Students Do Not Have the Right to Sue for Violations of FERPA
September 17, 2002
Educators and administrators are well aware that, under the
Family Educational Rights and Privacy Act of 1974 (FERPA), educational
institutions having a policy or practice of releasing education records to
unauthorized persons cannot receive federal funding. The statute does provide
noncomplying institutions an opportunity to cure; termination of federal funds
only occurs after the Secretary of Education determines that a school will not
voluntarily comply with the statute. Until recently, however, courts disagreed
over whether enforcement of FERPA was limited to the Secretary of Education, or
whether a student (or parents) could bring a lawsuit based on a school’s
unauthorized release of student information. For example, the Second and Tenth
Circuit Courts of Appeal had ruled in Falvo v. Owasso Independent School Dist.
No. 1011, 233 F.3d 1203, 1210 (10th Cir. 2000), rev’d on other grounds, 534 U.S.
426 (2002); Brown v. Onenta, 106 F.3d 1125, 1131-32 (2nd Cir. 1997), that a
violation of FERPA permits a student to bring a civil rights action under 42
U.S.C. §1983, which allows for suits against state actors who deprive (even
negligently) a party of his or her rights under the law. In contrast, schools
under the jurisdiction of the Third Circuit Court of Appeal, did not face such
liability. See Gundlach v. Reinstein, 924 F. Supp. 684, 692 (E.D. Pa. 1996),
aff’d, 114 F.3d 1172 (3rd Cir. 1997).
In Gonzaga University v. Doe, 536 U.S. ___ (June 20, 2002),
the United States Supreme Court ended the debate by holding that FERPA does not
create a right enforceable under 42 U.S.C. §1983. The facts of Gonzaga
University illustrate the FERPA difficulties an educational institution faces
when a school receives inquiries regarding the “moral fitness” of a student. In
Gonzaga University, a teacher certification specialist at the university
overheard one student tell another that a certain male student had engaged in
acts of sexual misconduct against a female student. The male student planned to
graduate and teach at a Washington public elementary school. At the time,
Washington required all of its new teachers to obtain an affidavit of good moral
character from their graduating college or university. The teacher
certification specialist launched an investigation and discussed the allegations
against the student with the state agency responsible for teacher
certification. Six months later, the certification specialist informed the male
student that he would not receive the affidavit required for certification as a
Washington schoolteacher.
The student brought a lawsuit against the school for
defamation, breach of contract, and violation of his civil rights based on the
school’s alleged FERPA violation. A jury found for the student on all counts
and awarded him $1,155,000, including $450,000 for the FERPA violation. The
case ultimately made its way to the United States Supreme Court on the narrow
question of whether FERPA creates an enforceable right for students. The Court
reiterated its general rule that, even if a statute is clearly meant to benefit
a private party, it does not necessarily provide the party an enforceable right
under 42 U.S.C. §1983: “[U]nless 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.” The Court
therefore concluded that, since FERPA’s provisions “speak only to the Secretary
of Education” and “speak only in terms of institutional policy and practice, not
individual instances of disclosure,” “there is no question that FERPA’s
nondisclosure provisions fail to confer enforceable rights.”
Educational institutions may take some — but not too much —
comfort from Gonzaga University. The case provides assurance that disclosures
prohibited under FERPA will not always provide a private party a basis for a
lawsuit. On the other hand, the case serves as a reminder that the same conduct
may support several different theories of liability. For example, while the
student in Gonzaga University could not bring a claim under FERPA, he recovered
approximately $700,000 for his claims for defamation and breach of contract.
Thus, while individual instances of unauthorized disclosure may not affect
federal funding, FERPA violations still pose a financial threat to educational
institutions.
For more information, contact Jeanette McGlamery, toll free
at 888-688-8500, or via e-mail at jmcglamery@hklaw.com.
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