Testing Perversion: Parent Threatened and Parental Rights Violated in NY

This story does not require much introduction. The correspondence between the parent and the school officials speaks volumes and confirms the depth of the high stakes testing perversion.

4/21 UPDATE: The threat to call CPS stems from unexcused absence applied to refusing to take the test. Keeping the child home would then be considered truancy and on that basis a report to CPS. Neither State nor Federal law require parents to submit their children to testing. There is considerable U.S. Supreme Court decisions on parental rights to support a parent request to opt out. The parent listed them in her correspondence. There is no "compelling" reason for the State to impose this requirement. There is a developing legal complaint on behalf of U.S. parents who have been threatened, intimidated, or punished in anyway over opting out.

Schools and districts handle these situations in a variety of ways - some in the extreme as this one, and others simple respect it. There is no code, they cannot report, the school takes the hit on accountability, and everyone moves along. Reporting has nothing to do with the child or parent rights.

UPDATE: Did the school officials understand the regulations? See my added comment on NY Administrative Rules.

The letter from the parent on her reasons for choosing to opt out her student from standardized testing: (highlighting in red is added for emphasis by Grumpy Educators)


From: [parent name removed]
Sent: Sunday, April 15, 2012 10:38 AM
To: Thomas M. Capone; Donna Gales
Subject: opt out.
Please be advised that my son [name removed] will not be taking the New York State assessments on April 17-19 and April 25-27. After watching [name removed] struggle and listening to his concerns, we have decided to opt out of this unnecessary testing.I am requesting that [name removed] be given an alternative real learning opportunity option.
[parent name removed]

The response from school officials:

Dear Ms. [name removed],
This letter is in response to your April 15, 2012 email and follows up today’s telephone conversation. In your email, you requested that the Oceanside Union Free School District (“District”) not administer the New York State English Language Arts (“ELA”) and Math Assessments to your son, [name removed]. During today’s telephone conversation, you reiterated this request. Upon my informing you that the State Assessments are not optional, you indicated that you planned to either: (1) keep [name removed] at home for the period during which the State Assessments were administered, (2) keep [name removed] at home for the portion of each day during which the State Assessments were administered, or (3) send [name removed] to school with instructions not to take the State Assessments.I remind you that, pursuant to the Regulations of the Commissioner of Education, all public school students in grades three through six who have not been deemed eligible by the CSE to take the Alternate Assessment, and are not parentally placed on home instruction, must take the ELA and mathematics elementary assessments. See 8 N.Y.C.R.R. §100.3(b)(2). As you know, [name removed]does not qualify for the Alternate Assessment. The Regulations contain no
“opt-out” provision, which would authorize a parent to have his or her child not
participate in the State Assessment. It is the District’s obligation to
determine all eligible students’ proficiency levels through the administration
of the State Assessments. As such, taking the State Assessments is mandatory
for [name removed].
If without medical justification, [name removed] is absent from school on any dayduring the Assessment period, the District will deem this absence as unexcused.Further, if you keep [name removed] home from school during the Assessment period,without medical verification, it is within the District’s discretion to deem these absences as indicia of educational neglect, which would leave the District little choice but to contact Child Protective Services (“CPS”). Pursuant to the New York State Education Department’s 2012 School Administrator’s Manual, a student will receive a final score of “999″ and will be counted as “not tested”if: (1) he is absent from the entire test; (2) he refuses the entire test; (3)he is absent for any session; or (4) he is present for all sessions, but does not respond to even one question on the test. Accordingly, if Joseph engages in any one of these activities, he will receive a final score of 999, he will be counted as not tested, he may receive an unexcused absence, and CPS may have to be called. If [name removed] does not participate in the State Assessments, the District will use other formal or informal assessments to determine his proficiency level. If [name removed] participates in the State Assessments, he will of course be provided with his IEP-mandated accommodations.I hope the above has clarified any outstanding questions you have about [name removed] obligation to participate in the State-mandated Assessments and your obligation to make him available for testing. We look forward to having [name removed] participate in the State Assessments.

The parent responds:

Dear Mr. C:
I have referred your letter to my attorney. However, I have been advised and would like to take this opportunity to share with you the fact that parental rights are broadly protected by Supreme Court decisions (Meyer and Pierce), especially in the area of education. The Supreme Court has repeatedly held that parents posses the “fundamental right” to “direct the upbringing and education of their children.” Furthermore, the Court declared that “the child is not the mere creature of the State: those who nurture him and direct his destiny have the right coupled with the high duty to recognize and prepare him for additional obligations.” (Pierce v. Society of Sisters, 268 U.S. 510, 534-35) The Supreme Court criticized a state legislature for trying to interfere “with the power of parents to control the education of their own.” (Meyer v. Nebraska, 262 U.S. 390, 402.) In Meyer, the Supreme Court held that the right of parents to raise their children free from unreasonable state interferences is one of the unwritten “liberties” protected by the Due Process Clause of the Fourteenth Amendment. (262 U.S. 399). In recognition of both the right and responsibility of parents to control their children’s education, the Court has stated, “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include Prince v. Massachusetts, 321 U.S. 158)
Since state law is superceded by Federal Law, parents are given the final say in matters of education and I shall have the final say in my son’s education.

And then she must write again when she learns her child was forced to test, ignoring the parent request and out of compliance with existing Individual Educational Plan documentation:

[name removed] advises me that he was forced to take the assessment today against his wishes and mine in a separate location, thereby resulting in emotional and physical stress. He is now complaining of a headache and “knots in his back”.
Not only have you violated my parental rights, but now you are failing to implement my son’s IEP, which as you know is a legal document.
I specifically direct you to pages 11 and 12 of [name removed] IEP (the testing accomodations section) wherein it states he is to begin exam in mainstream setting with significant proctor attention to reduce test anxiety.
While I do not feel the need to threaten you, I must advise you that should this situation occur again, I will be forced to contact the authorities.
Parent Signature (removed by Grumpy Educators)