Opting-Out of Common Core State Standards and Testing is NOT an Option per Ky. Dept. of Ed.

I got an alert that the Kentucky Department of Education sent an advisory to all superintendents in the state that parents opting their children out of Kentucky’s Core-Content-based curriculum and tests is not allowed.

However, when I tried to locate the full message on line, I was only able to access the overview of the March 30, 2015 message. I could not access the full details.

The full message has now been provided to me by the department and is available to you by clicking the “Read more” link.

I am not a lawyer and do not know if an independent legal review of the department’s position is available, but it seems certain that superintendents and supporting school staff in Kentucky will now react very unfavorably to any parent who attempts to opt their child out of Kentucky’s Common Core aligned KPREP tests.

(Forwarded Message from KDE follows)

Opting-Out of Common Core State Standards and Testing is NOT an Option

As part of the campaign against the Common Core State Standards (CCSS) and standardized testing, national pundits are urging parents to sign an opt-out form and submit it to their child’s school. In Kentucky, districts are not permitted to honor a parent’s request to opt-out of CCSS or statewide testing.

Although parents have the right to opt their children out of public education by choosing home school or private school, parents do NOT have the right to pick and choose the provisions of public education with which they will comply.

At the direction of these national pundits, parents often cite the 14th Amendment to the United States Constitution, Meyer v. Nebraska , and Pierce v. Society of Sisters as authority to opt-out of CCSS and statewide testing.

However, there is no authority in state or federal law allowing parents to opt-out of the Kentucky Core Academic Standards (KCAS) or statewide assessment system.

The Meyer and Pierce cases were decided by the United State Supreme Court in 1923 and 1925, respectively. The Meyer court dealt with a school teacher who taught using German language in violation of then Nebraska state statute. In Pierce, the court evaluated the Oregon compulsory public school attendance laws which did not allow for attendance at private schools. The Pierce court specifically noted that, “no question is raised concerning the power of the state reasonably to regulate all schools…” including curriculum requirements. Neither case stands for the proposition that parents are afforded the right to opt-out their children from state curriculum standards or statewide assessment tests. Finally, pursuant to 34 CFR Part 99, FERPA does not prohibit transmission of testing data from the local school to the Kentucky Department of Education.

On the other hand, there is abundant legal authority supporting KCAS and mandatory statewide assessment.

Senate Bill 1 (2009), which was overwhelmingly supported by a bi-partisan majority of the Kentucky House and Senate, mandated common standards. Determination of the KCAS for public schools (and for private/parochial schools that voluntarily subscribe to the standards via accreditation through the Ky. Non-Public Schools Commission) is under the discretion and authority of the Kentucky Board of Education, via state regulations that carry the force of law (704 KAR 3:303). Under its authority, the Kentucky Board of Education adopted the CCSS in English/language arts and mathematics as well as the Next-Generation Science Standards through the prescribed legal process. As these standards are included in regulation, the expectation is that all students are provided instruction and opportunity to learn these standards in the public schools; but how a school/district establishes the curricula for those standards is a local decision. Per KRS 160.345 (i) (10), “determination of curriculum” is a matter within the discretion of the school council.

In 1997, the Kentucky Court of Appeals affirmed the Kentucky Board of Education’s authority to require all students in public schools in our state to participate in standardized assessments. In Triplett v. Livingston County Board of Education, 967 S.W.2d 25 (Ky.App. 1997), the Kentucky Court of Appeals held that Kentucky statute KRS 156.160, which provided the Kentucky Board of Education (KBE) the authority to set the minimum requirements for graduation from a public high school in our state, gave the KBE the authority to require all students of public schools in our state to participate in standardized assessments and that this requirement did not violate the students’ rights.

As described on KDE’s website at http://education.ky.gov/AA/KTS/Pages/default.aspx, Kentucky’s statewide accountability system depends on the testing of every student. No student may opt-out of the standardized assessments conducted under this system. The purpose of testing every student is to ensure that all schools and districts are serving all students and that gaps in categories of students are identified, addressed, and closed. Kentucky statute KRS 158.6453 http://www.lrc.ky.gov/statutes/statute.aspx?id=3554 and Kentucky regulation 703 KAR 5:140 http://www.lrc.ky.gov/kar/703/005/140.htm were promulgated to ensure the system and the data produced were faithful to these goals. An accountability model must be all-inclusive and all-reflective.

Districts should be prepared to explain these requirements to parents, as well as the importance of the consistency of academic standards throughout all Kentucky schools as a part of the “efficient system of common schools” required by Section 183 of the Kentucky Constitution, and as more specifically described in the landmark case of Rose vs. Council for Better Education (Ky. Supreme Court, 1990).

Students who do not participate in the statewide accountability system will receive a “0” score which will be included in the school’s accountability calculation.

Districts are encouraged to review their policies and communicate to parents the consequences for students’ failure to participate in mandatory state assessments.