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.
