Sch. Bd. of Hernando Cnty. v. Rhea

• Decision Date: 07 March 2017
• Docket Number: 1D16–4052,1D16–3936,1D16–4084,CASE NOS. 1D16–3914,1D16–3933,1D16–3932
• Citation: 213 So.3d 1032
• Parties: SCHOOL BOARD OF HERNANDO COUNTY, Pam Stewart, in her official capacity as Commissioner of The Florida Department of Education, State Board of Education, School Board of Seminole County, School Board of Orange County, School Board of Pasco County, and School Board of Osceola County, Appellants, v. Michelle RHEA, Theresa Butler, Geraldine Callaghan, Pam Everett, Alexa Hasania, Scott Hastings, Amanda Hazard, Melinda Hohman, Brandy Kinkade, Rhonda Nickerson, Suzanne Rowland, and Gabrielle Weaver, Appellees.
• Court: Florida District Court of Appeals

213 So.3d 1032

SCHOOL BOARD OF HERNANDO COUNTY, Pam Stewart, in her official capacity as Commissioner of The Florida Department of Education, State Board of Education, School Board of Seminole County, School Board of Orange County, School Board of Pasco County, and School Board of Osceola County, Appellants,

v.Michelle RHEA, Theresa Butler, Geraldine Callaghan, Pam Everett, Alexa Hasania, Scott Hastings, Amanda Hazard, Melinda Hohman, Brandy Kinkade, Rhonda Nickerson, Suzanne Rowland, and Gabrielle Weaver, Appellees.

CASE NOS. 1D16–3914

1D16–3932

1D16–3933

1D16–3936

1D16–4052

1D16–4084

District Court of Appeal of Florida, First District.

Opinion filed March 7, 2017.

Richard Burton Bush, Audra Michelle Bryant, and Lisa J. Augspurger of Bush & Augspurger, P.A., Tallahassee, for Appellant School Board of Hernando County.

Matthew H. Mears, Steven S. Ferst, David L. Jordan, and Mari M. Presley of the Department of Education, Tallahassee; Rocco E. Testani and Stacey M. Mohr of Sutherland Asbill & Brennan LLP, Atlanta, G.A., for Appellants Pam Stewart and State Board of Education.

Serita Beamon of Seminole County Public Schools, Sanford; Donna E. Blanton, Angela D. Miles, and Brittany Adams Long of Radey Law Firm, Tallahassee, for Appellant School Board of Seminole County.

Nicholas A. Shannin and Carol B. Shannin of Shannin Law Firm, P.A., Orlando, for Appellant School Board of Orange County.

Dennis J. Alfonso, Knute J. Nathe, and Carl J. DiCampli of McClain, Alfonso, Nathe & DiCampli, P.A., Dade City, for Appellant School Board of Pasco County.

Amy J. Pitsch and Susana Cristina Garcia of Greenspoon Marder, Orlando, for Appellant School Board of Osceola County.

Andrea Flynn Mogensen of the Law Office of Andrea Flynn Mogensen, P.A., Sarasota, for Appellees.

WETHERELL, J.

In these consolidated appeals, the State Board of Education and the Commissioner of the Department of Education (collectively "DOE") and five local school boards seek review of a nonfinal order that (1) denies the school boards' motions to transfer or dismiss based on the home-venue privilege and (2) grants temporary injunctive relief against DOE and one of the school boards. We reverse the order and vacate the injunction because the school boards were entitled to be sued in their home venues and none of the requirements for injunctive relief were established.

I. Factual and Procedural Background

The day before the 2016–2017 school year started in most areas of the state, Appellees (hereafter "the plaintiffs")—a group of parents whose children were not promoted to fourth grade because they "opted out" of the mandatory statewide standardized reading test known as the English Language Arts assessment ("ELA")¹ —filed a complaint in the Leon County circuit court seeking declaratory and injunctive relief against DOE and the school boards for Broward,² Hernando, Orange, Osceola, Pasco, Sarasota,³ and Seminole counties. The complaint alleged that the plaintiffs' children did not have reading deficiencies and that the school boards' decisions to retain the children in third grade without offering a "portfolio option"⁴ were based on an erroneous interpretation of section 1008.25, Florida Statutes (2015), which was dictated to the school boards by DOE. The complaint included claims alleging violations of the children's rights to due process and equal protection under the state and federal constitutions.

The plaintiffs also filed an emergency motion for a temporary injunction premised on the irreparable harm their children would suffer if retained in third grade. The specific relief requested in the motion was "[a] preliminary injunction enjoining defendants from refusing to accept a student portfolio or report card based on classroom work throughout the course of the school year when there is no reading deficiency."

In response to the complaint—and in some cases, prior to being served—each of the school boards filed a motion to dismiss or transfer asserting their home-venue privilege. After the trial court deferred ruling on the venue motions at a hearing held three days after the complaint was filed, the school boards and DOE jointly removed the case to the federal district court in Tallahassee. In response, the plaintiffs amended the complaint by deleting the federal claims. The federal court thereafter remanded the case to the trial court.

The trial court did not immediately rule on the venue motions after the case was remanded despite the school boards' repeated contentions that they were entitled to a ruling on the motions before they were subjected to additional proceedings in this case outside of their home venues. Instead, the court took the venue motions under advisement and held a lengthy evidentiary hearing on the plaintiffs' motion for a temporary injunction.⁵

The evidence presented at the hearing established that the plaintiffs directed their children to "opt out" of—or, as they now characterize it, to "minimally participate" in⁶ —the ELA by breaking the seal, writing their names on the test, and then turning it in without answering any questions. Each of the plaintiffs was offered opportunities for their children to take alternative standardized assessments, but they refused. Most of the plaintiffs were also offered the "portfolio option" for their children, but the Hernando County School Board ("HCSB") did not offer that option to students who had not taken the ELA or an alternative standardized assessment.

The evidence also established that although DOE does not have a rule defining "participation" in the ELA, DOE does not consider students who—like the plaintiffs' children—do not even attempt to answer a single question to have "participated" in the test. Furthermore, although DOE leaves the review and approval of the "portfolio option" to the local school boards, it published a technical assistance paper ("TAP") explaining the availability of the "portfolio option" and the other good cause exemptions provided in section 1008.25(6)(b) and it adopted a rule establishing the criteria that student portfolios must meet. The TAP provides that the student portfolio and an alternative assessment are "the two state-approved options for good cause exemption" and that "[t]he student must be offered both options," but neither the rule nor the TAP necessarily forecloses a school board from requiring students who do not take the ELA to take an alternative standardized test before offering the "portfolio option" as HCSB does.

Four days after the hearing, the trial court entered a lengthy order denying the school boards' venue motions and granting in part and denying in part the plaintiffs' motion for temporary injunctive relief. Specifically, the order (1) denied injunctive relief against all of the school boards except HCSB because the children from the other counties were either no longer enrolled in public school, had refused alternative promotion options, or had failed to exhaust their administrative remedies regarding the "portfolio option" that was offered;⁷ (2) granted injunctive relief against HCSB, requiring it to (a) "immediately provide the portfolio option ... to any parent who has requested one" and (b) "stop refusing to accept a student portfolio or report card based on classroom work throughout the course of the school year;" and (3) granted injunctive relief against DOE, requiring it to (a) "stop disseminating misinformation that there is no portfolio option available when children do not score a level 2 on the [ELA]," (b) "properly notify the County School Boards that the statutory notice of deficiency and remediation processes must be followed for every student participating (even minimally) in the [ELA] who does not achieve a level 3 score," (c) "notify the County School Boards that the portfolio option must be offered and available to all grade 3 students," and (d) "notify County School Boards that grade 3 students with no reading deficiency should be promoted, not retained."

The school boards and DOE filed timely notices of appeal challenging the trial court's rulings on venue and injunctive relief.⁸

II. Standards of Review

We review the portion of the trial court's order denying the school boards' venue motions under the de novo standard of review, see Brown v. Nagelhout , 84 So.3d 304, 308 (Fla. 2012) ; and we review the portion of the order granting injunctive relief against DOE and HCSB under a hybrid standard of review pursuant to which the court's legal conclusions are reviewed de novo and the factual findings are reviewed for an abuse of discretion, see SunTrust Banks, Inc. v. Cauthon & McGuigan, PLC , 78 So.3d 709, 711 (Fla. 1st DCA 2012).

III. Analysis

The statute at the heart of this case is section 1008.25, which, among other things, establishes standards and procedures for the promotion of public school students from third grade to fourth grade. The statute expresses the legislative intent to eliminate "social promotion" and to determine student progression based, at least in part, on satisfactory performance on the ELA and the other components of the FSA. §§ 1008.25(1), (6)(a), Fla. Stat. To that end, the statute requires all public school students to participate in the ELA. § 1008.25(4)(a) ("Each student must participate in the statewide, standardized assessment program required by s. 1008.22.") (emphasis added); see also § 1008.22(3) ("Participation in the assessment program is mandatory for all school districts and all students attending public schools ....") (emphasis added).

Section 1008.25 does not define "participate," but common sense (and the statute as a whole) dictates that the term requires more than the so-called "minimal participation" engaged in by the plaintiffs' children in this case. The purpose of the ELA is to assess whether the student has a reading deficiency and needs additional reading instruction before (and after) being promoted to fourth grade. See § 1008.25(5)(a). The test can only achieve that laudable purpose if the...