"A child's learning is the function more of the characteristics of his classmates than those of the teacher." James Coleman, 1972

Wednesday, April 18, 2012

Special Ed Child Forced to Take Test, Mom Threatened by School Officials in Oceanside, NY

If you had a child with special needs who struggled to learn and who was stressed out about the upcoming state test, would you consider opting out?  Christine Dougherty did in Oceanside, NY, and she notified the school.

She did not expect the reply she got, however, with a threatening rebuttal and an accusation of "educational neglect" --along with a threat by the principal, Mr. Capone, to call Child Protective Services if Joseph was opted out.

Then Mr. Capone, the principal, forced Christine's son, Joseph, to take the test without the conditions set out in his Individual Education Plan (IEP).

Below is the story in letters posted at UOO:
At United Opt Out National, we encourage opting out of high stakes testing because we support public schools. We support real learning and real teaching and a whole and equitable education for all children.  High stakes testing is not just any test – it is a test used to punish students, teachers, schools and communities.  It is a test that profits billionaires and neglects children – denying students real learning.  It is a test that is being used to privatize public education.  Also, we believe that everyone has a moral obligation to protect children from the harmful tactics currently being used by corporate education reformers – high stakes testing being only one of the tactics.

Yet – this particular tactic holds great weight.  We know that if everyone opts out of high stakes testing, they will not have the data to punish or profit.  Corporate education reformers know this as well – they NEED the data to continue dismantling the public schools – and this is exactly why they have put in place a system which places educators in fear of being fired, in fear of having their school shut down, if indeed, they do not get the data.  As a result, parents who try to opt a child out of the test are often bullied.

We wonder – where is mainstream “liberal” media?  Why are these stories being ignored?  Our public school system is being dismantled – and no one reports it.  Children suffer at the hands of high stakes testing – and no one reports it.  Read these letters.  Share them widely.

And answer this question regarding educational neglect.  Who is neglecting who?

From: Christine Dougherty [mcadoug@aol.com]
Sent: Sunday, April 15, 2012 10:38 AM
To: Thomas M. Capone; Donna Gales
Subject: opt out.

Please be advised that my son Joseph Dougherty will not be taking the New York
State assessments on April 17-19 and April 25-27. After watching Joseph
struggle and listening to his concerns, we have decided to opt out of this
unnecessary testing.

I am requesting that Joseph be given an alternative real learning opportunity

Christine Dougherty

Dear Ms. Dougherty,

This letter is in response to your April 15, 2012 email and follows up today’s
telephone conversation. In your email, you requested that the Oceanside Union
Free School District (“District”) not administer the New York State English
Language Arts (“ELA”) and Math Assessments to your son, Joseph. During today’s
telephone conversation, you reiterated this request. Upon my informing you that
the State Assessments are not optional, you indicated that you planned to
either: (1) keep Joseph at home for the period during which the State
Assessments were administered, (2) keep Joseph at home for the portion of each
day during which the State Assessments were administered, or (3) send Joseph to
school with instructions not to take the State Assessments.

I remind you that, pursuant to the Regulations of the Commissioner of
Education, all public school students in grades three through six who have not
been deemed eligible by the CSE to take the Alternate Assessment, and are not
parentally placed on home instruction, must take the ELA and mathematics
elementary assessments. See 8 N.Y.C.R.R. §100.3(b)(2). As you know, Joseph
does not qualify for the Alternate Assessment. The Regulations contain no
“opt-out” provision, which would authorize a parent to have his or her child not
participate in the State Assessment. It is the District’s obligation to
determine all eligible students’ proficiency levels through the administration
of the State Assessments. As such, taking the State Assessments is mandatory
for Joseph.

If without medical justification, Joseph is absent from school on any day
during the Assessment period, the District will deem this absence as unexcused.
Further, if you keep Joseph home from school during the Assessment period,
without medical verification, it is within the District’s discretion to deem
these absences as indicia of educational neglect, which would leave the District
little choice but to contact Child Protective Services (“CPS”). Pursuant to the
New York State Education Department’s 2012 School Administrator’s Manual, a
student will receive a final score of “999″ and will be counted as “not tested”
if: (1) he is absent from the entire test; (2) he refuses the entire test; (3)
he is absent for any session; or (4) he is present for all sessions, but does
not respond to even one question on the test. Accordingly, if Joseph engages in
any one of these activities, he will receive a final score of 999, he will be
counted as not tested, he may receive an unexcused absence, and CPS may have to
be called.
If Joseph does not participate in the State Assessments, the
District will use other formal or informal assessments to determine his
proficiency level. If Joseph participates in the State Assessments, he will of
course be provided with his IEP-mandated accommodations.

I hope the above has clarified any outstanding questions you have about
Joseph’s obligation to participate in the State-mandated Assessments and your
obligation to make him available for testing. We look forward to having Joseph
participate in the State Assessments.

Dear Mr. C:

I have referred your letter to my attorney. However, I have been advised and would like to take this opportunity to share with you the fact that parental rights are broadly protected by Supreme Court decisions (Meyer and Pierce), especially in the area of education. The Supreme Court has repeatedly held that parents posses the “fundamental right” to “direct the upbringing and education of their children.” Furthermore, the Court declared that “the child is not the mere creature of the State: those who nurture 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, 534-35) The Supreme Court criticized a state legislature for trying to interfere “with the power of parents to control the education of their own.” (Meyer v. Nebraska, 262 U.S. 390, 402.) In Meyer, the Supreme Court held that the right of parents to raise their children free from unreasonable state interferences is one of the unwritten “liberties” protected by the Due Process Clause of the Fourteenth Amendment. (262 U.S. 399). In recognition of both the right and responsibility of parents to control their children’s education, the Court has stated, “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for the obligations the State can neither supply nor hinder.” (Prince v.Massachusetts, 321 U.S. 158).
Since state law is superceded by Federal Law, parents are given the final say in matters of education and I shall have the final say in my son’s education.
[Christine's son, Joseph, was tested against his and his mom's wishes.]
Joseph advises me that he was forced to take the assessment today against his wishes and mine in a separate location, thereby resulting in emotional and physical stress. He is now complaining of a headache and “knots in his back”.
Not only have you violated my parental rights, but now you are failing to implement my son’s IEP, which as you know is a legal document.

I specifically direct you to pages 11 and 12 of Joseph’s IEP (the testing accomodations section) wherein it states he is to begin exam in mainstream setting with significant proctor attention to reduce test anxiety.
While I do not feel the need to threaten you, I must advise you that should this situation occur again, I will be forced to contact the authorities.

Christine Dougherty


  1. Hi Jim,
    The mainstream media has obviously decided to sit this one out. I've decided to put all those years as a journalist to good use and help them out. If I am willing to shiver out in front of the Department of Education with you on behalf of students with disabilities, I will definitely share the massive amount of information I have gathered as a parent, special ed teacher and advocate on how high stakes testing affects children who have learning differences.

  2. Great piece. I linke to your post here http://theinnovativeeducator.blogspot.com/2012/04/6-actions-you-can-take-now-to-opt-your.html

    I also tweeted your story to @MyFoxNY and @NY1headlines . I encourage others to do the same.

    Maybe with more Tweets they'll realize this is a story to cover!

    For other NY Parents who are interested in opting out there is an Opt Out of Testing group at https://www.facebook.com/groups/OptOutNewYork
    You can join the opt out group of any state by replacing New York with your state's name i.e. Ohio would be https://www.facebook.com/groups/OptOutOhio

  3. I say sue them. I would. Teachers who are worth their salt know that this type of testing IS child abuse.

  4. ShaniceCJ2:08 PM

    If a child is struggling to learn, why would that child be forced to take a test with out considering their Individual Education Plan (IEP)? Most states wide testing is very difficult to past. As for Joseph, who is mentioned in this article, i believe the principal over stepped his boundaries and came off as harsh.He basically threatened the mother in this case with Child Protective services. As the mother of the child she has ever right to decide what she thinks is best for her son's education.

  5. Seems to me we've lost sight of the child!

  6. Anonymous10:06 PM

    Seems to me a parent with a "special needs" child would want their child to take the state tests to receive the appropriate services. Here's a thought.... Home school or private school!

  7. Anonymous12:02 AM

    Good teachers don't need state tests to know what kids know and can do.

    This is a disturbing abuse of power, and is part of the real problem with American education--it is top-down and unresponsive to children or families.

  8. Anonymous4:22 AM

    I opt out of my child for special ED in Oceanside, NY. Just 4 days prior school ended, Capone called CPS on me. There was 8 Nassau county cops at my door step to take my child away because i refuse the CPS A__hole to enter my house. The CPS A__hole obtained a court order because I refused him to do a "home assessment". I am just glad I left Oceanside before storm "Sandy" hits, Herb Brown and Tom Capone's house is underwater (For real "UNDERWATER" :-}.