Some NJ School Boards: Strauss Esmay Gave Wrong Info. On Trans Policy

MIDDLETOWN, NJ — A growing number of school boards across New Jersey are now deciding to simply not implement the state's controversial transgender student Policy 5756.

But some of those districts say they were given misinformation: They say they were told Policy 5657 was mandatory.

It is not, a spokesperson for the NJ Attorney General said this week.

The school boards say a company called Strauss Esmay Associates told them 5756 was mandatory. Strauss Esmay is a third-party vendor located in Toms River; they are hired by school districts to interpret Department of Education policy for them.

"We absolutely were told by Strauss Esmay that this policy was mandatory," said Middletown school board vice president Jacqueline Tobacco this week.

Elected school board members in Holmdel and Marlboro said the same thing.

"This 5756 policy was born from a lie, from a company called Strauss Esmay, that sent it over with about 20 different policies lumped together in May of 2019, listing it as a mandatory policy," said Holmdel BOE vice president Terence Wall. "I was on the Board then, this slipped through. Everyone voted for it. It was a mistake. Why? Because it's a fraud."

"Strauss Esmay has rolled most boards of ed. in the state of New Jersey," Wall continued. "It's basically a three-person group down in Toms River, making millions of dollars on the backs of Holmdel taxpayers and every taxpayer across New Jersey. A monopoly. What I would call part of a legal education cartel."

Middletown, Holmdel and Marlboro school districts each pay Strauss Esmay $5,000 a year to interpret Department of Education policy for them. Strauss Esmay calls it their "subscription service."

Strauss Esmay is hired by more than 500 school districts across New Jersey; Strauss Esmay co-owner Phil Nicastro declined to tell Patch exactly how many public school districts hire his company.

Tobacco said she thinks it's as many as 570 school districts.

Middletown school board lawyer Bruce Padula said when Strauss Esmay first provided the district with Policy 5657, they stamped that document with a large "M" at the top — which meant mandatory. Marlboro school board said they received the same.

"Our policy company, Strauss Esmay, which provided us with the policy template, has always taken the position that it is a mandated policy," said Marlboro BOE president Christina Russotto and vice president Valentina Mendez. "But we understand that the Attorney General in litigation over the matter has now stated it is not mandated."

So, is or isn't Policy 5657 mandatory for NJ school districts?

The NJ Department of Education will not answer. Two media spokespeople for the Department of Education, Michael Yaple and Laura Fredrick, did not respond when Patch asked this question.

But a spokeswoman for the New Jersey Attorney General responded, and said it is not mandatory.

"New Jersey’s public school officials must comply with the Law Against Discrimination (LAD)," said the AG spokeswoman. "The Department of Education’s guidance on this issue (found at Transgender Student Guidance for School Districts) explains the existing statutes and regulations. It provides guidance to public schools on how to comply with the LAD, but is not legally enforceable on its own."

Middletown: "Strauss Esmay should pay our legal bills"

Middletown, Marlboro and Manalapan-Englishtown were all sued by the state after they made changes to Policy 5657 that required schools notify parents. The state of New Jersey says that is "outing" students, and could put their safety at risk.

"Do you think it's OK to have third-party vendors push policies into our schools and act like it's a law when it's not?" said Tobacco. "So now the state is suing us over a policy we never even needed to have. Strauss Esmay should be responsible for our legal bills. They're the ones who told school districts this was mandatory."

"The whole job of a school board is to make policy; that's why we are elected," Tobacco continued. "But we don't have to do what the state says unless it's a law. Strauss Esmay gave us false information that led us to a lawsuit."

Strauss Esmay responds to criticism

Strauss Esmay is owned by Nicastro and his wife, Sandra Nicastro.

When Patch asked them to respond to the criticism this week, Phil Nicastro gave a lengthy reply. He said that Strauss Esmay did indeed classify the policy as mandatory, and he still views it as such:

"It is my opinion a policy is required by law and, in addition, this policy is classified as mandated applying Strauss Esmay’s criteria for classifying policies as our criteria for classifying mandated policies goes beyond just those required by statute or code," said Nicastro. "Either way, the issue of whether a policy is mandated or not is not the issue being litigated. The issue being litigated is if the provisions in the state’s guidance is a correct interpretation of the law and how the law must be implemented by school districts."

"The existence or non-existence of a Board policy does not excuse a school district from complying with the law," he continued. "The state is claiming their guidance is the law to be followed and is seeking court intervention to support their position. Strauss Esmay has no position on this matter other than to provide policy guidance to school districts that is in compliance with the law. This issue can only be resolved through the courts and should the State not be successful in defending their provisions in the Guidance in Court, Strauss Esmay will revise Policy 5756 accordingly."

He also said:

"Strauss Esmay Associates developed Policy Guide 5756 in 2019 that aligned with the State’s Guidance as required by N.J.S.A. 18A:36-41. At that time, Strauss Esmay informed school districts to consult their Board Attorney if revisions to Policy Guide 5756 were being considered. Strauss Esmay Associates aligns Policy Guides with statutes, administrative codes, State guidance, monitoring requirements, and requirements of other regulatory agencies. If there was a difference between Policy Guide 5756 as developed by Strauss Esmay in 2019 and the State’s Guidance, districts would have been exposed in 2019 to litigation that is happening in 2023."

Tobacco wants Middletown school district to stop using Strauss Esmay

In Middletown, Tobacco is pushing her fellow board members to no longer work with Strauss Esmay and instead move to the New Jersey School Boards Association, which also writes policy for the NJ Department of Education.

“Any district that is comfortable being lied to should keep Strauss Esmay," fumed Holmdel school board vice president Wall. "My own individual view, not representative of my local board of education, is that gaslighting school boards with tortured redefinitions of the word ‘mandatory’ disqualifies you from working in this space.”

Tobacco said the Middletown school district already paid Strauss Esmay $5,000 to interpret DOE policy for the '23-'24 school year, but she would like to move to the NJ School Boards Association next year.

"He wrote it as if it was mandatory and unilateral," she maintains, referring to Nicastro. "I feel like we were misled. The biggest takeaway is if the policy was not mandatory in the first place we could have just gone on a case-by-case basis (with transgender students.) I have to wonder why we are paying for a service that is giving us false information. And it's not just us. It's 570 school boards across the state."

"Perhaps we would have approached the policy differently had we known we had much greater discretion as to whether we needed it in the first place," said the two Marlboro school board leaders.

Policy 5756 was crafted by the Department of Education that seeks to guarantee transgender students as much privacy as possible, including not requiring parental consent nor requiring schools notify parents if their child seeks to change their gender.

Sussex-Wantage Regional School District did away with Policy 5756 all the way back in January of 2022. Colts Neck school board said they too will not be following it, calling it "superfluous." Howell and Lacey BOEs voted to scrap it this week.

Middletown Sits Tight On Its Transgender Policy While Under Injunction (Sept. 18)

Correction: An earlier version of this article stated Sussex-Wantage Regional School District rescinded Transgender Student Policy 5756 this week. That is incorrect. They rescinded it last year.