California Laws Force Public School Districts to Violate FERPA and Title IX; Mandatory Withholding of Federal Funds
California's AB 1955 and AB 1266 force public school districts to violate Title IX and FERPA, which requires mandatory withholding of federal funds. Below is a copy of the letter I sent to the USDOE today on behalf of the California Justice Center requesting an investigation and action to achieve compliance with federal laws.
The full letter is also linked here.
Re: California Laws Force Public School Districts to Violate FERPA and Title IX; Mandatory Withholding of Federal Funds
Dear Acting Secretary Carter, Acting Director Miller, and Acting Assistant Secretary for Civil Rights Trainor:
California Justice Center, APC, is a public interest law firm founded to dismantle government barriers to freedom and prosperity in California through litigation, advocacy and education.
On January 1, 2025, California Assembly Bill 1955 (“AB 1955”) took effect. AB 1955 purports to recognize a nonexistent right of privacy in minors from their parents regarding a child’s gender identity at school under the California Constitution, and an exemption to the Federal Educational Rights and Privacy Act (“FERPA”) that does not exist under federal law. As a result, every public school in California has a policy of denying, or effectively preventing, the parents of students who are in attendance at a school the right to inspect and review the education records of their children. Accordingly, under 20 U.S.C. § 1232g(a)(1)(A), no federal funds may be made available to California public schools as long as the schools are complying with California’s AB 1266, AB 1955, and their attendant guidance.
In addition to jeopardizing federal funding for public school districts, AB 1955 forces teachers and administrators to violate the fundamental right of parents to direct the care, upbringing, and education of their children.[1]
Due to the secretive nature of the concealment practices described herein, it would be futile to proceed with individual FERPA requests and complaints. California school districts are keeping files relating to gender identity separate from student records, and parents are accordingly unable to detect whether a school is withholding records pursuant to a FERPA request.
Background
In 2013, Governor Jerry Brown signed Assembly Bill 1266 (“AB 1266”) into law. AB 1266 added section 221.5(f) to the Education Code, which says:
“[a] pupil shall be permitted to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil’s records.”
This law violates the plain language and intent of Title IX of the Education Amendments of 1972.[2]
The California Department of Education (“CDE”) published a FAQ page for AB 1266 on its website, in which CDE recommends creating separate files for students who want school personnel and classmates to refer to them by a name and gender that differs from their birth name and gender, and to conceal that information from the child’s parents unless the child consents to the school sharing it with the child’s parents. That guidance was removed from the CDE website around the time of President Trump’s second inauguration, but an archived version is attached here.
California’s Office of the Attorney General (“OAG”) published “Know Your Rights” guidance in which it instructs children that their schools cannot disclose information pertaining to their “gender identity” to their parents, claiming that the United States and California constitutions provide minor children with privacy rights from their parents in their identity at school.[3]
The California School Boards Association (“CSBA”), which boasts a membership of over 1,000 local education agencies in California, produced a template policy and administrative regulation to implement AB 1266, known as Administrative Regulation 5145.3, and published a guidance document in which it explicitly advises districts to withhold information pertaining to a child’s identity at school from that child’s parents.[4] Most California districts have adopted some version of Administrative Regulation 5145.3.
The CDE, OAG, and CSBA guidance described herein are collectively referred to as the “Concealment Scheme.”
Pursuant to CDE guidelines, schools facilitate “gender transitions” in children by, among other things, implementing confidential plans to document accommodations for children expressing gender confusion, including a new name, gender, and pronouns by which all students and district personnel are required to refer to the children.[5] Parents are only informed of these changes if the student provides consent to school personnel.
In some cases, districts issue falsified duplicate identification and alter student work to conceal a child’s school identity from the child’s parents.
In response to the Concealment Scheme, and in light of gender dysphoria diagnoses in California rising by 102% between 2018 and 2022,[6] some districts in California implemented parental notification policies to require districts to notify parents when changes are made to a minor child’s official or unofficial records at school.
The State of California sued several districts to enjoin their parental notification policies, including Chino Valley Unified School District and Temecula Unified School District. The State failed to obtain the relief it sought in court.[7]
Accordingly, Assemblymember Chris Ward introduced legislation to attempt to override the notification policies on May 22, 2024, and rushed it through the Legislature in violation of California Constitution Article IV, Section 8(a). The controversial legislation, known as AB 1955, purports to recognize a nonexistent right of privacy in minors from their parents regarding a child’s “gender identity” at school under the California Constitution, and an exemption to the FERPA that does not exist under federal law.
AB 1955 Codifies California’s Concealment Scheme Established by the Office of the Attorney General, California Department of Education, and Private Law Firms Advising School Districts
In a memorandum dated June 5, 2023, the law firm advising William S. Hart Union High School District in Los Angeles County, California expressed its legal opinion regarding the district’s concealment of information pertaining to the district’s “transition” of a minor child.[8] In this memorandum, Atkinson, Andelson, Loya, Ruud & Romo (“AALRR”) states:
“the majority of educational entities, including the California Department of Education (“CDE”) and the California School Boards Association (“CSBA”), agree that state and federal laws require school districts to protect students with gender dysphoria. Such protections are claimed to include the prohibition of revealing a student’s social transitioning to the student’s parents without the student’s permission.
…
The general rule, therefore, is that the District cannot inform a parent about a student’s social transitioning without the student’s consent, unless an exception applies, such as where the disclosure involves a threat to someone’s health/safety or it is in the context of disciplinary matters when the information is relevant.”
(Emphasis added). In reference to parents’ statutory rights to review their children’s educational records, AALRR states:
“In general, parents have the statutory right to review a student’s classwork/homework. This issue becomes clouded, as shown above, if the classwork could reveal a student’s gender identity/expression.”
(Emphasis added). Ultimately, following months of refusal to disclose information to the child’s parent, AALRR determined it would be appropriate to provide the child’s parent with the child’s educational records in this instance solely because she was already “aware that her child has socially transitioned at school.”[9]
Had the child’s parent been unaware of the school’s transition of the child, however, the district would not have provided such records. This memorandum reflects the widespread sentiment regarding concealment of information from parents by California public schools. Teachers, administrators, and board members are trained by AALRR, CSBA and other groups that they have a constitutional obligation to conceal information about children from their parents. This memorandum also demonstrates the futility in bringing individual FERPA complaints against districts in California; parents will not know student records are being withheld unless they’ve somehow discovered it on their own.
The assertion by the State that children have a constitutional right of privacy from their parents in their identity at school, and the recent enactment of AB 1955 codifying the Concealment Scheme, warrant action from the United States Department of Education to investigate and withhold federal funding under FERPA unless and until school districts cease their practice of concealing information from parents, and comply with their obligation to provide student records to parents.
AB 1955 and FERPA
According to the Joint Statement in Explanation of FERPA in the Congressional Record, “[t]he purpose of [FERPA] is two-fold—to assure parents of students, and students themselves if they are over the age of 18 or attending an institution or postsecondary education, access to their education records and to protect such individuals’ rights to privacy by limiting the transferability of their records without their consent.”[10]
The Congressional Record also provides, “[a]n individual should be able to know, review, and challenge all information … that an institution keeps on him, particularly when the institution may make important decisions affecting his future, or may transmit such personal information to parties outside the institution. This is especially true when the individual is a minor. Parents need access to such information in order to protect the interest of their child.”[11] (emphasis added).
Until a pupil reaches the age of 18, FERPA rights are held by the parent. FERPA’s legislative history shows that parental access to education records is required in part so that parents can ensure their children’s records do not contain “inaccurate, misleading or otherwise inappropriate information.”
Under FERPA, parents are entitled to review the education records of their minor children. It is critical for parents to understand what led to the institutional decision to diagnose a child as “gender dysphoric,” “transgender,” or “gender non-conforming,” to seek professional assistance, and to see whether the school’s materials contain inaccurate information or erroneous evaluations about their child. It is especially critical when children are led down a path that includes sterilizing medications, physical devices, and irreversible surgeries, which this administration condemns and aims to protect children from.[12]
On the subject of FERPA, the legislative analysis for AB 1955 states:
“While parents/ legal guardians have the right to review and amend their students’ educational records, courts have recognized that outing a minor to their parents or guardians can violate the minor’s constitutional right to privacy, even if the minor is out at school or socially (see Cal. Const., art. I, § 1; C.N. v. Wolf (C.D. Cal. 2005) 410 F.Supp.2d 894, 903; see also Sterling v. Borough v. Minersville (3d Cir. 2000) 232 F.3d 190, 196). By prohibiting school policies that require outing a student to their parents or legal guardians, regardless of the circumstances, this bill would reduce instances where teachers and administrators violate students’ right to privacy.”[13]
Notably, this statement and the cases cited focus on “outing” a child’s sexual orientation, which is distinct from “gender identity.” “Gender identity” involves adoption of a new identity and medicalization in pursuit of that identity, while sexual orientation involves a person’s preference of partner and requires no record changes or medical interventions. A “gender dysphoric” child adopts a new name and pronouns and asks his classmates and teachers to refer to him by this new identity, guided by school counselors and the confidential student support plan document. We are unaware of any instance in which a California school district has implemented a policy requiring district personnel to notify parents about a child’s sexual orientation.
The May 24, 2024 Senate Committee on Education analysis for AB 1955 illustrates the Legislature’s erroneous position that children enjoy a confidential relationship with government school personnel and constitutional privacy rights from their parents in their identity at school, and that information pertaining to a child’s “gender identity” is exempt from disclosure under FERPA. The analysis suggests that releasing records pertaining a child’s “gender identity” would “violate students’ right to privacy.”[14]
AB 1955 purports to create a confidential relationship between a child and a school district, and a constitutional right to privacy in a child’s identity from that child’s parents—which does not exist in the state or federal constitution. AB 1955 classifies providing education records pertaining to a child’s gender dysphoria as “outing” a child to the child’s parents. If a school is facilitating and accommodating a child’s name and gender change at school, however, those documents must be disclosed to a parent upon request under FERPA. Likewise, a child’s school work must be produced in response to a FERPA request, even if it discloses a child’s new “gender identity.”
AB 1955 purports to exempt records pertaining to a child’s gender identity from disclosure under FERPA absent consent of the student. FERPA provides no such exemption, and provides full rights to parents before a child turns 18.
Schools Violating FERPA Shall Not Receive Federal Funds
FERPA prohibits the United States Department of Education from funding schools having policies that deny, or which effectively prevent, parents of students the right to inspect and review the education records of their children. See 20 U.S. Code § 1232g(a)(1)(A). This is not discretionary, but mandatory.
By prohibiting disclosure of certain categories of information to parents absent student consent, AB 1955 purports to create an exception to FERPA that does not exist in the statute or its implementing regulations. Under FERPA, schools cannot require a minor child’s consent prior to disclosing education records to a parent.[15] Further, FERPA does not permit schools to skirt their disclosure obligations by concealing education records in “counselor notes,” as is the practice of many school districts.
We respectfully request that the United States Department of Education conduct an investigation into statewide policies that deny, or which effectively prevent, parents of students the right to inspect and review the education records of their children, in violation of FERPA.
Sincerely,
Julie A. Hamill
California Justice Center, APC
Enclosures:
Archived California Department of Education FAQ guidance for AB 1266
[1] See, e.g., Mirabelli v. Olson, 3:23-cv-00768 (S.D. Cal.) Order Denying Defendants’ Motions To Dismiss (Jan. 7, 2025) pp. 18-22 (citing Troxel v. Granville, 530 U.S. 57, 65 (2000) and Parham v. J. R., 442 U.S. 584, 602 (1979)).
[2] See, e.g., United States Department of Education January 31, 2025 “Dear Colleague” letter, available at https://www.ed.gov/media/document/title-ix-enforcement-directive-dcl
[3] https://oag.ca.gov/lgbtq/rights
[4] https://www.csba.org/-/media/CSBA/Files/Advocacy/LegalAdvocacy/Legal-Guidance-Transgender-Legal-10-2022.ashx?la=en&rev=a3fb600ee6d640598c038dfceaef871c
[5] See, e.g., the Confidential Gender Support Plan by Gender Spectrum for Berkeley Unified School District, available at https://www.berkeleyschools.net/wp-content/uploads/2017/11/Gender-Support-Plan-and-Gender-Transition-Plan-from-Gender-Spectrum.pdf.
[6] https://www.axios.com/local/san-francisco/2024/01/16/gender-dysphoria-diagnoses-rise-california
[7] In California v. Chino Valley Unified School District, San Bernardino County Case No. CIVSB2317301, the State prevailed on its claim that a previous version of a notification policy was discriminatory on its face, but Chino Valley Unified School District implemented and maintains a new policy requiring parental notification in the event of any change to student records. In Mae M. v. Komrosky, Fourth Appellate District Case No. G064332, the trial court upheld Temecula Valley Unified’s notification policy. Plaintiffs then sought relief from CDE, which ordered the district to notify all community members that they would not enforce the policy. (See California Department Of Education, Direct Investigations Office Investigation Report, Case Matter No. 2024-0065). Further, the teachers’ union filed unfair practice charges against the district for failing to bargain before implementing the policy, and the California Public Employment Relations Board ultimately ordered the district to rescind the policy. (See Temecula Valley Educators Association, CTA/NEA v. Temecula Valley Unified School District, Unfair Practice Case No. LA-CE-6841-E).
[8] Redacted Memorandum enclosed.
[9] See Memorandum at p. 7.
[10] 120 Congressional Record, 39862 (Dec. 13, 1974), https://www.govinfo.gov/content/pkg/GPO-CRECB-1974-pt30/pdf/GPO-CRECB-1974-pt30-1-2.pdf
[11] 120 Congressional Record, 39862 (Dec. 13, 1974), https://www.govinfo.gov/content/pkg/GPO-CRECB-1974-pt30/pdf/GPO-CRECB-1974-pt30-1-2.pdf
[12] https://www.whitehouse.gov/presidential-actions/2025/01/protecting-children-from-chemical-and-surgical-mutilation/
[13] California Senate Committee on Education, May 24, 2024 Bill Analysis for AB 1955, p. 7
[14] Senate Committee on Education, May 24, 2024 Bill Analysis for AB 1955, p. 7.
[15] AB 1955, Sec. 2(g), Sec. 4 (Education Code section 220.3(a)), and Sec. 5 (Education Code section 220.5(a)).
