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10 Strategies to Fight Mandatory Retention
& Other Damaging Policies

by Suzanne Whitney, Research Editor, Wrightslaw

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"Research tells us that fear and humiliation are not the strongest motivators for struggling students."
- The Grade Retention Fallacy, Harvard Civil Rights Project

Since High Stakes! Can the School Use a Single Test to Retain My Child? was published, many people have written about Florida's "mandatory retention policy" that third graders who do not pass the FCAT test must be retained. So far, no one has been able to provide anything in the law that backs this up.

Parents need to know what the statute says about mandatory retention. Parents who read the statute about mandatory retention will have ammunition to fight this policy.

Do not assume that the interpretations and advice offered by people who plan to retain your child are correct. Parents and teachers often rely on what other people tell them. In many cases, the people who are dispensing this advice have not read the law either.

Before you allow the school to take an action that you do not agree with, make sure the procedure is authorized or allowed under the law. How simple is that?


Find out for yourself. You have more power than you realize.

When you read the Florida statute, you will learn about reading problems, academic improvement plans, progress, parent notification, retention and social promotion, exemptions to mandatory retention, and more. Here is what the statute says about key issues.

Tip: To find out what the statute says about mandatory retention, go to http://www.flsenate.gov/   
Click the "Search the Statute" button and type "mandatory retention" in the search box. "Mandatory retention is covered in Section 1008.25 about "Public school student progression; remedial instruction; reporting requirements. (This information is attached at the end of this article)

What Does The Law Really Say?

According to the Florida statute, the school is required to give the child intensive reading instruction as soon as a reading problem is identified. It is highly unlikely that a child will suddenly develop a reading problem in 3rd grade.

At a minimum, the school is required to assess the child's skills in grades K through 3.

Is the school providing intensive reading instruction? When did this intensive reading instruction start? Did the school assess the child's skills in grades K through 3?

The school is required to develop and implement a progress monitoring plan for the child. The plan must be developed "in consultation with the parent".

If the child is identified as having a deficiency in reading, a K-12 comprehensive reading plan shall provide intensive reading instruction that includes explicit and systematic reading development in:

* phonemic awareness,
* phonics,
* fluency,
* vocabulary, and
* comprehension.

The K-12 comprehensive reading plan (required by 1101.62(9)) provides for the specific use of research-based reading instruction that has been proven to accelerate progress of students exhibiting a reading deficiency; differentiated instruction based on student assessment data to meet students’ specific reading needs; explicit and systematic reading development in phonemic awareness, phonics, fluency, vocabulary, and comprehension, with more extensive opportunities for guided practice, error correction, and feedback; and the integration of social studies, science, and mathematics-text reading, text discussion, and writing in response to reading.

Did the school develop a progress monitoring and comprehensive reading plan for the child? What instructional and support services are being provided? What research based reading instruction is being provided?

The school is required to monitor the child's progress to meet the academic needs of the student. What type of monitoring has the school done? How often was the child's progress monitored? What did this monitoring show? If the child was not making sufficient progress, did the school provide a more intensive reading program?

According to the Florida statute, "Upon subsequent evaluation, if the documented deficiency has not been remediated in accordance with the academic improvement plan, the student may be retained."

"May be retained" is very different from "must be retained".

Schools Must Provide Intensive Reading Instruction

"Any student who exhibits a substantial deficiency in reading . . . must be given intensive reading instruction immediately following the identification of the reading deficiency . . . The student must continue to be provided with intensive reading instruction until the reading deficiency is remedied."

School Must Notify Parents

"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 Florida Comprehensive Assessment Test (FCAT) 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 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."

Good Cause Exemptions from Mandatory Retention

Scroll down this page. You will see that the Florida statute lists SIX types of "good cause exemptions" to mandatory retention. For example:

"Students who have received intensive remediation in reading and English Language Arts, as applicable under s. 1008.22, for 2 or more years but still demonstrate a deficiency and who were previously retained in kindergarten, grade 1, grade 2, or grade 3 for a total of 2 years. Intensive instruction for students so promoted must include an altered instructional day that includes specialized diagnostic information and specific reading strategies for each student. The district school board shall assist schools and teachers to implement reading strategies that research has shown to be successful in improving reading among low-performing readers."

Requests for Good Cause Exemptions

The statute tells you how the "good cause exemption" process works.

1. The child's teacher submits documentation to the principal that promotion of the student is appropriate and is based on the student's academic record.

2. The principal reviews the documentation and discusses the recommendation with the teacher, then decides if the student should be promoted or retained.

3. If the principal decides that the student should be promoted, the principal makes this recommendation to the superintendent.

4. The superintendent accepts or rejects the school principal's recommendation in writing.

So, the decision about retention is actually made by your school superintendent.

Research about Retention

"Research tells us that fear and humiliation are not the strongest motivators for struggling students." (The Grade Retention Fallacy published by the Harvard Civil Rights Project)

There is NO research that retention benefits children. There is a substantial body of research about the negative consequences of retention.

* Retained children have more problems after retention.
* Retention is expensive.
* Retention does not increase academic success.
* Retention is directly correlated with increased drop-out rates

Strategies to Fight Mandatory Retention Policies

Here are strategies that parents can use to fight mandatory retention policies.

1. Parents should request a complete copy of their child's school file. The school may prefer that the parent come into the school to examine the child's records.

2. Parents should get copies of all reading assessments done in K-3. Find out what specific reading problems were identified in these assessments and what research exists to show that the program used by the child's teacher was appropriate to remediate these particular problems.

3. Find out what intensive reading program the child participated in, how often, and whether the teacher was trained to teach that particular program. Intensive remedial reading programs are often taught one-to-one for an hour or more a day.

4. Contact the Florida Branch of the International Dyslexia Association for information about research based assessment and reading programs that are appropriate for K-3 children who have reading problems.

5. Read these publications about retention from the National Association of School Psychologists:

Grade Retention - Achievement and Mental Health Outcomes

"6th grade students rated grade retention as the single most stressful life event, higher than the loss of a parent or going blind. Retained students are less likely to receive a high school diploma by age 20, receive poorer educational competence ratings, and are less likely to be enrolled in any post-secondary education program. Retained students receive lower educational and employment status ratings and are paid less per hour at age 20."

Position Statement on Student Grade Retention and Social Promotion

"Through many years of research, the practice of retaining children in grade has been shown to be ineffective in meeting the needs of children who are academically delayed."

For more information and resources about retention and social promotion, visit the Retention, Delays, & Social Promotion page on Wrightslaw.

6. If the child target for retention has an IEP, the parents should have a serious discussion with members of their child's IEP team.

"If my child's IEP was appropriate, why did it not prepare my child for what the school requires my child to know?"

"We need to amend the IEP to add the specialized instruction that is necessary for my child to participate in the general curriculum with her peers. She needs 1-1 tutoring with a research-based reading method this summer. We need to add 1:1 tutoring in a research-based reading method to her IEP for the next school year.
7. Get a copy of the Florida retention policy. Get the minutes of the meeting in which the policy was adopted by the Florida Board of Education. Is this a proper policy?

Ask the Florida Department of Education for research that a mandatory retention policy will produce the desired results.

8. Federal funding for Reading. Federal funding in Florida still supports No Child Left Behind programs, which establish accountability measures for public schools to ensure that students in all schools are reaching proficiency in reading and math. I doubt retention is one of the requirements. Get a copy of your state's Reading First Grant application (Florida application).
Was mass retention included in the plan approved by the U. S. Department of Education? Reading First Grants

In 2010, Florida was notified that it would receive up to $700 million in federal funds through the Race to the Top grant program. Get a copy of your state's Race to the Top application (Florida application). Read what it says about increasing student reading performance, providing a comprehensive system of research based reading instruction, decreasing the student dropout and retention rates, and what it doesn't say about mandatory retention.

9. File a formal No Child Left Behind complaint with the US Department of Education.

A concise well-documented letter should suffice. Send written documentation of your facts along with the letter. Send copies, not originals. Do not write on original documents. You may need the original later.

To find out who your No Child Left Behind contact is, go http://www2.ed.gov/about/contacts/state/index.html

10. Educate Others

You cannot fight this battle alone. Give this information to other people so they can help. Print the documents listed in this article. Bring these documents with you when you talk to school administrators, legislators, or people who work for the Florida Department of Education.

Summing Up

Parents will need to make a case for each child that the school has not taught.

However, if the school completed the required assessments and correctly identified the child's weaknesses and if the child received intensive reading instruction from a properly qualified teacher who used an appropriate research-based reading program, VERY few children will fall into the proposed retention category.

If more than a handful of children are forced to stay behind so the school can try to be more successful in the fourth year than they were in the first three years, there is a problem with the education of school board members and superintendents.

Retention is a primitive approach to failed teaching. There is NO research that retention benefits children and substantial research that retention damages children.

Florida Statute: http://www.flsenate.gov/Laws/Statutes/2013/1008.25

Title XLVIII. K-20 EDUCATION CODE

Chapter 1008 - ASSESSMENT AND ACCOUNTABILITY

1008.25 Public school student progression; remedial instruction; reporting requirements.--

(1) INTENT.--It is the intent of the Legislature that each student’s progression from one grade to another be determined, in part, upon satisfactory performance in reading, writing, science, and mathematics; that district school board policies facilitate student achievement; that each student and his or her parent be informed of that student’s academic progress; and that students have access to educational options that provide academically challenging coursework or accelerated instruction pursuant to s. 1002-3105.

(2) COMPREHENSIVE STUDENT PROGRESSION PLAN.—Each district school board shall establish a comprehensive plan for student progression which must:

(a) Provide standards for evaluating each student’s performance, including how well he or she masters the performance standards approved by the State Board of Education.

(b) Provide specific levels of performance in reading, writing, science, and mathematics for each grade level, including the levels of performance on statewide assessments as defined by the commissioner, below which a student must receive remediation or be retained within an intensive program that is different from the previous year’s program and that takes into account the student’s learning style.

(c) Provide appropriate alternative placement for a student who has been retained 2 or more years.

(d)1. List the student eligibility and procedural requirements established by the school district for whole-grade promotion, midyear promotion, and subject-matter acceleration that would result in a student attending a different school, pursuant to s. 1002.3105(2)(b).

2. Notify parents and students of the school district’s process by which a parent may request student participation in whole-grade promotion, midyear promotion, or subject-matter acceleration that would result in a student attending a different school, pursuant to s. 1002.3105(4)(b)2.

(e)1. Advise parents and students that additional ACCEL options may be available at the student’s school, pursuant to s. 1002.3105.

2. Advise parents and students to contact the principal at the student’s school for information related to student eligibility requirements for whole-grade promotion, midyear promotion, and subject-matter acceleration when the promotion or acceleration occurs within the principal’s school; virtual instruction in higher grade level subjects; and any other ACCEL options offered by the principal, pursuant to s. 1002.3105(2)(a).

3. Advise parents and students to contact the principal at the student’s school for information related to the school’s process by which a parent may request student participation in whole-grade promotion, midyear promotion, and subject-matter acceleration when the promotion or acceleration occurs within the principal’s school; virtual instruction in higher grade level subjects; and any other ACCEL options offered by the principal, pursuant to s. 1002.3105(4)(b)1.

(f) Advise parents and students of the early graduation options under s. 1003.4281.

(g) List, or incorporate by reference, all dual enrollment courses contained within the dual enrollment articulation agreement established pursuant to s. 1007.271(21).

(h) Provide instructional sequences by which students in kindergarten through high school may attain progressively higher levels of skill in the use of digital tools and applications. The instructional sequences must include participation in curricular and instructional options and the demonstration of competence of standards required pursuant to ss. 1003.41 and 1003.4203 through attainment of industry certifications and other means of demonstrating credit requirements identified under ss. 1002.3105, 1003.4203, 1003.428, and 1003.4282.

(3) ALLOCATION OF RESOURCES.--District school boards shall allocate remedial and supplemental instruction resources to students in the following priority:

(a) Students who are deficient in reading by the end of grade 3.

(b) Students who fail to meet performance levels required for promotion consistent with the district school board’s plan for student progression required in paragraph (2)(b).

(4) ASSESSMENT AND REMEDIATION.--

(a) Each student must participate in the statewide, standardized assessment program required by s. 1008.22. Each student who does not meet specific levels of performance on the required assessments as determined by the district school board or who scores below Level 3 on FCAT Reading or FCAT Mathematics or on the common core English Language Arts or mathematics assessments as applicable under s. 1008.22 must be provided with additional diagnostic assessments to determine the nature of the student’s difficulty, the areas of academic need, and strategies for appropriate intervention and instruction as described in paragraph (b).

(b) The school in which the student is enrolled must develop, in consultation with the student’s parent, and must implement a progress monitoring plan. A progress monitoring plan is intended to provide the school district and the school flexibility in meeting the academic needs of the student and to reduce paperwork. A student who is not meeting the school district or state requirements for proficiency in reading and mathematics shall be covered by one of the following plans to target instruction and identify ways to improve his or her academic achievement:

1. A federally required student plan such as an individual education plan;
2. A schoolwide system of progress monitoring for all students; or
3. An individualized progress monitoring plan.

The plan chosen must be designed to assist the student or the school in meeting state and district expectations for proficiency. If the student has been identified as having a deficiency in reading, the K-12 comprehensive reading plan required by s. 1011.62(9) shall include instructional and support services to be provided to meet the desired levels of performance. District school boards may require low-performing students to attend remediation programs held before or after regular school hours or during the summer if transportation is provided.

(c) Upon subsequent evaluation, if the documented deficiency has not been remediated, the student may be retained. Each student who does not meet the minimum performance expectations defined by the Commissioner of Education for the statewide assessment tests in reading, writing, science, and mathematics must continue to be provided with remedial or supplemental instruction until the expectations are met or the student graduates from high school or is not subject to compulsory school attendance.

(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 reassessed by locally determined assessments or through teacher observations at the beginning of the grade following the intensive reading instruction. The student must continue to be provided with intensive reading instruction until the reading deficiency is remedied.

(b) 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 Florida Comprehensive Assessment Test (FCAT) 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 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.

(6) ELIMINATION OF SOCIAL PROMOTION.--

(a) No student may be assigned to a grade level based solely on age or other factors that constitute social promotion.

(b) The district school board may only exempt students from mandatory retention, as provided in paragraph (5)(b), for good cause. Good cause exemptions shall be limited to the following:

1. Limited English proficient students who have had less than 2 years of instruction in an English for Speakers of Other Languages program.

2. Students with disabilities whose individual education plan indicates that participation in the statewide assessment program is not appropriate, consistent with the requirements of State Board of Education rule.

3. Students who demonstrate an acceptable level of performance on an alternative standardized reading or English Language Arts assessment approved by the State Board of Education.

4. A student who demonstrates through a student portfolio that he or she is performing at least at Level 2 on FCAT Reading or the common core English Language Arts assessment, as applicable under s. 1008.22.

5. Students with disabilities who participate in FCAT Reading or the common core English Language Arts assessment, as applicable under s. 1008.22, and who have an individual education plan or a Section 504 plan that reflects that the student has received intensive remediation in reading and English Language Arts for more than 2 years but still demonstrates a deficiency and was previously retained in kindergarten, grade 1, grade 2, or grade 3.

6. Students who have received intensive remediation in reading and English Language Arts, as applicable under s. 1008.22, for 2 or more years but still demonstrate a deficiency and who were previously retained in kindergarten, grade 1, grade 2, or grade 3 for a total of 2 years. Intensive instruction for students so promoted must include an altered instructional day that includes specialized diagnostic information and specific reading strategies for each student. The district school board shall assist schools and teachers to implement reading strategies that research has shown to be successful in improving reading among low-performing readers.

(c) Requests for good cause exemptions for students from the mandatory retention requirement as described in subparagraphs (b)3. and 4. shall be made consistent with the following:

1. Documentation shall be submitted from the student's teacher to the school principal that indicates that the promotion of the student is appropriate and is based upon the student's academic record. In order to minimize paperwork requirements, such documentation shall consist only of the existing academic improvement plan, individual educational plan, if applicable, report card, or student portfolio.

2. The school principal shall review and discuss such recommendation with the teacher and make the determination as to whether the student should be promoted or retained. If the school principal determines that the student should be promoted, the school principal shall make such recommendation in writing to the district school superintendent. The district school superintendent shall accept or reject the school principal's recommendation in writing.

(7) SUCCESSFUL PROGRESSION FOR RETAINED THIRD GRADE STUDENTS.--

(a) Students retained under the provisions of paragraph (5)(b) must be provided intensive interventions in reading to ameliorate the student’s specific reading deficiency, as identified by a valid and reliable diagnostic assessment. This intensive intervention must include effective instructional strategies, participation in the school district’s summer reading camp, and appropriate teaching methodologies necessary to assist those students in becoming successful readers, able to read at or above grade level, and ready for promotion to the next grade.

(b) Each school district shall:

1. Provide third grade students who are retained under the provisions of paragraph (5)(b) with intensive instructional services and supports to remediate the identified areas of reading deficiency, including participation in the school district’s summer reading camp as required under paragraph (a) and a minimum of 90 minutes of daily, uninterrupted, scientifically research-based reading instruction which includes phonemic awareness, phonics, fluency, vocabulary, and comprehension and other strategies prescribed by the school district, which may include, but are not limited to:

a. Integration of science and social studies content within the 90-minute block.
b. Small group instruction.
c. Reduced teacher-student ratios.
d. More frequent progress monitoring.
e. Tutoring or mentoring.
f. Transition classes containing 3rd and 4th grade students.
g. Extended school day, week, or year.

2. Provide written notification to the parent of any student who is retained under the provisions of paragraph (5)(b) that his or her child has not met the proficiency level required for promotion and the reasons the child is not eligible for a good cause exemption as provided in paragraph (6)(b). The notification must comply with the provisions of s. 1002.20(15) and must include a description of proposed interventions and supports that will be provided to the child to remediate the identified areas of reading deficiency.

3. Implement a policy for the midyear promotion of any student retained under the provisions of paragraph (5)(b) who can demonstrate that he or she is a successful and independent reader and performing at or above grade level in reading and English Language Arts, as applicable under s. 1008.22. Tools that school districts may use in reevaluating any student retained may include subsequent assessments, alternative assessments, and portfolio reviews, in accordance with rules of the State Board of Education.

4. Provide students who are retained under the provisions of paragraph (5)(b) with a highly effective teacher as determined by the teacher’s performance evaluation under s. 1012.34.

5. Establish at each school, when applicable, an Intensive Acceleration Class for retained grade 3 students who subsequently score Level 1 on the required statewide, standardized assessment identified in s. 1008.22. The focus of the Intensive Acceleration Class shall be to increase a child’s reading and English Language Arts skill level at least two grade levels in 1 school year. The Intensive Acceleration Class shall:

a. Be provided to any student in grade 3 who scores Level 1 on FCAT Reading or the common core English Language Arts assessment, as applicable under s. 1008.22, and who was retained in grade 3 the prior year because of scoring Level 1.
b. Have a reduced teacher-student ratio.
c. Provide uninterrupted reading instruction for the majority of student contact time each day and incorporate opportunities to master the grade 4 Next Generation Sunshine State Standards in other core subject areas.
d. Use a reading program that is scientifically research-based and has proven results in accelerating student reading achievement within the same school year.
e. Provide intensive language and vocabulary instruction using a scientifically research-based program, including use of a speech-language therapist.

(8) ANNUAL REPORT.--

(a) In addition to the requirements in paragraph (5)(b), each district school board must annually report to the parent of each student the progress of the student toward achieving state and district expectations for proficiency in reading, writing, science, and mathematics. The district school board must report to the parent the student’s results on each statewide assessment test. The evaluation of each student’s progress must be based upon the student’s classroom work, observations, tests, district and state assessments, and other relevant information. Progress reporting must be provided to the parent in writing in a format adopted by the district school board.

(b) Each district school board must annually publish on the district website and in the local newspaper the following information on the prior school year:

1. The provisions of this section relating to public school student progression and the district school board’s policies and procedures on student retention and promotion.

2. By grade, the number and percentage of all students in grades 3 through 10 performing at Levels 1 and 2 on the reading portion of the FCAT.

3. By grade, the number and percentage of all students retained in grades 3 through 10.

4. Information on the total number of students who were promoted for good cause, by each category of good cause as specified in paragraph (6)(b).

5. Any revisions to the district school board’s policy on student retention and promotion from the prior year..

(9) RULEMAKING--

The State Board of Education shall adopt rules pursuant to ss. 120.536(1) and 120.54 for the administration of this section.
History.—s. 371, ch. 2002-387; s. 8, ch. 2003-118; s. 6, ch. 2004-42; s. 6, ch. 2004-255; s. 119, ch. 2006-1; s. 42, ch. 2006-74; s. 186, ch. 2008-4; s. 9, ch. 2010-22; s. 23, ch. 2012-191; s. 34, ch. 2013-27.


Meet Sue Whitney

Sue Whitney of Merrimack, New Hampshire, is the research editor for Wrightslaw.

Sue is the co-author of Wrightslaw: No Child Left Behind (ISBN: 978-1-892320-12-4) that is published by Harbor House Law Press.

In Doing Your Homework, she writes about reading, research based instruction, No Child Left Behind, and creative strategies for using federal education standards to advocate for children and to improve public schools. Her articles have been reprinted by SchwabLearning.org, EducationNews.org, Bridges4Kids.org, The Beacon: Journal of Special Education Law and Practice, the Schafer Autism Report, and have been used in CLE presentations to attorneys. Sue Whitney's bio.

Sue has served on New Hampshire's Special Education State Advisory Committee on the Education of Students/Children with Disabilities (SAC) and has been a volunteer educational surrogate parent. She currently works with families as a special education advocate.


Copyright © 2002-2014 by Suzanne Whitney.


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