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PARCC Graduation Requirement Is Illegal, Argue Education Advocates

According to some estimates, almost 55,000 seniors failed or sat out PARCC, jeopardizing their chance to graduate with class of 2016

Pressure is mounting from around New Jersey for the state Department of Education to reverse its decision to use a controversial national test as a graduation requirement for the class of 2016, in part due to contentions that using the PARCC tests is illegal.

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Stan Karp, director of the Secondary Reform Project of the Newark-based Education Law Center, called on lawmakers to take some action to pressure the DOE to allow this year's senior class to graduate without having to pass a standardized test. Nearly 55,000 of the 95,000 12th graders are affected because they either did not take or did not pass the Partnership for Assessment of Readiness for College and Careers language arts test that they took as juniors, he told the Joint Committee on the Public Schools at a hearing in Trenton on Tuesday. He termed the department's decision to make passing PARCC a graduation requirement both "illegal and unfair."

School districts are also starting to weigh in on the issue, with at least three so far passing resolutions regarding PARCC, said Frank Belluscio, deputy executive director of the New Jersey School Boards Association. One passed last month by the Highland Park Board of Education agrees with ELC's contention, asserting that "the NJDOE and the State Board of Education have not yet legally adopted the regulations required to implement the proposed new graduation policies and none of the additional 'options' proposed by the NJDOE as alternative ways to satisfy the new graduation requirements are authorized by the current assessment regulations."

David Saenz Jr., a DOE spokesman, said he could not comment on the assertions of illegality because they are the subject of a legal challenge. Representing a number of students and parents, ELC is set to argue the question of legality before an administrative law judge on March 31.

Assemblywoman Mila Jasey (D-Essex0 and co-chair of the joint committee, said she held the hearing to try to find out more about the problems with the test and agreed with Karp's views about counting PARCC as a graduation requirement in the first year in which it was given and with little notice to the students.

"I find it astonishingly unfair," she said. "We are going to have to look at how we might intervene on behalf of this year's graduating class."

Karp said the DOE announced it was going to make the passage of PARCC a graduation requirement in an October 2014 memo, when the current senior class was in 11th grade. They would take the tests twice in the following spring and many parents and students objected to the increased testing and nearly 33,000 students did not take the language arts test. While the DOE said it did not have specific numbers, it's likely a majority of those "opted out." There are anecdotal reports that other students took the test but did not take it seriously, randomly scribbling gibberish as a protest.

After seeing the initial results, the department set a lower passing score than initially planned. Still, nearly 22,000 students, or about 35 percent of juniors tested, did not pass.

The state has established a number of other ways that students who did not pass PARCC can graduate, including the achievement of certain SAT or ACT test scores or the military's ASVAB test. For those who still can't meet the requirement, there is a "portfolio appeals process," through which students can show they have mastered the skills the state deems necessary for graduation.

Karp told the committee that all of this violates state law and regulation because the new PARCC requirement was "imposed without revising the current statute or without the adoption of new regulations."

The law requires the state to test students in math and language arts in 11th grade and requires students to have the opportunity to retest in senior year, he said. State regulations specify that student must pass the HSPA, the former graduation test, or the Alternative High School Assessment (AHSA). State law requires all agencies to follow specific rule-making procedures, including providing notice and opportunity for public comment, before changing regulations like the graduation requirements.

Education Commissioner David Hespe only presented the state BOE with new regulations implementing PARCC at its January 2016 meeting and the board held a hearing on them last month.

Karp also asserted that the portfolio assessment process is burdening schools -- particularly those with large numbers of low-income students and non-native English speakers -- because they are responsible for designing and conducting the new assessments, which previously had been created by the DOE. State officials will still evaluate these and pass final judgment on whether students who complete this process can get a diploma.

Depending on the district, hundreds of students or more may have to complete these assessments, according to Karp. He said that in Newark, more than 1,000 students had not yet met any of the DOE's assessment requirements for graduation as of last month, while in Paterson, that number was nearly 700 students. Jasey said a quick survey of school districts around the state by legislative staff found on average that at least three times more seniors would have to complete portfolio assessments than in 2015.

Saenz said the state has not heard of many instances yet of districts inundated with portfolio assessments and the DOE would have enough staff to evaluate all of them.

"While we have not yet received a big influx of portfolio appeals, we changed the portfolio appeals process in a few of ways to ensure we can handle any possible increase in volume," he said in an email. "First, the window in which districts can send us appeals has expanded from January to May (previously, it was only a few weeks). Second, we asked districts to contact us if they believe they will have over 100 student appeals, so we can work with those districts proactively. (I am aware of only eight districts that have reached out to us.) Third, we plan on coordinating our resources to make the process as efficient as possible."

The hearing was decidedly one-sided, since no one from the state DOE appeared to testify. Hespe sent a lengthy -- 44-page -- packet of information about PARCC to the committee on Monday. He began with a letter stating, "Unfortunately, I am unable to attend as the Department is preparing for the upcoming administration of the Partnership for Assessment of Readiness for College and Careers (PARCC) and the FY17 budget hearings. However, I am pleased to provide you with information regarding the graduation requirements and the variety of ways high school students may use to satisfy them.

That was not good enough for members of both political parties who sit on the committee, particularly after they saw how many student in typically high-performing districts were also being affected by the use of PARCC as a graduation requirement.

Jasey said that while Hespe had sent a letter with "pretty extensive" comments on the issue, she was nonetheless "disappointed" he did not appear to testify.

Assemblywoman BettyLou DeCroce (R-Morris) took that a step further, repeating several times that DOE officials need to discuss this matter with the committee.

"The DOE needs to talk to us about this and how we are going to deal with this," she said. "We need transparency here, we need to make things clear for the students and their families. I don't see any other way than by having the Department of Education come here and talk to us about this."

Karp said there is precedent for the state waiving the testing graduation requirement this year. He said the Governor's 2012 Task Force on College and Career Readiness recommended that the new assessment be phased in, as four prior tests were. In the meantime, the task force recommended that "graduation will be dependent on satisfactory completion of the required courses, as established by local boards of education, with accountability coming from a more robust transcript."

New Jersey is in the minority of states that require the passage of a test for graduation and is one of only two states in the nation -- New Mexico is the other -- that has made PARCC a graduation requirement.

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