The Honorable Dan Patrick 

Lieutenant Governor of Texas 

Post Office Box 12068 

Austin, Texas 78711-2068 

Dear Governor Patrick: 

KEN PAXTON 

ATTORNEY GENERAL OF TEXAS 

June 28, 2016 

Opinion No. KP-0100 

Re: Whether the ·Fort Worth Independent 

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) 

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 

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.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs. 

2Fort 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 

4See, 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 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"). 

5Section 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). 

6Although 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 

FERP A 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: 

Id. at 6. 

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. 

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 

7In 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"). 

9Guidelines Approval Form (attached to Request Letter). 

10The 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. 

JEFFREY C. MATEER 

First Assistant Attorney General 

BRANTLEY STARR 

Deputy First Assistant Attorney General 

VIRGINIA K. HOELSCHER 

Chair, Opinion Committee 

Very truly yours, 

KEN PAXTON 

Attorney General of Texas