Supreme Court weighs whether students can sue schools for privacy violations under FERPA

The U.S. Supreme Court on April 24 heard arguments in Gonzaga University v. Doe, its second case this term involving student privacy issues at federally funded schools.

The Court will decide whether individual students have a legal right to sue private institutions and seek damages for the release of personal information regulated by the federal Family Educational Rights and Privacy Act, also commonly known as the Buckley Amendment.

The 1974 statute penalizes federally funded institutions that release “education records” without the prior written consent of students or their parents. The U.S. Department of Education can withdraw funding from schools that have engaged in a “policy or practice” of releasing such information.

Former Gonzaga University student Ru Paster, referred to by the Court as John Doe, sued the Jesuit-run university in Spokane, Wash., for defamation, negligence, breach of contract and violation of FERPA after it released information to state officials, without his consent, related to allegations that he had sexually assaulted another student in violation of the moral character requirement of state teacher certification rules. Paster was never convicted of a crime, and the state supreme court upheld a 1997 jury decision awarding him $450,000 in damages for the FERPA violation.

In oral arguments before the Supreme Court, John Roberts, legal counsel for Gonzaga, contended that Congress never intended the statute to allow individual students to sue schools for complaints, but rather left it up to the Department of Education to determine whether or not funding should be withheld from an institution.

Beth Brinkmann, Paster’s legal counsel, disagreed, saying there was a definite intent to protect individual student rights within at least one part of FERPA. She said the Gonzaga case is a “paradigm example of what [Congress was] worried about” when it conceived FERPA guidelines for releasing student information.

Justice Antonin Scalia was among a number of justices that voiced skepticism with the student’s claim, noting that the Court was not going to decide whether Congress was worried about student privacy, but whether individual students or their parents should have a right to sue when the law creates an enforcement mechanism through the Department of Education.

Justice Stephen Breyer referred to the Court’s February decision in Owasso Independent School District v. Falvo, saying he realized the language of FERPA is “highly ambiguous” as to what constitutes an education record and suggesting that allowing individual student lawsuits would only further complicate matters.

The U.S. Department of Justice and several private organizations, including the Student Press Law Center, supported Gonzaga’s arguments by filing friend-of-the-court briefs.

A decision on the Gonzaga case is expected before the Court adjourns this summer.

SPLC View: Our reporters were in the courtroom for this one and based on the comments made in the hearing, at least five of the justices appeared hesitant to accept that FERPA allows individuals to sue when a school violates the statute. While we don’t often find ourselves on the same side as university attorneys, we believe they have the better legal argument here. FERPA, despite its laudable goal of protecting sensitive student education records, is a legislative and judicial mess. It has frequently been abused by school officials to hide otherwise public records, such as crime reports, by claiming they could be sued if they released the information. This case looks like it may finally put an end to that excuse.

Case: Gonzaga University v. Doe, No. 01-679