For months, New Jersey’s Department of Education has suggested districts that refuse to adopt its controversial, mandatory state sex education standards — which go into effect this year — could face “disciplinary action.”

But it repeatedly declined to say what that discipline might look like, even as some school boards rejected the standards entirely, responding to parents who worried lessons would be too graphic or explicit. Some parents have understood the standards to call for discussions on topics they believe should be addressed at later ages, such as sexual orientation and gender expression.

Now, the state is pointing to a law that, in some circumstances, could lead to the state appointing officials who can overrule a superintendent in an area where required assessments say a district is coming up short — like the quality of instruction it provides. The state could even appoint hand-picked members to a board of education.

But the department, in a message to Gothamist, stopped short of saying it would make those sorts of aggressive moves. It instead said the New Jersey Quality Single Accountability Continuum — the state’s mechanism for evaluation of districts — provides “one mechanism” for monitoring compliance with state standards.

And the same law lays out a number possible steps the state could take, depending on its findings about just how far off a district is from achieving state standards — not just for health and sex ed, but in a variety of measures. The least intrusive steps involve corrective plans and monitoring. Typically, the ramp-up to more aggressive measures takes years.

The New Jersey School Boards Association said the sex ed standards, adopted in 2020, “address topics that students should know about,” like personal growth and development, pregnancy and parenting, and social and sexual health. The standards discuss health conditions, diseases, personal safety and other topics related to health and sexual education.

The standards also set benchmarks for when students should be introduced to certain concepts. By the fifth grade, “all individuals should feel welcome and included regardless of their gender, gender expression, or sexual orientation,” they state. By grade eight, a student should know “inclusive schools and communities are accepting of all people and make them feel welcome and included,” according to the standards.

Controversy erupted earlier this year, after Westfield schools released some of the state’s sample lessons. Sketches in a folder marked “by the end of grade 2,” for instance, included drawings of naked boys and girls, including pictures of genitals. But those specific lessons and illustrations are not mandatory. Districts still adopt their own curricula, but they have to meet the objectives set out in the standards.

Still, a small handful of districts have refused to teach the standards at all, citing parents’ complaints that lessons would be too explicit, or that they address topics better taught in older grades or in discussions at home.

Others have implemented novel measures, like East Hanover, where Superintendent Natalee Bartlet sent a letter to parents last spring saying lessons based on the new standards would only be taught on a single day of class, when parents could keep children home.

And at local school board meetings, district leaders have been wondering aloud if state education officials will pressure them into compliance with the standards.

“Now what?” Warren school district Board of Education President David Brezee said Aug. 29, when that body deadlocked 4-4 on implementing a new curriculum that applied the standards. Without a majority vote, the district’s previous curriculum, adopted in 2019, remains in effect. “It feels like we’re in a little bit of uncharted water here.”

The school district’s legal counsel, Frances L. Febres, suggested that failure to adopt the state standards could result in a loss of state funding, civil liability and ethics charges. The state could even go after teachers’ or administrators’ licenses and certifications, she said.

“There is a reason why boards of education are required to have legal counsel,” Febres told the board. “It's because it's very costly when boards of education have to engage in litigation because they didn't comply.”

And the district’s superintendent, Matthew Mingle, said the stakes were high.

“I just want to make clear that the board has directed the administration to be out of compliance with state law, whatever the ramifications might be to the board,” Mingle said.

The looming potential clash between Democratic Gov. Phil Murphy’s state Education Department and local school districts comes as fights over sex education are taking place at school boards around the country. Some of those fights have been fueled by political interests and misinformation.

In New Jersey, a recent New Jersey Education Association advertisement criticized “extremists” for "attacking our schools” — which many Republican leaders described as an insult to concerned parents.

Open questions

The statute cited by the DOE deals with the New Jersey Quality Single Accountability Continuum, which specifies five “component areas” districts use to send self-assessments to the state. When a district falls short of an 80% ranking in at least one component area — for instance, “instruction and program” — it has to submit an improvement plan to the state commissioner of education. From there, the state monitors its improvement and can require updates to the plan.

In severe cases, when a district ranks under 50% in a core component area, it can set off a process that eventually puts the district under a “partial state intervention.” That could involve steps like the state appointing one or more professionals who can override district administrators and boards of education in the areas where a school system is falling short.

The professionals could have broad powers, controlling district funds in regard to those areas. The state Board of Education would even be able to hire and fire local district employees under recommendations from the commissioner.

The statute outlined a process that normally takes years, starting with improvement plans and monitoring before moving on to more aggressive measures. But it also said the state Board of Education can step in before a years-long monitoring period concludes.

A message from Department of Education Communications Director Laura Fredrick highlighting the statute didn’t say whether or when refusing to adopt state standards alone could trigger interventions. Fredrick said on Sept. 12 that she would look into whether someone could be available to discuss those matters, but hadn’t yet provided further information more than a week later.

For months, the state Department of Education had said districts that don’t comply would be penalized. Fredrick’s email reemphasized that, saying districts that don’t adopt the standards would be subject to “disciplinary action.”

But New Jersey officials, including Murphy, had declined to spell out what form any discipline might take.

“I don’t have a crisp answer for you,” Murphy said during his Aug. 30 appearance on call-in show “Ask Governor Murphy.”

The New Jersey School Boards Association, in an email to Gothamist last week, declined an interview about possible consequences.

“It is unclear how this will play out in practice, and our boards have not shared with us any discussions they may have had with the state Department of Education on this topic,” Janet Bamford, chief public affairs officer for the association, wrote.

Walking fine lines

New Jersey law allows any family to opt out of any part of instruction in health, family life or sex education, so long as a child’s parent or guardian informs the school in writing that the instruction conflicts with their conscience, or their moral or religious beliefs.

Middletown — the governor’s hometown — is employing what’s been broadly described as an “opt-in” system, asking every family if its children will participate in the sex education lessons.

Board of Education curriculum committee chair Kate Farley said few parents have opted out of sex education entirely, though some have chosen not to have their children take part in specific lessons. About 95% remain enrolled in the full curriculum, she said.

But if a family doesn’t reply at all, that child remains signed up for the lessons — still satisfying the state’s requirements, Farley said.

“We just wanted to make sure that parents had a chance to review everything, felt comfortable with it and were sort of affirmatively consenting to this instruction — or not, as the case may be,” she said.

Lakewood is also taking an opt-in approach — but according to a report from its superintendent posted to the district site, won’t enroll students in the "Social and Sexual Health" and "Pregnancy and Parenting" lessons without an explicit opt-in form. That district’s superintendent hasn’t returned calls seeking comment.

Several districts have voiced objections to the standards. The Sussex-Wantage school board said in a resolution in June it “expresses its disagreement” with the standards. Voicemails to the superintendent’s office over the last two weeks haven’t been returned. Garwood in Union County — like Warren Township in Somerset County — refused to adopt the standards altogether. That district’s acting superintendent, Mary Emmons, declined comment and multiple board members haven’t returned phone calls.

Fredrick, the Department of Education spokeswoman, hasn’t yet answered an emailed question about whether the state has been in touch with districts about whether their plans violate its mandate.

Murphy, during “Ask Governor Murphy,” had described Middletown as one of the communities “pretty active in the hysteria around this.”

Farley disputed that characterization, saying she’s “frustrated” by it.

She said most parents seem to trust the district’s implementation of the standards..

“The community was interested, involved and willing to listen and read and do their homework, as opposed to just sort of [having a] knee-jerk reaction to the latest headline they saw on Facebook,” Farley said.

In East Hanover, where the K-8 district plans a single day of lessons derived from the standards, board president Sean Sullivan said he’s confident the schools are meeting state standards.

“I think we're meeting the letter of the law, letter of the requirements by offering it, offering parents an opportunity to opt out, letting them know when it's going to be,” he said. “We're not going to? be in violation of what the requirements are.”

He said the district’s officials had heard their approach praised at a state Board of Education meeting as well.

He said he understands some parents’ worries about the standards..

“It’s … in the forefront of parents’ minds. ‘How is this going to happen?’” he said. “They’re still babies, in some cases. They’re still young.”

An earlier version of this story misspelled the name of Warren school district Board of Education President David Brezee.