The U.S. Supreme Court will determine whether individuals have the right to file lawsuits against schools and colleges for violating the Family Educational Rights and Privacy Act (FERPA). This federal law, established in 1974, guarantees the privacy of student records. Advocates for parental rights are concerned that a ruling against private lawsuits would make it difficult to ensure student record privacy. On the other hand, school districts worry that if the court allows lawsuits under FERPA, they may be susceptible to expensive damages. Additionally, the court’s decision is anticipated to impact another pending case regarding whether FERPA prohibits students from grading each other’s work.
On January 11, the court announced that it would hear the new FERPA appeal as one of the final cases of its current term. The appeal originates from a lawsuit claiming that Gonzaga University, a private Jesuit institution in Spokane, Washington, violated the privacy statute by disclosing to the state that a teacher education student was accused of sexually assaulting another student. The central question in the case Gonzaga University v. Doe (Case No. 01-679) is whether the accused student, referred to as John Doe in court documents, had the right to sue the university for the alleged violation of the privacy act.
The issue of private lawsuits was also raised in a separate FERPA case pending before the court, Owasso Independent School District v. Falvo (No. 00-1073). In this lawsuit, a parent contests the practice of having students grade their peers’ work and publicly announce the scores. During oral arguments in the Owasso case on November 27, the justices displayed considerable interest in whether the statute could be enforced through private lawsuits. However, the Oklahoma school district defending the practice of peer grading had not argued in lower courts that there was no private right to sue under FERPA, which is also known as the Buckley Amendment. Consequently, the justices believe that the Owasso case did not adequately present the issue of private lawsuits for their consideration.
Meanwhile, the Gonzaga case revolves around allegations that Mr. Doe sexually assaulted a fellow education student in late 1992. The alleged victim discussed her sexual relationship with Mr. Doe with various university administrators and faculty members and at times questioned if it constituted rape. Ultimately, she chose not to pursue criminal charges. However, based on the allegations, university officials refused to provide Mr. Doe with a moral-character affidavit, which was necessary to support his application for a teaching certificate from the state of Washington. At one point in 1993, a certification specialist from the Gonzaga school of education discussed the allegations with an investigator from the office of the state superintendent of public instruction.
Mr. Doe filed a lawsuit against Gonzaga and the certification specialist, claiming that the disclosure of the allegations to the state violated FERPA. The state lawsuit also included allegations of defamation and negligence. Mr. Doe asserted that the actions of Gonzaga officials had ruined his teaching career. A jury awarded Mr. Doe over $1.1 million in damages, including $150,000 in compensatory damages and $300,000 in punitive damages based on his FERPA claim. The judgment was initially reversed by a state appeals court, but the Washington Supreme Court reinstated it in a ruling last year. The state high court unanimously determined that although FERPA itself does not explicitly authorize private lawsuits, individuals could still enforce it by filing claims under the Civil Rights Act of 1871, commonly known as Section 1983. In its appeal to the U.S. Supreme Court, the university argues that under the court’s precedents, there is no individual right to sue to enforce a federal law requirement unless Congress clearly grants such a right.
The outcome of the Gonzaga case will undoubtedly affect the Oklahoma student-grading case. If the justices determine in Gonzaga that there is no right to sue for FERPA violations, the court may dismiss the Owasso case without addressing the question of whether peer grading violates the federal law. However, if the court establishes a right to sue, it is likely to rule on the merits of peer grading. During the Owasso arguments, a majority of justices seemed skeptical that peer grading violated FERPA.
Overall, it is evident that the U.S. Supreme Court’s decision in these cases carries significant consequences and implications for both student record privacy and the practice of peer grading.
School boards and administrators have a differing perspective on the matter. The National School Boards Association and other similar groups have submitted a friend-of-the-court brief in the Owasso case, addressing the issue of private lawsuits. They argue that Congress did not intend to authorize such lawsuits for enforcing FERPA (Family Educational Rights and Privacy Act).
According to Martin Michaelson, a Washington lawyer representing Gonzaga University, who co-wrote the brief submitted by the school boards’ group in the Owasso case, Congress had a clear intention to condition the receipt of federal money by educational institutions on the implementation of programs and practices to safeguard student records’ privacy. He further stated that Congress did not envision slip-ups leading to lawsuits, as this would only contribute to an excess of litigation burdening the courts.
The justices are scheduled to hear arguments in April, and a decision on the matter will be reached by early summer.
