A Resolution to Promote Equity

Correcting Criterion Schools Admissions Policy that Discriminates Against Students Refusing the ELA/Math Standardized Tests

Submitted by Barbara A. Seals Nevergold, PhD, Member at Large, Sharon Belton-Cottman, Ferry District, Dr. Theresa Harris-Tigg, East District

March 24, 2016

Whereas, for months beginning in November up to the present, most recently at the March 9^th Board meeting, Dr. Nevergold  has raised questions and concerns about the District’s treatment of the criterion-schools’ applications of students who opted out of the 2015 ELA/Math standardized tests;

Whereas, a combined score on these tests is part of the matrix of the criteria to determine admission to Olmsted, City Honors and DaVinci.  The score accounts for 1-9 points and contributes to the 29-31 overall points that can be awarded to determine student ranking for admissions.  However, a student who refused the ELA/Math tests automatically received a score of zero out of the possible 1-9 points;

Whereas, requests have been made for clarification of the rationale that the District employs to determine why District students do not receive the same accommodation given to applicants from private schools who do not take the State ELA or Math tests.  These students are allowed to submit a “comparable” test score that is used as a substitute for the ELA/Math criterion.  To date there has been no satisfactory response;

Whereas, District staff have produced a March 15, 2015 letter, from Interim Superintendent Donald Ogilvie (attached), to support the decision not to revisit the District’s position on maintaining the assigned score of zero for these students.  The letter “notified” parents that their decision to refuse the standardized tests would have an impact on their child’s admission’s application to City Honors, Olmsted and DaVinci.  The letter cautioned that “the lack of an assigned value, while not disqualifying the student, will impact the students’ admission’s profile.” Further the letter stated that the same criteria would be applied to students from schools, presumably outside of the District, who had no “similar assessment data”;

Whereas, there are a number of problems with this letter; first, the letter is vague as it does not spell out the alternative assessment data that students outside the District could submit in place of the ELA/Math.  Second, it would appear that such a letter signals the intent to apply the same standards to out of District students as well as in District students when in reality different standards were applied to some out of District students.  And third, just because the District sent this letter to parents to “notify” them of the impact of not taking the ELA/Math tests; it doesn’t absolve the District of its obligation to provide an equitable process that treats all children fairly;

Whereas, following the release of the Governor’s Common Core Task Force, Dr. Nevergold sent another email to the Superintendent on December 15^th 2015 requesting a review of the District’s criterion-schools admissions criteria policy, inclusive of the ELA/Math standardized tests score.  This was one day after the District completed the admissions process but before notification to the applicants.

 In part, the email stated:

“Consistent with the recommendations of Governor Andrew Cuomo’s Common Core Task Force, released on December 10^th, the New York State Regents voted, on December 14^th, to accept among others Recommendation 21 that proposes:  Until the new system is fully phased in, the results from assessments aligned to the current Common Core Standards, as well as the updated standards, shall only be advisory and not be used to evaluate the performance of individual teachers or students.  More broadly stated the decision is to place a moratorium on the use of the results of these tests until 2019-2020 pending their revision.  That includes the tests given during the 2012-13, 2013-14 and 2014-15 school years.

As you also know, one of the recommendations of Dr. Orfield regarding the criteria used to determine student admission to the criterion schools was “eliminating the New York state tests because the standards have been changed so drastically and their use is too new to support valid predictions…” (The Report: p 81)

I believe that the current reversal by the Regents regarding these tests warrants a revisit by the District of this recommendation and by way of this communication I am requesting that the District undertake this review.  Thank you.  I look forward to your response.”

This request was ignored as have subsequent requests made since January 2016.

Whereas, State Education Law, Part AA, Subpart C of Chapter 56 of the Laws of 2014, subdivision (47) of Education Law 305, directs the Commissioner to 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.  The statue does not allow a school district to consider student performance on such State assessments in making placement decisions, but only as one of multiple measures and only if such assessments do not constitute the major factor in such determinations.”;

Whereas, a score of zero for students who opted out of the ELA/Math standardized tests effectively nullifies a student’s application as it makes consideration for admission a meaningless exercise.  And contrary to State Education Law, the substitution of a zero in the absence of the ELA/Math test score constitutes making this criterion a major factor in the admissions determination.  In the case of the City Honors’ criteria, the zero accounts for 29% of the potential score for ranking of a grade 5-9 applicant.  Even more astounding, a child applying for admissions to Olmsted in grades 5 -9, lost 43% of the potential score;

Whereas, a number of complaints have been received from parents who are requesting a review of the District’s policy and procedure that determined the assignment of a zero for the ELA/Math criteria in the applications of children, who opted out of the 2015 standardized test based on the decision of their parents;

Whereas, the right of a parent to make the decision to refuse the tests has been confirmed by the Commissioner of the New York State Education Department and the Governor of the State of New York, who described the tests as meaningless;

Whereas, The District entered into a consent agreement with the U.S. Department of Education, New York Office of Civil Rights (OCR) (case #02-14-1077) in response to a complaint filed against the Buffalo Public Schools.  The complainant alleged that the District discriminated on the basis of race and national origin by using admissions criteria that disproportionately excluded non-white students from enrollment in the District’s “criteria-based” schools; 

Therefore, the District should practice vigilance and diligence in addressing policies and/or procedures that have the potential to create new avenues that set up discriminatory barriers to admissions to the criterion-schools;

Therefore,  the Board directs the staff to immediately provide data regarding the number of students impacted by the current policy; and conduct a review of the policy of assigning a zero to the admissions profile of applicants to criterion-schools who do not have an ELA/Math score because they opted out of the 2015 standardized tests; 

Further, that the staff provide a recommended solution (s) to this issue to the Board at its next scheduled meeting on April 13, 2016.

ELA/Math_So What Happens to the Test Scores?

On December 22, 2015 Commissioner Elia wrote a letter to Patrick Rooney, Acting Director, Office of State Support, US Department of Education.  This letter is an apparent follow-up to an earlier request from the USDOE concerning the State’s plans for addressing the federal test participation rate. (A 95% participation rate is required.)  The Commissioner proposes a number of actions that obviously speak to last year’s unprecedented test refusal by over 20% of NYS students. 

One particular statement about the ELA/Math Test results caught my attention.  Ms. Elia stated that the State would:  “Eliminate high-stakes for students by reminding districts that, until December 31, 2018, scores on the grades 3-8 tests may not be included on a   student’s official transcript or permanent record.”

Apparently my District didn’t get the word. Until I raised the question student records still carried their ELA/Math scores. But now my next question is what happens to these scores if they are not maintained in student records? 

Last year the Commissioner prepared a “Tool Kit” for Superintendents with materials designed to “inform” parents about the importance of having their children take the tests.  The FAQ Sheet in the Kit offered the following question/answer:

1.    How will my child’s score be used?

·         Scores will be used to tailor instruction to individual students (emphasis added) and measure how well schools, districts, and the State are progressing with the higher learning standards. 

·         State law and Commissioner’s regulations prohibit school districts from making promotion or placement decisions based solely or primarily on student performance on the Grades 3-8 ELA and Math Tests.

Let’s return to my original question.  What happens to the scores for individual students?  Where will they be housed so that teachers will have access to “tailor instruction to individual students?”  I’m even more anxious to learn the answer since traditionally the tests results aren’t even returned until the following academic year.

Has any District figured out the answer to this question?  I’m still asking mine.

To Test or Not to Test? That is the Question!

To test or not to test?  Actually, for hundreds of thousands of children across the State the answer is a resounding, NO!  Parents continue to refuse the “opportunity” for their children to be subjected to standardized tests in English Language Arts and Math that do nothing to enhance their educational experience.   Instead, for many children these tests cause extreme anxiety, crisis of self-confidence and even physical distress.  And for students in urban districts, in particular, these one size fits all tests unfairly label children as failures and are a major determinant used to identify schools as “struggling” or “persistently struggling” – and for Receivership.

In December, the Governor’s Common Core Task Force recognized that these “high stakes” tests were flawed.  They recommended that the results of the tests, starting with their implementation in 2014 until 2019, not be used for student placement or evaluation decisions.  In addition, recommendations to change a number of current testing procedures were quickly adopted by the New York State Regents.  Yet, in April, the State will again subject students to these meaningless assessments – e.g. they are not diagnostic; they have encouraged teaching to the test consuming time better spent on other educational experiences, such as time for art and music; they are not developmentally appropriate for  the grade level and more.

In spite of the findings/recommendations of the Task Force, State Education Commissioner Elia, who was a member of the Task Force, continues to promote these tests.  Commissioner Elia defends her position by citing that the Federal government mandates that States test all children.  However, she also does not support the Opt Out Movement.  She notes that new tests are being developed and that this year significant changes are being made to the old tests to make them less onerous.  She has urged parents to allow their children to take the tests, noting that the tests have been shortened.  She’s neglected to mention that only two or three questions were removed.  And while children will be allowed to take as much time to take the tests as needed, it’s important to note that the latter is dependent upon the proviso that the student demonstrates that he/she is working “productively”.  In any event, children will sit from 4-6 hours during the testing sessions. The bottom line is that little has changed in the State’s primary goal:  to have all children participate in a standardized testing program that does not measure the diverse abilities of test takers nor provide constructive educational data benefiting students.

The ELA Tests are principally made up of long reading passages.  The paragraphs in the articles are numbered and students are given multiple choice questions or are asked to write short answer responses.  The multiple choice questions give four possible answers.  Students need to reference the article in order to provide their answer.  Educators, who have evaluated the reading level of these passages, have found them to be two to three grade levels above the level of the students being tested.

The Math tests combine word problems along with questions based on charts, graphs and other visuals.  In 2014, I wrote a column entitled, “Are you smarter than a third grader”, in which I provided a sample question from that year’s Math test.  

The following is a sample from the 2015 Math Test for 3^rd. grade.

Pedro left home this morning at the time shown on the clock below. Tina left home 20 minutes after Pedro left. Carlos left home 18 minutes after Tina left. At what time did Carlos leave home this morning?  A  7:57 a.m. B   8:13 a.m. C   8:38 a.m. D   9:13 a.m.

 In case you’re not sure, the correct answer is D.  Remember the 2015 test was timed and almost every child in 3^rd. grade, even if they were limited English speakers or had a special disability was given this test.  Only 48% of children statewide answered this question correctly.

As a school board member and educator, I have followed the high stakes testing debate.   I am a proponent of the Opt-Out Movement.    My support has developed over time and resulted from research, reflection and discussions with advocates.  However, belief is not enough if it isn’t married with action, when warranted.  Backing the test refusal movement extends beyond my formal role to my role as a grandmother.  I have two granddaughters who attend a focus school.  After care consideration and study, and with my support, my daughter refused the test for her oldest daughter last year.  This year, as a fourth grader, she will again refuse the test.

I urge readers to take a look at these tests in order to make a firsthand assessment about the suitability of the ELA and the Math exams for all children, not just children of color. This year’s exams will be given on April 5-7 (ELA) and April 13-15 (Math). The State Education Department released a sampling of the 2015 tests in August and you can find these questions and rationales used for grading each test at https://www.engageny.org/resource/released-2015-3-8-ela-and-mathematics-state-test-questions

You can also join us for a Community Forum on “Common Core State Testing and Curriculum”.  This Forum, on Saturday, April 2, 2016 will feature Principal Jamaal Bowman, the dynamic leader of the Cornerstone Academy for Social Action, a public school in the Bronx.  Principal Bowman will speak on his experience teaching to the whole child and not to the tests and the impact this has on children, learning and their emotional and physical development.  This Forum will be held at the Merriweather Library beginning at 11:00am. Please join us.

A Word from the Commissioner

Over the last two months I have written two letters, a resolution, a petition that gathered over 500 signatures and a few emails to State Education Commissioner MaryEllen Elia, the Board of Regents, several members of the Legislature, the Buffalo Board of Education and the Superintendent.  What all these communications had in common was a request for answers to a number of critical questions about the Governor’s Common Core Task Force Report.  These questions were related to the Task Force’s recommendations regarding New York State standardized tests and the major implications for our District’s Receivership schools and admissions criteria to Criterion schools (City Honors and Olmsted, in particular).

Recently, I received a reply and while the Commissioner’s letter was perfunctory, I did not want to respond to her correspondence with the same lack of regard with which my letters were received.   

My article last week cited the unprecedented impact of the Opt Out movement, which resulted in hundreds of thousands of children refusing to take the test last year.  Buffalo students opted out but in low numbers.  My letters to the Commissioner questioned how tests results from 2014 and 2015, deemed by the Common Core Task Force to be invalid in determining student placement and evaluation, are being used to assess and label our schools as failures, designated for Receivership.  In response the Commissioner replied that the Task Force recommendations applied to “the performance of individual teachers and students”, not to “institutional accountability”.  Bottom line; Receivership is the law.  I still question that response.  However, while the Commissioner did not make this point; the Receivership law is the subject of a law suit so its future will be determined by the courts.

The second question I asked the Commissioner addressed the use of these same test scores, by the District, in the criteria that determines student admissions’ eligibility to the criterion schools.  In fact, I first brought this concern to the attention of District administration in December shortly after the Common Core Task Force Report was made public.  Remember, the Commissioner replied that the Task Force’s recommendation on the use of ELA/Math assessment results is related to “the performance of individual teachers and students”.  The specific language from the Task Force Report states: “the results from assessments aligned to the current Common Core Standards, as well as the updated standards, shall only be advisory and not be used to evaluate the performance of individual teachers or students”.

The Commissioner elaborated on this issue in the following statement:

“While it is not appropriate for me to comment on the District’s specific policies in this letter, I note that Part AA, Subpart C of Chapter 56 of the Laws of 2014 added a new subdivision (47) to Education Law 305, which directs the Commissioner to 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.  The statue does not allow a school district to consider student performance on such State assessments in making placement decisions, but only as one of multiple measures and only if such assessments do not constitute the major factor in such determinations.”

There are several measures that comprise the admissions criteria and are used to determine individual student performance.  The District calculates a student’s rank for criterion school admission based on 4 or 5 measures – totaling 31 points (City Honors) or 20 - 31 points (Olmsted).  The criteria are:  Cognitive Ability Assessment, 1-9 pts; NYS Math & ELA Assessments, 1-9 pts; Grade Point Average (Olmsted only uses this criteria for high school applicants), 4-9 pts; Attendance, 2pts; Teacher rating, 2pts).

I have received complaints from several parents whose children opted out of the Math/ELA tests and as a result were given a zero for this measure on their applications to City Honors and Olmsted.  This score effectively nullifies a student’s application as it makes consideration for admission impossible.  Unlike the case of a child from a private school, who didn’t take the ELA/Math tests and is allowed to substitute a comparable measure, these Buffalo students were given no such option.  In the case of the City Honors’ criteria, the zero accounts for 29% of the potential score for ranking.  Even more astounding, a child applying for admissions to Olmsted in grades 5 -8, lost 43% of the potential score. 

The Commissioner’s citation of the State regulation regarding the use of ELA/Math scores in placement decisions underscores an inequity in Buffalo’s application of the admissions criteria.  Although the word “solely” is clear the use of “major” can be interpreted to a degree.  The assignment of 29% and 43% of a ranked score based on the Math/ELA assessments is a significant contribution to the overall accumulation of points and final ranking, and therefore “major”.

As I have done since identifying this problem, I will continue to question the fairness of the systematic assignment of a zero for children whose parents made the decision to refuse the ELA/Math tests.  Even Governor Cuomo has acknowledged that parents have the right to make this decision for their children.  Nearly a quarter million children refused the test last year and will benefit from the Common Core Task Force recommendations.  The District is refusing to reconsider the weighting of the admissions criteria and appears willing to penalize Buffalo school children, whose parents made them a part of this movement.   This is not acceptable.

Opting out of the High Stakes Tests Game

A number of you have asked why I am so adamantly opposed to testing.  The answer is that I am not opposed to testing.  As a public school teacher and adjunct professor I gave plenty of tests to my students.  Tests, to determine knowledge attainment, assess intellectual ability and diagnose student learning needs, are part of the educational landscape.   My opposition however, is to high stakes; one-size fits all standardized tests that purportedly evaluate student learning but are also used as a comparative instrument of “accountability”, the bureaucratic euphemism that bases individual student and school achievement as well as school district achievement on a common exam. 

Over the last decade the NY State Education Department instituted an annual testing ritual, to comply with the Federal government’s No Child Left Behind legislation.  Hundreds of thousands of children in grades 3-8 take these standardized tests in English Language Arts (ELA) and Math.   The results contribute to a system that labels students, their schools and their school districts according to the final scores obtained.  The labels have changed over the years, but at the lower end of the scale, whether the term is “failing”, “in need of improvement”, “priority”, “struggling” or “persistently struggling” the stigma of failure and incompetence is difficult to overcome.   The high stakes nature of these tests is compounded by the use of student scores as a percentage of the matrix that determines teacher and principal evaluations.

In 2012, the State adopted the Common Core State Standards and created new high stakes tests aligned with the CCSS.  The new tests seemed to be designed to fail students.  In fact, the State Education Department predicted in 2013 that there would be a high failure rate on the new Common Core ELA and Math tests because of changes in the curriculum and the tests.  The outcome has been disastrous.  Results are reported on a 4 point scale, with a score of 3 or 4 considered to be proficient.  In 2013, the percentage of students deemed to be proficient, statewide was ELA  31.1% and Math 31.1%.  In spite of reassurances from SED officials, scores for subsequent years showed little improvement.  The 2014 ELA  scores declined to 30.6% while Math scores showed a slight increase, 36.2%.  2015 results remained dismal with ELA at 31.3% and Math at 38.1%. 

If these results are not enough to raise concerns about the validity of these tests and their usefulness in providing an accurate measure of a child’s ability in reading and math, several other issues have been identified as problematic.  The tests are not diagnostic and even if they were the results are returned too late  to be used to individualize instruction.  Children’s developmental needs are not considered in this testing scenario.  ALL children in a grade level, including special needs children and children who have limited English language ability, are given the same tests.  The failure to address this diversity has contributed to test results that adversely impact children and schools especially in urban districts with greater populations of English Language Learners, students with disabilities and children living in poverty.

The legitimacy of Common Core aligned tests, in particular, has been questioned.  Parents and teachers were alarmed when they examined sample test questions and found that the reading level, in many instances, was two to three years above grade level.   It also appears that the tests are deliberately designed to confuse students by offering alternative answers that are plausible while the “correct” answer is obfuscated.   Errors have been discovered in the tests and some adults who have taken them have stories to tell about their own struggles to discern correct responses.  Parents and educators have cited numerous problems with the inordinate amount of time spent on test prep, which limits students’ exposure to the arts, physical education and even subjects such as history and science.  Parents also complained about the test anxiety that some students experience related to the stress of taking hours-long timed tests over a six-day period.   

State Education leaders were slow to listen or respond to the concerns, complaints and observations of parents and educators until they organized a massive statewide test refusal campaign.  Last year the Opt-Out movement resulted in the refusal of nearly a quarter million students (1/5 of New York’s student population) to take the ELA and Math standardized tests.  Even Governor Cuomo heard the concerns and appointed the Common Core Task Force to examine the standards implementation and the standardized tests and curriculum aligned with them.  In December that committee issued a report that recommended 21 changes, half related to standardized tests.   The final recommendation proposed “Until the new system is fully phased in, the results from assessments aligned to the current Common Core Standards, as well as the updated standards, shall only be advisory and not be used to evaluate the performance of individual teachers or students.”  The Task Force’s recommendations were accepted by the Regents. This moratorium is supposed to be in place effectively until 2019.

Given these developments, one would think that we could expect relief from the insanity of high stakes testing.  But, that is not the case.  This year, the ELA/Math testing continues with minor changes. Commissioner Elia is shortening the tests by eliminating a few questions.  However, the tests will remain the same as those constructed over the last three years.  An accommodation is being made to give students as much time as they need to complete the test, which may actually add more stress for some students.  The bottom line is that little has changed.  Our children are still be subjected to needless and meaningless testing.

For these reasons, the Opt Out Movement continues.  On March 12^th, you’re invited and urged to attend a forum to learn more about how this movement is geared to protect our children from  needless and questionable testing.  Buffalo State College – 12:30pm; Buffalo State College - Classroom Building C-122.  It’s not too late to Refuse the Test!