NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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 NOS. A-0037-23 A-0046-23 A-0118-23
MATTHEW J. PLATKIN, Attorney General of New Jersey and SUNDEEP IYER, Director, New Jersey Division on Civil Rights,
Plaintiffs-Respondents,
v.
MIDDLETOWN TOWNSHIP BOARD OF EDUCATION and MIDDLETOWN PUBLIC SCHOOL DISTRICT,
Defendants-Appellants. _______________________________
MATTHEW J. PLATKIN, Attorney General of New Jersey and SUNDEEP IYER, Director, New Jersey Division on Civil Rights,
MANALAPAN-ENGLISHTOWN REGIONAL BOARD OF EDUCATION and MANALAPAN-ENGLISHTOWN REGIONAL SCHOOL DISTRICT,
MATTHEW J. PLATKIN, Attorney General of New Jersey and SUNDEEP IYER, Director, New Jersey Division on Civil Rights,
MARLBORO TOWNSHIP BOARD OF EDUCATION and MARLBORO TOWNSHIP PUBLIC SCHOOL DISTRICT,
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, Monmouth County, Docket Nos. C-000080-23, C-000079-23, and C-000078-23.
Bruce W. Padula argued the cause for appellants Middletown Township Board of Education and Middletown Township Public School District, and Manalapan Englishtown Regional Board of Education and Manalapan Englishtown Regional School District
A-0037-23 2 (Cleary Giacobbe Alfieri Jacobs, LLC, attorneys; Bruce W. Padula, on the briefs).
Michael J. Gross argued the cause for appellants Marlboro Township Board of Education and Marlboro Township Public School District (Kenney, Gross, Kovats & Parton, attorneys; Marc H. Zitomer, on the briefs).
Mayur P. Saxena, Assistant 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 briefs; Liza Fleming, Nancy M. Trasande, Jonathan Mangel, Sarah Nealon, Douglas R. Praschak, and Daniel Resler, Deputy Attorneys General, on the briefs).
Joshua W. Dixon argued the cause for amicus curiae The Center for American Liberty (Dhillon Law Group Inc., attorneys; Josiah Contarino, of counsel and on the brief).
Natalie J. Kraner argued the cause for amici curiae American Civil Liberties Union of New Jersey and Garden State Equality (Lowenstein Sandler LLP and American Civil Liberties Union of New Jersey Foundation, attorneys; Catherine Weiss, Natalie J. Kraner, Julie Minicozzi, Anish Patel, Katherine Primatic, Nina Rodriguez, and Jeanne LoCicero, on the brief).
PER CURIAM
In these three appeals, which we address in this consolidated opinion, the
Middletown Township Board of Education (Middletown), the Manalapan
A-0037-23 3 Englishtown Regional Board of Education (Manalapan), the Marlboro Township
Board of Education (Marlboro), and their related school districts (collectively,
the Boards) appeal from orders preliminarily enjoining them from changing their
existing policies regarding students' gender identification. The narrow issue
before us is whether the trial court abused its discretion by granting the
preliminary injunctions while the merits of the disputes are being addressed in
administrative proceedings before the New Jersey Division on Civil Rights (the
CR Division).
Discerning no abuse of discretion, we affirm the provision of the orders
that enjoins the Boards from enacting the amended policies they adopted on June
20, 2023. We reverse, however, the provision of the orders that enjoins the
Boards from considering alternative new policies. Moreover, given the length
of time that has passed, we point out that if the proceedings before the CR
Division do not make reasonable progress soon, the Boards have the right to
move before the trial court to lift the preliminary injunctions.
I.
Appellants are three Boards of Education in Monmouth County. Before
2020, each of the Boards had adopted and implemented policies titled "5756-
A-0037-23 4 Transgender Students" (collectively, the Existing Policies; individually, the
Existing Policy).
Manalapan adopted its Existing Policy in November 2014. Marlboro
adopted its Existing Policy in January 2015. Middletown adopted its Existing
Policy in May 2019. The Existing Policies generally follow the guidance issued
in 2018 by the New Jersey Department of Education (DOE), titled "Transgender
Student Guidance for School Districts" (the State Guidance). The DOE had
issued the State Guidance in accordance with the Legislature's directive 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).
Of relevance to the issues on this appeal, the Existing Policies all state:
The school district shall accept a student's asserted gender identity; parental consent 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.
The Existing Policies also recognize that there might be times when the "school
district may be obligated to disclose a student's status" because it has "a specific
and compelling need" to do so, "such as the health and safety of a student or an
incident of bias-related crime."
A-0037-23 5 On June 20, 2023, each Board adopted an amended policy concerning
transgender students (collectively, the Amended Policies; individually, the
Amended Policy). The Amended Policies included an affirmative duty for
school district staff members to notify a student's parent if a student requested a
gender identity change at school. The language of the Amended Policies varied
slightly.
The Middletown Amended Policy stated, in relevant part:
The school district shall accept a student's asserted gender identity; parental consent is not required. . . . The Board finds that conversations with counselors, teachers or other staff about one's gender identity and expression are entitled to confidentiality. However, in the event a student requests a public social transition accommodation, such as public name/identity/pronoun change, bathroom/locker room accommodation, or club/sports accommodations, or the like, the school district shall notify a student's parents or guardian of the student's asserted gender identity and/or name change, or other requested accommodation, provided there is no documented evidence that doing so would subject the student to physical or emotional harm or abuse. It shall be the policy of the Board to support and facilitate healthy communication between a transgender student and their family, rather than foster an unreasonable expectation that a public in-school transition will remain confidential or require district staff to affirmatively misrepresent information to parents.
Following the enactment of their Amended Policy, Middletown drafted
regulations which purported to limit the definition of a "public social transition
A-0037-23 6 accommodation." Those draft regulations, however, were not adopted before the
injunction took effect. Accordingly, Middletown has acknowledged that these
regulations were never formally enacted and, therefore, do not modify its
Amended Policy.
The Manalapan Amended Policy stated, in relevant part:
For grades [six] through [eight], the school district shall accept a student's asserted gender identity; parental consent is not required. For students in grades Pre-K through [five], the responsibility for determining a student's gender identity rests with the student's parents/guardians.
....
The Board finds that conversations with counselors, teachers or other staff about one's gender identity and expression are entitled to confidentiality. However, in the event a student requests a public social transition accommodation, such as public name/identity/pronoun change, bathroom/locker room accommodation, or club/sports accommodations, or the like, the school district shall notify a student's parents or guardian of the student's asserted gender identity and/or name change, or other requested accommodation, provided there is no credible evidence that doing so would subject the student to physical or emotional harm or abuse. Prior to disclosure, the student shall be given the opportunity to personally disclose that information. It shall be the policy of the Board to support and facilitate healthy communication between a transgender student and their family, when disclosure is consistent with this policy.
The Marlboro Amended Policy stated, in relevant part:
A-0037-23 7 Because Marlboro Public School District is a PreK- [eight] District with no high school, the Board believes that greater parental involvement is required because of the age and maturity level of its student-body. . . . [I]n the spirit of transparency and parental involvement, the district will . . . notify a student's parent/guardian of the student's change in gender identity or expression except where there is reason to believe that doing so would pose a danger to the health or safety of the pupil. A school counselor . . . will notify and collaborate . . . with the student first before discussing a student's gender nonconformity or transgender status with the student's parent/guardian. That discussion will address any concerns the student has about such parental notification and discuss the process by which such notification shall occur including, but not limited to whether the student wishes to be given the opportunity to notify the parent/guardian first.
The Principal or designee should have a discussion with the student and parent/guardian to ascertain the student's preference on matters such as chosen name and chosen pronoun. However, there may be instances where a parent/guardian of a minor student disagrees with the student regarding the name and/or pronoun to be used at school and in the student's education records.
In the event a parent/guardian objects to the minor student's name and/or pronoun change request, the Superintendent or designee should consult the Board Attorney regarding the minor student's and family's civil rights and protections under the [New Jersey Law Against Discrimination], N.J.S.A. 10:5-1 [to -50].
A-0037-23 8 The Amended Policies for Middletown and Manalapan also stated that if
any emotional support services are provided to "transgender students, students
facing other gender identity issues, or students who may be transitioning," then
"[t]he full, complete, and accurate reason for counseling and/or referrals for
mental health crisis and/or concerns shall be provided to the parent/guardia ns in
relation to parental notification/consent for such services."
On June 21, 2023, the New Jersey Attorney General and the Director of
the New Jersey Division on Civil Rights (collectively, the Attorney General)
filed three administrative complaints with the CR Division alleging that the
Boards' Amended Policies violated the New Jersey Law Against Discrimination
(LAD), N.J.S.A. 10:5-1 to -50. Specifically, the Attorney General asserted that
the Amended Policies unlawfully discriminated against students based on their
gender identity and gender expression. In that regard, the Attorney General
alleged that the Amended Policies irreparably harmed transgender students by
requiring parental disclosure of their gender identity without their consent.
The same day, the Attorney General filed the three actions giving rise to
these appeals in the Chancery Division. In those actions, the Attorney General
sought preliminary restraints to enjoin the implementation of the Amended
Policies pending a resolution of the administrative proceedings before the CR
A-0037-23 9 Division. In moving for injunctive relief, the Attorney General relied on section
14.1 of LAD, which provides:
At any time after the filing of any complaint, or whenever it shall appear to the Attorney General or the director that a person has engaged in, is engaging in, or is about to engage in any practice declared to be unlawful by this act, the Attorney General or the director may proceed against any person in a summary manner in the Superior Court of New Jersey to obtain an injunction prohibiting such person from continuing such practices or engaging therein . . . .
[N.J.S.A. 10:5-14.1.]
The trial court heard oral argument on the application for injunctive relief
on August 15, 2023. Three days later, on August 18, 2023, the court issued three
orders, supported by an accompanying written opinion, granting the State's
request for preliminary injunctions. The orders enjoined the Boards from (1)
"enforcing, implementing, or otherwise giving effect to [the Amended Policies],
until such time as the litigation before the [CR Division] . . . is resolved ;" and
(2) "amending, modifying, or superseding any portion of [the Existing Policies]
. . . to preserve the status quo ante prior to the adoption of [the Amended
Policies], until such time as the litigation before the [CR Division] . . . is
resolved."
A-0037-23 10 In its written opinion, the trial court analyzed the factors that must be
established to obtain preliminary 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). The trial court first found that the Attorney General had a "well-settled
right, if not obligation, to proceed in a summary manner to enforce a remedial
statute protecting members of a statutorily protected class in New Jersey from
discrimination." Second, the trial court found that "[w]here, as here, only
students who identify as transgender are singled out for mandatory parental
notification, the [Attorney General] has demonstrated a reasonable probability
of success on the merits of its claim that the Amended Policies effect differential
treatment of members of a protected class in violation of the LAD." The trial
court also found that the Attorney General had "demonstrated a reasonable
probability of success on its claim that the Amended Policies of parental
notification '[would] unlawfully subject these students to a disparate impact in
violation of the LAD.'"
Third, the trial court concluded that "[t]he evidence supporting the
[Attorney General's] position that parental notification has a disparate impact on
transgender, gender non-conforming, and non-binary students equates to a harm
imposed on these students that cannot adequately be redressed by money
A-0037-23 11 damages." The trial court then pointed to evidence submitted by the Attorney
General, including studies which documented the disparate impact through
elevated incidences of "mental health issues, suicide, illicit drug dependency,
and infliction of physical or emotional harm by immediate family members ."
Finally, the trial court found that "no [Board] has made any compelling
argument that adherence to the [Existing] [P]olicies governing transgender
students while the administrative action is pending will result in any claim,
liability, or hardship." In support of that finding, the trial court noted that the
Existing Policies had been in place for several years without any documented
incidents of problems. The trial court also rejected the Boards' argument that
imposing restraints would compel them to violate federal and state record laws.
In that regard, the trial court reasoned that the record laws concerned access to
information in student records and the Existing Policies did not prohibit parental
access to those records; rather, the Existing Policies did not impose an
affirmative obligation to disclose information concerning students' gender
identification.
The Boards now appeal from the preliminary injunctions issued on August
18, 2023.
A-0037-23 12 II.
In these appeals, Middletown and Manalapan make five arguments.
Marlboro joins in three of those arguments. The Center for American Liberty
has filed an amicus curae brief in support of the Boards' positions and raises new
arguments concerning parental rights.
First, the Boards assert that the trial court incorrectly applied the "well -
settled legal right" factor of Crowe. The Boards contend that the "well-settled
legal right" must concern a substantive application of law, rather than a
procedural aspect of the litigation, such as the Attorney General's right to enforce
the LAD.
Second, the Boards argue that the trial court erred in failing to consider the
impact of the federal and state student record laws. The Boards claim that
parents have an unequivocal right to access the information contained in
mandated student records and, therefore, have a right to be notified when
students change their gender identity because gender identification is a
mandatory part of students' records.
Third, Middletown and Manalapan contend that the injunctions compel
them to violate parents' fundamental rights under the Fourteenth Amendment. In
that regard, they contend that the injunctions "deprive[] parents, and more
A-0037-23 13 specifically parents of LGBTQ+ students, of information critical to the parents'
ability to actively guide and foster their children's moral and psycho-social
development . . . and compels [them] to be the State actor depriving parents of
those rights." Amicus Center for American Liberty joins that argument and adds
that "[b]ecause social transitioning constitutes psychological treatment, parents
have the right to consent when the State is performing that treatment on their
children."
Fourth, the Boards argue that the trial court erred by relying on several
studies the Attorney General submitted to support his disparate impact claim .
The Boards contend that the trial court improperly considered the studies and
that any probative value the studies have is "substantially outweighed by the risk
of . . . [u]ndue prejudice." See N.J.R.E. 403(a).
Fifth, and finally, Middletown and Manalapan claim that the trial court
abused its discretion by enjoining them from amending, modifying, or
superseding any portion of their Existing Policies pending the administrative
proceedings before the CR Division. They contend that there was no legal or
factual basis to afford that additional injunctive relief.
In response the Attorney General argues that, applying the Crowe factors,
he demonstrated a sufficient likelihood of success on his claim that the Amended
A-0037-23 14 Policies violated the LAD. The Attorney General contends that "the legal right
underlying" the action was "well-settled," as the LAD prohibits unlawful
discrimination in schools and expressly grants the Attorney General the right to
seek injunctive relief to prevent such discrimination. In addition, the Attorney
General maintains that the injunctions, which "simply restore[] the status quo,"
do not compel the Boards to violate any state and federal student record laws,
nor parents' rights under the Fourteenth Amendment.
The American Civil Liberties Union of New Jersey and Garden State
Equality, as amici curae, have filed a brief in support of the Attorney General's
positions. Those amici contend that the Fourteenth Amendment does not require
the Boards to affirmatively notify parents concerning their child's gender identity
and that the Amended Policies raise serious equal protection concerns by
singling out gender-nonconforming students for disparate treatment.
III.
We begin by pointing out what these appeals concern and what they do not
concern. The Boards are appealing from preliminary injunctions entered to
maintain the status quo while administrative proceedings are conducted before
the CR Division. In issuing the preliminary injunctions, the trial court did not
make any final determinations on the merits of any parties' claims or defenses.
A-0037-23 15 Accordingly, the narrow issue before us is whether the trial court abused its
discretion in granting preliminary injunctive relief.
This appeal does not involve a determination concerning parental rights.
The Attorney General sought the injunctions against the Boards. No parents are
parties to the litigations in the Chancery Division or in the administrative
proceedings before the CR Division.
IV.
Preliminary injunctive relief is appropriate when the moving party
establishes: "(1) a likelihood of success on the merits; (2) irreparable harm; (3)
a showing that on balance the harm to the moving party is greater than the harm
to the party to be restrained; and (4) 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 132-134; 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.
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-0037-23 16 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
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., 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)).
A-0037-23 17 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
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-0037-23 18 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" 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 where "only students who identify as transgender
are singled out for mandatory parental notification, the [Attorney General] has
demonstrated a reasonable probability of success on the merits of its claim that
the Amended Policies effect differential treatment of members of a protected
class in violation of the LAD." In support of that finding, the American Civil
Liberties Union of New Jersey and Garden State Equality point out that the
"parental notification mandate . . . is triggered only when nonconforming
A-0037-23 19 students express their gender identities at school and not when cisgender students
put their masculinity or femininity on display."
Additionally, the trial court found that the Attorney General demonstrated
a reasonable probability of success on his claim that the Amended Policies "'will
unlawfully subject these students to a disparate impact in violation of the LAD,'
that is, 'a far greater incidence of parental disclosure of their gender identity or
expression, and, with it, a far greater risk of harm from this involuntary
disclosure.'" The trial court, therefore, concluded that the Attorney General had
a "well-settled right, if not obligation, to proceed in a summary manner to
enforce a remedial statute protecting members of a statutorily protected class in
New Jersey from discrimination."
We discern no abuse of discretion concerning those preliminary findings.
The LAD expressly bars discrimination based on "gender identity or expression."
N.J.S.A. 10:5-12(f)(1). That prohibition applies to disparate treatment and
disparate impact. 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 Boards argue that the substantive issues concerning the Amended
Policies are not well-settled because there is "no caselaw, decision, opinion, or
A-0037-23 20 other determination that parental notification violates [the] LAD." 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)). 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 practice
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.
A-0037-23 21 The risks of harm the trial court identified included "mental health issues,
suicide, illicit drug dependency, and infliction of physical or emotional harm by
immediate family members." 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. The Boards argue that the trial court erred in considering these studies,
which they contend are "irrelevant, unduly prejudicial, and lack any probative
value."
"[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-0037-23 22 We discern no abuse of discretion in the trial court's determination
concerning irreparable harm. In reaching that conclusion, we note that the trial
court had two bases for its determination: the studies in the record and prior
legislative findings. Regarding the studies, the trial court acknowledged the
Boards' argument but ultimately decided that they were appropriate to consider
when making its ruling on the request for injunctive relief. 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")). Further,
the trial court determined that the LAD's enactment reflects a legislative finding
that "because of discrimination, people suffer personal hardships, and . . . [those]
personal hardships include: . . . irreparable harm resulting from . . . family and
social disruption; and adjustment problems." N.J.S.A. 10:5-3. As such, the trial
court properly found that there was a substantial risk of irreparable harm
supporting injunctive relief.
3. The Balance of the Harms and the Public Interest.
A-0037-23 23 The trial court also found that the balance of the harms and the public
interest both supported injunctive relief. The Boards do not challenge those
findings. Instead, they argue that maintaining the Existing Policies would harm
parents by violating their rights to access student records and rights under the
Fourteenth Amendment. Those arguments, for the reasons discussed below, are
unpersuasive. Further, as noted by the trial court, the "[Existing] Policies, until
June 2023, had been in place uneventfully" for more than four years. The Boards
did not provide any evidence that they were harmed by the Existing Policies
during that time.
Relying on several studies and legislative findings, the trial court found
that the Amended Policies would harm students by discriminating against them
based on their gender identity and expression. Additionally, as previously stated,
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 the students and strong public interest in preventing discrimination, we
discern no abuse of discretion in the trial court's determination that the balance
of harms supported granting injunctive relief.
A-0037-23 24 In opposing the injunctions on the Amended Policies, the Boards make two
arguments concerning parental rights. First, they contend that requiring them to
follow their Existing Policies will compel them to violate parents' rights to access
student records. Second, they argue that the injunctions will compel them to
violate parents' fundamental rights protected under the Fourteenth Amendment.
The record and law do not support either of those arguments.
1. Parents' Right to Access Student Records.
The federal Family Educational Rights and Privacy Act ("FERPA") and
the New Jersey Pupil Records Act ("NJPRA") govern how schools manage and
respond to parents' requests for access to student education records. See 20
U.S.C. § 1232g; N.J.S.A. 18A:36-19. FERPA requires that no educational
institution shall have "a policy of denying, or which effectively prevents, the
parents of students . . . the right to inspect and review the education records of
their children." 20 U.S.C. § 1232g(a)(1)(A). Similarly, NJPRA states:
The State Board of Education shall provide by regulation for the creation, maintenance and retention of pupil records and for the security thereof and access thereto, to provide general protection for the right of the pupil to be supplied with necessary information about herself or himself, the right of the parent or guardian and the adult pupil to be supplied with full information about the pupil, except as may be inconsistent with reasonable protection of the persons involved, the right of both pupil and parent or guardian to reasonable
A-0037-23 25 privacy as against other persons and the opportunity for the public schools to have the data necessary to provide a thorough and efficient educational system for all pupils.
[N.J.S.A. 18A:36-19.]
The Boards assert that, under FERPA and NJPRA, parents have an
"unequivocal right" to access mandated information contained in their child's
student records. A student's gender is a mandatory item in a student's records
pursuant to NJPRA. N.J.A.C. 6A:32-7.3(b)(1). So, the Boards argue parents
have the right to be notified when students change the gender identified in their
records.
FERPA and NJPRA require parents to have access to information
contained in student records. Those statutes do not impose affirmative
requirements of parental notification concerning a student's gender identity or
expression. See 20 U.S.C. § 1232g; N.J.S.A. 18A:36-19. Additionally, the
Attorney General has explained that a student's expression of their preferred
gender identity does not automatically trigger a change to their student records.
For example, a student's request to be called by a certain name does not require
a change to the student's records. Similarly, other "public social transition
accommodation[s]" covered by the Amended Policies do not require any change
to a student's official records.
A-0037-23 26 More to the point, the Existing Policies do not prohibit parents from
accessing their child's student records. Consequently, if a student requested a
change to his or her records concerning their gender identity or expression, a
parent would have the right to access those records. The Existing Policies simply
direct school staff not to affirmatively notify the parents.
Moreover, the Existing Policies do not require or call for school staff to
provide false information to parents. Indeed, the Attorney General clarified
before the trial court that "schools would be obligated to respond truthfully to a
parent or guardian who contacted the school to request confirmation that their
child had made . . . a request [for transgender accommodation] or statement [of
transgender identification or expression]."
In short, the injunctions do not deny parents the right to access their child's
student records. Therefore, the injunctions do not compel the Boards to violate
parents' record rights.
The Boards also claim that the trial court's written decision was "devoid
of any consideration of New Jersey and [f]ederal [s]tudent [r]ecords law." That
contention is not accurate. In the trial court's written opinion, the court expressly
addressed the student record laws. In that regard, the trial court's opinion stated:
The federal and state law cited by defendants pertain to access to information in written student records, not to
A-0037-23 27 affirmative requirements of parental notification of a student's transgender orientation or expression. Defendants do not explain how enjoining schools from notifying parents of a child's transgender identification or expression would prevent parents from "inspect[ing] and review[ing] the education records of their children." 20 U.S.C. § 1232g(a)(1)(A). And, while the [NJPRA] requires school boards to formulate regulations with respect to student records to protect the rights of parent or guardian "to be supplied with full information about the pupil," it also provides the qualifier that such information be provided "except as may be inconsistent with the reasonable protection of the person involved." Having demonstrated a reasonable probability of success on the merits of its claim that the Amended Policies will have a disparate impact on members of a protected class under the LAD, the [Attorney General] will likely show that the Boards' Amended Policies of parental notification fit within that exception.
2. 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,
A-0037-23 28 115 (2003) (identifying "the fundamental right of parents to raise their 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 that
right, this court has 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 Boards assert that the injunctions compel them to violate parents'
fundamental rights by "depriv[ing] parents, and more specifically parents of
LGBTQ+ students, of information critical to the parents' ability to actively guide
and foster their children's moral and psycho-social development." In response
to this argument, the trial court reasoned that:
Parental oversight is a bedrock to a stable, nurturing home, and thus to a stable nurturing community. However, it is also settled that the right of parental oversight is not immutable; that it should and must yield where the State can demonstrate a compelling governmental interest. At this preliminary juncture, the [Attorney General] has done so: to ensure that a protected class under a state law against discrimination does not suffer either disparate treatment or disparate impact because of policies requiring parental
A-0037-23 29 notification where a student requesting a transgender accommodation or expressing transgender identification specifically requests that their parents or guardian not be notified.
A review of the record confirms that the injunctions do 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
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, neither the
injunctions nor the Existing Policies 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 will
only be implicated if the state's action 'deprived them of their right to make
A-0037-23 30 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 injunctions do not implicate or
interfere with parents' rights under the Fourteenth Amendment. The Existing
Policies do not impose the kind of "constraint or compulsion" that the United
States Supreme Court and the New Jersey Supreme Court have found violative
of parental rights. See Anspach, 503 F.3d at 264. Instead, the Existing Policies
direct school staff to refer to students by their preferred gender identity without
requiring the school to obtain parental consent or to affirmatively notify parents.
We also reject the Center for American Liberty's argument that the
injunctions infringe on parents' rights to make medical decisions for their child
"[b]ecause social transitioning constitutes psychological treatment." Initially,
we note that the Boards did not raise this argument before the trial court.
Accordingly, we need not consider this new argument. See Bethlehem Twp. Bd.
of Educ. v. Bethlehem Twp. Educ. Ass'n, 91 N.J. 38, 48-49 (1982) (explaining
that "as a general rule an amicus curiae must accept the case before the court as
presented by the parties and cannot raise issues not raised by the parties"). The
A-0037-23 31 Existing Policies do not involve medical treatment. Instead, they address
situations where students express their preferred gender identification.
Moreover, there is nothing in the record to support the claim that "social
transitioning constitutes psychological treatment." Indeed, this type of
unsupported assertion appears to be designed to inject divisive contentions,
which ironically, only contribute to transgender students' anxieties.
Because the injunctions do not intrude on parents' constitutionally
protected rights, they should be upheld so long as they are "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 Boards
from affirmatively disclosing a students' transgender status to their parents, is
rationally related to that goal.
VI.
The trial court's injunctive relief had two components. First, the trial court
enjoined the Boards from implementing their Amended Policies. We have
analyzed that portion of the injunctions and discern no abuse of discretion.
A-0037-23 32 Second, the trial court enjoined the Boards from amending, modifying, or
superseding any portion of the Existing Policies until the proceedings before the
CR Division is resolved. The Boards argue that the trial court abused its
discretion in issuing the second portion of the injunctions. We agree.
The Boards have the authority to "[m]ake, amend, and repeal rules . . . for
its own government and the transaction of its business and for the government
and management of the public schools and public school property of the district
and for the employment, regulation of conduct and discharge of its employees ."
N.J.S.A. 18A:11-1(c). In essence, the trial court's injunctions assumed that any
amendment to the Existing Policies would violate the LAD. There is no basis
for that assumption. The Boards must act consistently with the LAD's mandates.
See L.W. ex rel. L.G., 381 N.J. Super. at 485. If the Boards amend their Existing
Policies in a way that violates the LAD, the Attorney General can seek
appropriate relief, including an injunction to address specific actions.
In short, because there is no basis to enjoin the Boards from making
amendments to the Existing Policies, we vacate that portion of the injunctions.
VII.
Preliminary injunctions are designed to be temporary because they grant
relief pending a final determination on the relevant issues. Camenisch, 451 U.S.
A-0037-23 33 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 injunctions in August 2023 pending a
determination in the administrative proceedings before the CR Division. Those
injunctions were entered more than eighteen months ago.
At oral argument, we inquired as to the status of the administrative
proceedings 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 injunctions does not preclude the Boards from moving before
the trial court to lift or modify the injunctions if the CR Division proceedings
are not prosecuted and resolved in a timely manner.
Affirmed in part and reversed in part.
A-0037-23 34