1. Florida

Testing participation is up to the state's interpretation, Department of Education lawyers argue

For the longest time, Florida Department of Education officials refused to define testing "participation," leaving parents in the opt-out movement to fill the void themselves.

Leon County Judge Karen Gievers took the parents' side when ruling on their challenge to the state's third-grade promotion and retention laws.

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

She deemed deputy commissioner Juan Copa's testimony that students must answer at least one question as "irrelevant."

In their appeal of Gievers' ruling, department lawyers have argued that the agency's definition is indeed relevant.

"Florida law is clear that a state agency 'is afforded wide discretion in the interpretation of a statute which it is given the power and duty to administer,' so long as 'the agency's interpretation is within the range of possible and reasonable interpretations,'" the lawyers wrote.

And, making the department's clearest statement to date on the issue, the lawyers contended that the idea of "minimal participation" that the judge validated is, in the state's view, not participation at all.

The dictionary definition of 'participate' is 'to be involved with others in doing something' or 'to take part in an activity or event with others.' ... Refusing to answer any questions on an assessment given to all of your classmates is not 'participation.' A student who breaks the seal, writes her name, and stares silently while refusing to answer any questions has not 'participated' in the assessment, just as a student who is called on in class and refuses to answer a question posed by her teacher has not 'participated' in the lesson.

The State Defendants' interpretation is further supported by the legislative purpose stated in section 1008.22 itself: 'The primary purpose of the student assessment program is to provide student academic achievement and learning gains data to students, parents, teachers, school administrators, and school district staff. This data is to be used by districts to improve instruction; by students, parents, and teachers to guide learning objectives; by education researchers to assess national and international education comparison data; and by the public to assess the cost benefit of the expenditure of taxpayer dollars.' § 1008.22(1).

Any interpretation of the statute to the effect that participation has occurred when a student intentionally takes steps to deprive the schools, districts, and the State from obtaining the data required for the State's assessment program, is at odds with the fundamental purpose and intent of the statute. The relief ordered is based on a definition of 'participation' that is contrary not only to the agency interpretation but also to the plain meaning and to the legislative intent.

The case continues to wind its way through court.