Supreme Court weighs whether students can sue schools for privacy violations

WASHINGTON, D.C. — The U.S. Supreme Court on Wednesdayheard arguments in Gonzaga University v. Doe, its secondcase this term involving student privacy issues at federally fundedschools.

The Court will decide whether individual students have a legalright to sue private institutions and seek damages for the releaseof personal information regulated by the federal Family EducationalRights and Privacy Act, also commonly known as the Buckley Amendment.

The 1974 statute prohibits federally funded institutions fromreleasing "education records" without the prior writtenconsent of students or their parents. The U.S. Department of Educationcan withdraw funding from schools that have engaged in a "policyor practice" of releasing such information.

If the Court finds that there is no private cause of actiongranted under FERPA, there would be less incentive for schoolsto withhold crime reports and other information from student journalists.

Based on the comments made in the hearing, at least five ofthe justices appeared hesitant to accept that FERPA allows privateactors to sue when a school violates the statute.

"I don’t see a private cause of action," said JusticeSandra Day O’Connor.

Former Gonzaga student Ru Paster, referred to by the Courtas John Doe, sued the Jesuit-run university in Spokane, Wash.,for defamation, negligence, breach of contract and violation ofFERPA after it released information to his potential employersrelated to allegations that he had sexually assaulted anotherstudent. Paster was never convicted of a crime, and the statesupreme court upheld a 1997 jury decision awarding him $450,000in damages for the FERPA violation.

John Roberts, legal counsel for Gonzaga, argued that Congressnever intended the statute to allow individual students to sueschools for complaints, but rather left it up to the Departmentof Education to determine whether or not funding should be withheldfrom an institution.

Two statutes enacted within two years — Title IX, a 1972 statutethat prohibits sex discrimination in educational programs andactivities that receive federal financial assistance, and FERPA– provide "two very different ways of approaching a problem,"Roberts told the court. Congress worded the former to cater toindividual student rights, but specifically addressed the latterto the secretary of the Department of Education, he said.

Beth Brinkmann, Paster’s legal counsel, disagreed, saying therewas a definite intent to protect individual student rights withinat least one part of FERPA. She said the Gonzaga case is a "paradigmexample of what [Congress was] worried about" when it conceivedFERPA guidelines for releasing student information.

Justice Antonin Scalia responded that the Court was not goingto decide whether Congress was worried about student privacy,but whether individual students or their parents should have aright to sue when the law creates an enforcement mechanism throughthe Department of Education.

The language of FERPA suggested that Congress did not intendto vindicate a student’s right to sue since, in order to succeedin a legal claim, a student would need to prove not only thatthe institution had released his own education records, but alsothat it had a policy or practice of doing so, Scalia said.

In addition, Roberts said granting students and their parentsthe ability to sue was unnecessary since the secretary of the Department of Educationalready has the "cudgel of terminating funding" to privateuniversities with policies or practices that violate FERPA. Heargued that granting a private right to sue to every student isa "radical notion" and could open up the judicial systemto a barrage of private lawsuits.

Brinkmann disputed this claim, saying that even though at leastone federal appellate court upheld a private cause of action undersection 1983 as long as 15 years ago, there has been no floodof litigation in the 28 years since FERPA was enacted.

But Justice Stephen Breyer referred to the Court’s Februarydecision 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 thatallowing individual student lawsuits would only further complicatematters.

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

In the only other FERPA case the Court has heard to date, thejustices in February ruled unanimously in Owasso v. Falvothat allowing students to grade each other’s work in the classroomdoes not constitute the release of an "education record"prohibited by FERPA since students are not agents of the school.

Wednesday was the last day for arguments in the Court’s currentsession. A decision on the Gonzaga case is expected beforethe Court adjourns this summer.

View a transcript of the oral arguments, courtesy of the U.S. Supreme Court. Also, a copy of the SPLC brief is available from the Reporters Committee. (Download Adobe Acrobat Reader, necessary to view the documents on your computer.)Read our previous coverage.

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