Ann Arbor Public Schools let a federal deadline pass Monday, Sept. 28, without publicly saying how it responded to demands that it change its transgender student policy. Whether the district privately responded to the U.S. Department of Justice before the deadline remains unclear.

The U.S. Department of Justice had given the district 14 days to revise or rescind its policy on transgender and gender-nonconforming students. The deadline passed without AAPS announcing publicly whether it complied, rejected the demands or sent another response.

About $15 million in annual federal education funding could be at risk, according to AAPS attorney Richard Landau, as reported by MLive. MLive reported that the federal money supports programs including special education, Title I and school meals.

Board members held a special meeting on Sept. 28, spending roughly two hours in closed session. The district's official calendar described the meeting as a vote to enter closed session for attorney-client privilege. AAPS attorney Richard Landau, who represents the district in federal compliance matters, was present. Board President Torchio Feaster and Superintendent Jazz Parks both declined to discuss what happened inside, citing attorney-client privilege.

Parks offered one line afterward: "As always, we are committed to both following laws and protecting students in all capacities."

No public decisions came out of the meeting.

How the dispute started

Assistant Attorney General Harmeet Dhillon, who leads the DOJ's Civil Rights Division, sent AAPS a formal demand letter on Sept. 14. The letter alleged the district's policy violates the Family Educational Rights and Privacy Act (FERPA) and the Protection of Pupil Rights Amendment (PPRA) by restricting information available to parents about a student's transgender status.

The dispute followed a July finding by the U.S. Department of Education's Student Privacy Policy Office that AAPS' policy likely violated FERPA. The department said FERPA violations can result in termination of federal funding. U.S. Department of Education

The DOJ demanded the district remove a directive that staff "privately consult with the student regarding the name and pronouns the student requests." It also required AAPS to give parents a chance to challenge or correct their children's educational records.

Dhillon called the letter a formal demand and a final chance to comply before the government files suit, as The Michigan Daily reported.

Landau has said the federal action was not prompted by a complaint but originated on the department's own initiative. He maintained the district does not hide records, telling Michigan Public on Sept. 16 that when the district receives a FERPA request, it provides those records.

A policy years in the making

AAPS adopted its transgender student policy, known as Policy 5011, in 2017. The district's current policy says staff should use a student's legal name and the pronoun corresponding to the student's gender assigned at birth when contacting a parent or guardian unless the student, parent or guardian has specified otherwise.

On Aug. 26, the board approved an amendment through an accelerated procedure. The change explicitly stated that parents with FERPA rights may inspect all responsive education records and that records related to gender identity cannot be excluded from a FERPA search because they are labeled confidential or kept separately.

The DOJ said those revisions were not enough.

Dhillon's letter quoted Trustee Susan Schmidt, who said at the Aug. 26 meeting that the revision "doesn't mean we're changing anything. We're trying to be more clever than that." Dhillon responded in the letter: "Clever won't cut it!"

At the Sept. 16 board meeting, trustees adopted a resolution authorizing administrators to respond to the DOJ. They directed the superintendent to retain litigation counsel and confirmed the district's obligation to preserve related documents.

Trustee Steve Norton told Michigan Public on Sept. 16 that the DOJ's demands exceeded its legal authority. "They're trying to push the envelope to say that we must somehow notify parents, whether the student requests privacy or not," Norton said. "That's just simply beyond what the law allows."

Parents and advocates pressed the board

Parents and advocates spoke at the Sept. 16 board meeting, urging officials not to back down. Scott Ellis, whose family moved to Ann Arbor partly because of the community's commitment to equality, told the board that transgender students may come from homes where they face violence for expressing their identity.

Evan Murphy, a 2016 Skyline High School graduate who helped push AAPS and the State Board of Education to adopt LGBTQ protections roughly a decade ago, warned the board against compliance.

The Trump administration has pursued similar FERPA-based actions against school districts in Maryland, Maine and California. The Education Department said in July that it was pursuing enforcement involving AAPS and a Maryland district, and it has separately taken action involving California school policies.

Whether AAPS sent a private response to the DOJ before the deadline remains unknown. The district's next regular board meeting is scheduled for 7 p.m. Oct. 7, preceded by a 6 p.m. closed session, according to AAPS' official calendar. No DOJ response timeline or court filing deadline has been publicly announced.