Law & Courts

Privacy Law Not a Courtroom Matter, Justices Decide

By Mark Walsh — July 10, 2002 6 min read

The U.S. Supreme Court has closed the courthouse door to parents and students seeking to sue school districts in disputes over the privacy of education records.

In a 7-2 ruling on June 20, the court held that the federal law that guarantees the privacy of student records may not be enforced through private lawsuits. The ruling, which came in a case against a private university by a student who had missed out on getting state teacher certification, protects schools and colleges that receive federal funding from being sued under the Family Educational Rights and Privacy Act of 1974.

The law, also known as FERPA or the Buckley Amendment, requires schools and colleges to protect the educational records of students from unauthorized disclosure.

Chief Justice William H. Rehnquist, in a majority opinion signed by four other justices, said Congress never conferred individual rights under FERPA that could be enforced in court. Although FERPA itself does not authorize private lawsuits, some lower courts have allowed parents and students to sue over alleged privacy violations through the use of a broader federal civil rights statute, the Civil Rights Act of 1871, which is known as Section 1983.

“FERPA’S provisions speak only to the secretary of education, directing that no funds shall be made available to any educational agency or institution which has a prohibited policy or practice,” the chief justice wrote. “This focus is two steps removed from the interests of individual students and parents and clearly does not confer the sort of individual entitlement that is enforceable under Section 1983.”

The majority opinion in Gonzaga University v. Doe (Case No. 01-679) was joined by Justices Sandra Day O’Connor, Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas.

Justice Stephen G. Breyer, in a concurrence joined by Justice David H. Souter, said he did not fully agree with some of the chief justice’s legal analysis for determining whether a federal law confers rights that can be enforced in court. But he agreed that “Congress did not intend private judicial enforcement actions here.”

Justice John Paul Stevens wrote a dissent that was joined by Justice Ruth Bader Ginsburg. He said FERPA does indeed create individual rights, such as the right of parents to inspect and review the educational records of their children. And he said the administrative enforcement mechanism authorized by the law, in which an office in the federal Department of Education resolves FERPA complaints, falls “far short” of what is needed to enforce the law.

$450,000 at Stake

The case stems from charges by a former education student at Gonzaga University, a Jesuit institution in Spokane, Wash., that university officials violated FERPA when they passed along unsubstantiated allegations that he had sexually assaulted a classmate. The plaintiff has been widely identified in press accounts, but has been listed in Supreme Court papers only as John Doe.

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’s decision means that Mr. Doe will not receive the $450,000 in damages based on FERPA.

Lower federal courts have issued conflicting rulings on whether FERPA may be enforced through private lawsuits, and the Supreme Court granted review of the case against Gonzaga to settle the issue. In another FERPA case decided in its 2001-02 term, the high court ruled that the practice of assigning students to grade each other’s papers in class did not amount to a violation of the privacy law. The justices assumed for the sake of that case, Owasso Independent School District v. Falvo, that the Oklahoma mother who challenged the peer-grading practice had the right to file a lawsuit under FERPA.

Chief Justice Rehnquist said in his opinion that the conclusion that FERPA does not confer enforceable rights “is buttressed by the mechanism that Congress chose to provide for enforcing” the law.

He said Congress had authorized the secretary of education to “deal with violations” of the law and to establish a review board to investigate and adjudicate violations. The Family Policy Compliance Office within the Department of Education acts as that review board under federal rules.

The chief justice noted that Congress amended FERPA shortly after its passage in 1974 to bar the agency’s regional offices from enforcing the statute so as to avoid “multiple interpretations” of it.

“It is implausible to presume that the same Congress nonetheless intended private suits to be brought before thousands of federal- and state-court judges, which could only result in the sort of ‘multiple interpretations’ the act explicitly sought to avoid,” the chief justice wrote.

But Justice Stevens said the very name of the statute and its use of terms such as “the privacy rights of students” suggest that “the entire statutory scheme was designed to protect such rights.”

The majority “departs from over a quarter-century of settled law in concluding that FERPA creates no enforceable rights,” he said..

Based on the ruling in Gonzaga, parents and students will no longer be able to resort to litigation if they believe a school or college has illegally released the students’ education records. Their sole avenue of complaint will be the Washington office. That office receives hundreds of complaints each year and typically asks schools and colleges to stop practices that violate the statute under threat of losing their federal aid. The department has never resorted to withholding federal funds to enforce the law.

Beth S. Brinkmann, who argued on behalf of Mr. Doe in the Supreme Court, said while students or parents can file complaints with the federal office, they won’t be able to get remedies such as monetary damages or injunctions to prevent specific practices.

“The Family Policy Compliance Office has no authority to order a school not to release a particular record,” she said. “It has no authority to compensate a student for an injury he has suffered. This opinion means there is no means for individual parents or students to enforce the statute.”

Other groups, as diverse as the conservative Eagle Forum and the liberal American Civil Liberties Union, also argued that parents and students needed to be able to go to court to ensure the privacy law’s full protections.

“Most FERPA lawsuits have sought injunctions [to stop an offending practice], not damages,” said Aaron H. Caplan, a staff lawyer in the ACLU’S Seattle office.. “Under the administrative remedies, you really can’t get an injunction.”

But representatives of schools and colleges welcomed the ruling.

“If you allow private actions, you will get conflicting opinions, and schools would just not know what to do,” said Julie Underwood, the general counsel of the National School Boards Association in Alexandria, Va. “If we have consistent rules coming out of one place, then educators have a better chance of being in compliance with FERPA.”

A version of this article appeared in the July 10, 2002 edition of Education Week as Privacy Law Not a Courtroom Matter, Justices Decide


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