Legally Speaking: Diversity, Inclusion and Elimination of Bias in New Jersey Schools–Part 1

The issues of diversity, inclusion and elimination of bias in New Jersey schools are top of mind  for New Jersey educators these days. As this article — the first in a three-part series — will demonstrate, we have a lot of work to do to ensure all students, regardless of protected class status, are provided equal access to educational programs and services by district boards of education. The key for educators is to make informed decisions based on what the law requires and the best available data for New Jersey school districts and their own school district and schools. The goal of this series is to assist in that decision-making process.

Equality, Equity and What the Law Says

Before delving into managing equality and equity, it’s important to define what is meant by “equity.” According to the Managing for Equality and Equity in Education Administrative Code, N.J.A.C 6A:7-1.3, “educational equity” means a cohesive set of policies, programs and practices that ensure high expectations, positive achievement patterns and equal access to educational opportunity for all learners, including students and teachers.

“Equity” means when all groups of students master the goals of the curriculum to approximately the same degree. Equity focuses on students’ access to knowledge.

N.J.A.C. 6A:7-1.4. tells us the responsibility of a board of education in this area, which is to annually adopt and implement written educational equity policies that recognize and value diversity and promote the acceptance of persons of diverse backgrounds regardless of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, gender, religion, disability, or socioeconomic status. Furthermore, boards must promote equal educational opportunity and foster a learning environment that is free from prejudice, discrimination and harassment based on those same factors.  Policy writing entities like the New Jersey School Boards Association should be helpful in this regard.

“Equal educational opportunity” is defined by code as the creation of environments that enable the provision of a thorough and efficient education as defined by the New Jersey Student Learning Standards, differentiated instruction, formative assessments aligned to the NJSLS, and high expectations for teaching and learning in a public school district; and when prejudice and other forms of discrimination have been eliminated in the school district’s policies, practices and curricula as evidenced through the narrowing of the achievement gap; and when all students and staff enjoy equal access to all programs and benefits provided by or offered within the public schools of the school district.

In the fulfillment of that responsibility, the board of education must:

• Inform the school community of its educational equity policies.
• Develop, once every three years, a Comprehensive Equity Plan  that shall identify and correct all discriminatory and inequitable educational and hiring policies, patterns, programs and practices affecting its facilities, programs, students and staff. The current CEP covers the school years 2019-2022, making the next CEP deadline less than a year away. The clock is ticking for school districts on the development of the 2022-2025 CEP.

Prior to developing the CEP, each board of education shall assess the school district’s needs for achieving equity and equality in educational programs. The purpose of the needs assessment is to identify and eliminate discriminatory practices and other barriers to achieving equity in educational programs. That assessment should be occurring right now in school districts across New Jersey. The needs assessment data to be considered should include:

• Student performance on National Assessment of Educational Progress and state assessment results.
• Preschool-through-grade-12 promotion, retention, and completion data.
• Re-examination and re-evaluation of classification and placement of students in special education programs if there is over-representation within certain groups.
• Staffing practices.
• Student demographic and behavioral data, including student discipline.
• Quality of program and stakeholder satisfaction data.

The Comprehensive Equity Plan, when developed, should address:

• Professional development for staff, pursuant to N.J.A.C. 6A:7-1.6; coordinated by the school district affirmative action officer.
• Equality in school and classroom practices, pursuant to N.J.A.C. 6A:7-1.7.
• Equality in employment and contract practices, pursuant to N.J.A.C. 6A:7-1.8.
• Goals, objectives, timelines and benchmarks for measuring progress.

The school district affirmative action team, including the affirmative action officer, develops and oversees implementation  of the plan. While the plan addresses many aspects of school district operations, this article will focus on those sections most relevant to students.

New Jersey Equity and Equality Code — Equality in School and Classroom Practices N.J.A.C. 6A:7-1.7

The board of education is required to provide students with equal and bias-free access to  school facilities, courses, programs, activities and services, regardless of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, gender, religion, disability, or socioeconomic status, by:

• Ensuring equal and barrier-free access to all school and classroom facilities.
• Attaining within each school minority representation that approximates the school district’s overall minority representation. Exact apportionment is not required; the ultimate goal is a reasonable plan achieving the greatest degree of racial balance that is feasible and consistent with sound educational values and procedures. For school districts with a homogeneous population, this is not a heavy lift as all schools have essentially the same demographics. For school districts with a more diverse population, this can be more challenging, especially if the neighborhood school concept is used at the elementary school level. A recent settlement agreement with one New Jersey school district and the U.S. Office of Civil Rights required the school district to desegregate its elementary schools by the beginning of the 2021-2022 school year, as five of its six elementary schools were predominately white and one school predominately Black.
• Use of multiple, bias-free methods for identification of special needs children, including state-approved proficiency measures for determining the special needs of English Language Learners, in special education and otherwise.
• Ensuring that support services, intervention and referral services and health services are available to all students; there should be no discrimination based on medical conditions.

Each board of education is required to ensure the school district’s curriculum and instruction are aligned to the New Jersey Student Learning Standards, address the elimination of discrimination by narrowing the achievement gap, provide equity in educational programs and provide opportunities for students to interact positively with others, regardless of protected class status. There should be no differential in course completion requirements or separate classes based on protected class status. Separate developmentally appropriate male/female classes in human sexuality are permitted. The board is also required 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 and ensure a multicultural curriculum, including African American history and history of other cultures, and instruction on the Holocaust and other genocides.

Each board of education is required to ensure that all students have access to adequate and appropriate counseling services; and there should be no restrictions or limits on possible careers or professional or vocational opportunities presented to students based on protected class status. There should be no use of testing or counseling materials that are biased on the basis of protected class status.

Each board of education is also required to ensure that the school district’s physical education and athletic programs are equitable and co-educational and do not discriminate based on protected class status. The board should provide comparable gender-separate restrooms, locker rooms and shower facilities. Schools may operate separate boys and girls teams in one or more sports or single teams open competitively to both boys and girls, as long as the athletic program as a whole provides equal opportunities for boys and girls. The activities comprising such athletic programs should receive equitable treatment, including, but not limited to, staff salaries, purchase and maintenance of equipment, quality and availability of facilities, scheduling of practice and game time, length of season, and all other related areas or matters. For most boards of education, this is not a problem, but reports surface every year of certain school districts that are not providing equitable treatment for their female athletic programs. Reviewing programs and services as part of the Comprehensive Equity Plan development provides a timely opportunity for a review of those programs.

New Jersey Equity and Equality Code—Equality in Employment and Contract Practices N.J.A.C. 6A:7-1.8

While not the major focus of this article, hiring and staffing practices can have a significant effect on student achievement and reducing the achievement gap. Students who have teachers in front of them who look like them often show greater levels of achievement than those who do not. To that end, boards of education should utilize equitable hiring practices that correct staffing imbalances and isolation based on protected class status within the school district’s certificated and non-certificated staff and within every category of employment, including administration. Boards should try to recruit underrepresented populations in every category of employment to affect the achievement of this goal.

The following resource material on the importance of a diverse educational staff may assist school district human resource professionals in this area.

• The article titled “The Importance of a Diverse Teaching Force” published by The Brookings Institution, a nonprofit public policy organization based in Washington, D.C.
• CJPRIDE, a Central Jersey group of educators, works toward diverse staff recruitment so students see role models in their classrooms as teachers.
• Rowan’s Project Impact , a program in Rowan’s College of Education, seeks to address a national shortage of diverse male classroom teachers. Montclair State University has a similar program to attract and mentor more diverse students in their teacher preparation program.

We’ve highlighted a variety of topics that play a role in eliminating bias in New Jersey schools, including what the laws say, how to develop a comprehensive equity plan and how boards of education can strive to eliminate discrimination and narrow the achievement gap.

In future articles, we’ll explore these issues through the lens of student discipline statistics, and legislative enactments designed to reduce racial and ethnic disparities in access to advanced educational programming and related topics.

Michael F. Kaelber, Esq. is coordinator for Online Course Development, LEGAL ONE, NJPSA/FEA. Before his retirement, he was NJSBA Director of Legal and Labor Relations Services.