Can a Texas school district keep a child's medical or health information from the parents under Title IX?

Plain-English summary

Representative Briscoe Cain told the AG that parents and teachers had raised concerns that some Texas school districts might be withholding medical or health information about students from their parents, on the belief that Title IX authorized them to do so. He asked whether a school district may, under Title IX, withhold a minor child's medical or health information from the child's parent or legal guardian. The AG answered no, and grounded that conclusion in state law, federal law, and constitutional parental rights.

Under the Texas Education Code, a parent is entitled to full information regarding the school activities of the parent's child (section 26.008(a)), and to access to all written records of a school district concerning the child, a list the statute expressly says includes counseling records, psychological records, health information, and teacher and counselor evaluations (section 26.004(b)). A school employee must get written parental consent before a psychological examination, test, or treatment, except as another law expressly provides (section 26.009(a)(1)). And an attempt by any district employee to encourage or coerce a child to withhold information from the child's parent is grounds for discipline (section 26.008(b)). The federal Family Educational Rights and Privacy Act (FERPA) separately gives parents the right to inspect and review their children's education records (20 U.S.C. section 1232g(a)(1)(A)), and the term "education records" is defined broadly to cover records containing information directly related to a student that the school maintains (section 1232g(a)(4)(A)). A school that denies parents that access in violation of FERPA may lose federal funding.

The AG emphasized that the U.S. Supreme Court has recognized since the 1920s that parents have a fundamental right to make decisions concerning the care, custody, and control of their children (Meyer v. Nebraska; Pierce v. Society of Sisters; Prince v. Massachusetts; Wisconsin v. Yoder; Santosky v. Kramer; Troxel v. Granville). The Education Code mirrors that, providing that, unless otherwise provided by law, a board of trustees, administrator, or educator may not limit parental rights (section 26.001(c)), and that parents are partners with educators who should be encouraged to participate in their children's education (section 26.001(a)). The AG cited its 2016 opinion KP-0100, which addressed a district's "Transgender Guidelines" that tried to limit sharing a student's gender-identity information with parents, and reasoned that withholding health or medical information relegates parents to a subordinate status contrary to those rights and to state law.

On the specific Title IX question, the AG explained that Title IX, part of the Education Amendments of 1972, prohibits sex discrimination by recipients of federal education funding (20 U.S.C. section 1681(a); North Haven Bd. of Educ. v. Bell; Jackson v. Birmingham Bd. of Educ.). Nothing in the text of Title IX, or in its implementing regulations (34 C.F.R. sections 106.1-.82), discusses parental access to information or authorizes a school district to withhold a minor's medical or health information from a parent. So Title IX provides no basis for withholding, and under both state and federal law a district may not withhold that information.

What this means for you

If you are a parent or legal guardian

Based on this opinion, you are entitled to your child's school health and medical information. The Education Code gives you access to all written records concerning your child, including health, counseling, and psychological records (section 26.004(b)), and FERPA gives you the right to inspect and review your child's education records. The AG concluded Title IX does not let a district keep that information from you.

If you administer a school district or work for one

The AG's reading is that a district may not withhold a minor's medical or health information from the child's parent or guardian, and that Title IX provides no authority to do so. The opinion notes that encouraging a child to withhold information from a parent is grounds for discipline under section 26.008(b), and warns that failing to provide requested information could subject the district to legal challenges, civil liability, and financial loss, including potential loss of federal funding for a FERPA violation.

If you advise schools on records and privacy

The opinion treats chapter 26 of the Education Code and FERPA as the controlling access framework and reads Title IX as silent on parental access. It also notes a narrow exception for mental health records: under Health and Safety Code section 611.0045, a health care professional may limit access in rare circumstances if release would be harmful to the patient (Abrams v. Jones), and section 37.115(g) requires written parental consent before a school threat-assessment team provides mental health care to a minor.

Common questions

Q: Can my child's school refuse to tell me about my child's medical or health information?
A: Under this opinion, no. The AG concluded that Texas Education Code chapter 26 and FERPA entitle parents to that information and that a district may not withhold it.

Q: Does Title IX let a school keep this information from parents?
A: No. The AG found nothing in Title IX's text or regulations that addresses parental access or authorizes withholding a minor's medical or health information from a parent. Title IX is a sex-discrimination statute.

Q: What records am I entitled to as a parent?
A: The Education Code lists access to all written records concerning your child, specifically including counseling records, psychological records, health information, and teacher and counselor evaluations (section 26.004(b)). FERPA covers education records more broadly.

Q: Can a school employee tell my child to keep something from me?
A: The AG points to section 26.008(b), which makes an attempt by a district employee to encourage or coerce a child to withhold information from the child's parent grounds for discipline.

Q: Are there any exceptions?
A: The opinion notes narrow ones. Health and Safety Code section 611.0045 allows a professional to limit access to mental health records in rare circumstances when release would harm the patient (Abrams v. Jones), and section 38.004 addresses cooperation with child-abuse investigations.

Background and statutory framework

Texas Education Code chapter 26 lays out parental rights in education. A parent is entitled to full information about the child's school activities except as provided by section 38.004 (the child-abuse reporting policy) (section 26.008(a)), and to access to all written records concerning the child, including counseling, psychological, and health records (section 26.004(b)). School employees need written parental consent for a psychological examination, test, or treatment except as expressly provided by other law (section 26.009(a)(1)), and section 37.115(g) requires written parental consent before a threat-assessment team provides mental health care to a student under 18. Encouraging or coercing a child to withhold information from a parent is grounds for discipline (section 26.008(b)). Unless otherwise provided by law, school officials may not limit parental rights (section 26.001(c)), and parents are statutory partners in their children's education (section 26.001(a)). A narrow exception lets a professional limit access to mental health records when release would be harmful (Health and Safety Code section 611.0045; Abrams v. Jones).

Federal law reinforces this. FERPA gives parents the right to inspect and review their children's education records (20 U.S.C. section 1232g(a)(1)(A)), broadly defined (section 1232g(a)(4)(A)), with loss of federal funding as the consequence of a violation. The U.S. Supreme Court has long recognized the fundamental parental right to direct a child's care, custody, and control (Meyer; Pierce; Prince; Yoder; Santosky; Troxel).

Title IX, enacted in the Education Amendments of 1972 (Pub. L. No. 92-318), prohibits sex discrimination by recipients of federal education funding (20 U.S.C. section 1681(a); North Haven Bd. of Educ. v. Bell; Jackson v. Birmingham Bd. of Educ.). Neither its text nor its regulations (34 C.F.R. sections 106.1-.82) address parental access to information. The AG concluded Title IX cannot be used to withhold a minor's medical or health information from a parent, and that withholding such information is impermissible under state and federal law.

Citations and references

Statutes:

• Tex. Educ. Code § 26.004 (access to all written records, including health, counseling, and psychological records) and § 26.008 (full information; discipline for encouraging withholding)
• 20 U.S.C. § 1232g (FERPA; right to inspect and review education records)
• 20 U.S.C. § 1681 (Title IX; prohibition on sex discrimination)

Key cases:

• Troxel v. Granville, 530 U.S. 57 (2000) (parents' interest in care, custody, and control is among the oldest fundamental liberty interests)
• Pierce v. Society of Sisters, 268 U.S. 510 (1925) (parents' right to direct the upbringing and education of their children)
• Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005) (Title IX prohibits sex discrimination by recipients of federal education funding)
• Abrams v. Jones, 35 S.W.3d 620 (Tex. 2000) (parental access to mental health records is limited by section 611.0045 in rare circumstances)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0406
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2022/kp-0406.pdf

Original opinion text

May 17, 2022

The Honorable Briscoe Cain
Chair, House Committee on Elections
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. KP-0406

Re: Whether a school district may withhold medical or health information about a minor child from the child's parent or legal guardian (RQ-0460-KP)

Dear Representative Cain:

You asked for an opinion related to a school district's authority to withhold medical or health information about a minor child from the child's parent or legal guardian.¹ You explain that parents and teachers have raised concerns to you that some school districts may be withholding medical or health information, purportedly believing that Title IX authorizes them to do so. Request Letter at 1. You therefore ask whether a school district "may, pursuant to Title IX, withhold medical or health information" about a minor child from the child's parent or guardian. Id.

Texas and federal law mandate that parents have the right to access all educational information about their children, which includes medical or health information.

The Texas Legislature has repeatedly reaffirmed the rights of parents in educating their children. A "parent is entitled to full information regarding the school activities of a parent's child except as provided by Section 38.004."² TEX. EDUC. CODE § 26.008(a). An employee of a school district must obtain written consent of a child's parent before conducting a psychological examination, test, or treatment, except as expressly provided by other law. Id. § 26.009(a)(1). Regarding student records, the Education Code expressly provides that parents are entitled "to access to all written records of a school district concerning the parent's child," specifically including counseling records, psychological records, health information, and teacher and counselor evaluations. Id. § 26.004(b).³ In addition, "[a]n attempt by any school district employee to encourage or coerce a child to withhold information from the child's parent is grounds for discipline." Id. § 26.008(b).

¹ See Letter from Honorable Briscoe Cain, Chair, House Comm. on Elections, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (May 5, 2022), https://www.texasattorneygeneral.gov/requests/ken-paxton/rq-0460-kp.

² Section 38.004 requires the Texas Education Agency to adopt a policy governing the reports of child abuse or neglect, and the policy "must provide for cooperation with law enforcement child abuse investigations without the consent of the child's parents if necessary." TEX. EDUC. CODE § 38.004(a).

In addition to state law, the federal Family Educational Rights and Privacy Act ("FERPA") likewise generally grants parents "the right to inspect and review the education records of their children." 20 U.S.C. § 1232g(a)(1)(A). The term "education records," as used in FERPA, is defined broadly to include "records, files, documents, and other materials which (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution." Id. § 1232g(a)(4)(A). An educational agency or institution which denies or prevents parents or legal guardians of its students from inspecting and reviewing the education records of their children in violation of FERPA may not receive federal funding. Id. § 1232g(a)(1)(A).

Parents possess a fundamental right to make decisions concerning the care, custody, and control of their child, and school districts and officials must work with parents in furtherance of the child's education.

The United States Supreme Court has explained repeatedly since 1923 that parents have the fundamental right to make decisions concerning the care, custody, and control of their child.⁴ Mirroring this longstanding precedent, the Education Code provides: "Unless otherwise provided by law, a board of trustees, administrator, educator, or other person may not limit parental rights." TEX. EDUC. CODE § 26.001(c).

In 2016, this office addressed a similar question related to a school district's adoption of "Transgender Guidelines" that attempted to limit school personnel's ability to share gender identity information with a student's parent or guardian under the Education Code. See Tex. Att'y Gen. Op. No. KP-0100 (2016) at 1; see also TEX. EDUC. CODE §§ 26.001-.013. In adopting that chapter, the Legislature emphasized that "[p]arents are partners with educators, administrators, and school district boards of trustees in their children's education. Parents shall be encouraged to actively participate in creating and implementing educational programs for their children." TEX. EDUC. CODE § 26.001(a).

³ Section 611.0045 governs the right of a patient to access mental health records and, in narrow circumstances authorizes a health care professional to limit access to records "if the professional determines that release . . . would be harmful to the patient's physical, mental, or emotional health." TEX. HEALTH & SAFETY CODE § 611.045(b); see Abrams v. Jones, 35 S.W.3d 620, 628 (Tex. 2000) (concluding that a parent's right to access mental health records is limited by section 611.0045 in rare circumstances).

⁴ See, e.g., Troxel v. Granville, 530 U.S. 57, 65 (2000) (observing that "the interest of parents in the care, custody, and control of their children[ ]is perhaps the oldest of the fundamental liberty interests recognized by this Court"); Santosky v. Kramer, 455 U.S. 745, 753 (1982) (recognizing the "fundamental liberty interest of natural parents in the care, custody, and management of their child"); Wisconsin v. Yoder, 406 U.S. 205, 232 (1972) ("The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition."); Prince v. Massachusetts, 321 U.S. 158, 166 (1944) ("It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder."); Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925) (holding that parents have the right "to direct the upbringing and education of children under their control"); Meyer v. Nebraska, 262 U.S. 390, 399, 401 (1923) (holding that a person has a right to "establish a home and bring up children" and "to control the education of their own").

Far from creating a partnership among parents, educators, and administrators regarding a child's education, efforts to withhold health or medical information about their child relegate parents to a subordinate status, which violates the parents' constitutional rights. Limiting parents' access to information in this way impairs their ability to "actively participate" in their child's education, contrary to parents' fundamental rights and state law. See TEX. EDUC. CODE § 26.001(a).⁵

Encouraging a child to withhold information from the child's parent is grounds for disciplinary action under the Education Code. Id. § 26.008(b). Failing to work in partnership with parents in furtherance of the child's education and to share requested information could subject the school district to additional legal challenges, civil liability, and financial loss. Thus, under both state and federal law, a school district may not withhold medical or health information about a minor child from the child's parent or legal guardian.

Title IX does not authorize a school district to withhold medical or health information about a minor child from the child's parent or legal guardian.

Title IX is a federal law passed as part of the Education Amendments of 1972. See Education Amendments of 1972, Pub. L. No. 92-318, 86 Stat. 235 (codified as amended at 20 U.S.C. §§ 1681-1688). Congress's purpose in passing Title IX was to address concerns about discrimination against women in education. See North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 523-24 (1982). "Title IX prohibits sex discrimination by recipients of federal education funding." Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005). The statute provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a). Nothing in the text of Title IX, nor in the regulations adopted pursuant to that federal statute, discusses parental access to information or authorizes a school district to withhold medical or health information about a minor child from the child's parent or legal guardian. See 34 C.F.R. §§ 106.1-.82. Accordingly, nothing in the text of Title IX supports any argument that the statute can be used as a basis to withhold medical or health information about a minor child from the child's parent or legal guardian.

⁵ Parents' fundamental right to make decisions concerning the care, custody, and control of their child is also reflected in Education Code subsection 37.115(g), which prohibits a threat assessment and safe supportive school team established by the board of trustees of a school district from providing "a mental health care service to a student who is under 18 years of age unless the team obtains written consent from the parent of or a person standing in parental relation to the student before providing the mental health care service." TEX. EDUC. CODE § 37.115(g).

S U M M A R Y

Chapter 26 of the Education Code expressly provides that parents are entitled to the health information of their child, and the Family Educational Rights and Privacy Act grants parents the right to inspect and review the education records of their children, including health information.

Parents possess a fundamental right to make decisions concerning the care, custody, and control of their child, and school districts and officials must work in partnership with parents in furtherance of the child's education. Failing to work with parents and provide requested information about a student could subject the school district to legal challenges, civil liability, and financial loss.

Title IX prohibits educational institutions from discriminating against students on the basis of sex. Nothing in the text of Title IX, nor in the regulations adopted pursuant to that federal statute, discusses parental access to information or authorizes a school district to withhold medical or health information about a minor child from the child's parent or legal guardian.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

MURTAZA F. SUTARWALLA
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee