Mom in 3rd Grade Lawsuit Addresses Seminole School Board

This week, Rhonda Nickerson addressed the Seminole County School Board. Her address was read for her by parent, Jodi Parham.

You, the Board and Superintendent of Seminole County Public Schools have stated numerous times that you don’t like the reliance and significance placed on standardized testing. However, at the first opportunity to demonstrate that beliefyou chosotherwise.

You could have stood with us in putting our students first, putting actions behind the districts apparently empty words.  Instead, you each chose to support the very costly move to fight the judge’s ruling. You certainly are NOT REQUIRED to do so. Please don’t say, “It’s the lawyers.” The lawyers answer to  this board.  You made your choice to send a message about where you really stand and it‘s clearly not on the side of our children. Not only did you not stand with us, you’re using our own tax dollars to fight against our children. If this doesn’t turn your stomach, I don’t understand.

This year, Seminole has added more testing.  More dependency on a test score, instead of more trust in our teachers. How can that be interpreted by parents and teachers as anything other than hypocrisy?

At the very least, this district could have acted according to the Judge’s order and promoted proficient third graders. You didn’t, and instead continue to act against our students’ best interestsYou have doomed them to an entire year spent bowing to the testing god with each and every mind-numbing repeated lesson. Violating those same statutes you pretend to serve with blind obedience, as no alternative curriculum is being used.  Another 180 days of knowing, in their little 9 year old hearts, that they are valued less than their test scores. Lessons we parents will spend a lifetime trying to undo.

You are sadly mistaken  if you believe that every child doesn’t know the importance placed on TEST scores. They feel it in their tummies with stomachs pains and heads with headaches. They show it in how they treat those around them, acting out at school or at home. Some go so far as to taunt other children about their test scores.

You could do the right thing and promote those kids stuck in 3rd grade again. Especially Gabi’s daughter and those like her. Every day that that sweet, brilliant girl sits in 3rd grade takes a chip out of her self-worth. We all know she doesn’t belong there and yet Superintendent Griffin and this Board are stubbornly stuck on a score to prove it. 

Ask yourselves:

Why is a gifted child with a near 7th grade reading level still in the 3rd grade?

Where is your proof that she belongs there? Not having a test score is not proof of a reading deficiency. The law and judge clearly stated so several times. Your willingness to damage these children each and every day is a horrible, ugly stain on this county and on EACH AND EVERY ONE OF YOU.

My family is just one of many harmed by this district’s practices. Throughout Sarina’s 3rd grade year, I repeatedly asked for a true portfolio to be done. I was denied, despite the law and a judge’s order. Only more testing was offered. However, a state certified teacher has certified Sarina’s portfolio as proficient for promotion to 4th grade. No test score needed. Imagine that.

Placing so much importance on these numbers is destroying public education…perhaps we should really call it what it is…

Public Testing of the many, for the Profit of a Few.

Sarina Nickerson’s Third Grade Report Card

Parent to Broward School Board: “I will not go quietly into the night…”


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Brandy Paternoster is one of the plaintiffs in the lawsuit to make #180DaysCount in school.  Her compelling address at the Broward County Public Schools’ Board meeting yesterday, is an indictment of the district’s position and their appeal of Judge Karen Giever’s Court ruling on August 26.

Watch as she holds the Broward County School Board accountable for their failure to do what is right for students (beginning at 0:50):


Retired educator and Opt Out Broward administrator, Dr. Trudy Jermanovich strengthened Brandy’s position with her own address. Watch, as she schools Broward School Board on an authentic portfolio for third grade promotion:

“This board must learn to start trusting teachers. Give them guidelines and set them free to teach. You have the ability to stop playing games with children’s lives. I urge you to stop supporting the DOE in its endless attempts at stalling the Third Grade lawsuit.”


Here is a transcript of Brandy’ Paternoster’s address:

“Good afternoon. My name is Brandy Paternoster and these are my 4th grade twins, Dylan and Jadyn. They have attended Manatee Bay Elementary in Weston since the first grade. They passed the 3rd grade last year …according to their teachers and according to their report cards, but the district says they must be retained.

My children met test participation requirement by signing the FSA test booklet and breaking the seal. At no time was I ever notified that either child has a reading deficiency. Two days before school ended, the principal advised us that without a test score, both children did not meet criteria to be promoted to 4th grade. I requested that a portfolio of their school work be compiled to prove proficiency as outlined in state Administrative Code and was told that such a thing does not exist. I demanded that my children be promoted based on their report cards per Florida Statute 1008.25 (6)(b)7.c)1. which clearly states:

“Requests for good cause exemptions for students from the mandatory retention requirement… …shall consist only of the existing PMP, IEP, report card, or student portfolio.”

I was ignored. The principal stated that it was coming down from the district and that without a test score, her hands were tied.

“Let’s get them to 4th grade” she said. “That’s where they should be! Just have them take the SAT-10 test and this can all be resolved!”

I refused any additional testing because test participation requirement had already been met and our children are more than a test score!

As part of the school board’s case against us in the “3rd Grade Retention Lawsuit” the principal filed an affidavit. Here is a quote:

“18. Based on the above information and my numerous years as an educator, I do not believe either student has the reading ability to complete 4th grade material.”
-Heather Hedman-DeVaughn, Principal – Manatee Bay Elementary

This is a direct quote from the principal’s sworn statement. Let that sink in. Back in June, all they needed was a test score to promote. Now, all of a sudden, they are not even proficient? You see, in addition to providing the facts and dates and emails and documents as required of her in her affidavit, this “educator” made a choice. Her statement could have read, “Because they did not meet the state requirement…” or “Because they don’t have a test score…” and though I don’t agree with either statement, they would still have supported the districts stance without crossing any lines. But she didn’t. She made a choice. For a test score.

“I do not believe either student has the reading ability to complete 4th grade material.”

She chose to lie. I don’t know if her statement was influenced by her supervisors (I suspect that it was) or if she chose those words all by herself. We may never know, but make no mistake, she made a choice.

Mrs. DeVaughn made a choice to NOT stand up for children who were present in the classroom for 180 days of work, who do not have a reading deficiency and who clearly are on grade level. She chose not to support her teachers, whom she hired, or their ability to teach and grade students effectively and accurately. She chose not to trust in their teaching certificates or their degrees or their most basic moral character. She chose not to back her own school or the systems she has put in place to ensure her wards navigate the education system successfully.

Mrs. DeVaughn chose to support a testing system that is broken and in doing so betrayed it all. Her statement says that her school failed to catch, not one, but two students who supposedly can’t keep up but passed all subjects. It says that her hiring practices failed. It says that two good teachers are incompetent liars. It says that two amazing children are failures.

For a test score.

Mrs. DeVaughn chose to sacrifice 2 children to the gods of “The Test” presumably to garner some unimaginable favor. She chose wrong. And you, as school board members, chose wrong when you decided to appeal Judge Gievers’ ruling. Her ruling untied your hands and gave you the opportunity to say, “Ya know what, we screwed up, but we’re gonna fix it now,” but you didn’t.

I leave you with one final thought.

My tax dollars, your tax dollars are paying for lawyers to fight against children who are clearly proficient, as defined by the letter of the law – to punish me for standing up and saying “NO” to a flawed testing system. Our tax dollars are being used to appeal the judge’s ruling, that was in our favor, that said, “Yes, the FDOE and the Broward County School Board did indeed act unlawfully”; to make an example of us for daring to have a voice and to ensure that no one else will ever be brave enough to do the same.

Let me be clear. I will not go quietly into the night.”

I stand here for our teachers.

I stand here for our children.

They are more than a test score!

Thank you.”

Sincere thanks to the members of the Broward Teachers Union for supporting Brandy and Trudy by yielding their time so that they could properly address these issues with the Broward Board.
The plaintiff families are fighting to hold the FLDOE and school districts accountable to the PUBLIC.  They are fighting for all children in Florida public schools.

You can support their efforts by donating to

To learn more about the lawsuit to fight mandatory third grade retention, follow the hashtag #180DaysCount on Facebook and Twitter.

A complete copy of Judge Gievers’ ruling and Court Order can be found here.

9/04 UPDATE – 3rd Grade Lawsuit
A WIN For Education in Florida Today!
Fighting for the Soul of Education in Florida – Day 1

– Why we do this:
– THIRD GRADE OPT OUT GROUP for help and support:
– For statewide information and suggested reading: Website
– For the most current news on education/testing: The Opt Out Florida Network

How to Request a 3rd Grade Portfolio


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by Sandy Stenoff

I recently posted a checklist for a statutory portfolio, created by certified teachers, that meets the State’s requirements for a portfolio assessment, using not a series of test bank items, but third grade classwork, which, by the way, includes tests.

What’s going on right now?
Many schools have been welcoming and accommodating, but others have resisted and even pushed back. Some schools have gone so far as to declare that students with no prior history of reading difficulty suddenly have a reading deficiency…. OK… isn’t this the perfect reason why a portfolio should be maintained?

Like many others, I’ve successfully opted my ten and twelve year old children out of testing for the past four years, without incident. The path will be much clearer after the judge rules on the state’s and districts’ appeals and we are all anxious for resolution, but in the meantime, here are some suggestions:

Develop a relationship of respect with your child’s teacher. It will go a long way to
fostering mutual trust all year long. Necessary. Your request for a portfolio can wait until AFTER Open House. There is too much going on at Open House and you need to have a one-on-one conversation.

AFTER Open House, email and ask for a brief meeting, before or after school to address some concerns and observations.

Print this brief letter out, bring it with you to give it to the teacher at your meeting. E-mail a copy to the teacher and principal after the meeting to maintain a record of your request.


Dear Ms. Crabtree,

I have concerns about (name)’s performance on testing, which could put him at risk of retention. I am therefore asking respectfully, that a portfolio of classwork be maintained for him.

In order to make this as simple as possible for you, I have attached a sample Third Grade Portfolio Checklist with Portfolio Instructions that meets the state’s portfolio requirements. Other teachers have found it extremely helpful.

Thank you, in advance for your kind cooperation. Please let me know if I can be of assistance to you and if you have any questions. We’re looking forward to a great year in your class!


That’s it.

Your own checklist of items to print and bring with you to meeting:

  1. Brief letter requesting portfolio – 2 signed and dated copies
  2. Third Grade Portfolio Checklist 2016-2017
  3. Third Grade Portfolio Instructions 2016-2017

Step 2: The meeting 
Be respectful of the teacher (and students). Be on time. You can be frank and let the teacher know that you see and feel a lot of emphasis put on making sure the kids pass a test that isn’t even for another seven months. Tell her you have concerns that although your child is a good student, that you are concerned that he isn’t consistently a great test-taker and one bad day could be a disaster, putting him at risk of retention, so you are requesting that she, please, maintain a portfolio.

Present your letter and let her know that it is not your intention to create more work for her, so you have taken the liberty to share the portfolio checklist with her. The extra copy of the letter is for the principal.

You can choose to discuss opting out of the test or not at this time. I would suggest that unless you feel the teacher will be supportive, that you hold off on this, as long as you know that a portfolio will be maintained, you got what you came for. There is plenty of time to notify the teacher and school that you will be opting out.

If you feel you must advise the school about opting out, let them know that you have done your homework and have considered this carefully. You are taking a stand because you see how testing drives everything in school.

Let the teacher know that you trust her professional judgment and ability to teach and assess your child on a daily basis, far more then you trust a single test on a single day to tell you if your child is learning and developing appropriately and whether your child is fit for promotion or not.

Step 3: If your request for a portfolio is refused.
No need to raise the specter of opting out just yet. If the teacher or principal still resist the portfolio after this, then you can go into more detail.

“To clarify – if you are refusing to maintain a portfolio for Matthew, I’d like to point out that per FS 1008.25(5)(c)7.,

“…A parent of a student in grade 3 who is identified anytime during the year as being at risk of retention may request that the school immediately begin collecting evidence for a portfolio.”

In the interest of making sure that Matthew is able to demonstrate mastery of the standards at the end of the year, please let me know if I can be of help in organizing his portfolio.

Thank you for your understanding.”

This also applies if the school tells you that the portfolio tests are the only acceptable portfolio. It simply isn’t true.

Step 4: Maintaining your own portfolio at home
If you choose not to fight the school and want to compile your child’s portfolio, then you will still need to collect ALL work completed at school to get it all organized.

“As you are not maintaining a student portfolio for Matthew, as I requested, I am formally requesting that you notate the standard(s) assessed on each assignment completed in class and return to me weekly, so that I may keep a portfolio that will demonstrate that he is fit for promotion at the end of the year.

If you are maintaining the portfolio, all you need is a 3-ring binder and a few dividers. Separate the work into subjects (Language Arts, Math, Science and Social Studies) and save them in date order.

The threat of retention can cause anxiety for many families, but I’d like to ask you to put yourself in the teacher’s shoes for a moment. A curt, demanding letter from a parent can be intimidating and is, at the very least, off-putting. It’s possible for this process to take a few weeks of communicating back and forth, especially if the school invokes the powers of the district. It could be a very simple one time conversation, but it could also be challenging. Be patient. If you start early, you should have ample time.

Help and support are always available to you at Opt Out Florida Third Grade.

Many teachers are still unaware that districts were taken to task by Judge Gievers for not doing a portfolio as parents requested early on. They may be unaware that going forward, such refusal may be considered a violation of Judge Gievers’ Court Order.

Feel free to print out these sections of the Judge’s ruling for your child’s teacher if you feel you need the back up:

Screen Shot 2016-08-27 at 4.38.32 PM

Summary of Rulings #18, p 13 of 51

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Summary of Rulings #40, p 24-25 of 51

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Rulings #5, p 49 of 51

This may be all that’s needed, though I’d hate to start the year off this way. Based on your relationship with the teacher, it’s a judgement call on your part.

Try to keep it as simple and as cordial as possible. You CAN assume the best and give teachers and staff the benefit of the doubt, unless they prove you wrong.  There is no need to put anyone on the defensive. Smile.

YES – How can we work together in the best interests of my child?
NO  – Why won’t you do this for me?

Consider for just a moment, that most teachers are not even aware of “Activist World.” Most teachers stay up late grading tests and assignments, working on lesson plans, answering emails from PARENTS. Many teachers sacrifice precious personal time with their own families so that they can do their best for other people’s children.

So parents, please think twice before storming the castle, waving the judge’s orders and demanding portfolios. Parents absolutely have a right to ask for, and to receive a portfolio. But let’s first think of how we can help teachers to understand that we want to work WITH them, that we are doing this because we have more faith in them than we do in a single high stakes test and we support them as the experts.

Teachers should be aware that you are HELPING to make sure that your child is promoted, not retained, which one would also assume could ultimately affect his/her evaluation.

Until now, I have felt that some of the most successful opt outs are done quietly in schools, where there is no disruption caused to your child’s classmates and school.

But is DISRUPTION what is needed to cause an entire paradigm shift?

Disruption in your child’s school (not OK) is different from disruption in the community (very OK).  Disruption doesn’t have to be “in your face” with your school. It can be simply you sharing what you know everywhere. It can look like this car in the carpool line every day. This one happens to belong to a former teacher.


Or it could look like a parent sharing Opt Out flyers at Saturday soccer. (Updated flyers will be available soon after the judge rules on the state’s appeal.)

Disruption could also look like parents addressing genuine concerns at public school board meetings. We must hold those in positions of authority accountable. We can do that by being a voice for our children with those who make the decisions affecting our children’s daily experience in school. If parents are to have an authentic voice in their child’s education, they must not only be informed, but they must help others to be informed as well. That includes school board members, legislators, etc. When you inform them at board meetings and legislative delegation meetings, it’s a public record and you take away their ability to claim, “I didn’t know.”

If we are to take our classrooms back for real teaching and learning, imagine this…

If your child’s teacher knew that none of her students would be taking the FSA, what would be the point of ANY test prep? She would be free to teach authentically and your child would be free to LEARN. Imagine just one classroom like this all year long. Now, imagine all classrooms like this, all year long, across our entire state.

When I asked my son’s teacher to do a portfolio a few years ago, she said it was no problem, because she had already started to do it for a few kids in class, who she felt were struggling. This is nothing new. It has been done, is being done and you have a right to ask. So ask. Nicely.

9/04 UPDATE – 3rd Grade Lawsuit


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Since last week Friday, August 26, when Judge Gievers ruled most favorably for the plaintiffs in the third grade lawsuit, it feels like we’ve been on a rollercoaster. As soon as the judge’s ruling was made public, Orange County filed their prepared appeal, to which OCPS legal counsel referred many times during the course of the nine hour hearing at the beginning of that week. Soon after, Hernando, Broward and Seminole Counties followed suit.

In effect, these districts are opting out of following the judge’s ruling and court order. The public may want to know who is funding these appeals, which have disappointed many, but surprised few.  Parent, Jinia Parker wrote a stinging and stellar open letter to Florida school boards,

I will not accept “our hands are tied” ever again. Throughout history, “I was following orders” has been the excuse of cowards and those who lack honor. I’m not asking for anything extraordinary. I am asking that school boards in Florida do the right thing.”

Last week, three of the children in the suit from Hernando County, who had their rights upheld by the Court, showed up eager to start school in the fourth grade, as Judge Gievers had ordered. In a brazen and cruel move, Chocachatti Elementary School told the children they could go to the fourth grade, just not there. Details are spelled out here, here and in the Tampa Bay Times editorial below, but suffice it to say that if the school had followed the law in the first place, the children would have been promoted in June and there would be no reason for them to file a lawsuit. Their parents would not have had to protect them from the emotional abuse of repeating a grade, out of which they had earned their way the year before.

The two Seminole County families were directed by the judge, to first seek administrative relief with their district. Seminole County Public Schools told the parents that their children would be promoted IF they take and pass the same test items to make up a portfolio or the IOWA, both of which they had refused before… Stalemate.

So did the judge say they could go to the fourth grade or not?

There has been some confusion surrounding the Third Grade families’ lawsuit and the attached motion for injunctive relief.

First, this case is not over. The motion for relief was just the first step, that had to be addressed before the suit can get under way.

The families are challenging the Florida Statutes and how the FLDOE and school boards are applying the statutes to disadvantage the children and children across Florida.  The State is failing to apply the exemptions provided in the statutes. They are retaining children just for non-performance on testing in violation of State law. The Court ruled favorably to the families on many of these issues and if you have read the ruling, you know what they are.

So why doesn’t it feel like the children are winning?  Why are the children still in 3rd grade?

The children ARE winning… but the process takes time.

Here is what is happening:

Attorney Mogenson asked for emergency relief on behalf of each child.  Judge Gievers granted relief only to some, in spite of the request.  This may not have been clear, because the judge did not allow for closing arguments.  The emergency relief sought is promotion to the 4th grade, based on report cards.  The judge, while favorable to our point of view, felt that the LAW limited her as far as EMERGENCY relief.  So she gave some relief (but not all that was asked for) to some of the children.  These issues will also be addressed in the trial ahead.  Her ruling stated clearly, however, that she saw violations of the law, for which relief cannot yet be granted.

Second, one problem for the families is that the order that is in place right now is not yet enforceable.  While districts could voluntarily comply, since it has been pointed out to them what the law is, the decision to enter the order is the subject of an appeal which stays (or puts on hold) the enforcement of the order and additional proceedings.

Mogensen has petitioned the trial court to lift this stay and the court’s decision about this is currently pending.  The judge will either lift the stay and the order will become effective, or the families will have to wait for the end of the appeal and our hope is that the families would prevail on appeal.  Assuming that one of those things happens, the order would then become immediately effective.

And finally, this battle is far from over, but it is a battle. And it will be a costly one.Public support will be crucial to keep it going. Remember that only the request for emergency relief has been ruled on.  The lawsuit, as a whole, has not even been presented in court as yet.

The amount of work for this case is enormous, because there are so many families, so many facts, and so many different district responses – layers of laws that are not being followed.  In addition, there are multiple lawyers for each defendant on the other side, who are all spending hours (and public resources) filing challenges to everything.  Many of the challenges have been of an emergency nature, which has required emergency responses.

The court of public opinion seems, overwhelmingly, to be in our favor.  We are all anxious to see results for the children and for decisions that will have far-reaching implications. We encourage everyone to remain patient and remain supportive as this unfolds. The families and attorneys are doing important work that could benefit all children.  They are committed to seeing this through and are in it for the long haul.  The Court seems inclined to agree with our point of view.

Public awareness of the lawsuit is growing, both statewide and nationally. Social groups and news networks are picking it up. Parents are discussing it in grocery lines and on the soccer sidelines. This victory with the motion granted and the judge’s stern rebuke of the state and districts’ utter manipulation of the law to their own ends has been a thing to see.

Many parents have shared with us that, because of this lawsuit, they now believe there is more reason than ever to push for change. We are steadily chipping away at madness that has been high stakes standardized testing.

We have received so much feedback from the public about the lawsuit. We wanted to share this in particular, from a retired lawyer to the plaintiffs:

“I am a “mommy-retired” lawyer, and this sort of “bury them with motions” crap makes me ill. Good luck with everything. Don’t let them push you all around. Opposing counsel are about winning, which is the name of the game in law (and they are doing their jobs, sadly); however, the DOE is failing to consider the optics here. How does it look to the parents of this state that the department our tax dollars support is playing hard ball with third/fourth graders and their parents?? Bad, bad move, DOE. 

Thank you all so very much for taking this on for the rest of the state. Seriously. Thank you. We are indebted to you for the heartaches of your children, the headaches of the legal process, the money, the time, etc. Please know that there are people watching this with gratitude and prayers for a positive outcome for all.”

The response from one of the plaintiff families:

“I have to tell you this made me cry. Because of everything we have gone through with this fight, I have questioned my decision to fight nearly by the hour. I am trying to teach our child…we can do hard things…we can face challenges with poise and dignity by always doing what we believe is right and just, even when it’s hard…even when there are bullies. Thank you for your support.”

Media coverage has consistently reported the public’s frustration with the DOE (even school districts’ own frustration with them) and about our outrage over how some of the plaintiff children continue to be mistreated by their school districts and their schools, even after the judge’s ruling.

We all rely on the press to hold our government agencies accountable to us, the public.  It is reassuring to see the press holding the districts’ and the FLDOE’s feet to the fire.Yesterday alone, the lawsuit garnered two editorials:

From the Tampa Bay Times:

Editorial: Hernando school district loses lawsuit, punishes kids

“Reason flew the coop in Hernando County, to be replaced by cruelty… Florida’s high-stakes testing system is bound for a reckoning. Too many parents don’t trust the tests or don’t agree with the philosophy behind accountability. The opt-out movement is getting louder, and more lawmakers are listening. District officials look like bullies who, unable to defy a judge, picked a weaker target: fourth-graders.”

From Steve Sabato, Director of Community Engagement for ABC7, Sarasota:
“Civil disobedience is democracy’s way of saying enough is enough.”

We couldn’t agree more.

Please donate to support the legal fund:

On behalf of the families, thank you for your continued generosity and encouragement.


Open Letter to Florida School Boards


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For years, school boards have been telling parents how much they sympathized and empathized with us, as we have pleaded and protested to make a year of school count for more than one test.  There are districts doing right by the children and promoting them, as the law specifies. However, immediately following Judge Gievers’ ruling last Friday, effectively “untying the hands” of all school districts in Florida to do as parents have requested and use a portfolio assessment (not the same as the state’s portfolio test bank), Orange and Hernando Counties filed their already prepared appeals. It’s clear now, that the boards’ chants of, “Our hands are tied” were just excuses to not do better. Sadly, yesterday, Broward and Seminole Counties followed suit, in defiance of the judge’s orders.

In response to the districts’ motions for appeal, this “Open Letter to Florida School Boards” was penned by parent activist, Jinia Parker of Pinellas County. We couldn’t have said it better and we are sharing it here with permission:

Dear Florida School Boards,

Parents, educators and activists have reached out to you for years, asking for your help and guidance. Again and again we got the same messages.

“Our hands are tied.”
“We must follow the law.”
“We wish we could do things differently, but…”

The order issued last week by a Florida Court finally freed those hands completely as the judge’s order made it clear that the districts had not been following the law (as directed by the purposely absent hand of the FLDOE).

I waited for the celebration from the districts. Finally! Those hands were freed and with them, so too, our kids. Finally! School boards were free to follow the statutes plain language AND with the support of the court. Finally! You could authorize superintendents and principals to promote all those proficient students to fourth grade, saving tax dollars & reducing the harm already done to them under your authority. Finally! School boards could recognize, as it was demonstrated plainly in court, that the FLDOE does not have your back. Finally! The focus of school districts would be our students, not serving the illegal mandates of the FLDOE.

That isn’t what happened.

First, Orange County Public Schools appealed the judge’s ruling, followed by Hernando, Broward, and sadly, Seminole Counties. The FLDOE’s appeal is expected, but I’d rather the districts hadn’t raced them to do so.  Though it shows us who is who.

This speaks volumes about those districts, demanding free hands to continue harm against students. If you think parents won’t be aware, you are wrong. I believe the impeachment of any elected official, seeking to continue harm to children by refusing to follow a court order is not only appropriate, but the only appropriate action. I’m asking that they resign right now. I have little hope of that, given the complete lack of honor with which these districts (and therefore school Boards) have approached the last school year (and more) on this subject.

I will not accept “our hands are tied” ever again. Throughout history, “I was following orders” has been the excuse of cowards and those who lack honor.

I’m not asking for anything extraordinary. I am asking that school boards in Florida do the right thing.

These families, including children, chose to be honorable and brave. You should try it.

Out of patience,

Jinia Parker

Use #180DaysCount
Tweetable link:

A WIN for Education in Florida Today!


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The Opt Out Florida Network is celebrating substantial victories today with the Order issued by Judge Karen Gievers.  Mandatory Third Grade Retention is a cornerstone of Florida’s failed Accountability System that tests and punishes our students.  Today was a good day for Florida’s students, but this fight is not over.  Our work to support children being assessed on their 180 days of classroom work, to include the professional teacher as a primary expert in these decisions, continues.

As of today, Judge Karen Gievers ruled that Florida third graders can be promoted based on a portfolio or a report card, unless their parents have been notified that there is a reading deficiency.

Judge Gievers also confirmed that minimally participating (Opting Out) does indeed satisfy the requirement of the law.

In the coming days, Florida school districts, and the Florida Department of Education, will attempt to appeal and to ask for stays of this order. It could be heard by the Florida Supreme Court shortly.

On behalf of the families who have stood up in this lawsuit, we would like to express our gratitude for the support and generosity of all who have contributed, many repeatedly, to the legal fund. It is worth noting that many, many donations have come from educators all across the country.

While this challenge has the potential to cause statewide change, and offer support to other states looking to do the same, it will come at great expense.

Support the plaintiffs by donating to

The Opt Out Florida Network

For the complete ruling:
Judge Gievers’ Order 082616

From Plaintiffs’ attorney, Andrea Mogensen:
Third Grade Retention Press Release Aug26

Contact: Andrea Mogensen
Tel: (941) 955-1066

August 26, 2016

Judge rules report cards do matter for third grade students

Education officials ordered to accept student portfolios or report cards for kids who opt out of standardized tests

Tallahassee – A Tallahassee judge delivered a decisive blow to Florida’s standardized testing scheme, telling state and local school officials that report cards and classroom participation can be used as an alternative when parents opt out of testing. In a watershed moment for students who were not promoted to the fourth grade due to their minimal participation in the Florida Standards Assessment, Judge Gievers granted a temporary injunction allowing some third graders to be promoted where school districts did not allow “a teacher-compiled portfolio that consists of non-test class work and test-based standards assessments.”

The state had argued that allowing students to opt out of standardized tests would undermine the Jeb Bush-era focus on testing, while the parents claimed that the law allowed for promotion decisions to be based on report cards and actual classroom participation.

Judge Gievers sided with the parents, finding that the Department of Education and the Hernando County School Board violated the law when they illegally refused to provide any portfolio option and that “neither the [Department of Education or local school boards] have the discretion to ignore the Florida Laws.” Gievers’ ruling defined what “minimal participation” is by stating that “the children were present at the time, broke the seal on the materials and wrote their names, thus meeting their obligation to participate.” In addition, she wrote: “The School Board and [Department of Education] had no right to ignore the legislatively adopted portfolio option” and ordered the Hernando County School Board to “immediately refrain from further actions and must provide the portfolio option.” She ordered education officials “to stop refusing to accept a student portfolio or report card based on classroom work throughout the course of the school year.”

The Court also found it unlawful in districts such as Hernando County where a child without a reading deficiency who has not passed the FSA is held back, citing Florida Statute 1008.25(5)(c)(6) which prohibits retaining students solely for FSA non-compliance.

The judge ordered the Department of Education to stop disseminating misinformation that promotion required a level 2 score on the statewide test, finding that report cards and classroom work could be used to promote a third grader.

“We are very pleased that the court agreed with us that it is in the public interest that the State Board of Education and school districts in Florida follow our laws, and focus on whether children can read, not whether they took a particular test,” said Andrea Flynn Mogensen, lead counsel for the children.

“We are especially pleased that it was specifically ordered that the Department of Education must accept minimal participation in testing as fulfilling the students’ statutory requirement to participate, and that grade 3 students with no reading deficiency should be promoted, not retained.”

The ruling came at a critical juncture for what’s known as the opt-out movement. The Department and local school boards had amassed a legal team of more than 20 lawyers to fight the lawsuit, which has been on a legal roller coaster since it was filed 16 days ago. The case was briefly removed to federal court, but the parents were able to obtain a ruling from a federal judge two days later sending it back to state court. School boards from around the state then filed an emergency appeal with the First District Court of Appeal in Tallahassee, seeking to stop Gievers from taking evidence in the case. Gievers held a marathon 9-hour hearing earlier this week, taking testimony from state educational officials from across the state as well as parents of third grade students.

A copy of the ruling can be found at


Statutory Third Grade Portfolio Checklist


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by Sandy Stenoff

Growing public awareness surrounding the Florida parents’ lawsuit against the Florida Dept of Education and six school districts has brought parents clamoring to get into the thirty-five opt out groups across Florida.  Parents are outraged by just how much testing has steamrolled public education, stealing valuable instruction time given over to test prep. They want to know how to fight for authentic education for their own children.

On Friday, August 26, 2016, Florida Circuit Court Judge, Karen Gievers ruled as follows:
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Even before last Friday’s court ruling affirming what we have long believed, The Opt Out Florida Network had been inundated with requests from parents, who want to know how to make sure that their children’s 180 days in school aren’t laid to waste by a single State test, that could send their child back to the third grade, even after they have proved mastery of the required standards.

Certified teachers have created a portfolio checklist, with all of the State’s portfolio requirements outlined in Florida StatuteFlorida Administrative Code and a FLDOE Technical Assistance Paper. At the risk of redundancy, multiple sources are cited throughout this post in order to assure parents, teachers, administrators and school districts that the checklist offered here does indeed meet ALL of the State’s required guidelines for a portfolio used as an alternative assessment.

In an ideal world, proof of competency, proficiency and mastery would be demonstrated in an authentic portfolio of work completed independently in a classroom, under the guidance of a trusted, professional teacher.

TO BE VERY CLEAR – As far as The Opt Out Florida Network is concerned, an authentic student portfolio would include various types of student work samples: artwork, creative writing, evidence of deep understanding, evidence of critical thinking, independent projects, etc.

It appears that the stance of the FLDOE has been that no parent should expect that an authentic portfolio would be used for promotion in any Florida public school, even with all of the “honor and privilege” of a teacher’s degree and certification behind it. Because we just can’t trust teachers. But we can trust a glitch-ridden, developmentally inappropriate, not fully validated, multiple choice test with “fluid” cut scores.

The State says that report cards are meaningless and have therefore created test bank items that may make up a “test portfolio.” The law does NOT require parents to accept a portfolio comprised only, or in any way, of these test bank items.

From a previous post, Student Portfolio Puts Assessment Where It Belongs… With Teachers (Jun 21, 2016):

There is even more detailed guidance from the FL DOE on Third Grade portfolios.: Florida Department of Education 2015 Third-Grade Portfolio – District Guidance

The student portfolio may consist of some or all of the following resources:

NOWHERE does it say that a portfolio must utilize ANY content from the IBTP.

Many teachers have reported that the portfolio assessments are even more developmentally inappropriate for the average third grader than the FSA practice test. If a parent refuses the alternative testing offered and insists on a statutory portfolio, it would be made up of the assessments (assignments, projects, reports, quizzes, tests) done in school throughout the regular school year.

Parents should be aware that these may now include competency-based education, such as progress monitoring (predictive testing) from iReady, STAR, Accelerated Reader and so on. Some parents allow their students to take these tests, not knowing that they have a choice. Many parents successfully refuse these tests and ask that their child be given reading or other work of the teacher’s choosing. There is no State mandate for these additional tests, no matter what a school district may tell you.  If you are told that they are mandated, you should be asking “By whom?” and you should also be asking for the statute mandating such testing. The ONLY State-mandated test is the FSA.

One of the most important statements we make in refusing these tests is that we trust that our teachers are trained professionals.  We have more trust and confidence in their ability to work with our children all year long, to teach and to assess them, than we do in any single test.

For the purposes of clarity here, we will distinguish between an “authentic portfolio,” the state’s “test portfolio” and a “statutory portfolio”, which is the one we offer help with here. To this end, certified teachers have created a checklist to to help track the development of a statutory third grade portfolio throughout the school year, that would meet the requirements of Florida law as well as that of the Dept. of Education.

Parents may ascertain that their child’s work will count for SOMETHING by requesting that a portfolio of completed classwork be compiled and maintained to assure a more meaningful record of a student’s work throughout the year, than the state’s series of portfolio tests.

Please click on these two documents to share with your child’s teacher.

Third Grade Portfolio Checklist 2016-2017

Third Grade Portfolio Instructions 2016-2017

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The checklist is a user-friendly, expandable table in a word doc. It has been tested by a third grade teacher, who recently used it to certify a retained student’s portfolio.

In her words,

“This is a wonderful tool!

The idea to have the standards broken up into clusters and space to list the examples underneath each cluster came from my recent experience of validating a retained child’s body of work from scratch.  It was helpful in keeping everything organized. To be sure, many assignments landed in more than one area. When I was finished, however, I ended up with a nice list of each standard with three examples. This way I could also tell if there was enough evidence for each standard easily.

This was what worked for me. If a teacher keeps up with the portfolio throughout the year and is fairly organized, it may not be necessary. But, I really liked having a list of assignments under each standard- it was useful “at-a-glance”, which may also be helpful for teachers who may be responsible for multiple portfolios. It should be simpler if it is collected and documented throughout the school year. This tool really helped me. Thank you so much, everyone, for creating it.”

The requirements* for a “statutory portfolio” are summarized:

  • 3 assessments per standard
  • Each assessment is multiple choice
  • Each must have a score of 70% or higher
  • 60% Literary Text passages, 40% Informational Text passages
  • Passage word counts must be between 100 – 700 words, the overall average word count of the passages is to be 500 words.
This is far from an authentic representation of all of the work your child will do for 180 days with their teacher in the Third Grade. But following these guidelines should fulfill the state’s portfolio requirements in order to avoid what so many families are enduring  now.
Guidelines to school districts from the FLDOE are repeated in
FLDOE Technical Assistance Paper (TAP) Third-Grade Student Progression – Oct 24, 2014 (Pages 5-7)

The criteria for a Statutory Portfolio are spelled out in the above referenced TAP, as well as in (Florida Administrative Code) FAC 6A-1.094221*
(3) To promote a student using a student portfolio as a good cause exemption there must be evidence that demonstrates the student’s mastery of the Language Arts Florida Standards in reading equal to at least a Level 2 performance on the grade three statewide English Language Arts Florida Standards Assessment. Such evidence shall be an organized collection of the student’s mastery of the Language Arts Florida Standards that are assessed by the grade three statewide English Language Arts Florida Standards Assessment. The student portfolio must meet the following criteria:

(a) Be selected by the student’s teacher,

(b) Be an accurate picture of the student’s ability and only include student work that has been independently produced in the classroom,

(c) Include evidence that the standards assessed by the grade three statewide English Language Arts Florida Standards Assessment have been met. Evidence is to include multiple choice items and passages that are approximately sixty (60) percent literary text and forty (40) percent information text, and that are between 100-700 words with an average of 500 words. Such evidence could include chapter or unit tests from the district’s/school’s adopted core reading curriculum that are aligned with the Language Arts Florida Standards or teacher-prepared assessments.

(d) Be an organized collection of evidence of the student’s mastery of the Language Arts Florida Standards that are assessed by the grade three statewide English Language Arts Florida Standards Assessment. For each standard, there must be at least three (3) examples of mastery as demonstrated by a grade of seventy (70) percent or above on each example, and,

(e) Be signed by the teacher and the principal as an accurate assessment of the required reading skills.

Should a parent be told that the portfolio tests are the only acceptable portfolio, they should know and share with their school, that per FS 1008.25(5)(c)7.,

“…A parent of a student in grade 3 who is identified anytime during the year as being at risk of retention may request that the school immediately begin collecting evidence for a portfolio.”

As Judge Gievers’ ruling reinforces:

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and finally,

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Judge Gievers did not “order” what we think of as a teacher-developed portfolio. She said a portfolio or report card was allowed by law. She stopped short of differentiating between a test portfolio and one that is more representative of what is actually produced daily. That definition will have to be challenged in a separate case. What we have provided (the portfolio checklist) will satisfy the law, but you do need to work with your teacher on this. There is no guarantee that your school will go along with this, but there is also no reason for them not to.  (Updated 9/8/16)

A complete copy of Judge Gievers’ ruling and Court Order can be found here.

To learn more about the lawsuit to fight mandatory third grade retention, follow the hashtag #180DaysCount on Facebook and Twitter.

– Florida Department of Education 2015 Third-Grade Portfolio – District Guidance
– FLDOE Technical Assistance Paper (TAP) Third-Grade Student Progression – Oct 24, 2014 (Pages 5-7)
– Criteria for Statutory Portfolio (Florida Administrative Code) FAC 6A-1.094221
– Why we do this:
– THIRD GRADE OPT OUT GROUP for help and support:
– For statewide information and suggested reading:
– For the most current news on education/testing: The Opt Out Florida Network

Fighting for the Soul of Education in Florida – Day 1

It was an eye-opening start to the day in court for the families of third graders under threat of retention, in spite of the fact that none of the children demonstrate a reading deficiency. For those of us focused on the only live source of information from the courtroom – the live Twitter feed of AP reporter, Gary Fineout, his first tweets should have been a sign of things to come for the afternoon… but we were still hopeful.

Attorneys from the school districts complained that they hadn’t been properly served (they are served electronically) and therefore needed more time to prepare. Keep in mind that there are hundreds, if not thousands more children, not in the suit, who face similar issues, who have been stewing in their anxiety over retention issues all summer long.

Then we found Brandon Larrabee from the News Service of Florida:

The DOE’s and districts’ attorneys are unified in having completely missed the point of the plaintiffs’ arguments, that the children are qualified to progress to the fourth grade. In their zeal to protect the test at all costs, they are unable to see children as children. To them, the children are data points.  The state’s interests outweigh any little 9 year old interests. They can’t vote. They don’t matter. It’s crystal clear.

So much is riding on this case, and paramount for ALL children, is the ability of children to be provided the education they need and deserve AND which the law provides for. That families must sue the state and their school districts to enforce the law in favor of children over the state’s interests is absurd, but there you have it.

Florida is a national joke.

From the Washington Post Answer Sheet,
“This belongs in the you-can’t-make-up-this-stuff category:
In Florida (you knew it was Florida, didn’t you?)….. That this is happening in Florida is not entirely a surprise, given that the Sunshine State was the leader, under Bush as governor, of test-based accountability systems that made standardized test scores the most important measure of student achievement and school success.”

Curmudgucation‘s Peter Greene won the internet when he cut right down to the bone:
“So then the state and superintendents tried throwing each other under whatever buslike structures they could find. And everybody had a full summer to sort out the highly challenging puzzle of what to do with third grade students who had passed every damn class on their report cards. Because, damn, that is a puzzler there.

Too big a puzzler, apparently, because the new school year has arrived, and a whole bunch of third graders are still expected to return to third grade so they can sit through all the lessons that they already successfully completed last year. If they keep refusing to take the test, will their districts just keep them in third grade until they are twenty-one?

We may not have to find out, because now the whole slab of baloney is in court.”

“David Jordan, an attorney for the Florida Department of Education, said it was important to have the testing requirement because he asserted that reports cards do not show whether a child is actually capable of reading.”

Can David Jordan possibly believe his own statement?

A report card is a summary report of all assessments done by a teacher in the classroom for all 180 days in the school year. If a report card does not show whether a child is capable of reading, then WHY exactly are we sending children to school in the first place?!! (I am trying not to shriek as I write this.)

From Orange County parent, Michelle Rhea:

“She’s a good kid, she works very hard and she earned her grade,” said Rhea, who started crying while testifying on the stand. “Her report card does mean something.”

Columnist Scott Maxwell may have said it best back in April of this year, in a landmark case over public school funding, in The People vs The State of Florida,
“Welcome to the Sunshine State — where citizens who want good government have to sue for it.”

John Romano: Once again, education officials fail a commonsense test in Florida
“These students were not held back because they did poorly in school. Most of them have documented records showing work that ranges from adequate to exemplary.

Instead, they were held back, the lawsuit says, because their parents did not want them taking a standardized test. And, in Florida’s hierarchy of zealots, that translated to blasphemy.

“Testing in Florida has taken priority over everything,” said Sarasota lawyer Andrea Mogensen, who is representing the parents. “And it seems everything about the test is connected to money. Money has polluted the entire system. The priority is not getting students to learn, but getting them to take the test.

And these parents object to that.

…the larger problem is getting officials in Tallahassee to realize they have lost their way. They are so convinced that standardized tests are the answer to all educational woes that they have become more devoted to the tests than to students.”

Andrea Mogensen, Attorney for the plaintiffs summed up the day perfectly,
“The court hasn’t ruled as of yet. But the FDOE argued that testing is far more important than a child’s actual performance in class and report cards do not matter.”
Our hearts and admiration go out to the brave children and families in this fight. There is reason to hope. Judge Karen Gievers, thus far, seems, above all, to have the children’s interests at heart.

From the News Service of Florida:
“(Judge Gievers) 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.”

May the judge’s decisions throughout this case be tempered with the wisdom to protect these children, first and foremost, which surely is not precluded by the law.

Cameras were not allowed in the courtroom today.  We have the honor of presenting the work of sketch artist, Peyton Mears, 11, from Opt Out Leon County, who was present to observe and to give moral support to the plaintiff families.


“Retained? You can go to 4th grade… sort of…maybe.”


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by Sandy Stenoff

Since the filing of the lawsuit by the parents of retained Third Grade students this week, The Opt Out Florida Network has been contacted by more parents of retained Third Grade students. School began today in many Florida districts and more will begin on Monday.

Parents who have been notified of third grade retention – for various reasons, are contacting us for help and information.  Does anyone wonder why parents aren’t contacting their districts for help? I will hazard a guess and say that if districts were receiving the appropriate guidance from the state, there would be no lawsuit. But since that is clearly not the case…

Districts face a dilemma for how to meet the needs of the students who demonstrate NO reading deficiency, but who also did not meet the state’s testing criteria for promotion. The young students’ educational needs dictate that they must be provided with an appropriate fourth grade education, yet they are not allowed to be placed, officially, in the fourth grade.

What can parents expect from their principals?

What options are available to these families that will meet the children’s needs?

In a number of districts, proficient third grade students, who failed the FSA, are being placed provisionally, in a fourth grade classroom, based on satisfactory report cards, which document that they are capable of moving to the next level in the fourth grade. This is being done with the understanding that the children are working toward mid-year promotion, as the law allows.

But, wait… there’s more.

While this is better than retention, this would be a lateral promotion, as opposed to a literal one, without the official title of “Fourth Grade student.”

In the workforce, a “lateral promotion” is often seen as a promotion in name only – no perks, no bennies, no raise. A non-promotion promotion. Everyone knows what it means. Just the meaningless title and maybe some extra responsibility to go along with being appeased with a non-promotion promotion. In this case, the meaningless title would be “provisionally promoted,” or something that has the word promoted in it, but which clearly denotes “temporary” status.

With such a placement, the child would remain vulnerable to having his non-promotion promotion stripped. Even if your child is placed in a fourth grade class, pending approval of a mid-year promotion, the threat of retention would remain. He can still be sent back to the third grade, even though he met the standards for promotion, which his report card proves.

From the August 9, 2016 Tampa Bay Times,

Florida school districts remind principals about mid-year promotion for retained third graders

“As retained Florida third graders return to school this week and next, district leaders are reminding principals and teachers that the children still may move up to fourth grade after classes resume.”

Certain districts have, in fact, been practicing placement of retained children in a 4th grade instructional setting (4th grade classroom), contingent on the student meeting the state’s criteria for mid-year promotion.  This is really just a “work around” for the districts, it helps them to meet the students’ educational needs, while the district is also able to say that the students are not yet promoted. It’s semantics. Which is the very reason for the lawsuit. These children should not be retained in the first place, on paper, or otherwise.

From Just Read Florida:


Retention does not mean that the child has failed. It does not mean that teachers or parents are not working hard enough. It does mean that the child needs more instructional time and help to catch up and reach reading proficiency. The purpose of retention is to give children who have substantial reading deficiencies more time and the intensive instruction they need to catch up in reading.


Additionally, here is an e-mail excerpt from the FLDOE to State Senator Darren Soto (D-14) confirming that this is a permissible course of action:

image1Specifically, as it concerns children, who are retained, but who lack a documented reading deficiency:

The state has the duty to provide appropriate education, therefore the forced repeating of third grade curriculum would be educationally inappropriate. If the students are actually placed in a 3rd grade class, while they are supposed to be working towards mid-year promotion, they will need to be exposed to 4th grade standards as well. If they were not, that would be inappropriate educational instruction, for these children.

From the FL DOE Technical Assistance Paper Third-Grade Student Progression – Oct. 24, 2013 (Page 10)

  • E-3.  Can a third-grade student, potentially eligible for mid-year promotion, be placed in a fourth-grade classroom and then promoted after demonstrating proficiency on the portfolio or an alternative assessment?
    Districts need to meet the individual needs of students. This can be achieved through implementing creative multi-age grouping or a transitional-classroom setting.
  • E-4.  Why would a decision be made about a student’s placement during the first semester of the academic year?
    Students should be promoted midyear or as soon as possible so they receive essential fourth- grade instruction. For example, if a student has attended a Summer Reading Camp and demonstrated mastery of all benchmarks but one, the student could show proficiency in the deficit benchmark and then be promoted to fourth grade. Any student meeting specified state requirements may be promoted midyear.
  • E-5.  How many samples of proficiency are required for each benchmark in order for a student to be promoted midyear?
    In any given school year, a student must have three examples of each benchmark successfully completed on the third-grade level, with a score of 70 percent or above on each example, in order to be promoted midyear. Rule 6A-1.094222, F.A.C. 

Failing that, will the districts adhere to the letter of the law here, as it pertains to students retained without any documented reading deficiency?

The 2015 Florida Statutes
F.S. 1008.25(7)

(a) Students retained under the provisions of paragraph (5)(b) must be provided intensive interventions in reading to ameliorate the student’s specific reading deficiency, as identified by a valid and reliable diagnostic assessment. This intensive intervention must include effective instructional strategies, participation in the school district’s summer reading camp, and appropriate teaching methodologies necessary to assist those students in becoming successful readers, able to read at or above grade level, and ready for promotion to the next grade.

(b) Each school district shall:
1. Provide third grade students who are retained under the provisions of paragraph (5)(b) with intensive instructional services and supports to remediate the identified areas of reading deficiency, including participation in the school district’s summer reading camp as required under paragraph (a) and a minimum of 90 minutes of daily, uninterrupted, scientifically research-based reading instruction which includes phonemic awareness, phonics, fluency, vocabulary, and comprehension and other strategies prescribed by the school district, which may include, but are not limited to:

a. Integration of science and social studies content within the 90-minute block.

b. Small group instruction.

c. Reduced teacher-student ratios.

d. More frequent progress monitoring.

e. Tutoring or mentoring.

f. Transition classes containing 3rd and 4th grade students.

g. Extended school day, week, or year.

2. Provide written notification to the parent of a student who is retained under the provisions of paragraph (5)(b) that his or her child has not met the proficiency level required for promotion and the reasons the child is not eligible for a good cause exemption as provided in paragraph (6)(b). The notification must comply with the provisions of s. 1002.20(15) and must include a description of proposed interventions and supports that will be provided to the child to remediate the identified areas of reading deficiency.

3. Implement a policy for the midyear promotion of a student retained under the provisions of paragraph (5)(b) who can demonstrate that he or she is a successful and independent reader and performing at or above grade level in reading or, upon implementation of English Language Arts assessments, performing at or above grade level in English Language Arts. Tools that school districts may use in reevaluating a student retained may include subsequent assessments, alternative assessments, and portfolio reviews, in accordance with rules of the State Board of Education. Students promoted during the school year after November 1 must demonstrate proficiency levels in reading equivalent to the level necessary for the beginning of grade

4. The rules adopted by the State Board of Education must include standards that provide a reasonable expectation that the student’s progress is sufficient to master appropriate grade 4 level reading skills. Provide students who are retained under the provisions of paragraph (5)(b) with a highly effective teacher as determined by the teacher’s performance evaluation under s. 1012.34.

5. Establish at each school, when applicable, an Intensive Acceleration Class for retained grade 3 students who subsequently score Level 1 on the required statewide, standardized assessment identified in s. 1008.22. The focus of the Intensive Acceleration Class shall be to increase a child’s reading and English Language Arts skill level at least two grade levels in 1 school year. The Intensive Acceleration Class shall:

a. Be provided to a student in grade 3 who scores Level 1 on the statewide, standardized English Language Arts assessment, and who was retained in grade 3 the prior year, because of scoring Level 1.
b. Have a reduced teacher-student ratio.
c. Provide uninterrupted reading instruction for the majority of student contact time each day and incorporate opportunities to master the grade 4 Next Generation Sunshine State Standards in other core subject areas.
d. Use a reading program that is scientifically research-based and has proven results in accelerating student reading achievement within the same school year.
e. Provide intensive language and vocabulary instruction using a scientifically research-based program, including use of a speech-language therapist.

Children with no documented reading deficiency should not be subjected to retention simply because districts are unable or unwilling to seek out and find the best solutions, that are WITHIN THE LAW, for each child.

Parents seeking guidance about these alternative pathways to promotion are urged to contact their principals and District Superintendents to see how their child may access this established path to the Fourth Grade. It is a temporary fix, at best, a band-aid. But it would allow the children to get their basic educational needs met, while the adults work toward a permanent solution, which will hopefully come, with a final decision from the Court.

Contact information for all District Superintendents may be found here:

Lawsuit to Make #180DaysCount is Filed


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Today, in districts across Florida, the school year began and children are moving on up to the next grade. But many proficient children, who proved their skills for 180 days in the Third Grade last year, are not joining their friends in the Fourth Grade.

In response to the districts that say their hands are tied, courageous parents of retained third grade students have taken their fight to a Court of Law. It’s officially on the books in Tallahassee now, folks and lawmakers are on notice. This suit is an indictment of test and punish accountability systems everywhere. A positive outcome from this case will have repercussions nationally – for the benefit of ALL children in public schools.

The families’ legal fund still needs $2,270 to meet their goal of $17,000. Please show your support for these families by donating now:

The direct link to the Court Records: Case # 2016-CA-1794:

Emergency Motion Temporary Injunction(final) copy
Verified Emergency Motion for Temporary Injunction
(143 pages)

Final Complaint
Final Complaint – Case # 2016-CA-1794
(152 pages)

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, which is provided for in Fla. Admin. Code Ann. r. 6A-1.094221 and Fla. Stat., § 1008.25(6). The irreparable injury caused by such actions warrants emergency injunctive relief because similarly situated students are treated quite differently without any rational basis or legitimate governmental objective. Absent emergency relief, the Plaintiffs will suffer irreparable harm by having to repeat the third grade, which will cause devastating effects to students with no reading deficiencies who actually earned passing grades.


Any and all questions pertaining to this case should be directed to:

The Law Office of Andrea Flynn Mogensen, P.A.
200 South Washington Boulevard, Suite 7
Sarasota FL 34236
Telephone: 941.955.1066

Media Coverage and Updates

Aug 11 –
Curmudgucation: FL: Test Fetish on Trial
WPTV: Lawsuit challenges holding back students over Florida’s standardized tests
              Please complete attached WPTV survey
Bradenton Herald: Parents suing over Florida’s FSA reading retention law

Aug 10
TB Times: Romano: Once again, education officials fail a commonsense test in Florida
Florida Parents Sue State and Districts for Retaining Students Who Opted Out
Tampa Bay Times: Florida parents sue state over Jeb Bush-era testing rule
Tallahassee Democrat: Parents take on state’s third-grade retention rule
Orlando Sentinel: Parents sue state to challenge Florida’s third-grade retention law