Gov. Rick Scott is ready to take the federal government to court over testing rules for students learning English.
The U.S. Department of Education says Florida must count those students’ results after one year in school. Scott and Florida educators want to give students two years to learn English.
Scott said Education Commissioner Pam Stewart will send a letter asking the U.S. Department of Education to reconsider testing rules for students learning English. If they don't change their mind in 30 days, Scott said the state could go to court.
“We believe federal officials haven’t properly scrutinized their decision," Scott said. "If they refuse, we will begin reviewing every legal option that is available to us."
Officials with the U.S. Department of Education were unavailable.
Florida was the first state to challenge the federal health care law in court, and now could challenge federal education rules as well.
At risk is Florida’s exemption from the federal No Child Left Behind law. The law requires every student pass statewide exams -- even those learning English -- or face sanctions.
The State Board of Education agreed to test students learning English earlier to qualify for more flexible school performance measures.
But the Legislature objected and passed a law this spring requiring testing after two years.
"The bottom line for me is that there is a chance that Florida's waiver is in danger," said Anne Hyslop, a senior policy analyst for Bellwether Education Partners and a keen waiver watcher.
The U.S. Department of Education has already revoked Washington's waiver and the agency has threatened other states. Florida’s waiver has been extended until next year, but could be revoked then.
Washington ran into trouble because of policies written into state law, Hyslop said. Florida is now in the same position after lawmakers changed testing rules.
Test results have two components to measure student performance. The first is growth, which is student year-over-year improvement. Florida schools use tests to measure growth of English learners as soon as they enroll, Stewart said.
The other component is achievement, or the percentage of students who are meeting state goals -- passing -- the exam. This is where Florida leaders are objecting.
Salvatore Schiavone, principal at Southside Elementary in Miami says Spanish-speaking students usually spend the first year just learning English phonics. It's usually not until the second year when comprehension takes hold. Two in five students at the roughly 800-student Southside Elementary would get an extra year if the testing rules were changed.
"They need the foundation before they can acquire the mastery of the language," Schiavone said.
Schools failing to meet federal goals could lose control over federal money for schools with high poverty rates or have to provide extra instruction.
The U.S. Department of Education has relaxed its waiver rules for other policies -- such as teacher evaluations. Last week, the agency allowed states a one-year delay before using test results to evaluate teachers.
"A lot those hard and fast rules aren't hard and fast anymore," Hyslop said.
She said Florida is the first state to challenge the testing requirement for English learners. She said there might be ways for the two sides to reach a compromise on testing depending on how those students are counted.
Stewart, the education commissioner, said Florida's Hispanic students are among the nation's leaders in several categories.
"Why in the world the federal government would want to micromanage," she said, "especially when you consider this is a policy that is working."