US investigates Kansas schools over gender identity policies: What you need to know about the Title IX and FERPA fallout
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The investigation follows a complaint filed by the Defense of Freedom Institute (DFI), which alleges that the districts' policies allow students to participate in sports and access facilities based on gender identity rather than biological sex. The complaint also claims that school officials are prohibited from informing parents of a student's transgender status without the student's consent.
Investigations focus on Title IX and FERPA compliance
The Department of Education is investigating whether these policies breach Title IX of the Education Amendments of 1972 and the Family Educational Rights and Privacy Act (FERPA).
Title IX prohibits discrimination based on sex in educational programmes receiving federal financial assistance, while FERPA protects the privacy of student education records and grants parents the right to access and control certain disclosures of this information.
According to the Department, violations of either law can result in the termination of federal funding to the school districts involved.
Kansas Attorney General and Education Secretary respond
Kansas Attorney General Kris Kobach submitted a letter to US Secretary of Education Linda McMahon, expressing concern about the districts' policies and potential violations of federal law.
Kobach stated, 'Title IX was enacted to protect the rights of girls to equal educational opportunity and safety. Kansas had to sue and defeat the Biden Administration in federal court to stop them from dismantling Title IX.'
In response, Secretary McMahon noted that her office would 'vigorously investigate these matters to ensure these practices come to an end.' She added, 'The Kansas districts' alleged behaviour of allowing gender ideology to run amok in their schools is an affront not only to the law, but to the sound judgement we expect from our educational leaders.'
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Department guidance on parental rights and student privacy
In March, the SPPO issued a Dear Colleague Letter (DCL) to state superintendents, reminding them of their compliance obligations under FERPA. The letter described policies that hide a child's gender identity from parents as a 'priority concern.' Secretary McMahon also included a cover letter stating that 'by natural right and moral authority, parents are the primary protectors of their children.'
FERPA provides parents with the right to access their children's education records, request amendments, and limit the disclosure of personally identifiable information, with specific exceptions. Any instruction to staff to withhold information about a child's gender identity from parents may infringe on these rights.
Potential consequences for districts under investigation
Should the Department of Education find that the districts are in violation of Title IX or FERPA, the consequences may include the withdrawal of federal funding. The investigations are ongoing, and the Department has not yet announced any findings or enforcement actions.
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