Article originally publsihed September 14, 2023 on NJ Spotlight News

Link to Original Article by Hannah Gross

The Hanover Board of Education voted to repeal a policy that includes protections for transgender students. The vote at an emergency meeting Monday night came months after the school board passed a separate policy — currently on hold due to a legal challenge by the state — that requires parental notification of facts or circumstances that could impact a student’s health or well-being, including sexual orientation and gender identity.

The school board voted unanimously Monday to scrap Policy 5756: Transgender Students, a policy it had adopted in 2019 and followed without controversy for several years.

The move is the latest in the board’s battle for more parental notification, which includes the separate policy that landed it in legal conflict with the state. It’s the latest local action over an issue that is playing out in several New Jersey communities.

After the Hanover school board passed Policy 8463, which concerns parental notification, in May, the state Attorney General Matthew Platkin sued the district and board on the grounds that the policy would “predictably have an unjustified disparate impact on LGBTQ+ students.”

At the first hearing of the case on May 30, Superior Court Judge Stuart Minkowitz told the school board to rewrite the new rule so it does not discriminate against gay, transgender and nonbinary students. The district is awaiting a ruling on its revised policy, which does not single out LGBTQ+ students but allows school staff to consider sexual orientation or gender identity among reasons to notify parents.

The judge is expected to issue a ruling in several weeks. Until then, the Hanover district and school board are under a restraining order that prohibits them from implementing the revised policy.

Hanover board’s rationale

At the Monday night meeting, Hanover Board of Education member Gregory Skiff said, “Our view is that Policy 5756 without the benefit of Policy 8463 is unacceptable in its current form. With no practical ability to modify it without potentially subjecting the board to further legal action by the attorney general, we have no choice but to reject it in its entirety.”

After repealing Policy 5756, Hanover is without a policy detailing specific protections for transgender students. The district is still required to follow the New Jersey Law Against Discrimination, which prohibits discrimination based on sexual orientation and gender identity or expression.

‘We respect the New Jersey Law Against Discrimination with utmost sincerity. There’s no form of discrimination that will be tolerated against any child, staff member or visitor in the school district.’ — Matthew Giacobbe, attorney for Hanover school board

Deputy Attorney General James Michael wrote a letter to Minkowitz on Monday which said that the removal of Policy 5756 creates a “damaging free-for-all at the expense of LGBTQ+ students.”

He argued the school board’s action Monday night violates the restraining order on the district and school board that requires them to maintain the “status quo” that existed before the adoption of Policy 8463 in May.

Not mandatory?

Matthew J. Giacobbe, attorney for the school board, said at the meeting on Monday that because Policy 5756 is not mandatory, the board had the right to repeal it. The school district will continue to comply with the New Jersey Law Against Discrimination, he added.

“We respect the New Jersey Law Against Discrimination with utmost sincerity,” Giacobbe said. “There’s no form of discrimination that will be tolerated against any child, staff member or visitor in the school district.”

‘There was a widespread effort to misrepresent to school districts statewide that [Policy] 5756 was mandatory. Districts reasonably relied on those misrepresentations and adopted it.’ — Hanover school board member Gregory Skiff

Policy 5756 has become the focus of growing controversy and in recent months prompted pushback from parents’ rights advocates across the state. It says that school staff members are not required to notify a student’s parent or guardian of the child’s gender identity or expression. It also allows transgender students to participate in gender-segregated activities and use the school facilities that are consistent with their gender identity.

The policy is based on New Jersey Department of Education guidance issued in 2018. Former Gov. Chris Christie signed a law the previous year requiring the education commissioner to develop and distribute guidelines detailing protections for transgender students. Most districts adopted policies based on the department’s guidance shortly after it was issued and followed them without controversy for years.

Some background on Policy 5756

Strauss Esmay, a company that provides school policy and regulation consulting services to more than 570 New Jersey school districts, created a model policy that aligns with the state guidance and distributed it to districts. Philip Nicastro, the company’s vice president, said Strauss Esmay designated the policy as “mandated” because it believes the state guidance and administrative code require districts to have a policy.

“There was a widespread effort to misrepresent to school districts statewide that 5756 was mandatory. Districts reasonably relied on those misrepresentations and adopted it,” Hanover school board member Skiff said at the meeting on Monday.

According to a memo from Strauss Esmay regarding the policy, the company does not only classify topics as “mandated” if they are required by law, but also if they are required for certain federal and state agency monitoring requirements or relate to a topic where the state or federal Education Department provides districts with comprehensive guidance.

‘I wanted to thank you … for taking a stand and giving a lot of other school boards the much-needed encouragement to see that this battle can be won for our children.’ — Eveleth Roderer, a school board candidate in Warren County

Strauss Esmay labeled Policy 5756 as mandatory because the state’s education equity code requires school districts to provide equal access to educational programs and services regardless of a student’s gender identity or expression, according to the memo.

The company’s model policies are not binding, and districts are free to make changes or not adopt a policy altogether. Even if a district does not have a policy, it is still required to comply with the New Jersey Law Against Discrimination, Nicastro said.

In recent months, the company has advised school boards that are considering revising the policy to consult their board attorney, the memo reads.

Praise for Hanover board’s move

Other New Jersey school districts and school boards, including Manalapan-Englishtown, Marlboro and Middletown recently made changes to the policy that landed them in a court battle with the state, which contends their revised policies discriminate against LGBTQ+ students.

At Monday’s meeting, parental rights supporters from across the state cheered the Hanover school board’s move to undo the policy protecting transgender students. Parental rights advocates thanked Hanover for leading the way in the push for parental notification in schools.

‘Unfortunately, the focus of the board over the past year has been on parental rights for a select few and not on meeting the needs of all students, parents and teachers.’ — Karen Mascolo, a Hanover resident

“I’ve come because I wanted to thank you, Hanover Board of Education, for taking a stand and giving a lot of other school boards the much-needed encouragement to see that this battle can be won for our children,” said Eveleth Roderer, a school board candidate in Warren County.

While speakers from out of town were largely in support of repealing the policy protecting transgender students, residents’ views were more mixed, with a majority favoring the retention of the policy.

“I acknowledge that there are special circumstances where children experience unfortunate home lives. However, not telling parents information about their children automatically implies and assumes that the parent does not know what is best for their child,” said Brittany Smith-Wichelns, a mom of three from Whippany who supports the repeal.

Criticism of the move

Another resident, Terri Baird, argued that these special circumstances are the reason why Policy 5756 is necessary.

“The world is not full of perfect parents, including here in Hanover Township,” Baird said. She said she believes repealing the policy will remove protections for transgender students and teachers, who will now be without guidelines instructing them on how to handle certain situations.

Some residents urged the board to stop wasting taxpayer money fighting a lawsuit from the state and calling an emergency board meeting with the board attorney present.

“Why are we spending our resources taking away guidance and protections from an already vulnerable class of students?” asked Karen Mascolo, a Hanover resident and parent who is running for a place on the Board of Education in November elections.

Policy 5756 has prevented teachers and administrators from discriminating against students and existed in the district for several years without issue, Mascolo said.

“Unfortunately, the focus of the board over the past year has been on parental rights for a select few and not on meeting the needs of all students, parents and teachers,” Mascolo added.

Michelle Stricchiola, a candidate for Board of Education on a competing slate, said parental involvement is paramount to children’s well-being, which means parents should be involved. She said she supports the repeal of the policy, especially as someone whose parental rights have been violated in the past.

“All children are entitled to be protected and to receive the support they need when dealing with the challenges of our society today,” Stricchiola said.

The board is set to reaffirm its vote to repeal the policy at its next regularly scheduled meeting on Sept. 26.