TESTING, OPT-OUT AND
ACCOMMODATION REQUESTS IN
PUBLIC SCHOOLS
Sponsor: Education Law Section
CLE Credit: 1.0
Thursday, May 12, 2016
3:45 p.m. - 4:45 p.m.
Rooms 207-211
Kentucky International Convention Center
Louisville, Kentucky
A NOTE CONCERNING THE PROGRAM MATERIALS
The materials included in this Kentucky Bar Association Continuing Legal
Education handbook are intended to provide current and accurate information
about the subject matter covered. No representation or warranty is made
concerning the application of the legal or other principles discussed by the
instructors to any specific fact situation, nor is any prediction made concerning
how any particular judge or jury will interpret or apply such principles. The proper
interpretation or application of the principles discussed is a matter for the
considered judgment of the individual legal practitioner. The faculty and staff of
this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys
using these materials, or information otherwise conveyed during the program, in
dealing with a specific legal matter have a duty to research original and current
sources of authority.
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Kentucky Bar Association
TABLE OF CONTENTS
The Presenters ...................................................................................................... i
Testing, Opt-Out and Accommodation Requests in
Public Schools ...................................................................................................... 1
March 2015 KDE Message to All Districts ............................................................ 9
THE PRESENTERS
Todd G. Allen
Kentucky Department of Education
Office of Guiding Support Services
500 Mero Street
Frankfort, Kentucky 40601
(502) 564-4474
[email protected]
TODD G. ALLEN is an Assistant General Counsel for the Kentucky Department
of Education. He joined the Department's Office of Guiding Support Service in
2014. Prior to joining the Department, Mr. Allen worked for four years as an
associate attorney in the Lexington office of Landrum & Shouse, LLP where he
practiced civil litigation, including defense of school districts, officials and staff.
Mr. Allen received his B.S. from the University of Kentucky and his J.D. from the
University of Kentucky College of Law.
Kevin C. Brown
Kentucky Department of Education
500 Mero Street CPT – 131
Frankfort, Kentucky 40601
(502) 564-4474
[email protected]
KEVIN C. BROWN serves as Associate Commissioner and General Counsel for
the Kentucky Department of Education. He previously served as Assistant
Attorney General in the Office of the Kentucky Attorney General. Mr. Brown
received his B.A. from Transylvania University and his J.D. from the University of
Kentucky College of Law. He is a member of the National Association of State
Boards of Education and the National Conference of State Education Attorneys.
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Elizabeth A. Deener
Landrum & Shouse, LLP
106 West Vine Street, Suite 800
Lexington, Kentucky 40507
(859) 255-2424
[email protected]
ELIZABETH A. DEENER is a partner in the Lexington office of Landrum &
Shouse, LLP and practices in the areas of intellectual property, education law,
government liability, product liability, insurance defense and railroad law. She
received her B.S. from the Georgia Institute of Technology and her J.D. from the
University of Kentucky College of Law. Ms. Deener is admitted to practice before
the United States District Court for the Eastern and Western Districts of
Kentucky, the United States Court of Appeals for the Fourth and Sixth Circuits,
and the United States District Court for the Southern District of Indiana. She is a
member of the Fayette County and Kentucky Bar Associations, Kentucky
Counsel of School Board Attorneys, National School Board Association, Defense
Research Institute, American Intellectual Property Law Association, and a former
member of the American Institute of Chemical Engineers.
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TESTING, OPT-OUT AND ACCOMMODATION REQUESTS IN
PUBLIC SCHOOLS
Todd G. Allen
I.
A HISTORY OF STATEWIDE TESTING IN KENTUCKY
In 1989, the Kentucky Supreme Court held that the Kentucky public school
system was "constitutionally deficient," citing underfunding and lack of
opportunity in many districts:
The overall effect of appellants' evidence is a virtual
concession that Kentucky's system of common schools is
underfunded and inadequate; is fraught with inequalities and
inequities throughout the 177 local school districts; is ranked
nationally in the lower 20-25 percent in virtually every
category that is used to evaluate educational performance;
and is not uniform among the districts in educational
opportunities. When one considers the evidence presented
by the appellants, there is little or no evidence to even begin
to negate that of the appellees. 1
Kentucky's Constitution mandates "an efficient system of common schools
throughout the state." 2 However, the Kentucky Supreme Court held that
the General Assembly failed to comply with this mandate, instead offering
Kentucky students a broken, underfunded system where 80 percent of
school districts failed to offer necessary opportunities. 3
The Kentucky Supreme Court held that "the essential, and minimal,
characteristics of an 'efficient' system of common schools, may be
summarized as follows:
1)
The establishment, maintenance and funding of common schools in
Kentucky is the sole responsibility of the General Assembly.
2)
Common schools shall be free to all.
3)
Common schools shall be available to all Kentucky children.
1
Rose v. Council for Better Educ., Inc., 790 S.W.2d 186 (Ky. 1989).
2
Ky. Const. §183.
3
See Rose v. Council for Better Educ., Inc..
1
4)
Common schools shall be substantially uniform throughout the
state.
5)
Common schools shall provide equal educational opportunities to
all Kentucky children, regardless of place of residence or economic
circumstances.
6)
Common schools shall be monitored by the General Assembly to
assure that they are operated with no waste, no duplication, no
mismanagement, and with no political influence.
7)
The premise for the existence of common schools is that all
children in Kentucky have a constitutional right to an adequate
education.
8)
The General Assembly shall provide funding which is sufficient to
provide each child in Kentucky an adequate education.
9)
An adequate education is one which has as its goal the
development of the seven capacities recited previously."
The General Assembly responded with the Kentucky Education Reform
Act (KERA) in 1990. KERA was arguably Kentucky's most sweeping
education legislation. The legislation established a new funding model for
public education, set forth specific academic expectations, and
established a system of assessment and accountability.
In 2009, the Kentucky General Assembly revisited curriculum standards,
assessment and accountability. Senate Bill 1 (2009) was a bipartisan
effort which passed both houses unanimously. The legislation mandated
revision of Kentucky's academic content standards in reading, language
arts, mathematics, science, social studies, arts and humanities, and
practical living skills and career studies. 4 The legislation specifically
provided that Kentucky must consider standards adopted by national
content advisory groups and professional education consortia. Specific
components for statewide assessment were added with SB 1.
Specifically, the assessment system is required to measure the
achievement of students, schools and districts while complying with
federal education legislation.
At the same time, the National Governors' Association and the Council of
Chief State School Officers developed common standards in math and
language arts. In February 2010, Kentucky became the first state to
adopt, implement, teach and test the standards established by the
4
See KRS 158.6453.
2
National Governors' Association and the Council of Chief State School
Officers.
II.
AN ATTACK ON COMMON CORE
The standards developed by the National Governors' Association and the
Council for Chief State School Officers became known as "common core"
standards. In 2009, the federal executive branch of government
announced that federal funding may be available to states adopting the
common core standards. Politicians and interest groups criticized the
requirement that common core standards be adopted in order to receive
certain federal funding. So began a national campaign against common
core standards. The campaign morphed into an attack on standardized
testing.
III.
THE OPT-OUT MOVEMENT
National pundits urge parents to resist common core standards, No Child
Left Behind and standardized testing. Critics argue that standardized
testing is designed for the benefit of non-educators and non-students, that
is, private testing companies. Pundits provide form "opt out" letters to
send to school administrators.
A.
Sample Opt Out Letter from Assessment Critics
Dear [SCHOOL ADMINISTRATOR]:
I am writing on behalf of [STUDENT] to opt him/her out of the
[TEST NAME]. He/she is neither permitted to take the exam during
mandated testing days nor during designated make-up sessions.
Additionally, I am requesting that the school make accommodations
for meaningful alternative activities or assignments that will
continue to promote his/her academic and intellectual growth. My
child will not be in attendance if academically viable alternatives are
not available. Furthermore, I must be guaranteed in writing that
whatever option is taken, either alternative assignments or
absence, my child will not face any negative consequences to, for
example, course grades, social or behavioral evaluations,
workload, promotion, or future classroom assignments.
Strict adherence to state and federal high-stakes standardized
testing, including the extensive classroom preparation that occurs
prior to test administration, prevents my child from receiving a wellrounded and engaging educational experience. Until focus on
testable skills diminishes to a reasonable extent, I will continue to
withhold my child from participation in the testing program, and I
ask that you honor that decision.
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I do apologize in advance for the inconvenience or scrutiny that this
decision may cause the administration, the school, and staff.
Sincerely,
[PARENT]
B.
Sample Arguments Offered by Assessment Critics
According to the U.S Constitution, specifically the Fourteenth
Amendment, parental rights are broadly protected by Supreme
Court decisions (Meyer and Pierce), especially in the area of
education. The Supreme Court has repeatedly held that parents
possess the "fundamental right" to "direct the upbringing and
education of their children." Furthermore, the Court declared that
"the child is not the mere creature of the State: those who nurture
him and direct his destiny have the right coupled with the high duty
to recognize and prepare him for additional obligations." Pierce v.
Society of the Sisters of the Holy Names of Jesus and Mary, 268
U.S. 510, 534-35 (1925). The Supreme Court criticized a state
legislature for trying to interfere "with the power of parents to control
the education of their own." Meyer v. Nebraska, 262 U.S. 390, 402
(1923). In Meyer, the Supreme Court held that the right of parents
to raise their children free from unreasonable state interferences is
one of the unwritten "liberties" protected by the Due Process
Clause of the Fourteenth Amendment. Id. at 399.
C.
Meyer v. Nebraska, 262 U.S. 390 (1923)
A private school teacher used German to teach a reading class.
This violated a Nebraska statute requiring English for classroom
instruction. The private school teacher was criminally convicted for
violating the law. The teacher presented a Fourteenth Amendment
Due Process argument. The Supreme Court agreed with the
teacher: The teacher's "right thus to teach and the right of parents
to engage him so to instruct their children, we think, are within the
liberty of the Fourteenth Amendment."
It is important to note that this case involved the right of private
school teachers to determine the language in which instruction
would be delivered. The court did not decide issues of state
assessments.
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D.
Pierce v. Society of the Sisters of the Holy Names of Jesus and
Mary, 268 U.S. 510, 534-35 (1925)
An Oregon statute required compulsory attendance at a public
school. The Society of Sisters operated a private school and would
be forced to close its doors if all children were required to attend
public schools. The Society of Sisters filed suit challenging the
statute. The court held that the statute "unreasonably interfered
with the liberty of parents and guardians to direct the upbringing
and education of children under their control." However, the court
specifically noted that "no question is raised concerning the power
of the state reasonably to regulate all schools, to inspect, supervise
and examine them, their teachers and pupils…"
Again, the Court addresses the right of parents to choose private
schooling for their child. The opinion specifically indicates it does
NOT address the ability of the state to test students and schools.
E.
Data Security Arguments
Some parents may request to opt-out citing data privacy and
security concerns. The Kentucky Department of Education
addresses this concern in numerous ways. First, every contract
with a testing vendor provides that the vendor:
1.
Does NOT own student data;
2.
Does NOT have the right to use student data other than
specifically provided in the contract; and
3.
Does NOT have the ability to share or sell student data,
including with/to affiliates.
The Kentucky Department of Education stores all data on secure
servers with limited access by personnel. Data is encrypted and
securely transmitted from vendors to KDE and from KDE to
districts.
Finally, FERPA does not prohibit the transmission of testing data
between vendors, KDE and school districts.
F.
Triplett v. Livingston County Bd. of Educ., 967 S.W.2d 25 (Ky. App.
1997)
KERA required that an interim assessment test be given to
students in grades four, eight and twelve by the 1991-1992 school
year and that the permanent assessment program be implemented
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no later than the 1995-1996 school year. The Kentucky Board of
Education created the Kentucky Instructional Results Information
System ("KIRIS") assessment exam which assessed student skills
in reading, mathematics, writing, science and social studies.
Prior to the KIRIS assessment tests being administered in the
spring of 1994, the parents of a high school senior and an eighthgrader informed the Livingston County School System that they did
not want their children to take the KIRIS assessment test. When the
1993-1994 school year commenced, the Livingston County schools
had no policy requiring students to take the KIRIS tests. Thus, at
first, the Tripletts were told by the school that their children would
not be required to take the KIRIS test. Subsequently, however, the
KBE informed the Livingston County school system that it would
hold all schools accountable for the performance of all students
and, in the absence of KIRIS assessment information about the
performance of a child, the school would be assigned a novice level
performance for that child. Consequently, on February 14, 1994,
the Livingston County Board of Education passed the following
policy:
Students shall complete all parts of KIRIS
assessment before advancing to the next grade or
graduating, including math and writing portfolios.
Based primarily on religious objections to the tests, the parents
refused to let the children take the KIRIS assessment test in 1994.
As a result, the Livingston County School Board refused to allow
the older student to graduate and the younger student was retained
in the eighth grade. The parents filed suit alleging, among other
things, violation of privacy, infringement of their exercise of religion,
interference with their parental rights, denial of their due process
rights and their rights under certain federal laws. The Livingston
Circuit Court granted summary judgment in favor of the school
district and parents appealed.
The court held that nothing in the KIRIS exam compelled a student
to reveal any type of information listed or described in the
Protection of Pupil Rights Amendment (PPRA).
The court did not find that the exam advanced or inhibited religion,
or that it fostered any government entanglement with religion. The
court applied a strict scrutiny standard since the parents claimed
their parental rights were violated. The court commented:
It appears that there is no higher priority in Kentucky
at the present time than education. Therefore, the
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state's interest in the improvement of our educational
system through the use of an assessment program
such as the KIRIS exam is sufficiently compelling to
require all students to take the KIRIS exam. We do
not see how an assessment process can measure
performance in terms of educational equality and
progress unless all students are required to take the
exam.
Finally, the court rejected the plaintiffs' argument that the exam
must be open for public inspection. The court noted that the
Kentucky Open Records Act includes an exception for test
questions, scoring keys and other examination data. As for the
parents' argument that they are entitled to inspect the test pursuant
to the PPRA, the court held, "we do not believe that an assessment
exam such as the KIRIS exam falls within [the PPRA's] purview.
Although the KIRIS exam is a requirement for promotion and
graduation, it is not a part of the student's regular curriculum and
has no instructional purpose."
G.
Approved Nonparticipation
Medical Nonparticipation may excuse a student from participating in
the statewide assessment based on certain medical conditions.
However, general handicapping conditions do not warrant medical
nonparticipation. The Kentucky Department of Education may
require supporting medical documentation for medical nonparticipation requests.
Nonparticipation may also be approved based on certain
extraordinary circumstances. It is the responsibility of the school
district to request and support the need for nonparticipation based
on extraordinary circumstances.
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8
MARCH 2015 KDE MESSAGE TO ALL DISTRICTS
From the Kentucky Department of Education
Office of Guiding Support Services – General Counsel
In Kentucky, districts are not permitted to honor a parent's request to opt-out of
Common Core State Standards (CCSS) or statewide testing. There is no
authority in state or federal law allowing parents to opt-out of the Kentucky Core
Academic Standards (KCAS) or the statewide assessment system.
State Academic Standards
Senate Bill 1 (2009), which was overwhelmingly supported by a bi-partisan
majority of the Kentucky House and Senate, mandated common standards. The
Kentucky Board of Education (KBE), via state regulations that carry the force of
law (704 KAR 3:303) is charged with approving and implementing such
standards. Under its authority and, through the prescribed legal process, the
Kentucky Board of Education adopted the Common Core State Standards in
English/language arts and mathematics as well as the Next-Generation Science
Standards, collectively known as the Kentucky Core Academic Standards
(KCAS). Since the standards are included in regulation, the expectation is that
all students are provided instruction and opportunity to learn these standards in
the public schools; however, how a school/district establishes the curricula for
those standards is a local decision, per KRS 160.345(i)(10).
State Assessments
In 1997, the Kentucky Court of Appeals affirmed the Kentucky Board of
Education's authority to require all students in public schools in our state to
participate in standardized assessments. In Triplett v. Livingston County Bd. of
Educ., 967 S.W.2d 25 (Ky. App. 1997), the Kentucky Court of Appeals held that
Kentucky statute KRS 156.160, which provided the Kentucky Board of Education
(KBE) the authority to set the minimum requirements for graduation from a public
high school in our state, gave the KBE the authority to require all students of
public schools in our state to participate in standardized assessments and that
this requirement did not violate the students' rights.
Students may only be excused from statewide assessments upon completion
and approval of the Medical Nonparticipation Form or Extraordinary
Circumstances Nonparticipation Form. Both forms can be found at:
http://education.ky.gov/AA/distsupp/Pages/Forms.aspx.
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Kentucky's statewide accountability system depends on the testing of every
student. No student may opt-out of the standardized assessments conducted
under this system. The purpose of testing every student is to ensure that all
schools and districts are serving all students and that gaps in categories of
students are identified, addressed, and closed. Kentucky statute KRS 158.6453
http://www.lrc.ky.gov/statutes/statute.aspx?id=3554 and Kentucky regulation 703
KAR 5:140 http://www.lrc.ky.gov/kar/703/005/140.htm were promulgated to ensure
the system and the data produced were faithful to these goals. An accountability
model must be all-inclusive and all-reflective.
Schools will not provide alternative learning activities during the state
assessment testing times. ALL students are expected to make a good faith
effort to complete the state assessments to the best of their ability.
Students who do not participate in the statewide accountability system will
receive a "0" score which will be included in the school's accountability
calculation. The student also may be subject to discipline under school or
district policies including the code of conduct or behavior.
Data Sharing
The Kentucky Department of Education and local schools and districts in
Kentucky adhere to the Family Education Rights and Privacy Act (FERPA).
Pursuant to 34 CFR Part 99, FERPA does not prohibit transmission of testing
data from the local school to the Kentucky Department of Education. In fact, the
department has instituted policy and protocol which expressly protect against the
disclosure of student information.
Parental Rights under the 14th amendment to the United States Constitution
While the 14th Amendment gives parents the general right to direct the
upbringing and education of their children, the federal courts have not expanded
this right to include controlling every aspect of a child's public school education.
While parents do have the right to choose between public and private schools or
home schools, "they do not have a constitutional right to 'direct how a public
school teaches their child'" (Parker v. Hurley, 514 F.3d 87, 102 (1st Cir. 2008)),
or the information to which their children will be exposed.
Additional questions may be directed to:
Todd Allen
Assistant General Counsel
Office of Guiding Support Services – General Counsel
Kentucky Department of Education
[email protected]
(502) 564-4474, ext. 4833.
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NOTES
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