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Judge rejects motion to force schools' hands in Florida third-grade retention lawsuit

Published Sep. 13, 2016

After winning the first round of their case against Florida's third-grade promotion rules, students ran into roadblocks when trying to use Judge Karen Gievers' ruling to claim a fourth-grade seat.

One of those hindrances was appeals by the defendant school districts, including Pasco and Hernando, which created a stay on the order.

Hoping to get some action for the plaintiffs' children, most of whom enrolled in private or home school rather than return to third grade, their lawyer asked Gievers to vacate the stay during the appeal.

"There are two principal considerations that courts must take into account when deciding whether to vacate a stay pending an appeal: the likelihood of irreparable harm if the stay is not granted, and the likelihood of success on the merits by the entity seeking to maintain the stay. ... In this case, the likelihood of irreparable harm if the stay is not granted is very little ... This balanced against the irreparable harm demonstrated at the evidentiary hearing by Plaintiffs and found by this Court including the Defendant's failures to comply with the notice of deficiency requirements, failure to offer a portfolio option as required by statutes, and failure to promote third graders who do not have a reading deficiency to grade four, leads to a balancing of interests that significantly favors dissolution of the stay."

In a ruling issued Thursday and obtained Tuesday by the Gradebook, Gievers denied the request. She noted that many of the parents had already removed their children from the challenged school systems. The stay would "allow the appellate court the opportunity to complete its review in an orderly manner," she wrote.

At the same time, Gievers noted, districts are not absolved of all action:

"To the extent that the evidence and law warranted the provision of injunctive relief as to the State Education Defendants and the School Board of Hernando County, the automatic stay of the order as to the challenged injunctive relief does not authorize the Defendants to ignore the mandatory provisions of the statutes in question."

Hernando district officials have said that they offered all the children in question the opportunity to complete a state-approved portfolio to demonstrate their reading abilities, in advance of possible promotion. The parents rejected that offer as an unacceptable set of tests, not reflective of their children's classroom performance.

Pam Everett, whose daughter Hailey was denied re-entry to Chocachatti Elementary magnet school after Gievers' initial ruling, said she was not satisfied with the district's actions.

"We're not getting what we want. Otherwise the kids would be back in Chocachatti," said Everett, who is now home-schooling her daughter. Lawyer "Andrea (Mogenson) is doing everything she can for us in our favor. Until they abide by it, what good is it?"

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