The Utah Board of Education voted Thursday to request a special exception to federal laws that require public-school students to participate in year-end testing.



But some board members argued that Utah should intentionally reject those federal rules, which could put as much as $123 million in funding for low-income and special education students in the state at risk.



“If these services are as important as we feel they are, then we need to be petitioning our Legislature to fund them,” school board vice-chairwoman Alisa Ellis said, “instead of seeking approval from a federal government that has no constitutional authority to be directing education in our state.”



States are required to submit plans to the U.S. Department of Education detailing how they intend to comply with and put in place the federal Every Student Succeeds Act, or ESSA, which passed in 2015. Among that law’s provisions is the annual testing of students in grades three through eight and at least one high school testing cycle in grade 11.



Utah law has expanded on those federal testing requirements, relying on annual testing as a basis for several accountability programs, such as school grading and funding to help lagging schools to improve.



But Utah students are not required to participate in testing. Parents can elect to opt their students out, and have done so in increasing numbers as the state’s current evaluation system, SAGE, has fallen out of favor with educators, parents and policymakers.



Statewide, 6 percent of students opt out of testing, according to the most recent Utah Board of Education Data — putting the state below a minimum participation rate of 95 percent required by ESSA.



School board staff said the state has three options for its ESSA plan: count opt-out students as failing in federal reports; request a waiver from the 95 percent requirement; or inform the U.S. Department of Education that Utah has no intention of complying with federal law.



“We are in control of our education system and we are going to follow our state laws,” Ellis said, “not federal laws.”



Assistant state superintendent Darin Nielsen said a non-compliant approach would likely result in the loss of $1 million in federal education funding. That money is given to the Utah Board of Education for the administrative costs of overseeing federal programs like Title 1, which provides supplemental funding to schools with high levels of poverty.



But it’s also possible that the U.S. Department of Education could withhold the $90 million awarded to Utah’s Title 1 schools, Nielsen said, or even the $123 million awarded to the state for all federal title programs, including Title 1 and special education services.



After a motion Thursday to reject the ESSA requirements outright failed in a 5-8 vote, the board voted unanimously to seek a waiver from the 95 percent participation requirement.



Board members who supported a rejection of the ESSA requirements, including Michelle Boulter and Lisa Cummins, argued that it’s unlikely the U.S. Department of Education would take the unprecedented step of withholding all of Utah’s federal school funding.



Boulter said the school board would be standing up for state sovereignty, and that Utah lawmakers could act to make up for any loss of revenue from Washington, D.C.



“I think that they will,” Boulter said, “since they continually say they stand on local control.”



Board member Kathleen Riebe said Utah is not in a position to absorb a loss of federal revenue, as the state’s per-student spending levels are currently lowest in the nation. More than 90 percent of students participate in testing, she said, and it is typically higher-performing children who are opted out.



“I find this a little disconcerting that our most successful students are holding our least successful students almost hostage, for lack of a better word,” Riebe said.



Riebe also pushed back on the characterization that Utah has lost control of its schools by accepting federal dollars.



“We create our system here,” she said.



Board member Carol Lear said the state does not need to take an aggressive stance that puts funding at risk before pursuing other options.