In the middle of all the talk about venue and procedures, one key point emerged in Florida's court fight over third-grade retention laws: No one knows the definition of "participation" when it comes to testing.

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And that has made it difficult for educators, parents, students, policy makers and, yes, judges, to settle on exactly what the statutes mean and how to follow or enforce them.

During oral arguments, Rocco Testani, a lawyer for the Florida Department of Education, reiterated the department's longstanding interpretation that "Participation means participation." 

When children don't answer questions on the Florida Standards Assessments, as most plaintiffs in the case did not, they are subverting the statutory requirement that students "must take the test," Testani told the judges. What happens with their promotion decision, then, is up to individual districts.

"No one from the Department of Education directed any of these counties to promote or not promote, offer or not offer good-cause promotions" based on a student's test status, Testani said. "At most, all that was said was if a county believes children should go through testing first, that was permissible."

Hernando County schools required third graders to have a test score before being considered for any other promotion option. Most other districts did not.

The department's stance prompted two of the three judges to raise questions from opposite sides of the debate.

Judge T. Kent Wetherell II called the idea of sitting down, signing in and pushing away an exam "Ridiculous." But he wondered aloud, if "participation means participation" as Testani said, could a district say that "minimal participation" as parents defined it was not acceptable?

"If the State Board of Education passed a rule saying participation means a good faith effort to answer ... would it have that authority?" he asked Testani, who answered affirmatively.

Perhaps a state rule would clarify matters, Wetherell said.

Judge James R. Wolf had a similar take.

Wolf raised the point that the department's stance would not stop districts from promoting students who participated by answering "C" to all questions, receiving a poor mark. Or from promoting students using portfolios as a first point of reference, rather than an item after test scores come in.

"That was within their purview, too," Testani acknowledged. But it's up to the districts, he continued. "These plaintiffs aren't entitled to their preferred exception."

Andrea Mogenson, lawyer for the complaining parents, argued the law is not clear on that point, because it does not set forth what "participation" looks like. Districts acted differently, based on what they think the Department of Education would do, leading to unequal treatment of students, she said.

Involved parties did not even know the department had defined "participation" internally as answering at least one question until that fact came out in court testimony, Mogenson told the court.

DOE officials, in fact, refused to define the term publicly for months despite multiple inquiries. They stated they did not want to give parents intent on having their children opt-out of state testing a concrete target.

Ultimately, the judges noted, the Tuesday hearing was not about legal definitions. But the issue could become a key factor if and when the debate turns to the merits of the plaintiff's position.

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