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Judge's ruling is a blow to Florida's third-grade testing rules

Published Aug. 27, 2016

A key piece of Florida's education system took a major blow Friday as Leon County Judge Karen Gievers chastised the state over its rules for promoting third-graders into fourth grade.

A group of parents from six counties, including Hernando and Pasco, challenged the state law that requires third-graders to pass a state reading test or be held back a year. They also alleged that officials weren't properly following the law anyway.

The law offers alternative ways for third-graders to be promoted, including a portfolio of their work over the school year. But the parents alleged that their school districts, on the state's advice, denied their children that opportunity.

Gievers agreed, ordering the state Department of Education and the districts to honor the portfolio option that, she insisted, is clearly laid out in state law.

"From what I have seen and understand of the ruling at this point, I couldn't be happier," said Michelle Rhea, an Orange County parent who is the lead plaintiff in the lawsuit. "Feels great to have such a big victory against such an overwhelming system."

The DOE said it was reviewing the ruling and had no immediate comment.

The dispute goes back to the spring when the parent plaintiffs, who oppose Florida's testing system, instructed their children to "opt out" by not to take the reading test. The kids opened their tests, signed their names and went no further.

There was nothing wrong with that, Gievers said in her ruling, because state law says students must "participate" in testing but doesn't define what that means. She said the districts should have marked the students' tests as zeros, which would have triggered two things — an official "notice of deficiency" that brings with it a range of remedial help, and the opportunity for families to use a portfolio of the student's work to make the case that he or she belongs in fourth grade.

Instead, the districts ignored those procedures: They gave no notice of deficiency, no remedial help and no information on portfolios.

The result, Gievers noted, was that several third-graders who had performed at or above grade level were nevertheless being held back because they didn't complete the test.

Gievers called such actions an "illegal refusal" by the school districts to consider the statutory options. She took that a step further, adding "report cards based on classroom work throughout the course of the school year" were another way to demonstrate reading proficiency.

State and district officials argued in court that report cards are subjective and do not always indicate a child's ability to meet state education standards.

Gievers also breathed life into Florida's small but feisty opt-out movement by validating its efforts to defy the state by having their kids "minimally participate" in tests.

Florida Deputy Education Commissioner Juan Copa told the court Monday that the department considered participation to mean answering at least one test question. He said that was agency policy and could be revised annually.

Gievers had none of that.

"The statute does not define participation," she wrote in her order. "The children were present on time, broke the seal on the materials and wrote their names, thus meeting their obligation to participate."

Gievers said the state had turned a blind eye to the school districts' bad actions. She further noted that not all districts followed the same procedures.

"The combined conduct of the county school board defendants and state education defendants have caused injury to the plaintiffs, injury which will continue as long as the children are not in the appropriate grade in school," she wrote.

"We are very pleased that the court agreed with us that it is in the public interest that the state Board of Education and school districts in Florida follow our laws, and focus on whether children can read, not whether they took a particular test," said Andrea Flynn Mogensen, lead attorney for the parents.

Gievers ruled only on the plaintiffs' request for an emergency injunction, but not all her decisions went their way.

She noted that in some cases, the parents did not pursue all available options for their children to be moved into the fourth grade. Some rejected the offer of a portfolio, for instance.

In those cases, she ruled, they are not due the relief of an injunction. She similarly ruled against the families that had already removed their children from the public school system, as many testified to doing.

The Hernando County School District immediately filed an appeal to the order, calling it "non-final." Pasco County school officials declined to comment.

Gievers has yet to conduct a full trial on the parents' over-arching complaint challenging the third-grade retention law.

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

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