Despite the clear language of the law, some schools have denied parental opt out from accelerated instruction and placed kids into STAAR prep classes. After you have submitted your opt out, you must follow up if your child has been denied access to electives. For that reason, we’ve added a new follow up letter to get those electives back. This video below will walk you through the letter.
Tired of those school district letters saying “there is no opt out” for accelerated instruction under HB 4545? Me too. Because it’s not only a lie, it’s deliberate ignorance. A minute of reading makes it clear. They’ve got me ranting tonight.
When the Texas legislature imposed EOC graduation requirements on Texas students, they threw out a very important bone that Opt Out parents utilize to their advantage: the right to use substitute assessments to satisfy graduation requirements. This is a legislative determination and can’t be restricted by local schools or the TEA. The TEA is charged with making rules to determine qualifying assessments and scores and the process (consistent with the statute) to use them.
In fall 2019, the TEA proposed a rule that would have required a student to sit for and fail an EOC examination before using a substitute assessment to meet graduation requirements. Long story short, the rule was an ill advised attempt to address the federal Dept. of Education decision to no longer accept substitute assessments as meeting the federal assessment requirements. Of course, this has nothing to do with graduation, but the TEA thought by requiring the EOC before approving a substitute assessment for graduation, they would increase EOC participation.
We immediately fought back against the rule, because it dangerously conflated federal accountability requirements (that have never been tied to state graduation policies) with our own state law graduation requirements which expressly allow the use of substitute assessments. Based on TPERN’s call to action, parents, teachers and other activists flooded the TEA with comments against the rule. Most obviously, we pointed out that there is no need to restrict graduation access based on EOC attempts just to meet federal accountability. The proposed rule already said that a student who uses a sub assessment to graduate must still take the EOC for accountability purposes. There was no need to add a hammer by saying “and if you don’t you can’t graduate.”
When this was announced, we were up against the wall. The TEA had already started telling districts that this would be the rule and training them to enforce it. We immediately told parents to submit all qualifying sub assessment scores before the rule went into effect. That drove the districts crazy. They actually thought they could deny complying with the current law on the basis that it would change in the future. It was like talking to children who had never taken a civics class. We wrote nasty letters. We ended up getting school district lawyers writing us letters telling us not to contact their counselors! We responded of course that their counselors should not give false information if they did not want to be contacted. It was a done deal we were told over and over. But the letters our members sent got their attention.
A public hearing was held and several parents testified making these same points. Nobody showed up to defend the test first requirement. And when the new rule was published, the TEA agreed with us! They struck the language from the rule that said a student must attempt the EOC before being eligible to use a substitute assessment to meet graduation requirements.
Note where this language appears. This is the section of Commissioner’s Rule 100.4002, which sets out when a student is eligible to use a substitute assessment to satisfy EOC graduation requirements. They removed the language that says the student had to take the EOC at least once to be eligible. That’s gone. And no other language anywhere in the rule is tied to eligibility to use the sub assessment to satisfy graduation requirements. Everything else has to do with federal accountability, which is completely unrelated to state level graduation requirements. The rule on eligibility is unchanged from prior years.
(Source: http://ritter.tea.state.tx.us/rules/tac/chapter101/ch101dd.html)
The removal of the prior attempt requirement was no mistake. The TEA recognized that they could simply ask sub assessment students to take the EOC for accountability reasons only regardless of the acceptance of the sub assessment for graduation purposes. They explicitly agreed that there was no need to add a prior attempt requirement when a different part of the rule (related to accountability not graduation) provided a means to assess students who have already met their graduation requirements by substitute assessment.
Source: https://tea.texas.gov/sites/default/files/20_02_101-4002.pdf
Not clear enough? In the section titled Reasoned Justification, this same adoption document is explicit:
The subsection that would have “require[d] students to take an EOC assessment . . . prior to being eligible to use a substitute assessment to meet graduation purposes” was “removed at adoption” because it was “not needed.” Simple enough, right? The TEA agreed with the parents, dropped the rule change and told the schools to handle accountability on the back end by giving the EOC to everyone, but that using substitute assessment for graduation was pretty much unchanged. What could be difficult about that?
Well as it turns out, almost everything. Because the TEA had spent much of the fall preparing districts for the new requirements (you know, the ones that were removed), the districts simply did not believe they had really gone away. Almost immediately, they began to deny acceptance of substitute assessments on the baseless ground that the student had to first sit for the EOC.
This situation was aggravated by the fact that the TEA failed to update it’s slide show on the new rule even after the amendments were made. We pointed that out to the TEA and they corrected that omission.
Note what is also clearly stated in this email. “[S]tudents are NOT required to take a STAAR EOC assessment prior to using a substitute assessment to fulfill graduation requirements. That requirement was removed from the rule during rulemaking.” This clear statement expresses precisely what happened with the rule and the current state. Unfortunately, this kind of clear information is foreign to the TEA in its official communications.
Schools continued to insist that the proposed, rejected and outdated version of the rule was in force. There never was any such rule, there was only a failed proposal.
To address this, the TEA issued a “clarification” to the schools. While the clarification accurately states that “Based on public comment, the proposed requirement to take an EOC assessment prior to using a substitute assessment for graduation purposes was removed,” it does not state the obvious corollary: “students are NOT required to take a STAAR EOC assessment prior to using a substitute assessment to fulfill graduation requirements.” So many schools continued to insist that such a requirement existed. Some even said “still” existed, though no such requirement ever existed before, during or after rulemaking. It was proposed; it was rejected; it doesn’t exist and never did exist.
So the confusion continued. Just days after the clarification, we see this:
Again, a lack of clear direction led to an inability of the district to understand that graduation purposes and accountability requirements are decoupled. They always have been in Texas. They never were linked. They just both used the same assessments to get to their end points. To her credit, Julie Cole at the TEA has been absolutely clear with districts that using substitute assessments for graduation is not related to taking the EOC for accountability. But still, the misinformation continues:
Why do schools continue to mislead parents about substitute assessment requirements? On the one hand, a large amount of blame lies with the TEA for training schools on a proposed rule that was ultimately not adopted. When the rule was actually adopted without the proposed change, there was no fireworks show on a level of the initial rollout to alert schools to the actual form of the adopted rule. So many just continued to use the process that was presented in the initial training. A clarification that did not use the same clear language that the TEA uses in emails did not help. However, at the same time, there is some amount of willful ignorance at play. Schools have always made claims about “requirements” and absolutes of STAAR if they felt it would motivate students to participate and try hard. Telling them they have to attempt STAAR first is just another instance of this. Some district even overtly lie and throw this nonexistent requirement onto their website. I’m looking at you Katy ISD – an embarrassment of a district that has been wedded to data obsession since the pathetic tenure of TEA-sycophant, Dr. Allison Matney. I’m looking at you Pine Tree ISD – spreading false information 9 months after the TEA clarification! And I am especially looking at you Round Rock ISD – for telling your parents and students the precise opposite of what the law and the TEA says. This deserves a special view:
RRISD Website: 
TEA Clarification:
Julie Cole’s Clear Language:
If a district has any doubts, ask Julie and she will tell them straight:
So how and why do sophisticated districts continue to get it wrong? Why am I so hard on RRISD especially? Because they prove my point that this isn’t confusion or innocent error. This is deliberate misinformation. Over the course of two years, I brought this error to the attention of the General Counsel of the Round Rock ISD after she had “forbidden” me from contacting their counselors directly. On the phone she acknowledged the effect of the rulemaking, but she steadfastly refused to do so in writing or to make any effort to change the misinformation on the district website. In fact, she never even responded to this March 2021 email – over a year after the TEA clarified its position and she and I had a verbal agreement on the matter.
So, no, schools don’t innocently get this wrong. Not after two years and numerous corrections. The lies are deliberate and they are designed to do one thing: prevent parents and students from exercising their statutory rights to use substitute assessments to meet graduation requirements. If your district does this please report it to us and to Julie Cole at the TEA.
What do we propose that parents do when they have a qualifying substitute assessment score?
This is a tough time for Opt Out parents because the assessment is happening and there is a lot of pushback. When complaints come, the natural response is to blame the TEA or the legislature. But is that fair? Is that accurate? Everybody here understands that the TEA tells schools how to administer the assessment and to score refused assessments. Everyone here understands how promotion and graduation work. What people fail to acknowledge is that, apart from that, schools and districts have wide latitude in how they choose to respond to parents who refuse assessment and the actual experience of the students. There are many things I have seen excused as TEA “requirements” that just aren’t.
NOBODY requires schools to lie to parents about consequences.
NOBODY requires schools to benchmark, practice assess and otherwise do full or mini-assessments as prep for STAAR multiple times a semester.
NOBODY requires schools to try to impose tutoring and other test prep before, during or after school hours based on their local benchmarks.
NOBODY requires schools to go beyond the instructions and add restrictions on to the students (like requiring them to sit for four hours after finishing/refusing assessment).
NOBODY requires schools to threaten retention
NOBODY requires schools to pretend passing STAAR is the only way to get promoted to the next grade.
NOBODY requires schools to not check if substitute assessments have already satisfied some EOC requirements.
NOBODY requires schools to try to bully A/B students into summer school (I mean test prep) because they didn’t take STAAR.
NOBODY requires principals to try to intimidate parents into submitting their kids for assessment.
NOBODY requires schools to wait until August to promote kids by GPC if they refused STAAR.
NOBODY requires schools to harass parents of kids who aren’t at school on STAAR day.
NOBODY requires teachers to tell students they their jobs depend on how the student does on STAAR.
NOBODY requires schools to lock down the building and ban visitors on STAAR days.
NOBODY requires schools to tell students they can’t talk to their parents about STAAR.
NOBODY requires students to eat sack lunches at their desk on STAAR days.
NOBODY requires schools to keep non-testing kids inside and ban recess on STAAR days.
and
NOBODY requires schools to offer even a single make up day for STAAR, much less a two week window!!!
These are all local decisions and it is not off limits to talk about. We opt out because we want you to have the freedom to teach. But we expect local districts to do what they can (and that’s a lot) to make sure that it does not make the STAAR environment worse than it already is. If your school or district is doing any of those things, and you try to blame the TEA for it, then you are going to get pushback here, because it’s false information.
This is a tough time for Opt Out parents because the assessment is happening and there is a lot of pushback at the school level. Sadly, this year more than ever it seems a number of school district employees have entered the TTAAS Facebook group intent on excusing every complaint a parent has. WRONG strategy this week. Just empathize. Empathize and don’t deflect. Everybody here understands that the TEA tells schools how to administer the assessment and to score refused assessments. Everyone here understands how promotion and graduation work. What people fail to acknowledge is that, apart from that, schools have wide latitude in how they choose to respond to parents who refuse assessment. If a parent complaint hurts and you respond by blaming the TEA for a local decision, I (and likely others) am going to challenge you. In the same vein, when a parent blames a school for a TEA mandate, we are quick to correct them as well. But there are many things I have seemed excused as TEA “requirements” that just aren’t.
NOBODY requires schools to lie to parents about consequences.
NOBODY requires schools to go beyond the instructions and add restrictions on to the students,
NOBODY requires schools to threaten retention
NOBODY requires schools to pretend passing STAAR is the only way to get promoted to the next grade.
NOBODY requires schools to not check if substitute assessments have already satisfied some EOC requirements.
NOBODY requires schools to try to bully A/B students into summer school (I mean test prep) because they didn’t take STAAR.
NOBODY requires principals to try to intimidate parents into submitting their kids for assessment.
NOBODY requires schools to wait until August to promote kids by GPC is they refused STAAR.
NOBODY requires schools to harass parents of kids who aren’t at school on STAAR day.
NOBODY requires teachers to tell students they their jobs depend on how the student does on STAAR.
NOBODY requires schools to lock down the building and ban visitors on STAAR days.
NOBODY requires schools to hold students who have finished their STAAR in the classroom until the end of the entire testing time.
NOBODY requires schools to tell students they can’t talk to their parents about STAAR.
NOBODY requires students to eat sack lunches at their desk on STAAR days.
These are all local decisions, and if you think it is off limits to talk about that, we are not on the same side at all. If your school or district is doing any of those things, and you try to blame the TEA for it, then you are going to get pushback here, because it’s false information. If your distrct makes bad local decisions, CHANGE them. If you think they are correct, OWN them. Don’t push the blame onto the TEA for local decisions. We have plenty of things to blame the TEA for without getting into things they haven’t done.
For readers of TPERN articles, you will recognize the name Walsh, Anderson. Walsh, Anderson (now known as Walsh Gallego) is one of the largest (and arguably the most prestigious) education law firms in Texas. They represent school districts across the state through multiple offices, speak at almost every school conference, and regularly provide guidance to school districts on difficult legal issues. During the summer of 2014, after schools dealt with the first big wave of opt outs, Walsh, Anderson put together an “Opt Out Course for Schools.” which included a legal paper that contained various legal arguments against opting out. Those same arguments now appear almost word for word in many letters districts send to intimidate parents. They include the thoroughly discredited claim that the Attorney General has ruled that an assessment and a test are the same thing (it hasn’t). When we posted the Walsh, Anderson handout that a school sent us, Walsh, Anderson made a copyright claim and demanded we take it down, even though schools post it all over the internet. Notwithstanding the work Walsh, Anderson has done to arm schools with legal arguments to intimidate parents, we have always found them to be reasonable in working with parents to craft solutions that enable parents to make good educational decisions for their kids and allow the schools to meet their requirements under the state law. And this is what good lawyers do: they help their clients find a way to do what they want to do.
Which raises the question: when a school decides to actively oppose Opt Out parents, is this something they do because the law requires them to, or is it a policy choice the school is making? Because, quite often, schools will say the law requires them to take these stances. That, of course, is nonsense. We’ve always asserted that if a school district wishes to respect parental rights in the Opt Out process, a good lawyer can arm them with many tools to do exactly that while also protecting the school against allegations that it has not followed the TEA rules. And knowing that the people at Walsh, Anderson are good and creative lawyers, our logical conclusion is that opposing parents is a local policy decision — not a result of the legal obligations of schools.
This conclusion was confirmed when we discovered an October 2014 “advice column” written by two Walsh, Anderson lawyers for the Texas Association of Secondary School Principals. So that you understand this is coming from school lawyers and not TPERN, here is the intro biography to the column:
A principal wrote to the lawyers asking whether the school was required to report Opt Out absences as unexcused absences. The Walsh, Anderson shareholder who responded not only gave the principal a route to excuse the absences, she also decided to explain opting out to other readers who may not have experienced it yet:
There you have it, in one simple sentence. Putting everything else aside, the school lawyers know what TPERN and Opt Out parents state-wide have been saying for years: parents “technically” can opt out of STAAR. But to take it a step further, schools can choose to excuse those absences! Principals have wide discretion to decide what is an excused absence and what is not. If a principal chooses to respect the rights of parents, he may mark STAAR opt out days as excused absences.
This column puts a school’s decision to fight opt out parents in a stark light. Parents can opt out. Schools can excuse the absences. The decision to fight, intimidate and threaten does not come from the TEA. It does not come from the school’s lawyers. It is a local, policy decision. A school’s hands are not tied. They have a lot of discretion on how they treat parents. It’s time to demand from your local school administration and trustees that schools respect parental decision-making. In the meantime, if you get any blow-back from schools telling you that parents can’t opt out, just print out the column and give it to them with the note that according to Texas’s top school lawyers, you can.
In a decision that surprises absolutely nobody, the Texas Education Agency has announced that it will ignore the recent changes to STAAR assessment imposed by the 84th Legislature. In HB 743, the legislature required that assessments be shortened, that they occur only over the course of one day, and that they be independently validated. This bill passed overwhelmingly and is in effect. For this school year, all assessments must comply with the law.
However, the TEA has announced that it will not follow the law this year. It has stated it will not administer shortened assessments until 2017 and that it will “decide” whether its current process of internal assessment review is an “independent” validation. Clearly, if the legislature felt the assessment instruments were currently being validated, there would be no need for the law. This is just wishful, if not willful, misconduct by the TEA.
For parents, however, there are significant ramifications. The TEA intends to subject your children to assessments that do not comply with the law and to permit schools to use these illegal assessments to promote or retain your children. The clearest impact is in grades 3-5. In our Forms and Documents section you will find a link to a new refusal letter based on the illegality of the assessments. Please also consider signing the petition below!
Petition to Require TEA to Follow the Law
TPERN also urges all parents to contact their local state representative and senator and demand hearings regarding the TEA’s belief that it is above the law. The irony of an agency that tells parents that the law requires them to take the STAAR (when it doesn’t) deciding it can ignore the law whenever it likes, is too outrageous for words. The leadership of this rogue agency must be called to account.
Update: We have been asked about documentation of the TEA’s position. This is derived from the TEA’s Legislative Briefing Book, contained on their website, and linked herein. The discussion of HB 743 begins on numbered page 80. Discussing the STAAR assessments for Grades 3-5 the TEA states “The grades 3-5 assessments in reading and mathematics cannot be revised in time for the spring 2016 administration. The first administration of the shortened assessments would occur in spring 2017.” A similar statement exists for the writing assessments. Discussing the possibility that they do not need to independently validate the assessment, the TEA states “Prior to the spring 2016 administration, the agency must determine whether the TTAC, or USDE peer review process to approve state achievement standards and assessment systems required under Title I, meets the requirements of (a-11). If not, an independent entity will need to be contracted with to perform the evaluation pending available funding.” They also complain there is no appropriation for this, indicating that they may choose to ignore the requirement because funds were not EXPRESSLY appropriated for the purpose.
Update 2: It has been pointed out that the TEA apparently back-tracked on writing assessments and will limit them to one day. However, the will not fit within the time parameters set by the legislature, so they are still not in compliance. This information is found here.
Update 3: TEA lies and refusal continue. Under pressure from the legislature and parent groups, they have now announced they will remove the field test questions from the assessments this spring. While that will shorten the assessments by five to eight questions, it will not get them under two hours for grades 3-5 as required by law. This is not a “victory” as some parents are claiming and as the press is reporting. It is continued violation of the law by the TEA.
On December 19, 2014, the TEA published a proposed amendment to 19 TAC §101.3041, dealing with STAAR performance standards. This proposed rule ostensibly provides for the publication of percentile ranks on the STAAR, theoretically making comparison between test takers easier. (TPERN believes that the purpose of an academic readiness assessment is to determine readiness of the individual student, not to provide for comparisons to other students). However, the rule is confusing and raises the possibility that the published information could be misused by school districts in making promotion and retention decisions. Moreover, the TEA found it necessary to publish a proposed formula for converting all STAAR scores to a 1-100 scale. While the current formula is simply a restatement of what a percentile is, the inclusion of the formula leaves the conversion method open to amendment. The formula could later be altered to create a “grade” that is percentile based, but not the actual percentile rank. We think this is an improper use of an assessment instrument, and the rule should prohibit local districts from using the 1 – 100 percentile based score as a part of grades or promotion or retention decisions. For that reason, TPERN has submitted a public comment in opposition to the rule urging various revisions before the rule is adopted.
Public comment on this proposed rule is open until January 20, 2015. Comments may be mailed to rules@tea.state.tx.us
To view the TPERN submitted comment, click Read More
On June 27, 2014, Kyle and Jennifer Massey did something that the Texas Education Agency and local school districts had spent years denying was possible: they reviewed the STAAR assessment booklet and answer sheet that was administered to their child. Previous requests by parents had been met with denials that ranged from “that’s not possible” to “that’s illegal.” However, the Texas Education Code is very clear on this issue: “a parent is entitled to access to a copy of each state assessment instrument administered under Section 39.023 to the parent’s child.” (Sec. 26.005). With four volunteers, the law firm of Arnold & Placek set out to see what would happen when parents decided to stop taking no for an answer and demand the legal rights the Texas legislature granted to them. The answer came today: parents do have a right to review their child’s test booklet and answer sheet. They are not confined to the unhelpful summary data on the STAAR scoring reports. This right of access is the first step in ending the secrecy and almost mystical air that surrounds the STAAR tests. Teachers are threatened with criminal charges or loss of their teaching certifications if they dare to even ask their students what problems were difficult for them. But parents still have a voice. We are not required to sit back and accept that it is not possible to know the content of the assessment that our state legislators have dictated will control our children’s futures. The Texas Parents’ Educational Rights Network encourages all Texas parents to request and review the STAAR assessments administered to their children. This guide will tell you how to do it.
We have recently been made aware of a document published by the TEA that implies that 5th and 8th graders who do not pass STAAR reading and mathematics exams cannot be promoted. This piece of test propaganda completely omits the promotion process created by law by the Texas Legislature, that permits a Grade Placement Committee to make an individualized promotion decision on any child who has not taken or passed the STAAR reading or mathematics examination. This omission is clearly designed to pressure parents into assenting to STAAR testing that they may feel unnecessary or detrimental to the education of their children. We call upon the Texas Education Agency to withdraw this document from public use and include factual information on promotion paths on any future publications.
