Nick Krieger (@nckrieger):
The Every Student Succeeds Act (“ESSA”), signed into law by President Obama on December 10, 2015, has replaced its controversial predecessor, the No Child Left Behind Act of 2001 (“NCLBA”). Among other things, § 1111(b)(2) of the ESSA requires the states to test public school students in mathematics and reading every year in grades 3 through 8, and at least once in grades 9 through 12.
Unlike the NCLBA, the ESSA does not set forth a precise list of federally mandated corrective measures and intervention strategies for low-achieving schools. Instead, the ESSA returns significant discretion and control over the improvement of low-achieving schools to the individual states.
In enacting the ESSA, Congress expressly provided that “nothing in [§ 1111(b)(2)] shall be construed as preempting a State or local law regarding the decision of a parent to not have the parent’s child participate in the academic assessments under this paragraph.” 20 U.S.C. § 6311(b)(2)(K). In other words, Congress has essentially invited the states to enact laws permitting parents to opt their children out of standardized assessments.
The Republican majority in the Michigan Legislature claims to support local control over education and to oppose onerous federal regulations. Why, then, have our state lawmakers not introduced legislation consistent with 20 U.S.C. § 6311(b)(2)(K) that would allow parents to opt their children out of these federally mandated standardized tests?
The reason is simple. Michigan’s state legislators talk out of both sides of their mouths. While they claim to support local decision-making and parental choice, they also support more and more high-stakes testing. After all, these same legislators believe that test scores should be used to assess pupils, evaluate teachers, and determine which schools should be closed. Without annual standardized testing, GOP lawmakers would lose the measurement tool on which they rely to falsely portray our teachers as incompetent and our public schools as failing. These yearly test-score data — which can be manipulated to prop up false narratives just like any other statistics that fall into the wrong hands — are critical to perpetuating the GOP’s anti-public-education agenda.
We don’t need to wait for the Legislature to act, however, because Michigan already has state laws that protect “the decision of a parent to not have the parent’s child participate in the academic assessments” within the meaning of 20 U.S.C. § 6311(b)(2)(K). They’re called the due-process clause of the Michigan Constitution and § 10 of the Revised School Code.
The substantive component of Michigan's due-process clause is coextensive with the substantive component of the 14th Amendment due-process clause. See, e.g., People v Sierb, 456 Mich 519, 523; 581 NW2d 219 (1998); Cummins v Robinson Twp, 283 Mich App 677, 700-701; 770 NW2d 421 (2009). It has long been recognized in the context of substantive due process that parents have a fundamental liberty interest in directing the education, instruction, and upbringing of their children. It is this fundamental liberty interest, for example, that guarantees parents the right to homeschool their children, send their children to private schools, and keep their children from participating in certain school activities that they deem objectionable. Courts have routinely recognized that parents have a fundamental right to make their own choices regarding their children’s education, even against the backdrop of seemingly contrary state or federal laws.
The Michigan Legislature has codified this principle in § 10 of the Revised School Code, MCL 380.10, which provides in relevant part that “[i]t is the natural, fundamental right of parents and legal guardians to determine and direct the care, teaching, and education of their children.”
In short, it is almost certain that a parent’s right to opt his or her child out of standardized testing is already protected by Michigan’s constitutional due-process guarantee and the statutory right set forth in MCL 380.10 (not to mention the 14th Amendment of the United States Constitution). And nothing in the ESSA can be construed as preempting this parental liberty interest.