No issue more uniformly affected school districts throughout New Jersey during the last school year than the introduction of the Partnership for Assessment of Readiness for College and Careers (“PARCC”) assessment. School administrators, teachers, and members of local boards of education were regularly and vociferously questioned, criticized, and harangued by angry parents and students regarding the new statewide testing. Grassroots movements that focused on organizing parents to refuse to allow their children to take the PARCC exam spread like kudzu throughout the state.

The Internet and social media gave these organizations and individuals an easily accessible forum to air their grievances. Parents who had shown little inclination towards educational issues were suddenly participating in comment threads and attending board of education meetings. Once testing got underway, social media provided disgruntled students a way to share testing questions with the leaders of these movements and the outside world. The phenomenon of students tweeting PARCC questions was so pervasive that Dr. Bari Anhalt Erlichson, New Jersey’s assistant commissioner of education, penned a memo addressing the problem and urging schools to better inform students about the permanency of what is posted online.

Unsurprisingly, with all this interest in the PARCC assessment and the general nature of the Internet, a great deal of misinformation, incorrect assumptions, and outright lies were generated and passed on as truth. With PARCC testing continuing during the 2015-2016 school year, this article attempts to examine the history of state testing, the legality of opting-out, and the legal consequences to districts that allow opt-outs, as well as providing guidance to the school districts, which are required to implement the PARCC assessment.

The History of Statewide Testing

The Public School Education Act (PSEA) was enacted in 1975 in response to the New Jersey Supreme Court finding that the financing of New Jersey’s public schools was unconstitutional. In 1976, the Legislature amended the PSEA to include statewide testing as a requirement for graduation. As a result, from 1978-1982 the Minimum Basic Skills (“MBS”) testing was phased in for all New Jersey third, sixth, and ninth grade students.

From 1978 until the present, the state has consistently maintained a statewide assessment in one form or another. Although the assessments have frequently changed, the one constant has been the presence of a test.

When New Jersey adopted the Common Core State Standards in 2010, the state also joined the PARCC consortium – a self-described “group of states working together to develop a modern assessment that replaces previous state standardized tests.” Beginning with the 2014-2015 school year, the PARCC assessment replaced the NJASK and HSPA tests for all students in grades 3-12.

Legality of Opting-Out

At the beginning of the PARCC opposition movement in New Jersey, many referred to having students “opt-out” of the exam. As the initial testing dates approached, the rhetoric changed from “opting-out” to “refusing” to take the test. Regardless of the phrasing du jour, the answer from the federal government, the Legislature, and the New Jersey Commissioner of Education has not changed: students are not permitted to opt-out or refuse to take the PARCC assessment or any state-mandated assessment. Legally, failure of a student to sit for the PARCC assessment can subject the student to disciplinary actions, and may subject the district to loss of state and federal funding.

The NCLB and Federal Funding The NCLB (No Child Left Behind Act) as currently constituted, requires each state receiving federal funds to develop a plan to maintain “Adequate Yearly Progress.” Adequate Yearly Progress (“AYP”) enables “all public elementary school and secondary school students to meet the state’s student academic achievement standards, while working toward the goal of narrowing the achievement gaps in the state, local educational agencies, and schools.” The state plan must include “yearly academic assessments…in mathematics, reading or language arts, and science that will be used as the primary means of determining the yearly performance of the state and of each local educational agency and school in the State….”

In order for schools to demonstrate the envisioned AYP, 95 percent of each group of students detailed in the statute (all public elementary school and secondary students; economically disadvantaged students; students from major racial and ethnic groups; students with disabilities; and students with limited English proficiency) must take the statewide assessment and be graded proficient.

On Feb. 20, 2015, Assistant Secretary of Education of the United States Department of Education, Deborah S. Delisle, wrote to New Jersey Commissioner of Education David C. Hespe to confirm that states must implement a statewide assessment under federal law to be eligible for federal funding. Assistant Secretary Delisle also reiterated that the Department of Education could withhold Title I funding for failing to comply with federal law.

New Jersey Law and the Commissioner of Education New Jersey’s nearly 40 years of implementing statewide testing has resulted in the Legislature enacting N.J.S.A. 18A:7C-1, granting the Commissioner of Education the power to establish graduation standards for New Jersey high school students, which must include the “development of a Statewide assessment test in reading, writing and computational skills.” The Legislature has also enacted N.J.A.C. 6A:8-4.1(a), which allows the Commissioner of Education to “implement assessment of student achievement in the State’s public school in any grade(s) and by such assessments as he or she deems appropriate.” Beginning with the adoption of CCCS, N.J.A.C. 6A:8-4.1(b) has required the commissioner to implement a system and schedule of statewide testing to evaluate student progress of the Common Core Curriculum Standards.

In accordance with these mandates, Commissioner Hespe implemented the PARCC assessment in the 2014-2015 school year as the statewide assessment and the assessment that will be used to determine AYP under NCLB.

In response to growing opposition to the PARCC assessment, Commissioner Hespe authored a spirited defense of the assessment in a memorandum dated Oct. 30, 2014. The commissioner’s memo stated, in no uncertain terms that “State law and regulations require all students to take State assessments.” To ensure that all students sit for the PARCC assessment, Hespe encouraged school administrators to review their district’s discipline and attendance policies to ensure that the policies address any situation that may arise during the administration of the PARCC assessment.

Predictably, Commissioner Hespe’s memo caused a stir with parents and opt-out activists in the state. A large amount of digital ink was spilled criticizing the commissioner’s encouragement of districts to use discipline to address students who refused to take the test. However, the commissioner’s suggestion to districts was premised on N.J.S.A. 18A:37-1, which states that “[p]upils in the public schools shall comply with the rules established in pursuance of law for the government of such schools, pursue the prescribed course of study and submit to the authority of the teachers and others in authority over them.” A student who is willfully disobedient and openly defies the authority of teacher is subject to discipline and possible suspension under N.J.S.A. 18A:37-2(b).

What Can a Student Opt Out of in New Jersey

Under the plain letter of the law, the opt-out movement is encouraging students to openly defy the authority of teachers, principals, superintendents, boards of education, and the commissioner of education. In New Jersey, students can only opt out of certain aspects of the school curriculum or enrollment procedure. In each instance where opt out has been allowed, the Legislature has passed a statute granting students or parents the right to opt-out. Those limited situations in which opting-out is allowed are as follows:

  • N.J.S.A. 18A:35-4.7 allows students whose parent or guardian objects to health education, family life education, or sex education based on their conscience or sincerely held religious belief to be excused from those lessons;
  • N.J.S.A. 18A:35-4.8 allows students to opt-out of medical or physical examinations if the parent or guardians objects;
  • N.J.S.A. 18A:35-4.25 allows any student in grades K-12 to opt-out of dissection, vivisection, or other instructions that results in or suggests harm or destruction of animals or animal parts; and
  • N.J.S.A. 26:1A-9.1 allows students to opt-out from mandatory immunizations if the parent or guardian objects on religious grounds.

Outside of the limited situations outlined, students must sit for and participate in all other modes of instruction, including testing. There is no provision in statute, code, or case law in New Jersey that allows students to opt-out from the state testing.

What Can School Districts Do Moving Forward

As school districts enter the second year of PARCC testing, they should keep in mind that PARCC assessments are not optional, but rather a mandatory mode of assessment. Failure to administer the tests to the required number of students may affect both state and federal funding. Local boards of education should, as the commissioner recommends, evaluate the district’s absentee and disciplinary policies to ensure they address potential situations that may arise.

Local school districts should also be guided by the PARCC Assessment Administrator Manual, which provides that test administrators have the authority to dismiss students for misconduct. Refusal to take a lawfully administered assessment may be deemed misconduct. In such instances, the administrator is to collect the student’s materials, report the testing irregularity, and exit the student’s test on the computer.

Comprehensive policies will likely aid in getting students and parents to agree to sit for the test. However, there will likely be some parents and students who continue to refuse to take the test. Districts should therefore create policies to deal with these students in an appropriate manner. Hespe recommends creating “alternative options for student activity during the test period, so long as the testing environment is not disrupted and, in this regard, a sit and stare policy should be avoided.”

It is unlikely that the debate surrounding the administration of the PARCC assessment will disappear in the second year of its administration in New Jersey. Gov. Chris Christie’s renunciation of the Common Core has only added into the anger and confusion surrounding PARCC – an assessment designed to align to the Common Core. It is not unfathomable that the percentage of students who opted-out in 2014-2015 will increase in 2015-2016.

School districts should be prepared to discuss with students and their parents the importance of testing and the consequences for the student and district if students refuse to take the exam. Before adopting policies that allow student opt-out of PARCC, board of education members should keep in mind that upon assuming office, they swore an oath to uphold the laws and Constitution of the United States and the State of New Jersey. Until the Legislature or the courts say otherwise, opting-out of the PARCC assessment is not legally permitted in New Jersey.

Nicholas F. Savio is an attorney with Sciarrillo, Cornell, Merlino, McKeever & Osborne, LLC.

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