Justices opt out on lawsuit

Decision goes against exam challenge by 3rd-graders’ parents

The Florida Supreme Court has declined to take up a lawsuit brought by parents who told their children not to answer questions on the state third-grade reading test and then sued when the students were barred from fourth grade.

The top court’s decision leaves in place an earlier ruling by the 1st District Court of Appeal. Judges on that panel, overturning an earlier favorable ruling by a circuit judge, decided against the parents and ruled that the school districts, including those in Orange, Osceola and Seminole counties, had been improperly sued in Tallahassee.

The court case filed in August was an effort by Florida’s “optout” movement — a group opposed to high-stakes testing — to challenge state laws in place for more than a decade. Those laws say that testing is mandatory for public school students, and that students who fail Florida’s thirdgrade language arts exam can be kept from fourth grade.

Neither the parents’ attorney, Andrea Mogensen, nor Michelle Rhea, the Orange County mother who was the lead plaintiff in the case, could be reached for comment Monday.

The appeal court, ruling in March, said each district should have been sued in its home court. The judges on that panel also criticized the lawsuit’s central arguments — that taking standardized state exams wasn’t nec-

essary for Florida’s public school students and that report cards could demonstrate if youngsters were decent readers.

They wrote that the state had a “laudable purpose” in testing the reading skills of third-graders and that the parents who sued did a “disservice” to their children by telling them not to answer questions on the exam. The test aims to pinpoint whether students have a “reading deficiency” and need extra help, they added.

“The test can only achieve that laudable purpose if the student meaningfully takes part in the test by attempting to answer all of its questions to the best of the student’s ability. Anything less is a disservice to the student — and the public,” the judges wrote.

Cindy Hamilton, one of the founders of the Opt Out Florida Network, said the Supreme Court’s decision will have no impact on the group.

“It’s not going to change ‘opt out,’ ” Hamilton said. “We’ll continue to fight this.”

In fact, she said the appeal court ruling seemed to get parents “fired up,” and many in her group instructed their children not to answer questions on the Florida Standards Assessments, or FSA, given this spring. The FSA is the series of language arts and math exams given to state students in third grade through high school.

Woody Rodriguez, the Orange County School Board’s attorney, said the top court’s decision, like that of the appeal court’s, proved administrators’ argument that any case against the local school district needed to be brought in a local court.

Rodriguez said parents could try to sue again, filing in the circuit court in whichever county they reside, but it would need to be on behalf of a new group of students. The 14 students named in the lawsuit last year are heading into fifth grade and no longer could claim they had been harmed by Florida’s third-grade retention law, he said.

Almost all of the parents who sued pulled their children out of public school at the start of the 2016-17 school year, enrolling them in private school or homeschooling them so they could move to fourth grade.

Hamilton said most are returning to public school in August as fifth-graders.

When a hearing on the lawsuit was held in Leon Circuit Court in August, attorneys for the state argued that the parents improperly instructed their children not to answer questions on the tests, and they were responsible if some were then held back. They also said state scores provide more accurate information than grades on school report cards, which are often more subjective.

The parents argued their children — who broke the test seal and signed their names but answered no questions — “minimally participated” in testing and met the law's requirements. State educators disagreed.

The Leon County judge sided with the parents, but those on the appeal panel did not.