Could the Colorado State Board of Education tell the Commissioner to grant school districts a waiver from the performance-based component of the state ELA and Math test?

Plain-English summary

In January 2015, the Colorado State Board of Education passed a 4-3 motion telling the Commissioner of Education to grant school districts that requested it a waiver from the performance-based component of the state ELA and Math assessments. The performance-based component is the late-February or March portion of the PARCC test, where students do extended written responses; the year-end component is later and is mostly machine-scored.

The Commissioner asked the AG: does the Board actually have authority to do that?

AG Cynthia Coffman said no, and walked through three reasons:

1. Section 22-2-117(1.5) flat-out forbids it. The general waiver authority at § 22-2-117(1)(a) lets the Board waive Title 22 requirements, but subsection (1.5) carves out testing requirements: "the state board shall not waive requirements contained in article 11 of this title or sections 22-7-409." The waiver the Board passed targeted exactly the section it could not waive.

2. Section 22-2-117(1)(b)(III) reinforces the prohibition by also barring waivers of provisions "pertaining to the data necessary for performance reports." Statewide assessments are the primary input to performance reports under § 22-11-204, so even without (1.5), waivers would still be impermissible.

3. Skipping one PARCC component invalidates the entire assessment. The test is administered as a single instrument with two parts. Without the performance-based component, students would not receive valid ELA and Math scores, putting the district in violation of the statute requiring all students to take the assessment.

The AG did not weigh in on whether mandatory testing is good policy. The opinion is narrow: the Board's January 8 motion exceeded its statutory authority and could not be effectuated.

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

Colorado's statewide assessment regime is built around § 22-7-409, which mandates that "every student enrolled in a public school" take statewide assessments in English language arts, mathematics, science, and social studies. The mandate is universal: "all" students are required to take them, with no exception for individual districts to opt out or substitute their own tests.

The Preschool to Postsecondary Educational Alignment Act of 2008 layered on the broader framework. The Colorado Academic Standards drive curriculum, the State Board of Education adopts an aligned assessment system, and § 22-7-1006(1.5) directs the Board to "rely upon" assessments developed by PARCC, the Partnership for Assessment of Readiness for College and Careers. Under the 2012 PARCC Memorandum of Understanding, Colorado committed to use PARCC's ELA and Math assessment.

PARCC's design is structurally important to the AG's reasoning. The ELA and Math test is one assessment with two distinct administrations:
- Performance-based component, administered after roughly 75% of the year's instruction, typically late February or March. Mostly written responses testing critical thinking, reasoning, and applied skills through extended tasks.
- Year-end component, administered after roughly 90% of instruction. Machine-scorable short-answer items measuring concepts and skills.

If a student misses either component, the assessment as a whole is invalid. The student does not receive a score. The district is then out of compliance with § 22-7-409's universal-administration mandate.

The Board's general waiver authority at § 22-2-117(1)(a) lets it waive any requirement in Title 22 or in its own rules, on application from a district. Two carve-outs limit that authority:
- § 22-2-117(1)(b)(III), no waiver of provisions in part 5 of article 11 "pertaining to the data necessary for performance reports."
- § 22-2-117(1.5): "Notwithstanding any provision of this section or any other provision of law, the state board shall not waive requirements contained in article 11 of this title or sections 22-7-409."

Together, those two carve-outs put statewide assessment requirements out of reach for the Board's waiver mechanism.

Common questions

Q: Why did the SBOE try to do this if it was clearly not authorized?
A: The opinion does not address motive. Politically, opposition to PARCC and the federal Common Core push that produced it was high in 2014-15. Some Board members may have viewed the early February component as the part most disruptive to instruction and least connected to the year-end accountability uses. The AG's job here was to interpret statutory authority, not policy.

Q: Could the Commissioner grant a waiver instead of the Board?
A: No. The opinion notes in passing that statutory waiver authority sits with the Board, not the Commissioner. So even if waivers of § 22-7-409 had been allowed, the Commissioner would not have been the right person to grant them.

Q: What about students whose parents refuse to let them test?
A: Outside the scope of this opinion. The opinion is about district-level waivers, not parental opt-out procedures. Parental refusal raises separate questions under federal and state law that the opinion does not address.

Q: Could the General Assembly have changed this by statute?
A: Yes. The legislature could amend § 22-2-117(1.5) to permit waivers, repeal § 22-7-409, or restructure the testing scheme. But absent legislative action, the Board could not act unilaterally.

Q: What was the practical effect of this opinion?
A: The Commissioner declined to grant waivers, and statewide testing proceeded with both components. The Board's January 8 motion was effectively neutralized.

Citations and references

Statutes:
- § 22-2-117(1)(a), C.R.S., general SBOE waiver authority
- § 22-2-117(1)(b)(III), C.R.S., performance-report data carve-out
- § 22-2-117(1.5), C.R.S., express bar on waiving § 22-7-409
- § 22-7-409, C.R.S., statewide assessment mandate
- § 22-7-1006(1.5), C.R.S., PARCC reliance
- § 22-11-204, C.R.S.: performance reports

Source

• Landing page: https://coag.gov/attorney-general-opinions/
• Original PDF: https://coag.gov/app/uploads/2019/07/no-15-03.pdf

Original opinion text

CYNTHIA H. COFFMAN
Attorney General

DAVID C. BLAKE
Chief Deputy Attorney General

MELANIE J. SNYDER
Chief of Staff

DANIEL D. DOMENICO
Solicitor General

STATE OF COLORADO
DEPARTMENT OF LAW
Office of the Attorney General

FORMAL OPINION OF CYNTHIA H. COFFMAN, Attorney General
No. 15-03
February 4, 2015

This opinion, requested by Robert Hammond, Commissioner of Education of the Colorado Department of Education, concerns the statutory authority of the Colorado State Board of Education ("SBOE") to grant waivers to school districts of the performance-based component of the state-mandated assessments for English Language Arts and Math.

QUESTION PRESENTED AND CONCLUSION

Question: Does the SBOE have authority to direct the Commissioner of Education to waive local school boards' and districts' statutory obligation to administer the performance-based component of the state's English Language Arts and Mathematics assessment, if requested by the district?

Answer: No.

DISCUSSION

I. Background

A. Colorado Educational Assessments

In Colorado, statewide educational assessments are administered in specified content areas, including English language arts, mathematics, science, and social studies. Sections 22-7-409(1)(h) through (k) and 409(1.2)(d)(I)(A), C.R.S. Under state law, all students enrolled in Colorado public schools must take these statewide assessments. This requirement is explicit and without exception: "every student enrolled in a public school shall be required take the assessments." Section 22-7-409(1.2)(d)(I)(A), C.R.S. The relevant statutes grant no authority for any school district to opt out of administering the statewide assessment.

These mandatory assessments are part of a broader effort to define and promote statewide academic standards. Under the Preschool to Postsecondary Educational Alignment Act, enacted by the General Assembly in 2008, the SBOE is required to adopt a system of assessments aligned with the Colorado Academic Standards. Further, the SBOE, the Commissioner, and the Governor have all approved Colorado's status as a governing board member of the Partnership for Assessment of Readiness for College and Careers ("PARCC").

Statute mandates that as a PARCC member, the SBOE must "rely upon" assessments developed by PARCC. Section 22-7-1006(1.5), C.R.S. As a result, the SBOE, the Commissioner of Education, and the Governor entered into a Memorandum of Understanding with PARCC in 2012, which obligates Colorado to use PARCC's system of assessments, including the assessment at issue here: the English Language Arts (readings and writing) and Mathematics assessment.

According to PARCC, the English Language Arts and Mathematics assessment is a single test administered through two separate components during the spring semester. The first component, known as the performance-based component, is administered after approximately 75 percent of the year's instruction has been delivered. This component largely consists of written responses designed to test critical-thinking, reasoning, and application skills through performance of "extended tasks." The second, or year-end, component of the test is administered after approximately 90 percent of the year's instruction has been delivered. This component is machine-scorable and consists of short-answer questions and items designed to measure concepts and skills. If either component of the test is not administered as designed, the assessment as a whole is invalid.

B. The SBOE's January 8, 2014 Motion

At its regularly scheduled January 8th meeting, the SBOE voted 4-3 to pass a motion directing the Commissioner of Education, if requested by a district, to grant waivers to local school boards and districts exempting them from administering the earlier, performance-based component of the English Language Arts and Math assessment.

II. Analysis

For three reasons, the SBOE's motion is not authorized under state law.

First, by statute, the General Assembly delegated only limited power to the SBOE to grant waivers from state statutes and regulations. Section 22-2-117(1)(a), C.R.S., provides that, upon application of a school district, the SBOE has the authority to "waive any of the requirements imposed by [Title 22 of the Colorado Revised Statutes] or by rule promulgated by the state board." But this authority is expressly limited. Section 1.5 of that same statute prohibits granting waivers for statewide testing requirements governed by Section 22-7-409:

Notwithstanding any provision of this section or any other provision of law, the state board shall not waive requirements contained in article 11 of this title or sections 22-7-409 . . . .

Section 22-2-117(1.5), C.R.S. As noted above, the referenced statutory provision, section 22-7-409, mandates administration of the English Language Arts and Mathematics assessment to every public-school student in the state. Thus, the very statute that authorizes the SBOE to grant waivers as a general matter also prohibits the SBOE from granting the particular waivers at issue.

In addition, section (1)(b)(III) of the statute further restricts the SBOE's waiver authority, stating that "[t]he state board shall not waive ... [a]ny provision of part 5 of article 11 of this title pertaining to the data necessary for performance reports." Section 22-2-117(1)(b)(III), C.R.S. Statewide assessments are the primary component of such performance reports, see section 22-11-204, C.R.S., and those assessments therefore "pertain[] to the data necessary for performance reports." Thus, if the SBOE were to grant a waiver from statewide assessments, the SBOE would violate not only section 22-2-117(1.5), but also section 22-2-117(1)(b)(III).

Second, while the above statutes make clear that the SBOE lacks authority to grant waivers for the performance-based component of the statewide assessments for English Language Arts and Math, other statutes further illustrate that the General Assembly has consistently treated statewide assessment administration as a non-waivable requirement.

Third, the structural fact that PARCC's ELA and Math assessment is a single test with two components means that omitting one component invalidates the whole assessment. A district granted a waiver from only the performance-based component would still be in violation of § 22-7-409, because students would not receive valid ELA and Math scores. The waiver would not actually relieve the district of the statutory testing obligation; it would only put the district out of compliance.

CONCLUSION

The Colorado State Board of Education does not have authority to direct the Commissioner of Education to waive local school boards' and districts' statutory obligation to administer the performance-based component of the state's English Language Arts and Mathematics assessment.

Issued this 4th day of February, 2015.

/s/ Cynthia H. Coffman
CYNTHIA H. COFFMAN
Attorney General