The Trump administration is ramping up pressure on states and school districts over their policies concerning transgender students, turning to two federal student privacy statutes to threaten to withhold funding or sue over local policies it finds objectionable.
The U.S. Department of Education on Thursday announced an investigation of two Massachusetts school districts for allegedly facilitating a student’s gender transition without the knowledge of the child’s parents.
The department said it was seeking to determine whether the Northborough-Southborough regional school district, which serves about 1,200 high school students, violated the Family Educational Rights and Privacy Act (FERPA) or the Protection of Pupil Rights Amendment (PPRA).
It’s at least the 11th investigation the Trump Education Department has launched into school districts’ or states’ transgender student policies citing either of those two 1970s-era privacy laws, according to Education Week’s tracker of the agency’s investigations.
The Trump administration’s use of FERPA and PPRA to try to compel school districts to proactively notify parents when their children adopt gender identities at school that don’t match their sex at birth is a novel and contested use of the two laws, which is set to be tested in court.
FERPA is a 1974 law that guarantees parents access to their children’s school district-maintained educational records. PPRA, passed in 1978, bars schools from requiring students to participate in surveys or evaluations on such topics as political affiliations, sex behavior or attitudes, mental problems, or religious practices without parental consent.
The Education Department’s student privacy policy office is exploring claims by parents that their child was socially transitioning to a male gender identity, including participating in counseling sessions at school when the parents were under the impression the student was receiving mathematics tutoring.
“Parents have a right to know what is happening with their children at school, particularly when it concerns deeply personal matters involving their health and well-being,” said Frank Miller, director of the student privacy policy office, the unit charged with enforcing FERPA and the PPRA.
The school district denied the claims, saying in a statement that it “welcomes and will cooperate fully with any authority investigating this matter and appreciates the opportunity to provide a complete factual record surrounding the allegations referenced in media interviews by two individuals whose child formerly attended Algonquin Regional High School.”
Complaint letters and now a lawsuit
The Education Department has launched similar enforcement actions recently against other districts, including in July against the Anne Arundel County public schools in Maryland, which it accused of classifying information about students’ gender identity as medical information that could not be shared with parents, and the Ann Arbor, Mich., district, where an administrator allegedly refused to turn over records relating to a student’s adoption of different pronouns at school.
The Education Department and the U.S. Department of Justice “are putting districts on notice that we will use every tool available to hold them to account for this egregious behavior,” Secretary of Education Linda McMahon said with regard to the Maryland and Michigan cases.
It was not an idle threat. On Sept. 1, the Justice Department sued the Kansas City, Kan., school district in what the department described as a “first-of-its-kind” lawsuit to end district policies that allegedly foster secret “gender transitions” of students without their parents’ knowledge or consent.
“The department will not tolerate school districts playing fast and loose with federal law in the service of radical gender ideology,” Harmeet K. Dillon, the assistant attorney general for civil rights, said in a statement.
The Justice Department alleges that the district maintains policies that direct staff members to develop and implement “transitioning” plans for students’ gender identities without informing or obtaining consent from their parents, all in violation of FERPA and PPRA. The school system’s guideline was not publicized but kept close to the vest by district “gatekeepers,” an assistant superintendent allegedly said at one point, according to the lawsuit.
The Kansas City school district didn’t respond to a request for comment, but earlier released a statement that said, “Contrary to the allegations in the complaint, the district maintains that it is in full compliance with FERPA and PPRA and is disappointed by the DOJ’s decision to file the lawsuit. Because this matter is now pending in federal court, the district will respond to the complaint through the appropriate legal process and will not make any further comment at this time.”
Federal lawsuit is a new tack
The Education Department generally holds the sole power to enforce FERPA.
The U.S. Supreme Court, in a 2002 decision in Gonzaga University v. Doe, ruled that parents or adult college students have no right to sue school districts or colleges over alleged FERPA violations. The statute, enacted under the U.S. Constitution’s spending clause, contemplates that the secretary of education may provide the only remedy—withholding funds from schools and colleges that violate the law.
(The Gonzaga decision did not address PPRA, but there is a wide assumption that it does not contain a private right to sue, either.)
In reality, that means the Education Department holds a big stick over state and local education agencies to enforce laws such as FERPA, PPRA, and Title IX, the prohibition of sex discrimination in education that is also at the center of current debates over transgender rights and gender identity in schools.
“The goal in these scenarios is, ultimately, voluntary resolution,” said Sarah Parshall Perry, the vice president of Defending Education, an advocacy group that is aligned with the Trump administration on gender identity matters at school.
“It’s to get everyone to the table and to make sure that you can find ways to get these recipients of federal funds into federal compliance with statutory obligations,” said Perry, a former senior counsel in the Education Department’s office for civil rights under the first Trump administration.
Defending Education last year filed a complaint, along with two other groups, with the Education Department over alleged violations of FERPA and PPRA by the Milwaukee school district, also regarding purported secret gender transitions of students. The complaint is pending and has been referred to the Justice Department, Perry said.
In the typical case, the Education Department will coax a school district to end the challenged practice and sign a resolution agreement, she said.
“it’s interesting that they’ve gone immediately to DOJ for civil rights enforcement for the privacy right in the Kansas City case,” Perry said.
She pointed out that the Education Department has signaled, through federal regulatory agenda documents, that it plans to issue updated regulations for FERPA, which Perry believes will be meant to clarify them to reflect the Trump administration’s view on how the law applies to gender identity issues in schools—essentially, that information about a student’s gender transition or pronoun change is a student record to which parents should automatically have access.
The Justice Department may be expecting to lose the Kansas City case at the federal trial court level, but would then be able to appeal to the conservative-leaning U.S. Court of Appeals for the 10th Circuit, in Denver. Any federal appeals court ruling favorable to the administration would give it ammunition to cite for a formal regulation updating FERPA, Perry said.
“I think what they’re doing is they’re looking for a little judicial air cover before the regulatory process gets underway,” Perry said.
Pushback from districts and at least one state
There is pushback to the Trump administration’s approach, from states, school districts, and others that embrace policies respecting student’s choices on gender identity.
In February, California sued the federal Education Department over the agency’s findings that the state has policies that violate FERPA by encouraging gender transitions without notifying parents.
“California seeks to protect itself, and California schools and students, by preventing the harms threatened by defendants’ illegal attempt to coerce the state into complying with its unlawful corrective actions based on the unsupported position that California is not in substantial compliance with FERPA because it has refused to interpret FERPA’s requirements in a manner that far exceeds the scope of the statute,” California Attorney General Rob Bonta, a Democrat, said in the lawsuit.
The suit says the federal department presented no evidence that any parental request to view their child’s gender support plan has been denied, and the California education department has written to local administrators to remind them that such plans are education records covered by FERPA.
A federal judge issued a temporary restraining order barring the Education Department from withholding federal education funds from the state over the matter, but the case is otherwise pending.
Eliot Tracz, an assistant professor of law at New England Law School Boston, who has written a casebook on LGBTQ+ rights, said the Trump administration has taken a far too expansive view of the scope of FERPA and PPRA in the gender identity context.
The administration and its allies tend to take a broad view that schools have an affirmative duty under those laws to inform parents “of any little change a student displays at school,” he said.
That could include a student named Benjamin wanting to shorten his name to Ben, but conservatives are only pressing the issue when it involves a different gender identity, and that creates an issue of equal protection under the law, Tracz said.
“I don’t read FERPA as giving schools an affirmative duty to report that information,” he said. “I read it as parents having to request it.”
