Opt-Out, Testing/Assessments & Learning Standards, Every Student Succeeds Act (ESSA)
June 09, 2018

NYSUT blasts SED plan to penalize schools for opt-outs

Author: Jolene DiBrango, Executive Vice President
Source:  NYSUT Research and Educational Services
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NYSUT Executive Vice President Jolene DiBrango pushed back on the State Education Department's draft ESSA regulations, calling for the state to end threats to penalize schools with high numbers of opt-outs on state assessments.

"What they are doing right now is penalizing and stigmatizing parents who make this decision, and we simply do not agree with that," DiBrango told reporters after the Regents voted to move forward with the draft plan.

In a new letter to the NYS Board of Regents, DiBrango says the State Education Department's response to NYSUT's public comments on the draft ESSA regulations "continues to ignore parents and educators and our concerns about the state testing program."

She further calls on the Regents to end threats of financial penalties to schools and school districts "by amending the proposed regulations, and if necessary, submitting an ESSA plan amendment to the United States Department of Education."

The text of the June 9 letter appears below; the extended public comment period continues through August 17.

  • The public comment period ends August 17.
    Please send specific feedback on the new ESSA regulations and how the regulations will impact YOUR school district to


June 9, 2018

Dear Board of Regents:

The SED response to our public comments on the draft ESSA regulations continues to ignore parents and educators and our concerns about the state testing program. Parents will not be brought back to the system by threats of financial penalties to their child’s school or threats of putting their school on a list. Parents and educators want to see real changes in the state testing program. SED has the opportunity to fix these problems this summer with the benchmark setting process for the grades 3-8 tests. However, the department is choosing not to fix it and instead leaving the wide disparity between results on the grades 3-8 tests and the results on Regents exams and graduation rates.

The ESSA regulations relating to participation rates and SED’s response to NYSUT’s comments fail to recognize the significant change in federal policy from NCLB to ESSA. When NCLB was adopted, the 95 percent participation rate provision was put in place to make sure school administrators did not discourage low performing students from participating in the tests thus improving their school’s performance. At that time, Congress never could have envisioned a parent opt out movement like we have experienced here in New York State. At that time the Regents adopted regulations like the one that would allow the Commissioner to place a school on the SURR list if the school had low participation rates. It made sense to enact this provision as part of NCLB to make sure administrators did not try to game the system.

Fast forward to today and the new ESSA law, which specifically recognizes a parent’s right to opt out and left to states the decision on how to deal with participation rates in school accountability. SED has chosen to add several provisions to the regulations to punish parents for opting their children out of the tests. This decision is made at the state level and is now in your hands. The United States Department of Education is not requiring these provisions. In fact, as mentioned in our previous letter, several state plans were approved without using the participation rate to punish schools. The ESSA statute prohibits the United States Department of Education from interfering in how states choose to use participation rates in their accountability system.

Specifically, the regulations continue the provision allowing the Commissioner to place a school on the SURR list for low participation rates without taking into account the change in federal law. The regulations include a new financial penalty for schools with high opt out rates over several years. Contrary to the department's position, it is a financial penalty when the state directs a school to stop spending funds on services to students and instead spends it on convincing parents to have their children take the test. This penalty will not solve the problems with the testing program that led to the opt out movement. Those problems can only be solved at the state level and so far SED is unwilling to solve it. SED has also decided to continue the policy of not allowing schools to exit CSI or TSI status if they do not meet the 95 percent participation rate, thus making participation rate the most important factor in the exit criteria. Continuation of these failed NCLB policies means New York State is not availing itself of the opportunity to develop a truly new school accountability system under ESSA.

NYSUT encourages you to put a stop to these penalties by amending the proposed regulations, and if necessary, submitting an ESSA plan amendment to the United States Department of Education. As you know, the ESSA plan is a living document and changes can be submitted at any time to correct these problems.

Thank you for considering our comments. We look forward to working with you on these changes.

Jolene DiBrango
Executive Vice President
New York State United Teachers

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