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Flexible Waivers for Assessments in the 2020-2021 School Year

On December 8, 2020, we provided guidance that Act 136 provided numerous changes to the School Code. As part of Act 136, the Pennsylvania Secretary of Education was granted the authority to apply for a waiver of federal testing and accountability requirements under The Every Student Succeeds Act (ESSA) for the 2020-2021 school year, should the federal government allow states to apply for such waivers. On February 22, 2021, in a letter to Chief State School Officers across the Country, the United States Department of Education Office of Elementary and Secondary Education (DOEd) officially announced that it will be “inviting states to request a waiver for the 2020-2021 school year of the accountability and school identification requirements…” and allow flexibility in the assessment requirements. The DOEd will not approve blanket waivers of assessments, a change from the 2019-2020 school year, because “it remains vitally important that parents, educators, and the public have access to data on student learning and success.”

Despite not approving a blanket waiver for assessments, the DOEd will allow the Commonwealth to apply for certain flexibilities to help ensure students and staff are not brought into a school building for the sole purpose of the test during the pandemic. The DOEd does encourage states and Districts to consider other steps, within their respective purviews, to reduce the high stakes nature of assessments for the 2020-2021 school year, such as excluding the use of these assessments from factoring into students’ final grades and grade promotion decisions. The DOEd letter suggests states allow flexibilities such as:

  • Administering a shortened version of its statewide assessments;
  • Offering remote administration, where feasible; and/or
  • Extending and/or altering the testing window to the greatest extent practicable. Such flexibility could include offering multiple testing windows and/or extending the testing window into the summer or even the beginning of the 2021-2022 school year. States that elect to extend testing windows should also consider how they can make results available to the public in a timely manner after assessments are administered. States are specifically encouraged to apply for a waiver to extend the testing window for English language proficiency (ELP) assessments to ensure that Districts are administering this assessment when it safe for them to do so.

In response to the DOEd letter, on Tuesday, February 23, 2021, Acting Secretary of Education Ortega announced that the Pennsylvania Department of Education (PDE) will not, at this time, be seeking a waiver for assessments in the 2020-2021 school year. However, according to Acting Secretary Ortega, PDE will allow Districts to hold assessment materials later in the calendar year, i.e., September 2021, to ensure that a larger, more representative sample of students are able to participate in the assessments.

The attorneys in Stock and Leader’s School Law Group continue to monitor both federal and state laws and regulations that take shape in these times. If you have any questions related to this update, please contact our School Law team.

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