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 October Cover

November 2002: Vol. 189, No. 11
Cover Story
School Law
Your Turn
In Our Print Edition


School Law

Rethinking Privacy: A high court ruling raises some important questions about students' and parents' rights

The Family Educational and Privacy Act (FERPA) made waves when Congress passed it in 1974 because the law appeared to give powerful rights to students and parents over access to student records. But in an important decision this past June, Gonzaga University v. Doe, the U.S. Supreme Court concluded that this is not necessarily the case.

The court's ruling, which states that FERPA does not actually create new federal rights for students and parents, does not solely address the technical legal question about the meaning of the term "rights." It also has practical consequences: If FERPA does not create rights for students and parents, then individual students and parents cannot sue schools to recover damages for violations of the law. Ultimately, the Supreme Court's decision raises important questions about how to enforce FERPA effectively.

Although the case involved a dispute between a university and a former university student, it applies equally to FERPA cases involving public school districts and their students and parents.

The privacy of 'Doe'

An undergraduate student at Gonzaga University in Spokane, Wash. -- called "John Doe" in the case to protect his privacy -- planned to teach at a public elementary school in Washington. To become a teacher, he had to obtain an affidavit of good moral character from Gonzaga.

In October 1993, Gonzaga's teacher certification specialist, Robert League, overheard two students discussing alleged sexual misconduct by Doe against a female undergraduate. League investigated the alleged misconduct and contacted the state teacher certification agency. He identified Doe and discussed the allegations.

Doe did not learn about the investigation or about the disclosure of the allegations until March 1994, when League and others told him that he would not get an affidavit of good character. At that point, he sued Gonzaga and League in state court in Washington, claiming that his rights were violated under Washington state law governing contracts and torts (personal injuries). In addition, Doe contended that League and Gonzaga had violated FERPA by releasing personal information to an unauthorized person; by violating FERPA, he claimed League and Gonzaga had also violated 42 U.S.C. Section 1983, a law that addresses an individual's federal rights.

Doe won a whopping jury verdict of $1,155,000, which included $150,000 in compensatory damages and $300,000 in punitive damages under FERPA and Section 1983. The Washington Court of Appeals reversed the jury's FERPA and Section 1983 award, however, ruling that FERPA does not create individual rights. Therefore, the appeals court concluded, a student cannot enforce the law against a school by suing under Section 1983.

The Washington Supreme Court reversed the Court of Appeals' decision, reinstating the FERPA and Section 1983 damages. Even though a student or parent cannot sue a school under FERPA directly, the Washington Supreme Court concluded that FERPA still gives students and parents a federal right, which can be enforced through a lawsuit under Section 1983.

Gonzaga asked the U.S. Supreme Court to review the case. The high court agreed, and it reversed the Washington Supreme Court's ruling in a 7-2 decision.

FERPA and Section 1983

To understand the U.S. Supreme Court's decision, it's necessary to understand the two statutes: FERPA and Section 1983. Like many federal statutes, FERPA uses federal spending authority to assert power over agencies and institutions. FERPA provides that any educational institution that receives federal funds -- regardless of whether it's a public or private school -- must comply with the law's rules about access to student records.

Some federal spending statutes (such as Title IX of the Education Amendments of 1972) create individual rights and also implicitly allow individuals to file suits seeking private remedies for violations of those statutes. Even though those funding statutes don't expressly permit such suits, the courts have interpreted them to imply that individuals can sue government agencies or officials or federally funded private institutions under Section 1983 for monetary damages for violations of the statutes.

Sometimes a federal spending statute does not give individuals implied power to sue for damages. For those statutes, the key question is whether they create any individual federal rights. If they do create the rights, then individuals may sue agencies for damages under Section 1983.

Think of Section 1983 as a catch-all statute that allows individuals to sue agencies for violations of federal rights that have been created by other statutes or constitutional provisions -- even if those statutes or provisions don't confer the authority to sue. Individuals cannot sue, however, if a federal spending statute imposes rules on agencies or institutions as conditions of receiving federal funds without creating rights for individuals.

In this case, both Doe and Gonzaga University -- and all nine justices -- agreed that FERPA itself does not authorize students or parents to sue a school in federal or state court to enforce the statute -- either expressly or by implication. The only legal question in this case, then, was whether FERPA creates any federal privacy rights for students and parents.

If it does, then students and parents can sue schools under Section 1983 to collect damages for FERPA violations. But if FERPA does not create any federal privacy rights, then students and parents cannot sue and collect damages under Section 1983.

A surprising answer

The Supreme Court's answer was clear and -- to me -- surprising: FERPA does not create any federal privacy rights and, therefore, students and parents may not sue for damages in federal or state court when schools violate the law.

Writing for the majority, Chief Justice William H. Rehnquist explained that the courts can allow suits for damages for agencies' violations of federal statutes or the U.S. Constitution only if Congress "'speak[s] with a clear voice,' and manifests an 'unambiguous' intent to confer individual rights."

According to Rehnquist, a federal statute creates such private rights only if its text shows that "Congress intended to confer individual rights upon a class of beneficiaries." As an example, Rehnquist cited Title IX, which prohibits gender discrimination by schools receiving federal funds.

Rehnquist said that Title IX creates individual rights because it's phrased "with an unmistakable focus on the benefited class." However, "where the text and structure of a statute provide no indication that Congress intends to create new individual rights, there is no basis for a private suit" under Section 1983.

Rehnquist's FERPA analysis led him to conclude that Congress did not intend to create individual rights under the law. He observed that FERPA speaks only to the Secretary of Education, commanding that "[n]o funds shall be made available" to a school or agency that has a "policy or practice" about access to student records that FERPA prohibits. In contrast, Rehnquist wrote, Title IX focuses on individuals by providing that "no person shall be subjected to discrimination."

FERPA penalizes a school system only for policies or practices that violate the law, not for specific instances, the chief justice wrote. Finally, Rehnquist observed that Congress created a mechanism for enforcing FERPA by directing the secretary of education to "deal with violations."

The Family Policy Compliance Office (FPCO) was created to serve as a review board for complaints about FERPA violations. If a student or parent files a complaint, FPCO will investigate. If it finds a violation by a school, FPCO will instruct the school about how to comply with FERPA.

"FERPA's nondisclosure provisions contain no rights-creating language, they have an aggregate, not individual, focus, and they serve primarily to direct the Secretary of Education's distribution of public funds to educational institutions," Rehnquist concluded. "They therefore create no rights enforceable under Section 1983."

A persuasive dissent

Justice John Paul Stevens wrote a strong (and, to me, persuasive) dissenting opinion, in which Justice Ruth Bader Ginsburg joined. Stevens correctly found numerous references throughout FERPA that create rights for students and parents. It's as if Stevens and Rehnquist were reading two different statutes.

Quoting from several sections of FERPA, Stevens observed that one section gives parents "the right to inspect and review the education records of their children." Another section states that a student applying for admission may waive "his right of access" to certain confidential statements. Two separate sections refer to "the privacy rights of students" and to "the rights of privacy of students and their families." Yet another section states that when a student reaches the age of 18, "the rights accorded to the parents of the student" are extended to the student.

Indeed, the act begins with a description of its topic: "Family educational and privacy rights." Moreover, FERPA addresses more than an "aggregate focus" on policy and practice. For example, it permits a school to have a policy and practice of releasing information as long as "there is written consent from the student's parents specifying records to be released, the reasons for such release, and to whom, with a copy of the records to be released to the student's parents and the student if desired by the parents." As Stevens pointed out, this provision "speaks of the individual 'student,' not students generally."

I believe Stevens is right. How can the majority ignore the numerous provisions of FERPA that explicitly refer to "rights" of students and parents? A fair reading of FERPA shows that Congress did, indeed, intend to create privacy rights for students and families.

Prudence and policy

It may be that the Supreme Court majority believes that it's bad public policy to permit individual students and parents to launch suits over FERPA disputes, and that the secretary of education should resolve such disputes through FPCO's administrative procedures rather than in the courts. And maybe that would be a more prudent way to resolve such disputes after all.

But it's for Congress, not the courts, to make such policy decisions. Most federal courts that have addressed the issue have agreed with Stevens and Ginsburg that FERPA creates rights that individuals may vindicate through Section 1983 suits. But the Supreme Court has spoken, and it has spoken clearly: Individual students and parents may not sue schools to collect damages because of FERPA violations. Only the secretary of education can enforce FERPA.

I'll close with a word of caution: While Gonzaga University v. Doe shields school districts from suits by students and parents over alleged FERPA violations, FERPA is still the law, school officials have a clear duty to obey it, and the Department of Education may use the threat of the loss of federal funds to make sure that school officials do so.

Benjamin Dowling-Sendor, an authority on school law, is an assistant appellate defender of North Carolina in Durham.

Copyright © 2002, National School Boards Association. American School Board Journal is an editorially independent publication of the National School Boards Association. Opinions expressed by this magazine or any of its authors do not necessarily reflect positions of the National School Boards Association. Within the parameters of fair use, this article may be printed out and photocopied for individual or educational use, provided this copyright notice appears on each copy. This article may not be otherwise, linked, transmitted, or reproduced in print or electronic form without the consent of the Publisher. For more information, call (703) 838-6739.

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