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STATE BOARD OF EDUCATION

ADMINISTRATIVE CODE

COMMENT/RESPONSE FORM
This comment and response form contains comments from the September 2, 2015, meeting of the State Board meeting when the draft regulations were considered at Proposal Level and from the public during the comment/response period.
Topic: Managing for Equality and Equity Meeting Date: March 2, 2016

in Education
Code Citation: N.J.A.C. 6A:7 Level: Adoption Level
Division: Legal & External Affairs Completed by: Deputy Chief Legal

Officer
Summary of Comments and Agency Responses:


The following is a summary of the comments received from members of the public and the Department’s responses. Each commenter is identified at the end of the comment by a number that corresponds to the following list:


  1. Sara Joslin




  1. Jean Public




  1. Marcella Simadiris




  1. Mahonrry Hidalgo

Education Committee Co-Chair, New Jersey Human Relations Council


  1. Michael A. Vrancik,

Director of Governmental Relations, New Jersey School Boards Association


  1. COMMENT: The commenter recommended the Department include a definition for “district board of education” as the term is used extensively throughout the chapter and is needed to clarify whether private schools for students with disabilities must abide by the chapter’s rules. (5)


RESPONSE: The Department disagrees a definition for “district board of education” is needed as the chapter’s scope at N.J.A.C. 6A:7-1.2 adequately sets forth to which entities the standards apply. However, the Department will review whether it has the legal authority to include approved private schools for students with disabilities within the chapter’s scope and whether to include same as part of a future rulemaking.


  1. COMMENT: The commenters requested N.J.A.C. 6A:7-1.3 be updated to include reference to “gender identity and gender expression” as the terms are described in the New Jersey Law Against Discrimination (NJLAD). (4, 5)


RESPONSE: The Department agrees with the commenters’ request to include a reference to gender identify and gender expression. As such, the Department proposes at N.J.A.C. 6A:7-1.3 to include a definition for “gender identify and gender expression” that is consistent with the definition set forth in the NJLAD. The proposed definition is as follows:
Gender identity or expression” means having or being perceived as having a gender-related identity or expression whether or not stereotypically associated with a person’s assigned sex at birth.
The Department also proposes at N.J.A.C. 6A:7-1.1 to insert “gender identity or expression” in the purpose after “gender” in the first sentence as follows:
The purpose of this chapter is to ensure [that] all students, regardless of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, gender, gender identity or expression, religion, disability, or socioeconomic status, are provided equal access to educational programs and services by district boards of education. [These] The educational programs and services include the teaching of challenging curriculum based on the New Jersey [State] Core Curriculum Content Standards (CCCS), differentiated instruction, formative assessments aligned to the [Core Curriculum Content Standards] CCCS, qualified teachers, and high teacher expectations for student learning. [These] The rules specify standards for district boards of education in establishing policies and procedures for the provision of educational programs and services for all students, pursuant to: Article I, Paragraph 5 of the New Jersey State Constitution[,]; the New Jersey Law Against Discrimination (N.J.S.A. 10:5-1 et seq.); N.J.S.A. 18A:35-1 et seq.[;], 18A:36-20[;], and 18A:38-5.1; Titles VI and VII of the Civil Rights Act of 1964 ([P.L. 88-352] 42 U.S.C. §§ 2000d et seq. and 2000e et seq.); the Equal Employment Opportunity Act of 1972 (42 U.S.C. § 2000e); Title IX of Education Amendments of 1972 (20 U.S.C. §§ 1681 et seq.); the Equal Pay Act of [1973] 1963 ([P.L. 88-38]29 U.S.C. § 206(d)); Section 504 of the Rehabilitation Act of 1973 ([P.L. 93-112] 29 U.S.C. §§ 701 et seq.; [the Individuals with Disabilities Act of 1990 (P.L. 103-336);] and the Individuals with Disabilities Education Act (IDEA) [of 1997 (P.L. 105-17)] (20 U.S.C. §§ 1400 et seq.).
While the chapter already covers “gender identity or expression” by virtue of the citation of NJLAD further in the purpose and by inclusion of “identify or expression” in the definition of “affectional or sexual orientation,” the Department has determined the amendments at adoption will provide clarity and reaffirm the inclusion.


  1. COMMENT: The commenter objected to the proposed deletion of the definition for “school desegregation” at N.J.A.C. 6A:7-1.3 stating the definition is needed to inform standards for corrective action and is still used within the chapter through the reference to the “Guidelines for Desegregation of Public School in New Jersey.” (1)


RESPONSE: The Department disagrees a definition for school desegregation is needed in the chapter for several reasons. First, the term “school desegregation” is not used in the chapter and, therefore, no definition is needed. Although the chapter refers to “desegregation” in the title of a guidance document, the plain meaning of the term is used and no further definition is needed.


  1. COMMENT: The commenter requested the Department require at N.J.A.C. 6A:7-1.4(c) the needs assessed by school districts when developing the comprehensive equity plan to include additional areas for review, including discipline and suspension rates, placement of students in gifted and talented programs, stakeholder engagement, and participation in extracurricular activities. The commenter disagreed with the inclusion of “staffing practices” in N.J.A.C. 6A:7-1.4(c)1 as part of a school district’s needs assessment toward developing a comprehensive equity plan because it will not reveal any bias(es) or discrepancy(ies), but should instead review staff patterns. The commenter requested the comprehensive equity plan include a description of the data collected during the school district’s assessment of its needs. (4)


RESPONSE: The Department disagrees N.J.A.C. 6A:7-1.4(c) needs to be amended. The rule already requires school districts to develop a comprehensive equity plan that identifies and corrects “all discriminatory and inequitable educational and hiring policies, patterns, programs and practices affecting its facilities, programs, students and staff.” Although N.J.A.C. 6A:7-1.4(c)1 requires district boards of education to review standardized assessment results, special education classification rates and placement, staffing practices, student demographic and behavioral data, quality of program data, and stakeholder satisfaction, it does not prohibit a school district from reviewing additional areas as suggested by the commenter. In fact, such areas of review may be necessary based on a school district’s circumstances; a determination of the areas appropriate for review is best left to the district board of education.


  1. COMMENT: The commenter requested the Department require at N.J.A.C. 6A:7-1.4(c)4 and (e) a school district to post on its website the comprehensive equity plan within 30 days of approval by the executive county superintendent, as well as annually posting on the school district website of the statement of assurance. (4)


RESPONSE: The Department disagrees that school districts should be required to post on their websites the comprehensive equity plan and the statement of assurances. The documents are considered public documents and already are subject to disclosure under the Open Public Records Act.


  1. COMMENT: The commenter supported the removal of reference to the Quality Assurance Annual Report (QAAR) at N.J.A.C. 6A:7-1.4(d) and 1.9(g) as the report is no longer necessary. (2)


RESPONSE: The Department thanks the commenter for the support for the removal of the QAAR at N.J.A.C. 6A:7-1.4(d) and 1.9(g) as the report is no longer used by the Department to assess school district performance.


  1. COMMENT: The commenter opposed the inclusion of professional development opportunities in accordance with this chapter during school hours and requested all professional development be done after hours and at staff members’ own expense. (2)


RESPONSE: The Department disagrees N.J.A.C. 6A:7-1.6 should specify that all professional development training be done outside of school hours. Although the rule requires professional development training on equity issues for all staff, the rule does not prescribe how or when school districts administer the professional development training as it is a local decision and subject to local contractual agreements.


  1. COMMENT: The commenter requested the requirement at N.J.A.C. 6A:7-1.7 regarding counseling services be revised to more clearly set forth what are adequate and appropriate counseling services. Specifically, the commenter requested the section be amended to require each school to employ a full time student assistance coordinator (SAC). (3)


RESPONSE: The Department disagrees a SAC needs to be employed full time in each school building. N.J.A.C. 6A:7-1.7(c) addresses adequate and appropriate counseling services in the context of informing students of possible careers and professional or vocational opportunities, which may be appropriately handled by school district personnel other than a SAC. In addition, district boards of education need to have flexibility to determine appropriate staffing needs in consideration of the school district’s individual circumstances and budgetary needs.


  1. COMMENT: The commenter generally criticized the Core Curriculum Content Standards and the ability of non-citizen students to attend public schools within the State free of charge. (2)


RESPONSE: The comments are outside the scope of the chapter and the Department makes no response with respect to same.


Adoption Level

March 2, 2016

TO: Members, State Board of Education


FROM: David C. Hespe

Commissioner


SUBJECT: N.J.A.C. 6A:7, Managing for Equality and Equity in Education
REASON

FOR ACTION: Readoption with amendments


AUTHORITY: N.J.S.A. 18A:36-20
SUNSET DATE: September 16, 2015
Summary
The Department of Education (Department) proposes to readopt N.J.A.C. 6A:7, Managing for Equality and Equity in Education, with amendments.
The chapter provides standards governing equality in educational programs to guarantee each student equal access to all educational programs, services, and benefits of the school district regardless of his or her race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, gender, religion, disability, or socioeconomic status. The rules also provide an objective basis for evaluating a school district's progress toward equality in educational programs, and provide the basis for district boards of education to identify areas in which technical assistance may be needed. The rules directly impact students by affirming their basic rights to equitable treatment and services and to a quality education.
On June 3, 2013, the Department proposed (see 45 N.J.R. 1317(a)) to repeal the chapter and relocate its provisions with amendments in Subchapter 13 of N.J.A.C. 6A:32, School District Operations. The proposed amendments in the relocated rules under the 2013 rulemaking were developed with input from the Governor’s Educational Transformation Task Force and were designed to align the rules with current Department policies and practices, as well as to allow families and students the ability to voluntarily select single-sex classes and schools, consistent with Federal law. Based on comments received, the Department chose to not adopt the proposed repeal and relocation with amendments to keep the rules within a dedicated chapter and to further review the desirability and delivery of single-sex education within the State.
Unless otherwise noted in the Summary, all of the proposed amendments in the current rulemaking are to correct statutory or Administrative Code citations, to provide clarity, or for stylistic or grammatical improvement.
The following summarizes the chapter’s provisions and the proposed amendments:
Subchapter 1. General Provisions
N.J.A.C. 6A:7-1.1 Purpose
The section outlines the chapter’s purpose, which is to ensure all students are provided equal access to educational programs and services.
The Department proposes at N.J.A.C. 6A:7-1.1 to insert “gender identity or expression” in the purpose after “gender” in the first sentence. While the chapter already covers “gender identity or expression” by virtue of the citation of the N.J. Law Against Discrimination further in the purpose and by inclusion of “identify or expression” in the definition of “affectional or sexual orientation,” the Department has determined the addition of the term in the purpose and the proposed definition of the term (as explained further in the Summary) will provide clarity and reaffirm the inclusion.
The Department proposes at the end of the rule to delete “the Individuals with Disabilities Act of 1990 (P.L. 103-336)”; and to replace “of 1997 (P.L. 105-17)” after “Individuals with Disabilities Education Act (IDEA)” with “(20 U.S.C. §§1400 et seq.)” to reflect the current applicable Federal statute.
N.J.A.C. 6A:7-1.2 Scope
The section states the rules apply to district boards of education providing general education services to students in preschool through grade 12, special education services to students ages three through 21, or adult education programs, and to charter schools.
N.J.A.C. 6A:7-1.3 Definitions
The section provides definitions for terms used in the chapter.
The Department proposes to amend the definition for “achievement gap,” which means the difference in academic performance among student groups within a district defined by stipulated characteristics, to delete “within a district” because the Department examines achievement gaps at the school and school district levels.
The Department proposes to delete the definition for “diversity,” which means unique differences among individuals, groups, and cultures, because the plain meaning is used in the chapter.
The Department proposes to add a definition for “gender identity or expression” to mean having or being perceived as having a gender related identity or expression whether or not stereotypically associated with a person’s assigned sex at birth. The definition is consistent with that set forth in the New Jersey Law Against Discrimination, N.J.S.A. 10:5-5, and is necessary to clarify students who fall within this definition are protected by the provisions of this chapter.
The Department proposes to delete the definition for “multiculturalism,” which means the ability of an individual, group, or organization to acknowledge, adapt, and operate within more than one culture, because the plain meaning is used in the chapter.
The Department proposes to delete the definition for “school and classroom practices,” which means all policies and practices governing curricular and extracurricular objectives, content, methods, materials, media, facilities, and services provided by a district board of education, because the plain meaning is used in the chapter.
The Department proposes to delete the definition for “school desegregation,” which means the plan and process for correcting the impermissible segregation, separation, or isolation of students in the schools, programs, or courses of a school district on the basis of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, gender, religion, disability, or socioeconomic status and also means the requirement to neutralize or reduce the negative effects of segregation, separation, or isolation upon students, because the term is not used in the chapter.
N.J.A.C. 6A:7-1.4 Responsibilities of the district board of education
The section requires district boards of education to adopt and implement written educational equity policies and plans that recognize and value diversity within society and promote acceptance of persons of diverse backgrounds; promote equal educational opportunity and foster a learning environment that is free from all forms of prejudice, discrimination, and harassment; address professional development and equality in school, classroom, employment, and contract practices; and prohibit all forms of discrimination and harassment in public schools on the basis of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, gender, religion, disability, or socioeconomic status.
The Department proposes an amendment at N.J.A.C. 6A:7-1.4(d), which requires each district board of education to submit at the end of each school year a report on their annual progress in the Quality Annual Assurance Report (QAAR) on achieving the objectives of the comprehensive equity plan, to replace “, report on their annual progress in the Quality Annual Assurance Report on” with “a statement of assurance regarding” because the QAAR no longer exists. The Department also proposes to delete N.J.A.C. 6A:7-1.4(d)1, which requires the chief school administrator to also provide to the department a statement of assurances and certification, because it is embodied in N.J.A.C. 6A:7-1.4(d) as proposed for amendment. The Department further proposes to recodify N.J.A.C. 6A:7-1.4(d)1i through iv as N.J.A.C. 6A:7-1.4(d)1 through 4, respectively.
N.J.A.C. 6A:7-1.5 Affirmative action officer
The section requires the district board of education to appoint an affirmative action officer and to form an affirmative action team to coordinate and implement the chapter’s requirements. The section also describes the responsibilities assigned to the affirmative action officer and team.
N.J.A.C. 6A:7-1.6 Professional development
This section requires district boards of education to provide professional development training for all school district personnel on a continuing basis to identify and resolve problems associated with the student achievement gap and other inequities arising from prejudice. The rule also requires the Commissioner to provide technical assistance to school districts for the development of policy guidelines, procedures, and in-service training for affirmative action officers.
N.J.A.C. 6A:7-1.7 Equality in school and classroom practices
The section requires district boards of education to provide equal and bias-free access for all students to all school facilities, courses, programs, activities, and services. The rule also requires district boards of education to ensure the school district’s curriculum and instruction are aligned to the Core Curriculum Content Standards (CCCS) and address the elimination of discrimination by narrowing the achievement gap, providing equity in educational programs, and providing opportunities for students to interact positively with others. The section further requires district boards of education to ensure all students have access to adequate and appropriate counseling services and to make sure the school district’s physical education and athletic programs are equitable and co-educational and do not discriminate.
The Department proposes to amend N.J.A.C. 6A:7-1.7(a)3, which requires district boards of education to utilize annually a State-approved English language proficiency measure for determining the special needs and progress in learning English of language-minority students, to replace “the special needs and progress in learning English of language-minority students” with “the special needs of English language learners and their progress in learning English.” The proposed amendments reflect the current use of “English language learners” as the terminology to refer to students whose native language is other than English.
N.J.A.C. 6A:7-1.8 Equality in employment and contract practices
The section requires school districts to ensure all persons have equal and bias-free access to all categories of employment in the State’s public education system. The rule also prohibits district boards of education from entering into any contract with a person, agency, or organization that discriminates on the basis of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, gender, religion, disability, or socioeconomic status. The section also prohibits district boards of education from assigning, transferring, promoting, or retaining staff, or failing to do so, on the sole basis of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, gender, religion, disability, or socioeconomic status. The rule further requires district boards of education to ensure equal pay for equal work among members of the school district’s staff.
N.J.A.C. 6A:7-1.9 Accountability
The section requires each district board of education to comply with the chapter’s requirements regardless of the rules or regulations of any organization, club, athletic association, or other league or group. The rule also requires each school district to submit, by September 30, 2003, a comprehensive equity plan that is based on an assessment of the school district’s needs for achieving equity in education programs. The section further stipulates the required contents of the comprehensive equity plan, timelines for its creation and implementation, and possible sanctions if the plan is not implemented within 180 days of its approval.
The Department proposes an amendment at N.J.A.C. 6A:7-1.9(b), which requires each school district to submit by September 30, 2003, its comprehensive equity plan based on an assessment of the school district’s needs for achieving equity in educational programs that includes a cohesive set of policies, programs, and practices that ensure high expectations, positive achievement patterns, and equal access to education opportunity for all learners. The Department proposes to delete “by September 30, 2003,” because the deadline to complete a comprehensive equity plan has passed. The Department also proposes to delete “based on an assessment of the district’s needs for achieving equity in educational programs” as it is being incorporated into N.J.A.C. 6A:7-1.9(c)1 where it is more appropriate.
The Department proposes an amendment at N.J.A.C. 6A:7-1.9(c)3, which requires the comprehensive equity plan to include adequate yearly progress targets for closing the achievement gap, to delete “[a]dequate yearly” because the Department refers to targets for closing the achievement gap as “progress targets” since it received a waiver of the Federal No Child Left Behind’s “adequate yearly progress” indicators.
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