Parents Lower the Boom on School Testing

ROCHESTER, N.Y. (CN) - Parents who think standardized tests are a waste of time filed a federal class action against New York and their son's school, which punished him for refusing to take a test, as his parents instructed.

New York has no policy on "opt-out" protests, so students in one district may be disciplined for "insubordination" while students in a neighboring district can sit out "without fear of reprisal," lead plaintiffs Melissa and Craig Barber say in the complaint.

They sued the state, its Department of Education, the Rush-Henrietta Central School District and School Board, its superintendent and the principal of Burger Middle School.

The Barbers say they told their son's school by letter that they did not want him to take the test. But not only did the school punish him for being "insubordinate," it called the sheriff's office to send officers to a ball field to be sure he did not play baseball while the school was punishing him, the parents say in the complaint.

For following his parents' instructions, their son, H.G., was barred from extracurricular activities -baseball practice and a game - his parents say.

They claim the school district "in fact ... arranged to have the Monroe County Sheriff's Department" at the fields, "apparently to discourage [the boy] or his parents from practicing."

The school district denied recess to another student, in elementary school, "for having simply refused (as her mother directed) to take the examinations," the complaint states.

"In addition, the parent of this child was also threatened, insofar as she was warned that 'should these absences [from testing] become excessive, the district may refer the matter to Child Protective' Services," according to the complaint. (Brackets in complaint.)

"Plaintiffs, and other like-minded parents and students across the Rush-Henrietta School District, the State of New York and the United States of America, have come to believe that the redundant and inconsistent administration of high-stakes standardized assessment examinations ... are unfair, unnecessary, unduly stressful, and therefore, in their best judgment as parents, harmful to their child," the Barbers claim.

New York public school students in grades 3 to 8 are taking new tests this month, developed under so-called Common Core State Standards, adopted by 45 states and the District of Columbia, which aim to teach students what they need to know by graduation from high school to be college- and career-ready.

The new tests were administered April 16-18 to assess English language skills; math tests were scheduled April for 24-26. Similar tests have been given annually in the past, but the new ones are more rigorous.

That sparked some protests from parents who worried that the tests were coming too soon after the new Common Core standards were introduced in classrooms.

The topic is a hot one on Facebook and in blogs, where parents talk about anxious children and strategies for sitting out the tests, the (Albany) Times Union reported.

The Barbers want the Rush-Henrietta district be enjoined from punishing their son for not taking the tests, because doing so violates his rights to free speech and equal protection "under color of state law."

They say it also deprives him of the right to a free public education.

"The defendants' inconsistent, arbitrary and capricious administration of test and 'consequences' associated with those tests is a violation of plaintiff's right to an education as guaranteed by Article XI of the Constitution of the State of New York, as well as a clear violation of rights protected by the First and Fourteenth Amendments of the United States Constitution," the complaint states.

The Barbers' son is a student at Burger Middle School.

His parents also demand that the state develop regulations to ensure that standardized exams "are administered in a noncoercive, consistent and constitutional manner."

They claim that while Rush-Henrietta students who refused to take the tests were punished, students who did likewise in the nearby districts of Churchville-Chili Central, Rochester City and Wayne Central were not disciplined. Neither were students who are home-schooled.

"Such disparities in terms of how school districts throughout New York state viewed and handled students who opted out, occurred, in large part, because New York state's Education Department failed to promulgate regulations and/or protocols to ensure that the students and families that were subject to these examinations were treated in an equitable, just, consistent and constitutional manner," the parents say.

They seek a temporary restraining order to bar punishment for opting out of the April 25-26 math tests, and a preliminary injunction barring any further disciplinary action. They also seek court costs and attorneys' fees.

They are represented by Van Henri White of Rochester.

Here are the defendants: the State of New York, the New York State Department of Education, Commissioner of Education John B. King, the Rush-Henrietta School District, its Board of Education, Superintendent J. Kenneth Graham Jr., and Burger Middle School principal Greg Lane.

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