ELC, ACLU-NJ Urge State Board to Reject Graduation Testing Plan

Months after a lawsuit challenged the New Jersey Department of Education’s (NJDOE’s) attempt to impose new graduation policies without adopting new regulations, the State Board of Education (State Board) is set to take a final vote on belatedly-proposed new rules at its August 3 meeting.

Last week, Education Law Center and the American Civil Liberties Union of New Jersey (ACLU-NJ), which filed the lawsuit on behalf of New Jersey parents and students, submitted written comments detailing multiple legal and policy concerns with NJDOE’s proposed regulations and urging the State Board to reject them. 

The proposed regulations implement the following changes:

  • Designate the PARCC ELA10 and Algebra I exams as state graduation tests;
  • Codify use of “substitute competency tests,” including fee-based exams such as the SAT and the ACT, as options to meet the state testing requirement, but only through 2020;
  • Phase out by 2021 the substitute assessments now used by a majority of seniors to earn a diploma, leaving NJDOE’s “portfolio appeal” process as the only alternative for students who do not pass PARCC;
  • Prevent students who “opt out” of PARCC tests, beginning with freshmen slated to graduate in 2020, from accessing any of the other graduation pathways.

The comments submitted by ELC and ACLU-NJ detail multiple ways the proposed amendments violate applicable laws. 

First, the proposed regulations directly contradict the state statute governing graduation that they are supposed to implement, and, as the comments explain, show “a continued attempt by NJDOE to act outside its authority in instituting new graduation requirements.” 

For example, the statute requires that the state graduation test measuring proficiency of state standards in language arts and math be administered to all eleventh grade students. The PARCC ELA 10, as its name suggests, is administered in tenth grade, and the Algebra I exam is administered in the year in which a student takes the course. The fact that the proposed rules designate these exams as the state graduation requirement directly contradicts the text of the statute and the intent of the Legislature in requiring an eleventh-grade graduation exam. 

“NJDOE’s duty is to enact regulations that faithfully implement the laws the State Legislature has passed. The Department does not have the legal authority to impose policies that directly contradict the statute governing high school graduation,” said ELC Skadden Fellow Jessica Levin.

The proposed regulations also violate statutory requirements that all students have multiple retesting opportunities to pass the designated state graduation assessment and clear access to an alternative assessment.

In addition to violating the state graduation statute, the proposed regulations contravene rights guaranteed by the New Jersey Constitution’s Education Clause. The “substitute competency tests” are not aligned with state curriculum content standards, which New Jersey’s Supreme Court has recognized as an essential element of a constitutional “thorough and efficient” education. The fact that some of the alternative assessments are fee-based also violates the constitutional requirement of a free public education.

Finally, requiring that students pay to access substitute competency tests will adversely affect New Jersey’s low-income students, who are statistically more likely to be racial minority and English language learner students. These students will have fewer opportunities to take assessments that act as a gateway to a State-endorsed high school diploma. Title VI of the Civil Rights Act of 1964 and the New Jersey Law Against Discrimination prohibit policies that have a disparate negative impact based on race or national origin.

“By using fee-based tests like the SAT as a pathway to meeting the graduation test requirement, the proposed regulations link opportunities to graduate with a family’s wealth,” said ACLU-NJ Legal Director Ed Barocas. “That is simply unacceptable. Students from wealthier families can take tests multiple times until they meet the cut score that the NJDOE has set, whereas poor students might not be able to access fee-based tests at all and would have that avenue to graduate completely cut off. And because of the correlation of poverty and race, the proposed rule will likely have a disproportionate impact on minority students.”

ELC and ACLU-NJ’s comments urge the State Board to reject the proposed graduation regulations. Instead, the NJDOE should work with the Legislature to review the graduation statute and identify any necessary revisions to the law. The NJDOE should also collaborate with parents, educators, and other stakeholders to ensure that any changes to graduation rules reflect sound policy and avoid violating the laws that protect New Jersey students’ educational rights.


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Press Contact:

Sharon Krengel
Policy and Outreach Director
973-624-1815, x 24

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Press Contact:
Sharon Krengel
Director of Policy, Strategic Partnerships and Communications
973-624-1815, x240