Good news from the Education Law Center: Several civil rights groups in New Jersey are suing to stop the state from using PARCC as a high school graduation requirement.

Several New Jersey civil rights and parent advocacy organizations have filed a legal challenge to new high school graduation regulations recently adopted by the State Board of Education. The new rules make passing the controversial PARCC exams a requirement for a New Jersey high school diploma and will also prevent students who opt out from graduating.

The lawsuit was filed in New Jersey Superior Court, Appellate Division, on October 21st on behalf of the Latino Action Network (LAN), the Latino Coalition of New Jersey (LCNJ), the Paterson Education Fund (PEF) and the Education Law Center (ELC). ELC and the American Civil Liberties Union of New Jersey (ACLU-NJ) are co-counsel.

The lawsuit says the new regulations violate the NJ graduation statute and other applicable laws in several ways:

The state law requiring a graduation test, originally passed in 1979, explicitly requires an 11th grade test that assesses state standards in English Language Arts (ELA) and Math. Instead, the State Board designated the PARCC ELA10, a tenth grade exam, and the PARCC Algebra I test, which is given across a wide range of middle and high school grades, as the primary high school graduation tests.

The new rules undermine important protections established by the Legislature, such as eliminating retesting opportunities required by the graduation statute.

The designation of a 10th grade graduation test deprives English Language Learners (ELLs) of an extra year to develop their language ability.

The use of fee-based tests like the SAT and ACT as “substitute competency tests” through 2020 will restrict low-income students’ access to diplomas. Because NJ’s at-risk students are more likely to be members of racial minority groups or ELLs, use of fee-based assessments will have a negative, disparate impact on these student groups, a violation of their civil rights.

The substitute assessments are also not 11th grade tests and, as the Department has acknowledged, are not aligned with state standards. The lawsuit alleges these provisions violate the state constitution’s Education Clause and state anti-discrimination law.

Under the new rules, the substitute assessments will be eliminated after 2020, and students who do not pass PARCC ELA10 and Algebra 1 will have only one other option to graduate: the NJ Department of Education’s time-consuming “portfolio appeals” process. Access to the portfolio appeal will be restricted to students who took all PARCC exams during their high school years.

If these new rules had been in effect for the class of 2016, more than half of the senior class—50-60,000 students—would have been at risk of not graduating. In 2015, the passing rate on the PARCC ELA10 was 37 percent and on the PARCC Algebra I it was 36 percent. In 2016, the rates were 44 percent and 41 percent, respectively. Passing rates on the previous graduation test, the High School Proficiency Assessment, were above 90 percent.

Preparing tens of thousands of portfolio appeals for seniors who do not pass PARCC would be a major new burden for staff and students, particularly in high needs districts. Last year, about 11,000 seniors needed portfolios to graduate. Students who needed portfolios after multiple rounds of testing faced more lost instructional time, increased stress and disrupted senior plans. Districts using the portfolio process incurred extra costs for staff time, additional test administrations, and after-school and Saturday sessions devoted to preparing portfolios for review.

“Setting high school graduation standards is an important public policy issue,” said Christian Estevez, President of the LAN. “It’s also important to protect the rights of students to the opportunities that a high school diploma represents.”

PEF’s Executive Director Rosie Grant added, “NJ has sustained one of the highest graduation rates in the country, in part because we’ve always had multiple ways for students to earn a high school diploma. We want to make sure students continue to have multiple opportunities to succeed.”

The decision to tie high school diplomas to specific test scores is a state policy decision, not a federal mandate. Currently, fewer than one-third of all states use high school exit tests, and several states have used the transition to new assessment systems to eliminate them. Many states continue to give tests for diagnostic and accountability purposes without using the scores to make graduation decisions for individual students. A bill now pending in the NJ Legislature (S2147/A3849) would allow for that alternative.

“The State Board of Education is going full-steam ahead with a plan that breaks New Jersey law and, more disturbingly, disproportionately harms the most vulnerable students,” said ACLU-NJ Legal Director Ed Barocas. “The state knows about the PARCC’s high failure rates, extreme racial disparities, and deep economic divisions in passing scores, and yet officials decided to use this test as a key criterion for graduation despite the glaring problems. The New Jersey Board of Education has put New Jersey students on the wrong course.”

PARCC, a federally-funded consortium that produced the new tests, once had 25 state members. But today only six remain, and just three use PARCC at the high school level. Only NJ and New Mexico currently use PARCC exams as a high school graduation requirement.

“Ultimately, the legislature needs to revisit NJ’s exit testing policies,” said Stan Karp, Director of ELC’s Secondary Reform Project. “Until then, this lawsuit seeks to safeguard the rights of students and families, particularly in high need districts and schools.”