By Michael Kaelber, Esq., Coordinator of Continuing Legal Education and Research
New Jersey school districts should be aware of strong provisions under state and federal law that address issues of accountability, transparency and equity in terms of gifted and talented education. This article highlights those provisions and recent US Department of Education Office for Civil Rights settlement agreements involving New Jersey school districts.
NJDOE Oversight and Support
The Strengthening Gifted and Talented Act requires the Commissioner of Education to appoint a coordinator for gifted and talented services. The coordinator shall have teaching experience and specialized knowledge in gifted and talented education. The coordinator shall be responsible for providing support by identifying and sharing research and resources to school districts as they develop, implement, and review their local gifted and talented services and shall be responsible for reviewing the information about gifted and talented services provided by each school district to support implementation of the provisions of the SGTEA. Crystal Siniari is the current coordinator for gifted and talented services with her office being located in the Office of Standards within the Division of Teaching and Learning Services.
Each school district files, with the coordinator, consistent with the school district’s QSAC reporting schedule (every three years), a report that includes:
- the gifted and talented continuum of services, policies, and procedures implemented in the school district;
- the total number of students receiving gifted and talented services in each grade level kindergarten through grade 12 disaggregated by race, gender, special education designation, and English language learner designation;
- the professional development opportunities provided for teachers, educational services staff, and school leaders about gifted and talented students, their needs, and educational development; and
- the number of staff employed by the school district whose job responsibilities include identification of and providing services to gifted and talented students.
While not contained in the SGTEA or the G&T administrative code, the DOE website contains another G&T reporting requirement for school districts. Annually, student (SID) and staff (SMID) data must be submitted by school districts to NJSMART no later than October 15 for the Fall collection, and June 30 for the end-of-year collection. This data collection fulfils the SGTEA’s mandate to report:
- “the total number of students receiving gifted and talented services in each grade level kindergarten through grade 12 disaggregated by race, gender, special education designation, and English language learner designation;” and
- “the number of staff employed by the school district whose job responsibilities include identification of and providing services to gifted and talented students.”
Equity Concerns in Gifted and Talented Programming
An analysis of the Fall 2022 NJSMART data was presented to the State Board of Education in August 2023. The data revealed that certain demographic groups were underrepresented in gifted and talented programs.
- Black students represent 14.4% of the overall New Jersey student population but make up only 8.7% of the total New Jersey gifted and talented population.
- Hispanic students represent 32.5% of the overall New Jersey student population but make up only 23% of the total New Jersey gifted and talented population.
- Asian students represent 10.5% of the overall New Jersey student population but make up only 18.4% of the total New Jersey gifted and talented population.
- White students represent 39.2% of the overall New Jersey student population but make up only 46.7% of the total New Jersey gifted and talented population.
- Economically disadvantaged students represent 35.8% of the overall New Jersey student population but make up only 24.7% of the total New Jersey gifted and talented population.
- Students with disabilities represent 16.7% of the overall New Jersey student population but make up only 4% of the total New Jersey gifted and talented population.
- Multilingual learners represent 8.9% of the overall New Jersey student population but make up only 1.7% of the total New Jersey gifted and talented population.
The DOE, recognizing the equity concerns with the data, has pledged to
- Continue to encourage LEAs to remove barriers to G&T programs, enrichment opportunities and advanced coursework.
- Continue to co-design resources with key stakeholders and partners.
- Update and disseminate guidance and resources that focus on highlighting promising practices for increasing representation across student groups.
- Redesign data collection measures for ease of reporting and quicker interpretation of the findings.
NJ Administrative Code Addressing Equity in Gifted and Talented Programs
Boards of education have traditionally been required, pursuant to the Equity in Classroom Practices administrative code, to reduce or prevent the underrepresentation of minority, female, and male students in all classes and programs, including gifted and talented, accelerated and advanced classes. The Managing for Equity in Education code was revised in August 2023 to now require that boards of education increase and promote equitable representation of all students in all classes and programs.
Each school district is responsible for developing a three-year Comprehensive Equity Plan (CEP) that addresses all aspects of school district operations, including how districts ensure equitable access to gifted and talented programs for all students, including those from traditionally under-represented demographic groups. While the NJDOE has provided districts with the option to extend their prior CEPs in recent years, it is anticipated that those extensions will not be offered for the 2024-25 school year.
Legal Obligations to Identify and Serve Gifted Multilingual Learners
The recently readopted Bilingual Education code, N.J.A.C. 6A:15, contains several new and revised provisions relative to multilingual learners (MLs) and gifted and talented programs. They include:
- Each district board of education shall design additional programs and services to meet the special needs of eligible MLs and include, but not be limited to, among others, gifted and talented education services.
- School district staff shall engage in ongoing and continuous language instruction education program (LIEP) evaluations that shall include regular reviews of student performance data (for example, graduation rates and assessment results) and other measures (for example, absenteeism, disciplinary records, and course enrollment) to evaluate whether MLs in the school district have equitable access to educational opportunities, including, but not limited to, gifted and talented programs, advanced coursework and dual enrollment.
- Each district board of education shall provide for the maximum practicable engagement of the parent of MLs in the development and review of program objectives and dissemination of information to and from the district boards of education and communities served by the LIEP, including ensuring all information regarding an ML’s educational experience is available in the language in which the parent possesses a primary speaking ability, and in English; specifically including gifted and talented programs.
P.L. 2017 c. 171, codified at N.J.S.A. 18A:35-26.1 requires the Commissioner of Education to develop guidance on identifying English language learners (ELL) for gifted and talented programs. The guidance is intended to assist school districts in identifying ELL students K-12 who are gifted and talented; match them with programs that will help them achieve in accordance with their full capabilities. The Commissioner was directed to provide guidelines on appropriate identification methods that may help reduce the underrepresentation of ELL students in G&T programs. The DOE issued guidance on 11/7/18, which, until recently was posted on the DOE website on the Gifted and Talented webpage. The guidance has been temporarily taken down from the DOE website and is being revised to reflect changes in the law, including the readoption of the bilingual code in August 2023.
Accountability for G&T Identification and Programming under QSAC
Boards of education are held accountable for G&T identification and programming through the New Jersey Quality Single Accountability Continuum (NJQSAC) process.
- The QSAC Instruction and Program District Performance Review (DPR) indicator for each academic area contains a reference to modifications for gifted students. English and Language Arts, Mathematics, Science, Social Studies, World Languages, Health and Physical Education, Visual and Performing Arts each contain a four-point indicator that the school has provided “Integrated accommodations and modifications for students with IEPs, 504s, ELLs, and gifted and talented students.” That’s 4 QSAC points in each of the seven academic areas or 28 QSAC points total.
- The QSAC Operations section contains a three-point indicator whereby the board of education confirms that it has submitted its required Gifted and Talented report; the G&T complaint policy is on the homepage of the board’s Internet website and detailed information is available on the website regarding the policies and procedures used to identify students as gifted and talented and the continuum of services offered to gifted and talented students.
Recent OCR Settlements
The U.S. Department of Education Office Office for Civil Rights is responsible for ensuring implementation of federal anti-discrimination law provisions in K-12 education. Listed below are recent New Jersey settlements that address equity concerns related to gifted education:
United States of America v. Newark Board of Education Settlement – September 1, 2021
Settlement Agreement includes 51 numbered paragraphs setting forth what the school district will do to address the areas of alleged noncompliance, including the under-representation of ML students in gifted and talented and other rigorous courses, along with other concerns regarding Identification and Placement of ML students; Provision of ML Services and Access to the Core Curriculum; Staffing and Professional Development; Curriculum, ML Access to Special Services; and Communications with parents
Black Parents Workshop, Inc. v. South Orange – Maplewood School District, Filed February 27, 2018, Federal District Court of New Jersey, Settlement July 13, 2020; earlier settlement 2014
2014 – OCR found that SOMSD did not provide African-American students equal access to Honors and AP programs at the HS level and Middle School and Elementary School programs that would prepare African American students for these higher level learning opportunities.
2020 – OCR found that SOMSD was improperly grouping students in tiered classes based on test scores or perceived abilities, and systematically discriminated against Black students, creating a systemic racial achievement gap. School district illegally maintained de facto school segregation in its K-5 elementary schools; five neighborhood elementary schools are majority white and one is predominantly Black. The district also had a lack of diversity among faculty and leaders.
OCR reached settlement agreements in 2014 and again in 2020 requiring the district to take specific remedial actions in response to OCR’s findings.
Egg Harbor Twp. School District – Resolution Agreement 12/22/17
Compliance review, initiated by the U.S. Department of Education, Office for Civil Rights (OCR), examined whether the Egg Harbor Township school district discriminated against African American and Hispanic students, and students who are English Language Learners (ELL), by establishing and implementing policies and procedures that resulted in their exclusion from college and career readiness programs and courses at the high school level (e.g., honors and Advanced Placement (AP) courses), and with respect to other courses at the elementary and middle schools levels that would prepare African American, Hispanic, and ELL students to participate in higher level courses (e.g., Gifted and Talented Education (GATE) and other advanced courses).
The district agreed in settlement with OCR to provide agrees to provide all students, including African American, Hispanic and ELL, with equal access to and an equal opportunity to participate in: Honors courses, Advanced Placement (AP), Dual Enrollment program courses and the high school academies; and foundation courses at the elementary, intermediate and middle school levels which prepare students to participate in CPP courses; e.g., Gifted and Talented Education (GATE) and other accelerated courses.
Moving Forward
As this article shows, there are strong provisions under both state and federal law that require school districts to ensure equitable access to gifted and talented programs for students, and to address instances of significant under-representation in G & T programs. While there is no “one size fits all approach” to identifying and serving students equitably and effectively, there are clear expectations that all districts will strive to ensure that every student is able to achieve their full potential and that districts will demonstrate good faith efforts to remedy any discrepancies that exist in the identification and supporting of gifted students, including those students who have traditionally been underserved.
For more information on training available through LEGAL ONE addressing gifted and talented identification and programming requirements, please refer to the LEGAL ONE website – www.njpsa.org/legalonenj/ .