School Law/ Kent State University

Debbie Morgan

NCLB

Joy of Learning

Smart Test

Schools in N.E. Ohio Demographics

School

ADM

Free &
Students with Teachers w/
Reduced Disabilities
Masters

Forest Hills

1,200

60%

17%

40%

Gotham

1,956

38%

15%

68%

Krypton

1,820

26%

18%

75%

Metropolis

1,200

30%

10%

20%

Thrace

110

95%

90%

25%

Yorktown

4,800

20%

10%

76%

Ohio District Report Cards 13-14

Schools

Value Added Performance Gap

Index
Closing

Indicators
Met

Graduation
Rate

Forest Hills

A, D, C, F

C, D

Gotham

B, C, C, C

A, B

Krypton

B, C, C, C

A, B

Metropolis

C, NR, C, B

C, B

Yorktown

A, A, C, C

A, A

Roles of Interviewees
Superintendents:
Spiderman- Forest Hills Schools
Superman- Metropolis Schools
Captain America- Yorktown Schools
Regional Director/ Superintendent:
Spartacus- Thrace Schools
Directors of Curriculum:
Wonder Woman- Gotham Schools
Super Woman- Krypton Schools

Legal policies/issues are communicated

in these N.E. Ohio School Districts via:

To school leaders: Administrative team meetings or Policy

Committee made up of Administrators and Board members
One shares info via Google Doc- MUDS, also with teachers
To teachers, staff, and school board: meetings to discuss
changes of policy, policy committee, directly, through email,
memos
We use PSW to be sure policies are read and signed off on by
all teachers and staff. Super Woman
Only if there is an individual case do you spend time talking
about it with staff/ teachers. Superman
Weekly updates through principals. Captain America

Legal Policies/ Issues

Communicated via
To teachers, staff and school board:
We have a policy committee that meets three times

per year. We review policy and come back and discuss.

Wonder Woman
Meetings to discuss changes or new policy.
Spiderman
Newest updates are communicated to all personnel in
a shared Google Doc called MUDS (Monday Updates.
Spartacus

Legal policies/issues are communicated

in these N.E. Ohio School Districts via:

To students and parents:

Student Handbook
Discussed at school board meetings
Posted on school district website
Email list-serve and regular mail
school newsletter
Alert Now Phone System

Significance of the Challenge

I selected the challenge because it was one that was most

commonly identified by the Administrators that I

interviewed as a legal and policy issue future educational
leaders need to know and one that leaders in their district
deal with the most: state mandates for testing, issues/
penalties of opting out of testing, mandates/ policy changes
coming rapidly from Columbus such as OTES & OPES (tied
into testing results.)
Why the issue is important: Test scores may not adequately
capture students mastery of the state standards. This
complicates test score users ability to make inferences from
these scores to the overall domain in which policymakers are
interested. (Jennings & Berak. 2014. p. 387) There are many
more issues which revolve around state mandated testing. see
Background Information: Issues Around the Challenge.

History of State Testing Mandates:

NCLB
Add Chart/ diagram

Background Information
Four decades ago, only four states had enacted student
proficiency testing legislation. Now all states have laws or
administrative regulations pertaining to statewide
performance testing programs, and the majority of states
condition receipt of a high school diploma on passage of a
test. (McCarthy, McCabe, & Eckes. 2014. p. 79)
Although other forms of performance assessment, such as
portfolios, have received attention, machine-scorable tests
continue to be used and are strongly supported by the federal
government. (McCarthy, McCabe, & Eckes. 2014. p. 80)

Background Information

Issues around the Challenge:

Teachers and Principals are impacted as testing results tie into
their evaluations= OTES and OPES
As parents opt out of having their children take the state tests,
teachers and principals are penalized
PARCC being replaced in Ohio raises new questions
Charter schools are not mandated to have their students take the
same mandated tests as public schools
Testing results may impact student placement
Students with disabilities may be negatively impacted
The testing mandate does not fund adequate instructional
resources
Students are impacted as so much of their learning time is spent
on test preparation and on the testing period itself
There is likely a misalignment between state standards and their
high-stakes tests.

Kasich pulls funding from PARCC

Common Core tests in new budget
http://fox8.com/2015/07/01/ohio-latest-state-to-pull-out-ofparcc-testing/
The bill requires the state elementary and secondary
achievement assessments to be nationally normed, standardized
assessments. It also calls for ODE to immediately find a new test
provider that will be better-accepted and more efficient when
measuring student assessments. ODE responded by stating, We
are committed to moving forward to build a seamless system that
is easy to use and provides timely information to teachers and
parents.
Fox 8 news. July 2015.

The Past, Present & Future

of High Stakes Testing
http://www.npr.org/sections/ed/2015/01/22/377438689/the-pastpresent-and-future-of-high-stakes-testing
Npr Ed Reporter Anya Kamenetz, Feb. 6, 2015
Anya Kamenetz speaks of a test which is invisible and
integrative. She speaks about software programs which capture
student performance while they are engaged in learning. Perhaps
this is the type of seamless system which ODE might consider
implementing. One that does not take time away from learning
but occurs as students are learning. Consider this and ponder if
this may be better-accepted such that parents will not want to
opt their children out of testing. Now, consider providing a test
which is a nationally normed, standardized assessment, and ask
yourself is this may be better-accepted by educators, as well.
See Book: The Test: Why Our Schools Are Obsessed with
Standardized Tests. But You Dont Have to Be. Anya Kamenetz.

Higher Level Questioning

As the development of higher order thinking skills has been
strongly correlated with improved standardized test
performance, principals and teachers can feel confident that
research based evidence supports their efforts. The use of
questioning to aid students in moving from simple lower
level recall to high level evaluation and synthesis provides a
structure to help students beyond basic knowledge that is
typically assessed on a standardized test to a deep conceptual
understanding that allows for meaningful transfer. (Smith &
Szymanski. 2013. p.23)

Additional Ways
to Measure School Performance

School Outcomesachievement in additional subjects or longer-term measures

of college and career readiness
School Processesinstructional quality
teacher and student attendance
school safety
students sense of belonging
Inputs- the social and fiscal resources available to the school
Funding
Parent involvement
Conditions of facilities

Measuring School Performance

continued
This type of comprehensive indicator system that includes

measures of inputs, processes, and outcomes is relatively

rare, but opportunities for developing such systems are
growing as a result of improvements in data reporting
systems. Evidence regarding the limitations of NCLBs
approach to measuring school performance may also offer a
compelling rationale for federal, state, and local policy
makers to consider this alternative. Hamilton, Schwarta,
Stecher, & Steele. 2013. p. 455.)

Align State Assessments to Standards

Eliminate all complete misalignment on the tests- test items

that test topics that are simply not covered in the standards
at all.
Build test forms that sample from the domain of the
standards, such that all content in the standards is tested
Match the level of cognitive demand of items to the ways in
which topics are specified in the standards
It may be difficult to evaluate the impact of standards and
aligned assessments, because few states appear to have
created such a system. (Polikoff, Porter, & Smithson. 2011. p.
992)

Align State Assessment to Standards

The state may be subverting its own standards-based agenda
through the instructional response that high-stakes testing
appears to encourage. (Watanabe. 2007. p. 358)

Testing Results Impact OTES & OPES

High-stakes assessments not only shape the instructional
program, but also states increasingly are evaluating educators
performance based on their students test scores. (McCarthy,
McCabe, & Eckes. 2014. p. 80)
Perhaps most disheartening is that 75% of the states that have
adopted a strategy to estimate principal effectiveness have chosen
strategies that are incredibly simplistic. Indeed, policy makers in
such states assume that principal effectiveness can be measured
by student test scores without adjusting for the influence of other
factors. (Fuller & Hollingworth. 2013. p. 492)
Ohio:

Impact of Opting Out of Testing

Hundreds of parents across the state have excused their

children from taking the tests, and the backlash has

prompted state lawmakers to revisit whether the PARCC
(Partnership for Assessment of Readiness for College and
Careers) exams are right for Ohio. (Columbus Dispatch.
March 2014)
Teachers are penalized- affects evaluations
School districts may lose federal funding

On Opting out
Oregon Governor Brown Signs Standardized Test Opt-Out
Bill.
A bill to allow parents to opt their children out of standardized
tests was signed by Oregon Governor Kate Brown Tuesday.
TheOregonian (6/24, Hammond) reports that while Brown signed
the bill, she noted that teachers and state officials should
convince parents not to do so. The bill was strongly backed by
the Oregon Education Association and prioritizes the rights of
parents...over the desires of school accountability proponents.
The state will now be required to notify families at least 30 days
prior to a test. The Oregonian adds that a federal warning was sent
by Assistant US Secretary of Education Deborah Delisle to Oregon
schools head Rob Saxton while the bill was under consideration.
The state will give two performance ratings to low-testing schools
which factor in and omit Federal penalties. Brown said that the
state must demonstrate to parents the potential consequences if
parents opt out, as the state cannot afford to risk losing federal
dollars. (NEA. 2015)

More on Opting Out

The Eugene (OR) Register-Guard (6/24, Hubbard) reports that

Brown was brushing aside critics and notes the state risks up to
$140 million per year. Brown was called in May by US Education
Secretary Arne Duncan about the bills consequences. The paper
also notes the law comes as the backlash against Common Core
testing grows in Oregon and nationwide.

The Oregon Public Broadcasting (6/23, Manning) notes that

ED has not taken any steps against Oregon but will be watching
closely. ED press secretary Dorie Nolt said that testing students
is both a legal requirement and a civil rights issue and notes that
ED is confident that Oregons leaders understand their
responsibility. The bill, according to federal officials, could lead to
what the article calls the most permissive opt-out policy in the
country.

Anti-Test Opt-Out Movement

Makes Wave in NY State
http://www.npr.org/sections/ed/317047120/commoncore
npr Ed Reporter, Anya Kamenetz, Apr. 23, 2015

Testing Results
May Impact Student Placement
The Eleventh Circuit upheld a school districts ability
grouping plan, under which middle school students are
tracked based primarily on test scores and performance
recommendations of former teachers. (McCarthy, McCabe,
& Eckes. 2014. p. 81)

Students with Disabilities

May be Negatively Impacted
Courts in general have ruled that the state does not have to alter
its academic standards for students with disabilities; these
students can be denied grade promotion or a diploma if they do
not meet the specified standards. (McCarthy, McCabe, & Eckes.
2014. p. 82)
The Seventh Circuit suggested that children with disabilities may
need earlier notice of a proficiency test requirement than other
students to ensure an adequate opportunity for the material on
the test to be incorporated into their IEPs. An Indiana appeals
court subsequently ruled that diplomas for children with
disabilities can be conditioned on test passage with three years
notice of the requirement.(McCarthy, McCabe, & Eckes. 2014.
p.82). The court further rejected the student being provided with
accommodations of having the test read to him even though that
accommodation is specified on the students IEP.

Students with Cognitive Disabilities

On the other hand, The NCLB regulations allow states to
use alternative assessments for students with the most severe
cognitive disabilities based on modified academic standards;
such alternative assessments may be less rigorous, but they
must assess the same content. (McCarthy, McCabe, & Eckes.
2014. p.83)

Unfunded mandate
Several school districts have unsuccessfully asserted that
they have been provided inadequate resources for their
schools to make adequate yearly progress in terms of test
results under the NCLB Act. (McCarthy, McCabe, & Eckes.
2014. p. 81)

Too Much Time Spent on Test Prep

and on the Testing Period
Some parents and educators complain that students spend

about twice as much time on these Common Core-aligned

tests as they did on previous state exams. They also say the
new tests wont give results quickly enough to help guide
education, and that students are spending too much
classroom time preparing for the tests rather than learning.
(Columbus Dispatch. March 2015)

Case Law Relating to State Testing

Acknowledging the states authority to establish academic
standards, including mandatory examinations, the judiciary
traditionally has been reluctant to interfere with assessments
of pupil performance. (McCarthy, McCabe, & Eckes. 2014. p.
79)
Relevant Court Cases have been cited throughout
How the cases inform current policy and practice in N.E.
Ohio schools

Legal Challenges
Administrators in N.E. Ohio most commonly handle legal
and policy issues with guidance from the following sources:
NEOLA- The Source for Board Policy Services
OSBA- Ohio State Bar Association website
BASA- Buckeye Association for School Administrators

ODE- Ohio Dept. of Education Legal Updates- attend in

person and/or via webinars

ODE Model Policies- use theirs or adapt
Seek Legal Counsel- Law Firm

Other sources of guidance mentioned

Education Law Association= subscription
Education Week- hard copy subscription

Cleveland.com
Columbus Dispatch
Toledo Blade

NEOLA: The Source for

Board Policy Services
NEOLA provides school districts with a complete service for developing and updating
Board Bylaws and Policies, Administrative Guidelines/Procedures, Forms, Staff
Handbooks and Student/Parent Handbooks in electronic and printed format. The
electronic format supports automatic linking from the table of contents and searching
based on key words. NEOLA is currently working with more than 750 superintendents and
school boards in Florida, Indiana, Illinois, Ohio, Michigan, Wisconsin and West Virginia.
NEOLA retains law firms in each state to provide legal reviews of published materials and
to consult on continuing updates. Therefore, the legal accuracy and compliance of
proposed revisions can be unequivocally guaranteed, provided, of course, clients do not
choose to substantively alter the recommendations.
NEOLAs Associates, almost all of whom have served as superintendents, provide most of
the direct work with client school districts. They establish a close working relationship
with their clients during the drafting of the policy and guidelines/procedures manuals,
and then enhance that relationship by visiting at least twice per year to review updates and
answer client questions.
Each manual is based on templates that have been thoughtfully prepared by
NEOLA's school law firm from that state and are customized to the district's unique
circumstances through choices made by the school board and administrative team.

NEOLA Board Policies on testing

2623 Student Assessment and Academic Intervention
2700 School Report Card

OSBA
on the topic of recent Testing decisions
As the Ohio State Bar Association is a voluntary bar

association, we actually do not have any attorneys on staff

who answer legal questions or handle legal matters. Thus,
we would not be able to address the questions you raised
below. We may, at some point in the future, prepare a public
article on this topic, but at this time we do not have anything
planned.
Suggestions were shared for locating School Lawyers in
specific geographic areas preceding this comment:
Please note, however, that these lawyers may have not yet
had an opportunity to deal with the implications of the
recent decision.

Reflection
What I Learned:
How this challenge will be addressed in the future:

How I will use this research/ insight to deepen my

understanding of the challenges facing schools in N.E. Ohio:

What I learned about myself as an aspiring leader:

Sources