Home > Uncategorized > Depends on What Your Definition of “State Mandated” Is

Depends on What Your Definition of “State Mandated” Is

May 2, 2014

A reader emailed me an exchange between a technology group and Kurt Bernhart – the Executive Director of Research & Development in the Office of Accountability and Asessments – with the Oklahoma State Department of Education. Basically, they wanted to know whether or not the 95% and 90% testing rules* would apply to field testing item tryouts. Here is what he told them:

Hello all,

Regarding item tryouts and the 95% rule, here’s basically the answer. (Sorry for the legal speak, but it is required.)

According to Title 70, Sections 1210.508 and 1210.523 of the Oklahoma Statutes, the State Board of Education is required to conduct criterion referenced tests in grades three through eight, and conduct end-of-instruction exams in grades nine through twelve. Part of this requirement is that the State Board of Education must conduct field testing [item tryouts] to ensure that all criterion-referenced test items are validated and determined to be appropriate for assessing Oklahoma students. In addition to the statutory requirement, the State Board of Education’s administrative rule 210:10-13-2 states that “All public school districts in the state shall administer the state mandated academic achievement tests of the OSTP to all students enrolled in the designated grades.”

Also, not all districts were chosen in the field test sampling plan; however, those that were are required by the statutes and rules mentioned above to administer those assessments. Those districts who do not comply with the statutes and rules could face penalties from the State Board of Education.


Let me begin by saying that I’m not a lawyer, although I have a solid grasp on school law. Many people with whom I’ve talked feel the law he cites is limited in its scope. The term state mandated academic achievement tests, in my view, refers to those we legally have to give, not to the field tests item tryouts. At the end of the testing window, when we have administered all of those tests, we will have met that requirement. The statute and administrative rule are both silent on the issue of whether or not schools must participate in assessments given after schools have administered all of the subject-area tests.

Since we will not receive scores for these exams, I also have a hard time calling them academic achievement tests. Schools will receive no feedback about the extent to which their students achieved anything. They are tests over the standards that will be in effect next year. While most school districts have been working since 2010 or 2011 transitioning instruction from PASS to the Common Core, in most cases, that process is still not complete. Thus the field test item tryouts assess skills that have yet to be integrated into the curriculum. We won’t even know which items were successful in their tryouts and invited to join the squad!

We’ve seen hollow threats from the SDE about “penalties from the State Board of Education” before. The end result was Superintendent Barresi naming districts who did not participate in the Stress Tests in an email newsletter. Are they going to penalize parents who throw down their number two pencils and say, “I’ve had it!”? Will they be called out by name too?

It’s hard-core bluster aimed at the fact that the SDE has lost control of the people from whom it expects sheep-like obedience. We’ve also seen the SDE run away from Jenks and Owasso on this issue while forcing all the other districts to participate. Eventually (June 24th), they’re going to learn that standing in the door with their arms crossed doesn’t intimidate the rest of us either. This administration will say anything to scare school districts into compliance with nothing more than the equivalent of an outstretched finger pointed into our backs.


*Under Oklahoma’s No Child Left Behind waiver agreement with the feds, schools failing to test at least 95% of students enrolled in an assessed subject/grade will lose a letter grade on their A-F Report Cards. Schools failing to test at least 90% will receive an F.

  1. Kevin
    May 2, 2014 at 7:32 am

    You would have a hard time punishing a district for something you did not even require of other districts


  2. Jill
    May 2, 2014 at 9:06 am

    I think that is why they keep adding the “could” face penalties. There is nothing to back that up. It is an empty threat. And to say all districts were not chosen to participate-that refers to two districts in the entire state. It was not a random selection of districts. It was an attempt to quiet the masses which is going to backfire on them.


  3. Fred Aresco
    May 2, 2014 at 9:17 am

    IF ALL the schools fell under 90% what then? If EVERY child fails a test the test is most certainly invalid. What if every student tanked the test?


  4. Fred Aresco
    May 2, 2014 at 9:18 am

    * I am not advocating tanking the test, just wondering how the Great and Powerful Oz, ummm I mean the SDE would react then?


    • Teacher's Husband
      May 2, 2014 at 10:57 am

      After the results come in for my kids on the field tryouts, they’ll think my kids were in the Land of Oz.


  5. Levi
    May 2, 2014 at 11:18 am

    Let’s suppose everyone tanks or opts out… how would the state’s inability to enact the tests that are mandated by the USDE? There is always so much talk about why the SDE is evil. Please elaborate on what the real implications are. What would happen if the state was unable to test? Would the ESEA waive be impacted? If so, how? Would federal funding be impacted? If so, how? I always appreciate your analysis. Thanks.


    • May 2, 2014 at 6:28 pm

      Levi, I think every state should follow the lead of Washington State and tell the USDE they can have their waiver back. The US House and Senate have been cowardly and negligent in not reauthorizing ESEA. The current administration had no constitutional authority to circumvent NCLB legislation. The only reason no one is complaining is bc NCLB is terrible, yet they lack the leadership to make the needed changes. If all of the states went back to the NCLB mandates, Congress would have to get off their butts and do something. The withholding of federal funding is a bluff.


    • May 3, 2014 at 8:07 am

      I don’t know how opt outs on such a scale that tipped the scales on the validity of the results would impact the waiver. I actually did a keyword search of this blog and found no instances of the word “evil.” I think the agency still has quite a few people who trust and respect teachers. I will continue to call out BS when I see it, however. Idle threats as the one above are nothing but an attempt to cajole compliance out of schools when there is nothing of substance they can do to punish parents for opting out. When the SDE made the conscious decision to exempt Owasso and Jenks from item tryouts, they lost the last scrap of high ground on mandates. Parents are seizing on this to take their kids out of the testing environment or telling their kids to take the tests with indifference.

      Nonetheless, Oklahoma’s opt outs pale in comparison to many other states. The USDE will have to figure out what to do about the movement as a whole – not Oklahoma separately.

      Meanwhile, we teach, we learn, we carry on.


  6. W
    May 2, 2014 at 3:05 pm

    I’m a Director of Technology at a decent sized district. When CTB had their issues a few weeks back, and Baressi made the statement that evening that she would recommend that the state’s contract with CTB/McGraw Hill be terminated…I asked our superintendent if we needed to even do these tryout tests; as it makes no sense to be trying out the next generation CTB test client if CTB isn’t going to be around much longer.

    I emailed the state department and was told that yes, we had to administer the tryout tests since the state owns the test material and data and that information could be given to another vendor down the road.

    I’m….just not buying it.


  7. AnonymousEducator
    May 3, 2014 at 2:24 pm

    The state does own the test questions and data, although testing companies can be quite creative in thinking of ways to hand it over so that it is hard (and expensive) for the next company to use. Oklahoma started putting its ownership of the tests and data in its contracts after another set of debacles that ended in firing the testing company. We have fired nearly all of those companies, at one time or another, for lack of performance….yet, the contracts just keep getting bigger and bigger.


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