The Dear Colleague Letter on Transgender Students and Significant Guidance

On Friday 13, 2016, the U.S. Department of Education Office for Civil Rights (ED) and the U.S. Department of Justice Civil Rights Division (DOJ) sent out the Dear Colleague Letter on Transgender Students. It is my understanding this letter went out to at least every public school in the country.

I really want to address what I see as a larger issue. Others I am in contact with have raised the issue of circumventing the political process of establishing regulation and law, especially with the use of significant guidance documents. Before I get into the larger issue, there are two sections of the letter that stood out to me and I want to share here.

On page 3 of the letter, in the section on Restrooms and Locker Rooms, it says, “A school may, however, make individual-user options available to all students who voluntarily seek additional privacy.” On page 4, in the section on Housing and Overnight Accommodations, it says, “Nothing in Title IX prohibits a school from honoring a student’s voluntary request for single-occupancy accommodations if it so chooses.” It seems that these two sections open the door for students/parents who are uncomfortable sharing a restroom to request additional privacy. In my read of this, it would not be unreasonable for a student (or a parent to request on behalf of their student) to request to use a locked single occupant restroom in the nurse’s office or other available location. The statement says “make individual-user options available to all students”. It does not limit this to transgender students or non-transgender students.

Now, on to a larger issue related to this letter. For this issue, I would encourage you to read the letter and read the Federal Register linked in the second footnote of the letter. I am not a legal eagle so I am sure I have missed some important points and possibly misinterpreted others. I am going to comment about things I see in this document related to the letter. I would hope others with more knowledge and expertise would analyze this document and provide clarification.

First, the larger issue has to do with the circumvention of the political process by the federal government and nongovernment organizations. Executive directives, threats, withholding funds, requiring assurances, outside nongovernment organizations—non-representative groups establishing policy, regulation development and changes without congressional approval or authorization…   all taking power away from the people and influencing (or coercing or intimidating) states, local districts, and citizens to comply with the will of the powers that be, even if there are no regulations in place. The ED and DOJ deem this letter to be “significant guidance” (see the first sentence of the second paragraph of the letter). In a big way, it appears the use of “significant guidance” is another method being used to circumvent the political process

I think the issue of “significant guidance”, especially as it relates this letter, needs to be thoroughly investigated (and by someone more qualified than me). My read of the Federal Register raises more questions than it answers.

In preparing the Dear Colleague Letter on Transgender Students letter, I trust that the ED and DOJ adhered to the established basic requirements for significant guidance documents. One requirement is to include the citation to the statutory provision or regulation that the guidance applies to or interprets. Title IX of the Education Amendments of 1972 (Title IX) is what is cited. Why has it taken since 1972 to have the implementing regulations interpreted the way it is being interpreted in this significant guidance letter? With all of the attention given to Title IX over the years, it is truly amazing that only now we are being enlightened as to what the regulations really mean. I question their interpretation of Title IX and what the ED and DOJ would like to impose as regulations via significant guidance.

The letter states: “This guidance does not add requirements to applicable law, but provides information and examples to inform recipients about how the Departments evaluate whether covered entities are complying with their legal obligations.” A guidance document shouldn’t be able to add requirements to applicable law so I am okay with that part of the statement. I do question whether the covered entities, i.e. schools, are legally obligated to comply with the terms laid out in the significant guidance letter.

Once again, I encourage you to read the Federal Register linked in the second footnote of the letter. On page eight of nine in this Fed Reg, it presents the Bulletin for Agency Good Guidance. The information in the seven pages leading up to this Bulletin is quite revealing. I will present some excerpts in italics that stood out to me. I have added any bolding that appears for emphasis. The excerpts will be presented in the order they appear in the document.

Because it is procedurally easier to issue guidance documents, there also may be an incentive for regulators to issue guidance documents in lieu of regulations. As the D.C. Circuit observed in Appalachian Power:

The phenomenon we see in this case is familiar. Congress passes a broadly worded statute. The agency follows with regulations containing broad language, open-ended phrases, ambiguous standards and the like. Then as years pass, the agency issues circulars or guidance or memoranda, explaining, interpreting, defining and often expanding the commands in regulations. One guidance document may yield another and then another and so on. Several words in a regulation may spawn hundreds of pages of text as the agency offers more and more detail regarding what its regulations demand of regulated entities. Law is made, without notice and comment, without public participation, and without publication in the Federal Register or the Code of Federal Regulations.

This acknowledges that significant guidance documents, such as the letter, are used to make law without going through the proper established process. In essence, the use of significant guidance documents for this purpose is establishing it as a new process for making law.

The courts, Congress, and other authorities have emphasized that rules which do not merely interpret existing law or announce tentative policy positions but which establish new policy positions that the agency treats as binding must comply with the APA’s notice-and- comment requirements, regardless of how they initially are labeled.

I am not aware of the ED and DOJ complying with the notice and comment requirement. Maybe they don’t see this letter as establishing new policy positions that they are going to treat as binding. The tone of the letter sure sounds like it is their intent to have it bind.

Developed with appropriate review and public participation, accessible and transparent to the public, of high quality, and not improperly treated as legally binding requirements.

Was there appropriate review and public participation? Do the decisions and positions taken in North Carolina constitute appropriate public participation? Did the ED and DOJ short circuit Agency Good Guidance Practices and possible requirements in a rush to bully NC into compliance with what may not be regulation?

requirements for agencies to enable the public to comment on significant guidance documents or request that they be created, reconsidered, modified or rescinded;

This opportunity to comment has been provided in the letter with two email addresses and two phone numbers. If there were hundreds of thousands of people who commented and requested this guidance be rescinded, do you really think that would happen? If it is reconsidered, modified, or rescinded, I think it will be a result of other unignorable pushback and not requests they likely will pay little attention to.

Nothing in this Bulletin is intended to indicate that a guidance document can impose a legally binding requirement.

Plain and simple. I don’t believe the significant guidance letter is legally binding. It appears to be a threat to withhold funds for noncompliance to the will of the current administration.

Guidance documents are considered ‘‘significant’’ when they have a broad and substantial impact on regulated entities, the public or other Federal agencies

This letter is definitely significant.

Guidance can have coercive effects or lead parties to alter their conduct.

Brutal honesty. The intent of the letter is to coerce schools (parties) to alter their conduct and comply with the non-regulatory will of the current administration

Unless the guidance document is exempted due to an emergency or other appropriate consideration, the agency should observe the notice-and-comment procedures of section IV.

I do not know if this guidance document was exempted from observing the notice-and-comment procedures. If they did provide notice and comment opportunity, it must have been provided in the manner depicted in “Beware of the Leopard”.

Finally, Section II(2)(h) clarifies that, given their legally nonbinding nature, significant guidance documents should not include mandatory language such as ‘‘shall,’’ ‘‘must,’’ ‘‘required’’ or ‘‘requirement,’’ unless the agency is using these words to describe a statutory or regulatory requirement, or the language is addressed to agency staff and will not foreclose consideration by the agency of positions advanced by affected private parties.

Once again, significant guidance documents are legally nonbinding.

Although this Bulletin does not require agencies to provide notice and an opportunity for public comment on all significant guidance documents before they are adopted, it is often beneficial for an agency to do so when they determine that it is practical. Pre- adoption notice-and-comment can be most helpful for significant guidance documents that are particularly complex, novel, consequential, or controversial.

Interesting that the letter has this Fed Reg as its second footnote. If they followed this advice and allowed for pre-adoption notice-and-comment it was in the form of a “Beware of the Leopard” notice. Did the ED and DOJ not think this significant guidance document was not particularly controversial? I don’t think they have seen anything yet with regard to how controversial this is.

I was on the phone yesterday with a father of an eighth grade student in another state. Even before this letter came out his son’s school put new transgender bathroom policies in place. They did not inform the parents—intentionally made no attempt to do so. When school officials informed the students of the policy change, they told students not to tell or talk with their parents about the policy. They threatened to punish students whose parents contacted the school about the policy. The school officials did not want to have to deal with parents who question or disagree with the policy…   so they threaten to punish students. How very grown up. And parents trust these people to care for and educate their kids. Really.

I can’t resist going further with the identity issue. Now that we can assert a gender identity of our choice and be protected and recognized in that identity, let’s take it a step further to personal identity.  I assert, that for today at least, that I identify myself as Bill Gates.  And according to my civil rights and so as not be discriminated against, I am entitled to be recognized and treated according to my new self declared identify. Who do you identify as today?  I think we have one foot firmly in the middle of a squishy cow pie and the other foot squarely in chaos.

This is a fitting place to share my favorite Douglas Adams quote. “Reality is frequently inaccurate.”

I do not recall the U.S. Constitution having provisions for the use of significant guidance documents to make law or regulations. Maybe I missed the significant guidance document that created such a provision.:)



Order Washington State Against Common Core t-shirts

Thanks to the design talents of generous member, Lalaneya Gayman, Washington State Against Common Core has a beautiful new logo! Show your support and help spread awareness by sporting a WSACC t-shirt or sticker.

Tagless men’s T – $19.99
Women’s fitted T – $19.99
Sticker – $4.00

There are only four days left on our campaign, so place your order soon. Orders placed on this campaign will arrive in time for the Washington state GOP convention. You can expect to see them at the state Democratic party convention, too.

“Noncognitive” Factors: Are they Fair Game for Data Collection and Instruction?

In February 2013, the U.S. Department of Education’s Office of Educational Technology released a draft of Promoting Grit, Tenacity, and Perseverance: Critical Factors for Success in the 21st Century. To many who were aware of this report, it was alarming and controversial. In the summary of this report it says. “There is a growing movement to explore the potential of the “noncognitive” factors—attributes, dispositions, social skills, attitudes, and intrapersonal resources, independent of intellectual ability—that high-achieving individuals draw upon to accomplish success.” It seems typical that when the U.S. Department of Education releases a report like this the groundwork has already been laid for implementation of the ideas, if they have not already been embedded into existing and newly proposed practice. (this report does not seem to be available on the website anymore)

The Strengthening Research Through Education Act (SETRA S227) would allow for the collection of data on “noncognitive” factors like those mentioned in the summary (see above). Karen Effrem has done a wonderful job of presenting issues and recommendations for SETRA in the brief she has prepared called Issues of Data Privacy, Parental Rights, and Federally Sponsored Psychological Screening in the Education Sciences Reform Act (ESRA)/Strengthening Education Through Research Act (SETRA) in the Context of Current Federal Law and Programs. Karen Effrem, M.D., is the president of Education Liberty Watch and Executive Director of the Florida Stop Common Core Coalition. She identifies and expands on four major issues and makes recommendations about them. The four major issues she addresses in this document are:

  1. SETRA seeks to expand federal psychological profiling of our children.
  2. SETRA only appears to prohibit a national database.
  3. There is continued reliance on a severely outdated and weakened FERPA.
  4. Reliance on PPRA that allows sensitive data prohibited in surveys to be collected in curriculum and assessments.

The Summary Response to the U.S. House Education and Workforce Committee March Hearing “Strengthening Research and Privacy Protections to Better Serve Students” is a brief summary that Karen has prepared.

A one page handout has been prepared for people to download and share. This one pager is a good initial attention getter that may be followed up with Karen Effrem’s brief.
You should be able to download a pdf copy of this one pager by clicking here.

The National Assessment of Education Progress (NAEP) intends to begin assessing “noncognitive” factors. To do so, they will collect data on socio-economic status, technology use, school climate, grit, and desire for learning. The NAEP is making a leap from gathering academic content knowledge data to gathering “noncognitive” data. In making this move to gather data on “mindsets” that could be used for psychological profiling, NAEP will likely be in violation of federal law. For more information about this, you are encouraged to read the letter RE: Proposed National Education Assessment Plan and student/parental rights that the Liberty Counsel has addressed to Dr. Karen Effrem.

There seems to be a whole industry involved in the collection, storage, and sharing of student data, including “noncognitive” factors. Emmett McGroarty and Jane Robbins have written an article called The War on Student Privacy that features some of the players in this industry.

The education system, legislative bodies, government agencies, and industry all seem to think and act as if they are entitled to student data, including student-level (personally identifiable information) and “noncognitive” factors. Are student data, including student-level (personally identifiable information) and “noncognitive” factors really fair game? Many parents would not think so.

This has also been published at

Suspension! Update on Teacher’s Objections

On Monday, a letter was published about a teacher’s objection to the state assessment, A Teacher’s Professional Conscience: Objecting to the Assessments.  On that very day, the teacher was removed from the classroom and suspended.  Rather than rehash here what has already been written elsewhere about this, you can read about it for yourself in three different articles.

Update: SC teacher suspended after questioning standardized tests

SC teacher on leave after controversial letter

Letter on standardized testing lands teacher in trouble    (with video)

It sounds like it was initially claimed that Tracie Happel violated student confidentiality.  This is an issue that I would be a stickler about.  As I read the letter, no red flags of concern popped up.  I do not think that claim will hold up.  I was not able to identify any student by reading the letter.  No names were provided or mentioned.  If the district was really interested in student confidentiality issues, they would be wise to examine their policies and practices with regard to student level (personally identifiable information) being collected and providing access to the data by their assessment contractor and the state longitudinal data system.  Do they really know who has access to this data and how it will be used?  I doubt it.

It sounds like another claim is that Tracie called her students stupid, idiot, and retarded.  Again, no red flags for me when I read the letter.  It was clear to me that she was not calling her students these things.  She was simply using the words students had used to describe themselves.

I doubt the school officials will really look at the more serious issues about what has happened and why.  It will probably be more important to address someone who has spoken out against a system, whether right or wrong.  It ends up being a power and control issue since the system seems to feel threatened.  I have the feeling the school district is going to subject Tracie to the spaghetti test.  The spaghetti test is where the district will keep the spaghetti boiling in the water and test its done-ness by throwing noodles at the wall.  This will continue until one or more of the noodles stick or there is no more water left in the pan.  In either case, a mess results—a messy noodle decorated wall and the floor immediately below or a messy inedible glob in the bottom of the pan.










A Teacher’s Professional Conscience: Objecting to the Assessments

I have had the immense fortune of being able to be in front of children for 25 years, as of this year, as a teacher in many different capacities. It truly humbles me to know that for 25 years, parents have entrusted my professionalism, training, care, creativity, and judgment when it comes to their children. My experiences include both regular/general education, and special education. I’ve been able to teach in public schools but I’ve also taught two years in private schools, as well as overseas in New Zealand and China. I’ve been in front of children, college students, and adults. I have loved almost every minute of it.

We all know teachers tend to be a bit more caring than others’ are required to be in their jobs. We are the ones to kiss little boo-boos from the playground, give hugs when a best friend is mean, help tie shoes, do some hand-over-hand guiding when those darn scissors get the most of a little second grader. We are the ones to offer some tough love when writing is not up to par, or math problems can be done better. We are the ones who wipe tears, offer hugs, and offer empathy and part of our lunch when a little one comes without breakfast.

For most of my career, I have taught kids who have special needs; mostly kids with what the profession calls “specific learning disabilities.” This means my students are below the achievement gap, as indicated by ability testing, in reading and/or math. In some schools, they are pulled out for either or both classes and taught a separate or modified curriculum. In some schools, they are mainstreamed, or in the regular class along with me, where I accommodate their lessons according to their learning needs. But no matter the learning environment, the one thing I have consistently heard from my student with learning disabilities is, “I am stupid.”

One of my students this year had tears in his eyes when he asked me why he was “retarded.” I told him he wasn’t at all…he just learned differently. His response was, “Then why am I in the retarded class and all my friends are in the other class?” My students get angry that we are reading texts written for 2nd and 3rd graders when their friends are reading big, fat, thick chapter books. But what big, fat, thick chapter book is out there for kids who read at such a low level? My students KNOW they are different, and from that, they conclude they are retarded, or stupid. And when they say “retarded,” they are talking about the purest sense of the word, not the slang, unacceptable colloquialism that is so common today.

Everyday part of my job is to remind my students they are beautiful, smart, capable, amazing, creative, and worthy. Everyday I work HARD to show them the ways they CAN instead of the ways they can’t. They are all too aware of how they can’t. And it’s not right. Our educational system is set up to show kids what they can’t do. Especially when it comes to testing.

My middle school students, who read between a high first grade level to a high third grade level will have to sit for hours and weeks being forced to read material on a test in all core subject areas: reading, math, science, and social studies that will give them a score. Sure, we can say the score doesn’t matter. We can say it doesn’t affect the kids, and only has meaning for the school or the administration or the teachers. But in reality, we all know kids want to make adults happy. Especially adults who care. My students know I care about them, and when they sit in front of that test, trying their hardest to make me happy and do their best, they will only be reminded that they are stupid. That they can’t read. That they are behind their peers. And their feelings of inadequacy or being retarded will only be pushed further into their heads. For a student who is capable of reading Junie B Jones and being forced to read about Ansel Adams, taking this test will only make them feel worse about themselves. I love what Diane Ravitch says, “Sometimes, the most brilliant and intelligent minds do not shine on standardized tests because they do not have standardized minds.”

My students are far from standardized. Just look at their IEPs. Even better, come spend a few hours in my classroom and see how they can draw, hear how they can rebuild an engine, how they take care of their sick mothers or grandmothers, how they handle a horse no one else in their family can handle, how they can cook for their family of eight. As a matter of fact, come spend a day with any student in any school and see how not one student is standardized. Isn’t that what we teach them all the time? That they are unique and individual, and not like any one other person on this planet? Why would we change our tune for testing? We shouldn’t change it.

Some people will argue this and say testing shows achievement. It shows learning. As a teacher, who has taught for a very long time, I am here to tell you it does not. And if you are an educator, you already know that. If you are a parent, or a community member, you need to hear and understand it. It is one test. Taken in one day (mind you, each subject area is taken each day, culminating into days and days of testing). Results are not given to teachers in a timely manner, and if/when they are given, they are not diagnostic or useful. They only give us one moment in time showing us either Johnny failed or shined on that day. Nothing more, nothing less. There is no achievement in testing. Just pure, and total failure.

The following are reasons that I object to standardized testing in general and especially for the learning disabled children I serve as it developmentally, psychosocially, and professionally wrong to test these students on an academic level we know is well above their ability.

I object to the inhumane test environment imposed upon us. This single test will potentially rank and sort children so that labels of failure may be applied and the door will open for takeover of public schools by private interest groups in the name of ‘accountability’.

I object to treating my students like guinea pigs in an experiment that has not produced any real learning gains but will increase drop-out rates, decrease motivation and will increase anxiety disorders leading to what we’ve already seen: increased suicide among teenagers for the incredible pressure they are put under.

I object to the use of Pearson’s set “cut-scores” predicting ⅔ of our kids. These scores will not inform our instruction but will discourage the incredibly hard-working school staff and diminish brave innovation in coming school years.

I object to the lack of trust in classroom experts which has been replaced by faith in test publishers devoid of teaching experience and who deny the whole child’s uniqueness.

I object to the time stolen as testing becomes the main goal of my reading, writing and language instruction.

I object to the fact that SC PASS and SC READY because by failing this test students will lose faith in their individuality, self-worth and higher education or career prospects. Confidence is key to perseverance.

I object to the use of SC PASS and SC READY or any standardized assessment that directly correlates to family income. Students of color, English learners, and those with low socio-economic status are disproportionately harmed by standardized testing and yet we continue to increase it-often IN THE NAME OF CLOSING THE ACHIEVEMENT GAP. This is ludicrous.

I object to the lack of transparency on test items and scoring mechanisms; that teachers and parents are not permitted to view the test or the answers their students write is insulting to the people who know a child best. Teacher assessment data and report cards are disregarded by accountability ‘experts’ who strive to label students for their own purposes.

I object to the misuse of precious revenue spent on SBA scoring, on practice tests, on required test materials, on contracts with test-prep corporations’ consultants and on staff time for training to teach to the test as well as training for administering the test.

I object to how financial backers for the corporate takeover of education are funding campaigns for candidates who will support SBA testing using billions of dollars earned on the backs of hard-working taxpayers whose children are harmed by this test.

I object to the undemocratic process of adopting testing and South Carolina State Standards whereby members of society, notably parents and educators, have not been engaged in ethical discourse around the ultimate purpose of public education and whether or not new standards may or may not solve the real problems impacting education.

I object to the socialist approach to the methods used before and during testing with our families, and students, and in our classrooms, where parents have a right to opt out of other school activities such as field trips, and students have the right to opt out of other school activities such as pep rallies, but neither have a right to object to testing.

I object to forcing children to sit through hours of bubble tests when they don’t even understand what they are doing and why they are doing it. This is inhumane.

I object to children who are just learning to speak, read, and write in English being forced to take standardized tests using English academic language and culturally biased language.

I object to forcing children with special needs to take standardized grade level tests when they have already proven to be 1 ½ to 2 years behind typical peers via a formal evaluation using standardized tests.

I respectfully request that my students not be required to take the SC PASS and SC READY, which goes against my professional conscience.

With Best Regards and in Sincerity,

Tracie Happel, M.S., ABD

A Heartfelt Expression of Concerns

Last fall a mother shared some information with me in an email she had sent. I recently saw this mother. I asked and received permission to post the text of a letter. SB 6030 and SB 6122 are mentioned. Even though it appears both of these bills have died, this mother’s letter conveys a message from the heart. The mother read her letter to Senator Dammeier at a Town Hall meeting in Puyallup. Here is her letter:

Senator Dammeier,

I am here tonight to ask that you support SB 6030 and help eliminate Common Core and the Smarter Balance Assessment from our schools.  I am here tonight to ask that you really listen to parents and teachers. We are with our children every day and see what Common Core and high-stakes testing is doing to our kids. At the beginning stages of  Common Core, I kept an open mind. After all, change isn’t necessarily a bad thing. Not always, but in this case, it’s not good! I was willing to give it a try, but after seeing the effects that it has had on my own kids and hearing stories from others with the same experiences, I started doing research.

My eyes are wide open! Thousands of parents and teachers here in Washington State and across the country have concerns with the Common Core Standards, high-stakes testing and the curriculum being taught in the classroom. Does this not raise a red flag? How can we stand by and allow our children to be used as guinea pigs as they are exposed to inappropriate standards, tests and curriculum that were never tested or validated before being implemented?

My issues boil down to a few things:

* The standards themselves have caused a poor choice of curriculum in the Bethel School District called Engage NY Math which will become Eureka Math.

My daughter feels that she is not good in math and she has not always felt this way. It takes her hours to complete her math homework and I struggle to help her. She excels with “old” math, the way WE were taught to do math.

* We have also found that teachers quickly teach a concept and quickly move on to the next. Teachers are being forced to teach to the test. This is not teaching. This is not TRUE learning. My daughter has a very good memory and has never had the problem of not remembering how to do something until Common Core. Common Core and over testing has taken her love of learning away and is dumbing her down.

*My oldest, who is an honors student, is in high school and has recently been diagnosed with depression. He has lost his motivation to do the things he loves to do, like play soccer and hang out with his friends. I have seen him through a critical time when he was cutting himself and talking to his friends about killing himself. He has a hard time sleeping at night, due to depression and I struggle to get him to school. He is very smart and has so much potential, but instead of getting him ready for college and career, he is on the verge of dropping out of school and no longer has dreams of going to college. Neither one of my kids will be exposed to the added stress and anxiety that Common Core and the high-stakes tests create.

*Parents losing trust in schools and districts due to secrecy and lies about Parent Refusal Rights from adults we are supposed to trust with our children. This is what Common Core and high-stakes testing has done to our schools. Because of my experience with my daughter’s school and our district, and hearing several similar experiences, I have recently pulled my daughter out of school. If SB 6030 does not pass, I will be pulling my son from public school as well. My children’s well being is more important to me than closing some gap or competing with the rest of the world- when such students don’t always test at the ages that Americans have to.

*What do we do ten years from now when you finally start seeing that this is not working?

This is our children’s future. We can’t just say oops! Our children do not get these years back!

Please support SB 6030 and SB 6122 and get rid of Common Core and the Smarter Balanced Assessment as well as de-link tests for graduation requirements.

Thank you for your time.