In Peace and Solidarity, with Gratitude


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Festive Christmas Card With Chalkboard, Red Gifts Or Presents, Christmas Balls, Snowflakes And Candles. Christmas Decoration With Rustic, Vintage Brown Wooden Background. English Text Thank You

The holiday season is a time for giving, for sharing and for reflection.

Please join us in acknowledging the MANY volunteers – parents AND teachers – who give of themselves all year long, sacrificing precious time with their families in order to help the public to understand the truth about their rights and options regarding testing in Florida.

The Opt Out Florida Network is ALL of these people – from 35 local Opt Out groups all over this state – who stay up night after night after their kids (and significant others) are fast asleep, or after grading papers and planning lessons – reading emails and messages from parents, researching local and national news articles, DOE documents, and state statutes, even reviewing videos of the state legislature and so much more – in order to provide the factual, documented and verifiable information needed to stand up to poor enforcement of policies in OUR public schools.

Group administrators lead the way in their communities by moderating discussions in local opt out groups, by sharing information both to and from the district, and by showing up and speaking at Florida Board of Education meetings and local school board meetings. They work with their local teachers’ unions to support teachers by  demystifying school district propaganda to teachers about the opt out movement. In other words, they help others to find their voice so that they, too, may speak truth to power.

We are parents, students, teachers and former teachers, who share many different perspectives – from different backgrounds, different religions, different customs, different beliefs, and different political persuasions – but we all fight for the same thing – to return our public schools to places of real teaching and learning, where classrooms can be filled with wonder and curiosity and amazing questions – instead of training children how to succeed on a test.

So what do we have to be grateful for?

The most important growth and change that anyone can experience usually comes out of our most challenging times. It’s easy to be angry and resentful of any harm to our children as a result of poorly implemented policies. It’s harder to keep the bigger picture in mind when we want immediate relief for our children and it isn’t forthcoming. But many of us would admit that were it not for a particular misfortune that befell our children, we would still be blissfully ignorant, even accepting – of testing, of test prep that has taken over our children’s school experience, of poor placement, of promotions denied, and on and on.

Being informed can be hard… It’s not easy being “woke.” But it’s far better to be informed, or else we could not call out the monsters by name.  We can be grateful that our eyes have been opened to the truth, as distasteful as it is, so that we can fight it. We can be grateful that there are others like us, here and across this country who have joined their voices with ours to fight to stop the testing monster. And we can be grateful for a community of activists, who gather to share experiences and information with the hope that no child will continue to suffer the same.

Although things have been quiet, we remain especially grateful to the plaintiff families and their attorneys still embroiled in the 3rd Grade lawsuit, fighting mandatory retention in Hernando, Orange, Osceola, Seminole, and Pasco Counties. The FLDOE and the various districts have an army of 25+ attorneys to defend this lawsuit. It bears repeating that as of last September, only the families who agreed to withdraw from the suit have had their children promoted – contrary to what a FLBOE member recently said in a public meeting.

We eagerly await the ruling of the Appellate Court so that the lawsuit can continue in earnest. We remain hopeful for systemic change.

In peace and solidarity, with gratitude to each of you, who ARE The Opt Out Florida Network.


Courage Is Not Required for Seminole Board To Do The Right Thing


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by Sandy Stenoff

At the last Seminole County School Board meeting, parents and teachers provided input about the Third Grade lawsuit, involving Seminole County students. After Jodi Parham read for Rhonda Nickerson (at 58:00), the board stated (at 1:01:35) that they would typically not accept public comments about pending litigation. The attorney for SCPS provided a brief update on the lawsuit to the board (at 1:02:05).

My speech was cut short (Video from 1:04:15 to 1:06:58).

The next day, I sent my complete address, with references, to the board to be entered into the record:

Dear Drs. Calderone and Griffin, 
Thank you for the opportunity to address you yesterday evening.  Had I been permitted to complete my statement, this is what I would have shared with you. While I do understand that the district may not be able to comment publicly on pending litigation, I would put forth, respectfully, that the public certainly has the right to provide comment – of course, with no expectation that the board would respond publicly. I sincerely hope that you will give this serious consideration. Other districts have successfully worked with parents in the lawsuit. 

I appreciate that this will be added to the record of yesterday’s meeting. Thank you for your consideration.

Sandy Stenoff


I’m here today, because of two proficient children from Seminole in the lawsuit, who are still officially retained in the third grade simply because they have no test score, against the Judge’s order and against Florida education statutes.

The parents requested early in the school year to have a portfolio compiled, as the law allows. The state statute as well as numerous publications from the DOE state:

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

They were denied.

I believe there must be a disconnect in the district’s understanding of what a portfolio is. State statute, FLDOE TAP reports and Just Read Florida state that “Portfolio Evidence is to include multiple choice items.”

Nowhere does it say that a portfolio must be made up exclusively of multiple choice test items.  A real portfolio, which meets the state guidelines, as Sarina Nickerson’s portfolio does, is without question, a more through and rigorous measure of her teacher’s and this district’s accountability than any single test.  It should be held up as an example for all. Instead, it is dismissed, as was this student’s educational rights.

Currently, Sarina must be homeschooled for her own protection from the actions of this district.  Fortunately for her, her family is able to do this. Camryn Weaver is not so lucky. She is gifted, and reads above the 6th grade level. She is in 4th grade math, but 3rd grade for everything else. The law dictates strict parameters for how a retained student must be remediated. If that were happening for Camryn Weaver, she would not be repeating third grade work right now. That she is in 4th grade math tells me that the district has the authority to be flexible. It was also the district’s legal option to place her in a 4th grade class, pending a mid year promotion, but that is not happening either (See References – Attached is an e-mail excerpt from the FLDOE to Senator Darren Soto attesting that this is an acceptable course of action). 

Her mother tells me that Camryn now says things like, “I’m just stupid.” (I did not state this at the meeting, as Camryn was in the audience, but it is what she now says, where she never did before.)What have we become when children need protection from public education?

I have watched every minute of the 9-hour evidentiary hearing and I have read Judge Gievers’ 53-page ruling numerous times.  In a nutshell, the judge’s ruling overwhelmingly found for the plaintiffs – the main points being:

– That they had the right to request a teacher-compiled portfolio over one based on tests – Page 19 Item 32 *

– Promotion is not to be based solely on a test or tests. Page 13, Item 18 **

– Districts are ordered to stop refusing to allow a portfolio Page 14, Item 19 ***

And finally, regarding the automatic stay as a result of the district appealing the venue, from the Tampa Bay Times – Sept 13:

Judge Gievers:

“To the extent that the evidence and law warranted the provision of injunctive relief as to the State Education Defendants and the School Board of Hernando County, the automatic stay of the order as to the challenged injunctive relief *does not authorize the Defendants to ignore the mandatory provisions of the statutes in question*.”

Research consistently shows that students are better off being promoted and provided the intervention and support they need. The short term gains in improved test scores in the 4th grade, are outstripped by the long-term harm of retention. I ask you to consider this for each child as you go forward. By law, retention decisions are never supposed to be made on the sole basis of a test score, but that is exactly what has happened to these children. Parents are supposed to be included in these decisions. If the children are simply collateral damage, please ask yourselves, To what end?

I have met with some of you personally and I believe you when you say that, as a district, you put children and teachers first. You have said that your hands were tied because you were obligated to follow the law. The Judge’s court order has untied them now.  Just a year and a half ago, when the law about minimal participation was unclear, you led the way with your courageous decisions to treat children ethically and with respect (here and here). Districts across the state followed your lead. The law is clear now. Courage is not required, only the will to do right by these children.

Please restore our trust that this district puts children first.

It isn’t part of the educator’s creed to “First do no harm”, but it should be.

I will leave you with this quote from over 2,400 years ago by Aristotle:
“What it lies in our power to do, it lies in our power not to do.”


10/22/16 – Ft Lauderdale Sun Times
Broward promotes twins who opted out of state test
08/11/16 Sarsota Herald Tribune
Sarasota School District relents, advances 3rd grade student

Judge Gievers’ 53-page ruling from Aug 26 2016:

* Page 19, Item 32 The Plaintiff may pursue administrative proceedings regarding her preference for a teacher-compiled portfolio based on school work completed in the year to one based on standards assessment testing, if she wishes.

** Page 13, Item 18 The School Board and State Education Defendants had no right to ignore the legislatively adopted portfolio option. No statute limits promotion to grade 4 solely to tests; the Legislature has made clear that the portfolio option is an alternate option that is still available to all of Florida’s children. Section 1008.25(5}, Florida Statutes.

*** Page 14, Item 19 Accordingly, the Hernando County School Board is ORDERED to immediately refrain from further actions contrary to the availability of the portfolio option, and is ORDERED to immediately provide the portfolio option, at minimum, to any parent who has requested one or who requests one going forward.

Pages 5-6:


B-1. Why would a teacher use a student portfolio?
Section 1008.25(6)(b)4., F.S., states that a student who scores a Level 1 on the grade 3 statewide FSA-ELA may be promoted to fourth grade if the student demonstrates through a student portfolio that the student is performing at least at Level 2 on the statewide standardized assessment.

B-2. When should the teacher and students begin the third-grade student portfolio?
A parent of a student in grade 3 who is identified anytime during the school year as being at risk of retention may request that the school immediately begin collecting evidence for the portfolio.

B-3.  Are there guidelines provided by the state for the third-grade student portfolio?
Yes. As provided in the updated Rule 6A-1.094221, F.A.C., to be accepted as meeting the portfolio option for demonstrating mastery of the required reading skills, the student portfolio must:

•Be selected by the student’s teacher;
•Be an accurate picture of the student’s ability and only include student work that has been independently produced in the classroom;
•Include evidence that the standards assessed by the grade 3 statewide English Language Arts assessment have been met. Evidence is to include multiple choice items and passages that are approximately 60 percent literary text and 40 percent information text 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;
•Be an organized collection of evidence of the student’s mastery of the Language Arts Florida Standards that are assessed by the grade 3 statewide English Language Arts assessment. For each standard, there must be at least three examples of mastery as demonstrated by a grade of 70 percent or above on each example; and
•Be signed by the teacher and the principal as an accurate assessment of the required reading skills. Additionally, note that the Just Read, Florida! Office has begun creating an updated Third- Grade State Portfolio.

B-4.  Do the same portfolio guidelines apply to ESE students?
Yes. The state portfolio guidelines apply to all students, including ESE students.

B-5.  Is the student portfolio the only tool used for good cause exemption and/or promoting a third-grade student to fourth grade in the middle of the year?
No. The student portfolio and an alternative assessment are the two state-approved options for good cause exemption and mid-year promotion. The student must be offered both options. However, the student must only demonstrate proficiency on one of the options in order to receive a good cause exemption or be promoted midyear.

B-6.  If a teacher is monitoring the progress of a student, is a portfolio needed?
Yes. A portfolio provides ongoing information on how a student is performing on tested benchmarks. There are specific requirements of necessary elements that must be included in a portfolio used for promotion (please refer to question B-3 of this document for the requirements). If a teacher chooses to follow the rigor of the state portfolio requirements, a portfolio may be used for progress monitoring as well as promotion.


Excerpt of e-mail from Suzan Shaw at FLDOE to Senator Darren Soto – July 12, 2016
asserting that 4th grade placement with mid-year promotion is an allowable option.

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 to implement a mid-year promotion, will the district adhere to the letter of the law here (below), as it pertains to students retained without any documented reading deficiency? And – Is this happening for ALL students who have been retained?

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. (Camryn Weaver has no reading deficiency. Wekiva Elementary has already demonstarted that she reads at near 7th grade level)

(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.

4. 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. (In order to be in compliance, the district would have to expect Camryn Weaver to achieve reading at the 8th grade level by year end.)

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.

SCPS FSA Q & A 022515 (2014-2015)
State portfolio guidelines are clearly outlined here as well.

Teachers’ Perspectives on 3rd Grade Retention in Seminole


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On Tuesday, Oct 18, two teachers chose to address the Seminole County School Board  the subject of Third Grade Retention.

Alexis Rapp is a former teacher from Orange County and a parent in Seminole County.

Dr. Griffin,

Please excuse my absence. I am taking care of my children. And, not only am I physically ‘not here’, I am also not here to discuss my grievances with you and your board for the actions that you have taken which have affected my reading-above-grade-level, nothing-less-than-above-average-on-his-report-card, minimally-participating-in-last-year’s-FSA, then-third-grade-son, whom you retained.

You have assured us, both in public forums and in private meetings with me and my colleagues, that you would “love to explore alternatives to testing that are within the context of the law.” And I truly believed that you would. I gave you the benefit of the doubt, despite my colleagues’ warnings. I trusted you, but I digress.

It has been ruled that students who minimally participated in the FSA, are “in accordance with the law” and can be promoted based on their report card.

Upon learning this news, I was honestly so excited for you!! And so hopeful. You’d finally have the chance to do what you have always said you’d like to do: what is best for children AND remain in accordance with the law.

And you didn’t.

And you won’t.

And I can’t tell you my disappointment in you and the board.

I am a Marzano rated “highly qualified” teacher (which seems to be very important to you…Marzano), I hold my Master’s in Education and graduated with honors. I am certified in the state of Florida until 2019 to instruct students in grades 1-5, ESOL, Art, and hold my Reading Endorsement. I have worked at the district level, using Lesson Study as a vehicle to encourage myself, students, and teachers to grow. I have been an Educational Consultant and have worked around the country.

One might say that I am able to perform the requirements of teaching and learning.

After conducting an independent portfolio review of Sarina Nickerson’s complete body of third grade work, in accordance with STATE guidelines, you should understand that it would be a completely inappropriate use of Sarina’s time and an abhorrent waste of taxpayer’s money to force her to repeat the third grade.

She’s already done it.

And she’s more than passed.

I am here to appeal to your common sense; to remind you of the promises that you have made to all of us. Please put your “money where your mouth is” and “do the right thing”. Follow the law. Promote Sarina and students like her. End this ridiculous power struggle. Be the leader you claim that you would like to be.

Thank you.

Parent Jodi Parham read the statement written by a former Seminole Teacher, who wishes to remain anonymous.

“Imagine you’re in 3rd grade. You’ve been working hard all year and have A’s and B’s on your report card. Now imagine it’s “testing week,” and the months of hard work leading up to this week could be for naught if you do not “pass” the FSA. A few days of testing will determine whether or not you will be retained or go on to 4th grade. Imagine the stress on a young child.

What message are we sending to these students? Work hard all year, but bear in mind all your hard work could be a complete waste of time if you don’t perform what has been deemed “adequately” by the state DOE. This is only the beginning for these students. They will undergo this stressful experience throughout grade school, middle school, and high school.

Now, imagine you’re a child with a learning disability. School is already more challenging for you, but the powers that be have determined we need to engage you in high stakes tests that may determine whether or not you advance to 4th grade.

Studies have shown that children who are retained are less likely to complete high school, and students who are retained twice have a greater than 50% chance of failing to graduate. Isn’t there a better way to determine if a child is learning and acquiring the necessary skills at each grade level?

The amount of instructional time taken by “practice testing” and actual testing is costly to the development of all students. It robs them of valuable time in the classroom and devalues the hard work they do each day. It is time to reevaluate these tests and go back to valuing the time students have each day to learn and grow at their own pace. It is time for a change.

Last year was my tenth and final year teaching. I still substitute but the environment in which I worked was so stressful, I could no longer continue. I was retaliated against for calling HR about issues. These issues were never addressed. I was reprimanded for telling parents their students made progress, because those students did not pass the FSA and were being retained. Every Sunday night, I broke out in hives thinking about going to work. It saddens me what is happening to our educational system. I hope we can remember to look at the whole child and the whole school year. I truly hope things change.

Thank you for listening.”

To FEA: Challenge the Validity of VAM


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Florida Education Association (FEA) leadership and Florida Teachers are convened in Orlando this weekend.

One of the most important actions that FEA could take, to promote and protect the professional autonomy of teachers, is to mount a legal challenge to the validity of VAM. FEA’s previous attempts to discredit VAM legally in Florida have been unsuccessful. Going after the validity has been proven in a court of law and is winnable – here – and now.

VAM scores are coming in for teachers across the state and it is not pretty.

“Highly Effective” teachers with lousy VAM scores.

Teachers with the highest VAM scores being rated “Effective” and “Ineffective.”

To the Florida Education Association (FEA):

NOW is the time to take up a challenge to the validity of VAM, as Sheri Lederman successfully challenged in a New York court – and won.  There is legal precedent and mountains of evidence documented against VAM now.

It could be a big win for teachers and for children!

From Teacher Lucy Oeming Malacos in Manatee County:

“It’s very interesting that last year, based on my vice-principal’s opinion, I barely received an “effective”, after 25 years of “highly effective” at my previous teaching position. Yet, today, I received my VAM score and received the highest possible points (4), which deemed me “highly effective.”

I was observed for total of 2 hours (1 hour sessions twice) by administrators, yet for an entire year of working, my students made extraordinary gains! Yet, other teachers received “highly effective” status by administration, yet their VAM scores indicate “needs improvement” for them!!!!! My initial “walk through” (20 minutes) this year, I was, once again, deemed “needs improvement”…..

With all that said, I have now resigned from teaching. I can no longer deal with the hypocrisy.”

Public education cannot afford to lose one more valuable and highly qualified teacher to this insanity.

Watch this video where current FEA Secretary-Treasurer, Luke Flynt explains the ridiculousness of VAM to the Indian River County School Board:


Relevant articles about the lederman case:
May 12, 2016: New York court decision throws out use of ‘VAM’ for teacher evaluations…

Daniel Katz on the Meaning of Sheri Lederman’s Victory in Court Against VAM

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