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Decision No. 16,835

Appeal of a STUDENT WITH A DISABILITY and his brother, by their parents, from action of the Board of Education of the East Meadow Union Free School District and Superintendent Louis R. DeAngelo regarding state assessments.

Decision No. 16,835

(October 26, 2015)

Jaspan Schlesinger LLP, attorneys for respondents, Stanley A. Camhi, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the actions of the Board of Education of the East Meadow Union Free School District (“board”) and Superintendent Louis R. DeAngelo (“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’ sons, Student A and Student B, attended eighth and fifth grade, respectively, in respondents’ district.  According to petitioners, beginning April 1, 2014, Student A was scheduled to sit for the 2014 English Language Arts (“ELA”), math, and science state assessments and Student B was scheduled to sit for the 2014 ELA and math state assessments.  Student A has an Individualized Education Plan (“IEP”), which affords him “double-time” within which to complete all tests and assessments, as well as a “reader” to assist him. 

According to respondents, the district is required by federal law and the Commissioner’s regulations to administer state assessments in ELA and math to all students in grades three through eight and in science at least once to all students in grades three through five and six through nine.  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 letters dated September 4, 2013, petitioners informed the principals of their sons’ respective schools that they “refuse to allow” their children “to participate in any standardized assessments imposed on children across the state for the 2013-2014 school year.”  In a subsequent letter to the superintendent dated February 24, 2014, petitioners requested information regarding the district’s policy for students who would not be taking the state assessments, i.e., whether they would be “permitted to read quietly at his/her desk or be given an alternate educational activity.”  The letter stated that, “if we do not receive a written reply from you within five school days, we will take your silence to mean that you intend to repeat last year’s policy of making our children sit and stare during these upcoming tests.”  According to petitioners, “the practice of ‘sit and stare’ as it relates to a ‘refusal child’ vis-à-vis state assessments” is where “a school district’s response to a parent’s refusal letter is to require the school child to sit at his/her desk, during the entire assessment period, with nothing to do.  Even the simple act of quietly reading a book is forbidden.” 

According to petitioners, the superintendent did not respond to their letters or advise them “regarding his decision as to how [their] children would be treated during their respective state assessments.”  This appeal ensued.  Petitioners’ request for interim relief was denied on March 28, 2014.

Petitioners assert that respondents have implemented a “sit and stare” policy that is unreasonable, arbitrary, irrational, and punitive in nature.  They claim that the policy as it relates to Student A would require him to “sit and stare” for twice the time allotted for children who do not have an IEP, which amounts to “three hours at a time, or more, per assessment per day, three consecutive days a week, for three weeks.”  As to Student B, they claim that he would be required to “sit and stare for over three consecutive days, during the first week of assessments (ELA); and an average of 1.5 hours a day (plus preparation time), three consecutive days, during the second week of assessments (Math).”  Petitioners request that I “stop the practice of sit and stare” in respondents’ district, and direct respondents to permit Student A and Student B to sit either at their own desks or in the back of their regular classrooms, or in an appropriate, separate location within their respective school buildings, and read quietly during the duration of the 2013-2014 state assessments.

Respondents assert that the appeal must be dismissed as moot and for failure to state a claim upon which relief may be granted.  They contend, among other things, that petitioners lack authority to opt their children out of state testing and that the requested relief would impinge on the rights of test-taking students and cause the district irreparable and irrevocable harm.  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.  

As an initial matter, the appeal must be dismissed to the extent petitioners assert claims on behalf of “similarly situated” children in the district “and throughout New York State.”  Standing is a jurisdictional prerequisite to maintaining an appeal pursuant to Education Law §310 (see Education Law §311[3]).  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  While petitioners have standing to bring this appeal on behalf their own sons, they lack standing to assert the rights of others (Appeal of Walker, et al., 53 Ed Dept Rep, Decision No. 16,609; Appeals of Giardina and Carbone, 43 id. 395, Decision No. 15,030; Appeal of Gilmore and Jordon-Thompson, 42 id. 334, Decision No. 14,874).

To the extent petitioners seek to maintain the appeal as representatives of a class of students, class status is denied.  An appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR §275.2; Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797).  A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797).  Petitioners have not made this showing.  In fact, the petition does not address the requisite standard at all.  While petitioners state generally that “the matter is one of public concern, as it relates not only to the well-being and proper treatment of our children, but also to the well-being and proper treatment of similarly situated children in the instant school district and throughout New York State,” it is unclear from the record who the students are and whether they share all questions of law and fact at issue in this appeal.  Therefore, class status is denied.

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 March 28, 2014, and, on April 1, 2014, the district implemented its testing procedures.  Petitioners note in their 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 moot.”  Accordingly, the appeal must be dismissed as moot. 

Even if the appeal were not dismissed as moot, 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.  

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”)[1] for the proposition that “NYSED’s Teacher’s Manuals provide that a child who has finished taking the assessment is permitted to read when done, even when other children are still taking the assessment.”  According to petitioners, “a child who has refused the assessment is deemed to be finished with that assessment.”  Therefore, “[t]here is nothing within NYSED’s guidelines that would prevent a school district from permitting a child who has refused the assessment to read while other children are taking their assessments.” 

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 New York State Education Department (“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[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 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 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 designed to ensure that all students have a “full, uninterrupted testing period for them to complete their examinations to the best of their ability” and that:

[i]t is the District’s position that permitting students to bring into testing room extraneous materials, such as books or other reading materials, or to leave their seats or the testing room (other than to use the bathroom or for reasonable emergencies) before the conclusion of the testing period, creates significant distraction and negatively influences the testing environment for all students...  [If such practices were allowed], some students may rush through their test in order to access their reading materials; others may be distressed or discouraged by observing that their peers have finished the test before them....  Furthermore, students who desire reading materials may read their tests.  The material is engaging, educational and related to what they have been learning in class.  There is no requirement that students ‘sit and state’ or otherwise squander the testing time afforded to them.  However, any student who wishes to put their head down and rest rather than complete their tests is permitted to do so.

Moreover, as respondents note, petitioners acknowledge that 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 the “[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.

Finally, I note that, with respect to petitioners’ claim that respondents’ policy requires Student A to sit for double the allocated time pursuant to his IEP, petitioners have similarly failed to carry their burden.  According to respondents, students who have IEPs and are not alternatively assessed are also required to complete their state assessments.  However, Student A is not required to remain in a testing room longer than the time allotted for students who do not have an IEP, and he is permitted to decline the “double-time” provided by his IEP.  Petitioners have not submitted a reply or other evidence to rebut this assertion.

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




[1] 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.


[2] As respondents point out, 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.]).