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.

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.