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New Jersey Court Rules Against PARCC for Testing High School Proficiency

January 11, 2019

The New Jersey Department of Education (DOE) has run awry of its own proficiency testing statutes in trying to use PARCC tests for that purpose. Such is the determination of the Superior Court of New Jersey, Appellate Division, according to this December 31, 2018, ruling.

The appellants in the case are the Latino Action Network, the Latino Coalition of New Jersey, the Paterson Education Fund, the Education Law Center, and the NAACP New Jersey State Conference. The respondents are the New Jersey State Board of Education and Kimberley Harrington, Acting Commissioner, New Jersey DOE.

In its ruling, the court reminded New Jersey DOE of its own, pre-PARCC-established regulations regarding proficiency testing, the heart of which is as follows:

Enacted in 1979, the Proficiency Standards and Assessments Act (the Act), N.J.S.A. 18A:7C-1 to -16, requires DOE and the Board to “establish a program of standards for graduation from secondary school,” including “a statewide assessment test in reading, writing, and computational skills . . . .” …

In 1988, the Legislature amended the Act to provide that the test “be administered to all [eleventh] grade pupils and to any [eleventh] or [twelfth] grade pupil who ha[d] previously failed to demonstrate” proficiency. N.J.S.A. 18A:7C-6. Local boards of education must now provide remedial instruction to students who do not meet the State proficiency standards by the end of eleventh grade. N.J.S.A. 18A:7C-3. “Any [twelfth] grade student who does not meet” the “State and [school] district examination standards for graduation[,]” but “has met all the credit, curriculum and attendance requirements shall be eligible for a comprehensive assessment of said proficiencies utilizing techniques and instruments” approved by the Commissioner of Education, “other than standardized tests.”

Thus, from the above one may glean the following regarding New Jersey’s high school proficiency testing:

  1. The testing is to occur in eleventh grade;
  2. The test is just that– a single test;
  3. Students who fail the test on the first try are to be retested using the same, single test, and 
  4. Twelfth-grade students who are otherwise in good standing but who have not passed the test (presumably after retesting) are to be provided with an alternative assessment that is not a standardized test.

The issues addressed in the lawsuit include that as of 2016, the New Jersey DOE requires students to pass both the PARCC ELA 10 (English language arts test for tenth grade) and Algebra I tests (plural) as proof of proficiency, prior to eleventh grade, without opportunity for retaking the same test, and without the opportunity for alternative assessment that is not a standardized test.

The result is that the 2016 PARCC requirements contradict the 1979 and 1988 requirements regarding high school proficiency testing– requirements that are still on the books.

The case was argued before the appellate court on October 29, 2018; below is a distillation if the December 31, 2018, ruling.

First of all, the appellate court ruled that the test needs to be administered in eleventh grade:

DOE cites N.J.S.A. [New Jersey Statutes Annotated] 18A:7C-6.4 and -6.5, both of which the Legislature enacted after DOE adopted the PARCC assessments. Both statutes define “[s]tate assessment” as “an assessment required pursuant to State or federal law and administered to all students in a specific grade level or subject area and whose results are aggregated for analysis . . . .” DOE argues the Legislature signaled its intention to test proficiencies at grade levels, not necessarily pupils enrolled in eleventh grade.

The argument is unpersuasive. The ELA10, administered as an end-of-course test in the tenth grade, does not test eleventh grade proficiency. The Algebra I test has no connection to proficiencies at a specific grade level. Moreover, these two provisions are not inconsistent with the plain language of the Act, i.e., that DOE administer the graduation proficiency test “to all [eleventh] grade pupils,” N.J.S.A. 18A:7C-6, and the legislative purpose of the Act. We hold, therefore, that to the extent the regulations required testing of non-eleventh-grade students, they are contrary to the Act and are invalid.

Next, regarding the “test” (singular) vs. “tests” (plural) issue, the court ruled that DOE’s requiring both PARCC ELA 10 and Algebra I violates the single-test issue. From the ruling:

Appellants next assert that the amended regulations impermissibly impose multiple end-of-course tests instead of a single graduation exam as the Act requires. DOE counters by arguing the Act permits administration of tests “for these subject areas when courses are completed — which may occur at different times.”

The Act does not specifically use the words “single” or “comprehensive” to describe the required graduation proficiency test. However, N.J.S.A. 18A:7C-1 directs the DOE and Board to develop “a [s]tatewide assessment test in reading, writing, and computational skills . . . .” (Emphasis added). N.J.S.A. 18A:7C-6 states that “the State graduation proficiency test” shall be administered to eleventh grade pupils. (Emphasis added). N.J.S.A. 18A:7C-2 similarly includes the phrase, “[s]atisfactory performance on the [s]tatewide assessment test . . . .” (Emphasis added). The Legislature’s use of these terms suggests its intent to require one high school graduation proficiency exam rather than multiple end-of-course exams.

As to offering retesting options, well, the appellate court finds that DOE also falls short on this point:

We also agree with appellants that for classes graduating through 2020, the regulations do not provide for re-testing utilizing the same proficiency examination. In addition to requiring that the test be administered to all eleventh grade pupils, N.J.S.A. 18A:7C-6 provides that it must be administered to “any [eleventh] or [twelfth] grade pupil who has previously failed to demonstrate mastery of State graduation proficiency standards on said test.” This evinces the Legislature’s intent that students be given more than one opportunity to pass the same proficiency test.

N.J.A.C. [New Jersey Administrative Codes] 6A:8-5.1(f)(1) and (2) do not reference any opportunity for students graduating through 2020 to retake the PARCC ELA 10 and Algebra I exams. Rather, students who have not taken or have failed those tests can demonstrate graduation proficiency only through alternative methods: a substitute test like the SAT, passing scores on other PARCC assessments, or the portfolio review. …

Based on the record before us, it is unclear whether re-testing opportunities are routinely being provided for students. To the extent they are not, the regulations on their face violate N.J.S.A. 18A:7C-6.

Finally, the court finds that DOE must provide alternatives aside from standardized tests for twelfth graders who need such opportunities:

The plain language of N.J.S.A. 18A:7C-3 establishes that any twelfth grade student who has not passed the graduation proficiency exam, but who has satisfied all other “credit, curriculum and attendance requirements shall be eligible for” an alternative proficiency assessment “utilizing techniques and instruments” adopted by DOE “other than standardized tests . . . .” We do not construe the Act as prohibiting DOE’s adoption of PARCC testing; rather, the Act compels DOE to provide for alternative methods of assessing proficiency other than through PARCC testing or any other standardized testing process.

In conclusion, though the court found that the New Jersey DOE’s use of PARCC ELA 10 and Algebra I tests violates New Jersey ed regulations related to the state’s high school proficiency testing, the court decided to “sua sponte” (without the prompting of others) stay its judgment for 30 days so that New jersey DOE might “seek further review” in the New Jersey Supreme Court:

We hold N.J.A.C. 6A:8-5.1(a)(6), -5.1(f) and -5.1(g) are contrary to the express provisions of the Act because they require administration of more than one graduate proficiency test to students other than those in the eleventh grade, and because the [recently-adopted PARCC usage] regulations on their face do not permit retesting with the same standardized test to students through the 2020 graduating class. As a result, the regulations as enacted are stricken. To avoid disruption in any ongoing statewide administration of proficiency examinations, we sua sponte stay our judgment for thirty days to permit DOE to seek further review in the Supreme Court.

So, if it so chooses, the New Jersey DOE has a month to appeal to the state’s supreme court in order to try to continue using multiple PARCC tests, adminstered prior to eleventh grade, without offering retesting using the same, single test, and without offering alternatives to standardized testing that follow testing using a single test.

PARCC as a high school proficiency test is out of line with New Jersey’s own requirements for high school proficiency testing. One or the other must change; if New Jersey DOE takes this to the New Jersey Supreme Court, I think that will be the message it receives.

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3 Comments
  1. Jill Reifschneider permalink

    I got excited by the headline, but it turns out that testing will still be instituted and the results will require something to happen to the lives of the young people completing the test as part of the requirements of completing high school. Disappointed.

  2. Julie Borst permalink

    I wrote an op-Ed on how the state could proceed. You can read it here: https://www.app.com/story/opinion/columnists/2019/01/10/parcc-new-jersey-high-school-exit-testing/2530161002/

    Unfortunately, the state decided to ask for a partial reconsideration, basically asking the Court to allow them to grandfather in students who have met, or partially met, the grad requirements the Court just struck down.

    We hope to get the legislature to pass a bill that would suspend the exit exam requirement so the state can figure out what to do. My vote is to kill the statute requiring the exit exam.

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