Fla. judge: Tests alone can’t hold 3rd graders back

Advancing past third grade in Florida has to depend on more than a reading test score, a Leon County judge has ruled, the Associated Press reports.


Betty Suarez’s 3rd-grade class, Reynolds El. Sch. in Fla., Oct. 1963 (Florida Keys Public Library / Flickr CC)

Classroom grades and teacher evaluations have to be factored into the formula for determining whether a third-grade student can be advanced to fourth grade, Judge Karen Gievers ruled, considering a law signed by Jeb Bush as governor 13 years ago. Parents have been frustrated by the law ever since and filed suit three weeks ago, the Tampa Bay Times reported.

Judge Gievers also agreed with the plaintiff parents that, although the law gives students who don’t pass the test an opportunity to submit portfolios of their work in order to advance to the fourth grade, school districts have, in practice, denied them that right.

Parents in six counties told their third-grade kids not to answer any of the questions on the test—to opt out, that is. Then those students submitted a portfolio. When they were told they would not be allowed to advance to fourth grade, despite having submitted a portfolio that clearly demonstrated they were reading at grade level, their parents filed suit.

“From what I have seen and understand of the ruling at this point, I couldn’t be happier,” the Times quoted Michelle Rhea, an Orange County parent who is the lead plaintiff in the lawsuit, as saying. “Feels great to have such a big victory against such an overwhelming system.”

The law, Judge Gievers said, doesn’t define “participation” clearly enough. Does it count if the student just writes his name on the test? Does he have to answer all the questions in order to count as a participant? Just one question?

Laws in other states are also very fuzzy when it comes to what constitutes a “participant” on a test that’s used for accountability purposes. We are all familiar with the section in No Child Left Behind—and now the Every Student Succeeds Act—that requires 95 percent participation in each school on statewide standardized tests.

But the opt-out movement has changed that—or, it has at least changed our perception of the law by putting a different viewpoint into the debate. Many school districts, especially in states like New York, New Jersey, Colorado, and even Illinois, posted official “participation” rates below the 95-percent threshold.

In a stunning loophole, which has certainly been discovered by many advocates of opt out and opponents of the movement alike, federal law only requires states to administer standardized tests and give an opportunity to every single student; it doesn’t say anything about what students have to write in the test. This loophole remains wide open under ESSA, although states and districts may have adopted policies that require students to answer a certain number of questions. Those laws, however, can certainly be challenged on free speech grounds.

About the Author

Paul Katula
Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.