Guest post: Michael Kaminski’s response to the 1/20 @NJSBA memo

Michael Kaminski is a high school history teacher with 23 years of teaching experience. He is also the president of the Delran Education Association.


I’ve read the January 20, 2015 release from the New Jersey School Boards Association, “Your Local School Board, Your Students and PARCC: Frequently Asked Questions” and quite frankly, it’s not worth the internet bandwidth that it takes up. I’m still trying to figure out why you’re speaking up now – on this issue – in support of PARCC and sit and stare, when your silence has been deafening on so many other important educational issues. Nevertheless, your FAQs require some more appropriate answers, so here they are.

Are school districts required to administer the PARCC assessment?

NJSBA says yes, and on that lone point we can agree. Unfortunately, no one in educational leadership seems to understand what the term “administer” means. Does it mean “manage the operation or use of,” “to provide or apply; to put something into effect,” or even “to give ritually?” Apparently, the NJSBA believes that the term means “to force children to take” and if they don’t take it the first time, “to give habitually and repeatedly until they finally submit and take the darn test” because that is precisely what the majority of school administrators across the state are intending to do come March and May: administer and then re-administer the PARCC for as long as it takes to achieve compliance.

Must students participate in the PARCC assessment?

NJSBA says yes. Interesting enough, they correctly assert that state regulations contain the following provision: “…all students at grade levels 3 through 12…shall take appropriate Statewide assessments as scheduled.” Interesting because the Supreme Court has weighed in on the use of the term “shall.” In Cairo & Fulton R.R. Co. v. Hecht, the US Supreme Court sated: “As against the government the word “shall” when used in statutes, is to be construed as “may” unless a contrary intention is manifest. In George Williams College v. Village of Williams Bay, the Supreme Court of Wisconsin stated that “shall” in a statute may be construed as “may” in order to avoid constitutional doubt. In Gow v. Consoliated Coppermines Corp, a Delaware court stated “If necessary to avoid unconstitutionality of a statute, “shall” will be deemed equivalent to “may.” I think this sufficiently makes the point – but let’s see if a “contrary intention is manifest.” Even Commissioner Hespe stated in his September 30 memo that “…these advanced students are not expected to take a PARCC End-of-course assessment in mathematics, but must still demonstrate competency in mathematics to receive a state-endorsed diploma.” So, the Commissioner has acknowledged that “shall” is “may” and not “must” – at least in this case. But how about in others? According to his October 8 memo, the Commissioner said that “The NJDOE is not requiring students to take any commercial test as a condition of graduation but will allow schools to determine graduation readiness in a number of different ways.” Doesn’t sound like “shall” means “must” to me… But let’s pursue one other avenue. From that same memo: “Is a student who does not pass a PARCC end-of-course assessment required to retake the assessment”? Hespe’s DOE says “No. A student is not required to retake an assessment or retake the course.” Huh? So you “shall” take this completely meaningless test that you’ll only be “required” to retake if you refuse to respond to the questions. But no one else will. It doesn’t sound like the NJ DOE meant “must” when they said “shall.”

Do statutes, regulations or court decisions permit students to opt out of the state testing program?

NJSBA says no. But that’s not the whole truth. While there is no provision for “opting out” in New Jersey, other states do have such provisions. Somehow, those states are able to violate the conditions of the federal NCLB Act (Elementary and Secondary Education Act) and the 95% that the NJSBA refers to later in its document with impunity, but in New Jersey, they want us to believe that we cannot. So…we can’t opt out. Technically true. But WE COULD REFUSE.

What action should a school district take if a student refuses to participate in PARCC?

NJSBA cites Hespe’s memo that says that districts are “not required to provide an alternative educational program for students who do not participate in the statewide assessment.” So they are not required to…but they can. Here, the Commissioner clearly understands the concept that “shall” means “may” but not “must.” Districts absolutely can provide an alternative educational program. Just ask Bloomfield, Delran, Robbinsville, Milburn, Woodbridge, West Orange, Little Egg Harbor, Mahwah, Berlin Borough, Union Township, Waldwick, Washington Township, Swedesboro, Montville, and Princeton. Even the NJSBA admits that “districts have the discretion on how they will address situations” related to test refusal. Clearly. Thank you.

The NJSBA goes on to state emphatically that “the Spring 2015 PARCC Test Coordinator and Test Administrator Manuals provide guidance on what NJ school districts should do when a student refuses to take the state assessment.” No doubt they do. I completely agree with you. Pearson has stated that test refusals are “non-tested students” and the PARCC manual clearly states that non-tested students are prohibited from even entering the testing environment. So, on this issue, we agree. Students who refuse cannot enter the testing environment, meaning that they cannot be forced to “sit and stare.” Doing so would be a violation of testing security and would put school administrators at risk of losing their certification – since they are the ones who are insisting – on the behalf of the DOE – that students must “sit and stare.”

What is the impact on the school district if students do not participate in PARCC?

According to the NJSBA, the sky will fall. They cite the Commissioner’s October 30th memo and claim that districts must meet the 95% requirement. For some reason, both he and the NJSBA fail to mention that NJ has an NCLB waiver. School districts that do not receive federal Title I monies have NO OBLIGATION to meet the 95%. See’s piece on this. We are under NO obligation to meet those testing requirements. Even schools that receive Title I funds are not at risk of LOSING funding for failing to meet the magical “95%” – they would simply be told to re-direct a small percentage of their Title I funds for “remediation” purposes. So, let’s not get fooled by them holding funding over our heads, because honestly, even if this were true – if we’re only testing because we’re afraid of losing funding, what does that say about the testing itself? Threaten – Test – Punish. What a wonderful educational climate we’re living in.

But what about the Average Daily Attendance? Well, the NJSBA got it right. Schools could be adversely affected if their average daily attendance over a three-year period falls under 96%. All I can say to this is – perhaps the NJSBA and Commissioner Hespe and some of the more heavy-handed Superintendents in our state should not be suggesting that we keep our children home from school during testing days unless they want to risk losing funding as a result of their own advice. Better yet, maybe test refusals should consider keeping their children home during testing as leverage against Draconian “sit and stare measures.”  You want my child to sit and stare? My response will be to keep them home and then you might actually risk losing your precious testing dollars. Race to THAT top.

NJQSAC? Low participation rates “may” negatively affect your QSAC outcome. There are too many variables here to consider…and the NJSBA took a page out the Hespe playbook here. They were so intentionally vague you can’t even tell if there’s any shred of truth to this. Well played, NJSBA. I challenge you to offer proof that districts will lose funding for failure to meet PARCC participation levels specific to QSAC. As a matter of fact, I challenge you to offer proof that ANY DISTRICT ANYWHERE IN NEW JERSEY will lose funding under ANY of the conditions that you mention in this portion of the document. (Waiting patiently…)

What is the impact on students who do not participate in PARCC?

NJSBA wants us to believe that there’s some “valuable information about his or her academic progress and needs that will not be available.” Um…like what? What is PARCC going to provide that your child’s teacher cannot provide? What is PARCC going to provide that is any different or better than what Hespe’s last failed attempt at standardized testing (NJ ASK/HSPA) provided? And while I’m on that point – why should we believe that Hespe can suddenly get this testing thing right when he admitted during his presentation at the NJEA Convention that ASK and HSPA failed to provide us with the data we needed to really assess how we’re doing. So we tested for a decade based on his recommendation and now he returns to the big boy seat in the DOE to tell us all he was wrong all that time – but, seriously, this time he really knows that he’s gotten it right? Or, that PEARSON has gotten it right? Sorry. I just cant buy that.

Then, NJSBA adds a threat about “excessive absences.” You’re the one telling us we should be absent to avoid testing. Just you – and the Commissioner – and his cronies.

May a school board adopt an opt-out policy?

NSBA says “there is no explicit statutory or regulatory prohibition against such a policy.” Thank you. Good day.

But what about the “Code of Ethics for School Board Members?” I’m pretty sure that treating both tested students and non-tested students compassionately is in direct alignment with the Code of Ethics. Our schools are entrusted to care for our students – every single one of them – whenever they are in their care. It’s incomprehensible to me that this could somehow mean that school boards “can’t” or “shouldn’t” create opt-out/refusal provisions, but SHOULD enforce sit and stare policies. I challenge the NJSBA to explain to me how “sit and stare” jives with the Code of Ethics.

There’s no reason to discuss the remainder of the NJSBA document. But, I would make some recommendations to the NJSBA:

  • Start attending the DOE open public testimony sessions. There, you’ll come to the realization that NJ residents are NOT happy with the PARCC and are not pleased with the Commissioner’s response to test refusals.
  • Attend the PARCC Study Commission open public testimony sessions. There will be hundreds of citizens testifying about how bad the PARCC is – and about how they want the Commissioner and school boards across this state to come up with non-punitive, educationally sound responses for test refusals. It will be overwhelming. Trust me.
  • Listen to NJ 101.5. I can’t believe I’m suggesting anyone listen to this station which has been notorious for its bashing of public school teachers, but even they get it. This test is bad. Sit and stare is bad. Pearson is the devil.
  • Ask your members…your own local BOE presidents. Ask them what’s been happening in their own districts. They’ll tell you the same thing. People want answers. And they are not the answers you’re giving them. They’re not the answers in your January 20 document.

New Jerseyans want responsible, student-centered, educationally-appropriate activities for test refusers, and while that’s the most immediate concern connected to the upcoming PARCC administrations, New Jerseyans also want to have a say in what has been a completely one-sided conversation on testing. I believe that they, like me, are fed up with the over-testing of our children and they want it to stop.


*Adding: In response to a number of public posts–primarily from parents–criticizing the 1/20 memo, the NJSBA posted this response on its Facebook page:




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9 responses to “Guest post: Michael Kaminski’s response to the 1/20 @NJSBA memo

  1. james smith

    long drive deep center field..way back way back …it’s outta heeeeeer

  2. todacab

    Brilliant response

  3. Kim

    Thank you, thank you, THANK YOU…this is PURE GENIUS Michael! I just read the NJSBA’s “Fact Sheet” and was scrambling to find ways to dispute it when I happened to open your post…coincidence??? I think NOT! I had the pleasure to be in the same room with you at the recent NJSBOE open public testimony session in which both myself and my 14 yr old son testified (of course, Valerie Strauss is helping to make my son “famous” by reprinting his testimony). I thank you from the bottom my heart for your impassioned testimony and your dedication to the health and well-being of not only your students but of children everywhere.

  4. Pingback: NJSBA: Why the inhumane approach for parents and students who want to refuse? | The Edu-Sage's Companion

  5. Cruela

    Outstanding! That memo is a thinly veiled threat to Board of Education members. Get in line or we will file an ethics complaint. Kudos to the boards that are standing up for the kids and supporting the humane alternatives decision by the district administrators.

  6. Valerie

    I would love to hear a response on my District’s Policy: No refusing. Not EVEN Sit and Stare… Little Silver stated if the child is in school they HAVE to take the test.. And if she refuses they will send her home. So, in order to refuse they are only giving us the option to stay out of school.
    They are putting the NJSBA memo on the website as policy.

  7. Pingback: PARCC Assessment Refuseniks | THE RIDGEWOOD BLOG.

  8. Pingback: New Jersey voters on standardized testing: ENOUGH. | teacherbiz

  9. Please, please run for governor Mr. Kaminski! We could use someone who understands the law, values education, and takes a stand!

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