The Opt-Out Outrage



By 04/14/2014

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The opt-out-of-state-testing movement has notched more wins lately. “Thousands,” we read, are refusing to take the tests in New York alone. And tons more interest and attention are being devoted to this topic in states and communities far and wide.

Tough questions urgently arise: Is it legal to opt your child out of state tests? Should it be legal? And if it’s not—and ought not be—legal, is it a legitimate act of civil disobedience to refuse to obey such a law?

The recent surge of activity has more than one source. Partly it’s a response to broad concerns about too much testing and disquiet over curricular narrowing and test-prep overkill. Partly it’s a reaction against the Common Core standards, which have lately become controversial. And partly it’s just old-fashioned Rousseauian romanticism about the ends of education and the proper metrics by which to determine whether the right ends are being attained.

Yes, it’s understandable. But is it acceptable?

The legal status of testing opt-out is a bit murky. “Required by state law but not consistently enforced” seems to be the rule in most places. Colorado statutes, for instance, declare that “Every student enrolled in a public school is required to take the assessments in the grade level in which the student is enrolled.” New York requires participation in the tests but also has an administrative procedure in place for those who refuse. (“These students will be considered to have ‘no valid test score’ and will be counted as not tested.”) In the months ahead, states will have to clarify what is and isn’t required and how test participation is to be enforced—although, as with home schooling, they may choose to leave it murky rather than inviting big political battles.

As for parents, think about the parallels. Is it OK to opt their kids out of vaccinations before coming to school? Out of attending on Thursdays—or on their birthdays? Out of going to math class? Submitting a lab report in chemistry or a book review in English?

Testing is more serious than lab reports, for it goes to the core of society’s interest in ensuring that its own next generation is educated—not just making them spend time in school but making certain they actually gain the skills and knowledge that they and their society will need to thrive in decades to come.

Education is both a private and a public good, which is why states have assigned themselves constitutional responsibility for educating their young people. Every single state. (A representative clause, borrowed from the Arkansas Constitution, reads, “Intelligence and virtue being the safeguards of liberty and the bulwark of a free and good government, the State shall ever maintain a general, suitable and efficient system of free public schools and shall adopt all suitable means to secure to the people the advantages and opportunities of education.”) That’s why states have enacted “compulsory attendance” laws. And that’s why paying for education is the largest or second-largest item in the budget of every single state.

Yes, the private side of the education “good” is well represented, too. The Supreme Court famously ruled in 1925 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.”

That right vouchsafes to families the options of private schooling and home schooling but not of no schooling, for it is balanced by “high duty” and by the “power of the state,” as recognized in the same Court decision, to “reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare” (emphasis added).

It’s a balancing act: shared public and parental authority, state power leavened by family preference.

Parents get greater leverage when they choose to educate their daughters and sons at home or send them to private school at their own expense. In those situations, state testing is optional and probably should be. But when they expect the state to educate their children at public expense, the public has a right to know whether those children are learning anything (no, not whether Johnny and Mary are learning, but whether the children of Waco—or Scarsdale—are learning); whether taxpayers are getting a decent ROI from the schools they’re paying for; and whether their community, their state, their society will be economically competitive and civically whole in the future as a result of an adequately educated populace.

How to find this out? Testing certainly isn’t perfect—but neither are any of the other metrics. Time spent—even promotions and graduations—doesn’t prove that learning occurred. Neither do teacher-conferred grades. And all the other options are subjective, expensive, impractical, or all of the above.

So we test. As former D.C. schools chancellor Michelle Rhee wrote the other day in The Washington Post,

Tests are not fun—but they’re necessary. Stepping on the bathroom scale can be nerve-racking, but it tells us if that exercise routine is working. Going to the dentist for a checkup every six months might be unpleasant, but it lets us know if there are cavities to address. In education, tests provide an objective measurement of how students are progressing—information that’s critical to improving public schools.

For the past decade, on their own initiative and under powerful pressure from Washington, states have administered standardized assessments of various kinds to all their (public school) pupils in grades 3 through 8 in math and English and then more in high school (and in science).

Yes, the tests leave much to be desired. They should be faster, computer-based, and adaptive. The questions should require thought, analysis, knowledge, not just regurgitation or guesswork. They should provide speedy feedback to schools, parents and pupils alike. Fortunately, it looks as if the forthcoming Common Core assessments will indeed be better. Kids may spend less time taking them, they’ll probe important learning, and they may even be educational in their own right.

But the nature of the test isn’t what’s at stake today. Our schools need to become more effective and our children need to learn more. Test results advance the public interest much as vaccinations do. (Maybe your kid is healthy today but the classroom needs everybody’s kid to be inoculated lest an epidemic start.)

Better tests are coming, but that doesn’t excuse “opting out” now. It’s not a legitimate form of civil disobedience. And it’s probably not legal, either. If you really find state tests odious, put your money and time where your mouth is—and stop asking taxpayers to educate your children.

-Chester E. Finn, Jr.

This first appeared on the Fordham Institute’s Flypaper blog.




Comment on this article
  • Ze'ev Wurman says:

    Checker should be careful in what he wishes for. Even if we ignore his rose-colored hopes about the testing time and quality of the new Common Core tests — they are neither shorter nor better in testing anything but “regurgitation” — imagine what could happen if states would prohibit opting out.

    Imagine that instead of opting out and being counted as not tested, parents forced to take the test would encourage their children to take it but fill all multiple choice items with a fixed choice (say “B”) and all open response items with a fixed answer (e.g., “I have no idea.”) Imagine the impact of THAT on local school and teacher scores, and on system’s accountability.

    It is surprising that after so many years of national policy work Checker still doesn’t seem to grasp that there is a limit to what the central government planners can force citizens do against their will.

  • Kristen Selzer says:

    “It’s a balancing act: shared public and parental authority, state power leavened by family preference.”

    A wee bit fascistic, no?

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