This case is widely seen as one that could create a new category of privacy-related civil rights suits. Supreme Court Agrees to Hear Another Case involving
Federal Privacy Law

Since its passage 27 years ago, the Family Educational Rights and Privacy Act (the "Buckley Amendment") has essentially escaped Supreme Court review. This term, however, the Supreme Court has agreed, not once, but twice, to review the law. At issue in the first case, Owasso Independent School District v. Falvo (No. 00-1073), is whether the Buckley Amendment, which requires that schools keep private the educational records of students, bans peer grading. Oral argument on that case was heard in late November. (For a review of this case, click here)

Now, just weeks after oral arguments in Owasso, the Supreme Court has agreed to hear Gonzaga University v. Doe (No. 01-679). This second case presents the question whether a private university may be sued for damages by a student to enforce provisions of the federal law protecting student privacy rights. The Buckley Amendment permits the federal government to cut funding to schools that violate the privacy of student records. The law does not address whether it creates any right or privilege for a plaintiff to then sue for damages under an individual civil rights claim.

Although the Gonzaga University case also will interpret congressional intent under the Buckley Amendment, the facts could not be more different from those in the peer grading case. This case involves a male student who had a sexually intimate relationship with a female student, resulting in allegations being made by University staff members and a fellow student that the plaintiff had date-raped the female student. Plaintiff sued based on claims of defamation, negligence, invasion of privacy, violation of his rights under the Buckley Amendment and breach of contract.

Plaintiff asserted that the University violated the Buckley Amendment by disclosing confidential information about him (the date rape allegation) to the state agency responsible for issuing teacher certifications, effectively denying him a teaching job. The plaintiff did not claim that the law itself gave rise to a private cause of action, but rather that the violation is a basis for a claim under section 1983, which provides a remedy for violation of federally conferred rights.

The Washington State Supreme Court reinstated the damage awards for plaintiff’s claims for defamation, invasion of privacy, violation of his rights under the Buckley Amendment, and breach of contract, but dismissed his negligence claim. The United States Supreme Court agreed to hear the case on the issue of whether the Buckley Amendment permits an individual civil rights suit.

Although the Supreme Court has ruled in other cases on the ability of a federal statute to give rise to a federal right enforceable under section 1983, this is the first case to involve the Buckley Amendment. The Washington Supreme Court noted in its opinion in this case that "[f]ederal appellate decisions which have specifically addressed FERPA [the Buckley Amendment] have held that the statute creates rights actionable under section 1983."

This case is widely seen as one that could create a new category of privacy-related civil rights suits. Oral arguments are scheduled for April, with a decision likely sometime in June. John G. Robers, Jr., a Washington lawyer whose nomination to the federal appeals court is before the Senate, is representing the University.

January 17, 2001
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