Update: This bill was amended to remove the penalties and received unanimous support from the Senate Education Committee on Feb. 14.

It’s already illegal in Colorado for schools to penalize students who don’t take state assessments. Now a bill before the legislature would make it illegal to reward students who take the tests and would penalize schools who offer such incentives.

“The school can’t say you can’t play on the team or go on the field trip,” said Senate Majority Leader Chris Holbert, who opted to keep his own sons from taking state assessments. “This bill addresses something that’s come up recently: If you take the assessment, you get to go to the party or go on the field trip or maybe even get to play on the sports team. It’s the same message, but the other way around.”

That’s just as wrong, said Holbert, a Republican from Parker who sponsored the bill with state Sen. Andy Kerr, a Lakewood Democrat.

Kerr is a teacher who serves on his school’s accountability committee, and he said another teacher raised this idea – supposedly used at a different school – as they discussed how to get more students to take the tests.

“We know that we can’t do negative consequences, but at this school, every student who takes the test gets a raffle ticket and the winner of the raffle gets a widescreen TV,” Kerr said. “This was given as an example of a positive reinforcement to take the test.”

The widescreen TV in this example was donated; no taxpayer dollars went to reward test-taking and the luck of the draw.

Under the bill, schools could still have parties after testing is over, but they couldn’t exclude students who didn’t take the tests.

Colorado has been at the center of the opt-out movement nationally, and its partisans include people on the left and the right – students in conservative Douglas County as well as liberal Boulder County. How Colorado handles accountability for schools with high opt-out rates has been a point of contention with the federal government.

The State Board of Education has a policy that the state won’t lower the quality rating of schools who miss the 95 percent participation mark, while the federal Department of Education wants those students counted as “not proficient.” In a compromise, Colorado agreed to keep two lists of schools, one that complies with state law and one that complies with federal law, but Colorado is still waiting for approval from the federal government of its Every Student Succeeds Act plan.

Matt Cook, director of public policy and advocacy for the Colorado Association of School Boards, said his organization doesn’t have a position on the bill, but he does have a few questions: “Who are the bad actors?” and “Does this need to be a law?”

“I don’t want to pick on anybody in particular,” Holbert said, declining to name any schools or districts. He characterized the problem as “more than one, but not widespread.”

The Colorado PTA, the Colorado Education Association, the Colorado Association of School Executives, and the State Board of Education all support the idea behind the bill.

“We certainly believe students who have the family discussion to not take the test should not have any inappropriate hook dangled before them,” Nate Golich, director of government affairs for the teachers union, told the Senate Education Committee. “They should not feel stigmatized or ostracized because there’s a pizza party or a granola bar or orange slices.”

But there is a point of dispute: how to enforce such a law.

The original version of the bill calls for the Colorado Department of Education to make a note in the performance report of any schools found in violation, and to “impose a significant penalty” on the accreditation rating of any school that violates the law three or more times in a year.

Dana Smith, a spokeswoman for the Department of Education, said that provision would be difficult to enforce. The department collects a lot of data, but it doesn’t know which schools hold pizza parties for kids who take state assessments. Doing enforcement on a complaint basis could create an unfair situation in that schools whose parents complain are punished while schools with the same practices whose parents don’t complain go unpunished.

Lisa Escárcega, executive director of the Colorado Association of School Executives, called docking a school’s rating over this issue “using the jaws of life to go after a minnow.”

“We would not want a school to lose an entire accreditation point if three people call CDE,” Golich said.

The Senate Education Committee heard testimony about the bill Thursday but postponed a vote.

Holbert and Kerr said they’re open to removing the penalty, but that raises the question of what the law even means.

“What happens if we pass a bill that has no particular penalty or enforcement mechanism and parents are frustrated because they’re seeing these consequences?” asked state Sen. Tim Neville, a Littleton Republican.