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TABLE OF CONTENTS
TABLE OF AUTHORITIES
INTEREST OF AMICI CURIAE
SUMMARY OF ARGUMENT
ARGUMENT
I. The privacy interest addressed in FERPA does not
rise to the level of a "right" that can be vindicated
by a § 1983 claim.
A. Applying § 1983 to FERPA is inconsistent with
the history and tradition of 1983 claims.
1. The origins of § 1983
2. Expansion to cover statutory rights
3. Differentiating systemwide obligations
from individual rights
4. How FERPA fits within the § 1983
framework.
B. This case provides the court with the
opportunity to determine what level of privacy
"interest" identified by Congress rises to the
level of a justification for a 1983 civil rights
claim.
C. When Congress intends to create an enforceable
privacy interest, it explicitly does so.
II. Allowing § 1983 claims under a federal statute
like FERPA will undermine state action to
protect citizens' interests and lead to greater
government secrecy by undermining state
open records laws.
A. Allowing remedies beyond government
revocation of funds will have sweeping consequences.
B. Making public policy decisions by balancing
privacy and access interests has traditionally been and
is appropriately left to state legislatures.
C. Eliminating this balancing of interests would
have a drastic effect on public access to campus crime information.
CONCLUSION
INTEREST OF AMICI CURIAE(1)
The Reporters Committee for Freedom of the Press is a
voluntary, unincorporated association of reporters and editors
that works to defend the First Amendment rights and freedom
of information interest of the news media. The Reporters
Committee has provided representation, guidance and
research in First Amendment and Freedom of Information Act
litigation since 1970.
The Student Press Law Center is a national, non-profit,
non-partisan organization established in 1974 to perform legal
research and provide information and advocacy for the
purpose of promoting and preserving the free press rights of
student journalists. As the only national organization in the
country devoted exclusively to this purpose, the SPLC has
collected information on student media cases nationwide and
has submitted amicus curiae briefs in numerous cases before
state and federal courts.
The Society of Professional Journalists is dedicated to
improving and protecting journalism. It is the nation's largest
and most broad-based journalism organization, dedicated to
encouraging the free practice of journalism and stimulating
high standards of ethical behavior. Founded in 1909 as Sigma
Delta Chi, SPJ promotes the free flow of information vital to
a well-informed citizenry; works to inspire and educate the
next generation of journalists; and protects First Amendment
guarantees of freedom of speech and press.
Security On Campus, Inc., is the only national non-profit
organization devoted exclusively to the prevention of college
and university campus violence and other crimes. Since
SOC's founding in 1987 by Connie and Howard Clery, whose
daughter Jeanne was raped and murdered on campus, SOC
has sought to make campuses safer by ensuring that students
are made aware of crimes and other dangers to their safety on
campus. SOC's efforts have been the impetus for numerous
state and federal laws that disclose greater campus crime
information to members of the public, including current and
prospective students. SOC is based in King of Prussia,
Pennsylvania.
Amici's interests in this case lie in its potentially sweeping
implications for newsgathering, reporting and public disclosure. Federal laws designed to limit disclosure of
information affect what the public can learn about its government and
other institutions, particularly when they are enforced in such
a way that will make state governments err on the side of
nondisclosure in the face of civil rights suits.
SUMMARY OF ARGUMENT
The Family Educational Rights and Privacy Act
("FERPA") imposes a requirement on educational institutions: if they wish to receive federal funds, they cannot
have
a "policy or practice" of releasing certain student records.
This requirement does not create a "right" sufficient to serve
as the basis of a civil rights suit under 42 U.S.C. § 1983, but
rather recognizes a "systemwide" interest by Congress in
records disclosure issues.
Privacy rights that can be vindicated under § 1983 must
rise to the level of constitutional privacy violations -- illegal
intrusion into homes by state agents, for example. A law
enacted by Congress with the goal of requiring secrecy in
certain records does not create a constitutional right, and the
statutory interest recognized fails to meet this court's standards to justify a civil rights suit.
The judgment of the Washington Supreme Court finding
that FERPA "rights" can be vindicated under § 1983 should
be overturned, to avoid the consequences of allowing federal
statutes like FERPA from wiping out years of work by state
legislatures to balance privacy interests against the public
need for information about its government and institutions.
ARGUMENT
I. The privacy interest addressed in FERPA does not
rise to the level of a "right" that can be vindicated
by a § 1983 claim.
The Civil Rights Act of 1871 included a provision,
currently codified at 42 U.S.C. § 1983, that allows for private
suits against state actors(2) who deprive individuals of "any
rights, privileges or immunities secured by the Constitution
and laws." The impact of this provision has grown exponentially
over the last 130 years, allowing it to evolve from a
barely used remedy for violations of constitutional rights by
state officials, to the method of vindicating a range of specific
statutory violations in federal courts. As applicability of
§ 1983 expanded to cover statutory violations, this Court
developed standards for determining when a statute created an
individual right that could be enforced through a civil rights
lawsuit.
The most troublesome set of cases surely are those that
revolve around violations of perceived "rights" of privacy.
Privacy is a term that still defies easy definition.
While a final definition of this term is beyond the scope
of this case, this Court is now being asked to define at what
point a privacy interest becomes a "right" under § 1983.
Amici propose that the answer is clear: Only those privacy
interests that have been recognized as constitutional privacy
rights properly justify § 1983 suits. This distinction is
consistent with the history and purpose of § 1983, with its
derivation from the Fourteenth Amendment, and with the
public policy interests that would be jeopardized by an overly
broad definition that would allow any privacy interest to reach
the level of a protected "right."
Another factor that should inform the examination of
privacy rights concerns exactly what type of information
disclosure is at stake. In many cases, privacy advocates argue
that information that has already been given to the government
-- and thus been removed from the truly private realm
-- should be kept secret by the government. This argument
has merit for highly personal information that is required to be
disclosed to a governmental body. But when the cloak of
secrecy also covers the very information that governments use
to make decisions, or that the public needs to inform its own
oversight of government or institutions, secrecy in the name
of "privacy" becomes a dangerous tool that harms the public
interest.
Such is the case here. Under FERPA, schools have been
hesitant to release important campus crime information for
fear of a complete loss of federal funds. Congress amended
FERPA to address that problem, Higher Education Amendments
of 1992, PL 102-325, §1155, 106 Stat 448 (1992), but
the specter of massive civil rights litigation for violations over
incidents such as discussing a future teacher's moral fitness,
as in this case, or for having a student call out a grade in class,
as in a case heard this term by this court and decided earlier
this week, Owasso Independent School District v. Falvo, 534
U.S. ___ (2002), reversing 233 F.3d 1203 (10th Cir. 2001),
will again lead to a clampdown on release of important public
information. Section 1983, a law enacted as a sword of justice
to remedy heinous crimes such as lynchings and home-burnings in the post-Civil War era, should not be fashioned
into a bludgeon to deny the general public access to important
information.
This court's standards make clear that while § 1983
applies to violations of laws, not just constitutional rights,
those laws must nonetheless clearly create individual rights
before they can serve as the basis for a civil rights claim. An
examination of the development of that principle makes clear
that the privacy interest addressed in FERPA does not create
such rights. FERPA requires educational institutions to adopt
a systemwide policy that protects privacy if they wish to
receive federal education funds, but this Court has held that
such a policy is quite distinct from an enforceable individual
right.
A. Applying § 1983 to FERPA is inconsistent with
the history and tradition of 1983 claims.
1. The origins of § 1983
42 U.S.C. § 1983 was originally introduced as § 1 of the
Ku Klux Klan Act of 1871. District of Columbia v. Carter,
409 U.S. 418, 423-426 (1973) (citing the Act of April 20,
1871, §1, 17 Stat. 13). This legislation, which later became
known as the Civil Rights Act of 1871, was one part of a
series of civil rights laws created to address the growing
terrorism of the Ku Klux Klan and prevent violent acts such
as lynchings of African-Americans. Initially, § 1 of the Act
"was designed primarily in response to the unwillingness or
inability of the state governments to enforce their own laws
against those violating the civil rights of others." Id. at 426.
After the ratification of the Thirteenth, Fourteenth, and
Fifteenth Amendments, Congress enacted a series of civil
rights statutes to assist in the enforcement of the new
amendments because the amendments "alone would not secure
equality for blacks or stop the atrocities committed against
them." John E. Nowak & Ronald D. Rotunda, Constitutional
Law, 644 (5th ed. 1995). See also Michele W.
Homsey, Employment Discrimination in The Public Sector:
The Implied Repeal of Section 1983 by Title VII, 15 Lab.Law
509 (2000). The Civil Rights Act was intended to enforce
rights created by the Fourteenth Amendment. See Monroe v.
Pape, 365 U.S. 167, 171-72 (1961).
In 1874, Congress expanded the statute to apply to rights
under the Constitution "and laws," when Congress consolidated
the laws of the United States into a single volume under
a new subject-matter arrangement. See 2 Cong.Rec. 827 (Jan.
21, 1874).
Section 1983 currently states:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress.
42 U.S.C. §1983 (2001).
For nearly 70 years after its inception, § 1983 claims were
rarely raised. See Maine v. Thiboutot, 448 U.S. 1, 27 (Justice
Powell's dissent) ("One writer found only 21 cases decided
under §1983 in the first 50 years of its history.").
The Supreme Court made one of its first modern interpretations of § 1983 in Hague v. CIO,
307 U.S. 496 (1939),
holding that § 1983 may be used to enforce the right to
assemble and distribute literature as a privilege and immunity
of a citizen, as protected by the Fourteenth Amendment.
Hague at 515 (1939). Like Hague, the cases that began raising
§1983 claims during the 1960s were brought for violations of
Fourteenth Amendment rights. See generally Louise Weinberg, The Monroe Mystery Solved:
Beyond the "Unhappy
History" Theory of Civil Rights Litigation, 1991 BYU L. Rev.
737, 745-47. Section 1983 began to evolve from an effort to
force states to enforce their own rights into an effort "to
afford a federal right in federal courts because, by reason of
prejudice, passion, neglect, intolerance or otherwise, state
laws might not be enforced and the claims of citizens to the
enjoyment of rights, privileges, and immunities guaranteed by
the Fourteenth Amendment might be denied by the state
agencies." Carter, 409 U.S. at 428 - 429.
The statute gained popularity during the civil rights
movement of the 1960s and 1970s after the Monroe v. Pape
decision, which allowed § 1983 to remedy a constitutional
injury inflicted by an officer. See Weinberg at 746. These
cases again stressed constitutional due process and equal
protection violations as guaranteed by the Fourteenth Amendment. Id. ("The decade immediately
following Monroe was
marked by increasing absorption of the Bill of Rights into the
fourteenth amendment.").
2. Expansion to cover statutory rights
But the biggest step in the modern evolution of § 1983
came in 1980, when this Court first allowed it as a remedy for
more than just civil rights or equal protection claims. Maine
v. Thiboutot, 448 U.S. at 4. In Thiboutot, a father sued under
§ 1983 over the welfare benefits he was entitled to under the
federal Social Security Act. The Thiboutot Court held that the
plain meaning of § 1983's reference to rights under the
Constitution "and laws" meant that violations of federal
statutory laws, such as the federal Social Security Act, could
be remedied through a § 1983 suit. Id. at 4-8.
The Court has clarified that under the Thiboutot standard,
§ 1983 suits were not available for all violations of federal
law, but only for violations of rights. See Middlesex County
Sewerage Authority v. National Sea Clammers Assn., 453
U.S. 1, 19 (1981).
The Court has also specified that obligations created by
federal laws under the spending power must be imposed on
states unambiguously. Pennhurst State School & Hospital v.
Halderman, 451 U.S. 1 (1981). In Pennhurst, a patient
brought suit against a Pennsylvania hospital for providing a
less than "minimally adequate habilitation," as required by the
Developmentally Disabled Assistance and Bill of Rights Act.
Pennhurst, 451 U.S. at 5-8. The question was whether
Congress intended a "bill of rights" provision of the act to
create enforceable rights and obligations through § 1983. The
Pennhurst Court held that a statute must create enforceable
rights before a court will imply a private cause of action; it
must go beyond mere precatory language suggesting that
Congress preferred that states provide certain types of
treatment. Id.
"The crucial inquiry, however, is not whether a State
would knowingly undertake that obligation, but whether
Congress spoke so clearly that we can fairly say that the State
could make an informed choice." Id. at 25. The Pennhurst
Court found that even though the Act listed a variety of
conditions for the receipt of federal funds, the Act was
voluntary like other federal-state grant programs, and the
states were given the choice of complying with the conditions
set forth in the Act or forgoing the benefits of federal funding.
Id. In cases such as Pennhurst where the language of the Act
was ambiguous, the Court found that Congress merely
intended the legislation to serve as "a nudge in the preferred
directions." Pennhurst, 451 U.S. at 19. "When Congress
intended to impose conditions on the grant of federal
funds…it proved capable of doing so in clear terms." Id. at
23. See also Id. at 17-18 ("In cases where Congress has
intended the States to fund certain entitlements as a condition
of receiving federal funds, it has proved capable of saying so
explicitly.").
The Pennhurst Court found that Congress must express
clearly its intent to impose conditions on the grant of federal
funds so that the states can knowingly decide whether or not
to accept those funds before it will assume that a "right" has
been created. Id. at 24. The Court found that the Act did not
provide the express and clear language that illustrated a
Congressional intent to impose mandatory conditions on the
grant of federal funds.
3. Differentiating systemwide obligations from
individual rights
In the decade after the Pennhurst decision, this Court on
several occasions held that federal statutes can create private
remedies if the obligations are unambiguous. But without
language that specifically provides for a private remedy or
that provides guidance to states in how to comply, the statute
merely creates a generalized duty on the states to comply.
In Suter v. Artist M., 503 U.S. 347 (1992), the question
raised was whether Congress, in enacting the Adoption
Assistance and Child Welfare Act ("Adoption Act"), unambiguously
created a federally enforceable right to force states
to make "reasonable efforts" to prevent children from being
removed from their homes. The Supreme Court found that it
did not because the language imposed "only a rather generalized
duty on the State, to be enforced not by private
individuals, but by the Secretary." The Court also found that
"Congress did not intend to create a private remedy for
enforcement of the 'reasonable efforts' clause" because it did not
create a federally enforceable right.
The Suter Court found that:
The legitimacy of Congress' power to legislate under
the spending power thus rests on whether the State
voluntarily and knowingly accepts the terms of the
'contract.' There can, of course, be no knowing
acceptance if a State is unaware of the conditions or is
unable to ascertain what is expected of it. Accordingly,
if Congress intends to impose a condition on
the grant of federal moneys, it must do so unambiguously.
Suter, 503 U.S. at 356.
The Court distinguished those cases where the provisions
of federal funding statutes were specific enough to imply a
federally enforceable right. The Court found that in a case like
Wright v Roanoke Redevelopment and Housing Authority,
479 U.S. 418, 423 (1987), where federal housing legislation
imposed a ceiling on the rates charged to low-income housing
tenants and specifically defined in regulations how a reasonable
rate for utilities in rent would be measured, the tenants
had an enforceable right to sue. Suter at 357. Likewise, the
Court found that in a case where the federal Medicaid
legislation required the states to adopt reasonable rates for
Medicaid facilities and then details the factors to be considered
in determining the methods for calculating those rates,
the obligation could be enforced by the Medicaid providers
through a § 1983 suit. Suter at 359 (citing Wilder v. Virginia
Hospital Ass'n, 496 U.S. 498, 519 (1990)).
In contrast, the statute in Suter, which required the State
to make "reasonable efforts" to maintain an abused or
neglected child in his home, or return the child to his home
from foster care, did not provide statutory guidance as to how
the "reasonable efforts" are to be measured. Id. at 360. "How
the State was to comply with this directive, and with the other
provisions of the Act, was, within broad limits, left up to the
State." Id.
The Suter Court also found that while the statutory
provisions in the Adoption Act might not have provided a
comprehensive enforcement mechanism so as to manifest
Congress' intent to foreclose remedies under §1983 (which
they did not reach due to their finding that the Adoption Act
did not create a federally enforceable right), it showed that the
absence of a remedy to individual plaintiffs under §1983 did
not make the "reasonable efforts" clause moot since language
of other sections of the Act showed that Congress knew how
to impose precise requirements on the states when it intended
to. Suter at 360-361.
The Court then summarized the standards for when a
"right" is created, and distinguished such rights from more
general "systemwide" performance policies, in Blessing v.
Freestone, 520 U.S. 329 (1997). Examining a claim based on
the denial of services under a child support services law, the
Blessing Court provided a three-prong test for deciding
whether enforceable rights are created. Id. at 340. First,
Congress must have intended that the provision in question
benefit the plaintiff. Id. at 341. Second, the plaintiff must
demonstrate that the right assertedly protected by the statute
is not so "vague and amorphous" that its enforcement would
strain judicial competence. Id. at 342. Third, the statute must
unambiguously impose a binding obligation on the states. Id.
But just as importantly, the Court in Blessing made clear
that many funding conditions imposed by Congress are meant
to establish systemwide policies, not individual rights. Noting
that plaintiffs must identify with particularity the rights they
claimed, and that courts must examine these "manageable
analytic bites," rather than the statute in general, the Court
found that:
The Court of Appeals did not engage in such a methodical
inquiry. As best we can tell, the Court of
Appeals seemed to think that respondents had a right
to require the Director of Arizona's child support
agency to bring the State's program into substantial
compliance with Title IV-D. But the requirement that
a State operate its child support program in "substantial
compliance" with Title IV-D was not intended to
benefit individual children and custodial parents, and
therefore it does not constitute a federal right. Far
from creating an individual entitlement to services,
the standard is simply a yardstick for the Secretary to
measure the systemwide performance of a State's Title
IV-D program. Thus, the Secretary must look to the
aggregate services provided by the State, not to
whether the needs of any particular person have been
satisfied. . . . In short, the substantial compliance
standard is designed simply to trigger penalty provisions
that increase the frequency of audits and reduce
the State's AFDC grant by a maximum of five percent.
As such, it does not give rise to individual rights.
Blessing at 343-4.
This distinction between individual rights and systemwide
performance requirements is essential to understanding why
FERPA and other information nondisclosure rules do not
create individual rights that can be the impetus for § 1983
claims.
4. How FERPA fits within the § 1983
framework.
The provisions in FERPA are not specific enough to
imply a federally enforceable right. At best, FERPA creates
a "systemwide" right, which this Court has held is an
insufficient basis for a § 1983 claim.
FERPA is an information disclosure rule that specifies
how schools must handle student records if they wish to
receive federal funds. It provides:
No funds shall be made available under any applicable
program to any educational agency or institution
which has a policy or practice of permitting the
release of education records (or personally identifiable
information contained therein other than directory
information, as defined in paragraph (5) of subsection
(a) of this section) of students without the written
consent of their parents to any individual, agency, or
organization, other than to the following [exceptions].
20 U.S.C. § 1232g(b)(1)(emphasis added).
Created pursuant to the spending power of Congress,
FERPA merely demonstrates granted incentives by Congress
to regulate the states' conduct. The specific language in
FERPA gives the Secretary discretion to determine whether
an educational institution has engaged in a "policy or practice"
of disclosing personally identifiable information held in
education records. The Act provides that the Secretary may
withhold federal funding if the educational institution fails to
satisfy the requirements of the Act.
Like the "reasonable efforts" language in Suter, the
"policy or practice" language in FERPA does not provide
enough guidance to create more than a generalized duty of
compliance by the educational institutions. Furthermore, the
language specifically provides the Secretary with discretion
to determine when an educational institution has failed to
comply with FERPA. When the Secretary finds noncompliance,
the federal funding must be withheld.
FERPA clearly addresses a "systemwide" policy interest,
rather than an individual right.
First, FERPA was not intended to protect against single
isolated instances of disclosure. In the case before the court,
the student argued that the individual release of his education
records among Gonzaga University personnel and to the
Office of the Superintendent of Public Instruction violated a
right under FERPA. But FERPA does not prohibit individual
disclosure of education records. Instead it creates a potential
funding penalty for institutions that have a "policy or practice"
of releasing records covered by the statute without
consent. "[FERPA] addresses the conditions under which an
institution becomes ineligible for funds. It does not prohibit
a request for or release of student records." Tombrello v. USX
Corp., 763 F.Supp. at 545. Nor does it provide any individuals
with a remedy to enforce the statute. The purpose behind
FERPA was to provide students with access to their education
records and to limit the transferability of their education
records to third parties without their advance knowledge and
consent. When the Secretary of Education determines that a
university has engaged in a policy or practice of non-compliance,
the only recourse is the discretion of the Secretary of
Education to determine what educational institutions have not
complied and then to withhold funds. From the language of
FERPA alone, educational institutions may not engage in a
policy or practice of education record disclosure in order to
obtain federal funding, but FERPA does not specifically
regulate single isolated instances of disclosure. Thus, FERPA
was not intended to create individual rights, but to encourage
a systemwide policy of nondisclosure. Without an individual
right, the test fails.
Second, unlike some other federal funding statutes
Congress created, FERPA's provisions are too vague and
amorphous to enforce. In Wright, the statute specifically
defined how a "reasonable amount of utilities" would be
determined. In Wilder, the statute also defined the computable
and measurable rates that states were required to reimburse to
Medicaid providers. FERPA's provisions are more like the
statutes in Suter and Blessing, which refer to a particular plan
that states were to adopt. In Suter, the statute required the
participating states to make "reasonable efforts" to avoid
removing children from their homes and to return children to
their homes, Suter, 503 U.S. at 351, but gave discretion to the
states on how to carry out those efforts. See Id. In Blessing,
the statute required the participating states to certify that they
were operating in "substantial compliance" with the Act. The
Court found in Blessing that the "substantial compliance"
language didn't create individual entitlement to the services
outlined in the Act, but rather provided a "yardstick for the
Secretary to measure the systemwide performance." Blessing,
520 U.S. at 343. Likewise, FERPA speaks in terms of a
"policy or practice" of nondisclosure, but leaves the discretion
to the educational institutions to carry out the "policy or
practice." Nothing in the regulations define what a policy or
practice would entail.
Finally, since FERPA does not unambiguously prohibit
the release of an individual's education records, but merely
prohibits a "policy or practice" of disclosure and then provides little guidance to the states as to what that "policy or
practice" might entail, it fails the last prong of the Blessing
test that requires an unambiguous binding obligation on the
states.
Even presuming, for the sake of argument, that what the
student alleges is true and Gonzaga University did release the
personally identifiable information in the student's education
records to the student's detriment, this action only constitutes
one individual instance of disclosure and does not indicate a
"policy or practice" of disclosure, as FERPA's provisions
unambiguously require. Thus, it fails the final requirement
that the statute unambiguously imposes a binding obligation
on the states because the entitlement the student raises in his
claim is not the same requirement imposed on the educational
institutions. The language of the statute unambiguously states
that the educational institutions are prohibited from adopting
a "policy or practice" of disclosure, rather than an individual
release of records.
As in Blessing, FERPA was not intended to ensure that
"the needs of any particular person have been satisfied," but
merely required participating schools to have a systemwide
plan in place. Blessing, 520 U.S. at 343.
B. This case provides the court with the
opportunity to determine what level of privacy
"interest" identified by Congress rises to the
level of a justification for a 1983 civil rights
claim.
While the line of cases above are useful in a determination
of what statutory mandates create "rights," it is not at all clear
that they are helpful in the specific area of privacy rights. In
fact, privacy claims allowed under § 1983 have generally been
based on constitutional, not statutory, rights, usually under the
Fourth Amendment. See, e.g., Anderson v. Creighton, 483
U.S. 635, 640 (1987) (discussion of immunity for officers in
entry into home; Fourth Amendment violation case under §
1983); Valdez v. McPheters, 172 F.3d 1220 (10th Cir. 1999)
(expectation of privacy in residence is protected under Fourth
Amendment and thus remediable under § 1983); Jackson v.
Gates, 975 F.2d 648 (9th Cir. 1992) cert. denied, 113 S.Ct.
2996 (1993) (forcing officer to undergo urinalysis test absent
cause was violation of Fourth Amendment and remediable
under § 1983).
The Court here has the opportunity to clearly establish
what has been left unclear in the § 1983 privacy cases: what
information is so "personal" that its disclosure invokes a
privacy right violation sufficient for a § 1983 claim. Such a
violation should only be found when the privacy invasion is
so highly personal or intimate that it reaches the level of an
infringement of constitutionally protected privacy rights, not
simply when a Congressional funding requirement was not
met by an official of the state or institution.
It is worth noting that Congress's power to create a
privacy "right" under its spending power is still suspect.
Conditional spending measures carry with them the penalty of
revocation of funding for noncompliance; the power to create
a "right" comes not from the Spending Clause of the Constitution, but from § 5 of the Fourteenth Amendment,
which
gives Congress the power to make laws to enforce the due
process and equal protection provisions of § 1 of that amendment. In Pennhurst, the Court noted that it
was unnecessary
to address the question of whether a right is "appropriate"
under Congress' Fourteenth Amendment powers only because
the Court had found that there was no right created in the
Developmentally Disabled Assistance and Bill of Rights Act.
451 U.S. at 16 (fn. 12). And as the Pennhurst Court noted,
"Because such legislation imposes congressional policy on a
State involuntarily, and because it often intrudes on traditional
state authority, we should not quickly attribute to Congress an
unstated intent to act under its authority to enforce the
Fourteenth Amendment." 451 U.S. at 16.
The privacy "rights" allegedly created by FERPA are not
justified by the Fourteenth Amendment. Outside of the sphere
of Fourth Amendment privacy cases, the personal privacy
issues that traditionally have warranted constitutional protection -- usually related to marriage, procreation,
contraception,
and child rearing -- concern protection against certain types
of government intrusions into personal and private matters,
but do not create a "general constitutional 'right of privacy.'"
Whalen v. Roe, 429 U.S. 589, 608 (1977) (Justice Stewart's
concurrence). Furthermore, privacy rights against government
intrusion are distinct from the interests in non-disclosure
promoted in cases like the present one. This distinction is
magnified when there is a legitimate state interest in releasing
some information that might be considered private, such as
the campus crime information discussed infra at 26-27.
In addition, educational institutions have a legitimate
interest in some disclosures of information, whether that
means in informing the university community of crime and
safety concerns, or in maintaining the integrity of its moral
character certification processes, as in the present case. The
purpose behind school certification of an applicant is that the
school is in the best position to verify an applicant's moral
conduct. A school must be permitted to deny an applicant's
affidavit, which involves disclosing information about the
student. Otherwise, the entire purpose of the school's certification processes is defeated. The certification process by
the
school would be pointless since all applications would be
automatically granted regardless of a student's true character.
C. When Congress intends to create an enforceable
privacy interest, it explicitly does so.
Congress has in the past successfully created privacy
statutes where it wanted to protect the unwarranted invasion
of privacy of individuals. The Privacy Act was created in
1974 in order to regulate the collection, maintenance, use, and
dissemination of personal information by federal government
agencies. 5 U.S.C. § 552a(b) (2002). Congress provided that
private entities, state and local government agencies, and
individuals, unless sued in their official capacity as government
officials, are not subject to the Act. However, it did
create one exception. It made federal, state, and local
governments liable under the Privacy Act for disclosure of an
individual's Social Security number. See Privacy Act of 1974,
PL 93-579, §7, 88 Stat 1896 (1974). In those instances, a
person may file suit against a state or local agency for
violation of privacy.
Similarly, the Drivers Privacy Protection Act was created
in 1994 in order to restrict the release and use of certain
personal information in state motor vehicle records.18 U.S.C.
§ 2721 (2002). It specifies exactly what criminal and civil
penalties can be levied against officials who violate the act,
18 U.S.C. § 2724 (2002), as well giving individuals the right
to sue for violations. Id.
Another example is the Fair Credit Reporting Act, which
was created in 1970 to "insure that consumer reporting
agencies exercise their grave responsibilities with fairness,
impartiality, and a respect for the consumer's right to privacy."
15 U.S.C. §1681 (2002). The Act provides the
circumstances in which information may be disclosed by reporting
agencies. Violations of the provisions of the FRCA will result
in fines under Title 18, imprisonment for not more than 2
years, or both. 18 U.S.C. §1681r (2002).
In each of these privacy statutes, Congress granted power
to individuals to sue state and local agencies that have
violated the provisions in the statute. It also required state
agencies to comply with the provisions. In some statutes,
Congress provides intricately detailed civil remedies for
failure to comply with the statute's provisions, such as it did
in the Privacy Act. See 5 U.S.C. §552a(g)(1) (2002). For
example, under the Privacy Act, refusal or failure to comply
with the provisions gives power to the individual to bring a
civil action against the agency, and even statutorily provides
jurisdiction of the civil suits to the district courts of the
United States, as well as judicial guidance for judgments. 5
U.S.C. §552a(g). In other statutes, Congress merely provides
that violations will result in fines or imprisonment, or both.
See 18 U.S.C. § 2724. See also 18 U.S.C. § 1681r.
Congress is capable of writing provisions in statutes to
provide individuals the power to enforce a particular statute
against an agency for invasions of privacy. Had Congress
intended FERPA to similarly provide individuals with a
enforceable right to sue for noncompliance, it would have
directly provided so in the statute.
II. Allowing § 1983 claims under a federal statute like
FERPA will undermine state action to protect
citizens' interests and lead to greater government
secrecy by undermining state open records laws.
A. Allowing remedies beyond government
revocation of funds will have sweeping
consequences.
Educational institutions voluntarily elect to accept funding
and thus submit to the requirements of FERPA. Congress did
not force schools to comply with FERPA, but rather provided
an incentive -- federal funding -- to comply. The plain
language of the statute, as well as the regulations, support this
interpretation. See 20 U.S.C. §1232g(b)(1). See also, e.g., 34
C.F.R. § 99.67 ("If, after an investigation under § 99.66, the
Secretary finds that an educational agency or institution has
complied voluntarily with the Act or this part, the Secretary
provides the complainant and the agency or institution written
notice of the decision and the basis for the decision.")
(emphasis added).
Allowing § 1983 suits to enforce FERPA encourages
administrative agencies and courts to create additional
remedies other than the one Congress provided -- revocation
of funds for noncompliance. The Sixth Circuit is currently
considering just such a case, where a federal District Court
allowed the U.S. Department of Education, invoking FERPA,
to obtain an injunction forbidding a state university from
releasing campus court records involving criminal behavior
by students. U.S. v. Miami University, No. 00-3518 (6th Cir.
filed April 27, 2000). In effect, this gave the federal government
injunctive power, similar to a 1983 case, in order to
directly subvert a state open records law requirement. U.S. v.
Miami University, 91 F.Supp.2d 1132 (2000).
In July 1997, the Ohio Supreme Court ruled that student
disciplinary records relating to criminal behavior(3) maintained
by a public college were not "education records" under
FERPA, and therefore were subject to the Ohio state open
records law. See State ex rel. The Miami Student v. Miami
University, 79 Ohio St.3d 168, 680 N.E.2d 956 (1997). When
a subsequent request was made to the universities to release
the campus crime records, the Department of Education
intervened and sought an injunction, a power it had never
before exercised in a FERPA case,(4) to prevent the schools
from releasing the information. See Miami University, 91
F.Supp. 2d 1132, 1136. The federal district court disregarded
the state supreme court's decision on the open records
question and prohibited the disclosures under FERPA. Id.
But as discussed supra at 15, FERPA does not prohibit
the disclosure of records. FERPA should not be viewed as a
weapon used by the federal government to eviscerate state
public records laws.
B. Making public policy decisions by balancing
privacy and access interests has traditionally
been and is appropriately left to state
legislatures.
Every year, states modify their access laws in an effort to
fine-tune the balance between the competing interests of
public access to information and the interest in personal
privacy when individuals are identified in records. The
balancing is by no means perfect, and the balance that
reconciles those competing interests is often elusive. Yet
legislatures will react to problems that arise, often enacting
openness reforms when confronted with corruption that
flourished in secrecy, and enacting secrecy measures when
individuals feel that purely personal information about them
is being disclosed to others. Openness advocates are kept busy
fighting for the public's right to know how its government
operates and what information it has gathered to guide its
decisions.
Although this method of legislating does not lead to a
perfect balance, it is far more appropriate in a democratic
system than a scheme where state actors refuse to release
information out of fear of civil rights litigation because of the
sweeping nature of a conditional spending provision. Allowing § 1983
claims for perceived violations of statutes like
FERPA, whose provisions are unclear to begin with,(5) as well
as all future regulations enacted by Congress that address
privacy interests but create no private cause of action, will
have staggering implications. States will have no choice but
to completely bar access to entire categories of information
once Congress acts in a particular area, for fear of massive
civil rights liability for alleged violations. The debates over
balancing the public interests in disclosure of information
with the private interest in secrecy of personal information
will simply end under the shadow of a disclosure "death
penalty" in the name of civil rights.
This balancing between access and privacy interests is
appropriately left to the state legislatures. Allowing § 1983
claims not only negates the role of those legislatures, it also
ignores the balancing of interests already performed by
Congress in enacting federal laws. There are a multitude of
laws enacted by Congress to govern the dissemination policy
of government records. Congress balanced these interests in
the manner it felt was most appropriate. Allowing § 1983
suits to be brought on these statutes disrupts the tenuous
balance struck by Congress between access and privacy.
These laws are information dissemination laws, not civil
rights laws, and should not be made such through a misapplication of § 1983.
C. Eliminating this balancing of interests would
have a drastic effect on public access to campus
crime information.
The harms discussed generally above are real and would
have an immediate effect. Specifically, allowing this claim
would negate attempts to satisfy the public interest in receiving
information on campus crime.
In the year 2000, there were 395 murders, 3,982 forcible
sex offenses, 12,894 robberies, 18,761 aggravated assaults,
68,486 burglaries, and 2,008 instances of arson, among other
serious crimes reported on college and university campuses
across the United States, according to the U.S. Dept. of
Education. See Office of Postsecondary Education,
Dep't of Education, Campus Crime Statistics Online,
http://www.ed.gov/offices/OPE/PPI/security.html (last seen
on February 6, 2002). Nearly 80 percent of campus crime is
student-on-student crimes, and 95 percent of all campus
crimes are drug or alcohol related. See Student
Right-To-Know and Campus Security Act, PL 101-542,
§202(2), 104 Stat 2381 (1990).
During an academic year, nearly one out of every 36
college women will be a victim of an attempted or completed
rape. See Bonnie S. Fisher, et al., U.S. Dep't of Justice, The
Sexual Victimization of College Women (2000). In an average
five-year college career, the totals of victimized women reach
nearly 20 to 25 percent of college women. Id. The perpetrators
are most likely classmates. Id. About 36 percent of the
completed rapes and 44 percent of the attempted rapes were
committed by other students. Id. Most of these rapes are never
reported to the authorities. Id.
Crimes on campuses is a grave problem. The education
system cannot run smoothly with constant threats to the safety
and welfare of the students. The Ohio Supreme Court in the
State ex rel. Miami Student v. Miami University case, supra
at 22, acknowledged the increase of campus crime and
stressed that access to campus crime information helps
students and parents make intelligent decisions concerning
which university to attend. 680 N.E. 2d 956 (Ohio 1997).
However, the fear of FERPA claims has encouraged
colleges and universities to withhold campus crime information
from the public, even when that information would have
been public if it had been gathered by local police departments
and even in some cases where it is otherwise mandated
to be public information by either state or federal law. See
Tom Dickson, Buckley Amendment, Censorship Still Problems for College Newspapers, College
Media Review, 8-13
(1997). See also U.S. Dep't of Education, "Dear Colleague"
Letter Gen-96-11.
Allowing § 1983 suits to enforce federal privacy interests
will have a chilling effect on the willingness of government
agencies to release public information for fear of civil rights
litigation. Subjecting educational institutions to § 1983
actions by students to enforce FERPA rights would only make
them more reluctant to disclose campus crime information
than they already are, which would only further deny students
and their parents the opportunity to make informed decisions
about which campuses are safe and how to avoid criminal
victimization on and around their campuses. In a study
conducted last year, more than half of 3500 students who
were surveyed said that they were more likely to report crimes
if the crime reports were accessible to the public. See S.M.
Janosik & D.D. Gehring, The Impact of the Jeanne Clery
Disclosure of Campus Security Policy and Campus Crime
Statistics Act on Student Behavior, 4 (2001).
Ohio's highest court recognized the potential harms on
university students, prospective students, and their parents
when the public is kept in the dark about criminal incidents
on campus:
Unfortunately at present, crimes and other student
misconduct are escalating at campuses across the
nation. For potential students, and their parents, it is
imperative that they are made aware of all campus
crime statistics and other types of student misconduct
in order to make an intelligent decision of which
university to attend. Likewise, for students already
enrolled in a university, their safety is of utmost
importance. Without full public access to disciplinary
proceeding records, that safety may be compromised.
State ex rel. The Miami Student v. Miami University,
79 Ohio St. 3d at 172.
General statistics do not give students and their parents
enough details to make an informed decision on what school
to attend or, if already enrolled, what areas of campus to
avoid. Most students get their campus crime information
through news reports. In a survey taken among college
students, about 60 percent of more than 3500 students
surveyed said they read reports, newsletters, and flyers
compiled at their institutions related to crime and safety,
mostly through the student newspaper. See Janosik at 4, 18.
These students were most likely to be women than men, and
some of them had already been victims of campus crime. See
Id. Many of them also added that they would be willing to
change their behavior in how they protected themselves from
harm and how they moved around on campus after what they
had read about crimes and safety on campus. Id.
Congress itself realized the importance of releasing
campus crime information. In 1998, it amended FERPA and
allowed for disclosures of campus crime information. See 20
U.S.C. §1232g(b)(6)(B). But if § 1983 claims are permitted
as a means of enforcing federal statutes like FERPA, states
will almost certainly have no choice but to completely bar
access to entire categories of information once Congress acts
in a particular area for fear of massive civil rights litigation
liability.
Permitting these types of claims will allow federal courts,
as the court did in U.S. v. Miami University, to continue to
ignore the balance the state legislatures have created in
weighing the public's interest in information against individual privacy interests. The courts should not ignore the
government's interest in strong open government laws. Permitting
courts to create these remedies when Congress did not
unambiguously through FERPA risks the elimination of a
valuable oversight of government by its citizens, making it
harder for the public to keep those institutions accountable for
their actions.
CONCLUSION
Amici respectfully urge that this court overturn the
Washington Supreme Courts' determination that a § 1983
remedy is proper under FERPA. Recognizing such a broad
privacy right springing from a statute meant only to create a
systemwide program will have damaging consequences for
the public's ability to hold its public institutions accountable.
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Respectfully submitted,
Gregg P. Leslie, Esq.
Counsel of Record
Lucy A. Dalglish, Esq.
Youngmee Moon, Esq.
Reporters Committee for
Freedom of the Press
1815 N. Fort Myer Drive
Suite 900
Arlington, VA 22209
(703) 807-2100
|
February 22, 2002
Of counsel:
Counsel for Society of Professional Journalists:
Bruce W. Sanford, Esq.
Robert D. Lystad, Esq.
Bruce D. Brown, Esq.
Baker & Hostetler LLP
1050 Connecticut Avenue NW, Suite 1100
Washington, D.C. 20036
Counsel for The Student Press Law Center
S. Mark Goodman, Esq.
Michael C. Hiestand, Esq.
The Student Press Law Center
1815 N. Fort Myer Dr., Suite 900
Arlington, Virginia 22209
FOOTNOTES:
1. Pursuant to Sup. Ct. R. 37.6, counsel for amici curiae
declare
that they authored this brief in total with no assistance from the parties.
Additionally, no individuals or organizations other than the amici
made a monetary contribution to the preparation and submission of
this brief. Written consent of all parties to the filing of the brief amici
curiae has been filed with the Clerk pursuant to Sup. Ct. R. 37.3(a).
2. In the evolution of § 1983 suits, courts have required a state actor
to infringe on a specific right under the color of law. Here, the "actor"
is a private university. The question was raised below whether a
private university would qualify as a state actor for purposes of
FERPA. However, in granting the petition for certiorari, the Supreme
Court did not take this question. Regardless of whether a private
university would be presumed a state actor for purposes of FERPA,
FERPA was not intended to create the kind of right that § 1983 was
intended to protect.
3. This did not pertain to academic misconduct, such as cheating or
plagiarism or other non-criminal offenses.
4. The regulations regarding FERPA limit the Secretary to the
following remedies, when determined that a school has failed to
comply:
1) Withhold further payments under any applicable program;
2) Issue a complaint to compel compliance through a cease-and-desist order; or
3) Terminate eligibility to receive funding under any applicable
program.
34 C.F.R. § 99.67
5. See, for example, the discussion of amici The Reporters
Committee for Freedom of the Press and The Student Press Law
Center, in the other FERPA case heard by this Court this term, Owasso
Indep. School District v. Falvo, 534 U.S. ___ (2002), reversing 233
F.3d 1203 (10th Cir. 2001), pointing out to the court that the
requirements of FERPA have been significantly misinterpreted by
various states, school districts and universities, to the detriment of the
public. Brief Amicus Curiae of The Reporters Committee for Freedom
of the Press and The Student Press Law Center at 19-28, Owasso
Indep. School District v. Falvo, 534 U.S. ___ (2002), reversing 233
F.3d 1203 (10th Cir. 2001).
TABLE OF AUTHORITIES
Cases:
Anderson v. Creighton, 483 U.S. 635 (1987) 17
Blessing v. Freestone, 520 U.S. 329 (1997) 12-13, 16-17
District of Columbia v. Carter, 409 U.S. 418 (1973) 6, 8
Hague v. CIO, 307 U.S. 496 (1939) 7
Jackson v. Gates, 975 F.2d 648 (9th Cir. 1992) cert. denied,
113 S.Ct. 2996 (1993) 17
Maine v. Thiboutot, 448 U.S. 1 (1981) 7-8
Middlesex County Sewerage Authority v. National Sea
Clammers Assn., 453 U.S. 1 (1981) 8
Monroe v. Pape, 365 U.S. 167 (1961) 6, 8
Owasso Independent School District v. Falvo, 534 U.S. ___
(2002), reversing 233 F.3d 1203 (10th Cir. 2001) 5, 24
Pennhurst State School & Hospital v. Halderman, 451 U.S.
1 (1981) 8-10, 18
State ex rel. The Miami Student v. Miami University, 79
Ohio St.3d 168, 680 N.E.2d 956 (1997) 22, 26-28
Suter v. Artist M., 503 U.S. 347 (1992) 10-16
Tombrello v. USX Corporation, 763 F.Supp. at 545 15
U.S. v. Miami University, 91 F.Supp.2d 1132
(2000) 22, 23, 28
U.S. v. Miami University, No. 00-3518 (6th Cir. filed April
27, 2000) 22
Valdez v. McPheters, 172 F.3d 1220 (10th Cir. 1999) 17
Whalen v. Roe, 429 U.S. 589 (1977) 19
Wilder v. Virginia Hospital Ass'n, 496 U.S. 498
(1990) 11, 16
Wright v Roanoke Redevelopment and Housing Authority,
479 U.S. 418 (1987) 11, 15
Statutes and Regulations:
34 C.F.R. § 99.67 22-23
5 U.S.C. § 552a(b) (2002) (Privacy Act of 1974) 20
5 U.S.C. §552a(g) (2002) (enforcement provisions of
Privacy Act) 21
15 U.S.C. §1681 (2002) (Fair Credit Reporting Act of
1970) 20
18 U.S.C. §1681r (2002) (enforcement provisions of
FCRA) 20, 21
18 U.S.C. § 2721 (2002) (Drivers Privacy Protection Act of
1994) 20
18 U.S.C. § 2724 (2002) (enforcement provisions of
DPPA) 20, 21
20 U.S.C. § 1232g(b) (2001) (Family Educational Rights
and Privacy Act) 14, 22, 28
42 U.S.C. §1983 (2001) passim
Legislation and legislative history:
2 Cong.Rec. 827 (Jan. 21, 1874) 6
Act of April 20, 1871, §1, 17 Stat. 13 (1871) 6
Privacy Act of 1974, PL 93-579, §7, 88 Stat 1896 (1974) 20
Student Right-To-Know and Campus Security Act, PL
101-542, §202(2), 104 Stat 2381 (1990) 26
Higher Education Amendments of 1992, PL 102-325,
§1155, 106 Stat 448 (1992) 5
Law review articles:
Michele W. Homsey, Employment Discrimination in The
Public Sector: The Implied Repeal of Section 1983 by
Title VII, 15 Lab.Law 509 (2000). 6
Louise Weinberg, The Monroe Mystery Solved: Beyond the
"Unhappy History" Theory of Civil Rights Litigation,
1991 BYU L. Rev. 737, 745-47. 7-8
Newspapers and Periodicals:
Office of Postsecondary Education, Dep't of
Education, Campus Crime Statistics Online,
http://www.ed.gov/offices/OPE/PPI/security.html (last
seen on February 6, 2002). 25-26
Tom Dickson, Buckley Amendment, Censorship Still
Problems for College Newspapers, College Media
Review, 8-13 (1997). 26-27
Bonnie S. Fisher, et al., U.S. Dep't of Justice, The Sexual
Victimization of College Women, (2000). 26
S.M. Janosik & D.D. Gehring, The Impact of the Jeanne
Clery Disclosure of Campus Security Policy and
Campus Crime Statistics Act on Student Behavior, 4
(2001). 27-28
John E. Nowak & Ronald D. Rotunda,
Constitutional Law, 644 (5th ed. 1995). 6
U.S. Dep't of Education, "Dear Colleague" Letter Gen-96-11. 27
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