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Published in Print: January 23, 2002, as Court Accepts Appeal In Privacy-Law Case

Court Accepts Appeal In Privacy-Law Case

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The U.S. Supreme Court will decide whether individuals may sue schools and colleges over violations of the Family Educational Rights and Privacy Act, the 1974 federal law that guarantees the privacy of student records.

Parental-rights advocates fear a ruling against private lawsuits would make it much harder to guarantee the privacy of student records, while school districts fear that if the court upholds the right to sue under the law, they will be more vulnerable to costly damages.

The case is also expected to affect a pending case before the Supreme Court on whether the same law, known as FERPA, prohibits students from grading each other's work in class.

The court announced Jan. 11 that it would take up the new FERPA appeal as one of the last cases of its current term. The appeal stems from a lawsuit alleging that Gonzaga University, a private Jesuit institution in Spokane, Wash., violated the privacy statute when it disclosed to the state that a teacher education student had been accused of sexually assaulting a fellow student. At issue before the Supreme Court in Gonzaga University v. Doe (Case No. 01-679) is whether the accused student, identified in court documents as John Doe, had any right to sue the university over the alleged violation of the privacy act.

The justices had raised the private-lawsuit question in the other FERPA case pending before the court, Owasso Independent School District v. Falvo (No. 00-1073). In that lawsuit, a parent is challenging the practice of having students grade classmates' work and call out the scores in class.

At the Nov. 27 oral arguments in the Owasso case, the first suit involving FERPA ever to reach the Supreme Court, the justices appeared keenly interested in whether the statute could be enforced through private lawsuits. But the Oklahoma school district defending the practice of peer grading had never argued in lower courts that there was no private right to sue under FERPA, also known as the Buckley Amendment.

The justices evidently believe the Owasso case did not properly present the private- lawsuit issue for their consideration.

Damages Awarded

Meanwhile, the Gonzaga case stems from allegations that Mr. Doe "date raped" a fellow education student in late 1992. The alleged victim discussed her sexual relationship with Mr. Doe with various university administrators and faculty members, at times questioning whether she had been raped. She eventually declined to pursue criminal charges.

Based on the allegations, however, university officials refused to provide Mr. Doe with a moral-character affidavit required to support his application for a teaching certificate from the state of Washington. At one point in 1993, a certification specialist in the Gonzaga school of education discussed the allegations with an investigator from the office of the state superintendent of public instruction.

Mr. Doe sued Gonzaga and the certification specialist, alleging that the disclosure of the allegations to the state violated FERPA. The state lawsuit also alleged defamation and negligence. Mr. Doe alleged that the actions of Gonzaga officials destroyed his teaching career.

A jury awarded Mr. Doe more than $1.1 million in damages, including $150,000 in compensatory damages and $300,000 in punitive damages based on his FERPA claim.

A state appeals court reversed the judgment, but the Washington Supreme Court reinstated it in a ruling last year. The state high court unanimously held that while FERPA itself contains no language authorizing private lawsuits, it nonetheless could be enforced by individuals filing claims under the Civil Rights Act of 1871, a broad federal remedy commonly known as Section 1983.

In its appeal to the U.S. Supreme Court, the university argues that under the court's precedents, there is no individual right to sue to enforce a requirement of federal law unless Congress "unambiguously" confers such a right.

The outcome in Gonzaga will undoubtedly have an impact on the Oklahoma student-grading case.

If the justices decide in Gonzaga that there is no private right to sue over violations of FERPA, that could mean the court will dispose of the Owasso case without addressing the question of whether peer grading violates the federal law. If the court decides there is a right to sue, it likely will rule on the merits of peer grading. A majority of justices appeared skeptical during the Owasso arguments that peer grading violated FERPA. ("Grading Case Takes High Court Back to School," Dec. 5, 2001.)

Best Intentions

In any event, the outcome of the Gonzaga case has potentially far-reaching consequences for educational institutions and for families.

If the court were to rule that there is no private right to sue over alleged FERPA violations, parents would only be able to complain to the federal Department of Education and hope that the threat of a loss of federal aid would prompt schools to correct violations. Parents could not win damages or even court orders to stop practices that violate the statute.

"It would be a significant blow to parental rights and family privacy," said Steven H. Aden, the chief litigation counsel of the Rutherford Institute, a Charlottesville, Va.-based legal organization that is representing the mother who challenged peer grading in the Owasso case.

"The Education Department is a bureaucracy that moves slowly," Mr. Aden said. "Though it has the best of intentions, it cannot be involved in the tens of thousands of instances across the country where student privacy is violated. It would be a disaster."

Groups representing school boards and administrators take a different view.

A friend-of-the-court brief in the Owasso case filed by the National School Boards Association and other groups addressed the private-lawsuit issue by arguing that Congress did not intend to authorize such suits to enforce FERPA.

"Congress had in mind quite clearly that the receipt of federal money by educational institutions would be conditioned on having programs and practices to protect the privacy of student records," said Martin Michaelson, a Washington lawyer who co-wrote the brief submitted by the school boards' group in the Owasso case and is representing Gonzaga University in the new case.

"Congress did not have in mind that a slip-up would give rise to lawsuits," he said. "We have been spared yet another area of court-clogging litigation."

The justices will hear arguments in April and decide the issue by early summer.

Vol. 21, Issue 19, Pages 1,25

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