A divided State Board of Education has fired the first official shot in Colorado’s 2015 testing wars, but it remains to be seen if that action is a live round or a dud.

The board Thursday voted 4-3 to allow school districts to seek waivers from administering the first part of PARCC tests in language arts and math, scheduled to be given in March.

Senior Assistant Attorney General Tony Dyl told the board it doesn’t have the authority to do that, and Education Commissioner Robert Hammond said he wouldn’t grant such waivers unless told he could do so by the attorney general’s office.

“Should this motion pass it probably wouldn’t have legal effect,” Dyl told the board before the vote. “This is a part of the law you do not have the power to waive.”

Hammond told the board, “If you pass this motion I will not implement it until I get guidance from the attorney general’s office. … It could have widespread implications on schools.”

The motion was made by Steve Durham, a new Republican board member from Colorado Springs, and seconded by Deb Scheffel, a Republican member from Douglas County, Also voting for it were new Democratic member Valentina Flores from Denver and Republican Pam Mazanec from Douglas County.

“If the commissioner elects not to grant those [waivers] that’s up to him,” Durham said. “I believe a much fuller legal analysis is required, and I fully intend to meet with the attorney general.” Interviewed after the meeting, Durham said, “I hope someone makes a waiver request and moves it forward. … Should the commissioner decide he does not want to grant a waiver, then someone who applies for a waiver and is not granted one can litigate the question.”

Voting no were chair Marcia Neal, a Republican from Grand Junction, and Democrats Angelika Schroeder of Boulder and Jane Goff of Arvada.

“If we pass this motion it will cause chaos in the state and in the districts,” Neal said. “This is a terrible motion. We need to defeat it and then we need to work to get this state out of PARCC.”

Neal also said, “I would get out of PARCC if I could. We don’t have that ability with the legislation that’s in place.”

The issue wasn’t on the board’s agenda and was brought up suddenly by Durham, a veteran lobbyist and former Republican legislator who recently was appointed to fill a board vacancy.

Durham said after the meeting that he tried to get the issue on the board’s agenda but wasn’t able to. Referring to his legislative skills, Durham said he tried to “shoehorn” the motion into an appropriate part of the meeting. The board was being briefed on school finance when Durham asked about the cost of testing and then brought up the motion.

The language arts and match PARCC tests are scheduled to be given in two parts, one in March and another at the end of the school year.

Durham argued that districts should be able to give only the end-of-year tests if they choose.

Department of Education staff told the board the two parts can’t be separated. “These are are not two tests. There are two components to the test,” said Department of Education testing chief Joyce Zurkowski, who hustled from her office to the boardroom after the discussion started.

Durham’s comment was “Somehow we walked ourselves … into a two-part test that we’re really not obligated to have.”

Testing is expected to be hot issue during the new legislative session, but many lawmakers are awaiting the report of the advisory Standards and Assessments Task Force, which is due by Jan. 31. (The divided group meets again Friday.)

Durham sounded dismissive of the group, saying, “I suspect the results are going to be tainted by the conflicts of interest or perceived conflicts of interest of those serving.”

Durham said he’d been working on the motion for a few days and that it had been suggested to him by someone whom he wouldn’t identify.

Near the end of the meeting, Durham raised the issue of the Common Core State Standards, indicating he’d like Colorado to get out of them and saying, “One of the things I’d like to see from the commissioner is a series of recommendations that would end in this result.”

“To get out of Common Core does take legislative action,” Hammond said.

Other board members balked a bit at Durham’s suggestion, and everyone seemed to agree to take the issue up as a formal agenda item in February.

Last spring the board (with a slightly different membership) voted 4-3 for a resolution asking the legislature to withdraw Colorado from the PARCC testing group (see this story). Lawmakers took no action.

In November the board issued a unanimous letter suggesting that the amount of state testing be reduced (see story).

Reaction measured on board action

The board’s decision, first reported by Chalkbeat Colorado, spread quickly among lobbyists and lawmakers at the Capitol.

Senate Education Committee Chair Owen Hill said, “The people elect the State board and give it authority over the commissioner. I’m confident the commissioner will do everything in his legal power to do the wishes of his boss, the State Board.”

Hill, a Colorado Springs Republican, said the board vote “obviously will shape this discussion” but that he remains committed to holding off on consideration of testing bills until after the task force makes its report. “We’re going to honor that process.”

Hill also said he’s invited Hammond to meet with Senate Education to discuss the issue of testing waivers.

Sen. Andy Kerr, D-Lakewood, would only say, “I really hope the State Board understands its authority in making or not making policy.” Kerr is the senior Democrat on Senate Education Committee.

Jane Urschel, top lobbyist for the Colorado Association of School Boards, sat in on part of the board’s discussion. “This is not really a surprise, but will this action truncate the legislative process, where we will have public deliberation on this important and emotional issue?” she wondered.