Five Red Flags With Brad Buck’s Position on Opt-Outs

Dr. Brad Buck

Dr. Brad Buck

On October 2nd, Shane Vander Hart wrote an article questioning why Dr. Brad Buck of the Iowa Department of Education believes that parents do not have the right to opt children out of state assessments. Dr. Buck did give an official response (see below) however, not only did it not address Shane’s questions, it raises some red flags for me on what the head of the Iowa Department of Education thinks about parental rights.

 The federal No Child Left Behind Act of 2001 (NCLB) requires each state to demonstrate that it has an accountability plan that takes into account the achievement of “all public elementary school and secondary school students.” NCLB, § 1111(b)(2)(A)(i), (b)(2)(C)(i), (ix) (emphasis added). The U.S. Department of Education has adopted rules implementing these statutory provisions. See, e.g, 34 C.F.R. §§ 200.2(b)(1), 200.6

· Similarly, Iowa statute requires the State Board of Education to adopt rules regarding assessment of, and reporting of, student achievement. Iowa Code § 256.7(21). Pursuant to that statutory authority, the State Board of Education promulgated a rule requiring “assessment of student progress for all students.” Iowa Admin. Code r. 281-12.8(1)(f) (emphasis added).

· The Iowa Code and implementing administrative rules also require all students be assessed in multiple other contexts. See, e.g., Iowa Code § 279.68 (early literacy statute); Iowa Admin. Code ch. 281-62.

None of the statutes, regulations, and rules in state or federal law give parents the authority to opt their children out of accountability assessments. They use the term “all,” and “all” as a statutory term “usually does not admit of an exception, addition or exclusion.” Consolidated Freightways Corp. v. Nicholas, 258 Iowa 115, 137 N.W.2d 900 (1965).  The statutory scheme at issue conforms to this longstanding general rule.

At the federal level, NCLB contains limited provisions that allow children to participate in different assessment activities, but those are narrowly drawn and do not amount to a parental “opt out.”  See, e.g., 34 C.F.R. § 200.6.  NCLB’s parental involvement provisions also do not contain a provision allowing for “opting out.” NCLB § 1118.

At the state level, education law contains specific references to unilateral parent “opt outs” that are conspicuously absent from the statutes on assessment.  See, e.g., Iowa Code §§ 256.11(6)(a) (physical education, physical activity, or CPR course, if conflicts with religious belief); 279.50(5) (human growth and development instruction).  In the absence of such a specific authorization of parents to opt children out of assessments, the Department lacks the authority to approve of granting such requests.

Although the law requires all children to be assessed, the law also does not specify consequences for parents who withhold their children from assessment.  In the absence of specific consequences spelled out in statute, the general rule of local control is followed: consequences for participating or not participating in required assessments are determined at the local level.  The Department will not interfere in those local determinations if those are reasonable.

First, Dr. Buck still does not address the fact that Iowa Code, Iowa Administrative Code, and the No Child Left Behind law, clearly states only what the states and districts must provide regarding assessments. They do not state that parents or students are required or forced to participate. See the full code references below:

  • NCLB, § 1111(b)(2)(A)(i): Each State plan shall demonstrate that the State has developed and is implementing a single, statewide State accountability system that will be effective in ensuring that all local educational agencies, public elementary schools, and public secondary schools make adequate yearly progress as defined under this paragraph. Each State accountability system shall be based on the academic standards and academic assessments adopted under paragraphs (1) and (3), and other academic indicators consistent with subparagraph (C)(vi) and (vii), and shall take into account the achievement of all public elementary school and secondary school students;
  • NCLB, § 1111 (b)(2)(C)(i): Adequate yearly progress’ shall be defined by the State in a manner that- applies the same high standards of academic achievement to all public elementary school and secondary school students in the State;
  • NCLB, § 1111 (b)(3)(A): ACADEMIC ASSESSMENTS-  Each State plan shall demonstrate that the State educational agency, in consultation with local educational agencies, has implemented a set of high-quality, yearly student academic assessments that include, at a minimum, academic assessments in mathematics, reading or language arts, and science that will be used as the primary means of determining the yearly performance of the State and of each local educational agency and school in the State in enabling all children to meet the State’s challenging student academic achievement standards, except that no State shall be required to meet the requirements of this part relating to science assessments until the beginning of the 2007-2008 school year.
  • NCLB, § 1111 (b)(3)(C)(ix): Such assessments shall provide for the participation in such assessments of all students; the reasonable adaptations and accommodations for students with disabilities (as defined under section 602(3) of the Individuals with Disabilities Education Act) necessary to measure the academic achievement of such students relative to State academic content and State student academic achievement standards; and the inclusion of limited English proficient students, who shall be assessed in a valid and reliable manner and provided reasonable accommodations on assessments administered to such students under this paragraph, including, to the extent practicable, assessments in the language and form most likely to yield accurate data on what such students know and can do in academic content areas, until such students have achieved English language proficiency as determined under paragraph (7);
  • S Dept. of Education regulation 34 C.F.R. §§ 200.2(b)(1): The assessment system required under this section must meet the following requirements: Be the same assessment system used to measure the achievement of all students in accordance with § 200.3 or § 200.4.
  • S Dept. of Education regulation 34 C.F.R. §§ 200.6: A State’s academic assessment system required under § 200.2must provide for the participation of all students in the grades assessed in accordance with this section
  • Iowa Code § 256.7 (21) Develop and adopt rules incorporating accountability for, and reporting of, student achievement into the standards and accreditation process described in section 256.11
  • Iowa Admin. Code r. 281-12.8(1)(f): Assessment of student progress- Each school or school district shall include in its comprehensive school improvement plan provisions for districtwide assessment of student progress for all students. The plan shall identify valid and reliable student assessments aligned with local content standards, which include the core content standards referenced in subparagraph 12.8(1)“c”(2). These assessments are not limited to commercially developed measures. School districts receiving early intervention funding described in sub rule 12.5(18) shall provide for diagnostic reading assessments for kindergarten through grade 3 students.
  • Iowa Code 279.68 (early literacy): A school district shall assess all students enrolled in kindergarten through grade three at the beginning of each school year
  • Iowa Admin Code 281-62: All school districts shall assess the reading proficiency of all students.

Second, the parental involvement provision of the NCLB in section 1118 also only directs the actions of the states and the districts, in order to ensure parental involvement in the school improvement policies, programs & activities. It does not address assessments nor parental rights regarding opt-out, nor would such subject matter be appropriate in this section. Its purpose was to ensure the accountability of districts to the parents by keeping them in the loop on school improvement, not override parental authority over their child’s education. For the full text see here.

Third, Dr. Buck believes that since other Iowa code sections allow specific opt-outs on certain education topics, the fact that it is not specifically mentioned here means that it is not allowed by default. This is a dangerous application of the law. Are we to assume that unless the Iowa Legislature specifically allows a particular right, it is not allowed? Is the Iowa legislature now the sole grantor of human rights to Iowans? Shall we apply the same belief to all other Iowa Code as well? For example, am I to assume that since the code does specifically allow me to eat broccoli, I am therefore not allowed to eat it? Thankfully, when it comes to the issue of parental rights, neither the Iowa Supreme Court, nor the U.S. Supreme Court, agrees with Dr. Buck’s interpretation. And not only do they not agree, even in cases that did not specifically touch on education, the courts went out of their way to assert that the rights of parents to make decisions regarding the upbringing of their children, commanding the government to meet a high bar of “compelling interest”, one unreachable by any other means before being allowed to override them. Please note that the examples below are not exhaustive:

  • Iowa Supreme Court, Spiker v. Spiker (2006): parental rights are fundamental
  • Iowa Supreme Court, Santi v. Santi (2001): interpreted Article 1, Section 8 & 9 of the Iowa Constitution as protecting a parents’ fundamental liberty interest in childrearing
  • U.S. Supreme Court:
    • Troxel v. Granville, 530 U.S. 57 (2000): “the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a ‘better’ decision could be made.”
    • Vernonia School District 47J v. Acton, 132 L.Ed.2d 564, 115 S.Ct. 2386 (1995): parents have the right to guard their children’s liberty as minor children
    • L. v. Matheson, 450 US 398, 410 (1991): the case of the right of parents to be notified of their child receiving an abortion- “We have recognized that parents have an important “guiding role” to play in the upbringing of their children.” “constitutional interpretation has consistently recognized that the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society”
    • Hodgson v. Minnesota, 497 U.S. 417 (1990): the Court found that parental rights not only are protected under the First and Fourteenth Amendments as fundamental and more important than property rights, but that they are “deemed essential.” “The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.”
    • Board of Directors of Rotary International v. Rotary Club of Duarte, 481 US 537 (1987): “The Court has recognized that the freedom to enter into and carry on certain intimate or private relationships is a fundamental element of liberty protected by the Bill of Rights … the intimate relationships to which we have accorded Constitutional protection include marriage … the begetting and bearing of children, child rearing and education.”
    • Lehr v. Robertson, 463 US 248, 257-258 (1983): the liberty of parents to control the education of their children was described as a “right coupled with the high duty to recognize and prepare the child for additional obligations” … “that the custody, care and nurture of the child reside first in the parents whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”
    • Santosky v. Kramer, 455 US 745, 753 (1982): The Court, in reaching their decision, made it clear that parents’ rights as outlined inPierce and Meyer are fundamental and specially protected under the Fourteenth Amendment
    • Parham v. J.R., 442 US 584, 602-606 (1979): “Our cases have consistently followed that course; our constitutional system long ago rejected any notion that a child is “the mere creature of the State” and, on the contrary, asserted that parents generally have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations. The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions.”
    • Carey v. Population Services International, 431 US 678, 684-686 (1977): The Court included the right of parents in the area of “child rearing and education” to be a liberty interest protected by the Fourteenth Amendment, requiring an application of the “compelling interest test.”
    • Wisconsin v. Yoder 406 U.S. 205 (1972): “This case involves the fundamental interest of parents, as contrasted with that of the state, to guide the religious future and education of their children. The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring tradition”
    • Griswold v. Connecticut, 381 U.S. 479, (1965): Emphasized that the state cannot interfere with the right of a parent to control his child’s education.  The Court stated that the right to educate one’s child as one chooses is guaranteed in the Bill of Rights and applicable to the States by the First and Fourteenth Amendments
    • Prince v. Massachusetts, 321 U.S. 158 (1944): “It is cardinal with us that the custody, care, and nurture of the child reside first in the parents, whose primary function and freedom includes preparation for obligations the state can neither supply, nor hinder.”
    • Pierce v. Society of Sisters 268 U.S. 510 (1925): “The child is not the mere creature of the state; those who nurture him and direct his destiny have the right and the high duty, to recognize and prepare him for additional obligations”
    • Meyer v. Nebraska 262 U.S. 390 (1923): The court chastened the legislature for attempting “materially to interfere with the power of parents to control the education of their own [children].”

 

Fourth, Dr. Buck specifically cites Consolidated Freightways Corp. v. Nicholas, 258 Iowa 115, 137 N.W.2d 900 (1965), to support his argument that all students must be tested. However, I find this perplexing, considering this was a case that the state lost for the very reason that it interpreted Iowa Code differently than what it actually said. To quote the majority opinion: “We have said a statute is open to construction where the language used in the statute requires interpretation—that is, where the statute is ambiguous, or will bear two or more constructions, or is of such doubtful or obscure meaning that reasonable minds might be uncertain and disagree as to its meaning” and that “We have also said we need not go beyond the plain and ordinary use of the words in the statute itself, and the meaning to be given the words used will be determined from the character of their use, and they will be given their natural, plain, ordinary and commonly-understood meaning in the absence of any statutory or well-established technical meaning”. Considering that both the Iowa Code and NCLB clearly say provide for, and not require, the assessment of all students, and that they specifically direct the action of government bodies and not citizens, I am not quite sure how this case citation supports his argument that all students are to be forced to take assessments contrary to the wishes of their parents.

Finally, I would like to comment on one last thing, and that is the following statement by Dr. Buck: In the absence of such a specific authorization of parents to opt children out of assessments, the Department lacks the authority to approve of granting such requests. This is an interesting turn of phrase. First, he seems to acknowledge that the DOE is not the final arbiter of a child’s education.  Second, now that we know what the Iowa Code actually says, it is clear that the law does not govern the students, but the districts. So in point of fact, yes, it is true that Iowa Department of Education does not have the authority to grant anything regarding the student. Their jurisdiction is only over the districts. The fact that the law only provides consequences to districts for non-compliance, and omits any for students or parents, is even more evidence of this fact. Parents are the final authority on a child’s education, and there should be no consequences to either them or their children, local or otherwise, if they exercise that right.

The fact that the director of the Iowa Department of Education believes that parental rights come only from the state is disturbing indeed. Perhaps we should ask our legislators if they believe this to be the case as well.

Comments

  1. Shane Vander Hart says:

    Thanks Heather, great response!

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