After months of silence, a legal challenge to Florida's third-grade retention law — a keystone in the state's test-driven education system — resurfaced Tuesday in state appellate court.

5 Months Ago

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5 Months Ago

But unlike in August, when a Leon County judge put the law on trial, the First District Court of Appeal panel paid more attention to how the parents who filed the challenge pursued their objections.

The parents from seven counties filed suit in Leon — where the Department of Education is based — in August. They wanted to prevent their children from repeating third grade because they refused to complete a state reading test, and argued state law didn't actually require a passing test score.

Leon County Judge Karen Gievers agreed with them. The department and districts appealed.

At issue Tuesday during oral arguments before the appeals judges were two key elements: Whether the case should have been heard in local venues, in particular Hernando County court, and whether court was in fact the proper place for the arguments at all.

Lawyers for the department and the Hernando County school district, which faced a temporary restraining order over its decision to retain some students in third grade, contended Gievers overstepped her boundaries with her ruling.

The attorney for the families argued that the court was the only place to seek resolution to what she considered misinterpretations and misapplication of state laws involving children's rights to seek alternatives to promotion other than participating in a state test, as the Hernando County school district insisted.

The three-judge panel issued no ruling after the hour-long hearing. But through intense questioning, they appeared to have problems with the families' position.

"I'm not saying the policy is good or bad," Judge James R. Wolf said, after hearing plaintiff's attorney Andrea Mogenson criticize the state guideline that students "participated" in the Florida Standards Assessment by answering at least one question, but not by signing in and pushing the test away. "If you want to challenge it ... that's normally done through the Administrative Procedures Act."

Judge T.K. Wetherell II said he had more fundamental concerns than even that. He suggested the parents didn't like the rules and told their children to disobey the law, in an apparent attempt to "subvert" the legislation.

"This is self-inflicted harm," Wetherell said.

Mogenson parried that the parents were attempting to take advantage of Florida law that states a test score will not be the sole determining factor in a child's promotion, and that parents have the right to request the use of a portfolio to guide the decision. Yet in Hernando County, she noted, district officials refused to allow portfolios for any child who did not participate in state testing.

This is a developing story. Please return later for updates.

Contact Jeffrey S. Solochek at (813) 909-4614 or jsolochek@tampabay.com. Follow @jeffsolochek.

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