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

At its January 8 meeting, 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 the motion was unauthorized for three reasons:

1. The waiver statutes bar it. Section 22-2-117(1.5) expressly forbids waivers of § 22-7-409's statewide testing requirements. Section 22-2-117(1)(b)(III) also bars waivers of provisions concerning data needed for performance reports; the opinion treats statewide assessments as a primary component of those reports.

2. The Board cannot direct how the Department administers the tests. State law assigns administration and annual scheduling of statewide assessments to the Department. The Board cannot direct it to omit one of PARCC's two interdependent components.

3. Colorado was bound to administer the PARCC assessment as designed. The 2012 memorandum with PARCC governed administration of the test. The opinion also warned that failure to administer the required assessment could put federal education funds at risk.

The AG did not weigh in on whether mandatory testing is good policy. The opinion holds that 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 either component is not administered as designed, the assessment as a whole is invalid. Students who do not complete both components do not receive valid ELA and Math scores. 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. The opinion adds that the Department, rather than the Board, administers and schedules the statewide assessments.

Common questions

Q: Could the Commissioner grant the waiver if the Board directed him to do so? A: No. Footnote 3 says statutory waiver authority, when available, belongs to the Board rather than the Commissioner. The opinion also concludes that this particular waiver is forbidden even for the Board.

Q: Why would skipping only the earlier PARCC component violate the testing law? A: The opinion describes the English Language Arts and Math assessment as one test with two interdependent components. Without both, students would not receive valid scores, and the district would fail to administer the assessment required by § 22-7-409.

Q: What other consequences did the opinion identify? A: It warned that failure to meet federal assessment requirements could put Title I, Part A money and other federal education funds at risk. It did not determine that any funds had been withheld.

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
FORMAL )
OPINION )
)
of )
)
CYNTHIA H. COFFIV1AN )
Attorney General )
RALPH L. CARR
COLORADO JUDICIAL CENTER
1300 Broadway, lOth Floor
Denver, Colorado 80203
Phone (720) 508-6000
Office of the 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, ifrequested 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(l)(h) through (k) and 409(1.2)(d)(I)(A), C.RS. Under state law, all students enrolled in Colorado public schools must take these statewide assessments. Section 22·7·409(l)(h) through (k), C.R.S. (referencing administering the assessments to "all" students). 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, nor does any statute authorize a school district to administer its own assessment or test as an alternative to the statewide assessments listed in section 22-7-409. 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. See sections 22-7-409(1.2)(a)(I), 22-7-1005, and 22-7-1006(1)(a), C.R.S. Further, the SBOE, the Commissioner, and the Governor have all approved- pursuant to the mandate in section 22-7-1006(1.5), C.R.S.-Colorado's status as a governing board member of the Partnership for Assessment of Readiness for College and Careers ("PARCC"). PARCC is a consortium of states that "focuses on the readiness of student.s for college and careers by developing a common set of assessments." Section 22-7-1006(1.5), C.R.S.I 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 ofUnderstanding 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.2 Relevant here, and 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 of the test-known as the performance-based component-is administered after approximately 75 percent of the year's instruction has been delivered (typically late February or March). This component largely consists of written responses designed to test critical-thinking, reasoning, and application skills through performance of "extended tasks." The 1 This opinion is not intended to address how or whether Colorado could cease to be a member of the PARCC consortium. The States' partnership with PARCC expires on D~cember 31, 2015, unless otherwise extended by the PARCC Governing Board. 2 Colorado's state assessments are collectively known as the Colorado Measures of Academic Success ("CMAS"). CMAS was developed through partnership with PARCC. Importantly, the CMAS assessments, including the PARCC-developed English Language Arts and Math assessment, are the only tests relied upon statewide to satisfy numerous state and federal mandates. See, e.g., Section 22-7-1006, C.R.S.. 2

second, or year-end, component of the test is administered after approximately 90 percent of the year's instruction has been delivered to students. 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. Thus, students who do not complete both components of the test will not receive valid English Language Arts and Math test scores, resulting in a violation of the statutory requirement that all students enrolled in Colorado public schools take statewide assessments. Sections 22-7- 409(l)(h) through (k) and 409(1.2)(d)(I)(A), C.R.S.. B. The SBOE's January 8, 2014 Motion At its regularly scheduled January Sth 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.3 In light of the SBOE's action, the Commissioner of Education has requested that the Attorney General issue a formal opinion revisiting4 whether the' SBOE has authority to grant a school district a waiver from the state-mandated assessment. Because work has already commenced to begin administration of these tests to students by late February, the Commissioner's need for guidance from the Attorney General's Office is urgent. IL 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(l)(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 3 \'bile beyond the scope of this Opinion, I note that the authority to grant waivers of statutory requirements applicable to school districts, when permitted under state law, is reserved to the SBOE and not the Commissioner. See section 22-2-ll7(l)(a), C.R.S. Thus, even if it were lawful to grant waivers of the performance-based component of the statewide assessments for English Language Arts and Math-and, as explained in this Opinion, such waivers are not lawful-it does not appear that the Commissioner would have authority to grant them. 4 In November 2014, this Office issued an informal legal opinion on the question presented; the earlier opinion came to the same conclusions as this Formal Opinion. 3

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. (emphasis added). 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 (l)(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 dat.a necessary for performance reports." Section 22-2-117(1)(b)(lii), C.R.S. (emphasis added). 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." Section 22-2-117(1)(b)(III), C.R.S. 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). In sum, because section 22-2-117(1.5), C.R.S., clearly and unambiguously prohibits the SBOE from granting a waiver to local school boards and districts from the performance-based component of the English Language Arts and Math assessment-or any other statewide assessment required by section 22-7-409-the SBOE's January 8 motion is contrary to state law and may not be effectuated. 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 SBOE motion was unlawful. The motion attempted to draw a distinction between the two components of the English Language Arts and Math assessment. Specifically, it directed the Department to waive the administration of the first component but was silent regarding the second component. 4

The SBOE, however, lacks discretion to direct the Department's administration of statewide assessments. The Department alone is authorized to administer assessments that are mandated by State law. Section 22-7-409(1), C.R.S. ("[T]he department shall administer statewide assessments adopted by the board ...." (emphasis added)); section 22-7-409(1.2)(a)(I), C.R.S. ("The assessments shall be administered on a schedule to be determined by the department on an annual basis." (emphasis added)). Nowhere in State statute is the SBOE authorized to instruct the Department how to administer statewide assessments; how the assessments are to be issued, graded, or handled; or how and when different components of the same assessment are to be administered. Moreover, by its very design the English Language Arts and Math assessment is intended to be administered in two separate, but complimentary and interdependent, components. The PARCC bylaws require Colorado to administer the statewide assessment for English Language Arts and Math as developed, · meaning that the first component must be administered after 75 percent of the instruction has been delivered and the second component after 90 percent of the instruction has been delivered. Neither the SBOE nor the Department may treat these two interdependent components as severable and thereby create multiple tests, only one of which the school districts may choose to administer. As explained above, both components are required, and neither component may be waived. Finally, while the Department may have discretion to administer tests, neither the SBOE nor the Department have discretion to modify the English Language Arts and Mathematics assessment, because its administration is governed-and the State is presently bound by-the 2012 Memorandum of Understanding with PARCC. Thus, under the current statutory scheme, if tests created by PARCC, approved by the SBOE, and administered by the Department fail to be administeJ;ed as designed, the State would fail to comply with multiple . State and Federal requirements. The United States Department of Education requires Colorado to ensure that school districts adhere to federal law, including the administration of uniform statewide assessments. See 20 U.S,C. § 63ll(b)(3). If a state or school district fails to comply with the assessment requirements in the Elementary and Secondary Education Act ("ESEA," also known as the "No Child Left Behind Act"), the United States Department of Education could withhold some or all of that state's Title I, Part A funds. See 20 U.S.C. § 6311(g)(2); 20 U.S.C. § 1234d. In addition, any school district failing to administer the statewide assessments in question could find itself out of compliance with a wide range of federal programs that require statewide assessment results, putting additional federal funds at risk. These additional programs include those targeting students most at risk, including, but not limited 5

to: the School Improvement Grants (SIG) program; ESEA Title III; Part B of the Individuals with Disabilities Education Act (IDEA); programs for rural schools under ESEA Title VI; migrant education under ESEA Title I, Part C; and programs focused on professional development and other supports for teachers, such as ESEA Title II. CONCLUSION For the foregoing reasons, I conclude that state law prohibits the SBOE from directing the Commissioner of Education, upon request from a school district, 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, or any of the assessments mandated by section 22-7-409, C.R.S. Issued this 4th day of February, 2015. 6