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Attorney general says “no” to testing waivers

The State Board of Education does not have the legal authority to grant waivers from parts of the state’s language arts and math assessments, Colorado Attorney General Cynthia Coffman has ruled.

The ruling directly counters the State Board of Education’s Jan. 8 directive to education Commissioner Robert Hammond that he grant waivers to any districts that requested exemption from the first parts of those two tests. The board passed that resolution on a 4-3 vote (see story).

Hammond has said that he would not issue waivers if the attorney general advised that it wasn’t legal to do so. Prior informal advice from the Department of Law indicated that waivers were not allowed. But a formal attorney general’s opinion has the force of law.

The board is expected to take the issue up again at its Feb. 18 meeting. As of Monday, 10 school districts had applied for waivers, including Jefferson County, the state’s second-largest. There is urgency to the legal question, given that testing starts early next month.

Noting that state law requires testing of “all” students, the opinion says, “This requirement is explicit and without exceptions. … The relevant statutes grant no authority for any school district to opt out of administering the statewide assessment, nor does any statute authorize a school district to administer its own assessment or test as an alternative to the statewide assessments.”

The opinion also notes that state law requires Colorado, as a member of the PARCC testing group, to administer the tests developed by that group.

Opting out of just the first portion of the PARCC tests also is not permitted, Coffman wrote. “If either component of the test is not administered as designed, the assessment as a whole is invalid. Thus, students who do not complete both components of the test will not receive valid English Language Arts and Math scores, resulting in a violation of the statutory requirement that all students enrolled in Colorado public schools take statewide assessments.”

The first part of the tests is called the “performance-based” component and emphasizes written responses that take longer to score. The second part, to be given starting in late April, is more focused on multiple-choice questions that can be scored quickly.

Coffman found that the State Board isn’t authorized to grant waivers for three legal reasons:

  • The legislature has granted the board only limited waiver powers.
  • The board doesn’t have the legal discretion to direct how the Department of Education administers statewide tests.
  • Neither the board nor the department have the legal discretion to modify the PARCC tests.

Some bills pending in the 2015 legislative session propose to change state testing law, including Colorado’s affiliation with PARCC. The more sweeping bills are Republican-sponsored so have little chance of passage in a legislature with split party control.

The opinion is dated Feb. 4 but was released Tuesday by CDE.

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