Delaware DOE Citing Non-Existent Law Against Parent Opt Out Of Smarter Balanced! Nice Try!

This is rich! The Delaware DOE, knowing a massive wave of parent opt outs of the Smarter Balanced Assessment is coming, have put out a letter to all Delaware schools for how to handle this situation.  They even cite laws that don’t even mention the words “parent” or “opt out”.  You have to read this to believe it!

Parent Refusal to Student Assessment

Local education agency guidelines

The Smarter Balanced assessments are a key part of implementing the Common Core State Standards and preparing all students for success in college and careers. Delaware’s move to the Smarter Balanced assessment system replaces previous tests, offering significant improvements over assessments of the past. The Smarter assessments provide an academic checkup by measuring real-world skills such as critical thinking and problem solving.  In addition, through optional formative assessments and a digital resource library and interim item bank, Smarter provides information during the year to give teachers and parents a better picture of where students are succeeding and where they need help.

In Delaware, the purpose of state testing is to ensure students get the help they need to graduate with the knowledge and skills they need to make the most of their talents. The Delaware Department of Education recognizes state testing as an important part of understanding how schools, districts and the state are doing in educating and preparing students for college and careers. This is the primary way we can know if we are making appropriate progress toward educating students on the academic standards. 

Student testing also helps districts and schools identify if there are specific populations within their school that are behind and may need extra assistance. And state testing helps parents understand how their child is doing in comparison to students in other schools. 

That said, we cannot spend precious student and teacher time on assessments that do not offer this important information. The Delaware Department of Education over the past two years has eliminated some required tests and its switch this year to the Smarter assessments will reduce the number of times students take the state English language arts and mathematics assessments from up to three times a year to only one.


There are no provisions in state or federal regulation that allow Delaware to have a system for parents to refuse student assessment. In addition, state and federal laws are clear that there is an expectation that all students will participate in the state assessment system. The only instances in which students can be excluded relate to exemption requests. Only two reasons are allowable for requests for exemptions: extreme medical incidents or for reasons of mental health of the child (each requires documentation from a physician).

State Code:

ESEA, Subpart 1, Subsection 1111(b)(3):

Suggested response

When parents contact their schools or districts to request that their children be removed from testing, the school or district administrators should explain to the parents why assessment is important for their children (see language provided above). The administrators also should explain that the districts/charters have no discretion in the matter because federal and state law requires public school students are to be tested.

Likewise, when a parents call the Delaware Department of Education to ask if they may refuse testing, state officials should explain to the parents why assessment is important for their children. They also should inform parents that there is no refusal allowed under the law: If the student is enrolled in a Delaware public school, the district or charter is required to administer the assessment to the child. Department staff also should send a copy of the statutory references to the parents.

If a parent informs the district or charter that, regardless of the law, the child is not to be tested, the district/charter should get this statement of intent from the parent in writing so that the district/charter can provide a written response, which should cite the regulations and ask the parent to reconsider as it is a violation of the law not to comply (see model letter).

If a parent response in writing that he/she has read and understood the district/charter letter but insists that the child not be tested, the district/charter could choose not to test the student, who thus would be counted as “absent” for purposes of testing. This negatively impacts the district/charter’s participation rate.

So they cite state and federal law over assessments, but nothing is said at all about the constitutional right for parents to opt their child out of these tests!  Do they really think that by telling parents a numbered law or regulation will stop them?  Have they become that desperate?  All the Federal link states is what happens to the state if assessment guidelines aren’t followed.  The Delaware one is directed to the schools and “security violations” of the test.

This is my favorite line in the whole letter:

There are no provisions in state or federal regulation that allow Delaware to have a system for parents to refuse student assessment.

Guess what?  There are no provisions in state or federal regulation that DO NOT allow Delaware to have a system for parents to refuse student assessment.  If the DOE is actually telling schools to tell parents they are violating the law when NO SUCH LAW EXISTS, then they are giving legal advice without any justification or actual bearing.  Yes, the schools are required to administer the assessment, but the students are NOT REQUIRED!  An expectation is not the same as a requirement.  I expect people not to cuss in public around my kid, but I can’t make them not do it.  Same thing here parents!  DOE, get over your big bad self and accept the cold hard reality that in trying to make this “legal” you have shot yourself in the foot!

You all know if enough kids are opted out you won’t have any “legal” justification for closing more schools and making them part of your super charter chain in Delaware.  So the closer it gets to the test, the more you will try to pull the wool over parents eyes.  The jig is up!  Parents: Opt Out Now!  The DOE has just proven there is nothing illegal about opting your child out.  Don’t let them try to bully you.  This is an act of cowardice on their part.  Be brave, don’t let your child take the test!



Published by

Kevin Ohlandt

I am a proud parent of a son with Tourette's Syndrome and several other co-morbidities. I write on this blog to educate other parents so they know a bit more about not only special education, but all the really bad things that are happening with public schools in Delaware and the USA. We are all in this together, and if our children aren't able to advocate for themselves it's up to us parents! We need to stop letting companies run our schools, and demand our children get a proper education. Our Departments of Education in our states have become weak with fear from the bullying US DOE, and we need to take back our schools!

6 thoughts on “Delaware DOE Citing Non-Existent Law Against Parent Opt Out Of Smarter Balanced! Nice Try!”

  1. The Bartleby Project

    By the end of WWII, schooling had replaced education in the US, and shortly afterwards, standardized testing became the steel band holding the entire enterprise together. Test scores rather than accomplishment became the mark of excellence as early as 1960, and step by step the public was brought, through various forms of coercion including journalism, to believe that marks on a piece of paper were a fair and accurate proxy for human quality. As Alexander Solzhenitzyn, the Nobel Prize winning Russian author, said, in a Pravda article on September 18, 1988, entitled “How to Revitalize Russia:”

    No road for the people [to recover from Communism] will ever be open unless the government completely gives up control over us or any aspect of our lives. It has led the country into an abyss and it does not know the way out.

    Break the grip of official testing on students, parents and teachers, and we will have taken the logical first step in revitalizing education. But nobody should believe this step can be taken politically—too much money and power is involved to allow the necessary legislative action; the dynamics of our society tend toward the creation of public opinion, not any response to it. There is only one major exception to that rule: Taking to the streets. In the past half-century the US has witnessed successful citizen action many times: In the overthrow of the Jim Crow laws and attitudes; in the violent conclusion to the military action in Vietnam; in the dismissal of a sitting American president from office. In each of these instances the people led, and the government reluctantly followed. So it will be with standardized testing. The key to its elimination is buried inside a maddening short story published in 1853 by Herman Melville: “Bartleby the Scrivener.”

    I first encountered “Bartleby” as a senior at Uniontown High School, where I was unable to understand what it might possibly signify. As a freshman at Cornell I read it again, surrounded by friendly associates doing the same. None of us could figure out what the story meant to communicate, not even the class instructor.

    Bartleby is a human photocopy machine in the days before electro-mechanical duplication, a low-paid, low-status position in law offices and businesses. One day, without warning or explanation, Bartleby begins to exercise free will—he decides which orders he will obey and which he will not. If not, he replies, “I would prefer not to.” To an order to participate in a team-proofreading of a copy he’s just made, he announces without dramatics, “I would prefer not to.” To an order to pop around the corner to pick up mail at the post office, the same: “I would prefer not to.” He offers no emotion, no enlargement on any refusal; he prefers not to explain himself. Otherwise, he works hard at copying.

    That is, until one day he prefers not to do that, either. Ever again. Bartleby is done with copying. But not done with the office which employed him to copy! You see, without the boss’ knowledge, he lives in the office, sleeping in it after others go home. He has no income sufficient for lodging. When asked to leave that office, and given what amounts to a generous severance pay for that age, he prefers not to leave – and not to take the severance. Eventually, Bartleby is taken to jail, where he prefers not to eat. In time, he sickens from starvation, and is buried in a pauper’s grave.

    The simple exercise of free will, without any hysterics, denunciations, or bombast, throws consternation into social machinery—free will contradicts the management principle. Refusing to allow yourself to be regarded as a “human resource” is more revolutionary than any revolution on record. After years of struggling with Bartleby, he finally taught me how to break the chains of German Method schooling. It took a half-century for me to understand the awesome instrument each of us has through free will to defeat Germanic schooling, and to destroy the adhesive which holds it together – standardized testing.

    Signposts pointing our attention toward the Bartleby power within us are more common than we realize in the global imagination, as Joseph Campbell’s splendid works on myth richly demonstrate (as do both Testaments of the Bible), but we needn’t reach back very far to discover Thoreau’s cornerstone essay on civil disobedience as a living spring in the American imagination, or Gandhi’s spectacular defeat of the British Empire through “passive resistance” as bold evidence that as Graham Greene should have taught us by now, “they” would prefer to torture those who expect to be tortured.

    Mass abstract testing, anonymously scored, is the torture centrifuge whirling away precious resources of time and money from productive use and routing it into the hands of testing magicians. It happens only because the tormented allow it. Here is the divide-and-conquer mechanism par excellence, the wizard-wand which establishes a bogus rank order among the schooled, inflicts prodigies of stress upon the unwary, causes suicides, family breakups, and grossly perverts the learning process – while producing no information of any genuine worth. Testing can’t predict who will become the best surgeon, college professor, or taxicab driver; it predicts nothing which would impel any sane human being to enquire after these scores. Standardized testing is very good evidence our national leadership is bankrupt and has been so for a very long time. The two-party system has been unable to give us reliable leadership, its system of campaign finance almost guarantees we get managers, not leaders; I think Ralph Nader has correctly identified it as a single party with two heads—itself bankrupt.

    I don’t know what do do about that, but I do know how to bring the testing empire to an end, to rip out its heart and make its inventors, proponents, and practitioners into pariahs whose political allies will abandon them.

    Let a group of young men and women, one fully aware that these tests add no value to individual lives or the social life of the majority, use the power of the internet to recruit other young people to refuse, quietly, to take these tests. No demonstrations, no mud-slinging, no adversarial politics—to simply write across the face of the tests placed in front of them, “I would prefer not to take this test.” Let no hierarchy of anti-test management form; many should advise the project, but nobody should wrap themselves in the mantle of leadership. The best execution would not be uniform, but would take dozens of different shapes around the country. Like the congregational Church, there should be no attempt to organize national meetings, although national chatrooms, blogs, and mission-enhancing advisors of all political and philosophical stripes will be welcome. To the extent this project stays unorganized, it cannot help but succeed; to the extent “expert” leadership pre-empts it, it can be counted on to corrupt itself. Think Linux, not Microsoft. Everyone who signs on should get an equal credit, latecomers as well as pioneers. Unto this last should be the watchword.

    I prefer not to. Let the statement be heard, at first erratically and then in an irresistible tide, in classrooms across the country. If only one in ten prefer not to, the press will scent an evergreen story and pick up the trail; the group preferring not to will grow like the snow ball anticipating the avalanche.

    What of the ferocious campaign of intimidation which will be waged against the refuseniks? Retribution will be threatened, scapegoats will be targeted for public humiliation. Trust me, think Alice in Wonderland; the opposition will be a house of cards, the retribution an illusion. Will the refusers be denied admission to colleges? Don’t be naive. College is a business before it’s anything else; already a business starving for customers.

    The Bartleby Project begins by inviting 60,000,000 American students, one by one, to peacefully refuse to take standardized tests or to participate in any preparation for these tests; it asks them to act because adults chained to institutions and corporations are unable to; because these tests pervert education, are disgracefully inaccurate, impose brutal stresses without reason, and actively encourage a class system which is poisoning the future of the nation.

    The Bartleby Project should allow no compromise. That will be the second line of defense for management, a standard trick taught in political science seminars. Don’t fall for it. Reject compromise. No need to explain why. No need to shout. May the spirit of the scrivener put steel in your backbone. Just say:

    I would prefer not to take your test.

    An old man’s prayers will be with you.


  2. Kevin, My son was tested by his home school district last year despite our written directives to not test him. We were never informed that he was tested, although I suspected it when he started talking about the “laptop” he used. Then, in August, my suspicions were confirmed when we received his DCAS scores/mailing from DOE.

    Liked by 1 person

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