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Response to MSDE’s anti-parent stand on MSA opt out

After the MSDE distributed a letter to local school boards, linked here, advising them not to cooperate with parental requests to opt out of the MSA testing, parents responded with phone calls and emails of disagreement to the state board.

Henry Johnson, MSDE Assistant Superintendent of Curriculum, Assessment & Accountability, replied with the following letter to several parents, printed in its entirety. The letter carefully addresses the issue of “opting out” of curriculum by quoting the MSDE’s opinion on a Missouri ruling on dress code.

There are several problems with Mr. Johnson’s carefully crafted rebuttal to parents:

  1. The MSA is not curriculum, nor does it test on the curriculum that is being taught in Maryland schools. Rather, parents want less testing and more instruction.
  2. Parents are not requesting an “opt out” of the MSDE’s obligation to assess students inclusively. They are simply refusing the test. No law is required to grant parents a right to refuse, as no law requires a child to take the assessment. If there were such a law, it would be unenforceable, as the schools can hardly force a pencil into a child’s hand and make him take the test. Unenforceability would render such a law all but null and void.
  3. The COMAR regulations that Mr. Johnson cites are examples of the MSDE allowing the school system to not teach curriculum on sex ed at parent’s request. COMAR regs are passed solely by the Maryland State Board of Education and are not subject to legislative review. Therefore, the MSDE has the undeniable ability to change their regulations to retract the school system’s obligation to administer the MSA, either across the board or only upon parental request.

Mr. Johnson further directs parents to work with their schools to resolve the issue, indicating that the resolution is a decision of the local school, rather than the MSDE.

This harkens the MSDE’s shirking of parent questions during the Common Core “forums” when they told parents to ask questions at their local schools. So once again, the MSDE and Superintendent Lowery are running from problems that the schools and principals are left to deal with. The MSA testing which began this week is putting teachers, students, and principals on the frontline while Superintendent Lowery remains mounted on her steed at the crest of a far-off hill.

The one mistake some parents are making is asking for permission, in the form of "opt out" for something for which the MSDE should be asking forgiveness. Just send your child to school while REFUSING the test.

For more information on MSA opt out, see my previous article here.

Here is the letter from Mr. Johnson:

The email you reference, concerning “opting out” of statewide assessments, represents the position of the Maryland State Department of Education. The letter itself is not a new policy or regulation, but merely a summary of the Department’s current law, regulations, and policies, drafted in consultation with legal counsel. It is the voice of the Department, not any single individual. The letter was recently written in response to inquiries from the public. Although the letter itself is not a legal document, we believe that it accurately states current state law, regulations, and policies as adopted by the General Assembly, State Board of Education, and State Department of Education.

As you may be aware, state law requires that all children attend public school, a nonpublic school, or be educated at home. For students who attend public school, state regulations permit parents to have their children opt out of only a few specific aspects of the public school curriculum. See COMAR 13A.04.18.01F(5)(a) and I(2)(a) (“Family Life and Human Sexuality” and “HIV/AIDS Instruction.”).

The Code of Maryland Regulations and the Education Article of the Maryland Code contain no provisions for “opting out” of statewide assessments, and we are aware of no legal right to do so. The Maryland State Board of Education recently expressed its opinion as to the legality of a county board policy that prohibited parents from opting children out of specific classes in Yasmean W. v. Howard County Board of Education, MSBE Op. No. 13-56 (2013). The State Board quoted with approval the following language of the Sixth Circuit Court of Appeals in Blau v. Fort Thomas Public School District, 401 F.3d 381, 395-96 (6th Cir. 2005):

The critical point is this: While parents may have a fundamental right to decide whether to send their child to a public school, they do not have a fundamental right generally to direct how a public school teaches their child. Whether it is the school curriculum, the hours of the school day, school discipline, the timing and content of examinations, the individuals hired to teach at the school, the extracurricular activities offered at the school or, as here, a dress code, these issues of public education are generally ‘committed to the control of state and local authorities.’

Many of your concerns center on how your son’s school will address your stated refusal to have him participate in statewide math assessments. We believe these questions are best directed to your local school system and we encourage you to work constructively with them.

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