Op-Ed: Threats to Cut Funding Over ‘Opt-Outs’ are On Shaky Legal Ground

Efforts to cut school funding as retribution for parental refusals are more likely to prompt the opposite political response

Julia Sass Rubin and Monty Neill
Last week, U.S. Education Secretary Arne Duncan said that “the federal government is obligated to intervene if states fail to address the rising number of students who are boycotting mandated annual exams.” A few days earlier, a U.S DOE spokesperson had indicated the department “could withhold funding from states if some of their districts have too few students take the exams.”

Following Duncan’s lead, New Jersey Education Commissioner David Hespe told the Star Ledger last Wednesday that “any New Jersey school that fails to have 95 percent of its students take the PARCC exams will be placed on a corrective action plan, and schools with especially high opt-out rates could have state funding withheld.”

Gov. Chris Christie supported the commissioner, indicating that “These are not just state matters, but federal rules … If you violate the federal standards, there will be penalties.”

These threats are clearly intended to slow down the growing parental test-refusal movement.

In New Jersey, families of at least 50,000 students refused the first round of PARCC testing and even more are refusing May’s second round. In New York, the refusal number could be as high as 200,000, and tens of thousands of parents are saying “no” to PARCC tests in Colorado and other states.

How seriously should parents and school leaders take the federal and state funding threats?

We believe these threats have little legal substance.

The federal No Child Left Behind (NCLB) law included a mandate that required schools to have a 95 percent participation rate on state tests or they would automatically not make “adequate yearly progress” (AYP) and face sanctions. The original intent was to make sure all students were included in accountability systems. But NCLB’s formulas were so punitive and flawed that most states “opted out” and applied for NCLB waivers. States with waivers, including New Jersey, no longer face sanctions based on AYP.

Now the U.S. Department of Education (U.S. DOE) is claiming that states, and by extension districts, have contracted with the federal government to receive funds under NCLB. Therefore, the department can withhold funds if states fail to fulfill any part of the law, such as the requirement to test 95 percent of eligible students. It is telling that the department has not threatened to enforce any other NCLB testing requirements, such as assessing “higher order thinking skills,” using “multiple measures,” or providing meaningful individual “diagnostic reports.”

In the highly unlikely case that the U.S. DOE decides to pursue enforcement of these contracts, the first step would be a “corrective action” plan to address the low participation rates. This is typically a multiyear process during which time schools would not lose funding. If such corrective actions began this year, they would not reach the stage of funding cuts until after the Obama Administration had left office.

New Jersey Commissioner Hespe’s threats of funding cuts are also unlikely. The commissioner has not identified any statute that gives him authority to withhold state funds from schools or districts singled out for missing test participation-rate targets. Obtaining that authority would require legislative action, which is extremely improbable.

In fact, at both federal and state levels, efforts to cut school funding as retribution for parental refusals are more likely to prompt the opposite political response. The day after Commissioner Hespe issued his state funding threat, State Sen. Nia Gill, whose legislative district includes a large number of test refusers,
sent a letter to the commissioner urging him to reconsider. Sen. Gill and Assemblyman Diegnan are introducing legislation that would prohibit the commissioner from withholding state funding based on parental test refusals. They are likely to have many cosponsors as high rates of test refusal exist in legislative districts represented by both Republicans and Democrats, who would be forced to defend their constituents.

Any effort to cut federal funding to schools because parents refuse the test could well trigger an equally negative response from Congress, which is working on legislation to replace NCLB. Both House and Senate versions of the new legislation remove the federal government’s ability to impose sanctions and dramatically curtail the authority of the secretary of education to intervene in states. The Senate bill, which was unanimously approved by committee and is expected to be voted on soon by the full Senate, also includes a provision that recognizes parents’ right to refuse standardized tests and gives primacy to state opt-out laws.

While the funding cuts are highly unlikely to materialize, there is good reason for concern regarding Commissioner Hespe’s threat to “spend some time” in schools with high test refusal rates “to find out what happened and why.” Given the vague parameters for such actions, there is real potential for parental test-refusal rates to be used as an excuse to intervene in school districts for politically motivated reasons.

Pressure from the NJDOE also could push more school districts to be punitive with students whose families refuse the tests. At least two dozen school districts imposed “sit and stare” policies and other disciplinary actions against such students during the first PARCC testing round. If the NJDOE is planning a crackdown on administrators who are not sufficiently strict with test refusers, the number of districts that mistreat their students is likely to grow.

Last month, the New Jersey Assembly unanimously approved legislation that would prevent school districts and charter schools from mistreating students whose families refuse the tests. The New Jersey Senate needs to pass this legislation as quickly as possible, to ensure that our children are not paying the price for federal or state government overreach.