OP-ED: It’s Time for States to Lean into Civil Rights Enforcement

Over the past several months, the U.S. Department of Education has sent shock waves throughout the education world because of its radical decision … to enforce existing law.

Earlier this year, Secretary Linda McMahon announced investigations into the California and Maine Departments of Education based on gender “social transitioning” policies promulgated by the states. These policies – which can be found from coast to coast in red states and blue states alike – instruct school personnel to conceal students’ transgender status (including the use of different names and pronouns) from parents, flagrantly and deliberately undermining the family unit.

The federal government asserts that doing so is a violation of the Family Educational Rights and Privacy Act (FERPA) – and they’re likely to prevail. FERPA was created to protect student privacy, and for minor students under the age of 18, those rights are held by the parents themselves. Not only does it defy logic for a district to assert that a student has a privacy right FROM their parent, such an interpretation deliberately ignores the law’s original intent.

Defending Education has been tracking these parental exclusion policies for over two years; as of April 2025, more than 1,200 school districts and counting maintain such policies on their books – impacting over 12 million children.

Fortunately, state officials have begun to address the lawlessness in their own backyards. A few weeks ago, Kansas Attorney General Kris Kobach requested that the Department of Education investigate four Kansas school districts employing such gender secrecy policies, in response to an OCR complaint filed by the Defense of Freedom Institute. Kobach’s office has doggedly pursued these bad actors for over a year, sending letters to six districts on this matter in February 2024; two revised their operations, but the other four decided to flaunt the law – and continue to do so.

Kobach isn’t the only one requesting that the federal government step in; in May, Virginia Attorney General Jason Miyares referred Fairfax County Public Schools to the U.S. Department of Education and Department of Justice for enforcement following a racial discrimination investigation conducted by the Commonwealth.

But unfortunately, after four years of an administration that prioritized race and gender over merit, hard work and the rule of law, the federal government is up to its eyeballs trying to clean up malfeasance. Alas, these efforts have been hindered in many places by bad state laws that scaffolded a progressive agenda – such as minority and women-owned contracting laws, DEI reporting requirements, and more. Schools and companies now find themselves forced to navigate between Scylla and Charybdis, fearing the wrath of Attorney General Pam Bondi on one side and state officials on another. It’s a no-win situation.

As the saying goes, many hands make light work – and there are more than enough tasks to go around. While the federal government works its way down its lengthy to-do list, state officials need to step into the arena in order to ensure that necessary reforms keep moving forward.

With regards to state law, it’s imperative that state legislators step up and rescind pro-discrimination policies on their books to free schools from heavy-handed diktats. Texas and Florida have led the charge on this front, resulting in substantive changes; for example, the University of Florida eliminated its DEI department following a Board of Governors vote to comply with SB266, while the University of Texas cited state law SB17 as justification for the recent termination of a longstanding partnership with a DEI-focused business consortium.

The executive branch has vast authority, with governors able to pull several levers in addition to using their bully pulpit. State departments of education and other cabinet agencies should audit departmental regulations, policies, and grant programs to ensure compliance with federal civil rights laws. Attorneys general can issue guidance documents on discrimination (as Montana AG Austin Knudsen did on critical race theory in 2021), as well as investigate discrimination allegations in their jurisdictions. And of course, the days of gubernatorial appointments being doled out to friends and donors must end; appointees need to truly value equal protection before the law, not merely serve ceremonially.

Given the federal government’s promise to devolve education back to states, local leadership – more closely connected to constituents – is going to play an increasingly important role in American civil life. The country’s laboratories of democracy must start preparing now, so they’re prepared to take on additional responsibilities in the years ahead.