The Common Core War, over the last few months, has been fought on a largely new front: whether students can be forced to take state tests – in the vast majority of cases, Core-aligned tests – or whether parents and students can refuse. It is perhaps an even more fundamental question than whether the federal government may constitutionally coerce standardization and testing generally, and with Common Core, specific standards and tests. The testing battle is to a large extent about whether a child, in seeming opposition to the seminal Supreme Court ruling in Pierce v. Society of Sisters, is indeed a “mere creature of the State.”

The opt-out numbers are hard to pin down, though there is little question that some districts have seen very large percentages while others – probably the large majority nationwide – have seen few. It is also probably reasonable to conclude that the leader of the opt-out crusade has been New York State, where animosity toward the Core has been high since the state first rushed implementation and state officials, in an effort to calm things, actually inflamed them with a condescending approach to public engagement that launched weeks of recriminations. Last year the state saw an estimated 60,000 students opt out, which leapt to nearly 200,000 this year.

The root question, of course, is should students and parents be able to opt out without fear of punishment? And since punishment would be coming from a government institution – yes, that is what a public school is – that means without fear of punishment by the state. If children are, in part, creatures of the state – and Pierce did not say there is no legitimate state role in education – than punishment is legitimate. If, however, the public schools exist to serve fully free citizens, then punishment cannot be meted out for refusing the test; it is up to parents to freely decide whether or not their children are subjected to the tests.

So far the answer to whether students may opt out without fear of punishment has been muddled. In part this is for a good reason: federalism allows states – and within states, local control allows districts – to decide for themselves what they want their policies to be. Unfortunately, another part of the confusion lies with Washington, which has a law on the books – No Child Left Behind – that says 95 percent of students in a district must take state tests. The Obama administration, however, has issued waivers out of parts of NCLB to numerous states with various provisions, and it is unclear to whom the 95 percent requirement actually applies. Exacerbating this – and illustrating why a few clear laws beat rule by waiver, regulation, and cabinet secretaries – is that even if the 95 percent rule should technically apply, U.S. Secretary of Education Arne Duncan has mainly invoked the specter of federal force rather than stating clearly what he will do to under-95-percenters. Of course, there are likely political calculations behind this: he wants to push states and districts to force testing while being able to technically say, “Washington didn’t require anything.”

To a large extent, the opt-out conflict is no different than the seemingly endless battles over countless matters into which public schooling forces Americans. As we at CEF never get tired of saying – and politicians never get tired of ignoring – all children, families, and communities are different. They have different needs, desires, abilities, values, educational philosophies, and on and on, and no single system can possibly treat them all equally.  That is why educational freedom – connecting educational funding and decisions to individual children – is the essential reform. That said, if parents are allowed to opt their children out of government-dictated tests it would be a welcome move in the right direction. It would loosen the state’s grip on the children, at least a little bit.