“Test of the Test” NOT Mandated Despite NYSEDs Deception

*Please be advised that this piece was updated on 5/17/14 to include arguments regarding 8 NYCRR 100.3 & 100.4, NCLB, APA and other issues by Anna Shah, SOTHVNY  and is a collaboration between Anna Shah and Deborah Abramson Brooks of Port Washington, NY. This piece provides opinion, analysis and information designed to educate readers about field testing but is not to be construed as legal advice. Thanks for reading.





According to our research (confirmed by school lawyers and NYSED), there are no penalties for declining to particpate in the field test although NYSEDs Ken Slentz does send a very stern letter implying that the tests are required. Truth be told, the statute is silent on field tests, NYSED has admitted in writing that they are NOT mandated and there are no penalties for refusing to participate in what amounts to a voluntary “test of the test” program. Districts across the State may refuse the NYS field tests.


Mandates created by the federal government have placed a large emphasis on standardized testing in our public schools.  No Child Left Behind and Race to the Top were attempts to improve student performance and raise the quality of education in the US but critics argue whether these measures have been effective.

Under No Child Left Behind Act (NCLB)  schools are held accountable to the federal government to report test score data, and the government implements measures and sanctions to raise scores in repeatedly low-performing schools.  Priority has been redirected to math, reading, and writing – the most prominent areas on standardized tests. This measure gives the State Education Department authority to administer assessments. However, it is well settled that the Federal government cannot mandate education policy to the states.

“Please note that in the U.S., the federal role in education is limited. Because of the Tenth Amendment, most education policy is decided at the state and local levels”  says the US Department of Education. http://www2.ed.gov/policy/landing.jhtml

The imposition of national standards isn’t constitutional. Nothing in the U.S. Constitution authorizes the federal government to exercise any control over education, and this limitation is reinforced by a longstanding federal law that forbids the federal government “to mandate, direct, or control … school’s curriculum, program of instruction, or allocation of state or local resources.”

In fact, there is no provision for education in the Constitution. Education is a matter reserved to the States. So, technically, it would be impossible for States to claim that districts are “mandated” to comply with federal regulations absent State imposed education related regulations in schools.

NYSED Field Tests Are Not Mandated, There is No Regulation to Support Requiring Field Tests Involuntarily and Without Informed Consent 

In New York,  students across the State are expected to take the field tests, in an effort to help develop a national exam modeled on the new standards, known as the Common Core. But these tests are not without controversy.

According to this NY Times piece, one can only conclude that students are being used and abused by NYSED as “test dummies” forcefully subjected to field testing without informed consent.

Field test results have no consequences for students or teachers, but that has not placated parents and testing skeptics, who say they turn classrooms into focus groups and add more stress to a process that is already filled with anxiety.


Many school districts are under the mistaken impression that they must administer the field test and that students must take them.

NYSED encourages districts to misleads students about their point and purpose.

A memo surfaced in which the New York State Department of Education appears to encourage educators to mislead students about upcoming standardized field tests meant to “provide the data necessary to ensure the validity and reliability of the New York State Testing program.”

“Students should not be informed of the connection between these field tests and State assessments,” the memo reads. “The field tests should be described as brief tests of achievement in the subject.”

Read the memo here:


My own school district recently sent home letters indicating that our students had been assigned to field test with the claim that they had been “mandated by the State education Department to participate in Regents field testing.”

Mandatory field testing?

But how can that be?

According to NYSEDs October 2013 PPT Update on Assessments, Federal law requires the following assessments:
o Grades 3-8 English Language Arts (ELA) & Mathematics
o At least one Science exam in Grades 3-5, 6-9, and 10- 12;
o At least one High School ELA and Mathematics exam;
o Additional assessments for English Language Learners;
o Alternate assessments for students with severe

There are only two required State tests that are not federal
o Regents Exam in US History & Government;
o Regents Exam in Global History & Geography

Most other State and local tests are optional, according to NYSED.

Indeed, field tests are not even discussed.

At the outset, NYSED has not provided any basis or authority on which they have the right or power to subject students to field tests particularly when they do not count and without informed consent.

As mentioned above, matters of education are left up to the State. NCLB cannot and does not mandate field testing in schools.

So on what authority does NYSED impose field testing on students and districts across the State and can NYSED require districts administer field tests involuntarily?

The question has plagued parents across the State hoping, but not being able to prove, that field testing is NOT mandated in NYS and that students and districts have the right to refuse them.

That question has not been settled. Until now.

In fact, field tests are NOT mandated and participating in the program is completely voluntary!

Settling this dispute is an admission by NYSED….proof that districts have been mislead to believe that field tests are mandatory when, in fact, they are not.

In  2011 NYSED awarded Pearson a $32.1 million dollar contract to develop the state’s assessmentsin Grades 3 through 11 in English language arts and for Grades 3 through 8in mathematics. A copy of the contract is here:


The contract stipulated that NYSED paid Pearson to develop assessments  in the form of  embedded and stand alone field testing which NYSED, in turn, administered to NYS students State wide.

According to the NYSED-Pearson contract, the proposed field testing cost for the ELA field tests in 2011 alone was $3,199,950.This amount includes the need to obtain passages for the field tests, conduct passage and item reviews, develop field test forms, field test forms and ship to schools, administer the  field test, and score the field test. A technical report on the field test cost NYSED an additional sum.

I examined all 200+ pages but found nothing to suggest that there is a mandate for schools to submit to field testing from looking at this document or that field testing is mandatory.

I also perused NYSED regulations online including 8 NYCRR 100.3 and 100.4 pertaining K-12 academic programs. There have been no regulations or authority cited that I can find mandating field testing in NYS.

The only references I can find on field testing is that it is based on an agreement between NYSED and Pearson the specifications of which are negotiated on contract between NYSED and Pearson for deliverables and specs.

In the interest of looking further into the matter, I examined and did a review of the original request for proposals (RFP) from the State Education Department  which revealed a highly detailed RFP that outlined requested services, including field testing,  and provided a Q&A for vendors to clarify issues.  See RFP page here:


It is in this memo, that I found a most startling revelation: an admission from NYSED that field tests are NOT mandatory, contrary to what my own district and many others across the State seem to believe.

See Q&A here: http://p1232.nysed.gov/compcontracts/10-021/qa.pdf

Specifically, I found:

42. Page 18, #9: Based on NYSED’s past experience, how much oversampling is required to achieve the target of 2,000 answer papers? The statement “field test participation in NYS is not mandated” seems contradicted by the statement on page 20 that schools “will be required to participate.” Does it mean, then, that individual students, classes of students, or whole schools can voluntarily opt out of field testing?

Answer: Selected schools are required, but not mandated, to participate in field testing. Actual participation rates tend to be about 70%.

Lets read that again.

Schools are required, but not mandated, to participate in field testing. In other words, the program is voluntary.

Here is the language from the ACTUAL RFP:

RFP #10-021 Title: Development of State Assessments in Elementary, Intermediate (Middle), and High School Level English Language Arts (ELA) and Elementary and Intermediate (Middle) Level Mathematics “For the stand alone field tests, the vendor must: 9. Collect a minimum of 2,000 usable field test answer papers per field test form. Since field test participation in NYS is not mandated, the vendor must oversample in order to achieve the target of 2,000 answer papers written for each field test form.” http://www.p12.nysed.gov/compcontracts/10021/home.html#FieldTesting

Slow motion – Since field test participation is not mandated, the vendor must oversample.

In other words, I take that to mean – NYSED can strongly ask districts to particpate, but NYSED cant force them to administer the tests nor can they force students to take the field test AND NYSED intends to test a heck of alot more kids than are actually needed for reliability purposes in order to compensate for the fact that the program is voluntary and schools can refuse.

NYSED requires Pearson to over sample – meaning SUBJECT ALOT MORE KIDS TO TESTING THAN IS NECESSARY.

In search of further answers, I found the language in the RFP that was discussed in the Q&A raising a question about field testing being “mandatory vs. required”:

“Field Test Sample Design
A stratified random sampling design will be used for the stand alone field tests. All public, nonpublic, and charter schools with Grades 3–11 enrollment WILL BE REQUIRED TO PARTICIPATE in the annual field tests. Each school will be asked to administer mini field test forms in only one grade.

A five-year field test schedule is designed to accommodate all New York State elementary and intermediate school field tests in 2010–11 through 2014–15 school year (see Matrix in Attachment H). The Matrix contains 10 pre-selected elementary school samples (ES1 to ES10) and eight Intermediate school samples (MS1 to MS8). NYSED will be revising the high school field test matrix to accommodate the Grades 3–11 ELA Tests. Every school with Grades 3–11 enrollment will be assigned to one field test sample but not more than one sample. All samples represent stratified random samples that are representative of New York State schools. Schools that are assigned to the field test samples (called strands) will remain in the same strands for the duration of the five-year field test schedule. However, their field test assignments will be rotated from year to year. The vendor may select a subsample from each strand depending on the field test needs.

NYSED will provide the vendor with a complete list of New York State schools and related demographic variables for sample selection. The vendor is responsible for selecting the stratified random samples. Vendor must ensure that all samples are representative of the New York State schools with regard to number of schools and students N counts by grade, distribution across the Need/Resource Capacity Categories (for more information see page 100 of the 655 Report found at http://www.p12.nysed.gov/irts/chapter655/2006/volume1.pdf), ethnic composition, school type, and mean scale scores in Grades 3–11 ELA and Grades 3–8 Mathematics Tests. The sample file must be submitted to NYSED for review and approval.” (from same link as above, my emphasis added.)

and in another part of the RFP that the field tests are voluntary can be seen here:

“Notify the selected schools in writing of the field tests. The SOLICITATION by the vendor must be explicit as to the grade levels and subject for which the school is ASKED to participate and must be approved by NYSED.
Send written notification to schools selected for field test participation that have failed to submit their enrollments for participation at least two weeks prior to the established deadline for responding to field test solicitation.
Provide all SCHOOLS THAT RESPOND AFFIRMATIVELY to the field test SOLICITATION with the appropriate quantities of field test materials for that grade(s) and subject even if it appears to the vendor that more than the target number of answer papers will be achieved.”


Solicit? Ask?  Participate? Respond affirmatively?

These terms hardly seem to support the claim that field tests are “mandated” or “required” to me. What regulation supports this purported “mandate” I wonder?

Mandatory is NOT the same as “required” is it? So, can NYSED forcefully impose these field tests on districts at the expense of our students?

NYSED Has No Legal Authority to Mandate Field Tests

Does NYSED have the legal authority to “require” our school districts to administer stand-alone field tests, during public school hours, using our children as test subjects?

My district asked NYSED to provide the basis for field testing in NYS. Here is what they were told:

Dear Redacted Curriculum Director,

Thank you for your inquiry concerning the requirement that schools participate in the field testing component of the New York State Testing Program.

In accordance with the federal requirements and Sections 100.3 and 100.4 of the Commissioner?s regulations, the Department requires that all students in public and charter schools in Grades 3?8 must take all state assessments administered for their grade level. State testing is considered an important part of instruction in education programs. It provides an evaluation of student mastery of content and skills in various courses of study and helps shape future instruction.

Tests are considered part of a ?course of study? under a board?s authority and, as noted above, are included as part of the program requirements for students in Grades 3?8 under Sections 100.3(b)(2) and 100.4(b)(2)&(e) of the Regulations of the Commissioner of Education. In order to ensure the validity and reliability of the New York State operational tests, field testing is a crucial part of the test development process.

All schools that administer State operational tests are also required to administer the field tests associated with them. For further discussion of this matter please see the January 2013 memorandum, Information on Student Participation in State Assessments.

Thank you for your cooperation in helping to ensure the fairness and validity of the New York State Testing Program and the fair and equitable distribution of field responsibilities to schools across the State.


Steven Katz

Director Office of State Assessment

As to Mr. Steven Katz’s memo, dated January 2013, outlining NYSED’s position regarding the mandatory state assessments, please  see here:


What you may not have noticed is that Mr. Katz addresses field testing in that memo, as well. In the first portion of his memo, Mr. Katz devotes three paragraphs citing to federal law and state regulations that mandate the universally-given NYS grades 3-8 assessments.

Mr. Katz then says only the following regarding the field tests: “Further, in order to ensure the validity and reliability of the New York State operational tests, field testing is a crucial part of the test development process. All schools that administer State operational tests are also required to administer the field tests associated with them.” Mr. Katz provided correct citation to the federal and state laws that support the mandated state assessments, yet he did not provide any citation to support NYSED’s assertion that the districts are “required” to administer stand-alone field tests.

A bald assertion by NYSED that a district is required to administer stand-alone field tests using our children as test subjects during public school hours is not force of law and should not be accepted as such. Accordingly, a bald assertion should give one pause to question what law does, in fact, give NYSED that authority — or if any such law even exists.

One would imagine that, without the support of appropriate law behind it, NYSED cannot force a district to administer this stand-alone field testing.

In fact, without the support of appropriate law behind it, one would imagine that NYSED’s requirement just might put NYSED afoul of the law.

In other words, in order for NYSED to be able to force a district to administer stand-alone field testing using our children as test subjects during public school hours — or be able to issue sanctions against those that do not — doesn’t there need to be a law that, correctly cited and applied, supports NYSED’s demand?

Doesn’t NYSED need to provide valid legal support for this stated requirement?

Citation to just any assessment-related statute or regulation is insufficient. Yet, this seems to be the route NYSED is taking.

School districts are urged to ask NYSED to provide the law that supports its requirement that school districts administer stand-alone field testing using our children as test subjects during public school hours, and then to ask their school district’s attorney, in turn, to review that law to see if, indeed, such purported law was properly applicable to the instant matter.

In communications with NYSED by a NYS school official, NYSED attempted to support its “districts are required to administer stand-alone field testing during public school hours” assertion by broadly citing to Commissioners regulations 8 NYCRR sections 100.3 and 100.4.

After review and research of the Commissioner’s regulations (which relate to the actual state assessments, instruction, and units of study), others have found absolutely no language therein that gives NYSED the authority to mandate administration of stand-alone field tests using our children as test subjects during public school hours.

In fact, field testing isn’t even remotely mentioned in those regulations, and no one could construe field tests as being the functional equivalent of the actual mandated state assessments, or as part of any instructional program or unit of study.

The regulations to which NYSED cited are very broad and contain a lot of language that has nothing to do with field testing. NYSED’s blanket and vague citation to the entirety of 8 NYCRR sections 100.3, and 100.4, are illustrative of the fact that it is unable to point to any specific language therein to support its claim.

8 NYCRR sections 100.3, and 100.4, while addressing administration of the actual state assessments themselves for grades 3-4, and 5-6 and 7-8, respectively, as well as mandatory instruction and units of study for those grades, is completely silent regarding field testing, with no mention or even a hint of field testing.

NYSED is interjecting into these regulations an onus on school districts that simply is not there — simply does not exist — and, in so doing, is improperly using these regulations to support its assertion that districts are required to administer stand-alone field testing.

In effect, NYSED is unable to point to any regulation that validly supports its assertion.

As far as No Child Left Behind is concerned, there is specific law within that enormous statutory scheme regarding administration of the actual state assessments; yet, despite is volume, NCLB is silent with respect to stand-alone field testing.

It goes without saying that stand-alone “no stakes” field testing is not synonymous with high-stakes mandated state assessments. So, although No Child Left Behind mandates the grades 3-8 state assessments, there is nothing in that very cumbersome statutory scheme,

1) that requires (or allows) a state education agency to use select children in select grades in select schools in select districts in select counties, etc., during public school hours, for the purpose of administering stand-alone “no stakes” experimental field tests,

2) that gives a state educational agency the legal right to force school districts to administer stand-alone experimental “no stakes” field tests during public school hours to select children in select grades in select schools in select districts in select counties, etc., or

3) that itself requires school districts to administer such stand-alone “no stakes” experimental field tests — as a pre-condition for receiving federal money.

Moreover, given that the stand-alone field tests are given only to select children in select grades in select schools in select districts, etc., during public school hours, using children as unpaid test subjects, there does not seem to be a correlation, within NCLB, between the state assessments — which are clearly delineated — and field testing — for which the scheme is silent. Indeed, given that accommodations, i.e., for children with an IEP, 504 status, etc., are not available during field testing, it seems doubtful that stand-alone field testing during public school hours, involving select children in select grades in select schools in select districts, etc., with no accommodations, etc., can legally be part of any federal or state scheme. How could such “purposeful exclusion” be tolerated under any federal — or state — mandatory scheme when, clearly, it is discriminatory and exclusionary in nature?

In addition, how could NYSED assert that stand-alone “no stakes” field testing constitutes either instruction or a “unit of study” when it is not uniformly administered across each grade level, across all schools, across all districts, across all counties, including all children, etc., does not count toward a grade on a report card, or placement decision, or promotion, etc., is never seen or graded by the teachers, and might involve material a child has never studied or a teacher has never taught? Indeed, given that accommodations are not provided during field testing, there will be students in any given class who do not sit for the field tests. How, then, is that an acceptable “unit of study,” or instruction? It can not masquerade as such.

And, while proper field testing is, as Mr. Katz wrote in his memo, “a crucial part of the test development process” in order to ensure a valid test (although it is clear that recent field testing has not accomplished this), the fact remains that there is no credible law requiring a district to administer stand-alone experimental field testing during public school hours using school children as experiment subjects. Isn’t proper test development the responsibility of Pearson and NYSED… not that of the districts, or of the children who should be receiving proper instruction within that district?

NYSED has yet to provide credible, valid, legal support for its “mandate.” Is it possible that districts are upholding a law that NYSED seeks to distort and misapply to the circumstance at hand to suit its needs? Is it possible that districts are upholding a directive from NYSED that is devoid of credible legal support? NYSED asserting that the instant stand-alone field testing is “required”

1) based on statutes and/or regulations that are wholly silent with respect to stand-alone field testing using our children during public school hours, and

2) based on statutes and/or regulations that are being improperly cited and applied, does not rise to a legal mandate.

In essence, NYSEDs more specific citation to 8 NYCRR 100.4(b)(2), etc., does not help provide the basis or mandate for filed tests. A field test is not an “assessment.” It is a test of a test, does not count, measures nothing and lacks informed consent due to its deceptive and involuntary administration.

In the same vein as NYSED wants to argue that there is no mechanism to “opt out” in NYS it stands to reason that there is no mechanism for NYSED to “require field tests” particularly involuntarily and without informed consent.

Moreover, the Regents are presently taking steps to reduce assessments so requiring field tests runs against the purpose and intent of that directive.

Particpation in field testing is not mandatory, NYSED cannot impose this on schools. In fact,  the program is entirely voluntary.

In fact, in Ohio, field testing is voluntary.


In California, legislation was passed that provides for field tests. http://www.cde.ca.gov/ta/tg/sa/ab484qa.asp

There is no such legislation in NY.

That supports the legal view that NCLB does NOT mandate field testing. It is certainly prudent — if done properly — but not mandatory.

Yet, NYSED has mislead the public to believe that field tests are mandated by the State. My own district wrote that in a letter to parents!

How can a district claim that field tests are mandated when NYSED expressly admits that they are not?

While it is the expectation of the State Education Department that districts participate in field testing they assign, there is no specific statute or regulation that requires it.

Indeed, some districts have refused to participate without experiencing any repercussions from the State.

NYSED has not been forthcoming with the public about this information nor have they been transparent nor do they care about student rights. Field tests are not mandated.

APA Standards, NYSED Deception and Informed Consent Concerns Surrounding Field Testing

The NYSED Pearson contract requires Pearson to meet APA Testing Standards in designing and implementing the test.


The Joint Committee on Testing Practices, a group of psychologists and educators from several professional associations, including APA, released guidelines delineating the rights and responsibilities of test-takers which includes schools and industry.  The NYSED Pearson contract speifically requires that the test meet the APA Guidelines. So, how does NYSED Pearson imposing field tests and the deception surrounding it not violate APA testing standards?

In the Huff Post memo above, did NYSED not specifically encourage districts to decieve students about the test?

According to the new guidelines, rights of test-takers include the right to:

Be treated with courtesy, respect and impartiality.

Be tested with measures that meet professional standards and to have test results interpreted by an appropriately trained professional. Understand the purpose and uses of the test.

Inquire about accommodations for disabilities or difficulties comprehending the language of the test.

Know in advance the time, location and cost of testing and receive a timely and understandable explanation of test results.

Be informed of the consequences of not taking, not fully completing or canceling the scores of a test.

Have test results kept confidential to the extent allowed by law. Present concerns about the testing process and be informed of how those concerns will be addressed.

Here are the APA Rights and Responsibilities of Test Takers http://www.apa.org/science/programs/testing/rights.aspx

The Code of Fair Testing Practices in Education (Code) is a guide for professionals in fulfilling their obligation to provide and use tests that are fair to all test takers regardless of age, gender, disability, race, ethnicity, national origin, religion, sexual orientation, linguistic background, or other personal characteristics.

The Code applies broadly to testing in education (admissions, educational assessment, educational diagnosis, and student placement) regardless of the mode of presentation, so it is relevant to conventional paper-and-pencil tests, computer based tests, and performance tests.

Test Developers Test Users 
Test developers should provide the information and supporting evidence that test users need to select appropriate tests. Test users should select tests that meet the intended purpose and that are appropriate for the intended test takers.
A-1. Provide evidence of what the test measures, the recommended uses, the intended test takers, and the strengths and limitations of the test, including the level of precision of the test scores. A-1. Define the purpose for testing, the content and skills to be tested, and the intended test takers. Select and use the most appropriate test based on a thorough review of available information.
A-2. Describe how the content and skills to be tested were selected and how the tests were developed. A-2. Review and select tests based on the appropriateness of test content, skills tested, and content coverage for the intended purpose of testing.
A-3. Communicate information about a test’s characteristics at a level of detail appropriate to the intended test users. A-3. Review materials provided by test developers and select tests for which clear, accurate, and complete information is provided.
A-4. Provide guidance on the levels of skills, knowledge, and training necessary for appropriate review, selection, and administration of tests. A-4. Select tests through a process that includes persons with appropriate knowledge, skills, and training.
A-5. Provide evidence that the technical quality, including reliability and validity, of the test meets its intended purposes. A-5. Evaluate evidence of the technical quality of the test provided by the test developer and any independent reviewers.
A-6. Provide to qualified test users representative samples of test questions or practice tests, directions, answer sheets, manuals, and score reports. A-6. Evaluate representative samples of test questions or practice tests, directions, answer sheets, manuals, and score reports before selecting a test.
A-7. Avoid potentially offensive content or language when developing test questions and related materials. A-7. Evaluate procedures and materials used by test developers, as well as the resulting test, to ensure that potentially offensive content or language is avoided.
A-8. Make appropriately modified forms of tests or administration procedures available for test takers with disabilities who need special accommodations. A-8. Select tests with appropriately modified forms or administration procedures for test takers with disabilities who need special accommodations.
A-9. Obtain and provide evidence on the performance of test takers of diverse subgroups, making significant efforts to obtain sample sizes that are adequate for subgroup analyses. Evaluate the evidence to ensure that differences in performance are related to the skills being assessed. A-9. Evaluate the available evidence on the performance of test takers of diverse subgroups. Determine to the extent feasible which performance differences may have been caused by factors unrelated to the skills being assessed.

B. Administering and Scoring Tests

Test Developers Test Users
Test developers should explain how to administer and score tests correctly and fairly. Test users should administer and score tests correctly and fairly.
B-1. Provide clear descriptions of detailed procedures for administering tests in a standardized manner. B-1. Follow established procedures for administering tests in a standardized manner.
B-2. Provide guidelines on reasonable procedures for assessing persons with disabilities who need special accommodations or those with diverse linguistic backgrounds. B-2. Provide and document appropriate procedures for test takers with disabilities who need special accommodations or those with diverse linguistic backgrounds. Some accommodations may be required by law or regulation.
B-3. Provide information to test takers or test users on test question formats and procedures for answering test questions, including information on the use of any needed materials and equipment. B-3. Provide test takers with an opportunity to become familiar with test question formats and any materials or equipment that may be used during testing.
B-4. Establish and implement procedures to ensure the security of testing materials during all phases of test development, administration, scoring, and reporting. B-4. Protect the security of test materials, including respecting copyrights and eliminating opportunities for test takers to obtain scores by fraudulent means.
B-5. Provide procedures, materials and guidelines for scoring the tests, and for monitoring the accuracy of the scoring process. If scoring the test is the responsibility of the test developer, provide adequate training for scorers. B-5. If test scoring is the responsibility of the test user, provide adequate training to scorers and ensure and monitor the accuracy of the scoring process.
B-6. Correct errors that affect the interpretation of the scores and communicate the corrected results promptly. B-6. Correct errors that affect the interpretation of the scores and communicate the corrected results promptly.
B-7. Develop and implement procedures for ensuring the confidentiality of scores. B-7. Develop and implement procedures for ensuring the confidentiality of scores.

C. Reporting and Interpreting Test Results

Test Developers Test Users
Test developers should report test results accurately and provide information to help test users interpret test results correctly. Test users should report and interpret test results accurately and clearly.
C-1. Provide information to support recommended interpretations of the results, including the nature of the content, norms or comparison groups, and other technical evidence. Advise test users of the benefits and limitations of test results and their interpretation. Warn against assigning greater precision than is warranted. C-1. Interpret the meaning of the test results, taking into account the nature of the content, norms or comparison groups, other technical evidence, and benefits and limitations of test results.
C-2. Provide guidance regarding the interpretations of results for tests administered with modifications. Inform test users of potential problems in interpreting test results when tests or test administration procedures are modified. C-2. Interpret test results from modified test or test administration procedures in view of the impact those modifications may have had on test results.
C-3. Specify appropriate uses of test results and warn test users of potential misuses. C-3. Avoid using tests for purposes other than those recommended by the test developer unless there is evidence to support the intended use or interpretation.
C-4. When test developers set standards, provide the rationale, procedures, and evidence for setting performance standards or passing scores. Avoid using stigmatizing labels. C-4. Review the procedures for setting performance standards or passing scores. Avoid using stigmatizing labels.
C-5. Encourage test users to base decisions about test takers on multiple sources of appropriate information, not on a single test score. C-5. Avoid using a single test score as the sole determinant of decisions about test takers. Interpret test scores in conjunction with other information about individuals.
C-6. Provide information to enable test users to accurately interpret and report test results for groups of test takers, including information about who were and who were not included in the different groups being compared, and information about factors that might influence the interpretation of results. C-6. State the intended interpretation and use of test results for groups of test takers. Avoid grouping test results for purposes not specifically recommended by the test developer unless evidence is obtained to support the intended use. Report procedures that were followed in determining who were and who were not included in the groups being compared and describe factors that might influence the interpretation of results.
C-7. Provide test results in a timely fashion and in a manner that is understood by the test taker. C-7. Communicate test results in a timely fashion and in a manner that is understood by the test taker.
C-8. Provide guidance to test users about how to monitor the extent to which the test is fulfilling its intended purposes. C-8. Develop and implement procedures for monitoring test use, including consistency with the intended purposes of the test.

D. Informing Test Takers

Test developers or test users should inform test takers about the nature of the test, test taker rights and responsibilities, the appropriate use of scores, and procedures for resolving challenges to scores.1. Inform test takers in advance of the test administration about the coverage of the test, the types of question formats, the directions, and appropriate test-taking strategies. Make such information available to all test takers.2. When a test is optional, provide test takers or their parents/guardians with information to help them judge whether a test should be taken—including indications of any consequences that may result from not taking the test (e.g., not being eligible to compete for a particular scholarship) —and whether there is an available alternative to the test.3. Provide test takers or their parents/guardians with information about rights test takers may have to obtain copies of tests and completed answer sheets, to retake tests, to have tests rescored, or to have scores declared invalid.4. Provide test takers or their parents/guardians with information about responsibilities test takers have, such as being aware of the intended purpose and uses of the test, performing at capacity, following directions, and not disclosing test items or interfering with other test takers.5. Inform test takers or their parents/guardians how long scores will be kept on file and indicate to whom, under what circumstances, and in what manner test scores and related information will or will not be released. Protect test scores from unauthorized release and access.6. Describe procedures for investigating and resolving circumstances that might result in canceling or withholding scores, such as failure to adhere to specified testing procedures.7. Describe procedures that test takers, parents/guardians, and other interested parties may use to obtain more information about the test, register complaints, and have problems resolved.


As you can plainly see, the APA guidelines that NYSED Pearson contracts must follow provides students and parents with rights and these rights apply to administrtaion of the test, implementation and assessments in schools. NYSED has not been following this practice, however.

As criticism mounts over the use of New York students in the development of Pearson tests, one past New York City mayoral candidate Christine Quinn has said children should be compensated for their time if they are essentially working for a private company.

Paying students would cost state taxpayers more money, said Ken Wagner, associate commissioner for curriculum, assessment and educational technology.

He said the tests are owned by the state and Pearson does not profit from them. He said the tests are an essential way to make sure other test questions are good enough to be counted.

“There’s no corporate conspiracy or child labor controversy, it all stays in New York,” he said.


So, whose fault is it? NYSED or Pearson’s?

Subjecting students to field tests like guinea pigs without pay and without consent is NYSEDs fault because NYSED crafted the contract that way and insists on this arrangement, says Pearson.

Parents at dozens of schools in New York City are upset about a new round of testing their children are involved in — an exam that doesn’t count but is used to try out questions for future tests.

They’re mad at the publisher of the exams — Pearson PLC — and Thursday held a protest outside the company’s Midtown offices. But the man in charge of Pearson’s testing division, in an interview with Metropolis that has been lightly edited for publication, says parents should turn their focus to New York State, which determines the schedule and development process for the tests. A spokesman for the New York state Education Department agreed.

Doug Kubach, head of assessment and information at Pearson, said parents shouldn’t worry so much about testing, which is a routine way that teachers and parents themselves evaluate kids’ needs. He explains what Pearson is doing in New York state over the next few weeks — and why.

Wall Street Journal: Tell me about what’s going on in New York this week and next.

This week, there’s field testing going on where we’re trying out new content that the state will be using on next year’s test. The new content is aligned to the Common Core, which are the new standards that New York is adopting.

WSJ: Why are the tests on a separate day, instead of incorporated into previous tests?

In New York, it’s a little different than in other states that we work with. In most other states, we control the whole production process, including the printing or the online delivery of tests. New York has a printing press in the Department of Education where they’re printing all the tests through the state printing office. The limitations of that process limit the amount of content that can be tried out during the live administrations. That is a big limitation, and it’s the reason why there has to be a separate field test.

WSJ: What’s the limitation of how many questions you can embed without making the tests too long?

Let’s say that there is a 50-item test that you want to give, and you determine that any individual kid can take an additional five or six items, and still it wouldn’t be too long. If you wanted to try out, say, 500 items, you then need to create 10 different versions of the test, and try out on each of those different versions, five or six field test questions. Those would be randomly distributed throughout the state, because you don’t need every kid to try out every question, you just need a sample. But the New York state printing press can only print four different forms, so they’re very limited in the amount of content that can be tried out.

WSJ: Are the questions that are being field tested in the next few weeks going to be used only on future New York tests, or also on tests Pearson creates for other states?

Only on New York tests. It’s important to note that all of this work we’re doing is building New York tests, which the state of New York owns. We have no ownership of the tests at all.

WSJ: A lot of parents question why Pearson is using kids — their words — to take these field tests, which are taking away instructional time in the classroom. Some parents have brought up the issue of compensation, and they’re saying that you’re using these kids as research subjects without permission. Can you address that?

Sure. We’re not driving the field testing. These are New York state’s field tests. It’s not Pearson’s field test. We’re hired as a services provider to help New York state implement their field tests. The purpose of field test is to get feedback on the content itself and the items themselves, so that the tests next spring can be as valid and reliable as they possibly can.

WSJ: Aren’t you making the decision about what kinds of testing you need to do in order to make your tests valid and reliable?

Well, the work that we do is done in collaboration and in concert with the New York state Education Department. So we are helping them develop the specifications, but we’re doing it with them, collaboratively. But they are ultimately making the decisions about the test, because it is their test. It is not Pearson’s test.

WSJ: So if someone says you should get our permission, we should be compensated, you’re saying, well you should ask New York state that question.

I think that’s correct. The issue of whether someone gives permission for their child to participate in the field test, that’s a local issue, and it is an issue that should be addressed with the state Department of Education.

WSJ: A lot of parents are saying they’re going to pull their kids from these tests. How much does that affect the statistical validity of testing out these questions?

Every kid doesn’t have to take every item that’s being field tested. We just need a representative sample across the state to see how kids from across the state are performing. It’s not an issue if, here and there, there are kids that are absent or don’t participate.

WSJ: What would you say to parents who are concerned about their kids taking this test?

We certainly understand that parents are concerned about their children. As a parent, I have three children who have gone through public schools. I understand that concern. We think that parents are an important part of the process. I think also if you step back and look at it objectively, parents measure their children from the time they’re born throughout their life, to make sure they’re developing appropriately, to make sure that they understand strengths and weaknesses of their children, understand where their children might need extra help. Standardized testing is simply that. It’s a part of that process. It’s a tool that parents, students and teachers can use to better understand strengths and weaknesses, and better understand where they might need extra help.

WSJ: Can you address the pineapple issue, the pineapple question?
I’m not going to comment on that.


Students have the right to refuse the field test. Districts have the right to refuse to administer them.

The RFP is valid until the contract expires in 2015… and the same language was used in the most recent 2013 RFP for the English as a Second Language Achievement Tests demonstrating that the provision is still sound. See page 25, #5. http://www.p12.nysed.gov/comp…/13-026/nysed-rfp-13-026.pdf

As of the date of this writing,  I have found no legal authority that mandates field testing nor has NYSED provided a adequate authority to back up their claim that students are required to submit to field testing particularly since there is no consent.

Advocacy organizations are encouraging refusals of the field tests for various sound reasons.

Field Test Concerns and Controversy

Fred Smith is a leading testing expert in New York who has been advising parent organizations about their rights and explaining the technicalities of the tests to laymen. He testified before the Senate providing great details against field testing and assessments last Fall which testimony is right here:

According to Fred Smith, field testing raises legal and ethical questions about forcing children to serve as subjects for commercial research purposes without their parents’ knowledge and informed consent. The State Education Department has cited no legal authority empowering it to do so.

He summarizes some of his reasons against field testing here:

There is more info from Fred Smith here that you need to read:

In this memo sent to districts, NYSED underscores the fact that Field tests are meant to be voluntary by thanking schools for participating in the program. “We very much appreciate your participation” they write.

Letter KG

Gee NYSED, thanks.

Again, the letters sent home from my district, like those sent home across the State, paint a very different tone and picture about the field tests.

Field test ltr


“We are mandated by the State education Department to participate in Regents field testing. Schools are required to participate in this process to ensure that the field tests are administered to a representative sample of students from across New York State” the letter reads.

Mandated? Well, thats strange. Because NYSED expressly admits that they are NOT mandated.

NYSEDs assertion that field tests are “required” because it is a component of the NYS Testing Program misleads the public into believing that the field tests are mandatory, not voluntary, and this practice has been utterly egregious and deceptive.

Enough is enough.

In my district, I served on the Resolution Committee which included parents and educators. Recognizing that excessive testing has become a problem, the BOE passed this Resolution against HST, among other things, but which included a challenge to excessive testing more specifically objecting to FIELD TESTS.

That piece reads:

WHEREAS, the administration of multiple and lengthy standardized tests do not improve learning, have negative effects on students, test stamina rather than knowledge, undermine educational quality by hampering educators’ creativity, and dominate instruction to the detriment of the students and the teachers; and

WHEREAS, standardized tests fail to appropriately accommodate the unique needs of students with disabilities and English language learners in assessing their learning; and

WHEREAS, the focus in the classroom should be on student centered learning toward deep and meaningful understanding, which cannot be solely measured by standardized tests; and

WHEREAS, standalone field tests result in unnecessary and increased testing for our students, and test items embedded into required assessments further increase test length with no added value to student learning and so should be abolished; and

WHEREAS, the state and federal government’s accountability system’s over reliance on standardized testing as the only meaningful measurement of school quality continues to fiscally strangle public schools and undermines educators’ abilities to transform a traditional system of schooling into a broad range of learning experiences that better prepares our students to live successfully and be globally competitive.

In the spirit and intent of that resolution, my district should choose to refuse the field tests because the program is NOT mandated and is entirely voluntary.

Your district should consider boycotting them too.

That districts are “mandated to administer field tests in NYS schools” flies in the face of the law and the evidence.

NYSED does not have authority to require districts or schools to participate field testing  – this is supposed to be voluntary program despite NYSEDs deception in leading the public to believe that field tests are required. The Federal government does not and cannot mandate field testing either.

So, to settle the question once and for all, the evidence shows that field tests are NOT mandated, students do NOT have to take them and districts are not mandated to administer them.

One Superintendent has taken the bold step of refusing the field test.

With the full support and approval of the Board of Education, Comswego Superintendent Dr. Joe Rella contacted State Ed. last Friday and informed them that they would not be administering any of the field tests this year.

He faxed a letter to the Assistant Commissioner of the Office of State Assessment notifying her of their decision. He also requested that if there was any regulation prohibiting him from doing this, that he be provided the regulation as soon as possible.

Having heard nothing from State Ed., he called the Assistant Commissioner’s office to make sure that she had received the letter and this was confirmed.

According to Dr. Rella, he has not received any regulation prohibiting him from refusing the field tests.

A copy of Dr. Rella’s letter to the Assistant Commissioner is below.


Taking his lead, you can boycott the field tests and ask your district to refuse to administer them.

As set forth above, there is sound basis to support a boycott of field tests particularly in light of NYSEDs deception and forceful imposition of these involuntary, abusive tests.

My district chose to decline field tests for grades 4 & 8. Here is their letter:

Screen shot 2014-05-22 at 10.15.45 AM

The following districts are sending the field tests back to NYSED opting to assert their right to decline participation in this voluntary program by saying “thanks, but no thanks”:

Updated Every Few Days:

As of 5/21/14

West Irondequoit
HFL(most likely not to administer)
Great Neck
Bellmore/Merrick CHSD
Mount Sanai
Merrick (5/14/14)
North Bellmore

Shoreham-Wading River

Rye Neck

White Plains

Spackenkill (5/19/14 will decline to participate in field tests in grades 4&8, will administer HS ones)

Ossining School District is opting out of the NYS Field Tests for 4th, 5th and 8th grades. The time will be used for instruction. Learning will take place for those hours.

Join us in boycotting and refusing the field tests!







9 thoughts on ““Test of the Test” NOT Mandated Despite NYSEDs Deception

    1. Dr. Rella, you may not realize your “super”star status beyond your district, but your consistent contributions in this battle reaches to the corners of NYS and are very well respected. Wishing you continued success and thank you for stepping up and out to help our children.

  1. Reblogged this on Jolyn's Education Corner and commented:
    This post is long but fully explains that students are NOT mandates to take the upcoming New York State field tests in science, math and ELA. Parents should refuse the field tests! Some school districts (superintendents and boards of education) are even refusing to administer the field tests!

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