Third graders win their case for opting out

A lawsuit brought against the Florida Department of Education, the state Board of Education and six school districts ended in what supporters are calling a “huge victory” for students who opt out of standardized testing.

Parents from six counties filed the suit after their kids, 14 in all, were held back for refusing to take the standardized test, which students must pass to go on to fourth grade. Not only did most parents win their case to promote their kids to the fourth grade, but a circuit court judge ruled the school districts and the FDOE broke the law in the cases of the 14 children.

Attorney Andrea Mogensen, who represented the parents, said the ruling will set a precedent across the state. Unhappy with the testing system, in particular the English language arts/reading assessment for third-graders, more than 2,000 people are part of the Brevard Opt Out Facebook group.

Opting out is nothing new: Kids show up on test day, break the seal on the test materials and write their name but don’t answer any questions. Still, school districts seem to be a little fuzzy on what defines test participation and what kids can do in place of the test. If a student opts out of standardized testing, Florida statute says, a “portfolio” will suffice to show readiness for the next grade.

But just like the definition of participation, the word portfolio has some school districts scratching their heads. According to state statute, a portfolio can be “the existing progress monitoring plan, individual educational plan, if applicable, report card or student portfolio.”

Some school districts provide a portfolio option for kids who opt out of testing. But not every district does. Tests the 14 kids took should have been scored zero, ruled Judge Karen Gievers. Instead, they weren’t given a score.

“The State Education Defendants have ignored the fact that children who participate in statewide testing, even those who ‘minimally participate,’ have satisfied their statutory obligation to participate,” the ruling, which was issued Friday, states.

The Legislature describes the purpose of the Florida Standardized Assessment as to identify reading deficiencies in time for remediation before a student moves on to fourth grade. In fact, schools are required by law to inform parents of deficiencies, get the ball rolling on remediation and provide portfolio options. However, Gievers ruled that the counties and FDOE ignored their responsibilities.

The parents were alerted at the end of June that their kids would have to repeat third grade.

“There are third-graders who are not reading-deficient who are sitting in third grade again,” Mogensen said. After an initial hearing Aug. 12, the students missed about three weeks of school while the case progressed.

In most cases, parents submitted a report card as a portfolio and were “horrified” when FDOE attorney David Jordan claimed that report cards don’t actually show if a child can read, defending the need for every child to take the FSA.

School districts in Orange and Hernando counties were the most harshly criticized in Gievers’ ruling, which at one point stated it’s in the public’s best interest for Hernando County to “to immediately start following the law.”

“Different districts are treating kids differently based on if they choose to take this test,” said Mogensen, who added that many of the children involved were reading at levels beyond the fourth grade.

While Gievers would have most likely granted the emergency injunction to immediately promote all 14 kids to the fourth grade, several had already enrolled in private institutions and home-schooling.

Opting out certainly has its critics.

FDOE Commissioner Pam Stewart, who was sued in her official capacity, previously asserted that opting out is not allowed.

“My belief is that students that do not want to test should not be sitting in public schools,” said Stewart, as reported by the Tallahassee Democrat. “Statewide, standardized assessments are part of the requirement to attend school, like immunization records.”

Already, the Florida Department of Education and Broward, Orange and Seminole counties have filed appeals, most claiming that each case should have been held in its respective county.

Neither the FDOE nor districts appealing the ruling were able to discuss the lawsuit.

Contact Glenn at caglenn@floridatoday.com or 321-576-5933, and follow her on Twitter @bycarolineglenn and like “Education at Florida Today” on Facebook.