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ReThinking Testing’s Response to the “How to handle test opt-out requests” 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 conclusions. 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: AL.pdf 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 teachers: "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 state assessments."
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

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 be 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 measures. 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.