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By Erica Meltzer
Chalkbeat
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The day after the Education Department announced the Justice Department would play a larger role in civil rights enforcement in schools, the Justice Department’s top civil rights official gave a preview of what that might look like.
Speaking on conservative commentator Glenn Beck’s radio program, Assistant Attorney General for Civil Rights Harmeet Dhillon said the Justice Department would use its investigative and prosecutorial powers to enforce its interpretation of the Family Educational Rights and Privacy Act.
“FERPA protects children and parental rights from illegal gender ideology being forced down their throats,” Dhillon said during the June 17 show. States are “simply ignoring this law and abusing children,” she added, calling the Justice Department the “right place” to enforce the law.
Passed in 1974, FERPA gives parents access to their children’s school records and prevents schools from sharing student data with third parties without permission. The law does not mention gender.
But the Trump administration has made clear through guidance and investigations that it believes policies that make it harder for parents to find out how their child expresses their gender identity at school violate the law. The Supreme Court bolstered that legal interpretation in its Mirabelli v. Bonta decision earlier this year, though the case did not deal specifically with FERPA.
Now, new interagency agreements between the Education and Justice Departments suggest the Justice Department plans to get involved in cases at an earlier stage, allowing for more aggressive enforcement on issues that align with President Donald Trump’s political priorities.
“I would expect that far more cases will go to court because they will begin with an agency that leans towards litigation, and I would expect there to be more of a bias towards litigation, as opposed to a bias towards mediation or resolution,” said Kenneth Marcus, who worked on education-related civil rights issues in both the George W. Bush and Trump administrations.
Unlike the Education Department’s Office for Civil Rights, which must investigate every complaint it receives, the Justice Department can “cherry pick” which cases it pursues, said Marcus, who now heads the Louis D. Brandeis Center for Human Rights under Law. Under this administration, that means prioritizing allegations of campus antisemitism, anti-DEI initiatives, and issues related to transgender students, he said.
These priority areas are not new — the Trump administration made them clear from the first days. But they do stand in contrast to the disability discrimination cases that historically have made up a large share of OCR’s case load.
OCR historically has resolved many cases through informal agreements. Many years, Marcus said, not a single one of the 20,000 or more complaints that come into OCR gets referred to the Justice Department.
But when cases have been referred, the Justice Department often has to redo parts of the investigation. That’s not necessarily because OCR investigators did a bad job, but because OCR’s focus is not preparing cases for trial, Marcus said.
Bringing the Justice Department in earlier could allow the federal government to put more pressure on noncompliant school districts. That may be more important now because some school districts targeted by the Trump administration disagree with how it’s interpreting the law and have not agreed to change their policies after the Education Department finds them in violation.
“What can make this new system work well is if it facilitates quicker, smoother, and more effective litigation against recalcitrant institutions, Marcus said. “What would make the process fail is if the departments are less able to address the broad range of cases involving well-meaning institutions that probably shouldn’t go to court.”
Lilian Sotolongo Dorka, a former senior counsel to the assistant secretary for civil rights, fears this new system will be harder for families to navigate. The agreements also seem to go against federal law that assigns responsibility for civil rights in schools to the Education Department, she said.
“The spin that this will be great for civil rights enforcement and education is really smoke and mirrors,” said Sotolong Dorka, who is part of a group of former OCR employees attempting to serve as a watchdog. “It’s an attempt to do illegally through this partnership agreement what they cannot do legally, which is to close down the Department of Education’s Office for Civil Rights.”
Education Department officials have said that many aspects of the interagency agreements with Justice — which cover both the Office for Civil Rights and the Student Privacy Protection Office, which oversees FERPA complaints — are still being worked out.
In an interview last month with Chalkbeat, Assistant Secretary for Civil Rights Kim Richey said her office remains focused on resolving cases for families.
“There’s nothing in this agreement that changes OCR practices,” she said.
Dhillon described the agreement differently, telling Beck that “99%” of school-related civil rights work will now be handled “soup to nuts” at the Justice Department. The Education Department retains ultimate authority, though, over whether to withhold federal funding from school districts that don’t comply.
Last year, a FERPA expert told Chalkbeat the law requires that school districts share written records, such as gender support plans, if parents request them. But FERPA doesn’t appear to create a duty to proactively disclose that students are expressing a different gender at school.
Some educators and advocates fear that informing unsupportive parents could put students’ physical and emotional safety at risk. But others say that parents are entitled to information that is entwined with their children’s development and well-being.
Layoffs and other departures at both departments have limited the administration’s ability to pursue its agenda. But some cases are moving ahead.
In late June, the Education Department announced it would now partner with the Justice Department on an investigation opened last year into Kansas City, Kansas, Public Schools’ student gender transition and parental notification policies.
But that case appears to have followed a typical trajectory, with the Education Department already declaring it had reached an impasse with the district and would refer the case to the Justice Department. The school district has said its policies already conform to federal law and it “respectfully disagrees” with the administration’s findings.
However, America First Legal, a conservative legal group closely aligned with the administration, has filed at least nine complaints in recent months alleging that school districts from Chicago to Hoonah, Alaska, kept information about gender transitions from parents. That tees up opportunities for the administration to try a new approach.
In an emailed statement to Chalkbeat, Dhillon said the partnership between Education and Justice “ensures maximum enforcement” of FERPA.
“Congress spoke with a clear voice when it guaranteed parents the right to know what information schools are collecting and using regarding their minor children,” she said. “That guarantee does not bend to the convenience of school administrators.”
A Justice Department spokesperson did not respond to additional questions about how more-commonplace cases involving students with disabilities will be handled.
But any change in enforcement, Marcus said, should be seen as a “side effect” rather than the main purpose of the interagency agreements.
“This move can be seen most clearly and accurately as a step along the way towards President Trump’s clearly articulated desire to close the Education Department,” he said.
Erica Meltzer is Chalkbeat’s national editor based in Colorado. Contact Erica at emeltzer@chalkbeat.org.
Chalkbeat is a nonprofit news site covering educational change in public schools.
