Boards of education throughout New Jersey want to eliminate bias and promote diversity and inclusion, and the New Jersey School Boards Association stands ready to help. In this second article in our series focusing on these important topics, we will examine disparities in student discipline, recent legislative enactments designed to reduce racial and ethnic disparities in access to advanced educational programming, why specific racial and ethnic groups continue to be overrepresented in special education classes not just in New Jersey but nationwide and more.
Protected Class Disparities in Student
Discipline In 2018 ProPublica, an independent, nonprofit newsroom that focuses on investigative journalism, produced an analytical report based on 2015-2016 Civil Rights Data Collection from the United States Department of Education, Office of Civil Rights. Titled “Miseducation — Is There Racial Inequality at Your School?,” the report revealed some striking student discipline statistics from New Jersey and nationwide.
The report, in its analysis of 2015-2016 U.S. Civil Rights Data, found that at the national level:
- Black students nationally are 3.9 times more likely to be suspended than white students.
- Hispanic students nationally are 1.3 times more likely to be suspended than white students.
Specific to New Jersey, the report found:
- Black students in New Jersey are 5.4 times more likely to face out-of-school suspensions than white students. New Jersey is tied with Iowa for the fifth worst state for Black/white discipline disparities.
- Hispanic students in New Jersey are 2.4 times more likely to face out-of-school suspensions than white students. New Jersey is tied with Minnesota for the fifth-worst state for Hispanic/white discipline disparities.
Reviewing this data in context, in 2015-2016, New Jersey had approximately 1.37 million public school students (now approximately 1.4 million) with the following demographic composition:
- White 47%, Hispanic 25%, Black 16% Asian-Pacific Islander 10%, two or more races 2%.
Of the 62,300 out-of-school suspensions in 2015-2016, the demographic composition was:
- Black 42%, Hispanic 30%, white 23%, Asian-Pacific Islander 3%, two or more races 2%.
Of the 628 expulsions in 2015-2016, for which New Jersey ranked in the lowest 10% of the United States, the demographic composition was:
- Black 32%, Hispanic 21%, white 44%, Asian-Pacific Islander 1%, two or more races 2%.
Similar student discipline statistics were found in the 2018-2019 Student Safety and Discipline in the New Jersey Public Schools Annual Report of the New Jersey Student Safety Data System, which recently replaced the New Jersey Electronic Violence and Vandalism Reporting System. In that annual report, which is the most recent data available:
- Male students (5.2%) were more likely to be suspended than female students (2.4%).
- Black students (8.9%) were more likely to be suspended than students of other races; two or more races (4.1%), Latino/a (4.1%), American Indian (3.5%), white (2.7%) and Asian/Pacific Islander (1%).
While not of protected class status, it is of note, not surprisingly, that high school and middle school students were more likely to be suspended than their elementary school counterparts; grades 9-12 (7%), grades 6-8 (6%), grades 3-5 (1.9%) and grades pre-K-2 (0.2%).
Protected Class Disparities in Access to Advanced Educational Programming The 2018 ProPublica report also found significant disparities in protected class access to advanced educational programming.
The report, in its analysis of 2015-2016 U.S. Civil Rights Data, found that at the national level:
- White students are 1.8 times as likely to be in an Advanced Placement class than Black students.
- White students are 1.3 times as likely to be in an AP class than Hispanic students.
Specific to New Jersey, the report found:
- White students are 2.5 times as likely to be enrolled in at least one AP class as Black students. New Jersey is the fifth-worst state for Black/white opportunity disparities.
- White students are 2.3 times as likely to be enrolled in at least one AP class as Hispanic students. New Jersey is tied with Massachusetts and Maryland for the third-worst statefor Hispanic/white opportunity disparities.
- Asian, Pacific Islander or native Hawaiian students are 1.6 times as likely to be enrolled in at least one AP class as white students.
Reviewing this data in context, in 2015-2016, New Jersey had approximately 1.37 million public school students (now approximately 1.4 million) with the following demographic composition: White 47%, Hispanic 25%, Black 16% Asian-Pacific Islander 10%, two or more races 2%.
Of the 76,800 students enrolled in AP courses, the demographic composition was: white 58%, Asian-Pacific Islander 20%, Hispanic 13%, Black 8%, two or more races 1%.
Of the 81,900 students enrolled in gifted and talented programs, the gateway to advanced course access, the demographic composition was: white 55%, Asian-Pacific Islander 22%, Hispanic 14%, Black 8%, two or more races 2%.
To New Jersey’s credit, the ProPublica report identified several areas in which New Jersey ranks in the highest 10% of the country. They were:
- High school graduation rate – 90%.
- Students enrolled in chemistry – 97,000.
- Students enrolled in calculus – 28,400.
- Students who are enrolled in 8th grade algebra – 33,500.
- Security guards or law enforcement officers per 1,000 students – 2.3.
Legislatation to Reduce Racial and Ethnic Disparities in Access to Advanced Educational Programming The following recent legislative enactments were designed to reduce racial and ethnic disparities in access to advanced educational programming.
P.L. 2017 c. 171; N.J.S.A. 18A:35-26.1 required the commissioner of education to develop guidance on identifying English language learners for gifted and talented programs. The guidance is designed to assist school districts in identifying K-12 English language learner students who are gifted and talented, matching them with programs that will help them achieve in accordance with their full capabilities. The guidance provides guidelines on appropriate identification methods that may help reduce the underrepresentation of English language learner students in gifted and talented programs. As set forth in the legislation:
The guidance developed by the commissioner shall include, but not be limited to, information on: recognizing and addressing potential challenges in the process of identifying English language learners who are gifted and talented; the use of multiple methods and measures in assessing the eligibility of English language learners for gifted and talented programs; and the importance of professional development for and collaboration among teachers in the identification process, including teachers of English language learner programs, teachers of gifted and talented programs, and general classroom teachers.
The Department of Education issued this guidance on 11/7/18, which can be found here: https://www.nj.gov/education/bilingual/policy/GiftedandTalentedEnglishLanguageLearners.pdf.
P.L. 2019 c. 338 (1/13/2020), the Strengthening Gifted and Talented Education Act, codified in statute much of what was already in administrative code at N.J.A.C. 6A:8, including the definitions of “gifted and talented student” and “instructional adaptations.” C. 338 requires boards of education to ensure identification, equal access, services, instructional adaptations, curricular modifications, to consider National Association for Gifted Children gifted programming standards, white papers and position statements in developing such programs and to support professional development for teachers of the gifted and talented.
N.J.S.A. 18A:35-35 reminds school districts of the definition of students who are deemed gifted and talented. They are:
Students who possess or demonstrate high levels of ability, in one or more content areas, when compared with their chronological peers in the local school district and who require modifications of their educational program if they are to achieve in accordance with their capabilities.
The key to the definition is that it is a local school district norm. A school district cannot say that all of its students are gifted or that none of its students are gifted, as some have stated in the past. NAGC suggests that the number of students identified as gifted should be between 8-10% of the student population in each school district, compared to the 15% of New Jersey students who have been identified as needing special education services.
C. 338 also created a coordinator of gifted and talented services in the New Jersey Department of Education,to be staffed by an individual with teaching and specialized knowledge in gifted and talented education. One of the most significant aspects of the bill, from an access to advanced educational programming perspective, is that school districts are required to file a report with the coordinator every three years, with the first report being filed in October 2020. The report includes the school district gifted and talented services, policies and procedures, and the number of students receiving gifted and talented services at each grade level disaggregated by race, gender, special education and English language learner status. For the first time, there will be an accurate account of the number of students participating in gifted and talented programs in each school district, disaggregated by protected-class categories to determine if access to these programs, the gateway to advanced educational programming, is occurring in an equitable manner. The results of this reporting should assist school districts in informing their gifted and talented policies and procedures.
Other aspects of the report include a listing of professional development opportunities in G&T; number of employed staff identifying and providing services to gifted and talented students; the school district complaint process as set forth in gifted and talented policy including the appeals process to the board of education and commissioner; and website informationon gifted and talented policies and procedures.
P.L. 2021 c. 32 (3/1/2021) requires school districts to include instruction on diversity and inclusion in an appropriate place in the K-12 curriculum as part of implementation of New Jersey Student Learning Standards. Effective 2021-2022, the instruction shall:
- Highlight and promote diversity, including economic diversity, equity, inclusion, tolerance and belonging in connection with gender and sexual orientation, race and ethnicity, disabilities and religious tolerance.
- Examine the impact that unconscious bias and economic disparities have at both an individual level and on society as a whole.
- Encourage safe, welcoming and inclusive environments for all students regardless of race or ethnicity, sexual and gender identities, mental and physical disabilities and religious beliefs.
The commissioner of education shall provide school districts with sample learning activities and resources designed to promote diversity and inclusion.
In addition, the following legislative enactments of the last three years have an impact on students of protected class categories and school climate, which impacts equal educational opportunity.
P.L. 2019, c. 6 (1/31/19) requires boards of education to include instruction, and adopt instructional materials, that accurately portray political, economic and social contributions of persons with disabilities and lesbian, gay, bisexual and transgender people in middle school and high school curriculum as part of the New Jersey Student Learning Standards.Boards shall adopt appropriate policies and procedures, effective with the 2020-2021 school year.
P.L. 2019, c. 16 (1/31/19) requires school districts to incorporate instruction in grades six through 12 on the law and meaning of consent for physical contact and sexual activity, which is a part of New Jersey Student Learning Standards in Comprehensive Health and Physical Education. Commissioner to provide age-appropriate sample learning activities/resources. Effective with the 2019-2020 school year.
P.L. 2019, c.109 (5/10/19) mandates child abuse and sexual abuse training for all candidates for teaching certification. Effective 2020-2021 school year.
P.L. 2019 c.185 (7/19/19) Each school district shall incorporate age-appropriate sexual abuse and assault awareness and prevention education in grades preschool through 12 as part of the district’s implementation of the New Jersey Student Learning Standards in Comprehensive Health and Physical Education. Commissioner, in consultation with various entities with relevant expertise, shall provide school districts with age-appropriate sample learning activities and resources. Effective with the 2020-2021 school year.
P.L. 2019 c.204 (8/5/19) establishes “Deaf Student’s Bill of Rights.” Includes screening and assessment throughout educational experience, early intervention, options, adult role models, communication plan in the IEP, full support services, access to all programs, mental health services, etc. Effective 9/4/19.
P.L. 2019, c. 222 (8/9/19) requires health curriculum for public school students in grades kindergarten through grade 12 to include instruction on mental health. The instruction in mental health shall be adapted to the age and understanding of the students and shall be incorporated as part of the district’s implementation of the New Jersey Student Learning Standards in Comprehensive Health and Physical Education. Effective with the 2020-2021 school year.
P.L. 2019, c. 272 (12/19/19) “Create a Respectful and Open Workspace for Natural Hair Act” (CROWN Act); addresses discrimination under New Jersey Law Against Discrimination based on traits historically associated with race, particularly focused on hair texture and style. “Race” is inclusive of traits historically associated with race, including, but not limited to, hair texture, hair type, and protective hairstyles. “Protective hair styles” includes, but is not limited to, such hairstyles as braids, locks, and twists.
P.L. 2021 c. 208 (8/24/2021) requires the board of education of a school district with a high school or middle school and the governing board or chief school administrator of a nonpublic high school or middle school to adopt a written policy against hazing. Board shall ensure that students are informed of the anti-hazing policy, including the rules, penalties and program of enforcement under the policy. Board shall post the policy on the district’s or nonpublic school’s publicly accessible website.
Board must provide a program for the enforcement of the policy against hazing and shall adopt appropriate penalties for violation of the policy. Penalties for violations of the policy may include:
- Withholding of diplomas or transcripts pending compliance with the rules.
- Rescission of permission for the organization or group, whose student members are being penalized under the anti-hazing policy, to operate on campus or school property or to otherwise operate under the sanction or recognition of the school district or nonpublic school.
- Imposition of probation, suspension, dismissal, or expulsion.
A penalty imposed under this section shall be in addition to a penalty imposed for violation of any other school district or nonpublic school rule to which the violator may be subject. Policy adopted shall apply to each act conducted on or off campus if the acts are deemed to constitute hazing.
Significant Disproportionality in New Jersey
Significant Disproportionality is the overrepresentation of specific racial/ethnic groups for:
- Identification for special education.
- Classification for special education in certain eligibility categories.
- Discipline (suspension and expulsion).
Significant disproportionality is a national issue. IDEA requires that states identify districts with significant disproportionality each year. School district data, which is used to determine if significant disproportionality exists in a school district, is submitted annually as part of the IDEA Part B Grant Application. New Jersey has, on average, identified 20-25 school districts each year that have significant disproportionality.
Seven racial/ethnic groups are considered, including Hispanic/Latino of any race; and, for individuals who are non-Hispanic/Latino only; American Indian or Alaska native; Asian; Black or African American; native Hawaiian or other Pacific Islander; white; and two or more races.
Analysis categories with subgroups include:
- Identification ages 3-21 All disabilities, intellectual disability, specific learning disabilities, emotional disturbance, speech or language impairments, other health impairments and autism.
- Placement ages 6-21 Inside regular class no more than 79% of the day and no less than 40% of the day; inside regular class less than 40% of day; separate schools and residential facilities.
- Discipline ages 3-21 Out-of-school suspensions/expulsions of 10 days or less, out-of-school suspensions (including expulsions) of greater than 10 days, in-school suspensions of 10 days or less, in-school suspensions of greater than 10 days, total disciplinary removals.
In all there are 98 determinations, including seven groups and 14 measures all used in calculating the risk ratio for a particular racial/ethnic group.
Calculating the risk ratio, which determines the level of disproportionality, involves a determination of what is a specific racial/ethnic group’s risk of:
- Receiving special education and related services for a particular disability.
- Being placed in a particular educational environment.
- Experiencing a particular disciplinary removal.
New Jersey, as part of its IDEA significant disproportionality plan, has chosen a risk ratio of three. If the risk ratio is greater than three for a particular racial/ethnic group, significant disproportionality exists for that school district. The New Jersey Department of Education calculates these determinations based on district submitted program data. The local school district does not have to do any calculations.
When an LEA/district is identified with significant disproportionality, the LEA must:
- Conduct a review of policies, procedures and practices related to the area of significant disproportionality and correct noncompliance.
- Publicly report on any changes to policies, procedures and practices.
- Reserve 15% of total IDEA allocation to provide Comprehensive Coordinated Early Intervening Services.
- Identify the factors contributing to significant disproportionality and use CCEIS funds to address those factors.
When we take an unbiased look at the data, we see that New Jersey school districts have lots of work to do to ensure students aren’t subjected to different discipline because of their race or ethnicity. School districts must also make it a priority to reduce racial and ethnic disparities in access to advanced educational programming and take steps to ensure that certain groups aren’t unfairly overrepresented in remedial classes.
Our final article in this series will highlight what recent settlement agreements involving New Jersey school districts can tell us about how educators can work toward compliance and ensure that the education system is working for everyone.