NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0371-23
MATTHEW J. PLATKIN, Attorney General of New Jersey and SUNDEEP IYER, Director, New Jersey Division on Civil Rights,
Plaintiffs-Respondents,
v.
HANOVER TOWNSHIP BOARD OF EDUCATION and HANOVER TOWNSHIP PUBLIC SCHOOLS,
Defendants-Appellants. ____________________________
Argued November 19, 2024 – Decided February 10, 2025
Before Judges Gilson, Bishop-Thompson, and Augostini.
On appeal from the Superior Court of New Jersey, Chancery Division, Morris County, Docket No. C-000042-23. Matthew J. Giacobbe argued the cause for appellants (Cleary, Giacobbe Alfieri & Jacobs, LLC, attorneys; Matthew J. Giacobbe, of counsel and on the briefs).
Daniel Resler, Deputy Attorney General, argued the cause for respondents (Matthew J. Platkin, Attorney General, attorney; Jeremy M. Feigenbaum, Solicitor General; Mayur P. Saxena and Sara M. Gregory, Assistant Attorneys General, of counsel and on the brief; Liza Fleming, Nancy M. Trasande, Jonathan Mangel, Sarah Nealon, Douglas R. Praschak, Daniel Resler, and Amanda I. Morejón, Deputy Attorneys General, on the brief).
PER CURIAM
Hanover Township Board of Education and Hanover Township Public
Schools (collectively, the Board) appeal from an order preliminarily enjoining
the Board from implementing policies that changed how school staff would
address students' gender identifications. The question before us is whether the
trial court abused its discretion in granting the preliminary injunction while the
merits of the dispute are addressed in an administrative proceeding before the
New Jersey Division on Civil Rights (the CR Division).
Discerning no abuse of discretion, we affirm the order that enjoins the
Board from enacting the policies they adopted in May 2023 and June 2023. We
note, however, that given the length of time that has passed since the injunction
was entered, if the proceeding before the CR Division does not make reasonable
A-0371-23 2 progress soon, the Board will have the right to move before the trial court to lift
or modify the preliminary injunction.
I.
New Jersey's Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50,
prohibits discrimination in "any place of public accommodation . . . on account
of . . . sex, [or] gender identity or expression." N.J.S.A. 10:5-12(f)(1). A "place
of public accommodation" includes "any kindergarten, primary and secondary
school, trade or business school, high school, academy . . . or any educational
institution under the supervision of the State Board of Education or the
Commissioner of Education of the State of New Jersey." N.J.S.A. 10:5-5(l).
The Legislature directed the Commissioner of Education (the
Commissioner) to "develop and distribute to school districts guidelines
concerning transgender students . . . to assist schools in establishing policies and
procedures that ensure a supportive and nondiscriminatory environment for
transgender students." N.J.S.A. 18A:36-41(a). Accordingly, in 2018, the
Commissioner issued the Transgender Student Guidance for School Districts
(State Guidance). The State Guidance explains that a school district should
accept a student's asserted gender identity and "parental consent is not required."
The State Guidance further states: "There is no affirmative duty for any school
A-0371-23 3 district personnel to notify a student's parent or guardian of the student's gender
identity or expression."
In 2019, the Board adopted policy "5756-Transgender Students" (the 2019
Policy). The 2019 Policy stated:
The school district shall accept a student's asserted gender identity; parental consent is not required. A student need not meet any threshold diagnosis or treatment requirements to have his or her gender identity recognized and respected by the school district, school, or school staff members. In addition, a legal or court-ordered name change is not required. There is no affirmative duty for any school district staff member to notify a student's parent of the student's gender identity or expression.
On May 16, 2023, the Board adopted policy "8463-Parental Notice of
Material Circumstances" (the New Policy). The New Policy required parental
notification when school staff became aware of "any facts or circumstances that
may have a material impact on the student's physical and/or mental health, safety
and/or social/emotional well-being, including, without limitation [to] . . . sexual
orientation[,] transitioning[,] gender identity or expression." In that regard, the
New Policy provided:
All school staff members (certificated and non- certificated personnel) and administrators shall take all necessary steps - including notifying appropriate school administrators (e.g., the Principal and/or his/her designee) - to immediately, fully and accurately inform
A-0371-23 4 a student's parent(s) whenever such staff member is made aware of, directly or indirectly, any facts or circumstances that may have a material impact on the student's physical and/or mental health, safety and/or social/emotional well-being, including, without limitation [to] . . . sexual activity[,] sexuality[,] sexual orientation[,] transitioning[,] gender identity or expression . . . .
The following day, on May 17, 2023, the New Jersey Attorney General
and the Director of the New Jersey Division on Civil Rights (collectively, the
Attorney General) filed an administrative complaint with the CR Division
alleging that the Board's New Policy violated the LAD. In that regard, the
Attorney General asserted that the New Policy unlawfully discriminated against
students based on their gender identity and gender expression.
Simultaneously with filing that administrative complaint, the Attorney
General filed a verified complaint in the Chancery court seeking to preliminarily
restrain the Board from implementing the New Policy while the administrative
proceeding was being conducted. On May 18, 2023, the trial court issued a
temporary injunction restraining the Board from implementing the New Policy.
The court also requested the parties to try to negotiate a revised policy.
On June 13, 2023, the Board adopted "8463-Parental Notice Required"
(the Revised Policy). The Revised Policy omitted any reference to a student's
sexuality, sexual orientation, transition status, gender identity, or expression.
A-0371-23 5 Instead, the Revised Policy directed school staff to notify a student's parents
"whenever a student discloses an issue and/or exhibit[ed] behaviors that may
have an adverse impact on the student's physical and/or mental health, safety
and or social/emotional well-being." Specifically, the Revised Policy stated, in
relevant part:
All staff members (certificated and non-certificated personnel) and administrators shall take necessary steps - after first notifying and consulting with an appropriate school administrator (e.g., the Principal and/or his/her designee) - to promptly inform a student's parent(s) whenever a student discloses an issue and/or exhibits behaviors that may have an adverse impact on the student's physical and/or mental health, safety and or social/emotional well-being. Such notification cannot be based solely on a student's actual and/or perceived protected characteristics under the [LAD], N.J.S.A. 10:5-12(f). Parental notification is required under this policy when there is an observation and/or indicia of an adverse impact on the student's physical and/or mental health, safety and or social/emotional well-being. The notification shall be made by the appropriate administrator and/or staff member.
Shortly thereafter, the Board issued "District Regulation 8463-Parental
Notification Required" (the Regulation). The Regulation provides guidance on
the Revised Policy and identifies circumstances where school staff must notify
a student's parent. In that regard, the Regulation states: "In addition to the
parental notification required pursuant to [the Revised Policy], the following
A-0371-23 6 Board Policies also require parental notification about matters affecting the
health and/or safety of their children, including . . . 5756 (Transgender
Students)."
On August 10, 2023, the Attorney General moved to amend his pleadings,
seeking to restrain the Board from implementing both the New and Revised
Policies. Shortly thereafter, the trial court granted the Attorney General's
request for a temporary restraint against both Policies and allowed the Attorney
General to amend his complaint.
On September 11, 2023, the Board repealed the 2019 Policy. The
Attorney General responded by immediately moving to reinstate the 2019
Policy.
On September 29, 2023, the trial court granted the Attorney General's
request for a preliminary injunction enjoining the Board from "enforcing,
implementing, or otherwise giving effect" to either the New or Revised Policies
until the resolution of the pending CR Division action. In support of that ruling,
the trial court issued a written opinion.
In its written opinion, the trial court analyzed the factors that must be
established to obtain injunctive relief. See Garden State Equal. v. Dow, 216 N.J.
314, 320-21 (2013); Crowe v. De Gioia, 90 N.J. 126, 132-34 (1982). First, the
A-0371-23 7 trial court found that the Attorney General had a likelihood of success on the
merits because the Revised Policy unlawfully discriminated against students
based on their gender identity. In reaching that conclusion, the trial court
reasoned that the LAD prohibits discrimination based on gender identity or
expression and the Revised Policy treated students differently based on their
gender identity. The trial court also found that the Revised Policy had an
"impermissible presumption" that students who expressed a different gender
identification were or likely would experience "'an adverse impact on . . .
physical and/or mental health, safety and/or social/emotional well-being.'"
Addressing the threat of irreparable harm, the trial court found that the
Revised Policy, if enacted, would subject students to a substantial risk of harm,
including to students' mental health and physical well-being. The court also
pointed out that many of the terms in the Revised Policy were vague and
undefined and, therefore, would likely create situations that adversely affected
students, as well as school staff members.
Concerning the relative hardships to the parties, the trial court found that
students and school staff would experience greater hardships if the injunction
was not enacted. In contrast, the court found there was no real harm to the Board
if the New and Revised Policies were enjoined.
A-0371-23 8 The trial court also considered the Board's claims concerning the
constitutional rights of parents. The court reasoned that restraining the Revised
Policy would not infringe on parents' rights because the Revised Policy did not
limit a parent's right to educate and raise their children.
Finally, the trial court denied the Attorney General's request to compel the
Board to reinstate the 2019 Policy. The court found that the 2019 Policy was
not a mandatory policy, a point conceded by the Attorney General. The court
also pointed out that the LAD provided protection for students even without the
2019 Policy.
The Board now appeals from the September 29, 2023 order granting the
preliminary injunction.
II.
On appeal, the Board makes six main arguments. It contends that the trial
court erred in (1) finding a settled legal right; (2) determining a likelihood of
success on the merits; (3) finding a showing of irreparable harm; (4) balancing
the harms; (5) not considering the harm to the public interest; and (6) enjoining
the New Policy, which had already been repealed.
Preliminary injunctive relief is appropriate when the moving party
establishes: "(1) a likelihood of success on the merits; (2) irreparable harm; (3)
A-0371-23 9 a showing that on balance the harm to the moving party is greater than the harm
to the party to be restrained; and (4) [that] the public interest will not be
harmed." In re Newark, 469 N.J. Super. 366, 387 (App. Div. 2021) (first citing
Crowe, 90 N.J. at 132-34; and then citing Brown v. City of Paterson, 424 N.J.
Super. 176, 183 (App. Div. 2012)). See also Garden State Equal., 216 N.J. at
320-21 (explaining the factors that must be found to support preliminary
injunctive relief).1
Courts may take a less rigid view of the Crowe factors when injunctive
relief is "merely designed to preserve the status quo." Waste Mgmt. of N.J., Inc.
v. Morris Cnty. Mun. Utils. Auth., 433 N.J. Super. 445, 453 (App. Div. 2013)
(quoting Waste Mgmt. of N.J., Inc. v. Union Cnty. Utils. Auth., 399 N.J. Super.
508, 520 (App. Div. 2008)) (internal quotation marks omitted). In that regard,
"we have recognized the important role the public interest plays when
implicated" and "have held 'that courts, in the exercise of their equitable powers,
may, and frequently do, go much farther both to give and withhold relief in
furtherance of the public interest than they are accustomed to go when only
private interests are involved.'" Waste Mgmt., 433 N.J. Super. at 454 (quoting
1 Courts sometimes describe the Crowe factors slightly differently, but the key factors that must be satisfied to grant injunctive relief are well-established. A-0371-23 10 Waste Mgmt., 399 N.J. Super. at 520-21) (internal quotation marks omitted).
See also Brown, 424 N.J. Super. at 183 (recognizing the importance of the public
interest in balancing the factors).
"An appellate court applies an abuse of discretion standard in reviewing a
trial court's decision to grant or deny a preliminary injunction." Rinaldo v. RLR
Inv., LLC, 387 N.J. Super. 387, 395 (App. Div. 2006). "An abuse of discretion
occurs when the court's decision is made without rational explanation,
inexplicably departs from established policies, or rests upon an impermissible
basis." In re T.I.C.-C., 470 N.J. Super. 596, 606 (App. Div. 2022) (citing Flagg
v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).
1. The Likelihood of Success on the Merits.
The LAD was enacted to eradicate "the cancer of discrimination,"
Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 600 (1993) (quoting Fuchilla v.
Layman, 109 N.J. 319, 334 (1988)) (internal quotation marks omitted), and it
allows for "a full range of legal and equitable remedies" to prevent unlawful
discrimination in a place of public accommodation, L.W. ex rel. L.G. v. Toms
River Reg'l Schs. Bd. of Educ., 381 N.J. Super. 465, 489 (App. Div. 2005). "A
'place of public accommodation' includes 'any kindergarten, primary and
secondary school, trade or business school, high school, academy, college and
A-0371-23 11 university, or any educational institution under the supervision of the State
Board of Education, or the Commissioner of Education of the State of New
Jersey.'" Id. at 485 (quoting N.J.S.A. 10:5-5(l)).
The LAD makes it unlawful for schools to subject individuals to
discrimination based on their "gender identity or expression," N.J.S.A. 10:5 -
12(f)(1), which the statute defines as "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," N.J.S.A. 10:5-5(rr). See also C.V. ex rel.
C.V. v. Waterford Twp. Bd. of Educ., 255 N.J. 289, 311 (2023) (recognizing
that a student may state a claim under the LAD for discriminatory conduct based
on their gender identity or expression).
Claims of unlawful discrimination in violation of the LAD may be based
on two separate theories of harm: (1) disparate treatment; and (2) disparate
impact. Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 81-82 (1978).
"Disparate treatment is demonstrated when a member of 'a protected group is
shown to have been singled out and treated less favorably than others similarly
situated on the basis of an impermissible criterion' . . . ." Mandel v.
UBS/PaineWebber, Inc., 373 N.J. Super. 55, 74 (App. Div. 2004) (quoting
EEOC v. Metal Serv. Co., 892 F.2d 341, 347 (3d Cir. 1990)). "Disparate impact"
A-0371-23 12 occurs where the treatment of different groups "fall[s] more harshly on one
group than another." Peper, 77 N.J. at 81.
The trial court found that the Attorney General had a likelihood of success
on the merits because the Revised Policy "opened the door to differential
treatment based upon students' protected status, creating a condition where staff
members and administrators may engage in activities violative of the LAD."
Specifically, the trial court found that "a student's protected status under the
LAD may . . . be unlawfully used to determine whether parental reporting is to
occur as a result of subjective perception that a student suffered 'an adverse
impact' of their 'physical and/or mental health, safety, and/or social/emotional
well-being.'"
The Board argues that the trial court erroneously "presumed that school
personnel equate protected characteristics with adverse impact[s] triggering
parental notification" and pointed out that "there is no language in the [Revised]
[P]olicy authorizing consideration of protected characteristics." However, the
text of the New Policy expressly identified "sexual orientation; transitioning;
[and] gender identity or expression" as examples of "facts or circumstances that
may have a material impact on the student's [health]." This highlights the
intended purpose behind the Revised Policy, which the Board enacted only a
A-0371-23 13 few weeks later. See State, Twp. of Pennsauken v. Schad, 160 N.J. 156, 170
(1999) ("If [a] text . . . is susceptible to different interpretations, the court
considers extrinsic factors, such as the statute's purpose, legislative history, and
statutory context to ascertain the legislature's intent.").
Thus, we discern no abuse of discretion concerning the trial court's
preliminary finding. The LAD expressly bars discrimination based on "gender
identity or expression." N.J.S.A. 10:5-12(f)(1). That prohibition applies to the
disparate treatment that would result from the Revised Policy. Peper, 77 N.J. at
81-82; see also N.J.S.A. 10:5-12(f)(1) (prohibiting any place of public
accommodation from engaging in discrimination, whether "directly or
indirectly").
The Board also argues that the substantive issues concerning the New and
Revised Policies are not well-settled because there is no "precedent on the issue
of parental notification policies." The lack of direct precedent, however, does
not make the trial court's determination an abuse of discretion. The New Jersey
Supreme Court has recognized that the "eradication of discrimination is a public
interest," Rodriguez v. Raymours Furniture Co., 225 N.J. 343, 356 (2016), and
that "[d]iscrimination based on gender is 'peculiarly repugnant,'" Lehmann, 132
N.J. at 600 (quoting Grigoletti v. Ortho Pharm. Corp., 118 N.J. 89, 96 (1990)).
A-0371-23 14 Consequently, there is well-established law supporting the trial court's finding
of a likelihood of success on the merits.
Moreover, the Attorney General has a well-settled right to seek injunctive
relief while an administrative action is proceeding. The Legislature expressly
empowered the Attorney General to proceed "in a summary manner in the
Superior Court of New Jersey to obtain an injunction prohibiting" any person or
entity that "has engaged in, is engaging in, or is about to engage in any practic e
declared to be unlawful" by the LAD. N.J.S.A. 10:5-14.1. In short, that express
statutory authority, combined with the LAD's express prohibition barring
discrimination based on "gender identity or expression," supports the trial
court's finding of a likelihood of success on the merits.
2. Irreparable Harm.
Concerning students, the risks of harm the trial court identified included
mental health issues, infliction of physical or emotional harm by immediate
family members, and housing instability. In making that finding, the trial court
pointed to "Issues Impacting LGBTQ Youth" by The Trevor Project and "The
Report of the 2015 U.S. Transgender Survey" by The National Center for
Transgender Equality. Additionally, the trial court identified several risks of
harm concerning school staff. In that regard, the court found that "[t]he Revised
A-0371-23 15 Policy . . . has the potential to cause irreparable harm to school staff if they
misinterpret or fail to report all . . . 'behaviors that may have an adverse impact
on the student's physical and/or mental health, safety and or social/emotional
well-being.'" In short, the trial court determined that the Revised Policy "will
subject staff to discipline if they fail to correctly interpret [its] vague terms ."
The Board now argues that the trial court erred (1) by considering the
studies, which it contends are conclusory and inconsistent with respected
medical opinions; and (2) by incorrectly interpreting the Revised Policy to
subject school staff to discipline. We are not persuaded by those contentions.
"[A] preliminary injunction is customarily granted on the basis of
procedures that are less formal and evidence that is less complete than in a trial
on the merits." Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). See also
Boynes v. Limetree Bay Ventures LLC, 110 F.4th 604, 610 (3d Cir. 2024)
("[C]ourts typically grant preliminary injunctions based on relaxed procedures
and incomplete evidence."). Accordingly, New Jersey courts have adopted a
flexible approach when evaluating probative information presented at a
preliminary proceeding. See Planned Parenthood of Cent. N.J. v. Farmer, 165
N.J. 609, 640 n.10 (2000) (taking judicial notice of a report in assessing the
grounds for a preliminary injunction).
A-0371-23 16 We discern no abuse of discretion in the trial court's determinations
concerning irreparable harm. In finding risks of irreparable harm, the trial court
relied primarily on the two studies in the record. The trial court implicitly
decided that these studies were credible, and that decision is entitled to
substantial deference. See Est. of Hanges v. Metro. Prop. & Cas. Ins. Co., 202
N.J. 369, 383-84 (2010) (citing Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492
(1999) (concluding that "[t]he trial court is granted broad discretion in
determining both the relevance of the evidence to be presented and whether its
probative value is substantially outweighed by its prejudicial nature")).
To the extent that the Board seeks to introduce studies to the contrary, we
note that it presented these studies to the trial court, and the trial court found
them to be unavailing. Moreover, the trial court did consider the Board's
arguments regarding potential harm to children absent disclosure but found it to
be without merit. Accordingly, we discern no abuse of discretion in the trial
court's finding that there was a substantial risk of irreparable harm to students
that supported injunctive relief.
We also reject the Board's argument concerning irreparable harm to school
staff under the Revised Policy. The Revised Policy provides: "[S]taff members
(certificated and non-certificated personnel) and administrators shall take
A-0371-23 17 necessary steps . . . to promptly inform a student's parent(s) whenever a student
discloses an issue and/or exhibits behaviors that may have an adverse impact on
the student's physical and/or mental health, safety and or social/emotional well -
being." The Regulation, the guidance on how the Revised Policy would be
implemented, does not explain what constitutes an "adverse impact" that would
trigger parental notification. Consequently, school staff who misinterpret the
vague language within the Revised Policy may be subject to discipline. When
asked about "the potential for discipline," the Board declined to give specifics
and simply stated that "the teacher[s] should be reporting anyway." However,
staff members who comply with the Revised Policy could find themselves liable
for violating the LAD. See N.J.S.A. 10:5-12(f)(1) (establishing that it is
unlawful for any "owner . . . manager, superintendent, agent, or employee of any
place of public accommodation" to engage in discriminatory practices);
N.J.S.A.10:5-12(e) (making it unlawful for "any person, whether an employer
or an employee or not" to aid or abet any violation of the LAD). Accordingly,
we discern no error in the trial court's consideration of the potential harm to
school staff.
A-0371-23 18 3. The Balance of the Harms and the Public Interest.
The trial court also found that the balance of the harms and the public
interest both supported injunctive relief. The Board argues that the trial court
erred by failing to consider the "countervailing" and "irreparable harm to
parental [c]onstitutional rights," specifically the harm to the parent-child
relationship. Additionally, the Board again challenges the trial court's findings
of irreparable harm under the Revised Policy. The constitutional argument, for
the reasons discussed below, is unpersuasive. Further, we note that the Attorney
General sought the injunction against the Board, and that no parents are parties
to this litigation or in the administrative proceeding before the CR Division.
Regarding the findings of irreparable harm, the trial court appropriately
found, relying on several studies, that the Revised Policy would harm students
by discriminating against them based on their gender identity and expression.
Additionally, the trial court found that the Revised Policy would harm school
staff by subjecting them to discipline for failing to abide by its disclosure
requirements. The New Jersey Supreme Court has recognized that the
"eradication of discrimination is a public interest." Rodriguez, 225 N.J. at 356.
Given the harm faced by students under the Revised Policy, and strong public
interest in preventing discrimination, we discern no abuse of discretion in the
A-0371-23 19 trial court's determination that the balance of harms supported granting
injunctive relief.
III.
In opposing the injunction on the New and Revised Policies, the Board
makes two additional arguments. First, the Board argues that the injunction will
compel them to violate parents' fundamental rights protected under the
Fourteenth Amendment. Second, the Board argues that the trial court erred in
adjudicating a moot issue by enjoining it from enforcing the New Policy, which
it had previously repealed and replaced.
1. Parents' Fundamental Rights Under the Fourteenth Amendment.
The Fourteenth Amendment grants parents the right "to make decisions
concerning the care, custody, and control of their children." Troxel v. Granville,
530 U.S. 57, 66 (2000). See also Washington v. Glucksberg, 521 U.S. 702, 720
(1997) (citing Meyer v. Nebraska, 262 U.S. 390 (1923)) ("the Due Process
Clause includes the right[] . . . to direct the education and upbringing of one's
children"); Prince v. Massachusetts, 321 U.S. 158, 166 (1944) ("the custody,
care and nurture of the child reside first in the parents"). Accordingly, the New
Jersey Supreme Court has recognized that right. See Moriarty v. Bradt, 177 N.J.
84, 115 (2003) (identifying "the fundamental right of parents to raise their
A-0371-23 20 children as they see fit"); Fawzy v. Fawzy, 199 N.J. 456, 476 (2009)
(acknowledging "the fundamental right of parents to make decisions regarding
custody, parenting time, health, education, and other child-welfare issues").
Notwithstanding, we have recognized that in certain circumstances "the parental
right to control the upbringing of a child must give way to a school's ability to
control curriculum and the school environment." Dempsey v. Alston, 405 N.J.
Super. 499, 512 (App. Div. 2009) (quoting C.N. v. Ridgewood Bd. of Educ., 430
F.3d 159, 182 (3d Cir. 2005)) (internal quotation marks omitted).
The Board asserts that the injunction compels them to violate parents'
fundamental rights by "depriv[ing] parents of fundamental information critical
to their ability to actively guide and foster their children's moral and psycho-
social development." In rejecting this argument, the trial court reasoned that the
Attorney General's "action is not targeting parental rights per se, but rather the
policies promulgated by the Board that purportedly subject a protected class to
discrimination in violation of the LAD."
A review of the record confirms that the injunction does not infringe on
parents' fundamental rights under the Fourteenth Amendment. Although parents
have the right to control their child's upbringing, Dempsey, 405 N.J. Super. at
512, caselaw from the United States Supreme Court, the Third Circuit, and New
A-0371-23 21 Jersey has not extended this right to require schools to affirmatively provide
parents with information. See generally Anspach ex rel. Anspach v. City of
Phila., Dep't of Pub. Health, 503 F.3d 256, 262 (3d Cir. 2007) (finding no
"constitutional obligation on state actors to contact parents of a minor").
Additionally, as the Attorney General correctly points out, the injunction
does not prevent students from voluntarily sharing information about their
gender identity or expression with their parents. As the Third Circuit held in
J.S. ex rel. Snyder v. Blue Mountain School District, "[a] conflict with the
parents' liberty interest will not be lightly found, and, indeed, only occurs when
there is some 'manipulative, coercive, or restraining conduct by the State.'" 650
F.3d 915, 933-34 (3d Cir. 2011) (quoting Anspach, 503 F.3d at 266). The Third
Circuit further explained that "parents' liberty interest[s] will only be implicated
if the state's action 'deprived them of their right to make decisions concerning
their child,' and not when the action merely 'complicated the making and
implementation of those decisions.'" Id. at 934 (quoting C.N., 430 F.3d at 184).
Applying this logic, the preliminary injunction does not implicate or
interfere with parents' rights under the Fourteenth Amendment. The 2019 Policy
does not impose the kind of "constraint or compulsion" that the United States
Supreme Court and the New Jersey Supreme Court has found violative of
A-0371-23 22 parental rights. Anspach, 503 F.3d at 264. Instead, the 2019 Policy directs
school staff to refer to students by their preferred gender identity without
requiring the school to obtain parental consent or to affirmatively notify parents.
Because the injunction does not intrude on parents' constitutionally
protected rights, it should be upheld so long as it is "rationally related to the
achievement of a legitimate state interest." State v. Pimentel, 461 N.J. Super.
468, 491 (App. Div. 2019) (quoting State v. Lagares, 127 N.J. 20, 34 (1992))
(internal quotation marks omitted). Here, the Attorney General has a legitimate
interest in preventing discrimination based on gender identity or expression.
N.J.S.A. 10:5-12(f)(1). The Attorney General's action, in enjoining the Board
from affirmatively disclosing a students' transgender status to their parents, is
rationally related to that goal.
2. The Board's Mootness Argument.
"[C]ourts will not decide cases in which the issue is hypothetical, [or] a
judgment cannot grant effective relief[.]" Stop & Shop Supermarket Co. v.
Cnty. of Bergen, 450 N.J. Super. 286, 291 (App. Div. 2017) (all but first
alteration in original) (quoting Cinque v. N.J. Dep't of Corr., 261 N.J. Super.
242, 243 (App. Div. 1993)) (internal quotation marks omitted). "Mootness is a
threshold justiciability determination rooted in the notion that judicial power is
A-0371-23 23 to be exercised only when a party is immediately threatened with harm." Ibid.
(quoting Betancourt v. Trinitas Hosp., 415 N.J. Super. 301, 311 (App. Div.
2010)). "An issue is 'moot when [a court's] decision sought in a matter, when
rendered, can have no practical effect on the existing controversy.'" Redd v.
Bowman, 223 N.J. 87, 104 (2015) (quoting Deutsche Bank Nat'l Tr. Co. v.
Mitchell, 422 N.J. Super. 214, 221-22 (App. Div. 2011)).
The voluntary cessation of unlawful conduct does not automatically
render an issue moot. Delanoy v. Twp. of Ocean, 245 N.J. 384, 402 n.5 (2021)
(citing City of Mesquite v. Aladdin's Castle Inc., 455 U.S. 283, 289 n.10 (1982)).
In that regard, voluntary cessation will only moot a case when a defendant can
demonstrate that "there is no reasonable expectation that the wrong will be
repeated," which is a particularly heavy burden. Galloway Twp. Bd. of Educ.
v. Galloway Twp. Educ. Ass'n, 78 N.J. 25, 42 (1978) (quoting U.S. v. W.T.
Grant Co., 345 U.S. 629, 632-33 (1953)) (internal quotation marks omitted).
That a dispute concerns the "legality of the challenged practice[]" and the
"public interest [weighs in favor of] having the legality of the practices settled"
militates against a finding of mootness. Ibid. (quoting Grant Co., 345 U.S. at
632-33).
A-0371-23 24 The Board asserts that the trial court adjudicated a moot issue by entering
a preliminary injunction against the New Policy, which had already been
repealed and replaced with the Revised Policy. Initially, we note that the trial
court had to enjoin both the New Policy and the Revised Policy to preserve the
status quo. Indeed, had the trial court only enjoined the Revised Policy, the New
Policy could have been readopted. Additionally, the dispute here involves a
question of whether the New and Revised Policies are legal under the LAD.
That is a question of important public interest, which weighs against treating the
issue as moot. See Rodriguez, 225 N.J. at 356 (holding that eradication of
discrimination is in the public interest).
IV.
Preliminary injunctions are designed to be temporary because they grant
relief pending a final determination on the relevant issues. Camenisch, 451 U.S.
at 395 ("The purpose of a preliminary injunction is merely to preserve the
relative positions of the parties until a trial on the merits can be held.") . Here,
the trial court granted the preliminary injunction concerning the New and
Revised Polices in September 2023, pending a determination in the
administrative proceeding before the CR Division. That injunction was entered
more than fifteen months ago.
A-0371-23 25 At oral argument, we inquired as to the status of the administrative
proceeding before the CR Division. The parties, including the Attorney General,
informed us that no substantive proceedings have been conducted nor have any
substantive decisions been made by the CR Division. Our affirmance of the
preliminary injunction does not preclude the Board from moving before the trial
court to lift or modify the injunction if the CR Division proceeding is not
prosecuted and resolved in a timely manner.
Affirmed.
A-0371-23 26