Can a parent in Arizona pull their child out of the AzMERIT or other state-mandated standardized tests, the way they can opt out of certain learning materials?

Plain-English summary

The opt-out movement around standardized testing reached Arizona, and Superintendent Diane Douglas asked the AG to clear up confusion about whether parents have a legal right to keep their children out of state-mandated assessments like AzMERIT. The AG had touched on the issue in a 1997 opinion (I97-008) and a December 2014 letter, but the field had moved: in 2010, the legislature added new parental-rights provisions to A.R.S. § 15-102 and enacted the Parents' Bill of Rights (A.R.S. §§ 1-601 and 1-602).

AG Brnovich answered all three legal questions no, and the fourth (whether an opted-out child can attend during testing) became moot.

The reasoning runs along three tracks.

First, an assessment is not a "learning material" or "learning activity." The opt-out language in § 15-102 lets parents withdraw their children from materials or activities they believe to be harmful. An AzMERIT test is something different: it measures what a student already learned. The 1997 opinion drew that line and the AG declined to redraw it.

Second, the 2010 amendments to § 15-102 expanded a list of opt-out and notice rights. The list includes the right to opt out of immunizations, AIDS instruction, and certain assignments objectionable on belief grounds. The list also includes notice rights about test results (A.R.S. § 15-102(A)(7)(h)) and school report cards (§ 15-102(A)(7)(k)). It conspicuously does not include a right to opt out of statewide assessments. Under expressio unius (mentioning some excludes the others), the legislature's silence here is telling, especially since it knew about assessment results and chose to give parents notice rights but not opt-out rights.

Third, the Parents' Bill of Rights affirms parents' "fundamental right" to direct the education of their children. That right has constitutional roots, but the Ninth Circuit (drawing on the Sixth Circuit) has held it does not extend to dictating "how a public school teaches their child," including "the timing and content of examinations." A parent's right to choose between public school, private school, or homeschooling does not become a right to customize the public school experience.

The fourth question, whether an opted-out child could remain in school during testing, the AG declared moot. Districts must administer the tests under A.R.S. § 15-741(C). A child present during the test window must take the test.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

A.R.S. § 15-102 governs schools' policies for parental involvement. Subsection (A)(3) requires districts to develop a procedure "through which parents who object to any learning material or any activity that they believe to be harmful may withdraw their children from the activity or from the class or program in which the material is used." The 1997 AG opinion (I97-008) read this as not covering standardized tests, since tests are evaluative, not instructional.

The 2010 amendments under SB 1309 added subsections (A)(4) through (A)(7), the latter listing nineteen specific parental rights:

Express opt-out rights include:

• Opting out of assignments objectionable on grounds of "sex, morality or religion" (A)(7)(c)
• Opting out of immunizations (A)(7)(d)
• Opting out of AIDS instruction (A)(7)(g)

Express notice rights include:

• Reviewing test results (A)(7)(h)
• Receiving school report cards (A)(7)(k)
• Public review of courses of study and textbooks (A)(7)(m)

The conspicuous absence: no opt-out for statewide assessments, despite the explicit awareness that test results exist and parents have rights regarding them.

The Parents' Bill of Rights at A.R.S. §§ 1-601 and 1-602 was enacted alongside these amendments. Section 1-602(A)(1) recognizes the parental right to "direct the education of the minor child," and § 1-602(D) acknowledges that parents have "inalienable rights that are more comprehensive than those listed in this section." The opinion harmonizes the general (1-602) with the specific (15-102) rather than reading expansive opt-out rights into the general statute.

The Fields v. Palmdale Sch. Dist. case is the key federal authority. The Ninth Circuit, quoting the Sixth Circuit's Blau v. Fort Thomas Pub. Sch. Dist. decision, drew the line: parents can choose what type of school their child attends, but cannot prescribe how a public school operates. That includes curriculum, hours, discipline, "the timing and content of examinations," teaching staff, extracurriculars, and dress codes.

Common questions

Q: My child has test anxiety. Can I keep her home during AzMERIT week?
A: A child not in school during a test window cannot be required to take the test, but she will not have a valid score. Schools, districts, and the state will receive a "no test" record. Whether the child can return to school the next day and resume normal classes is a school operational matter, not addressed in this opinion. Talk to the school principal.

Q: Is the test really not a "learning activity"?
A: Under this opinion, no. The opinion treats assessments as measurements of what students learned, not as instruction itself. The 1997 opinion took the same view, and the 2015 opinion expressly reaffirmed it.

Q: What about my fundamental right to direct my child's education?
A: This opinion treats that right as covering school choice (public, private, homeschool), not classroom-level decisions within a public school. The Ninth Circuit's Fields decision is the operative authority.

Q: Can the school punish my child for refusing to take the test?
A: The opinion did not address discipline. It says the school must administer the test and a present child must take it; consequences for individual refusal are a school operational issue.

Q: Have legislatures revisited this?
A: The opinion was issued in 2015. Statutes evolve. Verify current law before acting.

Citations and references

Statutes:

• A.R.S. § 15-102 (parental involvement; opt-outs)
• A.R.S. § 15-741 (statewide assessments)
• A.R.S. § 15-743 (test results)
• A.R.S. § 15-746 (school report cards)
• A.R.S. § 1-601 (parents' rights)
• A.R.S. § 1-602 (Parents' Bill of Rights)

Cases:

• Fields v. Palmdale Sch. Dist., 427 F.3d 1197 (9th Cir. 2005)
• Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381 (6th Cir. 2005)
• State v. Roscoe, 185 Ariz. 68 (1993)

Earlier AG opinions:

• Ariz. Att'y Gen. Op. I97-008

Source

• Landing page: https://www.azag.gov/opinions/i15-008-r15-016
• Original PDF: https://www.azag.gov/sites/default/files/2025-06/I15-008.pdf

Original opinion text

To:

Superintendent Douglas

Questions Presented

You have asked this Office to clarify the status of parents' rights to allow their children to opt out of statewide assessments such as the AzMERIT. You reference a December 10, 2014, letter from this Office to the Arizona Department of Education. That letter updated Arizona Attorney General Opinion No. I97-008, which concludes that parents may not withdraw their children from Arizona's required standardized tests. In your Opinion Request, you indicate that the December, 2014 letter from this Office may have introduced an ambiguity regarding the rights of parents to withdraw their students from statewide assessments; you therefore ask the following questions:

Whether a statewide assessment, such as the AzMERIT test is considered a "learning activity or learning material" under A.R.S. § 15-102;

Whether the silence in A.R.S. § 15-102 to include statewide assessment could be read to protect a parent's ability to opt their child out of state assessments as the parent rights included within the statute are not an exhaustive list;

Whether a parent can choose to opt their child out of statewide assessments pursuant to A.R.S. §§ 1-601 or -602; and

Whether a child who has opted out of the statewide assessment may attend school during the testing window and not be required to test.

Summary Answer

The answer to each of the first three questions is "no;" the last question is mooted by these responses. In 1997, this Office reviewed A.R.S. §§ 15-741, 743 and 746, which "establish a comprehensive statewide system for assessing the achievement of public school students through a series of mandatory essential skills tests and a standardized norm-referenced achievement test." Ariz. Att'y Gen. Op. I97-008. We noted that the obligation to establish, implement, and maintain this system is mandatory, imposing duties on the State Board of Education, the Arizona Department of Education, local school district governing boards, and local schools. The 1997 Opinion also addressed A.R.S. § 15-102, and concluded that a standardized assessment was not a learning material or activity from which parents could exempt their children. Id. As a result of your Opinion Request, this Office has carefully reviewed its original conclusions in Opinion No. I97-008 in light of subsequent amendments to existing laws and new statutes. None of the changes affect the reasoning employed in the 1997 Opinion. Our conclusion remains the same: parents do not have a legal right to withdraw their children from state-mandated assessments in Arizona's public schools.

Analysis

1. Whether a statewide assessment, such as the AzMERIT test is considered a "learning activity or learning material" under A.R.S. § 15-102?

Arizona Revised Statutes § 15-102 addresses schools' obligations to encourage parental involvement in schools. It requires that "governing board[s], in consultation with parents, teachers and administrators, . . . develop and adopt a policy to promote the involvement of parents and guardians" in a variety of school-related issues. A.R.S. § 15-102(A). Among the procedures that must be developed is one "through which parents who object to any learning material or any activity that they believe to be harmful may withdraw their children from the activity or from the class or program in which the material is used." Ariz. Att'y Gen. Op. I97-008 (citing A.R.S. § 15-102(A)(3)). The 1997 Opinion concluded that this language did not give parents the right to withdraw their children from standardized tests because such tests are "separate and distinct from the learning material or learning activity contemplated by A.R.S. § 15-102(A)" and added that the statute did not specifically include a right to withdraw from standardized tests. Id. The Opinion further noted that allowing such withdrawals might lead to manipulation of the testing system, thus "defeating the purpose of the legislative assessment and reporting mandates." Id.

While Arizona now requires a different standardized assessment than it did in 1997, this difference does not compel a different conclusion regarding whether assessments are a "learning material" or "activity" as contemplated by A.R.S. § 15-102. An assessment is a means "educators use to evaluate, measure, and document the academic readiness, learning progress, and skill acquisition" of students of all ages. (See definition of "assessment" at http://edglossary.org/assessment/, last visited Sept. 24, 2015). An assessment is thus not a "learning material" or "learning activity."

2. Whether the silence in A.R.S. § 15-102 to include statewide assessment could be read to protect a parent's ability to opt their child out of state assessments as the parent rights included within the statute are not an exhaustive list?

The 1997 Opinion concluded that the Legislature did not intend to allow parents to withdraw their children from statewide assessments on the basis of A.R.S. § 15-102. However, in 2010, A.R.S. § 15-102 was amended and a new statute, the Parents' Bill of Rights (A.R.S. § 1601 and 602), was added, by Senate Bill 1309. S.B. 1309, 49th Leg., 2d Reg. Sess. ch. 307 (2010). The changes to A.R.S. § 15-102 include new subsections (A)(4) through (A)(7). Subsection (A)(7) details, in 19 subparagraphs, local school boards' obligations to ensure they inform parents about their rights to opt out of several obligations, such as the right to opt out of assignments, the right to opt out of immunizations, and the right to opt out of instruction on acquired immune deficiency syndrome. A.R.S. § 15-102(A)(7)(c), (d), and (g). School boards are also required to ensure they provide parents with information about numerous other rights, including the right to review test results, the right to receive a school report card, and the right to public review of courses of study and textbooks. A.R.S. § 15-102(A)(7)(h), (k), and (m). Notably absent from the list of parents' rights is the right to opt out of any assessments. The Legislature's failure to include such a right is especially telling because the statute specifically mentions the "right to review test results pursuant to section 15-743" and the "right to receive a school report card pursuant to section 15-746." A.R.S. § 15-102(A)(7)(h) and (k). In other words, the changes to A.R.S. § 15-102 reinforce the conclusion of the 1997 Opinion: the Legislature could have included a parental right to exempt a child from statewide assessments, but did not. See, e.g., State v. Roscoe, 185 Ariz. 68, 71 (1993) ("A well established rule of statutory construction provides that the expression of one or more items of a class indicates an intent to exclude all items of the same class which are not expressed.") (quoting Pima County v. Heinfeld, 134 Ariz. 133, 134 (1982)).

Moreover, review of the "opt out" rights provided in A.R.S. § 15-102 indicates that the Legislature limited the authority of parents who choose public education to customize that education. While local school boards must provide parents with substantial information about their schools, rights to opt out are limited. Although parents may opt their children out of 1) assignments, on the basis that a learning activity or material is harmful because "it questions beliefs or practices in sex, morality or religion;" 2) immunizations; and 3) instruction on acquired immune deficiency syndrome, the limited nature of parents' opt out rights that are specified in A.R.S. § 15-102 indicates that the Legislature did not intend to include a right to opt out of statewide assessments.

3. Whether a parent can choose to opt their child out of statewide assessments pursuant to A.R.S. §§ 1-601 or – 602?

As noted above, Senate Bill 1309 also included the "Parents' Bill of Rights," which is codified at A.R.S. §§ 1-601 and 602. These statutes affirm parents' fundamental rights to, among other things, "direct the education of the minor child." A.R.S. § 1-602(A)(1). These statutes also note that "parents have inalienable rights that are more comprehensive than those listed in this section." A.R.S. § 1-602(D). However, neither section 1-601 nor 1-602 specifically references any particular aspect of education, much less statewide assessments. Furthermore, to the extent A.R.S. § 1-602 and § 15-102 address the same topic, a parent's rights with respect to the education of a child, they should be harmonized to effect legislative intent. Arden-Mayfair, Inc. v. Dept. of Liquor Licenses and Control, 123 Ariz. 340, 342, 599 P.2d 793, 795 (1979). Reading a right to opt out of standardized testing into the more general statute, A.R.S. § 1-602, when the more specific statute, A.R.S. § 15-102, does not include such a right would be inconsistent with this principal of statutory construction.

Importantly, while a parent's right to direct the education of a minor child allows a parent to choose whether to send a child to a public district or charter school, a private sectarian or secular school, or to choose homeschooling, it does not allow a parent who sends a child to a public school to prescribe the details of that child's education. As the Ninth Circuit Court of Appeals noted, citing to the Sixth Circuit with favor,

While parents may have a fundamental right to decide whether to send their child to a public school, they do not have a fundamental right generally to direct how a public school teaches their child. Whether it is the school curriculum, the hours of the school day, school discipline, the timing and content of examinations, the individuals hired to teach at the school, the extracurricular activities offered at the school or, as here, a dress code, these issues of public education are generally "committed to the control of state and local authorities."

Fields v. Palmdale Sch. Dist., 427 F.3d 1197, 1206 (9th Cir. 2005) (quoting Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381, 395-96 (6th Cir. 2005) (citations omitted) (emphasis in original).

4. Whether a child who has opted out of the statewide assessment may attend school during the testing window and not be required to test?

Given the answers to the questions above, this question is moot. School districts are required to "administer the tests" prescribed by the State Board of Education. A.R.S. § 15-741(C). Given this requirement, and because there is no right to opt out of statewide assessments, children who attend school during the testing windows are required to take assessments as scheduled.

Conclusion

The answers to your questions are as follows:

No, a mandatory statewide assessment exam does not constitute a "learning material" or "activity" as contemplated by A.R.S. § 15-102.

No, a fair reading of the plain text in A.R.S. § 15-102 does not provide a basis for finding a parental right to opt out of state assessments.

No, the "Parents' Bill of Rights" as set forth in A.R.S. §§ 1-601 and 602 does not encompass a right for parents to opt their children out of statewide assessments.

Because there is no parental right to opt out of a statewide assessment, children who attend school during testing windows must take the assessments as scheduled.

Mark Brnovich

Attorney General