In 2015, 20 percent of parents in New York City opted out; this year’s numbers are not yet known. Parents who chose this course did not know if there would be personal consequences for their kids, but knew they were possible. Now, in some districts, they are finding out what they are.
Why would states and districts want to take action to stop the opt-out movement? The U.S. Education Department has been warning of possible sanctions if at least 95 percent of all students are not tested — a threshold set in federal K-12 education law, first in No Child Left Behind and now in its successor, the Every Student Succeeds Act. Last month, the department issued proposed rules that includes punitive options that states should take to ensure 95 percent student participation rate on federally required state-selected standardized tests.
In this post, Carol Burris, a former New York high school principal who is now executive director of the nonprofit Network for Public Education, writes about what is happening to some opt-out parents. Burris was named the 2010 Educator of the Year by the School Administrators Association of New York State, and in 2013, the same organization named her the New York State High School Principal of the Year. She has been chronicling botched school reform efforts in her state for years on this blog, and this is her newest piece.
By Carol Burris
Nearly half a million families across the country made the decision to opt their children out of Common Core state exams in 2015. As a result, most districts are scrambling to come up with ways to adjust their policies and processes when decisions about students are made on the basis of test scores. Sadly, some refuse to adjust and seek to punish opt-out students instead.
Recently, Florida opt-out parents accused their districts of retaliation by issuing threats of retaining young children, or excluding older students from early college programs. A California high school principal went so far as to deny opt-out students parking privileges, participation in senior activities and off campus passes.
Now it appears that one of the largest school districts in New York State, the Buffalo School District, has denied students entrance to its selective schools based on their parents decision to opt them out. But a small group of families and a member of the Buffalo Board of Education are pushing back.
Buffalo residents, Gretchen and Jim Cercone, are career educators. Gretchen is a middle school principal in a first-ring suburb of the city, and Jim is a professor of education. Staunch believers in public schools, they entered their two sons in the Buffalo Public Schools hoping that would be where they would remain through graduation.
Last year, the Cercones decided to join the more than 220,000 New York parents who refused to allow their children to take the New York State English Language Arts and math assessments. For the Cercones, it was a matter of conscience. They made that decision after exhausting all remedies—from writing letters to attending forums—hoping to convince the New York State Education Department to abandon the Grades 3-8 Common Core tests. As educators, they knew the tests were flawed, and they considered opting out to be the only way to be heard.
A few days before last year’s state assessments, they received a letter stating that a student’s admissions profile for the district’s selective schools could be “impacted” by a lack of Common Core scores. The Cercones decided to test the system to see whether the district was complying with New York State education law regarding the use of Common Core test scores by having their fifth grader apply to the city’s most competitive schools—Olmsted and City Honors.
What the family uncovered was startling. Not only were the state Common Core tests being used in a way they possibly violates the law, the district, without the passage of policy, had been quietly giving private school students access to the competitive schools without state test scores, even as opt-out students were shut out.
Admissions criteria for Buffalo’s most selective schools
The Buffalo School District has two highly selective Grades 5-12 schools — City Honors and The Frederick Law Olmsted School. Both are designed to meet the needs of gifted students. In a school system in which 67 percent of the students are black or Latino, these two highly selective schools have student bodies that are disproportionately white and Asian. Only 26 percent of the students at City Honors are black or Latino; at Olmsted the percentage is 58 percent. Standardized test scores, including the New York State Common Core exams, weigh heavily in deciding who can get in to the schools.
In 2014, the New York State Legislature, in response to questions regarding the validity of the exams, amended education law to protect students from the effects of the Common Core tests. The following amendment was passed:
“[N]o school district shall make any student promotion or placement decisions based solely or primarily on student performance on the state administered standardized English Language Arts and Mathematics assessments for grades three through eight. However, a school district may consider student performance on such state assessments provided that the school district uses multiple measures in addition to such assessments and that such assessments do not constitute the major factor in such determinations.” NYS Education Law, Section 305, subdivision 47.
The passage of the amendment was quickly followed by regulations issued by the Board of Regents that required districts to comply with the law, as well as to provide notice to parents regarding how 3-8 test scores would be used.
In a 2016 letter updating parents on the Common Core tests and the process for opting their students out, Buffalo Superintendent of Schools, Dr. Kriner Cash, explained that three schools — City Honors, The Frederick Law Olmsted School and Leonardo Da Vinci High School — would use state test scores as part of their admission process. You can read the superintendent’s notice to parents here. The relevant section is on Page 2. Cash stated that the lack of a score would “impact” the student’s ranking for admission, but then claimed that the lack of a score would not disqualify the student.
The problem with that last statement is that it is not true. Students are indeed disqualified if they do not take the Common Core tests.
The district website explains that in order to be admitted to The Frederick Law Olmsted School, students must have a score of 3 (proficiency) on the ELA and math tests. That statement itself makes scores on the state test a major factor, a clear violation of the amended law.
Further, how the score is factored into the admissions criteria results in student disqualification. That is because both City Honors and Olmsted assign a score of zero to students who do not take the test, therefore even with a perfect score on all other criteria, the best an opt-out students can do is to achieve 21 out of a possible 31 points, making it impossible for them to rank high enough to earn a seat at City Honors. On the Olmsted application, opt-out students can only earn 11 points out of 20, also an insufficient score.
Will Keresztes is chief of Intergovernmental Affairs, Planning & Community Engagement for the district. As such, he has been handling the complaints brought be the Cercone family and other parents.
He agreed to speak with me by telephone on May 26. During that conversation he admitted that the present system, intentionally or not, made it impossible for students who opted out to be admitted.
“It turns out to have the effect it is quite assured that those kids will not have a seat,” he said, stating that the only scenario in which they would not be disqualified is one in which “every applicant” opted out of the state tests.
What was even more remarkable, however, was his admission that the district has quietly allowed private school students, as well as students from other countries, into the competitive schools without state test scores. For these students the district either used another test, or simply doubled the students’ score on the entrance COGAT test — a request that was denied when opt-out parents suggested it as a solution. This was being done without policy or notice to public school parents.
The privilege afforded private school students
During a March 10 meeting, with the Cercones, Keresztes told them that private school students in the area were allowed to submit other standardized achievement test scores in lieu of the state tests—specifically mentioning the Standford Binet (which is an IQ test, not an achievement test) and the IOWA test. Although there is no evidence that scores on these tests are comparable with the Common Core scores, all tests are converted to stanine scores for student ranking purposes.
It was not until the board meeting of March 30 that Keresztes admitted that still another group of private school students were allowed to apply without any additional test score at all. In those cases, the COGAT score was doubled.
Barbara Nevergold is a former teacher and historian. She has served on the Buffalo Board of Education since 2012. Since December of 2015, she has repeatedly asked the district to create a fair policy to accommodate students in the admissions process if their parents opted them out of the state test. Cognizant of state law as well as the practices of other school districts, including New York City, Nevergold knew that other places made accommodations. On March 23, after three months of administrative evasion, she submitted a resolution to the Board to direct the staff to provide a recommended solution to resolve the problem. The resolution was tabled, and then later passed by the Board, when no progress was made.
Through her persistent questioning, it was discovered that 14 children who opted out would rank high enough for admission if their COGAT scores were doubled, like the private school students without achievement scores. Meanwhile, students continue to be moved into the competitive schools from wait lists, even as these opt-out students are denied.
For Nevergold, whose own granddaughter opted out, it has been an exercise in frustration. “We are still waiting for the promised recommendation from staff,” she said. “I keep asking to see the policy that allows private school students to be treated differently. No one can show it to me. This is even more remarkable given that we are under investigation from the Office of Civil Rights.”
A district appointed task force is recommending that state test scores not be used in the future for admission to the competitive schools. As yet, no remedy has been provided for the fourteen or more students who fell through the opt-out cracks. Article 78 of the New York Civil Practice Law allows citizens to seek judicial relief if a governmental body has acted in a manner that is arbitrary and capricious. Clearly the disparate practices of the district, absent policy, would make it easy to make such a claim.
What has occurred in Buffalo, a district in which the majority of students are of color and come from homes that are poor, would never happen in an affluent, suburban district. Stalling and dismissiveness would not be the way the problem is resolved. As a district administrator who wishes to remain unidentified told me, “We are engaging in a form of disenfranchisement that walks like punishment and talks like punishment.” I think that sums it up pretty well.
 The Office of Civil Rights is monitoring the district’s enrollment practices in some of its selective schools after a discrimination complaint was filed
 Despite the superintendent’s claim, Da Vinci does not use State test scores anymore in the admission’s process.