Can a Texas school district keep student information from parents, and can a superintendent set that policy alone?

Plain-English summary

Lieutenant Governor Dan Patrick asked the AG about "Transgender Student Guidelines" that the Fort Worth Independent School District (FWISD) superintendent adopted in April 2016. The guidelines were stated to give personnel direction on issues facing transgender students, were declared mandatory for the 2015-2016 school year, and were developed by district staff and approved by the superintendent without a school board vote and without public comment. The Lieutenant Governor asked two questions: whether the guidelines violated chapter 26 of the Education Code in their effort to keep student information from parents, and whether the superintendent had authority to adopt them unilaterally.

On the first question, the AG started from the parental-rights framework. The U.S. Supreme Court has long recognized that parents have a fundamental right to direct the care, custody, and control of their children, and the Texas Legislature built on that principle in chapter 26 of the Education Code, titled "Parental Rights and Responsibilities." Chapter 26 makes parents partners in their children's education, bars limiting parental rights unless otherwise provided by law, entitles a parent to all written records concerning the child and to full information about the child's school activities, and makes it grounds for discipline for an employee to encourage or coerce a child to withhold information from a parent. The AG read the FWISD guidelines as limiting parents to a "need-to-know" status on a student's gender identity and as directing personnel to work closely with a student to assess whether and to what extent a parent would be involved in a transition. The AG concluded that, to the extent the guidelines limited parental access to information and operated to encourage students to withhold information from their parents, they violated chapter 26.

On the second question, the AG turned to chapter 11, which governs school district organization. Boards of trustees oversee the district's management and adopt district policies, while the superintendent runs day-to-day operations and develops administrative regulations to implement the board's policies. FWISD characterized the guidelines as an administrative regulation implementing an existing board anti-discrimination policy (Policy FFH). But the AG found that Policy FFH nowhere limited a parent's access to or involvement in information about a student's gender identity, and that decisions to withhold such information from a parent were significant and controversial policy matters the board had not addressed. Citing the rule that courts look behind labels to the substance of an action, the AG concluded that chapter 11 required the board of trustees to address policy decisions of that kind before the superintendent could develop related administrative regulations. The AG noted such board deliberations would have to occur at an open meeting under the Government Code's open-meetings requirement in section 551.002.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The law governing student privacy, parental rights, and the treatment of transgender students in schools has continued to develop through federal court decisions, federal agency guidance, and state legislation since 2016, and the Texas Legislature has enacted statutes in this area in later sessions. Confirm the current state of both federal and Texas law before relying on anything described here.

What the opinion meant for those who asked

The Lieutenant Governor (as the opinion described it): The opinion answered both of his questions. It concluded that, to the extent the FWISD guidelines limited parental access to information about a child and encouraged students to withhold information from parents contrary to chapter 26, they violated state law; and it concluded that the superintendent could not unilaterally adopt policy of that kind, because chapter 11 assigns policy decisions to the board of trustees, with the superintendent limited to recommending policies and implementing adopted ones through administrative regulations.

The Fort Worth Independent School District (as the opinion described it): The opinion described FWISD's position, including its argument that some information sharing is precluded by law in narrow circumstances (such as child-abuse investigations under section 38.004 and consent statutes in Family Code chapter 32) and its statement that it intended to clarify the guidelines. The opinion acknowledged that in very narrow and unusual circumstances state law may authorize withholding some information from a parent, but concluded the guidelines as written did not limit themselves to those circumstances and instead more broadly restricted parental access, and that the underlying policy choices had to come from the board.

School boards and superintendents generally (as the opinion described it): The opinion described the division of authority under chapter 11: boards adopt district policies, superintendents implement them through administrative regulations, and a superintendent recommending policy is not the same as the board adopting it. It framed significant and controversial matters as requiring board action at an open meeting before related administrative regulations are developed.

Common questions

Do Texas parents have a right to see their child's school records?
Yes, under the opinion. The AG pointed to Education Code section 26.004, which entitles a parent to access all written records of a school district concerning the parent's child, and section 26.008(a), which entitles a parent to full information regarding the child's school activities, subject to a narrow exception.

Can a school encourage a student to keep information from their parents?
The opinion said no as a general matter. Education Code section 26.008(b) makes an attempt by a school district employee to encourage or coerce a child to withhold information from a parent grounds for discipline, and the AG concluded that guidelines operating to encourage students to withhold information violated chapter 26.

Can a superintendent adopt a district policy without the school board?
Not a policy decision, under the opinion. The AG read chapter 11 to give boards of trustees the job of adopting district policies, while the superintendent recommends policies and implements adopted ones through administrative regulations. Significant policy choices had to be addressed by the board first.

Are there any situations where a school can withhold information from a parent?
The opinion recognized that in very narrow and unusual circumstances state law may authorize a school to withhold some information from a parent, citing examples like child-abuse investigation cooperation under section 38.004 and limited situations involving a child's health or safety. But it concluded the FWISD guidelines were not limited to those circumstances.

Background and statutory framework

The U.S. Supreme Court has repeatedly recognized that parents have a fundamental right to make decisions concerning the care, custody, and control of their children (Troxel v. Granville, 530 U.S. 57, 65 (2000); Santosky v. Kramer, 455 U.S. 745, 753 (1982); Wisconsin v. Yoder, 406 U.S. 205, 232 (1972); Prince v. Massachusetts, 321 U.S. 158, 166 (1944); Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925); Meyer v. Nebraska, 262 U.S. 390, 399, 401 (1923)). The Texas Legislature implemented that principle in chapter 26 of the Education Code, "Parental Rights and Responsibilities" (Tex. Educ. Code §§ 26.001-.013). Chapter 26 makes parents partners in education and encourages their participation, bars limiting parental rights unless otherwise provided by law, entitles a parent to all written records concerning the child and to full information about the child's school activities except as provided by section 38.004, and makes encouraging or coercing a child to withhold information from a parent grounds for discipline (id. §§ 26.001(a), (c), 26.004, 26.008(a), (b)). Section 38.004 concerns reports of child abuse and cooperation with law enforcement investigations (id. § 38.004(a)). The federal FERPA likewise generally grants parents the right to inspect and review their children's education records (20 U.S.C. § 1232g(a)(1)(A)).

Chapter 11 of the Education Code establishes requirements for school district organization and governance (Tex. Educ. Code §§ 11.001-.356). Boards of trustees oversee the management of the district and ensure the superintendent implements plans to achieve results (id. § 11.051(a)). The superintendent ensures day-to-day implementation of the policies created by the board, and the board and superintendent work together to establish district-wide policies (id. § 11.1512(a), (b)(4)). The superintendent's duties include managing day-to-day operations, preparing recommendations for policies to be adopted by the board, overseeing implementation of adopted policies, and developing administrative regulations to implement board policies (id. § 11.201(d)). Courts look behind labels to determine the actual substance of an action (Stedman v. Georgetown Savs. & Loan Ass'n, 595 S.W.2d 486, 489 (Tex. 1979)). Board deliberations and decisions on such policies must occur at an open meeting (Tex. Gov't Code §§ 551.002, .001(3)(E)). A prior AG opinion recognized that a school may withhold a minor child's counseling records from a parent in very limited and specific circumstances when the child's health or safety is a concern (Tex. Att'y Gen. Op. No. JC-0538 (2002) at 7-8), and Family Code chapter 32 enumerates specific situations when a child may consent to treatment without parental consent (Tex. Fam. Code §§ 32.001-.005).

Citations

Statutes and constitutional provisions:

• Tex. Educ. Code §§ 26.001-.013 (Parental Rights and Responsibilities)
• Tex. Educ. Code §§ 26.001(a), (c), 26.004, 26.008(a), (b)
• Tex. Educ. Code § 38.004(a) (child-abuse reporting)
• Tex. Educ. Code §§ 11.001-.356 (district organization and governance)
• Tex. Educ. Code §§ 11.051(a), 11.1512(a), (b)(4), 11.201(d)
• Tex. Fam. Code §§ 32.001-.005 (consent to treatment)
• Tex. Gov't Code §§ 551.002, .001(3)(E) (open-meetings requirement)
• 20 U.S.C. § 1232g(a)(1)(A) (FERPA)

Cases:

• Troxel v. Granville, 530 U.S. 57 (2000)
• Santosky v. Kramer, 455 U.S. 745 (1982)
• Wisconsin v. Yoder, 406 U.S. 205 (1972)
• Prince v. Massachusetts, 321 U.S. 158 (1944)
• Pierce v. Society of Sisters, 268 U.S. 510 (1925)
• Meyer v. Nebraska, 262 U.S. 390 (1923)
• Stedman v. Georgetown Savs. & Loan Ass'n, 595 S.W.2d 486 (Tex. 1979)

Texas Attorney General opinions:

• Tex. Att'y Gen. Op. No. JC-0538 (2002)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0100
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2016/kp0100.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

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 transgender 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 of parental rights as they relate to public education. As the United States Supreme Court has explained repeatedly since 1923, parents have the 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. § 26.001(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. § 26.001(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
              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 FERPA, access must be provided.
              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 § 26.001(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 §§ 26.001(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]

    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. § 11.051(a). Addressing the collaboration between the board of trustees and the superintendent, subsection 11.1512(a) provides that the "superintendent shall, on a day-to-day basis, ensure the implementation of the policies created by the board." Id. § 11.1512(a). Furthermore, the "board of trustees and the superintendent shall work together to ... establish district-wide policies ...." Id. § 11.1512(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[.]

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 of trustees. [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").

[1] See Letter from Honorable Dan Patrick, Lt. Gov., to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (May 31, 2016) ("Request Letter"), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs.

[2] Fort Worth ISD Transgender Student Guidelines at 2 ("Guidelines") (attached to Request Letter).

[3] See Guidelines Approval Form (attached to Request Letter).

[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"); Santosky 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 of Sisters, 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)(1)(A).

[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 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 or 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 Brief at 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 counseling 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 Brief at 2.

[8] See Fort Worth Indep. Sch. Dist. Bd. Policy FFH (LOCAL), available at http://pol.tasb.org/Policy/Download/1101?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"), .001(5) (defining "open" to mean "open to the public").

                                  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