The Trump administration took an unprecedented move last week when it sued the Kansas City, Kansas, school district over how it handles student gender identity issues.
The Department of Justice has accused the district of instructing staff to withhold information from parents if their child is socially transitioning to a different gender at school. But its argument may rest on whether it can prove that parents requested such records under a federal privacy law and that schools refused to turn them over.
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The government’s “case is strongest if discovery shows that the district actually used the guidance to create records that were intentionally segregated or concealed from parents,” said Katie Cosgrove, counsel at the Liberty Justice Center. The conservative law firm represented a California school district that required staff to notify parents if their child wanted to be identified as a gender other than their sex at birth.
The Family Educational Rights and Privacy Act, or FERPA, gives parents the right to review their kids’ education records and correct any inaccuracies. The Justice Department hasn’t accused the district of actually preventing any parents from accessing records, said Brian Dittmeier, director of LGBTQI+ Equality at the National Women’s Law Center.
The government “is overstating the reach of the law in an attempt to force their preferred policy result,” he said. “FERPA does not require proactive parental notification as records are created.”
But in the Justice Department’s view, Cosgrove added, the right to view records under FERPA, “is meaningless if the school intentionally structures its procedures so parents have no reason to know that there is anything to request.”
The administration likely views this lawsuit as a test case, Cosgrove said. No parent has ever sued a district under FERPA, because the law doesn’t allow it, and the government hasn’t either. The litigation is something President Donald Trump has been working toward since he took office last year, starting with an executive order that said the government would only recognize two sexes, male and female, not “an internal, fluid and subjective sense of self.” But efforts to get the Kansas City district to change its practices started roughly a year before Trump was even elected.
In late 2023, the 21,000-student district was one of six that received letters from Kansas Attorney General Kris Kobach, a Republican, stating that their guidance regarding transgender students violated parents’ rights.
Five of those districts appeared earlier that year in a report from Defending Education, a conservative advocacy organization. The scan of districts’ policies aimed to identify those stating that “personnel can or should keep a student’s transgender status hidden from parents.”
Kobach praised the Belle Plaine and Maize districts, both outside Wichita, for “responding swiftly when they saw what was going on.” But the other districts, he said, “dug in their heels.”
Defending Education is among several groups that have influenced the Trump administration’s education agenda. Another is the Defense of Freedom Institute, which along with Kobach, asked the U.S. Department of Education to investigate Kansas City and three remaining districts — Topeka, Olathe and Shawnee Mission.
‘Defaults to parental involvement’
In Kansas City, the complaint mentions a 2017 document that was presented to the board, but never adopted, as well as current transgender guidance in which school officials consider students’ requests for privacy “on a case-by-case basis.” In a July interview with local media, Superintendent Anna Stubblefield said the district has never had a formal policy on the issue, and that there are a handful of instances, like accusations of abuse or neglect or if the child has turned 18, in which a parent would be excluded.
In Dittmeier’s view, the district “defaults to parental involvement.”
“Many of the school-based supports for trans youth in recent years,” he said, “have been fought for and secured by parents who want their children to be treated with respect and affirmed in their gender identity at school.”
The district’s procedures include a planning meeting to discuss issues like preferred pronouns and restroom use. In the complaint, Harmeet Dhillon, assistant attorney general, wrote: “Convening a meeting attended by a student and multiple district employees, in their official capacities and in an official setting, without the student’s parents’ attendance at or knowledge of the meeting, is inherently coercive and would be viewed by a reasonable child as ‘required.’ ”
Cosgrove, with Liberty Justice Center, said the government has likely anticipated the counterargument that FERPA doesn’t require parental notification. That’s why the complaint also accuses the district of violating the Protection of Pupil Rights Amendment, another privacy law that requires districts to get parental consent before asking a student questions about sensitive topics, through a survey, for example.
‘Litigation-ready’
The Department of Education has accused several states and districts of allowing students to have a say in whether they reveal their gender identity to their parents. Along with Kansas City, the department said in April that Topeka, Olathe and Shawnee Mission all violated FERPA and Title IX for allowing students to use facilities based on gender identity.
But negotiations between the department and Kansas City reached an impasse, and the district, Cosgrove said, presented the Justice Department with the “most developed and litigation-ready factual record.”
The guidance document, she said, “describes the creation and retention of an individualized ‘gender plan,’ permits parents to be excluded from the planning process and calls for an implementation meeting involving school employees, but not necessarily the parents.”
Andrew Ortiz, senior policy attorney with the Transgender Law Center, agreed with her description of the evidence.
“The existence of a fairly detailed internal guidance document is somewhat unusual,” he said. “It gives the administration something to point to and inflate their constant claims that schools have ‘secret transition plans.’ ”
Kansas may have also been an “attractive jurisdiction,” Cosgrove said, because a federal court in 2022 sided with a math teacher in the Geary County School District who was suspended when she refused to use a student’s preferred name and pronouns. In a settlement, the district paid the teacher $95,000 in damages and attorneys’ fees.
“That was a different legal claim, but it gives the DOJ at least some favorable local precedent concerning school secrecy and parental involvement,” she said.
Additional cases
Aside from the lawsuit against Kansas City, there have also been developments in other FERPA-related cases:
- Late last month, the Topeka district reached a resolution with the department to rescind any guidance that would keep parents from becoming informed if their child changes their gender identity.
- In May, the Olathe district signed an agreement to resolve the Title IX issue, but the department still referred it and the Shawnee Mission district to the Justice Department for “enforcement measures.” Olathe is defending itself against any loss of federal funding, and in a letter to the Office for Civil Rights, Shawnee Mission’s attorney called the investigation a “sham process designed to reach a predetermined outcome.”
- The Anne Arundel County Public Schools in Maryland updated its policy regarding trans students to say that nothing “shall be construed to limit or otherwise interfere with parents’ rights under FERPA, including the right to inspect and review their child’s complete education record.” The district made the revisions after the Department of Education threatened litigation. In July, the department said its Student Privacy Policy Office heard complaints from parents who received an email referring to their child by different pronouns.
- At the same time, the department warned the Ann Arbor district in Michigan that it might be sued and said officials must justify a policy that “directs school officials to maintain records related to a student’s so-called ‘gender identity’ in a separate filing system.” The press release did not point to a specific complaint from parents.
As the Kansas City case moves forward, Cosgrove said there are a few things to watch. One is if the district, which stands to lose roughly $70 million in federal funds, will argue that the administration can’t withhold funding based on legal interpretations that Congress never clearly stated.
It’s important, she added, to pay attention to other districts facing possible lawsuits as well as any new ones added to the list. That will show whether the administration just wants to ensure parents have access to records or is seeking “a nationwide parental-notification requirement.”