(As a coalition of parents and teachers sues the DOE to stop the testing, this is a guest post by Diana Brogan, an attorney but currently stay-at-home mom of two elementary school students. She is PTA President and Executive Committee member of the District Presidents’ Council.)

Last Monday morning thousands of New York City public school parents felt sick to their stomachs as they made lunches, gathered up books and a clean mask to get their children off to school. It wasn’t fear of Covid causing the tightness in the chest though. No, these parents have been sending their children to school, on whatever limited and insufficient in-person basis, since October. Their trepidation from the risks posed by the virus largely lifted in the weeks that followed as schools proved to be among the safest places in the city. And yet the morning was full of angst and anger at the new condition for accessing in-person learning, i.e. mandatory consent to Covid testing of the children in school.

We know implicitly that the heart of consent is voluntariness. The moment you attach some consequence or a threat into the calculus, what you are procuring is not consent as it is now the product of coercion. Make the threat detrimental to the decider’s child and you are creating duress of the worst kind. And it is that duress weighing on the hearts of thousands of NYC public school parents each morning this week. Submit your “consent” to having your child Covid tested outside of your presence while they are at school or your child will be barred from in-person learning. Clearly anyone participating in blended learning believes that being in the classroom is beneficial to their children’s learning needs and often their social and emotional well-being. So the threat of denying their children the ability to attend school is not a trivial consequence. 

Before the mandate was issued during the last week when schools were abruptly closed for the second time, only a small percentage of parents had willingly signed and returned consent forms to the Department of Education (DOE). The message was loud and clear: WE DO NOT CONSENT. Any consent received post-threat should be deemed invalid as a matter of law because of this shameful threat.

On the most basic level, it is disturbing to parents that any medical procedure would be performed on their children outside of their presence. The care and control of one’s child is fundamental to parenthood. We don’t birth children to then be released in the general population. There is, rightly so, an extremely high burden for the state to override those rights even in cases of proved abuse and neglect. Pediatricians do not see children without their parents present for good reason.

The idea the child being tested without them is particularly concerning for parents of elementary school students who may be frightened or children of any age with sensory issues or disabilities whether officially diagnosed or not, but really should be offensive and alarming to all parents who are hopefully teaching their children that no one, NO ONE, at school, at soccer, at the park, at the doctor’s office, has the right to touch them without mom or dad there to watch over them. Schools especially should not be normalizing any message to the contrary. It doesn’t matter how invasive or not a procedure may end up being. You are conditioning children to submit their bodies to the request of a stranger without the watchful eye and observable consent of their parent or guardian. School-phobia is already a real condition and during these frightening times masked and socially-distanced children should not be saddled with any more of an anxiety load inside the school building. Telling parents that a child who resists will not be forced to undergo the testing is a joke. School is a place that operates under an ever-present requirement of compliance. The children know that and it is a farce to suggest that children will feel comfortable going against what is asked of them especially without the back-up of their guardian.

There is an intellectual dissonance to this policy and the response to it by so many in power. New York City, arguably home to one of the most liberal populations and elected officials in the world, is yawning at the requirement to submit a child to a medical procedure, one that collects biological material to boot, as a condition to accessing public education. While we’ve spent the last four years collectively steeling ourselves against the ever-lurking fascism of the Trump administration, those same self-avowed fascist-fighters in our local government are expecting us to line our children up for nasal swabs at the schoolhouse door. Then, when only 20% submitted to the request in truly voluntary fashion, they upped the ante by threatening to rob our children of in-person education if we choose not to relinquish our parental rights to them. Those speaking out find themselves marginalized by community and UFT members as “overprotective” or selfish pandemic-deniers while simultaneously being ignored by the mayor and school officials. 

From August, parents and teachers alike voiced concerns over one genetics research lab and incidentally one of the largest catalog holders of DNA in the country, Fulgent Genetics, that the DOE had partnered with. Requests for information on what exactly the data collection agreement between the parties contracted for were stonewalled for months. Finally in October, an agreement purporting to protect privacy and prohibit the collection of DNA and other biological information from testing samples was released on the DOE website. While the plain existence of the agreement did allay some fears, suspicions only rose if the date on said agreement happened to catch your eye. The document was entered into on October 3, 2020 and executed on October 13, 2020. That execution date is almost two weeks into the start of the testing program in schools. It is reasonable to assume no explicit privacy agreement was in place until teachers and parents began to demand one. No earlier version has been produced to date. I’m personally curious to see whether Fulgent Genetics continued to be a partner in this program once the uses of the collection were so limited. Is this a crazy conspiracy theory? Maybe. But the lack of transparency for months despite demands for information sure makes it easy to buy into. It seems perfectly logical that a genetics research company would be chomping at the bit for access to this treasure trove of biological samples. We still have not seen the general contracts for services outlining the amount of money that the city is paying to these companies, (or potentially vice versa for all we know), but have seen estimates upwards of $75.00 per test. All for a random testing regimen of asymptomatic students and staff that is not recommended by the CDC. Greased palms surely abound at the expense of the rights of 1.1 million public school students’ parents and guardians. How many iPads could this money have purchased for the over 60,000 students still without devices for remote learning?

We have a Chancellor whose entire philosophy and platform is that of equity. Ironically, he is at the helm of the worst burgeoning of the divide between the haves and the have-nots the city has ever seen. Those with means can always throw their hands up. They can successfully navigate remote learning or escape the public school system completely, as thousands have done prior to this mandate and more in the last week. But those without the means to leave, the social capital or even legal status to speak up against the system they depend on are held hostage to these abhorrent mandates with no recourse and no free choice. Parents of students with IEPs who already operate under fear of retribution from their schools and districts simply for advocating to get the services their children are entitled to are loath to speak up despite hating the idea of this testing but do not want yet another target on their backs.

It is particularly shameful that this scare tactic takes advantage of a public school population the DOE knows it can intimidate into compliance because they have no other feasible options. Talk about marginalization! Now, in New York City, your rights over your own child are dependent on whether you can afford private school. I have heard the argument that only privileged parents will have the time to exercise their right to take their own children for testing so to allow outside testing is inequitable and even racist. Well, if we even accept that proposition as true, the answer is not to fully restrict everyone’s rights, but drop the mandate all together. The default should always be the retention of rights for all. I would point out as well that families of color have a historically ingrained and justified distrust of government’s promises of ethics in the medical realm and there should not be an assumption that parents of any color to whom this issue is important would not do everything in their power to care for their children as they see fit when free to make those decisions. 

The fact is though, that none of the parents who have spoken up at recent CEC and safety meetings are anti-testing. They simply want the option to take their children for testing on their own. Lord knows we have the time with kids in school as little as one day a week in some cases. The city’s top doc, Jay Varma, has given no credible explanation as to why parents cannot take their own children for testing. The lame response of logistical difficulty does not satisfy the burden that must be met to justify intrusion of our rights. Interestingly, New York State guidance for Covid testing in schools explicitly allows that, “Schools can accept written test results from health care providers” and that students may “go to a test site run by New York State.” But at one point during the District 22 safety meeting called on an emergency basis to address parents concerns over the in school protocol on December 8th, Dr. Varma actually stated, “This is just how it has to be.” With all due respect, dear unelected doctor, in all this talk of consent, your agency may not be aware of the most important consent of all: Consent of the governed which goes to the very root of any authority you may have. So the way this works, Dr. Varma, is we, the governed, let you know what will and will not be acceptable to us.

And guess what? I’m not even just a complainer here. There are viable and reasonable options that could have been worked out months ago. I have a proposal for a compromise. Do away with the consent mandate. Allow parents a meaningful choice to opt in. 20% of those who do will be tested weekly. Those who do not consent must submit results every week to the school in order to attend school. It might even be required that students get tested at a site affiliated with the particular company that is conducting the testing at their school and a waiver could easily be created to allow the results to be shared directly with the DOE. DOE employees and students already get priority at sites around the city which are open seven days a week and there is no reason those results could not be coordinated. Best part is Dr. Varma will end up with even more data than the current plan would produce without completely trampling on parental rights.

I implore all parents, whether you are comfortable with in school testing or not, to stand up against this unethical coercion. It is in dangerous times such as these that we can be all too quick to relinquish control out of fear without demanding a thorough examination and justification of policy. What our leaders start to forget is that their justifications must satisfy us, not just themselves and their agency administrators. When it comes to our children, we need to speak up together and remind them.