FL: Children and Opt Out Win

When last we cast our gaze at the sunshine state, its deep love of testing had gotten it dragged into court. Florida's indefensible third-grade retention rule says that a student can't move on to fourth grade without passing that test, and while some districts saw an alternate path in portfolios and other alternative assessments, other districts collided with opt out families.

If the child has not taken the Big Standardized Test, they declared, that child must sit in third grade until the test has been taken-- even if that child has a straight A report card. 

The suit has brought some Very Special Moments to the spotlight. For instance, we've had a chance to be reminded of Florida's minimum participation rule, which says that to meet the letter of the law, the child must "participate" in the test by breaking the seal and sign their name.

We've also seen the Florida Department of Education display their general gutlessness by initially throwing the districts under the bus, saying, gosh, Tallahassee had no idea why the local districts were being so mean (leading at least one superintendent to say some barely diplomatic things about the state's lack of useful leadership).

But once the state got involved, they decided to go all in by asserting that report cards are meaningless and do not reflect the students' learning. Lord knows I've written a ton about how the state of Florida manages to make life miserable for students, parents, and teachers, but I am still looking forward to seeing exactly how the state's new Report Cards Are Meaningless Junk policy plays out this year.

That's our story so far. Now for the update, which is good news.

Judge Karen Gievers is a friend of education this week

Judge Karen Gievers upheld the Participation Rule and delivered a public spanking to the districts, saying that the children had, by signing their names, participated in the test and must be given the opportunity to complete portfolios or be promoted based on their grades.

But Gievers did more than offer relief to the students in the suit.

She said students who are reading at a sufficient level, despite not answering questions on the test, were harmed by being forced to repeat third grade and the districts should have considered the portfolio option.

There are some details to dig through in the Judge's order, in part because each county was in a slightly different situation. For instance, Orange County apparently decided to single out one child for non-test-taking retention while allowing other non-testers to take the portfolio option, a choice that is not only transparently unfair, but just plain stupid to carry all the way to court. Meanwhile, Hernando County doesn't allow the portfolio option at all, which Gievers notes is "illegal." Several of the Hernando have already removed themselves from that district, rendering any kind of injunction "moot." The Hernando district is "ORDERED" (I love court document punctuation and capitalization rules) to knock it off already with the illegal failure to provide other options for third graders who fail the Big Standardized Test.

The Sarasota case is passed over because Sarasota schools folded their hand and promoted the child as soon as they found themselves in court. Broward and Seminole found themselves in trouble because they, like a couple of the other districts, never told parents the children were "deficient" until around the last day of school. Which is illegal. One of these children is a honors kid, ranking ahead of her classmates, but not till the last day did the district inform the folks that the child would be retained for "non-compliance" with the BS Test. 

The State Department was also in court, and it gets its own paragraphs in the judge's order. 

First, the judge found that the state told Hernando County schools that it was perfectly okay to pursue their illegal plan for offering no portfolio option to students. The state has also "improperly ignored" the law's requirement to provide options for students who fail the test, and it has improperly ignored the required notices of deficiency and remediation. In other words, the state has let districts get away with the baloney wherein a school tells a nine-year-old child on the last day of school, "Oh, by the way, you are not going on to fourth grade. Too bad for you." Turns out that is illegal. 

Most notably, Judge Gievers clarifies the previously fuzzy rule that the department has been unwilling to observe-- by breaking the seal and being present, a student participates in the BS Test to the full extent required by law.

In other words, this ruling anchors Florida Opt Out procedure solidly in the law.

The Judge goes on to say it is ORDERED that the state stop "disseminating misinformation" about the portfolio option, and the state is ORDERED to require districts to follow the lawful deficiency and remediation procedures.

There's more legally background stuff, but this is a huge win for the Florida Opt Out movement. It doesn't just say that what the districts and state did was wrong and unconscionable-- it clarifies that it was flat out illegal. And it establishes that promoting a child based on a report card is an acceptable-- and it tells us something about where we are with education reform that it takes a judge's ruling to establish such a thing.

Of course, we're not done with this yet. The state will appeal, because God forbid they let this little nine-year-old scofflaws slip through their fingers. But if they have a leg to stand on, I can't see where it is. Not that they won't try. This is Pam Stewart and the Florida Department of Education-- if they can pursue a ten year old boy on his death bed, the optics of yanking a bunch of fourth graders out of class to throw them back in a third grade classroom won't deter them. But on a planet with even a remote simulation of justice, the state will continue to lose this fight. 

Meanwhile, the school boards and superintendents will go home and, with any luck, have to explain to the public how they could pursue policies so stupid, hurtful, damaging and transparently illegal. The fight's not over, but Friday was a good day for students, parents and teachers in Florida.