A sample letter to a district that is being extremely uncooperative when refusing the test (intends to force the child to verbally refuse, uses sit and stare, and contends that they will present the test more than once to the child) Dear Superintendent ________________: I have received your letter regarding my family’s decision to refuse participation in all standardized tests/assessments being given this school year, including but not limited to the ELA, math, and/or any local assessments used, in whatever manner, to evaluate my child and/or her teachers. You (the district) are asserting that “[t]here is not [sic] an option” to opt out. To the contrary; there is: it’s called The Constitution of the United States, and it provides that option (in no particular order of importance) on 14th Amendment substantive due process grounds (i.e., my right to nurture, raise, and direct the education of my child, my right and my child’s right to personal liberty, my right to protect my child from harm and for my child to be free from harm, and my right and my child’s right against unreasonable governmental intrusion), First Amendment privacy grounds, my child’s right against Fourth Amendment unreasonable governmental action, and Fifth Amendment rights. In addition, the Ninth Amendment recognizes that there are fundamental personal rights that are protected from abridgment by the government even though not specifically mentioned in the Constitution. Federal statutes also come into play. No Child Left Behind expressly provides: “Parents have the primary responsibility for the education of their children, and States . . . have the primary responsibility for the supporting that parental role.” 20 U.S.C. § 3401. Similarly, the federal government has declared that I must be afforded “substantial and meaningful opportunities to participate in the education of [my child].” 20 USC § 6301 (12). Indeed, my right to refuse to allow the state to compel my child to submit to a standardized test (or assessment) has constitutional dimensions that have been recognized by the Supreme Court of the United States for nearly 100 years. My constitutional right to guide my child’s education and to protect my child from harm and exploitation at the hands of government is one of the oldest fundamental liberty interests recognized by that Court. The Court has repeatedly held that because I have the natural inclination to further the best interests of my child, it is I who is the best protector of my child and, therefore, I have the natural right and duty to care for my child and protect her against unreasonable, arbitrary, and capricious governmental action. It is I -- the parent -- not the school district -- who is entrusted with this constitutionally-protected, fundamental right. The Court is emphatic that the State (the school district) has no right to interfere with or hinder my efforts to raise my child, or my efforts – my affirmative obligation -- to protect my child from harm or exploitation. See e.g. 20 U.S.C. § 6311 (based on the specific requirements outlined in No Child Left Behind, high-stakes testing violates federal law). The Court has stated: “[t]he fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children [(my child)].... The child is not the mere creature of the State; those who nuture 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 (1925). My child is not “[t]he mere creature of the state.” As the Supreme Court has similarly held: “the custody, care and nuture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Prince v. Commonwealth of Massachusetts, 321 U.S. 158 (1944). I have a constitutional liberty interest to direct the upbringing and education of my child. This right, guaranteed by the Constitution, may not be abridged by unreasonable policy. Even the New York Court of Appeals – the highest court of our state – recognizes this interest. The Court of Appeals stated: “It is the natural right, as well as the legal duty, of a parent to care for, control and protect his child from potential harm, whatever the source and absent a clear showing of misfeasance, abuse or neglect, courts should not interfere with that delicate responsibility.” Roe v. Doe, 29 NY2d 188 (NY 1971) (emphasis added). Neither should any branch of government. These constitutional, statutory, and common law guarantees do not disappear when my child enters your schoolhouse gate. In fact, the federal government has explicitly provided protection to my child within the school environment. See 20 U.S.C. § 1232h (protecting students from examinations without written parental consent). To reiterate: the _____________ School District does not have my permission to compel my child to take any state / district standardized test or assessment. See 20 U.S.C. § 1232h. Under my guardianship, my minor child will refuse same. In addition, her various tests /assessments will be properly scored as a “refusal,” will be considered “invalid,” and will not be included in the participation rate. See 8 NYCRR § 100.2(p)(1)(xi). New York State Education Department manuals provide explicit instructions on proper coding. These instructions are not discretionary. Your district does not have authority to deviate from them. They require that a “refusal” – along with “administrative error” and “medically excused” – has its own administrative code; it does not get scored as a “0,” “1,” or “2.” Moreover, as with “administrative error” or “medically excused,” a refusal is not deemed a valid score. Any attempt by your school district to otherwise code, score, or deviate from these instructions would constitute a due process violation of governmental procedure. Furthermore, during the administration of any and all make-up tests, my child will continue to receive a free and appropriate public education in her regular classroom environment, along side the rest of her classmates. You are hereby on notice that any state agent who ignores my parental instruction, and/or who compels, harasses, intimidates, or otherwise forces my minor child, or attempts same, in any way, to participate in any standardized test or assessment, and/or who takes any action that causes my child emotional, psychic, and/or physical harm against these express instructions, will be in violation of federal and state constitutional law, statutory law, and common law. I trust there will be no further need for clarification. Thank you for your cooperation, XXXXXXXXXXXXXX
Posted on: Sat, 18 Jan 2014 20:54:15 +0000
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