When President Obama signed the Every Student Succeeds Act last December, he actually helped Delaware immensely in regards to opt-out. The Delaware DOE submitted their updated ESEA Flexibility Waiver to US DOE at the end of the November. Two weeks before that, the Delaware State Board of Education voted on the participation rate penalty in the Delaware School Success Framework which was submitted to US DOE for approval. As a result of ESSA, the US DOE is not signing off on anything that goes into effect after August 1st, 2016. Since their original ESEA Flexibility Waiver submitted last March had it snuck in there at the last minute based on final recommendations by the Accountability Framework Working Group, the participation rate penalty in the DSSF can not be considered enforceable.
The updated Delaware Regulation 103, which was postponed by the State Board of Education last September after parents, educators, and a legislator had an open revolt at the State Board of Education meeting that month, was based on US DOE approval of the waiver request. Since it is essentially null and void, Delaware can not insert the participation rate penalty into state code.
The caveat is the US DOE will be issuing regulations surrounding the Every Student Succeeds Act in the next few months. That could change the conversation again at a later date, but I would assume the Delaware DOE will be unable to enforce the participation rate penalty on the DSSF for the 2015-2016 school year. So no school should be citing the opt-out penalty to ANY parent when the parent wants to opt their child out of the Smarter Balanced Assessment because that would technically be ILLEGAL to do so!
So Delaware parents, you can strike that off the list of reasons you shouldn’t opt your child out of the Smarter Balanced Assessment this year. Despite the crazy State Board of Education meeting, this was very refreshing news to hear. I emailed the DOE earlier this week and today I spoke to Susan Haberstroh at the DOE about whether or not the US DOE ever approved the request. She explained they didn’t and why. But she did inform me of the upcoming regulations from the US DOE which will truly test the power of ESSA in limiting the federal role in public education.