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How the American Civil Liberties Union (ACLU) Tramples School Liberty

The American Civil Liberties Union (ACLU) is using its legal strongarm to monitor and make recommendations as to how California’s K-12 public schools comply with Assembly Bill 711, which requires name and gender changes to student records. This article will unpack several key areas: understanding the law; accountability roles in K-12 public schools; and the tactics the ACLU is employing to further their agenda.

Effective January 1, 2020, Assembly Bill (AB) 711 added Education Code (EC) § 49062.5 and amended EC § 490070. This means that school districts must have a process to update a former student’s name and/or gender on school records. Records requests are commonplace in school districts. Former students (if over 18) or parents (if under 18) may request records for a variety of reasons such as: application to career or college programs; use in court and custodial situations; consideration of Deferred Action for Childhood Arrivals (DACA); and so on. Completing appropriate paperwork and providing identification are typical requirements for requesting records.

Under AB 711 and EC 49062.5, school districts must update a former student’s records when the student provides government-issued identification (i.e., birth certificate, driver’s license, court order, etc.) that indicates a legal name or gender change. Records are only updated when a former student makes a request and provides the required documentation. High school diplomas and transcripts are among the documents that districts may reissue.

The ACLU has taken a particular interest in AB 711 to support accurate records for transgender and gender non-conforming individuals. This is not surprising given the ACLU’s history and position on a variety of issues. What readers might find surprising, however, is the manner in which the ACLU went about expressing their position and call to action.

In Orange County, CA, for example, a team of three ACLU attorneys directly emailed the superintendents of multiple school districts. In a detailed 500+ word email, sent in May of 2021, the attorneys described AB 711’s requirements and made a variety of recommendations such as, “To ensure compliance with AB 711, we recommend that your district review and revise all policies for updating student records. We further recommend that you train relevant administrative staff on AB 711 compliant procedures for processing record changes requests, and provide direction on your district’s public website regarding what former students should use to request a records update and where they should submit it.”

District officials suspect that ACLU attorneys and staff conducted their own audit of AB 711 compliance by combing through multiple school districts’ websites and then targeting districts that did not explicitly reference this law. This seems unfair for two reasons: (1) AB 711 requires compliance but not a detailed description of the law to be posted on district websites and (2) school districts are accountable to follow hundreds of laws that can be reflected in numerous ways such as inboard policies, administrative regulations, standard forms, etc.

Of further concern is that ACLU is not the governing authority responsible for making recommendations as to how laws are implemented or monitoring compliance and accountability. That role falls to the California Department of Education and to local county departments of education. For example, due to the legal nature of the ACLU’s email and widespread distribution, the Orange County Department of Education had to respond to local school districts with a legal service memo, issued on May 11, 2021, explaining the ACLU’s actions and adherence to the law.

The Orange County Department of Education recommended that districts review and/or update their board policies. The ACLU, on the other hand, recommended that detailed directions be provided on each school district’s website for updating records. In the same email, the ACLU went on to provide additional recommendations, such as how to use preferred pronouns with students.

The ACLU has essentially taken the freedom away from school districts as to how they communicate their records request process and AB 711 to students and families. Their email implies that they will continue to monitor school districts’ websites and send written communication from their attorneys. As a result, many districts feel forced to comply with the ACLU’s recommendations and are therefore spending their summer months updating their websites in order to keep the ACLU from taking further action. The very organization that claims to protect civil liberties is really using scare tactics to redefine “liberty” and overstep the boundaries of their own jurisdiction.