Testing/Assessments and Learning Standards, Every Student Succeeds Act (ESSA), Middle-Level Education, Opt-Out
February 07, 2020

Fact Sheet 20-6: Facts for Parents on Opting Out of State Tests

Source: NYSUT Research and Educational Services
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As the next round of state tests approach, it is important to review the facts around opting out of state tests. Each year misinformation about the impact of opt-outs is presented as fact to parents, as school district officials attempt to convince parents to have their children take the state tests. This fact sheet attempts to clear up the misinformation by reviewing the federal requirements for participation in the state assessments and potential consequences of opting-out for districts and students.

NYSUT fully supports a parent’s right to choose what is best for their children. There have been changes in state policies and laws that eliminate certain consequences of the state tests for students and teachers; however, these tests are still administered and used for “advisory” purposes and for identifying low-performing schools.


The State Education Department (SED) no longer questions a parent’s right to opt their child out of the state tests but has not adopted a formal state policy. Therefore, the opt-out process is different in each district. You should check with your school principal or district administrator to find out the process in your district. If the district does not have a standard form, send the principal a letter stating the tests you do not want your child to take part in and request the district provide a productive alternative activity. All requests for opt-outs should be made in writing to ensure a paper trail should a question arise about whether you requested that your child not take the state tests. The letter should be provided to the school principal prior to the start of the state testing period. The sooner the letter is provided the less likely the district is to dispute your request. Some parents provide the letter on the first day of school.


The grades 3-8 ELA and mathematics state assessments are required by the Federal Elementary and Secondary Education Act (ESEA). In December 2015, ESEA was reauthorized as amended by the Every Student Succeeds Act (ESSA). ESSA continues the requirements for statewide standardized tests[1] and that 95 percent of all students and subgroups be assessed annually. The Federal role in state accountability systems has been reduced under ESSA. States are responsible for most of the decisions regarding the design and consequences of the accountability system, including treatment of opt-outs.

New provisions in ESSA requires districts to inform parents and guardians of opt-out policies and affirms a parent’s right to have their children opt-out of statewide standardized tests, where state and local policies permit. However, SED has taken the position that since New York State law is silent on the right to opt-out, there is no obligation to inform parents.

  • [ESEA III2 (e)(2)(A)]“IN GENERAL.—At the beginning of each school year, a local educational agency that receives funds under this part shall notify the parents of each student attending any school receiving funds under this part that the parents may request, and the local educational agency will provide the parents on request (and in a timely manner), information regarding any State or local educational agency policy regarding student participation in any assessments mandated by section 1111(b)(2) and by the State or local educational agency, which shall include a policy, procedure, or parental right to opt the child out of such assessment, where applicable.


ESSA requires the state utilize a methodology for calculating student achievement that includes all continuously enrolled students, regardless of whether or not they took the test. Schools must report aggregate participation rates for all accountability subgroups in all schools. ESSA also makes it clear: it is up to states to determine how participation rates will factor into the state accountability system. New York State’s new accountability system was implemented in the 2018-19 school year. The new system changed how the state factors in opt-outs for identifying low-performing schools.

SED has chosen to calculate student achievement using two different methodologies, one that includes all enrolled students to meet the requirement of the law and a second calculation based only on those students that participate in the State assessments. These two measures will be combined to determine a school’s composite performance rating for student achievement. The state will then combine the composite performance rating with a school-wide growth measure to initially identify schools for corrective action. SED has stated publically that they do not intend to identify schools for improvement if the schools have high academic achievement but low participation rates. However, the more students that opt-out, the more likely the school will have a lower average academic achievement measure, resulting in a lower combined rating.


One of the more persistent rumors is that students who opt-out will automatically receive a “level one” score that will become part of their permanent record. This is false. When reporting individual students that opt-out, districts use a code that indicates refusal and no score is reported for the child. These students will be considered to have no valid test score.[2]

There are some potential consequences for schools:

  • Districts with schools that persistently and substantially do not meet participation rates will be required to submit a corrective action plan that will escalate over time. Superintendents will be pressured to improve participation rates. There are some districts that have attempted to discourage opt-outs through the use of punitive measures, such as sit-and-stare policies or requiring students take alternative exams. NYSUT opposes sit-and-stare policies or requiring alternative exams.
  • SED has stated that it does not support any withholding of state aid from schools or diversion of school improvement funds from those schools that need them most because of participation rates. However, the methodology used for calculating student achievement will most likely result in a lower performance level for schools with high opt-outs, which may lead some schools to be mislabeled as underperforming.
  • Comprehensive Support and Improvement (CSI) schools, and for the lowest performing schools based on subgroup performance, Targeted Support and Improvement (TSI) schools may not be able to meet the exit criteria if the academic achievement measure remains in the lowest performance level, which is more likely with a high number of opt outs.
  • The 95 percent participation rate will be a criterion for identifying whether a school can be designated as a “Recognition (high performing)” school. This would be consistent with past practice.

Although originally intended to evaluate programs, the assessments are used by some districts as one of the criteria for placement decisions and by the state to determine whether or not a student should receive Academic Intervention services (AIS).  Schools must use multiple measures in making such determinations. Actions by the state Legislature and Board of Regents have minimized how the assessments can be used.  Parents should ask to review the district policies for how students that opt-out will be evaluated for both AIS and placement in advanced courses.

Additional details are available in the NYSUT Fact Sheet Opting Out of State Tests on the nysut.org web site.

[1] ESSA also requires statewide assessments in ELA and math once in high school and grade span testing in science.

[2] SED 2019-2020 SIRS Manual, http://www.p12.nysed.gov/irs/sirs/

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