Rare Delaware veto attempt fails

Delaware lawmakers failed Thursday to override Governor Jack Markell’s veto of the so-called “opt out” bill.

Representative John Kowalko, D-Newark, attempted to suspend regular rules in the Delaware House of Representative so the chamber could then vote to override. His colleagues declined to suspend rules by a vote of 13 to 26.

The bill–known officially as House Bill 50–now awaits action from house speaker Peter Schwartzkopf, D-Rehoboth, who could reassign it to committee, bring it before the floor of the entire house, or simply allow the bill to languish in legislative purgatory.

The bill would allow parents to pull their children out of the Smarter Balance state assessment, a tougher test introduced last year. Some argued the test didn’t properly measure student achievement and was used to punish teachers and schools. The further argued parents should have the right to opt out if they felt Smarter Balanced inappropriate.

Opponents of the bill, including Markell, said the state needs Smarter Balanced to gauge student progress. They also worried schools would manipulate opt out in order to omit poor-performing students from the testing pool.

Last June, the Delaware House voted 31-5 in favor of the bill, which affirms a parent’s right to remove his or her child from the Smarter Balanced test. But on Thursday, many of those same supporters voted against a suspension of rules. Among them was Representative Joseph Miro, R-Pike Creek Valley, who said “it’s not in my blood” to call for a suspension of rules . He added that many of his Republican colleagues felt the measure wasn’t weighty enough to merit a suspension.

Had the body voted to suspend rules, it then would have had to override the veto by a three-fifths majority in a separate vote. The State Senate would then have had to follow with its own three-fifth vote for the veto effort to pass.

Attempts to override a gubernatorial veto are rare in Delaware. A veto has not been successfully overridden since 1977.

Thursday’s vote doesn’t mean House Bill 50 is officially dead, but it does mean the proposal is on life support. The bill can either be reassigned to the education committee or brought before the entire house for a veto override vote. But that decision is in the hands of Schwartzkopf, the house speaker. Multiple legislators indicated Thursday the speaker isn’t likely take action on the bill.

Schwartzkopf declined comment when approached by NewsWorks/WHYY. Schwartzkopf did vote in favor of the opt out bill last June. On Thursday, he voted against the motion to suspend rules.

Kowalko could ask for another suspension of rules, but said Thursday he was unlikely to try the suspension route again.

“When I hit my head against the wall, I don’t say, ‘Hey that felt good’ and do it again,” Kowalko said.

If no action is taken, House Bill 50 will officially expire at the end of the legislative session in June.

It’s possible, however, the House will take up the opt out issue in another form. Republicans plan to introduce a measure that would instruct the state’s Secretary of Education to send a form letter home to students in every district about standardized testing. The letter would inform parents that there are no penalties for opting a child out of a standardized test.

Last year, roughly a tenth of the state’s test-eligible students didn’t take the Smarter Balanced exam. 

About two dozen parents and teachers held signs outside Legislative Hall in Dover Thursday to show support for House Bill 50.

Sen. David Lawson, R-Marydel, and Rep. John Kowalko, D-Newark, hosted the demonstration.

Members of the demonstration say they believe parents know what’s best for their children—not the state.

“It’s about parents’ rights,” Lawson said. “I don’t understand the big flap over it. It’s what’s right.”

In June, Delaware passed Lawson and Kowalko’s House Bill 50 that would allow the parent or guardian of a child to opt out of the state’s annual assessment, which currently is the Smarter Balanced Assessment System.

The current test is created out of Common Core, a curriculum designed to offer children problem based learning.

There have been several testing systems in Delaware schools over the years. The Smarter Balanced Assessment System was implemented last year for the first time in some schools, and tests children on those skills learned in Common Core.

In July, Gov. Markell vetoed the legislation, which would allow for any student to opt out of any state or district assessment, and signed Senate Joint Resolution 2, which aims to eliminate unnecessary, ineffective or redundant tests required by the state, districts and individual schools.

The Governor has said the annual state assessment provides information for teachers and school leaders to determine areas in which students are excelling or need additional help. He has said it also ensures the best use of the more than $1 billion in state funds directed to the education system.

Jill Shilling pulled her children out of the Appoquinimink School District after she requested her children not take the test and the school district wrote an official letter declining the request.

“Parents should be able to participate in their children’s education without fearing retribution,” she said.

Shilling said she would like a school system that allows for individualism, not a rating system that dictates education. She said she felt the school system has focused more on practicing for tests than offering a diverse education.

“I feel time was being wasted in the classroom,” Shilling said.

Teacher Natalie Ganc of the Cesar Rodney School District said the tests take hours, and practice in preparation takes a week. She said she would like a teaching system that allows for creative teaching that caters individual needs, but fears she could get fired if she doesn’t stick to the system.

“More teaching—that’s what we need,” she said. “If my performance is based on test schools I can’t afford to lose my job.”

Kowalko said he believes Delawareans have the right to stand up for public education in the state. He said he’s pleading for legislators to vote in favor of the override of a veto he believes is “unjustified.”

“Children have a right not be fearful. Children have a right not be embarrassed,” he said. “This bill ensures them those rights.”