Review of Withholding Penalty History Confirms Threats Are Punitive And Improper: USDOE Is All Bark. No Bite.

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USDOE Is All Bark. No Bite.

In response to escalation of the opt out movement in New York State, now-former U.S. Department of Education (USDOE) Secretary Arne Duncan and others at the USDOE have advanced a litany of threats, warning that they will withhold Title 1 funding from states if they fail to comply with federal testing mandates, with the States, in turn, threatening to withhold Title 1 aid from school districts with high opt out numbers.

In the 2014-15 school year, about 20% of eligible New York students refused the grades 3-8 State math and ELA assessments being administered by public school districts across the State. In total, about 200,000 students refused the assessments, with some districts experiencing opt-out rates well above 50%.

MaryEllen Elia is the new Commissioner of the New York State Education Department (NYSED or SED).  Despite her various statements that acknowledge a parent’s right to opt out (refuse) the grades 3-8 State assessments (see video at minutes 02:00 to 02:25, and 10:55 to 11:14); despite her statements that teachers CAN speak to parents (under certain circumstances) about the state  assessments and whether to refuse them (see video at minutes 02:25 to 04:50); and despite her statements that NYSED does NOT have any unilateral legal authority to withhold Title 1 funding from schools with high opt out rates (see video at minutes 04:50 to 06:55); she nevertheless has been vigorous in her efforts to intimidate school districts and discourage test refusals. “Let me say this very clearly: I think opt-out is something that is not reasonable. I understand that it came about as a result of people wanting to become involved in what they thought was the political way to approach it. If any educator supported or encouraged opt-outs, I think it’s unethical” she said here

As American Federation of Teachers President Randi Weingarten recently pointed out here, USDOE’s threats fly in the face of the Every Student Succeeds Act (ESSA) and penalties for opting out are beyond USDOE’s reach.

Yet, Commissioner Elia has shown no interest in pushing back against USDOE’s tyranny, notwithstanding that she has an army of well-informed, brave parents and even the law behind her. In fact, Elia warned that while there would be no penalties for districts with large opt-out numbers in 2014-15, such as the withholding of federal funding, for the 2015-16 year – she warns districts could be sanctioned if the movement continues.

The department created a “tool kit,” to discourage opt outs which included rhetoric filled presentations, fact sheets and even social media tag lines and strategies, for district superintendents to use to “communicate” more effectively with parents.


The federal government did not sanction New York State for its high 2015 opt out rates, and some believe that USDOE left that decision up to the State. Given the barrage of threats now coming down from USDOE and Commissioner Elia’s response, many worry New York State may not be so lucky in 2016 – that Title 1 funding loss could be a possibility.

Despite several threats from USDOE, it is still not clear what legal “range of enforcement actions,” if any, the USDOE has at its disposal vis-a-vis the opt out rates, nor has plenary authority to withhold Title 1 funds been adequately explained by State and/or federal officials.

A review of USDOE withholding penalty cases confirms what opt out parents already know: USDOE is all bark, no legal bite, when it comes to low participation rates based on high opt out numbers. USDOE’s threats to stymie opt outs are punitive and improper.

Withholding Penalty

Procedurally-speaking, under No Child Left Behind (NCLB), the USDOE has the power to conduct withholding hearings in the event a state fails to comply with federal requirements.

Although states that do not substantially comply with NCLB (and ESSA) may be subject to enforcement actions, USDOE’s case history shows that they have rarely exercised this option and, in the rare instances that they have done so, the cases are no slam dunk.

The USDOE  has sent opt out warning letters to New York and 12 other states: California, Colorado, Connecticut, Delaware, Idaho, Illinois, Maine, North Carolina, Oregon, Rhode Island, Washington, and Wisconsin. To read each states warning letter, see here. States on USDOE’s opt out warning list must demonstrate what efforts they are taking to comply with NCLB. USDOE has asked, and NYSED has reported to USODE personnel, demonstrating how and that NYS has “substantially” complied with federal testing statutes.

For example, on page 9 of an April 2015 memo to the New York State Board of Regents, NYSED explained the importance of “full participation” in the State assessments. 

Meanwhile, USDOE has been relentless in hounding NYS in order to stymie test refusals. In a letter dated December 22, 2015, USDOE’s Ann Whalen (previously employed at Peter Cunningham’s “Education Post,” a nefarious reformer rag) advised states to penalize their school districts if the districts fail to deliver 95% participation during the Spring 2016 assessments. 

On December 22, 2015, Commissioner Elia sent a letter to USDOE in which she outlined the steps that she planned to take to promote the 95% participation rate and impede test refusals state-wide. Commissioner Elia’s December 22, 2015 letter is not directed to USDOE’s Ann Whalen; rather, it is directed to Acting Director of State Support Patrick Rooney, in reply to USDOE’s Monique Chism’s October 19, 2015 letter — which apparently was also threatening.

From Monique Chism’s October 19, 2015 letter to Commissioner Elia:

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Commissioner Elia’s letter in reply to Chism provides “information about how New York is addressing deficits in meeting the participation rate requirements in the Elementary and Secondary Education Act (ESEA) of 1965.” 

According to Ann Whalen and other USDOE employees, states must deliver scores and ensure that all students take the grades 3-8 assessments; USDOE ignores the reality that many well-informed New York State parents object to such assessments, and will not allow their children to be forced to take federally-mandated assessments.

In fact, parent advocates denounce USDOE’s tactics and have assured the USDOE that parents will not be swayed by idle threats and will continue to opt out en masse in order to protect their children from governmental harm. http://www.nysape.org/nysape-funding-response-to-usdoe.html

Withholding Penalty Cases

In a 2014 letter to the Colorado Education Department, USDOE claims to have withheld Title 1 funds from several states for failure to comply with the assessment requirements. Interestingly, the statute cited by USDOE in support of the penalty was NOT the section from NCLB that addresses the 95% participation rate.  Note, also, that administrative funds — not program funds — were at issue in that withholding case:

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After researching USDOE’s case history, I was not able to find evidence that USDOE had withheld funds from several states as they claimed.  Although it is possible that other cases may exist in another arena, research of USDOE’s records yield only two instances in which USDOE filed and adjudicated a case that resulted in a withholding penalty against a state.

According to USDOE’s website Office of Hearings and Appeals (OHA), the OHA “provides an independent forum for the fair, impartial, equitable, and timely resolution of disputes involving the U.S. Department of Education and recipients of Federal Education Funds.” The website publishes decisions issued by OHA and by the USDOE Secretary, in searchable form.

In a 1995 case, USDOE threatened to withhold funds from the State of Virginia based on a violation of the IDEA. In that case, Virginia’s regulations, as implemented, did not comply with the IDEA.  In other words, there was malfeasance on the part of the State of Virginia.  The USDOE Secretary ruled to withhold IDEA funds from Virginia. However, the decision clearly stated that the ruling was stayed pending appeal; the reality was that Virginia had access to its IDEA money for a time despite the ruling.

The Department urges the Secretary to uphold the Initial Decision and to order that Part funding to Virginia be withheld until such time as Virginia complies with the IDEA noting that although Virginia argues it is harmed by a withholding decision, Virginia continued to have access to its FY 1994 funding and will, as the Assistant Secretary has recommended in this matter, have access to its FY 1995 funding pending any appeal of my decision in this matter. Thus, I will not disturb the Hearing Officer’s ruling that the withholding of unobligated FY 1995 IDEA PartB funds and any future funding under IDEA-B is the appropriate remedy in this matter, but that such ruling be stayed pending any appeal of this matter. “

It is not clear what happened in Virginia after said ruling was issued.

With regard to withholding proceedings regarding education matters/assessments, there is a very interesting 2008 withholding penalty case in which the USDOE threatened to withhold $1 million in Title 1 administrative fees from the State of California based on the allegation that the State of California had decided to administer allegedly inappropriate assessments to some of its students — in other words, again based on alleged malfeasance on the part of the State.  In the legal papers there is much discussion about the withholding penalty, Congressional intent, and the Secretary of Education’s penalty powers. But, complications ensued with the USDOE’s case, leading to the petitioner, USDOE, being lambasted by an Administrative Law Judge and USDOE’s action blocked for bending the law, impropriety, and other bad conduct.

The Assistant Secretary had issued an Order to Show Cause letter informing the State of California that USDOE sought to withhold $1 million, and alleging that California failed to comply with various requirements of NCLB and ESEA. 

An Assistant USDOE Secretary hit the State of California with a withholding penalty notice without an opportunity to be heard on the matter. California requested a violation of due process hearing before an Administrative Law Judge who found that the USDOE conduct was “without legal authorization.” The Administrative Law Judge sharply criticized USDOE’s handling of the California case and found that the Assistant Secretary had acted improperly by attempting to prosecute the case while adjudicating as trier of fact.

in that case, the Administrative Law Judge scolded USDOE:

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Notwithstanding USDOE’s hanky panky, the Administrative Law Judge in the case made it clear that Congress intended for the States to have due process — fair notice and an opportunity to be heard — before a withholding penalty could be issued and imposed… a requirement that USDOE tried to skirt. 

To be clear, the funds at issue in the California withholding penalty case were Title I Part A Administrative funds (as opposed to actual Title 1 Program funds). 

At the end of the day, the case was remanded to the USDOE and former Secretary Duncan adjudicated the case to a resolution, but it was not the outcome USDOE wanted. Of import, in his decision Secretary Duncan declined to approve the Assistant Secretary’s application for $1 million in  withholding and instead reduced the penalty amount to a “mere” $50,000. 

The reasons behind that decision are very compelling.

In ruling to reduce the withholding penalty, former Secretary Duncan opined that the Assistant Secretary had erred in setting the amount at $1 million.  Beyond that, Duncan conceded that there were mitigating circumstances that warranted a penalty reduction with $1 million wildly excessive as such a penalty would greatly prejudice the state’s ability to close achievement gaps and also harm the economy, among other things:

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Remember —  the $50,000 ordered withheld from the State of California was drawn from its Title I, Part A allocation for administrative activities, and it was due to conduct specifically attributable to the State.

It goes without saying that withholding penalty cases are very rare.  It also seems that in the case of opt outs, a withholding penalty is indefensible by the government.  First, USDOE must prove that the state failed to substantially comply with the statute; in this case, tens of thousands of NYS parents chose to refuse the test despite the State’s efforts to achieve a 95% participation rate.  Second, there are many mitigating factors that would make a large withholding penalty egregiously improper if not prejudicial.

Mitigating Factors

Title 1 money is automatically granted based on the number of impoverished and/or at-risk children in a given school district.  The entire intent, spirit, and purpose behind NCLB Title 1 funding is to raise the achievement of, and bridge the achievement gap between, these low-income and at-risk students, and the rest of the student population.  Based on this formulation, USDOE provides the supplemental funding to states that, in turn, disburse that money to its local school districts to meet the needs of their respective at-risk and/or low-income students.   The basic principles of Title 1 state that schools with low-income and/or at-risk students will receive supplemental funds to assist in meeting students’ educational goals.  Low-income students are determined by the number of students enrolled in the free and reduced lunch program.

This policy is committed to closing the achievement gap between low-income and/or at-risk students and other students and its purpose “is to ensure that all children have a fair, equal, and significant opportunity to obtain a high quality education and reach, at minimum, proficiency on challenging state academic achievement standards and state academic assessments”, per USDOE website

Title 1 funds typically support supplemental instruction in reading and math and the funds can be used in many ways to provide help and support to impoverished and at-risk children.

Indeed, balancing equity, parent engagement, and involvement is the cornerstone of Title 1.  This then begs the question, what better way to participate in your child’s education than by making a well-informed decision to refuse to allow your child to participate in state-sanctioned abusive testing practices?

Beyond that, as is evident from the OHA California case discussed above, then-Secretary Duncan clearly recognized that withholding $1 million was unreasonable and would greatly prejudice students and the State of California.

According to the Congressional Equity and Excellence Commission report of 2014 ,   Title I, the centerpiece of the original 1965 Elementary and Secondary Education Act, was designed as Lyndon Johnson’s compensatory education program and intended to help equalize resources for school districts the rationale being that school districts with children living in poverty also tend to lack local property wealth that can be taxed.  

As to Title 1, the Commission members opined that:

“The common situation in America is that schools in poor communities spend less per pupil—and often many thousands of dollars less per pupil—than schools in nearby affluent communities, meaning poor schools can’t compete for the best teaching and principal talent in a local labor market and can’t implement the high-end technology and rigorous academic and enrichment programs needed to enhance student performance. This is arguably the most important equity-related variable in American schooling today.  Let’s be honest: We are also an outlier in how many of our children are growing up in poverty… We are also an outlier in how we concentrate those children, isolating them in certain schools—often resource-starved schools—which only magnifies poverty’s impact and makes high achievement that much harder.” 

Interestingly, acting USDOE Secretary Jon King (formerly NYSED Commissioner) served on the Congressional Equity and Excellence Commission. The nefarious and former Commissioner King is well known for playing the “equity” card in support of flawed reforms. One has to wonder how it is possible for Acting Secretary King to advance “equity” when USDOE is threatening to withhold funds from disadvantaged students who desperately need said funding the most?

It cannot be disputed that school funding formulas tend to ignore inequality in the capacities of local school districts to raise revenue hence the need for Title 1 funds.  Wealthy districts (which tend to be suburbs) provide the latest in offerings and equipment and staff-student ratios, while impoverished districts (that tend to be urban/city and rural areas)cannot afford to augment their services or provide a sound basic education.  Title 1 is the one federal law that was intended by its 1965 sponsors to help level the playing field in order to close the gap in disparity for that very purpose: equity in education.

Acting USDOE Secretary King and his ilk throw around the term “equity” but then idly and callously threaten to withhold the very same funds that were dispersed to support that very need. Threats by USDOE to withhold such funds from the neediest of districts due to opt outs flies in the face of the statute’s intent and purpose not to mention it is incredibly punitive.

Moreover, I would argue that in making a decision as to how much money should be withheld, if any, the trier of fact must consider mitigating circumstances and elevate the needs of impoverished and vulnerable students above federal “policy” interests in order to comply themselves with the spirit and intent of federal laws.

The state is already derelict in failing to provide adequate funding to public school students, as lawsuits aptly show.  Thanks to the trifecta of Gap Elimination Aid, frozen Foundation Aid and the Real Property Tax Cap and a reform based privatization agenda, New York public school children have been consistently denied their Constitutional right to a sound basic education. 

To add insult to injury,  USDOEs threats continue to confuse  –  after the New York State Governor and Commissioner of Education have already agreed that the existing Common Core and testing regimen is fatally flawed and parents making informed and difficult decisions are in the best position to decide what is best for their children.

State Education Commissioner MaryEllen Elia concedes, “Parents can choose whether or not to take the test…if parents understand [our rationale for testing] and they still want their child to opt out, that certainly is their right.”

Likewise, Governor Andrew Cuomo admits, “At the end of the day, parents are in charge and parents make the decisions.”

It stands to reason, parents should not have the added burden of coercion or intimidation by school personnel or the state when it comes to subjecting children to the draconian high stakes nature of the Common Core tests.

In New York State, officials have acknowledged that parents have the right to refuse the test.

Threatening to withhold Title 1 money from New York’s disadvantaged students due to high opt outs is a misrepresentation of the facts, a miscarriage of justice and has got to be one of the most egregious, ill-conceived threats ever against public school children. Consider this as well: impoverished and at-risk children did not comprise the majority of the children opting out yet the withholding penalty will strike them hardest.

Compounding an already dire problem, unfunded mandates such as Common Core add to the burden that already weighs heavily on school district taxpaying parents at the expense of public school children.

State and federal officials must not intrude when parents seek to make choices about what is best for their own children. There are aspects of the NYS Testing program that parents may find questionable and objectionable for educational, political, social, ethical and/or religious reasons. The decision to refuse the test does not come lightly. It is a family decision that is simply beyond the control of administrators and teachers.

The law provides penalties when 95% participation is not met due to systematic exclusion, but USDOE has no legal bite when public school children refuse in an act of civil disobedience.  Attaching “penalties” to opt out  is not only  beyond the USDOE’s reach, but is incredibly punitive and improper.

USDOE Is All Bark.

No Bite.

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This blog post was researched and written by Anna Shah for informational purposes and should be construed as opinion, not legal advice. Special thanks to Deborah Brooks for contributing to this piece.

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