“Model Polices” on Transgender Students vs. Laws Guaranteeing Parental Rights

by James C. Sherlock

Emilio Jaksetic wrote an excellent article this morning.

Mr. Jaksetic, a lawyer, commented on the decision by Judge J. Frederick Watson of the 24th Judicial Circuit of Virginia, to dismiss a lawsuit challenging the Virginia Board of Education’s Model Policies for the Treatment of Transgender Students in Virginia’s Public Schools for lack of standing.  The judge did not rule on the substantive merits of lawsuit.

So, Christian Action Network did not have standing. I also believe that it sued under the wrong theory of law and in the wrong court. I told them so at the time.

One basic flaw in Model Policies is that it specifically permits portions of educational records to be withheld from parents by school personnel. That was not challenged by the Christian Action Network suit.

Yet it appears to be illegal under both federal and state laws.

School boards should take actions on Model Policies only with qualified legal advice.

Federal law. VDOE was not granted the authority to withhold records from parents by the General Assembly. That body was proscribed from doing so under federal law.

The federal Family Educational Rights and Privacy Act (FERPA) was written to ensure parents “rights to inspect and review the student’s education records maintained by the school.”

Three key points on FERPA:

  1. FERPA is a Federal law that is administered by the Student Privacy Policy Office (SPPO) in the U.S. Department of Education (Department);
  2. FERPA defines “education records” as “records that are directly related to a student and maintained by an educational agency or institution or by a party acting for the agency or institution”; and
  3. The records exempted under FERPA do not include anything addressed in Model Policies.

Virginia law and parental rights. 

Virginia law properly defers to FERPA under Chapter 37. Virginia Freedom of Information Act.

As but one example, Code of Virginia § 2.2-3705.7. Exclusions to application of chapter; records of specific public bodies and certain other limited exclusions.

“Nothing in this subdivision shall operate to prevent the disclosure of information defined as directory information under regulations implementing the federal Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, unless the public body has undertaken the parental notification and opt-out requirements provided by such regulations. Access shall not be denied to the parent, including a noncustodial parent, or guardian of such person, unless the parent’s parental rights have been terminated or a court of competent jurisdiction has restricted or denied such access.”

The specific Virginia law under which the policies were written is Code of Virginia § 22.1-23.3. Treatment of transgender students; policies. That law mentions nothing about parents being excluded from information or decisions about their children.

The drafters of Model Policies mistook the direction of the law that they ensure “Protection of student privacy and the confidentiality of sensitive information” as license to deny information about a child to his parents. FERPA prohibits such denial.

Parental rights, legal custody and the Virginia court of competent jurisdiction. Parental rights include the right to legal custody, meaning the ability to make major decisions about the child’s health, education, and religious upbringing.

The “court of competent jurisdiction” that Code of Virginia gives the right the terminate parental rights is Juvenile and Domestic Relations District Courts (J&D). It is certainly not the Department of Education.

The definition in Virginia law of legal custody is:

“Legal custody” means (i) a legal status created by court order which vests in a custodian the right to have physical custody of the child, to determine and redetermine where and with whom he shall live, the right and duty to protect, train and discipline him and to provide him with food, shelter, education and ordinary medical care, all subject to any residual parental rights and responsibilities or (ii) the legal status created by court order of joint custody …

There was no evidence of legislative intent — in committee or floor debates — that touched the subject of parental rights or legal custody.

Model Policies claims

“The Model Policies for the Treatment of Transgender Students in Public Elementary and Secondary Schools document was developed in response to House Bill 145 and Senate Bill 161, enacted by the 2020 Virginia General Assembly:”

Nonsense. There is nothing in Code of Virginia § 22.1-23.3. Treatment of transgender students; policies that permits denial of parental rights covered by FERPA.

That authority was invented out of whole cloth by an activist committee assembled by the Board of Education and the Superintendent of Public Instruction.

School Boards. The same Virginia law directs each school board to adopt policies that are consistent with … the model policies.” It does not direct them to violate federal or Virginia laws.

I urge each school board to

  1. Defer asking the Student Privacy Policy Office (SPPO) in the U.S. Department of Education (Department) to offer a FERPA ruling. The federal DOE is so politicized that such a request may not prove useful or timely. I guarantee they would at least drag out an answer for many months, well past the Virginia deadline for Model Policies;
  2. Check with their attorneys, as I am not one, to determine their responsibilities under the totality of federal and state law before they vote on what to do about Model Policies; and
  3. Request the Virginia Board of Psychology to rule whether Model Policies asks “school personnel” to practice clinical psychology without a license, as it appears to do. Even school psychologists are not licensed to practice clinical psychology. It is the job of the Board of Psychology to enforce license rules.

Failing all of that, a plaintiff could challenge Model Policies in federal court under both FERPA and Virginia law. I don’t think it needs to get that far.

I am confident that the Board of Education is unlikely to sue if school boards reject the portions of Model Policies upon advice of their attorneys.

VDOE’s attorney is the Attorney General.  This is an election year.  Suing to deny parental rights is unlikely to figure prominently in his campaign strategy.

Parents can file complaints of FERPA violations at https://studentprivacy.ed.gov/file-a-complaint.

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4 responses to ““Model Polices” on Transgender Students vs. Laws Guaranteeing Parental Rights”

  1. Who has ultimate authority over the children — parents or the state?

    Pick a side.

  2. I am not familiar with the Federal Educational Rights and Privacy Act. But, the Supremacy Clause of the U.S. Constitution (Article VI, Clause 2) prevents any State law or regulation from overriding or superseding Federal law, or authorizing any state official to violate or disregard Federal law.

    Although Attorney General Herring may not make the matter a centerpiece in his re-election campaign, he does not seem shy about boasting about his involvement in a press release at https://www.oag.state.va.us/media-center/news-releases/2108-july-27-2021-herring-successfully-defends-virginia-s-policies-protecting-transgender-students

    1. James C. Sherlock Avatar
      James C. Sherlock

      The one to which Herring refers did not raise the legal issues to which I refer above. I hope he is out of office before these issues reach a courtroom.

  3. DavidWC Avatar

    I represented Christian Action Network in the appeal. Standing is tough. Filing it as an appeal was the most likely way to avoid losing because of standing, even though it did not work. We raised many issues including FERPA and the fundamental parental rights under Va. Code and the 14th amendment were among our issues. If Sherlock had read our pleading and briefs, he would have known that. Sherlock never communicated with me in any way before or after we filed the appeal. David W. T. Carroll, Esq.

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