March 18, 2004

Ms. Carolyn D. Long, Superintendent Braxton County Schools
411 North Hill Road
Sutton, WV 26601

Dear Ms. Long:

I am in receipt of your request for an interpretation of WV Code 18-8-1 as it applies to the required annual assessment of home-schooled students. Your specific concerns are answered below.

1. "Guidance is needed on how counties can assist home-schooled children in meeting the testing requirement in grades K-2, 9, 11, and 12 and meet the requirements of the law."

WV Code 18-8-1 does specify, "On or before the thirtieth day of June of each year the person or persons providing home instruction shall obtain an academic assessment of the child for the previous school year and submit the results to the county superintendent." I believe your question here is prompted by your knowledge of the state assessment policy that requires testing, for accountability purposes, at grades 3-8 and grade 10. The grades you cite in your inquiry are not part of the formal assessment process.

If home school providers choose, the students at grades 3-8 and at grade 10 will participate in the state's assessment. The remaining students have to participate in a different assessment, of the provider's choice, to determine the child's annual academic progress during the years not covered by the state's assessment policy. This is necessitated as a result of the legislative mandate that the students be assessed "each year."

2. Next, you ask, "In grades 8 and 10, students take the WESTTEST and the ACT Explore and ACT Plan. Do you expect that we offer home-schooled children both tests for those grade levels or will the WESTEST be sufficient?"

Providing home-schooled students the WESTEST at grades 8 and 10 will meet the legal need to determine acceptable academic progress. However, counties should offer the ACT Explore and the ACT Plan tests to home-schooled students at grades 8 and 10 as well, in accordance with language of West Virginia Code 18-8-1(c)(3) which states that "The county superintendent . . . shall offer such assistance, including . . . materials and available resources, as may assist the person or persons providing home instruction. . ."

3. "Should we invite home-schooled student to participate in any field test, i.e., end-of-course exams?"

No, home-schooled students have no reason to participate in any field test of state tests. Field tests are designed to test and evaluate the questions that will makeup the operational test. The core group of students who will eventually take the assessment are the core group of students that should participate in the field test. Additionally, the test results will be used to hold public schools and counties accountable.

4. "Should home-schooled students participate in the NAEP as it is a reflection of how well students are doing in public education?"

Home-schooled students should not participate in NAEP as they are not part of the public school system. NAEP uses WVEIS data to select enrolled students within selected public schools for administration of the NAEP. Home-schooled students would not appear in the WVEIS data. Also, NAEP does select private and parochial schools to participate in its national samples.

5. "How can home-schooled students be involved in the alternate assessment and should they be involved?"

The state's alternate assessment is designed specifically for special needs children and is explained in State Board Policy 2340. The policy defines "alternate assessment" in section 3.26, "West Virginia Alternate Assessment. The West Virginia Alternate Assessment is an assessment specifically designed for a small number of students with significant cognitive disabilities whose performance cannot be adequately assessed through the general assessment instrument, West Virginia Educational Standards Test, even with modifications." If it is agreed between the county superintendent and the parent, that WESTEST is inappropriate to measure a particular student's achievement and that the Alternate Assessment is appropriate, the same may be administered pursuant to W.Va. Code 18-8-1(c)(2)(D)(iv).

6. Should counties invite home-schooled students to take the writing assessment?
Yes, counties should invite home-schooled students the opportunity to take the writing assessment pursuant to W.Va. Code 18-8-1(c)(3), as cited in number 2, above.

7. You cite examples of times that home-schooled students have been tested with a test a grade below the actual grade level of the child. You then inquire about an interpretation regarding home-schooled students being tested on grade level.

With the recent rewriting of this legislation, the language does require the home school provider to provide to the county school system annually, "a notice of intent to provide home instruction and the name, address, age and grade level of any child of compulsory school age to be instructed." Because the law now requires the age and grade level of the child home-schooled, I do believe that this information is given to ensure that children are assessed at the age and grade level as noted. As a result, the student must be assessed using an instrument that evaluates students at that grade level. This is not to imply that home school providers do not have the same opportunity to "repeat" instruction at a particular grade level, the same way the public school system does. However, the provider would have noted that fact in the annual notice and then assessed that student accordingly.

If, however, the home-school provider assesses the child at a grade level other than that which was noticed to the county superintendent or county board, the annual assessment would fail to show acceptable progress. "When the annual assessment fails to show acceptable progress . . .[they must] initiate a remedial program . . ." W.Va. Code 18-8-1(c)(2)(E). Alternatively, you "may seek from the circuit court of the county an order denying home instruction of the child . . .[which] may be granted upon a showing of clear and convincing evidence that the child will suffer neglect in the child's education or that there are other compelling reasons to deny home instruction." West Virginia Code 18-8-1(c)(2)

I trust that I have addressed all your questions, but should you wish to discuss any portion hereof, please contact counsel in the Legal Services office at (304) 558-3667.

Sincerely,

/s/

David Stewart
State Superintendent of Schools