Legally Speaking: Diversity, Inclusion and Elimination of Bias in New Jersey Schools – Part 3

Everyone can agree that promoting diversity and inclusion and eliminating bias is a goal that deserves our attention, which is why the New Jersey School Boards Association has devoted space in two previous issues of School Leader focusing on what school districts can do to achieve these goals.

In this third part of our series, we follow up on our analysis of New Jersey law, best practices in developing a comprehensive equity plan, and our examination of differences in school discipline and access to advanced educational programming – among other topics – with a detailed look at what recent settlement agreements involving New Jersey school districts tell us about how schools can work toward compliance.

Recent Settlement Agreements Involving Access to Educational Programming and/or Student Discipline The following are reports on recent settlement agreements involving New Jersey school districts that impact access to educational programming and/or student discipline. While no finding of school district liability occurred as part of the settlements, they are informative to see what remedial actions were necessary for school districts to come into compliance. The settlements are provided without school district names to protect the identity of the school district. 

2021 Settlement Agreement

In this settlement agreement, the board of education agreed to take “appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs” to address and resolve alleged noncompliance with the Equal Education Opportunities Act of 1974. It was noted that the school district and the U.S. shared the goal of ensuring that the district’s English language learners receive the instruction and support they need to become proficient in English and to participate equally in school. 

The United States specifically found that the school district: 

1. Failed to appropriately identify and assess potential ELLs, resulting in under-identification of such students.
2. Placed ELLs in schools or classrooms that lack English language services, without obtaining voluntary waivers from their parents. 
3. Failed to assess the English language proficiency of ELLs whose parents waived or opted out of services. 
4. Did not communicate effectively with limited English proficient parents. 
5. Failed to provide sufficient English language services to hundreds of ELLs.
6. Did not adequately staff its English language programs with enough teachers certified/endorsed in bilingual and English as a Second Language instruction. 
7. Failed to provide adequate language services to ELLs with disabilities. 
8. Did not ensure that ELLs were proficient in English before they were discharged from English language programs.
9. Did not adequately monitor the academic progress of its former ELLs. 
10. Did not properly evaluate its English language programs for effectiveness. 

The settlement agreement was 24 pages and included 51 numbered paragraphs setting forth what the school district will do to address the areas of alleged noncompliance.

Areas to be addressed by the school district include:

Identification and Placement of ELLs Eight specific paragraphs including home language surveys, a bilingual needs assessment teacher at each school, administration of a valid, reliable and grade-appropriate English language proficiency assessment in all four language domains to all potential ELLs within certain set time periods with appropriate follow up. ELLs will not need to change schools to receive services. 

Provision of English Language Services and Access to the Core Curriculum Five specific paragraphs including minimum ESL and bilingual services for ELLs, standard ESL is deemed a core subject for ELLs, grouping of ELLs for standard ESL, ESL reading, and integrated ESL by proficiency levels, monitoring of opt-out ELLs twice each school year, all electronic databases and class rosters will note English language proficiency level and status, services and accommodations.

Staffing and Professional Development Seven specific paragraphs including classes being taught by appropriately certified teachers (ESL and ESL reading by ESL-certified teachers, bilingual by bilingual-endorsed teachers with content area certification, ELA-dual certification or co-teaching), active recruitment of bilingual-endorsed teachers and ESL – certified teachers to ensure sufficient staffing, $4,000 incentive bonus for current staff to obtain ESL or bilingual certification, enhanced professional development plan for all ESL teachers, additional professional development for teachers, principals, instructional coaches and other administrators. 

Curriculum – Three specific paragraphs including the need to develop and adopt grade-appropriate ESL curricula with a scope and sequence for grades K-12 for all standard ESL, integrated ESL and ESL reading classes, with a 2021-2022 implementation. Review of curriculum and feedback, observation of classes by U.S. Department of Justice to ensure implementation.

English Language Learner Access to Special Services – Three specific paragraphs including all provisions of the settlement agreement apply to ELLs with disabilities, professional development for special education, bilingual-endorsed, ESL certified teachers who work with ELLs with disabilities on how to provide services, ensure that all IEP teams consider language needs of ELL students with disabilities.

Communications – Five specific paragraphs including identification of LEP parents who need language assistance, with employee training, use of interpreters and translations in the eight most common languages of LEP parents. LEP parent access to information that is distributed will be accurately translated by qualified translators into the district’s major languages – and all translators and interpreters will be qualified translators and qualified interpreters. District office of bilingual education will develop written materials for parents that provide clear, accurate and current information about each of the English language programs translated in the major languages. 

2020 Settlement Agreement

Allegations against the school district

• Grouping students in tiered classes based on test scores or perceived abilities, a longtime tracking system used in the school district, systematically discriminated against Black students, who were generally placed in lower-level classes with lesser opportunities, creating a systematic racial achievement gap.
• School district had illegally maintained de facto school segregation in its K-5 elementary schools; five neighborhood elementary schools were mostly white and one was predominantly Black. 
• District had engaged in racially disparate practices through the student disciplinary process; African American students had been disproportionately targeted for punishment. 
• Lack of diversity among faculty and leaders.

School district had a previous 2014 settlement agreement in which the parties agreed, among other items:

• School district did not provide African American students equal access to honors and AP programs at the high school level and middle school and elementary school programs that would prepare African American students for these higher-level learning opportunities. 
• Middle school and elementary school programs included gifted and talented; Grade 4, 5 math enrichment, Grade 7, 8 honors, advanced honors and accelerated mathematics courses.
• School district agreed to review and self-assess current programs to increase student preparedness and readiness and increase participation in college and career preparatory programs and high school courses and would reform programs. 
• School district would improve outreach to parents of African American students in the district and retain and work with a consultant with expertise in addressing the underrepresentation of African American students in college and career preparation programs.
• Consultant would analyze data at all grade levels and make recommendations to improve school district’s efforts to provide all students with equal access to and an equal opportunity to participate in such programs and courses. 

Key 2020 Settlement Agreement Provisions Development, by Temple University equity scholar Dr. Edward Fergus, of a student reassignment plan for the integration of the district’s K-5 elementary schools; full integration by fall 2021.

Creation and funding of programs and supports to facilitate Black students’ enrollment in advanced-level classes.

School district will publicly report class enrollments by race and gender, for each school, in grades 6-8 and 9-12 and will publicly report suspensions and expulsions by race and gender, for each school in the district.

School district will create the position of assistant superintendent for equity and access, which will monitor the district’s progress in meeting the terms of this settlement agreement. 

School district will provide verification from the New Jersey Department of Education that the district is in full compliance with the state-mandated Amistad Black History curriculum. 

School district agrees to work with the Black Parents Workshop, Inc. to develop relationships with historically Black colleges and universities for the purpose of identifying Black teacher candidates for the district.

2017 Settlement Agreement

Compliance review, initiated by the U.S. Department of Education, Office for Civil Rights, examined whether the school district discriminated against African American and Hispanic students, and students who are English language learners 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 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 and other advanced courses). In the settlement agreement, the school district agreed to:

Appoint a qualified district employee with expertise in addressing the underrepresentation of African American, Hispanic and ELL students in college and career preparatory courses, to study and make recommendations as to what measures the school district will take as part of its ongoing efforts to provide all students with equal access to and an equal opportunity to participate in:

• Honors courses, AP, dual enrollment program courses and the high school academies. 
• Foundation courses at the elementary, intermediate and middle school levels that prepare students to participate in college and career preparatory courses; e.g., gifted and talented education and other accelerated courses.
• Complete a review and assessment of the district’s honors courses, advanced placement, dual enrollment program courses, high school academies; and foundation courses at the elementary, intermediate and middle school levels for school years 2014-2015 through 2016-2017, including enrollment data disaggregated by race, grade and ELL status, additional student support and a detailed review and assessment of potential barriers to increased student participation in the courses and programs. 
• Create an action plan that will include eligibility and selection criteria for courses and programs, including staff training in identification/selection, preparation of students at elementary, intermediate and middle school levels for ID assessments.

2014 Settlement Agreement

• Compliance review, initiated by the U.S. Department of Education, Office for Civil Rights, examined whether the school district provided equal educational opportunity to national origin minority students who are ELLs. 
• Review also assessed whether the school district’s communications with LEP parents provided them with meaningful access to information the school district provides to parents. 
• During the course of the investigation, OCR found compliance concerns regarding the school district’s implementation of its alternative language program; exiting and monitoring of ELL students from its alternative language program; evaluation of its ELL program; communication with LEP parents/guardians; exclusion of ELL students from certain specialized programs; evaluation and placement of ELL students with disabilities; and provision of ELL services in the least segregated manner possible.

The school district agreed to:

• Ensure that every student who has a primary or home language other than English will be identified and assessed by the school district.
• Provide English language services and instruction to all ELL students in all educational settings, including special education. 
• Provide notification of the placement for each ELL student and the benefits derived from participation in the alternative language program to each ELL student’s parent/guardian in a language LEP parents can understand;
• Provide instructional materials, appropriate to the curriculum, and comparable in quality, availability and grade level to materials provided for the instruction of non-ELL students, to effectively implement its selected alternative language service model for the instruction of ELL students.
• Ensure that ELL students with or suspected of having disabilities are appropriately evaluated, placed, and provided with appropriate special education or related aids and services, as well as alternative language services.
• Revise and implement its policies and procedures to ensure that LEP parents are notified, in a language understood by the parents, of school activities and other information and matters that are called to the attention of other parents.
• Ensure that ELL students have an equal opportunity to participate in gifted and talented, AP, or other specialized programs.

The issue of diversity, inclusion and eliminating bias in New Jersey schools will remain an important topic for years to come, and I encourage you to reference this article as well as our previous two articles in this series as your school district monitors and seeks to improve or stay on track with compliance in these areas. The key for educators and school officials is to make informed decisions based on what the law requires by keeping track of the data, leveraging available resources and communicating with peers.

Michael F. Kaelber, Esq. is coordinator for Online Course Development, Legal One, NJPSA/FEA. He is the retired NJSBA Director of Legal and Labor Relations Services.