September 7, 2016 12:06 pm

Opt Out Florida Network Update on the 3rd Grade Retention Lawsuit

Published by

Opt Out FloridaSince 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 herehere 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 a lawsuit. Their parents would have had no reason to protect them from the emotional abuse of repeating a grade, out of which they had earned their way the year before.

In Seminole County, the two families were directed by the judge, to first seek administrative relief with their district. Seminole Schools told the parents that their children would be promoted IF they passed the test items to make up a portfolio, or the IOWA. They have refused.

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 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.

On behalf of the families, thank you for your continued generosity and encouragement.