# Opposition Brief — Gonzaga Univ. v. Doe

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2002
- **Citation:** 536 U.S. 273

## Text

< 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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MUM)

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0519%3A03. Public record. Not legal advice.