TALLAHASSEE — The 1st District Court of Appeal is considering a case that will determine several school boards’ obligations to students who wish to opt out of standardized tests.

According to a Feb. 9 report by the News Service of Florida on TheLedger.com, parents of students who had been denied promotion to the fourth grade for their failure to complete standardized tests in third grade brought the case against seven school boards, centering around the Hernando County School Board, and Pam Stewart, the commissioner of the Florida Department of Education. The plaintiffs’ children chose to go the route of minimal participation, which involves only breaking the test seal and writing their name on the test. They did not answer any questions.

The case was initially heard by Judge Karen Gievers in the Circuit Court of the 2nd Judicial District, who decided last August that “the Education Defendants ignored the statutes notice of deficiency process, and ignored their obligations regarding remediation and teacher compiled portfolios.” She ordered Hernando County School Board officials to “immediately provide the portfolio option at minimum to any parent who has requested one or requests one going forward.”

The defendants have appealed Gievers’ decision, arguing that while the law does allow for ways students can advance to the fourth grade without passing the assessment, it does not allow them to refuse to attempt the test altogether.

“Under the current law, there is no provision to ‘opt-out’ of statewide, standardized testing,” Dennis J. Alfonso, the Hernando County School Board’s attorney, told the Florida Record. “There are a number of circumstances that authorize local districts to allow a student to advance even if the student was unsuccessful in passing the statewide assessment, by considering the student’s portfolio of work throughout the year upon a showing of ‘good cause,’ or allowing the student the opportunity to take alternative, approved assessments.”

“At the heart of this dispute,” he said, “is that minimal participation has not been recognized by the district or the state as sufficient to meet the threshold of the ‘good cause’ exemptions.”

According to the News Service of Florida report, the appeals court did not seem to approve of Gievers’ decision, along with her authority to decide the case at all.

“The place where you challenge administrative fiats that aren’t adopted as rule is not the circuit court. It’s the Division of Administrative Hearings,” Judge T. Kent Wetherell said in court.

Alfonso clarified this point.

“The judge most likely was suggesting that the parents had the right and opportunity to challenge the Florida Department of Education’s rules regarding interpretation of the statute,” he said. “To challenge rules established by state agencies must be done according to a procedure set out in Florida Statute Chapter 120.”

During the appeal, the Hernando County School Board also argued that the case should not have been heard in Leon County, but in Hernando.

“Hernando County, like most of the other school districts involved in the litigation, requested that the litigation occur in each individual county, because the facts of each student’s case and each county could best be evaluated locally,” Alfonso.

The appeals court has not yet made its decision.

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