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Justices consider student privacy concerns in FERPA case

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    NMU         U.S. SUPREME COURT         Freedom of Information         May 1, 2002    

Justices consider student privacy concerns in FERPA case

  • The Supreme Court heard arguments last week about whether a federal privacy law governing education records provides for an individual remedy when records are improperly released.

The Supreme Court heard oral arguments April 24 in a case involving a student’s right to sue a university for improperly releasing his educational records.

The issue was whether a federal privacy law over education records, known as the Family Education Records and Privacy Act or FERPA, gave individuals a privacy right in education records that would allow them to sue the university every time that right was violated by the university officials.

The Reporters Committee for Freedom of the Press, joined by The Society of Professional Journalists and Security on Campus, filed a friend-of-the-court brief in support of Gonzaga University, arguing that FERPA does not raise the kind of right that would be vindicated under the federal civil rights statute. The organizations argued that allowing such suits would lead to sweeping closures of government information whenever a statute acknowledged a privacy interest in such information.

The case arose when Ru Paster, known in court papers as John Doe, sued Gonzaga University for what he thought were violations of FERPA.

He learned that sexual allegations of misconduct regarding him and another student were shared among staff members at Gonzaga, as well as officers at the state agency responsible for issuing teacher certifications. The allegations were unverified and the staff members pursued their investigations into the matter even though the alleged victim refused to bring formal charges and later denied the allegations.

Regardless, the allegations lead the dean of the education department to refuse to sign for Paster an affidavit of good moral character, a requirement to teach in the state of Washington.

Paster sued and won a judgment for $1.1 million, $450,000 of that based on his FERPA claims.

Paster and Gonzaga took this debate all the way to the Supreme Court.

Attorneys for Gonzaga stressed their claim that FERPA was an obligation for the U.S. Department of Education to deal with, not individual educational institutions.

Attorneys for Paster, however, argued that the provisions of FERPA prohibit the distribution of federal funds to educational institutions unless they have a policy of written consent from the student or the student’s parents.

“Parents have to be told why records need to be released and to whom,” said Beth Brinkmann to the court.

The U.S. Solicitor General’s Office argued in support of Gonzaga University, stating that Congress used distinct language not to raise individual rights but to create an overall systemwide policy. “If you have one instance to allow access . . . that would not violate FERPA,” said Patricia A. Millett, assistant solicitor general.

The justices pondered over how likely Congress would have expected the Department of Education to handle violations of FERPA when it was understaffed and whether the term, “right,” as used several times in the provisions of FERPA conferred a statutorily created right, each time it was used.

However, the overall tone of most of the justices seemed to be against the idea that FERPA provides for an individual right of action or implies it.

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

A few justices even pointed out the specific language of FERPA requiring a “policy or practice” before FERPA even applies and that allowing an individual remedy for federal fund recipients creates unequal treatment in the law for students at private universities and students at public universities and potentially may interfere with the day-to-day functions of a school.

Several education-based groups supported Gonzaga’s position through a friend-of-the-court brief. The American Civil Liberties Union filed a friend-of-the-court brief in support of Paster.

(Gonzaga v. Doe) MM

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© 2002 The Reporters Committee for Freedom of the Press

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