In June 2020, the New Jersey Department of Education (NJDOE) revised the 2014 standards mandating the teaching of sexual health and physical education in New Jersey Public Schools. NJDOE intended the new standards to be implemented in the 2022-23 school year. Some boards purportedly refused to adopt them or attempted to have them implemented in a manner that was not as intended by NJDOE.[1]

In Public Advisory Opinion A12-22,[2] the New Jersey School Ethics Commission (SEC) waded into the controversy when it responded to a request for an Advisory Opinion which asked whether a board member would violate the School Ethics Act,[3] (Act) if s/he votes in the affirmative on a board motion to refuse to implement the New Jersey Student Learning Standards (NJSLS) for the Comprehensive Health and Physical Education for the 2022-23 school year, and/or votes in the affirmative on a board motion to change the application of N.J.S.A. 18A:35-4.7 from “opt-out” to “opt-in.”[4]

Since the requestor did not identify which provision of the Act would be violated, the SEC evaluated the failure to adopt the standards as a potential violation of N.J.S.A. 18A:12-24.1(a), which requires board members to uphold and enforce all laws, rules, and regulations of the New Jersey State Board of Education (NJSBE), as well as court orders pertaining to the schools. It also provides that school officials can only achieve desired changes in the law through legal and ethical procedures. To prove a violation under N.J.S.A. 18A:12-24.1(a), a complainant must present a copy of a final decision from any court or law or administrative agency of this State demonstrating that the school official failed to enforce laws, rules, or regulations as alleged.

Accordingly, the SEC concluded that the Act would be violated if such a final decision were to be issued, and it is shown that a school official had acted contrary to the law.[5] The SEC reasoned that the NJSBE establishes State educational goals and standards. It is also required to ensure that curriculum and instruction are designed and delivered in a manner such that all students can demonstrate the knowledge and skills specified by the NJSLS.  The State Board must also ensure that appropriate instructional adaptations are designed and delivered in districts.[6]

The Advisory also explained that the New Jersey Quality Single Accountability Continuum System (QSAC) monitors district compliance in five component areas for district effectiveness. The areas are instruction and program, personnel, fiscal management, operations, and governance. QSAC evaluates the extent to which districts are delivering a thorough and efficient education. As part of this evaluation, districts are required to assess the health and physical education curricula to ensure they are aligned with the state’s mandated standards.[7]

The SEC further explained that under N.J.S.A. 18A:35-4.7, parents/guardians can “opt-out” of any part of the instruction in health, family life education, or sex education that conflicts with the child’s/parents’ conscience, or sincerely held moral or religious beliefs, by presenting the principal with a signed statement. The child will be excused from that specific portion of the course without penalty as to credit or consequence for graduation.[8]

The SEC concluded that boards have a “clear and unequivocal” duty to ensure that curriculum and instruction are designed and provided in a manner that all students can demonstrate the knowledge and skill specified in the standards. The duty cannot be waived, and such a waiver can negatively affect QSAC scores.[9]

The SEC was also asked to examine whether individual school officials violate that Act by affirmatively voting to change the application of N.J.S.A. 18A:35-4.7, and requiring parents to “opt-in” as opposed to “opt-out” of health, family education, or sex education. The SEC noted that Board members are required to follow the Board Member Code of Ethics at N.J.S.A. 18A:12-24.1(a), which directs board members to uphold and enforce all laws, rules, and regulations of the State Board of Education, and applicable court orders. The same section mandates that desired changes may only be accomplished through legal and ethical procedures.[10]

The factual evidence required by the Act to sustain such a violation must include a final decision from any court or administrative agency of this State that shows a school official acted contrary to the laws, rules, or regulations promulgated by the State Board. But even if a school official is not found to have violated N.J.S.A. 18A:12-24.1(a), if the board refuses to implement the NJSLS for Comprehensive Health and Physical Education, or has changed the application of N.J.S.A. 18A:35-4.7 from “opt-out” to “opt-in,” the board, as a public body, would be violating both the NJSLS and N.J.S.A. 18A:35-4.7, and there could be resulting consequences.[11]

The SEC cautioned that boards and school officials are required to ensure that curriculum and instruction are properly aligned with the NJSLS. Though differences of opinion and the discussion of the same can lead to different future determinations, the time to do so regarding the 2020 Comprehensive Health and Physical Education standards has passed. At the time the SEC published this Advisory Opinion, it noted it was not aware of a decision finding that individual school officials or a board violated the law due to their failure to adopt and comply with the standards. But the SEC was convinced that a board’s refusal or failure to comply with the NJSLS for Comprehensive Health and Physical Education could lead to a final decision that would constitute a violation under N.J.S.A. 18A:12-24.1(a).[12]

The SEC further cautioned that school officials must be mindful of their duty to protect the public trust and to honor their obligation to serve in the public interest. Additionally, the only way for school officials to safeguard against violating the Act is to always avoid conduct that has the appearance of violating the Act.[13]

There are some New Jersey boards that have not instituted the NJSLS for Comprehensive Health and Physical Education. The Commissioner of Education has advised that this choice will impact districts on QSAC.[14]

The SEC advisory opinion reminds all school officials of their obligations under the Act. In the event that a conflict arises between board action/policy and State statutes, regulations, or State Board of Education mandates, it is important to consult the board attorney.