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State, School Boards Look To Move Testing Case

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TALLAHASSEE (CBSMiami/NSF) – A U.S. District judge has set a Friday hearing to consider whether a lawsuit challenging the state's third-grade retention policies should be decided by a federal court, a new twist in an evolving legal fight over Florida's standardized testing system.

The Florida Department of Education and six school districts facing a lawsuit before Leon County Circuit Judge Karen Gievers asked the federal court to intervene, saying the case raises federal issues in addition to state ones. The original claim by a group of parents challenging the retention policies raised equal-protection and due-process objections under both the Florida and U.S. constitutions.

At the center of the case is a battle over whether students can "opt out" of the Florida Standards Assessment for third grade, which is generally used to help decide whether a child can move up to the fourth grade.

Parents who filed the lawsuit believe state law gives them the right to tell their children not to answer questions on the standardized test. But while the law spells out ways to advance that don't require passing the assessment, the Florida Department of Education and school districts say that doesn't give students the opportunity to refuse to take it.

At a hearing last week, Gievers declined to immediately order the students to be allowed to start fourth grade. But she signaled she had concerns about the state law and later scheduled a hearing for Monday morning. That hearing is now canceled, according to the Leon County clerk of courts website.

The federal filing by the Department of Education and the school districts --- Broward, Hernando, Orange, Osceola, Seminole and Pasco counties --- offers little in the way of explanation for the move beyond highlighting the federal claims in the lawsuit. Sarasota County, which was also originally a defendant, has been dismissed because it promoted one of the students at the heart of the case to the fourth grade.

An attorney for the parents of the students filed a motion Thursday with the federal court to drop the claims under the U.S. Constitution, which would leave just the state claims remaining. The lawyer, Andrea Mogensen, also filed a request for the federal court to return the case to the state level. Friday's hearing is before U.S. District Judge Mark Walker.

"The remaining state law claims raise novel issues of state law that no Florida court has adjudicated," Mogensen wrote. "There are no remaining federal claims."

The original lawsuit, filed last week, argues that a requirement that students take the standardized test is irrational. Also, it says a confusing array of instructions from state and local officials during the past school year resulted in students who opted out being allowed to move on without test scores in some cases, but not in others.

The standardized tests are one of the hallmarks of the education-reform movement that swept Florida in the 1990s and early 2000s. They are meant to prevent "social promotion," where teachers give passing marks on report cards so students can move on with peers, regardless of whether the students have learned the required material.

The parents in the lawsuit say their children earned good grades and were ready to move on, and that in many cases there was no warning about the possibility of the children being held back because of reading issues until they refused to take the test.

In the hearing last week, which at times grew emotional, Gievers indicated she was sympathetic to the case being made by the parents and their students. But she wanted to make sure education officials were given enough time to respond so her decision wouldn't be overturned on appeal.

"I don't like what I'm seeing as far as youngsters being made sad and not being in classes they think they belong in," Gievers said as she addressed the families, "but I don't have the legal authority, if I do my job right, to take away the right of every party to have enough time to properly prepare."

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

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