The U.S. Department of Education is using the primary federal law governing student privacy to investigate two state education departments over policies concerning how schools disclose changes to students’ gender identities to their parents.
It’s a fresh attempt by the Trump administration to threaten federal school funding for states and school districts that flout the president’s agenda concerning transgender students.
And those two state agency investigations—of the California and Maine education departments—could just be the start, according to a letter Education Secretary Linda McMahon sent to district leaders on Friday.
McMahon warned educators in the letter that the Trump administration would make a “revitalized effort” to enforce the Family Educational Rights and Privacy Act, or FERPA, in a way that guarantees parents’ access to information on whether their kids request to use names or pronouns at school that don’t match their sex assigned at birth. Schools that create “gender plans” to support students’ gender transitions, but don’t make them accessible to parents, could be violating FERPA, the department said in the Dear Colleague letter.
FERPA protects the privacy of student records and grants parents access to those records.
California passed a law last year saying that educators don’t have to notify parents if a student changes their name or pronouns in school, calling policies that require notification—which school boards in several states have passed—“forced outings.” Meanwhile in Maine, which has drawn outsize federal attention for its transgender athlete policies, the federal Education Department alleges that school districts develop plans to support students’ gender transitions without making the plans available to parents.
It’s another show of force from the department, which has been aggressively pursuing Trump’s social policy agenda through its office for civil rights, which investigates cases of discrimination. It also marks a push from the department to make good on its vow to doggedly pursue parental rights—an effort that has gained steam in the past five years, borne out of the COVID-19 pandemic, through which parents have argued for a greater say over what their children are being taught, particularly about race and gender.
These two investigations come from the Education Department’s student privacy office, which enforces FERPA.
The California and Maine investigations are rare, experts say
It’s unusual for the federal agency to investigate state departments of education like this, said LeRoy Rooker, who served in the Education Department’s family policy compliance office for more than two decades and is well-versed in FERPA.
And it’s also rare for FERPA investigations—which the Education Department usually opens in response to complaints rather than initiating them on its own, as it’s doing with California and Maine—to end in the termination of funds, he said.
“They have to be given the opportunity to come into compliance,” he said. “It’s only if they decline to come into compliance after an investigation, then that’s when the department has the option of moving to that next step.”
During Trump’s second term, though, the administration has already terminated funding for Ivy League universities and has repeatedly threatened to cut off K-12 funds.
It’s also been rare for the Education Department to publicly announce its FERPA investigations, said Amelia Vance, president of the Public Interest Privacy Center, an organization focused on student privacy.
Typically, FERPA enforcement and investigations are long, and the process is opaque. Historically, there have been backlogs and a lack of transparency around FERPA enforcement, she said.
FERPA is in need of fixes and updates, Vance said.
“I really hope that this doesn’t become as politicized as a lot of other issues have been, because it’s something where a lot of people agree that things need to be changed; this needs to be fixed and privacy needs to be improved,” she said.
The stepped-up FERPA enforcements are part of a conservative push for parents’ rights
The Trump administration’s investigation into states’ student gender transition policies follow years in which school boards approved policies requiring that school staff notify parents when students seek to use different names and pronouns at school, and some Republican-led states have passed laws requiring such notifications that they’ve labeled parents’ rights laws. At least 10 states say educators and classmates don’t have to use a student’s name or pronouns if it doesn’t align with a student’s sex assigned at birth.
California was the first to rebuke such parent notification laws with a state law of its own prohibiting school boards from passing required notification policies. LGBTQ+ advocates supported the measure at the time, saying that the required notifications can force students to come out to their parents in potentially unsupportive homes.
A spokesperson for California’s education department said Friday that the state’s law does not “mandate nondisclosure” to parents, meaning there is no conflict with FERPA.
“Our students must be safe in order to learn. I have heard from so many students and families whose safety has been impacted by forced outing policies,” Tony Thurmond, California’s state superintendent of public instruction, said in a statement.
Vance said California’s law did not appear to violate FERPA. The Education Department’s letter to educators notes that, “FERPA does not provide an affirmative obligation for school officials to inform parents about any information.”
However, if the details the federal Education Department provided about Maine school districts’ gender transition policies are correct, those could violate the federal law, she said.
Maine has drawn repeated scrutiny from Trump’s administration after its Democratic governor pushed back on the president’s Feb. 5 executive order to prohibit transgender athletes from girls’ sports teams. Two federal agencies so far have said the state is violating Title IX, the federal law barring sex discrimination. They told Maine to change its policies, or they would start the process of referring the case to the U.S. Department of Justice.
A spokesperson for Maine’s department of education did not respond to a request seeking comment.
