NY Commissioner Elia: The Time for Charm is Over; Let’s Start the Empty Threats

When MaryEllen Elia took over as Commissioner of Education in New York, she began by traveling the state to speak with various constituents about the direction of education in the Empire State.  This was no doubt in response to former Commissioner Dr. John King Jr.’s decided inability to listen to and to engage with stakeholders in public education, and Commissioner Elia should be granted kudos for being willing to step outside of her office in the current climate.  According to Principal Carol Burris, who attended the meeting between Commissioner Elia and New York State Allies for Public Education, MaryEllen Elia was cordial and generous with her time.  However, as was obvious from her resume in Florida, it is plain that New York’s new Commissioner is a true believe in the Holy Trinity of education reform: Common Core standards, high stakes standardized testing, and punishing schools and teachers whose students do not measure up on those examinations.  It is clear that the “listening tour” was more about changing the style than the substance of the New York State Education Department.  Ms. Burris, who recently took an early retirement to dedicate herself to defending public education, noted:

Back in the 1960s, Marshall McLuhan coined the phrase, “the medium is the message.” McLuhan argued that the medium that delivers any message is of equal, if not greater, importance than its content.   Clearly the Board of Regents believes that by pivoting from the stiff and professorial King to the attentive and engaging Elia, parents and teachers will come to their senses and begin to like the Common Core and its tests.

So while I will give Commissioner Elia some marks for actually speaking with stakeholders and for accepting opportunities to speak with opponents of her favorite education reforms, there is no reason to think she will change anything of substance.

And now the charm offensive is over.  It is time to start in with the threats.

In a conference call with reporters, Commissioner Elia reported that the NYSED is discussing with the US Department of Education potential consequences for schools with high numbers of students who refuse the state standardized examinations.  The Politico New York story was followed by a story in The New York Times which states:

Officials at the federal Education Department have awhile to decide what to do. The state will not officially report its test participation rate to the federal government until mid-December, and the number will not be considered final until sometime after that, the State Education Department said on Thursday.

On Wednesday, the federal Education Department’s spokeswoman, Dorie Nolt, said the agency was looking to the leadership of New York’s Education Department “to take the appropriate steps on behalf of all kids in the state.”

New York led the country in students refusing to take the state standardized exams with roughly 20% of students between grades 3 and 8 and in 11th grade refusing.  These numbers are not, however, evenly distributed with large numbers of the 200,000 students not sitting for the exams in Nassau and Suffolk counties on Long Island. However, as reported in the Times there were also high needs districts dependent upon Title 1 funds for students in poverty who had large opt out numbers.  Commissioner Elia told the Times that federal officials had asked her what “plan” she has for “dealing” with districts that have high numbers of opt outs.

So will this be how Opt Out ends?  With the federal DOE and NYSED joining together to punish districts who do not meet federal testing numbers until everybody agrees to play along?

In order to understand whether these threats have any teeth, one has to understand why they would be made in the first place.  There are several interconnected issues.

95% of all students in all subgroups must be tested annually.  Under the 2001 re-authorization of the Elementary and Secondary Education Act known as No Child Left Behind, every school in the country must test every student in mathematics and English every year between grades 3 and 8 and once in high school.  There are no exceptions allowed to this.  Based upon this requirement, there are a number of schools and districts where test refusal has dropped the percentage of tested students well below this threshold.  However –

NCLB testing requirements were meant for schools, districts, and states, not for parents and students.  When Congress passed NCLB on a bipartisan vote, their intention could not have been clearer.  They were concerned about historic evidence of communities and states quietly shunting certain populations of students outside of accountability measures and subsequently ignoring their educational needs.  This same argument has featured prominently in recent debates over renewal of NCLB and the fate of annual testing.  Regardless of what anyone thinks about the merits of annual testing of all students versus gradespan testing of samples of students, the intent of the legislation was to make certain that schools and states could not duck out of accountability for all of the students enrolled in public school.

In fact, the federal DOE made that same point to New York when it rejected some provisions of the state’s renewal application for waivers from various NCLB provisions.  The state requested that English language learners who have been in the country for less than two years be exempted from the state English examination, but the Federal DOE cited that the state has only a limited exemption capability and then referenced that the state is required to create a “single, statewide, accountability system” and that this “requirement is necessary to ensure that schools are held accountable for the academic achievement of all students…”  The state is extremely limited in its ability to exempt students from the examinations, and the schools are supposed to be accountable for their students’ learning.  To that end, New York State has contracted and administered a system of annual statewide testing, albeit a controversial one, and schools administer those tests.

However, nothing in the statutes can make a school force students to take a specific standardized exam, and there is no mechanism for punishing a student for not participating in an exam that makes up none of that student’s grade.  Schools across the state have implored parents to not opt their children out, they have put out contradictory information about what consequences might befall a school that falls below 95% of children tested, and they administered the exams to every child whose parents did not refuse them.  However, there is no statutory authority that allows a school or school district to compel taking the exam, and it is contrary to the intent of NCLB to hold them accountable for actions beyond their control.

Consider another federal education law: the Individuals with Disabilities in Education Act.  Under that law, schools and school districts must provide all students with a “free and appropriate public education” in the “least restrictive environment,” and schools are required to be proactive about students who are potentially disabled, conducting “child find” before the student falls behind academically.  School districts are sued routinely for failing to live up the provisions of IDEA, but if parents decline to participate in the evaluation process for special education services, the school is not held accountable for failing to evaluate and has only limited means to proceed without parents. In the case of IDEA, this is made explicit in the regulations.

NCLB does not address parental consent for or against annual standardized testing, but that is because the legislation is meant to hold schools, districts, and states accountable – not parents.  So long as all districts and schools are doing their best to ensure that as many students are tested as is possible, they are clearly fulfilling their obligations under the law.

About those waivers from the Federal DOE: While the Federal DOE did not grant all of New York’s waiver requests, the state is operating under a broad waiver from many of the more punishing provisions of NCLB.  This waiver specifically allows the state to identify schools that fail to make Annual Yearly Progress on standardized exams as Priority and Focus Schools instead of as schools for restructuring. 20% of Title I funds under the waiver no longer need to be spent on supplemental services and/or transportation for school choice options, and are replaced with funding for specific state programs and increased parental involvement.

Test refusal in large numbers in districts receiving Title I funds will complicate the state’s ability to identify reward schools, priority schools, and focus schools, but that is a matter between Albany and Washington, D.C. rather than between either capitol and individual schools.  Given that school districts have gone as far as to use the arguably abusive “sit and stare” policy to try to coerce test participation, there is no argument that either Albany nor Washington can make that holds entire schools responsible for the actions of a portion, plurality, or majority of their parents, so what argument is there to withdraw Title I money from specific schools when the entire state operates under waivers?

In a decade and a half has ANY school ever lost Title I funds for missing testing numbers? In a word, no.  Fairtest is a nonprofit that monitors testing across the country and advocates for changes to our standardized testing environment, and they are unaware of a single school, anywhere, that has ever lost Title I funds for missing the 95% testing requirement.  The scale of the Opt Out movement in New York may be a new phenomenon, but that does not suddenly grant Washington and Albany the power to do something they’ve never done before.

So what if Commissioner Elia and the US DOE find some way to claim statutory authority?  What then?  What then would be a political firestorm of epic proportions.  Apart from obvious lawsuits, imagine the situation. NYSED or the federal government threaten sanctions for failing to test 95% of students, but their only real option is to withhold Title I funds which are allocated to schools with significant percentages of students in poverty.  So that would leave a community like, say, Rockville Center on Long Island, which had a 62% opt out rate this Spring, essentially untouched. Why?  Rockville Center’s population’s is much wealthier than the state average, and its single middle school only has 10% of students qualifying for free and reduced price lunch.

Compare that to the Earth School in Manhattan.  According to this statement from the Movement of Rank and File Educators, 100 students at the ethnically diverse elementary school refused this year’s tests.  Earth School is 44% African American and Hispanic and 43% of its students qualify for free or reduced price lunch.  Or how about Dolgeville Middle School upstate where 64% of its students qualify for free or reduced price lunch and whose district had an 89% opt out rate?

Does anyone actually think that Albany or Washington could withstand the fury they would unleash by withholding federal money meant to aid schools with high percentages of student in poverty – inflicting great harm on students who are among the urban and rural poor – while leaving affluent suburban schools mostly unscathed?  The situation would be patently discriminatory on its face, and it could never stand either in the court of public opinion or in state and federal court.

NY Commissioner Elia and Secretary of Education Arne Duncan may be threatening to pull out a gun against Opt Out, but the first rule is never pull a gun you are not prepared to fire.  In this case, it would help to make sure the gun is loaded and is not, in fact, a banana.