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

Parental Opt-Out of Standardized Testing

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!