It’s the Law!
We at NYC Opt Out are “ordinary citizens” concerned about the impacts of excessive and high-stakes standardized testing on our children, their teachers, and schools. We know our rights, but we are not lawyers. On occasion, however, we receive questions about what is or is not legal regarding the use of test scores, the consequences for refusing the tests, etc. Accordingly, we’re posting this summary, written by a lawyer (who wishes to remain anonymous) that makes clear what is permitted or forbidden by state law, pointing to the specific statutes and regulations. Note: We have added some formatting and headings for clarity; otherwise, the following appears as the author wrote it.
THE LAW: STATE TEST SCORES CANNOT BE USED AS THE SOLE OR PRIMARY FACTOR FOR STUDENT PLACEMENT OR PROMOTION
In 2014, in response to the backlash against the grades 3-8 New York State ELA and math assessments, Governor Cuomo, in his 2014-15 budget bill, set out a proscription against using any of those state assessments as a sole–or even a primary–determinant in a student’s placement and/or promotion.
The language in the budget bill is codified in NYS Education Law § 305(47), and reads as follows:
“47. The commissioner shall provide that no school district shall make any student promotion or placement decisions based solely or primarily on student performance on the state administered standardized English language arts and mathematics assessments for grades three through eight.
However, a school district may consider student performance on such state assessments provided that the school district uses multiple measures in addition to such assessments and that such assessments do not constitute the major factor in such determinations. In addition, the commissioner shall require every school district to annually notify the parents and persons in parental relation to the students attending such district of the district's grade promotion and placement policy along with an explanation of how such policy was developed. Such notification may be provided on the school district's website, if one exists, or as part of an existing informational document that is provided to parents and persons in parental relation.”
https://codes.findlaw.com/ny/education-law/edn-sect-305.html
There are specific regulations per grade level, though the intent and language are similar throughout.
The State Education Department’s codification of this state law into regulations for grades 3-4 is found in the Commissioner’s Regulations at 8 CRR-NY § 100.3(b)(2)(iv):
“Notwithstanding the provisions of this section, no school district shall make any student promotion or placement decisions based solely or primarily on student performance on the English language arts elementary assessments and the mathematics elementary assessments administered in grades three and four. However, a school district may consider student performance on such assessments provided the school district uses multiple measures in addition to such assessments and that such assessments do not constitute the major factor in such determinations.”
Codification of this law for grades 5 and 6 is found in the Commissioner’s Regulations at 8 CRR-NY § 100.4(b)(2)(vii), Program requirements for grades 5 through 8:
“…no school district shall make any student promotion or placement decisions based solely or primarily on student performance on the English language arts assessments and the mathematics assessments administered in grades 5 and 6. However, a school district may consider student performance on such assessments provided the school district uses multiple measures in addition to such assessments and that such assessments do not constitute the major factor in such determinations.”
Codification of this law for grades 7 and 8 is found in 8 CRR-NY § 100.4(e)(6):
“…no school district shall make any student promotion or placement decisions based solely or primarily on student performance on the English language arts assessments and the mathematics assessments administered in grades 7 and 8. However, a school district may consider student performance on such assessments provided the school district uses multiple measures in addition to such assessments and that such assessments do not constitute the major factor in such determinations.”
https://www.nysed.gov/curriculum-instruction/1004-program-requirements-grades-5-through-8
Several things are clear from these laws. First, a school is expressly prohibited from using any grade 3-8 state assessment as a sole–or even a primary–criterion for any student placement, including e.g., honors programs, academic intervention services, special research programs, gifted and talented programs, etc. Second, a school may consider student performance on a state assessment, but only if the school uses multiple measures in addition to the state assessments, and only if the state assessments do not constitute the major factor. Third, any such use of the state assessments must first be provided in proper notice to parents on an annual basis.
The import of this law is this:
First, it is illegal for any school to condition any student promotion or placement on the results of any grades 3-8 state assessment.
Second, it is illegal for any school to require or force a student to take a state assessment in order to qualify for any school placement or promotion.
Third, a child has the legal right to refuse to take the state assessments. ESSA explicitly recognizes the right to refuse testing (see ESSA section 1111(b)(2)(K) “RULE OF CONSTRUCTION ON PARENT RIGHTS); the State Education Department and the Board of Regents recognize that right; the right is acknowledged in the NYS ESSA State Plan (see Approved NYS ESSA State Plan, January 16, 2018, at page 80, https://www.nysed.gov/sites/default/files/07232020-revised-nysed-essa-plan-clean2-version.pdf [“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.”]); and the New York State Council of School Superintendents acknowledged that right. Accordingly, the withholding of a promotion or placement decision due to the lack of results from a state assessment operates as a punitive measure against any child who exercises his/her legal right to refuse the state assessment and, therefore, is illegal.
THE LAW: STATE TEST SCORES CANNOT APPEAR ON A STUDENT’S TRANSCRIPT OR “PERMANENT RECORD”
The Commissioner’s Regulations emphasize that the purpose of the state assessments is that they be used for diagnostic purposes:
“(b) any test results on a State administered standardized English language arts or mathematics assessment for grades three through eight sent to parents or persons in parental relation to a student shall include a clear and conspicuous notice that such results will not be included on the student’s official transcript or in the student’s permanent record and are being provided to the student and parents for diagnostic purposes.” 8 CRR-NY § 104.3(b).
