Amicus Curiae Brief — Owasso Independent School Dist. No. I-011 v. Falvo

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No. 00-1073 | aus 23 2001

NSC iN —_ IN THE :

U Supreme Court of the Uniited States...

OCTOBER TERM, 2001|__

Owasso Independent School District No. I-011, et al.;

Petitioners,

v.

Krista J. Falvo;

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

BRIEF OF AMICI CURIAE NATIONAL SCHOOL

BOARDS ASSOCIATION, AMERICAN COUNCIL ON

EDUCATION, AMERICAN ASSOCIATION OF SCHOOL

ADMINISTRATORS, NATIONAL ASSOCIATION OF

INDEPENDENT SCHOOLS, NATIONAL ASSOCIATION

OF FEDERALLY IMPACTED SCHOOLS, COLORADO

ASSOCIATION OF SCHOOL BOARDS, KANSAS

ASSOCIATION OF SCHOOL BOARDS, NEW MEXICO

SCHOOL BOARDS ASSOCIATION, OKLAHOMA

STATE SCHOOL BOARDS ASSOCIATION, UTAH

SCHOOL BOARDS ASSOCIATION

IN SUPPORT OF PETITIONERS

SHELDON E. STEINBACH *JULIE UNDERWOOD

Vice President and General Counsel JULIE E. LEWIS

American Council on Education National School Boards

One Dupont Circle, Suite 800 Association

Washington, D.C. 20036 1680 Duke Street

(202) 939-9355 Alexandria, VA 22314

(703) 838-6722

MARTIN MICHAELSON

ALEXANDER E. DREIER *Counsel of record

Hogan & Hartson L.L.P.

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5600 Counsel for Amici Curiae

TABLE OF CONTENTS

BOR ee Fey CE cctrenerssrmemnsenmnnnemnnneneeee li

STATEMENT OF INTEREST OF AMICI ........:ccscssccessesseeseeeseees 1

PONE GOW” SUDUEIIEIIIGE cevscecesesesscevesesrssousnccsesssnensenneneveesess 3

TT 4

I. IN-CLASS PEER-EVALUATION AND SIMILAR

EDUCATIONAL TECHNIQUES ARE OUTSIDE

Ce Ie Oe Re WE OS cpcencecsctzccsesrenseentscesrsesrnceumeneneees 4

A. In-class Evaluations by Students of Other

Students’ Work Are Not FERPA “Education

ND ccumsssssserevescssnsscnsnnserssetessnemmesssmenevsesscsees 5

B. The Court of Appeals Erred in

Disregarding the Views of the Agency

Charged with Implementing FERPA............ 10

Il. CONGRESS DID NOT AUTHORIZE

PRIVATE LAWSUITS TO ENFORCE

THE FERPA PROVISION AT ISSUE ...........:ccceeseeeees 13

Ii. SECTION 1983 HAS NO APPLICATION IN

THESE CIRCUMSTANCE S......cccccccccsccccessosssessessescceees 19

eA S cennenecevevsvecsevsernenservenecnessqusnenesunsenssnnsesssnsseneseenenees 21

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Arkansas Medical Soc., Inc. v. Reynolds, 6 F.3d 519

Eee 16

Auer v. Robbins, 519 U.S. 452 (1997).....ccccccerseseeseeeseeeesenseeenees 12

Blessing v. Freestone, 520 U.S. 329 (1997) .....ccccceccereereeeeenees 17,19

Bowles v. Seminole Rock and Sand Co.,

a 12

Brown v. City of Oneonta, 106 F.3d 1125 (2d Cir. 1997)........... 14

Falvo v. Owasso Indep. Sch. Dist. No. I-011, 233 F.3d 1201

CS Ee 6

Fay v. South Colonie Central Sch. Dist., 802 F.2d 21

ee 14

Francois v. University of D.C., 788 F. Supp. 31

Le 14

Girardier v. Webster College, 563 F.2d 1267

EEE 14

Grundlach v. Reinstein, 924 F. Supp. 684 (E.D. Pa. 1996),

GS, BOD FBG 1172 GS Cie 1997) ceeccccccccccscescscrscscrsccccscscsscsscsees 15

Harlow v. Fitzgerald, 457 U.S. 800 (1982) ........c.csseseseeseeeeeeerenes 20

Klein Indep. Sch. Dist. v. Mattox, 830 F.2d 576

(5th Cir. 1987), cert. denied, 485 U.S. 1008 (1988) .............c000008 14

Linson v. Trustees of the Univ. of Pa., 1996 WL 637810

En Deb, DER. G, Te cnnecnesereeemensetsteitemninnmnnnneil )

Miller v. Hamline Univ. Sch. of Law, 601 F.2d 970

Ge, Fi ei ccneuenieeccmnntinninioemnell )

Monell v. Dep't of Social Servs., 436 U.S. 658 (1978)..........0-000+ 20

Norris v. Board of Educ. of Greenwood Community

Sch. Corp., 797 F. Supp. 1452 (S.D. Ind. 1992) ............0-s000 15, 19

Pennhurst State Sch. & Hosp. v. Halderman,

GD TR 5 a nennetscnemmensmememennnn 13, 19

Reno v. Koray, 515 U.S. 50 (1995).........ccesersesersnsereenenseneneenenees 11

Skidmore v. Swift and Co., 323 U.S. 134 (1944)........ccccecceneeeeeees 11

Stowell v. Ives, 976 F.2d 65 (Ast Cir. 1992) ........cccccceseererenees 15, 16

Suter v. Artist M., 503 U.S. 347 (1992) ........c-ccccereeeererenenees passim

Tarka v. Cunningham, 917 F.2d 890 (5th Cir. 1990) ............. 8,14

United States v. Mead Corp., 121 S. Ct. 2164 (2001)............00000+ 11

Ward v. New York Univ., 2000 WL 1448641

CS. DN.Y. Sappt. FB, DEBBY -.2.2.ccccccecsccccscccccesscccescscssssscsssscescsnscsssseess 9

Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498 (1990)........... 16, 17

Wright v. Roanoke Dev. & Housing Auth.,

GID UG, GBD GIGI) ccccscscssszccsesvcsssccsssevescscssescsnsnenssnsenenssensseseeneseses 16

Wright v. Texas S. Univ., 392 F.2d 728 (5th Cir. 1968) .............. 9

STATE CASES

Alden v. Georgetown Univ., 734 A.2d 1103 (D.C. 1999)............. 9

In re Susan M. v. New York Law Sch., 556 N.E.2d

ED et oe. ee eneescnnssesscsmnannssensenssennntesnenmnsenenntitnsanmamnssentasstesnssi 9

Kraft v. William Alanson White Psychiatric Found.,

AD Ss PIED cectcseceneicerttenteisntinsenmniemssineapeianees 9

Maas v. Corporation of Gonzaga Univ., 618 P.2d 106

GOs GR, Fa Te eccceenccnsnnsiencsenceensesemnsinanntescsesnesmsensmmenmenasel 9

Meury v. Eagle-Union Community Sch. Corp.,

714 N.E.2d 233 (Ind. Ct. App. 1999).........cccececcseeceeseeeeeenes 14-15

Napolitano v. Trustees of Princeton Univ., 453 A.2d

263 (N.J. Super. Ct. App. Div. 1982) ..........cccccssessseseseseseneerenenees 9

Olsson v. Board of Higher Educ., 402 N.E.2d 1150

te le Bee rctsnsnnsemnannecsransscenssescnnenenensaneatavenisimaseenmenmnessmmsnannseel 9

FEDERAL STATUTES

EN 3

a ce Op et D crereccerenensennmncenrsnasenntennenptennessnnsemmanmmnenaned 8

Sa ice 1p SD cecrcrccenasscenncenenmnscesmensemnnenssemtasmnncnnsel 8

ce Op SN ccncrernncsemasnnssncnscenenmmmnnneemmeatel 5

LE 6

17

Io crtiitititiaiici Eads 14

I a iitintiinitisninniciuieniteatda 17, 18

a cicatitiiinitiniiatiinbieaiies 11, 17, 18

I i ciicttinitiitisninticstatadinineieel 15

Fk Ce ane a 4,13

FEDERAL REGULATIONS

| EN TE Se ee eae 5

I a iccininiintetinianrcitinniiitatiniia sidan sieadd 11, 18

TE ae Pee et POR: 18

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| RE ne aT RT IT 19

OTHER AUTHORITIES

120 Cong. Rec. 39,864 (1974) (Joint Statement in

Explanation of Buckley /Pell Amendment)...............0:0000004 8-9

Robyn M. Gillies & Adrian F. Ashman, The Effects

of Cooperative Learning on Students with Learning

Difficulties in the Lower Elementary School, 34 J. of

Departed Babee. 2D CRB) occecccscecccsscecssesesesessscssacesssecsnecssensssesssnesees 10

Dixie Snow Huefner & Lynn M. Daggett,

Commentary: FERPA Update: Balancing Access to

and Privacy of Student Records, 152 Ed. Law

Bap. CGD GERI) ecccccccnescscessesssseszsrszsnsnscesssnssssesesnsussensnsssssssnssenensesee 12

Petitioners’ Appendix A...........cscssseseeseensesensenenenenenenenes 5,11, 15

Petitioners’ Appendix F.................:sssssreessssersnsssesencerenenenensesenens 11

James A. Reither & Douglas Vipond, Writing as

Collaboration, 51 College English 855 (1989) ............sscsesee 10

Webster's Ninth New Collegiate Dictionary (1990) .............+0++0+ 5

vi

STATEMENT OF INTEREST OF AMICI ”

Amici are national associations that represent public

and independent primary, secondary, and higher education

institutions and the educators who serve them. Amici

believe that to subject to FERPA regulation the peer-grading

practice at issue in this case, as well as similar instructional

techniques common in classrooms across the country,

involving students at all levels, would impede education of

students. It would also inte: pose courts in pedagogy, a field

the American judiciary has soundly held to be educators’

domain.

Founded in 1940, amicus National School Boards

Association (“NSBA”) is a not-for-profit federation of state

associations of school boards across the United States and

the school boards of the District of Columbia, Guam,

Hawaii, and the U.S. Virgin Islands. NSBA represents the

nation’s 95,000 school board members. These board

members govern 14,772 local school districts that serve more

than 46.5 million public school students — approximately 90

percent of all elementary and secondary school students in

the nation. The following federation member state

associations from the Tenth Circuit also support Petitioners

and represent similar interests in this case: Colorado,

Kansas, New Mexico, Oklahoma, and Utah.

Amicus American Council on Education (“ACE”)

represents all sectors of American higher education. Its

Ly Pursuant to Supreme Court Rule 37.6, amici state that no

counsel for a party authored this brief in whole or in part and no

person, other than amici, their members, or their counsel made a

monetary 2ontribution to the preparation or submission of the

brief. This brief is submitted with the consent of all of the parties

and letters of consent from counsel for the parties have been filed

with the Clerk.

approximately 1,800 members include a substantial majority

of colleges and universities in the United States. Since its

founding in 1918, ACE has sought to promote high

standards in higher education, in the belief that a strong

higher education system is the cornerstone of a democratic

society. ACE’s initiatives address issues of national

importance, ranging from higher education quality and

affordability to the responsiveness in other respects of

colleges and universities to the nation’s needs.

The American Association of School Administrators

(“AASA”), founded in 1865, has a membership of more than

14,000 educational leaders. AASA seeks to achieve the

highest quality of public education through effective school

leadership.

The National Association of Independent Schools

(“NAIS”) is a voluntary membership organization that

represents over 1,100 independent pre-collegiate schools

nationwide. NAIS strives to provide its schools with

appropriate principles of good practice, promoting high

standards of academic excellence, affordable access to

independent education, and diversified s.i1ool communities.

NAIS initiatives reflect areas of national concern,

particularly when they involve the consequences of member

schools accepting federal funds.

The National Association of Federally Impacted

Schools (“NAFIS”), founded in 1973, is a not-for-profit

association representing the interests of more than 1,500

local education agencies which receive federal impact aid.

Each member school district is governed by a locally elected

school board, and together these school districts serve more

than 15 million children.

SUMMARY OF ARGUMENT

The court of appeals held that Petitioners violated

the Family Educational Rights and Privacy Act (“FERPA”),

20 U.S.C. § 1232g, because teachers in the Owasso

Independent School District employed “peer-grading” in

their classrooms. Peer-grading is ar instructional technique,

often used in the context of class discussion, in which

students exchange papers while a teacher reviews in-class

work or homework. Students mark answers, noting correct

responses on classmates’ papers. Many educators view

peer-grading as a valuable instructional tool that enables

students to learn from classmates and that permits teachers

to use classroom time efficiently. Peer-grading is common

nationwide in primary and secondary schools as well as

college classrooms.

The court of appeals interpreted a provision of

FERPA - which by its terms speaks only to “reveal[ing]”

“records” “maintained” by schools, colleges, and

educational agencies or their agents — as covering the

common peer-grading practice. Under that court’s

interpretation, FERPA’s elaborate procedures and stringent

nondisclosure provisions would cover not only files and

records kept in school offices, but would also reach

evaluations assigned to homework, quizzes, tests, and other

student work, even when the evaluation is never recorded

in the student’s school file or record. That holding

contravenes the statute’s plain meaning, defies common

sense as confirmed by the legislative history, conflicts with

the settled interpretation by the agency authorized to

implement FERPA, and would entail massive federal

regulation of conventional classroom interactions of teachers

and students.

The court of appeals’ novel interpretation would

profoundly affect how teachers across the country educate

students. It would bar not only peer-grading but also many

3

other commonly utilized, benign, and effective instructional

methods that involve student review of others’ work,

teacher evaluation of work in a group setting, and the like.

The effect of such a doctrine would be to proliferate lawsuits

against school districts. And the holding is contrary to the

overwhelming weight of authority that teachers’ evaluations

of students are not subject to judicial review.

The Court may reverse the court of appeals without

determining the merits of Respondent’s FERPA claim,

because, as shown below, the provision at issue is not

privately enforceable in an action under 42 U.S.C. § 1983.

But even if Section 1983 were available to enforce FERPA,

the school district defendant in this case would be immune

from suit, because Respondent never established that the

violations she alleged resulted from a pattern or practice of

the Owasso School Board.

ARGUMENT

I. IN-CLASS PEER-EVALUATION AND SIMILAR

EDUCATIONAL TECHNIQUES ARE OUTSIDE

THE SCOPE OF FERPA.

The court of appeals erred in holding that the peer-

grading instructional activity in this case violated FERPA.

That holding rested on the court’s determination that the

grades students place on other students’ work are

“education records,” a construction that would vastly

expand FERPA’s reach. The court's interpretation conflicts

with the statute’s plain meaning, legislative history, and

interpretations by the federal agency authorized to

implement FERPA.

A. In-class Evaluations by Students of Other

Students’ Work Are Not FERPA “Education

Records”.

FERPA defines “education records” as “those

records, files, documents, and other materials which (i)

contain information directly related to a student; and (ii) are

maintained by an educational agency or institution or by a

person acting for such agency or institution.” 20 U.S.C.

§ 1232g(a)(4)(A). See also 34 C.F.R. § 99.3. Students who

record grades on one another’s papers do not “maintain”

“records, files, documents and other materials.” 20 U.S.C. §

1232g(a)(4)(A). To describe what students are doing in these

circumstances as “maintaining” a record, as the court of

appeals did, is contrary to the plain meaning of “maintain,”

which denotes “keep in an existing state (as of repair,

efficiency, or validity)” or “preserve from failure or

decline.” Webster's Ninth New Collegiate Dictionary 718

(1990). Students who mark one another’s homework papers

and quizzes may inscribe grades and even temporarily

possess them, but they do not keep them in a “state” of

“repair, efficiency, or validity,” nor “preserve [them] from

failure or decline,” and hence do not maintain them. Had

Congress intended FERPA to reach notations made by

students before they are placed in school files, it could have

made FERPA apply to records “made” or “possessed” by

such persons. It did not. Instead, Congress sensibly

determined that FERPA reaches only records “maintained”

by educational institutions and agencies or those who act for

them. Because the grades at issue were not maintained by

the student-graders, they were not education records when

the students viewed them. On these grounds alone, the

court of appeals’ decision should be reversed.

The court of appeals believed that student grades

become “education records” once they are recorded in a

teacher’s grade book. (Petitioners’ Appendix at A-21.) On

5

that faulty premise, the court reasoned that grades students

write on other students’ work also are “education records,”

even before the teacher records them. In so holding, the

court made two errors.

First, FERPA plainly provides that grade books and

other records kept by teachers are not “education records” if

“not accessible or revealed ts any other person except a

substitute.” 20 U.S.C. § 1232g(a)(4)(B)(i). There is no

evidence here that the teachers disclosed grade books, ¢

any grades contained in their grade books, to anyone. To

the contrary, the evidence relied on by the court of appeals

showed only that students informed the teacher of other

students’ grades before the grades were ever recorded in a

grade book. Thus, the teachers’ grade books were not

education records, because they were “not accessible or

revealed to any other person.” Id. How grades could be

“education records” before being entered in grade books, as

the court of appeals held, when FERPA plainly provides

that they were not education records even after entry in the

grade books, the court of appeals did not explain.

Second, even setting aside the express statutory

exemption of grade books from FERPA’s coverage, the court

of appeals disregarded the distinction between disclosure of

a grade contained in school files and disclosure of a grade

that has not been recorded in such files. Yet that is precisely

the distinction Congress drew in FERPA, which bars

disclosure of education records, but not of all evaluation of

stuc 2nt work, such as a grade given for a single assignment,

that might eventually find its way into a student record. See

Falvo v. Owasso Indep. Sch. Dist. No. I-011, 233 F.3d 1201,

1202-1203 (10th Cir. 2000) (Kelly, J., dissenting from denial

of rehearing en banc) (recognizing the “obvious difference

between grades entered in a grade book (a collective record

of the teacher), and the individual grades (on student

papers) that arenot recorded in a grade book” and the

6

“difference between a final grade placed on a transcript and

the individual scores that determine the final grade”).

To adopt the court of appeals’ interpretation of

“education records” would be destructive to sound,

widespread classroom practice. On that court’s view, a

teacher’s evaluation of a student would be an “education

record” when made, if the teacher later recorded it in a

written evaluation or notes placed in the student's file. That

interpretation would render a vast, indeed staggering,

amount of ordinary communication between students and

teachers subject to FERPA’s rigorous “education record”

obligations. For example, suppose (1) Johnny hits Mary; (2)

the teacher tells Johnny, in Mary’s presence, “I do not

approve of what you did”; and (3) the teacher later records

the incident in Johnny’s year-end evaluation. Under the

court of appeals’ view of education records, the teacher

disclosed to Mary an education record pertaining to Johnny

and thereby violated FERPA. A teacher could not

compliment a child’s artwork in the presence of other

students were the compliment later recorded in an

evaluation. And countless other illustrations of

conventional and proper educational interaction would be

forbidden. Of course Congress intended no such bizarre

consequence; nothing in the language or history of FERPA

suggests so. Yet such results follow under the holding

below. Congress drew a clear line in FERPA between

education “records” and the individual grades and other

evaluations and assessments that are shared in the

classroom. It is not the teacher's in-class assessment of

classroom work that FERPA addresses; else federal law

would be violated every time a teacher corrected a student’s

oral answer in class.

The court of appeals’ reading of “education records”

also cannot be harmonized with the structure of the statute.

FERPA requires institutions to permit parents and eligible

7

students to inspect and review their “education records,” 20

U.S.C. § 1232g(a)(1), and to challenge at a hearing disclosure

of “education records” the student or parent believes

“inaccurate or misleading.” 20 U.S.C. § 1232g(a)(2). Those

provisions are consistent with the view that “education

records” are material recorded in school files; a school can

provide a right of access only to records that it maintains.

By contrast, the view that “education records”

includes grades a student writes on another’s work, which

may or may not subsequently be recorded in school files,

would have peculiar and unprecedented consequences

when applied to § 1232g(a)(1) and § 1232g(a)(2). First, it

would be virtually impossible for schools to comply with

those provisions, because they would be required to provide

students and parents access even to evaluations not

recorded in school files.

Second, that construction would vastly expand the

scope of FERPA’s hearing provision, by requiring schools to

hold a hearing whenever a student or parent contended an

individual grade on individual homework or other class

work - or, for that matter, any other evaluation of student

work, such as a teacher’s comments — was “inaccurate” or

“misleading.” 20 U.S.C. § 1232g(a)(2). Yet FERPA accords

students no right “to challenge their teachers’ or educational

institution’s grading process.” Tarka v. Cunningham, 917

F.2d 890, 892 (5th Cir. 1990). The legislative history is

confirmatory:

There has been much concern that the right to a

hearing will permit a parent or student to contest the

grade given the student’s performance in a course.

That is not intended. It is intended only that there be

procedures to challenge the accuracy of institutional

records which record the grade which was actually

given. Thus, the parents or student could seek to

8

correct an improperly recorded grade, but could not,

through the hearing required pursuant to this law,

contest whether the teacher should have assigned a

higher grade because the parents or student believe

that the student was entitled to the higher grade.

120 Cong. Rec. 39,864 (1974) (Joint Statement in Explanation

of Buckley /Pell Amendment). Giving parents and students

the right to challenge the grade on every assignment would

paralyze the assessment of student performance on which

education at all levels depends. Congress plainly intended

no such thing.

Surely, had Congress intended the FERPA hearing to

be a vehicle for challenging unrecorded in-class peer

evaluations, the statute or legislative history would at least

have alluded to the wholesale federal intrusion into the

conduct of education at every school.

Conferral of such a far-fetched right would, as well,

collide with the overwhelming weight of judicial authority,

which holds academic judgments that support evaluations

of students to be “beyond judicial review.” In re Susan M. v.

New York Law Sch., 556 N.E.2d 1104, 1107 (N.Y. 1990). See,

e.g., id. at 1105; Miller v. Hamline Univ. Sch. of Law, 601 F.2d

970 (8th Cir. 1979); Wright v. Texas S. Univ., 392 F.2d 728, 729

(5th Cir. 1968); Ward v. New York Univ., No. 99 CIV. 8733,

2000 WL 1448641, at *3 (S.D.N.Y. Sept. 28, 2000); Linson v.

Trustees of the Univ. of Pa., No. Civ. A. 95-3681, 1996 WL

637810 (E.D. Pa. Nov. 4, 1996); Alden v. Georgetown Univ., 734

A.2d 1103, 1108 (D.C. 1999); Kraft v. William Alanson White

Psychiatric Found., 498 A.2d 1145, 1149 (D.C. 1985);

Napolitano v. Trustees of Princeton Univ., 453 A.2d 263, 275

(N.J. Super. Ct. App. Div. 1982); Olsson v. Board of Higher

Educ., 402 N.E.2d 1150 (N.Y. 1980); Maas v. Corporation of

Gonzaga Univ., 618 P.2d 106 (Wash. Ct. App. 1980).

Teachers throughout the nation would be required to

abandon valuable, time-tested instructional methods if, as

the court of appeals held, FERPA’s nondisclosure provisions

covered every score placed in class on a paper, quiz or

homework assignment. For example, many teachers

recognize student achievement by posting exemplary

quizzes, papers or assignments in the classroom. That

practice of sharing examples of excellent work benefits not

only the student whose work is prized, but also other

students. Similarly, a leading approach to writing

instruction includes, as a vital component, peer editing, in

which students exchange written work. See, e.g., James A.

Reither & Douglas Vipond, Writing as Collaboration, 51

College English 855, 855 (1989). There, students necessarily

see the teacher’s evaluation of other students’ work. The

holding below would not tolerate that pedagogically sound

method and the better understanding of writing it imparts,

although the method is integral to curricula in countless

classrooms. See, e.g., Robyn M. Gillies & Adrian F. Ashman,

The Effects of Cooperative Learning on Students with Learning

Difficulties in the Lower Elementary School, 34 J. of Special

Educ. 19 (2000). Even routine classroom administration,

such as having students distribute graded papers and

assignments to classmates, would be precluded because

student grades could be revealed and, according to the court

of appeals decision, FERPA thus violated. When

consequences so extreme and harmful are implicated by

judicial interpretation, so must be doubt as to its validity.

B. The Court of Appeals Erred in Disregarding

the Views of the Agency Charged with

Implementing FERPA.

In enacting FERPA, Congress authorized

establishment of and delegated to the U.S. Department of

Health, Education and Welfare (now, in this respect, the U.S.

Department of Education) Family Policy Compliance Office

10

(“FPCO”) authority to interpret FERPA and its

implementing regulations and provide technical assistance

to educational agencies and institutions to ensure

compliance. 20 U.S.C. § 1232g(g); 34 C.F.R. § 99.60. Since at

least 1993, the FPCO consistently has interpreted FERPA not

to cover the very peer-grading technique at issue here.

(Petitioners’ Appendix at F-2, 3.) Although it acknowledged

the FPCO’s settled view, the court of appeals rejected it as

“not persuasive.” (Petitioners’ Appendix at A-20.) The

court failed to give proper deference to the considered

interpretation of the federal agency to which Congress

delegated FERPA enforcement authority.

While not entitled to the same degree of deference as

regulations or formal rulings, FPCO interpretations of

FERPA in opinion letters “constitute a body of experience

and informed judgment to which courts and litigants may

properly resort for guidance.” Skidmore v. Swift and Co., 323

U.S. 134, 140 (1944). Because the FPCO has “accumulated a

considerable experience,” id. at 137, in regulating under

FERPA and “given the ‘specialized experience and broader

investigations and information’ available to it,” United States

v. Mead Corp., 121 S. Ct. 2164, 2175 (2001) (quoting Skidmore,

323 U.S. at 139), it was entitled to “some deference.” Reno v.

Koray, 515 U.S. 50, 61 (1995). The court below should at the

very least have placed greater weight on the agency's

directly pertinent interpretation of the statutory terms at

issue.

The FPCO concluded that in-class peer-grading does

not violate FERPA because the grades fall outside the

statutory definition of education records. The FPCO

Director is charged with investigating, processing, and

reviewing complaints and violations under FERPA, and

providing technical assistance to schools across the country.

The Director’s position on point is thus based upon

specialized experience, and should be presumed correct

11

unless clearly in conflict with the statute’s plain meaning.

Moreover, to the extent that the FPCO’s position interprets

Department of Education regulations, it is controlling

because not “plainly erroneous or inconsistent with the

regulation.” Bowles v. Seminole Rock and Sand Co., 325 US.

410, 414 (1945). Further, there is “no reason to suspect that

the interpretation does not reflect the agency’s fair and

considered judgment on the matter in question.” Aver v.

Robbins, 519 U.S. 452, 462 (1997). Accordingly, the court of

appeals erred by not granting deference to the FPCO’s

longstanding view.

If adopted, the determination of the court below to

disregard the FPCO view would cause increased FERPA

litigation. Since its enactment, FERPA has been subject to an

extraordinary volume and variety of interpretations by

students and parents. The FPCO has issued hundreds of

opinion letters that interpret the statute. See Dixie Snow

Huefner & Lynn M. Daggett, Commentary: FERPA Update:

Balancing Access to and Privacy of Student Records, 152 Ed.

Law Rep. 469 (2001); see id. (“What once seemed like a

relatively straightforward statute has become a cumbersome

set of requirements with ambiguous parameters.”). A

judicial failure to give deference to FPCO interpretations

would invite complainants to litigate in courts throughout

the nation the agency’s voluminous technical interpretations

of a statute that covers millions of students.

For these reasons, amici believe that Respondent's

FERPA claim is without merit and that the court of appeals

erred in upholding it. However, this Court need not

address the merits of the FERPA claim, for the two reasons

stated below.

12

Il. CONGRESS DID NOT AUTHORIZE PRIVATE

LAWSUITS TO ENFORCE THE FERPA

PROVISION AT ISSUE.

Although the court of appeals recognized that

FERPA itself confers no private cause of action, the court

held that Respondent could bring this action under 42

U.S.C. § 1983. That is a question of first impression in this

Court. Based on the analysis in Suter v. Artist M., 503 U.S.

347 (1992), however, it is clear that Congress did not indicate

the requisite intent to authorize private suits under Section

1983 to enforce FERPA.

In Suter, the Court announced the proper question to

be answered in determining whether a private plaintiff may

enforce a federal statute under Section 1983: “Did Congress,

in enacting the [statute], unambiguously confer upon the

** * beneficiaries of the [statute] a right to enforce the

requirement” at issue. Id. at 357. Where, as in Suter and

here, Congress imposes obligations on states pursuant to its

spending power, “[t]he legitimacy of Congress’ power to

legislate * * * rests on whether the State voluntarily and

knowingly accepts the terms of the ‘contract,’” and there can

be “no knowing acceptance if a State * * * is unable to

ascertain what is expected of it.” Id. (quoting Pennhurst State

Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981)) (citations

and footnote omitted). Thus, under Suter, for a court to find

in FERPA a private enforcement right under Section 1983,

Congress’s intent to confer such a right must be

“unambiguous| }”. Id.

FERPA’s text reveals utterly no Congressional intent

- and certainly not the “unambiguous| ]” intent Suter

requires — to permit private enforcement of the provision at

13

issue here. ?/ Nothing in the statute placed States on notice

that individual alleged instances of unconsented disclosure

of education records would subject them to private

enforcement action by individual students and parents. To

the contrary, the pertinent section simply provides, subject

to various conditions and exceptions, that “[n]o funds shall

be made available * * * to any educational agency or

institution which has a policy or practice of permitting the

release of education records *** *” 20 U.S.C. § 1232g(b)(1)

(emphasis added). FERPA thus merely conditions provision

of federal funds on local education agencies’ establishment

of policies or practices that do not permit unconsented release

of education records. Francois v. Univ of D.C., 788 F. Supp.

31, 33 (D.D.C. 1992). The statute certainly does not impose

on school districts a duty to monitor the classroom methods

of individual teachers to ensure that student records are

never disclosed; and equally certainly it contains no

unambiguous directive to that effect, as it must to authorize

private enforcement under Section 1983. See Suter, 503 U.S.

at 357.

Courts that have properly applied Suter’s teaching

unanimously have held that an alleged violation of FERPA

does not give rise to a private Section 1983 action. */ Meury

2/ Courts uniformly have held that FERPA itself provides no

private right of action. See Fay v. South Colonie Central Sch. Dist.,

802 F.2d 21, 33 (2d Cir. 1986); Tarka v. Cunningham, 917 F.2d 890,

891 (5th Cir. 1990); Klein Indep. Sch. Dist. v. Mattox, 830 F.2d 576,

579 (5th Cir. 1987), cert. denied, 485 U.S. 1008 (1988); Girardier v.

Webster College, 563 F.2d 1267, 1276-77 (8th Cir. 1977).

4 The only federal appellate authority to the contrary that

the court of appeals cited pre-dated Suter and relied on cases of

this Court that analyzed the question in a manner far more

receptive than Suter to inferring private enforcement rights. See

Petitioners’ Appendix at A-12 (citing cases). Brown v. City of

Oneonta, 106 F.3d 1125 (2d Cir. 1997), a post-Suter case that the

14

v. Eagle-Union Community Sch. Corp., 714 N.E.2d 233 (Ind. Ct.

App. 1999); Norris v. Board of Educ. of Greenwood Community

Sch. Corp., 797 F. Supp. 1452 (S.D. Ind. 1992). See Grundlach

v. Reinstein, 924 F. Supp. 684, 692 (E.D. Pa. 1996), aff'd, 114

F.3d 1172 (3d Cir. 1997). Since Suter, it has been clear that

“when a provision in a statute fails to impose a direct

obligation on the States, instead placing the onus of

compliance with the statute’s substantive provisions on the

federal government, no cause of action cognizable under

section 1983 can flourish.” Stowell v. Ives, 976 F.2d 65, 70 (1st

Cir. 1992). The FERPA provisions at issue here fall squarely

into that category. By FERPA’s express terms, Congress set

forth a comprehensive mechanism according to which the

U.S. Secretary of Education has sole authority to investigate

and remedy students’ and parents’ allegations of FERPA

violations. As the post-Suter courts recognize, “FERPA

provides expressly that the Secretary of Education is

responsible for enforcing the provisions and protections of

FERPA; Section 1983 does not create a private right of action

for damages where the federal statute provides an exclusive

administrative enforcement mechanism.” Norris, 797 F.

Supp. at 1465.

The court below failed to apply the analysis in Suter

because it believed that “any analytical additions

announced in Suter are ‘no longer to be followed’ in light of

post-Suter congressional action.” (Petitioners’ Appendix at

A-12.) The case the court cited for that proposition refers to

42 U.S.C. § 1320a-2, but that provision by its terms only

applies to “an action to enforce a provision of” Chapter 7,

Title 42 of the United States Code, which pertains to Social

Security. The cited provision therefore does not limit the

precedential weight of Suter in construing other statutes

codified elsewhere in the Code, such as FERPA, which is

court did not cite, permitted a Section 1983 action to enforce

FERPA, but failed to apply the controlling analysis of Suter.

15

codified in Title 20. The provision does indicate, however,

that Congress apparently believed that Suter narrowed the

“grounds for determining the availability of private

actions.” See id. Here, therefore, the court below should

have applied the more restrictive Suter standard. Had it

done so, it should have concluded that FERPA is not

enforceable under Section 1983.

Instead, the court relied primarily on the two-part

test articulated in the Court's prior decision in Wilder v.

Virginia Hospital Association, 496 U.S. 498 (1990). Under that

test, “[a] plaintiff alleging a violation of a federal statute will

be permitted to sue under § 1983 unless (1) ‘the statute

[does] not create enforceable rights, privileges, or

immunities within the meaning of § 1983,’ or (2) ‘Congress

has foreclosed such enforcement of the statute in the

enactment itself."” Id. at 508 (quoting Wright v. Roanoke Dev.

& Housing Auth., 479 U.S. 418, 423 (1987)). However, the

court of appeals failed to apply that test in light of Suter,

which added to a plaintiff's burden in such cases the

additional showing that Congress “unambiguously”

intended to confer private rights under the particular

provision of the statute at issue. See Arkansas Medical Soc.,

Inc. v. Reynolds, 6 F.3d 519, 525 (8th Cir. 1993); Stowell, 976

F.2d at 70. Applying the Wilder test in light of Suter clearly

reveals that the requisite expression of Congressional intent

is absent from the FERPA provision under which

Respondent proceeds.

The first part of the Wilder test requires the Court to

determine whether a federal statute gives rise to an

enforceable right under Section 1983. To answer that

question, the Court must ask: (1) whether the provision in

question was intended to benefit the plaintiff; (2) whether

the right protected by the statute is so “vague and

amorphous” that its enforcement would strain judicial

competence; and (3) whether the statute imposes a binding

16

obligation on the state. Wilder, 496 U.S. at 509. FERPA fails

on all three counts. First, it requires only that participating

school districts have a system-wide plan in place that does

not permit the unconsented release of education records or

personally identifiable information. 20 U.S.C. § 1232g(b). It

does not by its terms prohibit individual disclosures or

disclosures not pursuant to a policy or practice of the school

district or educational agency that receives federal funds.

Because the statute addresses only district-wide or

institution-wide policies and practices, it is not clearly

intended to ensure that “the needs of any particular person

have been satisfied.” Blessing v. Freestone, 520 U.S. 329, 343

(1997). Nor does it “bind the state” by putting school

districts on notice that they are responsible for providing

remedies to students for individual disclosure of education

records by individual teachers. See Suter, 503 U.S. at 357.

Finally, if FERPA creates enforceable individual rights,

those rights are necessarily “vague and amorphous”

because the statute does not specify what obligations

education institutions and agencies have to prevent

individual violations; it only conditions federal funding on

recipients’ not having certain policies or practices, such as

preventing students and parents access to their own

education records and revealing such records to

unauthorized persons without consent.

The second prong of the Wilder test requires the

Court to determine whether Congress has foreclosed private

enforcement of the statute in the enactment itself. Here,

Congress's explicit authorization of a funding remedy, with

enforcement vested exclusively in the Secretary of

Education, 20 U.S.C. § 1232g(f), (g), indicates that Congress

did not “unambiguously” impose on school districts the

added threat of private lawsuits to enforce individual

disclosure of education records. The regulatory

enforcement scheme authorized in § 1232g(g) of the statute

is detailed and comprehensive.

17

First, the statute provides that it is “[t]he Secretary”

of Education who “shall take appropriate actions to enforce

this section and to deal with violations of this section.” 20

U.S.C. § 1232g(f). Such “actions” may include

“terminat[ing] assistance * * * if the Secretary finds there has

been a failure to comply with this section,” although the

Secretary may only take that step if “he has determined that

compliance cannot be secured by voluntary means.” Id.

Further, the statute provides that “[t]he Secretary shall

establish or designate an office and review board within the

Department [of Education] for the purpose of investigating,

processing, reviewing, and adjudicating violations of

[FERPA] and complaints which may be filed concerning

alleged violations of [FERPA].” 20 U.S.C. § 1232g(g).

The Secretary's regulations established the FPCO

withii. the U.S. Department of Education and charged it

with investigating, processing and reviewing complaints

and violations under FERPA. 34 C.F.R. § 99.60. In addition,

the Secretary designated the FPCO to provide technical

assistance to ensure compliance with FERPA. Id. Finally,

the Secretary designated the Office of Administrative Law

Judges to act as a Review Board under FERPA. Id.

Further, FERPA and its regulations allow parents

and eligible students to file written complaints with the

FPCO regarding alleged violations under FERPA. 20 U.S.C.

§ 1232g(g); 34 C.F.R. § 99.63. The regulations specify the

available complaint procedure and set forth the notice to be

provided to the educational agency or institution and the

complainant. See 34 C.F.R. §§ 99.64, 99.65. In addition, the

regulations set forth the FPCO’s responsibilities in the

enforcement process, including that the FPCO provide

written notice of its findings upon investigating a complaint

and a statement of the specific steps that the agency or

institution must take to comply with the FPCO’s finding of

non-compliance under FERPA. See 34 C.F.R. § 99.66.

18

Finally, the regulations set forth how the Secretary is to

enforce decisions regarding complaints. See 34 C.F.R.

§ 99.67.

This comprehensive enforcement system authorized

by FERPA demonstrates congressional intent to vest sole

responsibility to remedy violations of FERPA in federal

authorities. See Norris, 797 F. Supp. at 1465.

The same concerns that made the Suter Court

reluctant to construe Spending Power legislation as

conferring privately enforceable individual rights apply

with at least equal force to the Spending Power statute at

issue here. Legislation enacted under the Spending Clause

is much in the nature of a contract, in that States agree to

comply with federally imposed conditions in exchange for

federal funds. Pennhurst State Sch. & Hosp., 451 U.S. at 17.

Plaintiffs in cases like this one are not parties to the contract.

Blessing, 520 U.S. at 349 (Scalia, J., concurring). Such

plaintiffs are at most merely third-party beneficiaries. As

such, they were not entitled, under the law at the time

Section 1983 was enacted, to sue upon the contract. Id.

(citing 1 W. Story, A Treatise on the Law of Contracts 549-550

(4 ed. 1856)). Here, accordingly, Respondent has no right

of action under Section 1983 because her ability to compel

the school district to make good on its promise to the

Federal government was not a “righ(|t] * * * secured by the

*** laws” under Section 1983.

For these reasons, Respondent failed to state a cause

of action by invoking Section 1983 to remedy the alleged

FERPA violation.

Ill. SECTION 1983 HAS NO APPLICATION IN

THESE CIRCUMSTANCES.

Even if FERPA were enforceable in a Section 1983

action, plaintiffs below failed to meet the basic requirements

19

for overcoming the Owasso Independent School District's CONCLUSION

governmental immunity from such a suit. Because the

school district was immmune - as were the individual

defendants, which the court of appeals correctly held — the

case should have been dismissed on those grounds.

Amici respectfully submit that the decision below is

unsound as a matter of law and dangerously adverse to the

interests of education at all levels in the United States.

To establish a valid Section 1983 claim against a local Respectfully submitted,

governmental body, a plaintiff must prove that official

policy or custom is responsible for the deprivation of the

plaintiff's rights. See Monell v. Dep't of Social Servs., 436 U.S.

658, 690-91 (1978). It is not sufficient to prove that

employees of the defendant agency violated a federal right.

Id. Accordingly, the practice of peer-grading is not

actionable unless it was done pursuant to an official policy

or custom of the Owasso School Board.

Yet the court of appeals in this case did not rely on

any evidence that the Owasso Independent School District,

or its school board, had a formal policy authorizing or

approving peer-grading. Nor did the court find any

evidence of a school board “policy or practice” of denying

parents or students access to educational records or

releasing educational records without consent. In the

absence of such an official policy, the school district was

immune from a Section 1983 suit predicated on the actions

of its employees. Id.

Claims such as those asserted in this case inflict “a

cost not only to the defendant officials, but to society as a

whole. These social costs include the expenses of litigation,

the diversion of official energy from pressing public issues,

and the deterrence of able citizens from acceptance of public

office.” Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982).

Nowhere is the distraction and expense of litigation more

costly to society than in the field of education.

*Julie Underwood, General Counsel

Julie E. Lewis

National School Boards Association

1680 Duke Street

Alexandria, VA 22314

(703) 838-6722

*Counsel of record

Sheldon E. Steinbach

Vice President and General Counsel]

American Councii on Education

One Dupont Circle, Suite 800

Washington, DC 20036

(202) 939-9355

Martin Michaelson

Alexander E. Dreier

Hogan & Hartson L.L.P.

555 Thirteenth Street, N.W.

Washington, DC 20004-1109

(202) 637-5600

Counsel for Amici Curiae

21