A Pinellas County father who sued to gain access to his son's FCAT booklets and answer sheets has no right to see those records, an appeals court ruled Thursday.
The court case, which was intended to lift the veil on the state's all-important Florida Comprehensive Assessment Test, likely is headed to the state's highest court.
"We'll do anything we can to get this to the Supreme Court," said Palm Harbor attorney Mark Herdman, who represented the Pinellas County father. "I think it's unfortunate that the court believes the student records laws exist to protect the government from the people, not to protect the people from the government."
The ruling by the 1st District Court of Appeal was quickly applauded by Gov. Jeb Bush, a sign of the case's importance to the state.
"I am pleased that the 1st District has ruled in support of the Department of Education's 20-year policy on test confidentiality," Bush said in a statement.
The judge who wrote the opinion, Paul Hawkes, was appointed to the court by Bush, worked in Bush's budget office and later worked as "chief of policy" for then-House Speaker Tom Feeney.
The opinion reverses a ruling by a Leon County judge who said Steven O. Cooper should have access to his son's FCAT booklets and answer sheets, at least under restricted conditions. The son has been unable to get a standard diploma because he failed the test, and Cooper wanted to see which questions he got wrong.
The son was scheduled to graduate in June. He still has not passed the test and still attends high school in Pinellas, Herdman said.
The state argued that making the test questions public would cost Florida millions of dollars because the test would have to be re-created each year. The state also noted that while Florida law allows the release of student records, it requires the Florida Department of Education to keep "test instruments" confidential.
Several states, including Massachusetts, Maine, New Hampshire and Virginia, have made test questions and answers publicly available for their state tests. In Massachusetts, for instance, the state posts the questions and answers on the Internet weeks after students take the test.
But that's different from making a specific child's test available to a parent.
Two years ago, then-Education Commissioner Charlie Crist and then-Lt. Gov. Frank Brogan said Florida intended to make the FCAT questions available to the public soon. That would be easier than getting specific test booklets and answer sheets into the hands of parents. Nevertheless, the test has not been made public.
The state has made sample questions available. And parents receive a report that tells them the general math or reading areas where their child did well or poorly.
Judy Castillo of Brooksville filed a lawsuit last month to see her son's FCAT. She said Thursday that she has not received a response from the state. She said the particulars of her lawsuit - her son is autistic - are different enough so that the Cooper lawsuit might not affect the outcome.
