Supreme Court Holds No Private Enforcement Of FERPA (7/02)
July 19, 2002
This past month, the United States Supreme Court decided Gonzaga University v. John Doe. At issue was whether a student may recover damages from a private university under 42 U.S.C. § 1983 ("§ 1983") for disclosing the student's education record without his consent, in violation of the Family Educational Rights and Privacy Act of 1974 ("FERPA"). The Supreme Court, in a 7-2 decision, ruled that FERPA does not create a personal or "private" cause of action by an individual against an institution.
FERPA generally prohibits federal funding for any college or university that has a policy or practice of disclosing a student's "education record," or any personally identifiable information contained in that record, without the consent of the student, except where FERPA authorizes disclosure without consent. Education records are broadly defined to include "records, files, documents and other materials which (1) contain information directly related to a student, and (2) are maintained by an education agency or institution or by a person acting for such agency or institution."
In Gonzaga, a former student in the Gonzaga University education program sued the University and one of its faculty members after learning that the faculty member had contacted the state agency that certifies teachers, identified the student by name, discussed allegations of sexual misconduct involving the student, and released information regarding an investigation of those allegations. The student learned of these disclosures when he was later told that he would not receive the affidavit required for certification as a Washington school teacher. The student claimed that these disclosures violated FERPA, and also asserted claims based on state tort and contract law. The student's FERPA claim was brought indirectly, under 42 U.S.C. § 1983, which provides an enforcement mechanism for "federal rights." (Interestingly, § 1983 only applies to action "under color of state law." The lower courts found that the disclosure of information to a state agency in connection with a state law certification process met this requirement even though Gonzaga is a private university. The Supreme Court did not address this conclusion.) A jury found for the student on all counts and awarded damages, including both compensatory and punitive damages on the § 1983 claim for violating FERPA. The Washington Court of Appeals reversed the decision on the § 1983 claim, concluding that "FERPA does not create an individual right privately enforceable under section 1983." The Washington Supreme Court then reversed the Court of Appeals' decision, holding that while FERPA does not create a private cause of action, its nondisclosure provisions give rise to a federal right enforceable indirectly under § 1983. The Supreme Court's review was limited to whether an individual could assert enforceable FERPA rights under § 1983.
Justices O'Connor, Scalia, Kennedy, and Thomas joined Chief Justice Rehnquist in a majority opinion holding that FERPA does not create any personal rights enforceable under § 1983. The decision, couched by the majority as a "clarification" of prior holdings, establishes a three-part analysis for determining whether private enforcement of a federal right under § 1983 is available. The first part is determining whether the underlying substantive statute (in this case FERPA) actually confers an "individual" right. If it does, a presumption arises that the right is enforceable under § 1983. Ultimately, however, this presumption can be rebutted by demonstrating that Congress, explicitly or implicitly, "foreclosed a remedy [for that particular right] under § 1983."
Focusing on the first part of this analysis, the Court held that nothing "short of an unambiguously conferred right" can support a § 1983 claim. And, ""whether Congress . . . intended to create a private right of action [is] definitively answered in the negative' where "a statute by its terms grants no private rights to any identifiable class.'" To grant such a private right, the text of the statute must be "phrased in terms of the persons benefited."
In reviewing the text of FERPA, the Court concluded that no private right of action was intended because the statute does not confer any "individual entitlement." The Court premised this conclusion on several factors. First, it noted that FERPA speaks only to the Secretary of Education, and does not contain any individually-focused (i.e., student) language. Second, FERPA's nondisclosure provisions are phrased in terms of institutional policies and procedures, not individual instances of disclosure, thus providing an "aggregate," rather than an "individual," focus. Finally, the Court observed that the statute itself creates an explicit enforcement mechanism, authorizing the Secretary of Education to "deal with violations," further suggesting that Congress did not intend to grant enforceable rights to individuals.
The concurring opinion, written by Justice Breyer and joined by Justice Souter, agreed with the majority that the question of "whether private individuals may bring a lawsuit to enforce a federal statute - is a question of [c]ongressional intent," as well as with the majority's conclusion that Congress did not intend private judicial enforcement of FERPA's nondisclosure requirements. In addition to the reasons advanced by the majority opinion, Justice Breyer identified an additional reason for concluding that Congress did not intend to create a privately enforceable right under FERPA. The broad and nonspecific nature of the statute, Justice Breyer explained, "leaves schools uncertain as to just when they can or cannot reveal various kinds of information," making it more likely that Congress wanted to make the agency remedy it created exclusive, to better ensure a uniform, and informed, interpretation of the statute that can come only through centralized administrative enforcement. Nonetheless, Justice Breyer did conclude that the "majority's presumption that a right is conferred only if set forth unambiguously" is too rigid. In Justice Breyer's view, "the statute books are too many, the laws too diverse, and their purposes too complex, for any single legal formula, such as the Court's presumption, to apply.
On the one hand, Gonzaga provides some institutional comfort that individual breaches of FERPA's nondisclosure requirements will not give rise to federal claims. While an institution must still contend with Secretary of Education enforcement of FERPA, typically that enforcement scheme focuses on an institution's "substantial compliance," and its overall policies and procedures, rather than on its occasional mistakes.
On the other hand, institutions cannot take too much comfort in the Court's decision. Only one of the claims involved in Gonzaga related specifically to enforcement of FERPA rights. The former student also raised state law tort and contract claims based on the same disclosure of information, and he was awarded more than $700,000 in damages on those claims, which were unaffected by the Supreme Court's decision. Thus institutions must continue to be vigilant in their protection of student privacy.
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