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Trump Education Department Strongarms Utah Families Who Oppose Testing Mandates


Remember the bipartisan chorus of praise we heard after the new Republican-majority Congress passed the Every Student Succeeds Act (ESSA) in 2015? That replacement for the much-hated No Child Left Behind Act, the most expansive federal education law, was supposed to be “the largest devolution of federal control to states in a quarter century.”

Republicans and Democrats alike praised it for supposedly “putting more control for our schools in state and local hands” and “reducing reliance on high-stakes testing.” But as the law has been rolled out under U.S. Secretary of Education Betsy DeVos, ideals have succumbed to reality. The law still forces states to play their maddening game of “Mother, May I?” with the U.S. Department of Education (USED). The latest loser in the game is Utah.

DeVos told the Utah State Board of Education (USBE) that, no matter what was in the rest of the education plan Utah submitted for federal approval pursuant to the law, she wouldn’t give Utah its largest portion of federal education funds—called Title I—if less than 95 percent of its students take federally mandated tests. Due to big increases in parents refusing to let their kids take standardized tests after Common Core went into place, Utah’s test rate last year was 94.1 percent.

After Utah’s board tried twice to protect parental rights and follow state law, which protects parents’ right to opt their kids out of state tests, Utah’s education board finally succumbed, and agreed to follow USED’s directive to count some students who opt out of state testing as “non-proficient,” a move that attacks parental rights and penalizes schools with an opt out rate higher than 5 percent.

Effectively, the state and federal government will give opt-out students a zero on tests they don’t take, effectively punishing their schools and teachers by lowering the aggregate scores, even though state law allows them to opt out. This despite the fact that section 1111 of ESSA states, “Nothing in this paragraph shall be construed as preempting a State or local law regarding the decision of a parent to not have the parent’s child participate in the academic assessments under this paragraph.” Picking and choosing which parts of a mammoth-sized law to follow is kind of a thing these days.

So much for reducing reliance on high-stakes tests and devolving control to the states. Here’s how it went down.

After USED first rejected Utah’s plan in December 2017 due to the state’s protection of opt-outs, USBE tried to defend its citizens’ rights and representation by requesting a waiver from the federal 95 percent requirement. USED waivers are frequently granted. On May 31, however, USED said “No” to this request.

So USBE made its second attempt to protect parental rights and follow state law when on June 7 it authorized Utah State Superintendent Sydnee Dickson to pursue a one-year exemption from the federal testing mandate. Just two days before, USED had placed a phone call to the superintendent and sent a threatening “consequence letter” via email. Strangely, however, the letter wasn’t received until June 26. On the day the delayed letter finally arrived, the superintendent took a call from USED Principal Deputy Assistant Secretary Jason Botel, during which she “negotiated” the language USED finally accepted.

But some board members have taken issue with the superintendent’s actions because the state board had not authorized her to negotiate a new agreement with the federal department. “The chair [Dickson] doesn’t have authorization to act for the board without a vote,” said USBE Vice Chair Alisa Ellis.

What did Dickson and Botel “negotiate”? It appears to be a complete cave. Here’s the text.

Utah will calculate the achievement indicator in accordance with ESEA section 1111(c)(4)(E)(ii), effectively counting non-tested students in excess of 5 percent as non-proficient for purposes of accountability and identification of schools for support and improvement under ESSA. Schools that are identified for support and improvement due to the application of the ESSA calculation methodology will be audited to identify the root causes of low assessment participation. These schools will also be subject to remediation to address low participation rates.

Schools where more than 5 percent of students refuse to take federally mandated tests, the agreement says, face federal penalties. Yet “the board’s intent was never to count opt-outs as zeroes, and that’s what this final agreement does,” said USBE member Michelle Boulter. Ellis and Boulter are concerned about the implications for parental rights as well as the failure to follow proper procedure in reaching an agreement with USED.

Utah’s state board of education members are elected, meaning any agreement negotiated between the Utah and federal education departments without the full board’s official approval sidesteps the very officials Utah voters elected to run Utah’s public schools. What we have here is unelected federal officials—DeVos and deputies such as Botel—attempting an end-run around elected state officials. This is basically what all federal education involvement enables.

Ironically, Utah’s highest opt-out rates occur among economically advantaged, non-minority student populations with highly involved parents. Usually the mandates are defended with the insistence that testing mandates help poor kids by not allowing them to slip through the cracks of poor instruction. So will this agreement direct Title I money away from schools with higher financial need and toward well-to-do schools with high opt-out rates? And what form will federal “remediation” of non-compliant local schools take? Pressure tactics on families to take the tests?

Already the Utah School Boards Association has jumped on board the “federal money is more important than parental rights” bandwagon by supporting legislation to allow teachers to reward students who take state tests. This is an offensive game to play with families in a state that loudly touts its respect for families. And it gives the lie to promises of increased local control under ESSA.

State tests are used for federal enforcement, plain and simple. Many parents opt their children out as a way to push back. They don’t want to enable faulty accountability systems. They trust their children’s teachers and don’t need a state test to tell them what they already know.

By some estimates, the amount of federal funding at stake makes up about 2 percent of Utah’s education budget. But even state board members have run into a wall when trying to pin down the exact amount, said Boulter. Whatever the actual figure is, USED is clear in its threat to withhold millions of dollars from Utah simply for following state law and protecting parental rights.

Contrary to lawmakers’ promises, ESSA did not free states to pursue independent educational goals, nor reduce reliance on testing. DeVos’s administration seems inclined to enforce the constraints as rigidly as possible, with little deference to state law and parental rights, despite precisely opposite rhetoric from DeVos, the Trump administration, and Republican congressional leadership that rushed ESSA into passage shortly before Barack Obama left office.