All school leaders need to understand the legal landscape public schools must operate within. Defining the parameters of our civil rights laws is at the heart of our democracy and is a topic that deserves spirited debate… in the right forum. That forum is, for most part, either the New Jersey Legislature or U.S. Congress. Our public schools are mandated to implement state and federal laws, even when some local elected leaders or community members may disagree with some aspects of those laws. Debates about whether or not a law should be written as it is are misplaced when they occur at school board meetings, given that local districts must operate in a manner consistent with state and federal law.
In order to have constructive conversations, here are some key legal issues that every school leader should understand, and tips for responding to issues that may arise.
New Jersey Law Against Discrimination – Enacted on April 16, 1945, the New Jersey Law Against Discrimination was the first state civil rights law of its kind in the nation. It provides much of the roadmap for understanding our legal obligations to protect against discrimination under state law and now includes protections from discrimination based on a wide range of factors, including race, ethnicity, gender, religion, disability, and age. It has been amended numerous times over the years, including in 1992 to extend protections to include sexual orientation, and in 2006 to include gender identity and expression. In 2019 the “Create a Respectful and Open Workplace for Natural Hair Act” (CROWN Act) was passed, which clarifies that under NJLAD prohibited race discrimination includes discrimination on the basis of “traits historically associated with race, including, but not limited to, hair texture, hair type, and protective hairstyles.” The CROWN Act was inspired by the case in South Jersey where a student wrestler was required to have his locks cut while at a wrestling meet, and in public, under threat of forfeiting his match, an incident which the Attorney General later determined was a violation of the student’s civil rights.
In order to assist school districts with implementing NJLAD, guidance documents have been issued from time to time clarifying certain legal requirements. For example, in 2018, the NJDOE issued such guidance regarding legal requirements and best practices related to supporting transgender students in our public schools. That guidance clarified that school districts have a legal obligation to affirm and support students who indicate their gender identity, even when a parent or guardian may disagree, that student records must be revised to reflect the name and gender identity that the student has made the district aware of, and to honor the student’s wishes to maintain confidentiality even if that means not sharing information with a child’s parent or guardian regarding the child’s gender identity.
While some may disagree with the scope of protections available under NJLAD or other state or federal law, those debates are misplaced at school board meetings, since school districts are legally obligated to enforce all of the ant-discrimination protections outlined in state and federal law.
One good example of the far reaching legal obligations of school districts to protect students under NJLAD comes from the New Jersey Supreme Court decision in the case of L.W. v. Toms River (2007). In that case a student was targeted by dozens of students starting in elementary school and continuing into middle school and then high school, because of the student’s perceived sexual orientation. The Supreme Court made clear in that case that responding to incidents after the fact and imposing discipline may not be sufficient. Instead, districts are legally required to take measures that address known AND foreseeable harms, and that are “reasonably calculated to end the harassment,” which will often require a systemic approach that includes addressing larger issues of school climate and culture, looking at curriculum, professional development and all aspects of school operations. Fortunately, New Jersey school districts have a vehicle in place to periodically conduct such a comprehensive review, through the Comprehensive Equity Plan.
New Jersey’s Anti-Bullying Bill of Rights and Related Requirements – New Jersey has one of the most comprehensive, and complicated, bullying prevention laws in the nation. The law defines harassment, intimidation and bullying, spells out specific procedures for investigating and responding to incidents of bullying, and includes a strong focus on addressing school climate and culture. The law was revised in January, 2022, with the revisions going into effect for the 2022-23 school year. While a full discussion of the law is beyond the scope of this article, readers should be aware of key changes to the law, and the concomitant obligations under other state and federal laws to address behavior that targets students because of a protected class under state or federal anti-discrimination laws.
One major change involves the requirement to put in place a Student Intervention Plan for students who commit a third act of HIB. The law does not limit this to three acts within one school year. This means that school districts need to ensure that they have proper records and are able to see whether students have previously engaged in acts of HIB, even if they occurred at a different school within the district. It should be noted that recent guidance from the NJDOE on this issue indicates that districts only need to put into place a Student Intervention Plan when a student commits three acts of HIB in one school year. HOWEVER, this one year limitation is not present anywhere in the law itself, and districts are urged to take a more conservative approach, and put in place a Student Intervention Plan whenever a student gets to 3 confirmed HIB incidents in their district, even if it occurs over multiple years.
Under the revised law, all staff must use a state issued form developed by the NJDOE to submit initial reports of potential HIB incidents. Unfortunately, that form, known as the 338 Form, includes the option for staff members to file the report anonymously, HOWEVER, state law does not permit an anonymous staff member report, since the staff member must also verbally report suspected HIB to the school principal the same day they learn about a potential incident.Another change to the HIB law involves heightened scrutiny for preliminary determinations. If a school district has a policy that permits the school principal, in consultation with the Anti-Bullying Specialist, to decide not to do a full HIB investigation, there are many steps that still must be taken. The decision must be based on the assumption that the alleged facts are true, and that even if true, the allegations would not meet New Jersey’s HIB definition. That decision must be communicated to the Superintendent in writing, the same day, and must be communicated to the parents of the students named. The board of education must be informed. The parent has the right to appeal that decision if they so chose to the school board and beyond, just as they can appeal a finding of a HIB investigation. The NJDOE also must be informed of the number of times such a preliminary determination is made.
Finally, while not a change, it is worth noting that school officials have a separate legal obligation to report any bias-related act that occurs in school to both local law enforcement and the county prosecutor’s office, pursuant to N.J.A.C. 6A:16-6.3(e). This means when a confirmed act of HIB occurs that involves a protected class such as race, ethnicity, gender, religion, or disability, that act must also be reported to local and county law enforcement. Statewide, data shows a significant under-reporting of these incidents to local and county law enforcement.
Comprehensive Equity Plan – Every three years, all New Jersey school districts are required to approve a Comprehensive Equity Plan. The CEP covers all aspects of district operations and is organized into 4 sections – Board Responsibilities, Staff Development and Training, School and Classroom Practices, and Employment/Hiring Practices. Last year, districts were given the option of extending their current CEP for one year. The NJDOE recently indicated that another extension was available for districts that wish to use it. Therefore, the new plans must be implemented by July 1, 2024 for most districts, although districts had the option to choose a 2022 or 2023 implementation if they wished to do so.
While some districts may view the CEP as a “compliance document” that does not require meaningful review, that view misses the importance of focusing the district’s planning efforts to ensure that all stakeholders understand the importance of promoting diversity, equity and inclusion districtwide, and to assess whether current initiatives have been effective or need to be revised or overhauled, which in turn reduces the potential for legal liability related to potential discrimination claims.
For example, when discrimination claims arise, the underlying legal issue is often that there is a mismatch between what district policies SAY and what is actually occuring in practice. That mismatch is usually unintentional, and may be the result of school leaders having so many issues on their plate that inconsistent or ill-advised practices end up becoming part of a district’s reality. For example, school leaders may not appreciate the importance of formally reporting any allegation of alleged discrimination that the school leader becomes aware of to the affirmative action officer. Some school leaders may instead in good faith simply try and bring the parties together to work through the issues in dispute. While this practice is understandable, it creates significant potential liability for the district. Taking the time to review current practices with the full administrative team, and establishing clear protocols, helps ensure that such misunderstandings do not occur.
New Jersey Student Learning Standards and Related Instructional Requirements – New Jersey school districts are required to implement the New Jersey Student Learning Standards, which are adopted by the State Board of Education, and incorporate instructional requirements passed by the State Legislature and signed into law by the Governor. While districts have significant discretion in developing local curriculum, all of the standards must be addressed.
On April 14, 2022, the NJDOE sent out a broadcast email clarifying certain issues related to the Comprehensive Health Standards. The NJDOE noted that parents do have the right to opt out of having their child complete specific aspects of the health standards. However, there is no option for an entire school district to opt out of implementing the standards, since districts are legally required to implement the standards. In addition, efforts to push large portions of the learning standard to the last day of school or a marking period raise serious concerns about whether a school district is acting in good faith to implement the standards.
In addition, while there is an option for parents to opt out of specific portions of the health curriculum, there is no such opt out available for parents to exercise related to other aspects of New Jersey’s Student Learning Standards. So, for example, questioning the specific content of New Jersey’s Student Learning Standards is an appropriate debate in our democratic society, but that debate should be focused on the New Jersey Legislature, State Board of Education and New Jersey Department of Education. School districts do not have the legal authority to simply refuse to adopt state standards, and the refusal of some districts to do so is an example of open defiance of state law, and a violation of the ethical responsibilities of school board members, That was made clear in a recent advisory opinion from the New Jersey School Ethics Commission, Advisory Opinion A12-22 (November 22, 2022). In this opinion, the Ethics Commission made clear that a vote by any individual board member to refuse to adopt the New Jersey Student Learning Standards in Health would constitute a violation of the School Ethics Act.
Understanding the New Jersey Law Against Discrimination, the New Jersey Student Learning Standards, the Anti-Bullying Bill of Rights, and the Comprehensive Equity Plan will help ensure that school officials understanding their legal responsibilities and do not respond in ways that may appease certain segments of the community but in fact violate state and/or federal law.