Standoff with Feds, Challenges for FCPS

A physics lab at Thomas Jefferson High School for Science and Technology

Fairfax County Public Schools is bracing for a financial squeeze after the federal government, through its Department of Education (DOE), targeted the school division and two others — Chicago Public Schools and New York City — with a financial penalty. 

The DOE is withholding $3.4 million in funds from FCPS, effective Oct. 1, which means Fairfax County Public Schools will not receive the specialized Magnet School Assistance Program grants. The DOE is also altering FCPS’s access to over $167 million in critical federal aid.

The DOE had given FCPS and the other two divisions deadlines of Sept. 23 to agree to rescind their transgender-inclusive policies regarding use of school restrooms and locker rooms consistent with their gender identity, arguing the policies violate Title IX of the Education Amendments of 1972. The law is a federal civil rights statute that prohibits discrimination on the basis of sex in any education program or activity receiving federal financial assistance.

“Rather than reviewing FCPS' letter outlining why our policies and regulations are consistent with controlling state and federal law, and requesting further action be stopped until the legal issue is clarified by the courts, DOE took hasty and harmful action,” said Dr. Michelle Reid, superintendent of FCPS.

Legal, financial and political considerations drive this selective enforcement to the given school divisions. It is engineering a circuit split in the lower courts and is fast-tracking a national showdown at the conservative-leaning U.S. Supreme Court over Title IX's scope, specifically, whether the law includes gender identity.

USDOE spokesperson Julie Hartman said the department “will not rubber-stamp civil rights compliance for New York, Chicago and Fairfax while they blatantly discriminate against students based on race and sex.”

The local confrontation in Fairfax County is central to the DOE's legal rationale. The DOE is challenging FCPS's policies within the 4th Circuit, where the precedent-setting 2020 case, Grimm v. Gloucester County, established that gender identity is protected under Title IX. The ruling required the school district to allow the student to use the facilities consistent with gender identity, and FCPS follows that policy. 

By forcing a confrontation in the same jurisdiction that established the key legal precedent, the DOE could be able to solidify a split with other circuits that have ruled differently, creating an apparent nationwide conflict for the Supreme Court to resolve. In other words, the DOE selected this local confrontation in the specific legal territory of Fairfax County, which falls under the 4th Circuit, precisely because it serves their national legal rationale paving the way for a Supreme Court review.

The Financial Threat

Financial leverage, which FCPS has called "unconstitutional coercion," is at play. The DOE had previously placed FCPS on "high-risk" status, freezing access to approximately $167 million.

The breakdown of the funding is as follows: Approximately $41 million supports services for students under the Individuals with Disabilities Education Act (IDEA); $61 million supports staff and provides for the Free and Reduced-Price Meals program; and the remaining $65 million supports other essential services, including Title I funding for low-income students, Title III funding for English learners, services for students experiencing homelessness and professional development and teacher quality program.

The DOE altered how this $167 million is administered by placing FCPS on reimbursement-only status. FCPS must pay all expenses upfront using its local operating budget to front the costs typically paid for with federal dollars. FCPS has stated it might have enough reserve funds to cover essential services like the Free and Reduced-Price Meals program for a few months, but continuing this indefinitely would require diverting money from other local budget priorities (like teacher salaries, smaller class sizes or after school programs). The district would then request reimbursement from the DOE for approved expenditures. This shift creates a significant cash flow and financial management burden for FCPS, as it must temporarily cover the costs for all federally mandated and funded programs.

“FCPS always seems to make the wrong choice in these matters,” said Bob Eitel of the Defense of Freedom Institute for Policy Studies in a Sept. 24 press release titled “DFI Files Federal Civil Rights Complaint Against Fairfax County Public Schools for Authorizing a Boy to Repeatedly Use the Girls’ Locker Room.” 

The Direct Cut, MSAP Grant

Covering the lost $3.4 million in Magnet School Assistant grant money works differently. That is the money that has been officially withheld or lost for the new fiscal year, starting Oct. 1. This loss is a direct cut, and funding is denied; it will not be received.

This creates a budget shortfall that requires a direct reduction in spending or an immediate backfill from the local budget. If FCPS wants to maintain the magnet programs at Thomas Jefferson High School and Bailey's Primary School at their current quality, it will need to find $3.4 million from its existing local budget. 

The cut directly impacts the high school's Science and Technology program, which is the school's entire magnet curriculum. The funding supports an elementary-level magnet program. The magnet program at Bailey's Primary School is one of two such elementary programs in the district that relies on this specific grant.

Long-Term Strategy and Legal Action

The long-term solution to restore the federal dollars is through the courts. The Fairfax County School Board filed a 31-page lawsuit, titled "Complaint for Declaratory and Injunctive Relief," against Linda McMahon in her official capacity as Secretary of Education of the United States, and the United States Department of Education, in the U.S. District Court for the Eastern District of Virginia (Alexandria Division). The suit argues the DOE's actions violate the Spending Clause of the U.S. Constitution by imposing requirements that contradict existing federal court precedent in the 4th Circuit (unconstitutional coercion). The "high-risk" designation and funding freeze are unlawful attempts to force the district to violate state law and federal court rulings. The ultimate source of the money will be determined by whether the courts rule the DOE must reinstate the regular funding mechanism.