1. Florida

Appeals court overturns Leon County judge ruling on Florida third-grade retention law

A three judge panel of the 1st District Court of Appeal heard arguments on the third-grade retention case in February.
A three judge panel of the 1st District Court of Appeal heard arguments on the third-grade retention case in February.
Published Mar. 7, 2017

A three-judge panel has overturned Leon County judge Karen Gievers' ruling that the Hernando County school district improperly retained some third-grade students who refused to take the Florida Standards Assessment language arts test.

The state has required students to pass the test, or receive another good cause exemption, to gain promotion. That provision has been a key plank of Florida's Jeb Bush-era test-based accountability model since the early 2000's.

The 1st District Court of Appeal supported the system, saying the testing helps with the "laudable purpose" of determining whether a student needs additional reading instruction.

The court also asserted the case should have been filed in the parents' home counties, including Pasco County, as the districts argued.

"We reverse the order and vacate the injunction because the school boards were entitled to be sued in their home venues and none of the requirements for injunctive relief was established," the panel wrote.

Parents brought their case in the Leon County court, arguing the site was proper because it was where the Department of Education is located. They contended the districts follow department rules regarding testing and promotion.

Although the appellate court, which heard arguments in February, did not rule on the merits of the parent arguments regarding test participation, it made clear its disdain for their position:

Section 1008.25 does not define "participate," but common sense (and the statute as a whole) dictates that the term requires more than the so-called "minimal participation" engaged in by the plaintiffs' children in this case. The purpose of the ELA is to assess whether the student has a reading deficiency and needs additional reading instruction before (and after) being promoted to fourth grade. See § 1008.25(5)(a). The test can only achieve that laudable purpose if the student meaningfully takes part in the test by attempting to answer all of its questions to the best of the student's ability. Anything less is a disservice to the student-and the public.

The lawyer for the parents argued that the children should have been able to provide a portfolio of classroom work without taking the state test or an alternate, and still move to fourth grade. The court took issue with that view, as well.

Neither the rule nor the [department technical assistance paper to districts] necessarily forecloses a school board from requiring students who do not take the ELA to take an alternative standardized test before offering the "portfolio option" as [Hernando County School Board] does.

The appellate court further found that the plaintiffs did not establish any elements required for injunctive relief.

Read the full ruling here.

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District officials expected the ruling to end the dispute for the plaintiffs, most of whom have already moved on to private schooling or otherwise won promotion to the fourth grade.

"With the denial, that would seem it would be the last act," said Dennis Alfonso, School Board attorney for both Pasco and Hernando counties.

Department of Education spokeswoman Meghan Collins praised the decision.

"We are delighted that the Court ruled in favor of sound public policy that has proven to be in the best interest of Florida's students," Collins said.

Cindy Hamilton, co-founder of the Opt Out Florida Network, which backed the lawsuit, said the latest ruling would drive future challenges.

"The appeals court said the state has a compelling interest to make sure children can read before promoting them. The Opt Out Florida Network has always supported the idea that one test, with high stakes attached, is not the only way to determine if a child can read," Hamilton said via email. "The law, and The Florida Department of Education, have already allowed for alternatives to this one test.

"The legal challenge was centered on the fact that these children had demonstrated the ability to read without a test score. Evidence was presented to prove this to the court. This latest ruling firmly plants our resolve to continue the fight against high stakes attached to testing."

Lawmakers have filed bills ending mandatory third grade retention (HB 131 / SB 1280). Both have been referred to committee.

Andrea Mogensen, the parents' lawyer, sounded hopeful the Legislature might make a fix.

"The ruling comes very late in the game, as most of the plaintiff students are in the fourth grade rendering this issue moot as to those plaintiffs. The clients are currently considering their options," Mogensen said via email.

"Nonetheless, the parents are disappointed, naturally, that the Court endorsed a statutory interpretation that in Florida's public schools, testing is more important than proficiency. The ruling also suggests that the State's emphasis on testing supersedes the input of a child's parent regarding their child's education. There is a proposed legislative change to the statute under discussion, and with session beginning, we are hopeful that the future holds some changes in Florida's schools regardless of how this litigation is finally resolved."

This post is updated from its original version as more information becomes available.


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