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Does Your State or School District Have a Policy on Opt-Outs? – How You Can Advocate for One

It’s spring again time for crocuses and, if you are an educator, standardized tests! Spring is when most of the standardized tests that are now mandated in our nation’s schools are given. As we head into testing-students-silly season, here is what you need to know as an educator and an activist about the burgeoning movement to opt-out children from standardized tests.

Opting-Out is an Act of Civil Disobedience in Most Places – All but three states have no law or policy in place allowing parents to opt their children out of standardized tests. California, Utah, and Wisconsin have state laws that permit parents to opt their children out of certain standardized tests. In a small number of other states and districts, state education departments or local education agencies have indicated that they will respect parents’ opt-out wishes at least as to certain tests and for certain (often religious) reasons. Everywhere else there is no law permitting such opt-outs. In states and school districts that have not acted to permit opt-outs, parents that opt their children out may put their children at risk for academic consequences and educators who advocate for such opt-outs while on duty or using school resources may risk discipline and even their jobs.

How You Can Advocate for a State or School District Opt-Out Policy – If your state or school district has not adopted any law or policy on opt-outs, think about how to organize around and advocate for such a policy. Model Opt-Out Legislation: Option 1 and here Model Opt-Out Legislation: Option 2 are model state legislative proposals that would allow opt-outs from all standardized tests or from district level mandated tests. And Model School Board Resolutions - Option 1 and Model School Board Resolutions - Option 2 are model school board resolutions to the same end that you can advocate that your school district adopt. Some state and local affiliates have also adopted opt-out resolutions. If you want to go that route, here is a model resolution for that purpose as well.

The difference between these model laws and resolutions are whether they permit opt-outs from all standardized tests, both state and local, or only from locally mandated tests. In thinking about which to advocate for, you need to know that the U.S. Department of Education has told at least one state (New Jersey) that it may jeopardize a portion of its funding under NCLB if it permits parents to opt-out their children out of the NCLB mandated standardized tests. A state or district’s adoption of a broad policy permitting opt-outs from NCLB mandated tests may therefore trigger adverse financial consequences.

What is the same in each of these model policies is that each protects educators who advise parents of the opt-out policy and give parents their professional opinion about whether a particular standardized test will or will not serve an educational purpose for a particular students. By doing so, these model proposals break new ground. Educators generally are not protected against offering such opinions under current state and local laws and policies.

Remember the Rules of the Road for Effective Advocacy – Remember that as a public employee your speech on the job is not protected by the First Amendment. Your off duty speech may be protected by the First Amendment and is most likely to be protected when you are speaking to a school board or state legislature, or to the general public (in a letter to the editor or a public demonstration or rally) advocating for the adoption of a public policy position like a school board policy permitting opt-outs. You may lose protection, however, if your off duty speech is engaged in with school resources or otherwise disrupts school operations. For example, leafleting parents dropping children off at school about opt-out rights or emailing parents of the students in your class encouraging them to opt their children out of tests, may both be actions that a court could conclude to be unprotected by the First Amendment. Before you engage in such advocacy, be sure to check with your local counsel.

Act in Solidarity with Other Educators and Your Local and State Affiliates – Only by joining together as one can we end the tide of toxic standardized testing in our schools. NEA supports parents who choose to opt their children out of standardized tests that serve no educational purpose. And NEA stands in solidarity with its members who advocate against the administration of tests that serve no legitimate educational purpose and refuse to participate in the administration of such tests with the support of their local and state affiliates.


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