On October 21, 2016, civil rights and parent advocacy organizations represented by ELC and the American Civil Liberties Union of New Jersey (ACLU-NJ) filed a lawsuit challenging new state regulations governing high school graduation in New Jersey. The suit claims that amendments to the Standards and Assessment regulations, found at N.J.A.C. 6A:8, contradict the State graduation statute and the NJ Constitution and have a disparate negative impact on minority and English language learner (ELL) students.

In 2014, the NJ Department of Education began imposing new graduation testing requirements on high school students without undertaking the legally required procedure to change such rules. The new requirements eliminated the previously used State graduation exam in favor of Partnership for Assessment of Readiness for College and Career (PARCC) tests and replaced the State alternative assessment with “substitute” tests, including fee-based exams, and a “portfolio appeal” process. A 2015 legal challenge by students and families to the improper imposition of these new policies resulted in a settlement agreement providing increased protections to students in the class of 2016. 

Thereafter, the DOE proposed amendments to the graduation regulations to codify its new policies. Despite public comments submitted by ELC and ACLU-NJ detailing the numerous legal concerns raised by the proposal, the State Board of Education and Commissioner of Education, who are the respondents in the current lawsuit, adopted the new regulations in September 2016. 

The groups challenging the regulations are the Latino Action Network, the Latino Coalition of New Jersey, the Paterson Education Fund, the NAACP New Jersey State Conference, and ELC. These appellant organizations argue that the new graduation regulations plainly contradict the graduation statute that they are meant to implement, thereby exceeding the agency’s authority and curtailing crucial protections of students’ rights. The regulations fail to comply with the statute’s requirement for a single eleventh-grade graduation exam with retesting opportunities and access to an alternative assessment. Additionally, the appellants argue that the use of “substitute” tests, some of which are fee-based, such as the SAT and ACT, violates the Education Clause of the NJ Constitution and discriminates against racial minority and ELL students in violation of NJ’s Law Against Discrimination.

The lawsuit, which takes the form of an appeal filed in the New Jersey Superior Court, Appellate Division, seeks invalidation of the illegal graduation regulations. Briefing concluded in mid-2017, and oral argument took place in October 2018.

On December 31, 2018, the Appellate Division ruled that the regulations violated the graduation statute and struck them down. The Court held that because the rules implemented by the DOE contradicted the statute passed by the Legislature in several ways, including their failure to implement a single eleventh-grade graduation test, the graduation assessment regulations were invalid and unenforceable.