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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
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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