Education Secretary Arne Duncan (AP Photo/Jacquelyn Martin, File)

Tens of thousands of parents in a number of states have decided this spring to opt their children out of high-stakes standardized tests aligned to the Common Core and similar standards, and as that movement has grown, so has pushback from administrators. Now, government officials, both state and federal, are sounding off on the issue, with some threatening consequences to schools where  students refuse to take the assessments. What to make of the threats? Here’s an analysis by Monty Neill, executive director of the National Center for Fair and Open Testing, known as  FairTest, a nonprofit organization that works to end the misuses of standardized testing and to ensure that evaluation of students, educators and schools is fair, open, valid and educationally sound.

By Monty Neill

The rapid rise of the test resistance movement has spawned a backlash by federal and state bureaucrats seeking to intimidate schools and districts where large numbers of parents and students refuse the tests. Opt-outs on the New York English Language tests more than tripled, from under 60,000 in 2014 to around 200,000 this year. In New Jersey, refusals went from perhaps a thousand last year to nearly 60,000 on the first round of the PARCC test. Activists in nearly all states now report opting out, compared to about half last year, with thousands refusing in some jurisdictions.

In response, 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. Department of Education (DOE) spokesperson indicated the department “could withhold funding from states if some of their districts have too few students take the exams.” Authorities in several states have used these comments to back up their efforts to halt the opt out movement by threatening funding loss and other sanctions.

How seriously should parents and school leaders take the federal and state threats? We believe these threats have little legal substance and are not politically viable.

No Child Left Behind does state that 95 percent of students must take federally mandated state exams or their schools and districts will fail to make “adequately yearly progress” (AYP). That failure unleashes a chain of escalating sanctions. However, the list of AYP sanctions does not include a provision to withhold federal funds.

Unable to use AYP-based sanctions, the DOE has moved to protect testing requirements by relying on the fact that NCLB is essentially a contract with each state. The DOE claims it can withhold funds if states fail to fulfill any part of the law. But by focusing only on the requirement to test 95 percent of eligible students, DOE is cherry-picking provisions to enforce. It has not threatened to impose sanctions for failure to meet 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 DOE decided 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 multi-year 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. Lacking plausible threats, the federal statements seem designed to prod and bolster state authorities

States have varying provisions regarding whether a superintendent can withhold funds from a district. New Jersey Commissioner David Hespe said that “schools with especially high opt-out rates could have state funding withheld.” But New Jersey advocates point out that Hespe has not identified any statute that gives him this authority. Obtaining it would require legislative action, which is extremely improbable. In fact, legislators have said they will introduce a bill to prohibit the commissioner from withholding state funding based on parental test refusals.

We know of no state or district that levied penalties against schools with high opt-out rates. Though at least one third of New York schools and districts tested fewer than 95 percent of their students last year, none faced sanctions. Merryl Tisch, head of the New York Board of Regents, argued that the feds should not cut funds to low-income schools – yet she threatened to withhold state funds. In response, the New York State Council of School Superintendents issued a statement saying, “There are no provisions in law that would lead to a loss of state aid due to low test participation.”

So what is going on here? Are federal and state officials just trying to intimidate parents and teachers who resist testing? Or, lacking effective alternatives, will government bureaucrats go to war against the insurgency? What would the result be if they do?

Despite intensified threats after English Language Arts tests, even more New Yorkers refused the math exams. New Jersey activists, who also experienced state bullying, expect to see more refusals for the second portion of the PARCC. It’s unlikely that parents and educators will back down. If states, in desperation, try to remove superintendents or take money away from schools, they are likely to only fan the flames of resistance. If large numbers of students fail the new PARCC and SBAC Common Core tests, as is expected, the resistance is likely to explode in more states, as it did in New Jersey this year.

Pending federal legislation may further undermine the ability of states to use NCLB to intimidate test refusers. While bills moving forward in both houses require 95 percent participation, an amendment accepted unanimously by the Senate education committee says nothing in the new NCLB would preempt any state or local law allowing parents to refuse federally-mandated tests.

While limited in scope and not yet adopted, this provision signals potential congressional support for parents’ ability to refuse. It clearly weakens the argument that the DOE will defund schools and districts that fail to coerce their parents. With sustained effort and continued growth, the test resistance movement could win the fight for less testing, more learning and educationally sound assessments.