From the Summer 2002 issue of The News Media & The Law, page 34.
A 7-2 majority of the U.S. Supreme Court held on June 20 that the federal privacy law on education does not grant students and parents a private right to sue to prevent universities from releasing educational records.
The case arose when Ru Paster, a student majoring in education at Gonzaga University and known in court papers as John Doe, sued the university after he found out that school officials told a state certification agency about sexual misconduct allegations made against him and he was unable to teach in the state of Washington.
In the suit, Paster argued that the university, based in Spokane, Wash., violated provisions of the Family Educational Rights and Privacy Act ( FERPA) when it repeated allegations of sexual abuse to officials at the state teaching certification agency.
Since FERPA contains no provisions that give an individual power to sue for violations of the statute, his attorneys brought a claim under Section 1983, a civil rights statute used to enforce statutory rights.
The state trial court awarded Paster $1.2 million, $450,000 of which stemmed from his FERPA claims. The case was appealed and the Washington Court of Appeals reversed the FERPA claims, holding that FERPA created no individual rights that Section 1983 could enforce. However, the State Supreme Court court reinstated the trial court decision, ruling that FERPA creates the kind of “right” Section 1983 was designed to protect.
Gonzaga appealed to the U.S. Supreme Court. FERPA penalizes schools that have a policy or practice of releasing education records by cutting off funding to them, it argued. The law does not create a private right of action, it said.
Chief Justice William Rehnquist wrote the court’s decision.
“We made clear that unless Congress ‘speak[s] with a clear voice,’ and manifests an ‘unambiguous’ intent to confer individual rights, federal funding provisions provide no basis for private enforcement by § 1983,” Rehnquist wrote, citing the language from previous Supreme Court decisions. Spending legislation drafted with similar language as that contained in FERPA’s provisions do not grant individuals enforceable rights, he wrote.
The Court found that to determine whether personal rights exist under the Section 1983 context or an implied right of action context requires a determination of whether Congress intended to confer those rights to a particular class of beneficiaries. If the text and structure of the statute provide no indication that Congress intends to create new individual rights, there is no basis for a private suit, either under Section 1983 or an implied right of action. Under this analysis, the court found that FERPA’s nondisclosure provisions failed to confer enforceable rights.
First, the provisions did not have “‘rights-creating’ language critical to showing the requisite congressional intent to create new rights,” Rehnquist wrote. This analysis is supported by the fact that Congress chose to provide enforcement through the provisions in FERPA. It specifically authorized the Secretary of Education to “deal with violations” of the Act. It gave the Secretary the power to set up the Family Policy Compliance Office to receive complaints from parents and students who believe a violation of FERPA has occurred. The provisions outline that the compliance office would have the power to investigate each complaint, notify the educational institution and request a written response. If a violation is found, the office could provide notice and outline specific steps the institution can take to comply with the law.
Second, the Court found within FERPA’s provisions that Congress intended to prevent “multiple interpretations” of the Act by enforcing FERPA through the work of a central office.
The Court also found that FERPA’s nondisclosure provisions were to have an aggregate, rather than an individual, focus and that they exist primarily to guide the Secretary in how the public funds are to be distributed to the educational institutions.
Justice Stephen Breyer, joined by Justice David Souter, concurred, adding that although they agreed with the majority opinion, they found the formula to determine whether individual rights exist was too simplified to fit every situation. Each situation should be determined on a case-by-case basis. Breyer also wrote that the broad and nonspecific language of the statute provides little guidance to the educational institutions and “is open to interpretations that invariably favor confidentiality almost irrespective of conflicting educational needs or the importance, or common sense, of limited disclosures in certain circumstances, say, where individuals are being considered for work with young children or other positions of trust.”
Justice John Paul Stevens, joined by Justice Ruth Bader Ginsburg, dissented. He wrote that the majority’s interpretation of the statute creates a “hierarchy of rights” and gives lesser weight and value to certain federal rights that Congress provided, neglecting to provide individuals with a private right of action to enforce them. Stevens wrote that FERPA does not prohibit a policy or practice of disclosing educational records, but allows it when there is written consent by the student or parents. Stevens also wrote that the statute does not adequately provide for a remedy or resolution when violations of FERPA occur. The statutory enforcement scheme is inadequate, he said, because it “provides no guaranteed access to a formal administrative proceeding or to federal judicial review.”
Stevens also wrote that, despite several federal courts of appeal concluding that FERPA’s provisions do create federal rights that are enforceable by Section 1983, Congress has never corrected these decisions with legislation that says otherwise. Stevens argued that Congress, not the courts, should decide whether remedies are available for violations.
The Reporters Committee for Freedom of the Press, wrote a friend-of-the-court brief in the case, arguing that FERPA should not be enforceable by Section 1983. They noted that allowing such suits over information disclosure would prompt states to restrict access to government-held information out of fear of a wave of civil rights litigation. (Gonzaga University v. Doe) — MM