An undetermined number of third-graders who refused to take the Florida Standards Assessment in reading have been barred from moving to fourth grade in some counties. A lawsuit filed by parents against state education officials as well as school boards in seven Florida counties says counties are interpreting the state’s third-grade retention law so differently that the process has become unfair. Test participation, therefore, is more important than student class academic achievement.

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On Friday, Leon County Circuit Court Judge Karen Gievers held a hearing in the suit about the third-grade retention law, which was passed years ago, when Jeb Bush was governor and at a time when there was no movement among parents to opt their children out of standardized tests. Now the opt-out movement is growing, and officials in Florida as well in other states are trying to figure out how to handle students who won’t take mandated standardized tests. It is unclear how many students in Florida opted out of the 2016 test, though in New York state, 21 percent of public school students did.

Gievers said she may rule as early as next week in the suit, which was brought by parents against Florida Education Commissioner Pam Stewart, the State Board of Education, and the school boards in Orange, Hernando, Osceola, Sarasota, Pasco, Broward and Seminole counties. Other counties in Florida did not interpret the law as to mean that students had to be retained if they didn’t take the test, and the Florida Department of Education has said it never mandated that students be held back if they opt out of the FSA.

Children and their families learned in June, when they received report cards, that they would be held back, and over the summer, parents organized and raised money so they could file a lawsuit challenging the third-grade retention law. School has started in some parts of Florida, and is about to start everywhere across the state.

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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. The Obama administration applauded test-based accountability, and President Obama shared a stage in 2011 with then-Gov. Bush and called him a champion of school reform. Florida’s test-based accountability system, however, has been so troubled that last year, superintendents around the state issued a statement saying they had “lost confidence” in it.

Education officials in states where opt-out numbers are growing are now trying to figure out how to handle the movement. Under the recently replaced K-12 No Child Left Behind law, there was a mandate that 95 percent of students in every school had to take a mandated test for accountability purposes. When there was no opt-out movement, compliance was easy. Now there is a debate about whether the 95 percent mandate exists under the new K-12 law, the Every Student Succeeds Act. There is no stated 95 percent mandate in the law, but the Obama administration has proposed new regulations to implement ESSA that would include one. Critics have urged the Education Department to change the draft regulations.

The lawsuit says:

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 mean s 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.