Wednesday, April 18, 2012

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)


  1. As a teacher, mom, grandparent and American I am horrified. This testing is pure CRAP......feel free to quote me. Mad in Miami

  2. Wonder if Oceanside's policy is to send a similar letter home when students miss school to go to Disney World.
    Dr. Brown shame on you

    1. I am the mother of this child and for the record Dr. Brown has never contacted me. In fact, he refuses to speak with me or have a meeting to discuss his employee's bad behavior. I agree with you shame on you Dr. Brown.

    2. Please know that your story is getting to parents, grandparents, community members, and taxpayers all over the nation. You have much support. Thank you for your courage.

  3. Wonder if Oceanside sends the same CPS threat to parents when they pull their kids out of school to go to Disney World?

  4. For parents across the nation who face similar threats, please consider the following:
    The ACLU is interested in supporting any parents whose children received a penalty/threats for opting out of testing.
    If you want to participate in the complaint please send your story, permission to join in on the ACLU complaint, your return address, and a signature on a hard copy.
    Submit to: Nina Bishop, 3065 Windward Way, Colorado Springs, CO 80917
    Questions: 719-233-1508

    Let's put a stop to this abuse where it surfaces, such as NY, Indiana, Texas, and South Carolina.

  5. I am a little confused, as I teach students on Home Instruction for various medical and behavioral reasons..who come from Public and Private schools..with and without IEP's..and one such student with an IEP who attended a private religious school..has never taken a state test although this student is a standardized assessment student...and when I had to ask the parent to get a letter from her doctor to say that this student would not/could not take the State tests this year while in mour Home Instruction program.., she complied..but had never heard of such a thing. Their child had just never been forced to take the State tests because the school clearly knew it would mean nothing and just set this child off..How do the private schools get away with not testing? Also, all this mom needed was a letter from a doctor that the tests would cause too much anxiety for the student..and case closed...I wonder if she knew that? If she did, then I feel bad for the child.

    1. Undortunately, medical letters are being ignored. Grumpy Educators reported on two events in South Carolina last year and a Kentucky case that was cited in Congressional hearings. There is no code the districts can apply for medical reasons. The manner in which school districts handle these situations vary from state to state

  6. There seems to be national epidemic of testing perversions. I wonder how the school personnel would feel if they were forced to sit in soiled clothes and denied access to the bathroom? Have the lines blurred that much on abuse? How long will we tolerate this nationally?

  7. But Oceanside said "without a medical letter" so it seems that the door was opened for the parent. Do we know the reason this parent was so against the testing? If it truly was because of the child, then she should have taken that route. I am by no means saying that these tests are necessary for all the kids.....but I wonder how else do we hold teachers accountable..and that is the only purpose I see..the state sends the money..they want results and accountability

    1. A medical letter allows an excuse from the first round of testing and then the student is expected to do make up testing. There is nothing in the State rules that gives a medical "excuse" and there's nothing precisely in the rules that excludes it.

      This was precisely the same for the parents I covered in South Carolina last year. One had a medical letter, it was ignored, reinterpreted, and then discarded as insufficient. The problem is there is NO code for a medical situation UNLESS the student is physically incapable of reaching the school. Both S.C. parents protested all the way to the US DOE Office of Civil Rights.

      The NY State rules are published here for parents:

      An anecdotal case was just reported that a child had strep during the first round of testing. The parent does not want her to take the testing at all. She was told that if the child does not take the test, she will be "withdrawn" from the school. In fact, her access to the online curriculum was shut off because of the parent's request. Kicked out. Charters have their own rules, comply or go.

  8. Grumpy Educators has NOT validated this information. Any parent in New York should do so; however, on a very lively Long Island thread, a commenter added relevant information from Appendix M of the NY Administrator's Manual that calls into question the assertions made by the school officials. I would sure like to get a little feedback here on this. There is a code for a student who does not test. That's all the school had to do is fill in the code. Here is the information that was published:

    Appendix M: Rules to Determine Whether a Student Receives a Valid Score
    The following rules will determine whether the student receives a valid score:
    • Students who were present for an administration, including make-ups, of all sessions of the test and who responded to at least one question on the test will receive valid scores and be counted as tested in calculating a school’s participation rate.
    • Students will be considered to have been present for all sessions unless they are marked as absent for the entire test or for one or more sessions.
    • Students with a final score of “999” will be counted as not tested in calculating a school’s participation rate. A final score will be “999” only if one of the following occurred:
    a. The student was absent for the entire test,
    b. The student refused the entire test,
    c. The student was absent for any session,
    d. The student was present for all sessions but did not respond to even one question on the test,
    e. The student’s results were invalidated due to an administrative error, or
    f. The student’s SIRS record shows him or her as enrolled for the entire test administration period but includes no appropriate test record.
    • In the case where a student leaves the test administration in the middle of a session and is not able to make up that part of the test (see “Illness” on page 12), school officials must decide whether to mark the student as absent for that session.
    a. If any circle denoting absent is darkened, the student will receive a final score of “999.”
    b. If the circle denoting absent is not darkened, the student will receive a score based on the questions completed. Any missing responses will receive a condition code of “A,” indicating no response, and the response will receive a score of zero. The final raw score will be the sum of the number of multiple-choice questions answered correctly and of the scores assigned to constructed-response questions.

  9. Interesting and lively discussion going on here: