Patricia Montana, David M. Grande, Thomas Perri, Agnieszka Norman, Lisa Cassilli, and Janet DiSano v. Anthony Grosso, Superintendent, and Board of Education of the Township of Cedar Grove, Essex County, 12/16/2021, (#331-21)

331-21
New Jersey Commissioner of Education
Final Decision
Patricia Montana, David M. Grande,
Thomas Perri, Agnieszka Norman,
Lisa Cassilli, and Janet DeSiano,
Petitioners,
v.
Anthony Grosso, Superintendent, and Board of
Education of the Township of Cedar Grove,
Essex County,
Respondent.
Synopsis
Petitioners – parents of students attending Cedar Grove schools – alleged that the Board improperly
administered surveys to students without obtaining parental consent. Petitioners sought, among other
things, to have the surveys and all related results removed from any student records and discarded. The
respondent Board filed a motion to dismiss in which it denied that the survey in question required prior
parental consent, arguing that said survey did not touch upon any of the personal and sensitive
categories enumerated in N.J.S.A. 18A:36-34(a). The petitioners filed a motion for summary decision.
The ALJ found, inter alia, that: the survey was not voluntary, as students were not informed that it was
voluntary at the time the surveys were distributed; the surveys did in fact touch on subjects for which
parental consent is required by N.J.S.A. 18A:36-34 as they included questions about gender identity,
gender discrimination, and family demographics which could elicit responses concerning sexual behavior
or attitudes; accordingly, the Board did violate the statute by failing to obtain consent prior to
administering the surveys; further, the survey distributed to elementary students violated
N.J.S.A. 18A:36-36(a) by requiring students to provide information regarding their race and ethnicity in
class. The ALJ concluded that the appropriate remedy is for the Board to discard the surveys and all
results derived therefrom from the district’s website, student records, the district’s Equity and Diversity
Advisory Council, and any other entity with whom the results of the survey were shared. Accordingly,
the ALJ denied the Board’s motion to dismiss and granted petitioner’s motion for summary decision.
Upon review, the Assistant Commissioner, to whom this matter was delegated pursuant to
N.J.S.A. 18A.4-34, concurred with the ALJ’s determinations herein and granted the petitioners’ motion
for summary decision. In so doing, the Assistant Commissioner noted that while the Board’s efforts to
explore and address diversity, inclusion, and equity in its schools is commendable, such efforts cannot
outweigh statutory requirements regarding the administration of surveys to students.
This synopsis is not part of the Commissioner’s decision. It has been prepared for the convenience of the reader.
It has been neither reviewed nor approved by the Commissioner.

OAL Dkt. No. EDU 06551-21
Agency Dkt. No. 104-7/21
New Jersey Commissioner of Education
Final Decision
Patricia Montana, David M. Grande,
Thomas Perri, Agnieszka Norman,
Lisa Cassilli, and Janet DeSiano,
Petitioners,
v.
Anthony Grosso, Superintendent, and Board of
Education of the Township of Cedar Grove,
Essex County,
Respondents.
The record of this matter, the Initial Decision of the Office of Administrative Law (OAL) and
the exceptions filed by the Board1 pursuant to N.J.A.C. 1:1-18.4 have been reviewed and
considered.2
Petitioners, who are parents and caregivers of students in Cedar Grove schools, filed a
petition of appeal asserting that the Board had improperly administered surveys to students
without obtaining parental consent. Following the Board’s motion to dismiss and petitioner’s
motion for summary decision, the Administrative Law Judge (ALJ) found that the survey was not
voluntary, as no students were informed it was voluntary. The ALJ concluded that the surveys
touched on subjects for which parental consent is required by N.J.S.A. 18A:36-34 and that the Board
1 Respondents shall collectively be referred to as “the Board.”
2 Petitioners did not file a reply to the Board’s exceptions. The Department of Education received several
submissions from members of the public regarding this matter. As there is no provision in the applicable statutes
or regulations for submissions from the public regarding contested cases, these submissions were not considered.
331-21

2
violated the statute by failing to obtain consent prior to administering the surveys. Specifically, the
ALJ concluded that questions about gender identity, gender discrimination, and family
demographics could elicit responses concerning sexual behavior or attitudes. The ALJ also
concluded that the survey distributed to elementary school students violated N.J.S.A. 18A:36-36(a)
by requiring students to provide information regarding their race and ethnicity in class. The ALJ
determined that the appropriate remedy is for the Board to discard the surveys and all results
derived therefrom from the district’s website, student records, the district’s Equity and Diversity
Advisory Council, and any other entity with whom the results of the survey were shared.
Accordingly, the ALJ denied the Board’s motion to dismiss and granted petitioner’s motion for
summary decision.
In its exceptions, the Board argues that there is an issue of material fact regarding whether
parental consent is required to ask a student’s gender identity and that the ALJ improperly equated
“gender identity” to “sexual behaviors and attitudes.” The Board notes that the New Jersey
Department of Education’s (DOE) “Transgender Student Guidance for School Districts” states that
“a school district shall accept a student’s asserted gender identity; parental consent is not
required.” The Board also contends that the ALJ’s conclusion was based on outdated information
that characterized gender dysphoria as a mental illness, despite the fact that it has not been so
characterized since 2013. Additionally, the Board argues that the surveys were voluntary, not
required, and therefore no violation of N.J.S.A. 18A:36-36 occurred. Finally, the Board contends
that none of the surveys touched on the areas listed in N.J.S.A. 18A:36-34, and therefore parental
consent was not required.

3
Upon review, the Assistant Commissioner3 concurs with the ALJ that the Board violated
N.J.S.A. 18A:36-36(a) by asking students to identify their race and ethnicity on a survey distributed
in elementary school classrooms. While the Board contends that the surveys were voluntary rather
than required, the Assistant Commissioner does not find this argument persuasive. Third and
fourth graders who receive a survey in class would reasonably conclude that they are required to
complete it, just as they are required to complete any other work distributed in the classroom.4
The Assistant Commissioner agrees with the ALJ that the questions on the surveys related to
gender identity and gender discrimination could have resulted in students revealing information
about their sexual behaviors or attitudes. While the questions do not outright request such
information, N.J.S.A. 18A:36-34 is triggered based on the information revealed, not the questions
posed. The Assistant Commissioner acknowledges that gender identity is not equivalent to sexual
behaviors and attitudes.5 However, the combination of these questions,6 and the fact that they
were open-ended, invited students to reveal information that might include their sexual behaviors
and attitudes.
Although the Board contends that the DOE’s guidance pertaining to transgender students
indicates that districts shall accept a student’s asserted gender identity and that parental consent is
3 Pursuant to N.J.S.A. 18A.4-34, this matter has been delegated to Assistant Commissioner Kevin Dehmer because
of the Acting Commissioner’s recusal.
4 Furthermore, the record demonstrates that in distributing the survey to teachers, the elementary school
principals did not in any way indicate that the survey was voluntary; it is highly unlikely that the students were
informed the survey was voluntary if their teachers were not so informed.
5 The Board’s exceptions suggest that the ALJ erroneously based her decision on outdated information relating
gender dysphoria to a mental illness or a deviant sexual behavior, presumably because those issues were raised by
petitioners during briefing. The Assistant Commissioner disagrees with the Board’s characterization of the Initial
Decision and, to the extent clarification is necessary, notes that the DOE does not consider students who assert a
gender identity different than the one they were assigned at birth to be mentally ill or deviant.
6 The Board’s exceptions focus only on the questions regarding gender identity and fail to include any specific
arguments regarding the ALJ’s conclusion that the questions regarding gender discrimination implicate
N.J.S.A. 18A:36-34.

4
not required, that guidance is inapplicable to the current situation. Given that the surveys were
anonymous, the district could not have been using them to ascertain and record the asserted
gender identity for each student. Furthermore, as discussed above, the question regarding gender
identity is not the only question that could cause students to reveal information about their sexual
behaviors and attitudes.7
The Assistant Commissioner recognizes and commends the Board’s efforts to explore and
address diversity, inclusion, and equity in its schools. However, those efforts cannot outweigh
statutory requirements regarding the administration of surveys to students.8
Accordingly, petitioner’s motion for summary decision is granted. The Board is directed to
discard the surveys and results from all records.9
IT IS SO ORDERED.10
ASSISTANT COMMISSIONER OF EDUCATION
Date of Decision:
Date of Mailing:
7 The Board also contends that there is an issue of material fact regarding whether parental consent is required to
ask a student’s gender identity. The Assistant Commissioner disagrees that this is an issue of fact, and finds that, in
this matter, it is a question of law appropriate for resolution by summary decision.
8 Having concluded that the surveys violate N.J.S.A. 18A:36-34 and -36, the Assistant Commissioner need not reach
the question of whether the surveys violated district policy or federal law, or the Assistant Commissioner’s
jurisdiction to decide any questions of federal law.
9 Other relief sought by petitioners, including monetary penalties, is denied for the reasons detailed in the
Initial Decision.
10 This decision may be appealed to the Appellate Division of the Superior Court pursuant to N.J.S.A. 18A:6-9.1.
Under N.J.Ct.R. 2:4-1(b), a notice of appeal must be filed with the Appellate Division within 45 days from the date
of mailing of this decision.
December 16, 2021
December 16, 2021

New Jersey is an Equal Opportunity Employer.
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION ON
CROSS MOTIONS
OAL DKT. NO. EDU 06551-21
AGENCY DKT. NO. 104-7/21
PATRICIA MONTANA, DAVID M. GRANDE,
THOMAS PERRI, AGNIESZKA NORMAN,
LISA CASSILLI, AND JANET DESIANO,
Petitioners,
v.
ANTHONY GROSSO, SUPERINTENDENT,
AND BOARD OF EDUCATION OF THE
TOWNSHIP OF CEDAR GROVE, ESSEX
COUNTY,
Respondents.
_______________________________________
Patricia Montana, petitioner pro se on behalf of all petitioners.
Jeffrey R. Merlino, Esq., on behalf of respondents Anthony Grosso and Cedar
Grove Township Board of Education (Sciarrillo Cornell Merlino McKeever &
Osborne, attorneys)
Record Closed: October 12, 2021 	Decided: November 15, 2021
BEFORE GAIL M. COOKSON, ALJ:

OAL DKT. NO. EDU 06551-21
2
STATEMENT OF THE CASE
Petitioners are several parents whose children attend Township of Cedar Grove
(“Cedar Grove”) schools. 	They have brought this action in order to obtain certain relief
from a survey presented to students on June 9, 2021, by the Cedar Grove Board of
Education (“District”).1 Petitioners allege that the survey was conducted in such a manner
as to violate a requirement that a district obtain “prior written informed consent from a
student’s parent or legal guardian and provide[ ] for a copy of the document to be available
for viewing at convenient locations and time periods” before administering any “survey,
assessment, analysis or evaluation which reveals information concerning” eight personal
and sensitive categories. 	N.J.S.A. 18A:36-34(a); 20 U.S.C. § 1232h(b), Protection of
Pupil Rights Act (“PPRA”). See also District Policy 2415.05.
Petitioners seek to have the surveys and all results removed from any student
records and discarded, identification of any other agency or entity that received the
results, identification of the members of the District’s Equity and Diversity Advisory
Council (“EDAC”) that designed the survey, a public apology, affirmative action on
assuring future compliance, and an award of fees and monetary penalties.
PROCEDURAL HISTORY
The Petition of Appeal was filed with the New Jersey Department of Education,
Office of Controversies and Disputes (“Department”) on July 6, 2021. 	The District filed
its Answer to the Petition on July 29, 2021. The Department transmitted the petitioners’
complaint to the Office of Administrative Law (“OAL”) where it was filed on August 4, 2021,
for adjudication as a contested matter pursuant to N.J.S.A. 52:14B-1 to 15; N.J.S.A. 52:
14F-1 to 13.
On August 6, 2021, the matter was assigned to the undersigned. On August 30,
2021, a telephonic case management conference was convened at which time pretrial
1 While petitioners have also named the District Superintendent individually as a respondent, I shall refer
to the respondents in the singular and as the “District.”

OAL DKT. NO. EDU 06551-21
3
issues and motions were discussed. A briefing schedule was established as both parties
were of the opinion that the case could be disposed of without evidentiary hearings. The
papers have all been filed and the cross-motions are now ripe for determination.
MOTIONS PRESENTED
Respondent has filed a Motion to Dismiss the Complaint on several grounds. The
District denies that the subject survey required prior parental consent because it disputes
that it touched upon any of the statutory categories. 	It also disputes that the OAL has
jurisdiction over any alleged PPRA violations, which it asserts must be brought in the
federal administrative process before the United States Department of Education. 	The
District also asserts as a defense to any consideration of the merits of the PPRA, in the
event that I reach such, that the surveys were voluntary and thus, not “required,” a
condition it states is necessary to trigger the PPRA’s strictures. 	Further, the District
argues that the EDAC does not receive any federal funds and thus its Policy 2415.05 is
not applicable.
Petitioners have filed a Motion for Summary Decision on their Complaint asserting
that they are entitled to judgment in their favor as a matter of law and undisputed facts
because the surveys touched upon gender identity and for the older students, religious
affiliation. 	They also assert that the surveys were not genuinely “voluntary,” especially
for the younger grades who were given the survey in class by the teacher as an
anonymous but required assignment to be done right then and there.
LEGAL STANDARDS ON THE MOTIONS
Here, both parties have moved for a determination that the application of the law entitles
each to a favorable decision. Respondent moved, however, for a dismissal as a matter of law.
For the purposes of a motion to dismiss –
[A] trial court should grant a dismissal “in only the rarest of
instances.” 	Printing Mart-Morristown v. Sharp Elecs. Corp.,
116 N.J. 739, 772, 563 A.2d 31 (1989). A court’s review of a
complaint is to be “undertaken with a generous and hospitable

OAL DKT. NO. EDU 06551-21
4
approach,” id. at 746, 563 A.2d 31, and the court should
assume that the nonmovant’s allegations are true and give
that party the benefit of all reasonable inferences, Smith v.
SBC Communications Inc., 178 N.J. 265, 282, 839 A.2d 850
(2004). If “the fundament of a cause of action may be gleaned
even from an obscure statement of claim,” then the complaint
should survive this preliminary stage. 	Craig v. Suburban
Cablevision, 	Inc., 	140 	N.J. 	623, 	626, 	660 	A.2d 	505
(1995) (citation omitted).
[NCP Litig. Tr. v. KPMG LLP, 187 N.J. 353, 365 (2006).]
Petitioners have moved for summary decision in their favor. On such a motion, it
is well established that if there is no genuine issue as to any material fact, a moving party may be
entitled to prevail as a matter of law without an evidentiary hearing. 	Brill v. The Guardian Life
Insurance Co. of America, 142 N.J. 520, 540 (1995). 	The purpose of summary decision is to
avoid unnecessary hearings and their concomitant burden on public and private litigation
resources.
STATEMENT OF FACTS ON THE MOTIONS
Applying those legal standards to the pleadings and any factual matters presented
outside the pleadings, I FIND the following as facts that form the predicate to these cross-
motions.
First, the “Community Needs Assessment” surveys at issue herein included the
following questions at each of these school levels:
Elementary School:
1. Race/Ethnicity
2. Gender Identity
3. “Do you feel school is a safe place?”
4. “Do you feel school is a safe place for people who look like you?”
5. “Do you feel school is a safe place for people who don’t look like you?”
6. “Do you feel the adults in your school are fair in dealing with people who look
like you?”
7. “Do you feel the adults in your school are fair in dealing with people who
don’t look like you?”
8. “If you felt unsafe at school, would you feel comfortable going to your teacher
or principal?”

OAL DKT. NO. EDU 06551-21
5
9. “What activities in school do you enjoy the most?”
10. “What change would you like to see happen at your school?”
Middle School:
1. Race/Ethnicity
2. Gender Identity
3. “Do you feel Memorial Middle School is a safe space for your particular
racial/ethnic group?”
4. “Do you feel the adults in your school are fair in dealing with people who look
like you?”
5. “Do you feel the adults in your school are fair in dealing with people who
don’t look like you?”
6. “If you felt unsafe at school, would you feel comfortable going to your
teachers or principal?”
7. “What activities in school do you feel are most enjoyable?”
8. “Can you provide any examples of racial or gender-based discrimination you
have experienced in the Cedar Grove Public Schools?”
9. “What change would you like to see happen at your school?”
High School:
1. Race/Ethnicity
2. Gender Identity
3. Religious Affiliation
4. Family Demographic
5.“Do you value diverse perspectives presented in the curriculum?”
6. “Prior to the shift to virtual learning, do you feel supported in Cedar Grove
Public Schools?”
7. “Do you feel the school is a safe space for your particular racial/ethnic
group?”
8. “Can you provide any examples of racial, gender based or religious
discrimination you have experienced in the Cedar Grove Public Schools?”
9. “Do you feel Cedar Grove Public School leadership is supportive of Diversity,
Equity and Inclusion efforts?”
10. “How comfortable are you speaking about racial or religious diversity?”
11. What activities in school do you feel are most enjoyable?”
12. “What changes would you like to see happen at your school?”
13. “If there is an issue of discrimination, do you feel comfortable going to
leadership?”
14. “Please use this space to communicate other information based on this
survey.”
[Certification of Jeffrey R. Merlino, Esq. (“Merlino Cert.”) Exhibits A, B, and C.]

OAL DKT. NO. EDU 06551-21
6
Prior announcements about a survey being prepared by EDAC for students, staff,
and the community were made during Board meetings but did not provide sufficient
detailed information to allow parents or members of the public to determine whether the
questions would be touching upon subject matters for which special consideration and
permissions might be required. [Certification of Anthony Grosso (“Grosso Cert.”) ¶ 12.]
The surveys were provided to the children by email link or in the classroom
(elementary grades) on June 9, 2021. [Grosso Cert. ¶¶ 14-15.]
Only on that same date, June 9, did parents receive an email invitation and link in
order to complete the community version of the survey. 	It did not include any opt-in or
opt-out language for parents to object to the student versions of the survey. [Grosso Cert.
¶ 13.] It also did not provide any location or time when parents could review and inspect
the surveys in advance. [Petition of Appeal ¶¶ 4, 7.]
The surveys completed by third and fourth grade students were distributed,
completed and collected by the classroom teachers during a classroom session. While
the students were told that the surveys were anonymous, they were not told that they
were voluntary and that they could decline to complete it or that they could discuss it with
their parents prior to completing it. 	Any clarifying questions would have been asked in
person of the teacher, negating to some extent the anonymity of the survey. [Petition of
Appeal ¶ 6.]
In fact, the email instructions to those teachers stated:
We would very much appreciate that you have the kids take
the survey in class tomorrow, Wednesday June 9. 	It is only
about 8 questions and shouldn’t take a great deal of time. To
introduce the survey, tell the kids that no name is needed.
Their answers are private, and no one will know how they
answered. 	Tell them it is to help us plan for the future at
[South End/North End] to help make it a better school. Keep
it simple.
[Certification of David M. Grande (“Grande Cert.”) ¶¶ 3-4, Exhibits C & D).]

OAL DKT. NO. EDU 06551-21
7
At a June 15, 2021, Board meeting, the Superintendent presented a PowerPoint
on the surveys’ results, inclusive of “student responses, taken out of context, without
consent.” Upon questions and concerns expressed by parents at the meeting, he would
not 	identify 	members 	of 	EDAC2, 	commit 	to 	discarding 	the 	surveys 	and 	results,
acknowledge that it had been unlawfully conducted, or that the District would comply with
the laws in the future. [Petition of Appeal ¶¶ 8-9.]
The District does receive federal education funding; it is irrelevant that the EDAC
itself specifically does not.
The surveys completed by students were anonymous and yet the District refused
to produce them in response to an OPRA request from petitioners stating that they
constitute “student records.” [Certification of Patricia Montana (“Montana Cert.”) ¶ 3.]
Yet, the summary of the surveys was posted on the District website. 	And that
summary included language which showed the focus of the surveys:
The 	purpose 	of 	this 	needs 	assessment 	was 	to 	explore
diversity and inclusion in the Cedar Grove Public Schools and
seeks to eliminate bias and enhance diversity in all schools.
Diversity 	is 	considered 	race/ethnicity, 	gender 	identity,
LGBTQ+ status and disability status. This needs assessment
seeks to explore previous and present bias to provide tangible
solutions for all stakeholders. The survey participation yielded
567 participants (64 Faculty/Staff, 158 Families/Caregivers,
132 Elementary Students, 64 Middle School Students, 149
High School Students. . . .
When exploring responses of biased or discriminatory acts
against 	individuals, 	the 	experiences 	varied. 	These
experiences also varied from race, gender identity, religious
affiliation and family demographics. It was clear that Cedar
Grove Public Schools has had biased acts that have faced all
subgroups who participated in this needs assessment.
[https://sites.google.com/cgschools.org/edac/2021-needs-
assessment (emphasis added).]
2 The District website now sets forth the names for the next school year.
https://sites.google.com/cgschools.org/edac/members

OAL DKT. NO. EDU 06551-21
8
LEGAL ANALYSIS AND CONCLUSIONS
All parties acknowledge the importance of diversity in the schools and the
requirements that boards develop comprehensive equity plans to ensure that all students,
regardless of their race, creed, color, national origin, ancestry, age, marital status,
affectional or sexual orientation, gender, religion, disability, or socioeconomic status are
not subject to discrimination and that any barriers to achieving equity are removed.
N.J.A.C. 6A:7-1.4(c). 	The question here, however, is whether the survey provided to
students in June of this year and which might have been geared toward assisting the
District in developing an equity plan, were undertaken in a manner inconsistent with the
laws governing the rights of parents and students.
N.J.S.A. 18A:36-34 (“School surveys, certain, parental consent required before
administration”)3 provides –
a. Unless a school district receives prior written informed
consent 	from 	a 	student’s 	parent 	or 	legal 	guardian 	and
provides for a copy of the document to be available for viewing
at convenient locations and time periods, the school district
shall 	not 	administer 	to 	a 	student 	any 	academic 	or
nonacademic survey, assessment, analysis or evaluation
which reveals information concerning:
(1) political affiliations;
(2) mental 	and 	psychological 	problems
potentially embarrassing to the student or the
student’s family;
(3) sexual behavior and attitudes;
(4) illegal, 	anti-social, 	self-incriminating 	and
demeaning behavior;
(5) critical appraisals of other individuals with
whom 	a 	respondent 	has 	a 	close 	family
relationship;
3 I note that there is a new provision, N.J.S.A. 18A:36-34.1, but same is not in effect until December 29,
2021.

OAL DKT. NO. EDU 06551-21
9
(6) legally recognized privileged or analogous
relationships, 	such 	as 	those 	of 	lawyers,
physicians, and ministers;
(7) income, other than that required by law to
determine 	eligibility 	for 	participation 	in 	a
program or for receiving financial assistance
under a program; or
(8) social security number.
b. The school district shall request prior written informed
consent at least two weeks prior to the administration of the
survey, assessment, analysis or evaluation.
c. A student shall not participate in any survey, assessment,
analysis or evaluation that concerns the issues listed in
subsection a. of this section unless the school district has
obtained prior written informed consent from that student’s
parent or guardian.
d. A school district that violates the provisions of this act shall
be subject to such monetary penalties as determined by the
commissioner.
District Policy 2415.05 provides:
PPRA 	requires 	written 	consent 	from 	parents of
unemancipated 	minor 	students and 	students 	who 	are
eighteen 	years 	old 	or 	emancipated 	minor 	students
before such students are required to participate in a survey,
analysis, or evaluation funded in whole or in part by a program
of the United States Department of Education that concerns
one or more of the following areas referred to as “protected
information surveys”:
1. 	Political affiliations or beliefs of the student or student’s
parent;
2. 	Mental 	or 	psychological 	problems 	of 	the 	student 	or
student’s family;
3. 	Sex behavior or attitudes;
4. 	Illegal, 	anti-social, 	self-incriminating 	or 	demeaning
behavior;
5. 	Critical appraisals of others with whom respondents have
close family relationships;

OAL DKT. NO. EDU 06551-21
10
6. 	Legally recognized privileged or analogous relationships,
such as with lawyers, physicians, and ministers;
7. 	Religious practices, affiliations, or beliefs of the student or
parents;
8. 	Income (other than that required by law to determine
eligibility for participation in a program or for receiving
financial assistance under such program); or
9. 	Social security number.
This 	consent 	requirement 	also 	applies 	to 	the 	collection,
disclosure 	or 	use 	of 	student 	information 	for 	marketing
purposes, referred to as “marketing surveys”, and for certain
physical examinations and screenings.”
The District intended to and did actually seek answers from students, who were
not told it was voluntary but only anonymous, with elementary students being given it as
an assignment in class, on the subjects of gender identity, gender discrimination, and for
the older students, religion and religious discrimination, and family demographics. 	It
matters not that there were only a few questions, cf. Green v. Bd. of Ed. of Ocean,
Monmouth Cty, OAL Dkt. No. EDU 4867-15, Initial Decision (September 8, 2016),
adopted 	with 	modif. 	Comm’r 	Final 	Decision 	(October 	24, 	2016),
http://www.njlaw.rutgers.edu/collections/oal, but whether the subject of the questions
triggered the legal requirement to provide advance opt-in notice to parents.
While respondent argues that no questions were asked which 	touched on
prohibited subjects, except for the high school students on religion which is enforceable
only under the PPRA, I concur with petitioners that –
Children 	confuse 	gender 	identity 	and 	sexual
identity/orientation also. Often, young people “direct anti-
lesbian, gay, or bisexual (LGB) language; negative attitudes;
and hostility toward others not because of others’ actual or
perceived sexual orientation but because they do not adhere
to conventional gender or other prescriptive norms about
appropriate or acceptable behavior.” Stacey S. Horn, Sexual
Orientation and Gender Identity-Based Prejudice, 13 Child
Dev. 	Persps. 	21, 	21 	(2009) 	(citations 	omitted). 	This 	is
especially frequent as “young people try to figure out their own

OAL DKT. NO. EDU 06551-21
11
sexual orientations and gender identities.” Id. These concerns
lead students to ponder their sexual behaviors and attitudes,
including 	behaviors 	they 	might 	consider 	anti-social 	or
demeaning, when assessing their gender identity.
[Petitioners’ Brief at 18.]
Similarly, the surveys asked some students about family demographics which
could easily elicit highly personal, and oft publicly shamed, information, such as same-
sex unions. Furthermore, for the elementary students to whom the survey was distributed
in class, I agree with petitioners that such violated the law also prohibits public schools
from requiring students to “supply information regarding [their] race, ethnicity, migrant
status or economically disadvantaged status on any materials distributed in class.”
N.J.S.A. 18A:36-36(a) (emphasis added).
I CONCLUDE on the basis of the undisputed facts and the law cited above that
the legal requirement of the state education law, N.J.S.A. 18A:36-34, was triggered and
this survey was not voluntary. 	I also CONCLUDE that the appropriate remedy is to
discard the surveys and all results derived therefrom from the District’s website, student
records, the EDAC, and to similarly extend and advise any other entity with whom the
surveys or results were shared of this requirement, which entities must be disclosed. 	I
do not consider it necessary for there to be a mandated public apology as the respondent
is now the subject of this adverse ruling. Nor do I think monetary damages are called for;
and fees are not warranted as the petitioners are representing themselves. Similarly, this
Initial Decision, assuming adoption or only minor modification, also serves as guidance
and stricture to the District with respect to future surveys conducted on diversity and
related issues in the community and the schools.
ORDER
Based upon the foregoing, it is ORDERED that the petitioners’ Motion for Summary
Decision on their Petition of Appeal shall be GRANTED. It is further ORDERED that the
respondent’s Motion to Dismiss the Petition of Appeal shall be DENIED.

OAL DKT. NO. EDU 06551-21
12
I 	hereby 	FILE 	this 	initial 	decision 	with 	the 	COMMISSIONER 	OF 	THE
DEPARTMENT OF EDUCATION for consideration.
This 	recommended 	decision 	may 	be 	adopted, 	modified 	or 	rejected 	by 	the
COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who by law is authorized
to make a final decision in this matter. 	If the Commissioner of the Department of
Education does not adopt, modify or reject this decision within forty-five days and unless
such time limit is otherwise extended, this recommended decision shall become a final
decision in accordance with N.J.S.A. 52:14B-10.
Within thirteen days from the date on which this recommended decision was
mailed to the parties, any party may file written exceptions with the COMMISSIONER OF
THE DEPARTMENT OF EDUCATION, ATTN: 	BUREAU OF CONTROVERSIES AND
DISPUTES, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton, New Jersey 08625-
0500, marked "Attention: 	Exceptions." 	A copy of any exceptions must be sent to the
judge and to the other parties. of any exceptions must be sent to the judge and to the
other parties.
November 15, 2021
DATE 	GAIL M. COOKSON, ALJ
Date Received at Agency: 	11/15/21
Date Mailed to Parties: 	11/15/21
id