Colorado should be cautiously optimistic about having key changes in its testing system approved by the U.S. Department of Education, according to education policy experts surveyed by Chalkbeat Colorado.

The testing law passed by the 2015 legislature contains several changes to the state’s assessment and accountability system, including a shift in high school standardized testing and a one-year timeout in the rating system for districts and schools.

Such changes require signoff by the U.S. Department of Education as part of Colorado’s overall ESEA Flexibility Request, a state-federal agreement that allows some state practices to vary from those required by the Elementary and Secondary Education Act as long as Colorado meets the overall goals of that federal law.

The state’s current flexibility agreement is expiring, and state and federal officials are negotiating a new one. Theoretically, federal rejection of Colorado proposals could threaten the state’s overall flexibility plan or could require the legislature to go back to the drawing board on testing in 2016.

“The department is going to be open to listening,” said Michelle Exstrom, a program director at the National Conference of State Legislatures.

But, “It’s hard to know what the department will do,” cautions Kirsten Carr, director of accountability at the Council of Chief State School Officers, a group that represents the nation’s education commissioners.

Since the new state testing law (House Bill 15-1323) passed in May, officials at the Colorado Department of Education have been discussing those changes with their Washington counterparts, trying to get a sense of what will pass muster.

The department will prepare amendment language based on those discussions and present those amendments to the State Board of Education for approval in August, according to Alyssa Pearson, CDE interim associate commissioner of accountability, performance and support.

In an effort to handicap Colorado’s chances, Chalkbeat interviewed several education policy experts around the nation. While cautioning that it’s hard to predict what the federal department will decide, all believe the issues involved are open to negotiation. Here’s what they had to say on the key changes in state testing law.

🔗High school testing

What’s proposed – Federal law requires language arts and math tests be given once in high school, which has been interpreted as during 10th, 11th or 12th grade. Colorado long has given the tests in ninth grade, which isn’t required, and in 10th grade as well. The new law proposes to continue 9th grade testing but to switch to a college and career readiness test like the Accuplacer in 10th grade.

“I don’t think the year of the test would be a sticking point,” said Phillip Lovell, vice president for policy and advocacy at the Alliance for Excellent Education, a Washington-based advocacy group that focuses on high school improvement.

But, Lovell said, Colorado will need to demonstrate that new 10th grade tests are properly aligned with state academic standards.

Chad Aldeman, associate partner at Bellwether Education Partners, agrees that the U.S. DOE will want to know the details of how new tests align with standards and college admissions.

He said “ninth grade tests are potentially a problem.” Bellwether is a Massachusetts-based consulting group.

“I think there are policy arguments Colorado could make here,” said Lee Posey, education committee director in NCSL’s Washington office. “Those are the kind of things the [federal] department might look at.”

Exstrom, who works in NCSL’s Denver headquarters, said, “I think that will be a point where they [state officials] are really going to be negotiating with the Department of Education. She added that “states [like Colorado] that are showing good-faith efforts” on school improvement might be able to make the case for such a testing change.

While optimistic about Colorado’s chances, Lovell did say, “From a policy point of view I find it interesting that the tests would given at the beginning of high school,” when students have just begun their academic careers at that level.

🔗The accountability timeout

What’s proposed – The coming school year will serve as a time-out for accreditation ratings. No new ratings will be announced this autumn, meaning schools and districts will retain the ratings they were assigned at the end of 2014. The rating system won’t full kick back into operation until the 2017-18 school year.

The experts don’t expect Colorado will have a problem on this issue, given previous statements by Education Secretary Arne Duncan about the need for a time out after states switch tests, which Colorado did last spring.

“The department has shown openness to that in the past,” Exstrom said. “A number of states are in similar situations,” said Lovell. “It’s a logical request.”

Carr and Aldeman agreed, although Aldeman said the department will want assurances that improvement efforts at the lowest-performing schools will continue during the time-out year.

🔗Other issues

Another element of the testing law allows pilot programs through which districts and groups of districts can try out new ways of testing students and holding schools accountable. The goal is that two programs will be chosen from the first group of pilots, and that one of those might eventually become the new state testing and accountability system. This plan will require multiple levels of federal approval.

A limited pilot program is underway in New Hampshire, and “A number of states have been looking” to that state, Exstrom said.

If a program is closely modeled on New Hampshire, and if alternative tests measure the same skills as statewide assessments, “The U.S. Department of Education would be open to that,” she said.

“This certainly will be an important part of negotiations,” said Lovell. “Given the department’s work with New Hampshire, I think there’s a pretty decent chance that Colorado and the department can work something out so that the pilot could be part of the plan.”

Aldeman noted that the department set “a pretty high bar” for New Hampshire and that “Colorado would have to meet a similarly high bar.”

Colorado also is proposing changes in testing of some English language learners and not using English language arts scores of ELL students who have been in the U.S. for fewer than two years as part of school and district accountability calculations.

“This is an area a number of states are exploring,” Exstrom said. “I don’t have a good sense of what their reaction will be,” said added, referring to federal officials.

(See this Chalkbeat story to learn more about these issues and about additional parts of the testing law that don’t require federal sign-off.)

🔗Will Colorado get points for good behavior?

Some of the experts cited Colorado’s record on education reform as a point in its favor.

“Colorado has been a leader,” said Carr, adding that the department may lean toward proposals from states that are being “thoughtful” about their accountability systems.

“I think there’s room aroind the edges for a state that is really trying to make a good faith effort,” said Exstrom. “The department is going to open to listening.”

🔗Congress may change the rules

The flexibility agreements held by Colorado and many other states are commonly called “waivers” because they are DOE-approved exemptions from some provisions of the ESEA.

The department started issuing waivers in 2011 because of congressional failure to update ESEA. But the issue is back on the front burner in Congress, where both the House and Senate are debating bills this week.

Increased flexibility for states is part of the measures before Congress, so the landscape could change significantly if lawmakers come to agreement.

“A lot of these questions could be answered by passage of the ESEA reauthorization,” Lovell said. “There’s a decent likelihood of that happening,” he added. “It may not be this calendar year, but there’s a decent possibility of it happening early into next year. … It has the best chance of passing that it has in a really long time.”