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Decision No. 16,787

Appeal of DAWN MERRITT, on behalf of her son LUKE, from action of the Board of Education of the Alden Central School District regarding state assessments.

Appeal of WENDY STENCHENFINGER, on behalf of her son AARON, from action of the Board of Education of the Alden Central School District regarding state assessments.

Decision No. 16,787

(July 3, 2015)

Hodgson Russ LLP, attorneys for respondent, Andrew J. Freedman, Esq., of counsel

BERLIN, Acting Commissioner.--In two separate appeals, petitioners challenge the actions of the Board of Education of the Alden Central School District (“board” or “respondent”) regarding its administration of state assessments during the 2013-2014 school year.  Because the appeals present similar issues of fact and law, they are consolidated for decision.  The appeals must be dismissed.

During the 2013-2014 school year, petitioner Merritt’s son, Luke, and petitioner Stenchenfinger’s son, Aaron, attended seventh grade in respondent’s district.  Although not entirely clear, petitioners allege that, beginning at the end of January 2014, they had various communications with respondent’s interim superintendent and the principal of their sons’ school regarding respondent’s policy for administration of the 2013-2014 state assessments.  Petitioners ultimately informed the interim superintendent and principal that they “would not permit” the district “to administer any standardized assessments for the 2013-14 school year to [their children].”  According to petitioners, respondent has a “sit and stare” policy in which students who opt out of testing are “‘to remain seated and silent in the testing classroom, unless otherwise directed by the NYSED.’”  According to respondent, the district does not have a written policy addressing whether students can read silently during state assessments if they finish their test before the allocated time expires or if they refuse to take a state assessment.  However, its practice is to allow students who complete their test before the allocated time expires – or who refuse to take a state assessment and the minimum time to take the test expires – to read silently.

Petitioners allege that, at a March 6, 2014 board meeting, the interim superintendent informed the board, petitioners, and the “attending public” that he would keep the “sit and stare” policy in place until “further directives” from the New York State Education Department (“Department”).  At the meeting, the board president advised that the board would follow the interim superintendent’s advice.  These appeals ensued.  Petitioners’ requests for interim relief were denied on March 28, 2014.

Petitioners assert that respondent has implemented a “sit and stare” policy that is educationally unsound, abusive, harmful, and punitive in nature, constitutes harassment and bullying, and creates a hostile environment.  Petitioners request that I direct respondent to permit their sons to sit in the back of their regular classrooms, or in an appropriate, separate location within their school building, and read quietly during the duration of the 2013-2014 state assessments.

Respondent asserts that the appeals must be dismissed as moot and for failure to state a claim upon which relief may be granted.  Respondent maintains that it does not require that students “sit and stare” and that its practices are in accordance with State and federal law, regulations and guidance. 

The appeals 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’ requests for interim relief were denied on March 28, 2014, and, on April 1, 2014, the district implemented its testing procedures.[1]  Each petitioner notes in her petition that, “[i]f no such stay is granted, and this Petition is not decided prior to the giving of the first assessment, this Petition will be rendered moot.”  Accordingly, the appeals must be dismissed as moot. 

Even if the appeals were not dismissed on procedural grounds, they 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. 

In support of their claim that respondent’s alleged “sit and stare” policy is arbitrary and capricious, petitioners assert that the Department “allows schools to design policies that let children read a book, or even provide alternative educational activities, if the parent refuses to allow the child to participate in NYS testing.”

I note that, as part of the program requirements for grades three through eight, Commissioner’s regulations specifically require that school districts annually administer the English Language Arts (“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 respondent correctly notes, there exists no authority for parents to opt their children out of participation in required state assessments[2] 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 2014 New York State Testing Program Teacher’s Directions (“Teacher’s Directions”)[3] 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.  Nonetheless, according to respondent, the district’s practice is to allow students who complete their test before the allocated time expires – or who refuse to take a state assessment and the minimum time to take the test expires – to read silently. 

As noted above, respondent maintains it does not implement a “sit and stare policy” and that its actions are not arbitrary or capricious and are in all respects consistent with applicable law, regulation and guidance. 

Moreover, as respondent notes, 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 respondent’s 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] The record also indicates that, during the pendency of this appeal, petitioner Merritt’s son participated in the state assessment that was administered on April 1, 2014.



[2] 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.]).



[3] 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.