ACLU-NJ appeals for AC education records denied based on residency

March 11, 2016
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Lawyers’ Committee, represented by ACLU-NJ, appeals in case to secure access to records requested by out-of-state organization

NEWARK - Arguing that everyone should have access to public information under the state’s Open Public Records Act regardless of whether they live in New Jersey, the ACLU of New Jersey filed an appeal on behalf of the Lawyers’ Committee for Civil Rights Under the Law for access to Atlantic City’s school records, which the city had originally denied because the Lawyers’ Committee’s offices are not located in New Jersey.

The ACLU-NJ argued that the Legislature clearly meant for residents and non-residents alike to have access to public records. However, Atlantic County Superior Court Judge Nelson Johnson ruled on Feb. 19 that only New Jersey residents can have access to records in the state, contrary to OPRA according to the ACLU-NJ.

“OPRA was created to serve the people of New Jersey by giving anyone with an interest in the state the right to access public records, not by limiting who can view those records,” said ACLU-NJ Transparency Law Fellow Iris Bromberg. “Granting access to public information for out-of-state requestors, whether they’re potential homebuyers, journalists, or civil rights advocates, doesn’t just create more access — it builds a culture of transparency and accountability.”

The Lawyers’ Committee requested specific records documenting enrollment and disciplinary statistics in Atlantic City public schools, records that the city is required to maintain and send to the U.S. Board of Education. In fact, the Lawyers’ Committee found an Atlantic City board document online that had been provided to the federal government. The Atlantic City board then claimed it had lost all such records, which proved to be untrue. The Lawyers’ Committee also requested disciplinary policies and procedures of the Atlantic City Board of Education, including when to involve law enforcement.

“We see these records as similar to an educational canary in the coal mine for New Jersey families,” said Brenda Shum director of Lawyers’ Committee’s Educational Opportunities Project, which defends the rights of school children to receive a quality education. “The Lawyers’ Committee happens to be initiating the search, but everything we’re asking for will ultimately benefit residents of New Jersey above all. These kinds of documents reveal patterns about whether students in New Jersey are getting the education they’re entitled to, and if they aren’t, it signals to organizations like ours that these students need advocates to fight for their rights under the state Constitution.”

When the Lawyers’ Committee requested education records in 2015 from the Atlantic City Board of Education about its two high schools, the board refused, claiming in violation of OPRA that the group’s out-of-state Washington, D.C., mailing address precluded them from obtaining that information. The Atlantic City board also refused to fill the request based on the claim that it did not have any records responsive to the Lawyers’ Committee’s request.

As the ACLU-NJ explained to the trial court, OPRA consistently and clearly grants the right of access to “any person” requesting information. Crucially, only the preamble of OPRA mentions “citizens of the state,” which appears to be a holdover from the Right to Know Law, an earlier, now-defunct predecessor to OPRA. When the New Jersey Legislature repealed and replaced the state’s previous law with OPRA, it affirmatively replaced the term “citizen” with the term “any person” in the new law’s main sections. The fact that OPRA allows for anonymous requests, in which the address of the requestor is unknown, indicates that New Jersey residency is not required for access to records.

“The language of the statute is consistent and clear: it states that ‘any person’ may access records under the Open Public Records Act,” said ACLU-NJ Legal Director Edward Barocas. “Given that state agencies have long treated out-of-state requestors as they would in-state requestors, and given OPRA’s clarity on allowing anonymous requests for records, there is no question that our Legislature intended for everyone, including representatives from out-of-state groups like Lawyers’ Committee, to have the right to access public information.”

The case is captioned Lawyers’ Committee v. Atlantic City Board of Education.

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Student’s Political Tweets Not Bullying, School Officials Rule

March 8, 2016
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Fair Lawn High School student had been under investigation for Twitter posts criticizing Israel

NEWARK – A Fair Lawn High School student’s controversial Twitter posts did not constitute bullying, according to a determination by school investigators. A letter from the school’s principal notifying the family of the decision said an investigation found that the incident involved “peer conflict” but did not meet the standard for harassment, intimidation or bullying under New Jersey state law.

The ACLU of New Jersey, which represented 16-year-old Bethany Koval and her family, applauded the decision as a victory for free speech. However, the organization warned that Koval’s case exemplifies an overly broad application of New Jersey’s anti-bullying law, which requires a high standard that was not met here for activity to qualify as bullying.

The investigation was spurred by tweets Koval published during the school’s winter break that were sympathetic to Palestinians in the context of the Israeli-Palestinian conflict. Another student told the school administration that she felt threatened by the posts, prompting the charges of bullying. A media firestorm inflamed the situation and brought many to the defense of Koval, who also goes by Benny. The rush of support caused the hashtag #IStandwithBenny to trend on Twitter at one point. After her and her family’s ordeal, Koval has temporarily removed herself from Twitter.

“I am grateful for this ruling that posting my political opinions online was not considered bullying and for the fact that my speech didn’t deserve official censorship,” Bethany Koval said. “The manner in which the bullying law was used in my case was not in the spirit of free speech. It’s unfortunate that such a noble law in principle was used to justify something as troubling as chilling students’ speech.”

“I would be lying if I said this experience didn’t change me,” Bethany Koval added. “I have always believed that independent thought should be encouraged above all else, especially for impressionable students who are just discovering how to use their rights. If I hadn’t documented the incident online and garnered so much support, I might have been intimidated into silence. Through it all — in-person and online harassment, losing family and friends, a 90-person rally at the high school in support of the bullying charges, vandalization of our home, and the impact of everything on my outlook — my views have only grown stronger, and my voice, louder.”

On Jan. 6, Koval was called to the school’s main office, where Fair Lawn High School Assistant Principal Frank Guadagnino showed her a printout of her tweets, saying they could get her in trouble at school. Given the severe consequences that can accompany a finding of harassment, intimidation or bullying under New Jersey law, Koval asked for a lawyer before agreeing to sign any statements, a request that Koval said was not honored.

Koval criticized the Israeli government on Twitter, but Koval protected her classmates’ anonymity on her public social media accounts when they engaged her in discussions about the Israeli-Palestinian conflict. Koval posted on Twitter that students were talking “smack” about her because of anti-Israel Tweets. A school friend asked for their names on Twitter, but Bethany instead said she would message the student privately; Bethany’s schoolmate ultimately didn’t know the names. Toward the end of the Israel-focused Twitter conversation, Bethany said she was “sooooo glad that pro-Israel girl from my school unfollowed me!” and went on to criticize Israel with the remaining characters of the tweet, never naming any individuals.

Under New Jersey’s current anti-bullying law, passed in 2010 and updated in 2012, schools have an obligation to investigate any report of harassment, bullying or intimidation, letting individual principals determine whether those reports meet a certain threshold. If a student is found to have engaged in harassment, intimidation or bullying, the consequences can be severe, including suspension and expulsion.

“Bethany’s case shows how the anti-bullying law can be misused to stifle free expression, far from its intent to meaningfully address harassing behavior,” said ACLU-NJ Senior Staff Attorney Alexander Shalom, who helped the Koval family during the school’s investigation. “In some cases, the anti-bullying law is being read so broadly that perfectly constitutional free speech can easily be placed under a microscope, contrary to the spirit of the law. It’s not going to be the bland, inoffensive speech that tests the strength of the First Amendment; it’s going to be the words that spark controversy and inflame people’s passions. Students shouldn’t have to fear that their thoughts on politics, or anything else, could be taken out of context and have them branded as a bully, especially when the consequences can be so serious.”

According to New Jersey law, a student’s behavior rises to the level of harassment, bullying or intimidation if it is motivated by a real or perceived personal characteristic and substantially interferes with the operation of the school or the rights of other students. Additionally, the actions would have to be ones where a reasonable person would expect them to harm a student emotionally or physically, or they would have to insult or demean a student or group of students or create a hostile environment for a student. Schools receive grades for their anti-bullying efforts, which they must post on their websites. School employees can be held accountable for not investigating bullying.

“I cannot tell you how relieved my family is for this investigation to be over and for the school to have determined that Bethany’s speech wasn’t harassment, intimidation, or bullying,” said Debra Koval, Bethany’s mother. “I feel like my daughter’s rights have been vindicated now that she’s no longer under suspicion for being something that’s the opposite of who she is. I hope the school’s finding sends the message once and for all that expressing your opinions, even when they conflict with deeply held beliefs, is not something that deserves to be punished.”

“I am extremely grateful to Fair Lawn High School Principal James Marcella for his understanding and direction,” Debra Koval added. “I am extremely grateful as well to advocate David Stein for his steadfast support for Bethany’s free speech even while holding different views from hers, and to the ACLU-NJ for its help through this ordeal.”

In its annual reports, the New Jersey Anti-Bullying Task Force has identified the vagueness of the statute as problematic. Additionally, it has recommended allowing principals to first determine if the facts as presented would constitute bullying before proceeding with an investigation.

School Stops Having Children Say “God Bless America” After Pledge

January 5, 2016
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Constitution prohibits schools from imposing religion on children

Newark – The ACLU of New Jersey applauded a move taken by administration of Glenview Elementary School in Haddon Heights to stop the practice of adding “God bless America” during the Pledge of Allegiance recited during daily morning assembly. The ACLU-NJ sent a letter to the school district (PDF) on December 30, 2015, explaining that invoking a blessing from God at the beginning of each school day violates the Establishment Clause of the Constitution, which calls for no government sponsorship of religion.

“Our constitution is clear: schools can't coerce or impose religion on children,” said ACLU-NJ Legal Director Edward Barocas. “It’s the job of parents to decide how and whether to instill religion, not public schools. There is a special concern when it involves students at such an impressionable age, including kindergartners. It gives some children an uncomfortable choice between opting out and risking the status of pariah, or troublemaker, or participating in a group exercise that pressures them into voicing beliefs that may run counter to their own and their parents.”

Students at the school, which houses children between kindergarten and sixth grade, have stood at attention lined up by grade to recite the phrase “God bless America” immediately following the Pledge of Allegiance for about 14 years. The Constitution prohibits not only public institutions from favoring one religion above another, but also from favoring religion over non-religion. The United States Supreme Court has rejected a practice of invoking God’s blessing as a daily ritual.

“Students have the right to engage in speech, including religious speech, on their own time at school, and the ACLU-NJ has defended students’ religious speech in the past,” Barocas said.

“The fact that the phrase has some patriotic overtones does not cancel out the fundamentally religious nature of the words recited every morning in unison at the school, led by teachers and administrators,” added Barocas. “The school should focus its efforts on academics and the enrichment of children, not the debate over whether to add a religious blessing to the end of the Pledge of Allegiance.”

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ACLU-NJ Scores Assembly Members on Key Civil Liberties Votes

October 28, 2015
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New Jersey General Assembly

NEWARK - On the most important civil liberties issues facing the 216th Legislature, a majority in the General Assembly voted with the ACLU of New Jersey at least 90 percent of the time.

The first-ever ACLU-NJ legislative scorecard tracks the records of Assembly members on 13 key issues votes during the legislative session that began Jan. 2014. In the run-up to the Nov. 3 election, in which Assembly members are at the top of the ticket, the ACLU-NJ is releasing a scorecard of those votes to educate the public at large as well as its 20,000 members and donors who live in every single legislative district in the state. The information can be found online at https://www.aclu-nj.org/scorecard. It includes a table showing how every Assembly member voted on the issues and allows users to learn details about the scored bills, compare Assembly members’ voting records, find out who made the Honor Roll, and look up scores for legislative districts and an interactive map of New Jersey.

“The good news is that most Assembly members vote for civil liberties and civil rights most of the time. The bad news is that our elected officials aren’t always there when it counts, like with the bill to allow transgender New Jerseyans access to birth certificates that reflect their true gender,” said Ari Rosmarin, ACLU-NJ Public Policy Director. “With this kind of sound information, civil rights voters can hold elected officials accountable because they know where their representatives stand on the key issues of the day when they go to the polls.”

Of the hundreds of bills the Legislature considered, the ACLU-NJ identified 13 votes as the most central to civil rights and civil liberties, including legislation to:

  • End solitary confinement for juveniles.
  • Require the Port Authority to abide by open records and open meeting laws.
  • Reform the state’s broken bail system.
  • Rein in the use of drones and restrict the purchase of surplus military equipment by law enforcement.
  • Expand medical parole to prisoners in need of 24-hour medical attention.
  • Allow transgender New Jerseyans to obtain a birth certificate that matches their gender identity.
  • Permit those with a terminal illness, with the assistance of a doctor, end their lives in a compassionate manner.
  • Create greater transparency in public funds used to rebuild after Superstorm Sandy.
  • Prohibit employers from asking first-round job applicants about criminal histories.
  • Expand opportunities for individuals to expunge their criminal records.

Out of New Jersey’s 80 Assembly members, 32 – or 40 percent – made the ACLU-NJ’s Honor Roll, with ratings of 100 percent.

The lowest rating belonged to Assemblyman Gregory McGuckin (R-Brick) at 38 percent. Eight other members of the Assembly scored below 50 percent and also earned a spot on the ACLU-NJ’s less-than 50 percent list.

“Above all, this scorecard is a tool for public accountability. We created it to allow New Jerseyans to learn where their lawmakers stand on key issues involving our rights and freedoms,” said ACLU-NJ Executive Director Udi Ofer. “We’re here to ensure those who have taken a stand for our fundamental civil rights continue to act in defense of our rights and liberties, and we’re here to put pressure on those who need a refresher in what it means to defend the rights of the people. Our goal is for every elected official to achieve a 100 percent rating. Even more importantly, our goal is for every resident of New Jersey to know where their representatives stand.”

The ACLU-NJ will continue to monitor important votes as the Legislature returns for its biennial lame-duck session after the election and before the 217th Legislature is convened in January. An updated scorecard, including scores for the Senate, will mark the end of the legislative term.

Visit https://www.aclu-nj.org/scorecard to read the scorecard online, look up legislative districts, compare Assembly members on an interactive map of New Jersey, and learn about the details of the scored bills in more detail.

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Students Sue to Force NJDOE to Adopt New Graduation Rules

September 1, 2015
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Education

Newark – On September 1, several New Jersey students and their families filed a lawsuit (PDF) challenging the NJ Department of Education’s (NJDOE) attempt to impose new exams and other fee-based tests as requirements for high school graduation without adopting new regulations as required by law.

The lawsuit, T.B., et al. v. NJ Department of Education, contends that NJDOE failed to follow existing regulations or propose new ones under the NJ Administrative Procedure Act (APA) when Commissioner of Education David Hespe announced that new graduation requirements would apply to this September’s incoming senior class.

The students and families filing the lawsuit are represented by the Education Law Center (ELC) and the American Civil Liberties Union of NJ (ACLU-NJ).

Last fall, Commissioner Hespe sent a memo (PDF) to districts and charter schools stating that high school students would no longer have to pass the State’s existing graduation tests, the High School Proficiency Assessment (HSPA) or the Alternative High School Assessment (AHSA), even though NJDOE regulations require use of those tests. The Commissioner’s memo notified districts that students must instead pass at least two of the new PARCC (Partnership for Assessment of Readiness for College and Careers) exams, given for the first time last spring. Hespe said that “schools and districts can expect to be notified of the [PARCC] 'cut scores' for use in New Jersey graduation determinations in the Fall of 2015.” Students who don’t pass PARCC must attain certain scores on the SAT, ACT or other tests, or successfully complete an undefined “portfolio appeals” process.

The lawsuit seeks to halt using PARCC, SAT and other tests as graduation requirements until NJDOE formally proposes and adopts new regulations through the APA process. The APA requires NJDOE to publish new rules in detail and give the public the opportunity to comment.

“This is a matter of basic fairness to students and families,” said Linda Reid, the grandmother of a Paterson 10th grader. “Changes in high school graduation requirements require the adoption of new regulations by the State Board of Education, an opportunity for public comment about those regulations, and due notice for the parents and students who will be affected. None of that happened.”

Concerns have been raised about the potential impact of the proposed policies, especially on at-risk students, English language learners (ELL), students with disabilities, and students with other special needs. For example, the elimination of the AHSA, the alternative assessment, will close a pathway to graduation used by as many as 10,000 students annually, including more than half of all ELL graduates. The use of fee-based commercial tests, including the SAT and ACT, as high school graduation exams also raises questions about equal access and the alignment of these tests with state standards. In addition, expanded use of the “appeals” process could place a significant new burden on high school guidance departments, especially in high poverty districts.

“There has been so much confusion and controversy about New Jersey tests and standards over the past year that students and parents don’t know what’s going on,” said Newark high school senior Tanasia Brown, one of the petitioners. “A lot of us have received no information or confusing information about the new graduation policies and about whether the PARCC tests ‘count.’”

“Students and families are supposed to receive information about high school graduation requirements when they enter 9th grade,” she added. “Changing requirements for students going into their junior or senior year is not fair or reasonable.”

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NJ Juvenile Justice Reform Coalition Applauds Reform Bill Signed into Law

August 17, 2015
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TRENTON -- Governor Christie’s signature of S2003/A4299 will implement significant and much needed reforms to New Jersey’s juvenile justice system. The bill, sponsored by Senators Nellie Pou and Raymond Lesniak, and Assembly Members Shavonda Sumter, Charles Mainor, Benjie Wimberly, and Maria Rodriguez-Gregg, recognizes the critical need for age-appropriate treatment and access to rehabilitation for juveniles who intersect with the criminal justice system. The new law:

“These reforms to the waiver laws are consistent with the substantial body of research establishing that adolescents’ developmental immaturity renders them less culpable than adults”

  • Raises the minimum age at which a child may be prosecuted as an adult from 14 to 15, narrows the list of offenses that can lead to prosecution as an adult, and amends the standard governing such decisions to reflect the continuing maturation of young people through their mid-twenties;
  • Requires due process, including representation by counsel, before a young person who is confined in a juvenile facility can be transferred to an adult prison; and
  • Eliminates the use of solitary confinement as a disciplinary measure in juvenile facilities and detention centers, and places time limits on the use of solitary confinement for reasons other than punishment, such as safety concerns.

The New Jersey Juvenile Justice Reform Coalition is pursuing system-wide reforms of New Jersey’s juvenile justice system, including promoting alternatives to incarceration for youth and improving conditions of confinement for those who are incarcerated. Members of the Coalition’s Steering Committee include Advocates for Children of New Jersey, the American Civil Liberties Union of New Jersey, the Lowenstein Center for the Public Interest at Lowenstein Sandler, the New Jersey Institute for Social Justice, and Rutgers Law School Children’s Justice Clinic in Camden and Criminal and Youth Justice Clinic in Newark.

Through legislative advocacy on this bill, as well as executive advocacy and litigation, the Coalition has sought to reform the process and circumstances under which youth may be placed in an adult prison, and to eliminate the practice of solitary confinement of juveniles. The Coalition applauds the extraordinary leadership of Senator Pou, who more than two years ago, began bringing together advocates (including members of the Coalition), retired judges, county prosecutors, the Attorney General's Office, and other stakeholders to discuss New Jersey’s juvenile justice system and how to improve it through these substantial reforms.

“The historic reforms to New Jersey's juvenile justice system just signed into law will make us fairer, smarter, and safer. While there remains more work to do, these changes are a significant step towards making the ‘justice’ in our juvenile justice system a reality,” says Alexander Shalom, Senior Staff Attorney at the ACLU of New Jersey.

“New Jersey will become the twenty-first state to prohibit the use of punitive solitary confinement by either law or practice, in line with a growing national trend. This is a first and significant step towards reducing the risk of serious harm to juveniles in secure facilities, but we still have a long way to go,” explains Natalie Kraner, Pro Bono Counsel at Lowenstein Sandler. “The new law’s data collection requirement is critical because it will afford transparency to the Juvenile Justice Commission’s continued use of solitary confinement and protect against an overbroad and prolonged use of non-punitive solitary confinement,” adds Kraner.

“Serving time in an adult facility has enormous and lifelong consequences,” remarks Laura Cohen, Director, Criminal and Youth Justice Clinic at Rutgers School of Law. In another important change, youth who have been waived for adult prosecution presumptively will be held in local juvenile detention centers, rather than county jails, while awaiting trial; similarly, any young person who is sentenced to a term of incarceration will be committed to the state's Juvenile Justice Commission until the age of 21 and may remain there beyond that time at the discretion of the Commission. “These reforms to the waiver laws are consistent with the substantial body of research establishing that adolescents’ developmental immaturity renders them less culpable than adults,” explains Cohen.

“While we agree that juveniles should be held accountable for their actions, we must treat juveniles who commit crimes differently than adults. These youth will return to their communities and we must equip them with the skills they need to stay out of trouble and mature into productive adults,” says Mary Cogan, Assistant Director, Advocates for Children of NJ.

“This legislation represents a much-needed paradigm shift in how New Jersey addresses juvenile delinquency issues," adds LaShawn Warren, Vice President and General Counsel of the New Jersey Institute for Social Justice. "It moves the state closer to a rehabilitative model that appropriately factors in developmental considerations of youth and ensures progress toward racial fairness in the state juvenile justice system.”

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ACLU-NJ Cheers Signing of S2003, Juvenile Justice Reform Legislation

August 10, 2015
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Juvenile Justice

The following is attributable to Alexander Shalom, Senior Staff Attorney at the ACLU of New Jersey. The ACLU of New Jersey is a member of the New Jersey Juvenile Justice Reform Coalition.

The historic reforms to New Jersey's juvenile justice system signed into law today will make us fairer, smarter, and safer. Solitary confinement of juveniles is a practice that has no place in our state and should only be used as a very last resort. Collecting data on the use of solitary confinement and the practice of trying children as adults will only serve to improve our juvenile justice system. While there remains more work to do, these changes are a significant step towards making the "justice" in our juvenile justice system a reality. The ACLU of NJ thanks Senator Pou, Assemblywoman Sumter for their leadership, and Governor Christie for signing this legislation into law today.

Image: © Richard Ross, www.juvenile-in-justice.com

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NJ Judge Rules Minors Cannot Receive Life-Long Sentences Without Consideration of Their Youth

May 11, 2015
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Man sentenced to de facto life sentence without parole will get new sentencing hearing that factors in his maturity at the time

NEWARK – In a groundbreaking ruling in an American Civil Liberties Union of New Jersey case, a New Jersey judge found that people convicted of crimes as juveniles cannot be sentenced to de facto life without the possibility of parole without carefully considering the role their youth played in their crimes.

The case involved James Comer, who was sentenced at age 17 to serve 75 years in prison, more than 68 without parole. Essex County Superior Court Judge Thomas R. Vena in a ruling Friday, May 8, concurred with the ACLU-NJ that because Comer will be 86 years old when he first becomes eligible for a parole hearing, he had effectively been serving a life sentence. As a result of the ruling, Comer will be resentenced.

“The judge adopted the Supreme Court’s axiomatic observation that children are not just miniature adults. The unique nature of their brain chemistry requires that they be treated differently than adults,” said ACLU-NJ Senior Staff Attorney Alexander Shalom. “This ruling clearly affirms that before a court can condemn a child to die in prison, it must consider the things about youth that make these extreme sentences so ill-suited to juveniles.”

The ACLU-NJ argued that a series of U.S. Supreme Court decisions proscribed courts from sentencing minors to life imprisonment without the possibility of parole, including de facto life sentences. Consistent with these cases, Comer’s resentencing will take into account the immaturity and impetuousness that accompanies youth; his home environment at the time; the circumstances of the offense, the deficiencies of young people in handling real-world functions, such as dealing with attorneys or police officers; and the possibility of Comer’s rehabilitation.

While the judge did not share the interpretation that the Supreme Court’s rulings amounted to an absolute rejection of life sentences of minors, the judge did rule that Comer’s sentence was unconstitutional because the judge failed to factor in the hallmark factors of youth involved in his crime.

“This ruling gets New Jersey courts one step closer to the reality that it is unconstitutional to sentence children to die in prison,” said Lawrence S. Lustberg of Gibbons P.C., who along with Joseph A. Pace, also of Gibbons P.C., represented Comer on behalf of the ACLU-NJ. “The question isn’t whether Comer deserves to be released – the question is whether Comer and other children charged with serious crimes deserve a meaningful opportunity to obtain release as they mature.”

Mr. Comer, now 31 years old, was sentenced in 2003 for his role in four robberies and a felony murder as a juvenile, with no meaningful consideration given to his youth at the time. Felony murder differs from murder in that if a murder is committed during the commission of a crime, everyone involved in that crime is deemed responsible for the murder, even though they did not actually kill or intend to kill. Although he was not the one who pulled the trigger, Comer received a longer sentence than his two accomplices, one who was charged with the actual killing and the other who was an adult.

The resentencing, which has not yet been scheduled, will take place in Essex County. The State plans to appeal Judge Vena’s decision.

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ACLU-NJ on prosecution of Sayreville football players as juveniles

November 10, 2014
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Prosecutor is right to keep Sayreville football players in juvenile system rather than try them in adult court

ACLU of New Jersey Senior Staff Attorney Alexander Shalom made the following statement about reports that seven Sayreville football players charged with sexual assault will be tried as juveniles:

Alexander Shalom

"The decision to prosecute the seven Sayreville High School football players as juveniles is the correct one, and we commend the Middlesex County prosecutor for making the right choice in a sexual assault case that has shocked the public conscience and roiled the community.

"The decision does not diminish the seriousness of the crimes alleged in the Sayreville case. Sexual assaults -- indeed, rapes -- such as those reported in the press should not be condoned as horseplay or trivialized under the term hazing. But asking that kids be treated like kids -- that children get access to rehabilitative services that will reduce their likelihood of recidivism -- is not the same as suggesting that they evade punishment. It is, however, recognizing that finding justice is not as simple as seeking retribution."

Civil Rights Complaint Challenges Tracking and Discipline in South Orange-Maplewood School District

October 10, 2014
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NEWARK -- Civil rights organizations filed a complaint late yesterday (PDF) with the federal Department of Education’s Office of Civil Rights (OCR) urging an investigation into New Jersey’s South Orange-Maplewood School District’s practices of tracking and school discipline that affect students differently based on race and disability status.

The complaint was brought by the American Civil Liberties Union, ACLU of New Jersey, and the Center for Civil Rights Remedies of the Civil Rights Project at UCLA. The groups charge the school district's tracking and discipline practices disproportionately confine students of color to lower-level classes and punish students of color and students with disabilities to a greater degree.

“These problems are all too common in school districts across the country, and the numbers in South Orange-Maplewood are particularly troubling,” said ACLU-NJ senior staff attorney Alexander Shalom. “We've been meeting with officials from South Orange-Maplewood in the hopes that they address this issue and become a partner in building a more democratic, equitable learning environment for all children.”

The complaint, brought under Title VI of the Civil Rights Act of 1964 and Section 504 of the Rehabilitation Act of 1973, outlines the scope of the disparate impact wrought by the district’s policies and recommendations to remedy the inequalities in the school system. It says that the policies and practices in effect impact different populations unfairly, even if those policies have a neutral intent.

The South Orange-Maplewood School District is among the New Jersey school districts with the highest racial disparities in tracking and student discipline. While white students make up slightly less than half of the student body, 70 percent of the higher-level classes are filled by white students, while 70 percent of the lower-level classes are filled by black students.

“Researchers know two things: tracking provides no concrete benefit and even harms students, and out-of-school suspension should be treated as a last resort because of its disruptive effects on both children and the learning environment,” said Courtney Bowie, an attorney with the ACLU's Racial Justice Program. "The small investment of time and resources for South Orange-Maplewood to overhaul these two conventions will pay off in the form of more engaged students who perform at higher levels than their peers in other schools.”

Based on the same data from the 2011-2012 school year, black students had a 15.9 percent chance of being suspended, compared to the overall suspension risk of 10.7 percent. Black students were also more than 4.5 times more likely to face out-of-school suspension than their white peers, while Hispanic students were slightly more than twice as likely to face out-of-school suspension compared to their white peers. Additionally, despite federal and state mandates requiring support and accommodation for students with disabilities, these students are more than 2.5 times as likely to face out-of-school suspension as their peers. Independent of disability status, black students have a 16.1 percent suspension rate versus white students’ rate of 2.7 percent.

The personal story of a student of color, plaintiff C.B., illustrates the effects of the disparate impact of the district’s practices and policies in the lives of individual young people. This student, an academically high-performing sophomore, met the pre-requisites for placement in Advanced Placement Calculus. Despite her stellar academic record, she was not recommended for the course she would have needed to take to qualify for AP Calculus. Her teachers had consistently placed her in the class level below the highest level without her parents’ knowledge and with no explanation. Repeatedly, when her s parents asked why her daughter was not placed in the highest level, school staff could not provide an answer.

“We hope that our action will prompt the district to replace its detrimental reliance on exclusion with methods that will improve the school climate for all children and dramatically reduce the large discipline gap along the lines of race and disability status documented in the complaint,” said Daniel Losen, director of the Center for Civil Rights Remedies of the Civil Rights Project at UCLA. “Ultimately, anti-discrimination law requires the rejection of the status quo in the South Orange-Maplewood School District. All students, regardless of their race or disability status, must be afforded access to a rigorous curriculum in a safe and supportive environment. By closing the access and discipline gaps we believe the district will also make strides in closing the achievement gap.”

Among the recommendations, the complaint proposes some of the following steps for reform:

  • Replace tracking with a standard curriculum for students of all levels, with supplementary instruction for students who need it. Such reform in Rockville Center, New York, resulted in a dramatic narrowing of the achievement gap.
  • Reserve out-of-school suspension for only the most extreme cases of harm, focusing instead on dealing with behavior directly. School districts that have removed suspension as a routine disciplinary measure have found greater learning outcomes among the students affected.
  • Partner with experts, community members, and the complainants to reduce the adverse impact on students.

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