Utah School Violates Law, Forces Students to Take Exams Against Parent’s Wishes

Editor’s note: Heather Gardner is a parent of several children attending school in Utah. A few days ago, using a legal opinion from an Assistant Attorney General that contradicts the purpose and intent of a “parental rights” law in the state, her daughter was forced to take an exam that she had opted her out of. 

This morning, Heather filed a formal complaint with the Utah State Charter School Board. Below, she recounts this and other experiences her children have had being told by teachers to do what her parents said she didn’t need to comply with. The comments in this interview do not necessarily reflect the views of Libertas Institute. 

Libertas Institute: Tell our readers a little about yourself.

Heather Gardner: My husband and I are the parents of five children. I’m currently a professional photographer, and own two book review websites. I also teach at Liberty Hills Academy, a private school in Bountiful. I ran for the state school board during this last election, and did not make it on the ballot because the Governor’s nominating committee ended my candidacy. However, I did petition Judge Waddoups to put myself and all the other rejected candidates on the ballot once he ruled that the process was unconstitutional, but my petition was denied. I was appointed by Senator Niederhauser to the standards review committee for Fine Arts curriculum in Utah.

I’ve tried to stay very informed about educational issues, related legislation, and to attend my local school board meetings and legislative sessions. I’m a special needs mom and advocate for students and parents.

LI: Can you give a brief overview about assessments conducted on students in government schools?

HG: There is quite a long list of assessments in Utah schools, including Kindergarten assessments, Student Assessment of Growth and Excellence (SAGE), Dynamic Indicators of Basic Early Literacy Skills (DIBELS), NAEP, ACT, and UAA tests.

One change that has come about in the past two years is SAGE which used to be the CRT exam. These assessments are now conducted several times throughout the year. There’s an interim assessment, usually given at the beginning and middle of the school year, and then there’s a summative assessment at the end of the year.

These are computerized adaptive tests, meaning that the test actually changes as the student answers—it adapts to the individual student. They use sensory means, lights, colors, headphones—so it’s not a traditional paper and pencil test. The company that runs this test is based in Washington, D.C., and is called the American Institutes for Research. Many parents have concerns that it’s not a local test, but rather a part of Common Core and national standardization. Currently, we take the test in mathematics, English language arts, and science.  In addition, there is a formative assessment and assignment system which is proctored by AIR and designed to be used daily by teachers.

The DIBELS exam is a reading assessment administered to 1st, 2nd, and 3rd graders at the beginning, middle, and end of the year—three times to assess if a child is on benchmark for reading.

On average, students are spending about 8 to 10 hours per SAGE exam—time to take the test as well as additional time to log into the SAGE portal to practice. Students are also spending hours on computers to learn typing skills. They log into Utah Compose, a writing practice and formative assessment, several times a week. Each year, hundreds of hours of instructional time is lost to practicing for, and taking, evaluations.

One of the main concerns that parents have is privacy. Each portal, app, website, and individual assessment is managed and maintained by a different outside corporation. Your specific student’s data is transmitted and shared, and, in most cases, stored. The State Office of Education is providing these companies with personally identifiable information. They’re storing data on our children, from the time they enter public school to the time they’re 20 years old—with little to no transparency.

Parents should have the right to opt in, instead of opt out. We should know, before a teacher creates an online account or the state automatically uploads information, each company’s privacy policies, data storage mechanisms, and their terms of service. What type of data is being daily uploaded and exchanged in Utah? If a child opts out, their information should not be shared—but it is. If a parent wants their child’s account deleted and data expunged, they should have that right under COPPA and FERPA laws. We have tried, but failed.

LI: You said 8 to 10 hours are spent for each exam?

HG: Yes, per SAGE exam.  For instance, we opted my daughter out of the SAGE interim exam, but her class spent 1.5 hours a week for seven weeks taking the exam. That didn’t include the practice sessions in a computer lab. At our school, they’re taking SAGE three times a year—so if you add up the math, that’s a lot of time lost to testing.

LI: Parents who are concerned with these exams have the ability, under a law passed last year, to require their school to “excuse [their child] from taking a test that is administered statewide…” Can you speak to the purpose and effect of this law?

HG: The intent of that law was to allow parents to opt out of any state or nationally administered test. Basically, the law states you can make a written opt-out request in any form and give it to your school. That alone allows you to legally opt your child out of the test.

LI: Having now been provided this opportunity to opt out, can you speak to why you personally, and other parents generally, want to opt children out of these tests?

HG: I opted my children out of these exams for several reasons. First, test scores are being linked to merit-based pay in Utah. So teachers are going to be receiving pay, and schools are going to be receiving grades, based on how well students perform on these high stakes tests—leading teachers to merely “teach to the test” out of their own self-interest. These tests are not used to grade students, they are used to grade teachers and schools.

You’ve got a pool of students with very different abilities, some with special needs, and you’re telling teachers that their pay is going to be based on how students achieve on a standardized test. I think it’s unfair to students, teachers, and schools, to assign this type of accountability.

The second reason I chose to opt out of SAGE in particular is because I went to AIR’s website and saw that it was a behavioral social science research organization. Their mission is to conduct and apply behavioral and social science research. My degree is in psychology, and I’m well aware of many evaluations that take place. However, before a child or a parent takes any kind of assessment that is behavioral or psychological, the parents must give implied consent, meaning they have to sign a form, giving consent for their child to be tested.

In no way, shape, or form have parents given consent for their children to take these tests in Utah schools. In fact, many parents aren’t even aware that they are computerized or adaptive. For me, as a psychology major, and having worked in social work, this raises some major concerns.

Third, I do not think the assessments were piloted, nor are they based on sound research. Our kids, therefore, are being used as guinea pigs; we’re trying out tests to see if they work, and what they might measure. That’s yet another question I have. What are we measuring? Are we measuring academic proficiency? Grit? Personality? There’s really no way to know.

Testing in general tends to stress out children. We’re asking 3rd graders to get on a computer and regurgitate facts! We are hitting students left and right with assessments. If you have a child who has test anxiety, they should be given the right to opt out.

What it really and finally boils down to is that I am the parent. My child is a minor, and I do not feel school administrators or teachers should be forcing my student to take a test or log onto a computer for formative assignments against my wishes; I know my child best. I think a good teacher is going to know whether a student is proficient simply by working with him or her and seeing their assignments. I’m a teacher, and I can tell very quickly if a child is not grasping a concept, if they’re not reading fluidly, or understanding math. I can see that in the classroom. I don’t see a need for all these excessive standardized tests.

LI: Has the school your children attend, and the school district, honored your decision to opt your children out of the exams?

HG: No. Originally, when I put in my opt out request at Legacy Preparatory Academy, I was told that my children had to take all of the assessments under state law. So I did some research, found the supporting legislation, and called the Utah State Office of Education. I let the school know in writing that I had a legal right to opt my child out.

In the process, the school challenged my right to opt out—I was definitely not sure that they would honor my request to do so. As such, I also asked that my children not log on to computer portals, apps, or websites of any kind.

But they coerced my children to use the practice portal, and they administered an alternative exam to my children on SAGE testing days. The way the law is written right now gives schools the ability to give an assignment to a child to work on while the other students are taking the test. Our school, despite our opt out and explicit instructions not to given an alternate exam, went ahead and gave an alternate exam to two of my children.

My first child protested and said that she didn’t want to take an alternate exam—that I had told her she didn’t need to take it, having opted her out. The teacher told her that she had to anyway. That caused my child anxiety, because she had to choose the school authority over parental authority. I as her parent was not present to help her with that decision or to give input or advocate on her behalf. My second child refused and was smart enough to “pretend to take the exam.” He turned his exam in blank, then copied down the web address of the alternate exam.

We again reiterated our opt out, in writing, to the school and let them know that if it was going to be a problem we would keep our kids home on testing days—the State Office of Education had put in their memo to schools that this was an option for SAGE opt outs. We started keeping our kids home on testing days, and one of the teachers began marking those as unexcused absences.

You end up between a rock and a hard place. If you keep your kids home, they may hit you with absenteeism and truancy. If you send them to the school, you may have an alternate exam given to your child even though you expressly said you did not want that. There have been teachers offering family dinners, donuts, and candy as incentive only to kids who take the test and do well on their formative assignments.

Last week our school sent us a certified letter informing us that if our children did not participate in some of the tests and computer programs we had opted out of, that we were not welcome on campus—and that if our children came to school, they would be assessed. We were informed we could homeschool and dual enroll our child for part of the day, but that our children would still be assessed, even in subject areas they were not enrolled in.

This past Friday, my 3rd grader came home and informed me that her teacher had pulled her aside, singling her out, and told her that she had to take the DIBELS reading exam. Her classmates had already taken it earlier in the week. She protested and said that her parents didn’t want her taking the test. She refused the teacher’s demand. The teacher overrode her objection, telling her that by law she had to take it.

So you have a 3rd grader—my young daughter—being forced by the school to take a test when her parents have sent in a legal opt out letter. That’s the situation we’ve been put in.

I believe the pressure is from administration, and ultimately the State Office of Education. Schools are scared to lose funding. There is a new obsession with collecting data.

LI: By what legal authority does the school claim the authority to force your child to take select assessment exams?

HG: The Utah State Office of Education put out a memo in September, stating, in their view, what exams parents could and could not opt out of. It relies upon a legal opinion offered by Assistant Attorney General Chris Lacombe which states that students cannot legally opt out of the ACCESS and UAA testing as well as the Direct Writing and Reading assessments. This is not law, it’s one attorney’s opinion—but the school system in Utah is now interpreting it as law in their favor.

Last Friday, I spoke with Senator Osmond, who sponsored the 2014 parental rights bill that provided the ability to legally opt out of these exams, and he confirmed that this position—including the Assistant Attorney General’s opinion—is contrary to the legislative intent of the law he helped enact.

LI: What do you see as the path forward for you and your children? You’ve been put in between a rock and a hard place, as you say, not even being allowed on campus—what now?

HG: Honestly, at this point, my most important priority is protecting and safeguarding our children. In a situation like this, where the school starts to single you out and force you to do something against a child’s will or against parental desires, that’s just wrong. We asked our children if they wanted to remain at the school, and two of them are undecided. I have two that did not want to stay—they were under significant anxiety and stress. We withdrew them from the school before we received the certified letter informing us we were no longer welcome. They are now enrolled in a private school.

Not all parents have the ability or the financial means to attend a private school, or even to homeschool. In our case, we’re lucky in that we were able to consider both of these options. I have two children that are in the middle of a school year and love their friends. They want to honor their parents, but feel a sense of duty to their teachers. So, I as a parent have done my best to address concerns through proper procedure—with the executive board, the teachers, and the administration. I presented a parental rights and data privacy policy for board review, offering solutions.

In our case, though, I feel like we’ve reached a brick wall, and that our parental rights under the law have been ignored. I feel our family is being singled out and they want us to leave, so as not to affect their attendance, proficiency, and funding.

Sadly, there are a lot of parents in my position who don’t know the law and who, as a result, would back down under pressure and do whatever the administration tells them to do. You do not have to attend a meeting with your principal after opting out, you do not have to sign a specific form. No one should be forced to test.

LI: If you had the Utah legislature’s attention for two minutes, what message would you convey?

HG: I would tell them, directly quoting from Utah’s laws, that a student’s parent or guardian is the primary person responsible for their education, and that the state is in a secondary and supportive role to the parent. As the law also says, “It is the public policy of this state that parents retain the fundamental right and duty to exercise primary control over the care, supervision, upbringing, and education of their children.”

There needs to be a return to parental rights and local control. Let us safeguard child privacy. Include parents along every step of the way as partners—not “stakeholders.” Students should be our number one priority—not dollars, not school accountability, not corporate influence.

Are we doing what’s in the best interest of our children?

  • OakNorton

    This is sick. Schools that violate the law should be slapped with criminal charges for lying and manipulating children to do something their parents don’t want them to experience.

  • Tgardner

    I agree Oak, additionally they should be removed from their jobs!

  • Jennifer Huefnet

    It’s unfortunate that so many parents aren’t assertive enough to put a stop to this. All it would take to end this extremely inappropriate behavior by BIG education is for parents to refuse it. Why are more parents not protesting the radical change that has come to our schools? Stopping it now is much better than later.

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  • Sean Catherall

    A few things in this article confuse me. I don’t necessarily disagree;
    I just don’t understand:
    1.If the main concern is privacy, would it not be
    more effective to work outside the classroom through legislators and law
    enforcement to assure that student information remain private instead of
    engaging in a struggle over the assessments themselves inside the classroom?
    2.If assessments are not used to measure teacher
    performance, what method is proposed to measure teacher performance? Is “teaching
    to the test” a bad thing if the test content and methods are appropriate? (If we want
    students to learn basic arithmetic, for example, why would it be a bad thing to
    teach the skills needed to succeed in a basic arithmetic test?)
    3.Is there any evidence that standardized testing
    companies are using student data for social science research as opposed to
    using the outcome of (informed consent) research to create and improve
    standardized tests? Is there any evidence of harm to children resulting from educational/assessment research conducted using student data without informed consent? Are there
    assessments that have been piloted and that are “based on sound research” that
    are being proposed or recommended to replace those currently in use?
    4.If the “most important priority is protecting and
    safeguarding our children,” which of these two wastes more time and causes more
    stress for children: Preparing for and taking tests or being used as pawns in a
    political struggle? (As a child in the days before every teacher had a cell
    phone and an e-mail address, I was the carrier of notes back and forth between
    my mother and my school’s faculty and staff. That alone was more stressful than any
    test I ever took.)
    5.Since assessments are a necessary part of
    education, why would a parent who wants to pre-screen every assessment and opt
    out of some assessments place a child in a classroom that administers an
    assessment that parents are not allowed to opt out of or that doesn’t allow
    parents to pre-screen every assessment? How can a parent (exercising their
    responsibility for their child’s education) place a child in a public or
    private classroom without consenting to the content and methods of instruction
    and assessment used in that classroom? Does the constitution require the
    educator to obtain opt-in from every parent for everything done in the
    classroom (speaking from a constitutional and common sense standpoint, not from
    the standpoint of interpreting current state law)? Who is accountable for the
    outcome when we place our children in a classroom, if not the educators and the
    administrative structures that support them? If we want to retain the
    accountability personally, why are we placing them in classrooms in the first
    6.How can a constitutionally-limited government be
    empowered to force children to attend school but be denied the power to decide what
    “school” is in terms of its content, methods and outcomes? Doesn’t being given
    the first power but not the second simply give the government the power to
    mandate baby-sitting? Would the repeal of compulsory education laws resolve the
    conflict and is that the ultimate goal here?
    7.When a parent opts out of an assessment, how
    does that impact a school’s proficiency rating or funding?

  • DW

    Money talks. It will be a very steep battle against trickle down education if we keep taking federal money to help fund our schools. If they pay, they will make demands and we will, find ourselves forced to comply. States should fund their own schools and by so doing will have all the say on what happens. Is this possible?

  • Rational Animal

    Sue in federal court and seek an emergency injunction requiring the school district to admit your kids.

  • Dawn

    I skimmed over your information and I did not see any links to The Reading First Program mismanagement and conflict of interest. You can go to the Office of Inspector General U.S. Department of Education and view or download documents/testimonies related to this matter. To my understanding, so far, DIBELS was the conflict with reading first program. The panels failed to meet the criteria for NCLB

  • Dawn

    Oh….you can also go to The University of Oregon’s website and read their statement for DIBELS. They have a legal document stated they are not responsible for users of dibels. It’s funny how individuals think they can peer review their own research!

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  • Sara

    I find it so unfortunate that you say that you are doing what is best for your children, when really, you are using them as pawns in your political battle.  To say that a PUBLIC school has no right to assess children at the end of the year, or that a teacher has no right to offer an alternative assessment, is absurd.  If you don’t like it, send your child to a private school.  You throw your weight around and believe that you have the right to place demands on your child’s teacher, attacking them because they believe in the right to assess their students. I am a teacher, and there are two types of opt out students.  The ones who quietly go about their business, and the ones who brag to everyone that they don’t have to take the test.  Needless to say, the second student makes it very difficult to run my classroom during testing.  So, I think you’re ridiculous to say that I am not allowed to administer an alternative assessment that is not linked to SAGE.  The battle with SAGE was due to the public reporting, correct?  But now you’re trying to prohibit me from any type of assessment of my students’ abilities?  Who do you think you are?  Just being their parent doesn’t make you an expert on their education.  Do you go to the dentist and tell them that you’re an expert on your child’s dentistry needs because they’re your child?  I think not.  But you feel that you know better than your child’s teacher?  Offensive, offensive, offensive. 

    I don’t reward students who take the test, and I don’t punish those who don’t.  I give a blanket statement of instructions for SAGE and a blanket statement for the instructions for the alternative assessment.  YOU are the one embarrassing your child by continuously demanding that the school acquiesce to your unreasonable dictates, and causing a scene every time that they don’t.

    Another of your arguments was that testing causes extreme anxiety.  If you think they have anxiety now, what happens when they go to take college entrance exams?  The SAT, the ACT? Do you honestly think that having opted out of testing for every year since the age of 9 that they will be prepared?  Almost 80% of colleges now use test scores as a criteria for determining admission. 

    I understand that you think you’re doing what’s best for your children, but I am also a mother, and I would never put my kids in the middle of this “battle” the way that you are doing now.