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 gofundme.com/StopGr3Retention

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
E-Mail: AMogensen@sunshinelitigation.com

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 http://goo.gl/aeFvOL.


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, 2013 (Pages 5-7)

The criteria for a Statutory Portfolio criteria are made 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 only 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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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.

– Why we do this: bit.ly/PositionStatement
– THIRD GRADE OPT OUT GROUP for help and support: bit.ly/OOFL3rd
– For statewide information and suggested reading: https://theoptoutfloridanetwork.wordpress.com/
– 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.”

promotion pending
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: http://www.fldoe.org/accountability/data-sys/school-dis-data/superintendents.stml

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: https://www.gofundme.com/StopGr3Retention

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

Who Opts Out and Why? A Survey by Teachers College – Columbia University

What’s Driving the Opt-Out Movement? The belief that high-stakes testing promotes rote learning and is unfair to teachers, a Teachers College survey finds

Report Cover

Download full report: “Who Opts Out and Why?”

August 8, 2015 – What’s Driving the Opt-Out Movement? The belief that high-stakes testing promotes rote learning and is unfair to teachers, a Teachers College survey finds.

Teachers College unveiled the findings of Who Opts Out and Why?the first national, independent survey of the “opt-out” movement—which reveals that supporters oppose the use of test scores to evaluate teachers and believe that high-stakes tests force teachers to “teach to the test” rather than employ strategies that promote deeper learning. The new survey also reports concern among supporters about the growing role of corporations and privatization of schools.

“For activists, the concerns are about more than the tests,” said Oren Pizmony-Levy, TC Assistant Professor of International and Comparative Education, who co-authored the study with Nancy Green Saraisky, Research Associate and TC alumna. “We were surprised that the survey reveals a broader concern about corporate education reform relying on standardized test-based accountability, and the increased role of ‘edu-businesses’ and corporations in schools.”

Who is actually opting out? What motivates parents who opt their children out of the tests? Are those who opt out trying to protect their children, or do they have broader political aims? These are some of the questions that we aim to address in this study.

Of particular note
“Teachers and educators, but necessarily teachers’ unions, play a central role in the movement, comprising 45.0 percent of respondents. On the one hand, this suggests that the claims of the protesters are heavily rooted in the professional expertise of teachers and educators, which should legitimize the stances of the movement. On the other hand, teachers themselves are opposed to new models of evaluation that are based on students’ performance on standardized tests (models that have been criticized by various academic groups). Thus, their participation in the movement could be seen as a response to the growing pressure of accountability.

As a lower‐status, highly feminized profession, teacher expertise is often disregarded in the policy making process. Indeed, when respondents wrote in additional comments on the survey, they often used language about getting teachers and educators to the policymaking table. For example, a respondent from California wrote: “I believe there is some role for state and federal government to guide and monitor student learning, but it is currently being done very, very badly. I think experts in the field of education, and not politicians, should be responsible for shaping policy”.

Large majority of respondents endorse alternative modes of evaluation – examples of students’ work and written observations by teachers – as providing an accurate picture of students’ academic progress.

Survey respondents believe that they are having an impact through their opt out activism, and most of them say that they are impacting policy. Indeed, both the Democratic and Republican party platforms for the 2016 presidential election include language about standardized testing. The Democratic platform was revised to include language that supports the parental right to opt out of standardized testing, while the Republican platform praises those states that reject “excessive testing and “teaching to the test.”’26 The two largest teachers’ unions also oppose high stakes testing. And even when states’ opt out policies prohibit opting out, protesters are going ahead and refusing anyway. While none of these translates into specific policy change, taken together they suggest that at the very least the opt out movement is reshaping the public discourse about the role of standardized testing in public schools.

It shows that opt-out proponents reject not only the popular narrative that public education in America is failing, but also the notion that, even if it were, more standardized testing would fix it. “People in the opt-out movement are not saying the whole system is broken,” said Green Saraisky. “They’re not anti-testing; they’re anti-standardized testing.”

Respondents believe that opting out “is about political challenge to current educational reform,” Pizmony-Levy said. “Policy makers need to take opt-out supporters seriously and pay attention to what motivates them and what ideas they bring to the table.”


Hernando Families Persevere to Make #180DaysCount


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Meet the courageous families from Hernando County, fighting mandatory Third Grade retention.  We have less than $5,000 to raise!

Show these families that you appreciate their commitment and click here to donate to the legal fund to make #180DaysCount for ALL kids!


The Everett Family – Hailey, Pam (Mom)

“We are here because our school system has failed my honor roll student.
Thanks to Maria Schultz for pointing me to the Opt Out direction.
Hailey is paving the way for her brother who is entering the 3rd grade.”


The Hohman Family – Maddison, Melinda (Mom) & Jason (Dad)

“Maddison has been a proficient honor roll student for every quarter in the 2015-2016 school year. We believe she should be promoted based on her grades for the 180 days of the school year. Hernando County School District would like to retain her due to not having an FSA score. We feel strongly that all students’ records for the 180 days shows whether they are proficient or not. We are apart of this lawsuit because of our beliefs in 180 days work to count more than one test score. We also have a son going into second grade this upcoming school year, who we are hoping will not have to feel the stress or anxiety caused by the FSA.”


Meet the Families Who Will Make #180DaysCount in School

The support coming in from all across the country has been inspiring. We are almost 2/3 of the way there now.  $6,500 to go!

Click here to donate to the legal fund to make #180DaysCount!


Hastings (2)

The Hastings Family from Pasco County – Jasmine, Barbara, Scott and Jordan

From Scott Hastings:

Our Jasmine was a 3rd grader this past school year. She loves school and gives it her all everyday day she attends. Jasmine used to love school until she experienced what is happening to all the children in public schools in Florida and abroad.

Jasmine did great this year with all passing grade’s for all 4 quarters on her report card and she’s at grade level. We just found out this year about the FSA test.  

Never did we think one test would determine if a child should be promoted to the next grade. Well, we got her report card and FSA score and boy, were we SHOCKED! It said, “RETAINED” on a PASSING report card. WOW! Not to mention it said she failed by just 2 points. The same response came from her teachers as well. They both said they were “Very shocked that Jasmine didn’t pass.” 

My wife and I immediately started doing our research about the testing in Florida. We started coming across a LOT of things that are very disturbing. The first thing that came to our minds was, “Why would a child be retained based on ONE test, even though all year long, they have shown passing grades? So we thought “I guess they work all year for nothing?” So let’s say a child does nothing all year and gets F’s on their report card but then passes the FSA, would they be promoted? 

It comes down to this: We find that the test is a complete FRAUD. 

So we were left with these options:

1- We were told that we couldn’t use her class work from all year as a portfolio. 2- We were told that she would need to complete “Their portfolios” – 42 of them, and go to summer camp. (We call it Summer School) and after ALL of that, if she STILL doesn’t meet what they say is “The Standard” then she would need to take yet ANOTHER test called the SAT-10, that they have been FORCING on Jasmine. We REFUSE to do any of the above and definitely NO MORE TESTING.

There is NO reasoning behind the high stake testing. So that’s why we have joined this case “THE FIGHT to make #180dayscount” for all children, who should not have to go through this. Its a shame what they are doing to children now. This fight is for the future of all children to come.

7/20 Update – 3rd Grade Lawsuit


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Thank you to everyone donating to this effort. We are making steady progress. Support is wonderful from parents and educators alike.

Tally: Up to $5,075 and counting!

In the words of Sarasota parent, Paula Drew,

“It is our duty to help! Let’s put our money where our mouth is! If everyone donates a few bucks, we can win this battle, which will have implications for ALL children.”

Support is coming in from all over the country!


Opt Out Manatee’s car wash raised $500!

Manatee kids aren’t being retained, but their community knows this lawsuit has positive implications for ALL children and they’re doing their part to help.

The giving is growing!
Nature Play
The creator of the award-winning documentary “NaturePlay – Take Childhood Back” is offering a Free Screening License with a donation of $300 or more.  Donate to this GoFundMe campaign and then contact them to confirm your screening.  If you have donated $300+, click HERE for Nature Play contact info.

You can organize a community screening
Community screenings of “Nature Play” can be used to create fundraisers for the legal fund!  If you would like to use your Free Screening License as a fundraiser, limitations, rules and regulations apply and are provided by Nature Play.

Opt Out T-Shirt Fundraiser!

OO T Shirt fundraiser

$3 (25%) from each shirt will go to this fund.

To order yours, click HERE.

Are you in Duval County?  Please support this fundraiser!

On July 26, The Yum Yum Tree will donate all net proceeds of the day to this fundraiser!

On July 26, The Yum Yum Tree will donate net profits from 5:00-8:00 PM! 

The regular menu will be available and all profits from 5:00-8:00 PM will be donated to the lawsuit. For more info, you can visit: TheYumYumTree.com and Facebook page.

Educators support this effort!
Teachers have donated their A+ Bonus money.  From Teacher Donna Mace, in Clay County,

“Best place to rid myself of $ “earned” from student test scores!”

Challenge your friends! Every dollar counts! 

Match me!

Share why you are donating to this cause. Challenge your friends to match your gift.

School board members from Hernando, Manatee and Osceola Counties have now contributed to the fund.  Nothing like putting your money where your mouth is to show you understand the issues clearly.

July 19 – Orlando Sentinel:
Schools held back far fewer 3rd-graders in 2015

“School administrators said that without the late-arriving third-grade test scores, they made retention decisions by reviewing class work, local test scores and teacher recommendations. And they decided some students would do best moving onto fourth grade and getting extra help there rather than redoing third grade.”

July 18 – Sarasota Herald Tribune:
3RD GRADE RETENTIONS: Parents readying lawsuit against Ed Dept over testing

“Sarasota attorney Andrea Mogensen is representing Chastain and 13 other parents from Hernando, Seminole, Broward, Orange, St. Lucie and Osceola counties. She said because retention will affect the students in August, she may seek an injunction so they can progress to the fourth grade.

“Because of the time-sensitive nature, the parents have a very small period of time to respond,” Mogensen said. “They found out in mid-June that their child will be retained, which will have an effect in August, so yes, we will seek injunctive relief.””

July 14 – Orlando Sentinel:
Parents raise money to fight Florida’s third-grade retention law

“These “courageous parents” are “demanding that their children be promoted based on the work they did all year long, evidenced by satisfactory report cards or actual portfolios of their children’s work – a more authentic assessment than any single test could possibly be,” the opt out group said.”

July 13 – Tampa Bay Times:
Group seeks support to fight Florida’s third-grade retention law

“If successful, their effort could have widespread effect. Florida’s third-grade retention law has been replicated throughout the country as other states seek to hold schools accountable for student learning.”

Lawsuit Begins: 3rd Grade Parents v. Florida Dept. of Ed.


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David is preparing to face Goliath… he needs your support now.

PLEASE HELP by donating via GoFundMe or PayPal (coming soon)

Despite decades of research findings that the practice of third grade retention is damaging and costly, the State of Florida is one of only sixteen states, which continue such a harmful, misguided and fiscally irresponsible practice.

Accepted research has demonstrated that:

  • Retention is one of the most powerful predictors of high school dropout.
  • Retained students are 2 to 11 times more likely to drop out of high school than peers.
  • Retained students have lower levels of achievement in 11th grade.
  • Retained youth receive lower educational and employment status ratings.
  • Retained students are paid less per hour at age 20.
  • Retention may cause permanent or long-term psychological harm.
  • Short-term improvements in test scores following retention are outstripped by long-term damage from ensuing deficits resulting from retention.
  • The cost of retaining a single third grade student in Florida is $11,000 in tax dollars.

And yet… Florida continues to retain children, EVEN where there is NO documented reading deficiency.
Retention Report Card (1)

This past spring, hundreds of families consciously chose to participate, though only minimally, in the Third Grade FSA and their children, therefore, received no test scores. Many students (including many who failed the FSA), were promoted based on additional testing/alternative assessments, such as the SAT10, IOWA or the state’s battery of “portfolio tests.”

Courageous parents have refused all further testing for purposes of promotion. They are demanding that their children be promoted based on the work they did all year long, evidenced by satisfactory report cards or actual portfolios of their children’s work (which includes tests done in school) – a more thorough and rigorous evaluation than any single test could possibly be.

These third grade students from across Florida, who have been proven proficient, or who have otherwise proved they met state standards, are, nevertheless, marked for retention, simply due to the lack of a state test (FSA) score.  Their families are legally challenging the Florida Department of Education and the enforcement of mandatory third grade retention.

The goal is to have the statute, which allows third grade retention, found unconstitutional and unenforceable. The implications of a positive outcome from this case are significant and far-reaching.

The case is moving forward immediately and the initial cost of $17,000.00 must be raised as soon as possible. These funds will cover the attorney’s retainer, filing fees and court costs.

On behalf of the courageous families, who are pursuing this important legal challenge, The Opt Out Florida Network is the single point of contact for information and we are accepting donations to support this important effort.

Donate via GoFundMe or PayPal (coming soon)
No donation is too large or too small.

Donations to this legal fund are not tax deductible. 


To better understand the damaging effects of grade retention…

Dr. Shane Jimerson, of the University of California – Santa Barbara is one of the most recognized experts on grade retention. He has published numerous journal articles related to grade retention and social promotion:


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