Barber et al v. The State of New York et al

Filing 4

-CLERK TO FOLLOW UP-ORDER denying 3 Motion. Signed by Hon. Michael A. Telesca on 04/25/2013. (BMB)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________________
MELISSA BARBER AND CRAIG BARBER,
Individually and as parents and
Natural guardians of Infant H.B.
Plaintiffs,
v.

13-CV-6207T
DECISION
and ORDER

THE STATE OF NEW YORK, NEW YORK STATE
DEPARTMENT OF EDUCATION, JOHN B. KING
NEW YORK STATE COMMISSIONER OF EDUCATION,
RUSH HENRIETTA SCHOOL DISTRICT, RUSH
HENRIETTA BOARD OF EDUCATION, J. KENNETH
GRAHAM, JR., SUPERINTENDENT OF SCHOOLS,
GREG LANE, PRINCIPAL BURGER ELEMENTARY
SCHOOL
Defendants.
___________________________________________
INTRODUCTION

Plaintiffs Melissa and Craig Barber (“the Barbers”), acting on
behalf of themselves and their infant child H.B.1, bring this
action claiming that the defendants have violated their rights
under the First and Fourteenth Amendments of the United States
Constitution to prevent their child from being required to take
standardized tests being administered to all children in the
defendant Rush Henrietta School District.

Plaintiffs allege that

they have a constitutional right to exempt their child from taking
standardized tests, and that their rights are being violated
because their child has been disciplined for refusing to take the

1

Although the Complaint purports to protect the identity of
the minor “H.B.”, the minor’s name is found underacted on several
pages of the Complaint. The Clerk of the Court is directed to
redact those portions of the Complaint disclosing the minor’s
name.

tests.

Plaintiffs’

now

seek

a

Temporary

Restraining

Order

enjoining the defendants from: (1) “disciplining or otherwise
punishing students solely on the basis of their refusal to take
certain assessment examinations;” and (2) “referring parents to
Child Protective Services for having directed their children not to
take

certain

assessment

examinations.”

Defendant’s

have

not

answered the Complaint nor the Motion for the Temporary Restraining
Order.

However,

for

the

reasons

set

forth

below,

I

deny

plaintiffs’ motion for a Temporary Restraining Order.
BACKGROUND
By Verified Complaint filed April 22, 2013, plaintiffs Melissa
and Craig Barber, as parents and guardians of their child “H.B.”,
claim that the defendant Rush Henrietta School District (“the
School District” or “District”) has attempted to force their child
to take standardized tests being administered to all children in
H.B.’s grade, and has disciplined H.B. for refusing to take the
standardized tests. The plaintiffs claim that they object to their
child taking the standardized tests because, in their judgment, the
tests are “unfair, unnecessary, unduly stressful, and . . . harmful
to their child.”

Complaint at ¶ 22.

According to the plaintiffs,

after they informed the School District in writing that their child
would not be taking the standardized tests, the District notified
the plaintiffs that if H.B. attended school on the day the tests
were administered, and refused to take the tests given, H.B.’s

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refusal would be considered insubordination, and H.B. could be
subject to disciplinary action.
According to the Complaint, H.B. as directed by his parents,
refused to take the standardized tests, and was “charged” with
insubordination. Plaintiffs allege that H.B. was found “guilty” of
insubordination,

and

that

permanent academic record.

the

finding

will

remain

on

H.B.’s

Plaintiffs further claim that H.B. was

prevented from participating in extra-curricular activities on the
days H.B. refused to take the standardized tests. Plaintiffs claim
that other students in the School District have been disciplined in
different ways (including being denied recess), and that the School
District has threatened parents that they would be referred to
child protective services if their children did not take the
standardized tests.

According to the plaintiffs, some school

districts (unlike the defendant School District) do not discipline
students at all in cases where students refuse to take standardized
tests.

Plaintiffs complain that the New York State Department of

Education has failed to promulgate regulations for dealing with
students who refuse to take standardized tests, and therefore,
students in different districts are subject to different standards.
According to the plaintiffs, the disciplinary action taken by the
defendants has denied them their right to free speech, and their
right to a free public education under the laws of the State of New
York.

Page -3-

DISCUSSION
I.

Standard for Issuance of a Temporary Restraining Order

To be entitled to a Temporary Restraining Order, a party must
demonstrate: 1) a substantial likelihood of success on the merits
of the case; 2) that irreparable harm will occur if the Order is
not issued; 3) that no other parties will be harmed if temporary
relief is granted; and 4) that the public interest favors entry of
the Order.
F.Supp.

The Nation Magazine v.

68

(D.D.C.

1992).

Of

Department of State, 805

these

factors,

a

showing

of

irreparable harm “is the single most important prerequisite for the
issuance” of preliminary relief.

Reuters, Ltd. v. United Press

Int'l, Inc., 903 F.2d 904, 907 (2d Cir., 1990)(discussing issuance
of preliminary injunction).
In the instant case, based on the allegations set forth in
their Verified Complaint, plaintiffs have failed to establish that
they are subject to irreparable harm if a Temporary Restraining
Order is not issued.

The plaintiffs have alleged that as a result

of H.B.’s failure to take the standardized tests, H.B.: (1) was
found guilty of insubordination and such finding was placed in
H.B.’s academic record, and (2) H.B. was prohibited from playing
extra-curricular sports on the days H.B. refused to take the
standardized
suggesting

tests.

that

a

Plaintiff
school’s

has

not

finding

that

cited
a

any

authority

student

committed

insubordination and its subsequent notation of such a finding in
the student’s academic record constitutes an irreparable harm. For
a harm to be considered irreparable, a plaintiff must, inter alia,
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establish

that

adjudication,

the

harm

whether

by

“cannot
damages

be
or

remedied
a

after

permanent

a

injunction.”

Salinger v. Colting, 607 F.3d 68, 81 (2d Cir., 2010).
instant

case,

plaintiffs’

allegation

that

a

final

In the

finding

of

insubordination could be placed in H.B.’s academic record if H.B.,
in the future, refuses to take a standardized test, fails to allege
that such a harm is irreparable.

There is no allegation that the

insubordination finding cannot at some later time be removed from
H.B.’s record should it be determined that H.B. has a right to
disobey the direction of a teacher and principal that H.B. take the
standardized

test,

or

that

H.B.

has

a

right

to

not

take

standardized tests.
With respect to plaintiffs’ claims that H.B. was not allowed
to participate in extra-curricular activities on the days H.B.
refused to take the standardized tests, it is well-established that
there is no constitutional right to participate in extracurricular
sporting
District,

activities.
950

F.Supp.

Mazevski
69,

72

v.

Horseheads

(W.D.N.Y.

Central

School

1997)(Larimer,

C.J.);

Angstadt v. Midd-West School Dist., 377 F.3d 338, 344 n. 2 (3rd
Cir., 2004); Accordingly, plaintiffs’ claims that H.B. was not
allowed to participate in extra-curricular activities, or that H.B.
will not be allowed to participate in the future should H.B.
decline to take standardized tests, fails to allege the likelihood
that plaintiffs’ will be subjected to irreparable harm in the
absence of the issuance of a Temporary Restraining Order.

Page -5-

Nor have plaintiffs established a likelihood of success on the
merits

of

the

allegations

in

their

Complaint.

Plaintiffs’

Complaint seeks, in addition to monetary damages, the remedies of:
enjoining the defendants from disciplining students who refuse to
take standardized tests; enjoining the defendants from prohibiting
students who refuse to take standardized tests from participating
in

extracurricular

activities;

prohibiting

defendants

from

referring parents to Child Protective Services merely because the
parents refused to allow their children to take standardized tests;
and

ordering

the

New

York

State

Department

of

Education

to

promulgate regulations to ensure that children in different school
districts who refuse to take standardized tests are treated in a
similar manner and are free from retaliation for refusing to take
standardized tests.
As stated above, there is no constitutional right for a
student to participate in extracurricular activities, and thus
plaintiffs are unlikely to succeed on the merits of that claim.
Additionally, plaintiffs’ have failed to allege any jurisdictional
basis that grants authority to this Court to Order the New York
State Department of Education to promulgate regulations on any
matter.

This Court is unable to conceive of any scenario, under

the facts alleged, that would allow a federal court to direct a
Department of the State of New York to adopt rules or regulations
regarding which students may refuse to take standardized tests, and
what repercussions, if any, will follow from refusing to take a

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standardized test.

Similarly, under the facts alleged here, the

plaintiffs have failed to allege any jurisdictional basis that
would allow a federal court to enjoin a school district from, in
its discretion,
refusing

to

disciplining

comply

with

a

students
lawful

for

insubordination

direction

of

a

teacher

for
or

administrator, or referring a parent to Child Protective Services
for directing a child to engage in insubordination.
Plaintiffs claim that they are entitled to the relief they
seek pursuant to the First and Fourteenth Amendments to the United
States Constitution.

Specifically, plaintiffs allege, in vague

terms, that their rights to free speech and equal protection are
being violated by the defendants.

Plaintiffs do not explain,

however, how their rights to free speech are being violated.
Plaintiffs have not cited any case suggesting that a student has a
right to abstain from taking a test on First Amendment grounds.2
Nor have plaintiffs demonstrated any way in which they have been
denied equal protection under the law.

2

To state a claim for the

The 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 nurture 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.” Id.
(emphasis added). Accordingly, Prince in no way suggests that a
parent has a Constitutional right to prohibit a child from taking
a standardized test.
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denial

of

equal

governmental

protection,

agency

has

differently under the law.

a

plaintiff

treated

must

similarly

allege

situated

that

a

persons

Reynolds v. Sims, 377 U.S. 533 (1964).

Plaintiffs have failed to allege, however, that they have been
treated differently by the School District than any other similarly
situated parents, or that the basis for any different treatment was
“based on impermissible considerations such as race, religion,
intent to inhibit or punish the exercise of constitutional rights,
or malicious or bad faith intent to injure a person.” Cine SK8,
Inc. v. Town of Henrietta, 507 F.3d 778, 790 (2d Cir.2007).

To the

extent that plaintiffs claim they have been treated differently
than

similarly

situated

parents

in

other

school

districts,

plaintiffs have failed to advance any cognizable theory suggesting
that parents in one school district are entitled, under the Equal
Protection Clause of the Fourteenth Amendment to the United States
Constitution, to be treated similarly to parents in other school
districts with respect to disciplinary procedures.

Accordingly, I

find that plaintiffs have failed to establish that they are likely
to succeed on the merits of their claims.
CONCLUSION
For the reasons set forth above, I deny plaintiffs’ request
for a Temporary Restraining Order.
ALL OF THE ABOVE IS SO ORDERED.
S/ Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
DATED:

Rochester, New York
April 25, 2013
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