Education Department pulls back on proposed opt-out rules
While many of their schoolmates at Holbrook Road School in Centereach were busy taking their state tests on April 12, students, like these, who chose to opt out of the state tests, spent the day in separate classrooms reading books of their choice. Approximately 70 percent of the students at the school opted out of taking the tests. The school is in the Middle Country School District. Credit: Newsday / John Paraskevas
State efforts to discourage student test boycotts through stricter regulations have hit a roadblock, and the rules themselves face major revision following a flurry of protests by parent activists, teacher union representatives and PTA officials.
The state Board of Regents had planned to take a final vote Monday on controversial new academic and financial regulations aimed at schools where large numbers of students opt out of state exams — a phenomenon that mushroomed into the nation's largest such revolt.
But a provision that could have required districts to set aside money to encourage greater test participation now has been recommended for elimination, and the 17-member policymaking board's timetable has changed. A final vote is tentatively planned for December, the state Education Department announced Friday.
Discussion and debate of the revised rules still is set for Monday's meeting in Albany, followed by a procedural vote needed to continue until December the process for revamping the rules. A 30-day period for public comment will begin Oct. 3 if the Regents approve recommendations by Education Commissioner MaryEllen Elia and her department staff.
The Regents' shift also comes before the Education Department's release of results from the English Language Arts and math tests given to students in grades three through eight in April and May, as well as the agency's measurement of test refusals statewide. The results of spring tests already have been sent to individual school districts, and agency officials said Friday that the data will be made public later this month.
In each of the past three years, the department has publicly released that data in July or August.
The Regents' proposed regulations, which take up nearly 200 pages, are aimed at enforcing provisions of federal education law — the Every Student Succeeds Act, or ESSA, passed by Congress with bipartisan support in 2015. The rules cover student test participation and a wide range of other issues, including high school graduation rates, class attendance and school accountability.
One of the rules now recommended for elimination — a proposal that had opt-out supporters fuming — would have empowered the state to impose financial requirements on local schools with high test-refusal rates. Such schools could have been ordered to set aside a portion of their federal funding, known as Title I, to be used in advertising campaigns or other initiatives aimed at boosting test participation.
The ESSA law, like the one that preceded it, requires at least 95 percent of students in grades three through eight to be tested annually in English and math. Students also must take state science tests in the fourth and eighth grades. The participation requirement, when first adopted in 2002, was geared toward allowing parents to track their children's academic progress and ensuring that certain students — particularly minorities and the economically disadvantaged — would not fall between the cracks.
Education Department officials reported receiving about 1,900 comments on the draft regulations since May, most in organized letter campaigns by parents opposed to the tests, school board members and teachers, with the focus largely on rules related to student test participation.
"The Regents and I greatly appreciate the thoughtful feedback we received from the public and the education community on the state's ESSA plan," Regents Chancellor Betty Rosa said Friday in a prepared statement. "These proposed changes are an important step toward full implementation of ESSA in New York, but the work doesn't stop there. We will continue to seek feedback and refine the plan to best meet the needs of all students."
A sign is posted on a classroom door at Holbrook Road Elementary School in the Middle Country district during the administration of the state English Language Arts test during the week of April 9. Credit: Newsday / John Paraskevas
In June, the board voted for temporary adoption of the tighter regulations under emergency procedures designed to have the rules in place by the start of the 2018-19 school year. However, the board's initial decision was not unanimous — 14 members in favor, three abstaining — and a final vote is needed to make the regulations permanent.
Test participation remains a huge sticking point. The opt-out movement, with beginnings on Long Island in the 2012-13 school year, exploded statewide with the test season of spring 2015 and has remained particularly strong since in the two-county region, some Buffalo suburbs and portions of suburban counties in the Hudson Valley.
On the Island, more than 90,000 students in grades three through eight refused to take the state ELA exam in April, representing nearly 50 percent of those eligible, according to Newsday's surveys of the Island's districts at the time. More than 70,000 boycotted the math test in May. Participation on the math test always is lower than the ELA, because advanced middle-school students often instead take Regents exams in geometry and algebra set at a higher level.
Across New York, the number of students not taking the state tests has hovered at about 200,000 of 1 million eligible pupils in each of the last three years.
In the spring, reports from other areas of New York indicated that boycotts had lessened somewhat. In 2017, the percentage of students who boycotted the exams statewide was about 19 percent and the year before it was 21 percent, according to the Education Department. The agency releases percentages of refusals by district; it does not provide raw numbers.
Ian Rosenblum, executive director of the Education Trust-New York, a nonprofit research and advocacy group, praised state school officials for their commitment to an "inclusive and collaborative public process" in revising regulations, while adding that test participation by disadvantaged students remains an issue.
"Once again, the state Education Department appears to have worked hard to strike a reasonable balance on a difficult issue," Rosenblum said. "As we evaluate the new language, we will remain focused on ensuring that there are protections in place to prevent schools from systematically excluding historically under-served groups of students from state assessments."
The recent test boycotts have been a largely middle-class movement, led by parents and teachers who contend that state tests tied to teacher job evaluations put too much pressure on students and faculty alike. The state has temporarily suspended use of student test scores in rating teachers, but the moratorium is due to expire in June, at the end of this school year.
State officials had said the proposed Title I set-aside rule and other provisions originally were drafted in response to directives from Washington that New York needed to deal with its unusually high opt-out rates. A representative for the U.S. Education Department confirmed that in June; the federal agency did not respond Friday to Newsday's request for comment on the latest rule revisions.
New York State receives about $1.6 billion a year in school aid under the ESSA law. Most money distributed under the law's Title I section is used for providing extra academic help to students struggling with their lessons.
"I'm glad the Board of Regents came to their senses and took pre-emptive action to halt Elia's plans to target Title I students," said Jeanette Deutermann, a mother of two students in the North Bellmore district and founder of a parent network, Long Island Opt Out. "Title I money is meant to support students in poverty. If the state Education Department wants to market their faulty assessments, they should find their own funding source rather than taking it from students in need."
Roger Tilles of Great Neck, who represents Nassau and Suffolk counties on the Regents panel, joined other key education officials across the state in welcoming the Education Department's latest regulation changes.
"There's no certainty yet, until we act on it Monday," Tilles said. "But I think the state Education Department is responding to the sentiments that I and my colleagues have expressed at recent meetings — that we did not want to see any negative effect on a district, just because parents exercised their right to opt children out of tests."
Another rule still in effect would establish a complex system of academic indexes for schools, drawing on students' scores in English Language Arts, math and science. The number of students in each school with valid test scores would be factored into the calculations along with 95 percent of total students enrolled — a system that would automatically produce lower rankings for schools where large numbers of students are not tested.
On Friday, state education officials said the system would be modified by a rules change relieving schools of the need to develop plans to boost test participation, unless their overall Weighted Average Achievement Index fell below the state average. Officials added that they could not estimate the number of schools affected by the revision.
Still, such rankings will have an impact later this year, when the state is scheduled to post the names of the lowest-achieving schools in the state. These will be designated CSI schools — the letters stand for Comprehensive Support and Improvement — and the list will include at least 5 percent of all elementary, middle and high schools across the state.
Under this system, CSI schools will face an increasingly drastic range of penalties if they do not improve their performance.
State education officials said schools would be rated according to multiple measures, not just test participation rates, and that schools with generally solid achievement should not feel threatened. Other measures will include students' academic growth, English language proficiency and class attendance.
"The department remains confident that schools that are high-performing but also have high opt-out rates will not be identified for Comprehensive Support and Improvement," said one agency official who was speaking on background.
Representatives of statewide school groups generally praised the department's Friday announcement.
"Parents and educators spoke passionately and the Regents listened," said Jolene DiBrango, executive vice president of New York State United Teachers, or NYSUT, a statewide union umbrella group. "As a result of today's actions, schools with high opt-out rates will be treated more fairly — a victory for the hundreds of NYSUT members who opposed the draft regulations and defended parents' right to opt their children out without penalty or pressure."
NYSUT representatives added that they believed the ability of state policymakers to further relax test regulations was limited by what they termed a misinterpretation of ESSA law by federal authorities.
Kyle Belokopitsky, executive director of the New York State PTA, said she too was "very pleased" by the Education Department's suggested amendments.
"The right of parents to make educational decisions for their children continues to remain a PTA priority," Belokopitsky said.
John Hildebrand is Newsday's senior education writer and has covered school news and policy issues affecting Long Island for more than 40 years.
