Assistant Attorney General Further Restricts Parental Rights in Utah

Yesterday morning, we published an interview with Heather Gardner, a Utah mother of five young children, who was told by school administrators that her children were no longer welcome on campus because she had opted them out of assessments the school believed her children were required to take.

By the afternoon, the situation became worse.

First, some context. Last year, Senator Aaron Osmond sponsored a parental rights bill that, among other things, requires a school to “excuse [a] student from taking a test that is administered statewide” upon written request of the parent. In other words, with this bill having been signed into law, a parent can legally opt out their child from “a test that is administered statewide.”

However, a legal opinion offered last September by Assistant Attorney General Chris Lacombe (who is representing the school board in our lawsuit over their adoption of Common Core), led the Utah State Office of Education (USOE) to advise schools that parents can only opt their children out of some of the assessments.

Whereas the law clearly refers to “a test that is administered statewide,” Lacombe’s opinion, and the resulting memo, instead refers to a “state administered test.” You’ll note, of course, the difference—the former refers to a test used by schools around the state (“administered statewide”) whereas the latter refers to tests that are administered by the state. The law does not say this, and therefore Lacombe’s legal opinion is misguided and unenforceable.

Under this incorrect opinion, the memo states that “Lacombe is of the opinion that students may not opt out of” ACCESS, UAA, and the Direct Writing and reading assessments. That opinion was subsequently enforced by the USOE through schools around the state.

Yesterday, however, Ms. Gardner received an email from AAG Lacombe indicating that he had revised his legal opinion, and that the USOE had issued an updated memo that afternoon. Now, parents are being told that they have even less tests they can opt their children out of—no longer can they legally (according to Lacombe and the USOE) opt their child out of SAGE interim, DIBELS, ACCESS, SAGE formative, or benchmark assessments.

In other words, as of yesterday afternoon, children throughout Utah will be forced to take a variety of exams that schools will not allow parents to opt them out of. Senator Osmond, the sponsor of last year’s law, made clear last Friday that this action violates the legislative intent of the parental rights law, and yet AAG Lacombe and the USOE continue—in increasingly restrictive fashion, as evidenced by yesterday’s revised memo—to interpret this law in their favor, contrary to the intent and text of the statute.

Under the revised memo, schools will only allow parents to opt their children out of SAGE summative, the ACT, and the NAEP.

As indicated in Ms. Gardner’s interview, she filed a formal complaint regarding her children’s school forcing them to take exams against her wishes. Readers may be interested to note, and perhaps will not be surprised to learn, that the complaint was forwarded on to none other than… Assistant Attorney General Chris Lacombe.