Before discussing the concept of mandatory retention, it is helpful to first discuss the rights that a parent has against a public school or school district. Different areas of law are involved, including:

Administrative laws govern the activities of governmental agencies, including public schools. Under administrative laws, most agencies have a board, commission, or other type of tribunal that adjudicates matters. An administrative court is generally made up of experts in the particular field. As such, it only adjudicates matters within the field by applying the agency’s policies and rules.

Both civil and criminal laws are addressed in a court and will involve a judge presiding over the case. Alternatively, a jury may hear the case. These laws are associated with legal areas such as personal liability and criminal offenses.

Generally speaking, a parent will need to first file a complaint against the responsible parties, as well as exhaust all administrative remedies prior to filing a civil lawsuit. The requirements for filing such complaints vary by state. Some states also require a notice of claims, which is a statement that identifies a person’s legal cause of action such as discrimination or failure to prevent injury.

A number of school districts now require many students to pass tests before allowing them to advance to the next grade level. These tests evaluate them on educational skills that they should have acquired by that point, such as certain levels of literacy. If the student does not pass these tests, they are retained at their current grade level and are forced to repeat the grade.

This policy is commonly known as the mandatory retention policy of not promoting students that do not possess the basic skills tested on educational exams. However, many parents and schools cannot agree on whether a child should be retained, for many different reasons. The practice is largely based on the belief that children learn more academically by repeating a grade.

Retention is proposed for many reasons, including:

  • Difficulty keeping up with grade level academics;
  • Immaturity;
  • Late birthdays;
  • Missing a considerable amount of school due to absences; and
  • Limited English skills.

The most common reason cited for student retention would be academic failure due to reading problems in the primary grades, as well as failure to earn course credit during high school. School retention laws are often criticized as being ablest and discriminatory.

What Are Some Drawbacks of Retention?

A considerable number of studies have found that retention does not necessarily remedy a student’s lack of educational skills; the effects of mandatory retention may be more harmful than beneficial. An example of this would be how many students have high drop out rates due to mandatory retention.

However, the practice of “social promotion” which moves a student ahead without any additional support, is also considered to be largely ineffective. This is why it is proposed that schools should combine grade promotion with effective and evidence-based interventions within a Response to Intervention framework. Additionally, instead of using retention as an intervention, school staff should advocate for educational interventions that are supported by research.

Effective and early schoolwide and/or classroom intervention is considered to be imperative to both preventing and avoiding mandatory retention for individual students. It is suggested that schools utilize valid and reliable assessments in order to identify struggling students early on, so that school staff can assist with classwide and/or individualized instruction specific to the struggling student’s needs. Additionally, having a student support team to problem-solve, monitor progress, and implement data to make decisions regarding student intervention is crucial.

In terms of other alternatives to mandatory retention, tutoring, mentoring, or after-school support should be made widely available to provide additional support and time for students. Additionally, teachers should collaborate with support staff and parents to provide additional support to high-risk students.

Examples of support staff include, but may not be limited to:

  • School psychologists;
  • Social workers;
  • Guidance counselors; and
  • Administrators.

The following factors should be considered when recommending appropriate alternative intervention strategies in order to avoid the negative effects of mandatory retention:

  • Previous and current academic and behavior assessments;
  • Previous and current interventions implemented;
  • The duration and frequency of the interventions, as well as the effectiveness of the interventions;
  • The integrity of implementation of interventions;
  • Previous retention;
  • Community resources;
  • Family context;
  • Parental involvement;
  • Health issues, as well as learning disabilities; and
  • Risk behaviors.

What If the School Wants to Retain My Child?

When considering mandatory retention, schools and teachers are generally required to consult with parents because they believe that the student is not ready and able to be promoted to the next grade level. This suggestion understandably makes many parents uneasy about having their child held back in school.

However, parents have many options that they may use to prevent their child from being retained. These options include, but may not be limited to:

  • Request Copies of School Files: Copies of school files will allow a parent to review the reason as to why their child is being asked to remain in their current grade level;
  • Determine What Teaching Style Was Used: Many students do not respond to certain teaching styles, and need special help in order to succeed academically. Schools should do their best to reasonably accommodate such students; or
  • Ask If The School Has An Intensive Reading Program: Many schools suggesting mandatory retention have special programs which are intended to help a student recover their reading abilities. This would be so that they can be promoted to the next grade level.

What If the School Will Not Promote My Child?

There are many circumstances in which parents and schools have honest disagreements, and are unable to come to an agreement regarding mandatory promotion. Parents do have outside help in resolving the matter, such as filing a complaint with the United States Department of Education. This would require the parents to send copies of their child’s records and files. Additionally, they should ask to speak with district administrators, as district administrators can review the case and determine the best course of action.

In terms of kindergarten and mandatory retention, there is no universal set of behaviors that is required for a child to enter kindergarten. States designate an arbitrary cut-off date for kindergarten entrance in order to create consistency in school entry practices. When a child reaches the age of kindergarten eligibility, there may be concern about the child’s age, maturity, or school readiness skills. As such, some children delay their entrance to kindergarten in a type of retention that is called “redshirting.”

However, research does not support this practice, as delaying kindergarten entry generally has similar negative effects to that of mandatory retention in later grades. Additionally, some children who have been redshirted worry that they have failed and develop poor attitudes toward school. They are also more likely to have later behavioral problems and drop out of school. Families and educators must consider that by holding a child out, they may be depriving the child of important opportunities for learning.

Research into the matter largely states that development must be stimulated by the child’s interactions with the world and people around them. What this means is that children can develop more skills, and more quickly, when they are put into a stimulating environment such as a kindergarten classroom.

Should I Consult an Attorney for Help with Mandatory Retention Issues?

If your child’s school is suggesting mandatory retention, you should consult with a government attorney. An experienced attorney can help parents to determine the best course of action, and can work with school officials in order to determine if retention is actually in the child’s best educational interests.