Michels, Morgan and Milmed.
[135 NJSuper Page 567] This is an appeal from a decision of the State Board of Education dated April 3, 1974 affirming a decision of the Acting Commissioner of Education filed November 2, 1973 which upheld the validity, usefulness and reliability of the statewide achievement tests in reading and
mathematics administered to 4th and 12th grade public school students on November 14 and 15, 1972.
Appellants are (1) parents of children attending public schools, and (2) representatives of teacher groups. They had initially commenced an action in the Chancery Division seeking to enjoin the dissemination of the results of the statewide tests. In their complaint in that action they expressed, among other things, concern "with the educational problems in areas where there has been racial unrest, polarization and charges of neglect and indifference to the school system." They contended that the release of the results of the state-wide testing would "cause further division and polarization in the communities." They charged that there was "no valid compelling interest to justify the invasion of their constitutional and statutory rights as well as their right of privacy * * *." The trial judge dismissed the complaint and at the same time enjoined the Commissioner from distributing or publishing the results of the statewide testing program for a period of ten days, the restraint being conditioned upon the plaintiffs' (appellants') "filing a proceeding" within that ten-day period with the Commissioner of Education seeking a review of the Commissioner's action in proposing to distribute and disseminating the results of the tests."
Appellants filed their petition of appeal with the Commissioner of Education in which they sought to have the Commissioner desist from disseminating the results of the November 14 and 15, 1972 tests. In that petition they expressed, among other things, "fear that dissemination of the results of the November 14th and 15th tests as presently planned by the defendant [Commissioner] will violate their constitutional, statutory and common-law rights, will cause polarization within the school communities, racial conflict, degrading stigmatization, illegal tracking classifications, interference with the right to an equal free public education, the right to earn a livelihood, deny them due process, subject them to
unfair accountability proceedings, invade their right of privacy, and delay and defeat the education goals allegedly sought to be achieved by and through these tests." Following a hearing on the merits before a hearing examiner, the Assistant Commissioner of Education reviewed the record, including the hearing examiner's report and the exceptions filed thereto, made his findings and conclusions and directed the release of the test results in accordance with rules promulgated by the State Board of Education N.J.A.C. 6:39-1, et seq. The Commissioner found that the Educational Assessment Program (E.A.P.) was "an important component of the content of an educational program." He noted that the tests "have been found to be valid, useful and reliable, and that the hearing examiner recommends the raw scores derived therefrom to be released forthwith." The Commissioner accepted that recommendation and directed "that all raw scores of the E.A.P. tests with respect to school, district, county and state level be released for district review on Nov. 20, 1973." He further directed "that the release date of Nov. 20, 1973, be followed with public release sixty (60) days thereafter, pursuant to the rules of the State Board of Education. (N.J.A.C. 6:39-1 et seq.)." By successive applications thereafter, appellants applied for a stay of the release of the results of the tests: to the State Board of Education, to this court, to the State Supreme Court, and to the Supreme Court of the United States. They were unsuccessful in their efforts to stay the dissemination of the test results. On April 3, 1974, the State Board of Education affirmed the November 2, 1973 decision of the Commissioner of Education for the reasons expressed therein.
It appears that tests have also been administered in 1973 and 1974 and that although individual pupil scores were not reported for the 1972 testing program, such scores have been reported for both 1973 and 1974 in accordance with N.J.A.C. 6:39-1.2(a) which provides that:
* * * individual student data shall be released only to a pupil, his parent or legal guardian, and school personnel and school officials deemed appropriate by the Commissioner.
On this appeal appellants contend that:
(1) The test results should not be disseminated in the manner proposed by the State Department of Education;
(2) The dissemination of the test results and the so-called "interpretive material" are not made valid by the New Jersey Right-to-Know Law ...