Duncan Crosses Rubicon As He Threatens Opt-Out Districts With Sanctions

*Several Supreme Court decisions could supply bases for opposing Duncan's threats

In his Apr 21 statement that the federal government is obliged to intervene if states fail to address the growing number of students that are boycotting federally mandated annual exams. (Federal law in Elementary and Secondary Education Act (ESEA) and No Child Left Behind (NCLB) mandate annulized testing. However, the form of the test is up to respective state authorities. New York has opted for a Common Core State Standards (CCSS) -based test that is outside of the SBAC or the PARCC test consortia.) It is estimated that over 184,000 students opted out of the CCSS based English tests in New York last week. (Essential Update: See also this issue covered at Diane Ravitch's blog, on 4/22/15, "State May Have Power to Withhold Federal Funding to Punish Opt-Outs." Talk about collective punishment!)

U.S. Department of Education Secretary Arne Duncan is taking a disturbingly authoritarian course with his threat of sanctions against school districts that fail to achieve 95 percent compliance with high-stakes tests, as stemming from the ESEA. The hinted punishment by federal or state authorities would be withholding funds, the New York State Allies for Public Education (NYSAPE) denies the claim that districts will lose funding over low participation rates in high-stakes standardized tests.

Orders to be followed without question are in two places: in militaries, and in authoritarian regimes.

Duncan and the U.S. DOE is demanding compliance without question with his new statement.  

Duncan has truly crossed the line with his threat of sanctions for non-compliance. Further disturbing is his expectation that districts directly address the non-compliers. Of course, we must realize what this leads to. If districts must investigate and curtail opt-outing activity, they must find, document and punish non-complying students and their parents. And note below how he is attempting to enlist state authorities in addressing non-compliance this month with the Common Core tests.

A federal education department spokeswoman said last week that the agency could withhold funding from states if some of their districts have too few students take the exams, but that it has not yet done so because states have addressed the issue on their own.

State education department spokesman Jonathan Burman said in an email Tuesday that the “the feds are discussing the possibility of imposing penalties for failing to hit participation rate targets.” He added that the state is also expected to “consider imposing sanctions” on districts that fail to meet the 95 percent threshold, which could include withholding money “in the most egregious cases.” (Opt-out advocates have questioned the state’s interpretation of the testing law, and say that sanctions are only allowed after a district falls below the 95 percent level for three years.)

Duncan, unless he reverses his statements, is handing the 2016 election to Republicans. How could someone expect Democrats to continue to get popular support from liberals? And wouldn't Independents lean closer to Republicans after this threat?

*Supreme Court case precedence would make fighting Duncan easy

Duncan's demands for compliance, echoed by New York Governor Andrew Cuomo, could be easily challenged in federal court. For, Supreme Court precedent maintains that parental rights are held highly, above concerns for other matters such as property rights. For example, see Hodgson v. Minnesota (1990) which notes that parental rights are protected under the Fourteenth Amendment. Parental rights figured in the decision, Wisconsin v. Yoder (1972) which upheld the right of Amish parents not to send their children to public schools past eighth grade. And of course, Duncan's actions over the past six years have been riddled with Tenth Amendment violations.

Consider also the matter of compulsory student signing of silence oaths on state tests, which would seem to violate the First Amendment. Easily, precedential case law could render these mandates unconstitutional. West Virginia State Board of Education v. Barnette (1943) established that it was unconstitutional to expect students to recite the Pledge of Allegiance; Engel v. Vitale (1962) barred state mandates that students recite prayers in school. Certainly, a lawyer could soundly argue that from these cases it can be argued that children cannot be compelled to sign oaths to be silent about test contents. Additionally, we have seen at least one well-known instance of the disciplining of a New Mexico student over informing other students of opt-out rights.

Easily, litigants could bring case against Duncan, Cuomo and any other government officials seeking to enforce cooperation with state tests and silence oaths on test contents.

How would Duncan achieve his goal of identifying and reprimanding opponents and opposition leaders? Existing staff would take on new investigative and police powers. 

This would give people an ugly taste in their mouth when hearing “Democrat.” If Hillary Clinton or other presidential contender of any political party have any sense of savvy they would run in the other direction from Duncan and Cuomo and their talk of sanctions over opt-outs.