Law & Courts

Court Mulls Who Can Sue Under Privacy Law

By Mark Walsh — May 01, 2002 5 min read
  • Save to favorites
  • Print

The argument that students and parents should be able to go to court to enforce the 1974 federal law that guarantees the privacy of student records met with skepticism in the U.S. Supreme Court last week.

“Congress was clearly addressing the interests of parents” when it enacted the Family Educational Rights and Privacy Act, or FERPA, said Beth S. Brinkmann, the lawyer for a former college student who sued his educational institution over an unauthorized disclosure.

But Justice Sandra Day O’Connor pointed out that the privacy law outlines only an enforcement system in which the secretary of education can withhold federal aid from a school or college with a policy or practice of making unauthorized disclosures.

“The remedy is withholding funds,” she told Ms. Brinkmann. “I don’t see how you extrapolate a private remedy for damages.”

Despite the complexity of the court’s doctrine regarding when a right to sue can be construed from statutes that don’t specifically authorize one, the April 24 oral arguments in Gonzaga University v. Doe (Case No. 01-679) were engaging.

And the stakes are potentially high for all schools and colleges that receive federal money. If the court authorizes private lawsuits under FERPA, also known as the Buckley Amendment, those institutions will be exposed to greater scrutiny and liability in the courts for their handling of student records. A decision by the Supreme Court against private lawsuits, on the other hand, would mean that the Department of Education would remain the authoritative arbiter of the privacy law. Both the Bush administration and Gonzaga, a private, Roman Catholic university in Spokane, Wash., argued last week that Congress wanted only the department to enforce FERPA.

“The statute is directed to the secretary of education, not to the educational institutions,” said John G. Roberts Jr., the lawyer for Gonzaga. “Congress was not concerned with individual instances of disclosure.”

Patricia A. Millett, an assistant U.S. solicitor general, said that Congress used language in FERPA that was different from that in many federal civil rights laws.

“The statute says, ‘No funds shall be distributed by the secretary of education’ ” in the event of violations, she said. “That is not the type of language Congress would use to confer individual rights.”

But Justice John Paul Stevens pointed out that FERPA does mention the “right” of parents to inspect their children’s educational records. He pressed both Mr. Roberts and Ms. Millett on whether that constituted a federal right that could be enforced in federal court. They both said no.

“Whatever it is, it is a collective, programwide right,” not an individual right that could be enforced in court, Ms. Millett argued.

Overworked Staff?

The case stems from charges by a former education student at Gonzaga—identified in court papers only as John Doe—that university officials violated FERPA when they passed along unsubstantiated allegations that he had sexually assaulted a classmate.

Gonzaga made the disclosure to the office of the Washington state superintendent of public instruction. Mr. Doe then failed to get the state certification he needed to become a teacher. He sued the university and one of its officials for defamation, the FERPA violation, and other claims.

A jury awarded him $1.1 million, of which $450,000 was based on the violation of FERPA. The Washington Supreme Court upheld the verdict last year.

The U.S. Supreme Court took an interest in the case as a vehicle to decide whether the privacy law could be enforced with lawsuits.

Part of the oral argument was devoted to how the Education Department enforces the law. The department has a little-known section called the Family Policy Compliance Office, which receives complaints about privacy violations and asks school districts and colleges to respond. The office typically resolves cases by telling an educational institution to stop an offending practice or to provide greater access to records. (“Court to Decide if Pupil Privacy a Federal Case,” April 17, 2002.)

Justice Ruth Bader Ginsburg asked whether the small office, based at the Education Department’s headquarters, was up to the task of enforcing FERPA nationwide.

“This one agency, we’re told, has all of seven staff members— hardly a number that could handle the flood of complaints,” she said to Mr. Roberts.

Justice Anthony M. Kennedy interjected: “Do we know that these seven people are overworked?”

A little later, Ms. Millett, representing the federal government, told the justices that the family-policy office “handles an amazing amount of work—over 900 pieces of correspondence per year.”

“That’s three letters a day,” Justice Stevens said with a grin.

It also handles phone and e- mail inquiries, Ms. Millett added.

“The secretary has been very successful in enforcing this in an informal manner,” she said.

Contagion of Lawsuits

Ms. Brinkmann, the lawyer for Mr. Doe, later said that the family-policy office “serves an admirable role,” but that it cannot meet all needs under the law in a timely manner.

For example, parents and students cannot petition the Education Department to bar an unauthorized disclosure of student records in an individual case, she said. They need to retain the ability to go to court to get an injunction to serve that purpose, she added.

The idea that families would be able to drag educational institutions into court appeared troubling to Justice Stephen G. Breyer, who often expresses concern about court interference in the operation of public education.

“The image that comes up in my mind is private actions all over the place,” Justice Breyer said. He added that he feared more school districts would end up in court the way an Oklahoma school district did over its policy of allowing students to grade each other’s papers in class.

A mother in that case challenged that practice as a violation of FERPA and won in a federal appeals court. But the Supreme Court ruled unanimously in February in Owasso Independent School District v. Falvo that the practice did not violate the privacy law. (The high court assumed, without deciding at that time, that the parent had the right to challenge the grading practice in federal court.)

A “central scheme” for enforcing FERPA might have some drawbacks for individual cases, Justice Breyer said last week, but it might be the best approach to ensure “the effective management of schools.”

A decision in the case is expected by early July.

A version of this article appeared in the May 01, 2002 edition of Education Week as Court Mulls Who Can Sue Under Privacy Law

Events

Recruitment & Retention Webinar EdRecruiter 2025 Survey Results: The Outlook for Recruitment and Retention
See exclusive findings from EdWeek’s nationwide survey of K-12 job seekers and district HR professionals on recruitment, retention, and job satisfaction. 
Jobs Virtual Career Fair for Teachers and K-12 Staff
Find teaching jobs and K-12 education jubs at the EdWeek Top School Jobs virtual career fair.
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
School & District Management Webinar
How District Leaders Align Curriculum, Assessment, and Instruction for Student Success
Join K-12 leaders as they share strategies for aligning curriculum, assessment, and instruction to support all learners.
Content provided by Otus

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Law & Courts How Educators Feel About the Supreme Court's Decision to Uphold TikTok Ban
The Supreme Court upheld a law targeting TikTok, increasing the uncertainty for an app highly popular among U.S. educators and students.
6 min read
Sarah Baus, left, of Charleston, S.C., and Tiffany Cianci, who says she is a "long-form educational content creator," livestream to TikTok outside the Supreme Court, on Jan. 10, 2025, in Washington.
Sarah Baus, left, of Charleston, S.C., and Tiffany Cianci, who says she is a "long-form educational content creator," livestream to TikTok outside the Supreme Court, on Jan. 10, 2025, in Washington.
Jacquelyn Martin/AP
Law & Courts After 50 Years, This School District Is No Longer Segregated, Court Says
A federal appeals court panel declared that the Tucson, Ariz., district was now legally desegregated a half century after it was first sued.
3 min read
Scales of justice and Gavel on wooden table and Lawyer or Judge working with agreement in Courtroom, Justice and Law concept.
Pattanaphong Khuankaew/iStock
Law & Courts Biden's Title IX Rule to Expand Protections of Trans Students Struck Down
The Title IX rule improperly expands sex-discrimination protection to gender identity, the judge ruled.
4 min read
A picture of a gavel on a target.
Bill Oxford/Getty
Law & Courts TikTok Is a Step Closer to Being Banned. What Schools Need to Know
TikTok is a big headache for educators, but banning it probably won't solve all their issues with student engagement.
3 min read
TikTok and Facebook application  on screen Apple iPhone XR
iStock Editorial/Getty