Judge rips schools in FSA testing case

Says state hurt students who refused exam

A judge Friday sharply criticized state and Central Florida school leaders for failing to follow the law when they barred from fourth grade some youngsters who’d refused to answer questions on Florida’s required third-grade reading test.

Their conduct caused “injury which will continue as long as the children are not in the appropriate grade in the appropriate school,” wrote Circuit Court Judge Karen Gievers of Leon County. “Grade 3 students with no reading deficiency should not be retained, but should be promoted.”

Her 52-page order was especially critical of the Orange County School Board, which she said acted in a “particularly blatant, arbitrary and capricious” way to the daughter of Michelle Rhea, a third grader at Dommerich Elementary School in Maitland last school year.

Rhea is the lead plaintiff in the lawsuit filed earlier this month on behalf of 14 students in six school districts, including Orange, Osceola and Seminole counties. The lawsuit challenged sections of Florida’s third-grade retention law.

Despite her critical language, Gievers stopped short of order-

ing any of the school districts to immediately promote students to fourth grade. She ordered a separate hearing Monday for the Hernando County students involved in the court challenge, saying that school district had illegally failed to provide a socalled portfolio option to those students.

She denied requests for Rhea’s daughter and a child in Osceola County to be allowed to start fourth grade, saying neither were in public school now so that made their requests moot. Rhea testified her daughter was in a private school so that the child could be in fourth grade after successfully completing third grade at Dommerich in June.

The parents of two youngsters in Seminole County who also sued must first pursue administrative solutions, before asking a court to intervene, Gievers added. That is because they were offered a chance to do a portfolio — a state-prescribed collection of work that can be substituted for a passing score on the state test — but disagreed with the district on what it should entail.

The Orange school district said it had no comment but that it already has a appealed one section of the judge’s order, as it believes the case was improperly heard in Tallahassee rather than in its home court in Orlando. The Florida Department of Education said it was reviewing the judge’s order but had no comment, as did the Seminole County school district.

Cindy Hamilton, one of the founders of the Opt Out Florida Network, which helped raise money for the lawsuit, said in an email that the group was “celebrating substantial victories” with Gievers’ order. The group is opposed to how the state uses highstakes standardized tests to make key education decisions, such as whether students are promoted or granted a diploma.

“While this fight is not over, today was a good day for Florida’s students,” Hamilton wrote.

The lawsuit was filed earlier this month by Rhea and other parents of third graders.

They argued that the state and their local school districts improperly held back their students who refused to take the Florida Standards Assessments. The students’ report cards showed they had solid reading skills and should have been promoted, their attorney argued.

State law says that testing is mandatory for public-school students, and that students who fail the third-grade FSA languagearts exam can be barred from fourth grade.

Attorneys for the state and some local school districts told Gievers that the parents improperly refused to allow their children to take the tests, and that they were responsible for any harm that had come as a result.

The parents argued their children — who broke the test seal and signed their names but answered no questions — participated in testing and met the law’s requirements.

But state educators said refusing to answer enough questions to earn a score did not count as participating.

Gievers agreed with the parents, writing, “Students must participate in the statewide standardized tests; the evidence shows they did all participate.”

The judge also said the districts and the states failed to provide accurate information to parents about their children’s reading skills or about the portfolio option, as the law requires.

The state education department, she also wrote, turned a “blind eye” to those failures.

The department, Gievers ordered, must tell Florida’s school districts that they have to notify parents if their child has a reading deficiency, that they cannot retain students who do not have a reading deficiency, and that they have to provide the portfolio option to students.

Gievers noted that some districts, such as Citrus County’s, started portfolios for all third graders in case they were needed, while other districts had inconsistent policies.

Some Orange schools, for example, created portfolios for students who refused the FSA, but Dommerich, where Rhea’s daughter was enrolled, did not.