NJAG's Guidance on Student Discipline May Open 'Floodgate of Litigation'

Guidance to New Jersey schools on preventing discrimination in school discipline has been released by Attorney General Matthew J. Platkin and the acting Department of Education Commissioner Dr. Angelica Allen-McMillan in reaction to a 2020 study that revealed disparities based on protected characteristics under the New Jersey Law Against Discrimination.

The guidance document, which was developed by a collaboration between the Division on Civil Rights (DCR) and the Department of Education (DOE), is aimed at ensuring the state’s schools have student codes of conduct and discipline policies that do not discriminate based on a protected characteristic. Included in the document is an explanation of how the DCR applies the New Jersey Law Against Discrimination (NJLAD) to student discipline, according to a press release on the guidance. It focuses on discrimination based on race, national origin, religion, gender, sexual orientation, and disability. And, it explains the responsibility of school administrators to ensure that their policies comply with the NJLAD by educating students, faculty, staff and families on the protections offered by the law.

“In New Jersey—and across the nation—there have been and continue to be undeniable disparities when it comes to school discipline,” said Platkin. “The guidance we are releasing today makes clear that from kindergarten to high school classrooms, Latinx/e and Black students face disproportionate discipline for the same actions committed by their white peers. And nationally, LGBTQ+ students are nearly twice as likely to be suspended from school as non-LGBTQ+ students. These disparities are unacceptable and should alarm us all. Our new guidance provides schools with additional resources to eliminate discrimination and bias and will help ensure greater equity for all New Jersey students.”

In 2020, Rachel Wainer Apter, now a justice of the New Jersey Supreme Court, chaired the Interagency Task Force to Combat Youth Bias, while she was director of the DCR. That task force released a report, which formed the basis for the new guidance.

Statistics cited in the guidance state that Black students across the state are 3.3 times more likely to be suspended from school than their white classmates, despite the fact that students of different races do not misbehave at different rates. Disabled students are 1.7 times more likely to be suspended than students without a disability. And LGBTQ+ students are suspended nationwide at 1.7 times the rate of non-LGBTQ+ students.

The guidance included recommendations to schools such as reviewing and, potentially, revising their disciplinary policies, and that schools should collect and monitor their own data on disciplinary actions to identify any disparities based on a protected characteristic. In addition, the guidance recommended that schools fully investigate allegations of disparate discipline, that they solicit feedback on discipline disparities and school climate, and that all employees responsible for discipline receive non-discrimination training.

Marc H. Zitomer, a partner with Schenck Price Smith & King, said that the newly issued guidance could open up avenues for parents to sue school districts if they believe their child is being singled out based on a protected characteristic. Zitomer chairs his firm’s school law practice group, is a member of the labor and employment practice group, and is a member of the firm’s management committee.

“I think this is an important guidance document that helps school officials understand that discipline has to be meted out evenhandedly, fairly, and in a non-discriminatory way,” said Zitomer. “Regardless of whether the intent is to discriminate or whether the impact has the effect of discriminating on students in any protected category covered by the New Jersey Law Against Discrimination.”

Zitomer recommended that school districts review their policies to ensure they are complying with the new guidance and that they do a data review, at least annually, to make sure that discipline is not having a disparate impact on students in a protected category covered by the NJLAD.

“My concern, as a school board attorney, is that perhaps the guidance document may open up some floodgate of litigation,” said Zitomer. “Now any time a student is disciplined who is in a protected category, they may potentially claim it somehow violates the NJLAD. That is always concerning.”

Schwanda Rountree, a partner at Sanford Heisler Sharp, focuses her practice on both individual and class action claims for whistleblower, discrimination, harassment, retaliation, and wage and hour violation cases. Rountree spent more than 20 years in the federal government sector, having formerly served as deputy general counsel in the Labor and Litigation for Department of Defense Education Activity Office of General Counsel as well as with the U.S. Department of Justice, Civil Rights Division.

Rountree called the guidance “promising” and said that she is hopeful that it represents a policy shift that will ultimately reduce the instances of bias in K through 12 discipline she often sees in her discrimination practice.

“Unfortunately, unsavory disciplinary records can carry students into the penal system,” said Rountree, who began her career representing students in long-term suspension cases before school boards. And while Rountree was encouraged by the New Jersey AG’s guidance, she said that there is much more to be done in the way of non-discrimination training for school staff.

“I saw that some of the requirements as part of this guidance is tracking the instances of discipline along with various protected categories of classes of individuals,” said Rountree. “Sometimes, practically speaking, that data compilation, or the maintenance of that data does not happen. Ideally speaking, if that data is present, it can support a case strongly.”

Jeffrey M. Scott, a partner with Archer & Greiner, has defended local school districts, among others, in cases brought under the Civil Rights Act in the areas of police administration, corrections, education law, and social services. Scott said that the guidelines compliment existing federal and state laws in this area, but the interesting question is whether they will have an impact on civil litigation.

“I think it is too early to come to a conclusion, but the new guidelines themselves could act as a sort of new industry standard and it might increase new claims of disparate treatment or discrimination under New Jersey LAD or under existing federal law,” stated Scott. “Time will tell whether or not civil rights lawsuits will be filed based on these new guidelines. I do think these guidelines could act as both a road map for an attorney who represents the student and the parent, and for the attorney who represents the school district.”

Scott cautioned schools to take the guidelines seriously and to adopt policies and procedures, or to review their existing policies and enhance them. And Scott agreed with Rountree in regard to additional training for administrators, teachers, and educators.

“If I were to counsel my clients, I would want to share this guidance with them and to help them review their policies to see whether or not they are in compliance,” stated Scott.

Andrew M. Erdlen, a shareholder with Hangley Aronchick Segal Pudlin & Schiller, is a litigator experienced in disputes involving contracts, fraud, and fiduciary obligations, and handles cases involving intellectual property and employment law, according to his firm bio. He also represented a private preschool against charges of unlawful discrimination in violation of state and federal law, including in an appeal to the New Jersey Appellate Division.

“I think what we are seeing here is a clear policy imperative by the Attorney General’s Office, the DCR, and the DOE to reduce the incidence of unlawful discrimination in schools,” said Erdlen.

Erdlen pointed to the recent politicization of school boards over the past few years such as the ongoing case involving the attorney general moving to block Marlboro’s implementation of a transgender student parental notification policy.

“I think these are all part and parcel of the policy initiatives of the Attorney General’s Office,” said Erdlen. “With these amendments to the Law Against Discrimination a couple of years ago, and with the recent enforcement action by the DCR and the attorney general, you may well see additional litigation brought by the AG to challenge these local district policies.”

There are a couple of different legal theories that the guidelines refer to, said Erdlen, one of which is differential treatment whereby members of protected classes are actually treated differently than those outside the protected class. And, he noted, there is disparate impact where an otherwise, apparently neutral policy falls disproportionately on a protected class. However, Erdlen cautioned, it will take time to see how these policies play out and to see whether they are implemented in full, or in part, across the state.

“It is certainly, a set of guidelines that appear to be based on evidence and intended to eliminate what the Attorney General’s Office perceives as a major issues in the schools,” stated Erdlen.