Can students sue over release of their records?

The Supreme Court weighs whether students can sue if confidential records are disclosed without their consent.

A college student is blackballed from becoming an elementary-school teacher because of rumors of his involvement in a date rape. After he discovers that a faculty member had shared the unsubstantiated date-rape accusation with a teacher-certification official, the student files a lawsuit against the college and some staff.

Among other charges, he claims violations of the Family Educational Rights and Privacy Act (FERPA), a federal law requiring that education records be kept confidential unless release is authorized by the student.

A jury awards the student $450,000 for FERPA violations. But there's one problem. Nothing in FERPA explicitly authorizes students to sue schools for monetary damages.

Today, the US Supreme Court takes up this $450,000 question: Does FERPA, in concert with a US civil rights law, empower individuals to sue a school for damages over the unauthorized disclosure of records?

Lawyers for the school, Gonzaga University in Spokane, Wash., say the law does not give individuals this power. Lawyers for the student Â- who is identified in court papers only as "John Doe" Â- say it does.

The case, Gonzaga v. John Doe, is important because it will likely define exactly what recourse students and parents have under the educational-privacy law. And because it applies to virtually every student in the country, from elementary school through graduate school, it is of great interest not only to school officials, students, and parents, but also to civil rights and privacy lawyers nationwide.

On an even broader level, the case is significant because it comes at a time when the Supreme Court has been working to scale back the broad application of various civil rights laws. Legal analysts are watching to see if this case makes it easier or more difficult for ordinary Americans to take their grievances to federal court.

"If they rule in favor of the student, I don't think you are going to see a big change in the law as it relates to student privacy and records. The vast majority of courts that have looked at this have said your right to privacy in educational records is something you can enforce in federal court," says Aaron Caplan of the Seattle-based American Civil Liberties Union of Washington, which filed a friend-of-the-court brief in the case.

"I don't anticipate that now all of a sudden every school in the country is going to be pelted with lawsuits over privacy," he adds.

Others disagree. "It could open the floodgates to a raft of litigation for every minor perceived infraction," says Sheldon Steinbach, general counsel of the Washington, D.C.-based American Council on Education, which also filed a friend-of-the-court brief in the case. "The cost of defending lawsuits is extraordinarily expensive, and there is in many college towns a cottage industry of attorneys who sue the institutions. To give these individuals another arrow for their quiver is hardly in the public interest."

At issue in the case is whether Congress, when it passed the education-privacy law in 1974, intended to grant students the right to sue and collect money damages for each individual unauthorized disclosure of confidential information by a school.

The title of the act refers to family educational "rights," and lawyers for the student say it would be meaningless to grant students a right and yet deny them the means to enforce that right when a school violates it.

"Congress intended to create an individualized right ... to withhold consent and prevent the unauthorized release of education record information by an educational institution," says Beth Brinkman in her brief to the court on behalf of the student.

Lawyers for Gonzaga counter that FERPA is a law passed by Congress under its spending-clause authority. It mandates that no federal funds may be allocated to a school that maintains a "policy and practice" of disclosing records. They say it is the policy or practice, not the individual disclosure, that violates FERPA.

Rather than using language that creates a right for students to sue, the act is phrased in terms that relate to the enforcing agency, the Department of Education, these lawyers say.

"The legislative history confirms that Congress chose to phrase FERPA's nondisclosure condition in terms of institutions rather than individuals," writes John Roberts Jr., in his brief to the court on behalf of Gonzaga.

"The enforcement scheme Congress provided is tailored to the goal of institutional compliance precisely because FERPA is concerned with such compliance and does not confer individual rights," Mr. Roberts says. "Congress wanted to ensure that federal funds not be provided to institutions that have policies and practices addressed by FERPA, but also did not wish to subject the institutions to an overly burdensome and diffuse system of remedial proceedings, appeals, and monetary damages."

The law calls for the establishment at the Department of Education of an office to enforce the law and handle complaints. To Gonzaga and its supporters, this is proof that Congress wished to foreclose private suits in court in favor of administrative action at the Education Department.

To the student and his supporters, there is no evidence that Congress wasn't interested in offering a full range of alternatives Â- from administrative action to litigation Â- for those attempting to ensure compliance with FERPA.

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