What is the New Jersey Law Against Discrimination?
If your child has been a victim of discipline discrimination in school, there are laws protecting her/his right to fair treatment. The New Jersey Law Against Discrimination (“LAD”) imposes legal obligations on school districts to administer student discipline without discriminating on the basis of race, national origin, gender, sexual orientation, religion, and disability. The LAD now gives guidance to school administrators, teachers, staff, school boards, and parents on providing students with equal opportunities to succeed without being subject to discriminatory disciplinary actions. The LAD holds those responsible for student discipline accountable not only for actions that are made with intent to discriminate, but also decisions that result in a discriminatory impact.
New Jersey Attorney General’s Recent Guidance on Student Discipline
New Jersey’s Attorney General and the Department of Education (“DOE”) have recently released new guidance to New Jersey schools to prevent discrimination in school discipline. The guidance document was developed by the Division on Civil Rights (“DCR”) and the DOE to ensure that New Jersey schools have student codes of conduct and discipline policies that do not discriminate. The guidance also explains how the LAD applies to discipline. Due to this greater guidance and the support behind it, violators of these regulations will face great consequence, including greater exposure to lawsuits.
Disparate Treatment & Disparate Impact
Disparate treatment is a violation of the LAD that happens when schools discipline students differently based on their race, national origin, gender, religion, disabilities, or other protected characteristics—regardless of whether such discrimination is intentional or unintentional.
Differential treatment discrimination is apparent where schools overlook policy violations by students from one group, but strictly enforces the same policies against students of another. This can occur in many contexts – singling out females for violation of clothing policies, disproportionately suspending African American students for violating “no violence” policies, reprimanding only LBGTQ+ students for displays of affection, etc. Schools also violate the LAD based on disparate treatment when following different processes of discipling students belonging to a particular race, national origin, gender, sexual orientation, disability, or other characteristic. This can look like using physical restraint to discipline a male student for using foul language in class, but using verbal disapproval to discipline a female student for the same offense.
Disparate impact is a violation of the LAD that occurs when schools discipline students pursuant to “neutral policies” that result in an unequal impact on members of one protected class but not another.
Under the LAD, schools may not use discipline policies that impact students with a certain protected characteristic more severely than they do other students unless the school can demonstrate that the policy is necessary to achieve a “substantial, legitimate, nondiscriminatory interest.” However, a policy may still be prohibited if it is shown that there is a “less discriminatory, equally effective alternative means of achieving the substantial, legitimate, nondiscriminatory interest.”
Discipline Disparities – Beyond Race
Data collected from the New Jersey DOE demonstrates that although students of all races misbehave at similar rates, African American students are 3.3 times more likely to be suspended than Caucasian students, and Hispanic and multi-racial students are 1.5 times more likely to be suspended than Caucasian students. These racial disparities are even greater for African American girls when compared to their Caucasian female counterparts.
While racial disparity is one of the most commonly challenged in school discipline, there are many other protected characteristics that are greatly impacted by disparate treatment and impact on a daily basis:
* Disabled students are 1.7 times more likely to be suspended than students without disabilities.
* LGBTQ+ students are suspended nationwide at 1.7 times the rate of non-LGBTQ+ students.
* Male students are more than twice as likely to be suspended than female students.
The new discipline guidelines focus heavily on protecting students with disabilities from discriminatory practices. Students with disabilities experience high rates of expulsion and suspensions compared to their non-disabled counterparts. Additionally, studies show that in 2017-2018, students with disabilities represented only 13% of student enrollment, but made up 23% of expulsions. This differential treatment results in fewer disabled students enrolling in public education and thus diminished socialization compared to that of non-disabled students.
Section 504 of the Rehabilitative Act of 1973 requires that schools provide services to disabled students that are equal to those of non-disabled students. Further, schools must determine whether a disabled student’s behavior is related to their disability before suspending or expelling them. Section 504 also calls for schools to initiate policies that support disabled students’ needs, which may vary from their non-disabled peers.
LGBTQ+ students are more susceptible to discipline for violating dress codes, showing affection to romantic partners, or advocating for their identity. Research from a GLSEN survey revealed that more than 18% of LGBTQ+ respondents said they have been prevented from wearing clothing that was considered “inappropriate for their gender.” Twenty-eight percent said they experienced discipline for showing affection to their partners – actions which non-LGBTQ+ students did not receive punishment for. Around 17% said they were disciplined for discussing or writing about LGBTQ+ topics.
Firm partner Mike Farhi has this to say about the new rules: “they seem to be a good thing – on paper. The big question is whether schools will train teachers and administrators on how to deal with student discipline going forward. Without that, good intentions could turn bad, for students, parents, teachers and schools.
If your child is a victim of school discipline discrimination, do not hesitate to call us at 201-488-7211 x. 215.
Gianna D’Onofrio is a third-year law student at Seton Hall University School of Law with a passion for Corporate Law. Upon graduating in the Spring and taking the Bar Exam, she will serve as a law clerk to Judge Cynthia Santomauro in Essex County, Civil Division.