Want your kids to opt out of standardized tests? The Constitution may be with you.
Correction: An earlier version of this story attributed a finding — that pre-kindergarten through 12th grade students take 113 tests — to the wrong education organization. The version below has been corrected.
(Michael Quirk/iStock)
When Jeanette Deutermann’s older son began third grade, he started crying and begging not to go to school. He developed stomachaches that a doctor said were stress-related. Deutermann, a stay-at-home mom in Nassau County, Long Island, was mystified. “In kindergarten, first, second grade, he wasn’t a kid who was like, ‘Please let me go to school,’ ” she recalled. “But he didn’t have issues.”
She eventually realized what was stressing him out: the advent in third grade of high-stakes standardized testing. On top of state-mandated annual exams, her school and district had imposed many more diagnostic, benchmark and practice tests. For Deutermann, the last straw came in February 2013, during her son’s fourth-grade year, when he brought home a notice that he’d been “selected” for something called “Sunrise Academy.” Based on their scores on the NWEA, a benchmark test, some fourth-graders — gifted as well as struggling kids — were asked to come in at 7:30 a.m. two mornings a week to prep for the state exam. “For me it was a total red flag,” Deutermann recalled. “I start asking: ‘What happens if he doesn’t do well? Will he be put on a lower track? What is the consequence?’ ” She was told the test would measure the school’s performance, not her son’s.
But Deutermann had had enough. So she founded a Facebook group, Long Island Opt-out Info, that February and started organizing other parents. The next spring, nearly 30,000 Long Island students skipped state-mandated tests — one of the biggest protests in what has become a national movement.
Parents and teachers across the country — determined to reclaim local control and opposed to market-based reforms, school closures and cutbacks — are losing their patience with standardized tests. Designed to assess students and hold teachers, schools, districts and states accountable for their performance, high-stakes exams have come to define education for many kids. The Council of Chief State School Officers has reported that, on average, students take 113 such tests between pre-kindergarten and 12th grade. Even President Obama has spoken in favor of cutting back.
The new national resistance holds that these exams do not provide useful or timely information; that they are unfair to minorities and otherdisadvantaged groups; and that tests and prep are crowding out arts, science, social studies and 21st-century skills. Officials are pushing back. Yet parents are finding constitutional arguments to support their approach, and in many cases they’re winning.
There are no hard numbers. But starting in 2013, changes to teacher evaluations related to Race to the Top, a federal incentive program, as well as the adoption of the Common Core standards, triggered a new wave of opt-out protests and boycotts led by parent groups and teachers unions. A reported 60,000 students opted out across New York state last year. Organizers in Denver and Chicago also recruited many defectors during the 2014 testing season, and protests made news in Kansas, Oklahoma, Maryland, Massachusetts, New Jersey, New Mexico and Pennsylvania. Bob Schaeffer of FairTest, an anti-testing group, calls the movement “unprecedented.”
This controversy goes back at least to the 19th century. In “Testing Wars in the Public Schools: A Forgotten History,” historian William J. Reese tells the story of what happened in 1845 in Boston, when reformers, led by the legendary Horace Mann, gave a very difficult surprise essay test to public high school students. Local leaders and parents resisted, arguing, as they do today, that the test narrowed the curriculum and deprofessionalized teachers. But, as Reese writes, “once written tests entered the schools, they were never going to leave.”
Still, most students complied. The opt-out is a relatively new phenomenon — a response to the age of universal, high-stakes testing. The first big boycott came in 2001, just as No Child Left Behind, mandating annual math and reading tests from third through eighth grade, was becoming federal law. Two-thirds of Scarsdale, N.Y.’s eighth-graders opted out of a science test that May. The state commissioner of education scolded the affluent district in an official letter the following fall, ordering school officials to punish students if they repeated the stunt.
Today, the opt-out movement has supporters on the right, the left and in between. The tea party is raising a populist alarm about “Obamacore,” while teachers unions are asking for more professional autonomy. High-stakes testing was a major issue in the recent New York and Newark mayoral campaigns. Deutermann’s group supported 21 successful opt-out school board candidates across Long Island — six of them challengers who ousted incumbents.
Organizing is starting early this year as more Common Core tests come into effect. Advocates say they hope to exponentially increase the size of last year’s protests when testing season arrives this spring.
In reporting for my book “The Test,” I never heard of students being kept back a grade or suffering other major consequences for opting out of state tests. But they do face pressure to conform. Officials’ actions have included repeated, sometimes automated, calls home, detention and suspension.
In some schools, students who opt out have been required to “sit and stare”without books or other diversions for hours while their peers take the test. And there are scattered reports of petty intimidation: Some 8-year-olds in Colorado were asked to call home and press their parents for permission to take the tests. Teachers deprived a 9-year-old girl in Chicago of ice cream and candy as they dispensed those rewards to her test-taking peers.
No Child Left Behind generally requires schools to administer accountability tests to all students who have been in the country for at least a year, with accommodations for those with learning disabilities. At least 95 percent of students in each subgroup (minorities, low-income students and English-language learners) must comply in order for schools to be in “good standing” for accountability purposes. According to United Opt Out National, an advocacy group, only three states — California, Pennsylvania and Wisconsin — have statutes affirming the rights of parents to keep students out of state assessments.
Opt-out sample letters often cite a pair of Supreme Court decisions recognizing the constitutional right of parents to “direct the upbringing and education of children.” A 1923 case, Meyer v. Nebraska , involved a teacher who had taught German in violation of a state law prohibiting foreign-language instruction before the ninth grade (in order to assimilate immigrants). The court found that, in blocking the education parents wanted for their children, Nebraska had deprived them of their rights under the due process clause of the 14th Amendment.
In another 14th Amendment case, Pierce v. Society of Sisters (1925), two private schools — one parochial and one military — challenged an Oregon law requiring all students to attend public schools. The court cited theMeyer ruling that the due process clause afforded parents the right to decide how best to educate their children. The Pierce decision begins with words that serve well the purposes of would-be opt-outers: “The fundamental theory of liberty upon which all governments of this Union rest excludes any general power of the State to standardize its children.”
Leslie Kendrick, an expert on freedom of expression at the University of Virginia School of Law, says “Meyer claims” about parents’ rights to control a child’s education may “gain traction” as the opt-out movement grows. But abstention might best be understood as an act of civil disobedience. “It could be that the more important part of this is the power of the opt-out as an expression of parents’ viewpoints that education needs to change,” she said.
All this may explain why courts have stayed away from the opt-out question, Schaeffer says: “These cases are so politically fraught.” Complaints have been brought by the ACLU, and state attorneys generalhave weighed in, but no opt-out disputes have yet been settled in court.
Still, successful protests today tend to rest on the same 14th Amendment concepts that grounded those 1920s decisions. Rhode Island’s ACLU argued that the state’s high school graduation test, the NECAP, had many flaws, including “a significant disparate impact on racial minorities, the poor and students with disabilities,” as the state’s ACLU director, Steven Brown, put it. (“Disparate impact” arguments hold that policies that hurt one protected class more than another violate the equal-protection clause.) In June, the state legislature passed a three-year ban on graduation tests.
Brown and Schaeffer, like many others, believe that the testing issue will be fought and resolved politically, not in the courts. In the meantime, parents like Deutermann continue to opt out under the banner of civil disobedience. Early this year, Congress plans to take up the reauthorization of No Child Left Behind. One Republican draft bill would remove annual testing requirements altogether.
Anya Kamenetz writes about education for NPR. This essay is adapted from her book “The Test: Why Our Schools Are Obsessed With Standardized Testing — but You Don’t Have to Be.”
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