Untitled Texas Attorney General Opinion ( 2016 )

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
June 28, 2016
The Honorable Dan Patrick Opinion No. KP-0100
Lieutenant Governor of Texas
Post Office Box 12068 Re: Whether the ·Fort Worth Independent
Austin, Texas 78711-2068 School District transgender guidelines violate
chapter 26 of the Education Code and whether
the superintendent had authority to adopt the
guidelines without a vote by the school board or
public comment (RQ-0107-KP)
Dear Governor Patrick:
You ask whether the "Transgender Guidelines" adopted by the Fort Worth Independent
School District ("FWISD") superintendent violate chapter 26 of the Education Code and whether
the superintendent had authority to adopt them without adoption by a school board vote and
without public comment. 1 As background, the superintendent adopted the Transgender Student
Guidelines in April of this year with the stated purpose of providing "direction for personnel to
address issues that may arise concerning the needs of and challenges facing trans gender students. " 2
The Guidelines state that they "are mandatory for the 2015-2016 school year," and failure to
comply with them "may result in adverse employment action." Guidelines at 1. District staff
developed the Guidelines, and they were approved by the FWISD superintendent. 3 You explain
that this was done "without adoption by school board vote and without public comment from
parents and citizens." Request Letter at 1. '
You first ask whether these Guidelines violate chapter 26 of the Education Code in their
"effort to keep student· information from parents." Id. The answer to your question hinges on a
proper understanding of the framework 9f parental rights as they relate to public education. As
the United States Supreme Court has explained repeatedly since 1923, parents have the
1See Letter from Honorable Dan Patrick, Lt. Gov., to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (May 31,
2016) ("Request Letter"), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs.
2 Fort Worth ISO Transgender Student Guidelines at 2 ("Guidelines") (attached to Request Letter).
3See Guidelines Approval Form (attached to Request Letter).
The Honorable Dan Patrick - Page 2 (KP-0100)
fundamental right to make decisions concerning the care, custody and control of their child. 4 To
implement this guiding principle in the context of public education, the Legislature has imposed a
delicate balance of the parents' fundamental right to direct the upbringing of their child with the
public school official's need to direct the education of children in Chapter 26 of the Education
Code, titled "Parental Rights and Responsibilities." See TEX. EDUC. CODE §§ 26.001-.013. In
adopting that chapter, the Legislature emphasized that "[p]arents are partners with educators,
administrators, and school district boards of trustees in their children's education. Parents shall be
encouraged to actively participate in creating and implementing educational programs for their
children." Id. § 26.00l(a). Chapter 26 also provides that "[u]nless otherwise provided by law, a
board of trustees, administrator, educator, or other person may not limit parental rights." Id.
§ 26.00l(c). With regard to student records, "[a] parent is entitled to access to all written records
of a school district concerning the parent's child." Id. § 26.004. 5 In addition, a "parent is entitled
to full information regarding the school activities of a parent's child except as provided by Section
38.004." Id. § 26.008(a). "An attempt by any school district employee to encourage or coerce a
child to withhold information from the child's parent is grounds for discipline." Id. § 26.008(b ). 6
Multiple provisions in the Guidelines relate to parental access to information about
transgender students. Under the title "Privacy and Confidentiality," the Guidelines state:
All students have a right to privacy. This includes keeping
a student's actual or perceived gender identity and expression
private. School personnel may only share this information on a
need-to-know basis or as the student directs. This includes sharing
information with the student's parent or guardian. When contacting
the parent or guardian or a transgender student, school personnel
must use the student's legal name and the pronoun corresponding to
4
See, e.g., Troxel v. Granville, 530 U.S. 57, 65 (2000) (observing that "the interest of parents in the care,
custody, and control of their children[ ]is perhaps the oldest of the fundamental liberty interests recognized by this
Court"); Santosfy v. Kramer, 455 U.S. 745, 753 (1982) (recognizing the "fundamental liberty interest of natural
parents in the care, custody, and management of their child"); Wisconsin v. Yoder, 406 U.S. 205, 232 (1972) ("The
history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing
of their children. This primary role of the parents in the upbringing of their children is now established beyond debate
as an enduring American tradition."); Prince v. Massachusetts, 321 U.S. 158, 166 ( 1944) ("It is cardinal with us that
the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include
preparation for obligations the state can neither supply nor hinder."); Pierce v. Society ofSisters, 268 U.S. 510, 534-
35 (1925) (holding that the parents have the right "to direct the upbringing and education of children under their
control"); Meyer v. Nebraska, 262 U.S. 390, 399, 401 (1923) (holding that parents have a right to "establish a home
and bring up children" and "to control the education of their own").
5
Section 38.004 requires the Texas Education Agency to adopt a policy governing the reports of child abuse
or neglect, and it "must provide for cooperation with law enforcement child abuse investigations without the.consent
of the child's parents if necessary." TEX. EDUC. CODE§ 38.004(a).
6
Although you ask only about chapter 26 of the Education Code, the federal Family Educational Rights and
Privacy Act ("FERPA") likewise generally grants parents "the right to inspect and review the education records of
their children." 20 U.S.C. § 1232g(a)(l)(A).
The Honorable Dan Patrick - Page 3 (KP-0100)
the student's gender assigned at birth unless the student, parent, or
guardian has specified otherwise.
If a parent or guardian requests access to his/her student's
educational records as defined by FERP A, access must be pro.vided.
A request by a parent or guardian for educational records under
FERPA may include unofficial records directly related to the
student, including records containing a student's actual or perceived
gender identity. The Office of Legal Counsel should be advised
when a request for student records is made and a transgender
student's privacy may be of concern (e.g. when the student has not
yet disclosed gender identity status to a parent or guardian).
FWISD Guidelines at 5 (emphasis added). The Guidelines also include a section titled "Student
Transitions," wherein they provide:
In most cases, transitioning is a very private matter. Students
may choose whether or not to have their parents participate in this
process ....
Prior to notifying any parent or guardian regarding the
student's gender identity or any potential transition process, school
personnel must work closely with the student to assess the degree to
which, if any, the parent or guardian has been or will be involved in
the process.
Id. at 6.
Far from creating .a partnership between parents, educators, and administrators regarding
their children's education, the Guidelines relegate parents to a subordinate status, receiving
information only on a "need-to-know basis." Limiting parents' access to information in this way
impairs their ability to "actively participate" in the children's education, contrary to state law. See
TEX. EDUC. CODE § 26.00I(a). Furthermore, the provision requiring school personnel to "work
closely with the student" to determine to what extent, if any, a parent will be involved in the
student's transitioning suggests that employees could, pursuant to these restrictions, encourage
some children to withhold information from a parent. See Guidelines at 6. Such action is both
against state law and grounds for discipline under the Education Code. See TEX. EDUC. CODE
§§ 26.00I(c), 26.008(a)-(b). Thus, to the extent that the Guidelines limit parental access to
information about a parent's child and operate to encourage students to withhold information from
their parents, they violate chapter 26 of the Education Code. 7
7
In briefing submitted to this office, FWISD argues that "there are times when the law precludes sharing of
private information." See Letter from Valerie Carrillo, Gen. Counsel, Fort Worth Indep. Sch. Dist., to Honorable Ken
The Honorable Dan Patrick - Page 4 (KP-0100)
You also ask whether the FWISD superintendent had "the authority to unilaterally adopt
this policy without adoption by school board vote and without public comment." Request Letter
at 1. Chapter 11 of the Education Code establishes requirements for school district organization
and governance in Texas public schools. See TEX. EDUC. CODE§§ 11.001-.356. School districts
are governed by boards of trustees who "oversee the management of the district" and "ensure that
the superintendent implements and monitors plans, procedures, programs, and systems to achieve
appropriate, clearly defined, and desired results in the major areas of district operations." Id.
§ 1 l.051(a). Addressing the collaboration between the board of trustees and the superintendent,
subsection 1 l.1512(a) provides that the "superintendent shall, on a day-to-day basis, ensure the
implementation of the policies created by the board." Id.§ 1 l.1512(a). Furthermore, the "board
of trustees and the superintendent shall work together to ... establish district-wide policies ...."
Id. § l 1.1512(b)(4). Section 11.201 separately outlines the duties of the superintendent, which
include, among others:
(1) assuming administrative responsibility and leadership for the
planning, organization, operation, supervision, and evaluation of the
education programs, services, and facilities of the district ... ;
(5) managing the day-to-day operations of the district as its
administrative manager, including implementing and monitoring
plans, procedures, programs, and systems to achieve clearly defined
and desired results in major areas of district operations; ...
(7) preparing recommendations for policies to be adopted by the
board of trustees and overseeing the implementation of adopted
policies; [and]
(8) developing or causing to be developed appropriate
administrative regulations to implement policies established by the
board of trustees[.]
Paxton, Tex. Att'y Gen. at 1 (June 14, 2016) ("FWISD Brief"). FWISD points to section 38.004 of the Education
Code, which requires school districts to cooperate with law enforcement child abuse investigations without the consent
of the child's parents if necessary, and chapter 32 of the Family Code, which enumerates specific situations when a
child may consent to treatment of counseling without parental consent. See FWISD Brief at 1-2; TEX. EDUC. CODE
§ 38.004(a); TEX. FAM. CODE §§ 32.001-.005. This office has recognized that in "very narrow and unusual
circumstances," state law may authorize a school to withhold some information from a parent; and FWISD explains
in its briefing that "[a]bsent such circumstances, District personnel involve parents in all student matters, including
gender identity issues." FWISD Briefat 2; see also Tex. Att'y Gen. Op. No. JC-0538 (2002) at 7-8 (explaining that
a school may withhold a minor child's cbunseling records from a parent in very limited and specific circumstances
when the child's health or safety is a concern). However, the Guidelines do not currently specify that these are the
only circumstances when parental access to information should be limited and instead appear to more broadly restrict
parental access to information, in violation of state law. In briefing, FWISD explains that "it intends to clarify" this
portion of the regulations in the future. FWISD Briefat 2.
The Honorable Dan Patrick - Page 5 (KP-0100)
Id. § 11.201 (d). When viewed as a whole, chapter 11 thus gives superintendents authority over
the day-to-day management of the district, but it requires that boards of trustees adopt general
policies for the district. Superintendents then implement those policies through the development
of administrative regulations.
FWISD explains that it adopted the Guidelines "as an administrative regulation aimed at
appropriately implementing Board Policy FFH (LOCAL)." FWISD Brief at 2. FWISD Board
Policy FFH "prohibits discrimination, including harassment, against any student on the basis of
... gender identity and expression," in addition to other potential bases of discrimination. 8 The
policy defines discrimination and harassment, provides examples of how those may occur, outlines
reporting and investigation procedures, and describes corrective actions that may be used. Policy
FFH at 1-8. However, nowhere in Policy FFH has the board of trustees adopted a policy limiting
a parent's involvement or access to information regarding a student's gender identity, and, as
discussed above, doing so would have likely violated state law. Instead, the few references to
"parent" in Policy FFH require notice to parents and allow for their involvement concerning a
student who has faced harassment or discrimination. See id at 5, 7 ("The District official or
designee shall promptly notify the parents of any student alleged to have experienced prohibited
conduct by a District employee or another adult."). While the superintendent has characterized
these regulations as Guidelines that "are in alignment with Board Policy FFH (Local)," decisions
to withhold information from a parent regarding a student's gender identity or suggest that
employees might work with a student to restrict parental involvement are in fact significant and
controversial matters of policy that do not appear to have been previously addressed by the FWISD
board oftrustees. 9 See Stedman v. Georgetown Savs. & Loan Ass 'n, 595 S.W.2d 486, 489 (Tex.
1979) (explaining that courts look behind labels and to determine the actual substance of action
taken). While a superintendent is authorized to recommend policies to be adopted by the board,
chapter 11 requires that policy decisions, like those addressing parental involvement with students'
gender identity choices, be addressed by the board of trustees prior to the development of any
related administrative regulations. 10 See TEX. EDUC. CODE § 11.201 (d)(7) (authorizing the
superintendent to prepare "recommendations for policies to be adopted by the board of trustees
and overseeing the implementation of adopted policies").
8See Fort Worth Indep. Sch. Dist. Bd. Policy FFH (LOCAL), available at http://pol.tasb.org/Policy/
Download/110 I ?filename=FFH%28LOCAL%29.pdf ("Policy FFH").
9
Guidelines Approval Form (attached to Request Letter).
10 The FWISD board of trustees would be required to conduct deliberations and make decisions about such
policies at an open meeting to which the public has access. See TEX. Gov'T CODE §§ 551.002 (requiring open
meetings for governmental bodies), .001(3)(E) (defining "governmental body" to include "a school district board of
trustees"), .00 I (5) (defining "open" to mean "open to the public).
The Honorable Dan Patrick - Page 6 (KP-0100)
SUMMARY
Chapter 26 of the Education Code provides that parents must
have access to all written records of a school district concerning their
child, as well as full information regarding the child's school
activities. Attempts to encourage a child to withhold information
from his or her parents may be grounds for discipline. To the extent
that the Transgender Student Guidelines adopted by the Fort Worth
Independent School District superintendent limit parental access to
information about their child and operate to encourage students to
withhold information from parents contrary to the provisions in
chapter 26, they violate state law.
Chapter 11 of the Education Code requires that boards of
trustees adopt policies for the district, while superintendents
implement those policies by developing administrative regulations.
While a superintendent is authorized to recommend policies to be
adopted by the board, chapter 11 requires that policy decisions, like
those addressing parental involvement with students' gender
identity choices, be addressed by the board of trustees prior to the
development of any related administrative regulations.
Very truly yours,
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy First Assistant Attorney General
VIRGINIA K. HOELSCHER
Chair, Opinion Committee