The U.S. Department of Justice has given Ann Arbor Public Schools two weeks to change their policy on transgender and gender nonconforming students or face a lawsuit.
The policy prevents staff from disclosing “information that may reveal a student’s transgender status,” except when authorized by the student or when legally required. The DOJ alleges the policy violates parental rights.
In July, the U.S. Department of Education notified Ann Arbor Public Schools that their policy “likely violates FERPA,” a federal law that gives legal guardians broad access to their child’s school records. At the time, the Education Department said they were “putting districts on notice that we will use every tool available to hold them to account.”
On August 24, the Education Department demanded the district change their policy before school began the following week. On August 26, through an accelerated procedure, the school board approved an amendment emphasizing that the policy allows for disclosure in response to formal requests made under applicable law.
Now, the Department of Justice says that’s not enough. In a letter posted on X on Monday, September 14, the DOJ demanded further revisions, including the removal of a directive that staff “privately consult with the student regarding the name and pronouns the student requests.” The DOJ also wants the district to give parents "an opportunity for a hearing to challenge the contents of their children's educational records," and "an opportunity to correct or delete any inaccurate, misleading, or otherwise inappropriate data.”
Steve Norton, a trustee on the Ann Arbor school board, said the DOJ’s new demands go beyond their power under federal law.
“They're trying to push the envelope to say that we must somehow notify parents, whether the student requests privacy or not,” Norton told Michigan Public. “That's just simply beyond what the law allows.”
Addressing the school board in late August, Richard Landau, who represents the district in matters of federal compliance, said that $15 million dollars of annual federal funding was at risk. He said that, to his knowledge, the federal action was not in response to a complaint, but rather "originated on the department’s own initiative.”
Landau said the Education Department alleged the district was “‘hiding records’ from any parent who requests them.”
“It’s been our consistent position that we do not [hide records],” Landau said. “When we receive a FERPA request, we provide those records.”
Before voting to amend the policy in August, school board trustees said the revisions clarified how existing practices complied with federal law, but did not alter operational procedures.
The DOJ’s letter quoted some of those comments, including Trustee Susan Schmidt, who said the revision “doesn’t mean we’re changing anything. We’re trying to be more clever than that.” Assistant Attorney General Harmeet Dhillon posted the DOJ’s letter on X, writing “Clever won't cut it!🤨”
Norton, the trustee, said “it was a little startling” to see a school board discussion quoted by a federal official.
“And then on the other hand, a little annoying, given all the various things that our federal government has said that they can't afford to do, but yet they can have someone watch our board meetings,” Norton said.
The Education Department has declared “the practice of hiding a child’s 'gender identity' from that child’s parents” to be a “priority concern.” The department has taken similar actions in Maryland, Maine, and California. In a policy directive last year, the department wrote that “the corrective application of FERPA will be to empower all parents to protect their children from the radical ideologies that have taken over many schools.”
In a statement, a spokesperson for Ann Arbor Public Schools wrote “[t]he District takes both its obligations under federal law and its responsibility to its students and families seriously, and is reviewing the correspondence carefully with legal counsel. The District remains committed to protecting the privacy, safety, and well-being of every student, while complying with federal law."
The school board convened a closed session on Wednesday, September 14, to discuss legal strategy. The board voted to authorize a response to the DOJ “consistent with the strategy and direction discussed in closed session,” and to retain an attorney in connection with the dispute.
A spokesperson for the Department of Justice declined to comment. The DOJ's letter set a deadline of September 28 for the school board “to avoid litigation" by making the requested revisions.
Speaking ahead of the closed session, Norton said he was unsure how the district would respond. But, he said, “I don't think any of us is in a mood to give the Department of Justice more latitude than they can legally use on this matter.”
