Legal Corner (June 2019): A New Twist on Testing Opt-Outs: A Legal Analysis of the Right to Opt Out of District Tests

By Megan Welsh posted 06-28-2019 20:45


Michelle Croft, ACT

In 2015, news articles around the country detailed parents opting their student out of statewide summative tests. Opt outs were prevalent in states such as Colorado, New York, and Oregon, to the point where USED issued a letter to states regarding their participation rates. In the last few years, reports of summative assessment opt outs has somewhat diminished. However, a few months ago, I was asked an interesting twist on the opt-out question. Instead of focusing on opting a student out of a state summative assessment, the question was related to the ability of a parent to out their child out of a district assessment.


Districts generally have the ability to administer assessments beyond what is required by the state. States adopt academic content standards and state assessments, but districts are provided flexibility in how they implement the standards through their curriculum and instruction, as well as flexibility to administer additional assessments that are not required by the state. For instance, the Council of the Great City Schools reported that in urban districts students took, on average, eight assessments a year. Typically the assessments are used for formative purposes—to better drive instruction. However, some parents have objected to the use certain district assessments.


Determining whether or not a parent can opt their student out of a district assessment is a separate legal analysis than for a statewide assessment. Some states have adopted laws that pertain to statewide assessments (in some cases both summative assessments and state-required interim assessments), but these laws do not necessarily extend to assessments that are not funded through the states.


First, one must determine whether or not the state has an opt-out law and then if it extends to district assessments. In some cases it will be clear that the opt-out law does not extend to district assessments. For instance, Oregon’s law is specific that the excusal is from the statewide summative assessment (O.R.S. § 329.479). In other state laws, the law may be too vague to definitively determine whether it extends to district assessments. For example, California’s Education Code § 60608 states that “each district shall . . . conduct a testing program pursuant to this chapter and may also administer other tests.” The same chapter in § 60615 states “Notwithstanding any other provision of law, a parent’s or guardian’s written request to school officials to excuse his or her child from any or all parts of the assessments administered pursuant to this chapter shall be granted.” The language is unclear whether a district administering “other tests” would also be required to grant an opt-out request. The clause in § 60608 “and may also administer other tests” is separate from the requirement to conduct a testing program. It could be reasonably argued that the “other tests” are not administered pursuant to the chapter but are administered at the district’s discretion. The strength of the argument could be also be informed by the purpose and design of the district assessment. For instance, if the district assessment closely resembles and is predictive of the state summative test, it would strengthen the argument that parents could be able to opt out under the state law.


In addition to assessment laws, the state’s laws related to curriculum may be applicable. For districts using assessments for formative/instructional purposes, one could argue that it fits within the district’s curriculum. States vary to the extent that they allow parents to opt out of curricular activities.


In addition to examining state law, local laws also could impact the decision. If there are not state laws related to opt out of curriculum and assessments, districts can set their own policies of whether or not to permit opt outs.


Overall, determining whether or not a student can opt out of district assessments is a complicated mix of state and local law. The issue of district opt-out, however, brings to light the need for districts to conduct audits to ensure that all assessments are necessary as well as ensure they are adequately communicating the value and role of assessments they are administering to all stakeholders, including parents.