01-679 Gonzaga University v. Doe

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There is no question that FERPA’s confidentiality provisions create no rights enforceable under sec. 1983. The provisions entirely lack the sort of individually focused rights-creating language that is critical. FERPA’s provisions speak only to the Secretary, directing that “[n]o funds shall be made available” to any “educational … institution” which has a prohibited “policy or practice,” sec. 1232g(b)(1). This focus is two steps removed from the interests of individual students and parents and clearly does not confer the sort of individual entitlement that is enforceable under sec. 1983. E.g., Cannon, supra, at 690-693. Furthermore, because FERPA’s confidentiality provisions speak only in terms of institutional “policy or practice,” not individual instances of disclosure, see secs. 1232g(b)(1)-(2), they have an “aggregate” focus, they are not concerned with whether the needs of any particular person have been satisfied, and they cannot give rise to individual rights, Blessing, supra, at 344. The fact that recipient institutions can avoid termination of funding so long as they “comply substantially” with the Act’s requirements, sec. 1234c(a), also supports a finding that FERPA fails to support a sec. 1983 suit. Id., at 335, 343. References in secs. 1232g(b)(1) and (2) to individual parental consent cannot make out the requisite congressional intent to confer individually enforceable rights because each of those references is made in the context of describing the type of “policy or practice” that triggers a funding prohibition. The conclusion that FERPA fails to confer enforceable rights is buttressed by the mechanism that Congress provided for enforcing FERPA violations. The Secretary is expressly authorized to “deal with violations,” sec. 1232g(f), and required to establish a review board to investigate and adjudicate such violations, sec. 1232g(g). For these purposes, the Secretary created the Family Policy Compliance Office, which has promulgated procedures for resolving student complaints about suspected FERPA violations. These procedures squarely distinguish this case from Wright and Wilder, where an aggrieved individual lacked any federal review mechanism. Finally, because FERPA prohibits most of the Secretary’s functions from being carried out in regional offices, sec. 1232g(g), in order to allay the concern that regionalizing enforcement might lead to multiple interpretations of FERPA, it is implausible to presume that Congress nonetheless intended private suits to be brought before thousands of federal-and state-court judges.

143 Wash. 2d 687, 24 P.3d 390, reversed and remanded.

Local effect:

The issue has not previously been considered by the Seventh Circuit or Wisconsin appellate courts.

Rehnquist, C. J.; Breyer, J., concurring; Stevens, J., dissenting.