Barber v. State of New York

Schools and Education

New York Law Journal


Judge Michael Telesca

The Barbers informed codefendant school district of their objection to child H.B.'s taking of standardized tests. According to the Barbers, H.B. was "charged" and "found guilty" of insubordination, and disciplined—by preventing his participation in extracurricular activities—for refusing to take the tests. In addition to claiming that the disciplinary action denied them of their rights to free speech under the U.S. Constitution, and their right to a free public education under New York law, the Barbers complained that New York's education agency did not promulgate regulations for dealing with students who refuse to take standardized tests. The court denied the Barbers a temporary restraining order. The Barbers did not cite authority suggesting that a school's finding that a student committed insubordination—and its subsequent notation of such a finding on the student's academic record—constitutes irreparable harm. There was no allegation that the insubordination finding could not be later removed from the 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. Further, there is no constitutional right to participate in extra-curricular sporting activities.

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