Protecting Parental Rights from Public School Overreach

Public School Secrecy

The Topeka, Kansas school district policy is representative of the secretive gender policies that districts around the U.S. have adopted.⁴Topeka Public Schools, Regulation Number 8100-03, Revised June 25, 2018, p. 2, https://cdnsm5-ss11.sharpschool.com/UserFiles/Servers/Server_8252759/File/About%20Us/Policies%20and%20Regulations/8000%20-%20Students/Reg%208100-03%20-%20Guidelines%20for%20Transgender%20Students%20at%20School.pdf. The district policy says:

Information about a student’s transgender status, legal name, or gender assigned at birth also may constitute confidential medical information. School personnel should not disclose information that may reveal a student’s transgender status or gender nonconforming presentation to others, including parents and other school personnel, unless legally required to do so or unless the student has authorized such disclosure. [Emphasis added.]

Under this policy, at the student’s request, school officials can withhold information from parents—including the name and pronoun that students request and the health-related activities (such as counseling services) in which students participate.

In contrast with California law, Kansas state law does not actively dissuade school officials from providing this information to parents. Rather, Topeka school district officials have implemented this policy independently. Other school districts in, e.g., Arizona and Delaware have also adopted policies that require school officials to withhold information from parents when state law does not mandate such policies.⁵See, for example, Arizona School Boards Association, “ACB Nondiscrimination and Gender Identity,” available at https://policy.azsba.org/asba/browse/allmanuals/casagrandeelementary/ACB and Christina Public Schools, “Policy Statement on Transgender and Gender Nonconforming Students,” January 12, 2021, https://go.boarddocs.com/de/christina/Board.nsf/files/BX2TU8772D14/$file/2021-01-12%20Policy%2002.27%20New-Second%20Read.pdf.

Thus, policymakers and advocacy groups have based laws and public policies on self-reported claims about a child’s gender, even at the expense of parental involvement in a child’s education and health concerns. As the examples provided above show, some policymakers have chosen to eliminate parental oversight of a child’s education and health.

Except in cases of neglect or abuse, there is no reason to believe that denying parents oversight of their children while at school creates better outcomes. In fact, more parental involvement in a child’s education leads to significant positive outcomes for children; we can see this when we compare those outcomes to those of students raised with less parental interaction.⁶Van Voorhis, Francis L., et al, “The Impact of Family Involvement on the Education of Children Ages 3 to 8,” MDRC, October 2013, p. ES-3, https://files.eric.ed.gov/fulltext/ED545474.pdf. See also, for example, Patrick Fagan, Henry Potrykus, and Anna Dorminey, “Family Intactness: Influence on Major State Social Policy Outcomes,” marriResearch, July 25, 2012, https://marri.us/wp-content/uploads/Family-Intactness-Influence-on-Major-State-Social-Policy-Outcomes.pdf and Moon, Rachel Y., “Social and Emotional Benefits of Reading to Your Child,” American Association of Pediatrics Blog, December 23, 2021, https://aap2.silverchair-cdn.com/aap2/content_public/autogen-pdf/cms/19000/19000.pdf?Expires=2147483647&Signature=iCicvLAngpZbDtRVrG7K-rX1PfcUJ2GkHkptuSHZRxbgAv2xgFvZ77DVbJG4bYfDJ7nl0SGj3idVIiVOJbWeuwbJAUQVL4MhRqUxNZNa9zvNkaKiarLnyGO3zVo6nX~f2GaL22xoD~QMv9rSoOPoCAokVf5RWQthhFAdVD5HAfa3qUzv9LfcU3gMQoglkMIb1-LRD3jbSlSpAoleMXmHTaO~XNhU417J6EZb1jNh0a23f~RF3DvvXE8wfRQHw9~SV9lInHlmfYVu52PHFK0U18cYh1Lh7YfBx~Rw2X-2w9ovGCkAP~SdRgSQGcPGfRDlj7qo3OKgjoMz4Qcq6FEBXg__&Key-Pair-Id=APKAIE5G5CRDK6RD3PGA. Public policies should be contributing—or at least not interfering—with parent-child relationships.

Parental Notification and Its Enemies

Those who support policies that allow K-12 educators to withhold a student’s information from his or her parents argue that the student may face abuse or neglect in the home if that student reveals a gender identity that differs from the student’s sex.

It is crucial to protect students from harm, but public school officials are already mandated reporters who are required by law to report any suspected child abuse. These requirements vary by state, but they universally obligate school employees to act if they believe a child is in danger.⁷Readiness and Emergency Management for Schools, “State Emergency Management Resources,” https://rems.ed.gov/stateresources.aspx.

Policies that withhold information from parents do not directly address abuse, because school officials should already be reporting abuse by parents. Instead, such pro-secrecy policies operate under the presumption of potential abuse without concrete evidence, bypassing the established protocols for mandated reporting. These policies, therefore, are not adding additional protections against abuse; instead, they call for action based on the presumption that certain behaviors may or may not occur.

There are exceptional circumstances in which disclosing information to parents may not be in the immediate best interest of the student if there are genuine concerns about potential abuse—based on facts and not on hunches—then there are reasons to withhold such information, but not otherwise. The justifications for such concerns should be clearly defined and judiciously applied to protect the student’s welfare.

In every case, the principle of beneficence—acting in the best interest of the student—must be balanced with non-maleficence—the duty to do no harm. Respect for the principle of nonmaleficence requires that we consider the harm that may come from excluding parents from critical aspects of their child’s life. Encouraging transparency and fostering a cooperative relationship between schools and parents builds trust, promotes the student’s well-being, and prevents misunderstandings that could lead to harm, promoting responses that are in the best interest of the student.

Thus, although some argue for policies that withhold information for parents as good for children, the opposite is true: children are better off when their parents are better informed about their children’s lives. In any event, existing law and mandatory reporting requirements already satisfy concern for child safety and welfare. ⁸American Civil Liberties Union, “Trans Students Should be Treated with Dignity, Not Outed by Their Schools,” January 26, 2023, https://www.aclu.org/news/lgbtq-rights/trans-students-should-be-treated-with-dignity-not-outed-by-their-schools.

Parental Rights and the Law

Withholding critical information from parents is not only poor policy: it is often unlawful and unconstitutional.

Under the Family Educational Rights and Privacy Act (FERPA), parents have the right to access student records and request that “a school correct records which they believe to be inaccurate or misleading.”⁹U.S. Department of Education, “Family Educational Rights and Privacy Act (FERPA),” https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html.

Furthermore, FERPA requires that schools to “disclose…’directory’ information, such as a student’s name” and to “tell parents and eligible students about directory information.” Since students who request to change their gender while at school also generally ask to be addressed by a name and pronoun different from the name and pronoun listed on the child’s birth certificate, schools’ requirements regarding directory information are relevant to school officials’ secretive policies concerning students and gender.

Gender advocates such as the American Civil Liberties Union (ACLU) argue that FERPA “protects students against the disclosure of personally identifiable information,” which is only partially true.¹⁰American Civil Liberties Union and Kansas National Education Association, Letter to Kansas School Districts, February 21, 2024, https://www.aclukansas.org/sites/default/files/field_documents/knea_advisory_letter_re_student_privacy_rights_v.2_0.pdf. FERPA also protects parents’ rights to their child’s personal information.¹¹U.S. Department of Education, “Family Educational Rights and Privacy Act (FERPA),” https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html. FERPA, by the law’s very name, provides families with rights to information about a child and does not permit a minor child or educators to withhold information from parents.

In addition to FERPA, parents have a fundamental right to control and direct the education, care, and upbringing of their children. This right is protected by the Fourteenth Amendment to the U.S. Constitution, and the United States Supreme Court has consistently upheld this fundamental right.

In 1923, the Supreme Court ruled in Meyer v. Nebraska that “the individual has certain fundamental rights which must be respected,” including the right to “bring up children.”¹²Meyer v. State of Nebraska, 262 U.S. 390 (1923). Two years later, in Pierce v. Society of Sisters, the Court ruled that “the child is not the mere creature of the state” and “those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”¹³Pierce v. Society of Sisters, 268 U.S. 510 (1925). The Court also said: “The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children.”

Since those early cases, the Court has repeatedly upheld parental rights over government interference. In 1972, in Wisconsin v. Yoder, the Court again supported parents’ rights, finding that the “primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.”¹⁴Wisconsin v. Yoder, 406 U.S. 205 (1972). In 2020, in Troxel v. Granville, the Court wrote, “[It] cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”¹⁵Troxel v. Granville, 530 U.S. 57 (2000).

The Court added 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.” The U.S. Constitution does not allow for burdens on parental rights “simply because a state judge believes a ‘better’ decision could be made.”¹⁶Id.

These rulings reinforce the fundamental right of parents to serve as their child’s primary caregivers. State actors cannot lawfully interfere with these parental responsibilities. Regulations that allow or require school personnel to hide information about a child from his or her parent violate this fundamental right, because parents cannot meaningfully direct the care and upbringing of their children when the government conceals vital information from them.

Opponents of parental rights may argue that other government considerations, such as protecting student privacy, outweigh a parent’s right to direct the upbringing of their children. These positions, however, are typically based on statutory provisions—or interpretations of statutory provisions—that do not account for constitutional protections. When state law clashes with the Constitution, of course, the Constitution must prevail. And government action that interferes with a parent’s fundamental right to direct the upbringing of a parent’s child cannot be enforced in a way that supersedes parental rights.

Policy Recommendations

Several states have codified the High Court’s fundamental principles in state laws. State officials designed these provisions to broadly protect parental rights, often referred to as “Parents’ Bills of Rights.” These laws make it clear that parents have the right to direct the education, upbringing, and health care decisions of their children. They also often include legal causes of action that allow parents to bring claims against government entities that violate the law. Arizona, for example, adopted a parental Bill of Rights with these provisions as early as 2010.¹⁷A.R.S. § 1-602. Today, at least 20 states have Parents’ Bills of Rights on the books.¹⁸Kevin Roberts, “Parents’ Bills of Rights is How Congress Can Help State School Reformers,” The Heritage Foundation, March 24, 2023, available at https://www.heritage.org/education/commentary/parents-bill-rights-how-congress-can-help-state-school-reformers. [3] See Jonathan Butcher

Parents’ Bills of Rights provide additional protections for the fundamental rights of parents to direct the upbringing of their children and create enforcement mechanisms to ensure that those rights are respected by government officials.

Policymakers should consider proposals that strengthen parental rights and that prohibit school personnel from standing between children and their parents. Such proposals should include the following:

1. Designate the parents as the child’s primary caregiver. Laws should expressly state that parents are a child’s primary caregiver and that parents are responsible for their children’s moral, religious, and educational upbringing.
2. Require that schools receive parental permission before administering health services to students.¹⁹See Jonathan Butcher and Lindsey M. Burke, Ph.D., “Protecting Children and Families with Parents’ Bills of Rights,” Heritage Foundation Issue Brief, April 11, 2022, https://www.heritage.org/education/report/protecting-children-and-families-parents-bills-rights. As one of the authors of this report wrote alongside Lindsey Burke in 2022, “Parents or caregivers must give permission for public school employees to administer medication or provide counseling to students under age 18. Teachers and administrators may not withhold information from parents about a student’s decision to assume a different gender, nor may educators administer medication to students without the approval of a child’s parent or guardian.”
3. Include a strict scrutiny clause. Public officials should not interfere with a parent’s role as a child’s caregiver unless there is a compelling government interest and the intervention is narrowly tailored.