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Published in Print: April 17, 2002, as Court to Decide if Pupil Privacy A Federal Case

Court to Decide if Pupil Privacy A Federal Case

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Most school districts and colleges would rather not get mail from LeRoy S. Rooker of the U.S. Department of Education.

A letter from Mr. Rooker usually means that someone has complained that the educational institution has violated the Family Educational Rights and Privacy Act, the 1974 law that guarantees the privacy of student records.

As the director of a little-known section of the department called the Family Policy Compliance Office, Mr. Rooker typically seeks a response from the school district or college and then determines whether the privacy law has been violated.

His letters are generally treated as having the force of law, and he has a big stick which he can use for enforcement: Educational institutions with a policy or practice that violates FERPA can lose their federal funding. However, no school district or college has ever lost a dollar of federal money because of the law, because they usually agree to abide by what Mr. Rooker prescribes, and the case is closed.

"Schools don't want to violate FERPA," he said last week. "They want to be in compliance. If we find they are not ... we work with the school to make sure the policy or practice is changed. Then we close the investigation, and we're out of the picture."

A case going before the U.S. Supreme Court next week could either strengthen the power of the Family Policy Compliance Office to enforce FERPA, or result in federal judges' taking a greater role in reviewing such complaints.

In Gonzaga University v. Doe (Case No. 01-679), the high court must decide if parents or students have individual rights under the privacy statute that can be enforced through federal civil rights lawsuits. The statute says nothing about such private suits, discussing only enforcement by the Education Department. But the courts sometimes have interpreted similar laws to authorize enforcement through private lawsuits as well.

Fount of Lawsuits?

A ruling authorizing private lawsuits to enforce FERPA would expose schools and colleges to yet another area of burdensome litigation, their advocates say.

"Private litigants may erode the coherence of the national scheme of interpretation and enforcement that Congress codified in the language of the statute," says a friend-of-the-court brief filed in the Supreme Court by nine educational groups.

But those taking the opposite view contend that the law's goals can best be achieved by opening two avenues for enforcement— administratively, through the Education Department and Mr. Rooker's office, and in the courts.

"Education records have a huge amount of information in them," said Aaron H. Caplan, a staff lawyer in the Seattle office of the American Civil Liberties Union of Washington, which filed a friend-of-the-court brief in favor of private lawsuits. "From the perspective of the person whose privacy has been violated or is about to be violated, there really isn't a good substitute to going to court. What's he going to do? Going to the Department of Education and getting them to tell a school not to do it again isn't really going to help."

In its 27-year history, FERPA never faced Supreme Court scrutiny until the justices agreed this term to take up two legal questions based on the statute.

The first involved whether the law prohibited students from exchanging their papers to be graded in class. In February, the Supreme Court unanimously ruled that peer grading does not violate the privacy law. ("Peer Grading Passes Muster, Justices Agree," Feb. 27, 2002.)

The second case, to be argued April 24, 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 of Washington that a teacher education student had been accused of sexually assaulting a fellow student. The accused student, identified in Supreme Court papers as John Doe, sued, alleging defamation, a violation of FERPA, and other claims. A jury in 1997 awarded him $1.1 million in damages, including $450,000 based on his FERPA claim.

Mr. Rooker had no involvement in the Gonzaga case, but his office responds to hundreds of complaints each year. The office also gets queries from educators who want to avoid violating FERPA in the first place.

The University of Nevada, for example, wondered several years ago whether it could release the records of a student who died on campus to the student's parents. The department advised that the student's right to privacy ended with his death, and that FERPA neither barred nor compelled the release of the records.

A 1996 letter to Adams County School District 14 in Colorado offers a typical response to a parent's complaint that school administrators would not let her review a letter in her daughter's file.

"The office finds that the district violated FERPA when it denied [the parent] access to the memorandum," Mr. Rooker wrote to the district superintendent. "Please provide within four weeks of receipt of this letter written assurance" that the parent will be granted access, he added.

In another letter, Mr. Rooker told an official at Shelton State Community College in Tuscaloosa, Ala., that the institution did not have to provide a class schedule of a student sought by the local sheriff's department. A provision of FERPA requiring schools and colleges to comply with judicial orders and subpoenas didn't apply in the case, he wrote.

Shielded From Politics

Mr. Rooker has a staff of eight, all based at the Education Department's Washington headquarters. He joined the agency in 1987 after a brief stint in the State Department, and he took over the Family Policy Compliance Office in 1988. The job is a career position, not subject to political appointment.

"There's not a lot of partisan politics in this job in the sense that this town would consider politics," he said. "This is a pretty politically neutral law."

Indeed, such disparate groups as the American Civil Liberties Union and the Eagle Forum have filed briefs in the two FERPA cases in the Supreme Court this term supporting broad interpretations of family rights under the law.

Steven J. McDonald, an associate legal counsel at Ohio State University, edited a legal guide to FERPA issued by the National Association of College and University Attorneys. His introduction says the statute has "confused, frustrated, and bedeviled" school lawyers since its inception.

But he praised the Family Policy Compliance Office for issuing letter opinions relatively quickly as new issues arise.

"The office has been good about solving issues as they come up in a way that is a lot faster and cheaper than a lawsuit," he said.

Higher education institutions face a somewhat more complex set of issues under the law than do school districts. They must deal with the fact that most of their students are adults with their own rights of access to educational records. Congress has also amended the law to make campus crime reports more accessible. And, after Sept. 11, it changed the statute to give the U.S. attorney general easier access to student records to investigate terrorism.

Mr. Rooker said that while his office gets many questions from the college level, it tends to get more complaints from parents of children in elementary and secondary schools.

"Parents tend to allege that their children's records were shared" with an unauthorized person, he said.

Mr. Rooker said he basically agrees with a friend-of-the-court brief filed in the Gonzaga case by Solicitor General Theodore B. Olson, which was also signed by an Education Department lawyer.

"Congress has directed the secretary [of education], not the courts, to enforce FERPA and deal with violations," the brief states. "In FERPA's nearly three decades of operation, the statutory preference for cooperation and voluntary compliance has proved sufficient to enforce" the law.

But lawyers for Mr. Doe say administrative enforcement is not enough.

Letting the department handle complaints "provides no remedy for an individual," said Beth S. Brinkmann, one of the former Gonzaga student's lawyers. "There is no right to a hearing."

In federal judicial circuits where private lawsuits have been allowed under FERPA, there have been very few seeking damages from schools and colleges, she said.

No matter how the court rules, the Family Policy Compliance Office will continue to issue its letters, and Mr. Rooker, who is 54, plans to stay in the job for the foreseeable future.

"There are new questions all the time," he said. "I gave up long ago thinking we were going to get to the end of questions about FERPA."

Vol. 21, Issue 31, Pages 25,27

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