DOE v. DELAWARE VALLEY REGIONAL HIGH SCHOOL BOARD OF EDUCATION

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JOHN DOE, said name being fictitious,

Plaintiff,

Civil Action No. 24-00107 (GC) (JBD)

v.

OPINION

DELAWARE VALLEY REGIONAL HIGH

SCHOOL BOARD OF EDUCATION, et al.,

Defendants.

CASTNER, District Judge

THIS MATTER comes before the Court by way of Plaintiff’s motion for a Temporary

Restraining Order (TRO) and Preliminary Injunction. (ECF Nos. 3 & 4.) The Court has carefully

considered the parties’ submissions and decides the motion without oral argument pursuant to

Federal Rule of Civil Procedure (Rule) 78(b) and Local Civil Rule 78.1(b). For the reasons set

forth below, and other good cause shown, Plaintiff’s motion for a TRO is DENIED.

I. BACKGROUND

A. Factual Background

Jane Doe1 is a freshman at Delaware Valley Regional High School in Frenchtown, New

Jersey. (ECF No. 1 at 2-3, 5.)2 Jane is a minor diagnosed with Attention-Deficit/Hyperactivity

Disorder (ADHD) and Unspecified Mental Disorder (UMD), and has been under the care of a

1 The Court refers to Plaintiff’s child as “Jane Doe,” consistent with Plaintiff’s Verified

Complaint and the parties’ briefing.

2 Page numbers for record cites (i.e., “ECF Nos.”) refer to the page numbers stamped by the

Court’s e-filing system and not the internal pagination of the parties.

therapist for anxiety, depression, and gender confusion since April 2022. (Id. at 4.) Plaintiff John

Doe is Jane’s father. (Id. at 2-3.) 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. (Id. at 4.)

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.” (Id. at 5.) Defendant Ashley Miranda is a school counselor and the staff

advisor of SAFE. (Id.; ECF No. 30-1 ¶ 3.)

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.” (ECF No. 1 at

5.) 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.” (Id. at 5-6.) 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. (Id. at 6)

Plaintiff alleges that Miranda and the school concealed Jane’s social transition from him in

several ways. In her email to the staff, Miranda informed the staff that Plaintiff “was not to be

informed of Jane’s social transition.” (Id.) Miranda also allegedly excluded two teachers from

the email because they “have contacts with members of the Doe household.”3 (Id.) And Plaintiff

3 This fact is contested by Miranda through a sworn declaration. (ECF No. 30-1.) In a

responsive declaration, Jane Doe says that she asked Miranda not to include two teachers on the

email because of their relationship with her family. (ECF No. 32-1.) Even accepting Plaintiff’s

allegations as true, it is currently undisputed that Miranda’s alleged actions were done at Jane’s

claims that when he communicated with the school about Jane, the school only ever referred to

Jane by her given female name “for the purpose of concealing Jane’s social transition.” (Id.)

Plaintiff learned of Jane’s social transitioning at school “months after it commenced,” when

another parent called Jane by a male name in Plaintiff’s presence. (Id.) In response, Plaintiff

pulled Jane from the regular classroom and placed her “on home instruction.” (Id. at 6-7)

In December 2023, Plaintiff met with the high school administration, including Miranda.

(Id. at 7.) Plaintiff informed the administration that he and Jane’s therapist “were not in agreement

with Jane’s social transition and expressly denied his consent to the continuance of Jane’s social

transition.” (Id.) The school district replied that it was compelled by law and policy to call Jane

by her preferred male name until such time as Jane indicated otherwise. (Id.)

Following that meeting, Plaintiff sent a cease-and-desist letter to Scott McKinney, the

superintendent of Delaware Valley Regional High School and chief executive of the school district.

(Id.; ECF No. 1-3 at 2-3.) In the letter, Plaintiff reasserted his parental rights and demanded that

the administration stop socially transitioning Jane. (ECF No. 1-3 at 2-3.) By letter dated December

14, 2023, counsel for the Board advised Plaintiff that “the District has and will continue to act in

accordance with applicable federal and state laws, and the New Jersey Department of Education’s

guidance on transgender students.” (ECF No. 1-5 at 2.) The Board also advised that because Jane

had not attended school for more than ten days, she would “be considered truant and the District

may have to take further action, as it is required by law to do . . . if she continues to be absent.”

(Id. at 3 (citing N.J.A.C. 6A:16-7.6).)

request. The parties will have an opportunity to provide a more fulsome record on this point in

advance of a preliminary injunction hearing.

In early January 2024, while the school district worked to implement approved home

instruction for Jane, counsel for the Board informed Plaintiff that “during home instruction the

teachers will comply with district policy, NJDOE guidance, and federal and state laws” regarding

Jane’s name preference. (ECF No. 4 at 11.) Plaintiff contends that the school’s insistence to refer

to Jane by her preferred name and pronouns against Plaintiff’s wishes “interfere[s] with . . .

[Plaintiff]’s parent-child relationship,” violates his “fundamental parental rights,” and establishes

“a policy that [makes] it impossible for Jane to receive a public education unless [Plaintiff] yielded

his constitutional and statutory parental rights.” (Id.)

Since commencing this lawsuit, Plaintiff has further alleged that “Jane was threatened with

truancy” if Plaintiff did not send Jane to approved instruction. (ECF No. 27 ¶ 7.) Plaintiff also

alleges that two workers from the Department of Children and Families, Division of Child

Protection, visited his home to conduct a wellness check and that they “obviously had been sent”

by the school. (Id. ¶ 9.)

Exhibit A to Plaintiff’s Verified Complaint is a copy of Board Policy 5756, titled

“Transgender Students.” (ECF No. 1-1 at 2.) In relevant part, the Policy states the following:

The school district shall accept a student’s asserted gender identity;

parental consent is not required. A student need not meet any

threshold diagnosis or treatment requirements to have his or her

gender identity recognized and respected by the school district,

school, or school staff members. In addition, a legal or court-

ordered name change 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.

[(Id. (emphases added).)]

If a parent disagrees with the minor student’s use of a different name and pronouns, the

Policy instructs “the Superintendent or designee [to] consult the Board Attorney regarding the

minor student’s civil rights and protections under the [New Jersey Law Against Discrimination],”

but staff “should continue to refer to the student in accordance with the student’s chosen name and

pronoun at school.” (Id.) The Policy also notes that school officials “should have an open, but

confidential discussion with the student” about the student’s preferences and “parental

communications,” and “should also discuss with the student, and any other individuals at the

student’s request, the risks associated with the student’s transgender status being inadvertently

disclosed.” (Id. at 3.)

The Board Policy mirrors the New Jersey Department of Education’s guidance that

“provide[s] direction for schools in addressing common issues concerning the needs of transgender

students.” (ECF No. 1-2 at 2.) New Jersey’s guidance also “assist[s] schools in establishing

policies and procedures that ensure a supportive and nondiscriminatory environment for

transgender students” consistent with the New Jersey Law Against Discrimination (NJLAD), and

Title IX of the Education Amendments of 1972. (Id.)

B. Procedural History

On January 5, 2024, Plaintiff filed the Verified Complaint (ECF No. 1) together with the

motion for a TRO and preliminary injunction (ECF Nos. 3 & 4).4 Upon receipt, the Court declined

to decide the motion ex parte and directed Plaintiff to serve Defendants in accordance with the

applicable federal and state rules. (ECF No. 11.) On January 31, after the parties were served

with Plaintiff’s Complaint and motion, the Court held a telephonic status conference. The parties

were permitted to submit further evidence and briefing through February 9. Plaintiff filed a

supplemental brief with additional exhibits. (ECF No. 25.) Defendants opposed, and Plaintiff

replied. (ECF Nos. 30-32.)

4 The Court has subject-matter jurisdiction over this action under 28 U.S.C. § 1331.

Plaintiff asserts three counts against Defendants, alleging violations of his constitutional

parental rights. (ECF No. 1 at 9-18.) The Board Defendants include the Delaware Valley Regional

High School Board of Education; Ashley Miranda; and Scott McKinney. (Id. at 6-7.) The State

Defendants are Angela Allen-McMillan in her capacity as the Acting Commissioner of the New

Jersey Department of Education,5 and New Jersey Attorney General Matthew J. Platkin. (Id. at 3.)

Count One seeks relief under the Declaratory Judgment Act, 28 U.S.C. § 2201. Plaintiff

alleges that the Attorney General is “actively litigating the legal position that . . . school districts

must follow” Board Policy 5756 and similar statewide guidance, “since to do otherwise would

violate the New Jersey Law Against Discrimination.” (Id. at 4.) Thus, under Count One, Plaintiff

seeks a declaration that the NJLAD and Board Policy 5756 are “unconstitutional and void . . . to

the extent that [they] would deprive parents of fully informed knowledge and consent with respect

to any aspect of their children’s education including . . . social transitioning in particular”; and that

“there is no fundamental constitutional right for a minor to socially transition.” (Id. at 12-14.)

Plaintiff also seeks to enforce statutory rights under the Department of Education Organization

Act of 1979, 20 U.S.C. § 3401. (Id. at 13-14.)

In addition, Plaintiff asks the Court to permanently enjoin the New Jersey Attorney General

from enforcing the NJLAD “or any other state law to the extent that it may” violate Plaintiff’s

substantive due process parental rights; “the Acting Commissioner of the NJDOE and anyone

acting under her from providing guidance to school districts in accordance with Policy 5756”; and

“the District, Superintendent, the Board, and all employees thereof, from enforcing Board Policy

5756 and otherwise acting to socially transition [Plaintiff’s] daughter without his fully informed

5 As of this Opinion, the Acting Commissioner of the New Jersey Department of Education

is Kevin Dehmer.

knowledge and consent.” Plaintiff also seeks an order requiring “the Board to provide mainstream

classroom instruction to Jane” and appointing “an independent monitor to protect [Plaintiff’s]

parental rights, at the Board’s sole expense, upon Jane’s return to school.” (Id. at 13-14.)

Count Two asserts a claim under 42 U.S.C. § 1983 for violations of Plaintiff’s

constitutional parental rights under the Fourteenth Amendment’s substantive due process clause.

(Id. at 15-17.)

Count Three asserts a violation of the New Jersey Civil Rights Act, N.J. Stat. Ann. § 10:6-

2, et seq., for interfering with Plaintiff’s “right to parent a minor child who is receiving a thorough

and efficient education.” (Id. at 17-18.)

II. LEGAL STANDARD

A. Temporary Restraining Order

“Preliminary injunctive relief is an extraordinary remedy and should be granted only in

limited circumstances.” Kos Pharms., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004)

(internal quotation marks and citation omitted). The elements for a preliminary injunction and a

temporary restraining order are the same. See Koons v. Reynolds, 649 F. Supp. 3d 14, 22 (D.N.J.

2023). A plaintiff seeking a TRO must establish that (1) he is reasonably likely to succeed on the

merits, (2) he is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance

of equities tips in his favor, and (4) an injunction is in the public interest. See Reilly v. City of

Harrisburg, 858 F.3d 173, 176 (3rd Cir. 2017); see also HR Staffing Consultants, LLC v. Butts,

Civ. No. 15-3155, 2015 WL 3492609, *7 (D.N.J. June 2, 2015) (quoting Winter v. Natural Res.

Def. Council, Inc., 555 U.S. 7, 20 (2008)). If a plaintiff meets the first two factors, the court “then

considers the remaining two factors and determines in its sound discretion if all four factors, taken

together, balance in favor of granting the requested preliminary relief.” Reilly, 858 F.3d at 179.

“A primary purpose of a preliminary injunction is maintenance of the status quo until a

decision on the merits of a case is rendered.” Acierno v. New Castle Cnty., 40 F.3d 645, 647 (3d

Cir. 1994). Thus, “[a] party seeking a mandatory preliminary injunction that will alter the status

quo bears a particularly heavy burden in demonstrating its necessity.” Id. at 653 (citation omitted).

The party seeking to alter the status quo “must meet a higher standard of showing irreparable harm

in the absence of an injunction.” Bennington Foods LLC v. St. Croix Renaissance Grp., LLP, 528

F.3d 176, 179 (3d Cir. 2008).

B. Burden of Proof

Generally, the moving party bears the burden to convince the court that all four factors

favor preliminary relief. Peter v. Att’y Gen. of N.J., Civ. No. 23-03337, 2023 WL 4627866, at *1

(D.N.J. July 19, 2023) (citing AT&T v. Winback and Conserve Program, Inc., 42 F.3d 1421, 1427

(3d Cir. 1994)). Because “the burdens at the preliminary injunction stage track the burdens at trial,”

there are instances when the burden may shift. See Reilly, 858 F.3d at 179 (citing Gonzales v. O

Centro Espirita Beneficente Uniao do Vegetal, et al., 546 U.S. 418, 429 (2006)). For preliminary

injunctions related to constitutional rights, the moving party must first demonstrate a likelihood of

successfully showing that a fundamental right is being infringed. See id. at 180 n.5 (noting that

the party seeking injunctive relief under the First Amendment “still retains the burden of proof in

two principal ways: it must prove that the law restricts protected speech and that it will suffer

irreparable harm” (citing Goodman v. Illinois Dep’t of Fin. & Prof’l Regulation, 430 F.3d 432,

438 (7th Cir. 2005))).

If the moving party makes that showing, the burden shifts to the government to justify its

restriction under the appropriate level of scrutiny. See id. (citing Thalheimer v. City of San Diego,

645 F.3d 1109, 1116 (9th Cir. 2011)). “If the government succeeds in justifying the restriction,

then the motion for a preliminary injunction fails because there is no likelihood of success on the

merits. And even if the moving party prevails on that prong, it still bears the burden of showing

irreparable injury.” Id.

Here, Plaintiff must show that he is reasonably likely to succeed in proving that Defendants

infringed on a substantive due process right. If Plaintiff makes that showing, the burden shifts to

Defendants to justify their actions under the appropriate level of scrutiny. Plaintiff also has the

burden of establishing irreparable harm in the absence of preliminary relief. Id.

III. DISCUSSION

A. Likelihood of Success on the Merits

&

The Court will first address Plaintiff’s likelihood of success on the merits. Because the

Declaratory Judgment Act does not provide an independent cause of action,6 the Court turns to

Plaintiff’s claims under § 1983 and the Department of Education Organization Act of 1979, 20

U.S.C. § 3401.

Plaintiff’s reliance on 20 U.S.C. § 3401(3) appears misplaced. Section 3401(3) provides

that “parents have the primary responsibility for the education of their children, and States,

localities, and private institutions have the primary responsibility for supporting that parental role.”

This provision is one of ten congressional findings enumerated in the legislation that created the

6 See, e.g., Malhan v. Sec. U.S. Dep’t of State, 938 F.3d 453, 457 n.3 (3d Cir. 2019) (“[T]he

Declaratory Judgment Act is procedural only, and presupposes the existence of a judicially

remediable right. It creates a remedy, not rights.” (internal quotation marks and citations omitted));

Everest Indem. Ins. Co. v. All Risks LTD, Civ. No. 16-3582, 2023 WL 4295778, at *4 n.8 (D.N.J.

June 30, 2023) (“Declaratory judgment is a remedy, not an independent cause of action.”

(collecting cases)).

U.S. Department of Education in 1979.7 Plaintiff argues that § 3401 is “the supreme law of the

land” and that Board Policy 5756 violates § 3401(3) by removing “parents from having primary

responsibility for the education of their children.” (ECF No. 4 at 15; ECF No. 1 at 10.) But

Plaintiff has not cited, nor has the Court found, any authority supporting the argument that § 3401

confers an enforceable statutory right. Absent such authority, the Court finds that at this stage,

Plaintiff has not demonstrated that these Congressional findings are anything more than “general

statements of federal policy” as opposed to “newly created legal duties.” See Pennhurst State Sch.

& Hosp. v. Halderman, 451 U.S. 1, 22-23 (1981); see also E. Shoshone Tribe v. N. Arapaho Tribe,

926 F. Supp. 1024, 1032 (D. Wyo. 1996) (finding reliance on “novel, untested” theory “does not

provide any assurance of eventually prevailing on the merits”); Ruppert v. Washington, 366 F.

Supp. 683, 685 (D.D.C. 1973) (denying preliminary injunction where the “issues [we]re novel”

and “the likelihood of success on the merits appear[ed] very slight”). Therefore, Plaintiff has not

met his burden to establish a likelihood of success on the merits for his claims based on § 3401.

Next, to establish a claim under 42 U.S.C. § 1983, Plaintiff must show that he has been

deprived of a federal constitutional right under color of state law. See Anspach ex rel. Anspach v.

City of Phila., Dept. of Pub. Health, 503 F.3d 256, 261 (3d Cir. 2007) (noting that courts are to

“remain mindful that section 1983 imposes liability for violations of rights protected by the

Constitution, not for violations of duties of care arising out of tort law”). Here, Plaintiff asserts

that Defendants are “state actors who are violating [Plaintiff’s] fundamental constitutional

parenting rights” under the substantive Due Process Clause of the Fourteenth Amendment of the

7 Department of Education Organization Act, Pub. L. No. 96-88, 93 Stat. 668 (1979); see

Cottrell v. United States Department of Educ., 430 F. Supp. 3d 1287, 1290 (N.D. Fl. 2019) (“The

Department of Education (‘DOE’) is an executive-branch agency that Congress created in 1979

through the Department of Education Organization Act . . . codified at 20 U.S.C. §§ 3401-3508.”).

United States Constitution. (ECF No. 4 at 13.)

The Fourteenth Amendment forbids states from depriving “any person of life, liberty, or

property, without due process of law.” U.S. Const. amend. XIV. The Due Process Clause

enumerates both substantive and procedural rights. See Steele v. Cicchi, 855 F.3d 494, 501 (3d

Cir. 2017). Plaintiff asserts only substantive due process violations. (See ECF No. 4 at 13.) To

show a violation, Plaintiff must “demonstrate that he has ‘been deprived of a particular interest

that is protected by . . . substantive due process.’” Holland v. Rosen, 895 F.3d 272, 292 (3d Cir.

2017) (quoting Steele, 855 F.3d at 501).

The substantive component of the Due Process Clause protects both those rights guaranteed

by the first eight amendments, and fundamental rights that are not mentioned in the Constitution

but are “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered

liberty, such that neither liberty nor justice would exist if they were sacrificed.” Washington v.

Glucksberg, 521 U.S. 702, 720-21 (1997) (quotation marks and citations omitted). Asserting a

substantive due process right “requires ‘a careful description of the asserted fundamental liberty

interest.’” Holland, 895 F.3d at 292 (first quoting Chavez v. Martinez, 538 U.S. 760, 775-76

(2003); and then quoting Glucksberg, 521 U.S. at 721). “[V]ague generalities . . . will not suffice.”

Id. “Both the Supreme Court and [the United States Court of Appeals for the Third Circuit] have

repeatedly warned that we cannot read these phrases too broadly to expand the concept of

substantive due process.” Id. at 293. “A court is most vulnerable and comes nearest to illegitimacy

when it deals with judge-made constitutional law having little or no cognizable roots in the

language or design of the Constitution.” Id. (quotations and citation omitted). Because a court’s

expansion of the concept of due process “place[s] the matter outside the arena of public debate and

legislative action,” the “doctrine of judicial self-restraint requires [courts] to exercise the utmost

care whenever [they] are asked to break new ground in this field.” Doe by and through Doe v.

Boyertown Area Sch. Dist., 276 F. Supp. 3d 324, 383 (3d Cir. 2017), aff’d, 897 F.3d 518 (3d Cir.

2018) (citations omitted).

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. (See ECF No. 4 at 14 (citing Troxel v. Granville, 530 U.S. 57, 65 (2000)).) 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. (ECF No. 25 at 11-14 (collecting

cases).)

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. At this stage, based on a careful

review of all submissions, the Court finds that Plaintiff has not shown a likelihood of success on

the merits as to this question.

For one, the cases that establish fundamental parental rights — and define the scope of

those rights in a school setting — do not support the type of unqualified right that Plaintiff asserts

in this case. Although United States Supreme Court precedent has affirmed the right of parents to

control the upbringing of their children, it has also recognized that this right is not absolute in a

school setting and that schools may impose reasonable regulations. See, e.g., Meyer v. Nebraska,

262 U.S. 390, 402 (1923) (“The power of the state to compel attendance at some school and to

make reasonable regulations for all schools . . . is not questioned.”); Pierce v. Soc’y of Sisters, 268

U.S. 510, 534 (1925) (“No question is raised concerning the power of the state reasonably to

regulate all schools . . . and that nothing be taught which is manifestly inimical to the public

welfare.”); Wisconsin v. Yoder, 406 U.S. 205, 213-14 (1972) (recognizing the power of the state

“to impose reasonable regulations for the control and duration of basic education,” which must be

balanced “when it impinges on fundamental rights”).

The Third Circuit has similarly recognized that although the “Supreme Court has never

been called upon to define the precise boundaries of a parent’s right to control a child’s upbringing

and education,” it is “clear . . . that the right is neither absolute nor unqualified.” C.N. v. Ridgewood

Bd. of Educ., 430 F.3d 159, 182 (3d Cir. 2005) (collecting cases). And “despite the Supreme

Court’s ‘near-absolutist pronouncements’ concerning the right to familial privacy, the right is

necessarily qualified in a school setting where ‘the state’s power is custodial and tutelary,

permitting a degree of supervision and control that could not be exercised over free adults.’” Id.

(quoting Gruenke v. Seip, 225 F.3d 290, 304 (3d Cir. 2000)).

The Third Circuit has also found dispositive that in each of the foundational Supreme Court

cases recognizing the right of parents to direct the upbringing of their children, “the state was either

requiring or prohibiting some activity” by the parents. See Anspach, 503 F.3d at 263-64. In

Anspach v. City of Philadelphia, Department of Public Health, a public health center that provided

a minor with emergency contraceptive pills without her parents’ knowledge or consent was found

not to have violated the parents’ substantive due process rights. Id. at 264-65. The Third Circuit

reasoned that the state in Anspach was not constraining or compelling any action by the parents,

in contrast to the laws at issue in Supreme Court cases such as Meyer, Pierce, and Yoder.8 Id. at

8 In Meyer, the Supreme Court struck down a blanket prohibition against the teaching of

foreign languages, holding that parents have a right “to engage [a teacher] . . . to instruct their

children” in a language other than English. 262 U.S. at 400. In Pierce, the Court found that a law

requiring parents to send children to public schools violated the parents’ right “to direct the

upbringing and education” of their children because it prohibited sending the children to private

263-65. Phrased differently, “[e]very Supreme Court case discussing fundamental rights of

parents with respect to their children address[es] a state law or regulation that requires children to

engage in an activity their parents do not want them to engage in, or prohibits children from

engaging in an activity their parents do want them to engage in.” Reardon v. Midland Comm.

Schs., 814 F. Supp. 2d 754, 769 (E.D. Mich. 2011) (emphasis added).

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. See Anspach, 503

F.3d at 264. 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 the 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. Anspach, 503 F.3d at 262 (emphasis in

original). 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.” Id. Plaintiff has not demonstrated on the factual record at this

preliminary stage that such a right is “deeply rooted in this Nation’s history and tradition” or

“implicit in the concept of ordered liberty,” and this Court is guided by the Supreme Court’s and

Third Circuit’s admonitions not to “read these phrases too broadly to expand the concept of

schools. 268 U.S. at 534-35. And in Yoder, the Court found that a law prohibiting Amish parents

from withdrawing children from school after a certain age violated both the First Amendment and

the parents’ substantive due process rights. 406 U.S. at 234.

substantive due process . . . with judge-made constitutional law having little or no cognizable roots

in the language or design of the Constitution.” Holland, 895 F.3d at 293.

Nor does the current record establish the type of proactive, coercive interference with the

parent-child relationship that the Third Circuit has found to violate parents’ constitutional rights

in analogous circumstances.

In Gruenke v. Seip, for example, a high school swim coach pressured a student to take a

pregnancy test without her parents’ knowledge or consent. 225 F.3d 290, 295-97 (3d Cir. 2000).

The plaintiffs asserted several violations of constitutional rights, including that the coach’s actions

“violated [the mother’s] constitutional right to manage the upbringing of her child” and

“obstruct[ed] the parental right to choose the proper method of resolution” of her daughter’s

pregnancy. Id. at 306. Given the coach’s “continued intrusion into what was a private family

matter . . . contrary to [the student’s] express wishes that he mind his own business,” the Third

Circuit found that the plaintiffs had established an “unconstitutional interference with familial

relations.” Id. at 306-07.

Five years later, in C.N. v. Ridgewood Board of Education, the Third Circuit contrasted the

Gruenke defendant’s behavior with a school survey that questioned students without parental

consent about sensitive topics, such as sexual activity. 430 F.3d 159 (3d Cir. 2005). The Third

Circuit held that the survey did not violate the parents’ right to control their children’s upbringing

because the survey, unlike the coach’s actions in Gruenke, did not “strike at the heart of parental

decision-making authority on matters of the greatest importance.” Id. at 184. The Court reasoned

that a “parent whose middle or high school age child is exposed to sensitive topics or information

in a survey remains free to discuss these matters and to place them in a family’s moral or religious

context, or to supplement the information . . . [but] School Defendants in no way indoctrinated the

students in any particular outlook on these sensitive topics.” Id. at 185. Thus, the Court concluded

that the survey’s interference with parental-decision making authority did not amount to a

constitutional violation. Id.

The Court in Anspach similarly found that its holding in Gruenke “does not extend to

circumstances where there is no manipulative, coercive, or restraining conduct by the State.” 503

F.3d at 266. In Anspach, the Court emphasized that the coach in Gruenke acted “contrary to the

student’s express wishes that he mind his own business,” and “against her express wishes, the

coach . . . attempt[ed] to have her admit to being pregnant, . . . paid for a pregnancy test and told

her, through other members on the team, that unless she took the pregnancy test, he would take

her off the relay team.” Id. at 266. The Third Circuit contrasted the coach’s behavior with that of

the health clinic, which neither coerced the minor into taking emergency contraceptives, nor

discouraged her from discussing the issue with her parents. Id. at 266-67. The minor was “only

given the pills because she asked for them,” and no one at the center coerced her into taking the

pills or discouraged her from discussing the issue with her parents. 503 F.3d at 264-65.

The Anspach decision also distinguished Arnold v. Board of Education of Escambia County,

Alabama, a case in the United States Court of Appeals for the Eleventh Circuit where school

officials “not only pressured [minor students] to refrain from discussing [a] pregnancy and abortion

with their parents, but also imposed their own will on the decision of the children regarding

whether to abort the pregnancy in various ways, including by providing them with the money for

the procedure and hiring a driver to take them to the appointment.” Id. at 265 (citing Arnold v. Bd.

of Educ. of Escambia, County, Ala., 880 F.2d 305, 308-09 (11th Cir. 1989), overruled on other

grounds by Leatherman v. Tarrant Cnty. Narcotics Intel. & Coordination Unit, 507 U.S. 163, 113

(1993)). Critical here, while the school officials’ behavior in Arnold and Gruenke violated parental

liberty rights, the Third Circuit highlighted that “neither Arnold nor Gruenke provide for a

[parent’s] constitutional right to notice.” Id. at 270.

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” (ECF No. 4 at

17), Plaintiff cannot amend his pleadings by way of his brief,9 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.” (ECF No. 1 at 5.) To the

extent the Board Defendants “continue[] insisting on socially transitioning Jane” (ECF No. 27 ¶

8), they are doing so only at Jane’s affirmative request. (ECF No. 1 at 7 (“The District advised

that it would continue to have Jane called by a male name until such time as Jane indicated

otherwise.”).)

Plaintiff’s allegations show that the Board Defendants accepted Jane’s request to be

recognized by a different name and pronouns, and for the school not to report her request to her

9 See, e.g., Kwanzaa v. Brown, Civ. No. 05-5976, 2009 WL 4139393, at *25 (D.N.J. Nov.

17, 2009) (finding that a plaintiff may not amend his complaint through arguments in a brief

supporting a motion for a TRO (citing Bell v. City of Phila., 275 Fed. App’x 157, 160 (3d Cir.

2008)).

father, consistent with Board Policy 5657. Because the record indicates that Jane made her own

request to be recognized by a different gender identity and to withhold this information from

Plaintiff — as opposed to doing so at the direction of the Board Defendants — this Court is not

yet persuaded that the Board Defendants have engaged in a level of interference comparable to

that in Gruenke, where a school official “exploit[ed his] authority to persuade or coerce a minor

into disclosure of a reproductive health condition,” and “insist[ed] on a course of action.” Anspach,

503 F.3d at 270 (citing Gruenke, 225 F.3d at 307).

This Court is further guided by the decisions of other District Courts that have weighed

parental liberty interests against similar transgender student policies and have distinguished

between school officials who proactively coerce students and those who recognize a student by

the student’s preferred gender identity.

In Littlejohn v. School Board of Leon County Florida, a middle school developed a support

plan for a student who requested to socially transition — including changing the student’s name,

pronouns, and preferred restroom — without including or immediately notifying the parents,

despite the parents’ previously informing the school that they did not consent. 647 F. Supp. 3d

1271, 1273-74 (N.D. Fla. 2022). The school was also aware that the student had previously been

diagnosed with ADHD and was “expressing gender confusion.” Id. at 1273. In bringing suit, the

parents alleged that the school had violated their protected liberty interests in familial privacy, the

upbringing of their child, and the medical and mental health decision-making for their child. Id.

at 1282. On a motion to dismiss, the District Court for the Northern District of Florida found that

the school had not infringed on the parents’ substantive due process rights in part because the

student had approached the school on his own volition and asked the school to use his preferred

name and pronouns. Id. at 1282 n.6. The student had not been “singled out” or “forced to adopt

a support plan against [the student’s] will. Id. at 1282-83.

Similarly, in Willey v. Sweetwater County School District No. 1 Board of Trustees, the

parents argued that a school district’s policy directing school officials to refer to students by their

preferred names and pronouns, and to “respect the privacy of all students regarding such choice,”

violated the parents’ Fourteenth Amendment rights to direct the upbringing of their children, make

decisions regarding their children’s medical care, and familial privacy. Civ. No. 23-069, 2023 WL

4297186, at *1, *10 (D. Wy. Jun. 30, 2023). On a motion for a preliminary injunction, the District

Court for the District of Wyoming found it unlikely that the parents would successfully assert a

right to direct medical care absent “evidence the Student was suffering or diagnosed with a mental

health condition related to gender identity.” Id. at *11. The court opined that even if the student

had been diagnosed with a mental health condition related to gender identity, the school’s policy

did not constitute a “treatment” that interfered with the parents’ right to make medical decisions,

because the school did not actively suggest that the student change their name and pronouns —

“the school merely addressed the Student by the Student’s requested preferred name and pronoun.”

Id. The court found that the policy was likely unconstitutional only to the extent that it “would

preclude a teacher or school district personnel, absent a minor student’s consent, from answering

or responding to a parent’s or guardian’s inquiry as to whether their child is being called by other

than their legally given name or required to lie to a parent or guardian as to the name the minor

student is being called by.” Id. at *13-14 (but finding it unlikely that the Constitution imposes an

affirmative obligation to actively disclose such information to parents absent a parent’s inquiry or

request).

And in Regino v. Staley, a school district’s regulation permitted school personnel to refer

to students by their preferred name and pronouns, and prohibited school personnel from informing

a student’s parents of the student’s social transition without the student’s consent, with some

limited exceptions. Civ. No. 23-00032, 2023 WL 4464845, at *1 (E.D. Cal. 2023). An elementary

school student then asked school officials to recognize her as a different gender, and not to inform

the student’s mother. Id. The student’s mother filed suit, arguing that the regulation violated the

mother’s substantive due process rights to make important medical and social decisions for her

child. Id. at *2. The plaintiff argued that “social transitioning is a significant form of psychological

treatment” and “can have grave consequences for children.” Id. at *3. The District Court for the

Eastern District of California held that the plaintiff was “advocating for an expansion of her

parental substantive due process rights that is not supported by precedent.” Id. The regulations at

issue, the court explained, were “not proactive, but reactive; District staff are not directed to force

students to adopt transgender identities or keep their identities secret from their parents.” Id. at *4.

“[T]he decision to openly express a transgender identity through the use of a different name and

pronouns [was] made by the student, not the District.” Id.

The school officials’ actions in Littlejohn, Willey, and Regino, like those in this case, are

different from those at issue in Tatel v. Mount Lebanon School District, 637 F. Supp. 3d 295, 336

(W.D. Pa. 2022). In Tatel, the plaintiff parents were found to have asserted a plausible substantive

due process claim against a teacher who discussed gender dysphoria and transgender transitioning

with first graders. Id. at 303-04. The teacher did so despite the published first-grade curriculum

not mentioning these topics, and despite a school official assuring parents who expressly objected

to these topics that “there were no formal lessons about gender identity, especially in first grade.”

Id. at 304-06. The teacher in Tatel showed the children books and videos on transgender topics;

told first graders that “parents make mistakes about gender; instructed students not to discuss this

topic with their parents; told a child she would never lie (implying the parents may be lying about

the child’s [gender] identity); targeted one student for repeated approaches about his becoming

like her transgender child; and caused another child to be confused about how her parents

determined her gender.” Id. at 326. Under these circumstances, the District Court for the Western

District of Pennsylvania found that the plaintiffs asserted plausible substantive due process

violations of parental rights because transgender topics “implicate a core parental interest in

forming the identity of their children” and that “[t]eaching a child how to determine one’s gender

identity at least plausibly is a matter of great importance that goes to the heart of parenting.” Id.

at 326, 336 (citing Doe by & through Doe v. Boyertown Area Sch. Dist., 897 F.3d 518, 522 (3d

Cir. 2018)).

Here, unlike in Tatel, Plaintiff has not yet established that the Board Defendants engaged

in coercive behavior that violate parental rights. Again, it appears undisputed that the Board

Defendants acted in response to Jane’s affirmative request to be recognized as to her preferred

gender identity. Under Board Policy 5756, “the decision to openly express a transgender identity

through the use of a different name and pronouns is made by the student,” not the Board

Defendants. See Regino, 2023 WL 4464845, at *4. The Court’s ruling aligns with several other

courts’ holdings that a school district’s recognition of a student’s preferred gender identity does

not violate parental constitutional rights. Id.; Littlejohn, 647 F. Supp. 3d at 1282-83; Willey, 2023

WL 4297186, at *12-16. Nor does the Policy encourage students to keep their preferred gender

identities secret from their parents.10 The issue here, like in Regino, is “not whether it is a good

10 Even accepting Plaintiff’s allegations that Miranda did not send her staff-wide email to two

teachers close to the Doe family, and generally referred to Jane by her given name when speaking

to Plaintiff, this conduct alone would not rise to the level of active deception resulting in a

constitutional violation. See Willey, 2023 WL 4297186, at *13-14 (finding that the Constitution

does not impose an affirmative obligation on the District to disclose a student’s asserted gender

identity to the student’s parents, but that a policy precluding school officials from responding to a

parent’s inquiry, or requiring officials to lie upon a parent’s inquiry, likely violated the

idea for school districts to notify parents of a minor’s gender identity and receive consent before

using alternative names and pronouns, but whether the United States Constitution mandates such

parental authority [and consent].” 2023 WL 4464845, at *4. The Court finds that it does not.

Plaintiff is also unlikely at this stage to succeed in showing an infringement of his “right

to make healthcare and medical decisions for his child.” (ECF No. 1 at 2.) Plaintiff alleges that

Jane “has been under the care of a therapist for . . . gender confusion” and that Plaintiff and “mental

health professionals have agreed to take a cautious approach to Jane’s gender confusion.” (Id. at

4.) Gender dysphoria has been “recognized by the American Psychiatric Association’s Diagnostic

& Statistical Manual of Mental Disorders (‘DSM’) as clinically significant distress or impairment

related to gender incongruence.’” Willey, 2023 WL 4297186, at *11 (citations omitted). But

Plaintiff has not alleged here that Jane has been diagnosed with gender dysphoria. (See ECF No.

1 at 4.) And even if Jane’s visits with therapists for “gender confusion” amount to a “mental health

condition related to gender identity,” Plaintiff has not yet shown that the Board Defendants’

recognition of Jane’s preferred gender identity has violated Plaintiff’s right to direct Jane’s medical

treatment. Again, there are no allegations that the Board Defendants engaged in “treatment” by

“actively approach[ing] [Jane] regarding [Jane’s] preferred name,” or that they suggested that Jane

be referred to by a particular name and pronoun. See Willey, 2023 WL 4297186, at *11 (citing

Foote v. Town of Ludlow, Civ. No. 22-30041, 2022 WL 18356421, at *5 (D. Mass. Dec. 14, 2022)).

Where, as here, it appears that “the school merely addressed the Student by the Student’s requested

preferred name and pronoun,” and that “it was the Student initiating and requesting the use of a

different name, not the District,” Plaintiff has not yet established a likelihood of showing that the

Constitution). Plaintiff has not cited to any case law that would support a contrary finding. Nor

has Plaintiff demonstrated that Board Policy 5756 categorically prohibits school officials from

responding to parental inquiries, or requires them to lie about a child’s preferred gender.

Board Defendants have interfered with Plaintiff’s right to make medical decisions for Jane. Id.

In sum, Plaintiff has not identified precedent that would support a finding based on the

current record that “the scope of the familial liberty interest protected under the Constitution”

obligates the Board Defendants to refrain from recognizing Jane by her preferred gender identity

without Plaintiff’s consent or obligates the Board Defendants to notify Plaintiff about Jane’s

request. See Anspach, 503 F.3d at 262. Because Plaintiff has not yet established infringement of

a fundamental right, Board Policy 5756 need only satisfy a rational basis review. See Glucksberg,

521 U.S. at 2271 (finding that a law that did not infringe on a fundamental liberty interest must

“be rationally related to legitimate government interests”). And the Third Circuit has already held,

under a strict scrutiny analysis, that a school district has “a compelling state interest in protecting

transgender students from discrimination.” Boyertown, 897 F.3d at 529. Specifically, the Third

Circuit found that a school district’s policy of allowing transgender students to use bathrooms and

locker rooms consistent with the students’ gender identities served the compelling interest of

shielding transgender students from discrimination and was narrowly tailored to accomplish this

purpose. See id. at 529-30. The Third Circuit also recognized that “when transgender students are

addressed with gender appropriate pronouns . . . those students ‘reflect the same, healthy

psychological profile as their peers.’” Id. at 523 (citation omitted).

Here, the State Defendants argue that Board Policy 5756 advances the same compelling

interest as that in Doe — “shielding [transgender students] from discrimination.” (ECF No. 31 at

33.) The State Defendants further argue that the Policy advances the compelling state interests of

“foster[ing] an environment of inclusivity, acceptance, and tolerance,” and “protecting the physical

and psychological well-being of minors,” particularly where there is evidence that when

transgender identities are affirmed, transgender students “reflect the same, healthy psychological

profile as their peers.” (ECF No. 31 at 33-35 (citing Doe, 897 F.3d at 528-29).) The Board Policy

itself purports to address “common issues concerning the needs of transgender students, and to

assist schools in establishing policies and procedures that ensure a supportive and

nondiscriminatory environment for transgender students.” (ECF No. 1-1 at 2.) For purposes of

this TRO, Defendants are likely to successfully show that these objectives are legitimate state

interests, and that Board Policy 5756 reasonably advances these legitimate objectives by requiring

schools to recognize transgender students by their preferred gender identity without affirmatively

notifying or seeking consent from a parent.

For these reasons, the Court concludes that Plaintiff has not yet proven a reasonable chance

of success on the merits of his § 1983 claim sufficient to grant the extraordinary emergency

injunctive relief that he seeks.

Finally, Plaintiff does not advance a specific argument in his moving papers about his

likelihood of success on the merits of Count Three, which alleges a violation of “the right to parent

a minor child who is receiving a thorough and efficient education.” (ECF No 1 at 17.) The New

Jersey State Constitution sets forth that the New Jersey “Legislature shall provide for the

maintenance and support of a thorough and efficient system of free public schools for the

instruction of all the children in the State between the ages of five and eighteen years.” N.J. Const.

art. VIII, § 4, para. 1. Plaintiff generally asserts that Board Policy 5657 makes it “impossible for

Jane to receive a public education unless [Plaintiff] yield[s] his constitutional and statutory parental

rights.” (ECF No. 4 at 11.) Nevertheless, because this Court finds that Plaintiff has not yet

established an infringement of his parental rights, this argument cannot prevail at this time.

Plaintiff has not cited any case law showing that this clause in the New Jersey Constitution applies

under such circumstances. Therefore, at this stage, Plaintiff does not meet his burden of proving

a reasonable chance of success on the merits with respect to Count Three.

B. Irreparable Harm

Turning to irreparable harm — Plaintiff’s asserted irreparable harm is his loss of parental

rights, “for even [a] minimal period[] of time.” (ECF No. 4 at 15.) Plaintiff also asserts that an

attorney for the school “threatened Jane with truancy” if Plaintiff continues to withhold her from

school. (ECF No. 25 at 10.) Because Plaintiff has not shown a reasonable likelihood that he can

prove that his fundamental parental rights are being infringed, Plaintiff has not established a

likelihood that his parental rights will be irreparably harmed if the Board Defendants continue to

recognize Jane by her preferred gender identity.

Some record evidence suggests that the school may have to address Jane’s absence from

school, which may include initiating truancy proceedings. (See ECF No. 1-5 at 3 (a letter from

counsel for the school district dated December 14, 2023, stating: “[Jane] will be considered truant

and the District may have to take further action, as it is required by law to do, N.J.A.C. 6A:16-7.6,

if she continues to be absent.”); ECF No. 24-4 at 2 (a letter from counsel for the school district

dated January 18, 2024 stating: “If [Jane] participates in scheduled home instruction regularly then

the District will not have to take action regarding [Jane’s] attendance. If [Jane] does not participate

in home instruction the District is required to address the compulsory education requirements.”).)

But the record does not suggest that truancy proceedings are imminent. Moreover, Plaintiff states

that “two workers from the Department of Children and Families, Division of Child Protection,

visited [his] home and began inquiring about Jane for a well check and to make sure that she was

okay.” (ECF No. 27 ¶ 9.) Plaintiff further notes that the “workers indicated that they were very

satisfied with the manner in which [Plaintiff] was handling the situation and protecting Jane.” (Id.)

And to the extent that (tuancy proceedings could occur if Plaintiff continues to withhold Jane from

school, Plaintiff has not yet shown a likelihood of success on the merits that this potential harm is

tied to an infringement of Plaintiff's constitutional parental rights, Thus, without a reasonable

likelihood of success on the merits, Plaintiff has not met the “particularly heavy burden” to justify

the extraordinary mnjunctive relief that would alter the status quo — that is, the Board Defendants’

continued adherence to Board Policy 5756. See Acierno, 40 F.3d at 653 (citation omitted).

CONCLUSION

For the foregoing reasons, Plaintiff's Motion for a Temporary Restraining Order (ECF Nos,

3 & 4) is DENIED. An appropriate Order follows.

Dated: February □□ 2024 Lie ed

i RGETHE CASTNER

(UNITED STATES DisTRICT JUDGE

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