Timothy Higus

Senior Editor

Loyola University School of Law, JD 2021 

Ah, the spring – the smell of rain, sights of blooming flowers, the sounds of birds chirping, and government-imposed standardized tests. School leaders, teachers, and even state superintendents are again asking the U.S. Department of Education (“ED”) to waive their obligation to take standardized tests this spring and the ED has provided a compromise. This is the second year that Covid-19 and school closures have put standardized tests in jeopardy. Given a significant change in the ED administration, schools had added these tests, and their implications, to the long list of unknowns resulting from Covid-19. They received their answer, although for many, not the answer they wanted.

The testing requirement

Before the pandemic, I wrote about the reporting requirements under Every Student Succeeds Act (“ESSA”). Under the act, which is a reauthorization of the Elementary and Secondary Education Act of 1965, states are required to test their students for accountability purposes. Although ESSA does away with the Adequate Yearly Progress benchmarks that were a contentious hallmark of the earlier reauthorization, titled No Child Left Behind, schools are still required to test in reading, math, and science. Although students’ parents may opt out (a significant push in 2018), ESSA requires at least ninety-five percent of students (including subgroups) to take these tests. In a normal year, states are to use these standardized tests, along with other criteria, to place schools into designations that are reported publicly.

Last year, many of the tests were to be taken just as schools were closed to prevent the spread of Covid-19. Betsy DeVos, the former Secretary of the ED, invited school districts to apply for a waiver from the accountability requirements under ESSA, but in September, made it clear that the department would not waive those requirements again. However, the new administration and Secretary Miguel Cardona had left it open as a possibility in late January by extending the deadlines for states to apply for a waiver past February 1.

ED treatment of waivers

Many, therefore, were disappointed and frustrated when the ED sent a letter to state education leaders on February 22 explaining that, while they were going to be flexible with states, they would not be giving blanket waivers for the accountability requirements found in ESSA. The department makes a distinction between accountability, school identification, assessments, and public data reporting. The letter invites schools to apply to waive the specific accountability and school identification which would forgo schools’ obligations for long-term achievement goals and school designations. But it is clear that the department still expects states to test their students and report their data in school report cards. The department recognizes that there are many hurdles to testing students this year and offer some solutions including extending the time windows students may take the test, administering shorter tests, and even administering tests at home.

What barriers are there to testing this year?

Of course, many school leaders and teachers are concerned about just how bad the data will be this year. Not only did all students miss nearly an entire academic quarter of in-person learning last year (and were subjected to remote learning that was being developed “on-the-fly”), but schools have had mixed approaches to the 2020/21 school year. Many have stayed remote, delivering instruction online, while some have had hybrid returns to facilitate smaller class sizes, and some have been in-person. This raises obvious questions about the validity of the data including whether the decline in student achievement is attributable to the method of instruction, the quality of the instruction, or other factors such as familial illness, death, or loss of income.

Many opponents, including the American Federation of Teachers, argue that testing pulls students from instruction time that is more critical than ever this year. This testing comes at a time when many schools are simply trying to navigate a return to in-person learning. Last month, I wrote about the CDC and ED’s guidance for school reopening. Now, in addition to the difficulties presented with school reopening, school leaders will also have to publish testing schedules and develop plans for students to test after a fourteen-day self-isolation when the rest of their class has already tested.

Additionally, schools are trying to figure out how to test students who are remote learning by choice. Many schools that offer an in-person option, either fully or hybrid, are also offering fully remote instruction for students who do not feel safe returning to school in any capacity. Because of this concern, ED has provided that schools may test students remotely where feasible and will explicitly waive the requirement in ESSA that ninety-five percent of students must be tested.

Why do we need to test students?

Amidst the opposition to standardized testing this year, there is arguably a compelling argument for testing students this year — data. In order to know where students stand academically and which students have been affected the most, decision-makers need some kind of benchmark data. This data needs to account for all subgroups and instruction methods to give the full picture of how the pandemic has affected these students. Although it is inconvenient to test any year, and especially this year, it should be done in the name of analysis. Will it show that many students were left behind? Likely yes. Will it show that every student is succeeding? Likely no. This data will likely be abysmal compared to previous years from an educational growth perspective, but that is precisely why we need it — to determine student’s academic position to goal set and grow. This data will be invaluable to education policymakers for years to come and ED made the hard decision to make it happen.