Delaware DOE’s Sample Letter To Parents Who Opt Their Child Out

I’ve obtained a copy of the sample letter parents can expect to receive if they opt their child out of the Smarter Balanced Assessment.  There is a lot of threatening statements in this letter, but THEY HAVE NO MERIT ACCORDING TO THE LAW!!!!

Parents, do not be threatened by this vain attempt by the Delaware DOE to prevent you from honoring your constitutional right to determine what is best for your child’s education!!!

SAMPLE LETTER
LOCAL EDUCATION AGENCY (LEA)

DATE

Dear (Parent/Guardian),

This letter is in response to your request to have your child not participate in mandated state testing, which will be administered this spring. Unfortunately, (LEA) has no discretion in the matter. Federal and state laws require that public-school students be tested.

The Elementary and Secondary Education Act of 1965 (ESEA), which was amended by the No Child Left Behind Act of 2001, requires all states to implement “high-quality, yearly student academic assessments.” 20 U.S.C. § 6311(b) (3)(A). The statute further provides that “[s]uch assessments shall . . . provide for . . . the participation in such assessments of all students.” 20 U.S.C. § 6311(b)(3)(C) (emphasis added). The ESEA does not allow parents to exempt their children from taking the state assessments.

Delaware State Code also is clear that school districts and individuals shall not “exclude a student from participation in the state assessment except in accordance with the regulations of the Department” (Title 14, Chapter 1, Subchapter IV § 173).

The only exemptions allowed under the law due to extreme medical incidents or for reasons of mental health of the child. Each requires documentation from a physician.

Both federal and state statutes are clear in their language—that all students enrolled in public schools must take the yearly state assessments. The Delaware Department of Education and each school district and charter school must comply with federal and state mandates.

If you have any questions, please contact (NAME AND CONTACT INFORMATION FOR LEA CONTACT PERSON).

Sincerely,
(SUPERINTENDENT/CHARTER DIRECTOR’S NAME)
(LOCAL EDUCATION AGENCY NAME)

So let’s take a look at the specific codes they are mentioning:

20 U.S.C. § 6311(b)

(3)  Academic assessments

 (A)  In general
Each State plan shall demonstrate that the State educational agency, in consultation with local educational agencies, has implemented a set of high-quality, yearly student academic assessments that include, at a minimum, academic assessments in mathematics, reading or language arts, and science that will be used as the primary means of determining the yearly performance of the State and of each local educational agency and school in the State in enabling all children to meet the State’s challenging student academic achievement standards, except that no State shall be required to meet the requirements of this part relating to science assessments until the beginning of the 2007–2008 school year.

The State shall have such academic standards for all public elementary school and secondary school children, including children served under this part, in subjects determined by the State, but including at least mathematics, reading or language arts, and (beginning in the 2005–2006 school year) science, which shall include the same knowledge, skills, and levels of achievement expected of all children. 

(C)  Requirements
Such assessments shall—

 (i) be the same academic assessments used to measure the achievement of all children;

 (ii) be aligned with the State’s challenging academic content and student academic achievement standards, and provide coherent information about student attainment of such standards;

 (iii) be used for purposes for which such assessments are valid and reliable, and be consistent with relevant, nationally recognized professional and technical standards;

 (iv) be used only if the State educational agency provides to the Secretary evidence from the test publisher or other relevant sources that the assessments used are of adequate technical quality for each purpose required under this chapter and are consistent with the requirements of this section, and such evidence is made public by the Secretary upon request;

And the Delaware Code, from Title 14:

§ 173. Data reporting violations.

School districts and individuals shall not:

(1) Fail to report assessment scores, numbers of students administered the assessments any other data element required to be reported to the Department;

(2) Report incorrect or otherwise inaccurate assessment scores, numbers of students administered the assessments or any other data element required to be reported to the Department;

(3) Exclude a student from participation in the state assessment except in accordance with the regulations of the Department;

(4) Refuse to disclose to the Department information concerning a violation of the foregoing data reporting requirements; or

(5) Refuse to cooperate in the investigation of a suspected data reporting violation, whether such investigation is conducted by a school district or the Department. The investigation shall include a review of mitigating circumstances, if applicable.

73 Del. Laws, c. 81, § 1; 78 Del. Laws, c. 53, §§ 42, 43.;

Now who are these individuals?  Does this refer to any parent who opts their child out of Smarter Balanced?  Or do they mean individuals who are employed by the school district?  The next paragraph in the code makes this VERY clear:

§ 174. Civil sanctions for violations.

(a) A student who violates any of the provisions of § 172 of this title shall be subject to the following:

(1) At the discretion of the Department, the assessment score of such student may be invalidated and the student may be declared ineligible to retake the assessment until the next official testing opportunity; and

(2) Such disciplinary action as deemed appropriate by the student’s school district.

(b) An individual other than a student who knowingly violates any of the provisions of this subchapter shall be subject to the following:

(1) Such personnel sanctions as might otherwise be imposed by the individual’s employer for an act of misconduct;

(2) A hearing conducted by the Professional Standards Board to determine revocation of any license issued to such individual pursuant to the provisions of Chapter 12 of this title; and

(3) Payment of any costs incurred by the State or Department as a result of the violation.

73 Del. Laws, c. 81, § 1; 78 Del. Laws, c. 53, § 44.;

As well, the law defines who these individuals are:

(4) ”Individual” means a student, teacher, administrator, local or state school board member, or other employee, agent or contractor employed by the Delaware public school system whether local or at the state level, and including an employee,  agent or contractor of a charter school;

Did you see the word “parent” on that list?  I sure as hell didn’t!  If you are going to cite law, don’t just throw arbitrary paragraphs out there when others ones contradict what you are trying to accomplish.  I don’t think the Professional Standards Board can revoke my license to be a parent.  No one can take away my right to opt my son out as it is currently written in the law.  Once again parents, do not be fooled!

 

Can Parents Legally Opt Their Child Out Of Standardized Testing? Yes, They Can!

Delaware Parents, if it is legal precedent you are looking for to opt your child out of the Smarter Balanced Assessment, look no further than the Supreme Court. Thanks to Natalie Alvini Ganc, a special education teacher here in Delaware, for giving me the heads up on the court decisions that would allow parents to do this. Nothing beats the Supreme Court in America. States have tried and failed. As per Fairtest.org:

Dear (school administrator),

Please accept this letter as record of my decision to refuse for my child (name) to participate in The Smarter Balanced Assessment at (school) during the 2014-2015 school year. My refusal to participate in the Smarter Balanced Assessment is because I believe standardized high stakes testing take away time from the instructional experiences my child might otherwise receive. I want more teaching and learning, and less testing! The state seems to believe that my child is obligated to participate in testing because the state or the policy makers demand it, when in fact the social contract of public schooling is grounded on the premise that the state and policy makers are obligated to the needs of children. I am aware that there is no “opt out” clause in the state of Delaware. But the state has yet to provide any legal documentation that my child may not exercise his or her right to refuse the tests.

According to the U.S Constitution, specifically the 14th Amendment, parental rights are broadly protected by Supreme Court decisions (Meyer and Pierce), especially in the area of education. The Supreme Court has repeatedly held that parents possess the “fundamental right” to “direct the upbringing and education of their children.” Furthermore, the Court declared that “the child is not the mere creature of the State: those who nurture him and direct his destiny have the right coupled with the high duty to recognize and prepare him for additional obligations.” (Pierce v. Society of Sisters, 268 U.S. 510, 534-35) The Supreme Court criticized a state legislature for trying to interfere “with the power of parents to control the education of their own.” (Meyer v. Nebraska, 262 U.S. 390, 402.) In Meyer, the Supreme Court held that the right of parents to raise their children free from unreasonable state interferences is one of the unwritten “liberties” protected by the Due Process Clause of the Fourteenth Amendment. (262 U.S. 399). In recognition of both the right and responsibility of parents to control their children’s education, the Court has stated, “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for the obligations the State can neither supply nor hinder.” (Prince v. Massachusetts, 321 U.S. 158).

I understand that it is state and local policy to require all students to be evaluated for proficiency in various subject areas at each grade level. However, I believe that testing is not synonymous with standardized testing and request that the school and my child’s teacher(s) evaluate his or her progress using alternative (and more meaningful) measures including: project-based assignments, teacher-made tests, portfolios, and performance-based assessments, to be determined at the discretion of the teachers and myself together.

My child is prepared to come to school every day during the testing window with alternative meaningful self-directed learning activities that support the essential curriculum, or is willing to participate in other meaningful activities as determined by the school or his or her teachers during testing times.

I have a tremendous respect for my child’s teachers and his school. They do a tremendous job and I wish to continue to send my son to a school where he looks forward to participating every day. My school’s teachers and administrators understand that this action is no way a reflection of my feelings towards them nor is it intended as an attack toward them or the great work that they do every day. My issue is with high stakes standardized testing and the harm it does to children and our public schools. I believe we can work constructively together to ensure that my child will not be negatively affected in any way, and that successful alternatives that are neither punitive nor require further legal complications are indeed possible. Thank you.

Respectfully yours,

(Your name)

This is all you have to do. Now one thing to remember, the entire curriculum this year will be to prepare for this test. Your child will still receive grades based on formative and/or summative tests throughout the year. Until Common Core is repealed in Delaware, there isn’t much choice for what your child is taught. Trust me, most of the teachers hate it too, and if they had their way Common Core would disappear. You may receive calls from the principal, or the district. Document everything. If they tell you something about your decision, ask for it in writing. If they state policy to you, tell them you want that policy in writing. Some may call this civil disobedience, and they may be right. But it’s also about doing what’s right for your child. No one can ever take that away from you. Your child has the legal and fundamental right for his/her parents to advocate for them. This is your chance to do what is right for your child, not what the “educational” aka corporate reformists are telling you what to do.

UPDATED: I’m hearing from parents already that they are doing this today.  Excellent! Bravo!  Please email me at kevino3670@yahoo.com for any responses you get from the schools.  Let me know if they accepted it.  The more of us that do this the better off our children will be.