Justices consider FERPA in student’s privacy claim

From the Spring 2002 issue of The News Media & The Law, page 37.

Debbie Shick had to fight to find out who killed her son.

David Shick was a student at Georgetown University who died February 2000 during a brawl after another student punched him with a closed fist in the face. He fell backwards, hitting his head on the concrete sidewalk.

But university officials refused to release any information leading to the death of her son, saying that a federal privacy law protecting education records known as the Family Educational Rights and Privacy Act, or FERPA, prevented it.

However, critics say FERPA allows for the release campus crime information, including the situation involving David Shick. They say Georgetown officials twisted the law to defend the university’s policy of confidentiality and the reasons why they could not release disciplinary records related to her son’s death.

When Debbie Schick found out that FERPA does not prevent release of disciplinary hearing reports, she again tried to pressure the university to release the information, but it refused to do so, saying it was against the school’s policy.

“They used FERPA to hide behind,” Shick said. “A vehicle that was meant to help parents is now being used against them.”

Fearing the privacy lawsuits they might face, universities are already hesitant to release certain information. A recent U.S. Supreme Court case involving whether students have the right to sue a university for releasing a part of their educational records may make schools even more reluctant to do so.

It all depends on what the U.S. Supreme Court decides in John Doe v. Gonzaga University. Oral arguments were heard in the case on April 24. The Court is being asked to determine whether a student can sue a private university for damages under a federal civil rights statute, known as section 1983, to enforce the provisions of FERPA. Section 1983 allows individuals to sue government actors for violations of their rights, including rights created by statute. The question is whether FERPA creates such a “right.”

The case involved Ru Paster, a Gonzaga University student, who was nearing graduation as an education major in 1994. Paster, in order to be hired as a teacher in Washington state, needed the education department’s support in attesting to his good moral character. The education dean refused to grant it, based on unverified allegations of sexual misconduct between Paster and another student. The alleged victim never made a complaint against Paster, and when pressed to make one, she refused.

Paster later found out that in deciding to deny his request for a moral character affidavit, several school officials divulged the allegations to the state’s Office of the Superintendent of Public Instruction.

Paster sued Gonzaga, claiming, among other things, that the private Spokane-based school violated provisions of FERPA, which was designed to protect individual education records, and that, in sharing the information with the state certification agency, the school violated his rights.

A state trial court awarded Paster $450,000 in damages in 1997, determining that the university violated his right to privacy in his education records when university officials disclosed the misconduct allegations without his consent.

Paster, known in court papers as John Doe, and Gonzaga continued fighting the issue all the way to the Supreme Court.

Gonzaga University argues that FERPA does not provide for redress against a university of an individual violation of its provisions. John G. Roberts Jr., the university’s attorney, explained that obligations of FERPA apply to the U.S. Secretary of Education, not to individual institutions.

“The secretary should enforce FERPA and deal with the violations,” Roberts told the Court.

Paster and his attorneys, however, argue that FERPA is violated when there is any disclosure of education records unless it falls under one of the exceptions listed within the statute or unless there is written consent from the student or the student’s parents. FERPA prohibits a recipient educational institution from receiving federal funds “unless there is a policy of written consent,” said Beth S. Brinkmann, the attorney who argued for Paster before the Court.

The U.S. Solicitor General’s Office sided with Gonzaga University, arguing that the focus of FERPA is on a policy or practice and not on individual violations.

“If you have one instance to allow access . . . that would not violate FERPA,” said Patricia A. Millett, an assistant solicitor general.

Several justices during oral arguments pondered whether FERPA conferred a federal statutory right and whether Congress intended to overburden an understaffed Department of Education. But the general tone set by the justices seemed to disfavor a private cause of action in FERPA, even when combined with Section 1983. Most seemed to conclude that the enforcement scheme that Congress created in FERPA did not provide for individual enforcement.

“I don’t see how you extrapolate from the statute a private cause of action for damages,” Justice Sandra Day O’Connor said.

Justice Antonin Scalia argued that FERPA would not give individuals a private right to sue educational institutions under its provisions unless there was evidence of more than one violation or there was a witness who could testify that the school had a policy or practice of disclosure.

“If you don’t have that witness, you don’t have a right to an injunction,” Scalia said.

Justice Stephen Breyer reiterated the concerns he had in the earlier Falvo v. Owasso case. Breyer said allowing private suits to enforce FERPA’s provisions would impede the day-to-day running of a school.

The Supreme Court, in its ruling in February in Owasso, unanimously decided that FERPA does not prohibit the common practice of allowing students to grade each other’s papers. In an opinion written by Justice Anthony Kennedy, the Court held that the process did not constitute misuse of educational records as defined by the statute.

The court, in its opinion, did not address whether Section 1983 could vindicate the provisions of FERPA as applied to the facts in Owasso. Instead, by the time the Owasso decision was written, the justices had agreed to hear the Gonzaga case and left open the Section 1983 question, knowing it would be more directly addressed in Gonzaga.

In Owasso, the school district argued that the definition of education records included only institutional records or materials retained in a permanent file. They argued that student homework and classroom work did not constitute an educational record.

Attorneys for a mother who sued over disclosure of her children’s test scores argued that the definition was broad enough to include homework and classroom work and that if the grade books are not education records, then it would have been unnecessary for Congress to have carved an exception for records held by administrative personnel.

Her attorneys claimed that the students maintain the grades until they are reported to the teacher.

The Supreme Court held that the appellate court erred in holding that an assignment constitutes an educational record the moment it is graded by another student. Until the teacher records the grade of an assignment, it is not “maintained” by the teacher. The Supreme Court found that the grading of papers is part of the learning process and that FERPA was not designed to prohibit it.

That case arose when Kristja Falvo claimed that peer grading embarrassed her children and asked the school district to adopt a uniform policy banning peer grading and requiring teachers either to grade assignments themselves or at least to forbid students from grading papers other than their own. The school district denied the request.

Falvo sued, claiming that the grading policy violated FERPA because the records were “maintained by an educational agency or institution or by a person acting for such agency or institution.”

As for Debbie Shick, she eventually found out what killed her son and about most of the events surrounding the incident. But it wasn’t until November 2001, nearly two years after the incident occurred, that the school would release the disciplinary hearing reports and the investigations.

And even then, it took a court mandate, eight hours of negotiating with lawyers, and threats to go to the press before the school would release them. (Falvo v. Owasso; Gonzaga v. Doe) — MM