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Judge Weighs Testing, Opt Out Policy After Emotional Hearing

A teacher reads to her student.
U.S. Department of Education

A Leon County judge indicated during a hearing Friday that she was troubled some students were blocked from advancing to the fourth grade after "opting out" of a standardized test, but she put off ruling on a request that the students be allowed to move up.

After emotional testimony that saw parents, students and even an attorney cry over the future of the children at the heart of the case, Circuit Judge Karen Gievers explained to the plaintiffs that she thought ruling for them Friday would be quickly struck down by an appeals court.

Gievers said an immediate decision could infringe on the rights of school districts and the Florida Department of Education to respond to the case, which was filed this week.

"I don't like what I'm seeing as far as youngsters being made sad and not being in classes they think they belong in," Gievers said as she addressed the families, "but I don't have the legal authority, if I do my job right, to take away the right of every party to have enough time to properly prepare."

Gievers did not say exactly when she might rule on the request for a temporary injunction allowing the students to advance to fourth grade, at least until the case is resolved, but suggested a decision would not come before next Friday. A hearing is expected the following week to deal with at least some of the procedural issues in the lawsuit.

Several school districts said at the hearing that the students could still advance to the fourth grade in short order if they took one of two alternative tests to the state's usual exam or, in some cases, if the students submitted portfolios meant to show they have mastered the material. But it seemed unlikely that many of the parents would take that route.

The legal case is part of a dispute between education officials and parents who are part of the grassroots "opt out" movement, who believe state law gives them the right to tell their children not to answer questions on the Florida Standards Assessment. While state law spells out ways to advance that don't require passing the standardized test, the Florida Department of Education and school districts say that doesn't give students the opportunity to refuse to take it.

The districts named in the suit include Orange, Hernando, Osceola, Sarasota, Broward, Seminole and Pasco counties.

The lawsuit, filed this week by 14 parents of students who opted out of the test and were held back, says the decision violates due-process and equal-protection rights. It argues that a requirement that students take the test is irrational. Also, it says a confusing array of instructions from state and local officials during the past school year resulted in students who opted out being allowed to move on without test scores in some cases, but not in others.

The standardized tests are one of the hallmarks of the education-reform movement that swept Florida in the 1990s and early 2000s. They are meant to prevent "social promotion," where teachers give passing marks on report cards so students can move on with peers, regardless of whether the students have learned the required material.

The parents in the lawsuit say their children earned good grades and were ready to move on, and that in many cases there was no warning about the possibility of the children being held back because of reading issues until they refused to take the test.

Michelle Rhea, a mother from Orange County, told Gievers during testimony Friday that "it would be devastating" to her daughter, Berlynn Bradley, to be held back in third grade.

"She's a good kid," Rhea said, beginning to cry, "and she works very hard, and she earned her grades, and her report card does mean something. It meant something for all of you; it's how you got here to be lawyers. Nobody put an FSA in front of you and told you if you don't pass it, you're not good enough."

Bradley was more chipper than her mother when she testified, but her voice softened when the attorney for the parents asked her how she would be affected by staying in third grade.

"I'm kind of sad because I wanted to be in classes with my friends," Bradley said.

Another girl involved in the case wept quietly as her grandmother testified about her experience of being held back.

Most of the hearing took place over the repeated objections of lawyers for the Department of Education and the districts, who in some cases said they hadn't even been served with the lawsuit. Some districts also wanted the lawsuit to be broken into pieces, with the state department defending its rules in Tallahassee while each district would defend its policies in its home county.

But Gievers pushed ahead, noting that some schools had already started for the year and others would next week. She said she would rule later on issues such as whether Leon County was the proper venue.

Those defending the testing regime also pointed to the ills caused by social promotion, which they said could be just as bad if not worse than the damage caused by being held back.

"It's also harmful to students to go forward and try to attempt fourth-grade material if they're not ready," said Dave Jordan, a lawyer for the department.

But at times, even the lawyers for the districts and the state agency seemed to indicate that some students could be treated differently. Some districts appeared ready to allow at least some of the students move forward if they submitted a complete portfolio of work whether or not they took a test. But a lawyer for Hernando County was adamant.

"The opportunity to do the portfolio is if and only if the student does not pass the assessment," attorney Lisa Augspurger said.