NH Commissioner of Education Interferes with the Right of Parents to OPT OUT their Child from Statewide Assessment, Smarter Balanced Assessment

The Department of Education is deliberately trying to confuse parents by withholding information so districts can intimidate parents into allowing their children to take the Smarter Balanced assessments.

The NH Commissioner of Education sent out two Technical Advisories to school districts, informing them about the district's participation requirements for the statewide assessment, the Smarter Balanced Assessment.

The Commissioner incorrectly suggests that parents must meet one of these six onerous and restrictive exemptions in order to remove their child from testing:

All students in the designated grades shall participate in the assessment unless the student is exempted." 

1. Medical emergency/serious illness

2. Severe emotional distress

3. Death in the family

4. Student qualifies for the NH Alternate Assessment but enroll after the start of the assessment window

5. Student who participates in another state’s assessment system

6. Exemption from ACCESS for ELLs® for student taking the NH Alternate Assessment

That is false!  Parents can refuse to allow their children to participate.

The Commissioner continues in her explanation to districts, claiming that parents can't "opt out" of the assessments, because "standards are neither courses or materials." 

This is not accurate since assessments are, in fact, "materials" and these "assessment materials" may be objectionable to some parents; thus parents may opt out of objectionable assessment materials.

Here's the Commissioner's first Technical Advisory:



On January 13, 2015 updating her technical advisory with an ADDENDUM, the Commissioner acknowledged that there were NO laws under which the Department of Education could  PENALIZE parents or students who refused to take the statewide assessments.

The Commissioner essentially acknowledges that parents may OPT OUT their children from the Smarter Balanced assessment WITH NO PENALTY.



However, that might cause problems with, i.e. lower, participation rates if parents were allowed to pull their children.  So the Commissioner sent out a second Technical Assistance directive telling districts that "There is no "opting out" option for students in the law" --- encouraging districts to intimidate and bully students who attend schools during the assessment period --- even if their parents attempt to opt their children out. 

The Commissioner has no respect for the right of parents to direct the education of their children, including opting out their child from assessments they find objectionable. 

The right of parents supersedes any statute.  The Commissioner's legal advice to districts is inaccurate and may, in fact, result in lawsuits for district .


There is no penalty for parents who refuse to allow their children to take the Smarter Balanced assessments.  In fact, Manchester and Nashua School Districts have adopted policies that respect the right of parents to opt out their children from the Smarter Balanced assessments.

If parents want to opt out from, or refuse to allow their child to participate in, the Smarter Balanced Assessment, they may use the following REFUSAL FORM. 

No one specific form is needed (parents may simply write to their school principal), but one is included for your convenience.

Parents across the country are pulling their children from the Smarter Balanced Assessments.


Attached (below) is a Refusal Form which can be printed out, signed and submitted to your school principal's office.  Parents may OPT OUT or REFUSE to allow their child to take the SMARTER BALANCED ASSESSMENTS which will be given starting in the Spring of 2015.

Parents may OPT OUT their child from any assessment or survey. Simply adjust the form.




I, _______________________________________________________, am indicating to school

       (Parent / Guardian name)


administration that my son/daughter, ______________________________________________,

                                                                                        (Child’s name)


In grade _________ is refusing to participate in the administration of the Grade 3-8 and 11


Smarter Balanced Assessment.


I understand that if my child is in school during the testing days, they will be brought to an alternate location with supervision for the duration of the testing period.  No alternate assignment will be provided.  Students should bring a book to sit and read during that time.


Parent / Guardian Signature __________________________________Date _________________


Please return the signed form to the appropriate school’s Main Office.  Thank you.


Why would parents want to OPT OUT?


In the Spring of 2015 New Hampshire public schools will administer the Smarter Balanced Assessments to students in grades 3 – 8 and grade 11. 

Parents may OPT OUT or REFUSE to allow their children to take this assessment and there are many good reasons WHY A PARENT SHOULD OPT OUT:

·      Behavioral Assessment:  Smarter Balanced Assessments include psychological questions, which measure student’s disposition -- his values, attitudes and beliefs, not just his academic abilities.

·      Privacy Concerns: Smarter Balanced Assessments are online assessments that send private student information and answers directly to the SBA Consortia and then to the US Department of Education.  There is no timeline established to erase any of this private student information, which may then be shared and sold for research or marketing to corporations -- without parental consent.

·      Adaptive Assessments:  No two assessments are alike because the test adapts to the individual strength or weakness of each student.  Practically speaking, it’s impossible to compare scores when all students are taking different assessments.

·      Secrecy:  Students and teachers are asked to sign a confidentiality statement, promising not to talk about or share any assessment information.  Parents have not been allowed to review and inspect these assessments in violation of federal law.

Click on attached file below for a printable form:

NH Families for Education is Seeking Legal Statements -- Upholding Parental Right to Refuse Objectionable Assessments

Parents are being told by school administrators that their written requests to Refuse or Opt-Out their child from the Common Core-aligned Smarter Balanced assessments are not valid. This is false. It's deliberate intimidation of parents and it must be stopped!

NH Families for Education is looking for a few good attorneys to write statements, upholding the well established right of parents to direct the education of their children, including the refusal of a school administered assessment. Parents have refused to allow their children to take assessments for years in New Hampshire.

This is a well established tradition, one that the NH Department of Education has documented and tracked. "Parent Refusals" can be verified on the NH Department of Education's own website:


NH Families for Education would like to help stop these efforts to isolate and intimidate good parents, acting in the best interests of their children. As such, NHFFE is looking for legal statements that can be shared with parents in their fight to protect their children.


The "Conclusion" of a  51 page paper -- "Arne Duncan's NCLB Waiver ILLEGAL" by Derek W. Black, which is attached at the bottom of the article:

     With no more power than the authority to waive noncompliance with NCLB, Secretary Arne Duncan achieved a goal that educational equality advocates had long sought, but never secured: the federalization of public education.  His path to the "holy grail" of education, however, was fundamentally flawed.  He only reached it by imposing waiver conditions that were neither explicitly nor implilcitly authorized by the text of NCLB. Thus, he exceeded  his statutory authority and violated the Constitution's clear notice requirements regarding conditions on federal funds.

     States only acceded to these new and unforeseeable terms because their impending non-compliance with NCLB put so much at stake financially, practically, and politically.  By the time Secretary Duncan announced the conditions, states were out of options and left in a position where the Secretary could compel them to accept terms that, under most any other circumstances, they would reject. The administration took the states' vulnerability as an opportunity to unilaterally impose policy that had already failed in Congress. In doing so, the administration unconstitutionally coerced states.

     An explict grant of conditional waiver power could have cured some of these problems, but not all. To have justified conditions as broad as Secretary Duncan's, the statute would have had to either explicitly authorized the types of conditions Secretary Duncan imposed or explicitly grant him an open-ended authority to condition waivers. The former is implausible because Congress does not possess perfect foresight. The latter is unconstitutional because it would not have been constrained by an intelligible principle. It also would have granted the Secretary a power broader than any other previously approved by the Court.

     The import of this analysis reaches far beyond education. An agency power to remake the law through statutory waivers may be a useful and efficient mechanism for adapting laws to changing circumstances and needs. Congress can, and likely will, explicitly extend this authority to some agencies in the future. But as the experience of NCLB's conditional waivers demonstrates, conditional waiver power, if not carefully circumscribed, is fraught with practical and constitutional dangers. It has the potential to give agencies a power that exceeds that of legislation under which the agency is acting. The executive can unilaterally achieve ends that neither it, nor Congress could have achieved through negotiated legislation, including bringing states futher under the regulation of agencies than the organic statute the agency is waiving. In these respeccts, conditional wiaver authority can threaten the balance of powers Constitution secrues between states and the federal government, and between Congress and the executive. Thus, it is no surprise that the NCLB waiver process helped spark a series of bitter legal fights at all branches of local, state, and federal government, with Congress suing state legislature and vice versa over the Common Core Curriculum, and teachers and students suing states over changes to teacher evaluation and retention rights. Next in line is a direct challenge to the Secretary of Education's authoirty to impose and enforce the conditions it exacted in exchange for an NCLB waiver. This Article provides important guideposts for resolving that dispute.



NH Commissioner of Education Promises to Transition All Public Schools to PACE, a Regionally-controlled Common Core Program

Sen. Reagan, Sen. Stiles and Rep. Ladd Want to ABDICATE Legislative Authority to Commissioner of Education

If you think Common Core and Smarter Balanced assessments have disrupted your child's education in public schools, just wait for the federal education reforms coming as result of the NCLB Waiver Renewal that was just submitted.  The NH Commissioner of Education has received approval from the federal government to design a totally new assessment program and she needs the green light from the NH legislature.  

But wait, parent's heads haven't stopped spinning from the last round of reforms from the first Waiver.  The Smarter Balanced assessments haven't even been fully implemented and here we go again.

However, the legislature is having real difficulty enabling the Commissioner's new assessment plan because there are very few details available.  It's not fully designed or developed and it's never been tested.  Parents and legislators can't review the program in any detail.  Yet, certain legislators -- Sen. John Reagan (R), Sen. Nancy Stiles (R) and Rep. Rick Ladd (R) -- are falling all over themselves to pass this legislation, giving the Commissioner a blank check to work with Arne Duncan, US Secretary of Education to "further develop" this new "system of assessment and accountability."

Why are parents concerned?

Proponents claim this new PACE pilot program will help reduce over-testing of students.  That's not true.  PACE does not reduce over-testing of students.  Thirty weekly PACE assessments, based upon the same Smarter Balanced protocols, are not less testing than one annual Smarter Balanced assessment ... even using Common Core math. 

Proponents claim that this new PACE program will provide locally-designed assessments.  That's not true. PACE is not a locally-designed assessment.  Districts have to adopt Common Core and Competency Based learning to be approved by the State to participate in this PACE program.  Districts must then develop these "locally-designed" assessments by working Regionally with other districts and non-profit groups.  Districts must use the same Smarter Balanced protocols when developing their "locally-designed" assessments and the results must be approved by the State.  Districts can't even grade their own "locally-designed" assessments.  These assessments must be Regionally graded based upon State Graduation Competencies, which were never authorized by the legislature. 

And if that's not enough, parents won't be able to refuse 30 weekly assessments as they can with the one Smarter Balanced end of the year assessment.  Not only are there 30 times more assessments to refuse, but under Competency Based learning, which is required by PACE, students won't be allowed to progress from week to week or graduate at the end of the year without successfully completing every Competency.

The proposed amendment to HB 323, which can be found below, abdicates Legislative authority to the Commissioner of Education in lines 7-11 and eliminates government that is open, transparent and accountable to the people.

The NH Commissioner of Education is not an elected position.  Commissioner Virginia Barry refuses to listen to the people, especially when they disagree with her. The Commissioner has publicly complained that her opponents are "loud and misinformed."  In fact, the Commissioner recently refused to meet in public with the largest school board in the state, Manchester, after they repeatedly asked for her to come and answer their questions about Smarter Balanced assessments. The Commissioner recently refused to hold any public hearings on the proposed Waiver Renewal before she submitting it to the federal government even when faced with two bills requesting a public hearing.  In fact, the Commissioner posted a Survey Monkey on the Department website rather than publicly listen to the people's concerns.

There will be no loss of federal funds without enabling legislation for this PACE program. There is no urgency to pass HB 323 if it is bad legislation.  Districts will simply continue to administer the Smarter Balanced assessments and parents can refuse to allow their children to participate if they feel the assessments are not in their child's best interest.



PLEASE contact the NH Senate. ALL of the Senators, not just the Education Committee.

Tell the Senate not to pass HOUSE BILL 323 if it gives the Commissioner of Education unlimited authority to cut a backroom deal with the US Secretary of Education.  Do not abdicate legislative authority to an unelected Commissioner who does not listen to parents.  Parents need a voice in the education of their children.

You can also use this e-mail address and your e-mail will be sent to ALL of the NH Senators: Senators@leg.state.nh.us

Or you can contact them individually:

Jeff Woodburn (d)
(603) 271-3207

Jeanie Forrester (r)
(603) 271-4980

Jeb Bradley (r)
(603) 271-2106

David Watters (d)
(603) 271-8631

David Pierce (d)
(603) 271-3067

Sam Cataldo (r)
(603) 271-4063

Andrew Hosmer (d)
(603) 271-8631

Gerald Little (r)
(603) 271-4151

Andy Sanborn (r)
(603) 271-2609

Molly Kelly (d)
(603) 271-3207

Gary Daniels (r)
(603) 271-2609

Kevin Avard (r)
(603) 271-4151

Bette Lasky (d)
(603) 271-3091

Sharon Carson (r)
(603) 271-1403

Dan Feltes (d)
(603) 271-3067

David Boutin (r)
(603) 271-3092

John Reagan (r)
(603) 271-4063

Donna Soucy (d)
(603) 271-3207

Regina Birdsell (r)
(603) 271-4151

Lou D'Allesandro (d)
(603) 271-2117

Martha Fuller Clark (d)
(603) 271-3076

Chuck Morse (r)
(603) 271-8472

Russell Prescott (r)
(603) 271-3074

Nancy Stiles (r)
(603) 271-3093



Sen. Reagan, Dist. 17
Rep. Ladd, Graf. 4
April 20, 2015

Draft Amendment to HB 323

1          Amend RSA 193-C: 6 as inserted by section 1 of the bill by replacing it with the following:
3          193-C: 6 Assessment Required. Each year, a statewide assessment program designed to yield
4          specific data to use in identifying and improving instruction and learning shall be
5          administered in all school districts in the state [in grades 3through 8 and one grade in high school]
6          as follows: reading/language arts in grade 3, mathematics in grade 4, and both
7          reading/language arts and mathematics in grades 6, 8, and 11. If approved through a
8          federal education waiver, the New Hampshire department of education shall further
9          develop criteria for an application and approval process that will allow school districts
10        that meet certain readiness criteria to participate in a local system of assessment and
11        accountability. All public school students in the designated grades shall participate in the
12        assessment, unless such student is exempted, or provided that the commissioner of the department
13        of education may, through .an agreement with another state when such state and New Hampshire
14        are parties to an interstate agreement, allow pupils to participate in that state's assessment program
15        as an alternative to the assessment required under this chapte1·. Home educated students may
16        contact their local school districts if they wish to participate in the statewide assessment. Private
17       schools may contact the department of education to participate in the statewide assessment.
18       Nothing in this section shall include the use of a well established, curriculum-based
19        college readiness examination of academic achievement, such as the College Board SAT as
20        the high school assessment.

Press Conference on HB 323 to SAVE OUR KIDS -- Do NOT Give Commissioner Barry UNLIMITED AUTHORITY to Cut a Backroom Deal with US Secretary Arne Duncan

"SAVE OUR KIDS" PRESS CONFERENCE on Tuesday, April 28th at 8:30 am in Legislative Office Building lobby in Concord.

The Senate Education Committee is expected to vote on HB 323 at 9:00 am.

Everyon who is worried about children in NH public schools needs to attend. 

The NH Senate must NOT give Commissioner of Education Virginia Barry UNLIMITED AUTHORITY to Cut a Backroom Deal with US Secretary of Education Arne Duncan through HB 323. 

The Senate MUST NOT ABDICATE ITS LEGISLATIVE AUTHORITY over this Executive Agency which is unaccountable to the people, has no interest in working with parents and taxpayers, and is completely unwilling to listen to our concerns. 

No federal money will be lost if HB 323 does not pass.   There is no urgency to pass bad legislation.

NH public schools have barely transitioned to administering the Common Core aligned Smarter Balanced assessments.  The Commissioner of Education is rushing us to implement yet another pilot program, called PACE or Performance Assessments Competency Education, before its fully designed, let alone tested. 

Parents do not want to give the Commissioner UNLIMITED AUTHORITY to define a new program with the federal government in a backroom deal.  If this PACE program is so terrific, let the public review ALL THE DETAILS up front; hold a public hearing to listen to our concerns; and then OBTAIN APPROVAL FROM THE NH HOUSE AND SENATE.  Open and accountable government, not decision making through backroom deals between the Commissioner and the federal government.

The Commissioner of Education REFUSED to talk to Manchester School Committee members, who govern the largest school district in the state.  The Commissioner was repeatedly invited to come and answer the committee's questions about Common Core and Smarter Balanced assessments.  The Commissioner REFUSED to meet in public. She will only meet behind closed doors.

The Commissioner of Education REFUSED to hold public hearings on the Waiver Renewal application despite two pieces of legislation introduced this year asking for a public hearing on the Waiver before it was submitted.  The Commissioner posted a Survey Monkey on the Department website rather than listen to parents in a public forum.

The Commissioner of Education sent out two inappropriate Technical Advisories to school districts to insure that district officials bully and intimidate parents into allowing their children to participate in the Smarter Balanced assessments.  Parents have the RIGHT TO REFUSE.  Rights supersede the Commissioner's limited statutory authority.  The Commissioner is acting Under the Color of Law to bully parents.  The Commissioner knows better -- parent refusals annually account for 1-2% of the student population and are posted on the Department website. 

The Commissioner listens to the federal government which funds 85% of her Department's budget, but REFUSES to listen to the people.  The Commissioner cannot be trusted to act in the best interests of our children. 

The NH Senate Education Committee must not give the Commissioner UNLIMITED AUTHORITY to develop any new assessment programs in closed door meetings.