PHOENIX — Parents of students in public schools have no legal right to withdraw their children from statewide standardized tests, Attorney General Mark Brnovich concluded Friday.
In a formal opinion, Brnovich acknowledged that state law does permit parents to exempt their children from certain learning materials and activities they find objectionable. That even includes keeping them out of a class or lesson where the material is being used or discussed.
Brnovich, in response to a question raised by state schools chief Diane Douglas, said standardized tests are “separate and distinct” from such materials or activities. Brnovich said nothing in the exemption law specifically includes a right to withdraw from standardized tests.
The attorney general also rejected Douglas’ suggestion that parents gained new rights in 2010 when the Legislature passed a “Parents Bill of Rights.”
That law, he said, details the obligation of local school boards to ensure they inform parents about their rights to opt out of certain assignments. It also includes the ability to refuse to have children immunized and the right to not have children taught about AIDS.
But nowhere in that law, Brnovich noted, did lawmakers include standardized testing.
“The Legislature’s failure to include such a right is especially telling because the statute specifically mentions the ‘right to review test results’ and the ‘right to receive a school report card,’ ” he wrote.
Yet Brnovich pointed out that even in amending the law in 2010 the Legislature did not see fit to include opting out of testing in that list. And he said that when lawmakers make an extensive list like this, it is presumed they know what is not on it.
Parents do have the right to direct the education of their children, Brnovich said. However, he said that involves whether to send a child to a public district or charter school, a private or parochial school, or to choose to school a child at home.
“It does not allow a parent who sends a child to a public school to prescribe the details of that child’s education,” Brnovich wrote.
Formal opinions of a state attorney general of the meaning of a state law are not the same as a court ruling. But they can be cited by parties who argue a case and provide a legal defense to schools that follow the ruling.
Friday’s opinion is a setback for Douglas who believes students are subject to too many standardized tests and actively supports allowing parents to opt out. At this point, the only remedy parents have is to simply keep their children home on test days.
The opinion likely comes as no surprise.
Brnovich pointed out that Grant Woods issued a similar opinion in 1997 when he was attorney general. And Douglas, in her multi-point platform for improving education unveiled earlier this month, specifically calls on lawmakers to enact specific opt-out provisions for parents that allow them to still send their children to school when tests are taking place.
Nothing in the formal opinion precludes lawmakers from putting a formal opt-out provision in state law. And Douglas spokeswoman Sally Stewart said her boss will seek a change in the law.
Rep. Chris Ackerley, R-Sahuarita, already is a step ahead of her.
Ackerley actually pushed such a measure through the state House earlier this year, only to have it die in the Senate. He is crafting a new version to be considered when the Legislature reconvenes in January, he said.
“My contention is the parents have the right to make what they think is in the best interest of their students,” Ackerley said. “And if they decide that they are not going to have their kids take the state-mandated assessment, they should have the right to do that.”
Ackerley acknowledged that one purpose behind the tests is to ensure that students have the skills they need. That includes a requirement that students be able to read at grade level in the third grade before they can be promoted.
But much of the renewed push-back against testing follows the decision by the state Board of Education to implement the AzMERIT tests, short for Arizona’s Measurement of Educational Readiness to Inform Teaching. These tests are linked to the Common Core academic standards that have generated opposition from some quarters as being an attempt by the federal government to dictate curriculum at local schools.
Ackerley said his legislation is not designed to undermine students having to prove what they know.
“It just simply says that they don’t have to take the state-mandated test,” Ackerley said. He said there are other ways for students to show they are proficient.
So what’s the harm?
“There are parents who are very concerned about the data collection that gets done on their student through that process and might want to opt out,” Ackerley explained. But he said the issues go beyond privacy.
He said some parents may be concerned that schools are too focused on tests and spend too much time preparing for them at the expense of other educational goals.
“They might simply say, ‘I’m not going to put my student through that, so I’m just simply not going to have my student take the AzMERIT test,’ ” Ackerley said.
One hurdle for allowing students to opt out is the federal Elementary and Secondary Education Act, a 1965 law that requires schools to test at least 95 percent of their students or face loss of certain federal aid. That fear was part of the reason the state Senate refused to approve Ackerley’s legislation last year.
But Ackerley pointed out that versions of legislation approved by both the U.S. House and Senate to reauthorize the 1965 law have language designed to remove that hurdle, specifically allowing state and local laws to let parents opt out of statewide academic assessments. There has, however, been no final action on the law.
