Waiving Parents' and States' Rights: The No Child Left Behind Replacement

HR 5 is the bill in the US House of Representatives to 'reauthorize' No Child Left Behind (NCLB/ESEA).  The vote in the House takes place this TUESDAY, FEBRUARY 24!

We've all hated NCLB for more than a decade, so anything would be better than that, right?  WRONG! 

Please contact your Member of Congress ASAP and let them know they need to VOTE NO on HR 5!  (Many will think that anything is better than NCLB, and at 600 pages, what are the odds that they have read it?  Plus the summary sounds so 'fluffy and good'. )

Here are some snippets that every single American, regardless of ideology, should oppose. 

1.) Sec. 6561: States can waive their rights (and the rights of parents) over certain aspects of education that would violate HR5, the "Student Success Act" (SSA), by approving a budget that includes these Federal Funds.

The language in this bill is so disingenuous, it makes me sad to realize that our elected representatives (or their staff) put this together.  It starts out sounding so nice--reducing federal overreach.

No officer, employee, or other authority of the Secretary shall enforce against an authority of a State, nor shall any authority of a State have any obligation to obey, any requirement imposed as a condition of receiving assistance under a grant program established under this Act, nor shall such program operate within a State, ...

Doesn't that sound nice?  We're restraining the power of the Federal government in education....UNLESS....

unless the legislature of that State shall have by law expressly approved that program and, in doing so, have waived the State's rights and authorities to act inconsistently with any requirement that might be imposed by the Secretary as a condition of receiving that assistance. [emphasis mine]
 

So, really, the state has all its rights in tact, UNLESS it decides to waive them. But, a State really shouldn't be waiving any rights to Congress.  Please see the Tenth Amendment and get back to me on this one.  (Cliff Notes: Education is NOT a power given to Congress, and so it is EXCLUSIVELY the RIGHT of the states and the people.)

And HOW does the State waive these rights? 

This approval may be accomplished by a vote to affirm a State budget that includes the use of such Federal funds...[emphasis mine] 

Translation: if the State Legislature approves a budget that includes Federal Funds granted under this Student Success Act (which will be things like Title 1 funds), then the State WAIVES its rights and authorities to do anything that goes against what the Secretary of Education requires.  (Opting out of SAGE testing? Nope.  The State just waived that right, and it wasn't theirs to grant to begin with.)

Flashback to 1776, "All men are created equal and are endowed by their Creator with certain unalienable rights..."  unless the State Legislature waives them.  I have rights, but I will give them all up in exchange for federal money. 

There's a word for this: prostitution.   And before you think that too outrageous, let's consider what prostitution really means--To put to use one's talents or abilities [or rights?] in a base or unworthy way, usually for money.  We will give up our virtue (root word: latin virtus meaning strength), our capacity to act, on behalf of our children's education in exchange for money. 

2.) By waiving the rights of the state, the legislature also waives your rights as parents.

Again, nice sounding language about our rights as parents...except for those rights that your State Legislature waived for you in their budget proposals. 

It is the intent of Congress that other than the terms and conditions expressly approved by State law under the terms of this subpart, control over public education and parental rights to control the education of their children are vested exclusively within the autonomous zone of independent authority reserved to the States and individual Americans [emphasis mine] (Sec. 6564)

So, the Tenth Amendment and the Constitution apply to all rights and privileges except those that States waive to get this Federal education money.

Cue Mr. Jefferson again: "That to secure these rights [life, liberty, pursuit of happiness...and anything else left to the states or the people via the Tenth Amendment and Natural Law], governments are instituted among Men..." unless we waive those rights for more money.

One can buy anything in this world for money, I guess, including the right to direct the upbringing of your child's education, as long as the State gets paid enough for it. 

3.) Other disturbing things contained in this bill are:

• State-appointed ombudsman to oversee PRIVATE (yes, private) schools because kids will receive Title 1 vouchers for private schools. (Sec. 1120)
• Private schools must provide secular and neutral materials for students, e.g. "Such educational services or other benefits, including materials and equipment, shall be secular, neutral, and nonideological." (Because a private, religious school shouldn't be able to use religious ideology anymore, right? Right, because they are now required to accept federal monies!)
• Educational (and other) services in private schools will be essentially equivalent to local public schools. "Educational services and other benefits for such private school children shall be equitable in comparison to services and other benefits for public school children participating under this subpart, and shall be provided in a timely manner. (So, why choose a private school anymore, if they will all be the same? 'Equitable', in what way? In their secular, neutral and non-ideological educational services? In their standards and curriculum?)
• Essentially a requirement that all states adopt the Common Core standards, not by that name, of course.  In true form, it starts by bad-mouthing the coercion to adopt CCSS that occurred during Race to the Top.  And then it goes on to say the same thing: "The purpose of this title is to provide all children the opportunity to graduate high school prepared for postsecondary education or the workforce." (Sec. 1001)  Just watch and see: If you want to get to college, you have to pass by the 'college and career' gateway, i.e. Common Core or whatever the euphemism du jour is. 
• The SSA will be effective 5 years from its adoption.  This will allow bureaucrats time to put off any legitimate concerns about what is currently going on--Common Core, testing, 100% proficiency requirements, tying teacher pay to test scores--with the statement that "we've fixed it already".  It also will allow them time to wait for any immediate opposition to die down, and when we're all boiled frogs, then they can implement whatever they want.  No one will be paying attention five years from now.

"That when any Form of Government becomes destructive of these ends [protecting the rights of the individuals], it is the Right of the People to alter or to abolish it."

Contact your Members of Congress, your state legislators, and your State Board of Education.  Let them know that any federal law that includes the waiving of your rights as a parent or the state's rights as a 'sovereign state' needs to be vigorously opposed.  Let's not sell our virtue, our power, our strength to act and oversee the education of our children....

for money. 

NCLB Waiver Funding Request to the Legislature: $30 M

Note: This letter was sent to the executive appropriations committee to request an additional $30M for the State Board of Ed should they decide to either refuse the NCLB Waiver or write their own waiver, absent the (illegal) requirements from the US Dept of Ed.


I'm in support of an additional $30 M for the State Board to make up any potential issues if they refuse the No Child Left Behind Waiver.  This year's waiver includes all the requirements from the previous years (College and Career Ready standards aka Common Core, testing, tying teacher pay to those aligned tests, and data tracking).  Additionally, it appears that they are redefining Title 1 monies to cover all students, not just low-income. 

Since the original NCLB act prohibited this kind of involvement from the Feds, the waiver, itself, violates federal law, not to mention the clear language of the Constitution.  Additionally, while NCLB allows the state to apply for waivers, it does not indicate that those waivers would require any particular requirements about testing, standards, or teacher evaluations.  The State Board is legally within its right to request a waiver from the egregious 100% proficiency of NCLB without acquiescing to additional requirements arbitrarily imposed by the US Department of Ed.  However, should they do this, it is entirely possible that the US DOE will reject their waiver.  A rejection of the waiver would mean the loss of flexibility in spending about $30 M in Title 1 funds.  It would be greatly appreciated if you were able, as an Executive Appropriations Committee, to include this request. 

This single action of appropriating $30 M for the State Board to push back against the Federal Waiver would remove the vast majority of our federally imposed requirements for testing and standards.  In short, it would return educational sovereignty to our state, in a very large degree.

If you'd like more information on the NCLB waiver, please look at my letter to the State Board from last August.  I have taken the time to look through much of the actual text of NCLB. 
http://www.wendy4asd.blogspot.com/2014/08/nclb-waiver-letter-to-state-board.html

Thanks,

Wendy Hart
Alpine School Board Member, Highland, Alpine, Cedar Hills   

Parental Rights: Letter to State Supertintendent Smith

I received a copy of this letter sent to State Superintendent Smith regarding the Feb. 2, 2015 memo from USOE and opting out.  I reprint it here with permission from the author. 

 

Superintendent Smith,

 

Thank you for your statements on parental rights and testing in last Friday’s board meeting. While the new “safe harbor” memo is being prepared, would you please rescind the Feb 2 memo? That will be very helpful in clearing up the current confusion between parents and school administrators.

 

As you know, the Feb 2 memo was deeply troubling to Utah families. The idea that parental rights exist at the pleasure of the USOE or LEAs, and comprise only rights specifically enumerated in Utah code or USOE policy, is anathema to Utah families who believe that the family is ordained of God, and is the fundamental unit of society.

 

Likewise, the Feb 2 memo was completely lacking in authority. Parents are endowed by their Creator with the unalienable right to direct the education and upbringing of their own child. The Feb 2 memo, attempting to abridge these rights, is in direct conflict with natural law, the US and Utah Constitutions, and Utah Code Section 62A-4a-201.

 

Finally, as the new memo is crafted, please consider that many parents object, not only to specific tests, but to the student data tracking that come with vendor-hosted learning systems, including the AIR “formative” and “interim” testing and learning platform. Please include, in policy, a recognition of a parent’s right to opt their child out of anything that requires a login. Technology-based learning and testing should be an option, not a requirement for enrollment in Utah schools.

 

 

Thank you,

 

Jared Carman

 

Editor and Founder

FamilyFirst Utah

 

 

P.S. I own two online learning businesses (Agilant Learning and Realtime Learning Systems), and have a personal interest in seeing online learning grow. That said, my loyalty is to my children and family FIRST.

SAGE Testing 2015: What You Need to Know

SAGE testing has begun in Alpine School District this week.  It will continue off and on through May.  The subjects being tested by SAGE are: Reading, Writing, Math, and Science.  Because of concerns about SAGE testing, we have seen legislation, directives, forms, meetings, etc.  I hope to help you make sense of it all.  The most important thing to remember throughout this is that, as noted in state law, "A student's parent or guardian is the primary person responsible for the education of the student, and the state is in a secondary and supportive role to the parent or guardian."

First, the only thing required for opting out is written notification from you, the parent.  You don't need a particular form to comply with the legal requirements for opting out.  Most districts, including Alpine, have a form and they will want you to sign it.  You are not legally required to sign it.  I would recommend that if you bring in your own letter, please do not have the principal sign something.  You just need to communicate your wishes to the school.  For the record, I have been opting my kids out of state testing since 2012.  If you want to know more about why, please go here. More information can be found on the SAGE FAQ page.

Second, teachers and schools will NOT be penalized for students who are opted out.  Last year, the law changed specifically stating "neither an LEA nor its employees are negatively impacted through school grading or employee evaluation due to a student not taking a test". Prior to the passage of this law (the bill # was SB122), the State Office of Education (USOE) was penalizing teachers, schools, and students by giving students who opted out of end-of-year testing a 1 (the lowest possible score) to be used in calculating teacher and school grades.  Parents, while always having the right to opt kids out, were concerned about the consequences to teachers and to schools.  Since the legislature passed the laws that require school and teacher grading, it was their responsibility to fix the law to make sure schools and teachers were not penalized for parental actions on this level.  The law did not grant parents the right to opt out, it merely clarified that they did have the right and that schools and teachers would not be 'negatively impacted'.  There are still many teachers who believe that they will be punished if you opt your kids out of testing.  Please make sure to let them know about the law.  The law was changed before teacher and school grades were calculated last year, so teachers have not been negatively impacted from kids opting out of SAGE testing*. 

Third, the USOE has a contract with our testing vendor.  Where in this contract does it say what the testing vendor is prohibited from doing with our children's data?  I haven't found it.

The actual contract with American Institutes for Research (AIR), our testing vendor for SAGE, is a Purchase Order that references their original bid for services.  Essentially, the contract is the bid.  You can find a copy of the bid here.   I have asked many people to indicate where in the bid we are assured that AIR will not be using behavioral questions and what prohibitions exist on them with regard to how they may use our children's data. Most responses are, "It's in the contract."  Because of parental concerns, last year, the State Board of Ed signed an addendum to our agreement with AIR, wherein, AIR specifically says they will not share personal data with any third-parties unless the USOE gives them permission.  Better, but not good enough.  The USOE also received a letter from AIR's Executive Vice-President, indicating that they will not be using behavioral indicators or sharing of student data.  Again, nice, but why not put it in a legally-binding document?

In our August Board Meeting (52 minutes into the Board Meeting**), Board Member Brian Halladay, who has been doing extensive research on AIR, listed over 20 entities that are subsidiary organizations of AIR.  Subsidiary organizations, by definition, are not third-parties.  That means these organizations are not prohibited from receiving or using our children's data that is obtained through SAGE testing.  In response to the concerns raised in that meeting, the Superintendent conversed with USOE Assistant Superintendent in charge of testing, Dr. Judy Park.  Dr. Park and AIR Executive VP, Jon Cohen, responded to these concerns here and here.  Dr. Park provided citations from the contract where data privacy is discussed.  Unfortunately, those citations don't really deal with prohibitions on AIR.  Three of us on the board (Mr. Halladay, Mrs. Hill, and myself) responded to Dr. Park.  You may read our letter here.  In the letter, we raise additional concerns and also request validity and reliability information on the SAGE tests.  The sections of the contract cited by Dr. Park do not prohibit AIR's usage of our children's data.  The response we received was that legal counsel would be consulted.  That was in September.  We have not heard anything since.

Fourth, it is important that you know SAGE includes not just the end-of-year, or summative, testing.  SAGE also includes interim and formative testing. 

The districts and schools can decide to implement interim testing, which is a similar version of the summative testing.  Like the summative tests, the questions and answers are not seen by the teachers and cannot be released to the public.  The teachers do see scores, as well as information about individual standards and/or objectives and how individual students scored in those areas. 

The formative tests, on the other hand, are tests or assignments that are generated or selected by the individual teachers.  The teachers can selected items from within the SAGE test databank or they can create them, themselves.  Teachers create, select, see, and determine the scoring for the formative tests.  For more information on formative testing, this YouTube video is very helpful.  Former director of testing at the USOE, John Jesse,  indicated that they wanted to put everything into SAGE so that teachers would have no need of any additional testing program.  The upside to teachers is evident.  The upside to AIR? Lots more data.  Even though the teachers create the items, the items, the answers, and your student's responses are collected and stored by the SAGE software on AIR-maintained servers.  So the lack of data privacy extends to not just the once-a-year tests, but to every activity that your kids participate in while logged on to the SAGE portal. It's a goldmine for our friendly behavioral research organization, AIR. 

Finally, on Feb. 2, 2015, the USOE sent a memo to all districts and charter schools stating that parents have no options for opting out of SAGE interim or formative testing.  As a board, we had been debating back and forth about the interim and formative testing, and the district form was stated as covering all interim and summative SAGE testing.  Dr. Henshaw indicated that parents should contact individual teachers to have their children excused from formative tests.  With the advent of the USOE memo, interim and formative testing have now been deemed as 'required.'  (Since interim testing is over for this year, it will not impact students in Alpine until next year.)  The problem with this is that this wasn't a directive from the State Board of Education.  It wasn't a change in the law.  This was a memo from two state administrators by-passing every elected official in any capacity and indicating that parents have 'no option'.  Parents are now subject to the state for what goes on with their children.  The state law could be interpreted as being silent on interim and formative testing.  But being silent isn't the same as forbidding a particular action.  In a free society, the limitations are placed on government to protect individual rights.  The USOE memo places restrictions on parents.  In short, the state compels you to send your children to school.  If you choose to avail yourself of the free, public education system provided by the State of Utah, you are obligated to pay for that, not just with your taxes, but with your children's personal data.  You have 'no options' to protect them.  The Wise and Powerful Oz, um I mean, State Office of Education, has spoken. 

So, what do you do?  Don't give up.  Push back.  Civil disobedience is a time-honored tradition in America.  If you don't want your kids taking the SAGE tests, make sure your teachers and principals know.  They are caught between a rock and a hard place.  Be empathetic, kind, and firm: your child will not be participating.  If they are asked to participate, your child has been instructed to answer incorrectly and/or to call you to pick them up.  Write letters to the State Board of Education (board@schools.utah.gov), and to your legislators, and the governor.  Let your locally-elected board members know of your concerns.  Local boards can communicate on your behalf, but we still have to administer the tests.  Be kind, but firm.  And, at the end of the day, do what is best for your kids. As we concluded in our letter to Dr. Park, "Just because parents choose to educate their children in our public school system, it does not mean that we, as a state government, are entitled to whatever information about their children we feel is necessary." 

Update:

“Sage is one of the tests in all of its components that was unambiguously covered by the safe harbor provisions of Section1403 9a. And so that is one that unambiguously there is an opt out provision....But if there's a question about SAGE, I believe there is unanimity and no ambiguity that SAGE is absolutely something that is subject to..the safe harbor provisions of 1403-9a.”--State Superintendent Brad Smith on the Feb. 2, 2015 memo (6:20)

*There is an argument to be made that only the most involved parents are opting their kids out.  Since we know that the most involved parents usually have the kids who score the highest on standardized testing, there is a potential for a lower score due to that dynamic.  However, there are also many parents of special ed kids who are opting out because they find the tests problematic for their kids.  At the end of the day, the problem is the entire method of grading teachers and schools based on standardized tests.  Contact your legislators and ask them to remove school and teacher grading from state law. 

**Board Meeting Audio:
1. Click on the link
2. Scroll Down to 'Additional Media' and expand
3. Click on either the Study Session or Board Meeting audio, as listed.