Notice regarding “opting-out” of statewide assessments

The following Priority Notice from Maine DOE Acting Commissioner Tom Desjardin was sent to schools on Wednesday, May 20.

Dear Educators,

On Monday (5/18/15) the legislature’s Joint Committee on Education and Cultural Affairs held a work session on LD 695 “An Act To Empower Parents in the Education of Their Children by Allowing an Opt-out from Standardized Assessments.” The end result was that 11 of the 13 committee members voted not to force local school districts to inform parents of their right to opt-out of statewide assessment. Two of the eleven voted to pass a version of the bill without that requirement. The bill now goes to the Maine House and Senate.

Discussion of the bill included a lot of information regarding the legal aspects of this potential action. This included legal opinions from attorneys with both the Office of the Maine Attorney General and the legislature’s Office of Policy and Legal Analysis.

Both attorneys advised the committee that parents and students have a right to not take the standardized statewide assessment. No one is going to force a child to sit and take the test. They do not, however, have a right to be shielded from the consequences of that act which could range from action by the school district or loss of federal funding for the school. Local school districts in Maine have the authority under state law to place requirements on students and not award a diploma if the student does not meet these requirements. This could include things such as community service, a senior year graduation exam, or participation in statewide or local assessments.

While parents and students have the right to refuse to fulfill these requirements, they do not have the right, for example, to force the district to award a diploma after they refuse.

When a local school district receives federal funding — all of Maine’s districts do — the superintendent must certify to the USDOE in writing that the district will comply with all laws and requirements in order to receive the money. One of those requirements in federal law is that Maine schools must reach a participation level of 95% on statewide assessments. If a school fails to reach that level, the certification is invalid and USDOE has the legal right to withhold federal funds.

Recently, the USDOE has made public statements about their intended response to widespread opt-out occurrences. At first, their reply to inquiries explained that they had “a host of enforcement options.” More recently, Secretary Duncan has stated that if the states will not enforce these measures the federal government will.

Since the 95% requirement is in the federal law that allows and governs federal education funds, the only recourse the USDOE has is to withhold some or all of these funds. To not do so would be to neglect their duty to uphold federal law.

Currently, the U.S. Congress is considering a bill in each house to rewrite the Elementary and Secondary Education Act (ESEA) often referred to as the “No Child Left Behind Act.” Both the House and Senate versions of the bill include the requirements around statewide assessments, so whether this bill replaces the federal law or not, those requirements are likely to remain.

Additional legal information regarding “opting-out” with citations in the respective federal and state laws can be found here.


Tom Desjardin, Acting Commissioner
Maine Department of Education

2 thoughts on “Notice regarding “opting-out” of statewide assessments

  1. This an extreme and overstated version of what the federal government might do, as to technical requirements and political realities. For more on that, see There are a great many unenforced provisions in the law, even including testing.
    In addition, the Senate rewrite of ESEA/NCLB that the article refers to includes a provision that says the 95% requirement will NOT override a state or local law or regulation that allows opting out. Colorado just became the 8th state to legally allow opting out – Maine should do the same.

  2. First of all , education is not an enumerated power . See 10th Amendment of U.S. Constitution.

    Second, See Article Viii, Part First of the Maine State Constitution which reads in part, “the Legislature are authorizedand it shall be their duty to require , the several towns to make suitable provoision at thair own expense, for the surrort and maintenance of public schools…”

    Since all legislators and holders of publlc office are required to tke rhe oath of office (see Article IX Section 1 of State Constitution swearing to uphold both Constitutions, they are demonstrated scofflaws!

    A very concerned citizen & formerly presidentent Guardians if Education aka GEM.

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