It could all come down to interpretation of a few words in case concerning replacement of old high school graduation exams with PARCC assessment.

The New Jersey Department of Education is entangled in a lawsuit over graduation requirements for high school students, and it could all come down to the interpretation of three words: eleventh grade pupil.

The state Superior Appellate Court heard oral arguments Monday from the state Department of Education and the Education Law Center (ELC) in an ongoing lawsuit brought by the ELC and ACLU-NJ over whether certain tests — specifically English Language 10 and Algebra 1 — should be mandated for graduation.

While a decision isn’t expected for months, the judges will have to consider questions of constitutionality, discrimination, and curriculum mastery: Does the DOE have the power to amend the law without the Legislature’s involvement? Do fee-based alternative tests unfairly favor wealthy students? And does testing 11th grade pupils mean testing those in their third year of high school or those who can demonstrate mastery of 11th grade concepts, regardless of age?

This suit dates to 2016 when the DOE replaced the current high school graduation exams with PARCC — a change the ELC alleges was made “without undertaking the legally required procedure” of allowing legislators to propose amendments.

Three pathways to graduation

To successfully graduate high school in New Jersey this school year (2018/2019) students can follow one of three pathways: Score a 4 or 5 on their state assessments (English language sections for grade 10 and Algebra 1); score high enough on alternative assessments like the SAT, ACT, or Accuplacer; or through what’s known as a “portfolio appeals process” — which involves assembling information about a student’s high school experience including transcripts, assessment scores and graded work samples, and an intervention plan to outline how the student plans to meet graduation requirements.

As the court battle slogs along, Gov. Phil Murphy and his administration are taking steps to fulfill their vow to eliminate PARCC altogether. Earlier this month, state Board of Education president Arcelio Aponte and education commissioner Lamont Repollet proposed a compromisethat called for restricting state testing in high schools to just ninth and 10th grades, instead of in 9th, 10th, and 11th grades as now required. The state still would keep the current alternatives in place under these suggested amendments.

Two states and Washington, D.C., currently use the full PARCC assessment at the high school level, but New Jersey is the only state that ties PARCC to graduation requirements. Here, all students must pass the PARCC English 10 and Algebra 1 exams to graduate, and those who fail may consider the alternatives.

The appellants

Attorney Jessica Levin, arguing on behalf of the ELC, said the changes the state board made are problematic and potentially unconstitutional for three main reasons: One, Levin said the changes aren’t consistent with the language of the Proficiency Standards and Assessments Act because they require students to pass the 10th grade English Language Assessment and Algebra 1 test (which can be taken at any grade level) whereas the state law requires students to take an 11th-grade graduation assessment before receiving a diploma. Two, she said the state board doesn’t have the authority to make such changes to the law without first going through the Legislature. And three, allowing fee-based tests as graduation alternatives discriminates against minority and low-income students — which violates state laws against discrimination.

“This case isn’t about whether PARCC is a good exam or whether we like PARCC better or the old graduation test better,” Levin said. “The validity or appropriateness of the arguments that the DOE is making about changing an enforced test from the 9th to 11th grade, that is left to the Legislature, which is the only entity that can change those requirements.”

The respondents

Deputy Attorney General Kathryn Duran, arguing for the DOE said it all comes down to measuring a student’s level of proficiency, regardless of their numerical grade level. State assessments, Duran said, are “end of course” exams — meaning they measure what a student has learned at the completion of a curriculum.

“These assessments represent the floor for proficiency at the 11th grade level. In other words, they answer the question: ‘What is the minimum level of knowledge a student needs to know to be at an 11th grade level?’ And the answer is, they should have mastery of the tenth grade level,” Duran said. “The state board’s determination that ELA 10 and Algebra 1 represent the tenth grade level is for good reason...This is logically coherent, this does make sense. The purpose of the graduation assessment is to ensure that students meet a minimum level of knowledge for graduation.”

“There’s no magic to testing a student in their third year of high school,” Duran said.

What’s more, she added that under the Proficiency Standards and Assessments Act, the Commissioner of Education, with the approval of the state board, has the blessing of the Legislature to “develop clear and explicit Statewide levels of proficiency for graduation, as well as a Statewide assessment test to determine whether students had mastered those skills.”

On the charge of possible discrimination, Duran noted that fee waivers are available for the alternative tests. However, as Levin rebutted, those waivers are not guaranteed or provided across the board to all low-income students for as many test attempts as they’d like, whereas wealthier students have the freedom to pay for more shots at passing.

The sticking point

The sticking point in this case appears to be how both sides interpret the phrase “11th grade pupils” in the current law. For the ELC, “11th grade” means just what the language says — that students in their third year of high school should be tested. For the state, it’s a question of relative knowledge that they say should not be constrained by time spent in school, but rather by a student’s ability to demonstrate mastery of topics typically taught by junior year.

This is the question at the core of the suit and could have far reaching ramifications for the power of the DOE. Will the court stick to the strict language as it is written, or allow the department to interpret it as it sees fit?

It’s a question the judges grappled with extensively on Monday.

Judge Carmen Messano asked Duran in one tense exchange, “The statute doesn’t use the phrase ‘11th grade level,’ does it?”

“No, it uses ‘11th grade pupil,’” Duran responded.

“Well ‘11th grade pupil’ means pupil in the 11th grade,” Messano replied. “There’s no assumption there, I’m completely willing to accept there are 11th grade pupils who are proficient at a ninth grade level, or the 11th, I’m not assuming any level of proficiency at all. But what the Department has done is assume what the Legislators meant and the Legislators didn’t say that. They said ‘11th grade pupils’… It could take them five years to get there, they’re in the 11th grade. Everyone knows what the 11th grade is, no?”

Rosemarie Grant, executive director at the Paterson Education Foundation said she hopes the court will rule in favor of the ELC. She said she’s seen firsthand the detrimental effects that these graduation requirements have had on students in Paterson.

“We have a grandparent here whose grandchild took the SAT and got a waiver once but was not able to get a second waiver. We know that people with means can take the test as many times as they want but the argument about kids to access a waiver is not real for those of us on the ground,” Grant said. “We’re in a community where 90 percent of the kids qualify for free or reduced lunch, parents are already having to make the decision about paying rent or putting food on the table. For us to ask them to then pay for a test so their child can graduate high school is just not fair.”

Grant said in Paterson, the district chose to set aside funds for the past three years to pay for the SAT for their students but in a district that is already underfunded and under-resourced, that money isn’t always guaranteed.

“Kids are feeling disadvantaged by how they get to graduation,” she said, “we just want to give our kids a level playing field.”

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