Article originally published September 6, 2023 

Link to Original Article by Kyle Morel

The state Attorney General’s Office and a Morris County school board remained at odds Wednesday over a controversial policy that critics say would violate the privacy of LGBTQ+ students, with a judge expressing concerns that the language was too vague.

Deputy Attorney General James Michael and Matthew Giacobbe, an attorney for the Hanover Township school board, continued to debate Policy 8463 during an hourlong hearing in Morristown on Wednesday before state Superior Court Judge Stuart Minkowitz.

The board introduced the measure and later revised it in the spring after Attorney General Matthew Platkin filed a lawsuit against the K-8 district, alleging the changes infringed on the rights of LGBTQ+ students.

The revised policy, now on hold, would require school staff to inform parents when their child displays behaviors or issues that “may have an adverse impact” on their health and well-being. It also says the notification “cannot be based solely on a student’s actual and/or perceived protected characteristics” under New Jersey’s Law Against Discrimination, a statute that includes sexual orientation and gender identity among its safeguarded categories.

“Parents have a constitutional right to be involved in their children’s lives,” Giacobbe said Wednesday, adding that the state is trying to “tramp on that” with its lawsuit.

Minkowitz highlighted potential issues in the policy’s wording. For instance, he said, saying parental notification “cannot be based solely” on protected characteristics means characteristics such as gender identity or sexual orientation can still be part of the discussion peripherally.

Minkowitz also said the phrase “adverse impact” is “in the eye of the beholder” when it comes to student expression. As an example, he said, a devoutly religious teacher may view a student wearing a rainbow shirt touting LGBTQ+ pride as “adverse” and inform the administration. Requiring teachers to report any perceived problem, the judge said, “invites interference in the parent/child relationship.”

Giacobbe said the new policy is no different from many other district policies that require notification, such as if a staff member believes a student is being abused or neglected. As caregivers for their students during the day, teachers make subjective assessments all the time that are permitted under the Law Against Discrimination, he said.

Michael, the deputy attorney general, noted that Hanover passed a policy in 2019 designed to help transgender students feel safe. He questioned the need for an update, since, he said, “There is no indication that any child in the Hanover district has been harmed by the policy.”

He added that while state officials “recognize and support parental involvement,” they also respect the rights of LGBTQ+ students that they believe would be harmed by the new policy.

“It’s clear that this is a vulnerable population, particularly when they’ve been outed against their will,” Michael said.

Minkowitz did not issue a ruling after Wednesday’s hearing, saying he wanted to take enough time to examine the matter thoroughly. Until the case is resolved, Hanover will continue to operate under the district policy that existed before the the new guidelines were introduced in the spring.