By April Few, Ida Frueh, and Sheri Few
“This Act prohibits the Federal Government from funding the development, pilot testing, field testing, implementation, administration, or distribution of any federally sponsored national test in reading, mathematics, or any other subject, unless specifically and explicitly authorized by law… It is the sense of the Congress that States and local education agencies retain the rights and responsibilities of determining educational curriculum, programs of instruction, and assessments for elementary and secondary education.” — ESSA SEC. 8549A and SEC. 8549B
Throughout the U.S. Department of Education’s Innovative Assessment Demonstration Authority proposed regulations we see a pattern extremely similar to that of the 2009 Race To The Top grant, which bribed States into applying for a grant that would require the implementation of one-size-fits-all standards to receive funding. The Department of Education is using these regulations to push a common, national assessment system.
In 2009, Bill Gates spoke before the National Conference of State Legislatures saying, “When the tests are aligned to the common standards, the curriculum will line up as well.” Six years later, under SEC. 1201, ESSA requires the “refining of assessments to ensure their continued alignment with the challenging State academic standards and to improve the alignment of curricula and instructional materials.” The striking similarity in the Gates proclamation and the ESSA verbiage is not likely a coincidence, and clearly contradicts ESSA prohibitions.
Moreover, the Innovative Assessment Demonstration Authority proposed regulations incentivize States to join a consortium, something Congress and ESSA proponents said would not happen. These consortia, or multi-state testing providers, will be much like the Smarter Balanced Assessment Consortium (SBAC) and the Partnership for the Assessment of Readiness for College and Career (PARCC) that sprang up under Race To The Top grants for the purpose of developing assessments aligned to the new national standards (Common Core). When states signed Memorandums of Agreement for the Race To The Top program, and when states applied for No Child Left Behind (NCLB) waivers, membership in a testing consortium was required.
Since then, we know that consortia without Congressional approval are unconstitutional breaking both State and Federal laws. In 2015, a Missouri judge deemed membership fees to the Smarter Balanced Assessment Consortium unlawful under the Compact Clause of the U.S. Constitution, which prohibits states from entering into interstate agreements without the consent of Congress. Never having obtained Congressional approval to establish themselves, and created through the partnership of private entities and the federal government, these consortia whose sole purpose is to further a national education system are illegal.
The following are specific areas in which the proposed regulations are egregious in their attempts to impose a common, Federal education system, stripping parents and SEAs of what little local control of education remains, and in many ways contradicts and undermines the law in which they are intended to provide guidance.
- Clarifies that any innovative assessment design can be used as long as it meets the Department’s requirements and is aligned to the State’s “challenging academic standards.”
NOTE: In other words, only assessment designs aligned to Common Core and approved by the Department can be used. This is contrary to the meaning of “innovation,” and flies in the face of ESSA prohibitions.
- Gives States “flexibility” by allowing them to choose computer-adaptive statewide tests, so long as they align to “challenging State academic standards,” and are approved by the Department.
NOTE: This gives the illusion of flexibility while still ensuring States’ assessment systems align to the Common Core State Standards. Furthermore, since 2013 countless computerized testing malfunctions have been recorded leaving invalid results and wasted classroom time.1
- Requires applications to be peer reviewed to help the Secretary of Education determine whether an applicant will be able to successfully meet the requirements. The peer review panels will include “psychometricians” (psychometrics is the modeling of test taker responses (behavior) in response to items (situations),2 “measurement experts,” and “researchers.”
NOTE: These peer review panel members will collect data on children’s behaviors while testing, which is well beyond the scope of assessing a child’s knowledge of which many parents object.
- Requires applications to include a description of how a State’s innovative assessment demonstration will align to” challenging State academic standards.” NOTE: The Department is requiring States to align to the subpar Common Core State Standards in order to receive funding. Parents are not fooled by the rebranding.
- Requires a State Educational Agency to prove it has collaborated with “experts” including the Institute of Education Sciences (IES), the lead Federal agency in charge of data collection, and in the planning, development, implementation, and evaluation of innovative assessments.
NOTE: The entire mission of IES is to collect data on America’s school children and share it.3
- Requires State Educational Agencies (SEAs) or consortia to ensure assessments are “accessible for all students including children with disabilities and English learners. An SEA may also incorporate the principles of Universal Design for Learning in developing its innovative assessments.”4
NOTE: Universal Design for Learning uses computerized assessment programs to track a child’s brain function.5
- Is aligned with the principles of President Obama’s Testing Action Plan, as is much of the proposed regulations. The criterion of the President’s plan will help SEAs or consortiums to develop “an array of innovative assessments so that we may learn from a variety of models rather than establish a preference for one particular approach.”6
NOTE: Obama’s Testing Action Plan states that there are “other means” of measuring a student’s performance alongside assessments such as school assignments, portfolios, student surveys, school climate, etc. This will certainly encourage more surveys given in schools and lead to more data mining.7
- Clarifies the selection criteria the Secretary will use to evaluate an application and permit the Secretary to provide Innovative Assessment Demonstration Authority to an SEA or consortia of SEAs.
NOTE: Under ESSA, the federal government is prohibited from funding the development of assessments. 8
- Requires SEAs to ensure that each Local Education Agency (LEA) has the technological infrastructure to implement the testing system.
NOTE: This requirement will incentivize increased State spending in order to compete to receive Federal funds. Very few states have the necessary technology9 to support the federally designed testing system, and ESSA prohibits the Federal Government from mandating “… a State or any subdivision thereof to spend any funds or incur any costs not paid for under this Act.”10
- Requires an SEA or each SEA in the consortium to annually report to the Secretary updates on the implementation of the innovative assessments. Definitions of innovative assessments may include: “cumulative year-end assessments, competency-based assessments, instructionally embedded assessments, interim assessments, or performance and technology-based assessments.”
NOTE: These types of assessments are based on the mastery/competency/performance based education model or blended learning where children will be assessed and data mined all day long electronically and through projects.11 The federal government is incentivizing states to implement computer adaptive, nationally-aligned assessments and education models through a pilot grant. This is all prohibited in ESSA.12
- Requires States, for selection purposes, to include continuous improvement process assurances for “developing or improving balanced assessment systems that include summative, interim, and formative assessments, including supporting local educational agencies in developing or improving such assessments.”13
NOTE: Testing consortia providers such as the Smarter Balanced Assessment Consortium offer a complete assessment kit including formative (daily classroom testing tools through their digital library of computerized learning video games, etc.), interim, and summative assessments. As these new pervasive testing systems are incentivized by Federal funding, the potential of data mining will be expanded to all day long, every school day. As testing evolves into a daily activity embedded in the curriculum, the opt-out movement will die, and parents will lose more authority over their children’s education.
- Requires States and consortia to annually measure the progress on the Academic Achievement indicator of at least 95% of all students.
NOTE: Under ESSA, States are still obligated to the 95% participation rate of the burdensome NCLB, but with even more restrictions as opt-outs are added into the rate and with punitive actions taken against schools with low participation rates.14
- States an SEA may use their innovative assessment system for purposes of academic assessments and statewide accountability only after the Secretary determines whether an SEA’s innovative assessment system is of high quality.
NOTE: “No State shall be required to have academic standards approved or certified by the Federal Government in order to receive assistance under this Act” (ESSA).15
1 Computerized Testing Problems- Chronology:
2 Improving Assessment: The Intersection of Psychology and Psychometrics:
3 Institute of Education Sciences, Connecting Research, Policy and Practice:
4 Innovative Assessment Demonstration Authority; Proposed Rule: P. 44962
5 National Center on Universal Design for Learning, The Three Principles of UDL:
6 Innovative Assessment Demonstration Authority; Proposed Rule: P. 44967
7 U.S. Department of Education- October 24, 2015, Fact Sheet: Testing Action Plan: http://www.ed.gov/news/press-releases/fact-sheet-testing-action-plan
8 ESSA SEC. 8549A (a)(1); p. 865
9 “Are schools “tech-ready” for the Common Core Standards?” http://www.greatschools.org/gk/articles/technology-ready-for-the-common-core-tests/
10 ESSA SEC. 8549A (a)(1); p. 865
11 ESSA SEC. 1201 (2)(L); p. 209
12 ESSA SEC. 8549A (a) and (b); pp. 865-866
13 ESSA SEC. 1201 (2)(F); p. 207
14 ESSA SEC. 1111 (4)(E); pp.87-88
15 ESSA SEC. 8527 (d)(1); p. 845-846