Amicus Curiae Brief — Gonzaga Univ. v. Doe

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No. 01-679

In the Supreme Court of the Gnited States

GONZAGA UNIVERSITY AND ROBERTA S. LEAGUE,

PETITIONERS

JOHN DOE

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF WASHINGTON

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE SUPPORTING PETITIONERS

THEODORE B. OLSON

Solicitor General

Counsel of Record

ROBERT D. MCCALLUM. JR.

BRIAN W. JONES Assistant Attorney General

General Counsel aint eee sie

Department of Education EDWIN S. KNEEDLER

Washington, D.C. 20202 Deputy Solicitor General

PATRICIA A. MILLETT

Assistant to the Solicitor

General

MARK B. STERN

ALISA B. KLEIN

ANNE MURPHY

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

—

QUESTION PRESENTED

Whether a student may sue a private university for dam-

ages under 42 U.S.C. 1983 to enforce provisions of the

Family Educational Rights and Privacy Act of 1974,

20 U.S.C. 1232g (1994 & Supp. V 1999), which bar the

furnishing of federal funding to educational institutions that

have a policy or practice of permitting education records to

be released to unauthorized persons.

(1)

TABLE OF CONTENTS

Interest of the United States

Statement

Summary of argument

Argument:

The records-disclosure provisions of the Family Edu-

cational Riglits and Privacy Act do not create private

rights that may be enforced under 42 U.S.C. 1988

A. FERPA’s records-disclosure provisions focus on

funding by the Department of Education and the

systemwide operations of educational institutions,

not individual entitlements of students

1. The duties under FERPA’s records-disclosure

provisions run primarily to the Deparment

of Education

2. The funding conditions under FERPA’s

records-disclosure provisions focus on the

systemwide “policies and practices” of fund

recipients

3. An analogy to nineteenth century contract

law is not an appropriate basis for refusing

to recognize substantive rights enforceable

under Section 1983

B. Recognizing a Section 1983 action would frustrate

the enforcement mechanisms Congress provided

in FERPA

Conclusion

Appendix

(IIT)

» $8

—

IV :

TABLE OF AUTHORITIES

Cases: ; Page

Alexander v. Sandoval, 532 U.S. 275 (2001) 10

Bell v. New Jersey, 461 U.S. 773 (1983) 8

Bennett v. Kentucky Dep't of Educ., 470 U.S. 656

(1985) 18

Blessing v. Freestone, 520 U.S. 329 (1997) passim

California v. Sierra Club, 451 U.S. 287 (1981 12

Cannon v. University of Chicago, 441 U.S. 677

(1979) 10, 11, 12

Chicago, B. & Q.R. Co. v. Attorney General, 5 F. Cas.

594 (C.C.D. Iowa 1875) (No. 2666), aff d on other

grounds, 94 U.S. 155 (1876) 19

Cort v. Ash, 422 U.S. 66 (1975) 10

Dalton v. Little Rock Family Planning Servs., 516

US. 474 (1996) 19

Duncan v. Jaudon, 82 U.S. (15 Wall.) 165 (1872) 20

Edelman v. Jordan, 415 U.S. 651 (1974) 29

Farmers’ Loan & Trust Co. v. Henning, 8 F. Cas.

1045 (C.C.D. Kan. 1878) (No. 4666) 19

Golden State Transit Corp. v. City of Los Angeles,

493 U.S. 103 (1989) 7, 14, 23

Hendrick v. Lindsay, 93 U.S. 143 (1876) 21

Lawrence County v. Lead-Deadwood Sch. Dist.,

469 U.S. 256 (1985) 19

Madison & P.R. Co. v. Wisconsin, 16 F. Cas. 366

(C.C.W.D. Wis. 1879) (No. 8938) 19

Maine v. Thiboutot, 448 U.S. 1 (1980) 6, 29

Middlesex County Sewerage Auth. v. National Sea

Clammers Ass u, 453 U.S. 1 (1981) 7,23

National Bank v. Grand Lodge, 98 US. 123

(1878) — 23

Oliver v. Piatt, 44 U.S. (3 How.) 333 (1845) 20

Owasso Ind. Sch. Dist. v. Falvo, No. 00-1073

(Feb. 19, 2002) 7

““-— -— —

— — —

Cases Continued: Page

Pennhurst State Sch. & Hosp. v. Halder man, 451

U.S. 1 (1981) a 7, 8, 10, 12, 15, 16, 18

Pennsylvania v. Wheeling & Belmont Bridge Co.,

54 US. (13 How.) 518 (1851) 19

Rosado v. Wyman, 397 U.S. 397 (1970) 29

Schemerhorn v. Vanderheyden, 1 Johns. (N.Y.) 139

(1806) 21

Smith v. Robinson, 468 U.S. 992 (1984) 7, 23

Suter v. Artist M., 503 U.S. 347 (1992) 6, 7, 8, 29

Townsend v. Swank, 404 U.S. 282 (1971) 19

Tucker v. Fergerson, 89 U.S. (22 Wall.) 527 (1874) 19

United States v. Miami Univ., 91 F. Supp. 2d 1132

(S.D. Ohio 2000), appeal pending, No. 00-3518 (6th

Cir.) 25, 26

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

(1990) 6, 7, 11, 13, 24, 29

Wright v. City of Roanoke Redevelopment & Hous.

Auth., 479 U.S. 418 (1987) 6, 11, 24

U.S. Const. Art. I. § 8, Cl. 1 (Spending Clause 6, 12,

18, 20, 30

Act of Oct. 26, 2001, Pub. L. No. 107-56, § 507, 115

Stat. 367 . 2

Civil Rights Act of 1964, Tit. VI, 42 U.S.C. 20000 11, 12,

13, 29

Education Amendments of 1972, Tit. IX. 20 U.S.C.

1681 11, 12, 13, 29

20 U.S.C. 1221(c) (1994 & Supp. V 1999) 2

Family Educational Rights and Privacy Act of 1974,

20 U.S.C. 1232 et seg.

20 U.S.C. 1232g (1994 & Supp. V 1999) 1. la

20 U.S.C. 1232g(a) (1994 & Supp. V 1999) . 1, 1a

20 U.S.C. IRH) (1994 & Supp. V 1999) . 2, 15, la

20 U.S.C. 1232g(a)(1)(C)Gii) 15, 16, 2a

20 U.S.C. 1232g(a)(3) (1994 & Supp. V 1999) . 2, 3a

»-

Statutes and regulations—Continued: Page

20 U.S.C. 1232g(a)(4) 10

20 U.S.C. 12328 % l. (45 ——— 2, 4a

20 U.S.C. 1232g(b) (1994 & Supp. V

ee 1, 9, 14, 15, 6a

20 U.S.C. 1232g(b)(1) (1994 & Supp. V

6 — 2, 5, 10, 11, 15, 6a

20 U.S.C. 1232g(b)(1)(A)-(J) (1994 & Supp. V

12 932383————3——ͤꝶ ö WX' : 3232 2, 6a

20 U.S.C. 1232g(b)\(2) 2, 10, 12, 15, 9a

20 U.S.C. 1232g(b)(6) (Supp. V 1999) 2, lla

20 U.S.C. 1282 fte˙ c A. 2, 12a

ee 15, 12a

20 U.S.C. 1232g(d) ...... 2, 15, 13a

20 U.S.C. 123229 e) 15, 17, 13a

20 U.S.C. 1232g(f) ..... 1, 2, 5, 24, 26, 29, 13a

20 U.S.C. 1232g(g) . 1, 3, 5, 6, 25, 28, 29, 13a

290... 2, 14a

20 U.S.C. 1232g()) ....... — 2, 15a

1111» 2-3

20 U.S.C. 1234a 25

1 25

9908. 25

11. ͤà 6, 9, 23

GB OBS. TBI ID .————————————— 6, 9, 23

42 U.S.C. 1983 (1994 & Supp. V 1999) passim

Wash. Admin. Code § 180-75-082 (1997) (repealed

1 —— — 3

34 C. F. R.:

1 ——T ͥK—— — 26

Section 812 26

Section 81.3 26

Section 81.7 26

Section 81.7(d)(2) . 26

Section 81.8 — 26

Sections 81.15-81.16 26

VII

Regulations Continued: Page

— ee 3

yt 2,17a

Section 99.3 — — —-— 10, 18a

— — —— 15, 25, 47a

r . 15, 25, 47a

—— — 26, 47a

2. 25, 48a

Section 99.64(a) ä — 25, 48a

. — 25, 48a

— . 9 — 25, 48a

ED — 26

. . œ üY— 25, 49a

— 25, 49a

. ———nn—— 26

1 — 26

22 26, 50a

ee 25, 50a

Miscellaneous:

J.P. Bishop, The First Book of the Law Explaining the

Nature, Sources, Books and Practical Applications

of Legal Science and Methods of Study and Practice

St SEE ?— ͤ A 19, 23

1 J. Chitty, A Treatise on Pleading and Parties to

Actions (10th Amer. ed. 1840 21

120 Cong. Rec. (1974):

12— 17

1 17

— 28

89. — 27

p. 39,862 14, 15, 28

p. 39,888 15, 17, 28

A. L. Corbin, Contracts for the Benefit of Third

Persons, 27 Yale L. J. 1008 (1918 21-22

Miscellaneous—Continued: Page

E. A. Farnsworth, Contracts Scholarship in the Age

of the Anthology, 85 Mich. L. Rev. 1406 (1987). 21

65 Fed. Reg. (2000):

i CLI —

F. Hilliard, The Law of Contracts (1872)... 20,

H. R. Conf. Rep. No. 1211, 93d Cong., 2d Sess. (1974) 17

H. R. Conf. Rep. No. 1619, 93d Cong., 2d Sess. (1974) ....... 28

P. Karsten, The “Discovery” of Law by English and

American Jurists of the Seventeenth, Eighteenth,

and Nineteenth Centuries: Third-Party Bene-

ficiary Contracts as a Test Case, 9 Law and

. 0. eee 20, 22

2 J. Kent, Commentaries on American Law (12th ed.

1BTB) (O.W. 1 %) !ü1!lʒñ]é⁵. 2¹

Letter from LeRoy S. Rooker, Director, Family Policy

Compliance Office, to Dr. Gregory Adkins (Apr. 8,

a 16

Letter from LeRoy S. Rooker, Director, Family Policy

Compliance Office, to Dr. Curtis Culwell (Aug. 5,

OO yy—————————— 16

Letter from LeRoy S. Rooker, Director, Family Policy

Compliance Office, to Dr. Joseph Bonita (Oct. 5,

11161619 — —y-:ͤ 16

Letter from LeRoy S. Rooker, Director, Family Policy

Compliance Office, to Dr. Kenneth L. Bates (Mar. 11,

1999) 7 16

T. Metcalf, Principles of the Law of Contracts,

as Applied by the Courts of Law (Boston 1868,

1872) 22

1 T. Parsons, Law of Contracts:

Ist ed. (1853-1855) 21

6th ed. (1873) 21

Restatement (First) of Contracts (1932) 22

Restatement (Second) of Trusts (1957) 20

S. Conf. Rep. No. 1026, 93d Cong., 2d Sess. (1974) 17

Miscellaneous—Continued:

S. Conf. Rep. No. 1409, 98d Cong., 2d Sess. (1974)

W. W. Story, A Treastise on the Law of Contracts

Not Under Seal (Ist ed. 184) ————.—.— 21

T. D. Synder & C. M. Hoffman, Nat ' Ctr. for Educ.

Statistics, Digest of Education Statistics (forthcoming

899891 ꝛ—— —v— 28

U.S. Comm’n on Civil Rights, Federal Title VI Enforce-

ment to Ensure Nondiscrimination in Federally

TK A 29

— ———

In the Supreme Court of the United States

No. 01-679

GONZAGA UNIVERSITY AND ROBERTA S. LEAGUE,

PETITIONERS

JOHN DOE

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF WASHINGTON

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

This case concerns the enforcement of the Family Educa-

tional Rights and Privacy Act of 1974 (FERPA), 20 U.S.C.

1232g (1994 & Supp. V 1999), which applies to educational

agencies and institutions that receive financial assistance un-

der federal education programs administered by the Secre-

tary of Education. 20 U.S.C. 1232g(a) and (b) (1994 & Supp.

V 1999). FERPA directs the Secretary to “take appropriate

actions to enforce” FERPA and “deal with violations of’ the

Act, 20 U.S.C. 1232g(f), and to establish an office and review

board for the purpose of “investigating, processing, review-

ing, and adjudicating” complaints alleging violations of

FERPA, 20 U.S.C. 1232g(g).

STATEMENT

1. The Family Educational Rights and Privacy Act of

1974 (FERPA), 20 U.S.C. 1232g (1994 & Supp. V 1999), pro-

hibits the Secretary of Education from providing federal

funding to any public or private “educational agency or

(1)

institution,” unless it complies with requirements estab-

lished by FERPA concerning access to and disclosure of

students’ education records. 20 U.S.C. 1232g(a)(1)(A), (a)(3),

and (b)(1), 12210) (1994 & Supp. V 1999); see also 34 C. F. R.

99.1. This case concerns an unauthorized release of educa-

tion records. Subsection (b) of FERPA provides, in relevant

part:

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.

20 U.S.C. 1232g(b)(1) (1994 & Supp. V 1999); accord 20

U.S.C. 1232g(b)(2).' If a student has reached the age of

eighteen or is enrolled at a postsecondary educational insti-

tution, the school must seek consent for the release of

records from the student instead of the parents. 20 U.S.C.

1232g(d). The “education records” covered by FERPA

generally are defined as “those records, files, documents, and

other materials which—{i) contain information directly re-

lated to a student; and (ii) are maintained by an educational

agency or institution or by a person acting for such agency or

institution.” 20 U.S.C. 1232g(a)(4)(A).

FERPA expressly directs the Secretary to “take appro-

priate actions to enforce” FERPA and “to deal with viola-

tions,” in accordance with enforcement authority conferred

elsewhere in Title 20. 20 U.S.C. 1232g(f); see 20 U.S.C. 1234

1 FERPA permits disclosure if one of sixteen exceptions applies. See,

e. g., 20 U.S.C. 12382g(b)(1)(A)-(J) (1994 & Supp. V 1999); 20 U.S.C.

1232g(b)(6) (Supp. V 1999); 20 U.S.C. 1232g(b'7(A); 20 U.S.C. 1232g(); 20

U.S.C. 1232g(j) (added by Pub. L. No. 107-56, Title V, § 507, 115 Stat. 367

(2001)).

—

et seq. FERPA further requires the Secretary to establish

an office and review board within the Department of Educa-

tion to “investigat[e], process[], review[], and adjudicat[e]

violations of” FERPA and “complaints which may be filed

concerning alleged violations of’ FERPA. 20 U.S.C.

1232g(g). The Secretary has promulgated regulations inter-

preting FERPA’s requirements and establishing an admin-

istrative review procedure for processing individual com-

plaints under FERPA. 34 C.F.R. Pt. 99. FERPA specifi-

cally provides for centralized control over its administration

and interpretation. 20 U.S.C. 1232g(g) (“(E]xcept for the

conduct of hearings, none of the functions of the Secretary

under this section shall be carried out in any of the regional

offices” of the Department of Education.).

2. Petitioner Gonzaga University is a private university

that offers teacher training through its School of Education.

Pet. 3; Pet. App. 30a. During the relevant time period,

Washington’s teacher certification regulations required

student teachers to obtain from their universities a certifi-

cate of good moral character and personal fitness to teach.

See Pet. App. 40a-42a (discussing Wash. Admin. Code § 180-

75-082 (1997) (repealed effective Mar. 8, 1997)). Petitioner

Roberta League is Gonzaga’s teacher certification specialist.

Pet. App. 2a.

While a student of elementary education at Gonzaga, re-

spondent had a sexually intimate relationship with Jane Doe.

Pet. App. 2a. In October 1993, League overheard a com-

plaint that respondent might have engaged in acts of sexual

misconduct against Jane Doe. Ibid. League investigated

and obtained information suggesting that respondent might

have raped Jane Doe. See id. at 3a-6a. League discussed the

allegations with an investigator for the state agency respon-

sible for teacher certification, to whom League identified

respondent by name. Id. at 5a. Based on the information

obtained during the investigation, the Dean refused to

provide respondent with the moral character affidavit

needed for his teacher certification. Id. at 6a.

3. Respondent filed suit against petitioners in state

court, alleging violations of FERPA and Washington tort

and contract law. See Pet. App. 34a-35a. Following trial, a

jury found in respondent’s favor on all of his claims and

awarded him $1,155,000 in damages. Jd. at 36a. The award

included $150,000 in compensatory damages and $300,000 in

punitive damages against petitioners for the violation of

FERPA. Ibid.

The Court of Appeals of Washington reversed. Pet. App.

30a-53a. With respect to respondent’s FERPA claim, the

court concluded that FERPA does not create individual

rights enforceable under Section 1983, reasoning that

“FERPA requires participating schools to have in place a

system-wide plan; the law is not intended to ensure that ‘the

needs of any particular person have been satisfied. Id. at

47a.

The Washington Supreme Court reversed in relevant part

and reinstated the FERPA judgment and damages award.

Pet. App. la-28a. The court concluded that FERPA creates

privately enforceable rights because it “is intended to bene-

fit students,” FERPA’s terms are amenable to judicial

enforcement, and FERPA’s obligations are mandatory. Id.

at 20a.

SUMMARY OF ARGUMENT

A. In determining whether a federal statute gives rise to

a Section 1983 action, this Court asks first whether the

statutory provision in question creates personal entitlements

of the sort that may be enforced through the medium of a

private judicial cause of action. FERPA’s non-disclosure

rule creates no such personal rights. FERPA’s text—which

provides that “[nJo funds shall be made available under any

applicable program to any educational agency or institution”

that fails to comply with FERPA’s confidentiality provisions

(20 U.S.C. 1232g(b)(1) (1994 & Supp. V 1999))—speaks not in

terms of a benefitted class, nor even in terms of the obliga-

tions of fund recipients. Rather, FERPA operates directly

on the Department of Education, regulating that agency’s

disbursement of federal funds. The purported class of

private beneficiaries is thus two steps removed from the

principal focus of the statutory text. When Congress intends

to create individual substantive rights, it usually does not

legislate so elliptically.

Furthermore, to the extent FERPA’s disclosure provi-

sions focus on the recipients of federal financial assistance,

they refer only to the systemwide “polic[ies] or practice[s]”

of those recipients. 20 U.S.C. 1232g(b)(1) (1994 & Supp. V

1999). The statute thus is not concerned with individualized

instances of non-consensual disclosure. It therefore resem-

bles the type of provisions that this Court held in Blessing v.

Freestone, 520 U.S. 329 (1997), do not create private rights

under Section 1983. While FERPA strengthens and rein-

forces the preexisting privacy rights of students and their

parents, FERPA’s disclosure provisions themselves are

framed as a federal overlay of rules and guidelines for record

management by educational institutions. In short, FERPA’s

disclosure provisions complement extant rights; they do not

create new ones.

B. Even if FERPA were to be construed as creating

individual entitlements, recognition of a cause of action

under Section 1983 to enforce the statute would be inappro-

priate because Congress has directed the Secretary, not the

courts, to “enforce” FERPA and “deal with” violations, and

to investigate and adjudicate individual complaints. 20

U.S.C. 1232g(f) and (g). FERPA thus contains precisely

what was missing in other cases where this Court has found

a Section 1983 action to be available: a federal tribunal for

the resolution of individual charges arising under FERPA.

Congress, moreover, made clear that the administration and

interpretation of FERPA should remain centralized and

under the control of the Secretary of Education. 20 U.S.C.

1232g(g). Superimposing on that administrative scheme a

Section 1983 action that could be invoked by any of the 58

million public school students subject to FERPA in any state

or federal court across the country would displace Con-

gress’s intended unitary enforcement procedures with pre-

cisely the myriad, decentralized sources of enforcement and

interpretive authority that Congress wished to avoid.

ARGUMENT

THE RECORDS-DISCLOSURE PROVISIONS OF THE

FAMILY EDUCATIONAL RIGHTS AND PRIVACY

ACT DO NOT CREATE PRIVATE RIGHTS THAT

MAY BE ENFORCED UNDER 42 U.S.C. 1983

Section 1983, 42 U.S.C. 1983, creates a private cause of

action against any person who, under color of state law,

deprives another “of any rights, privileges, or immunities

secured by the Constitution and laws” of the United States.

This Court held in Maine v. Thiboutot, 448 U.S. 1 (1980), that

Section 1983 “means what it says” and thus authorizes suits

by private individuals against state actors who violate rights

created by federal “laws,” including laws enacted pursuant

to Congress’s authority under the Spending Clause, U.S.

Const. Art. 1, § 8, Cl. 1. Thiboutot, 448 U.S. at 4. This Court

has reaffirmed that holding on numerous occasions. See, e. g.,

Blessing v. Freestone, 520 U.S. 329, 340 (1997); Suter v.

Artist M., 503 U.S. 347, 355 (1992); Wilder v. Virginia Hosp.

Ass’n, 496 U.S. 498, 508 (1990); Wright v. City of Roanoke

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

Congress has ratified Thiboutot’s construction of Section

1983. See 42 U.S.C. 1320a-2, 1320a-10.

Not every violation of a federal statute, however, consti-

tutes a deprivation of “rights” within the meaning of Section

1983. Golden State Transit Corp. v. City of Los Angeles, 493

U.S. 103, 106 (1989). The statute must create individual,

judicially enforceable rights. Ibid.; see also Blessing, 520

U.S. at 340; Pennhurst State Sch. & Hosp. v. Halderman,

451 U.S. 1, 15-30 (1981). In addition, the statute must not

foreclose private enforcement either expressly or impliedly.

Blessing, 520 U.S. at 341; Golden State, 493 U.S. at 106; see

also Smith v. Robinson, 468 U.S. 992, 1009-1013 (1984); Mid-

dlesex County Sewerage Auth. v. National Sea Clammers

Ass u, 453 U.S. 1, 13-20 (1981). Under those principles, a

cause of action does not lie under Section 1983 for private

enforcement of FERPA’s records disclosure provisions.”

A. FERPA’s Records-Disclosure Provisions Focus On

Funding By The Department Of Education And The

Systemwide Operations Of Educational Institutions,

Not Individual Entitlements of Students

Under this Court’s decision in Blessing, a federal statute

creates judicially enforceable rightſs],“ within the meaning

of Section 1983, if (i) Congress intended that the provision in

question benefit the putative plaintiff; (ii) the provision is

unambiguously binding and mandatory on the States, rather

than precatory; and (iii) the right is not so “vague and

amorphous” that its enforcement would “strain judicial com-

petence.” 520 U.S. at 340-341; see also Wilder, 496 U.S. at

509.

At the outset, petitioners err in contending (Pet. 9-11)

that the appropriate test for discerning whether the statute

creates privately enforceable rights is not Blessing/Wilder’s

three-part test, but is instead whether Congress “unambigu-

ously confer{red}” (Pet. 9) a right to a private action under

Section 1983 (Pet. 9 (quoting Suter v. Artist M., 503 U.S. at

357)). In Suter, the Court held that private individuals could

* The Court reserved this question in Owasso Independent School

District v. Falvo, No. 00-1073, slip op. 3-4 (Feb. 19, 2002).

not sue to enforce a provision of the Social Security Act that

required States receiving funds for adoption assistance to

submit a plan to the Secretary of Health and Human

Services in which the State agreed, among other things, to

make “reasonable efforts” to keep children in their own

homes. 503 U.S. at 351. That language did not create rights

privately enforceable under Section 1983, the Court ex-

plained, because the statute required only that “the State

have a plan approved by the Secretary which contains the 16

listed features,” id. at 358. Beyond that, the “reasonable

efforts” proviso “impose[{d] only a rather generalized duty,”

id. at 363, and “left a great deal of discretion” to the State,

id. at 362.

Read in context, Suter’s references to unambiguity were

simply a particularized application of Pennhurst, which re-

quires Congress to make clear that it intends to impose

binding conditions on the receipt of federal funds. As Suter

observed, Pennhurst establishes that, if Congress intends

to impose a condition on the grant of federal money, it must

do so unambiguously.’” Suter, 503 U.S. at 356 (quoting

Pennhurst, 451 U.S. at 17). In Suter, the Court held that,

although the requirement that the State have the “reason-

able efforts” provision in its state plan was mandatory, the

content of the generalized “reasonable efforts” standard was

too amorphous, ambiguous, and subject to variation based on

circumstances to be privately enforceable in any particular

case. See 503 U.S. at 360, 362-363. That, in fact, is how this

Court understood Suter in Blessing. See 520 U.S. at 345.

Once Congress makes clear its intention to impose binding

conditions on the receipt of federal funds, however, ordinary

rules of statutory interpretation apply to determine the

scope of those conditions and their means of enforcement.

Congress need not go further and warn in advance of “the

remedies available against a noncomplying State.” Bell v.

New Jersey, 461 U.S. 773, 790 n.17 (1983). Section 1983’s

text already makes that clear. Indeed, none of the statutes

at issue in Blessing, Wilder, Golden State, Thiboutot, or

other cases in which this Court found an action under

Section 1983 available, contained such unambiguous remedial

language. Moreover, to the extent petitioners read Suter as

imposing requirements for determining that an action under

Section 1983 is available that go beyond those applied in

prior cases, Congress has since provided otherwise with

respect to the very statute under which Suter arose—the

Social Security Act. See 42 U.S.C. 1320a-2, 1320a-10.2 The

proper test for identifying rights enforceable under Section

1983 thus remains, as this Court recognized in Blessing, the

three-part inquiry outlined above.

Applying that test, the records-disclosure provisions of

FERPA fail to support recognition of a right to private

enforcement under Section 1983. In particular, although the

question is a close one, the combination of how Congress

structured the funding restriction and how it phrased the

prohibitory language in FERPA, taken together, demon-

strates that FERPA’s disclosure provisions do not create

individual rights.

3 Section 1320a-2 (like Section 1320a-10) provides:

In an action brought to enforce a provision of this chapter, such

provision is not to be deemed unenforceable because of its inclusion in

a section of this chapter requiring a State plan or specifying the

required contents of a State plan. This section is not intended to limit

or expand the grounds for determining the availability of private

actions to enforce State plan requirements other than by overturning

any such grounds applied in Suter v. Artist M., (503 U.S. 347] (1992),

but not applied in prior Supreme Court decisions respecting such

enforceability; provided, however, that this section is not intended to

alter the holding in Suter v. Artist M. that section 671(a)(15) of this

title is not enforceable in a private right of action.

* FERPA appears to satisfy the second and third prongs of the

Blessing test, however. FERPA’s disclosure pret nena 20 U.S.C.

1232g(b), are neither precatory nor vague and amorphous. The statute

provides as a condition of federal funding that “education records,” as

1. The Duties Under FERPA’s Records-Disclosure

Provisions Run Primarily to the Department of

Education

As this Court has recognized in the context of identifying

whether a federal statute creates an implied right of action,

the focus of the statutory text provides the most persuasive

evidence of whether Congress intended its provisions to

benefit a particular class in the sense necessary to render

them judicially enforceable in a lawsuit brought by a private

party. See Alexander v. Sandoval, 532 U.S. 275, 288-289

(2001); Cannon v. University of Chicago, 441 U.S. 677, 690-

693 (1979). The same is true in deciding whether “rights”

are “secured” by a federal statute for purposes of invoking

the express cause of action under Section 1983.

defined by the statute and regulations (20 U.S.C. 1232g(a)(4); 34 C. F. R.

99.3), and personally identifiable information within those records may not

be released or disclosed “without the written consent of theſ] parents” or

unless one of the sixteen carefully drawn exceptions applies. 20 U.S.C.

1232g(b)(1) (1994 & Supp. V 1999); see also 20 U.S.C. 1232g(b)(2). Nor

does FERPA simply “nudge” fund recipients “in the preferred direc-

tion{].” Pennhurst, 451 U.S. at 19. Its prohibition on policies and

practices of unauthorized disclosure as a condition of federal funding is

direct and mandatory.

5 There is an obvious parallel between the inquiry under Section 1983

plaintiff,” Blessing, 520 U.S. at 340, and the initial inquiry in implied-right-

of-action analysis whether “the statute was enacted for the benefit of a

special class of which the plaintiff is a member,” Cannon, 441 U.S. at 689.

See also Pennhurst, 451 U.S. at 28 n.21 (holding that, because the statute

“confers no substantive rights,” there was no need to decide “whether

there is a private cause of action under that section or under 42 U.S.C.

§ 1988 to enforce those rights”). The remaining Cort v. Ash, 422 U.S. 66

(1975) factors—whether Congress intended to create or deny a remedy,

whether the remedy would be consistent with the underlying purposes of

the legislative scheme, and whether it would be inappropriate to infer a

cause of action because the matter is traditionally governed by state law

(id. at 78)—have no direct application to determining whether the cause of

action Congress expressly created in Section 1983 is available to vindicate

the statutory right. That is because the implied cause of action inquiry

—

In Blessing, for example, the Court found no individual

right to judicial enforcement of the requirement that state

child support systems be in “substantial compliance” with

the statute and federal regulations because that provision

spoke in terms of regulating the interactions of the state and

federal governments, rather than creating new federal

rights for individual beneficiaries. See 520 U.S. at 335, 343.

The rent provision at issue in Wright, by contrast, was found

to create an individually enforceable right because the stat-

ute provided formulae and other standards specifying and

limiting the amount of rent that local public housing authori-

ties could charge to a tenant family. 479 U.S. at 420 & n.2.

Similarly, this Court has held that Title VI of the Civil

Rights Act of 1964, and Title IX of the Education Amend-

ments of 1972, protect individuals against discrimination and

create individually enforceable rights because those statutes

are phrased “with an unmistakable focus on the benefited

class.” Cannon, 441 U.S. at 691; see 42 U.S.C. 2000d (Anlo

person” shall “be subjected to discrimination under any pro-

gram or activity receiving Federal financial assistance” on

the basis of race, color, or national origin); 20 U.S.C. 1681

(“{nJo person” shall “on the basis of sex * be subjected

to discrimination under any education program or activity

receiving Federal financial assistance”).

FERPA’s prohibition on non-consensual disclosures is

distinctively phrased as a limitation on the Department of

Education’s disbursement of federal funds. See 20 U.S.C.

1232g(b)(1) (1994 & Supp. V 1999) (“No funds shal] be made

reflects a concern, grounded in separation of powers, that Congress

rather than the courts controls the availability of remedies for vio-

lations of statutes. Because § 1983 provides an “alternative source of

express congressional authorization of private suits,” these separa-

tion-of-powers concerns are not present in a § 1983 case.

Wilder, 496 U.S. at 508-509 n.9 (citations omitted); see also id. at 525-526

(Rehnquist, C. J., dissenting).

available under any applicable program * * *.”); 20 U.S.C.

1232g(b)(2) (same). Unlike the terms of Titles VI and IX,

FERPA does not direct that “no parent or student shall be

subjected to nonconsensual disclosures of their education

records or personally identifiable information contained

therein.” Nor does FERPA specifically prohibit or require

certain conduct on the part of entities that receive federal

funds, unlike the statutes in Wright, Wilder, Suter, and

Blessing. Rather, FERPA speaks directly to the federal

funding agency—the Department of Education—barring it

from furnishing financial assistance to an educational institu-

tion under the specified circumstances.

When statutes are phrased in such « manner, there is “far

less reason to infer a private remedy I. :avor of individual

persons,” or, by the same token, to hold that Congress

intended the legislation to benefit the plaintiff class in the

direct and individualized sense that would support recogni-

tion of a private right of action. Cannon, 441 U.S. at 690-691;

see also California v. Sierra Club, 451 U.S. 287, 294 (1981)

(same); Pennhurst, 451 U.S. at 13 (statute not designed to

benefit plaintiff class where, inter alia, the statutory provi-

sion was phrased in terms of federal and state governments’

“obligation to assure that public funds are not provided to

any institutioln]“ that does not comply with federal stan-

dards). Indeed, in Cannon, the Court indicated that it likely

would not have found an individually enforceable right if

Title IX had been written simply “as a prohibition against

the disbursement of public funds to educational institutions

engaged in discriminatory practices.” 441 U.S. at 692-693;

see also id. at 693 n.14. That is exactly how Congress

structured FERPA.

This case differs in another respect from those in which

this Court has found a private right under a federal Spend-

ing Clause statute that can be enforced through Section

1983. Respondent did not sue under Section 1983 to obtain

the benefit or service that the funding statutes support—

namely, education. He sued to obtain damages for Gonzaga’s

failure to comply with a condition on furnishing of the funds.

FERPA itself does not provide funds to educational

institutions to comply with its terms. Nor does FERPA

impose the type of elaborate plan or reporting requirements

required in Wilder, 496 U.S. at 502-503, and Blessing, 520

U.S. at 332-335, in which the fund recipient commits to and

explains in detail how it will use the federal funds to deliver

the benefits or services that are the raison d’etre of the

federal funding scheme. FERPA’s disclosure provisions are

structured, not as a system for delivering entitlements to

individuals, but rather as a statutory directive “to guide the

(fund recipient] in structuring” its systems for maintaining

records and to superintend the administration of records

created by the recipient in the course of providing the

substantive programs and services (education) that are the

focal point of the federal funding scheme. Blessing, 520 U.S.

at 344. In this respect—and especially in the absence of the

rights-creating language present in Titles VI and IX—

FERPA’s conditions on the furnishing of federal financial

assistance bear a closer resemblance to the data-processing

and similar administrative requirements that this Court held

in Blessing did not give rise to individualized rights, id. at

344-345, than the claims to particular substantive, in-hand

benefits and services that this Court has previously

recognized support a Section 1983 action.

2. The Funding Conditions Under FERPA’s Records-

Disclosure Provisions Focus on the Systemwide

“Policies and Practices” of Fund Recipients

The manner in which Congress phrased the scope of

FERPA’s prohibition on unauthorized disclosures—focusing

on polielies] or “practice[s]” (20 U.S.C. 1232g(b)(1))—like-

wise cuts against the recognition of individual rights that can

be enforced under Section 1983. In determining whether a

statute creates such rights, it is not enough that a statute’s

operation inures generally to the benefit of persons in the

plaintiffs class. Rather, the plaintiff must demonstrate that

the “provision in question,” Golden State, 493 U.S. at 106,

“creat[es] an individual entitlement to services,” benefits, or

immunity from governmental action. Blessing, 520 U.S. at

343 (latter emphasis added). For example, the provision of

the Social Security Act at issue in Suter required States to

exert “reasonable efforts” to keep children in their own

homes. While the overall operation of that provision no

doubt was intended to protect the interests of parents and

children, the Court held that it imposed only a “generalized

duty” on the State and thus did not create individually en-

forceable rights. Likewise, in Blessing, the Court held that

the requirement that States operate child support programs

in “substantial compliance” with extensive federal require-

ments undoubtedly benefitted children and their custodial

parents as a class. The provision, however, did not vest

children or parents with individual rights; it served instead

as a “yardstick for the Secretary [of Health and Human Ser-

vices] to measure the systemwide performance of a State’s

Title IV-D program.” 520 U.S. at 343.

Applying that standard, the Washington Supreme Court

erred in holding that FERPA creates individual rights based

on the generalized goal, gleaned from the legislative history,

of “assur[ing]” and “protect[ing]” parents’ and students’ pri-

vacy interests. Pet. App. 20a (quoting 120 Cong. Rec. 39,862

(1974) (Joint Explanatory Statement of Sponsors)). The

proper inquiry is whether Section 1232g(b)’s disclosure re-

quirements create an individual “entitlement” (Blessing, 520

U.S. at 343), on a case-by-case basis, not to have records

impermissibly disclosed. They do not.

FERPA’s disclosure provisions do not make educational

institutions liable for every non-consensual release of educa-

tion records. They forbid the furnishing of financial assis-

tance only to those educational institutions that have a

“policy or practice” of permitting non-consensual disclosure.

20 U.S.C. 1232g(b)(1) (1994 & Supp. V 1999) 20 U.S.C.

1232g(b)(2). FERPA thus targets an educational institu-

tion’s systemwide approach to disclosing records and infor-

mation and, to that end, requires that operational rules be in

line with federal requirements. The Act provides no specific

protection against particular instances of disclosure and, in

that sense, is not concerned with “whether the needs of any

particular person have been satisfied.” Blessing, 520 U.S. at

343.

Moreover, the non-disclosure provisions in Section

1232g(b) spell out in some detail the components of a proper

school program for the disclosure of records and the per-

sonally identifiable information they contain. Those provi-

sions speak in operational terms of rules and standards

governing disclosure, rather than in terms of individual

rights or entitlements. The nondisclosure provisions read

more like an administrative manual to govern decisions by

school officials than a charter of student and parental entitle-

ments. See 120 Cong. Rec. 39,863 (1974) (Joint Statement)

(FERPA “establish[es] a minimum Federal standard for

record confidentiality and access”); cf. id. at 39,862 (“The

amendment is intended to require educational agencies and

institutions to conform to fair information record-keeping

practices.”) (discussing records access under FERPA).

Indeed, unlike its other provisions, FERPA's disclosure pro-

visions do not refer to parental or student “right[s].” Com-

pare 20 U.S.C. 1232g(b)(1) & (2) (1994 & Supp. V 1999) and

20 U.S.C. 1232g(b)(2) with 20 U.S.C. 1232g(a)(1)(A),

(a)(1)(C)(iii), (e), (d), and (e). Instead, the disclosure provi-

sions have a systemic focus. See Pennhurst, 451 U.S. at 22.°

6 We have been informed by the Department of Education that its

Family Policy Compliance Office, which administers FERPA (see 34

C. F. R. 99.60(a) and (b)), has issued letters of findings applying FERPA’s

Nor does the presence of “rights” language in other

FERPA provisions support the Washington Supreme

Court’s ruling. In the first place, this case concerns only sub-

section (b) of FERPA, and Blessing makes clear that “each

separate” statutory provision must satisfy the analytical test

for identifying Section 1983 rights on its own, without regard

to whether other statutory provisions might create such

rights. 520 U. S. at 342.

In any event, the description of a statutory directive as a

“right” does not, in itself, control the question of whether

Congress intended to “secure[]” those “rights” in the specific

sense in which those terms are used in Section 1983. The

Court must consider the statutory language and legislative

history in context and in light of the Act’s overall structure.

See Pennhurst, 451 U.S. at 18-20 (references to rights and

patient “bill of rights” do not create individually enforceable

rights when read in the context of the statute as a whole).

There are, to be sure, many references in FERPA and its

legislative history to the “rights” of parents and students

terms to particular factual scenarios and finding a violation of FERPA’s

disclosure provisions without separately inquiring whether the alleged

misconduct was part of a larger policy or practice of the educational

institution. In some of the letters, the existence of a policy or practice can

fairly be inferred from the context (see Letter from LeRoy S. Rooker,

Director, Family Policy Compliance Office, to Dr. Kenneth L. Bates (Mar.

11, 1999) (routine meetings with school district officials); Letter from

Director Rooker to Dr. Curtis Culwell (Aug. 5, 1998) (disclosure by school

principal). In others, it appears unlikely that the charged conduct repre-

sented an institutional policy or practice. See Letter from Director

Rooker to Dr. Gregory Adkins (Apr. 8, 1997); Letter from Director

Rooker to Dr. Joseph Bonita (Oct. 5, 1998). In none of those letters, how-

ever, was the Compliance Office called upon to consider the import of the

“policy or practice” language. We have lodged copies of those letters with

the Clerk of the Court. The Department of Education has now considered

that question in the context of this case, and the position taken in this brief

is the position of the Department.

protected by FERPA.’ But most such references serve

simply as a shorthand means of describing the records-main-

tenance and disclosure standards and procedures that Con-

gress imposed on fund recipients. Others just refer to the

parents’ and students’ preexisting “moral or legal rights” to

privacy, S. Conf. Rep. No. 1026, 98d Cong., 2d Sess. 186

(1974); H.R. Conf. Rep. No. 1211, 98d Cong., 2d Sess. 186

(1974), to which FERPA adds an additional layer of federal

protection, and not to the creation of new and independent

federal rights that give rise to a cause of action under

Section 1983 for damages. See 120 Cong. Rec. 14,589 (1974)

(Sen. Goldwater) (FERPA provides “statutory confirma-

tion” of parental rights); id. at 14,590 (in FERPA, “Congress

is willing to be the guardian of [student] privacy”).

Indeed, without suggesting that FERPA created new fed-

eral entitlements or judicially enforceable rights, Congress

was at pains to make clear that FERPA “dofes] not affect”

whatever preexisting “rights a student or his parents might

have in civil proceedings, as in the case where confidentially-

received material causes the student or his parents action-

able damage.” 120 Cong. Rec. 39,863 (1974) (Joint State-

ment); H.R. Conf. Rep. No. 1211, supra, at 187 (“the amend-

ment is intended to protect the legitimate rights of students

to be free from unwarranted intrusions”); 120 Cong. Rec.

26,125 (1974) (Rep. Hanrahan) (FERPA “denies funds to

schools” when they engage in a “blatant violation of the

individual’s right to privacy).

See, e.g., 20 U.S.C. 1232g(a)(1)(Ciii), (d), (e); 120 Cong. Rec. 14,589

(1974) (Sen. Goldwater); 120 Cong. Rec. 26,125 (1974) (Rep. Hanrahan).

8 In this case, respondent has obtained almost $650,000 based on state

law causes of action for invasion of privacy, defamation, and breach of

educational contract. Pet. App. 36a.

3. An Analogy to Nineteenth Century Contract Law

Is Not an Appropriate Basis for Refusing to

Recognize Substantive Rights Enforceable Under

Section 1983

Although, on balance, FERPA's disclosure provisions do

not create substantive rights under federal law, it would be

erroneous to adopt the contention in the petition (Pet. 13-14)

that individuals may not enforce the provisions of Spending

Clause legislation through actions under Section 1983

because, at the time Section 1983 was enacted, a third-party

beneficiary of a contract could not sue to enforce its terms.

See also Blessing, 520 U.S. at 349-350 (Scalia & Kennedy,

JJ., concurring) (leaving open the possibility of adopting that

theory).

First, the argument proceeds from an erroneous premise.

There is no sound basis for subjecting Spending Clause

legislation to a different analysis under Section 1983 than

legislation enacted under other sources of congressional

power. It is commonplace for a federal law not to govern the

conduct of a party unless and until that party voluntarily

undertakes the particular activity that is subject to the law,

whether that be choosing to operate sewage plants subject

to the Clean Water Act, marketing driver’s license infor-

mation subject to the Driver’s Privacy Protection Act of

1994, or accepting federal funds under a federal program.

The voluntariness with which entities agree to subject

themselves to the obligations of federal law thus cannot be

determinative of Section 1983 liability.

Second, while this Court has often said that a law enacted

pursuant to the Spending Clause operates “in the nature of a

contract,” Pennhurst, 451 U.S. at 17, neither the law itself

nor the resulting arrangement with a fund recipient con-

stitutes an ordinary contract. See Bennett v. Kentucky Dep't

of Educ., 470 U.S. 656, 669 (1985) ([The program cannot be

viewed in the same manner as a bilateral contract governing

—— —

a discrete transaction.”). The Act of Congress establishing

the program remains binding law with the full force and pre-

emptive authority of federal legislation under the Suprem-

acy Clause, and thus falls squarely within the “laws” covered

by Section 1983 and is fully capable of “secur[ing]” rights,

within the meaning of that Act. See Dalton v. Little Rock

Family Planning Servs., 516 U.S. 474, 476 (1996); Lawrence

County v. Lead-Deadwood Sch. Dist., 469 U.S. 256, 257-258

(1985); Townsend v. Swank, 404 U.S. 282, 285 (1971). Courts

have traditionally adjudicated claims that rights vested in

third parties by statutes were being invaded by one of the

regulated parties. See, e.g., Pennsylvania v. Wheeling &

Belmont Bridge Co., 54 U.S. (13 How.) 518, 565-566 (1851)

(person not a party to an interstate compact, but who was

injured by its violation, was entitled to “a civil remedy for an

injury done by an obstruction”).

Third, at the time Section 1983 was enacted, an appropri-

ate analogy for Spending Clause legislation—and one that in

fact was relied on in federal grant cases contemporaneous

with the enactment of Section 1983—was that the recipient

served as a trustee for the persons Congress intended its

grants to benefit. See, e.g., Tucker v. Ferguson, 89 U.S. (22

Wall.) 527, 572 (1874) (“The State accepted the grant subject

to all the conditions prescribed. She thereupon became the

agent and trustee of the United States.”); Madison & P. R.

Co. v. Wisconsin, 16 F. Cas. 366 (C.C.W.D. Wis. 1879) (Har-

lan, J.) (No. 8938); Farmers’ Loan & Trust Co. v. Henning, 8

F. Cas. 1045 (C.C.D. Kan. 1878) (No. 4666); Chicago, B. & Q.

R. Co. v. Attorney General, 5 F. Cas. 594 (C.C.D. Iowa 1875)

(No. 2666), aff’d on other grounds, 94 U.S. 155 (1876).? The

9 See also Joel Prentiss Bishop, The First Book of the Law Explaining

the Nature, Sources, Books, and Practical Applications of Legal Science

and Methods of Study and Practice § 468 (Boston 1868) (“The principle on

which a third person is permitted to recover, on a promise made by the

defendant for his benefit, in cases where * * * no part of the consi-

trust analogy comports with the congressional intent

underlying most federal funding statutes because, when the

federal government provides money to an entity in the form

of a grant, the recipient is not-normally expected to use the

money for its own benefit, but rather receives it as part of a

cooperative federal-state endeavor to benefit third parties.

It was well-settled in the 1870s, as it is today, that the

beneficiaries of a trust may sue the trustee for violations of

its obligations. See Duncan v. Jaudon, 82 U.S. (15 Wall.) 165

(1872); Oliver v. Piatt, 44 U.S. (3 How.) 333 (1845); Restate-

ment (Second) of Trusts §§ 197-199 (1957).

Fourth, even if a law passed pursuant to Congress’s

power under the Spending Clause is analogized to a contract,

it is unlikely that Congress would have intended that the

beneficiaries of the program be categorically barred from

enforcing any rights accorded them under the law. Assum-

ing arguendo that the relevant inquiry is the status of con-

tract law at the time of Section 1983’s enactment, rather

than the prevailing law at the time the contract was made,

third party beneficiaries of a contract traditionally were able

to enforce rights granted under a contract, both in England

and in the American courts, and that view predominated in

1873, when Section 1983 was enacted. See Peter Karsten,

The “Discovery” of Law by English and American Jurists of

the Seventeenth, Eighteenth, and Nineteenth Centuries:

Third-Party Beneficiary Contracts as a Test Case, 9 Law

and Hist. Rev. 327, 340-353 (1991); see also id. at 333 (courts

permitted donee-beneficiaries to bring suit in 76% of

reported Nineteenth Century cases).”°

deration proceeded from him, is, that there is some property or thing in the

hands of the defendant, which is the consideration of the promise, held by

the defendant as a trust or a fund.”); Francis Hilliard, The Law of

Contracts 426 (1872).

10 In fact, the first American courts faced with the question applied the

traditional English rule and held that, “when a promise is made to one, for

Indeed, the most prominent and widely available con-

tracts treatise at the time Congress enacted Section 1983”

concluded that, Iiln this country the right of a third party to

bring an action on a promise made to another for his benefit

seems to be somewhat more positively asserted [than in the

English cases]; and perhaps it would be safe to consider this

a prevailing rule with us.” 1 Theophilus Parsons, Law of

Contracts 390 (Ist ed. 1853-1855) (footnote omitted). This

Court appears to have shared that view. Hendrick v. Lind-

say, 93 U.S. 143, 149 (1876) (The right of a party to main-

tain assumpsit on a promise not under seal, made to another

for his benefit, although much controverted, is now the pre-

vailing rule in this country.”) (citing 1 Theophilus Parsons,

Law of Contracts 467 (6th ed. 1873)). And even those

the benefit of another, he for whose benefit it is made may bring an action

for the breach.” See Karsten, supra, at 340 (quoting Schemerhorn v.

Vanderheyden, 1 Johns. (N.Y.) 139 (1806)). By 1859, seventeen American

jurisdictions allowed third-party beneficiaries to sue, while only seven

either did not or severely limited such suits. Karsten, supra, at 340; see

also William W. Story, A Treatise on the Law of Contracts Not Under Seal

82 (Ist ed. 1844) (In cases of simple contract, if one person make a

promise to another for the benefit of a third, although no consideration

move from such third person, it is binding, and either the party to whom it

is made, or the party for whose benefit it is made may maintain an action

upon it.”).

11 See E. Allen Farnsworth, Contracts Scholarship in the Age of the

Anthology, 85 Mich. L. Rev. 1406, 1408-1409 (1987); Karsten, supra, at 353

n.150.

12 See also 1 Joseph Chitty, A Treatise on Pleading and Parties to

Actions 3 (10th Amer. ed. 1847) (“If the instrument be not under seal, it

seems to be a general principle, that the party, for whose sole benefit it is

evidently made, may sue thereon in his own name, although the engage-

ment be not directly to or with him.”); 2 James Kent, Commentaries on

American Law 464 (12th ed. 1873) (O. W. Holmes, ed.) (“But it is under-

stood to be now settled that, in a case of simple contract, if one person

makes a promise to another for the benefit of a third party, the third party

may maintain an action upon it, though the consideration does not move

from him.”). There was less consensus concerning the law regarding

third-party enforcement of contracts under seal. See Arthur L. Corbin,

treatise writers who argued that third party beneficiaries

could not sue to enforce a contract acknowledged a number

of contrary cases recognizing such a right.“

The Brief for the Council of State Governments as Amicus

Curiae in Blessing (cited at 520 U.S. at 350 (Scalia & Ken-

nedy, JJ., concurring)) argued that third-party beneficiaries

had no right to enforce a contract. Most of the authorities

that amicus relied on, however, postdate the enactment of

Section 1983, see Amicus Br. at 10-11 (citing authorities from

1880 and 1887), and pertain to a period of time when some

American courts briefly adopted a stricter view of privity

requirements. See generally Karsten, supra, at 340-353.

Even during that era, however, third party beneficiaries still

generally could enforce their rights in other ways, most

notably by bringing equitable claims. See Arthur L. Corbin,

Contracts for the Benefit of Third Persons, 27 Yale L. J.

1008, 1020-1022 (1918); see also Karsten, supra, 335-337, 366-

368 & nn. 37-49 (citing and discussing the English cases).

At a minimum, the law governing the enforcement of con-

tracts by third-party beneficiaries in 1873 did not so clearly

Contracts for the Benefit of Third Persons, 27 Yale L. J. 1008, 1019 (1918)

(noting that “there is much authority” for the proposition that third-party

beneficiaries could sue to enforce a contract under seal, but “many” courts

“refus[e] to recognize a right in the beneficiary” of such a contract).

Generally speaking, a contract “under seal” was a written commitment, to

which the promisor’s seal was affixed, that became irrevocable upon

delivery to the promisee, regardless of whether there was consideration or

agreement by the promisee. Restatement (First) of Contracts 58 97, 102,

110 (1982).

13 See Theron Metcalf, Principles of the Law of Contracts, as Applied

by the Courts of Law 206 (Boston 1868, 1872) (“There are, however, many

cases of simple contracts in which it has been decided, that where a person

made a promise to another, for the benefit of a third, the third might

maintain an action upon it, though the consideration did not move from

him”); Hilliard, supra, at 426-427 (“many cases in the books, which must be

regarded as maintaining the general proposition, that one party, for whose

benefit a promise has been made to another, may himself maintain an

bar such enforcement as to justify overruling more than two

decades of precedent from this Court under Section 1983,

which Congress itself has endorsed. See 42 U.S.C. 1320a-2,

1320a-10."*

B. Recognizing A Section 1983 Action Would Frustrate

The Enforcement Mechanisms Congress Provided In

FERPA

Even if FERPA creates substantive private rights of the

sort that would otherwise be judicially enforceable, an action

under Section 1983 is not available if Congress has explicitly

or impliedly foreclosed that avenue of relief, such that a

Section 1983 action would be “incompatible,” Blessing, 520

U.S. at 341, or “inconsistent with” the “statutory frame-

work,” Golden State, 493 U.S. at 107. See also Robinson, 468

U.S. at 1009-1013; Sea Clammers, 453 U.S. at 13-20. Where,

as here, Congress has not explicitly foreclosed a Section 1983

action, the determination whether the statute impliedly

precludes such enforcement requires a careful and context-

specific analysis of the overall structure and intended

operation of the federal law, keeping in mind the impact the

action would have on achievement of the statutory purposes.

The inquiry, moreover, should not be wholly divorced from

the question of whether the statute creates individually

enforceable rights. Because the “key to the [Section 1983]

inquiry is the intent of the legislature,” Sea Clammers, 453

U.S. at 13; see also Smith, 468 U.S. at 1012, the less clear the

evidence that Congress intended to create private rights, the

more carefully the court should scrutinize the impact of a

Section 1983 action on the enforcement mechanisms that

4 See Second National Bank v. Grand Lodge, 98 U.S. 123, 124 (1878)

(concluding that although Injo doubt the general rule is that

privity must exist,” there are “confessedly many exceptions to it”);

Bishop, supra, § 468 (finding “plenty of decisions denying the right of the

third party to recover, and plenty of others in which the right wa⸗

intained”)

Congress expressly provided. Furthermore, inherent in the

question of whether a particular statute creates a new

substantive federal right is what the scope of that right is—

a question that necessarily imports considerations of remedy

and relief. In this case, recognition of a private right of

action—especially for damages—would frustrate rather than

further the enforcement scheme Congress established in

FERPA.

This Court has made clear that the federal funding

agency’s “generalized powers” to audit the conduct of the

funding recipient and terminate federal funds are insufficient

to foreclose a cause of action under Section 1983. See Bless-

ing, 520 U.S. at 347-348; Wilder, 496 U.. at 521; Wright, 479

US. at 428. In Blessing, for example, th. ourt found it sig-

nificant that, unlike the federal programs at issue in Sea

Clammers and Robinson, Title IV-D of the Social Security

Act “contain[ed] no private remedy—either judicial or ad-

ministrative—through which aggrieved persons can seek

redress.” 520 U.S. at 348. In addition, in Wilder, 496 U.S. at

523, the Court ruled that state administrative review proce-

dures were insufficient to foreclose Section 1983 enforce-

ment. See also Wright, 479 U.S. at 522 (Section 1983 action

found, in part, because “HUD has not provided any formal

procedure for tenants to bring to HUD’s attention alleged

[Public Housing Authority] failures to abide by the Brooke

Amendment and HUD regulations”).

FERPA provides the individualized, federal review

mechanism that was missing in Blessing, Wilder, and

Wright. First, Congress vested the Secretary of Education

with substantially more authority over funding recipients

than just the power to audit and the severe and inflexible

(and thus rarely used) sanction of funding termination. Con-

gress expressly commanded the Secretary—not the courts—

to “take appropriate actions” to “enforce” FERPA and “to

deal with violations” of its terms. 20 U.S.C. 1232g(f). To

that end, Congress armed the Secretary with the power and

discretion to enforce FERPA by issuing a complaint to com-

pel compliance through a cease-and-desist order, recovering

funds improperly spent, withholding further payments to the

educational institution, entering into a compliance agree-

ment, or takling] any other action authorized by law,“ in-

cluding suing for enforcement of FERPA’s requirements. 20

U.S.C. 1234a, 1234c(a)(4), 1234e; 34 C. F. R. 99.67(a); see also

United States v. Miami Univ., 91 F. Supp. 2d 1132 (S.D.

Ohio 2000), appeal pending, No. 00-3518 (6th Cir.).

Second, Congress directed the Secretary to establish both

an office and a review board “within the Department” for the

purpose of “investigating, processing, reviewing, and adju-

dicating” individual complaints allegling]!“ that an educa-

tional institution has violated FERPA. 20 U.S.C. 1232g(g).

The Secretary has designated the Department’s Family

Policy Compliance Office (Compliance Office) as the office

responsible for carrying out those responsibilities in the first

instance. See 34 C. F. R. 99.60(a) and (b).

The Secretary's administrative review scheme allows par-

ents or students to file with the Compliance Office a written

complaint, 34 C.F.R. 99.63, containing “specific allegations of

fact giving reasonable cause to believe” that a violation of

FERPA has occurred, 34 C.F.R. 99.64(a). The Secretary has

established a limitations period of 180 days for filing such

complaints. 34 C.F.R. 99.64(c). If the complaint is timely

and contains the required information, the Compliance Office

will initiate an investigation, 34 C.F.R. 99.64(b), notify the

educational institution of the charge, and request a written

response, 34 C. F. R. 99.65. After receiving the response, the

Office may entertain “further written or oral arguments or

information.” 34 C.F.R. 99.66(a). If the Office finds a viola-

tion, it provides to both the complainant and the educational

institution a notice of its factual findings and a “statement of

the specific steps that the agency or institution must take to

comply” with FERPA. 34 C. F. R. 99.66(b) and (c)(1). In

addition, the Office must provide “a reasonable period of

time” under the circumstances “during which the educational

agency or institution may comply voluntarily.” 34 C. F. R.

99.64(c)(2).

If voluntary compliance is not achieved, the Secretary

may initiate formal proceedings to compel compliance with

FERPA and to order appropriate relief, such as a cease-and-

desist order. See 34 C.F.R. 81.3, 99.67; see generally 34

C. F. R. Pt. 81, subpt. A (describing proceedings).” Those

enforcement actions may be appealed to the Office of Admi-

nistrative Law Judges—which the Secretary has designated

as the review board requir d by FERPA Section 1232g(f).

See 34 C.F.R. 99.60(c). An administrative law judge (ALJ)

will conduct a hearing on the record, with the particularized

application of evidentiary rules and discovery proceedings,

as the ALJ deems appropriate. 34 C.F.R. 81.15-81.16. The

parties—the fund recipient and the authorized Department

official, see 34 C.F.R. 81.2—may be represented by counsel.

34 C.F.R. 81.8. The ALJ may allow a non-party, such as a

private individual who has filed a complaint under FERPA,

to participate in the proceedings to the extent such par-

ticipation will aid disposition of the case. 34 C. F. R. 81.7. The

ALJ, however, may place “appropriate limits” on that par-

ticipation to ensure the efficient conduct of the proceedings.

34 C. F. R. 81.7(d)(2).

Thus, the individualized review accorded complaints filed

with the Secretary’s Compliance Office—under which it

15 The Department of Education has informed us that, in FERPA’s

nearly three decades of operation, the statutory preference for coopera-

tion and voluntary compliance has proved sufficient to enforce FERPA.

With the exception of one case currently pending against Miami Univer-

sity, see 91 F. Supp. 2d 1132 (S.D. Ohio 2000), the Secretary has not found

it necessary to resort to more formal enforcement measures, such as a

cease-and-desist order.

_—~ |

investigates the facts, applies law to those facts, arrives at a

decision, seeks voluntary compliance, and, if necessary, insti-

tutes formal enforcement proceedings to compel compliance

—fairly approximates the individualized consideration that

plaintiffs seek under Section 1983. At the same time, it

affords claimants the benefits of both the Secretary’s exper-

tise and more prompt and informal procedures, while

enabling the Secretary to screen complaints and protect fund

recipients from unwarranted formal adjudications. That

enforcement mechanism should be regarded as exclusive.“

Recognition of a private cause of action under Section

1983 would, in many ways, duplicate and frustrate the thor-

oughgoing administrative system that Congress prescribed

—and that respondent never invoked. FERPA’s focus on

relatively informal adjudication and voluntary compliance in

the first instance—an approach that has proven extremely

successful in practice—would be overridden whenever a

person claiming a violation of FERPA elects the necessarily

adversarial approach of a privately initiated lawsuit. The

substantial discretion that Congress and the regulations vest

16 Consistent with that understanding, Senator Buckley, the architect

of FERPA, submitted into the Congressional Record a question-and-

answer exchange that strongly indicated that, in the absence of an express

private right of action, administrative review was “the only means of

enforcement” available for FERPA:

14. Is a right of private action created to enforce the Act or is the

HEW compliance mechanism created by the Act the only means of

enforcement?

14. A right of private action was intended in the Buckley

amendment by reference to another part of the Senate bill. However,

the Conference did not accept the complete language of the referred-

to Senate provision, and the explicit right of private action is no

longer in the law at this time. However, it may be interesting to note

that the national PTA and the League of Women Voters are con-

sidering establishing monitoring activities to review and seek com-

pliance with this law.

120 Cong. Rec. 36,534 (1974) (Sen. Curtis, on behalf of Sen. Buckley).

in the Secretary in reviewing individual complaints, initiat-

ing any necessary enforcement actions, selecting appropriate

enforcement measures and remedies, and determining the

appropriate extent of participation by private individuals in

enforcement proceedings, could be trumped by the decision

of any individual parent or student to file suit.

Significantly, moreover, FERPA provides that, “[e]xcept

for the conduct of hearings, none of the functions of the Sec-

retary under this section shall be carried out in any of the re-

gional offices” of the Department of Education. 20 U.S.C.

1232g(g). Congress mandated such centralized review and

enforcement because, given FERPA’s expansive coverage of

every public school student and many private school stu-

dents—including approximately 58 million potential 1983

plaintiffs in public schools it was quite “concern[ed] that

regionalizing the enforcement of the law may lead to multi-

ple interpretations of it, and possibly work a hardship on

parents, students, and institutions.” 120 Cong. Rec. 39,863

(1974) (Joint Statement); H.R. Conf. Rep. No. 1619, supra, at

11 (FERPA amendment “prohibits the regionalization of the

enforcement of [FERPA]”); S. Conf. Rep. No. 1409, 93d

Cong., 2d Sess. 11 (1974) (same); 120 Cong. Rec. 36,528 (1974)

(Sen. Curtis) (Compliance Office “will serve as the focal point

for investigating, processing, and reviewing violations of the

Act”). It is implausible to suppose that the same Congress

that feared balkanization of FERPA by regional offices of

the Department of Education—all of which fall under the

direct control of the Secretary—simultaneously intended to

consign control over FERPA’s interpretation to thousands

of federal and state court judges and juries across the

17 Thomas D. Synder & Charlene M. Hoffman, Nat’l Ctr. for Educ.

Statistics, Digest of Education Statistics 52-53, 204 (forthcoming April

2002); see also 120 Cong. Rec. 39,862 (1974) (Joint Statement) (noting that

FERPA “could possibly apply to each of the thousands of school districts

and colleges across the nation”).

— —— —— ͤ —ʒ3-uÿ

country. Contrast Wilder, 496 U.S. at 505, 522 (Section 1983

action recognized where Congress’s intent was to decentral-

ize administration by reducing the federal role in rate-

setting and enhancing the role of state and local govern-

ments). In short, Congress has textually identified who it

wants to “enforce” FERPA and “deal with” complaints

“alleg{ing] violations” of the Act—and that is the Secretary

of Education, not private plaintiffs. 20 U.S.C. 1232g(f) and

(g).

Finally, the FERPA right claimed here is, at its core, the

right to require fund recipients to comply with the conditions

imposed on their receipt of federal funds. With respect to the

Secretary’s powers, the statute and implementing regula-

tions identify prospective relief, such as a cease-and-desist

order, as the appropriate enforcement tool, with the excep-

tion of the recovery of grant funds in certain circumstances.

A cause of action under Section 1983 for damages for a vio-

lation of FERPA would be inconsistent with that remedial

scheme. Indeed, most of the prior cases in which this Court

recognized a private action under Section 1983 to enforce

rights created by Spending Clause legislation sought only

prospective injunctive relief. See Blessing, 520 U.S. at 337;

Wilder, 496 U.S. at 504 & n.4; Thiboutot, 448 U.S. at 3; see

also Suter, 503 U.S. at 352; Rosado v. Wyman, 397 U.S. 397,

421 (1970); cf. Edelman v. Jordan, 415 U.S. 651, 677 (1974)

(“Though a § 1983 action may be instituted by public aid

18 FERPA thus stands in sharp contrast to statutes like Title VI and

Title IX, where (1) » evidence of congressional intent to create indivi-

dually enforceable rights was so compelling as to support implied rights of

action, (2) enforcement authority is spread across multiple federal

agencies (there are approximately 25 agencies that have Title VI and Title

IX enforcement authority), and (3) regional and decentralized enforcement

is often utilized. See, e. g., 65 Fed. Reg. 52,858, 52,860, 52,858 n.2 (2000); 65

Fed. Reg. 76,462 (2000); U.S. Comm’n on Civil Rights, Federal Title VI

Enforcement to Ensure Nondiscrimination in Federally Assisted Pro-

grams 6-7 (1996).

recipients” to enforce compliance with the conditions im-

posed on federal funding, “a federal court’s remedial power,

consistent with the Eleventh Amendment, is necessarily

limited to prospective injunctive relief, Ex parte Young,

supra, and may not include a retroactive award which

requires the payment of funds from the state treasury.).“

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

ROBERT D. MCCALLUM, JR.

Assistant Attorney General

EDWIN S. KNEEDLER

BRIAN W. JONES *

General Counsel Deputy Solicitor General

Department ducation PATRICIA A. MILLETT

* Assistant to the Solicitor

General

MARK B. SrERN

ALISA B. KLEIN

ANNE MURPHY

Attorneys

FEBRUARY 2002

19 In this case, the Washington Supreme Court upheld an award of

punitive as well as compensatory damages. Pet. App. 28a, 36a. This Court

will address the availability of punitive damages for an implied right of

action to enforce the provisions of Spending Clause legislation (the Reha-

bilitation Act) in Barnes v. Gorman, No. 01-682.

APPENDIX

Statutory and Regulatory Provisions

The Family Educational Rights and Privacy Act of 1974,

20 U.S.C. 1232g (1994 & Supp. V 1999) provides:

§ 1232g. Family educational and privacy rights

(a) Conditions for availability of funds to educational

agencies or institutions; inspection and review of

education records; specific information to be

made available; procedure for access to education

records; reasonableness of time for such access;

hearings; written explanations by parents; defini-

tions

(1)(A) No funds shall be made available under

any applicable program to any educational agency or

institution which has a policy of denying, or which

effectively prevents, the parents of students who are

or have been in attendance at a school of such agency

or at such institution, as the case may be, the right to

inspect and review the education records of their

children. If any material or document in the education

record of a student includes information on more than

one student, the parents of one of such students shall

have the right to inspect and review only such part of

such material or document as relates to such student or

to be informed of the specific information contained in

such part of such material. Each educational agency or

institution shall establish appropriate procedures for

the granting of a request by parents for access to the

education records of their children within a reasonable

period of time, but in no case more than forty-five days

after the request has been made.

(la)

(B) No funds under any applicable program

shall be made available to any State educational agency

(whether or not that agency is an educational agency or

institution under this section) that has a policy of

denying, or effectively prevents, the parents of stu-

dents the right to inspect and review the education

records maintained by the State educational agency on

their children who are or have been in attendance at

any school of an educational agency or institution that

is subject to the provisions of this section.

shall not operate to make available to students in

institutions of postsecondary education the following

materials:

(i) financial records of the parents of

the student or any information contained

therein;

(ii) confidential letters and statements

of recommendation, which were placed in the

education records prior to January 1, 1975, if

such letters or statements are not used for

purposes other than those for which they

were specifically intended;

(iii) if the student has signed a waiver

of the student’s right of access under this

subsection in accordance with subparagraph

(D), confidential recommendations

(I) respecting admission to any

educational agency or institution,

(II) respeeting an application for

employment, and

(III) respecting the receipt of an

honor or honorary recognition.

(D) A student or a person applying for

admission may waive his right of access to confidential

statements described in clause (iii) of subparagraph

(C), except that such waiver shall apply to recommen-

dations only if (i) the student is, upon request, notified

of the names of all persons making confidential recom-

mendations and (ii) such recommendations are used

solely for the purpose for which they were specifically

intended. Such waivers may not be required as a

condition for admission to, receipt of financial aid from,

or receipt of any other services or benefits from such

agency or institution.

(2) No funds shall be made available under any

applicable program to any educational agency or

institution unless the parents of students who are or

have been in attendance at a school of such agency or

at such institution are provided an opportunity for a

hearing by such agency or institution, in accordance

with regulations of the Secretary, to challenge the

content of such student’s education records, in order to

insure that the records are not inaccurate, misleading,

or otherwise in violation of the privacy rights of stu-

dents, and to provide an opportunity for the correction

or deletion of any such inaccurate, misleading or

otherwise inappropriate data contained therein and to

insert into such records a written explanation of the

parents respecting the content of such records.

(3) For the purposes of this section the term

“educational agency or institution” means any public or

private agency or institution which is the recipient of

funds under any applicable program.

(4)(A) For the purposes of this section, the

term “education records” means, except as may be

provided otherwise in subparagraph (B), those records,

files, documents, and other materials which—

(i) contain information directly re-

lated to a student; and

(ii) are maintained by an educational

agency or institution or by a person acting for

such agency or institution.

(B) The term “education records” does not

include—

(i) records of instructional, super-

visory, and administrative personnel and edu-

cational personnel ancillary thereto which are

in the sole possession of the maker thereof

and which are not accessible or revealed to

any other person except a substitute;

(ii) records maintained by a law en-

forcement unit of the educational agency or

institution that were created by that law

enforcement unit for the purpose of law

enforcement;

(iii) in the case of persons who are em-

but who are not in attendance at such agency

or institution, records made and maintained in

the normal course of business which relate

exclusively to such person in that person’s

capacity as an employee and are not available

for use for any other purpose; or

(iv) records on a student who is eight-

een years of age or older, or is attending an

ployed by an educational agency or institution

2 ee PT

institution of postsecondary education, which

are made or maintained by a physician, psy-

chiatrist, psychologist, or other recognized

professional or paraprofessional acting in his

professional or paraprofessional capacity, or

assisting in that capacity, and which are

made, maintained, or used only in connection

with the provision of treatment to the

student, and are not available to anyone other

than persons providing such treatment, ex-

cept that such records can be personally re-

viewed by a physician or other appropriate

professional] of the student’s choice.

(5)(A) For the purposes of this section the

term “directory information” relating to a student

includes the following: the student’s name, address,

telephone listing, date and place of birth, major field of

study, participation in officially recognized activities

and sports, weight and height of members of athletic

teams, dates of attendance, degrees and awards

received, and the most recent previous educational

agency or institution attended by the student.

(8) Any educational agency or institution

making public directory information shall give public

notice of the categories of information which it has

designated as such information with respect to each

student attending the institution or agency and shall

allow a reasonable period of time after such notice has

been given for a parent to inform the institution or

agency that any or all of the information designated

should not be released without the parent’s prior

consent.

(6) For the purposes of this section, the term

“student” includes any person with respect to whom an

educational agency or institution maintains education

records or personally identifiable information, but does

not include a person who has vt been in attendance at

such agency or institution.

(b) Release of education records; parental consent

requirement; exceptions; compliance with judicial

orders and subpoenas; audit and evaluation of

federally-supported education programs; record-

keeping

(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 (o. ersonally identifi-

able information contained therein other than directory

information, as defined in paragraph (5) of subsection

(a) of this section) 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) officials of other schools or school

systems in which the student seeks or intends to enroll,

upon condition that the student’s parents be notified of

the transfer, receive a copy of the record if desired, and

have an opportunity for a hearing to challenge the

content of the record;

(Ci) authorized representatives of (I) the

Comptroller General of the United States, (II) the

Secretary, or (III) State educational authorities, under

the conditions set forth in paragraph (3), or (ii) author-

ized representatives of the Attorney General for law

enforcement purposes under the same conditions as

apply to the Secretary under paragraph (3);

(D) in connection with a student’s appli-

cation for, or receipt of, financial aid;

(E) State and local officials or authorities to

whom such information is specifically allowed to be

reported or disclosed pursuant to State statute

adopted—

(i) before November 19, 1974, if the

allowed reporting or disclosure concerns the

juvenile justice system and such system’s

ability to effectively serve the student whose

records are released, or

(ii) after November 19, 1974, if—

(I) the allowed reporting or disclo-

sure concerns the juvenile justice system and

such system’s ability to effectively serve,

prior to adjudication, the student whose

records are released; and

(II) the officials and authorities to

whom such information is disclosed certify in

writing to the educational agency or institu-

tion that the information will not be disclosed

to any other party except as provided under

State law without the prior written consent of

the parent of the student.

(F) organizations conducting studies for, or

on behalf of, educational agencies or institutions for the

1 So in original. The period probably should be a semicolon.

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 organiza-

tions and such information will be destroyed when no

longer needed for the purpose for which it is conducted;

' (G) accrediting organizations in order to

carry out their accrediting functions;

(H) parents of a dependent student of such

parents, as defined in section 152 of Title 26;

(I) subject to regulations of the Secretary,

in connection with an emergency, appropriate persons

if the knowledge of such information is necessary to

protect the health or safety of the student or other

persons; and

(Ji) the entity or persons designated in a

Federal grand jury subpoena, in which case the court

shall order, for good cause shown, the educational

agency or institution (and any officer, director, em-

ployee, agent, or attorney for such agency or institu-

tion) on which the subpoena is served, to not disclose to

any person the existence or contents of the subpoena

or any information furnished to the grand jury in

response to the subpoena; and

(ii) the entity or persons designated in any

other subpoena issued for a law enforcement purpose,

in which case the court or other issuing agency may

order, for good cause shown, the educational agency or

institution (and any officer, director, employee, agent,

or attorney for such agency or institution) on which the

subpoena is served, to not disclose to any person the

existence or contents of the subpoena or any informa-

tion furnished in response to the subpoena.

Nothing in clause (E) of this paragraph shall prevent a

State from further limiting the number or type of State

or local officials who will continue to have access

thereunder.

(2) No funds shall be made available under any

applicable program to any educational agency or

institution which has a policy or practice of releasing,

or providing access to, any personally identifiable

information in education records other than directory

information, or as is permitted under paragraph (1) of

this subsection, unless—

(A) there is written consent from the stu-

dent’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, or

(B) except as provided in paragraph (1)(J),

such information is furnished in compliance with

judicial order, or pursuant to any lawfully issued

subpoena, upon condition that parents and the

students are notified of all such orders or

subpoenas in advance of the compliance therewith

by the educational institution or agency.

(3) Nothing contained in this section shall pre-

clude authorized representatives of (A) the Comptrol-

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

student or other records which may be necessary in

connection with the audit and evaluation of Federally-

supported education programs, or in connection with

10a

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 identifica-

tion 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,

evaluation, and enforcement of Federal legal require-

ments.

(4)(A) Each educational agency or institution

shall maintain a record, kept with the education

records of each student, which will indicate all indivi-

duals (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 le-

gitimate 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 responsi-

ble for the custody of such records, and to persons or

organizations authorized in, and under the conditions

of, clauses (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 institu-

tion permits access to information in violation of para-

lla

graph (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).

(6)(A) Nothing in this section shall be con-

strued to prohibit an institution of postsecondary

education from disclosing, to an alleged victim of any

crime of violence (as that term is defined in section 16

of Title 18), or a nonforcible sex offense, the final

results of any disciplinary proceeding conducted by

such institution against the alleged perpetrator of such

crime or offense with respect to such crime or offense.

(B) Nothing in this section shall be construed

to prohibit an institution of postsecondary education

from disclosing the final results of any disciplinary

proceeding conducted by such institution against a

student who is an alleged perpetrator of any crime of

violence (as that term is defined in section 16 of Title

18), or a nonforcible sex offense, if the institution deter-

mines as a result of that disciplinary proceeding that

the student committed a violation of the institution’s

rules or policies with respect to such crime or offense.

(c)

12a

final results of any disciplinary proceeding—

(i) shall include only the name of the

student, the violation committed, and any sanc-

tion imposed by the institution on that student;

and

(ii) may include the name of any other

student, such as a victim or witness, only with the

written consent of that other student.

(7)(A) Nothing in this section may be con-

strued to prohibit an educational institution from

disclosing information provided to the institution under

section 14071 of Title 42 concerning registered sex

offenders who are required to register under such

section.

(B) The Secretary shall take appropriate steps

to notify educational institutions that disclosure of

information described in subparagraph (A) is per-

mitted.

Surveys or data-gathering activities; regulations

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

Secretary shall adopt appropriate regulations or pro-

cedures, 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. No survey

or data-gathering activities shall be conducted by the

Secretary, or an administrative head of an education

(d)

(e)

(f)

(g)

13a

agency under an applicable program, unless such

activities are authorized by law.

Students’ rather than parents’ permission or

consent

For the 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 required 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. ;

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 Secre-

tary finds there has been a failure to comply with this

section, and he has determined that compliance cannot

be secured by voluntary means.

Office and review board; creation; functions

The Secretary shall establish or designate an office and

review board within the Department for the purpose of

investigating, processing, reviewing, and adjudicating

violations of this section and complaints which may be

(h)

(i)

l4a

filed concerning alleged violations of this section.

Except for the conduct of hearings, none of the

functions of the Secretary under this section shall be

carried out in any of the regional offices of such

Department.

Disciplinary records; disclosure

Nothing in this section shall prohibit an educa-

tional agency or institution from—

(1) including appropriate information in

the education record of any student concerning

disciplinary action taken against such student for

conduct that posed a significant risk to the safety

or well-being of that student, other students, or

other members of the school community; or

(2) disclosing such information to teachers

and school officials, including teachers and school

officials in other schools, who have legitimate

educational interests in the behavior of the

student.

Drug and alcohol violation disclosures

(1) In general

Nothing in this chapter [20 U.S. C. A. § 1221 et

seq.] or chapter 28 of this title [20 U.S. C. A. § 1001 et

seq.] shall be construed to prohibit an institution of

higher education from disclosing, to a parent or legal

guardian of a student, information regarding any

violation of any Federal, State, or local law, or of any

rule or policy of the institution, governing the use or

possession of alcohol or a controlled substance,

regardless of whether that information is contained in

the student’s education records, if—

15a

(A) the student is under the age of 21; and

(B) the institution determines that the

student has committed a disciplinary violation

with respect to such use or possession.

(2) State law regarding disclosure

Nothing in paragraph (1) shall be construed to

supersede any provision of State law that prohibits an

institution of higher education from making the

disclosure described in subsection (a).

Investigation and prosecution of terrorism

(1) In general

Notwithstanding subsections (a) through (i) or

any provision of State law, the Attorney General (or

any Federal officer or employee, in a position not lower

than an Assistant Attorney General, designated by the

Attorney General) may submit a written application to

a court of competent jurisdiction for an ex parte order

requiring an educational agency or institution to per-

mit the Attorney General (or his designee) to—

(A) collect education records in the possession

of the educational agency or institution that are

relevant to an authorized investigation or prosecution

of an offense listed in section 2332b(g) (5)(B) of Title 18,

or an act of domestic or international terrorism as

defined in section 2331 of that title; and

(B) for official purposes related to the investi-

gation or prosecution of an offense described in para-

graph (1)(A), retain, disseminate, and use (including as

evidence at trial or in other administrative or judicial

proceedings) such records, consistent with such guide-

16a

lines as the Attorney General, after consultation with

the Secretary, shall issue to protect confidentiality.

(2) Application and approval

(A) In general

An application under paragraph (1) shall certify

that there are specific and articulable facts giving rea-

son to believe that the education records are likely to

contain information described in paragraph (1)(A).

(B) The court shall issue an order described in

paragraph (1) if the court finds that the application for

the order includes the certification described in sub-

paragraph (A).

(3) Protection of educational agency or insti-

tution

An educational agency or institution that, in good

faith, produces education records in accordance with an

order issued under this subsection shall not be liable to

any person for that production.

(4) Record-keeping

Subsection (b)(4) of this section does not apply to

education records subject to a court order under this

subsection.

17a

34 C.F.R. Part 99 provides:

34 C.F.R. § 99.1:

§ 99.1 To which educational agencies or institutions do

these regulations apply?

(a) Except as otherwise noted in § 99.10, this part

applies to an educational agency or institution to which funds

have been made available under any program administered

by the Secretary, if—

(1) The educational institution provides educational

services or instruction, or both, to students; or

(2) The educational agency is authorized to direct

and control public elementary or secondary, or post-

secondary educational institutions.

(b) This part does not apply to an educational

agency or institution solely because students attending that

agency or institution receive non-monetary benefits under a

program referenced in paragraph (a) of this section, if no

funds under that program are made available to the agency

or institution.

able to an educational agency or institution of funds under

one or more of the programs referenced in paragraph (a) of

this section—

(1) Are provided to the agency or institution by

grant, cooperative agreement, contract, subgrant, or sub-

contract; or

(2) Are provided to students attending the agency

or institution and the funds may be paid to the agency or

institution by those students for educational purposes, such

as under the Pell Grant Program and the Guaranteed

18a

Student Loan Program (Titles IV-A-1 and IV-B, respec-

tively, of the Higher Education Act of 1965, as amended).

(d) If an educational agency or institution receives

funds under one or more of the programs covered by this

section, the regulations in this part apply to the recipient as

a whole, including each of its components (such as a

department within a university).

34 C. F. R. § 99.2:

§ 99.2 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

section 444 of the General Education Provisions Act, as

amended.

34 C.F.R. § 99.3:

§ 99.3 What definitions apply to these regulations?

The following definitions apply to this part:

Act means the Family Educational Rights and

Privacy Act of 1974, as amended, enacted as section 444 of

the General Education Provisions Act.

Attendance includes, but is not limited to:

(a) Attendance in person or by correspondence;

and

(b) The period during which a person is working

under a work-study program.

Dates of attendance.

(a) The term means the period of time during which

a student attends or attended an educational agency or

19a

institution. Examples of dates of attendance include an

academic year, a spring semester, or a first quarter.

(b) The term does not-include specific daily records

of a student’s attendance at an educational agency or

institution.

Directory information means information contained

in an education record of a student that would not generally

be considered harmful or an invasion of privacy if disclosed.

It includes, but is not limited to, the student’s name, address,

telephone listing, electronic mail address, photograph, date

and place of birth, major field of study, dates of attendance,

grade level, enrollment status (e.g., undergraduate or

graduate; full-time or part-time), participation in officially

recognized activities and sports, weight and height of mem-

bers of athletic teams, degrees, honors and awards received,

and the most recent educational agency or institution

attended.

Disciplinary action or proceeding means the investi-

gation, adjudication, or imposition of sanctions by an edu-

cational agency or institution with respect to an infraction or

violation of the internal rules of conduct applicable to

students of the agency or institution.

Disclosure means to permit access to or the release,

transfer, or other communication of personally identifiable

information contained in education records to any party, by

any means, including oral, written, or electronic means.

Educational agency or institution means any public

or private agency or institution to which this part applies

under § 99.1(a).

Education records.

(a) The term means those records that are:

(1) Directly related to a student; and

20a

(2) Maintained by an educational agency or

institution or by a party acting for the agency or institution.

(b) The term does not include:

(1) Records that are kept in the sole possession of

the maker, are used only as a personal memory aid, and are

not accessible or revealed to any other person except a

temporary substitute for the maker of the record.

(2) Records of the law enforcement unit of an edu-

cational agency or institution, subject to the provisions of §

99.8.

(3) Records relating to an individual who is

employed by an educational agency or institution, that:

(A) Are made and maintained in the normal course

of business;

(B) Relate exclusively to the individual in that

individual’s capacity as an employee; and

(ii) Records relating to an individual in attendance

at the agency or institution who is employed as a result of his

or her status as a student are education records and not

excepted under paragraph (b)(3)(i) of this definition.

(4) Records on a student who is 18 years of age or

older, or is attending an institution of postsecondary edu-

cation, that are: ,

(i) Made or maintained by a physician, psychiatrist,

psychologist, or other recognized professional or

paraprofessional acting in his or her professional capacity or

assisting in a paraprofessional capacity;

(ii) Made, maintained, or used only in connection

with treatment of the student; and

21a

(iii) Disclosed only to individuals providing the treat-

ment. For the purpose of this definition, “treatment” does

not include remedial educational activities or activities that

are part of the program of instruction at the agency or

institution; and

(5) Records that only contain information about an

individual after he or she is no longer a student at that

agency or institution.

Eligible student means a student who has reached 18

years of age or is attending an institution of postsecondary

education.

Institution of postsecondary education means an

institution that provides education to students beyond the

secondary school level; “secondary school level” means the

educational level (not beyond grade 12) at which secondary

education is provided as determined under State law.

Parent means a parent of a student and includes a

natural parent, a guardian, or an individual acting as a

parent in the absence of a parent or a guardian.

Party means an individual, agency, institution, or

organization.

Personally identifiable information includes, but is

not limited to:

(a) The student’s name;

(b) The name of the student’s parent or other

family member;

(e) The address of the student or student’s family;

(d) A personal identifier, such as the student’s

social security number or student number;

(e) A list of personal characteristics that would

make the student’s identity easily traceable; or

22a

(f) Other information that would make the

student’s identity easily traceable.

Record means any information recorded in any way,

including, but not limited to, handwriting, print, computer

media, video or audio tape, film, microfilm, and microfiche.

Secretary means the Secretary of the U.S. De-

partment of Education or an official or employee of the

Department of Education acting for the Secretary under a

delegation of authority.

Student, except as otherwise specifically provided in

this part, means any individual who is or has been in

attendance at an educational agency or institution and re-

garding whom the agency or institution maintains education

records.

34 C. F. R. § 99.4:

§ 99.4 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 re-

lating to such matters as divorce, separation, or custody that

specifically revokes these rights.

34 C. F. R. § 99.5:

§ 99.5 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.

23a

(b) The Act and this part do not prevent edu-

cational agencies or institutions from giving students rights

in addition to those given to parents.

(e) An individual who is or has been a student at an

educational institution and who applies for admission at

another component of that institution does not have rights

under this part with respect to records maintained by that

other component, including records maintained in connection

with the student’s application for admission, unless the

student is accepted and attends that other component of the

institution.

34 C.F.R. § 99.6:

§ 99.6 [Reserved]

34 C.F.R. § 99.7

§ 99.7 What must an educational agency or institution

include in its annual notification?

(a1) Each educational agency or institution shall

annually notify parents of students currently in attendance,

or eligible students currently in attendance, of their rights

under the Act and this part.

(2) The notice must inform parents or eligible

students that they have the right to—

(i Inspect and review the student’s education

records;

(ii) Seek amendment of the student's education

records that the parent or eligible student believes to be

inaccurate, misleading, or otherwise in violation of the

student’s privacy rights;

24a

(iii) | Consent to disclosures of personally identifiable

information contained in the student’s education records,

except to the extent that the Act and § 99.31 authorize

disclosure without consent; and

(iv) File with the Department a complaint under 88

99.63 and 99.64 concerning alleged failures by the edu-

cational agency or institution to comply with the require-

ments of the Act and this part.

(3) The notice must include all of the following:

(i) The procedure for exercising the right to

inspect and review education records.

(ii) The procedure for requesting amendment of

records under § 99.20.

(iii) If the educational agency or institution has a

policy of disclosing education records under § 99.31(a)(1), a

specification of criteria for determining who constitutes a

school official and what constitutes a legitimate educational

interest.

(b) An educational ageney or institution may pro-

vide this notice by any means that are reasonably likely to

inform the parents or eligible students of their rights.

(1) An educational agency or institution shall effec-

tively notify parents or eligible students who are disabled.

(2) An agency or institution of elementary or

secondary education shall effectively notify parents who

have a primary or home language other than English.

34 C.F.R. § 99.8:

§99.8 What provisions apply to records of a law

enforcement unit?

(a1) Law enforcement unit means any individual,

office, department, division, or other component of an

educational agency or institution, such as a unit of commis-

sioned police officers or non-commissioned security guards,

that is officially authorized or designated by that agency or

institution to—

(i) | Enforce any local, State, or Federal law, or

refer to appropriate authorities a matter for enforcement of

any local, State, or Federal law against any individual or

organization other than the agency or institution itself; or

(ii) | Maintain the physical security and safety of the

agency or institution.

(2) A component of an educational agency or

institution does not lose its status as a law enforcement unit

if it also performs other, non-law enforcement functions for

the agency or institution, including investigation of incidents

or conduct that constitutes or leads to a disciplinary action or

proceedings against the student.

(b)(1) Records of a law enforcement unit means those

records, files, documents, and other materials that are—

(i) Created by a law enforcement unit;

(ii) Created for a law enforcement purpose; and

(iii) Maintained by the law enforcement unit.

(2) Records of a law enforcement unit does not

mean—

(i) Records created by a law enforcement unit for a

law enforcement purpose that are maintained by a com-

26a

ponent of the educational agency or institution other than

the law enforcement unit; or

(ii) Records created and maintained by a law en-

forcement unit exclusively for a non-law enforcement pur-

pose, such as a disciplinary action or proceeding conducted

by the educational agency or institution.

(e) ()) Nothing in the Act prohibits an educational

agency or institution from contacting its law enforcement

unit, orally or in writing, for the purpose of asking that unit

to investigate a possible violation of, or to enforce, any local,

State, or Federal law.

(2) Education records, and personally identifiable

information contained in education records, do not lose their

status as education records and remain subject to the Act,

including the disclosure provisions of § 99.30, while in the

possession of the law enforcement unit.

(d) The Act neither requires nor prohibits the dis-

closure by an educational agency or institution of its law

enforcement unit records.

34 C.F.R. § 99.10:

§ 99.10 What rights exist for a parent or eligible student to

inspect and review education records?

(a) Except as limited under § 99.12, a parent or

eligible student must be given the opportunity to inspect and

review the student’s education records. This provision

applies to—

(1) Any educational agency or institution; and

(2) Any State educational agency (SEA) and its

components.

27a

(i) For the purposes of subpart B of this part, an

SEA and its components constitute an educational agency or

institution.

(ii) An SEA and its components are subject to

subpart B of this part if the SEA maintains education re-

cords on students who are or have been in attendance at any

school of an educational agency or institution subject to the

Act and this part.

(b) The educational agency or institution, or SEA

or its component, shall comply with a request for access to

records within a reasonable period of time, but not more

than 45 days after it has received the request.

or its component shall respond to reasonable requests for

explanations and interpretations of the records.

(d) If circumstances effectively prevent the parent

or eligible student from exercising the right to inspect and

review the student’s education records, the educational

agency or institution, or SEA or its component, shall—

(1) Provide the parent or eligible student with a

copy of the records requested; or

(2) Make other arrangements for the parent or elig-

ible student to inspect and review the requested records.

(e) The educational agency or institution, or SEA or

its component shall not destroy any education records if

there is an outstanding request to inspect and review the

records under this section.

(f) While an education agency or institution is not

required to give an eligible student access to treatment

records under paragraph (b)(4) of the definition of “Edu-

cation records” in § 99.3, the student may have those records

28a

reviewed by a physician or other appropriate professional of

the student’s choice.

34 C.F.R. § 99.11:

§ 99.11 May an educational agency or institution charge a

fee for copies of education records?

(a) Unless the imposition of a fee effectively pre-

vents a parent or eligible student from exercising the right

to inspect and review the student’s education records, an

educational agency or institution may charge a fee for a copy

of an education record which is made for the parent or

eligible student.

(b) An educational agency or institution may not

charge a fee to search for or to retrieve the education

records of a student.

34 C.F.R. § 99.12:

§ 99.12 What limitations exist on the right to inspect and

review records?

(a) If the education records of a student contain

information on more than one student, the parent or eligible

student may inspect and review or be informed of only the

specific information about that student.

(b) A postsecondary institution does not have to

permit a student to inspect and review education records

that are:

(1) Financial records, including any information

those records contain, of his or her parents;

29a

(2) Confidential letters and confidential statements

of recommendation placed in the education records of the

student before January 1, 1975, as long as the statements are

used only for the purposes for which they were specifically

intended; and

(3) Confidential letters and confidential statements

of recommendation placed in the student’s education records

after January 1, 1975, if:

(i) The student has waived his or her right to

inspect and review those letters and statements; and _

(ii) Those letters and statements are related to the

student’s:

(A) Admission to an educational institution;

(B) Application for employment; or

(c1) A waiver under paragraph (b)(3)(i) of this

section is valid only if:

(i) The educational agency or institution does not

require the waiver as a condition for admission to or receipt

of a service or benefit from the agency or institution; and

(ii) The waiver is made in writing and signed by the

student, regardless of age.

(2) If a student has waived his or her rights under

paragraph (b)(3)(i) of this section, the educational institution

shall:

(i) Give the student, on request, the names of the

individuals who provided the letters and statements of

recommendation; ana

30a

(ii) Use the letters and statements of recom-

mendation only for the purpose for which they were

intended.

(30) A waiver under paragraph (b)(3)(i) of this

section may be revoked with respect to any actions occurring

after the revocation.

(ii) A revocation under paragraph (c)(3)(i) of this

section must be in writing.

(Authority: 20 U.S.C. 1232g(a)(1)(A), ), C), and OD)

34 C.F.R. § 99.20:

§ 99.20 How can a parent or eligible student request amend-

ment of the student’s education records?

(a) If a parent or eligible student believes the

education records relating to the student contain information

that is inaccurate, misleading, or in violation of the student’s

rights of privacy, he or she may ask the educational agency

or institution to amend the record. :

(b) The educational agency or institution shall

decide whether to amend the record as requested within a

reasonable time after the agency or institution receives the

request.

not to amend the record as requested, it shall inform the

parent or eligible student of its decision and of his or her

right to a hearing under § 99.21.

31a

34 C. F. R. § 99.21:

899.21 Under what conditions does a parent or eligible

student have the right to a hearing?

(a) An educational ageney or institution shall give a

parent or eligible student, on request, an opportunity for a

hearing to challenge the content of the student's education

records on the grounds that the information contained in the

education records is inaccurate, misleading, or in violation of

the privacy rights of the student.

(b)(1) If, as a result of the hearing, the educational

agency or institution decides that the information is

inaccurate, misleading, or otherwise in violation of the

privacy rights of the student, it shall:

(i) Amend the record accordingly; and

(ii) Inform the parent or eligible student of the

amendment in writing.

(2) If, as a result of the hearing, the educational

agency or institution decides that the information in the

education record is not inaccurate, misleading, or otherwise

in violation of the privacy rights of the student, it shall

inform the parent or eligible student of the right to place a

statement in the record commenting on the contested

information in the record or stating why he or she disagrees

with the decision of the agency or institution, or both.

(e) If an educational agency or institution places a

statement in the education records of a student under

paragraph (b)(2) of this section, the agency or institution

shall:

(1) Maintain the statement with the contested part

of the record for as long as the record is maintained; and

32a

(2) Disclose the statement whenever it discloses the

portion of the record to which the statement relates.

34 C.F.R. § 99.22:

§ 99.22 What minimum requirements exist for the conduct

of a hearing?

The hearing required by § 99.21 must meet, at a

minimum, the following requirements:

(a) The educational agency or institution shall hold

the hearing within a reasonable time aiter it has received the

request for the hearing from the parent igible student.

(b) The educational agency or institution shall give

the parent or eligible student notice of the date, time, and

place, reasonably in advance of the hearing.

including an official of the educational agency or institution,

who does not have a direct interest in the outcome of the

hearing.

(d) The educational agency or institution shall give

the parent or eligible student a full and fair opportunity to

present evidence relevant to the issues raised under § 99.21.

The parent or eligible student may, at their own expense, be

assisted or represented by one or more individuals of his or

her own choice, including an attorney.

(e) The educational agency or institution shall make

its decision in writing within a reasonable period of time

after the hearing.

(f) The decision must be based solely on the evi-

dence presented at the hearing, and must include a summary

of the evidence and the reasons for the decision.

34 C.F.R. § 99.30:

§ 99.30 Under what conditions is prior consent required to

disclose information?

(a) The parent or eligible student shall provide a

signed and dated written consent before an educational

agency or institution discloses personally identifiable infor-

mation from the student’s education records, except as

provided in § 99.31.

(b) The written consent must:

(1) Specify the records that may be disclosed;

(2) State the purpose of the disclosure; and

(3) Identify the party or class of parties to whom

the disclosure may be made.

of this section:

(1) Ifa parent or eligible student so requests, the

educational agency or institution shall provide him or her

with a copy of the records disclosed; and

(2) If the parent of a student who is not an eligible

student so requests, the agency or institution shall provided

the student with a copy of the records disclosed.

34 C.F.R. § 99.31:

§ 99.31 Under what conditions is prior consent not

required to disclose information?

(a) An educational agency or institution may dis-

close personally identifiable information from an education

record of a student without the consent required by § 99.30 if

the disclosure meets one or more of the following conditions:

34a

(1) The disclosure is to other school officials,

including teachers, within the agency or institution whom

the agency or institution has determined to have legitimate

educational interests.

(2) The disclosure is, subject to the requirements of

§ 99.34, to officials of another school, school system, or

institution of postsecondary education where the student

seeks or intends to enroll.

(3) The disclosure is, subject to the requirements of

§ 99.35, to authorized representatives of—

(i) The Comptroller General of the United States;

(ii) The Attorney General of the United States;

(iii) The Secretary; or

(iv) State and local educational authorities.

(4)(i) The disclosure is in connection with financial aid

for which the student has applied or which the student has

received, if the information is necessary for such purposes as

to:

(A) Determine eligibility for the aid;

(B) Determine the amount of the aid;

(D) Enforce the terms and conditions of the aid.

(ii) As used in paragraph (a)(4)(i) of this section,

“financial aid” means a payment of funds provided to an

individual (or a payment in kind of tangible or intangible

property to the individual) that is conditioned on the

individual’s attendance at an educational agency or

institution.

(5%) The disclosure is to State and local officials or

authorities to whom this information is specifically—

35a

(A) Allowed to be reported or disclosed pursuant to

State statute adopted before November 19, 1974) if the

allowed reportjng or disclosure concerns the juvenile justice

system and the system’s ability to effectively serve the

student whose records are released; or

(B) Allowed to be reported or disclosed pursuant to

State statute adopted after November 19, 1974, subject to

the requirements of § 99.38.

(i) Paragraph (a)(5)(i) of this section does not

prevent a State from further limiting the number or type of

State or local officials to whom disclosures may be made

under that paragraph.

(6% The disclosure is to organizations conducting

studies for, or on behalf of, educational agencies or

institutions to:

(A) Develop, validate, or administer predictive tests;

(B) Administer student aid programs; or

(ü) The agency or institution may disclose

information under paragraph (a)(6)(i) of this section only if:

(A) The study is conducted in a manner that does not

permit personal identification of parents and students by

individuals other than representatives of the organization;

and

(B) The information is destroyed when no longer

needed for the purposes for which the study was conducted.

(iii) If this Office determines that a third party out-

side the educational agency or institution to whom infor-

mation is disclosed under this paragraph (a)(6) violates

paragraph (a)(6) (ii) (B) of this section, the educational agency

or institution may not allow that third party access to

36a

personally identifiable information from education records

for at least five years.

(iv) For the purposes of paragraph (a)(6) of this

section, the term “organization” includes, but is not limited

to, Federal, State, and local agencies, and independent

organizations.

(7) The disclosure is to accrediting organizations to

carry out their accrediting functions.

(8) The disclosure is to parents, as defined in

§ 99.3, of a dependent student, as defined in section 152 of

the Internal Revenue Code of 1986.

(9\i) The disclosure is to comply with a judicial order

or lawfully issued subpoena.

(ii) The educational agency or institution may

disclose information under paragraph (a)(9)(i) of this section

only if the agency or institution makes a reasonable effort to

notify the parent or eligible student of the order or subpoena

in advance of compliance, so that the parent or eligible

student may seek protective action, unless the disclosure is

in compliance with—

(A) A Federal grand jury subpoena and the court

has ordered that the existence or the contents of the

subpoena or the information furnished in response to the

subpoena not be disclosed; or

(B) Any other subpoena issued for a law enforce-

ment purpose and the court or other issuing agency has

ordered that the existence or the contents of the subpoena or

the information furnished in response to the subpoena not be

disclosed.

(ii) (A) If an educational agency or institution initi-

ates legal action against a parent or student, the educational

agency or institution may disclose to the court, without a

37a

court order or subpoena, the education records of the stu-

dent that are relevant for the educational agency or

institution to proceed with the legal action as plaintiff.

(B) If a parent or eligible student initiates legal

action against an educational agency or institution, the

educational agency or institution may disclose to the court,

without a court order or subpoena, the student’s education

records that are relevant for the educational agency or

institution to defend itself.

(10) The disclosure is in connection with a health or

safety emergency, under the conditions described in § 99.36.

(11) The disclosure is information the educational

agency or institution has designated as “directory infor-

mation”, under the conditions described in § 99.37.

(12) The disclosure is to the parent of a student who

is not an eligible student or to the student.

(13) The disclosure, subject to the requirements in §

99.39, is to a victim of an alleged perpetrator of a crime of

violence or a non-forcible sex offense. The disclosure may

only include the final results of the disciplinary proceeding

conducted by the institution of postsecondary education with

respect to that alleged crime or offense. The institution may

disclose the final results of the disciplinary proceeding,

regardless of whether the institution concluded a violation

was committed.

(14% The disclosure, subject to the requirements in

§ 99.39, is in connection with a disciplinary proceeding at an

institution of postsecondary education. The institution must

not disclose the final results of the disciplinary proceeding

unless it determines that—

(A) The student is an alleged perpetrator of a crime

of violence or non- forcible sex offense; and

38a

(B) With respect to the allegation made against him

or her, the student has committed a violation of the insti-

tution’s rules or policies.

(ii) The institution may not disclose the name of any

other student, including a victim or witness, without the

prior written consent of the other student.

(iii) This section applies only to disciplinary pro-

ceedings in which the final results were reached on or after

October 7, 1998.

(15)G) The disclosure is to a parent of a student at an

institution of postsecondary education regarding the

student’s violation of any Federal, State, or local law, or of

any rule or policy of the institution, governing the use or

possession of alcohol or a controlled substance if—

(A) The institution determines that the student has

committed a disciplinary violation with respect to that use or

possession; and

(B) The student is under the age of 21 at the time of

the disclosure to the parent.

(ii) Paragraph (a)(15) of this section does not

supersede any provision of State law that prohibits an insti-

tution of postsecondary education from disclosing infor-

mation.

(b) Paragraph (a) of this section does not forbid an

educational agency or institution from disclosing, nor does it

require an educational agency or institution to disclose,

personally identifiable information from the education re-

cords of a student to any parties under paragraphs (a)(1)

through (11), (13), (14), and (15) of this section.

34 C. F. R. § 99.32:

§ 99.32 What recordkeeping requirements exist concerning

requests and disclosures?

(a1) An educational agency or institution shall

maintain a record of each request for access to and each

disclosure of personally identifiable information from the

education records of each student.

(2) The agency or institution shall maintain the

record with the education records of the student as long as

the records are maintained.

(3) For each request or disclosure the record must

include:

(i) The parties who have requested or received

personally identifiable information from the education

records; and

(ii) The legitimate interests the parties had in

requesting or obtaining the information.

(b) If an educational agency or institution discloses

personally identifiable information from an education record

with the understanding authorized under § 99.33(b), the

record of the disclosure required under this section must

include:

(1) The names of the additional parties to which the

receiving party may disclose the information on behalf of the

educational agency or institution; and

(2) The legitimate interests under § 99.31 which

each of the additional parties has in requesting or obtaining

the information.

relating to each student:

(1) The parent or eligible student.

40a

(2) The school official or his or her assistants who

are responsible for the custody of the records.

(3) Those parties authorized in § 99.31(a) (1) and (3)

for the purposes of auditing the recordkeeping procedures of

the educational agency or institution.

(d) Paragraph (a) of this section does not apply if the

request was from, or the disclosure was to:

(1) The parent or eligible student;

(2) Aschool official under § 99.31(a)(1);

(3) A party with written consent from the parent or

eligible student;

(4) A party seeking directory information; or

(5) A party seeking or receiving the records as

directed by a Federal grand jury or other law enforcement

subpoena and the issuing court or other issuing agency has

ordered that the existence or the contents of the subpoena or

the in.ormation furnished in response to the subpoena not be

disclosed.

34 C.F.R. § 99.33:

§ 99.33 What limitations apply to the redisclosure of infor-

mation?

(a1) An educational agency or institution may dis-

close personally identifiable information from an education

record only on the condition that the party to whom the

information is disclosed will not disclose the information to

any other party without the prior consent of the parent or

eligible student.

(2) The officers, employees, and agents of a party

that receives information under paragraph (a)(1) of this

4la

section may use the information, but only for the purposes

for which the disclosure was made.

(b) Paragraph (a) of this section does not prevent an

educational agency or institution from disclosing personally

identifiable information with the understanding that the

party receiving the information may make further

disclosures of the information on behalf of the educational

agency or institution if:

(1) The disclosures meet the requirements of

§ 99.31; and

(2) The educational agency or institution has

complied with the requirements of § 99.32(b).

disclosures made to parents of dependent students under

§ 99.31(a)(8), to disclosures made pursuant to court orders,

lawfully issued subpoenas, or litigation under § 99.31(a)(9), to

disclosures of directory information under § 99.31(a)(11), to

disclosures made to a parent or student under § 99.31(a)(12),

to disclosures made in connection with a disciplinary pro-

ceeding under § 99.31(a)(14), or to disclosures made to

parents under § 99.31(a)(15).

(d) Except for disclosures under § 99.31(a)(9), (11),

and (12), an educational agency or institution shall inform a

party to whom disclosure is made of the requirements of this

section.

(e) If this Office determines that a third party im-

properly rediscloses personally identifiable information from

education records in violation of § 99.33(a) of this section, the

educational agency or institution may not allow that third

party access to personally identifiable information from edu-

cation records for at least five years.

34 C.F.R. § 99.34:

§ 99.34 What conditions apply to disclosure of information

to other educational agencies or institutions?

(a) An educational agency or institution that

discloses an education record under § 99.31(a)(2) shall:

(1) Make a reasonable attempt to notify the parent

or eligible student at the last known address of the parent or

eligible student, unless:

(i) The disclosure is initiated by the parent or

eligible student; or

(ii) The annual notification of the agency or

institution under § 99.6 includes a notice that the agency or

institution forwards education records to other agencies or

institutions that have requested the records and in which the

student seeks or intends to enroll;

_ (2) Give the parent or eligible student, upon

request, a copy of the record that was disclosed; and

(3) Give the parent or eligible student, upon

request, an opportunity for a hearing under Subpart C.

(b) An educational agency or institution may

disclose an education record of a student in attendance to

another educational agency or institution if—

(1) The student is enrolled in or receives services

from the other agency or institution; and

(2) The disclosure meets the requirements of

paragraph (a) of this section.

34 C. F. R. § 99.35:

§ 99.35 What conditions apply to disclosure of information

for Federal or State program purposes?

43a

(a) The officials listed in § 99.31(a)(3) may have

access to education records in connection with an audit or

evaluation of Federal or State supported education pro-

grams, or for the enforcement of or compliance with Federal

legal requirements which relate to those programs.

(b) Information that is collected under para h (a

of this section must: *

(1) Be protected in a manner that does not permit

personal identification of individuals by anyone except the

officials referred to in paragraph (a) of this section; and

(2) Be destroyed when no longer needed for the

purposes listed in paragraph (a) of this section.

J) The parent or eligible student has given written

consent for the disclosure under § 99.30; or

+. (2) The collection of personally identifiable informa-

tion is specifically authorized by Federal law.

34 C.F.R. § 99.36:

9 99.36 What conditions apply to disclosure of information

in health and safety emergencies?

(a) An educational agency or institution may dis-

close personally identifiable information from an education

record to appropriate parties in connection with an emer-

gency if knowledge of the information is necessary to protect

the health or safety of the student or other individuals.

(b) Nothing in this Act or this part shall prevent an

educational agency or institution from—

( 1) Including in the education records of a student

appropriate information concerning disciplinary action taken

44a

against the student for conduct that posed a significant risk

to the safety or well-being of that student, other students, or

other members of the school community;

(2) Disclosing appropriate information maintained

under paragraph (b)(1) of this section to teachers and school

officials within the agency or institution who the agency or

institution has determined have legitimate educational

interests in the behavior of the student; or

(3) Disclosing appropriate information maintained

under paragraph (b)(1) of this section to teachers and school

officials in other schools who have been determined to have

legitimate educational interests in he behavior of the

student.

(e) Paragraphs (a) and (b) of this section will be

strictly construed.

34 C.F.R. § 99.37:

§ 99.37 What conditions apply to disclosing directory infor-

mation?

(a) An educational agency or institution may dis-

close directory information if it has given public notice to

parents of students in attendance and eligible students in

attendance at the agency or institution of:

(1) The types of personally identifiable information

that the agency or institution has designated as directory

information;

(2) A parent’s or eligible student’s right to refuse to

let the agency or institution designate any or all of those

types of information about the student as directory infor-

mation; and

45a

(3) The period of time within which a parent or

eligible student has to notify the agency or institution in

writing that he or she does not want any or all of those types

of information about the student designated as directory

information.

(b) An educational agency or institution may

disclose directory information about former students with-

out meeting the conditions in paragraph (a) of this section.

34 C.F.R. § 99.38:

§ 99.38 What conditions apply to disclosure of information

as permitted by State statute adopted after November 19,

1974 concerning the juvenile justice system?

(a) If reporting or disclosure allowed by State

statute concerns the juvenile justice system and the

system’s ability to effectively serve, prior to adjudication,

the student whose records are released, an educational

agency or institution may disclose education records under §

99.31(a)(5)(i)(B).

(b) The officials and authorities to whom the records

are disclosed shall certify in writing to the educational

agency or institution that the information will not be

disclosed to any other party, except as provided under State

law, without the prior written consent of the parent of the

student.

34 C.F.R. § 99.39:

§ 99.39 What definitions apply to the nonconsensual

disclosure of records by postsecondary educational institu-

tions in connection with disciplinary proceedings concerning

crimes of violence or non-forcible sex offenses?

As used in this part:

Alleged perpetrator of a crime of violence is a student

who is alleged to have committed acts that would, if proven,

constitute any of the following offenses or attempts to

commit the following offenses that are defined in appendix A

to this part:

Arson

Assault offenses

Burglary

Criminal homicide—manslaughter by negligence

Criminal homicide—murder and nonnegligent man-

slaughter

Destruction/damage/vandalism of property

Kidnapping/abduction

Robbery

Forcible sex offenses.

Alleged perpetrator of a nonforcible sex offense means

a student who is alleged to have committed acts that, if

proven, would constitute statutory rape or incest. These

offenses are defined in appendix A to this part.

Final results means a decision or determination, made

by an honor court or council, committee, commission, or

other entity authorized to resolve disciplinary matters

within the institution. The disclosure of final results must

include only the name of the student, the violation com-

mitted, and any sanction imposed by the institution against

the student.

Sanction imposed means a description of the dis-

ciplinary action taken by the institution, the date of its im-

position, and its duration.

— — — — ——ůb— —

47a

Violation committed means the institutional rules or

code sections that were violated and any essential findings

supporting the institution’s conclusion that the violation was

committed.

34 C. F. R. § 99.60:

§ 99.60 What functions has the Secretary delegated to the

Office and to the Office of Administrative Law Judges?

(a) For the purposes of this subpart, “Office”

means the Family Policy Compliance Office, U.S. Depart-

ment of Education.

(b) The Secretary designates the Office to:

(1) Investigate, process, and review complaints and

violations under the Act and this part; and

(2) Provide technical assistance to ensure com-

pliance with the Act and this part.

(e) The Secretary designates the Office of Admini-

strative Law Judges to act as the Review Board required

under the Act to enforce the Act with respect to all appli-

cable programs. The term “applicable program” is defined

in section 400 of the General Education Provisions Act.

34 C.F.R. § 99.61:

§ 99.61 What responsibility does an educational agency or

institution have concerning conflict with State or local laws?

If an educational agency or institution determines that

it cannot comply with the Act or this part due to a conflict

with State or local law, it shall notify the Office within 45

days, giving the text and citation of the conflicting law.

34 C.F.R. § 99.62:

§ 99.62 What information must an educational agency or

institution submit to the Office?

The Office may require an educational agency or insti-

tution to submit reports containing information necessary to

resolve complaints under the Act and the regulations in this

part.

34 C.F.R. § 99.63:

§ 99.63 Where are complaints filed?

A parent or eligible student may file a written com-

plaint with the Office regarding an alleged violation under

the Act and this part. The Office’s address is: Family Policy

Compliance Office, U.S. Department of Education, 400 Mary-

land Avenue, S.W., Washington, DC 20202-4605.

34 C.F.R. § 99.64:

§ 99.64 What is the complaint procedure?

(a) A complaint filed under § 99.63 must contain

specific allegations of fact giving reasonable cause to believe

that a violation of the Act or this part has occurred.

(b) The Office investigates each timely complaint to

determine whether the educational agency or institution has

failed to comply with the provisions of the Act or this part.

(e) A timely complaint is defined as an allegation of

a violation of the Act that is submitted to the Office within

180 days of the date of the alleged violation or of the date

that the complainant knew or reasonably should have known

of the alleged violation.

49a

(d) The Office may extend the time limit in this

section for good cause shown.

34 C.F.R. § 99.65:

§ 99.65 What is the content of the notice of complaint

issued by the Office?

(a) The Office notifies the complainant and the

educational agency or institution in writing if it initiates an

investigation of a complaint under § 99.64(b). The notice to

the educational agency or institution—

(1) Ineludes the substance of the alleged violation;

and

(2) Asks the agency or institution to submit a

written response to the complaint.

(b) The Office notifies the complainant if it does not

initiate an investigation of a complaint because the complaint

fails to meet the requirements of § 99.64.

34 C.F.R. § 99.66:

§ 99.66 What are the responsibilities of the Office in the

enforcement process?

(a) The Office reviews the complaint and response

and may permit the parties to submit further written or oral

arguments or information.

(b) Following its investigation, the Office provides

to the complainant and the educational agency or institution

written notice of its findings and the basis for its findings.

50a

(e) If the Office finds that the educational agency

or institution has not complied with the Act or this part, the

notice under paragraph (b) of this section:

(1) Includes a statement of the specific steps that

the agency or institution must take to comply; and

(2) Provides a reasonable period of time, given all

of the circumstances of the case, during which the edu-

cational agency or institution may comply voluntarily.

34 C. F. R. § 99.67:

§ 99.67 How does the Secretary enforce decisions?

(a) If the educational agency or institution does not

comply during the period of time set under § 99.66(c), the

Secretary may, in accordance with part E of the General

Education Provisions Act—

(1) witnhold further payments under any appli-

cable 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.

(b) II, after an investigation under § 99.66, the Sec-

retary finds that an educational agency or institution has

complied voluntarily with the Act or this part, the Secretary

provides the complainant and the agency or institution

written notice of the decision and the basis for the decision.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.