopholes like this as well. In this way, the battle against the tests takes a political direction.

Here are PARCC’s MOUs with Ohio and Colorado.

Other groups have plotted an attack on the tests through the courts, including one parent in Frederick County, Md., suing multi-state testing consortia and receiving favorable rulings from judges, rulings that may or may not hold up on appeal but enter the fray all the same.

In Missouri, Judge Daniel Green ruled in a lawsuit brought by the Missouri Coalition Against Common Core and a former GOP gubernatorial candidate that the Smarter Balanced Assessment Consortium, or SBAC, was:

an unlawful interstate compact to which the U.S. Congress has never consented, whose existence and operation violate the Compact Clause of the U.S. Constitution, Article I, § 10, cl. 3, as well as numerous federal statutes; and that Missouri’s participation in the Smarter Balanced Assessment Consortium as a member is unlawful under state and federal law.

Paul Katula
Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.


  1. Here’s a link to a letter to parents about the PARCC tests from Christopher Koch, Ed.D., superintendent of education in Illinois.

    Dr Koch’s letter doesn’t mention opting out, but an earlier letter from the state board of education does. That earlier letter said, “A district that allows students to opt out of the state’s required test would directly violate both federal and state law. … Moreover, districts face lower public school recognition status and threaten their receipt of state and federal funds if they break the law and do not administer the PARCC assessment.

    A US News & World Report article about opting out in other states and on a national scale can be found here.

  2. Much of the legal argument about opting out of one part of a public school’s education program comes from a majority ruling in the US Court of Appeals for the Sixth Circuit, which affects Kentucky, Michigan, Ohio, and Tennessee. The case was Blau v. Fort Thomas Public School District, 401 F.3d 381, 395-96 (6th Cir. 2005):

    While parents may have a fundamental right to decide whether to send their child to a public school, they do not have a fundamental right generally to direct how a public school teaches their child. Whether it is the school curriculum, the hours of the school day, school discipline, the timing and content of examinations, the individuals hired to teach at the school, the extracurricular activities offered … or, as here, a dress code, these issues of public education are generally “committed to the control of state and local authorities.”

    Whether or not state and local authorities have the right to make interstate agreements with state and local officials in other states is a matter that will be disputed, perhaps all the way to the US Supreme Court, but the Missouri judge’s ruling seems to fly in the face of this decision from the Sixth Circuit. If it’s up to local and state authorities how to run the schools (and give examinations at those schools), an act of the US Congress to authorize those test agreements seems, at best, superfluous.

    The above decision in the Sixth Circuit followed in part from a Second Circuit ruling in the case of Leebaert v. Harrington 332 F.3d 134, 142 (2nd Cir. 2003), which said offering each parent the right to opt out of required courses or lessons would undermine the state’s authority and expertise. Encapsulating the main ruling of the Second Circuit, we read:

    A parent’s “fundamental right to the upbringing and education of the child” does not include “the right to tell public schools what to teach or what not to teach him or her.”

    Some exceptions are made for sex education, AIDS/HIV-related issues, and a few other areas of the curriculum. But court decisions—which may eventually, we hope, include a decision from the Supreme Court on parents’ rights in their children’s upbringing, which it called in Troxel v. Granville “perhaps the oldest of the fundamental liberty interests recognized by this Court”—seem consistent in calling parental opt-out an act of civil disobedience.

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