Opposition Brief — Gonzaga Univ. v. Doe

< DEC 19 2000

No. 01-679

IN THE

Supreme Court of the United States

GONZAGA UNIVERSITY and ROBERTA S. LEAGUE,

Petitioners,

JOHN DOE,

Respondent.

On PETITION FOR A Writ oF CERTIORARI

TO THE WASHINGTON SUPREME COURT

BRIEF IN OPPOSITION

LAUREL H. Sippowa\

Counsel of Record

Georce M. AHREND

Davip J. GROESBECK

RANDALL & Danskin, PS.

Attorneys for Respondent

601 W. Riverside Ave., Ste. 1500

Spokane, WA 99201

(509) 747-2052

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i

TABLE OF CONTENTS

Table of Contents

Table of Cited Authorities

Statutory Provisions Involved

Introduction

Statement of the Case

Reasons for Denying the Writ

I.

The Joint Participation Of Gonzaga And The

Office Of The Superintendent Of Public

Instruction In The FERPA Violation And

Gonzaga’s Defense Of The Offending

Disclosures As State-Directed Brings The

Circumstances Of This Case Squarely Within

This Court’s “State Action” Jurisprudence.

Virtually No Conflict Exists Within The

Federal Courts As To FERPA’s Creation

ee ce oe eke ew eas

. The Overwhelming Majority Of Federal

Courts Have Correctly Decided The Issue Of

Whether FERPA Creates Rights In Students

And Their Parents Under All Of The Court’s

Precedents, Including Suter v. Artist M. And

PPD OUI. he beet sccessceces

Conclusion

Appendix — Relevant Statutes And Regulations ..

il

TABLE OF CITED AUTHORITIES

Page

Cases:

Achman v. Chisago Lakes Indep. Sch. Dist. No. 2144,

45 F. Supp.2d 664 (D. Minn. 1999) ........... 16

Adams v. Lewis University, 1999 US Dist. LEXIS

et rrr ee 16

Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970)

WITTETTITITTiT TTT 11

Altschuler v. University of Pennsylvania Law School,

1997 WL 129394 (SDNY 1997) .............. 16

Belanger v. Nashua Sch. Dist., 856 F. Supp. 40

GARR CUD ccc ntcccssdeseenss eee 16

Blessing v. Freestone, 520 U.S. 329, 117 S. Ct. 1353,

B57 B.. BG. SE SED CIGD hdncacccecescecuns passim

Brentwood Academy v. Tennessee Secondary School

Athletic Association, et al., 531 U.S. 288,

121 S. €t. 924, 148 L. Ed. 2d 807 (2001) ..... 12, 14

Brouillet v. Cowles Pub. Co., 114 Wash. 2d 788,

oe Fr re ee 5

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

SUED occesvecocesusececcusae 16

Cited Authorities

Cort v. Ash, 422 U.S. 66 (1975) ... 2... 6c eee eens 17

Cullens v. Bemis, No. 91-73980, 1992 WL 337688

EPS PPT TST TITITIL TLE TET 16

Doe v. Knox County Bd. Of Ed., 918 F.Supp.

BD GR BOOP cc ccc ccccccccccccccccees 16

Falvo ex rel. Pletan v. Owasso Indep. Sch. Dist. No.

J-011, 233 F.3d 1203 (10th Cir. 2000), cert.

granted, 150 L. Ed. 2d 715, 121 S. Ct. 2547

DP CPEEU SGU GheEGSdcbocbocecvccccccceces 16

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

DEE ED ccodcecccccccccccccocccccces 16

Flagg Bros., Inc. v. Brooks, 98 S. Ct. 1729, 436 U.S.

DT BenGkGEuscocccecoesdccccccccccss ll

Francois v. University of District of Columbia,

788 F. Supp. 31 (D.D.C. 1992), aff'd, 1993 US

App. LEXIS 5051 (App. D.C.) ..... 6.6... 605. 16

Gundlach v. Reinstein, 924 F. Supp. 684

GENO cc ccccccccccccccscces 15, 16, 17, 18

Hartfield v. East Grand Rapids Pub. Sch.,

960 F. Supp. 1259 (W.D. Mich. 1997) ......... 16

iv

Cited Authorities

Page

Joseph M. ex rel Kimberly F. v. Southeast Deco

School District, 2001 WL 283154 (E.D. Pa.

DEEED covedccececescecdessceqcoedéeanteuns Tree

Krebs v. Rutgers, 797 F. Supp. 1246 (D.N.J. 1992)

TITTITITIVT Tritt eee ee 16

Lugar v. Edmondson Oil Co., 457 U.S. 922,

73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982) ...... 12, 14

Maynard v. Greater Hoyt Sch. Dist. No. 61-4,

876 F. Supp. 1104 (D.S.D. 1995) ............. 16

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

714 N.E.2d 233 (Ind. App. 1999) ............. 19

National Collegiate Athletic Ass'n v. Tarkanian,

488 U.S. 179, 109 S. Ct. 454, 102 L. Ed. 2d 469

Goma o0ecendéeecdekancedeadacseckssiann 12

Norris v. Board of Educ. of Greenwood Community

School Corp., 797 F. Supp. 1452 (S.D. Ind.

SUED 00004eséueinceeeesedeadebeneonness 18, 19

Norwood v. Slammons, 788 F. Supp. 1020 (W.D. Ark.

SEUED ceckccuchueeqacecuanueecsasuuamenie 16

Sean R. v. Board of Educ., 1992 U.S. Dist. LEXIS

SOV SP G SED. cacnncccodcenecenes 16

Vv

Cited Authorities

Page

Sirohi v. Trustees of Columbia University, 1996 US

Dist. LEXIS 1737 (SDNY 1996) ............. 16

Smith v. Duquesne University, 612 F. Supp. 72

CRE, BO, TEED DP ovccccccccccccscccccccccte 17, 18

Suter v. Artist M., 503 U.S. 347 (1992) ...........

seca esbeccdddveoeeceseseses 19, 20, 21, 22, 23, 24

Tarka v. Cunningham, 917 F.2d 890 (Sth Cir. 1990)

LbbbicndecdéseseGbesvocundebédeebendeess 16

United States v. The Miami University, 91 F. Supp.2d

RETR GED GRD BOOED cc cccccccccccsccceses 16

Warner v. St.Bernard Parish School Bd., 1998

WL 50016, 1998 US Dist. LEXIS 1360 (E.D.La.

SEED dcucacucscecdéndccectoscuccesecséues 16

Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498 .

PPPPTTTTTTiTT tte passim

Wright v. Roanoke Redevelopment & Housing Auth.,

GIO GD. GB CISD oc cccccccccccccccccces: passim

vi

‘ Cited Authorities

United States Constitution:

Rs ai8icsiticdccacss.

UE OI oikvincccdicciketswcccces

42 U.S.C. § 1232g(b)(1) .. 2.2... ee cece cece.

42 U.S.C. § 1232g(b)(1(B) .. 2.22.00. e eee ee.

42 U.S.C. § 1232g(b)(IMF) .. 2.2... cece ee eee.

42 U.S.C. § 1232g(b)(2) .... 2.2... cece cece eee.

42 U.S.C. § 1232g(b)(3) .... 2... cece cece eee eee

WUE OI viv sideiiieccdivsdsei

PERREOIED.. stickied

WOE SB ii iis ei Rai ce

I cn ccdsonssicvecsesiccesss:

42 U.S.C. § 1232g(4)(A) ... 0. ee ec cce cc eee.

Page

vil

Cited Authorities

Page

4B UBC. 6 IZBATAMA) ...occcccccccccccccccces 23

42 U.S.C. § 1232g(4)(B) .... 6... 2. eee eee ee eee 24

42 CBS. 6 IGE occccccccccccceccsccccccces passim

Washington Administrative Code, 180-75-082(3) ... 3

Washington Administrative Code, 180-79A ...... 3

Washington Administrative Code, 180-86 ........ 3

Be, Rae, GROSSES on. cc cccccccccdccccccccvccs 3

Other Authorities:

SPER. ORD cccccccccccsecvccsccccscccese |

SOG, BOIS oc ccccccccccscccccesccccccces 25

SOS. OGG .cccccccsccccccccsccccccccscs 25

SOCPR. OSDIR) .ncccccccccccccccccsecees 25

DECIR. GDVIGRD oc ccccccccccccccccccccess 25

DOCH GOES cc cc cccccccccccccccccecccess 25

SOG OGRE cccccccccccccccccccccseceees 25

34 C.F.R. § 99.67(a)(1)-(3) ... 26 6 ee eee 23

l

STATUTORY PROVISIONS INVOLVED

Relevant portions of the Family Educational Rights and

Privacy Act, 20 U.S.C. § 1232g, and regulations promulgated

thereunder by the Secretary of the Department of Education,

99 C.F.R. pt. 99, are set forth in the appendix.

INTRODUCTION

This case presents the unusual situation of a disclosure

practice between a private college and a state agency under

which sensitive education record information about students

was casually and routinely shared, without the students’

consent and outside of the disclosures permitted or required

by state regulation. The disclosure practice violated the

Family Educational Rights and Privacy Act, 20 U.S.C.

§ 1232g (FERPA), to which both the private college and the

state agency were subject. The suit below — which originally

did not include a claim under 42 U.S.C. § 1983, but only

state law claims — was brought by a student injured when

false allegations that he had stalked and raped another student

passed, as a result of this disclosure practice, from the privacy

of his education records into the “public record” environment

of the state agency. A claim under § 1983 was added when

the private college defended on the basis that its offending

disclosures were required by state law and were in response

to instructions from the state agency, and that its employees

were acting for the state in making the disclosures.

The Court’s review is not warranted. The conflict which

Petitioner suggests exists with the Third Circuit Court of

Appeals is not implicated by this case, which did not involve

an isolated education record disclosure but rather (as pointed

out by the Washington Supreme Court) the type of “policy

2

or practice” of offending disclosures which is unambiguously

forbidden by FERPA. And although private colleges do not

often act “under color of state law,” the private college’s

defense that its offending disclosure practice was requested

and required by state agents brings the circumstances of this

case squarely within the Court’s state action jurisprudence.

Finally, because the case presents unusual facts, including

the convergence of a private defendant and no allegation of

a Constitutional deprivation, a decision in this case would

have limited application.

STATEMENT OF THE CASE

As the Washington Supreme Court acknowledged, the

witnesses presented widely divergent accounts of the facts

in this case. Gonzaga’s Petition persists in citing only the

inconsistent and discredited testimony of its own employees.

Despite consistent testimony from the witnesses having

personal knowledge of the relationship between John Doe

and Jane Doe that no stalking or rape ever occurred; despite

the jury’s determination that John Doe was defamed and

substantially damaged; and despite the jury’s finding of

conduct on Gonzaga’s part sufficiently blameworthy to

support an award of punitive damages, Gonzaga persists in

its Petition in referring to John Doe as an “alleged assailant.”

The jury determined by clear and convincing evidence that

Gonzaga’s reports of sexual misconduct on John Doe’s part

were false and that they were made with actual malice.

Nor, as the Petition states, was Gonzaga confronted with

“another student’s accusation that [John Doe] sexually

assaulted her.” Gonzaga’s investigation was prompted

not by a complaint by any victim, but by an interloper,

Julia Lynch. Gonzaga personnel admitted knowing from the

3

outset of the investigation that Jane Doe denied she had been

raped when Lynch spoke to her in December 1992

(Petitioner’s App. 32a) and that Jane was angry to learn in

October 1993 that Lynch had brought the subject up again;

again refusing to make a complaint. (Petitioner’s App. 4a.)

As observed by the Washington Supreme Court, by the time

the case went to trial, Jane Doe had testified consistently in

two depositions that she had not been sexually assaulted nor

had she accused John Doe of sexual assault. (Petitioner’s

App. 7a.)

Matters germane to John Doe’s § 1983 claim are not fully

described by the Petition. On March 4, 1994, Doe, a recent

graduate of Gonzaga’s teacher education program, who was

in the process of completing his application for teacher

certification, made his final payment of fees and tuition to

Gonzaga. That same day, he received a call from the

office of the Dean of the School of Education, telling him

that he needed to come in to see Dean Corrinne McGuigan.

When Doe arrived at McGuigan’s office, he was escorted to

a private room. The dean handed him a letter without

comment and then left him to read it. The letter stated that

because of allegations of sexual assault against him, the

source of which was not identified, the dean would not give

him the moral character affidavit required to support his

certification to teach.

The dean’s moral character affidavit required at the time

by § 180- ~-082(3) of the Washington Administrative Code

(WAC)! was one of a number of documents that teacher

education graduates applying to teach in Washington schools

1. As noted by Petitioners, WAC 180-75-082(3) (1989) was

repealed by St. Reg. 97-04-088 (Mar. 8, 1997) and reenacted as part

of WAC 180-79A and 180-86.

4

were required to submit to the Office of the Superintendent

of Public Instruction (OSPI). The dean was required to

prepare the affidavit by conferring with several faculty

members who personally knew the student applicant and then

to attest, if appropriate, that neither the faculty members nor

the dean have “knowledge that the applicant has been

convicted of any crime or has a history of any serious

behavioral problems.” Other documents the applicant was

required to obtain and file to demonstrate his character and

fitness included, inter alia, the applicant’s own moral

character affidavit, a questionnaire including character

references, and a fingerprint check.

Through the student-controlled application process

prescribed by the regulations, Gonzaga enjoyed the

opportunity, consistent with the requirements of FERPA,

to provide notice to OSPI of moral character concerns about

teacher education graduates seeking state certification.’

The formal regulatory process insured that OSPI would get

the needed information, but through a procedure in which a

student who received a qualified affidavit (an affidavit in

which the dean identified knowledge of criminal convictions

or, a history of serious behavioral problems) could seek to

correct any error in the dean’s information. And since it was

the student’s obligation to procure and provide the affidavit,

a student would have the ultimate option, if the dean’s

affidavit information would be embarrassing or fatal to the

application, of not applying for certification at all. That this

was an important option for applicants had been demonstrated

2. Disclosure of any education record information would be

permitted under FERPA, where it was the student who was required

to procure the affidavit and submit it, or authorize it to be submitted,

to OSPI. As contemplated by the regulations, consent by the student

to disclosure would be an inherent part of the process.

5

by the Washington Supreme Court’s decision in Brouillet v.

Cowles Pub. Co., 114 Wash. 2d 788, 791 P.2d 526 (1990),

which held that reports to OSPI of concerns of sexual

misconduct on the part of teachers were public records subject

to public disclosure. Indeed, the Supreme Court had required

disclosure in Brouillet of reports of sexual misconduct

received by OSPI even where the accused teacher had

voluntarily resigned based on administrative guarantees of

confidentiality. 114 Wash. 2d at 794.

Upon reading Dean McGuigan’s letter, Doe demanded

to know who was making allegations of sexual assault against

him. McGuigan would not say. Doe immediately walked to

the office of the college’s Corporation Counsel and demanded

to know from him who was making the allegations.

Corporation Counsel would not say. Doe gave explicit written

instruction to Gonzaga following the meeting not to forward

any affidavit to OSPI without his review and approval. Trial

Exhibit 217. When Doe and his parents asked about his rights

to appeal the determination, they were told there were none.

Doe then made a demand under FERPA for Gonzaga’s

records pertaining to the dean’s letter and the claimed

allegations of sexual assault. Trial Exhibit 4. It was through

education records released to him in response to his FERPA

request that he learned that an “investigation” had been going

on since the prior October. He learned that the investigation

was prompted when Roberta League, the school’s

certification officer, overheard a conversation in which Julia

Lynch expressed dissatisfaction that the school declined to

investigate Lynch’s concern, one year before, that Jane Doe

had complained of sexual pain resulting from intercourse with

John Doe. (Petitioner’s App. 2a.) League recognized John

Doe’s name as that of a teacher education student.

6

Through Doe’s FERPA request, he learned that the

ensuing investigation had been incompetently conducted’ and

resulted in the generation of a number of records reflecting

shockingly false allegations about his and Jane’s relationship,

including allegations of multiple violent rapes and sodomy,

including with foreign objects. Trial Exhibit 6.

Doe also learned at about the same time that his right

under state certification regulations to control his own

application and not to have damaging information forwarded

to OSPI without his consent, and his right under FERPA to

seek correction of Gonzaga’s records were in each case moot,

since League and others had already “informally” shared

personally-identifiable information about the allegations with

OSPI personnel. Doe’s instruction to Gonzaga not to pass

along the allegations had been pointless. The allegations had

been passed along in violation of FERPA months earlier, and

were already reflected in OSPI’s files. Trial Exhibit 34.

Doe sued Gonzaga University and Jane Doe for

defamation and Gonzaga for invasion of privacy, breach of

contract and negligence. Gonzaga responded by defending

its conduct on grounds that in providing information

“informally” to OSPI, it had been abiding by instructions

from the state. Gonzaga affirmatively defended against Doe’s

claims by contending that “Gonzaga University and its agents

were acting pursuant to statutory authority and/or public

policy and are absolutely immune from any and all claims

herein made by plaintiff.” (Answer, Affirmative Defenses,

Counterclaim & Third Party Complaint, p. 7, CP 30.) Ina

3. The jury found Gonzaga liable for negligence and awarded

damages for that claim. The Washington Supreme Court reversed

that part of the award, holding that Gonzaga had had no “duty” to

conduct the investigation in the first place. Petitioner’s App. at 16a.

7

counterclaim and third party complaint for declaratory relief,

Gonzaga asked the court to determine that its employees’

passing along this damaging information to OSPI was

required by its partnership with OSPI in the teacher

certification process:

1.6 Defendant’s actions were mandated by the

laws and regulations of the State of

Washington. Defendant seeks declaratory

judgment from this Court finding that the

University is obligated by law to report the

information it received pertaining to the

incidents involving John Doe and Jane Doe

to the Office of the Superintendent of Public

Instruction in order that the Office of the

Superintendent of Public Instruction could

determine whether further investigation of

John Doe’s application for teaching

certificate was necessary. .. .

1.8 In the course of performing its duty to report

knowledge and information of good moral

character and personal fitness of plaintiff,

defendant Gonzaga University contacted the

OSPI to ascertain whether the allegations by

Jane Doe against plaintiff were such that they

needed to be reported to the OSPI. The OSPI

confirmed that defendant was required to

report allegations of this type to the OSPI and

directed defendant to report the information.

1.9 Since Gonzaga University was acting in

accordance with instructions from the OSPI

and OSPI administrative procedures when it

8

reported the information pertaining to

plaintiff, the administrative agency is a

proper and necessary party to this litigation

which involves interpretation and

enforcement of statutes and regulations

which the agency is required to implement.

1.10 Gonzaga University justifiably relied upon

and deferred to the direction given by the

authorized agents of the OSPI.

(Answer, Affirmative Defenses, Counterclaim & Third Party

Complaint, pp. 7-9, CP 30-32.) Gonzaga then filed a motion

for summary judgment dismissal of the defamation claims,

contending that its actions were “absolutely privileged,” and

in support filed the affidavit of Roberta League. League

elaborated on the working relationship with and direction

taken from the state:

Upon request, from time to time OSPI provides

guidance and advice to the various approved

teacher education programs in regard to issues

relating to student teacher preparation and

certification of prospective teachers. In our

meetings and discussions with OSPI, concern for

assuring the fitness and suitability of student

teachers and applicants for teacher certification

9

University School of Education who, respectively,

are involved in teacher certification matters. After

I began working as a Certification Specialist ai

Gonzaga University, during training which |

received from OSPI, I was advised that if

information came to my attention regarding

behavioral problems which might be of concern

to me relative to a student’s fitness for teaching

and certification, such should be brought to

OSPI’s attention for purposes of review and

possible investigation by OSPI.

Accordingly, from time to time | have contacted

and consulted with Adelle Nore in the Office of

Professional Practices (OPP) of OSPI to gain

advice and guidance regarding behavioral or other

issues which I thought might be of concern and

which might be pertinent to_the WAC 180-75-

082(3) affidavit which the Dean of our School of

Education would be called upon to provide for an

applicant. It was in that context that I contacted

OSPI in regard to matters which had come to my

attention relating to John Doe (the plaintiff in

Cause No. 94-203120-6 pending in Spokane

County Superior Court). In doing so, I acted in

good faith in carrying out what I considered to be

my responsibility owing to Gonzaga University,

are periodically discussed. In those discussions, to OSPI and to the public.

those concerns are recognized and acknowledged

to be shared, common concerns of both OSPI and Trial Exhibit 45. It was following these averments by

our School of Education in carrying out our Gonzaga that its FERPA violations had been state-directed

respective roles as to student preparation and that John Doe amended his complaint to include a claim under

certification. A close working relationship exists § 1983.

between OSPI and the personnel in the Gonzaga

10

That Gonzaga and OSP' were both complicit in

the FERPA violation was borne out by evidence at trial.

As summarized by the Washington Supreme Court, the

testimony of OSPI investigator Adelle Nore and others

established that state personnel and Gonzaga had settled into

an extra-regulatory, unconsented-to information-sharing

process, violative of FERPA, whereby Gonzaga personnel

would give Nore a heads up on prospective applicants who

might present “cause for concern.” Because “cause for

concern” was the standard, the information-sharing practice

was self-selective for information damaging to students:

Gonzaga’s alleged violation of FERPA rights grew

out of a disclosure practice developed by Gonzaga

personnel and OSPI. The jury heard testimony that

Gonzaga personnel routinely called OSPI, before

a student’s application for certification was

submitted, to talk about students as to whom they

had “cause for concern” and to obtain advice. Nore

testified that the calls about John Doe that OSPI

received from League and others were typical of

conversations she had with Gonzaga personnel.

In preapplication conversations, Nore would often

be told the names of the student candidates.

Substantial evidence supports a determination that

Gonzaga had a “policy or practice” of disclosing

personally identifiable information contained in

education records — in violation of FERPA.

(Petitioner’s App. at 19a.)

Based on evidence of Gonzaga’s policy and practice of

passing along damaging personally-identifiable education

record information about teacher education students — and

11

in John Doe’s case, spurious allegations of rape and stalking,

which were passed into the public records environment of a

state agency — the jury awarded Doe $150,000 in actual

damages. The jury was properly instructed on the standards

for awarding punitive damages and was presented with

evidence as to the tens of millions of dollars in federal funds

received by Gonzaga annually in exchange for its

undertakings to protect student privacy rights.‘ The jury

unanimously awarded Doe $300,000 in punitive damages.

REASONS FOR DENYING THE WRIT

I. THE JOINT PARTICIPATION OF GONZAGA AND

THE OFFICE OF THE SUPERINTENDENT OF

PUBLIC INSTRUCTION IN THE FERPA

VIOLATION AND GONZAGA’S DEFENSE OF

THE OFFENDING DISCLOSURES AS STATE-

DIRECTED BRINGS THE CIRCUMSTANCES OF

THIS CASE SQUARELY WITHIN THIS COURT’S

“STATE ACTION” JURISPRUDENCE.

A claim under § 1983 embodies at least two elements.

The plaintiff is first bound to show that they have been

deprived of a right “secured by the Constitution and laws”

of the United States. They must secondly show that the

defendant deprived them of this right acting “under color of

state law.” The Court has held it clear that these two elements

denote two separate areas of inquiry. Adickes v. S. H. Kress

& Co., 398 U.S. 144, 150 (1970); Flagg Bros., Inc. v. Brooks,

98 S. Ct. 1729, 1733, 436 U.S. 149 (1978).

4. Evidence showed that in the four academic years preceding

the time of trial, Gonzaga’s receipt of federal funds had ranged

between $23 million and $30 million each year. Trial Exhibit 54.

esas

12

Where it is alleged that the right deprived was a right

secured by the Constitution, answering the first, “deprivation”

element ordinarily advances a determination whether the

defendant was a “state action.” With limited exceptions, there

can be no Constitutional deprivation absent “state action.”

Thus, in a number of the cases cited by Petitioner and which

deal with alleged deprivations of due process, one can not

determine whether there was a deprivation of due process

without determining the issue of state action. If there is no

state action, then no process is Constitutionally due.

In Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982),

the Court discussed the relationship between the “state

action” requirement of the Fourteenth Amendment and the

“color of state law” requirement of § 1983, and concluded

that conduct that constitutes “state action” for Fourteenth

Amendment purposes also constitutes action “under color

of state law” for purposes of § 1983. It noted, however, that

the converse was not necessarily true, n.18, 457 U.S. at 935.

Although the Court continues to note this distinction between

Constitutional cases and cases involving deprivations of

rights under federal laws, there is a tendency, where the

presence of “state action” will satisfy the “color of state law”

requirement, to use the terms and standards interchangeably.

See National Collegiate Athletic Ass'n v. Tarkanian, 488 U.S.

179 (1988), Brentwood Academy v. Tennessee Secondary

School Athletic Association, et al., 531 U.S. 288 n.2 (2001).

In Constitutional cases, the second, “color of state law”

element is effectively answered by answering the first,

“deprivation” element.

Where, as here, the deprivation alleged is one of rights

under federal laws having application to public and private

13

actors, however, the deprivation element can be answered

first and independently. Thus, in this case, Gonzaga could

be found to have deprived John Doe of a right under FERPA

without first asking whether Gonzaga was a state actor,

because FERPA is equally applicable to private institutions

accepting federal funding. There need be no general “state

action” evaluation into the background or purpose for

Gonzaga’s and OSPI’s dealings. Having found the very

specific deprivation of John Doe’s rights under FERPA —

Gonzaga’s passing along allegations of rape and stalking as

a part of its extra-regulatory, unconsented-to information-

sharing practice with OSPI — one turns to the second element

of whether that information-sharing took place “under color

of state law.”

Petitioner’s argument about the “color of state law” issue

fails to consider the specific deprivation that requires review

for its state action incidents. Petitioner treats the case as if

the deprivation being complained about were that Gonzaga

“made a recommendation to the state,” (Pet. for Cert., p. 17),

or that it “complied with a state law requirement that a

university official submit moral character affidavits to OSPI,”

id., or that it merely “suppl[ied] information that pertains to

a government decision,” (Pet. for Cert., p. 18.)

But the deprivation of FERPA rights was the extra-

regulatory unconsented-to conversations themselves, and the

passing-along of damaging information from private

education records to the public records of a state agency.

The state was a party to those conversations. The state

encouraged those conversations. Indeed, according to the

League Affidavit, notwithstanding that the state was likewise

subject to FERPA, state agents “trained” Gonzaga personnel

that such conversations could and should take place. And

14

both League and Dr. Janet Burcalow, Gonzaga’s dean’s

designee, having had the state training, testified that they

viewed themselves as acting for the state in their

communications with OSPI about certification. (Petitioner’s

App., at 22a.)

This Court has described its decisions in the state action

area as seeking to assure that constitutional standards are

invoked “when it can be said that the State is responsible for

the specific conduct of which the plaintiff complains,” such

that “the deed of an ostensibly private organization or

individual is to be treated sometimes as if a State had caused

it to be performed.” Brentwood Academy v. Tennessee

Secondary Sch. Ath. Ass'n, et al., 531 U.S. 288, 295 (2001).

The Court has consistently held that the issue of state action

is a “necessarily fact-bound inquiry.” /d., 531 U.S. at 298,

citing Lugar, 457 U.S. at 939. The Court’s recent decision in

Brentwood Academy surveyed a “host of facts” that prior

decisions established can bear on the fairness of attributing

private action to the state:

We have, for example, held that a challenged

activity may be state action when it results from

the State’s exercise of “coercive power,” Blum,

457 U.S. at 1004, when the State provides

“significant encouragement, either overt or

covert,” ibid. or when a private actor operates as

a “willful participant in joint activity with the State

or its agents,” Lugar, supra, at 94] (internal

quotation marks omitted). We have treated a

nominally private entity as a state actor when

it is controlled by an “agency of the State,”

Pennsylvania v. Board of Directors of City Trusts

|

15

of Philadelphia, 353 U.S. 230, 231, 1 L. Ed. 2d

792, 77 S. Ct. 806 (1957) (per curiam), when it

has been delegated a public function by the State,

cf., e.g., West v. Atkins, supra, at 56; Edmonson

v. Leesville Concrete Co., 500 U.S. 614, 627-628,

114 L. Ed. 2d 660, 111 S. Ct. 2077 (1991), when

it is “entwined with governmental policies” or

when government is “entwined in [its]

management or control,” Evans v. Newton, 382

U.S. 296, 299, 301, 15 L. Ed. 2d 373, 86S. Ct.

486 (1966).

The Washington Supreme Court correctly held that given

OSPI’s joint participation in, and encouragement of, the

FERPA violation, “color of state law” was properly an issue

of fact for the jury. (Petitioner’s App., at 22a.)

Il. VIRTUALLY NO CONFLICT EXISTS WITHIN

THE FEDERAL COURTS AS TO FERPA’S

CREATION OF FEDERAL RIGHTS.

The Petition greatly overstates the extent of conflict in

the case law as to whether FERPA violations are actionable

deprivations of rights under § 1983. Contrary to the Petition,

the Washington Supreme Court’s decision does not conflict

with the Third Circuit Court of Appeals’ summary affirmance

at 114 F.3d 1172 (3d Cir. 1997) of Gundlach v. Reinstein,

924 F. Supp. 684 (E.D.Pa.1996). Both decisions acknowledge

— Washingjon’s explicitly, and the Eastern District of

Pennsylvania’s implicitly — that FERPA creates rights in

students and their parents to be free from a school’s “policy

or practice” of violative disclosures. And at the present time,

there is no conflict among the Courts of Appeals;

all reviewing the issue have held that TERPA does create

16

rights that can be redressed in actions brought under § 1983.

Fay v. South Colonie Cent. Sch. Dist., 802 F.2d 21, 33

(2d Cir. 1986) and Brown v. City of Oneonta, 106 F.3d 1125,

1131 (2d Cir. 1997); Tarka v. Cunningham, 917 F.2d 890,

891 (5th Cir. 1990), Falvo ex rel. Pletan v. Owasso Indep.

Sch. Dist. No. I-011, 233 F.3d 1203 (10th Cir. 2000), cert.

granted, 150 L. Ed. 2d 715, 121 S. Ct. 2547 (2001). Anumber

of district courts have reached the same conclusion.°

In Gundlach, the district court did not hold that no

plaintiff could seek redress for a FERPA violation under

§ 1983, but only that “Mr. Gundlach cannot seek redress

pursuant to a FERPA-based § 1983 claim under the facts

alleged in support of the proposed claim.” 924 F. Supp. at

5. The following decisions hold that FERPA creates rights

actionable under 42 U.S.C. § 1983: Belanger v. Nashua Sch. Dist.,

856 F. Supp. 40, 47-48 (D.N.H. 1994), Sean R. v. Board of Educ.,

1992 U.S. Dist. LEXIS 11713 (D.C.Conn. 1992), Altschuler v.

University of Pennsylvania Law School, 1997 WL 129394 (SDNY

1997), Sirohi v. Trustees of Columbia University, 1996 US Dist.

LEXIS 1737 (SDNY 1996), Krebs v. Rutgers, 797 F. Supp. 1246

(D.N.J. 1992), Warner v. St.Bernard Parish School Bd., 1998

WL 50016, 1998 US Dist. LEXIS 1360 (E.D.La. 1998), Doe v. Knox

County Bd. Of Ed., 918 F.Supp. 181, 184 (E.D.Ky. 1996), citing

unpublished Sixth Circuit decision, Cullens v. Bemis, No. 91-73980,

1992 WL 337688 (1992), Hartfield v. East Grand Rapids Pub. Sch.,

960 F. Supp. 1259 (W.D. Mich. 1997), Adams v. Lewis University,

1999 US Dist. LEXIS 3413 (N.D.IIl. 1999), Maynard v. Greater Hoyt

Sch. Dist. No. 61-4, 876 F. Supp. 1104, 1107 (D.S.D. 1995), Achman

v. Chisago Lakes Indep. Sch. Dist. No. 2144, 45 F. Supp.2d 664, 673

(D. Minn. 1999), Francois v. University of District of Columbia,

788 F. Supp. 31 (D.D.C. 1992), aff'd, 1993 US App. LEXIS 5051

(App. D.C.), United States v. The Miami University, 91 F. Supp.2d

1132 (S.D. Ohio 2000), Norwood v. Slammons, 788 F. Supp. 1020,

1026 (W.D. Ark. 1991).

17

692 (emphasis added). Indeed, the district court in Gundlach

held that a careful reading of § 1232g(b) reveals

“a Congressional intention to impose a mandatory obligation

on participating institutions, such that it may not have in

place a ‘policy or practice of permitting the release of

education records.’” What the court viewed as actionable,

then, was a release of such record information as a matter of

policy or practice. As noted by the court, however, “since

Mr. Gundlach has failed to allege that Defendants maintain

a policy ... but instead bases his claim on one instance of

alleged noncompliance, we would conclude that the Congress

has not unambiguously expressed the ‘right’ he seeks to

enforce.” Jd. at 690 n.7. The unreported decision in Joseph

M. ex rel Kimberly F. v. Southeast Deco School District, 2001

WL 283154 (E.D. Pa. 2001) dealt only with a plaintiff’s

request for litigation sanctions based on the defendant’s filing

of unredacted education records with the court, in violation

of both FERPA and an interim order requiring filing under

seal. The court’s denial of the sanctions, citing Gundlach,

2001 WL 283154 at *10, is fully consistent with the isolated

nature of the disclosure and the absence of any policy or

practice.

Smith v. Duquesne University, 612 F. Supp. 72 (W.D.

Pa. 1985 ), also cited by Petitioner as conflicting, was not a

§ 1983 case, but addressed whether FERPA created an

implied right of action; an issue decided with reference to

Cort v. Ash, 422 U.S. 66, 78 (1975). Smith likewise held, in

addressing the purpose of the statute, that FERPA was

adopted to address systematic, “not individual,” violations

of students’ privacy and confidentiality rights. 612 F. Supp.

at 79. Respondent knows of no case which has adopted the

absurd view that an institution’s release of educational

records in violation of FERPA must be uniform and pervasive

18

to be actionable. The notion that an institution could have

any policy or practice of disclosure falling short of universal

would render FERPA meaningless, indeed. What has been

required of plaintiffs in stating a claim, including by

Gundlach and Smith v. Duquesne, is a “policy or practice”

of releasing personally-identifiable information in some

context.

John Doe’s claim was always a “policy or practice”

claim, never an “individual release” claim. His First Amended

Complaint, which added the § 1983 claim, alleged, inter alia,

that “The disclosure to OSPI of the personally identifiable

information concerning John Doe was pursuant to Gonzaga

University’s practice or policy that disclosure under such

circumstances was and is appropriate.” (First Amended

Complaint, 4 2.51, p. 12, CP 1792.) The jury instructions

appropriately set forth the requirement that Doe prove a

policy or practice. (CP 1497.)

As acknowledged by the Washington Supreme Court,

the jury was presented evidence that OSPI was “routinely

called” by Gonzaga representatives to talk about student

applications presenting cause for concern and was

“often provided” with the names of the student candidates.

The Court concluded that “substantial evidence supports a

determination that Gonzaga had a ‘policy or practice’ of

disclosing personally identifiable information contained in

education records — in violation of FERPA.” (Petitioner’s

App. 19a [reproduced supra}.)

Only two lower court decisions, both arising out of the

same federal district, hold that even a policy or practice of

FERPA violations can not be a predicate to a claim for

damages under § 1983. Norris v. Board of Educ. of

19

Greenwood Community School Corp., 797 F. Supp. 1452

~ (S.D. Ind. 1992) summarily dismissed the plaintiff’s § 1983

claim, asserting, without illustration or explanation, that

FERPA gives enforcement power to the Secretary of

Education and “provides an exclusive enforcement

mechanism.” 797 F. Supp. at 1465. But see Blessing v.

Freestone, 520 U.S. 329, 346-347, 117 S. Ct. 1353, 1362,

137 L. Ed. 2d 569, 586 (1997) (observing that absent a federal

statute’s expressly curtailing § 1983 actions, a defendant must

make the “difficult showing that allowing § 1983 actions to

go forward in these circumstances ‘would be inconsistent

with Congress’ carefully tailored scheme;’” and observing

that the Court has only found such Congressional intent where

the statute created its own statutory or administrative

remedies addressing the same harms.) The Indiana appellate

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

714 N.E.2d 233 (Ind. App. 1999) relied on Norris, 714 N.E.2d

at 239 (although pointing out as an additional basis for

rejecting the claim that the Mourns had failed to allege any

“policy or practice” of disclosure. Jd.)

The case law does not therefore present a conflict of the

sort that warrants the Court’s review.

Il, THE OVERWHELMING MAJORITY OF

FEDERAL COURTS HAVE CORRECTLY

DECIDED THE ISSUE OF WHETHER FERPA

CREATES RIGHTS IN STUDENTS AND THEIR

PARENTS UNDER ALL OF THE COURT’S

PRECEDENTS, INCLUDING SUTER v. ARTIST M.

AND BLESSING v. FREESTONE.

The Greek root of the word “heresy” connotes picking

and choosing from settled doctrine to selectively emphasize

what one finds appealing at the expense of what one finds

20

disagreeable. With this sense of the word in mind, Gonzaga’s

interpretation of federal rights enforceable under 42 U.S.C.

§ 1983 should be anathema. In particular, Gonzaga isolates

language from Suter v. Artist M., 503 U.S. 347 (1992), and

one detail from Blessing v. Freestone, 520 U.S. 329 (1997),

at the expense of settled doctrine expressed in Wright v.

Roanoke Redevelopment & Housing Auth., 479 U.S. 418

(1987), and Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498

(1990), and subsequently approved in Blessing.

The Washington Supreme Court correctly determined

that FERPA creates enforceable federal rights using the proper

test. The test, summarized in Blessing and derived from

Wright and Wilder, has three parts:

First, Congress must have intended that the

provision in question benefit the plaintiff. Second,

the plaintiff must demonstrate that the right

assertedly protected by the statute is not so vague

and amorphous that its enforcement would strain

judicial competence. Third, the statute must

unambiguously impose a binding obligation on

the States.

520 U.S. at 340-341 (citations omitted). Gonzaga cites this

test in a parenthetical comment as an afterthought. (Pet. for

Cert., p. 11.)

Instead, Gonzaga focuses on Suter. The only principle

that it culls from the case is the requirement that federal rights

derived from Congress’ spending power must be

“unambiguous.” (Pet. for Cert., p. 9.) Applying this principle,

Gonzaga argues that FERPA rights are unenforceable under

§ 1983 because “nothing in the statute” gives “notice that

21

individual alleged instances of unconsented disclosure of

education records would subject them to private damages

actions by students and parents.” (Pet. for Cert., p. 10.)

Gonzaga overstates the principle that it draws from Suter.

Initially, Gonzaga wrongly implies that it is the availability

of “privaic damage actions” that must be “unambiguous,”

rather than the federal rights underlying the private damages

actions. Nothing in Suter suggests that the focus should be

on the availability of private damages actions. To the contrary,

Suter confirms that the proper focus is whether the statutory

language creates “enforceable rights, privileges, or

immunities” within the meaning of § 1983. 503 U.S. at 357

(quoting Wright). -

To read Suter as requiring unambiguous congressional

intent to create private damages actions (rather to create

enforceable federal rights) is actually contrary to Blessing,

Wilder, and Wright. Once it is determined that a statute creates

enforceable federal rights, a remedy under § 1983 is

presumed. Blessing, 520 U.S. at 341; Wilder, 496 U.S. at

520-521. This Court “do[es] not lightly conclude that

Congress intended to preclude reliance on § 1983 as aremedy

for the deprivation of a federally secured right.” Wright, 479

U.S. at 423-424 (quotation omitted). In other words, the

existence of § 1983 is itself unambiguous congressional

intent to create private damages actions to remedy violations

of other federal rights. Requiring additional intent serves only

to undermine this already unambiguous expression of

congressional intent.

Furthermore, Gonzaga wrungly treats Suter as if the

reference to “unambiguous” intent superimposes another

requirement on the three-part test. If there was any doubt

22

about this after Suter was decided, it was dispelled in

Blessing. The fact that most of the cases cited by Gonzaga

pre-date Blessing implicitly confirms this. In Blessing, the

Court recapitulated the settled doctrine of Wright and Wilder

without any additional gloss from Suter. 520 U.S. at 340-

341.

Gonzaga is similarly selective in its reading of Blessing

as in its reading of Suter. The only principle that it culls from

Blessing is that federal rights do not exist in the absence of

an “enforcement mechanism to command .. . [a] particular

action.” (Pet. for Cert., p. 10.) Applying this principle,

Gonzaga argues that FERPA rights are unenforceable because

the statute “contains no mechanism for sanction of individual

disclosures of student information. The Secretary of

Education cannot command. . . any particular action|[.]” (Pet.

for Cert., p. 11.) As with Suter, Gonzaga misreads Blessing.

In Blessing, the Court cited the lack of any enforcement

mechanism merely as evidence that Title IV-D, a child support

enforcement program, is not intended to benefit individual

children and custodial parents, which is the first element of

the test quoted above. 520 U.S. at 343-344. The Court did

not elevate the existence of an enforcement mechanism into

additional element of the test that must be satisfied.

In any event, Gonzaga is flat wrong when it asserts that

“(t]he Secretary of Education cannot command ... any

particular action under FERPA but is authorized only to

terminate federal funding.” (Pet. for Cert., p. 11.) To the

contrary, FERPA states that “[t]he Secretary shall take

appropriate actions to enforce this section and to deal with

violations of this section[.]” § 1232g(f). “Appropriate

actions” include withholding of payments under any

23

applicable program, cease-and-desist orders, and complete

termination of funding. 34 C.F.R. § 99.67(a)(1)-(3). In this

sense, even if its reading of Blessing were correct, the

principle Gonzaga derives from the case is inapplicable to

FERPA.

In applying Suter and Blessing, Gonzaga misrepresents

the nature of John Doe’s claims. Gonzaga describes those

claims as arising from “individual alleged instances of

unconsented disclosure,” and “for particular instances of

disclosure.” (Pet. for Cert., pp. 10-11.) Yet, as discussed

above, there can be no question that John Doe’s claims against

Gonzaga were based on a “policy or practice” of disclosing

student information in violation of FERPA. Viewing John

Doe’s FERPA claims in the proper light, it is evident that his

rights are enforceable under § 1983.

To determine whether a statute creates enforceable

federal rights, it is necessary to “analyze the statutory

provisions in detail, in light of the entire legislative

enactment.” Suter, 503 U.S. at 357 (discussing Wright and

Wilder). FERPA provides that no funds shall be made

available to any educational agency or institution which has

a policy or practice of permitting the release of education

records or personally identifiable information contained

therein without parental consent. § 1232g(b)(1), (2)(A).

It provides that “whenever a student has attained eighteen

years of age, or is attending an institution of postsecondary

education, the permission or consent of and the rights

accorded to the parents of the student shall thereafter only

be required of and accorded to the student.” § 1232g(d)

(italics added). It further provides that no funds shall be made

available to any educational agency or institution “unless such

agency or institution effectively informs the parents of the

24

students, or the students . . . of the rights accorded them by

this section.” § 1232g(e) (italics added). The Secretary of

Education is authorized to adopt “regulations or procedures

... which protect the rights of privacy of students{.|”

§ 1232g(c) (italics added). Records of all disclosures must

be maintained and made available for inspection by parents

or students. § 1232g(4)(A). Even otherwise validly-disclosed

educational records or other personally identifiable student

information must be destroyed when they are “no longer

needed.” § 1232g(b)(1)(B), (F); accord § 1232g(b)(3), (5).

These provisions bind not only educational agencies and

institutions, but also the individuals or entities to whom they

disclose educational records or other personally identifiable

student information. § 1232g(4)(B).

FERPA regulations confirm that the statute creates

enforceable federal rights. While these regulations do not

necessarily create any additional rights not contained in the

text of the statute, they illustrate the nature of the rights

created in the statute, and it is appropriate to consider the

regulations for this purpose. For example, in Wilder, holding

that the Boren Amendment created federal rights to

“reasonable” reimbursement for services enforceable by

health care providers, this Court relied on regulations setting

forth the factors determining reasonableness. 496 U.S. at 519

& n.17. Similarly, in Wright, holding that the Brooke

Amendment created federal rights to a reasonable amount

for the use of utilities enforceable by public housing tenants,

this Court relied on regulations defining “rent” to include

such utilities. 479 U.S. at 430. This Court also considered

regulations in Suter, 503 U.S. at 363, and Blessing, 520 U.S.

at 343-344, even though the statutes at issue in those cases

were ultimately held not to create enforceable federal rights.

25

FERPA regulations contain sections addressed

specifically to the rights of parents and students. 34 C.F.R.

§§ 99.4, 99.5. They emphasize that “[t}he parent or eligible

student shall provide a signed and dated written consent

before an educational agency or institution discloses

personally identifiable information from the student’s

education records,” and they identify what the written consent

must contain. Jd. § 99.30(a), (b). They require records of all

disclosures for review by students and their parents. /d.

§ 99.32. They place limitations on redisclosure or use of

educational records or other personally identifiable

information of a student by individuals or entities receiving

them from an educational agency or institution. Jd. § 99.33.

If the foregoing provisions of FERPA do not create

enforceable federal rights, then no statute enacted under

Congress’ spending power could ever create enforceable

federal nghts. FERPA’s focus on student privacy satisfies

the first element of the proper test. As quoted above, the first

element of the test requires that “Congress must have

intended that the provision in question benefit the plaintiff.”

Blessing, 520 U.S. at 340-341. For example, in Wright, the

Court held that the Brooke Amendment limiting rent charged

by public housing authorities was “undeniabl[y]” intended

to benefit the tenants. 479 U.S. at 430. Likewise, in Wilder,

the Court held that the Boren Amendment requiring

“reasonable” reimbursements for health care providers leaves

“little doubt” that such providers are intended beneficiaries.

496 U.S. at 510. In a similar fashion, it cannot seriously be

disputed that the myriad FERPA provisions guaranteeing

privacy of educational records and other personal information

and requiring consent for disclosure of such information, is

intended to benefit students. There is no corresponding

benefit to the educational agencies and institutions subject

26

to FERPA. In fact, the requirements of the Act undoubtedly

create an administrative burden that they accept in exchange

for federal funds.

The absolute nature of the privacy and consent rights

afforded by FERPA satisfies the second element of the test.

As quoted above, the second element of the test requires

“that the right assertedly protected by the statute is not so

vague and amorphous that its enforcement would

strain judicial competence.”’ Blessing, 520 U.S. at 340-341.

For example, in Wright, the Court held that the right of public

housing tenants to have “reasonable” amounts for utilities

included within rent limits was not so vague and amorphous

as to defeat enforcement. 479 U.S. at 430. Likewise, in

Wright, the Court held the right of health care providers to

receive “reasonable” reimbursements was sufficiently

definite to be enforceable. By comparison, FERPA’s absolute

consent and privacy rights are far less vague and amorphous,

and correspondingly easier to enforce.

The mandatory link between FERPA rights and funding

satisfies the third element of the test. As quoted above, the

third element of the test requires that “the statute must

unambiguously impose a binding obligation on the States.”

Blessing, 520 1).S. at 340-341. The Court explained this

element of the test in Blessing by stating “[i}n other words,

the provision giving rise to the asserted right must be couched

in mandatory rather than precatory terms.” 520 U.S. at 341

(citing Wilder). For example, in Wilder, the Court held that

the Boren Amendment imposed a binding obligation because

“provision of federal funds is expressly conditioned on

compliance with the amendment and the Secretary is

authorized to withhold funds for noncompliance[.]” 496 U.S.

at 512 (citation omitted). This type of binding obligation

27

is indistinguishable from that imposed by FERPA.

§ 1232g(b)(1), (2). Since all of the elements of the proper

test are satisfied, the Washington Supreme Court correctly

determined that John Doe has enforceable rights under

FERPA.

CONCLUSION

Based on the foregoing, John Doe respectfully asks the

Court to deny the petition.

Respectfully submitted,

Laure H. Sippoway

Counsel of Record

Georce M. AHREND

Davip J. GROESBECK

RANDALL & Danskin, PS.

601 W. Riverside Ave., Ste. 1500

Spokane, WA 99201

(509) 747-2052

Submitted this 19° day of December 2001.

APPENDIX

la

APPENDIX — RELEVANT STATUTES AND

REGULATIONS

The Family Educational Rights and Privacy Act, 20

U.S.C. § 1232g (FERPA), provides in pertinent part:

(b) Release of education records; parental consent

requirement; exceptions; compliance with judicial

orders and subpoenas; audit and evaluation of

federally-supported education programs;

recordkeeping

(1) No funds shall be made available under any

applicable program to any educational agency or

institution which has a policy or practice of

permitting the release of education records

(or personally identifiable information contained

therein . . .) of students without the written consent

of their parents to any individual, agency, or

organization, other than to the following —

(A) other school officials, including teachers within

the educational institution or local educational

agency, who have been determined by such

agency or institution to have legitimate

educational interests, including the educational

interests of the child for whom consent would

otherwise be required ....

(B) (i) authorized representatives of (I) the

Comptroller General of the United States, (I])

the Secretary, or (III) State educational

authorities, under the conditions set forth in

paragraph (3), or (ii) authorized representatives

a —_

2a

Appendix

of the Attorney General for law enforcement

purposes under the same conditions as apply to

the Secretary under paragraph (3)....

(F) organizations conducting studies for, or on

behalf of, educational agencies or institutions

for the purpose of developing, validating, or

administering predictive tests, administering

student aid programs, and improving

instruction, if such studies are conducted in

such a manner as will not permit the personal

identification of students and their parents by

persons other than representatives of such

organizations and such information will be

destroyed when no longer needed for the

purpose for which it is conducted ....

(2) No funds shall be made available under any

applicable program to any educational agency or

institution which has a policy or practice of release,

or providing access to, any personally identifiable

information in education records . . . unless —

(A) there is a written consent from the student’s

parents specifying records to be released, the

reasons for such release, and to whom, and with

a copy of the records to be released to the

student’s parents and the student if desired by

the parents....

3a

Appendix

(3) Nothing contained in this section shall preclude

authorized representatives of (A) the Comptroller

General of the United States, (B) the Secretary, or

(C) State educational authorities from having access

to student or other records which may be necessary

in connection with the audit and evaluation of

Federally-supported education programs, or in

connection with the enforcement of the Federal legal

requirements which relate to such programs:

Provided, That except when collection of personally

identifiable information is specifically authorized by

Federal law, any data collected by such officials shall

be protected in a manner which will not permit the

personal identification of students and their parents

by other than those officials, and such personally

identifiable data shall be destroyed when no longer

needed for such audit, eva!uation, and enforcement

of Federal legal requirements.

(4)(A) Each educational agency or institution shal! maintain

a record, kept with the education records of each

student, which will indicate all individuals (other

than those specified in paragraph (1)(A) of this

subsection), agencies, or organizations which have

requested or obtained access to a student’s education

records maintained by such educational agency or

institution, and which will indicate specifically the

legitimate interest that each such person, agency, or

organization has in obtaining this information. Such

record of access shall be available only to parents,

to the school official and his assistants who are

responsible for the custody of such records, and to

4a

Appendix

persons or organizations authorized in, and under

conditions of, (A) and (C) of paragraph (1) as a

means of auditing the operation of the system.

(B) With respect to this subsection, personal

information shall only be transferred to a third

party on the condition that such party will not

permit any other party to have access to such

information without the written consent of the

parents of the student. If a third party outside

the educational agency or institution permits

access to information in violation of paragraph

(2)(A), or fails to destroy information in

violation of paragraph (1)(F), the educational

agency or institution shall be prohibited from

permitting access to information from education

records to that third party for a period of not

less than five years.

(5) Nothing in this section shall be construed to prohibit

State and local educational officials from having

access to student or other records which may be

necessary in connection with the audit and evaluation

of any federally or State supported education program

or in connection with the enforcement of the Federal

legal requirements which relate to any such program,

subject to the conditions specified in the proviso in

paragraph (3).

Sa

Appendix

(c) Surveys or data-gathering activities; regulations

Not later than 240 days after October 20, 1994, the

Secretary shall adopt appropriate regulations or

procedures, or identify existing regulations or

procedures, which protect the rights of privacy of

students and their families in connection with any

surveys or data-gathering activities conducted, assisted,

or authorized by the Secretary or an administrative head

of an education agency. Regulations established under

this subsection shall include provisions controlling the

use, dissemination, and protection of such data... .

(d) Students’ rather than parents’ permission or consent

(e)

For purposes of this section, whenever a student has

attained eighteen years of age, or is attending an

institution of postsecondary education, the permission

or consent of and the rights accorded to the parents of

the student shall thereafter only be required of and

accorded to the student.

Informing parents or students of rights under this

section No funds shall be made available under any

applicable program to any educational agency or

institution unless such agency or institution effectively

informs the parents of students, or the students, if they

are eighteen years of age or older, or are attending an

institution of postsecondary education, of the rights

accorded them by this section.

6a

Appendix

(f) Enforcement; termination of assistance

The Secretary shall take appropriate actions to enforce

this section and to deal with violations of this section,

in accordance with this chapter, except that action to

terminate assistance may be taken only if the Secretary

finds there has been a failure to comply with this section,

and he has determined that compliance cannot be secured

by voluntary means.

7a

Appendix

Regulations adopted by the Secretary of the Department

of Education pursuant to FERPA, 34 C.F.R. pt. 99, provide

in pertinent part:

§ 99.2

§ 99.4

§ 99.5

What is the purpose of these regulations? The

purpose of this part is to set out requirements

for the protection of privacy of parents and

students under [FERPA].

What are the rights of parents? An

educational agency or institution shall give full

rights under the Act to either parent, unless the

agency or institution has been provided with

evidence that there is a court order, State statute,

or legally binding document relating to such

matters as divorce, separation, or custody that

specifically revokes those rights.

What are the rights of students? (a) When a

student becomes an eligible student, the rights

accorded to, and consent required of, parents

under this part transfer from the parents to the

student. (b) The Act and this part do not prevent

educational agencies or institutions from giving

students rights in addition to those given to

parents.

8a

Appendix

§ 99.67 How does the Secretary enforce decisions?

(a) If the educational agency or institution does

not comply ... the Secretary may ...

(1) Withhold further payments under any

applicable program; (2) Issue a compliant to

compel compliance through a cease-and-desist

order; or (3) Terminate eligibility to receive

funding under any applicable program.