### The Honorable Dan Patrick Lieutenant Governor ofTexas Post Office Box 12068 Austin, Texas 78711-2068

Dear Governor Patrick: 

## KEN PAXTON ATTORNEY GENERAL OF TEXAS



### June 28, 2016

OpinionNo. KP-0100
Re: Whether the ·Fort Worth Independent School District transgender guidelines violate chapter 26 ofthe Education Code and whether the superintendent had authority to adopt the guidelines without a vote bythe 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 ofthe 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 ofthis year with the stated purpose ofproviding "direction for personnel to addressissuesthatmay arise concerningtheneeds ofandchallenges facingtransgender 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 ofthe Education Code in their "effort to keep student·information from parents." 

### Id. The answer to your question hinges on a proper understanding ofthe framework 9fparental 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 DanPatrick

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fundamental right to make decisions concerning the care, custody and control oftheir child.4 

### To implementthis guiding principle in the context ofpublic education, the Legislature has imposed a delicate balance ofthe parents' fundamental right to direct the upbringing oftheir child with the public school official's need to direct the education ofchildren in Chapter 26 ofthe 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 districtboards oftrustees intheir 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). Withregard to student records, "[a] parent is entitled to access to all written records ofa school district concerning the parent's child." 

### Id. §26.004.5 

### In addition, a "parent is entitled to full informationregarding the school activities ofaparent's childexcept as providedby 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. Underthe 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. Schoolpersonnel may only share this information on a need-to-know basis oras the studentdirects. This includes sharing informationwith the student'sparentorguardian. 

### Whencontacting the parent or guardian or a transgender student, school personnel mustuse the student's legal name and the pronoun correspondingto

4 See, e.g., Troxel v. Granville, 530 U.S. 57, 65 (2000) (observing that "the interest ofparents in the care, custody, and control oftheir children[ ]is perhaps the oldest ofthe fundamental liberty interests recognized by this Court"); Santosfy v. Kramer, 455 U.S. 745, 753 (1982) (recognizing the "fundamental liberty interest ofnatural parents in the care, custody, and management oftheir child"); Wisconsin v. Yoder, 406 U.S. 205, 232 (1972) ("The history and culture ofWestern civilization reflect a strongtradition ofparental concern for the nurture and upbringing oftheir children. This primary role ofthe parents in the upbringing oftheir 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 ofthe 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 ofchildren 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 oftheir own").

5Section 38.004 requires the Texas Education Agency to adopt a policy governing the reports ofchild abuse or neglect, and it "must provide for cooperation with law enforcement child abuse investigations without the.consent ofthe child's parents ifnecessary." TEX. EDUC. CODE§ 38.004(a).

6Although you ask only about chapter 26 ofthe 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

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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 educationalrecords as definedbyFERPA, access mustbepro.vided. A request by a parent or guardian for educational records under FERP A may include unofficial records directly related to the student, includingrecords containing a student's actual orperceived 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 ofconcern (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," whereinthey provide:



### Id. at 6. Inmostcases,transitioningis averyprivatematter. 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 mustwork closelywiththe studentto assess the degreeto which, ifany, the parent orguardianhas been orwillbe 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 inthis way impairstheir abilityto "activelyparticipate" inthe children'seducation, contraryto 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 abouta parent'schildand operateto encourage studentsto withholdinformationfrom theirparents, they violate chapter 26 ofthe Education Code.7

7In briefing submitted to this office, FWISD argues that "there are times when the law precludes sharing of private information." See Letterfrom Valerie Carrillo, Gen. Counsel, Fort Worth Indep. Sch. Dist., to Honorable Ken

### The Honorable DanPatrick

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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 ofthe 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 byboards oftrustees who "overseethe management ofthe 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. § 1l.051(a). Addressing the collaboration between the board oftrustees and the superintendent, subsection 1l.1512(a) provides that the "superintendent shall, on a day-to-day basis, ensure the implementation ofthe policies created by the board." 

### Id.§ 1l.1512(a). Furthermore, the "board oftrustees and the superintendent shall work together to

... establish district-wide policies

...." 

### Id. § l 1.1512(b)(4). Section 11.201 separately outlines the duties ofthe superintendent, which include, among others: (1) 

### assuming administrative responsibility and leadership for the planning, organization, operation, supervision, and evaluationofthe education programs, services, and facilities ofthe 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 ofdistrict 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 oftrustees[.]

Paxton, Tex. Att'y Gen. at 1 (June 14, 2016) ("FWISD Brief"). FWISD points to section 38.004 ofthe Education Code, whichrequires school districts to cooperate with law enforcementchild abuse investigations withoutthe consent ofthe child's parents ifnecessary, and chapter 32 ofthe Family Code, which enumerates specific situations when a child may consent to treatment ofcounseling without parental consent. See FWISD Briefat 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 Briefat2; 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 appearto more broadly restrict parental access to information, in violation ofstate law. In briefing, FWISD explains that "it intends to clarify" this portion ofthe regulations in the future. FWISD Briefat2.

### The Honorable DanPatrick

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### Id. § 11.201(d). When viewed as a whole, chapter 11 thus gives superintendents authority over the day-to-day management ofthe district, but it requires that boards oftrustees adopt general policies for the district. Superintendents then implement those policies through the development ofadministrative regulations. FWISD explains that it adopted the Guidelines "as an administrative regulation aimed at appropriately implementing Board Policy FFH (LOCAL)." FWISD Briefat 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 ofdiscrimination. 8 

### The policydefines discrimination andharassment,providesexamples ofhowthosemayoccur, outlines reporting and investigationprocedures, and describes corrective actions that may be used. Policy FFH at 1-8. However, nowhere in Policy FFH has the board oftrustees 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 ofany 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 controversialmatters ofpolicythatdo notappearto havebeenpreviously addressedbythe FWISD board oftrustees. 9 

### See Stedman v. Georgetown Savs. & 

### LoanAss 'n, 

### 595 S.W.2d 486, 489 (Tex. 1979) (explaining that courts look behind labels and to determine the actual substance ofaction taken). While a superintendent is authorized to recommend policies to be adopted by the board, chapter 11 requires thatpolicydecisions, like those addressingparental involvementwith students' gender identity choices, be addressed by the board oftrustees 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 oftrustees and overseeing the implementation ofadoptedpolicies").

8 See Fort Worth Indep. Sch. Dist. Bd. Policy FFH (LOCAL), available at http://pol.tasb.org/Policy/ Download/110I?filename=FFH%28LOCAL%29.pdf ("Policy FFH").

9Guidelines Approval Form (attached to Request Letter).

10The FWISD board oftrustees 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"), .00I(5) (defining "open" to mean "open to the public).The Honorable Dan Patrick

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### SUMMARY Chapter26 ofthe EducationCodeprovidesthatparentsmust have accessto all writtenrecords ofa schooldistrictconcerningtheir child, as well as full information regarding the child's school activities. Attempts to encourage a child to withhold information from his orherparents may be grounds for discipline. To the extent that the Transgender Student Guidelines adopted bythe FortWorth 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 ofthe 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 bythe board, chapter 11 requires that policy decisions, like those addressing parental involvement with students' gender identity choices, be addressed by the board oftrustees prior to the development ofany 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 ofTexas