Sunday, April 28, 2013
response to legal advice to state and districts regarding parental rights
Eric L. Mihelbergel posted this on Facebook. It is interesting. Thanks for sharing, Eric. All information is good information.
Re: Testing’s Response to the “How to handle test opt-out requests”
Subject: Alert to the NYSSBA By the New York State Association of School Attorneys
Recently, the NYS Association of School Attorneys sent a legal alert to many NYS Board
of Education Members.These are confusing times and much information and
misinformation is being disseminated. While the memo repeats portions of what NYSED
regulations assert and what the state has already said, it also ignores other portions of
NYSED regulations and makes assertions that are open to interpretation.
NYSED, teachers and parents are finding themselves in a new situation and there are many
unknowns. Therefore we have made every attempt to ensure that we are able to attribute
information that we put out to credible sources. To that end, we will provide you with
links to the actual NYSED sources so that you may read them and draw your own
In reference to the NYS 95% testing mandate, the memo states:
If a district does not reach this level of participation, it will not make “Adequate Yearly Progress”
(AYP), and a district’s Title I funding will be affected. In addition, there may be intervention
consequences for districts that fail to meet AYP.
As per a May 2012 memo to school district superintendents from NYSED’s Ira Schwartz,
Assistant Commissioner Office of Accountability, “If a school is not identified as a
Priority School in June 2012, it will not be so identified during the 2012-13, 2013-14, or
2014-2015 school years. Similarly, if a district is not identified as a Focus District in
June 2012, it will not so be identified during the waiver period.”
The only schools that may have their funding impacted are schools that are ALREADY identified as schools in need of improvement and who also receive Title 1 funding.
You can read the memo here.
Furthermore, the memo does not include the information that if a school is designated as
a “focus” or “priority school,” Title 1 money is not lost. Rather, 15-20% is put into a "set
side" for special improvement projects. What these projects are remains vague.
You can find that information here.
The memo also ignores recent comments made by Commissioner John King in an email to
No new districts will be identified as Focus Districts and no new schools will
be identified as Priority Schools based on 2012-13 assessment results.(NYSED News and Notes, March 2013, “Message from Commissioner King” )
Regarding teacher evaluations, the memo states:
However, it is unknown whether student refusals to take any state assessments will be
considered in this calculation under APPR. Without SED guidance on these open issues,
districts face the unknown should a significant number of students refuse to participate in
We have been careful to be clear about what some of the unknowns are, this being one of
them. Many of the members of this organization are teachers themselves, so we are very
concerned about how any actions might impact a teacher's evaluation. What we do know is
that if a significant number of students do not take the tests, the teacher will not be
evaluated using NYS test scores. The teacher will have to develop 2 additional SLOs
based on local measures. This is as per the NYSED APPR Guidance document.
You can find that information here:
(Paragraph D51 and D52)
The memo also states:
For example, a district’s procedures for promotion to the next grade may be based on a student’s level of achievement on a state assessment. In addition, districts may make determinations for enrollment into honors courses/programs or gifted and talented programs based on students’ performances on state assessments.
In New York State (With the exception of NYC) standardized testing does not count
towards promotion until high school. The test scores do not have any effect on your any effect on your child’s grades or progress. In fact, grade retention in grades K though 8 is uncommon and
only happens in certain circumstances with parent permission.
Read about this here.
Further, as per NYSED, state test scores are not the only determinant for a student to
receive academic intervention services. These services are determined, through a
“district-developed or district-adopted procedure uniformly applied, to students at risk of not
achieving State standards in English language arts, mathematics, social studies and/or
science.” Access to accelerated programs is also determined through a district adopted
procedure and is specific to your particular district. Most districts rely on multiple
You can read about that here. (P-12 › Part 100 Regulations)
The memo also states:
In addition, districts may want to consider what, if any, consequences to implement if a student has an unexcused absence on a state assessment day. For instance, districts could prohibit students with such unexcused absences from participating in extracurricular clubs, athletics, or other school sponsored functions (i.e., school dances, activity nights).
In other words, The New York State Association of School Attorneys is advising school
boards to develop punitive measures to punish children whose parents or guardians choose
to invoke their parental rights and refuse to have their children participate in high
stakes testing. This is perhaps the most alarming and disturbing aspect of this memo.