Amicus Curiae Brief — Gonzaga Univ. v. Doe

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In the

Supreme Court of the Gnited States

GONZAGA UNIVERSITY AND ROBERTA S. LEAGUE,

Petitioners,

v.

JOHN DOE,

Respondent.

4

On Writ of Certiorari

To the Supreme Court of the State of Washington

.

BRIEF OF THE STATES OF ILLINOIS,

ALABAMA, DELAWARE, FLORIDA, HAWAII,

MARYLAND, MISSISSIPPI, NEBRASKA, NEVADA,

NEW JERSEY, OHIO, OREGON, UTAH,

WASHINGTON, AND WYOMING AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

4

JAMES E. RYAN

Attorney General of Illinois

JOEL D. RERTOCCHI

Solicitor General

* MICHAEL P. DOYLE

Assistant Attorn mey General

lolph S

ae West Ranc treet

go Tee 0601

ci) 81 814-2503

ounsel for Amici States

Of Counsel:

Dan Schweitzer

National Association of

Attorneys General

190. firs St., by E.

C 20002

(365) Ee 6010

* Counsel of Record

[additional counsel listed on inside cover]

BILL PRYOR

Attorney General of Alabama

State House

11 South Union Street

Montgomery, AL 36130

M. JANE BRADY

Attorney General of Delaware

820 N. French Street

Wilmington, DE 19801

ROBERT A. BUTTERWORTH

Attorney General of Florida

The Capitol, PL-01

Tallahassee, FL 32399

EARL I. ANZAI

Attorney General of Hawaii

425 Queen Street

Honolulu, HI 96813

J. JOSEPH CURRAN, JR.

Attorney General of Maryland

200 Saint Paul Place

Baltimore, MD 21202

MIKE MOORE

Attorney General of

Mississippi

P.O. Box 220

Jackson, MS 39205

DON STENBERG

Attorney General of Nebraska

Department of Justice

2115 State Capitol

Lincoln, NE 68509

FRANKIE SUE DEL PAPA

Attorney General of Nevada

Capitol Complex

Carson City, NV 89710

DAVID SAMSON

Attorney General of New Jersey

Richard J. Hughes Justice Cplx.

25 Market Street, CN 080

Trenton, NJ 08625

BETTY D. MONTGOMERY

Attorney General of Ohio

State Office Tower

30 East Broad Street

Columbus, OH 43215

HARDY MYERS

Attorney General of Oregon

1162 Court Street, NE

Salem, OR 97310

MARK L. SHURTLEFF

Attorney General of Utah

236 State Capitol

Salt Lake City, UT 84114

CHRISTINE O. GREGOIRE

Attorney General of

Washington

1125 Washington Street

Olympia, WA 98504-0100

HOKE MACMILLAN

Attorney General of Wyoming

123 State Capitol

Cheyenne, WY 82002

QUESTION PRESENTED

Whether an individual may maintain an action for

damages under 42 U.S.C. §1983 to enforce provisions

of the Family Educational Rights and Privacy Act of

1974 (FERPA), 20 U.S.C. §1232g, a Spending Clause

statute that prohibits recipients of federal funds from

having a policy or practice of releasing educational

records to unauthorized persons.

‘i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................. iv

INTEREST OF THE AMICI CURIAE .......... 1

SUMMARY OF ARGUMENT ................. 1

EE nitude featetedctdeenaaonel a 3

I. Statutes That Create Conditional Funding

Programs Are Not “Laws” Within The

Meaning Of 42 U.S.C. §1983 ................ 3

A. The 43rd Congress Used “Laws” In

42 U.S.C. §1983 In Its “Generic Sense,”

To Mean Legally Binding Precepts Issued

Se EE eo cduusauededcuacueede eis 4

B. Spending Clause Statutes Merely Set

Forth Contractual Terms That Prosp-

ective Funding Recipients Are Free To

Accept Or Reject And Therefore Are Not

“Laws” That Have Legally Binding Force

C. The 43rd Congress Would Not Have

Intended The “Tort Liability Created By

§1983” To Be Used To Remedy

Contractual Breaches Occasioned By

States’ Failure To Comply With Federal

Funding Conditions .................. 12

II. 42 U.S.C. §1983 Should Not Be Available To

Enforce Conditional Funding Statutes That Do

Not Give Rise To Private Causes Of Action

And Instead Create Administrative Enforce-

ee ceackeuee as 16

SEE 6. nbncvcecsbcccdvecececacees 23

iv

TABLE OF AUTHORITIES

P

CASES: ”

Abeles v. Cochran, 22 Kan. 405 (1879) ......... 14

Alexander v. Sandoval,

i 5, 18, 20

Atascadero State Hosp. v. Scan

113 US 2341985) ee 22

Dleosing v. Freestone,

520 U.S. 329 (1997) ............. 3, 13, 14, 16-18

Chickasaw Nation v. United States,

I 19

City of Newport v. Fact Concerts, Inc.,

453 U.S. 247 (1981) .................. 5, 12-13

City of Providence v. Miller, 11 R.I. 272 (1876) .. 14

College Sav. Bank v. Florida Prepaid Postsec.

Educ. Expense Bd., 527 U.S. 666 (1999) ...... 15

Consumer Prod. Safety Comm'n v. GTE

Sylvania, Inc., 447 U.S. 102 (1980) ........... 5

Davis v. Monroe County Bd. of Educ.,

RE a ee 8

Dugan v. United States, 16 U.S. (3 Wheat.)

IE eng re Se 15

Fay v. South Colonie Cent. Sch. Dist.,

802 F.2d 21 (2d Cir. 1986) ................. 19

Frazier v. Fairhaven Sch. Comm..,

276 F.3d 52 (1st Cir. 2002) ................. 19

Garland v. Davis, 45 U.S. (4 How.) 131 (1846) .. 14

v

Gebser v. Lago Vista Indep. Sch. Dist.,

EE net cnccustueeecceteeeees 8

Girardier v. Webster College,

563 F.2d 1267 (8th Cir. 1977) ............... 19

Golden State Transit Corp. v. City of Los

Angeles, 493 U.S. 103 (1989) ................ 6

Grove City College v. Bell, 465 U.S. 555 (1984) ... 8

Guardians Ass'n v. Civil Serv. Comm'n,

EE os ed eac keen aceeteenee< 21

Gundlach v. Reinstein, 924 F. Supp. 684 (E.D.

Pa. 1996), affd, 114 F.3d 1172 (3d Cir. 1997) .. 21

Hodgson v. Dexter, 5 U.S. (1 Cranch) 345 (1803). 14

Jackson Transit Auth. v. Local Div. 1285, Amalg.

Transit Union, 457 U.S. 15 (1982) ............ 3

Karahalios v. National Fed’n of Fed. Employees,

Local 1263, 489 U.S. 527 (1989) ............. 20

Lawrence County v. Lead-Deadwood Sch. Dist.

No. 40-1, 469 U.S. 256 (1985) ............... 10

Livadas v. Bradshaw, 512 U.S. 107 (1994) ...... 6

Maine v. Thiboutot, 448 U.S. 1 (1980) ...... 3-6, 13

Massachusetts v. Mellon, 262 U.S. 447 (1923) .... 8

McCulloch v. Maryland, 17 U.S. (4 Wheat.)

EE 6. 6008k0000u 005008 ob se vévaseees 6-7

McCurdy v. Rogers, 21 Wis. 197 (1866) ........ 14

McGee v. Mathis, 71 U.S. (4 Wall.) 143 (1866). .11, 12

Memphis Cmty. Sch. Dist. v. Stachura,

EE. con ceeaeeteseesaseces 13

vi

Middlesex County Sewerage Auth. v. National

Sea Clammers Ass’n, 453 U.S. 1 (1981) ........ 5

Morales v. Trans World Air, 504 U.S. 374 (1992) . 7

New York v. United States, 505 U.S. 144 (1992) .. 8

Ogden v. Raymond, 22 Conn. 379 (1853) ....... 14

Oklahoma v. United States Civil Serv.

Comm'n, 330 U.S. 127 (1947) .............. 8,9

Olsson v. Indiana Univ. Bd. of Trustees,

571 N.E.2d 585 (Ind. Ct. App. 1991) ......... 19

Pennhurst Stote Sch. & Hosp. v. Halderm

451 U.S. 1(1981) ...............5. "8, 12, 15, 21

Samuels v. District of Columbia,

770 F.2d 184 (D.C. Cir. 1985) ............... 17

Simonds v. Heard, 40 Mass. (23 Pick.) 120 (1839). .14

Smith v. Robinson, 468 U.S. 992 (1984) ........ 17

South Camden Citizens in Action v. New Jersey

Dep't of Env. Prot., 274 F.3d 771 (3rd Cir. 2001) .21

South Dakota v. Dole, 483 U.S. 203 (1987) ... 8, 21

Suter v. Artist M., 503 U.S. 347 (1992) ...... 8, 21

Tarka v. Franklin, 891 F.2d 102 (5th Cir. 1989) . 19

Tennessee Valley Auth. v. Hill,

ee ee eee hain in dGe concise 17

Townsend v. Swank, 404 U.S. 282 (1971) ...... 10

United States Dep’t of Trans. v. Paralyzed

Veterans of America, 477 U.S. 597 (1986) ...... 8

_ United States Fid. & Guar. Co. v. Guenther,

ee Ce EE cdiced4 ccaneewedtidsséans 6,9

vii

United States v. Marion County Sch. Dist.,

625 F.2d 607 (oth Cir. 1980)............. 10, 15

United States v. Miami Univ.,

91 F. Supp. 2d 1132 (S.D. Ohio 2000) Lee 4,18

United States v. Morgan, 230 F.3d 1067 (8th

Cir. 2000), cert. denied, 122 S. Ct. 62 (2001) .. 9-10

United States v. Tingey,

30 U.S. (5 Peters) 115 (1831) ............... 15

United States v. Wells, 519 U.S. 482 (1997) ..... 12

Victorian v. Miller, 813 F.2d 718 (5th Cir. 1987). 17

Westside Mothers v. Haveman,

133 F. Supp. 2d 549 (E.D. Mich. 2001)......... 9

West Virginia ex rel. Garden State Newspapers,

Inc. v. Hoke, 205 W. Va. 611 (1999) .......... 19

Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498 (1990). 3

Will v. Michigan Dep’t of State Police,

491 U.S. 58 (1989) .............000 eee 5, 13, 22

Wright v. City of Roanoke Redevelopment &

Hous. Auth., 479 U.S. 418 (1987) ....... 3, 13, 17

CONSTITUTIONAL AND STATUTORY PROVISIONS:

U.S. Const. art. I, §8, cl. 1 ..............0005- 7 oe

U.S. Const. art. VI, cl. 2 ...... ccc eeeeseees 6,9

U.S. Const. art. IV, §3, cl. 2 ............000e- 12

DG. EEE ccceecdederctcveceeeueseceseeees 4

SO UB, GRD cc cccccccccccccccccccess 18

SP ED cccccevescevescsccsicese 18

GEG, Be oc ccc cecccscccccccesens: passim

Viii

OTHER MATERIALS:

2 Burrill’s Law Dictionary 132 (2d ed. 1867) ..... 6

50 Comp. Gen. 470 (1970) ..................-. 8

Lynn M. Daggett & Dixie Snow Huefner,

Recognizing Schools’ Legitimate Educational

Interests: Rethinking FERPA’s Approach to the

Confidentiality of Student Discipline and Class-

room Records, 51 Am. U. L. Rev. 1 (2001) ... 4,18

Fortunatus Dwarris, A General Treatise

I de kT 6

David E. Engdahl, The Spending Power,

a I 6 wi o oee seeds cased dun 10

William Paley, A Treatise on the Law of

Principal & Agent (4th ed. 1856) ............ 14

Joseph Story, Commentaries on the Law

of Agency §261 (8th ed. 1874) ............... 14

1 William W. Story, A Treatise on the Law

of Contracts §247 (5th ed. 1874) ............. 14

Cass R. Sunstein, Section 1983 and the

Private Enforcement of Federal Law,

49 U. Chi. L. Rev. 394 (1982) ............... 17

INTEREST OF THE AMICI CURIAE

This case addresses the extent to which 42 U.S.C.

§1983 may be used to vindicate rights allegedly

secured under conditional funding statutes enacted

pursuant to Congress’s spending power, and in

particular whether §1983 may be used to vindicate

rights allegedly created by FERPA. The States have a

strong interest in the resolution of both the general

and particular issues. States, state agencies, and state

officials participate in hundreds of cooperative state-

federal programs developed by Congress under its

Spending Clause power. In addition, States are bound

to observe FERPA’s requirements to the extent they

receive federal funding in connection with their

operation of public universities and other schools.

SUMMARY OF ARGUMENT

1. The question in this case is whether FERPA

may be enforced through 42 U.S.C. §1983, which

provides a cause of action against anyone who, acting

under color of state law, causes deprivations of “rights

... secured by the Constitution and laws.” The answer

is no. Conditional funding statutes like FERPA do not

“secure” rights and are not “laws” within the meaning

of §1983. Instead, statutes enacted pursuant to the

Spending Clause (U.S. Const. art. I, §8, cl. 1) merely

set forth conditions that prospective recipients must

abide by if they choose to.accept federal funds. If funds

are accepted, the attached conditions become legally

binding as a matter of basic contract law. But it is the

resulting contract between the government and the

funds recipient, not the statute describing the

conditions attached to funds, that creates and secures

rights for third-party beneficiaries. Because contracts

2

of this sort are not “laws” within the meaning of §1983,

they cannot be enforced through that provision.

2. Even if conditional funding statutes are “laws”

within the meaning of §1983, actions under that

provision should not be available to enforce those

funding statutes, including FERPA, that create

administrative enforcement mechanisms but do not

create private rights of action. With respect to statutes

of this sort, Congress obviously believes that the

administrative mechanism is a sufficient vehicle for

policing compliance with funding conditions on the

part of private recipients. There is no reason to suspect

that Congress has the precise opposite belief with

respect to public fund recipients, and therefore intends

to subject those recipients to enforcement actions

brought under §1983. Instead, the presumption should

be that Congress intends to treat private and public

fund recipients equally. Conditional funding statutes

like FERPA are, after all, contractual in nature, and

they create the same contract between the federal

government and every entity that accepts federal

funds, whether public or private.

Accordingly, unless Congress expressly authorizes

§1983 actions against public fund recipients to enforce

conditional funding statutes, the Court should presume

that Congress intends for administrative mechanisms

to be sufficient and exclusive enforcement vehicles, just

as they are with respect to private fund recipients.

And because FERPA contains no express language

authorizing §1983 enforcement actions, the Court

should conclude that such actions cannot go forward.

3

ARGUMENT

I. Statutes That Create Conditional Funding

Programs Are Not “Laws” Within The

Meaning Of 42 U.S.C. §1983.

In Maine v. Thiboutot, 448 U.S. 1, 4 (1980), this

Court held that the phrase “and laws” as used in

42 U.S.C. §1983 “means what it says,” so that §1983

“broadly encompasses violations of federal statutory

... law.” Since Thiboutot, this Court has proceeded on

the view that conditional funding statutes enacted

pursuant to Congress’s spending power may secure

rights enforceable under §1983. See, e.g., Blessing v.

Freestone, 520 U.S. 329, 340-48 (1997); Wilder v.

Virginia Hosp. Ass'n, 496 U.S. 498, 501 (1990); Wright

v. City of Roanoke Redevelopment & Hous. Auth., 479

U.S. 418, 419 (1987); Jackson Transit Auth. v. Local

Div. 1285, Amalgamated Transit Union, 457 U.S. 15,

29 n.12 (1982). This view bears reexamination.

Although Thiboutot’s main point—that “and laws”

embraces statutory as well as constitutional rights—

may be sound, it does not follow that all congressional

enactments are “laws” in the sense contemplated by

§1983. To the Reconstruction-era Congress, “laws”

meant the general run of statutes that compel or forbid

conduct, regulate relationships, and otherwise create

rights and duties. Conditional funding statutes

enacted pursuant to the Spending Ciause do none of

these things. Unlike most federal enactments,

conditional funding statutes have no obligatory force;

they only set forth conditions that become obligatory as

a matter of contract law once a prospective recipient

accepts federal funds. Consequently, conditional

4

funding statutes like FERPA are not “laws” that

“s_cure rights” within the meaning of 42 U.S.C. §1983.'

Because Thiboutot and its progeny have not accounted

for the unique nature of conditional funding statutes,

the Court should consider the matter anew and hold

that such statutes may not be enforced in actions

brought under §1983.

A. The 43rd Congress Used “Laws” In

42 U.S.C. §1983 In Its “Generic Sense,”

To Mean Legally Binding Precepts

Issued By A Sovereign.

Section 1 of the Civil Rights Act of 1871 imposed

liability on anyone who deprived a person of rights

“secured by the Constitution of the United States.” 17

Stat. 13. In 1874, the 43rd Congress amended the

statute, which was later codified at 42 U.S.C. §1983, to

protect rights secured by “the Constitution and laws.”

In Thiboutot the Court construed this amendment

broadly to embrace all federal statutes. 448 U.S. at 4.

But even if a broad construction of the amendment is

warranted, the 43rd Congress did not intend to expand

§1983’s coverage to include rights secured through

Spending Clause legislation.

' It is beyond dispute that Congress enacted FERPA

pursuant to its power to spend for the general welfare. See

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

2000); Gundlach v. Reinstein, 924 F. Supp. 684, 690 (E.D. Pa.

1996), affd, 114 F.3d 1172 (3d Cir. 1997); see also Lynn M.

Daggett & Dixie Snow Huefner, Recognizing Schools’ Legitimate

Educational Interests: Rethinking FERPA’s Approach to the

Confidentiality of Student Discipline and Classroom Records, 51

Am. U. L. Rev. 1, 5 (2001).

5

“(T]he starting point for interpreting a statute is

the language of the statute itself.” Consumer Prod.

Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102,

108 (1980); see also Middlesex County Sewerage Auth.

v. National Sea Clammers Ass'n, 453 U.S. 1, 13 (1981).

If the statute’s text and structure are clear, then the

interpretative task is at an end, Alexander v. Sandoval,

532 U.S. 275, 288 & n.7 (2001), but if the statute’s

language is ambiguous, then “we review the legislative

history and other traditional aids of statutory

interpretation to determine congressional intent.”

National Sea Clammers, 453 U.S. at 13. When

construing §1983 in particular, the Court presumes

that the Reconstruction-era Congress was familiar

with the common law, and therefore attempts to read

the statute to comport with common law principles

absent evidence that Congress intended to depart from

them. See Will v. Michigan Dep't of State Police, 491

U.S. 58, 67 (1989); City of Newport v. Fact Concerts,

Inc., 453 U.S. 247, 258 (1981).

The phrase “and laws” as used in 42 U.S.C. §1983

does not plainly include or exclude conditional funding

legislation enacted pursuant to the Spending Clause.

In addition, “not a single shred of evidence in the

legislative history” explains why Congress added this

phrase to the statute. Thiboutot, 448 U.S. at 14

(Powell, J., dissenting). Yet Congress obviously

intended “and laws” to refer to some category of

statutes; even the dissenting justices in Thiboutot

agreed that the phrase encompassed the equal rights

legislation contained in the Civil Rights Acts of 1866

and 1870. Id. at 19 n.6 (Powell, J., dissenting).

Because §1983 contains no language modifying “and

laws,” the Thiboutot majority took the view that the

" 6

phrase warranted a broad construction, and thus

concluded that all federal statutes, not just equal

rights legislation, fall within its ambit. 448 U.S. at 4.

But if the Thiboutot Court was correct that “laws”

was intended to have a broad meaning, then the 43rd

Congress most likely used the term in its “generic

sense, aS meaning the rules of action or conduct duly

prescribed by controlling authority, and having binding

legal force; including . . . statutes.” United States Fid.

& Guar. Co. v. Guenther, 281 U.S. 34, 37 (1930). This

“generic sense” of the term would have been commonly

accepted in 1874. See, e.g., Fortunatus Dwarris, A

General Treatise on Statutes 38 (1871) (defining

“statutes” as encompassing “those rules of conduct

which are introduced by the lawmaking power in an

express and positive form; which control the particular

cases and circumstances to which they relate or

describe”); 2 Burrill’s Law Dictionary 132 (2d ed. 1867)

(defining “law” as “a rule of civic conduct, prescribed by

the supreme power in a state”).

Applying this conception of “laws” to §1983 cannot

be objectionable, because it comports with the

Thiboutot Court's understanding that the term

requires a broad reading. It encompasses, for example,

the Civil Rights Acts of 1866 and 1870, as well as the

National Labor Relations Act, see Livadas uv.

Bradshaw, 512 U.S. 107, 132 (1994) (NLRA secures

rights enforceable under 42 U.S.C. §1983); Golden

State Transit Corp. v. City of Los Angeles, 493 U.S.

103, 109 (1989) (same). Indeed, most statutes enacted

by Congress prescribe rules of action or conduct and

have binding legal force as the “supreme Law of the

Land,” U.S. Const. art. VI, cl. 2; McCulloch uv.

7

Maryland, 17 U.S. (4 Wheat.) 316, 406 (1819), and are

therefore “laws” as the 43rd Congress would have

understood that term.

There is no evidence to support the view, however,

that the 43rd Congress intended “and laws” as used in

§1983 to extend beyond the broad, generic sense

described above. See Morales v. Trans World Airlines,

504 U.S. 374, 383 (1992) (Court assumes that

“ordinary meaning of [statutory] language accurately

expresses the legislative purpose” (internal quotations

and citation omitted)). The question, then, is whether

conditional funding programs enacted pursuant to the

Spending Clause are “laws” within this generic sense.

As the following section shows, the answer is no.

B. Spending Clause Statutes Merely Set

Forth Contractual Terms That

. Prospective Funding Recipients Are

Free To Accept Or Reject And Therefore

Are Not “Laws” That Have Legally

Binding Force.

Conditional funding statutes enacted pursuant to

the Spending Clause are not laws in the “generic

sense” described above. Unlike most federal laws,

conditional funding statutes do not prescribe rules of

action or conduct and have no legal force. Instead,

they merely spell out the conditions that prospective

fund recipients must abide by if they agree to accept

funds. Therefore, they are not “laws” which may be

enforced through actions brought under 42 U.S.C.

§1983.

As this Court has repeatedly explained, conditional

funding programs enacted pursuant to the Spending

Clause are contractual in nature: in return for federal

funds, the recipient (whether a State or private entity)

agrees to abide by conditions imposed by the federal

government. See Davis v. Monroe County Bd. of Educ.,

526 U.S. 629, 640 (1999); Gebser v. Lago Vista Indep.

Sch. Dist., 524 U.S. 274, 286 (1998); Suter v. Artist M.,

503 U.S. 347, 356 (1992); Pennhurst State Sch. and

Hosp. v. Halderman, 451 U.S. 1, 17 (1981).’

Prospective fund recipients may, if they so choose,

decline federal funds if the attached conditions are

objectionable, see, e.g., South Dakota v. Dole, 483 U.S.

203, 211-12 (1987); Pennhurst, 451 U.S. at 11;

Oklahoma v. United States Civil Serv. Comm’n, 330

U.S. 127, 143-44 (1947); Massachusetts v. Mellon, 262

U.S. 447, 480 (1923), and in such imstances the

conditions will not be enforced, see New York v. United

States, 505 U.S. 144, 167-68 (1992); Grove City College

uv. Bell, 465 U.S. 555, 575 (1984). The acceptance of the

funds is thus a voluntary choice, and the conditions

accompanying the funds become obligatory only when

that choice is made. See Pennhurst, 451 U.S. at 17

(“The legitimacy of Congress’s power to legislate under

the spending power thus rests on whether the State

voluntarily and knowingly accepts the terms of the

‘contract.”); cf. United States Dep't of Trans. v.

Paralyzed Veterans of America, 477 U.S. 597, 605

(1986) (through section 504 of the Rehabilitation Act of

? The Comptroller General has long taken the view that “the

acceptance of a grant of Federal funds which is not unconditional

but is subject to conditions which must be met by the grantee

creates a valid contract between the United States and the

grantee.” 50 Comp. Gen. 470 (1970).

9

1973, Congress “enters into an arrangement in the

nature of a contract with the recipient of the funds; the

recipient’s acceptance of the funds triggers coverage

under the [Rehabilitation Act]”).

Given the contractual nature of conditional funding

programs, it is plain enough that legislation creating

such programs cannot be equated with “law” in its

“generic sense, as meaning the rules of action or

conduct duly prescribed by controlling authority, and

having binding legal force.” Guenther, 281 U.S. at 37.

Although conditional funding statutes are “laws” in the

sense of being congressional enactments, they do not

secure rights or impose duties and may be ignored or

rejected without sanction. Thus, if Congress seeks to

advance a federal policy through a conditional funding

program enacted pursuant to its spending power,

States or private parties can effectively thwart that

policy by declining to participate in the program.

Oklahoma v. United States Civil Serv. Comm'n, 330

U.S. at 143-44, is an illustration; there Oklahoma

thwarted federal policy by adopting the “simple

expedient” of refusing to comply with the Hatch Act.

This is a far cry from the typical federal statute, which,

so long as it respects constitutional limits, must be

obeyed as the “supreme Law of the Land,” U.S. Const.

art. VI, cl. 2. See Westside Mothers v. Haveman, 133 F.

Supp. 2d 549, 561-62 (E.D. Mich. 2001) (Spending

Clause legislation does not fall within the Supremacy

Clause); United States v. Morgan, 230 F.3d 1067, 1073

(8th Cir. 2000) (Bye, J., concurring) (“Congress may

indirectly regulate state conduct by attaching ‘strings’

to grants of money given to state and local

governments, but those strings aren't laws.” (emphasis

in original) (citation omitted)), cert. denied, 122 S. Ct.

10

62 (2001).* In short, a statute that has no obligatory

force can hardly be deemed a “law” in the sense

contemplated by the 43rd Congress.

To be sure, conditions attached to federal funds are

legally enforceable once a State or other entity accepts

those funds. But the obligation arises as a matter of

contract law, not as a matter of legislative decree. See

United States v. Marion County Sch. Dist., 625 F.2d

607, 609-11 (5th Cir. 1980) (United States may bring

contract action to compel fund recipients to comply

with federal funding conditions). As one commentator

has explained: “What makes [federal funding]

conditions obligatory is [their] essence as contract,

wholly apart from the circumstance that they happen

to be spelled out in a statute or an agency rule.

Although articulated in a statute or rule, they have no

force as ‘law’; their force is only contractual.” David E.

a The Spending Power, 44 Duke L. J. 1, 71

The same reasoning applies to third-party rights

“secured” under conditional funding programs. Rights

* Outside the §1983 context, this Court has held that, once a

recipient has accepted federal funds, the conditions attached to

those funds trump contrary state laws by virtue of the Supremacy

Clause. See, e.g., Lawrence County v. Lead-Deadwood Sch. Dist.

No. 40-1, 469 U.S. 256, 258 (1985); Townsend v. Swank, 404 U.S.

282, 285 (1971). These decisions do not, however, account for the

contractual nature of Spending Clause programs, a point Chief

Justice Burger observed in Townsend: “Congress has used the

‘power of the purse’ to force the States to adhere to its wishes to

a certain extent; but adherence to the provisions of Title IV [of the

Social Security Act] is no way mandatory upon the States under

the Supremacy Clause.” 404 U.S. at 292 (Burger, CWJ.,

concurring).

11

of this nature arise by virtue of the fund recipient’s

contractual agreement to accept the conditions

attached to the funds, not by virtue of any statutory

enactment. Indeed, if prospective recipients decline

funds offered under a federal spending program, then

the rights contemplated by the statute creating the

program do not come into existence. It follows that

rights “secured” under conditional funding programs

are secured by the common law of contract, not by any

statutory law. And it has never been suggested that

“and laws” as used in 42 U.S.C. §1983 should be

construed to include the common law of contract.

The 43rd Congress would have understood that

Spending Clause legislation derives its obligatory force

from principles of contract law. In McGee v. Mathis, 71

U.S. (4 Wall.) 143 (1866), the Court discussed the legal

obligations arising from an 1850 statute through which

the United States granted lands to Arkansas on the

condition that steps would be taken to cultivate them.

The Court stated:

It is not doubted that the grant by the United

States to the State upon conditions, and the

acceptance of the grant by the State,

constituted a contract. All the elements of a

contract [are] met in the transaction, —

competent parties, proper subject-matter,

sufficient consideration, and consent of minds.

This contract was binding upon the State, and

could not be violated by its legislation without

infringement of the [Contract Clause of the]

Constitution.

71 U.S. (4 Wall.) at 155. Congress’s power to dispose

of lands derives not from the Spending Clause but from

12

the Property Clause, U.S. Const. art. IV, §3, cl. 2, but

Mathis illustrates the general principle that legislative

acts granting benefits to States with conditions

attached are, once accepted, binding on the States as a

matter of contract law. The 43rd Congress was

presumably aware of this principle, and would have

expected the “and laws” language contained in 42

U.S.C. §1983 to be construed with it in mind. See

United States v. Wells, 519 U.S. 482, 495 (1997) (“we

presume that Congress expects its statutes to be read

in conformity with this Court’ precedents”).

Therefore, this Court should conclude that the 43rd

Congress did not intend for conditional funding

statutes enacted pursuant to the Spending Clause to be

considered “laws” within the meaning of §1983.

C. The 48rd Congress Would Not Have

Intended The “Tort Liability Created By

§1983” To Be Used To Remedy

Contractual Breaches Occasioned By

States’ Failure To Comply With Federal

Funding Conditions.

Additional evidence that the 43rd Congress did not

intend §1983 to be used as an enforcement vehicle for

conditional spending programs may be gleaned from

considering how far such a remedy would have

departed from common law principles in 1874. If, as

this Court has insisted, conditional funding programs

are contractual in nature, Pennhurst, 451 U.S. at 17, it

follows that violations of the conditions attached to

federal funds are contractual breaches. Providing a

remedy for such breaches through the “tort liability

created by §1983,” Fact Concerts, 453 U.S. at 258,

13

would have been a significant and surprising

innovation in the late 19th century. Because there is

no evidence that Congress intended this innovation,

this Court should hold that §1983 cannot be used to

enforce rights secured through conditional funding

programs.

When a §1983 damages suit is brought to vindicate

alleged rights under a conditional funding program,

the plaintiff is typically not a party to the contract but

instead is a third-party beneficiary. See Blessing, 520

U.S. at 349-50 (Scalia, J., concurring). In addition, the

action is not directed against the State that entered

into the contract—the State is not a “person” amenable

to suit under 42 U.S.C. §1983, Will, 491 U.S. at 64—

but instead is directed against a non-party to the

contract (i.e., a public official in his individual capacity

who acts as an agent of the State). See Wright, 479

U.S. at 423 (“Maine v. Thiboutot held that §1983 was

available to enforce violations of federal statutes by

agents of the State.” (citation omitted)). Therefore, the

typical §1983 action to enforce Spending Clause

legislation may fairly be described as one non-party to

a contract suing another non-party for a contractual

breach under what is essentially a tort statute.‘

It is highly unlikely that the 43rd Congress would

have intended such an odd remedial scheme. As

Justice Scalia pointed out in his concurring opinion in

Blessing, the general rule in 1874 appears to have been

* Section 1983 “creates a species of tort liability” and

damages under the statute are “ordinarily determined according

to principles derived from the common law of torts.” Memphis

Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 305-06 (1986)

(internal quotations and citations omitted)).

14

that third-party beneficiaries were not permitted to sue

on contracts. 520 U.S. at 349-50. Another general rule

at that time was that agents were not liable for

breaches of contracts they executed or performed on

behalf of their principals. See, e.g., Abeles v. Cochran,

22 Kan. 405, 414 (1879) (Brewer, J.); Ogden v.

Raymond, 22 Conn. 379, 384 (1853); Simonds v. Heard,

40 Mass. (23 Pick.) 120, 124 (1839); Joseph Story,

Commentaries on the Law of Agency §261 (8th ed.

1874); 1 William W. Story, A Treatise on the Law of

Contracts §247 (5th ed. 1874); William Paley, A

Treatise on the Law of Principal & Agent 368 (4th ed.

1856).

This was especially true in the case of public

officials. See, e.g., Garland v. Davis, 45 U.S. (4 How.)

131, 148 (1846) (“public agents are not usually liable

on mere contracts or promises made in behalf of their

principals”); City of Providence v. Miller, 11 R.I. 272,

277 (1876); McCurdy v. Rogers, 21 Wis. 197, 202-03

(1866). As Chief Justice Marshall explained in

Hodgson v. Dexter, 5 U.S. (1 Cranch) 345, 363-64

(1803): “A contrary doctrine would be productive of the

most injurious consequences to the public, as well as to

individuals. The government is incapable of acting

otherwise than by its agents, and no prudent man

would consent to become a public agent, if he should be

made personally responsible for contracts on the public

account.”

Had Congress intended to cast aside these settled

and sensible rules in the case of contractual obligations

arising out of Spending Clause programs, it would

have done so in unmistakable terms, not by simply

adding the phrase “and laws” to section 1 of the Civil

15

Rights Act of 1871. There is nothing to suggest,

moreover, that the 43rd Congress saw a need to upset

the prevailing common law rules. By 1874 it was

established that the United States could sue to enforce

its own contracts, see United States v. Tingey, 30 U.S.

(5 Peters) 115, 128 (1831); Dugan v. United States, 16

U.S. (3 Wheat.) 172, 181 (1818); Marion County Sch.

Dist., 625 F.2d at 611, so it was not as if the States

were (or are today) free to disregard their obligations

under conditional funding programs. Cf. Pennhurst,

451 U.S. at 28 (“In legislation enacted pursuant to the

spending power, the typical remedy for state

noncompliance with federally imposed conditions is not

a private cause of action for noncompliance but rather

action by the Federal Government to terminate funds

to the State.”).° Therefore, one cannot conclude that

Congress meant “and laws” as used in 42 U.S.C. §1983

to create a supplemental remedy for third-party

beneficiaries against agents of the States without

ignoring the legal landscape as it existed in 1874.

In sum, the available evidence points to the

conclusion that Congress did not intend for “and laws”

as used in §1983 to include Spending Clause statutes.

Therefore, because FERPA is undoubtedly a Spending

Clause statute, this Court should hold that the

plaintiff was not entitled to maintain a §1983 action

against Gonzaga University to enforce FERPA, and

should reverse the Supreme Court of Washington’s

judgment to the contrary.

5 Contract actions by the United States against individual

States raise no difficulties under the Eleventh Amendment.

College Sav. Bank v. Florida Prepaid Postsecondary Educ.

Expense Bd., 527 U.S. 666, 681 (1999).

16

II. 42 U.S.C. §1983 Should Not Be Available To

Enforce Conditional Funding Statutes That

Do Not Give Rise To Private Causes Of Action

And Instead Create Administrative Enforce-

ment Mechanisms.

Even if conditional funding statutes are construed

as “laws” that “secure rights” within the meaning of

42 U.S.C. §1983, remedies under that provision should

nonetheless be foreclosed where, as with FERPA, the

funding statute in question does not give rise to a

private cause of action but instead creates an

administrative process to enforce compliance. There is

no basis for concluding that Congress believes, as a

general matter, that administrative remedies are

sufficient to ensure compliance with funding statutes

by private fund recipients, but are inadequate with

respect to public fund recipients. Therefore, the

presumption should be that, where a conditional

funding statute creates an administrative enforcement

mechanism but not a private right of action, §1983

actions may not be brought against public fund

recipients absent a clear statement by Congress to the

contrary. Such a presumption would respect

congressional intent and would be consistent with the

contractual nature of conditional funding programs.

1. Under the Court’s current jurisprudence, the

question whether §1983 is available to enforce statutes

—conditional funding statutes or otherwise—turns

first on whether the relevant provision of the statute

creates an enforceable right. Blessing, 520 U.S. at 340-

41. If the provision is found to create a right, then a

rebuttable presumption arises that the right is

enforceable through §1983. Id. at 341. The

oe

-——" 7. <a

17

presumption may be rebutted upon a showing that

Congress “specifically foreclosed a remedy under

§1983,” either expressly or by “creating a

comprehensive enforcement scheme that is

incompatible with individual enforcement under

§1983.” Id. (internal quotations and citations omitted).

The State has the burden of making the “difficult

showing” that an enforcement scheme in a funding

statute forecloses a §1983 remedy. Blessing, 520 U.S.

at 346; see also Wright, 479 U.S. at 423-24 (“We do not

lightly conclude that Congress intended to preclude

reliance on §1983 as a remedy’ for the deprivation of a

federally secured right.” (quoting Smith v. Robinson,

468 U.S. 992, 1012 (1984)).

The rule that a §1983 remedy is presumptively

available whenever a statute is found to create rights

stems from the canon that implied repeals of statutes

are disfavored. See Victorian v. Miller, 813 F.2d 718,

721 (5th Cir. 1987); Samuels v. District of Columbia,

770 F.2d 184, 194 n.7 (D.C. Cir. 1985); Cass R.

Sunstein, Section 1983 and the Private Enforcement of

Federal Law, 49 U. Chi. L. Rev. 394, 419-25 (1982); see

generally Tennessee Valley Auth. v. Hill, 437 U.S. 153,

189-90 (1978) (explaining canon). That is, given that

Congress has expressly provided a cause of action

whenever a state actor deprives a person of rights

secured by federal laws, 42 U.S.C. §1983, the courts

are reluctant to foreclose that cause of action in the

absence of clear evidence that Congress so intended.

As a result, the courts presume the availability of a

§1983 remedy, and place the burden on the States to

produce evidence that Congress intended to foreclose

that avenue of relief.

18

2. Although the presumption favoring §1983

remedies may be justified in most instances where a

statute creates enforceable rights, it should not be

indulged with respect to those conditional funding

statutes, like FERPA, which do not give rise to private

causes of action and instead create an administrative

enforcement scheme. The question whether a statutory

right should be enforceable through a §1983 action (or

any other remedy) is at bottom a question of

congressional intent. See Sandoval, 532 U.S. at 286;

Blessing, 520 U.S. at 341. As the example of FERPA

shows, a faithful inquiry into congressional intent will

rarely reveal any reason to believe that Congress

intended to subject public recipients, and only public

recipients, to private suit to enforce funding conditions.

In FERPA, Congress expressed only one specific

remedial intention: the creation of an administrative

enforcement scheme applicable to all recipients of

funds. In 20 U.S.C. §1232g(f), Congress generally

authorized the Secretary of Education to “deal with

violations of this section.” And Congress more

specifically required the Secretary to “establish or

designate an office and review board” for investigating

and adjudicating violations of FERPA, and permitted

parents and eligible students to file written complaints

with that board. 20 U.S.C. §1232g(g).° We also know,

® For an explanation of this administrative enforcement

scheme, see Daggett & Huefner, supra n.1, at 11. In addition to

the administrative scheme, at least one court has held that the

federal government may sue fund recipients to enforce compliance

with FERPA. See Miami Univ., 91 F. Supp. 2d at 1140. There is

no question, then, that remedies exist to ensure that fund

recipients honor FERPA’s commitment to educational privacy.

19

based on Congress’s silence and other indicia of

legislative intent, that Congress did not intend to

create a separate private right of action directly under

FERPA itself.’

Nothing in FERPA’s language or legislative history

even hints that Congress believed the administrative

scheme was insufficient as to public entities, or that

public recipients of funds needed to be treated

differently from private recipients. And as a matter of

public policy, it is difficult to understand why Congress

would have wanted an individual allegedly harmed by

a\university’s policy or practice with respect to the

release of private information to be able to sue

Pennsylvania State University (for example), but not

the University of Pennsylvania.

This evidence of congressional intent—which

strongly suggests that Congress did not intend to

permit private §1983 actions—far outweighs the canon

against implied repeals, which, like all canons of

statutory construction, can be “overcome” by “other

circumstances evidencing congressional intent.”

Chickasaw Nation v. United States, 122 S. Ct. 528, 535

(2001). Indeed, it is supported by another canon of

7 The state and federal courts have uniformly held that

FERPA does not create a private right of action. See, e.g., Frazier

v. Fairhaven Sch. Comm., 276 F.3d 52, 67 (1st Cir. 2002); Tarka

v. Franklin, 891 F.2d 102, 104 (5th Cir. 1989); Fay v. South

Colonie Cent. Sch. Dist., 802 F.2d 21, 33 (2d Cir. 1986); Girardier

v. Webster College, 563 F.2d 1267, 1277 (8th Cir. 1977); West

Virginia ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W. Va.

611, 620 n.13, 520 S.E.2d 186, 195 n.13 (1999); Olsson v. Indiana

Univ. Bd. of Trustees, 571 N.E.2d 585, 589 n.4 (Ind. Ct. App.

1991). The Supreme Court of Washington did not question this

view in the proceedings below. See Pet. App. 19a.

20

statutory construction, the canon “that where a statute

expressly provides a remedy, courts must be especially

reluctant to provide additional remedies.” Karahalios

uv. National Fed’n of Fed. Employees, Local 1263, 489

U.S. 527, 533 (1989); see also Sandoval, 532 U.S. at

290 (“The express provision of one method of enforcing

a substantive rule suggests that Congress intended to

preclude others.”).

Justice Powell sounded a similar note when

discussing the standards of liability under Title VI of

the Civil Rights Act of 1964:

[A] majority of the Court would hold that proof

of discriminatory effect suffices to establish

liability only when the suit is brought to

enforce the regulations rather than the statute

itself. And it would seem that the regulations

may be enforced only in a suit pursuant to 42

U.S.C. §1983; anyone invoking the implied

right of action under Title VI would be limited

by the discriminatory-intent standard required

to prove violations of Title VI. Thus, the

apparent result is that a suit against

governmental recipients of federal funds—who

may be sued under §1983—will be governed by

a different standard of liability than a suit

against private recipients of federal funds.

One would have difficulty explaining this

result in terms of the legislative history of

Title VI.

21

Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582,

608 n.1 (1983) (Powell, J., concurring). Rather than

allowing such anomalous results, this Court should

conclude that §1983 actions are automatically

foreclosed whenever the Court’s implied right of action

jurisprudence reveals that a conditional funding

statute does not create a private cause of action and

instead creates an administrative process to enforce

compliance.

3. The contractual nature of conditional funding

statutes provides still further support for this

conclusion. “[W]je have required that if Congress

desires to condition the States’ receipt of federal funds,

it ‘must do so unambiguously .. . , enabl[{ing] the

States to exercise their choice knowingly, cognizant of

the consequences of their participation.” Dole, 483

U:S. at 207 (quoting Pennhurst, 451 U.S. at 17). The

“clear statement” requirement is thus a substantive

limitation on Congress’s use of the spending power:

“There can, of course, be no knowing acceptance if a

State is unaware of the conditions or is unable to

ascertain what is expected of it.” Pennhurst, 451 U.S.

at 17; see also Suter, 503 U.S. at 356.

Moreover, the appropriate place for Congress to set

forth conditions—especially conditions that implicate

federalism concerns—is within the funding statute

® Justice Powell's footnote anticipated this Court’s decision in

Sandoval. On the other hand, a powerful argument can be made

that a §1983 suit cannot be brought to enforce the disparate-

impact regulations issued under Title VI. See South Camden

Citizens in Action v. New Jersey Dep't of Env. Prot., 274 F.3d 771,

790 (3rd Cir. 2001) (§1983 suit may not be maintained to enforce

disparate-impact regulations).

22

itself. See Will, 491 U.S. at 65 (“if Congress intends to

alter the usual constitutional balance between the

States and the Federal Government, it must make its

intention to do so unmistakably clear in the language

of the statute.” (emphasis added) (internal quotations

and citation omitted)). It cannot be said that §1983’s

language itself provides the requisite clear statement.

Although §1983 expressly authorizes suits to enforce

federally secured rights, the statute does not place

prospective fund recipients on notice, through

unambiguous terms, that it applies to any particular

conditional funding statute. Cf. Atascadero State Hosp.

v. Scanlon, 473 U.S. 234, 242-46 (1985) (discussing

level of specificity needed to abrogate or extract waiver

of States’ Eleventh Amendment immunity).

Where Congress has not created a private cause of

. action to enforce a conditional funding statute, but has

established an administrative remedial scheme, the

logical inference to be drawn by parties to the

agreement is that the methods for policing compliance

with funding conditions will be limited to the

administrative scheme. To return to a past example,

one doubts that Pennsylvania State University

accepted federal funds with the expectation that it, but

not the University of Pennsylvania, would be subjected

to private actions toenforce FERPA. Aclear statement

by Congress that the §1983 remedy applies would, of

course, meet this concern. But absent such a

statement, it belies reality to suggest that a public

recipient of federal funds has agreed to private FERPA

enforcement actions or had adequate notice that it

might be subjected to such actions.

23

CONCLUSION

For the foregoing reasons, the judgment of the

Supreme Court of Washington should be reversed.

Respectfully submitted,

JAMES E. RYAN

Attorney General of Illinois

JOEL D. BERTOCCHI

Solicitor General

* MICHAEL P. DOYLE

Assistant Attorney General

100 West Randolph Street

Chicago, Illinois 60601

(312) 814-5044

Counsel for Amici States

Of Counsel:

Dan Schweitzer

National Association of

Attorneys General

750 First St., N.E., Suite 1100

Washington, D.C. 20002

(202) 326-6010

* Counsel of Record

February 2002