Friday, February 28, 2014

DESE legal opinion: no parental opt out of testing

We received the following last night (I only have a hard copy, so I am posting photos. UPDATE: scanned here):

Posted without commentary
Ok, ok...since I was asked:
The legal opinion--which is not the same as a state law; it's just their lawyer's opinion of what the law says--is depending on Mass General Law chapter 69, section 1l, specifically on state testing, which says:
Section 1I. The board shall adopt a system for evaluating on an annual basis the performance of both public school districts and individual public schools... The board shall develop procedures for updating, improving or refining the assessment system.
There's nothing in there about requiring that updating or improving to involve all districts or all students (and, in fact, the PARCC pilot does not). The argument in the legal opinion essentially says that the Board is required to update assessments, and, since the Board needs a pilot, the students need to take it (see the penultimate paragraph).
What I find fascinating is that this legal opinion ignores what the state is actually doing with the PARCC pilot. Bluntly speaking, the state is conducting a research project regarding the efficacy of the PARCC test. They are attempting here to compel student to be part of that research study, something which is objectionable by all standards of research with which I am familiar. See, for example, Human Subject Rights put out by the National Institute of Justice.
They also are ignoring (I hope they aren't ignorant of) the case law at both the state and national levels regarding parental rights to direct the education of their children. Largely, these cases fall under the 14th Amendment; see, for example, Meyer vs Nebraska, often cited in cases regarding homeschooling, and Pierce vs. the Society of Sisters, with its oft-cited passage:
The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.
In short, the state has not dealt with the central question: what right does the state have here to compel students to take the pilot?
As always, all of the above is just my research pulled together.


Jarrod Gorman said...

It would appear to me that the "right" stems from the "state funds" clause. If one uses state funds, one would be subject to the state's guidelines. The "rights" argument could be applied to lunch, recess, or any other facet of the child's experience (eg, what right does the school have to limit my child's lunch period). Ultimately, the family buys into the educational system and trusts the management to do what is appropriate for their child. If the terms of the service are not acceptable, the family has the option to seek another provider.

Tracy Novick said...

That doesn't actually follow. One doesn't surrender rights to have one's child participate in research by virtue of sending the child to a public institution; moreover, the rights of what the state can require of families is, by case law, circumscribed.