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Administrative Law 101: Administrators Must Implement the Law as Written

The New Jersey State Board of Education is currently considering regulations that would make passing PARCC ELA 10 and PARCC Algebra I high school graduation requirements for all New Jersey public school students starting with the Class of 2021. A portfolio option under supervision of the Commissioner of Education would only be available after students attempted and failed PARCC.  Below is my planned May 4, 2016 testimony to the State Board of Education on the proposed regulations, explaining why, in my opinion, the regulations promulgated by the New Jersey Department of Education for approval by the State Board of Education exceed the State Board’s authority. Although my analysis is technical, I tried to write it so that it would be accessible to the general public.  For your convenience, the text of the proposals and the relevant statutes are linked in the text so that you can follow the analysis yourself.  

 

I am here today as a parent of two current New Jersey public school students – one in the class of 2023 and the other in the class of 2027, both of whom will be directly affected if you adopt the PARCC graduation regulations proposed by the Department of Education.  Careerwise, I am a former teacher turned attorney.  My professional life as an attorney in private practice includes ten years litigating commercial issues, including significant experience in Securities Fraud and Securities & Exchange Act Section 16(b) litigation, along with insurance coverage litigation, and litigation of breach of contract and other commercial disputes.  In that capacity, I have spent a great deal of time over the past decade parsing statutes and regulations.


After carefully reviewing the proposed regulations (see p. 42 of the PDF), the statutes those regulations purport to implement (linked below), the enabling statute setting forth the New Jersey State Board of Education’s powers, and the PARCC website, it is my opinion that the proposed regulations conflict with the statutes they purport to enable, and that there is reasonable doubt as to whether the power to implement these regulations resides in the State Board of Education.  


Given this conclusion, as a taxpayer, a parent, and an attorney, I implore you to vote against the proposed PARCC graduation requirement regulations.  I do not want to see our state wasting taxpayer dollars in yet another lawsuit challenging the legality of the proposed regulations.  For the sake of brevity, I have limited my analysis to the proposal for the Class of 2021 forward, as those are the new permanent regulations that would affect both of my children.


I reviewed New Jersey Statutes Annotated 18A:7C-1 through 7C-6.1, which set out the State’s involvement in developing and approving the Statewide assessment test; specify to whom that test must be administered; set out the conditions under which a comprehensive alternative assessment program, such as portfolio reviews, may be used to meet the testing graduation requirement; and most critically set out the Statewide levels of proficiency required as minimum standards to earn a high school diploma.  Copies of the relevant statutes are attached to your copies of my remarks.  


Any regulations enacted by this Board setting out the details of the proficiency tests must not, of course, conflict with any of the statutes noted above.  


So what do the statutes the Board’s regulations seek to implement require?  N.J.S.A. 18A:7C-1 et seq. require that the Commissioner develop a graduation exit test to be approved by this Board in order to obtain a State-endorsed high school diploma. Id. at 7C-1, 7C-2, 7C-4. The Statewide assessment test must be administered to all 11th grade students. Id. at 7C-6 and 7C-6.1.  It must measure those minimum basic skills all students must possess to function politically, economically and socially in a democratic society: specifically, the test must measure the reading, writing, and computational skills students must demonstrate as minimum requirements for high school graduation.  Id. at 7C-1, 7C-6.1.  Further, if a student uses a comprehensive assessment option instead – i.e., the portfolio option – the student’s use of the portfolio option must be approved by the Commissioner of Education.  Id. at 7C-4.


The problem is that the graduation requirements enshrined in the proposal for the Class of 2021 forward do not meet the requirements set forth in the statute.


First, the Statewide assessment test must be administered to all 11th graders.  See N.J.S.A. 18A:7C-6; 7C-6.1.  Under the Class of 2021 forward regulations, however, the tests that students will be required to obtain passing scores on to earn their high school diplomas, however, are the 10th grade ELA test and the Algebra I test.  By definition, the 10th grade ELA test will not be administered to all 11th graders statewide.  


The Algebra I test is even more problematic, as many students across the state take Algebra I (and therefore the Algebra I PARCC End-of-Course test) as early as 7th or 8th grade.  It also, of course, makes no sense to tell children as young as 12 that their high school graduation depends on their performance on a test they’re taking now.  Further, making obtaining a Proficient score on the End-Of-Course test for a course often taught in 7th or 8th grade a high school graduation requirement might well have the unintended consequence of discouraging districts from offering accelerated math programs to qualified students.  


Second, I’ve scoured the PARCC consortium website in detail, and nowhere does it say that the PARCC ELA 10 and PARCC Algebra I tests were designed to measure whether students have achieved those minimum basic skills all students must possess to function politically, economically, and socially in a democratic society.  Instead, PARCC is focused on assessing college and career readiness – a laudable goal, but a much higher standard than the minimal basic skills standard the Board is authorized to employ in approving a test to determine which public school students in the state will be denied high school diplomas.  Specifically, PARCC explains on its page regarding test design that:


Key milestones included developing college-and career-ready determination policies and performance-level descriptors in ELA/literacy and math to describe: 1. What it takes for students to succeed in entry-level, college courses and relevant technical courses, and 2. The knowledge, skills, and practices students performing at a given level are able to demonstrate at any grade.


While I would tend to agree that if – and that’s a big if – PARCC really can measure a student’s college and career readiness, and that if proficient – i.e., Level 4 score — on the PARCC test actually reflects whether a student is college and career ready, achieving a “4” on high school level PARCC tests would necessarily imply that a student also has the minimum basic skills in reading, writing, and computational skills necessary to function politically, economically, and socially in a democratic society. I do not, however, agree that the converse is true.  That is, one could have the minimum basic skills in reading, writing, and computational skills necessary to function in a democratic society without also being ready to succeed in entry-level, college and technical courses:  

College and Career Ready vs Basic Skills

However, the school laws you’re tasked with enacting and enabling only allow you to deny high school diplomas to students who don’t demonstrate the minimum basic skills in reading, writing, and computational skills necessary to function politically, socially, and economically in a democratic society.  What the statutes expressly do not allow you to do is to unilaterally raise that minimum and instead require students to meet a much higher threshold – college and career readiness – in order to obtain a high school diploma.  


Further, the statute is clear: as far as math goes, you are tasked with only one thing: to measure computational basic skills – i.e., students’ ability to do arithmetic. See N.J.S.A. 18A:7C-1(a).  The Performance Level Descriptors for Level 4 performance on the PARCC Algebra I End-of-Year test, however, require students achieving Level 4 to, for example: 

  • Determine equivalent forms of quadratic expressions and functions; 
  • Graph linear, quadratic and cubic (in which linear and quadratic factors are available) functions, showing key features; and 
  • Graph the solution sets of equations, linear inequalities and systems of linear equations and linear equalities.”  

While those may well be appropriate expectations for an Algebra I End-of-Year course assessment, it strains credulity to state that a student who meets these requirements has done nothing more than demonstrate the basic computational skills necessary to function in a democratic society.  I can tell you that in my 10 years practicing law, while I’ve used my basic computational skills many times to do preliminary damages calculations, determine amounts of prejudgment and post judgment interest, and heck, even track whether my billable hours were on target to meet my firm’s expectations, I have never – not once – needed to apply my high school algebra quadratic function graphing skills to function – pun not intended – socially, politically, or economically in our democratic society.  


Finally, there is nothing in the statutes that unilaterally authorizes the Board to demand that high school students take not one, but up to 6 tests as a condition of graduation.  Yet, the Class of 2021 proposal, while only requiring students to pass ELA 10 and Algebra 1, also requires students to take ELA 9, ELA 10, ELA 11, and any appropriate math PARCC tests, which could include Algebra I, Geometry, and Algebra II, before he or she may demonstrate competency via portfolio.  


Given the serious conflicts between the school statutes pertaining to graduation enacted by our legislature and the proposed regulations promulgated by the Department, I think it is clear that your duty requires you to vote against enacting the proposed graduation requirement regulations.  As a taxpayer, public school parent, and attorney, I urge you to do so, and to instead direct the Department to develop standards that harmonize with the statutes you are tasked with enforcing.  If you and/or the Department think that the standard for obtaining a State-endorsed high school diploma should be raised to be a college and career readiness standard, then it is up to you and the Department to lobby our legislature to make that change.  


Thank you.

8 thoughts on “Administrative Law 101: Administrators Must Implement the Law as Written

  1. This is excellent! You knocked it out of the park! Thank you for your thorough breakdown of the educational codes and laws.

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  2. re: “What it takes for students to succeed in entry-level, college courses and relevant technical courses…”

    The PARCC people need to go back to school. There should not be a comma between entry-level and college. Those are non-coordinate adjectives. An easy way to test for coordinate adjectives (which do need commas) is to place an “and” between the adjectives. While it is true that the courses in question are both entry-level courses and college courses, what is important is that they are entry-level college courses (no “and”).

    I glanced over the PARCC page and saw the same mistake here: “What it takes for students to succeed in entry-level, college courses and relevant technical courses…”

    No comma! Otherwise it’s one of three items in a series, and the sentence needs to be made parallel.

    My big problem with these tests (other than teaching to the test, not teaching enough science and social studies, and the bad writing habits a student learns when being taught to write for standardized essays) is that the tests and the test prep workbooks–oh, the workbooks!!–are so poorly constructed and full of errors that students are spending more time sussing out proofreading errors than they are on learning.

    Students deserve carefully created and vetted educational materials, not secrecy and for-profit laziness.

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  3. Pingback: Bucks Learning Cooperative | an alternative to school for teens » Opting In

  4. Pingback: Opting In | Raritan Learning Cooperative

  5. Pingback: Sarah Blaine: New Jersey’s Decision to Mandate PARCC as a Graduation Requirement is Illegal | Diane Ravitch's blog

  6. I have reposted this blog entry several times and it looks like Diane Ravitch has picked it up finally. I live in MD and our state is currently using PARCC as graduation requirements and boy am I teed off about it. I am in a bind since I want my children to graduate with a diploma (I only allow the ALG I and ELA 10 to be taken) but I am a REFUSER. I don’t know where to start with all the legal mumbo-jumbo and finding the wording in the charter? Any help you could pass along would be appreciated. I am looking for you to pave the way with your legal background and your experience as a teacher. I believe we are stuck here in MD.

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  7. Pingback: New Jersey <3's PARCC | Daniel Katz, Ph.D.

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