Law & Courts

Court Mulls Who Can Sue Under Privacy Law

By Mark Walsh — May 01, 2002 5 min read

The argument that students and parents should be able to go to court to enforce the 1974 federal law that guarantees the privacy of student records met with skepticism in the U.S. Supreme Court last week.

“Congress was clearly addressing the interests of parents” when it enacted the Family Educational Rights and Privacy Act, or FERPA, said Beth S. Brinkmann, the lawyer for a former college student who sued his educational institution over an unauthorized disclosure.

But Justice Sandra Day O’Connor pointed out that the privacy law outlines only an enforcement system in which the secretary of education can withhold federal aid from a school or college with a policy or practice of making unauthorized disclosures.

“The remedy is withholding funds,” she told Ms. Brinkmann. “I don’t see how you extrapolate a private remedy for damages.”

Despite the complexity of the court’s doctrine regarding when a right to sue can be construed from statutes that don’t specifically authorize one, the April 24 oral arguments in Gonzaga University v. Doe (Case No. 01-679) were engaging.

And the stakes are potentially high for all schools and colleges that receive federal money. If the court authorizes private lawsuits under FERPA, also known as the Buckley Amendment, those institutions will be exposed to greater scrutiny and liability in the courts for their handling of student records. A decision by the Supreme Court against private lawsuits, on the other hand, would mean that the Department of Education would remain the authoritative arbiter of the privacy law. Both the Bush administration and Gonzaga, a private, Roman Catholic university in Spokane, Wash., argued last week that Congress wanted only the department to enforce FERPA.

“The statute is directed to the secretary of education, not to the educational institutions,” said John G. Roberts Jr., the lawyer for Gonzaga. “Congress was not concerned with individual instances of disclosure.”

Patricia A. Millett, an assistant U.S. solicitor general, said that Congress used language in FERPA that was different from that in many federal civil rights laws.

“The statute says, ‘No funds shall be distributed by the secretary of education’ ” in the event of violations, she said. “That is not the type of language Congress would use to confer individual rights.”

But Justice John Paul Stevens pointed out that FERPA does mention the “right” of parents to inspect their children’s educational records. He pressed both Mr. Roberts and Ms. Millett on whether that constituted a federal right that could be enforced in federal court. They both said no.

“Whatever it is, it is a collective, programwide right,” not an individual right that could be enforced in court, Ms. Millett argued.

Overworked Staff?

The case stems from charges by a former education student at Gonzaga—identified in court papers only as John Doe—that university officials violated FERPA when they passed along unsubstantiated allegations that he had sexually assaulted a classmate.

Gonzaga made the disclosure to the office of the Washington state superintendent of public instruction. Mr. Doe then failed to get the state certification he needed to become a teacher. He sued the university and one of its officials for defamation, the FERPA violation, and other claims.

A jury awarded him $1.1 million, of which $450,000 was based on the violation of FERPA. The Washington Supreme Court upheld the verdict last year.

The U.S. Supreme Court took an interest in the case as a vehicle to decide whether the privacy law could be enforced with lawsuits.

Part of the oral argument was devoted to how the Education Department enforces the law. The department has a little-known section called the Family Policy Compliance Office, which receives complaints about privacy violations and asks school districts and colleges to respond. The office typically resolves cases by telling an educational institution to stop an offending practice or to provide greater access to records. (“Court to Decide if Pupil Privacy a Federal Case,” April 17, 2002.)

Justice Ruth Bader Ginsburg asked whether the small office, based at the Education Department’s headquarters, was up to the task of enforcing FERPA nationwide.

“This one agency, we’re told, has all of seven staff members— hardly a number that could handle the flood of complaints,” she said to Mr. Roberts.

Justice Anthony M. Kennedy interjected: “Do we know that these seven people are overworked?”

A little later, Ms. Millett, representing the federal government, told the justices that the family-policy office “handles an amazing amount of work—over 900 pieces of correspondence per year.”

“That’s three letters a day,” Justice Stevens said with a grin.

It also handles phone and e- mail inquiries, Ms. Millett added.

“The secretary has been very successful in enforcing this in an informal manner,” she said.

Contagion of Lawsuits

Ms. Brinkmann, the lawyer for Mr. Doe, later said that the family-policy office “serves an admirable role,” but that it cannot meet all needs under the law in a timely manner.

For example, parents and students cannot petition the Education Department to bar an unauthorized disclosure of student records in an individual case, she said. They need to retain the ability to go to court to get an injunction to serve that purpose, she added.

The idea that families would be able to drag educational institutions into court appeared troubling to Justice Stephen G. Breyer, who often expresses concern about court interference in the operation of public education.

“The image that comes up in my mind is private actions all over the place,” Justice Breyer said. He added that he feared more school districts would end up in court the way an Oklahoma school district did over its policy of allowing students to grade each other’s papers in class.

A mother in that case challenged that practice as a violation of FERPA and won in a federal appeals court. But the Supreme Court ruled unanimously in February in Owasso Independent School District v. Falvo that the practice did not violate the privacy law. (The high court assumed, without deciding at that time, that the parent had the right to challenge the grading practice in federal court.)

A “central scheme” for enforcing FERPA might have some drawbacks for individual cases, Justice Breyer said last week, but it might be the best approach to ensure “the effective management of schools.”

A decision in the case is expected by early July.

A version of this article appeared in the May 01, 2002 edition of Education Week as Court Mulls Who Can Sue Under Privacy Law


This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Future of Work Webinar
Digital Literacy Strategies to Promote Equity
Our new world has only increased our students’ dependence on technology. This makes digital literacy no longer a “nice to have” but a “need to have.” How do we ensure that every student can navigate
Content provided by
Mathematics Online Summit Teaching Math in a Pandemic
Attend this online summit to ask questions about how COVID-19 has affected achievement, instruction, assessment, and engagement in math.
School & District Management Webinar Examining the Evidence: Catching Kids Up at a Distance
As districts, schools, and families navigate a new normal following the abrupt end of in-person schooling this spring, students’ learning opportunities vary enormously across the nation. Access to devices and broadband internet and a secure

EdWeek Top School Jobs

Speech Therapists
Lancaster, PA, US
Lancaster Lebanon IU 13
Elementary Teacher
Madison, Wisconsin
One City Schools

Read Next

Law & Courts Supreme Court Considers Issue of Damages That Comes Up in Many Suits Over School Policies
The justices weigh whether students still have a case for "nominal damages" when schools change a policy in response to a lawsuit.
6 min read
supreme court IMG
Law & Courts U.S. Supreme Court to Weigh Whether Schools May Discipline Students for Internet Speech
The justices will hear the appeal of a school district whose discipline of a student for her vulgar message on Snapchat was overturned.
5 min read
Law & Courts District's At-Large Elections Violated Minority Voting Rights, Federal Appeals Court Finds
The case involves school board elections in a majority Orthodox and Hasidic Jewish district with a large Black and Latino population.
3 min read
Image of people at voting booths.
Law & Courts Federal Appeals Court Revives Teacher's Pay-Discrimination Case Over Starting Salary
The court weighed an administrator's alleged comment that the teacher's starting pay was less because her husband worked.
3 min read