What NJ School Districts Should Know About New Federal and State Discrimination Guidance

As another school year kicks off, the New Jersey Department of Education (NJDOE) and New Jersey Office of the Attorney General issued guidance regarding discrimination in school discipline…

As another school year kicks off, the New Jersey Department of Education (NJDOE) and New Jersey Office of the Attorney General issued guidance regarding discrimination in school discipline. According to the agencies, the guidance is intended to help schools ensure that their student codes of conduct and discipline policies do not discriminate, either intentionally or unintentionally, against students on the basis of a protected characteristics under the New Jersey Law Against Discrimination (LAD).

The NJDOE and NJAOG’sguidance document addresses preventing discrimination in school discipline. It explains how the Division on Civil Rights (DCR) applies the LAD to student discipline, with a particular focus on discrimination based on race, national origin, religion, gender, sexual orientation, and disability.

As set forth in the new guidance, as applied to student discipline, the LAD prohibits discriminationbased on race, national origin, religion, gender, disability, and other protected characteristics in the implementation of school discipline policies. This includes all steps of the disciplinary process, from behavior management in the classroom or hallways, to referrals to the principal or any other authority figure outside the classroom, to the imposition of discipline in any form, including detention, suspension, expulsion, alternative school placement, or any other disciplinary measures. The NJDOE/NJAOG further advises that the LAD’s protections apply to anyone whom the school or district authorizes to discipline students, including teachers, administrators, school staff, security guards, school resource officers or other officers authorized by the school to engage in formal or informal discipline, and other agents.

The state guidance also identifies two legal claims that may apply to discrimination or bias-based harassment in the administration of student discipline. Differential treatment applies where a student is disciplined differently because of their race or other protected characteristic, either because a policy explicitly treats students of different races differently or because authority figures apply a policy differently to students of different races or other protected characteristics. Meanwhile, disparate impact applies where a race-neutral practice or policy impacts students of one race more severely than it does students of another race, or students with disabilities more severely than students who do not have disabilities.

 “With regard to disparate treatment, schools generally violate the LAD when they discipline students differently because of their race, national origin, gender, disability, or other protected characteristic, even if the differential treatment results from unconscious rather than conscious bias on the part of school personnel,” the guidance explains. “With regard to disparate impact, schools also violate the LAD when they discipline students pursuant to neutral policies or practices that have an unequal impact on members of a protected class, unless the school can show that the practice or policy is necessary to achieve a substantial, legitimate, nondiscriminatory interest.”

The NJDOE and NJAOG make clear that, in either case, schools have a responsibility to monitor and address bias-based disparities in student discipline. Moreover, schools that fail to do so can be held accountable under the LAD.

To aid compliance, the guidance also provides several recommendations for school administrators to ensure that students are not subjected to discriminatory disciplinary actions. The recommendation include:

• School administrators should review – and potentially revise – their discipline policies and practices to ensure compliance with the LAD;
• School administrators should collect, monitor, and review all disciplinary data to identify disparities based on race, ethnicity, gender, sexual orientation, and disability;
• Schools should fully investigate allegations related to possible disparate discipline, including allegations that those with the authority to discipline have engaged in bias-based behavior;
• Schools should solicit feedback from students, parents, employees, and the community about discipline disparities and school climate; and
• All employees responsible for disciplining students should be required to receive non-discrimination training.

How We Can Help

New Jersey school district administrators should thoroughly review this new state guidance and its attendant summaries. It is important to educate school administrators, faculty, teachers, and other staff and make any changes needed to bring school policies into compliance. While the guidance document breaks no new legal ground, it clearly adds to the district’s workload and creates the potential for both compliance challenges and legal liability.  Scarinci Hollenbeck’s Education Law Group stands ready to answer your questions or otherwise assist your district as it implements these guidelines. 

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Andrew Brown, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.