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Florida Parents Sue State and Districts for Retaining Students Who Opted Out

August 10, 2016

The Opt Out Florida Network reports that parents of students retained in third grade due to opting out of state tests– nothing more– are suing the Florida Department of Education and numerous local school boards for deciding last minute that opting out in 2015-16 would result in student retention in 2016-17.

One lawsuits was filed, and with it, a request for emergency injunction for students immediately affected by what appears to be substandard communication between local districts and the state regarding the penalizing of students who were previously informed that opting out of the state’s standardized tests would be accommodated– with the state delivering inconsistent , bumbling guidance on the issue.

As one might expect, the looming fear of loss of federal Title I funding under the Every Student Succeeds Act (ESSA) for the state’s not pressuring districts into producing that federally-required 95 percent of students tested serves as the threatening spoon stirring this third-grade retention pot.

Below is an excerpt from the emergency injunction, as noted in the August 10, 2016, Opt Out Florida Network post:

The emergency motion for indicative relief seeks immediate relief for students currently retained in the third grade, who are without a documented reading deficiency.

Parents of students who received report cards with passing grades—some of whom were honor roll students—seek emergency declaratory and injunctive relief alleging that, because they opted out of standardized testing for their child, defendants arbitrarily and capriciously interpreted statutes and rules in a manner that requires retention, rather than promotion, of third grade students. The result is that students with no reading deficiency are retained in the third grade solely because they opt-out of standardized testing. Defendants’ policy means that a third- grader who takes standardized tests and scores poorly—whether intentionally or not—can still be promoted. Yet, an outstanding student who regularly produces proficient school work in the classroom for which they receive passing grades will be retained simply for not taking a standardized test that they are permitted to opt of under the Florida Statutes. Because the receipt of federal dollars is at stake unless 95 percent of students participate in standardized testing, test participation is treated as more important than actual performance. These actions produce an arbitrary and capricious result that violates the Equal Protection Clause and the Due Process Clause.

Nature of the Emergency
Emergency relief is warranted because Honor Roll students with no reading deficiency who earned passing grades will be retained in the third grade for the school year beginning in mid-August 2016. Plaintiffs did not receive notice that their child would be retained under the mandatory retention provision until late in the school year or after the school year had concluded.

School districts across the state concede that they dropped the ball on the portfolio exemption because the Department of Education gave inconsistent guidance throughout the school year on what is required under the student portfolio exemption….

US Secretary of Education John King has made it clear in his ESSA Title I “guidance” that he wants states to put pressure on districts and schools to kill parental opting out of state tests under the guise of “improvement plans” to deliver on the federally-mandated  95 percent participation.

Top-down pressure to force parents and students to comply with federally-mandated testing makes the pass-the-buck state and district chaos over opting out completely expected.

I anticipate many more lawsuits over this worn out federal testing push.

To read the details of the Opt Out Florida lawsuit and injunction noted above, see this emergency injunction file and this Leon County (Florida) Clerk of Court page where one can apparently order a copy of the lawsuit itself.

opt out


Released July 2016– Book Three:

School Choice: The End of Public Education? 

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Schneider is a southern Louisiana native, career teacher, trained researcher, and author of both A Chronicle of Echoes: Who’s Who In the Implosion of American Public Education and Common Core Dilemma: Who Owns Our Schools?.

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  1. Jill Reifschneider permalink

    Good! Thank you for letting us know. I will spread theemail word.

  2. Looks like parents should implement what I call “Plan B.” Take the test and answer every question “B.” No muss, no fuss, no worries.

  3. Thank you for sharing this, Mercedes.

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