Arizona Legislators Must Take Action To Protect Parents’ Opt-Out Rights

The primary duty of our government through our elected representatives is protecting our God-given rights. Among the most paramount being parents’ rights to make decisions about their child(ren)’s upbringing and well-being. With the state assessment testing window recently opening the conundrum of a parent’s right to opt their child(ren) out of testing once again rears its ugly head.

The Supreme Court of the United States has upheld parental rights through numerous decisions as far back as the 1920s (Meyer v. State of Nebraska) – that was until 2000 and the very confusing and splintered Troxel v. Granville decision. That opened the door for the Ninth Circuit Court decision in Fields v. Palmdale (2005) which ruled that parents leave their constitutional rights at the schoolhouse door. This is the current “law of the land” in the Ninth Circuit – including Arizona.

In 2015, I requested Attorney General Brnovich reconsider a prior A.G. opinion (I97-008) denying parents’ their rights and deeming that state assessments are not a “learning activity” as defined in ARS 15-102(A) from which parents can withdraw their child(ren). Incredibly, especially given his campaign promises, instead of helping parents he doubled down on the opinion. So, according to Brnovich, Arizona parents do NOT have the “right” to opt-out their child(ren) from the state test because ARS 1- 601/602 does not specifically reference “any particular aspect of education” as the “right” to be protected. He also cited the disastrous Fields v. Palmdale opinion to further squash parents’ rights apparently believing what, if any rights, the government “gaveth” parents in ARS 1-601/602 it can therefore “taketh” away. While some argue otherwise, an A.G. opinion is “law” until the courts rule differently or the legislature takes action – neither of which has happened.

The Feds (unconstitutionally, but I digress) require 95% of students in the school, district, state to be tested. The federal Every Student Succeeds Act ostensibly “recognizes” a parent’s right to opt their child(ren) out of testing (with state statute) and expects that schools should not try to “coerce” students to participate. However, the Feds also require that the “non-score” of the “refusers” (students who opted-out) be included in the school’s scores. Hence why, and armed with an A.G.’s opinion, schools/districts in the best case don’t want to make it easy or worst case refuse to allow parents to opt their kids out of testing. They can and do reject the opt-out forms floating around the internet which parents believe to be valid. All of this annual turmoil could have been avoided IF our legislature had acted and created testing opt-out laws for our parents under ESSA.

The State Board of Ed is required to adopt and implement a statewide assessment (ARS 15-741 (A)); now the “Menu of Assessments.” Districts/charters are required to administer the assessments (ARS 15-741(C)). Therefore if students are in school during the testing or make-up window they will be placed in front of a computer or test booklet unless the school administration (hopefully) chooses to respect the parent’s request to opt-out their child(ren). That being said, nothing in statute specifically requires a parent to subject their child(ren) to testing but they are required to have their children attend school (ARS 15-802) which can create serious attendance problems if the student is kept home during the testing and make-up windows IF the school/district so chooses.

While nothing more that Title 1 601 & 602 should be necessary to protect parents’ education (AND health care AND mental health) rights over their child(ren)’s upbringing clearly that is not the case. The last serious attempt by the legislature to guarantee opt-out rights for parents was prior to ESSA with HB 2246 in 2015. It died in the Senate because of – well – political gamesmanship. It is long past time for our representatives to take action; to clearly, once and for all, do their duty and protect the right to opt their children out of testing if parents deem that best. Sadly it is apparent that only parents will be able to make this happen by loudly and unceasingly demanding it.

About Diane Douglas, Arizona Superintendent of Public Instruction 2015-2018 15 Articles
Diane Douglas is an American politician and educator expert, who served as Arizona Superintendent of Public Instruction from 2015-2019. She was elected on November 4, 2014. Douglas succeeded then-incumbent John Huppenthal, whom she defeated for the party's nomination in the Republican primary on August 26, 2014.