High court takes on second federal privacy case over education records

From the Winter 2002 issue of The News Media & The Law, page 35.

Courts and litigants have long wrestled with the terms of a 28-year-old federal privacy statute designed to protect educational records, and whether individuals named in those records have a right to sue to enforce privacy protection. Now the U.S. Supreme Court, for the first time, has agreed to clarify the law by taking not one, but two, cases involving education records.

The first case to examine the Family Educational Rights and Privacy Act (FERPA) addresses whether calling out a student’s test grade in class constitutes the disclosure of an education record, which would be prohibited under FERPA. In Owasso Public Schools v. Falvo, an Oklahoma mother sued a school district after it allowed her son’s grades to be called out in class. The U.S. Supreme Court heard oral arguments in Owasso on Nov. 27.

The second, John Doe v. Gonzaga University, addresses the question of whether individuals can bring civil rights suits against schools for violations of FERPA, when the only sanction under the statute is the possible withholding of federal school funds by the Department of Education. The case arose from the denial of a student’s request for an affidavit attesting to his good character from his former school, a private university in Spokane, Wash.

Organizations such as Security on Campus Inc., a non-profit organization devoted to fighting campus crime, are concerned that schools and universities might become more reluctant to release records and information as a result of these cases.

“Both cases have potentially wide reaching and serious ramifications for what campus crime information colleges are willing to release,” said S. Daniel Carter, senior vice president of Security on Campus. “If students are allowed to sue to enforce the FERPA provisions, these institutions would be far more reluctant to release information that FERPA allows them to release for fear of making some type of mistake that would allow a student to file suit against them.”

Some speculate that the justices may refrain from releasing an opinion in Owasso until they have heard arguments in the Gonzaga case. Answering the question raised in Gonzaga could mean that the Owasso case no longer presents a controversy over which the court may render an opinion. Justices Anthony Kennedy and Sandra Day O’Connor raised the issue in the oral arguments of Owasso of whether a Section 1983 claim could be brought for a FERPA violation, though the issue had not been fully briefed by the parties. They also questioned whether the case was properly before the court when that issue had not first been resolved. The Gonzaga case will give the court the opportunity to address this question directly.

But some consider it a craps shoot to guess how the justices may consider the cases.

“The sky’s the limit as to what they can do,” said Wilfred Wright, attorney for the Falvo family. “It’s all conjecture or speculation at this point. The only people who know are the nine Supreme Court justices.”

Affidavit denied

The Gonzaga case began nearly 10 years ago when a student known in court papers as “John Doe” requested from Gonzaga University a moral character affidavit to support his application for a teaching certification. Staff members at Gonzaga preparing the affidavit uncovered allegations of sexual assault. The university then denied the affidavit based on those allegations, although they had never been formally made by the alleged victim.

The student was given no right to appeal the denied request, so he sued the university and the alleged victim in June 1994. He sought to recover damages from the university for defamation, negligence, and breach of educational contract, and from the woman for falsely accusing him of sexual assault or rape.

In addition, his lawsuit included a civil rights claim based on a federal civil rights law, Section 1983, that allows individuals to sue government actors for violations of their rights.

The alleged victim filed her own lawsuit against the university for defamation and negligent investigation and against the student for sexually assaulting her. Both claims were later dismissed.

A trial court entered judgment and attorney fees for the student.

The university appealed. Washington’s Court of Appeals reversed the negligence, invasion of privacy, breach of contract and civil rights claims. It remanded the defamation claim back to the trial court from which the jury returned a verdict in the student’s favor and awarded him nearly $1.2 million.

The student appealed, and the state Supreme Court held on May 31 that FERPA created individual rights that are privately enforceable under section 1983. After the court refused to rehear the case, the university appealed to the U.S. Supreme Court, which agreed to hear the case solely on the one issue of whether FERPA creates the kind of “right” that section 1983 was designed to protect.

Court examines peer grading

By the time the U.S. Supreme Court accepted the Gonzaga case, the justices had already heard oral arguments in another case that also raised an issue of whether a Section 1983 civil rights claim could be used to enforce the protections of FERPA. However, the parties in the Owasso had not addressed the Section 1983 question in the lower courts. The issues that were appealed in this case concerned what types of actions constitute disclosure of education records.

In this case, Kristja Falvo, an Oklahoma mother, sued the Owasso Public School District for violation of her son’s constitutional privacy rights and violation of FERPA after her son’s class participated in a peer grading system. Falvo said her son was called “stupid” and “dummy” for getting low grades on those quizzes.

In an effort to protect her reading-disabled son from being humiliated by his classmates, Falvo complained and for 18 months she demanded that the district require teachers to either grade student papers themselves or allow students to grade their own.

The school district refused.

On Oct. 6, 1998, Falvo filed the lawsuit in the U.S. District Court for the Northern District of Oklahoma in Tulsa.

Falvo argued that the peer grading system was an unconstitutional violation of her children’s privacy, because she did not consent to the release of her child’s grades, a violation of FERPA.

The school district argued that using students to grade a test or homework assignments of another student and calling out grades in class did not violate FERPA, relying on an opinion letter issued by the Family Policy Compliance Office, the federal agency responsible for enforcing FERPA.

The district court rejected Falvo’s 14th Amendment right of privacy claim, concluding that the tests and homework assignments were not “‘highly personal” matters worthy of constitutional protection. The court also rejected Falvo’s FERPA claim, deferring to the federal agency’s interpretation. It held that the agency’s interpretation was reasonable and did not conflict with the legislative intent of FERPA. The court granted summary judgment to the school district.

The U.S. Court of Appeals in Denver (10th Cir.) affirmed the privacy claim but reversed the FERPA claim, ruling that the district court erred in its deference to the agency’s interpretation of the statute.

The appellate court held that based on the pure language of the statute, the peer-grading in the case constituted education records under FERPA, regardless of whether the students announce their grades aloud in class or report their grades to the teacher in confidence.

The court also found nothing significant in the fact that the teachers have discretion to record or not record the grade for use in calculating the student’s final grade in the class.

For the 10th Circuit, case law provided little guidance of whether peer grading constituted disclosure of an “education record.” Although in most jurisdictions, records need not be created by the school to fall under the category of educational records, courts have merely taken each situation on a case-by-case basis, providing confusing precedent for courts.

Legislative history provided very little help as well.

From its enactment in 1974, FERPA confused schools that had to deal with it. Buried in an amendment to the Elementary and Secondary Education Act of 1965, it became law with very little discussion or debate, and, as a result, very little legislative history. There is nothing in the congressional record to give guidance to its meaning or how it was to be applied.

Former Sen. James Buckley (R-N.Y.) authored the bill after finding out that students and their parents were not allowed to view school records. Because they could not review their records, students could not challenge what was passed on to other schools, potential employers, the military and other agencies. They could be victimized by carelessness or malice and never know it before the protections of FERPA, also known as the Buckley amendment.

Some courts resorted to relying on Buckley’s speech to the Legislative Conference of the National Congress of Parents and Teachers in 1975 to gather some clues to the intent and meaning behind the provisions of FERPA..

But the courts have provided no relief to the confusion.

Presumably the obtuse definitions and confusion surrounding rights under FERPA spurred the Supreme Court to accept Owasso.

During oral arguments, the issue narrowed down to what constitutes an educational record. Jerry Richardson, the school district’s attorney, said FERPA violation claims must pass a two-part test: whether the schools “maintained” a record containing personally identifiable information and whether they wrongly released the record.

Richardson argued that a grade book was not an accurate portrayal of “record” as intended by FERPA because it was an evaluation of the student’s abilities, rather than an institutional recording of a final recorded grade.

His definition of the word “maintain” suggested a long-term effect on a student such as a record that a secondary school or employer might want to view. Based on this definition, Richardson argued that the calling out of a score did not constitute disclosure of an educational record since that grade was not yet “maintained” by the teacher.

Wright, Falvo’s attorney, argued that the simultaneous disclosure of a score by a student, and its recording by the teacher constituted release of an educational record in violation of FERPA.

Wright also argued that parents have the ultimate authority over the education of their children and that FERPA was intended to protect that right.

The school district should be enjoined from peer grading since it violates the privacy rights of the student created by FERPA and the confidentiality between the student and the school it requires, he said.

Wright suggested that parents must consent before allowing peer grading to continue.

Several justices did not seem comfortable with Wright’s definitions.

“I don’t see what record has been disclosed,” Justice Antonin Scalia said. “It isn’t in the grade book yet; what is the record that is being disclosed?”

Since schools have used FERPA to justify withholding many different kinds of records concerning students, the Reporters Committee for Freedom of the Press and the Student Press Law Center submitted a friend-of-the-court brief in Owasso, urging the Supreme Court to reverse the appellate court’s decision and to clarify conflicting definitions of “education record” under FERPA to avoid serious misapplication of the law.

The Reporters Committee also asked the Court to find that privacy interests like those behind FERPA are not sufficient to give rise to a federal civil rights claim because the interests recognized by FERPA and other information release statutes “do not rise to the level of individually enforceable privacy ‘rights.'”

(John Doe v. Gonzaga University; Owasso Public Schools v. Falvo) — MM