Category: Policymaking

Just Vote No

Tomorrow, the NJ State Assembly is scheduled to vote on Assembly Bill No. 4957. Its synopsis says that it “Revises provisions of law concerning graduation proficiency test and eliminates requirement that graduation proficiency test be administered in eleventh grade.”

In point of fact, however, the bill does far more than that.

In Section 1(a), it allows New Jersey’s current requirement for a single high school proficiency test — singular, not plural — to be replaced by “a Statewide assessment or assessments” — note that final “s” in assessments. What that little letter means is that to graduate, all students can be required to take as many assessments — i.e., testS — as any particular governor’s State Board of Education feels like throwing at them. In theory, there is nothing in this bill that could stop a State Board of Education from requiring 180 assessmentS per year. So on Monday your kid could need to “prove” that he can correctly use a semicolon; on Wednesday your kid could need to “prove” that she can solve simple quadratic equations; on Friday your kid could need to “prove” that they can pass a multi-choice test on Shakespeare’s The Tempest. Under Senator Ruiz and Assemblywoman Lampitt’s bill, the sky’s the limit.

The bill also gets rid of the prior requirement that this test be given in 11th grade. Now the test or tests can be given in as many grades as our legislators care to designate. Heck, let’s start high school exit exams for kindergarteners! I mean, after all, this bill is so vague that it literally appears to give our State Board of Education the power to do that. In all seriousness, this could require an unlimited number of tests in 9th grade, in 10th grade, in 11th grade…. the sky’s the limit (see below for a discussion of what this is likely to mean in practice).

But wait! There’s more… In Section 6, this bill allows the current requirement that the high school exit exam test “measure those basic skills all students must possess to function politically, economically and socially in a democratic society” (see N.J.S.A. Section 18:7C-6.1) to be morphed into a requirement that the assessment or assessments be “designed to test high school proficiency.” Yes, in one fell swoop this bill would also move us from a basic skills test intended to ensure that all high school students have minimum basic skills in “reading, writing and computational skills” (see N.J.S.A. 18:7C-1) — historically, this was implemented to put an end to horrible stories about young people graduating from high school without knowing how to read — to some unspecified and arbitrary level of high school “proficiency” that would require our engineers to be equally proficient as our poets to be equally as proficient as our cabinetmakers or glass blowers.

What seems clear here is that someone — likely someone with a large investment in education technology/software companies who is also whispering in Senator Ruiz’s ear — wants this legislation to pass, and to pass NOW.

These days so-called “personalized learning,” generally means, in practice, students passing computerized test after computerized test to “prove” that they’ve achieved a whole bunch of arbitrary “skills” as measured by those computer-based tests. See, for example, Peter Greene’s excellent discussion, here, in which he explains that personalized learning is really just personalized pacing, and that this is not a new concept, especially for those of us of a certain age who remember those rainbow-colored SRA boxes full of reading passages that we worked more or less diligently in our elementary school classrooms. Further, Maine recently piloted just such an approach, which was an epic disaster that went down in flames. See this article about the mess. Or this one. Or this one. Or maybe this one. In effect, what software companies are trying to make happen through their political stooges like Senator Ruiz is to make reality out of Isaac Asimov’s cautionary 1951 science fiction story, The Fun They Had. (Seriously, click the link and read the story — it’s amazing how prescient he was 68 years ago.)

What is terrifying about Senator Ruiz’s bill is that it creates the legislative scaffolding that could be used to set up a scheme where students have to pass five, ten, or even fifty or a hundred separate “mini-assessments” of “high school proficiency” skills to obtain a New Jersey high school diploma.

Education Law Center and the New Jersey Department of Education have already ensured that the classes of 2019 and 2020 are set to graduate under the current high school exit exam law (remember, only 12 states have a law of this sort of all, so perhaps we should take a pause to consider the consequences of keeping such a law in place). What’s more is that they’ve given us two years of breathing room to ensure that we can come up with sensible and well thought through options for subsequent class years. Senator Ruiz, however, is trying to do an end-run around that compromise by pushing Assembly Speaker Coughlin to list this poorly-thought through and poorly-vetted bill for a vote tomorrow.

If you live in New Jersey, call, email, instagram, Facebook message, and Tweet your Assembly Members now. Leave voicemails. Urge them to vote no. Remind them that they’re up for election this November and that you will remember in November.

Look up your legislators HERE.

Technology has its place in public education (I’m sure glad I can use a calculator rather than a slide rule, and some software is great for things like memorizing math facts). But folks like Senator Ruiz are rushing through this legislation out of a misguided belief that technology trumps teachers, that standardized tests are magic tools of learning, and that human relationships are irrelevant to student success.

If this bill by some miracle does not pass tomorrow, then I urge you to buy your legislators Harvard professor Daniel Koretz’s book The Testing Charade. (If the bill fails I will go ahead and spring to send a copy to Senator Ruiz although I will wait for the paperback to be released on March 8th.) Koretz conclusively demonstrates that our kids deserve so much better than yet another testing mess, which is all that this bill, if passed, would bring us.

Do yourself — and your kids — a favor. Urge your legislators to vote no.

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.

Behind Closed Doors

In her opening remarks this morning at a hastily convened Joint Senate & Assembly Education Committee hearing, New Jersey State Senator M. Teresa Ruiz (D-29) announced her position that the decision regarding how to handle the state’s move away from the bungled PARCC assessment should be made “behind closed doors.”

She. Really. Said. That.

Behind closed doors.

She wants to throw our kids under the bus behind closed doors.

In secret.

Privately.

So that there will be nothing you or I can do until it’s too late.

Apparently Senator Ruiz, a George Norcross-Steve Sweeney aligned Democrat-in-Name-Only, is no longer going to hide her Trump-like inclination to govern secretly. By fiat. This is Democracy, 2018-style: policy that affects your kids and mine should be made behind closed doors.

It seems clear that Senator Ruiz wants deals to be made behind closed doors so that the parents, teachers, and community members with whom she disagrees can be shut out of the process. She literally wants to slam the door in our faces, just as her allies in the Christie administration did for eight years. Little wonder, I suppose…given that she seems to be the last cheerleader standing for the PARCC assessments.

So, let’s rewind.

Who is Senator Ruiz hiding from?

  • Is she hiding from the approximately 100 parents, students, teachers, school board members, and other New Jersey citizens who testified on January 7, 2015 regarding the mess PARCC created in our schools?
  • Is she hiding from the hundreds of parents, educators, students, and community leaders who spoke before the Governor’s PARCC study commission in the winter of 2015? With the lone exception of the NJPTA, which coincidentally accepted a large grant from the pro-PARCC Gates Foundation, the hundreds of testimonies before that commission universally opposed PARCC. (Nevertheless, the Commission’s final report completely ignored their perspective.)
  • Is she hiding from the standing room only crowd that testified in February 2015 at the Assembly Education Committee in support of two PARCC opt-out bills that she later refused to allow to be heard before her Senate Education Committee?
  • Is she hiding from the full-house crowd that attended a May 18, 2015 Senate Education Committee hearing that she finally scheduled to consider some watered-down PARCC bills?
  • Is she hiding from the parents and educators who took the time in the fall of 2015 to attend the bogus “Listening Tour” sessions organized around Chris Christie’s cynical presidential-run inspired renaming of the Common Core standards?
  • Is she hiding from the parents and educators who took the time — in May 2016, in June 2016, and again in the fall of 2016 — to travel to the State Board of Education to oppose the asinine regulations that will — if left unchanged — make PARCC ELA-10 and PARCC Algebra I the only paths to graduation for hundreds of thousands of New Jersey students starting with this year’s high school sophomores?
  • Is she hiding from the parents and educators who turned out — again and again — at every step along the way to oppose expanding New Jersey’s standardized testing mandates as well as the graduation requirements built (as even she agrees) in violation of the clear language of the state statute around those expanded testing schemes?
  • Is she hiding from the parents, students, and educators who finally showed up in April 2017 at Senate President Sweeney’s office to demand that he direct Senator Ruiz to do her job and post SCR132 for a vote? (If Senator Ruiz had ever been willing to allow her committee to consider it, this resolution would have declared the PARCC graduation requirement regulations inconsistent with the authorizing legislation as PARCC calls for use of Algebra I and ELA 10 tests, but the graduation requirement statute requires an 11th grade test. Even Senator Ruiz, in an April 2017 letter, agreed that the regulations should be amended to make them comply with the graduation statute.)
  • Is she hiding from the over 2,000 New Jersey parents, teachers, students, and concerned citizens mobilized by a Save Our Schools New Jersey action alert who sent emails to the New Jersey Board of Education supporting the new regulations last week before the vote on the regulations was tabled?
  • Is she hiding from the annoyed, angry, frustrated, and sad parents, educators, and students who have become cynical as can be about government precisely because of her obstructionism and the obstructionism and lack of open communication of those like her?

Why, exactly, does Senator Ruiz think she needs to hide behind closed doors? Is it because she can no longer hide behind Chris Christie?

All Commissioner Repollet’s revised PARCC graduation regulations really do is to effectively maintain the status quo for graduation exit exams — i.e., they provide our young people in the class of 2021 and beyond with the option to rely on the current smorgasbord of standardized test options (SAT, ACT, ASVAB, Accuplacer, etc.) to satisfy the state graduation testing requirement available to the class of 2019. The only other real change they make is that they seek to eliminate the wasteful additional high school PARCC exams (those for ELA 9 and 11 as well as those for Geometry and Algebra II) given that much of that material is assessed on the current smorgasbord of optional tests.

Senator Ruiz objects to this approach for two reasons. First, she argues that some high school kids don’t take APs and college entrance exams, and she thinks those high school kids should be tested a lot too (PARCC Algebra I and PARCC ELA 10 apparently aren’t enough for her). What is missing from the Senator’s analysis, however, is how more time prepping for additional tests is going to help those kids become better readers, writers, thinkers, and speakers. What I am left to wonder is whether Senator Ruiz wants to keep high school kids so busy preparing for and taking successive PARCC tests that they won’t have time to question why legislators like her think that governing should take place behind closed doors.

Second, Senator Ruiz and her even more clueless sidekick Assemblywoman Lampitt argue that changing the current regulations would create additional chaos in New Jersey’s public schools. But what Senator Ruiz and Assemblywoman Pamela Lampitt fail to consider is that it is the current regulations — with their upcoming PARCC or bust trigger for the class of 2021 and beyond — are what are poised to create chaos of epic proportions among New Jersey’s public school students. As of now, only 29% of New Jersey students are positioned to graduate using only PARCC (as opposed to using PARCC plus the smorgasbord of additional options). If these regulations are indefinitely tabled as Senator Ruiz and Assemblywoman Lampitt demand, I look forward to watching them face hordes of angry new 18 year old voters who are not going to be granted high school diplomas in 2021… right when both of them will be seeking reelection.

Unlike Senator Ruiz and Assemblywoman Lampitt, who spent today’s hearing grandstanding, Governor Phil Murphy’s appointee, Commissioner Repollet, actually has New Jersey’s students’ best interests at heart. Commissioner Repollet’s interim regulations are meant to give us some breathing space while the Department of Education — and not career politicians — engages in thoughtful vetting of new assessment options. The Commissioner’s make-haste-slowly approach (as exasperating as it is to parents like me, who want to throw tantrums and demand that PARCC be eliminated NOW) will allow New Jersey’s current sophomores and below to step away from the precipice on which the current regulations have placed them, and puts New Jersey’s students before loyalty to the testing companies. New Jersey’s students would be far better served if Senator Ruiz backed off from her fact-devoid, Trump-style hissy fit and actually demonstrated some of the critical thinking skills she claims PARCC can assess. But sadly, that is far too much to ask of machine-controlled politicians like Senator Ruiz.

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 a 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.

Civics Lessons

The Study Commission Recommended That Our Kids Be Stuck Testing Into Eternity: Now What?

Yesterday, New Jersey Governor Chris Christie’s Study Commission on the Use of Student Assessments in New Jersey issued its long-awaited final report.  To the surprise of no one, the Governor’s minions Commission concluded that the PARCC test is wonderful, and that not only should New Jersey keep using it, we should require all high school students to take it to qualify to graduate starting with the Class of 2020, and require them to earn passing scores on the 10th grade English and Algebra I tests starting with the Class of 2021.  My older daughter is in the Class of 2023 (and my younger daughter is in the Class of 2027), so this has a direct impact on my family and me.  For the record, this year 36% of NJ students who took the 10th grade English Language Arts test receiving scores demonstrating that they met or exceeded expectations, and again, 36% of Algebra I test takers received scores reflecting that they’d met or exceeded expectations.

Here are the initial thoughts I shared on Facebook about the result:

Over a hundred people came out to the 3 public comment sessions. All but maybe ONE of them spoke against PARCC testing in NJ. Parents and educators everywhere — from teachers to my daughter’s recently retired building principal to our town’s superintendent — are opposed to this sham of a test. But the pre-determined outcome is in fact the actual outcome. Public comment had no impact whatsoever. 

The game is rigged, and it’s our children who are losing. But this outcome can be laid solidly at Chris Christie’s door, and the national media should hold him accountable for it. After all: he appointed the “independent” study commission; he appointed New Jersey Education Commissioner David Hespe; and he appoints all of the members of the New Jersey State Board of Education. So the buck stops with Christie. 

But on a structural level, the fact that ALL public education policy makers are ultimately accountable to one person demonstrates how broken and easily manipulated our state education policy truly is. 

We the Parents, We the Taxpayers, and We the People need to step in. It is time to demand change — an amendment to the NJ state constitution, if necessary, to get elected representation on the State Board of Education.  Rule making bodies like NJSBOE and NJDOE have tremendous power to interpret state education statutes however they see fit. They must be accountable to the people and not just to a governor dreaming of the White House. 

In NJ, our local school boards have abdicated policy making responsibility saying that they’re hamstrung by state mandates. And those state mandates come from entities that are all accountable only to our governor. Structural change is necessary if we want to preserve public education for our children and the future.

And here are my expanded thoughts (very expanded, I’m sorry, I’m a lawyer, I’m nerdy, and since I was reading through the enabling legislation myself for my own edification, I figured that at least a few of you policy nerds might want to follow along at home as well.  For the rest of you, don’t say I didn’t warn you…) about where we go from here.  I think I will do a separate post looking at the actual report itself to see if it measures up to the Common Core standards PARCC claims to measure.  Look for that tonight or tomorrow.  In the meantime, here goes…

A Brief Digression on the Death of Local Control

Wednesday night I plan to attend my local district’s Board of Education meeting.  For me, at least, the hot topic will be school tours, which are a big deal for parents of incoming kindergarteners and incoming middle schoolers in our all-magnet suburban school system.

Last weekend, a local micro-news blog created a brouhaha when it reported a scuffle between the district PTA council president and the superintendent over whether the district had decided to replace school tours with online videos. For a whole lot of reasons, I think school tours are important, so Wednesday night I plan to attend our local Board of Education’s next meeting to express my opinion during public comment.

Why does this matter? What is unusual about this vignette is how rare it is for our local Board of Education to actually have the authority to set policy about a school-related issue, so for once my comment might actually make a difference.  The only reason our local board has sole authority over this issue is that this is such a unique local issue that Trenton has not bothered to dictate tour procedures to our town.  But on virtually every other topic these days, most New Jersey education policy decisions emanate from Trenton, where the New Jersey Department of Education and the New Jersey State Board of Education issue implementing regulations for state education statutes, and issue policy guidance and bulletins to New Jersey school districts.

New Jersey’s Code of Ethics for School Board Members Demonstrates State Usurpation of Local Control 

New Jersey’s Code of Ethics for School Board Members, N.J.S.A. 18A:12-24.1(a), requires local school board members to make this pledge even before they pledge to look out for the educational welfare of children:

“I will uphold and enforce all laws, rules and regulations of the State Board of Education, and court orders pertaining to schools.  Desired changes shall be brought about only through legal and ethical procedures.”

Although the local tide has turned and our local BOE seems slightly more independent now, for the past few years, our local school board interpreted this pledge as requiring it to slavishly follow Trenton’s mandates, regardless of whether the local board of education thought that such mandates might be harming our children.  Whether deliberately or not, they seemed to ignore the second sentence of that pledge, and nobody but nobody was willing to utter a peep against Trenton. Especially given that the Christie administration decided to ignore the legislatively enacted state aid funding formula (“SFRA”), I think they were all terrified to open their mouths and bring the wrath of Trenton down upon them in dollars of aid magically not allotted to our district.

So for the first couple of years in which I attended local Board of Education meetings, when the public spoke out – and speak out it did – about the harm that many of these state mandates were doing to children, our local BOE copped out by saying that these were decisions made in Trenton, and its hands were tied.  I urged it to take action to influence and change state policy, but was largely ignored, presumably as a naive gadfly, which I undoubtedly am.

From my talks with friends, colleagues, and fellow activists throughout the state, my understanding is that Montclair’s school board was far from alone in taking this position. This 2001 Code of Ethics for School Board Members seems to have served to hamstring many local school boards, depriving them of local control on any and all topics on which the State Board of Education and/or the New Jersey Department of Education have decided to opine.  The ethics rule, which sounds reasonable on the surface, has functioned to make our school boards little more than powerless rubber stamps for whatever state policies the NJDOE and the NJ State Board of Education decide to impose on New Jersey’s public school children.

NJ’s State-Level Policy Makers

So the real questions are – who are the members of the State Board of Education, and how does our Commissioner of Education get appointed?  Those are the true power brokers of education policy in the state, so let’s figure out how they get into office.  Here’s the answer:

The members of the NJ State Board of Education are appointed by the governor – currently, Governor Chris Christie, of course.  This is mandated by the New Jersey State Constitution of 1947 at Article 5, Section 4, Paragraph 4, which reads:

“Whenever a board, commission or other body shall be the head of a principal department, the members thereof shall be nominated and appointed by the Governor with the advice and consent of the Senate, and may be removed in the manner provided by law.  [irrelevant for our purposes section about the Lieutenant Governor’s appointment process]  Such a board, commission or other body may appoint a principal executive officer when authorized by law, but the appointment shall be subject to the approval of the Governor.  Any principal executive officer so appointed shall be removable by the Governor, upon notice and an opportunity to be heard.”

N.J.S.A. 18A:4-4 implements this constitutional requirement in the statute setting out how the New Jersey State Board of Education is chosen.  It reads, in relevant part:

“The members of the state board shall be appointed by the governor, by and with the advice and consent of the senate, for terms of six years commencing on July 1.”

What this tells us is that by now, given that we are in the seventh year of Governor Christie’s tenure, all of the New Jersey State Board of Education members were appointed, re-appointed or allowed to continue in office by Gov. Christie, and are beholden to him – and only to him – for their positions.

N.J.S.A. 18A:4-1 confirms that Art. 5, Sec. 4, Para. 4 of the Constitution applies to the state department of education, and that therefore the provisions about the appointment of a principal executive officer apply.  It reads:

“The state department of education is hereby continued as a principal department in the executive branch of the state government, and it shall consist of a state board of education, which shall be head of the department, a commissioner of education, and such divisions, bureaus, branches, committees, officers and employees as are specifically referred to in this title and as may be constituted or employed by virtue of the authority conferred by this title and by any other law.”

So again – who is responsible for appointing not just the members of the State Board of Education, but also the Commissioner of the Board of Education?  Chris Christie’s State Board of Education, subject to the governor’s approval, of course.  In fact, Dave Hespe can be removed by Chris Christie whenever Christie feels like it, so long as he gives his buddy Dave notice of his removal and an opportunity to plead his case first.

The long and the short of it is – New Jersey’s governor has a LOT of power over state education policy, especially since the 2001 local school board code of ethics hamstrung any local Board of Ed members who wanted to push back hard against asinine state mandates.  I have no idea of the backstory that led to the 2001 ethics law, but I do find it curious that the timing coincides with the federal government centralizing some control over education policy through the 2001 No Child Left Behind law.

Now, the legislature can, of course, override the State Board of Education by passing legislation abrogating Department guidance and/or Board-issued regulations.  However, to do so, it must pass such legislation through both houses of the legislature and, of course, get those bills signed by… you guessed it… the Governor.  And, of course, the implementing regulations for any such legislation passed by the legislature will be created and approved by… you guessed it… the State Board of Education.  So any way you parse it, the NJ governor has enormous control over what happens in our public schools, and among other negatives to this lack of checks and balances is the fact that governors with different policy prescriptions can wildly swing education policy from one election to the next.

The Study Commission 

Yesterday, as I mentioned at the top, the Governor’s “independent” Study Commission released its report on state testing in New Jersey, which concluded, unsurprisingly, despite around 200 in person or emailed public comments in opposition and virtually none in support, that the PARCC is super awesome.  But, of course, it’s absurd on its face to think that a Study Commission appointed by the same governor who is responsible for appointing the State Board of Education and the State Commissioner of Education would reach a different conclusion than whatever the governor’s office (or his presidential campaign) wanted it to reach.  All three of these entities are answerable only to Chris Christie, and as newspapers have reported throughout Governor Christie’s tenure, he is not hesitant to bully those who disagree with him into submission.  And when those who disagree with him are people he thinks should be loyal to him, the gloves truly come off.

So the Study Commission’s conclusion:

“However, one point must be abundantly clear: the Study Commission firmly believes all students in New Jersey’s public schools who are eligible should be required to take the State standardized assessment (i.e., PARCC).  Doing so will ensure all students are progressing well in their educational endeavors and all public schools are effective for all students.  High-quality assessments such as PARCC will hold schools accountable for serving all of their students, including those from disadvantaged backgrounds.  The Study Commission believes it will be impossible to effectively close achievement gaps between and among students without accurate and actionable information”

was pre-ordained.  Ironically, the Study Commission’s entire report would earn a big fat F under the Common Core Standards if it were graded according to PARCC scoring rubrics.  The reason for this, of course, is that paragraphs like the one I just quoted cite to absolutely no evidence to support their conclusions.

Where Do We Go From Here?

One of my takeaways from this sham of a process (and don’t even get me started on the Common Core Review Commission, which also issued recommendations yesterday, and which was, perhaps, even worse in terms of process, if that’s even possible) is that there is way too much power over education policy consolidated in the hands of one person in this state: our Governor.

There is no question that Governor Christie’s minions appointees on the State Board of Education and at NJDOE will gleefully embrace the Study Commission recommendations, and that so long as this governor or a successor who shares his education policy prescriptions remains in office, the people will have little to no ability to shape more student-friendly education policy.

It seems to me that from an education policymaking process standpoint, there are two takeaways to move New Jersey education policy in a productive direction:

(1) We need to amend the New Jersey State Constitution so that at least some of the members of the State Board of Education are elected officials, accountable directly to voters rather than to the Governor.  The governor’s control over the rule making process is way too all-encompassing, and at least some elected State Board of Education members would provide needed checks and balances for educational policy making in New Jersey.  Especially now, when the federal Every Student Succeeds Act (“ESEA reauthorization”; i.e., No Child Left Behind’s replacement) has moved a great deal of education policy making authority from the federal government back to the states, we need to ensure that state level education policy cannot be so easily held captive by special interest groups who’ve courted the governor, but no one else.

(2) We need to introduce and pass legislation that makes it explicitly ethical for local Board of Education members to push back against state mandates that harm students.  It seems to me Paragraph (b) of the Code Ethics should be strengthened and replace Paragraph (a) as the first duty of local school board members. Paragraph (b) currently reads:

“I will make decisions in terms of the educational welfare of children and will seek to develop and maintain public schools that meet the individual needs of all children regardless of their ability, race, creed, sex, or social standing.”

Our kids deserve local leaders with the authority to actually put the children’s best interests first.  As the Study Commision report hammers home, this administration can never be trusted to do that.

Who’s with me?

Updated to Add (1/13/2016): Apparently New Jersey Education Commissioner David Hespe agrees with me.  Here he is, quoted in yesterday’s Star Ledger:

image

New Jersey, let’s take our cue from New Jersey Education Commissioner and make a really good change to the New Jersey State Constitution.  It is time for We the People to reclaim our power over our children’s futures, instead of leaving that power consolidated in the hands of the New Jersey governor, currently Chris Christie; the unelected New Jersey State Board of Education, each of whom owes his current tenure in the job to Chris Christie; and Christie appointee, New Jersey Education Commission David Hespe.