The Role of the BA and Other School Leaders Moving Forward in Promoting Diversity, Equity, and Inclusion
There are a number of proactive steps that business administrators and other school leaders should take to deal with foreseeable issues related to equity and the schools.
Engage the Community – The Business Administrator and other school leaders should work with the board of education to promote ongoing community engagement and transparency as the district addresses issues of diversity, equity, and inclusion. This will help build community trust, and can take many forms. Many parents who complain about various aspects of a school district’s curriculum do not have accurate information. For example, school districts are not teaching “Critical Race Theory” and there is nothing built into New Jersey’s standards that is intended to make students feel guilty or ashamed about their race or that seeks to demonize our nation’s forefathers. Of course, there is great work being done to assist school districts in telling a more complete story of our Nation’s founding and history, and to acknowledge the sometimes uncomfortable aspects of that history, related to issues such as systemic racism and other forms of discrimination.
There are many areas where community engagement is required under New Jersey law. For example, school districts must show community engagement in the development and annual review of the Code of Student Conduct. As part of that review, school officials should look closely at disparities that may exist in student discipline, particularly related to race, gender, disability and socioeconomic status, This is particularly important now, since a recent change in state law,P.L. 2021, c. 387, requires that the School Report Card issued for each school moving forward will contain data on student discipline disparities, and disparities that may exist related to student restraint, student seclusion and referrals to law enforcement.
Support Efforts to Affirm Human Rights – There appears to be growing confusion in school districts about the difference between improper “political speech” and legally proper efforts to affirm human rights, whether that be in terms of curriculum or in the use of symbols or other forms of expression. For example, the discussion of the existence of systemic discrimination in our society often sparks pushback that this is something that is part of our past but not present reality. However, recently enacted legislation, P.L. 2021, c. 32, reinforces a number of existing requirements in the New Jersey Learning Standards related to addressing systemic discrimination. Chapter 32 specifically requires all school districts to infuse in the curriculum from K-12, instruction that shall, among other things, “examine the impact that unconscious bias and economic disparities have at both an individual level and on society as a whole.” In other words, districts must acknowledge and explore the impact of implicit biases on society, which of course is another way of saying we must address systemic discrimination.
As another example of the confusion over human rights v. political speech, a recent School Ethics opinion (C46-22 adopted on August 23, 2022) clarified that a school board member wearing a rainbow mask at a public board meeting is a proper means of affirming support for human rights for members of the LGBTQ+ community, consistent with the New Jersey Law Against Discrimination, and is not an improper form of political speech..“In today’s culture and climate,” the commission wrote in its ruling, “it is now more important than ever that all students feel included, and represented, and (O’Donnell’s) decisions were an attempt to support a particular group of students who felt threatened by an impending decision regarding curriculum and books.” The same legal reasoning we see in this Ethics case would also support a teacher displaying a Rainbow Flag in a classroom setting as a way to signal to students that school is a safe and affirming place for LGBTQ+ students.
Promote Proper Conduct of Board of Education Meetings – It is important to establish acceptable parameters for behavior at school board meetings and other school events. Threats of, or incitement to, violence are not acceptable forms of public expression and are not protected under the First Amendment. School districts should be prepared to promptly respond if speech crosses that line. The fact that the U.S. Attorney General felt the need to send out a memo nationwide on October 4, 2021 on this issue underscores the increasingly volatile nature of school board meetings, and the need to establish clear limits against threatening speech or behavior in order to promote a safe environment. New Jersey does have a specific statute that addresses disorderly conduct, N.J.S.A. 2C:33-2 that may come into play when those at a public place engage in violence or threatening speech or behavior. By having a pulse on the community, it is often possible to predict when school board meetings have the potential to draw large crowds and possibly become volatile.
When school officials are aware that particular meetings may have a large turnout and/or the meeting topics have elicited strong emotional responses in the community, consideration should be given to proactively making necessary security arrangements, including working with local law enforcement.
Reenforcing New Jersey’s school ethics rule and how they impact the speech and behavior of school board members is also important. For example, under the New Jersey School Ethics Act, school board members are required to comply with a code of ethics. Common ways that board members may violate the code of ethics include trying to administer public schools themselves rather than focusing on policy, working to undermine school officials engaged in the proper conduct of their duties, or publicly criticizing specific school employees rather than referring complaints to the superintendent. School board members may be tempted to cross ethics lines at school board meetings, when, for example, a member of the public criticizes a school employee and perhaps the board member wishes to express support for the concern raised by the community member. However, any comments in such a forum that criticize school employees would violate the School Ethics Act.
Common sense steps that can be taken to promote more effective school board meetings including:
- Bifurcating public comment and limiting comments at the start of the meeting to agenda items only, with general public comments at the end of the meeting;
- Announcing and consistently enforcing specific time limits on all speakers at board meetings, and avoiding the temptation to allow speakers who express views favorable to district initiatives to speak longer; and
- Building time into meeting agendas throughout the year to allow school leaders to present on issues that are often misunderstood, such as the process for developing and approving the curriculum and instructional materials, the process for investigating HIB claims, and the efforts taking place in each school to address school climate.
School officials do need to be mindful that they cannot engage in viewpoint discrimination and treat public speakers differently depending on whether or not they agree with the presenter. This was clearly established in the case of Besler v. West Windsor-Plainsboro Board of Education (2010). In that case, the district was found by the New Jersey Supreme Court to have violated the First Amendment rights of a citizen who was cut off from speaking by the Board President. The court found that other speakers had been permitted to speak much longer than Besler, and those other speakers had not been limited to speaking only on agenda items. The Court concluded that the district had engaged in improper viewpoint discrimination by limiting Besler’s speech, which was critical of the district and of a particular employee in the district. The Court also noted that the actions of the Board President in that case could not be separated from the district, and the board president’s actions, left unchecked and uncorrected, resulted in a finding of liability against the school district.
Engage in Progressive Supervision as Needed – As part of promoting diversity, equity and inclusion as a district, progressive supervision and discipline of staff members may be necessary at times. Failure to address discriminatory behavior by individual employees, or inconsistent enforcement of a staff code of conduct, will result in significant potential liability for the school district.
Listed below are two recent examples of cases where school districts took appropriate disciplinary action. In one case, the district engaged in a series of measures as part of progressive supervision. In the other case, the behavior of the staff member was so egregious that immediate action was taken.
In the tenure case of Gregory Janicki and Washington Township School District, 8/31/2021, tenure charges for conduct unbecoming were ultimately sustained. In this case, a teacher engaged in a pattern of antagonistic behavior towards members of the LGBTQ community, and was not open to participating in professional learning related to those issues.The arbitrator found that he engaged in conduct that was “antagonistic and discriminatory towards students and coworkers in the LGBTQ community, causing turmoil with staff members, and putting the School District at risk for violation state/federal anti-discrimination laws and directives.” The district engaged in a series of progressive discipline actions, from disciplinary memos to an increment withholding, to, ultimately, tenure changes. This approach shows the gradual, escalating nature of progressive discipline that arbitrators typically expect school districts to follow.
While progressive discipline is typically the appropriate route to follow, in some cases, a single act may be so egregious that the school district needs to take decisive action such as the filing of tenure charges. The case of Donna Coleman and the Borough of Roselle School District, 8/20/21, was one such instance. In this case, tenure charges were brought against a teacher for Conduct Unbecoming, Insubordination & Other Just Cause. The teacher, a 17-year tenured English teacher, posted racially charged and offensive remarks on her personal Facebook account in 2020, shortly following the murder of George Floyd. She later claimed that she had mistakenly placed the comments for public view when she had meant to share them in a private chat. She did later remove the posts, but not before they had been seen by members of the community. School officials demonstrated that the post caused serious, negative and lasting damage to the Roselle School District community environment. They further showed that the employee provided no plausible explanation to justify her actions and failed to show any remorse for her hurtful behavior. The case is a reminder of the significant harm that can result from social media posts, and that a single act by an employee, if egregious, can result in tenure charges and termination.
Conduct a Meaningful Review of the Comprehensive Equity Plan – Using the Comprehensive Equity Plan as a lever to promote meaningful efforts to address equity issues in your school district will help ensure the district is in the best position to defend itself should potential litigation arise. The business administrator should ensure that certain actions are taken to signal the importance of this process, and to ensure that proper resources are available. These include:
- Creating an Affirmative Action Team that is truly representative of the school district. This should include representatives from various grade spans (elementary, middle, high school), school leaders responsible for key aspects of district operations, including maintenance/facilities, curriculum, special education, human resources, and athletics.
- Placing a Strong Focus on Identifying and Addressing Disparate Outcomes. Across the nation, significant disparities exist along racial, ethnic, gender, socioeconomic and other lines in the outcomes in school districts related to both negative measures (suspension and other forms of discipline) and positive measures (access to and success in rigorous courses such as gifted education and AP courses), We also see large disparities in staffing, with significant underrepresentation of staff members of color, for example. Acknowledging these disparities and exploring creative options for addressing them is essential to having a credible Comprehensive Equity Plan.
- Ensuring Proper Policies are in Place and that Policy, Protocol and Practice are all Aligned. While school districts generally use a policy service and have most required policies in place, that is only one piece of the puzzle. Legal issues often arise in school districts where there is a mismatch between policies, procedures, and practice. This can occur in both large districts where many schools can start to operate in a very different manner in implementing the same policies. These issues can also arise in small districts where school leaders wearing multiple hats are not able to properly focus on all of their competing responsibilities.
- Committing Time and Resources as Needed to Developing and Implementing the Comprehensive Equity Plan. If the Affirmative Action Team is to function effectively in developing and overseeing the CEP, it must have the necessary time, training and resources. For example, team members need release time to do their work, access to professional learning on complex issues such as understanding implicit bias, and the investment of resources on strategies such as job fairs and creative recruitment methods, in order to have a real impact on difficult issues related to promoting diversity, equity, and inclusion.
By proactively addressing these issues, the school business administrator and other school leaders will signal to all stakeholders the value they place on addressing issues related to equity, and will ensure that their school district is doing all that it can to provide a safe, welcoming and affirming learning environment for all students, staff, parents and community members. This will, of course, reduce the potential for legal issues to arise and will put the district in a strong legal position to defend itself, should allegations of discrimination emerge.