20 USC § 6301(12) Federal Oversite of State Assessments

Testimony presented by Deborah Abramson Brooks before Al Graf’s hearing committee.

The 1960s saw the introduction of President Johnson’s war on poverty, with his well-intentioned Elementary and Secondary Education Act, and Title 1 funding. In later years, this would morph into No Child Left Behind. Delving into the morass that has taken hold of our children’s education is no easy task. What does this law require? In the interest of time, and given that state law must conform to the federal law, I will cite only to NCLB. The opening statute of NCLB is very instructive. It requires that parents be afforded “substantial and meaningful opportunities to participate in the education of [our] children.” 20 USC § 6301(12).
The most recent round of standardized tests, with their obtuse and convoluted and developmentally inappropriate material (for example, a poem by Leo Tolstoy for 8-year-olds) were written to include material that was never taught to children in the classroom. Parents teach children to trust teachers and to follow rules and behave in school. The people in power who imposed these tests upon our children violated that trust. And they abused their positions of power. Their behavior, if not intended to be harmful, nevertheless was careless, reckless, and cruel, with a complete and flagrant disregard for the psychological and emotional well-being of our children; a dereliction of duty, with a singular sense of arrogant self-importance. To say otherwise is to defy logic and negate the events of the past year. This result is neither what the law contemplates nor what it allows.
Allow me to focus on the assessment portion of NCLB (which can be found in 20 USC § 6311(b)(3)), titled, aptly enough, “Academic Assessments.” What does federal law mandate?
First, it mandates a set of “high-quality, yearly student academic assessments.” 20 U.S.C. § 6311(b)(3)(A) (my emphasis added).
Next, the law mandates that the assessments “shall…produce individual student interpretive, descriptive, and diagnostic reports, consistent with clause (iii) that allow parents, teachers, and principals to understand and address the specific academic needs of students, and include information regarding achievement on academic assessments aligned with State academic achievement standards, and that are provided to parents, teachers, and principals, as soon as is practicably possible after the assessment is given, in an understandable and uniform format, and to the extent practicable, in a language that parents can understand;” 20 U.S.C. § 6311(b)(3)(C)(xii) (my emphasis added).
There’s more. The assessments “shall… enable itemized score analyses to be produced and reported, consistent with clause (iii), to local educational agencies and schools, so that parents, teachers, principals, and administrators can interpret and address the specific academic needs of students as indicated by the students’ achievement on assessment items.” 20 U.S.C. § 6311(b)(3)(C)(xv) (my emphasis added).
Notwithstanding any of the above legal guarantees, what I received in the mail in mid-September – along with all other parents of public school children — was a report with meaningless numbers on it. There was nothing interpretive, descriptive, or diagnostic about the report. There was nothing to allow any teacher or parent to interpret, understand, and/or address a child’s specific needs. There was nothing relevant, purposeful or informative about either the tests or the report. And the quality of the test speaks for itself. Neither the tests that were given to the children, nor the results provided to parents and teachers, pass legal muster.
Let’s not confuse the issue. Although the 3rd grade to 8th grade tests are a federal mandate –assuming the mandate itself is valid – such mandate does not, by any means, confer legitimacy upon the assessments. The standardized assessments – as they have been for years — are inherently unreliable and unreasonable. And, to my mind’s eye, they fail to fulfill let alone minimally meet the requirements of this federal law and, therefore, violate the law. Those who are responsible for putting them into motion need to be held accountable.
Assessing a child’s “educational worth” via high-stakes standardized testing is just plain wrong. As we have seen, in many cases it is cruel and destructive behavior being sanctioned and imposed by the government. There is a national obsession with invalid and unreliable high-stakes testing, as government forces school districts to funnel more and more money down the testing pipeline. Testing companies churn out invalid and unreliable tests, and make egregious mistakes over and over again, yet we continue to funnel millions of dollars their way.
More baffling to me, government allows them to keep our children’s completed test papers shrouded in secrecy, as though our children’s work product was a heavily guarded national secret. We taxpayers paid for those tests. Apparently, government has forgotten who is meant to be the main beneficiary of these tests. Transparency is needed – indeed, is legally required — on the results end. How can you use the results of a test to improve pedagogy when you do not have access to the test or the results? It is impossible to use a test you can’t see to inform instruction. And yet, victim to this clandestine activity, teachers and children are threatened — either with losing their jobs or being held back – if their performance does not improve fast enough. Teachers have become so fearful, that where once a bright student was an asset, she is now a liability: it is virtually impossible to show improvement with a “4.” What can be said about an evaluation system that penalizes teachers and bright children? All this and manipulation of cut scores add up to a rather important set of reasons to invalidate the entire process.
After ten years of testing mania, and millions of taxpayer dollars spent, colleges are still saying students are not college ready. Those who govern us have a legal responsibility – a LEGAL responsibility — to guarantee that the tests, if they must be given, actually measure what teachers teach and students learn. I suggest to you the high-stakes tests never will accomplish what the law requires. Replace them with valid forms of student, teacher, and school assessment. Assessment must be designed to be diagnostic and developmentally appropriate, with the purpose of enabling teachers and parents to address the specific academic needs of every child. This may require a one-on-one assessment rather than pencils and bubbles. The process must be child-centric. Early education and childhood development specialists need to be consulted. The law, as currently written, requires it. Unless and until an assessment is designed to be diagnostic and allow teachers and parents to address the specific academic needs of students, it will continue to violate federal law and, therefore, will be invalid, not to mention a collassal waste of money.
Turning to the common core. President Johnson’s act explicitly bans the federal government from directing, supervising, or controlling elementary and secondary school curriculum, programs of instruction, and instruction materials. Yet, the federal government has designed a system of discretionary grants and conditional waivers that effectively entices states into accepting specific standards and assessments favored by the Department of Education.
We have come to believe that the common core program was put together with the backing of corporate reformers, and others with little or no background in childhood education. It was neither piloted nor tested, nor was it rolled out gradually; rather, it was steam rolled upon our children. It has our teachers running in every which direction. Our educational system was not in such dire straights, so in need of reform, so compellingly and pressingly deficient, so urgent, that elected and appointed officials had to roll out a new curriculum program that had never been tested, and in such full force. Development of a new curriculum – anything new — takes time, and it takes constant consultation with and participation by appropriate childhood development specialists and educators. The implementation process takes time as well. I highly doubt that Bill Gates would roll out a new computer program without beta testing and tweaking it first. That would be very unsound business practice. Why have our children been treated less importantly?
I do not need an advanced degree to appreciate that elementary and secondary education initiatives that ignore childhood development and the learning theories relevant to such education are foolish. Such a curriculum needs to be designed by people who know how to measure healthy functioning in young children, not people who want our children’s learning to be measured by test scores — which is not an indication of a healthy child or a measure of how successful a child will be. I am not convinced that pushing skills earlier, at whatever level, will enable our children to hit testing “benchmarks.” The majority of young children are not ready for more time management, material management, organization/ prioritization of study, and so forth. Needless to say, throwing advanced skills at children too developmentally young to tackle them can only lead to feelings of anxiety and frustration and hatred of school, even in affluent schools. Systems that focus on performance and scores cannot be healthy. It’s hard to believe this is truly about our children. There is a corporate-driven machine out there that would reduce classroom learning to rote memorization, embrace high-stakes testing, and dismiss any kind of critical pedagogy as mere whimsy.
Enshrining the standardization of knowledge and assessment is the antithesis of teaching children to learn and think creatively and critically. Our children are individuals. No two children learn exactly the same way. As the Supreme Court has acknowledged, “The educational opportunities provided by our public school systems undoubtedly differ from student to student, depending on a myriad of factors that might affect a particular student’s ability to assimilate information presented in the classroom.” Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982) (special education case).
We should be preparing our children to be good people and citizens, independent thinkers who can tap into their own potentials and abilities, not fodder for global competition. Of course, our children need to know how to read and write effectively. Of course they need to understand math. But they also need social skills and empathy. They need to be free to be creative, individual thinkers who also know how to work as team players. They need healthy minds and healthy bodies. Art, music, literary fiction, civics, recess and physical education are critical to growing minds and bodies. A reasonable lunch period, too, wouldn’t hurt.
Our children are in school for only a short while. Bill Gates has declared we will not know if “this stuff” works for at least a decade. I don’t care if the trial period is only one year. One year of my child’s education is one year she will never get back. Our children’s education and childhood are not expendable. We need to protect and properly educate them now. Let’s all take a deep breath, slow down, and fix this. Develop age-appropriate curriculum resources that teachers can select, adapt, try out, and refine together in non-threatening settings. Use the standards as guideposts, not shackles. Develop assessments that provide exciting opportunities for students to demonstrate their learning and for teachers to be engaged in development and scoring assessments used for information and improvement, not sanctions and punishments.
RTTT is the latest of several efforts to leverage federal resources to redirect educational policy. Governor Patterson fought hard for RTTT grant money. NYS was awarded close to $700 million. But was victory worth the cost? When you begin to account for all the money that must be spent to put into place all the promises that Gov. Cuomo* made to the federal government – money for curriculum revision to reflect common core, common core training, common core new materials, APPR training, local assessments, state scoring, SLO development costs, improved and updated technology infrastructure, related professional development, and so on – how much money is left over?
In a comprehensive study released about one year ago, Dr. Ken Mitchell, District Superintendent of the South Orangetown School District, working with the Center for Research, Regional Education and Outreach at SUNY New Paltz, put together a study entitled, “Federal Mandates on Local Education: Costs and Consequences – Yes, it’s a Race, but is it in the Right Direction?” Distilled to its essence, Dr. Mitchell proves that the costs to implement RTTT mandates far exceed the funding. In Rockland County, for example, leaders projected a total four-year cost of almost $11 million compared to aggregate revenue of about $400K RTTT money. That’s a $10 million deficit. Dr. Mitchell stated: “There are serious challenges to this federal program’s validity, and the research upon which it is based. Without substantive validation, NYS and US taxpayers are funding a grand and costly experiment that has the potential to take the public education in the wrong direction at a time when we need to be more competitive than ever before.” “Much is being sacrificed to meet this expensive mandate….” CRREO, Dr. Ken Mitchell, Federal Mandates on Local Education: Costs and Consequences – Yes, it’s a Race, but is it in the Right Direction? Discussion Brief #8, Fall 2012.
You have the opportunity to change this course before our school systems are so radically and unalterably changed, perhaps for the worse, at a great financial loss to taxpayers, and a great risk to impressionable children. My district did not take RTTT money; nevertheless, we had to implement – and pay for — all the promises made. I urge you to demand that the people responsible for forcing us onto this path reverse course and abandon this ill-considered and poorly-implemented policy. We have been told we still don’t have the full curriculum. The tests have not been developed. We are told they are flying the plane even as they build it. Can we afford to board that plane before it’s finished? Can we afford to finish building that plane? Isn’t it more critical to spend the limited education dollars restoring teachers, teachers aids, and librarians?
The NY Court of Appeals has stated, “It is the natural right, as well as the legal duty, of a parent to care for, control and protect his child from potential harm, whatever the source and absent a clear showing of misfeasance, abuse or neglect, courts should not interfere with that delicate responsibility.” Roe v. Doe, 29 NY2d 188 (NY 1971) (emphasis added). Neither should any branch of government. We parents have come forward not only because it is our constitutional and statutory right to do so, but also because it is our parental duty. No standardized test, no participation rate, no AYP statistic is so important as to be paramount to our children’s welfare and well-being. We are trying to protect our children and, in some cases, we’re being reviled for it. Administrators are bullying and intimidating parents, threatening to withhold services, promotion to the next grade level, etc. We’ve been chided by Superintendents and told to homeschool, or put our children into private schools. These are irrational – and illegal — governmental responses. We want our children to acquire all the skills required to live in our ever-changing society. We also want them shielded from practices potentially detrimental to their emotional and psychological well-being.
We are experts on our own children. We always will have a greater responsibility and vested interest in our child’s future than any government or government official. As the Supreme Court held, “the custody, care and nuture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Pierce v. Society of Sisters, 268 U.S. 510 (1925). Parents have a constitutional liberty interest to direct the upbringing and education of our children. These rights, guaranteed by the Constitution, may not be abridged by unreasonable policy. “The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children[.] The child is not the mere creature of the State; those who nuture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Pierce, 268 U.S. at 510 (phrase omitted []: “by forcing them to accept instruction from public teachers only”). Let’s not forget that our children are our most precious resource.

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