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Legislative Update

State and federal pupil assessment requirements are still in place for 20-21 school year

by | Feb 4, 2021 | Federal Issue, Legislative Update Blog, State Issue | 0 comments

Recently, the WASB Government Relations Team has received a number of inquiries about state and federal requirements to administer statewide assessments this year and the WASB’s position regarding waiving those requirements.

As of this writing, requirements for the 2020-21 administration of statewide assessments remain unchanged under both state and federal law.

With respect to state law, the DPI is specifically prohibited by section 118.38(1)(a)3., Stats. from granting a waiver from requirements to administer statewide assessments. The assessments required by state statute include the third grade reading test and statewide assessments administered in grades 4, 8, 9, 10 and 11.  This means a legislative change is needed to suspend the assessment and report card requirements at the state level.

As you may recall, the Legislature specifically suspended the statutory requirements related to administration of statewide assessments during the 2019-20 and the related school report cards that would have been issued this past fall by enacting 2019 Wisconsin Act 185. That act, which was passed on April 15, 2020, marked the last time the Legislature placed a bill on the governor’s desk. 

At present, the Legislature appears unwilling to repeat that action for the current 2020-21 school year. Your board may wish to consider weighing in on this issue.

In mid-November, Gov. Evers released details of a legislative package addressing COVID-19 including provisions to legislatively waive state assessments and report cards for the 2020-21 school year; however, lawmakers did not introduce those provisions in their COVID relief bills. On January 12, several state Senate Democrats offered an amendment to Assembly Bill 1 (the COVID package currently making its way through the Legislature) that included extending the Act 185 provisions on assessments and report cards to the 2020-21 school year. That amendment, however, was defeated by Senate Republicans on a party-line vote.

With respect to federal law, the U.S. Secretary of Education is granted discretion to waive federal assessments and report card requirements.  Such discretion was used by former Education Secretary Betsy DeVos to waive federal requirements for the 2019-20 school year; however Secretary DeVos declined to exercise that discretion with respect to the 2020-21 school year and her successor has not yet been confirmed.  (A confirmation hearing for Dr. Miguel Cardona, President Biden’s nominee for the Secretary of Education post was held yesterday (2/3) in the Senate Health, Education, Labor and Pensions Committee.)

It is unclear at present whether the new federal Education Secretary will grant a waiver. Civils rights and disability rights groups are strongly opposing the granting of federal testing and accountability waivers, arguing that it is vitally important to know how much the disruption of learning due to COVID has affected the achievement levels of low-income and minority students and students with disabilities.  Learning loss due to the pandemic among those groups of students is widely believed to have been greater than among other groups of students.  Groups advocating to maintain testing requirements cite a need for data on how serious this issue is so it can be addressed.  

In light of the foregoing, the DPI is currently advising that all districts and schools should begin planning for in-person testing now. That includes all schools, including schools whose current instruction is hybrid, in-person, or 100% virtual. If schools are not open for in-person instruction, DPI advises that, under current law, they still need to safely provide an in-person, school proctored testing environment if the local health orders allow students and staff to safely be in school buildings.

It is important to note that remote (virtual) testing options are not available for statewide assessments.

It is our understanding that the state’s contracts with testing vendors do not allow these tests to be administered virtually unless the test are administered in a proctored environment—so as to protect those vendors’ proprietary test questions and format. The state is currently trying to negotiate with those vendors to expand the testing window periods to provide more flexibility in administering these assessments, but those negotiations remain a work in progress.

On Monday, the DPI published notice in the state Administrative Register of a public comment period for its application to the federal Department of Education for a waiver of the 95% test participation requirement.  That comment period ends on Friday (Feb. 5). Here is a link to the DPI notice. The DPI apparently assumes that a full (flat out) waiver of the federal assessment requirements is unlikely at this time to be forthcoming so it is trying to get a waiver from the 95% test participation requirement as a way to avoid having schools and the state get penalized should they be unable to test 95% of all students. 

The WASB will be submitting comments in support of the DPI’s request while urging it to be bolder and go further in requesting a full federal waiver. As you will recall, on January 20, the 2021 WASB Delegate Assembly approved Resolution 21-06: Assessment and Report Card Waivers, which reads:

The WASB supports that public school districts should continue to assess student growth and performance using assessments and measures approved locally. However, the WASB also supports legislation specifying that in any school year during which a public health emergency (pandemic) or other disaster or emergency occurs that affects large portions of the state, state law requiring assessments to be administered annually to pupils attending school in a public school district, independent charter school, private choice school, or special needs scholarship program school would not apply and the DPI would be prohibited from publishing school and school district accountability reports in the following school year.” (emphasis added)

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