Judge Punts on School Board Policy Re. Gay Students

HANOVER TWP. –  A new school board policy that directs staff to report gay students to their parents remains on hold, but its ultimate future seems uncertain after a court hearing Tuesday.

Judge Stuart Minkowitz was clearly dubious about requiring staff to treat gay students differently.

“You’re identifying a protected class … for special treatment,” the judge said to Matthew Giacobbe, the attorney for the school board.

In that same vein, the judge hypothetically asked about a policy that would have staff pinpoint students by race, religion or national origin for unequal treatment.

Would that be ok, he asked rhetorically. The answer was so obvious it didn’t need to be said.

The judge’s overall point was that discriminatory practices are unlawful.

Giacobbe said this case is about parental rights – rights guaranteed by the 14th Amendment to the U.S. Constitution. In court and in a conversation afterwards, he said Hanover’s K-8 district discriminates against no students.

This issue exploded two weeks ago – yet another battle in the so-called culture wars – when the board adopted a new policy directing staff to notify parents if they became aware of a number of student conditions. Attention was immediately drawn to a section that required notification of students’ “sexual orientation, transitioning, gender identity or expression.”
The state Attorney General quickly went to court to get the policy overturned and secured a preliminary injunction to put it on hold. Tuesday’s hearing was held to determine if a permanent injunction would be issued until the state Division of Civil Rights rules on the merits of the issue. Instead, Minkowitz delayed making that decision in hopes lawyers for both sides could work out a compromise.

Minkowitz limited the proceedings to the strict legal issue involved, but outside factors were impossible to ignore.

Morris County’s Courtroom Number One, which is almost 200-years-old, was jammed with spectators, most of whom supported the school board.

Outside the courtroom’s historic walls and artifacts, one finds some active Republican primaries in full swing. Many state legislative candidates in local districts have released statements backing the school board and parents’ rights.

Back in court, the Attorney General’s Office argued that the new policy was discriminatory and that it posed a risk to students who may be “outed.”

The judge, who questioned Giacobbe extensively, also seemed to be uncertain how the policy would work. He said it seemed like staff would have no discretion and he raised the possibility of teachers and others making a mistake in identifying a student’s sexuality. He also observed that the school board’s court filings failed to address any harm students could incur under the new policy.

Instead of ruling on a permanent injunction, the judge said he hoped a compromise could be struck regarding the language of the new policy. Both lawyers said they were amenable to giving it a try.

Minkowitz was optimistic.

“There is a potential to bridge the divide,” he said.

Maybe.

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