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Updated September 2

The Fairfax and Arlington school districts in Virginia sued Education Secretary Linda McMahon Friday over her move to classify them as 鈥渉igh-risk鈥� over their transgender policies.

Their complaint noted that the additional oversight of spending came just two days after the U.S. Court of Appeals for the Fourth Circuit, in a , reaffirmed its ruling in Grimm v. Gloucester County Board of Education, which gives trans students the right to use restrooms that align with their gender identity.听

That decision 鈥渞emains the law in Northern Virginia as well as the rest of the Circuit,鈥� they wrote.听听

In a statement, Fairfax County Public Schools Superintendent Michele Reid called the lawsuit a step toward ensuring 鈥渢hat hungry children are fed and that student access to multilingual, special education, and other essential services is not compromised.鈥�

Virginia Gov. Glenn Youngkin has tried since 2022 to get the suburban D.C. school districts in his state to end their policies accommodating transgender students.

Last week, the Trump administration offered considerable firepower to his cause when it announced it would require the five districts to justify every dollar they spend in order to receive federal funding. In a stern , Education Secretary Linda McMahon said Alexandria, Arlington, Fairfax, Loudoun and Prince William 鈥� the five northernmost districts closest to the nation’s capital  鈥� are 鈥渃hoosing to abide by woke gender ideology in place of federal law.鈥� 

But even as McMahon placed them on 鈥渉igh-risk鈥� status, their leaders policies that allow students to use bathrooms and locker rooms that align with their gender identity, meaning the Republican governor might leave office in January without accomplishing his goal.

Grace Turner Creasy, president of the Virginia Board of Education, said it鈥檚 鈥渁nyone鈥檚 guess鈥� whether the department鈥檚 move will change the outcome. District leaders say they are following state law and the most current federal court opinion on the issue. 

The state鈥檚 position on the matter might also shift in the next few months with Youngkin ineligible to run again in November. Democrat Abigail Spanberger, who is , hasn鈥檛 addressed the controversy, while  Lt. Gov. Winsome Earle-Sears has , much as Youngkin did in 2021 when he appealed to parents angry over pandemic school closures and 鈥渃ritical race theory.鈥� 

The department鈥檚 action against the Virginia districts is part of an effort by President Donald Trump to force states and districts to comply with his stating that the federal government only recognizes two sexes. Following that move in January, the Education Department said it wouldn鈥檛 enforce the Biden-era Title IX rule, which expanded protections for transgender students.

On Thursday, Trump to pull all federal funding from 鈥渁ny California school district that doesn鈥檛 adhere to our Transgender policies.鈥� The administration is already suing and on trans students鈥� participation in women鈥檚 sports. 

The conflict with the Virginia districts has been building since February when the department launched a probe into their policies. In July, officials found them in and gave them 10 days to change their rules and 鈥渁dopt biology-based definitions of the words 鈥榤ale鈥� and 鈥榝emale鈥� in all practices and policies relating to Title IX.鈥�

They refused, and with roughly $50 million for low-income students, special education and other programs at risk, last week鈥檚 move escalated the dispute to a new level.  

鈥淵ou鈥檙e going to continue to see the Trump administration put 鈥� pressure in a variety of ways that affect funding. It feels like all options are on the table,鈥� said W. Scott Lewis, managing partner with TNG Consulting, which trains districts across the country on Title IX. He added that where the Education Department directs its enforcement 鈥渕ay vary by state, depending on gubernatorial and state house control.鈥�

鈥楾otally atypical鈥�

The penalty is severe, experts said. The high-risk label is usually reserved for districts or states in serious financial trouble. 

In 2006, the Education Department slapped that designation on the for mismanaging money, including federal grants and charter school funds.

In another example, the Michigan Department of Education placed the in high-risk status after a found the district misused over $53 million. The district spent Title I funds, for example, on equipment and building improvements the state didn鈥檛 approve, paid vendors more than the amount of their contracts and couldn鈥檛 produce invoices and receipts for multiple transactions. The district remained under federal oversight for five years. 

In this case, the added layer of scrutiny isn鈥檛 because of suspected mismanagement of the grant funds themselves; it鈥檚 an ideological disagreement. David DeSchryver, senior vice president of Whiteboard Advisors, a consulting firm, called the action 鈥渢otally atypical in terms of scale.鈥�

With the school year just starting, the question is whether any 鈥渘ew hurdles鈥� might slow down the reimbursement process, said Dan Adams, spokesman for the Loudoun County Public Schools. In a statement, the Virginia Department of Education said it 鈥渨ill closely scrutinize any future requests鈥� for funding. 

At least one of the five superintendents, Arlington鈥檚 Francisco Dur谩n, told the public at a that he鈥檚 prepared to take legal action if the district鈥檚 funding is challenged. 

But conservatives view McMahon鈥檚 approach as accountability for districts that are defying the president. 

鈥淏y refusing to reverse your reckless policies, you are failing our daughters and risking losing millions of dollars in funding,鈥� Earle-Sears said at Arlington鈥檚 board meeting. 鈥淎s governor, I will not stand by while political correctness tramples over science, fairness and safety.鈥�

The district has faced criticism over in which a registered sex offender identifying as a transgender woman used a women鈥檚 locker room at Washington Liberty High School. The school鈥檚 indoor pool is open to the public after school hours, and Dur谩n said officials were unaware the person was a registered offender. 

Ginny Gentiles, an Arlington parent and a school choice expert at the conservative Defense of Freedom Institute, said the districts are 鈥渃linging to activist-drafted policies that allow males to self-ID into female spaces,鈥� but that she hopes officials will listen to those concerned about women鈥檚 and girls鈥� safety.

She urged community members to closely monitor expenditures.

鈥淪chool board leaders clearly intend to spend taxpayer dollars on inevitable court cases and likely expensive legal fees,鈥� she said. 

Earle-Sears also joined on Wednesday, where district officials threatened to suspend two boys for sexual harassment and sex discrimination. They complained last spring when a student identifying as a trans boy used the locker room to change and videotaped them.

鈥楩ederal overreach鈥�

Some observers say the battle between Washington and its neighboring districts is more than a culture war. Kristen Amundson, a former Democratic state lawmaker and Fairfax County school board member, said the administration is trying to exert control over blue cities. 

鈥淭his is not about trans kids; this is about federal overreach,鈥� she said. She cited patrolling Washington and of the Kennedy Center Honors as further examples. 鈥淒o you see the pattern here?鈥�

The impasse also comes at a difficult time for the state鈥檚 Republicans, which tend to elect governors from the party that鈥檚 . Northern Virginia already votes predominantly blue, and residents, Amundson said, are especially angry at Washington. 

鈥淭hey have seen thousands of parents lose their jobs鈥� because of and 鈥減arents snatched off the streets鈥� in , she said. 

For Earle-Sears, a , the debate over trans students is a key campaign issue. In contrast, Spanberger, who has three school-age daughters, has an focused on improving instruction in public schools and addressing teacher shortages. 

Anne Holton, former secretary of education under Democratic Gov. Terry McAuliffe, called the issue a distraction 鈥渇rom the issues that parents really care about,鈥� like employing high-quality teachers and preparing kids well for college or a career. 

For now, districts say they are complying with the . Enacted in 2020, it allows anyone to use facilities that align with their gender identity.  In addition, the Trump administration鈥檚 policies, they say, conflict with the U.S. Court of Appeals for the Fourth Circuit鈥檚 opinion in Grimm v. Gloucester County School Board. 

That鈥檚 been their position since 2022, when Youngkin issued stating that students must use bathrooms and locker rooms that match the sex they were assigned at birth. A year later, Jason Miyares, the state鈥檚 attorney general, that the governor鈥檚 rules didn鈥檛 violate state or federal anti-discrimination laws. Yet district policies remain unchanged.

In Grimm, the court ruled that the district鈥檚 transgender bathroom ban was unconstitutional. The U.S. Supreme Court in 2021 in that case. In its upcoming term, the Supreme Court will hear lawsuits from West Virginia and Idaho that test whether states can ban transgender girls from competing in female sports.

Those cases 鈥渨ill further clarify Title IX鈥檚 application,鈥� Arlington鈥檚 Dur谩n said at last week鈥檚 board meeting. 鈥淏ut in the meantime, our policy will remain in place in alignment with state and federal law, and we are prepared to defend it and our federal funding if challenged.鈥� 

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