Appellate Division Kills Zombie PARCC

Please note that nothing in the opinions expressed below is meant to or actually does provide specific legal advice for any particular individuals or entities. Boards of Education, parents, educators, students, and others should consult attorneys to discuss how this ruling applies to their particular circumstances. (I apologize for any formatting errors — Wordpress clearly hates me.)

Today, the New Jersey Superior Court’s Appellate Division (for you non-New Jersey attorneys out there, this is New Jersey’s intermediate appellate court) held that New Jersey’s current graduation exit exam regulations are invalid as they are because they directly conflict with the state’s graduation exit exam law. (Link to Opinion)

The Appellate Division then stayed its ruling for 30 days to give the State the opportunity to seek to appeal the decision to New Jersey’s Supreme Court. If the State does not appeal the decision or if New Jersey’s Supreme Court refuses to take the case, then 30 days from now the current graduation testing regulations (but not the graduation exit exam law) will be thrown out in New Jersey.

The questions before us, then, as activists, parents, and educators, are (a) where did this opinion come from; (b) what did the Court decide; (c) what does the decision mean; (d) where do we go from here?

Where Did This Opinion Come From?

As the opinion summarizes, back in 1979, the New Jersey legislature first passed a law requiring that a graduation exit exam be administered to all New Jersey public high school students. That law has been updated a number of times. In 1988, the graduation exit exam law was updated to move the test from 9th grade to 11th grade (I recall this fairly clearly, because as a 1991 New Jersey high school graduate, I took versions of the exit test in both 9th and 11th grades). The state legislature has not changed the grade-level requirement of the graduation test since 1988.

Practically speaking, the way that our government actually works, however, is that a legislature passes a law that is fairly broad. The executive branch (the governor and the state agencies) are then tasked with enforcing the law passed by the legislature. What those state agencies and board do, as a practical matter, is to enact rules (we call them regulations) that nail down the specifics of how the law is going to function in practice. Those regulations cannot contradict the law they’re enacting, but beyond that, the state agencies have broad authority to pass regulations to enact the law as they see fit. In this case, in 2016, the New Jersey State Board of Education enacted regulations that replaced the 11th grade HSPA (High School Proficiency Assessment) with the 10th grade PARCC ELA test and the PARCC Algebra I test (which can be administered anywhere between about 7th and and 12th grades here in NJ).

As many of us — myself included — argued at the time, the 2016 regulations setting PARCC ELA 10 and PARCC Algebra I did, however, expressly contradict the state law, which specifically requires an 11th grade test. New Jersey has two mechanisms for invalidating regulations that contradict statute: (1) the state legislature can pass resolutions that invalidate the regulations as contradictory to the statute they seek to enact or (2) the courts can declare regulations invalid as contradictory to the statute they seek to enact. My local State Senator, Senator Nia Gill (D-34th legislative district and, incidentally, a true hero of public education as well as of democracy and the democratic process more generally) introduced precisely such a resolution, SCR-132, in the State Senate (and Assemblywoman Mila Jasey introduced a companion resolution, ACR-215, in the State Assembly). The Assembly resolution passed, but the State Senate’s twin cartoon villains of public education, Senate President Steve “I Hate Teachers” Sweeney and Senate Education Committee Chair Teresa “Temper Tantrum” Ruiz, refused to list the Senate resolution for a vote. Instead, they issued a rhetorically pleasant but legally meaningless letter agreeing that the regulations violated the statute.

Only one option remained — we needed the Courts to invalidate the regulations. Thankfully, more heroes of public education emerged. The Latino Action Network, Latino Coalition for New Jersey, Paterson Education Fund, Education Law Center, and NAACP New Jersey State Conference (together, the “Appellants”) filed suit against the state seeking to invalidate the 2016 graduation regulations.

That case wound its way through our court system. Unfortunately, the wheels of justice grind slowly, so it wasn’t until October 29, 2018 that the Appellate Division heard oral argument on the court case. And then today, on New Years’ Eve 2018, close to three years after the regulations contradicting the state statute were first presented to the public, the New Jersey Appellate Division issued an opinion invalidating the regulations as contradictory to the state statute because— in short— they require non-11th grade testing to serve as the 11th grade graduation exit exam. It is an excellent and well-reasoned opinion, although I will admit to personally feeling a high degree of frustration with how slowly the wheels of democracy and justice have turned in this case.

What Did the Court Decide?

The Appellants argued that the regulations are contrary to the plain language of the law, which (a) required a single comprehensive assessment examination and (b) required that the single comprehensive assessment examination be administered to students in 11th grade. (FN: The also made some state constitutional arguments and Law Against Discrimination arguments that I’m going to ignore for the sake of simplicity since the Court didn’t decide the case on those arguments.)

First, it’s worth nothing exactly how egregious the Appellate Division said the regulations were. In New Jersey, as in most of the country, because of separation of powers concerns, the courts give great deference to regulations enacted by executive branch agencies. A court will only step in to invalidate agency regulations if it literally has no other choice because the discrepancy between the regulation and the statute is so egregious that there is no way that the court can find that the regulation is not “plainly at odds with the statute.” To be clear, that is what happened here.

Specifically, the Appellate Division decided that there was absolutely no way that it could read the words “11th grade test” to mean Algebra I test given sometime between 7th and 12th grade and 10th grade English test.” (An editorial aside from me: one of the many ironies here is that the State Board of Education’s insane reading of the statute would clearly be marked as a wrong answer on any PARCC test!) In the opinion, the Court sets out the State’s attempts to twist itself into a pretzel to square the regulations with the law but rejects them, writing, with typical judicial understatement: “The argument is unpersuasive.” Id. at 15. Instead, the Court is unequivocal in its judgment: “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.” Id.

The Appellate Division further holds that “the regulations violate the Act to the extent they specifically authorize multiple tests administered in grades other than eleventh grade.” Id. at 16-17.The Appellate Division reasons that the statute’s language specifying a “test” rather than “tests” means that a statutorily-compliant graduation exit exam must mean one high school graduation proficiency exam rather than PARCC’s multiple end-of-course exams. Id. at 16.

It is also important to note that the Appellate Division says that the regulatory provisions offering substitute competency tests instead of re-testing with an appropriate 11th grade test is a violation of the statute, which further calls into question whether there is any hope that the revised graduation regulations currently wending their way through the enactment process could be construed to be facially valid (SPOILER ALERT: they cannot).

But perhaps most exciting for test refusers, is the Appellate Division’s conclusion that any 12th grader who has not passed PARCC must be offered an option to prove graduation proficiency “‘utilizing techniques and instruments’ adopted by DOE ‘other than standardized tests. . .’” That is, the Appellate Division also held that the graduation exit test statute “compels DOE to provide for alternative methods of assessing proficiency other than through PARCC testing or any other standardized testing process.” Id. at 19.

What Does The Opinion Mean?

In short, the Appellate Division has invalidated the 2016 regulations in their entirety. What this means is that if the opinion stands, the graduation exit exam law itself remains valid and on the books — but that as soon as this opinion goes into effect, New Jersey will not actually have a designated graduation exit exam. This is obviously a problem for students who hope to graduate in June of 2019 and beyond, as the current statute lists meeting the graduation exit exam requirement as a necessary condition to be granted a state-endorsed high school diploma.

It also appears to mean that when and if an appropriate 11th grade test is chosen, the State cannot compel students to take it, and instead must offer any and all students who refuse the test the opportunity to demonstrate that they have met the state’s proficiency standards through a non-testing process.

Complicating matters further, the State Board of Education in conjunction with the State Department of Education is currently in the process of enacting new graduation exit exam requirements, but the opinion makes it clear that proposed regulations are also invalid because the proposed regulations (a) continue to specify a 10th grade ELA test and the Algebra I test as the graduation tests; (b) continue to offer the menu of secondary options that the Appellate Division has decided are contradictory to the plain language of the statute; and (c) do not provide access to a non-standardized testing means of proving proficiency for those students who do not first take one of the gateway standardized tests.

What Are New Jersey’s Options?

The Appellate Division stayed its order for 30 days to allow the State the opportunity to seek certiorari from the New Jersey Supreme Court. As a preliminary matter, Governor Murphy should refuse to allow the State to file a petition for certiorari. If the State refuses to appeal the decision, then the Appellate Division opinion will stand and 30 days from today parents, educators, and voters will have some certainty to allow us to determine next steps. Not only would this be Governor Murphy taking concrete decision to keep his campaign promise to “scrap the PARCC,” it would also let policy makers move forward on legislation and rule-making without concern that the courts could pull the rug out from under any potential agreement.

It seems to me that the most immediate need is to give everyone some breathing room to let the litigation process play out and then to assess where we should go from here. Fortunately, some of our state senators and members of the state assembly have already introduced legislation that would do precisely that. A672/S558 are proposed bills currently pending in the legislature that would remove the graduation exit testing requirements for the classes of 2019 and 2020 to give stakeholders time to come up with a solution.

Whether the PARCC cheerleaders in the assembly and senate, led by Senate Education Committee Chair Teresa “Temper Tantrum” Ruiz and State Senate President Steve “I Hate Teachers and Their Union” Sweeney would be willing to move these bills for the sake of New Jersey’s kids, however, is an open question. Sadly, even though enacting A672/S558 would be a no-brainer, it seems to me that given her antics this fall regarding the State Board of Education’s consideration of even the modest loosening of the graduation regulations currently pending, Senator Ruiz is unlikely to do this or anything else that makes sense when it comes to the education of New Jersey’s children.

Assuming we cannot get some breathing room through the legislative process, the State Board of Education is going to have to kick their rule-making process into overdrive. It seems to me that the possible rule-making approaches to fixing the mess that they themselves have made are, in no particular order, the following:

1. If possible, revive HSPA starting this spring while working on a plan for the future. The downsides to this are (a) it is unclear whether this is possible or whether any form of HSPA currently exists; (b) HSPA does not purport to test the current state education standards; (c) the state recently gave a contract for this spring’s testing to a testing entity that is not HSPA; and (d) this year’s 12th graders were not afforded an opportunity to take HSPA in 11th grade, so it is unclear whether such an approach would meet the standard set forth by the Appellate Division.
2. Designate PARCC ELA 11 (or NJSLA ELA 11 or Zombie PARCC or whatever we might be calling it now) as the ELA portion of the high school proficiency test. The downsides to this are that (a) it doesn’t solve the math issue; (b) this would still require multiple tests, which it seems won’t pass muster under the Appellate Division’s approach; (c) the proposed regulations just eliminated this test; and (d) it continues to stick New Jersey’s students with PARCC/Zombie PARCC.
3. Designate the SAT General Test (or the ACT) as the graduation exit test. The downsides to this are (a) the State or Districts will have to last-minute find the money to pay to have all 11th graders take this test (as well as make retakes available to 12th graders); (b) we will still have to attempt to administer the PARCC/Zombie PARCC tests to high school students meet federal ESSA testing requirements; (c) by all accounts the new SAT is not a particularly good test; and (d) this year’s 12th graders were not necessarily afforded the opportunity to take the SAT for free in 11th grade.

What Can We Education Activists, Parents, and Educators Do Now to Help Resolve This Mess?

Refuse to allow your children to test. The Appellate Division has made it clear that students can refuse to test without jeopardizing their high school graduation. Use your rights. Refuse to allow your children to sit for these tests. Educate your local Boards of Education, superintendents, and testing coordinators about the impact of this opinion, and urge everyone you know to refuse high-stakes standardized testing this year, and help us to put PARCC/Zombie PARCC out of its misery once and for all.