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Federal Judge Sends Testing Case Back To State Court

Florida’s retail industry is gearing up for this year’s back-to-school sales tax “holiday” on clothes, classroom supplies and computer equipment, with the state offering the tax break for five days .
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A federal judge Friday sent back to state court a dispute about Florida's rules on whether third-grade students are allowed to move to fourth grade, setting the stage for a Monday morning hearing in a lawsuit filed by a group of parents.

U.S. District Judge Mark Walker told attorneys that he was returning the case to a Leon County circuit judge following a decision by the parents to drop federal claims in their lawsuit.

The parents are suing the Florida Department of Education and six school districts over decisions to hold back students who refused to take a standardized test.

Walker, who held a hearing Friday that lasted a little more than an hour, said his decision on whether to keep the case was "a close call," in part because federal rules tend to discourage efforts to keep cases in state court by abruptly dropping claims under the U.S. Constitution. But Walker also noted that was only one factor in his decision.

"Difficult facts make difficult cases, and these are certainly difficult facts," Walker said.

At the center of the case is a battle over whether students can "opt out" of the Florida Standards Assessment for third grade, which is generally used to help decide whether a child can move up to the fourth grade.

Parents who filed the lawsuit believe state law gives them the right to tell their children not to answer questions on the standardized test. But while the law spells out ways to advance that don't require passing the assessment, the Florida Department of Education and school districts say that doesn't give students the opportunity to refuse to take it.

The department and the districts moved the case to federal court after Leon County Circuit Judge Karen Gievers indicated some uneasiness with the effects of the state policy. But in their arguments to Walker, both sides denied that they were "forum shopping," a legal term for trying to find the most favorable court in which to have a case heard.

The state said its decision to ask Walker to hear the case had nothing to do with Gievers' statements at last week's hearing and was instead filed as soon as possible after all the districts had been served with the case. And a lawyer for the parents said they were only pushing to stay in state court because of a time crunch. School has already begun in most school districts in Florida.

"I don't think it can be said that there's forum shopping going on, because it's not all clear whether one forum is preferable over the other. ... What we're trying to do is keep on the expedited track that's been set in state court, because this is an issue of children and where they'll be placed in this school year," attorney Andrea Mogensen said.

But Rocco Testani, an attorney representing the Department of Education at the hearing, argued that the only reason the case needed to be fast-tracked was because the parents waited until August to file it.

"Those timing issues should not be used as a bootstrap to get around the clear federal policy against what the plaintiffs are attempting to do here," Testani said.

Despite Walker's decision, the litigation over the testing policy could still be complex. The school districts involved --- Broward, Hernando, Orange, Osceola, Seminole and Pasco counties --- want to break the case into several pieces if it remains in state court. The case against the Department of Education would be heard in Tallahassee, while each school district would defend its policies in the state court that covers its home county.

The parents have resisted that, arguing that Gievers should deal with all the issues at once and issue a temporary injunction allowing the students to move to fourth grade until the case is resolved.

At the Monday morning hearing, Gievers is set to hear arguments about the injunction and how the case should be handled.

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