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“Opt Out” Movement in the Balance as Judge Weighs Whether Tests Can Decide 3rd Grade Promotion

| August 23, 2016

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They’d rather be snacking. (Kentucky Country Day)

A state judge is weighing a decision that could shake Florida’s education-accountability system following a marathon hearing Monday in Tallahassee.


After nearly nine hours of testimony and arguments, Leon County Circuit Judge Karen Gievers wrapped up a hearing on state and local policies for allowing students to move to the fourth grade but did not rule on a request that would allow about a dozen students across Florida to advance.

The practical effect of Gievers’ decision, and the appeals that are almost certain to follow, could either validate or shatter the “opt out” movement led by parents who say a state standardized test should not decide whether their children are allowed to move from third grade to fourth grade.

The parents of the students involved in the case told their children to “minimally participate” in the Florida Standards Assessment for third grade by filling in their names, breaking the seals on the tests and then refusing to answer any questions.

Those parents believe state law gives them the right to tell their children not to answer questions on the test. But while the law spells out ways to advance that don’t require passing the assessment, the Florida Department of Education and school districts say that doesn’t give students the opportunity to refuse to take it.

Gievers, who seemed in an earlier hearing to sympathize with the parents, gave no clear indication of how she intended to rule on the request for an injunction.

“You’ve given me a lot to look at, and I plan to do this the right way,” she said.

But the hearing laid bare not only the legal questions at the heart of the case, but the philosophical ones: Is a report card based on a year’s worth of work a better measure of a student’s knowledge, or is an objective test the proper measure? Where is the balance between a parent’s right to control his or her child’s education and the state’s right to determine how to measure learning?

The state cast the lawsuit as one that could undo years’ worth of efforts to end social promotion and make sure that students have mastered reading before going to the fourth grade.

“This is a potential undermining of the entire assessment and accountability system,” said Rocco Testani, an attorney representing the Florida Department of Education.

Those challenging the promotion policy tried to prove that the children deserved to move on without taking the Florida Standards Assessment or one of the alternative tests offered by the state. At times, they even drew on the testimony or words of school district officials and employees.

Rebecca Dooley, who teaches one of the children, testified that the girl’s report card showed she “demonstrated ability at grade level performance for all four marking periods.”

Dooley also indicated the student shouldn’t be forced to repeat material she had already mastered.

“I do not believe it would be in her best interests academically,” Dooley told the court.

Michelle Rhea, the girl’s mother, read from an email by the vice-chairwoman of the Orange County school board that indicated the last-minute rush to put together a portfolio for Rhea’s daughter showed the district had erred.

“The ball got dropped on this one, and the district needs to learn from it and make changes going forward for it not to happen this way again,” wrote Nancy Robbinson, the vice chairwoman.

For its part, the state repeatedly showed that the parents had declined opportunities to have their children take alternative tests. The parents argued that doing so would simply expose their children to the same kind of high-stakes testing that they had tried to avoid by opting out.

State lawyers also tried to highlight how Florida’s retention policy has improved education. Juan Copa, a deputy education commissioner who deals with the accountability system, said Florida’s ranking on national tests and its graduation rate has improved since the state began requiring the tests for advancement to the fourth grade.

Mary Jane Tappen, vice chancellor for K-12 public schools, also testified that there are questions about whether report cards are an accurate and fair measurement of whether students know everything they should.

“The concern is that those decisions are not based on the same scale and consistent from student to student across the state,” she said.

While the hearing Monday was not as emotional as an earlier round of testimony, the lawsuit remains contentious. Even Gievers’ authority to decide the case is in doubt.

Monday’s hearing moved forward despite almost all of the school districts refusing to fully participate. The districts insist that Gievers doesn’t have jurisdiction over their retention polices and have asked for their cases to be heard in their own counties and separate from the suit against the state.

That was one of a barrage of objections covering everything from whether revealing certain information about the students might violate their federal privacy rights to whether Attorney General Pam Bondi should have been formally notified about the case.

Gievers said she would rule on the venue for the case and the request for an injunction as quickly as possible. In the meantime, she swatted away the districts’ objections and pushed ahead, keeping court in session through lunch and into the evening.

–Brandon Larrabeee, News Service of Florida

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