In December, the United States Department of Education’s Office of Elementary and Secondary Education sent a letter out to all “Chief State School Officers” (i.e., state superintendents) in order to “take this opportunity to remind you of key assessment requirements that exist under the Elementary and Secondary Education Act of 1965, as amended by the No Child Left Behind Act of 2001 (ESEA). These requirements will remain in place for the 2015-2016 school year, and similar requirements are included in the recently signed reauthorization of the ESEA, known as the Every Student Succeeds Act (ESSA).

One of Ohio’s State School Board Members, A. J. Wagner, decided to respond to the letter (as an individual, not in his official capacity) and posted his outstanding reply on Facebook.  We’ve decided to share both the letter from the USDoE and Retired Judge Wagner’s response here for a well-deserved wider audience.

The letter from the USDoE is posted first (click on the images to enlarge), followed by Wagner’s return letter.

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Ms. Ann Whalen
Senior Advisor to the Secretary of Education,
Delegated the Duties of the Assistant Secretary,
Office of Elementary and Secondary Education
United States Department of Education
Office of Elementary and Secondary Education
400 Maryland Ave., SW
Washington, DC 20202

Dear Ms. Whelan,

As a member of the State of Ohio Board of Education I seek your comment and advice. This letter is not written on behalf of the Ohio Department of Education or the State Board of Education, but individually as a person with an important interest in the laws and policies of United States Department of Education.

I have been made aware of your letter to the chief state school officers dated December 22, 2015. I find some of your language and some of the federal legal requirements conflicting. For instance, you demand adherence to the rule that 95% of students be tested for English and math from grades 3 to 12. Yet, the newly passed Every Student Succeeds Act (ESSA) gives states the authority to affirm parents’ right to opt their children out of tests.

In your letter you refer to the Administration’s Testing Action Plan. This plan requires tests to be:

1. Worth Taking: Testing should be a part of good instruction, not a departure from it. A good assessment is aligned to the content and skills a student is learning, and it requires the same kind of complex work students do in an effective classroom – or in the real world. Assessments should present useful information and questions that push students’ critical thinking skills, so that students gain valuable experience even while taking them. And assessments should provide timely, actionable feedback to students, parents, and educators that can be used to guide instruction and additional supports for students. They should also aid leaders’ decisions to target resources and supports. Assessment should happen only when necessary to accomplish those goals. No standardized test should ever be given solely for educator evaluation.

2. High Quality: High-quality assessment results in actionable, objective information about student knowledge and skills. Assessment systems should measure student knowledge and skills against state-developed college- and career-ready standards in a way that, as appropriate:

  • Covers the full range of the relevant state standards to ensure a full picture of what students know and can do;
  • Elicits complex student demonstrations or applications of knowledge and skills so that teachers and parents know that students are prepared for the real world;
  • Provides an accurate measure of student achievement for all students, including for high- and low-achieving students, so that all educators have the information they need to provide differentiated supports to students; and
  • Provides an accurate measure of student growth over time to recognize the progress that schools and educators are making to help students succeed.

3. Time-limited: While it is up to states and districts how to balance instructional time and the need for high-quality assessments, we recommend that states place a cap on the percentage of instructional time students spend taking required statewide standardized assessments to ensure that no child spends more than 2 percent of her classroom time taking these tests. Parents should receive formal notification if their child’s school exceeds this cap and an action plan should be publicly posted to describe the steps the state will take to review and eliminate unnecessary assessments, and come into compliance. States and school districts should carefully consider whether each assessment serves a unique, essential role in ensuring that students are learning.

Moreover, low-quality test preparation strategies must be eliminated. States, districts, and educators should eliminate “drill-and-kill” test prep that is a poor use of students’ and educators’ classroom time. Students do best on high-quality assessments that actually measure critical thinking and complex skills when they have been exposed to strong instruction, which should be the focus. Districts should take concrete steps to discourage and limit the amount of test preparation activities.

4. Fair – and Supportive of Fairness – in Equity in Educational Opportunity: Assessments should be fair, including providing fair measures of student learning for students with disabilities and English learners. Accessibility features and accommodations must level the playing field so tests accurately reflect what students really know and can do. The same assessments of subjects like reading, writing, science, and math should be given consistently statewide, so that teachers and leaders have a clear picture of which students are meeting expectations and which students need additional supports and interventions to succeed. Likewise, policymakers and educators need to know which schools are seeing success with all groups of students, and which schools are struggling and in need of different and greater supports. States and districts should also ensure that assessments are only used for the purposes for which they were intended and designed. Annual statewide tests are an essential part of guiding that support.

5. Fully Transparent to Students and Parents: States and districts should ensure that every parent gets understandable information about the assessments their students are taking, by providing information to parents on any tests students are required to take, including (1) the purpose, (2) the source of the requirement, (3) when the information about student performance is provided to parents and teachers, (4) how teachers, principals, and district officials use the information about student performance, and (5) how parents can use that information to help their child. Parents, educators and, as appropriate, students should also get the results of assessments in a timely and understandable manner, to have a shared understanding of how students are doing, and how educators and parents can help them succeed.

6. Just One of Multiple Measures: Assessments provide critical information about student learning, but no single assessment should ever be the sole factor in making an educational decision about a student, an educator, or a school. Information from sources such as school assignments, portfolios, and projects can help measure a student’s academic performance. In addition, factors including chronic absenteeism, student surveys, and indicators of discipline and school climate can help create a comprehensive understanding of students’ needs and how schools are doing. For educators, observations of practice, student surveys, and contributions to the school community can provide highly valuable information to ensure a comprehensive evaluation of performance, and to help educators strengthen their skills for the benefit of their students.

7. Tied to Improved Learning: While some tests are for accountability purposes only, the vast majority of assessments should be tools in a broader strategy to improve teaching and learning. In a well-designed testing strategy, assessment outcomes are not only used to identify what students know, but also inform and guide additional teaching, supports, or interventions that will help students master challenging material.
I have concerns about each section of these requirements which, I hope, you would address. So far, it seems the standard tests given by most of the states have failed in every one of these requirements. In Ohio we administered the PARCC assessments last year. We still don’t have the final results of those exams. This clearly violates Rule 1 above. Even if the results had been provided in a timely manner, there has been no preparation to instruct schools and teachers in how to interpret the results so as to implement changes in areas where they fall short. The tests are, therefore, useless. The only purpose for the tests, as I have been told, is for evaluation of teachers, principals, and school districts in order to motivate them into better performance. The move to the AIR Assessments in Ohio will not substantially improve on these problems.

You seek “High Quality” in Rule 2, but the tests in question have not been validated. Further, the standards being tested have not been validated by any scientific measurement that would show their effectiveness and ability to improve education.

The tests for which you require 95% participation and high quality have been used, in Ohio, almost exclusively to measure the success of teachers, principals, and school districts. At every step of this process, careers are on the line with the outcome of these tests. To suggest a cap on test preparation, as you have in Rule 3, is sound advice unless you’re the teacher, principal, or superintendent who will be evaluated by the result. To connect student performance to the careers of these professionals is a disservice to students and educators alike. Schools are not football teams that should be evaluated on win loss records with a team of chosen athletes. Schools don’t choose their students. They take them as they come and must do the best they can with them. Testing pressures prevent that from happening as the focus of the classroom moves away from instruction to tests. It also moves away from music, art, physical education and other aspects of a well-rounded education when all emphasis, for career preservation, must be placed on two subjects.

You address fairness in Rule 4 as it relates to children with physical disabilities and language barriers. But I must ask, how do these tests impact the poor? Poverty brings its own barriers to the classroom. Stress, hunger, poor health, emotional trauma, and lack of intellectual stimulation in the early years handicap most of our poorest children. To ask them to meet the standards of rigor is like asking a child with no legs to run the hundred in 5 seconds. You don’t even give them the prosthetics they need, the tools they need, to succeed. You only require standards they cannot meet while unvalidated tests discourage them from even trying.

As for Rule 5, we need your help. Because of the flaws described above I do not know how we can effectively communicate to parents how they can use this test. As it is, we give them the scores (which we do with our own nomenclature so as to hide the true meaning of them), give teachers the scores, and do so in an extremely untimely manner. The timing may be better this year, but if we honestly tell two-thirds of the parents in this state that your child is not on an acceptable trajectory for college or career, then what do we tell them to do? Buy them more books (if you can even afford them and know which books to buy), make them quit their jobs and crack down on the studying, remove them from sports and extracurricular activities? Please tell me what a parent is to do? Then tell me what a teacher is to do? We have no plan. Do you?

Of course “no single assessment should ever be the sole factor in making an educational decision about a student, an educator, or a school” as you point out in Rule 6. Yet, the standardized tests are the most important factors used in evaluating the student, teacher, and school. Your letter to the school chiefs, and your push for 95% adherence to testing is what makes it so. I don’t know of any teacher or school that doesn’t use multiple measures, but for their careers, only one measure seems to matter – these tests.

Rule 7 states, “While some tests are for accountability purposes only. . .” Does this not belie your requirement in Rule 1, “No standardized test should ever be given solely for educator evaluation?”

These are some of my concerns and questions. Now, more questions:

1. As it should be, parents have the right to opt their children out of any exam. Why would you punish states for the free choices made by their citizens?

2. Why are states not threatened for failure to give proven, high quality tests which comply with your directives noted above?

3. Why are you not addressing the needs of children in poverty in a more comprehensive way?

4. By evaluating those who teach impoverished kids based on their students’ ability to test we have come to a point where we do not have enough teachers to work in schools with high rates of poverty. I have seen and heard of excellent teachers who have moved to higher performing schools, not because they were bad teachers, but because they were good teachers constantly evaluated as being bad. Thus, many of our poorest schools cannot find teachers to fill urgent vacancies. How can we solve this dilemma?

5. Most opt outs are coming from districts that perform better on the assessments. Yet, you threaten to take away Title I monies that aid our most stressed districts. How is this fair?

Because your threats to the school chiefs were widely distributed, I will post this letter on social media as a response. Please do not interpret this as a lack of sincerity on my part. These are serious and important concerns and I hope to obtain answers that reflect the importance of our shared interest in our children.


A. J. Wagner


Now THAT is the type of leader we need to continue electing to defend our children.