Florida parents sue state over Jeb Bush-era testing rule

Frustrated by rules they see as harmful to their children, a group of parents filed a lawsuit late Tuesday aiming to take down a pillar of Florida's test-driven education system.

They targeted the 13-year-old practice of holding back third graders who score poorly on the state's spring reading test, arguing that more factors should come into play when deciding the children's academic fate.

Students should not need a test score at all, the group contended, if they did well enough in class.

"Parents of students who received report cards with passing grades — some of whom were honor roll students — seek emergency declaratory and injunctive relief alleging that, because they opted out of standardized testing for their child, defendants arbitrarily and capriciously interpreted statutes and rules in a manner that requires retention, rather than promotion, of third grade students," Sarasota attorney Andrea Mogensen wrote on behalf of the 14 parents suing the state and seven school districts, including Hernando and Pasco counties.

"The result is that students with no reading deficiency are retained in the third grade," Mogensen wrote, "solely because they opt-out of standardized testing."

Mogensen and the plaintiffs could not be reached for comment. Officials from the Florida Department of Education and named school districts declined to talk about pending litigation.

This past spring, several school districts took the position that students without a Florida Standards Assessment score would not qualify for "good cause" exemptions to promotion into fourth grade. The state has allowed such exemptions for years, giving students the chance to pass an alternate test or prove their reading proficiency using a portfolio of their work through the school year.

Just about everyone took the test. It wasn't until this year — with the rise of a movement to reject state tests — that the state had to deal with larger numbers of students who didn't.

"When the law was crafted, legislators did not envision a widespread opt-out movement," observed Martin West, a Harvard University education assistant professor who has studied the implications of third-grade retention in Florida.

This past spring, however, a small but growing group of parents told their children to sign their names to the tests but answer no questions, in order to follow state law requiring participation. They called it "minimally participating."

When district officials asked the state Department of Education what to do about these cases, several superintendents said they got the message that a test score was required. The Hernando County school district still says so on its website.

By contrast, many other districts acted as they had in the past, and considered the exemptions as a matter of course. The State Department of Education attempted to clarify things in May, saying it did not intend one method of promotion to be first among equals.

Further complicating the matter, some school districts interpreted a portfolio to mean a collection of student work gathered throughout the year, while others said children would have to take a series of short tests to create the portfolio. But the opt-out parents wanted no part of even more tests.

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On top of that, children completing third grade in 2015 faced no such requirement, because the Legislature set a one-year rule telling districts to consider the lowest 20 percent of third graders "at risk" of retention. Districts had the final say.

Retentions that year shrank from nearly 9 percent to about 3 percent.

Put that all together, Mogenson wrote in her complaint, and what you have is enough inconsistency to render the process unfair.

"As a direct and proximate result of the defendants' actions, widely different methods were used in decisions involving the retention and promotion of third grade students resulting in students across the state being treated unequally under the statute and rule," she wrote.

She asked the court to declare unconstitutional a school's refusal to promote a student to fourth grade based on a report card or portfolio of classroom work, when no other evidence of a reading deficiency exists. She also asked the court to stop schools from holding back third graders with no demonstrated reading problems, if they can present a report card or portfolio.

The students return to classes this week and next.

Florida was the first state in the nation to adopt tough third-grade reading requirements and implement them statewide. Leaders, including then-Gov. Jeb Bush, stressed that the goal was to have students reading to learn, rather than learning to read, by the end of third grade.

To that point, Florida received little praise for its low-ranked public education system.

The decision to hold back children who didn't pass the state reading test encountered heavy resistance. But lawmakers stuck with it, and other states later followed the Florida model.

The exemptions are an important piece, said Harvard's West, who has found few long-term problems with retention.

"A decision as important as whether a student should be retained should never be based on a single score," West said.

All Florida did, he said, was "change the default" so schools would have to affirmatively prove students with problems should be promoted to fourth grade.

But the state's technical advice to school districts in the spring, after a year of more local flexibility, "left room for confusion," said Andrea Messina, Florida School Boards Association executive director. "Districts thought they were doing what they were asked to do, until they found out they weren't."

She suggested the lawsuit reflects the fact that more and more parents don't feel heard as they express their views on how their children are educated.

"I think there will be continued challenges until there is a legislative fix to clear it up, or a judicial order saying it needs to be cleared up," said Messina, a former teacher and school board member.

Contact Jeffrey S. Solochek at (813) 909-4614 or jsolochek@tampabay.com. Follow @jeffsolochek.