Lazaro Aleman
Greene Publishing, Inc.
The Opt Out Florida Network, a statewide collection of parent-led groups opposed to the state’s standardized test-based accountability system and others of like minds, won a significant if preliminary court victory recently.
In a ruling on Friday, Aug. 26, 2nd Circuit Court Judge Karen Gievers, who not long ago presided in Jefferson County, determined that opting out of the standardized testing was not sufficient grounds for school districts to hold back students.
Gievers ruled that unless a reading deficiency existed and the parents had been made aware of it, third graders couldn’t be retained simply because they had refused to take the standardized Florida Standards Assessment (FSA). She said the students’ grades and their teachers’ evaluations had to be taken into account in such decisions.
State law requires testing for third grade public school students and provides for their retention if they fail the FSA reading test. Following their parents’ instructions and in protest of the law, the students in the lawsuit had broken the test seals and signed their names to the tests but had forgone answering any questions.
The attorneys for the state argued that the students had thus failed the test. But the plaintiffs countered that the students had in fact participated by breaking the seals and writing their names, in essence meeting the letter of the law.
In her 52-page order, Gievers agreed with the plaintiffs, writing that third graders “with no reading deficiency should not be retained, but should be promoted.”
What’s more, the judge was critical of the Florida Department of Education (FDOE) and the school districts, calling the actions of one of the latter “particularly blatant, arbitrary and capricious.”
The judge’s ruling ensued from a lawsuit and motion for injunctive relief that the families of 14 third graders in six school districts in central Florida filed in early August in challenge to Florida’s third-grade retention law.
The injunctive relief sought was for promotion of the 14 third grade students to fourth grade, based on their report cards.
The families in the lawsuit argued that the FDOE and school boards were applying the law unfairly and improperly by failing to apply exemptions in the statues. That’s because the statutes allow for a “portfolio” option, where students who don’t perform well on the FSA can still advance based on their classroom work and teachers’ recommendations. They said the students’ report cards showed they had the necessary reading skills and should have been promoted. Not all school districts allow for this option, however.
Once more, despite the judge's criticism of the district, she stopped short of ordering the districts to promote the students to fourth grade.
The matter, in fact, is far from over. Soon after the judge’s ruling, several of the named school districts filed appeals, and the FDOE was reportedly studying its options.
The Network itself acknowledges that the case is far from over. The group points out that the motion for relief was but a first step in a long process. Many of the lawsuit’s issues will only get addressed in the upcoming trial. For the time being, however, the plaintiffs and their supporters are enjoying their far from insignificant victory.