The latest federal investigation into Maine announced Friday by the Trump administration is “unprecedented,” according to a national expert who also called it “counterproductive.”
The U.S. Department of Education alleges the Maine Department of Education violated the 1974 Family Educational Rights and Privacy Act, or FERPA. The Education Department announced the investigation into Maine DOE over reports that “dozens” of school districts in the state have allegedly adopted policies that allow them to withhold information from parents about students who are transgender.
The federal government plans to take action against school districts that misuse FERPA by investigating the Maine DOE, as well as the California Department of Education, according to a news release.
“Parents and guardians have the right to access their child’s education records to guide and safeguard their child’s mental, emotional, and physical well-being,” Secretary of Education Linda McMahon said. “Any policy to the contrary is both illegal and immoral.”
But at least two people who are national experts on FERPA question if the federal government can apply the law to the Maine DOE, and if the law would even require schools to disclose such information about students to their parents. It is the Education Department’s second investigation into Maine schools over their transgender policies, after the first one determined that the Maine DOE, Maine Principals’ Association and Greely High School were violating Title IX.
The law applies to school districts that receive funding from the federal government but doesn’t apply to states. The Trump administration’s investigation is framed around the Maine DOE, so that alone is “definitely stretching above” any way it’s been used previously, said Cody Venzke, a senior policy counsel with the American Civil Liberties Union.
“It’s safe to say that what the Trump administration is doing here is entirely unprecedented,” Venzke said.
FERPA serves two main purposes, said David Russcol, a partner at the law firm of Zalkind, Duncan & Bernstein in Boston. It guarantees students’ educational records are kept private and outlines when records can be disclosed to third parties, and the exceptions are limited, Russcol said.
The other main purpose is to allow parents access to those educational records for students who are under 18 years of age. There is a formal process for a parent or guardian to request the records and schools have a set amount of time to respond, Russcol said.
FERPA is a reactive law that allows parents to request records from the school. It does not mandate that schools proactively tell parents about changes to the records, Venzke said.
“[The investigation’s] reliance on FERPA is misplaced because FERPA allows parents to proactively seek their students’ records,” Venzke said. “It does not mandate that schools provide it to them.”
A different federal law, Protection of Pupil Rights Amendment, mandates affirmative consent from parents for their student to participate in eight specific types of surveys or evaluations, but that is separate from FERPA and is not referenced in the investigation notice, Venzke said.
It’s an “urban legend” in education circles that the federal government would revoke funding because the Education Department has always worked with schools to bring them back into FERPA compliance, Venzke said. But, if the federal government chooses to use its “hammers,” it can revoke all federal funding to Maine for education.
About 10 percent of Maine’s public school funding comes through the federal government. In the current fiscal year, the federal government provided K-12 schools with roughly $174.9 million and $163.1 million to postsecondary and other areas.
The Maine DOE does not track how much money districts receive directly from the federal government.
Russcol said he wasn’t sure if the Education Department has ever stripped funding from a district, but said it is a “big cudgel for the [Education Department] to waive around.”
One reason why the Education Department has typically worked with schools instead of revoking funding is because stripping funds ends up harming the students that the laws are designed to protect, Venzke said.
“The downstream harm of revoking funding from Maine schools is going to harm Maine students,” Venzke said. “That’s just counterproductive to what the Trump administration claims it’s seeking to protect here.”
A student’s educational record may not necessarily reflect anything about their gender or a gender change. Some states and districts have minimum standards for the records, but if there is no documentation in the student’s education record about a gender change, it is not covered by FERPA, Venzke said.
The Education Department pointed to Portland Public Schools as refusing to give records under FERPA. However, Portland’s policy is that a staff member’s knowledge of a student’s gender identity is not part of the educational record, Venzke said.
That means it isn’t a record that must be released under FERPA, Venzke said.
As the investigation moves forward, the Education Department needs to determine if there are sufficient facts to find there is a FERPA violation, Venzke said. The case would then move through the administrative law judges within the U.S. Department of Education, because there is no right to enforce it through the court system, Russcol said.
“It has been a very long time, if ever, since a FERPA case has gone to these administrative law judges,” Venzke said.
