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Judges question parent positions in challenge to Florida's third-grade retention law

The First District Court of Appeal in Tallahassee, where a three-judge panel heard arguments Feb. 7, 2017 in a case that challenged the state's third-grade retention law. [Times files]

The First District Court of Appeal in Tallahassee, where a three-judge panel heard arguments Feb. 7, 2017 in a case that challenged the state's third-grade retention law. [Times files]
Published Feb. 7, 2017

A panel of appellate judges on Tuesday appeared to lean in favor of the state and against a group of parents who are challenging the Florida law that keeps many third graders from moving to fourth grade if they do poorly on the state reading exam.

The judges from the 1st District Court of Appeal have yet to make a ruling, but through questioning they suggested that the parents' lawsuit might have been more appropriately handled in local courts or through an administrative procedures complaint. One of the panel said the parents seemed intent on subverting Florida law when they told their children last spring to sign their names to the reading exam but answer no questions.

"This is self-inflicted harm," Judge T. Kent Wetherell II said during the hour-long proceeding.

Parents from seven counties filed suit in Leon County — where the Department of Education is based — in August. They sought emergency action to prevent their children from repeating third grade after refusing to complete a state reading test, and argued state law didn't require a passing score.

Leon County Judge Karen Gievers agreed. The department and districts appealed.

At issue Tuesday: Whether the case should have been heard in local venues, in particular Hernando County court, and whether court was in fact the proper place for the arguments at all.

Lawyers for the department and the Hernando County school district, which faced a temporary restraining order over its decision to retain some students, contended Gievers overstepped her boundaries with her ruling.

Gievers all but ordered districts to promote children based on report cards or a portfolio of classroom work, contending the Department of Education did not have adequate rules in place.

Andrea Mogenson, the families' attorney, argued the court was the only place to seek resolution to what she considered misapplication of state laws involving children's rights to seek alternatives to promotion other than participating in a state test.

The three-judge panel appeared to have problems with Mogenson's approach.

"I'm not saying the policy is good or bad," Judge James R. Wolf said, after hearing Mogenson criticize the state guideline that requires students to "participate" in the Florida Standards Assessment by answering at least one question.

"If you want to challenge it … that's normally done through the Administrative Procedures Act."

Wetherell said he also had more fundamental concerns. He suggested the parents didn't like the rules and told their children to disobey the law, in an apparent attempt to "subvert" the legislation.

"I can't imagine a parent telling Little Johnny ... 'I don't want you to try today,'" the judge said.

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Mogenson parried that the parents were attempting to take advantage of Florida law that states a test score will not be the sole determining factor in a child's promotion to fourth grade, and that parents have the right to request the use of a portfolio to guide the decision. Hernando County held children back without allowing access to those options, she said.

She posited that the courts are the right place to decide whether the laws are being followed fairly and equally in all districts.

Rocco Testani, a lawyer for the Department of Education, argued that his client did not force districts to hold back third graders who hadn't taken state tests. "At most, all that was said was if a county believes children should go through testing first, that was permissible," he said.

He noted other districts promoted students without test scores and were not penalized.

With that as a backdrop, Richard Bush, a lawyer for the Hernando school district, argued that the challenge did not belong in Leon County court.

"Our conduct should be tested in our county, based on what we did," Bush said.

He added the Hernando children involved refused opportunities to test and to sit for a state-approved portfolio.

Parents of some of the Hernando students who were held back said their children have rebounded since then.

They enrolled in private school in fourth grade, and made the rough adjustment.

"She had to play catch up with the academics. The rigor is a lot more there," Pam Everett said of her daughter, Hailey. "She's adapted and is doing great, but she misses her friends. … The emotional harm is done."

Brandy Kinkade said she hopes to keep her daughter, Madelynn, in private school for the fifth grade if she can afford it. She rejected arguments that the parents were selfish in the way they handled the situation.

The FSA "causes more harm than good," Kinkade said. "No one gets to see the questions. No one gets to see the answers after it's taken, to see how they can improve. My child is more than a score."

She and the others said they plan to pursue the lawsuit even if it won't affect their own children.

"We are going to take a stance for children's education," Everett said, citing friends, family and others who will follow. "We will take our classrooms back."

The next third-grade FSA language arts test is scheduled to begin March 27.

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


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