Understanding Institutional Obligations To Children Experiencing Trauma II: New Jersey State Law On School-Based Responsibilities
Emily Stein
April 2016
This memo is the second in a series of documents prepared as part of the Center on Law, Inequality & Metropolitan Equity's (CLiME) Trauma, Schools, and Poverty project. The classroom, as the centerpiece of a child’s daily life, is one place where theneeds of childhood trauma victims can be both collectively and individually addressed. CLiME does not assume that existing special education or antidiscrimination law in schools is the optimal means for protecting or supporting victims of childhood trauma; however, we commence this research by investigating whether schools have a duty to act in support of these students under the current regime and, if so, what actions are required. Initial research at the pre-drafting stage of this project informed CLiME’s decision to first consider special education and antidiscrimination law, and its applicability to our work. More specifically, the antidiscrimination framework will be analyzed through the lens of disability to determine whether children suffering from trauma belong to that protected class and are therefore entitled to certain legal rights. The scope of this memo is limited to New Jersey State law and addresses the following questions:
Do schools in New Jersey have a duty to act to prevent, intervene, or accommodate the proliferation of trauma among its student population?
For what purpose were the current special education and antidiscrimination laws in New Jersey drafted?
Who qualifies as a “disabled” or “handicapped” child protected by the State’sspecial education and antidiscrimination law and to what services/accommodations are these individuals expressly entitled by command of the law? Are victims of childhood trauma likely to qualify as“disabled” or “handicapped” under State law?
What are the main charges of the State’s special education law? Specifically, does the school have an affirmative duty to “find” children with disabilities among the student population and what action is required once a student is identified?
Within the context of disability protection, what is the promise of NewJersey’s antidiscrimination law and whom does it protect?
Is there additional law that requires schools to address learning, health, or behavior of students who are no necessarily classifiable under special education law or due accommodations under the antidiscrimination statutes?
More students qualify for special education under New Jersey State Law than are covered under IDEA, the federal special education legislation. All qualifying students under IDEA (as well as socially maladjusted students) are covered by the State code and are entitled to a free appropriate public education (FAPE), identical to the FAPErequirement in IDEA. Just as the State’s special education legislation parallels and expands upon federal law (IDEA, specifically), the State’s antidiscrimination legislation has alsobeen invoked to parallel and expand upon the scope of the Americans with Disabilities Act(ADA) within schools. The State’s Law Against Discrimination (NJLAD) is similar to tothe ADA overall; however, the threshold for proving injury is considered to be lower. NewJersey’s early Intervention and Referral Services program under Title 6A (I&RS) mandates that schools be proactive in creating a coordinated plan for intervening if students are experiencing difficulties with learning or behavior.
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