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Decision No. 16,786

Appeal of JAMES A. VERRICO and SHIRLEY T. VERRICO, on behalf of their daughter MICHAELA, from action of the Board of Education of the Williamsville Central School District and Superintendent Scott G. Martzloff regarding state assessments.

Decision No. 16,786

(July 3, 2015)

Harris Beach PLLC, attorneys for respondents, Laura M. Purcell, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioners appeal the actions of the Board of Education of the Williamsville Central School District (“board”) and Superintendent Scott G. Martzloff (“superintendent”) (collectively “respondents”) regarding their administration of state assessments during the 2013-2014 school year.  The appeal must be dismissed.

During the 2013-2014 school year, petitioners’ daughter, Michaela, attended seventh grade in respondents’ district.  According to petitioners, beginning April 1, 2014, Michaela was scheduled to sit for the 2014 state assessments in English Language Arts (“ELA”) and math.  

According to respondents, the district is required by federal law and the Commissioner’s regulations to administer state assessments.  As such, the district does not provide alternate locations for students who refuse to complete their tests and does not permit students to bring extraneous materials into the testing rooms or otherwise complete their examinations before the expiration of the required minimum testing period. 

According to petitioners, by letter dated February 24, 2014, petitioners submitted a request to the principal of Michaela’s school that she be scored “as a ‘refusal’ for the upcoming NY State testing in ELA and math.”  In addition, petitioners requested that Michaela be allowed “to read silently during the administration of the tests.”   

According to petitioners, on March 6, 2014, petitioner Shirley T. Verrico and three other parents met with the superintendent “to request that the District abolish the ‘sit and stare’ policy and allow students refusing the test to be permitted to read silently during the tests.”  The parties have differing accounts of the meeting.  According to respondents, the superintendent reviewed the portions of guidance from the New York State Education Department (“Department”), which stated that there was no provision for “opting out” of state assessments and that the privilege of reading was discretionary.  He further advised the parents that “he would call them if NYSED released additional guidance that impacted the District’s determination to not allow reading or an alternative activity.”  Following the March 6 meeting, petitioners emailed the superintendent to once again request that the district change its policy to allow students, including their daughter, to read during state assessments.  The superintendent responded that he would “be in touch” with them by March 12, 2014, “at the latest.”  On March 14, 2014, in response to a follow-up email from petitioner James A. Verrico the superintendent responded that he had “no new information to share at this time.  Thank you for your continued patience.” 

On March 21, 2014, the principal of Michaela’s school called petitioner Shirley T. Verrico to “acknowledge receipt of her letter and to share with her the testing protocols that would be used.”  While the parties dispute the sum and substance of the conversation, petitioners allege that the principal advised that there would be “no change to the District’s ‘sit and stare’ policy.”  This appeal ensued.  Petitioners’ request for interim relief was denied on April 3, 2014.

Petitioners assert that respondents have implemented a “sit and stare” policy that is “unquestionably punitive, educationally unsound, arbitrary, unnecessary and not in the best interest of the child.”  They claim that the policy as it relates to Michaela would require her to “sit and stare” for 70 to 90 minutes and be deprived of mandatory classroom instruction in violation of Education Law §§3204, 3205, and/or 3210.  Additionally, they claim that respondents’ policy is “contrary to the ‘2014 Common Core ELA Tests Teacher’s Directions’ which permits students taking the NYSED standardized tests to read quietly after completion of their tests.”  Petitioners claim that respondents also apply the policy to students who refuse to take the test and are absent during test administration - by requiring them to “sit and stare” for the same amount of time upon their return to school.  Petitioners assert that the policy is a form of corporal punishment and constitutes harassment and bullying in violation of the Dignity for All Students Act (“DASA”).  Petitioners request that Michaela “be permitted to sit in the back of her classroom, or in an appropriate, separate location within her school building, and be permitted to read quietly” during the duration of the 2013-2014 state assessments. Petitioners further request that respondents be “prohibited from implementing and enforcing the ‘sit and stare’ policy during the NYSED standardized tests scheduled from April 1-3, 2014 and/or April 30 – May 2, 2014, and for all such future NYSED standardized tests.”  

Respondents assert that the appeal must be dismissed as moot, for lack of proper service, for failure to state a claim upon which relief may be granted, and based on petitioners’ failure to meet their burden of proof.  They contend, among other things, that petitioners lack authority to opt their children out of state testing.  Respondents maintain that they do not require that students “sit and stare” and that their practices are in accordance with State and federal law, regulations and guidance.  

I must first address the procedural issues.  Respondents assert that petitioners’ reply[1] contains new allegations, claims, and evidence, and realleges facts contained in the petition.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Respondents assert that the petition must be dismissed for lack of proper service.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).  According to their affidavit of service, petitioners served one copy of the petition upon the district clerk.  Petitioners name both the board and the superintendent as respondents in this appeal.  While the petition was properly served upon respondent board through the district clerk, petitioners failed to submit an affidavit of service indicating that the superintendent was personally served.  In their reply, petitioners acknowledge this defect in service and state that respondents are “united in interest” and that the superintendent waived his objection to service to appearing in the proceeding and has suffered no harm.  Petitioners contend that, in any event, they cured the defect by mailing a second copy to respondents’ attorneys together with their reply.   However, because petitioners failed to personally serve a copy of the petition on the superintendent in accordance with §275.8 of the Commissioner’s regulations, the appeal must be dismissed as to the superintendent for lack of proper service (see Appeal of McCarthy, 50 Ed Dept Rep, Decision No. 16,208).

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  The record reflects that petitioners’ request for interim relief was denied on April 3, 2014, and that, on April 1, 2014, the district implemented its testing procedures.  Petitioners note in their petition that, “[f]ailure to grant a stay will render this Petition moot.”  Accordingly, the appeal must be dismissed as moot.

To the extent petitioners seek relief as to “all such future NYSED standardized tests” in their petition, I note that the Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of B.R. and M.R., 48 Ed Dept Rep 291, Decision No. 15,861; Appeal of Lachler, 47 id. 455, Decision No. 15,752).  In any case, as discussed below, petitioners have failed to carry their burden in this regard.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).  On this record, petitioners have failed to carry their burden of establishing that the district acted arbitrarily or capriciously in its practice of administering the state assessments and that they are entitled to the relief requested  

In support of their claim that respondents’ alleged “sit and stare” policy is arbitrary and capricious, petitioners rely on the 2014 New York State Testing Program Teacher’s Directions (“Teacher’s Directions”)[2] for the proposition that the Teacher’s Directions “permits students taking the NYSED standardized tests to read quietly after completion of their tests.”  According to petitioners, “[o]nce a child has refused to take the test, his or her test is complete.  To argue or suggest that a child refusing the test has not completed it is a transparent use of semantics over substance.”  

I note that, as part of the program requirements for grades three through eight, Commissioner’s regulations specifically require that school districts annually administer ELA and math assessments in those grades and science assessments in grades four and eight (8 NYCRR §§100.3[b][2][i][a] and [b]; 100.4[b][2][ii]; 100.4[e][1],[2] and [4]).  These regulatory requirements conform with the federal Elementary and Secondary Education Act (“ESEA”), which requires, inter alia, that the Department, as a state educational agency, implement a system of annual assessments in ELA and math for all students in grades three through eight and in science at least once in grades three through five and grades six through nine (see 20 USC §6311[b][3]).

As respondents correctly note, there exists no authority for parents to opt their children out of participation in required state assessments[3] and school districts are therefore not required to provide a child who has refused the assessment with an alternate location or to allow such child to read other materials while other children are taking their assessments.  Indeed, the Teacher’s Directions state under “Test Format and Schedule” as follows:

Students who finish their test before the allocated time expires should be encouraged to go back and check their work.  Once the student checks his or her work, or chooses not to, test materials may be collected by the proctor.  After a student’s test materials are collected, that student may be permitted to read silently.  This privilege is granted at the discretion of each school.  No talking and no other schoolwork is permitted.  If all students complete the test earlier than the allotted time, you may end the session (emphasis in original).

Thus, according to the Department’s guidelines, school districts have discretion, but are not required, to permit students to read silently if they finish their test before the allotted test administration expires. 

As noted above, respondents maintain that they do not implement a “sit and stare policy” and that their actions are not arbitrary or capricious and are in all respects consistent with applicable law, regulation and guidance.  Respondents explain that the district’s testing procedures are:

in place in an effort to maintain an appropriate testing environment for all students.  It is the District’s view that allowing any student to read non-assessment materials during the administration period, whether or not the student completes the assessment, can be a distraction for other students.  

Moreover, as respondents note, the Department’s 2014 School Administrator’s Manual for the grades three through eight ELA and math tests, of which I take judicial notice, specifically states that “[s]chools do not have any obligation to provide an alternative location or activities for individual students while the tests are being administered.”

Accordingly, on this record, I cannot conclude that petitioners have carried their burden of establishing that respondents’ test administration policies are arbitrary, capricious or an abuse of discretion.

I have reviewed petitioners’ remaining contentions and find them to be without merit.





[1] According to their affidavit of service, respondents’ answer was served on April 15, 2014.  Petitioners submit a “reply” dated April 11, 2014, which appears to be in response to respondents’ opposition to petitioners’ request for interim relief.


[2] A separate Teacher’s Directions exists for the grades three, four, and five ELA tests; the grades three, four, and five mathematics tests; the grades six, seven, and eight ELA tests; and the grades six, seven, and eight math tests.  Each Teacher’s Directions contains a table listing the days of testing for each subject area and the allotted test administration time, ranging from 60 to 90 minutes of test time, plus ten minutes of preparation time.  The allotted test administration time is the testing time established by the Department within which students must finish the test.  Each Teacher’s Directions contains identical language regarding students who finish their test before the allocated time expires.


[3] In denying a request for temporary restraining order against a school district’s imposition of discipline on their child for refusal to take state assessments, a federal court noted that the “[p]laintiffs have not cited any case suggesting that a student has a right to abstain from taking a test on First Amendment grounds” (Barber v. State of New York, et al., 2013 WL 1773631 [W.D.N.Y.]).  The court noted that “[t]he only case cited by the plaintiffs in their memorandum of law in support of their motion for a Temporary Restraining Order is the 1944 United States Supreme Court case of Prince v. Massachusetts, 321 U.S. 158, 166, where the Court stated that ‘the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.’  Plaintiffs, however, fail to cite the portion of Prince which holds that while parents are the primary fount of care, custody, and nuture of a child, ‘the state as parens patriae may restrict the parent’s control by requiring school attendance, regulating or prohibiting the child’s labor, and in many other ways.’  Accordingly, Prince in no way suggests that a parent has a Constitutional right to prohibit a child from taking a standardized test” (Barber v. State of New York, et al., 2013 WL 1773631 [W.D.N.Y.]).