DOE and DOJ Withdrawl of “Dear Colleague” Letter Leaves FERPA’s Guidance Unresolved

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On February 22, 2017, the Department of Justice (DOJ) and Department of Education (DOE) withdrew their May 13, 2016 “Dear Colleague” letter that provided guidance on steps to protect transgender students under Title IX of the Educational Amendments of 1972 (Title IX) as well as the Family Educational Rights and Privacy Act (FERPA). Although the letter did not add any requirements to the law, it did provide guidance to covered entities as to how agencies would interpret and enforce the law. The decision by DOJ and DOE to withdraw the letter has clouded the issue and left its application to transgender students in question.

The May 13, 2016 Letter was multifaceted. Most controversial was its statement that if a school provides sex-segregated facilities, transgender students must be allowed to access those facilities consistent with their identified gender. A significant portion of this guidance, however, was directed to the treatment of transgender students’ privacy and education records. Schools were instructed to keep confidential a student’s transgender status (except for legitimate educational interests in the information), and to permit students to correct their education records to make them consistent with the student’s gender identity and new name.

In a February 22, 2017 Letter, the DOJ and DOE withdrew the May 13, 2016 guidance in its entirety. Further, DOJ/DOE took specific issue with previous guidance concerning whether schools were required to permit transgender students to utilize the bathrooms and locker rooms of the gender that they identify with. It is unclear whether DOJ and DOE will continue to enforce this guidance under FERPA or will leave it to the states to develop their own policies.

An answer on this issue may be forthcoming at the U.S. Supreme Court in the case of Gloucester County School Board v. G.G., By His Next Friend and Mother, Deirdre Grimm.  Although this case does not concern DOJ and DOE’s interpretation of FERPA, the Court may decide what weight should be given to the May 13, 2016 Letter as well as the February 22, 2017 withdrawal . On February 23, 2017, the Court ordered the parties to submit their views on how the case should proceed in light of the withdrawal. On Wednesday, the parties filed letters explaining their positions.  Both parties agreed that the Court should decide whether Title IX applies to transgender students. Gloucester County School Board, however, argued that the Court should request the United States Solicitor General to file a brief expressing the views of the United States and permit the parties to respond.

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