Supreme Court decision in student privacy case could improve access to campus crime records

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WASHINGTON, D.C. — In a ruling that could mean easieraccess to campus crime information, the U.S. Supreme Court ruledtoday that individuals do not have the right to sue a school forreleasing records covered by the federal Family Educational Rightsand Privacy Act.

In a 7-2 ruling, the Court decided that individual studentscannot seek damages from institutions for the release of personalinformation regulated by FERPA, also known as the Buckley Amendment.The decision limits what could have been a chilling effect onthe news media from schools fearing lawsuits and tightening theirreign on student information.

The 1974 statute prohibits all federally funded institutionsfrom releasing individual students’ "education records"without the prior written consent of students or their parents. The only remedy for violations explicitly provided in the statuteis the withholding of federal funding when the U.S. Departmentof Education finds the school has engaged in a "policy orpractice" of releasing such records.

"[W]here a statute provides no indication that Congressintends to create new individual rights, there is no basis fora private suit," Chief Justice William Rehnquist wrote forthe five-person majority. The decisionkeeps enforcement of FERPA within the Department of Education.

"[I]f Congress wishes to create new rights enforceableunder [Section] 1983, it must do so in clear and unambiguous terms– no less and no more that what is required for Congress to createnew rights enforceable under an implied private right of action,"Rehnquist continued. "FERPA’s nondisclosure provisions containno rights-creating language, they have an aggregate, not individual,focus, and they serve primarily to direct the Secretary of Education’sdistribution of public funds to educational institutions."

Justice David Souter joined by Justice Steven Breyer filed a concurringopinion, stating that FERPA does not imply private lawsuits becausethe law itself is "broad and nonspecific," leaving schools"uncertain as to just when they can, or cannot, reveal variouskinds of information."

"[FERPA] is open to interpretations that invariably favorconfidentiality almost irrespective of conflicting educationalneeds or the importance, or common sense, of limited disclosuresin certain circumstances," Breyer wrote.

Breyer, however, refused to buy into the majority’s use of asingle "clear and unambiguous" language test to determinewhether a federal law gave an individual the right to sue.

"[T]he statute books are too many, the laws too diverse,and their purposes too complex, for any single legal formula tooffer more than general guidance," Breyer wrote.

Justice John Paul Stevens dissented and Justice Ruth Bader Ginsbergjoined, criticizing the court for ignoring a "new categoryof second-class statutory rights” that have been created by Congressbut which can no longer be enforced.

The question of private action was raised when former GonzagaUniversity student Ru Paster, identified in court documents onlyas John Doe, said university officials violated FERPA when theypassed on unsubstantiated sexual assault allegations to the Washingtonstate Office of the Superintendent of Public Instruction. Pastersaid that he failed to get state teaching certification becauseof the allegations.

Paster then sued the Spokane, Wash., school for defamation,negligence, breach of contract and violation of FERPA after itreleased information to the state licensing agency related toaccusations that he had sexually assaulted another student. Pasterwas never convicted of a crime, and the state supreme court uphelda jury decision awarding him $1.1 million, $450,000 of which wasbased on the FERPA violation.

The Supreme Court agreed to hear the case to clarify whetherindividual students or their parents can sue for violation ofthe privacy law.

The U.S. Department of Justice and several organizations,including the Student Press Law Center, supported Gonzaga’s argumentsby filing friend-of-the-court briefs, noting that schools routinelyuse FERPA to deny access to important public records, especiallyrelating to campus crime. The SPLC brief argued that allowingprivate lawsuits under FERPA would result in even less disclosureby schools.

The majority went beyond FERPA to declare that no federal lawcan create a private cause of action under Section 1983, a statutethat allows individuals to pursue claims for alleged civil-rightsviolations, unless the language of the law in question clearlystates that such a suit is permissible.

Cite: Gonzaga University v. Doe 2002 WL 1338070 (June 20, 2002)

A copy of the ruling is available from the Supreme Court. The brief filed by the SPLC and other organizations is available from the Reporters Committee for Freedom of the Press. (Download Adobe Acrobat Reader, necessary to view the documents on your computer.)Read our previous coverage.