Testing accommodations and opt-outs: who decides

The Every Student Succeeds Act (ESSA), the federal education law found at 20 U.S.C. 6311, requires every state that takes federal Title I money to test students in math and reading or language arts in each of grades 3 through 8 and at least once in grades 9 through 12, and in science once in each of three grade bands: 3 to 5, 6 to 9, and 10 to 12. The state picks the test; the federal law only sets the schedule.

The same section requires states to measure the achievement of at least 95 percent of all students, and 95 percent of each subgroup, on those tests. That 95 percent figure is why principals push hard for attendance during testing week. It is a rule about the school's accountability numbers, not a rule that punishes an individual student.

ESSA does not create a right to opt out, and it does not forbid one. Section 6311(b)(2)(K) says nothing in the testing paragraph preempts (overrides) a state or local law about a parent's decision not to have a child take the tests. So the answer lives in your state's law or your district's policy, and it varies.

There is one federal rule that helps you find out. Section 6312(e)(2), called 'testing transparency', requires each district that takes Title I money to tell parents at the start of each school year that they may request, and the district must provide, its policy on participation in state tests, including any policy, procedure, or parental right to opt the child out. If the front office says 'there is no such policy', ask for that answer in writing and cite the section.

For a student with a disability, the accommodation question is settled long before testing week, on paper. Under 34 CFR 300.320(a)(6), an IEP must contain a statement of the individual accommodations needed to measure the student's achievement on state and districtwide assessments. If the team decides the student should take an alternate assessment instead, the IEP must say why the regular one is not appropriate. ESSA itself, in section 6311, requires states to provide appropriate accommodations on the tests for students with disabilities, including students who get accommodations under a law other than IDEA, which is how a 504 plan reaches the state test.

The practical point: an accommodation that is not written in the IEP or 504 plan is not guaranteed on test day. Some classroom supports (a calculator on a math section, for example) may be limited by the test itself. The Supreme Court's standard in Endrew F. v. Douglas County School District (2017), that an IEP must be reasonably calculated to let the student make progress appropriate to the student's circumstances, is the reason a team cannot wave the question away.