Compliance with FERPA in Light of Federal Investigation
The Family Educational Rights and Privacy Act (“FERPA”), codified at 20 U.S.C. 1232g, guarantees parents the right to inspect and review the education records of their minor children. On March 27, 2025, the United States Department of Education announced an investigation into the California Department of Education arising out of allegations raised in the California Justice Center’s FERPA complaint.
On April 1, 2025, in response to the investigation announcement, the California Department of Education (“CDE”) issued a statement regarding the relationship between FERPA and AB 1955 (Ward, Chapter 95, Statutes of 2024):
“AB 1955 does not mandate nondisclosure. AB 1955 prohibits LEAs from mandating that staff disclose a student’s sexual orientation, gender identity, or gender expression to another person without student consent, unless otherwise required by state or federal law. AB 1955 does not prohibit LEA staff from sharing any information with parents. Based on the plain language of both laws, there is no conflict between AB 1955 and FERPA, which permits parental access to their student’s education records upon request.”
In other words, according to the CDE, AB 1955 does not mandate non-disclosure—it prohibits districts from mandating disclosure without student consent, unless otherwise required by law. FERPA is that law.
Accordingly, local education agencies must allow parents access to inspect and review records containing information related to their minor child’s gender identity or gender expression upon a parent’s request—regardless of whether the student has provided consent. FERPA’s right of access for parents is superior to any state law guidance to the contrary, including the Attorney General Know Your Rights Guidance, AB 1266 FAQ documents, ACLU memoranda and CSBA guidance.
Further, as explicitly stated in the USDOE’s Dear Colleague Letter of March 28, 2025, all information that is directly related to a student and maintained by an educational agency or institution is part of the student’s “education records,” which parents have a right to inspect and review. This expressly includes “gender plans” and any other “unofficial” record.
School personnel who prepare a gender support plan (like this, for example) for a minor child without involving the child’s parents violate the Protection of Pupil Rights Amendment (20 U.S.C. § 1232h) (“PPRA”) (which requires schools to obtain parental consent before requiring minor students to participate in surveys, analyses, or evaluations that reveal certain sensitive information), and the parents’ fundamental right to direct the care and upbringing of their children. If a school creates a gender support plan for a minor child and then refuses to turn it over to an inquiring parent pursuant to a FERPA request, that district is also violating FERPA.
If a district has policies which allow use of a gender support plan without involving parents or prohibits access to parents pursuant to a FERPA request, and still certifies to the federal government that it is in compliance with federal laws in order to continue receiving federal funds, that district has also violated the False Claims Act (31 U.S.C. §§ 3729 – 3733), which renders the district liable for treble damages (three times the government’s actual damages) plus a penalty per false claim.
Require Parental Consent for Gender Support Plan
Use of a gender support plan without parental consent violates the PPRA—school personnel are subjecting a minor student to an analysis or evaluation that reveals information concerning mental or psychological problems of the student or the student’s family and sex behavior or attitudes without prior written consent of the parent. (See 20 U.S. Code § 1232h(b)).
With respect to gender support plans, the easiest way to stop violating federal laws and parents’ rights is to treat them the same way a 504 or IEP plan is treated: notify parents and obtain their consent before discussing and using a support plan with a minor child. The section of the gender support plan used to indicate whether parents have knowledge of and support the child’s “transition” should be amended to provide a space for mandatory signature of a minor student’s parents.
One might argue that requiring parental signature on a gender support plan constitutes a violation of AB 1955 because it ultimately involves mandatory notification of a parent—you can’t obtain parental consent without notifying the parent first. However, as noted above, AB 1955 includes specific language nullifying its requirements when “otherwise required by state or federal law.”
Rescind Concealment Policies
If your district maintains concealment policies or practices based on Attorney General Know Your Rights Guidance, AB 1266 FAQ documents, ACLU memoranda or CSBA guidance, those policies should be rescinded, and district personnel should be advised of the consequences for violating federal law. This includes policies which instruct personnel to keep separate “official” and “unofficial” records and require personnel to obtain minor student consent before disclosing the information in those records to a child’s parents. Many of these policies were initially adopted in the form of Administrative Regulation 5145.3. Use of the gender support plan is not documented in most district policies.
If you have questions about whether your district’s policies and practices violate federal laws, be cautious about relying on CDE. The CDE has taken conflicting positions on these issues publicly, privately, and in litigation. If your district continues to maintain concealment policies and certifies compliance with federal laws, your district not only stands to lose federal funding, but is also liable for violating the False Claims Act. The CDE will not indemnify districts for this liability.
This document is provided for informational purposes as a public service and is not intended as legal advice. Please consult your district’s attorneys before taking any action.