Here are excerpts from the majority, concurring, and dissenting opinions in the U.S. Supreme Court’s June 20 decision in Gonzaga University v. Doe, a case involving enforcement of the privacy of student records:
Majority opinion by Chief Justice William H. Rehnquist, joined by Justices Sandra Day O’Connor, Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas:
... Respondent contends that this statutory regime confers upon any student enrolled at a covered school or institution a federal right, enforceable in suits for damages under [Section] 1983 [of the Civil Rights Act of 1871], not to have “education records” disclosed to unauthorized persons without the student’s express written consent. But we have never before held, and decline to do so here, that spending legislation drafted in terms resembling those of [the Family Educational Rights and Privacy Act of 1974] can confer enforceable rights.
Links to the full text of the opinions are available at www.edweek.org/ew/opinions.h21.
... [T]here is no question that FERPA’s nondisclosure provisions fail to confer enforceable rights. To begin with, the provisions entirely lack the sort of “rights-creating” language critical to showing the requisite congressional intent to create new rights. Unlike the individually focused terminology of Titles VI and IX (“no person shall be subjected to discrimination”), FERPA’s provisions speak only to the secretary of education, directing that "[n]o funds shall be made available” to any “educational agency or institution” which has a prohibited “policy or practice.”
Concurring opinion by Justice Stephen G. Breyer, joined by Justice David H. Souter:
The ultimate question, in respect to whether private individuals may bring a lawsuit to enforce a federal statute ... is a question of congressional intent. ... But the statute books are too many, the laws too diverse, and their purposes too complex, for any single legal formula to offer more than general guidance. I would not, in effect, predetermine an outcome through the use of a presumption such as the majority’s presumption that a right is conferred only if set forth “unambiguously” in the statute’s “text and structure.”
At the same time, I do not believe that Congress intended private judicial enforcement of this statute’s “school record privacy” provisions.
Dissenting opinion by Justice John Paul Stevens, joined by Justice Ruth Bader Ginsburg:
The court’s ratio decidendi in this case has a “now you see it, now you don’t” character. At times, the court seems to hold that the Family Educational Rights and Privacy Act of 1974 simply does not create any federal rights, thereby disposing of the case with a negative answer to the question “whether Congress intended to create a federal right.” This interpretation would explain the court’s studious avoidance of the rights-creating language in the title and the text of the act. Alternatively, its opinion may be read as accepting the proposition that FERPA does indeed create both parental rights of access to student records and student rights of privacy in such records, but that those federal rights are of a lesser value because Congress did not intend them to be enforceable by their owners.
A version of this article appeared in the July 10, 2002 edition of Education Week as In the Court’s Words