ESSA (Every Student Succeeds Act)
The Every Student Succeeds Act (ESSA) was signed by President Obama on December 10, 2015. You can find information about ESSA on the U.S. Department of Education website HERE.
FairTest has written about Federal Law and Regulations on Opting Out Under ESSA and updated that information as recently as February, 2018.
The Every Student Succeeds Act (ESSA) requires that states assess 95% of all students, and 95% of each “subgroup” in every school with federally mandated annual state tests in English and math. It says that in calculating average school test scores, a school must include in the denominator the greater of either all test takers, or 95% of eligible test takers. If more than 5% of students are not tested, the lowest possible score will be assigned to non-test takers beyond 5%. This reduces the average score for such schools. In addition, ESSA says each state must, in its plan for ESSA implementation, “Provide a clear and understandable explanation of how the State will factor the requirement…into the statewide accountability system.”
Every state is required to submit accountability plans, explaining how they will comply with ESSA. The New York State ESSA Plan was approved on January 17th, 2018. You can view the details of the plan here.
The NY Plan addresses the "95% rule" beginning on page 84:
vii. Annual Measurement of Achievement (ESEA section 1111(c)(4)(E)(iii)): Describe how the State factors the requirement for 95 percent student participation in statewide mathematics and reading/language arts assessments into the statewide accountability system.
NYSED will factor the 95% participation rate requirement into the Academic Achievement Index, as described above. The NYSED will require districts and schools with a consistent pattern of testing fewer than 95% of students in their general population and/or 95% of their students in one or more specific subgroups to create a plan that will address low testing rates resulting directly or indirectly from actions taken by the school or district, which we are calling institutional exclusion, while recognizing the rights of parents and students. New York State plans to use an n-size of 40 for determining participation rate in order to ensure that the non-participation of two students does not result in a group of students failing to meet the 95% assessment participation rate requirement. The Department will provide guidance that identifies the minimum requirements of this plan, which will include an analysis of the cause for low participation and a list of potential mitigating actions that the school will seek to pursue in the following year. NYSED will also require districts that evidence exclusion to implement a corrective measure as part of a plan to be executed over the course of multiple years, such as the one listed below:
• Schools that persistently and substantially fail to meet the 95% participation requirement must conduct a participation rate self-assessment and develop a participation rate improvement plan. Schools that fail to meet the 95% participation requirement and that rank in the bottom 10% of participation across the State will be required to submit their self-assessment and participation rate improvement plan to NYSED for the Commissioner’s approval no less than three months prior to the next test administration period.
• Schools that implement a school improvement plan and do not improve their participation rate receive a district participation rate audit, and the district must develop an updated participation rate improvement plan for the school.
• Districts with schools that implement the district’s improvement plan and do not improve their participation rate must contract with a BOCES to conduct a participation rate audit and develop an updated participation rate improvement plan.
• Districts that have schools that implement the BOCES improvement plan and do not improve their participation rate may be required by the Department to undertake activities to raise student participation in State assessments.
What does this mean for opt out in New York State?
The language is clear (bold emphasis is ours):
The NYSED will require districts and schools with a consistent pattern of testing fewer than 95% of students in their general population and/or 95% of their students in one or more specific subgroups to create a plan that will address low testing rates resulting directly or indirectly from actions taken by the school or district, which we are calling institutional exclusion, while recognizing the rights of parents and students.
We believe that Congress understood very well the concept of systematic (institutional) exclusion and understood it requires 1) purposeful exclusion of only low-performing students, and/or 2) inadvertent lack of accommodations for students who need same.
NYS's approved Consolidated ESSA State Plan clearly articulates that steps must be taken by a school to address low participation if such low participation resulted from institutional exclusion.
Parents and students acting as private citizens knowingly exercising their rights to refuse the tests is not systematic (or institutional) exclusion. We have asked the NY State Education Department to provide, in writing, to detail how schools should record opt outs, recognizing the rights of parents and students, as noted in the plan.
More on accountability
ESSA requires states to use standardized test scores in accountability measures, but the specific details are set by the states. In this excerpt from the NY ESSA Plan performance indexes are explained (page 50):
Consistent with New York State’s long-term goals, New York State uses Performance Indices (PI) in English language arts, mathematics, and science at the elementary/middle school level and English language arts, mathematics, science, and social studies at the high school level and mathematics to measure academic achievement. A PI is calculated separately for each subject and then combined to create the ELA and Math Achievement Index.
The PI is based upon measures of proficiency on State assessments and gives schools “partial credit” for students who are partially proficient (Accountability Level 2), “full credit” for students who are proficient (Accountability Level 3), and “extra credit” for students who are advanced (Accountability Level 4). The PI will be a number between 0-250. In a school in which all students are proficient, the school would have an Index of 200. In a school in which half of the students were proficient and half of the students were partially proficient, the Index would be 150.
The PI formula can be found on page 52:
The Performance Index is computed two ways as follows: PI-1ELA and Math Performance Index = [(number of continuously enrolled tested students scoring at Level 2 + (Level 3 * 2) + (Level 4 * 2.5) ÷ the greater of the number of continuously enrolled tested students or 95% of continuously enrolled students] x 100
What does this mean?
You will notice that children who score a 1 are not counted in this formula's numerator, but they are counted in the formula's denominator. As a result, the as the number of children scoring at level 1 goes up, the school's performance index (PI) goes down. It is also important to note this part of the formula:
÷ the greater of the number of continuously enrolled tested students or 95% of continuously enrolled students]
What this means is that when more than 5% of students refuse these tests ("opt out") those students are counted in the denominator of the formula. If 15% of students opt out, %5 will not factor into the denominator, but 10% will. And like students who score a one, the 10% who opted out are not counted in the formula's numerator, but are in the formula's denominator. This means that students who opt out are mathematically equivalent to students who score a 1 in the performance index. (However, it does not mean that individual students receive a score of 1.)
You may also have heard that there is a second measure that may be used to measure a school's performance.