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Lawsuit Challenges Holding Back Students Over Tests

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TALLAHASSEE (CBSMiami) – Fourteen parents whose children were retained in third grade after they "opted out" of Florida's standardized tests filed a lawsuit this week, saying their rights were violated by confusing standards that rely too much on a single exam.

The lawsuit says Education Commissioner Pam Stewart, the state Department of Education, the state Board of Education and several local school districts violated the families' rights to due process and equal protection when deciding whether to allow certain students to move on to fourth grade.

But at the heart of the lawsuit is a clash over whether students are required to take the Florida Standards Assessments before moving on from third grade. The "opt out" movement is part of a larger backlash against standardized testing, with many parents feeling that the state is subjecting students to too many exams.

The lawsuit asks a Leon County court to block the decision to retain the students in the third grade, saying the children will be "irreparably harmed" if they are held back. It points to research showing that students who are held back become isolated and lose interest in school.

"The negative behaviors associated with retention are exacerbated here because each of the plaintiffs' children received a report card with passing grades, some earning straight A's and Honor Roll for their hard work throughout the school year, but yet they will be retained in the third grade despite having no reading deficiency," the suit says.

Parents also asked for an emergency injunction from the court, saying many of them didn't find out their students would be retained until May or June, and school is set to begin shortly. The districts named in the suit include Orange, Hernando, Osceola, Sarasota, Broward, Seminole and Pasco counties.

While the suit focuses on events in the 2015-2016 school year that led to some students being held back, it also more broadly challenges efforts to require students to take standardized tests before moving on to the fourth grade.

"Refusing to accept a student portfolio or report card based on classroom work throughout the course of the school year when there is no reading deficiency is arbitrary and irrational," it says.

The complaint portrays state and local officials as struggling to come to terms with whether to accept portfolios of students' work or the marks on report cards in lieu of test scores, particularly for students who essentially refused to complete the tests. As a result, students who opted out were allowed to move on without test scores in some cases, but not in others.

As late as February, according to notes from a telephone call with local superintendents attached to the complaint, Stewart was insisting that state laws allowing for student portfolios to be used in retention decisions did not create an opportunity for students to refuse to take the tests.

In late May, the complaint says, the Department of Education clarified its policy. According to a Tampa Bay Times report cited in the lawsuit, the agency said retention was a local decision, and a spokeswoman for the department said "we never said you must retain a student who doesn't have an FSA score."

The damage was already done, the lawsuit contends.

"By May 2016, it was too late for many school districts or schools to provide guidance to teachers on what was required for documentation of the student portfolio exemption," it says. "Students at those schools that maintained a student portfolio throughout the school year relied upon the portfolio exemption to be promoted to the fourth grade, while those schools that did not had inadequate documentation to meet the portfolio exemption criteria."

The News Service of Florida's Brandon Larrabee contributed to this report.

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