Standardized testing and the opt-out movement

July 19, 2015

optoutThe Mitten Memo. A blog by Nick Krieger.

When I was in school, we were required to take the Michigan Education Assessment Program (MEAP) test every two or three years.  The testing usually lasted a few days.  No one liked it, but we all got through it.  In the last 20 years, however, the amount of standardized testing in Michigan schools has grown rapidly.  No longer are there simply a few days of testing each spring.  Between the new Michigan Student Test of Educational Progress (M-STEP) and other standardized examinations that are given at various grade levels, the number of days spent on student testing has skyrocketed.

Standardized testing is quietly destroying education in America.  Students are complaining about stress and anxiety at younger and younger ages.  Teachers no longer have time to interact with children one-on-one or give individualized attention to struggling pupils.  The academic year has been effectively shortened, forfeiting weeks that were once dedicated to academics and learning to the administration of exams.  And elective classes have given way to courses designed for one purpose — teaching to the test.

Have you ever thought about keeping your kids home from school during their school’s standardized-testing period?  Some parents have begun to do just that, and the so-called “opt-out” movement is gaining steam all across the country.

At the same time, school officials are pushing back.  About a month ago, Michigan Department of Education spokesperson Martin Ackley told Michigan Radio that “[t]here is no mechanism for students to ‘opt out’ of the state assessments.”  More recently, the Ann Arbor Public Schools Board of Education has begun to consider a policy that would prescribe penalties for students whose parents decide to opt out of standardized testing.

Why do we have so much standardized testing, anyway?  There is one dominant reason—the federal government’s immensely expanded involvement in K-12 education.  Under the No Child Left Behind Act of 2001 and the so-called Race to the Top program announced by the U.S. Department of Education in 2009, federal officials have implemented a series of “incentives” for K-12 schools, based primarily on student test performance and the goal of annual improvement on standardized exams.  In turn, the content of standardized tests is tied to the Common Core educational standards, which the individual states are strongly encouraged to adopt under the federal guidelines.  No Child Left Behind and Race to the Top — both federal programs — now operate in tandem and effectively require the states to adopt more and more standardized assessment tools.  They also force the states to disproportionately rely on student test scores to make education-policy decisions that were once considered local in character.

Ackley was partially right when he told Michigan Radio that there is “no mechanism for students to ‘opt out’” in Michigan.  After all, there is no state statute or administrative rule that explicitly allows parents to refuse to subject their children to standardized testing.  And there is certainly no “opt-out” provision in the No Child Left Behind Act.

But it hardly needs to be said that the words of a Michigan Department of Education official are not legally binding.  In truth, Michigan parents wishing to opt out appear to have the law on their side.

In the United States, parents have a fundamental liberty interest, protected by the substantive component of the Due Process Clause of the Fourteenth Amendment, in directing and supervising the education, instruction, and upbringing of their children.

It is this fundamental liberty interest, for example, that guarantees parents the right to home-school their children, send their children to private schools, and keep their children from participating in certain school activities that they deem objectionable.  Courts have routinely recognized that parents have a fundamental right to make their own choices regarding their children’s education, even against the backdrop of seemingly contrary state or federal laws.  The parental decision to opt out of standardized testing is almost certainly protected by the United States Constitution for this very reason.

Furthermore, because Michigan has no real ability to enforce its school attendance laws, there is an enormous, perverse loophole for parents who decide to keep their children home from school during the standardized-testing period. 

Michigan statute provides that all children between the ages of 6 and 18 shall attend school on a continuous basis for the entire academic year.  However, this compulsory-attendance requirement does not apply to children who are home-schooled.  As a Michigan Department of Education bulletin makes clear, “It is not required that a parent inform their [sic] local school of the decision to home school, however, it is suggested.”  In fact, there are essentially no requirements for parents who home-school their children in Michigan.  There are no curricular requirements that must be followed by such parents.   And even more importantly, home-schooled children in Michigan are not required to participate in any standardized testing.

What does it all mean?  Parents who object to standardized testing can inform their children’s school that they are opting out of the state assessments.  Any parents who are confronted or chastised by local school officials for attempting to opt out in this manner can simply remove their children from the public school altogether and begin home-schooling them at a moment’s notice.  Then, as soon as the period of standardized testing is completed, the parents can re-enroll their children in the same public school if they so choose.

This perverse loophole in Michigan law provides a fallback tactic of last resort for any parent who wishes to opt out.  And as the law stands today, there is nothing the state can do about it.

Make no mistake:  I am an outspoken advocate of public education.  I strongly believe that children do best when they are in a classroom with a trained, certified teacher.  In my opinion, the intangible benefits alone are reason enough to support public schools. 

But America’s out-of-control fascination with standardized testing is undermining the idea of public education.  Not surprisingly, studies show that children dread going to school now more than ever.  The intense focus on standardized testing is creating a generation of nervous, stressed-out kids.  As programs like art, music, and shop are cut to make way for more test-driven instruction, children derive less and less enjoyment from the school environment.  Moreover, the extreme focus on testing is robbing our teachers of their freedom to explain, improvise, elucidate, reiterate, challenge, answer questions, offer new ideas, provide extra support, and take extra time.  How sad.

All children learn differently and have unique educational needs.  As the United States Supreme Court observed 90 years ago in Pierce v. Society of Sisters, the government has no general power to “standardize its children.”  Yet this is exactly what federal and state officials are attempting to accomplish through their obsession with standardized testing, teaching to the test, and Common Core. 

When our education system loses sight of its fundamental purpose, parents have the right to rise up.  By opting out of standardized tests, parents put pressure on school officials and help build awareness of the problems associated with these faulty assessment tools.  In time, perhaps our government will realize the error of its ways and let schools and teachers get back to what they used to do best—preparing each individual child to succeed in the world in his or her own way.

Nick Krieger is a graduate of Ludington High School, earned a bachelor’s degree from Michigan State University, and holds a law degree and master’s degree from Wayne State University Law School.  Nick works as an attorney for the Michigan Court of Appeals and owns a home in Ludington. The viewpoints expressed in The Mitten Memo are Nick’s own, and do not reflect the views of the Michigan Court of Appeals or Media Group 31, LLC and its affiliates: Mason County Press, Manistee County Press and Oceana County Press.  Contact Nick via e-mail or follow him on Twitter at @nckrieger.

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