State law requires schools to inform parents they have the right to opt their children out of the tests, which will be administered in math and English language arts to students in grades 3-8 and 11. But the federal No Child Left Behind law requires states to ensure that 95 percent of all students are tested – both statewide and districtwide.
Although the opt-out movement has not taken hold as strongly in California as in other states, California was among several states that received a letter from the U.S. Department of Education warning that failure to meet the participation requirement could result in the loss of federal funds. California’s statewide average met the requirement but 21 districts tested fewer than 95 percent of their students.
The new Every Student Succeeds Act will replace No Child Left Behind when it goes into effect in 2017-18. It will continue to require that 95 percent of students participate in the tests, but will allow states to determine what actions to take if districts fail to do so. The new law also requires districts that receive federal funding to annually notify parents of state laws allowing them to opt their students out.
“It leaves states like California jammed in the middle,” said Robert Schaeffer, spokesman for the National Center for Fair and Open Testing, or FairTest, noting that California is one of several states with a law that allows parents to opt out.
The seemingly contradictory requirements have led to mixed messages from the state and confusion among some districts about how to let parents know they can opt out of the tests, while ensuring that 95 percent of students take them. Last year, the state posted a template test notification letter for districts on its website, which informed parents about the tests, but failed to mention their opt-out rights.
This year, the state again intends to omit opt-out information from its template letter, which it plans to post on its website in the next few weeks, said Peter Tira, California Department of Education spokesman, in an email.
“We do not include language in our sample letter about parents’ ability to opt out because we want to encourage as much participation as possible,” Tira said. “The state has been required by federal law to meet a 95 percent participation rate, which we exceeded this past year.”
Schaeffer was surprised that California’s template letter for districts to parents did not include opt-out language.
“At best, that’s inconsistent and it’s really questionable whether the state is failing to comply with its legal responsibility,” he said. “It’s like telling somebody half the story.”
The testing window for most districts won’t begin for weeks, but some schools with early start dates began administering the tests last month, Tira said.
Elementary and middle schools that have completed 66 percent of their annual instructional days – or “track” for year-round schools – can begin testing now, Tira said. Testing for 11th-graders can begin when 80 percent of a school’s instructional days or track is completed.
The tests are part of the California Assessment of Student Performance and Progress, or CAASPP, system, which also includes alternative assessments for some students, as well as science tests. The state’s testing division has sent updates to schools and districts to inform them about changes this year and to remind them of their legal requirement to inform parents that they have the right to opt their children out of testing.
But the state’s failure to include opt-out language in its template last year led some districts to send the letter to parents without amending it to meet the legal requirement. Concerned Parents of California said it sued two districts for excluding information about ￼￼￼opt-outs in parent test notifications – Walnut Valley Unified east of Los Angeles in Los Angeles County Superior Court and Conejo Valley Unified in Ventura County, in Ventura County Superior Court.
The Pacific Justice Institute legal defense organization, which objects to Common Core testing, is representing Concerned Parents. Brad Dacus, president and founder of the institute, said the Concerned Parents group is merely asking the districts to comply with their legal obligations.
“We’re not suing for monetary damages,” he said. “The parents we’re representing just simply want the districts to abide by the law of the state of California, respecting the rights of parents.”
Walnut Valley school officials said the district was never served with a lawsuit. But an attorney for Concerned Parents said the district refused to accept the service by mail, so it plans to follow up with a personal service.
“What we used for our letter was the state template that the state had posted on their website,” said Jackie Brown, Walnut Valley’s director of elementary education and assessments.
Matt Witmer, the district’s assistant superintendent for educational services, said he thought the letter included a reference to the Education Code. But it did not. Instead, the state’s website includes this note under its template: “The sample letter serves as a notice to parents of the year’s statewide assessments and does not satisfy a district’s obligation to notify parents of their right to exempt their child from statewide assessments pursuant to Education Code Section 60615.”
When asked why Walnut Valley didn’t see that note, Brown said it was added after testing was completed. Tira did not say when the note was added to the website.
This year, Brown said Walnut Valley is working with the Los Angeles County Office of Education to create a letter that will satisfy the requirement to notify parents of their opt-out rights. Similarly, the Conejo Valley district plans to expressly notify parents of their opt-out rights this year, said Superintendent Ann Bonitatibus in an email.
Conejo Valley Unified included the following information in its 2015-16 Annual Notice of Rights and Responsibilities for Parents, Students and Staff: “Education Code and California Code of Regulations requires, among other things, that on an annual basis school districts inform parents of (1) their student’s participation in the CAASPP; and, (2) that any written request to excuse his/her child from the CAASPP shall be granted.”
The district also plans to “send additional notification via letters prior to test administration,” Bonitatibus said. She referred questions regarding the lawsuit to district lawyers, who did not respond to a request for comment.
Kevin Snider, the attorney representing Concerned Parents, said the lawsuits would be dropped if the districts inform parents of their rights.
Los Angeles Unified, the state’s largest district, has created a template letter for parents that includes opt-out information. It also plans to add the notification to its parent handbook next year, said Cynthia Lim, executive director of the district’s Office of Data and Accountability.
Cindy Kazanis, director of the California Department of Education’s Analysis, Measurement, and Accountability Reporting Division, told EdSource last month that the state planned to send a letter to the 21 districts that failed to meet the 95 percent participation rate requirement, informing them that they needed to increase participation to avoid the possible loss of federal funds. But by the end of last week, it had not been mailed.
￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼￼“There is no letter,” Tira said in an email. “There may not be a letter. Everything is still under discussion.”