It is being reported that a decision by Judge Karen Gievers of the 2nd Judicial Circuit Court on Friday Aug. 26th, 2016 has a big impact for the “opt-out” movement. The case involves several districts not promoting third graders to fourth grade based strictly on testing and the denial of the portfolio evaluation route. At the center of the decision is the Hernando County School Board.
“Opt-out” parents around the state are telling their children to write their name on the FSA test, break the seal, but not answer any questions. Passing the FSA with a level 3 mark in March for third graders is used to determine whether the student can move on to 4th grade and by statute they must participate.
However, Judge Karen GIevers has ruled that it cannot be the only determination and the districts in question were not acting according to law when they failed to offer or consider report cards or portfolio in the promotion decision. She also stated that by being in attendance, breaking the seal on the test and writing their name, the third graders did participate.
Parents of students denied promotion brought suit against Orange, Hernando, Osceola, Sarasota, Broward, Seminole and Pasco County School Boards as well as Pam Stewart in her official capacity as Commissioner of the Florida Department of Education, State Board of Education.
“Despite the plaintiff children failing to achieve the level 3 required, the Education Defendants ignored the statutes notice of deficiency process, and ignored their obligations regarding remediation and teacher compiled portfolios,” wrote Judge Gievers.
Judge Gievers stated that the process has brought “injury to the children [contributed to by all Education Defendants as well as the Plaintiff Parents] already and there will be further irreparable harm to the children if they are delayed further is accessing the appropriate grade level.”
In Judge Gievers’ decision, she stated Orange County’s treatment of Ms. Rhea’s child referred to as “B.R.” was a “clear equal protection violation,” as the teacher… “testified to B.R.’s mastery of Grade 3 work and the injury to B.R. if she were required to repeat third grade.” Additionally, Board Vice Chair Nancy Robinson acknowledged that there were other students in the same situation, lacking an FSA score, but who did have portfolios and were being promoted. B.R. was denied her mother’s request for a teacher-compiled portfolio. However, “B.R.” is now attending a private school and Judge Gievers stated, “injunctive relief is moot at this time and must be denied for now.” She explained that the statewide testing and portfolio requirements do not apply to private or home schools.
Injunctive relief was denied for Plaintiffs in Osceola, Sarasota, Broward, Seminole and Pasco counties for varying reasons, but in two instances denial was given since students were no longer in the school system.
In regards to Hernando County, Judge Gievers states of the 7 plaintiffs, “Parents and their children were adversely and improperly harmed by the Hernando County School Board and State Education Defendant’s conduct.” Evidence in the case she asserted showed that “the school board did not send any notices of deficiency, and offered no remediation, even though none of the students scored at a level 3 on the FSA. ”
Hernando School District Representative Linda Pierce testified that “in Hernando, even if a child does not have a reading deficiency, but has not passed the FSA, the child will be held back.”
Additionally, the portfolio option was not given to the students. Judge Gievers states, “The School Board and State Education Defendants had no right to ignore the legislatively adopted portfolio option. No statute limits promotion to grade 4 solely to tests; the Legislature has made clear that portfolio option is an alternate option still available to all of Florida’s children. Section 1008.25(5), Florida Statutes.”
According to the Hernando County School Board, one student has been withdrawn to be homeschooled. Another failed the alternative assessment SAT-10 and is in grade 3 with tutoring twice a week. This student is currently taking all 4th grade classes except for reading and is scheduled to retake the SAT-10 in October. If the student passes the test in October then she can be promoted. Three students took neither the FSA nor the SAT-10. One student did not take any of these tests and received a final grade of a D in reading. Another was in the same situation but received a final C-D grade in reading.
The Judge maintains that the students participated minimally in the test since they broke the seal, were present on time and signed their names. By doing this, they met their obligation to participate.
She also stated that there is evidence that one student in particular had been reading at 4th to 5th grade level while others were on the honor roll.
Judge Gievers ordered Hernando County School Board to “refrain from further actions contrary to the availability of the portfolio option” and to “immediately provide the portfolio option at minimum to any parent who has requested one or requests one going forward.”
Judge Gievers ordered the County School Board to stop their refusal to accept a student portfolio or report card based on classroom work throughout the course of the school year (when there is no reading deficiency of which the parents were given the proper and lawful notice).
She granted injunctive relief to the Hernando County School Plaintiffs and injunctive relief against the State Education Defendants.
She wrote, “The Education Commissioner and Florida State Board of Education shall properly notify County School Boards that the statutory Notice of Deficiency and remediation processes must be followed for every student participating in the FSA in any way who does not achieve at least a Level 3 score, must notify the County School Boards that the portfolio option must be offered, grade 3 students with no reading deficiency should not be retained, but should be promoted.”
The Hernando County School Board filed an appeal, after the decision. The judge then granted a stay of the decision.