Florida, 3rd Grade Retention and Transparency: Clear as Mud

It’s difficult to be transparent when you don’t really want people to understand the law; especially the law that pertains to participating in Florida’s notoriously high stakes, 3rd grade English Language Arts (ELA) assessment.

I am not an attorney, but I am a good reader, having been nearly constantly reading for over 50 years now, AND I am good at “listening and learning.”  Lately, I have been “listening and learning” to Florida’s education leaders and legislators and closely reading Florida State Statute. Florida’s legislators claim to prize “transparency”. For Florida’s education leaders, sadly, it appears difficult to be fully transparent while trying to keep citizens from understanding the law as written.

Just to be “clear” (pun intended), Merriam Webster defines “transparent” as “easy to notice or understand; honest and open, not secretive; able to be seen through.”

When it comes the Florida State Assessments, the Department of Education, along with many district superintendents and administrators, fail any apparent attempt at transparency.

First, the DOE and local school administrators will repeatedly state that “Opt Out” is not allowed in Florida because, by statute, “Each student must participate in the statewide, standardized assessment program required by s. 1008.22” (FS1008.25(4)(a)). Last year, in New York state, almost 200,000 students “opted out” of New York’s State Assessment by failing to show up for the test.  By Florida Statute, that is not legal.  Students are expected to be present for testing. The DOE is correctly stating statute there.

However, because of the mandate to participate, Florida’s “Opt Out Procedure” requires a child be presented with the test (as required by law), after which the child begins the test but refuses to answer any questions.  When an insufficient number of questions are answered (in this case zero), the test will be deemed to have insufficient data for scoring and, thus, will go un-scored. (you can learn more about Florida’s “Opt Out Procedure” here and here). Often, after politely refusing to answer questions, a child’s parents will pick the child up from school for the duration of the testing period.  If the child leaves the testing room early, schools may be required to “invalidate” the student’s test. An invalid test (per page 69 of the FSA Manual) is required to be returned to the State “in order to be counted for participation purposes.”

CLEARLY, students following the “Opt Out Procedure” fulfill the state’s participation requirement to the extent required by law. Is it possible that the DOE and local school administrators are not aware of the “opt outer’s” process allowing participation, as required by law, but generating no usable score? I suspect not. The DOE has been reluctant to formally define “participation” for fear that definition will be used by the opt out movement. In this article in the Tampa Bay Times, DOE spokeswoman Meghan Collins said, “I feel like answering the type of question provides more information that could be construed as encouraging students or parents not to take the test, that’s just something we don’t want to do.” Refusing to define words is hardly transparent, I think.

When it comes to mandatory third grade retention for students who “fail the FSA,” the DOE has been as clear as mud.

Parents who have informed schools of their intent to minimally participate in 3rd grade testing have been bombarded with letters apparently designed to coerce full participation.  Threats include mandatory retention, summer school, extra testing and burdensome portfolio assessments. A sample letter is posted here (edited for privacy, emphasis theirs). Thousands of similar letters have been distributed across the state this year. They are so common that education advocates now refer to them as “bully letters”:

Dear Parent of Third Grader,

I have received an answer from XXXXX, our XXSD assessment liaison.  If your 3rd grader opted out of the FSA, she would be retained and would be treated as all other students that fail to achieve level 2 or higher and the required assessment. A portfolio might provide sufficient evidence for exemption from mandatory retention – but the student would also have to take the Stanford reading assessment as part of the process – AND the portfolio process is very proscriptive in order to provide this evidence. So she would have to take a different assessment and we would need to provide a portfolio order for her to be promoted.  Unfortunately, since third grade is a high stakes test we are bound by the law. I have included the actual law below for your reference.   

The law (F.S. 1008.25) is very clear. A third grade student must be retained if they do not achieve a level 2 score on FSA which is required for all public school students under F.S. 1008.22. 

(b) To be promoted to grade 4, a student must score a Level 2 or higher on the statewide, standardized English Language Arts assessment required under s. 1008.22 for grade 3. If a student’s reading deficiency is not remedied by the end of grade 3, as demonstrated by scoring Level 2 or higher on the statewide, standardized assessment required under s. 1008.22 for grade 3, the student must be retained.

Signed,

School Principal

 According to this “bully letter” : “The law (F.S. 1008.25) is very clear. A third grade student must be retained if they do not achieve a level 2 score on FSA which is required for all public school students under F.S. 1008.22,” and FS1008.25(5)(b) is copied as “proof.” Let’s look at the rest of F.S. 1008.25(5):

(5) READING DEFICIENCY AND PARENTAL NOTIFICATION.

(a) Any student who exhibits a substantial deficiency in reading, based upon locally determined or statewide assessments conducted in kindergarten or grade 1, grade 2, or grade 3, or through teacher observations, must be given intensive reading instruction immediately following the identification of the reading deficiency. The student’s reading proficiency must be monitored and the intensive instruction must continue until the student demonstrates grade level proficiency in a manner determined by the district, which may include achieving a Level 3 on the statewide, standardized English Language Arts assessment.
(b) To be promoted to grade 4, a student must score a Level 2 or higher on the statewide, standardized English Language Arts assessment required under s. 1008.22 for grade 3. If a student’s reading deficiency is not remedied by the end of grade 3, as demonstrated by scoring Level 2 or higher on the statewide, standardized assessment required under s. 1008.22 for grade 3, the student must be retained.

(c) The parent of any student who exhibits a substantial deficiency in reading, as described in paragraph (a), must be notified in writing of the following:

1. That his or her child has been identified as having a substantial deficiency in reading.
2. A description of the current services that are provided to the child.
3. A description of the proposed supplemental instructional services and supports that will be provided to the child that are designed to remediate the identified area of reading deficiency.
4. That if the child’s reading deficiency is not remediated by the end of grade 3, the child must be retained unless he or she is exempt from mandatory retention for good cause.
5. Strategies for parents to use in helping their child succeed in reading proficiency.
6. That the statewide, standardized English Language Arts assessment is not the sole determiner of promotion and that additional evaluations, portfolio reviews, and assessments are available to the child to assist parents and the school district in knowing when a child is reading at or above grade level and ready for grade promotion.
7. The district’s specific criteria and policies for a portfolio as provided in subparagraph (6)(b)4. and the evidence required for a student to demonstrate mastery of Florida’s academic standards for English Language Arts. A parent of a student in grade 3 who is identified anytime during the year as being at risk of retention may request that the school immediately begin collecting evidence for a portfolio.
8. The district’s specific criteria and policies for midyear promotion. Midyear promotion means promotion of a retained student at any time during the year of retention once the student has demonstrated ability to read at grade level.
First, it is important to notice that F.S.1008.25(5) specifically deals with “READING DEFICIENCY AND PARENTAL NOTIFICATION.” This is a portion of the law that deals with students who have READING DEFICIENCIES. The first paragraph, F.S.1008.25(5)(a), describes how children who are found to have “a substantial deficiency in reading” must be given intensive reading instruction. That student’s reading proficiency then must be monitored and intervention continues until the student demonstrates grade level proficiency “in a manner determined by the district, which may include achieving a Level 3 on the statewide, standardized English Language Arts assessment.” Early identification of reading deficiencies is, clearly, a priority. The state mandates intervention and monitoring of these children.
So, when you move on to F.S. 1008.25(5)(b), the portion quoted (and highlighted and bolded) in our bully letter, it still pertains to students with reading deficiencies.  The statute requires that any student with a documented reading deficiency, must demonstrate that deficiency has been “remedied” by scoring a 2 or higher on the FSA-ELA. It does NOT say that a third grade student, with NO previously documented reading deficiency, “must be retained if they do not achieve a level 2 score on FSA.” This portion of the law pertains only to those with documented reading deficiencies.
The rest of section 5 goes on to define the requirements of notifying parents of their child’s reading deficiencies as well as the statement that “the statewide, standardized English Language Arts assessment is not the sole determiner of promotion and that additional evaluations, portfolio reviews, and assessments are available to the child to assist parents and the school district in knowing when a child is reading at or above grade level and ready for grade promotion.” Again, this all applies to children with documented reading deficiencies.
So, why would districts be sending letters to families of children without documented reading deficiencies, threatening mandatory grade retention if they fail to achieve a level 2 on the FSA-ELA ,when the quoted statute clearly deals only with reading deficiencies? Why, in our sample letter, did this district threaten that a child without a documented reading deficiency, whose parents elected to opt her out of the FSA, “would be retained and would be treated as all other students that fail to achieve level 2 or higher and the required assessment”? What is the Florida DOE doing to clarify the situation?
On May 18, 2015, at the Florida Organization of Instructional Leaders (FOIL) conference, the DOE gave a presentation entitled “School Accountability and Assessments.”  This presentation, among other things, went section by section through the recently passed HB 7069, explaining its implication to the gathered district assessment leaders. Regarding 3rd grade retention, this was presented:
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The DOE claimed that HB7069 (section 9) had changed the requirement for a student to be promoted to grade 4. They emphasized this in red:
Beginning in 2015-2016, grade 3 students must score a Level 2 or higher on the ELA statewide, standardized assessment for promotion to grade 4.
Please note that the new language from HB7069, remains under the category of Reading Deficiency and Parental Notification.
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So, what had changed? Previously (2010) the law (1008.25(5)(b) had read: “Beginning with the 2002-2003 school year, if the student’s reading deficiency, as identified in paragraph (a), is not remedied by the end of grade 3, as demonstrated by scoring at Level 2 or higher on the statewide assessment test in reading for grade 3, the student must be retained.” So what changed? The law went from being clearly understandable to significantly more vague when taken out of context. However, when context is considered, nothing regarding 3rd grade retention had changed.  F.S. 1008.25(5) continues to apply to children with reading deficiencies.  The intent appears to continue to be that students with reading deficiencies must demonstrate proficiency before being promoted to 4th grade. As to students without documented reading deficiencies, the law is silent. Mandatory retention is certainly not required. What state would mandate retention of children who perform at or above grade level?
Yet, last Spring, Florida’s DOE presented language to the contrary, in bright red letters, at the conference meant to “explain” HB7069.  It is not surprising that the same language is showing up in bully letters across the state. Children are being threatened with retention, with misquoted statute that appears to come directly from the DOE.
This is not transparency.  The DOE’s misinformation is being used to threaten and coerce students and families across the state.  The misinformation must stop.
Our advice? School district attorneys, district assessment liaisons, superintendents, educators: stop relying on the DOE to interpret Florida Statute. I read the statutes; you should, too. Most educators know the practice of mandatory retention for struggling third graders is questionable at best. State mandated retention of children performing at or above proficiency is ridiculous. Adults threatening small children is unconscionable.
To be crystal clear, the bullying needs to stop.
If you have received a bully letter regarding your child, please provide the sender with a copy of this post. In the absence of a reading deficiency, an FSA score is NOT needed for promotion to 4th grade.
If you want to learn more about 3rd grade Opt out in Florida, check here.
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