The 95% Saga (Updated 3/21)

I consider myself pretty average when it comes to my ability to find information.  So, if I can't find something easily, then I figure the average person can't find it either.

Recently, I hear more and more buzz about exactly what the consequences are if a district doesn't make the expected 95% participation rate for MEA.  I'm not the only one who can't seem to find an answer.

So, I asked the place most likely to have an answer: The Maine Department of Education.  February 12th, I asked: Can you please explain for me the effect on Title I funding for the following situations: 1) A district chooses to refuse to administer the MEA exam and 2) A district fails to meet expected participation for the MEA exam.  (I asked question 1 at that time because there was a little talk of Lewiston not administering the exam if we could not get paper tests due to the technology problems, but that issue was solved and refusing the exam for the district was quickly dropped). 

February 17th, Samantha Warren wrote me back. Most of her response was about the benefits of the test data.  Then, she said the following:

"If the district chose to not participate in the state assessment (which I don’t think a district in Maine has ever done), more detrimental than potentially losing some or all of those federal funds would be the loss of the valid and reliable results that come from the assessment that allow us to hold our schools accountable and give them the information they need to improve the way they are supporting each and every student achieve their full potential." 

However, I did not find Ms Warren's response helpful.  She simply reiterated what I already knew -- that there was potential for "losing some or all of those federal funds."  That's simply not a good enough answer.

So, I wrote back saying:
"You did not answer my questions.  I understand the department's point of view and disagree. I know very few educators or parents who believe standardized assessments are a better way to collect that than teachers just doing their jobs. However, when a parent or teacher who agrees with me philosophically asks me the consequences, I want to direct them to clear factual information about the consequences so they can make the best choice for their family.  Parents can't do that without the facts.  This information should be readily available for anyone.  So again, can you please explain for me the effect on Title I funding for the following situations: 1) A district chooses to refuse to administer the MEA exam  and 2) A district fails to meet expected participation for the MEA exam."

To this, Ms Warren replied:

"I do believe I answered your questions. You asked about the consequences of opting out, and I explained them. In terms of specific financial consequences, that’s not a question Maine DOE can necessarily answer.

As I’ve said publicly, I don’t speak for U.S. DOE but the Maine DOE does not intend to punish schools if they don’t reach 95 percent in this inaugural year of the new assessment if it is clear that A.) it is a result of parents exercising their rights to opt their child out; B.) that efforts were made by the district to educate parents and the public about the benefits of the assessment; and C.) that all students were given the opportunity to participate."


I thanked Ms Warren because this gave a clear answer about what Mainers can expect from the Maine DOE in regards to opt outs, which Ms Warren knew was the reason I was asking about not meeting participation rates.  On March 5th, I request from Ms Warren a public source that shares this information and ask how this information was shared with superintendents.  She promptly sent this:

"Hope you are well. This is something we’ve communicated in multiple ways to schools, including in our email to them several weeks ago in which we said we would not be issuing A-F grades this year, at the annual superintendents conference back in January, etc.  Specifically, when school leaders email me about the consequences of not reaching the 95 percent requirement under state and federal law, I tell them:

As the Department has repeatedly tried to stress to the field, we understand this move to a new online assessment is a major transition for schools and families and that this year sets a benchmark from which to build from in future years. As a result, we are not issuing A-F grades in 2015 and have been clear we do not intend for any State-initiated penalties for schools that don’t reach 95 percent this year if it is clear that A.) it is a result of parents exercising their rights to opt their child out; B.) that efforts were made by the school/district to educate parents and the public about the benefits of the assessment; and C.) that all students were given the opportunity to participate. We have been in touch with U.S. DOE which has historically held strong to the 95 percent expectation to see what consequences they may impose on Maine and its schools but have not gotten a response. However, we will do everything in our power to advocate that Maine schools not be penalized in this first year of testing because parents did what they are legally allowed to do.

Hope that gives you what you need. You can reference me as the spokesperson for the agency."While this email doesn't give a public source for the 95% information, it did explain how districts were informed.  I believe that this priority notice may be the email she was referring to, and it is one place where the A-F report card grades are explained.  This Portland Press Herald article ran the same day, and it contains this near the end: Although officials acknowledge that parents already have the right to opt out, the No Child Left Behind law requires schools to test at least 95 percent of students each year, so if too many opt out, the school could be considered a failing school even if test scores are high.

With my answer from the Maine DOE, I now need to ask the US DOE about their consequences.

On February, 19th I email Susan Wilhem of the US DOE with my request for information.  I ask specifically:
"Recently, I contacted my state DOE inquiring about specific consequences for test participation.  I was assured that other than the loss of useful data, there were no consequences at the state level. 
I am now asking at the federal level what the consequences would be for Maine.  Can you please explain explicitly the effect on Title I funding for the following situations:
1) A district chooses to refuse to administer the MEA (Smarter Balanced) exam,
2) A district fails to meet expected participation for the MEA exam, and
3) Maine as a whole fails to meet participation expectations.
I am unsure if you are the proper recipient for this inquiry.  If not, please help direct me to the correct person(s).  I know this information exists and believe the difficulty at locating it hinders parents' ability to best serve their children." 

Ultimately, Emily Bank is charged with responding to my email.  On February 20th, Ms Bank writes me.  Her two paragraph reply is dense with legalese and does not actually answer my question.  Here is what she said:

Thank you for your email regarding consequences for test participation.  Susan Wilhelm referred the question to me, and I am happy to respond. 

Section 1111(b)(3)(A) of the Elementary and Secondary Education Act requires each SEA to have a set of high-quality, yearly student academic assessments for reading/language arts and mathematics in grades 3-8 and once in high school and for science once each in grades 3-5, 6-8, and 10-12.  State educational agencies (SEAs) and Local educational agencies (LEAs) must provide for the participation of all students on the assessments (ESEA Section 1111(b)(3)(C)(ix)(I)) so that they can identify the learning progress of all students against the same high expectations, regardless of a student’s race, ethnicity, socioeconomic status, or neighborhood.  This requirement does not permit certain students or a specific percentage of students to be excluded from assessments.  Rather, it sets out the rule that all students in the tested grades must be assessed, although ESEA Section 1111(b)(2)(I)(i) permits an LEA or school to make Adequate Yearly Progress as long as it assesses at least 95% of its students.

In applying for funds under Title I, Part A of the ESEA, the SEA assured that it would administer the Title I, Part A program in accordance with all applicable statutes and regulations (ESEA Section 9304(a)(1)).  Similarly, each LEA that receives Title I, Part A funds assured that it would administer its Title I, Part A program in accordance with all applicable statutes and regulations (ESEA Section 9306(a)(1)).  If an SEA does not ensure that all students are assessed, the U.S. Department of Education has a range of enforcement actions it can take.  The SEA has similar enforcement actions with respect to an LEA that does not ensure that all students participate in the state assessments, including withholding the LEA’s Title I, Part A funds.  Also, SEAs with approved ESEA flexibility plans, like the Maine Department of Education, have included specific consequences in their accountability systems for any school that misses participation rate and must implement this component of their accountability systems with fidelity.    

I hope this response is helpful to you, please let me know if you have further questions.
Ms Bank either BCC's or forwards the message to someone at the Maine DOE.

I'm frustrated by this response.  It is intimidating for the average person, and after I've read it through a few times, I still feel I don't have an answer.  So, February 21st, I reply to Ms Bank asking for more information.  Today is March 5th, and I have not received a reply from Ms Bank despite her comment to let her know if I have further questions. 

Ms Bank's reply does lead me to ask Ms Warren the following on February 21st:
"I have had brief correspondence with the US DOE.  This has lead me to discover the information I seek is the consequences included in Maine's accountability system for schools that miss participation rates.  The US DOE said that Maine has an approved ESEA flexibility plan and that this information would have been in that plan.  Are you able to provide this information?  If not, who should I contact?  While a link will suffice, a summary of that information not in legalese would be extremely helpful for me to share the information accurately with members of my community."

She responds back with this email:

"Yes, I saw the letter US DOE shared with you. The waiver language and the accountability system it outlines is (in my opinion) not written in plain language as the audience is US DOE. That’s in fact why we developed our own accountability system, via A-F grades. You can read the waiver application here: http://maine.gov/doe/accountability/.

One thing to note is that our current waiver expires this summer, and we are currently applying for the next one and seeking feedback, which you may want to share: http://maine.gov/doe/accountability/renewal/index.html. Additionally, the ESEA reauthorization is currently being debated in Congress, so the new iteration may look very different, which is why I suggested to you US DOE needed to explain the federal consequences."
I look at the materials available under her first link. This link in particular gives a little bit of information about how schools are categorized and what happens at each category.  I do learn about interventions and consequences for Title I funding for Priority and Focus schools from the notes at the bottom of this chart, but no specifics are given about how participation rates relate to the determination of these labels even though participation is mentioned.  I have seen discussion of lower than 95% participation resulting in a lowering of one letter grade and below 90% participation resulting in an automatic F, but I do not have sources for that information at present. 

Sunday, February 22nd, I wake to find I've been CC'ed on an email from Acting Education Commissioner Tom Desjardin to Ms Bank.  Here is that email:
"Recently a constituent of ours here in Maine raised very specific and serious questions that are the topic of concern across the U.S. due to the widespread shift to new forms of assessment and the natural confusion and fear of the unknown that accompanies such change.

Buried in your response to her is the statement that “the U.S. Department of Education has a range of enforcement actions it can take.” This is the closest you came to answering her questions and I think we can all agree, it is not an answer at all.

I am sure that if you had made this request and were the recipient of such a response, you would have naturally asked yourself, “such as?” and perhaps added a few mental notes about the poor manner in which your government’s public servants replied to your genuine questions.

If a member of our staff here in Maine had given such a non-answer to legitimate questions, stemming from a real concern raised by a citizen that we serve, I would soon after have a very substantive conversation with them about their job performance.

On behalf of Ms. Boyd, I would like to ask that you consider providing her, and the DOE staff here in Maine, a more complete answer so that we may clearly understand the position of our Department of Education."

Between February 26th and March 3rd, I write Ms Bank twice reminding her of my request, and Mr Desjardin's.  I explain to her that the information I am requesting is time sensitive, that parents deserve transparency to make the best choices, and that its unprofessional to ignore me.   On March 1st, Mr Desjardin asks me if I have heard from Ms Bank.  When I reply I have not, I later in the day get CCed when  Mr Desjardin writes to Deborah Delisle of the US DOE regarding the matter.  March 4th, I compose this letter published on this blog and I email and tweet it to Angus King, Susan Collins, Bruce Poliquin, and Chellie Pingree.  As of now, evening of March 5th, I have had no reply from any of them.

However, first thing this morning (March 5th), Mr Desjardin forwarded the following to me:

"Thank you for your message and for taking the time to outline your concerns. My name is Dr. Carol O’Donnell, and I am the group leader for Maine. I am responding to previous communications that you have sent to my staff member, Ms. Emily Bank.

As indicated below, a response was provided to Ms. Boyd on February 20, 2015. Many of the initial and follow-up questions and their related consequences are specific policies and actions that the Maine Department of Education would take, and therefore are probably best suited for your team to answer and address. In support of helping to further clarify this matter, you may find of value the information contained in this letter, posted to our website, which addresses similar issues:

http://www2.ed.gov/policy/elsec/guid/stateletters/aksar232015ltr.pdf

Please let me know if there is additional information we can provide to you."

When I see this, I'm still rushing around getting my daughter ready for the bus, so I quickly shoot an email back saying that the letter is for Alaska and that Dr O'Donnell's comment that the control lies with the state leads me to think that we have no consequences because the state has said there will be none for low participation rates due to opt outs.  However, once I get a chance to sit and read the Alaska letter in the link, I send the following response back to Mr Desjardin:
"Now that I am more awake and less distracted by my children, I have reviewed the Alaska letter and see the list of actions under question 3.  However, the email from Ms Bank is verbatim the answer to question 4 regarding opting out.  Thus, the question if opt outs are considered in the participation rate by the federal government remains unanswered.  The material makes it clear the that state or district must offer the test to all students, but makes no statements about the student's refusal to take the exam, which, frankly, how could a school be held accountable for actions outside their control?  So, I now have a list of punishments for breaking the rules, so to speak, but still am unclear if the action I asked about will be considered breaking the rule or which punishment would be applied.  I wouldn't deny my children or students the clear answer to such a question, and don't like being treated that way as an adult."

Just now, March 5th night, a friend sent me this blog post.  If you skip ahead, you will see four reasons we should not be concerned about consequences for participation rates below 95%.  (I have the idea to look at previous Maine participation rates soon.  I believe I saw this info in one of the links from Ms Warren).  This information matches that presented by FairTest. 

And that, ladies and gentlemen, is the whole saga thus far of me trying to find out what the consequences are for districts and Maine if MEA participation rates are below 95% due to parents exercising their right to opt out. 

I'd like to add quickly that the bill LD695 An Act to Empower Parents in the Education of their Children by Allowing an Opt-out from Standardized Assessments was released today.  If this bill passes. there can legally be no consequences for opt outs' effect on participation from the state.

Update March 6th:
A friend sent me this which I turned into a Google Doc for sharing. To my best knowledge, it was prepared by a MEA (union) representative in preparation for the LD695 press event.  This document list several Maine school that did not reach their participation rates including one school that lost a letter grade; however, it states none of these schools had consequences from the state or federal governments. 

I use this chart on the Maine DOE Accountability page sent to me by Ms Warren to find schools listed as not meeting their participation targets.  There are many schools listed as N/A, but only six listed as No.  Three of these are not Title I schools (Old Orchard Beach High School, Greenville Consolidated School, and Belfast Area High School), which leaves the following with their ESEA classifications: Mt Desert Island HS and Crescent Park School as focus schools and Mt Vernon Elementary as a monitoring school.

I also read the definitions in the glossary also on the Maine DOE Accountability page sent to me by Ms Warren  and did not see any mention of participation rates in the definitions of the categories.  They only mention Annual Measurable Objective progress and School Accountability Index, which also makes no mention of participation rates in its definition. 

Update March 21:
On Friday March 13th, I heard from Angus King's office.  The staff member I spoke with shared similar information to what I had heard.  He has a longer list of actions the federal government can take for noncompliance, but he also used the letter from Alaska as a source.  The new piece of information he has was this: The federal government has never withheld Title I funding before because they have never had a state or district not try to bring the people back into compliance. 

On Monday March 16th, I heard from Bruce Poliquin's office.  The staff member said she had only just received the email because of the round about system of delivery, but she had called right away because of the dates.  Ultimately, I decided that the US DOE was not going to give a clearer answer or be moved to make the information public by having Rep Poliquin's office inquire about the same topic.  So, I decided I would write a new request for their office asking them to investigate the transparency and difficulty of a citizen getting the necessary information.  A citizen should not have to get a state senator or representative or education commissioner to do this work for him or her.  As of today, I have not yet drafted that request.