(Update: adding FairTest info on sanctions)

Anyone who thought that the U.S. Education Department’s power over states in regard to standardized testing was over because of the new K-12 education law passed in December should think again.

The Every Student Succeeds Act was the result of a compromise among Republicans and Democrats who were intent on ending No Child Left Behind, the chief education initiative of former president George W. Bush, and the Obama administration’s micro-managing of education policymaking. It did send a good deal of education policymaking power back to the states but did not eliminate the federal role in education.

ESSA carries over the No Child Left Behind mandate of annual standardized testing from grades 3-8 and once in high school, and it has left enough room for the Education Department to threaten to sanction those states where too many students refused to take the state-mandated standardized “accountability” test.

In the last year, an “opt-out” movement has been growing around the country, with many parents refusing to allow their children to take tests that they believe are being used in an improper manner to evaluate students and teachers, and some educators refusing to administer exams they believe are poorly designed.

Under NCLB and now under ESSA, at least 95 percent of eligible students are required to take the state-chosen standardized test used to hold states and school districts “accountable.” Federal funding can be withheld by the Education Department to states that dip below the 95 percent threshold. Last year, some states did more than “dip.” In New York state, for example, 20 percent of eligible students refused to take the state’s accountability test.

Education policymakers — the same ones who support “school choice” — don’t like the idea of parents deciding that their students shouldn’t take a standardized test. So, in  December, the department sent a letter to all state school officers reminding them of the testing and 95 percent participation requirements, warning that failure to produce the mandated results could result in the withholding of federal funds.

The letter also urges states to sanction local education agencies where participation rates are below 95 percent and offers suggestions for how to do that. A state could, for example, withhold funds, lower a local education agency or school’s rating in the state’s accountability system, or amend the system to flag a district with a school with a low participation rate, the letter says. Or it could count nonparticipants as nonproficient in accountability determinations. (Wouldn’t this taint those determinations by claiming students are nonproficient when they actually might be proficient but didn’t take the test?)

Here’s what the department says it could do to states that don’t get moving on this issue:

In addition, an SEA has a range of other enforcement actions at its disposal with respect to noncompliance by an LEA, including placing a condition on an LEA’s Title I, Part A grant or withholding an LEA’s Title I, Part A funds (see, e.g., section 440 of the General Education Provisions Act). If a State with participation rates below 95% in the 2014−2015 school year fails to assess at least 95% of its students on the statewide assessment in the 2015 − 2016 school year, ED will take one or more of the following actions: (1) withhold Title I , Part A State administrative funds ; (2) place the State’s Title I , Part A grant on high-risk status and direct the State to use a portion of its Title I State administrative funds to address low participation rates; or (3) withhold or redirect Title V I State assessment funds.

The language above mentions administration funds from Title 1, a federal program designed to provide extra funds to high-poverty schools, but some critics see the threat as affecting the entire program. A group called New York State Allies for Public Education, in a letter to the  New York State School Boards Association, said this:

Taking Title I money away from the neediest students in order to punish  parents who are boycotting a testing system that is out of control is not defensible. Any lawmaker or  policymaker taking this course of threatening action would be under extreme political fall-out from the  people they serve.

More than a dozen states got individual letters — many of them sent late last year — about participation rates for 2014-15 possibly falling below the 95 percent rate in their states, with the same warnings. Those states include Oregon, Rhode Island, Washington, Wisconsin, Delaware, North Carolina, Idaho, New York, Colorado, California, Connecticut, Maine and Illinois.

The nonprofit National Center for Fair and Open Testing,known as FairTest, recently issued a statement saying that parents can opt out of testing without fear that their school will be sanctioned in anyway. It says that none of the funding sanctions mentioned in the December memo would affect local schools, and it adds:

FairTest is not aware of a single state, school or district anywhere in the U.S. that the federal government penalized for failing to test enough of its students. To the contrary, six states (California, Oregon, Pennsylvania, Utah, Washington and Oregon) have laws specifically allowing parents to opt their children out. None has ever been sanctioned. Last year, DOE continued to do nothing when Oregon made it even easier for students to opt out.
Therefore, parents and educators should not fear that the federal government will financially penalize their schools if many students boycott standardized tests.
At the same time, the testing reform movement must be prepared to counter state proposals to punish districts or schools for low test participation. Already Delaware has threatened to drop a school’s rating if too many students opt out. On the other hand, Louisiana put a one-year moratorium on any consequences for schools with high test refusal rates. Local activists should push more states to make it clear that parents may opt their children out without penalties

Here’s the letter to the states, and following that is the letter from the Education Department to Colorado officials. Individual state letters are similar to that one.

Here’s one of the state letters: