School Policy Trumps Parent

According to the father, daughter “Jane Doe” had issues that were being addressed by dad and her therapist, after mom passed. But the school had rules, and District of New Jersey Judge Georgette Castner denied a temporary restraining order after finding the father unlikely to prevail.

Jane Doe is a freshman at Delaware Valley Regional High School in Frenchtown, New Jersey. Jane is a minor diagnosed with Attention-Deficit/Hyperactivity Disorder (ADHD) and Unspecified Mental Disorder (UMD), and has been under the care of a therapist for anxiety, depression, and gender confusion since April 2022. {The Court refers to Plaintiff’s child as “Jane Doe,” consistent with Plaintiff’s Verified Complaint and the parties’ briefing.} Plaintiff John Doe is Jane’s father. Plaintiff alleges that he and mental health professionals “agreed to take a cautious approach to Jane’s gender confusion” given her mental health diagnoses and the trauma following the death of Jane’s mother.

At school, Jane participated in an extracurricular club known as “Students Advocating for Equality,” or “SAFE,” which “promote[s] open discussion and awareness about modern cultures and topics surrounding intersectionality while aiming to make positive contributions to [the] community and school.” Defendant Ashley Miranda is a school counselor and the staff advisor of SAFE.

Who would possibly know what’s best for a confused high school freshman with mental health issues than a school counselor?

According to the Complaint, “Jane attended a SAFE meeting and expressed to … Miranda that she would like to undergo a social transition from female to male in school.” Plaintiff alleges that Miranda “immediately affirmed Jane’s expressed identity and began to facilitate Jane’s social transition” and “asked Jane if she would like to change her name and pronouns and be known only as a male at school, to which Jane agreed.” Plaintiff alleges that Miranda subsequently emailed the entire high school staff, except two teachers, informing them of Jane’s name change, but that Plaintiff was not notified.

Not only did Miranda facilitate Jane’s transition, but withheld that information and she made sure Jane’s father wouldn’t know. After all, what’s a father got to do with it? Dad, who not only happened to be Jane’s parent but also part of the team with her actual therapist who counseled against this knee-jerk change, eventually learned what had been concealed from him and sued, seeking a TRO as the school had already socially transitioned Jane with a male name and pronouns.

Judge Castner was not impressed.

In this case, Plaintiff asserts a liberty interest in “the care, custody, and control of” his child, which “is perhaps the oldest of the fundamental liberty interests” protected by the Due Process Clause. In support, Plaintiff cites to Supreme Court precedent recognizing a parent’s general right to make decisions concerning the care, custody, and control of their children.

But the question before the Court is not whether there is a general parental right related to the care, custody, and control of children. The question is whether Plaintiff has a fundamental constitutional right that requires the Board Defendants to obtain Plaintiff’s consent prior to recognizing and referring to Jane as to her preferred gender.

It’s one thing to hold that a public school has the authority to pursue its core functions of education, the purpose for which it exists and the justification for requiring children to attend. But is transitioning a child from female to male part of the function? Is doing so against the parent’s choice part? Is concealing that the school has taken a father’s daughter and turned her into a boy part?

Here, Board Policy 5756 does not impose the kind of “constraint or compulsion” that the Supreme Court and the Third Circuit have found violative of parental rights. The Policy does not require Jane to engage in an activity that Plaintiff does not want her to engage in, nor does it prohibit Jane from engaging in an activity that Plaintiff wants her to engage in. Rather, Board Policy 5657 directs the school to refer to students by … their preferred gender identity without requiring the school to obtain a parent’s consent or to affirmatively notify parents.

In contrast, Plaintiff asks the Court to “impose a constitutional obligation on state actors to contact parents of a minor” who requests to be recognized by a different gender identity, regardless of the minor’s preference as to parental notification. Based on the current record and posture of this case, the Court is not convinced that imposing such an affirmative obligation is within “the scope of the familial liberty interest protected under the Constitution.”

As Judge Castner explained, there is no clear precedent as to the scope of a parent’s constitutional right to either make these decisions for a minor child or, if the minor child makes them for herself, be informed. But that leaves the court without a clear mandate, meaning that the judge is free to decide whether the absence of clear precedent means the school gets to impose whatever policy choice it prefers on someone else’s child, or the parent does.

Here, Judge Castner decided she prefers siding with the school against the father, siding with the school’s policy choice to take a high school freshman with mental health issues and facilitate her transition to male in secret despite the father and her therapist’s positions to the contrary. Or as the court held, the school merely did what Jane, the high school freshman, wanted to do.

Here, Plaintiff has not established that the Board Defendants engaged in the type of proactive intrusion into private family matters that the Third Circuit found dispositive in Gruenke. The record so far indicates that the Board Defendants only began referring to Jane by her preferred gender identity at Jane’s request, did not coerce Jane into making the request, and did not prevent or discourage Jane from discussing the transition with Plaintiff. Plaintiff does not allege otherwise in the Complaint or the sworn declarations. Although Plaintiff, in his brief, makes a conclusory remark that the “Board Defendants convinced Jane … that she should transition,” Plaintiff cannot amend his pleadings by way of his brief, nor has Plaintiff alleged a factual basis to substantiate this assertion. The present record lacks particularized facts suggesting that the Board Defendants prompted Jane to initiate her request or proactively encouraged her to socially transition. Instead, Plaintiff alleges that “Jane attended a SAFE meeting and expressed to defendant Miranda that she would like to undergo a social transition.” To the extent the Board Defendants “continue[] insisting on socially transitioning Jane,” they are doing so only at Jane’s affirmative request….

That Jane, after attending a SAFE meeting, decided that she was a boy rather than a girl change the school’s responsibility and control over this student? Dad will be dad for the rest of his life. The school will wash their hands of whatever mess it’s facilitated because it wasn’t them, but this young girl with mental health issues who made her own choice.



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