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.
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