Delaware DOE Challenges Me On Opt-Out Participation Rate Penalties: Who Wins?

Is it a federal requirement to have the participation rate penalty as part of the ESEA required School Report Card?  According to Penny Schwinn with the Delaware Department of Education, it is.  Was I able to debunk this?  Find out as I present this email chain between Penny Schwinn and myself over the past 24 hours.  As well, numerous answers are revealed about the School Report Card, the Delaware ESEA Waivers from this year, and accountability in regards to parent opt-out.

From: Kevin Ohlandt [mailto:kevino3670@yahoo.com]
Sent: Friday, August 28, 2015 9:08 AM
To: Schwinn Penny; May Alison
Subject: Re: Academic Framework Working Group

Good morning Penny,

I was curious if the AFWG group is still in existence.  I have seen nothing since the March meeting minutes, or any announcements of upcoming meetings.  If the group does meet again, I might suggest they are made public with a lot more stakeholder input.  For the most part, this group is made up of school leaders and admins, as if they are the only ones who would know what accountability is.  It wasn’t until towards the end, after most of the basic frameworks were already set up, that a PTA parent and a DSEA rep were invited.  At a minimum, I would like it made public on the DOE website a list of any upcoming meetings, the agendas, and what the vote counts are for the School Report Card.

Being completely honest here, I found the minutes for this group by accident.  And when I read them, I was shocked that this group existed, much less they are attempting to create policy designed to give parents input without any true parent input.  I know the surveys came out last fall, and I attended the Town Hall in Dover.  I specifically asked Ryan and Chantel about the Smarter Balanced weight for the report cards, and they said it wouldn’t be more than 50% of the report card, but in looking at the minutes, Smarter Balanced results or “growth” which stems from those results, will account for 90-100% of the grade a school gets depending on if its elementary & middle or high school.

Furthermore, penalizing a school for a parent’s decision to opt their child out of an assessment is not the fault of a school.  It is an indication parents don’t want their child taking this test.  Nothing against you, but the DOE can pump out as much material about SBAC as they want, but parents aren’t stupid.  Most of them don’t even like Common Core, so to come out with a test based on that is not really going to win public favor.  I know the DOE is tied to federal mandates, but you folks go way beyond even those stringent mandates.  People are catching on quick, and they don’t trust the DOE because of this.  I’m sure you can’t respond to a lot of this, and I understand that.  But opt-out is something the DOE should not punish schools for.  It will do more damage and probably cause MORE opt-out.  I am a firm believer in opt-out, but only if it is something a parent does as an informed choice, not just to go with the crowd.

Parents are going to be upset when they see the release of the SBAC scores and this will add fuel to the fire.  As I said at the August State Board meeting, I do not hate the DOE, but I do believe they need to engage and listen to parents a lot more than they have.  The result of the history with this is not good for our kids education.  I’m sure the DOE can provide me with numerous arguments on why SBAC needs to happen, but I can easily come back with a counter-argument for each one.  Every time I publish something on my blog that people didn’t know about, it is very bad for the DOE. 

Thank you,

Kevin Ohlandt


From: Schwinn Penny <Penny.Schwinn@doe.k12.de.us>
To: Kevin Ohlandt <kevino3670@yahoo.com>
Cc: May Alison <alison.may@doe.k12.de.us>
Sent: Friday, August 28, 2015 10:06 AM
Subject: RE: Academic Framework Working Group

Good afternoon,

Thank you for the email. I think that there is some good feedback here as well as some areas I would like to clarify. I agree, and have stated myself, that DSEA and PTA participation is important and should have been included along with district participation from the beginning. They did miss approximately four of the twelve meetings, but were absolutely part of the decisions on which metrics to include and what those business rules would be. The initial AFWG meetings, as you likely read in the minutes, focused on approach to the work without any recommendations having been made. Also to note, DSEA and the PTA selected the rep(s) that they wanted to participate and we are happy to have them. They have been good representatives of their constituents.

The AFWG is still in existence – until this week, we had not met since March because that is when the SBE approved the framework to be sent with the ESEA Flex waiver. The rest of the work that was needed would come after we received all of the testing data back. We have representation from all three counties and a relatively diverse group in terms of roles and responsibilities. We have had representation from a majority of the districts and I personally invited each superintendent to participate by email and also in a recent meeting. I hope you agree that this is an important and positive step forward in encouraging as much representative participation as possible from our districts, who are ultimately the ones being held responsible for the performance of our schools. Given the different capacities of districts, all superintendents have asked for, and will receive, direct correspondence around the minutes of the meetings. These minutes are also posted on the web site – it is an informal group (not a formal committee such as DESS), but we still want to ensure that we are reflecting the information. Currently, we have representatives from: Caesar Rodney, Appo, Capital, NCCVT, Indian River, Lake Forrest, Red Clay, Colonial, and Woodbridge. We have also had participation from Poly, Brandywine, and Delmar.

The AFWG is a group that meets to discuss and provide recommendations to the Secretary. There is limited Department staff present at the meetings (typically it is myself and one other person who provide facilitation and coordination services) – it was important for us to set-up the group to be able to discuss as stakeholders specifically.

You mentioned below the weight of Smarter Balanced in the DSSF as 90-100%. First, the weights have not been determined and that is what we will be doing over the course of the Fall. For high schools, it is well below 90-100%. For elementary and middle schools, it was difficult to find measurable metrics and that is why we are hoping to weight growth as much as possible. If you have ideas on other metrics that could be used for elementary, please feel free to share them. We have had very robust and long conversations on this specific topic and had truly hoped to find metrics that were fair to all schools!

I do apologize if you had trouble finding the information. We actually made adjustments to the new web site to make accountability its own toolbar so that it would be easier to find information. Hopefully, having that highlighted on the front page continues to make the information more visible. Please let me know if you have suggestions on how to make that even more prominent. I would like to respectfully draw your attention to the relatively significant amount of engagement that the team has tried to do: a statewide survey, a series of focus groups, and over 8 Town Hall/Community meetings over the last eight months. Additionally, we have an accountability email address that allows people to submit feedback directly to the Department if they are unable to attend a public meeting. Through this cumulative process, we have received thousands of responses and have absolutely reflected that feedback in the development of the DSSF (Delaware School Success Framework) – even in how it was named! I think that it is difficult to ask parents to come to meetings that exist during the day, when we meet, which is why we have worked to include as much input as possible from the evening meetings that we have set-up. We continue to solicit this input – one of the things we will be doing is holding a week-long stakeholder input opportunity (the Design Challenge) to present some options on the new DSSF and get input and feedback on its design. That will occur in September. As with any major project, there is typically a smaller (in this case relatively big) group that helps to frame the work and then we go out to get input on it. If you have ideas that will help to expand the number of families that we reach through this effort, place let me know.

As a note, we have also presented on components of the DSSF publicly at SBE meetings and retreats over five times. Truly, we want the input. We have actively discussed it as a group and have tried to create as much awareness as possible. We continue to look for additional ideas and look forward to your feedback and input.

I hope this answers the majority of your questions.

Penny Schwinn

Associate Secretary,

Assessment, Accountability, Performance, and Evaluation

Delaware Department of Education

401 Federal Street

Dover, DE 19901-3639

(Editor’s note, in Penny Schwinn’s further emails her title and address appears but I am taking them out for brevity’s sake)


From: Schwinn Penny <Penny.Schwinn@doe.k12.de.us>
To: Kevin Ohlandt <kevino3670@yahoo.com>
Cc: May Alison <alison.may@doe.k12.de.us>
Sent: Friday, August 28, 2015 1:25 PM
Subject: Error

Good afternoon,

I wanted to correct a mistake I made in my last email: DSEA and PTA members joined the AFWG at different points last year. I am happy to go back and verify which meetings were the first and/or which dates the conversations occurred. After sending the email, I double-checked and realized my error. Apologies for that.

Thanks,

Penny


On Aug 28, 2015, at 2:18 PM, “Kevin Ohlandt” <kevino3670@yahoo.com> wrote

Penny,

I already have that info because you were VERY thorough with your minutes on attendance! 🙂

Thanks,

Kevin


From: Kevin Ohlandt [mailto:kevino3670@yahoo.com]
Sent: Friday, August 28, 2015 4:47 PM
To: Schwinn Penny
Cc: May Alison
Subject: Re: Academic Framework Working Group

Hello again Penny,

Sorry to keep bothering you on this, but I did have some feedback or potential suggestions based on what you wrote back. 

*Include Board Presidents in communications around this group, not just superintendents

*I know the group decided Suspensions & Expulsions are already reported elsewhere, I think this would be an extreme disservice to parents, as this is one of the chief areas they look at in determining a school for their child, or even what town to move to if they are coming from out of state.  I would go so far as to ask for Bullying & Offensive Touching percentages for each school.

*Once again, I would request these meetings be open to the public, regardless of the time it is, with time allotted for public comment, or perhaps even an audio recording so parents know what was discussed.  I know this isn’t required by law, but it would greatly benefit the DOE to show this kind of transparency to the public.

Just some thoughts, and thank you again for the open communication!

Kevin

(you don’t have to call me Mr. Ohlandt, it makes me feel old, LOL!)


From: Schwinn Penny <Penny.Schwinn@doe.k12.de.us>
To: Kevin Ohlandt <kevino3670@yahoo.com>
Cc: May Alison <alison.may@doe.k12.de.us>
Sent: Friday, August 28, 2015 7:40 PM
Subject: RE: Academic Framework Working Group

Hi Kevin,

Thanks again for the email and the feedback! Here are some thoughts:

·        I think it is a great idea to email Board Presidents with the minutes of the meetings and to make sure they know when the meetings will take place. I will coordinate internally around this. I appreciate the idea.

·        The suspension and expulsion debate was long and thoughtful. I will say that there was overwhelming support for this indicator in theory. The challenge is that not all districts and schools track suspensions and expulsions in the same way, or even suspend for the same reasons. The group was worried that if it became a part of a rated accountability system, it would create a perverse incentive for schools to not suspend for things that they should. (We have seen this in other states, for example). I agree that it is an important indicator for families, so what we have decided to do at this point is to transparently post the information on the online version of the DSSF. This online version is scheduled to launch in June and would provide information and more detail on all of the indicators that we know are important. I hope and expect that the culture and climate survey will reflect the same type of information (“I feel safe at school”) for the paper version, and in some respects better capture how the culture makes children and staff feel, instead of the number of suspensions alone. Again, I agree it is important, it is just tricky to include if schools aren’t consistent.

·        I appreciate your feedback on the meeting format. Originally when I came to Delaware, the plan was to use the charter framework and there was an even mix of district and DOE staff to adapt this system. We instead decided to restart the discussion/create the system from scratch, and put together the AFWG as a way to ensure that we were soliciting the feedback of our districts; it was relatively informal, though very impactful given that I thought (and believe) it was important to limit DOE staff in the discussion (currently two people). We did ensure there were certain “non-negotiables” in place to be in alignment with the minimum federal requirements. As a result, the group is not  formal like the DESS and while we’ve communicated the meeting schedule to districts, you are correct that we have not done so on the web site. Frankly, it was not to keep people out, it was just the nature of the group. We kept detailed minutes and posted those (along with every presentation) as a way to add transparency. I give you this context only so that you understand the intent. I appreciate your thoughts on ways to continue to increase the transparency, which I hope you feel like we have genuinely tried to do, and will add that for discussion with the full team.

You also had one question that referenced participation rates that I do not believe I fully answered in my last email – apologies. You had wanted information as to the penalty for participation rates on the DSSF and I provided the background on our work to develop weights. I did not, however, give you the reason as to why it was included at all…. As a federal requirement, we must have a piece of the accountability system that accounts for low participation rates. This is exactly the same as what is currently required in AYP, which Delaware uses. We have minimized the impact of this as much as possible by making proficiency a very small part of our new accountability system – currently, it is almost 100% of the accountability system. This was something that the AFWG and districts discussed and felt like would be fair to everyone and minimize the impact of overall participation rates. In summary, we must include it and we have limited its impact as much as possible.

Thanks again for your feedback on this and for your ideas.  Have a wonderful (and warm!) weekend.

Best,

Penny


From: Kevin Ohlandt <kevino3670@yahoo.com>
To: Schwinn Penny <Penny.Schwinn@doe.k12.de.us>
Cc: May Alison <alison.may@doe.k12.de.us>
Sent: Saturday, August 29, 2015 7:39 AM
Subject: Re: Academic Framework Working Group

Penny,

Thank you for your last email and for the clarifications on things.  I did want to respond to those, and also advise you I am publishing this email chain to lift the curtain on these matters.  You referenced the “accountability part of the system that accounts for low participation rates” and that this is a “federal requirement”.  I checked in the actual ESEA requirements for the school report card, and it does include that an SEA and LEA must report the participation rate.

In the guidance document provided by the Feds for this, found here: http://www2.ed.gov/programs/titleiparta/state_local_report_card_guidance_2-08-2013.pdf, it states:

Participation rates on State assessments

An SEA must report the percentage of students who are not tested on the State’s reading/language arts, mathematics, and science assessments and must disaggregate those rates by race, ethnicity, gender, disability status, migrant status, English proficiency, and status as economically disadvantaged (ESEA section 1111(h)(1)(C)(iii)). In the alternative, an SEA may report the percentage of students who are tested, disaggregated by race, ethnicity, gender, disability status, English proficiency, and status as economically disadvantaged. If an SEA that has received ESEA flexibility has included one or more combined subgroups in its State differentiated recognition, accountability, and support system, it must report participation rates for each combined subgroup also. An SEA need not report disaggregated participation rates if the number of students in a category is insufficient to yield statistically reliable information or the results would reveal personally identifiable information about an individual student (ESEA section 1111(h)(1)(C)(iii)).

So I thought I would check ESEA section 1111(h)(1)(c)(iii), which states the following:

SEC. 1111. STATE PLANS. (h) REPORTS- (1) ANNUAL STATE REPORT CARD- (C) REQUIRED INFORMATION- The State shall include in its annual State report card— (iii) the percentage of students not tested (disaggregated by the same categories and subject to the same exception described in clause (i)); which states for clause (i): (i) information, in the aggregate, on student achievement at each proficiency level on the State academic assessments described in subsection (b)(3) (disaggregated by race, ethnicity, gender, disability status, migrant status, English proficiency, and status as economically disadvantaged, except that such disaggregation shall not be required in a case in which the number of students in a category is insufficient to yield statistically reliable information or the results would reveal personally identifiable information about an individual student);

For the LEA portion, I checked on that in the same guidance provided in 2013, which states:

Participation rates on State assessments

An LEA must report the percentage of students who are not tested on the State’s reading/language arts, mathematics, and science assessments and must disaggregate those rates by race, ethnicity, gender, disability status, migrant status, English proficiency, and status as economically disadvantaged (ESEA section 1111(h)(1)(C)(iii), (h)(2)(B)). In the alternative, an LEA may report the percentage of students who are tested, disaggregated by race, ethnicity, gender, disability status, English proficiency, and status as economically disadvantaged. If an LEA is in a State that has received ESEA flexibility and has included one or more combined subgroups in its differentiated recognition, accountability, and support system, the LEA must report participation rates for each combined subgroup also. An LEA need not report disaggregated participation rates if the number of students in a category is insufficient to yield statistically reliable information or the results would reveal personally identifiable information about an individual student (ESEA section 1111(h)(1)(C)(iii), (h)(2)(D)

While 1111(h)(1)(C)(iii) is the same as above, the LEA has the extra caveat of (h)(2)(B) which states:

(2) ANNUAL LOCAL EDUCATIONAL AGENCY REPORT CARDS- (B) MINIMUM REQUIREMENTS- The State educational agency shall ensure that each local educational agency collects appropriate data and includes in the local educational agency’s annual report the information described in paragraph (1)(C) as applied to the local educational agency and each school served by the local educational agency, and—

(i) in the case of a local educational agency—(I) the number and percentage of schools identified for school improvement under section 1116(c) and how long the schools have been so identified; and (II) information that shows how students served by the local educational agency achieved on the statewide academic assessment compared to students in the State as a whole; and (ii) in the case of a school—(I) whether the school has been identified for school improvement; and (II) information that shows how the school’s students achievement on the statewide academic assessments and other indicators of adequate yearly progress compared to students in the local educational agency and the State as a whole.

The 2013 guidance regarding participation rate goes on to state:

D-7. What information must an SEA or an LEA include on its report card regarding participation rates?

An SEA or an LEA must report the percentage of students who are not tested on the State’s reading/languages, mathematics, and science assessments and must disaggregate those rates by race, ethnicity, gender, disability status, English proficiency, and status as economically disadvantaged (ESEA section 1111(h)(1)(C)(iii), (h)(2)(B)). In the alternative, an SEA or an LEA may report the percentage of students who are tested. If an SEA that has received ESEA flexibility has included one or more combined subgroups in its differentiated recognition, accountability, and support system, the SEA and its LEAs must report participation rates for each combined subgroup also. 

So now that we know what the Feds are saying in their guidance and applicable ESEA law in regards to reporting participation rate on the school report card, it is importing to spotlight what “participation rate” can not include as written in the 2013 guidance document:

D-8. May an SEA or an LEA count students without a valid score as participating in the State assessments?

No. Under both the IDEA and the ESEA, students without a valid score may not be reported as participating in State assessments on either the State or local report card (34 C.F.R. §§ 200.20(c)(3), 300.160(b)(2), (f)(1)).

At this point, my key issue with the ESEA Renewal Request submitted to the US DOE by the DE DOE on March 31st is that it was not the SAME ESEA Renewal Request that received public comment.  As I indicated to you before, the only available way of the public seeing the participation rate portion of the School Report Card was in the minutes for the AFWG meetings or by attending or listening to the audio of the State Board of Education meeting.  Since the PDF for the final AFWG meeting notes was not even created by you until March 20th, the day AFTER the State Board of Education meeting, and the State Board approved the ESEA Renewal Request that day which was publicly noted, the ONLY way someone could look for changes to the 3/1 draft would be to listen to an audio recording or happen to see the red-lined edition on 3/31/15 when this was added in which was also the same day it was submitted to the US DOE.  This is NOT public engagement.  There was absolutely no time given for public comment on this issue, nor has their been until this week.  Given the fact that there was vigorous debate over parent opt-out at the time due to House Bill 50, a parent opt-out bill that was pending in the General Assembly, it would have been crucial to that ongoing discussion to include this action by the DOE.  When the DOE and the State Board publicly commented on this bill during the House Education Committee meeting on 4/22/15 and the Senate Education Committee Meeting on 6/10/15, absolutely nothing was mentioned about this, even those who testified would have had FULL knowledge of this.  As well, most would think this would be a valid argument against opt-out.  However the fact this was NEVER adequately exposed to the public until I found this out on 8/25/15, nobody was the wiser to this issue.  If I were a betting man, I would go so far as to say the DOE, State Board and AFWG did not want this publicly disclosed.  As well, I would say there was conscious effort to withhold this information. Nowhere in the comments section of the ESEA Renewal Request did it say anything about this. I am operating under the assumption the DESS Advisory Council was not advised of this either, and even their notes from their meeting prior to the State Board of Education meeting on 3/19 notated some members serve in both groups creating a potential conflict of interest.

Sources: http://www.doe.k12.de.us/cms/lib09/DE01922744/Centricity/Domain/234/Delaware%20ESEA%20Flex%20Renewal%20Redline%20DRAFT%203-1-15.pdf (page 72)

 http://www.doe.k12.de.us/cms/lib09/DE01922744/Centricity/domain/232/esea/DE_ESEA%20Flex_Renewal_Redline_3-31-15.pdf (page 78)

Regarding the “federal requirement” for the accountability portion of the school report card in including participation rate on the School Report Card, it says absolutely nothing as using the participation rate as a penalizing measure in the formulations and weights for the report card grading system.  It merely states the participation rate must be REPORTED.  The participation rate already has a penalizing effect for schools.  Students who don’t take the test are still counted in the proficiency ratings.  Since this would obviously lower proficiency ratings for the overall school the higher the opt-out numbers, the school is ALREADY punished for opt-out.  But by adding a participation rate penalization portion of the school report card, you are in essence punishing a school TWICE for the same action.  As well, as written in the final ESEA waiver, with the weights included, if a school goes below the 95% participation rate they would not be able to get the highest level on the school report card, thus giving a school a potential THIRD punishment for opt-outs.  Since these last two are not required by the federal government, I would strongly suggest this AFWG group with very limited stakeholder input aside from district superintendents, two charter heads, one DSEA rep, one DE PTA rep and one State Board rep, along with one or two members of your group, immediately disqualify the participation rate portion of the School Report Card.

The 95% participation rate began because schools were not testing certain students so they could make their test results look better.  The way the laws are written around it, on a Federal and State level, are based on that past history.  Nowhere does this account for parent opt-out.  The schools are required to administer the assessment to all students.  Parents are not required to have the test administered to their children. This is the key difference here.  No law exists anywhere demanding this.  Therefore, the 95% rule is a fidelity measure for the schools to adhere to their responsibility as written in the law, not the parents.  If a school tells a student, “you aren’t taking the test because the school doesn’t want you to”, then yes, they should be punished for that because it would mean they are violating state and federal law.

Imagine if the General Assembly passed a law stating “We will allow opt-out but only 5% of parents can do it.”  It would be illogical and it would cause public chaos.  In essence, this is the message being sent from schools in our state to parents based on this insane dictate.  In their effort to prevent opt-out so their schools are not punished, some districts and charters are telling parents “No, you can’t opt out” or “Only we can decide who opts out”.  This has created a situation pitting parents against schools based on laws that only apply to schools or their employees, not parents.  Which is also why no school has received federal funding cuts based on participation rates below 95% which is caused by parent opt-out.  The laws are not written to reflect this, nor should they ever be due to the fact that children would be denied resources based on situations beyond their control.  The feds know this, which is why they left it to the State of New York to determine that with their high opt-out numbers.  New York is backing away from those cuts.  The legal challenges, if this ever did happen, would cause considerable expense to districts or charters, SEAs, and the federal government.

So while I appreciate the level of perceived transparency on this issue, it was not anywhere close to transparent.  In fact, many school board members were not aware of this at all until I informed them of it.  Parents, teachers, school board members, and citizens of Delaware are outraged by this.  They are mad, and they have every right to be.  They feel the DOE and the AFWG duped them, and their impression of them is not good.

I sincerely hope these types of transparency and public impression issues are corrected under the new leadership of Dr. Godowsky as Secretary of Education and I look forward to the pending but immediate removal of this participation rate section of the School Report Card in the Delaware School Success Framework.

Thank you,

Kevin Ohlandt


Okay, now that you have read this long post and feel inclined to know more backstory on this mess, it started here and continued here but really, everything behind this is included here, here, here, and here and on a national level, here and here.