In Florida, some third-graders – including honor students – are being forced to retake third grade because their parents decided to opt them out of the state’s mandated standardized reading test this past spring.

An undetermined number of third-graders who refused to take the Florida Standards Assessment in reading have been barred from moving to fourth grade in some counties. A lawsuit filed by parents against state education officials as well as school boards in seven counties says counties are interpreting the state’s third-grade retention law so differently that the process has become unfair. Test participation, therefore, is more important than student class academic achievement.

On Friday, Leon County Circuit Court Judge Karen Gievers held a hearing in the suit about the third-grade retention law, which was passed years ago, when Jeb Bush was governor and at a time when there was no movement among parents to opt their children out of standardized tests. Now the opt-out movement is growing, and officials in Florida as well in other states are trying to figure out how to handle students who won’t take mandated standardized tests. It is unclear how many students in Florida opted out of the 2016 test.

Gievers said she may rule as early as next week in the suit, which was brought by parents against Florida Education Commissioner Pam Stewart, the State Board of Education, and the school boards in Orange, Hernando, Osceola, Sarasota, Pasco, Broward and Seminole counties. Other counties in Florida did not interpret the law to mean that students had to be retained if they didn’t take the test, and the Florida Department of Education has said it never mandated that students be held back if they opt out of the FSA.

Children and their families learned in June, when they received report cards, that they would be held back, and over the summer, parents organized and raised money so they could challenge the third-grade retention law.

That this is happening in Florida is not entirely a surprise, given that the state was the leader, under Bush as governor, of test-based accountability systems that made standardized test scores the most important measure of student achievement and school success.

The lawsuit says:

“Parents of students who received report cards with passing grades – some of whom were honor roll students – seek emergency declaratory and injunctive relief alleging that, because they opted out of standardized testing for their child, defendants arbitrarily and capriciously interpreted statutes and rules in a manner that requires retention, rather than promotion, of third grade students. … Because the receipt of federal dollars is at stake unless 95 percent of students participate in standardized testing, test participation is treated as more important than actual performance.”