Thursday, June 5, 2008


June 5, 2008
Honorable Colorado House of Representatives
66th General Assembly
Second Regular Session
State Capitol
Denver, CO 80203
Ladies and Gentlemen,
I am filing with the Secretary of State House Bill 08-1186, "Concerning the Exception of Certain Students' Scores from Calculations of a School's Academic Performance." I vetoed this bill as of 10:23 a.m., and this letter sets forth my reasons for doing so.
House Bill 08-1186 would establish new provisions in state law that prohibit school districts from penalizing students who are absent during the administration of a compulsory state assessment offered in grades 3 - 10.  I believe this bill could not only unintentionally encourage non-compliance with federal education laws—which in an extreme case could have significant financial consequences—but also has the potential to confound districts' obligations to enforce state and local compulsory attendance laws as described in Title 22 Article 33 Colorado Revised Statutes and established pursuant to local school board rules.
With respect to maintaining compliance with federal laws, Sec. 1111(b)(2)(I)(ii) of Public Law 107-110, the No Child Left Behind Act of 2001, is unambiguous concerning compulsory participation in state assessment programs: "not less than 95 percent…of students…who are enrolled in the school are required to take the assessments."  While Colorado's participation rate in the Colorado Student Assessment Program (CSAP) created in 22-7-409 Colorado Revised Statutes has historically remained well above 95 percent, I believe that it would be imprudent for the state to legislatively dissuade participation in the state's assessment program, which is a primary component for qualifying for critically important federal grants.
With respect to state compulsory attendance laws, state law (22-7-409 Colorado Revised Statutes) requires all students in grades 3- 10 to take assessments in reading, writing, and math; students in grades 5, 8 and 10 also take assessments in science.  According to the Colorado Department of Education's Procedures Manual for Student Assessments, all CSAP assessments, except the 3rd grade reading assessment, must be administered within a five-week window; the 2008 window was from March 10 to April 11, 2008.  Moreover, given that each CSAP content area—i.e., reading, writing, mathematics, and science—is assessed over multiple sessions, the administration of CSAPs can take several weeks to complete.  Accordingly, in light of the fact that 22-33-104(a)(I) Colorado Revised Statutes requires all secondary level students to attend public school for only one thousand fifty-six hours, or about six and a half hours per day for 160 days, minimally, and elementary level students are required to attend nine hundred hours, or about five and a half hours per day, minimally, I believe that it would be irresponsible for the state to remove some, even narrow, enforcement authorities from local school districts concerning the administration of an assessment that can take weeks to complete.
Finally, House Bill 1186 is silent as to whether a parent must affirmatively withdraw his or her child or children from school for purposes of avoiding the CSAP or whether all absences resulting from this behavior must be considered "unexcused" pursuant to 22-33-104 C.R.S.  The same law permits districts to (a) "impose penalties for nonattendance due to unexcused absence" and (b) to "specify the maximum number of unexcused absences a child may incur before [districts take legal action]."  If HB 1186 were to become law, state statutes would be in conflict with one another; the resulting ambiguity could compromise district's abilities to interpret and enforce compulsory attendance laws.
Accordingly, I have vetoed this bill.
Bill Ritter, Jr.