United
States Court of Appeals
for the Tenth Circuit
KRISTJA
J. FALVO,
As Parent and Next Friend of Her Minor Children, ELIZABETH PLETAN,
PHILIP PLETAN AND ERICA PLETAN; And On Behalf of Others Similarly
Situated,
PLAINTIFF-APPELLANT,
V.
OWASSO
INDEPENDENT SCHOOL DISTRICT NO. I-011, A/K/A, OWASSO PUBLIC
SCHOOLS; DALE JOHNSON, Individually and in His Official Capacity
as Superintendent; LYNN JOHNSON, Individually and in Her Official
Capacity as Assistant Superintendent; RICK THOMAS, Individually
and in His Official Capacity as Principal; JOHN DOE, Sued as: DOES
1 THROUGH 50,
DEFENDANTS-APPELLEES.
Appeal
from the United States District Court for the N. District of Oklahoma
(D.C. No. 98-CV-765-K)
Wilfred
K. Wright, Jr., of Tulsa, Oklahoma, for Appellant. Karen L. Long,
of Rosenstein, Fist & Ringold, Tulsa, Oklahoma, (Jerry A. Richardson
with her on the brief), for Appellees.
Before
Lucero, McKAY, and Murphy, Circuit Judges.
The
opinion of the court was delivered by: Murphy, Circuit Judge.
ORDER
This
matter is before the court on appellees' petition for rehearing
with suggestion for en banc review to which appellant has responded.
Upon the original panel members' consideration of the rehearing
petition, the request was denied.
The
suggestion for rehearing en banc and appellant's response were transmitted
to all of the judges of the court who are in regular active service.
See Fed. R. App. P. 35. A poll was requested. A majority of the
active judges voted, however, to deny the request for en banc review.
Judges Tacha, Baldock, Brorby, and Kelly voted to grant the en banc
suggestion.
Although
the request for rehearing is denied, the panel has determined, on
its own motion, that the original decision filed on July 31, 2000,
shall be amended. Consequently, the original opinion is withdrawn.
The amended opinion shall be filed forthwith.
The
panel has taken appellant's requests for attorney's fees and costs
under advisement.
No.
99-5130, Falvo v. Owasso Independent School District No. I-011.
KELLY,
Circuit Judge, dissenting, with whom TACHA, BALDOCK and BRORBY,
Circuit Judges, join.
I
respectfully dissent from the court's denial of rehearing en banc.
The court has determined that the Family Education Rights and Privacy
Act (FERPA), 20 U.S.C. § 1232g, is violated by a grading practice
that allows students to grade one another's papers because the grades
constitute "education records," id. § 1232g(a)(4)(A),
that cannot be released to other students. Defining "education
records" to include "grades which students record on one
another's homework and test papers and then report to the teacher,"
Amended Ct. Op. at 22, is a vast expansion of the actual words of
the statute, and unsupported by the legislative history.
The grades that students record on one another's papers simply do
not meet the second element of the definition of "education
records," any more than the papers themselves could. 20 U.S.C.
§ 1232g(a)(4)(A)(ii). Neither the papers nor the grades placed
upon them are "records, files, documents or other materials
which . . . are maintained by an educational agency or institution
or by a person acting for such agency or institution." Id.
The papers (or at least the responses) belong to the student. The
teacher may act for the educational agency or institution in recording
the grade in a grade book (or on a spreadsheet), but it is one step
removed to say that the teacher's potential receipt of that grade
makes every uncompensated student that participates in the grading
process "a person acting for such agency or institution."
Were
there any doubt, the statute specifically provides that "education
records" do not include "records of instructional . .
. personnel . . . which are in the sole possession of the maker
thereof and which are not accessible or revealed to any person except
a substitute." Id. § 1232g(a)(4)(B)(i). No one suggests
that the teacher's grade book is accessible or has been revealed
to any person except a substitute, or released to any person or
group not within the exceptions created by 20 U.S.C. § 1232(b)(1).
If the teacher's grade book normally does not constitute an "education
record," how can it be that individual grades on papers can
be "education records?"
According
to the court, if grades in a grade book revealed to someone other
than a substitute are "education records," the grades
prior to entry must also be protected because they are disseminated
to other students. See Amended Ct. Op. at 26. [1] The statute makes
no mention of grades prior to entry being "education records,"
and had Congress intended such an important change in this sensitive
area, surely Congress would have included express language to that
effect. Relying "purely on the language of the statute itself,"
id. at 22, however, the court attributes its conclusion solely
to Congressional intent. There is an obvious difference, however,
between grades entered in a grade book (a collective record of the
teacher) and the individual grades (on student papers) that are
not recorded in a grade book. Surely Congress could have intended
to protect one in limited circumstances, and not the other. Likewise,
there is a difference between a final grade placed on a transcript
and the individual scores that determine the final grade.
A
careful reading of FERPA and its legislative history requires a
much narrower definition of "education records." The school
district correctly argues that extending the definition of "education
records" to grades placed upon papers necessarily invokes the
right to a hearing to challenge the grade, 20 U.S.C. § 1232g(a)(2),
and the need for an educational institution to maintain an access
record indicating those who have obtained or requested access to
that grade, id. § 1232g(b)(4)(A). Given the thousands of grades
a student might receive over time, this seems impossible, if not
implausible.
Congress
did not intend a right to a hearing on each and every grade received.
In responding to concerns regarding § 1232g(a)(2), the Joint
Statement in Explanation of Buckley/Pell Amendment drew a critical
distinction between an institutional record in which a grade was
recorded (the accuracy of which can be challenged) and the graded
material itself (the accuracy of which cannot be challenged). The
Joint Statement concluded that "education records" referred
only to the former. 120 Cong. Rec. 39,862 (1974). [2] While grade
books may qualify as institutional records, grades on papers certainly
do not.
Practical
difficulties with the court's decision abound because care must
be taken to insure that no student learns the grade of another.
Thus, a school district should be wary of academic awards based
upon grades, for the underlying grades may be revealed. Likewise,
a determination that a student athlete is academically ineligible
carries the same risk. A routine function-passing out a stack of
graded papers alphabetized by name-will now require teacher involvement
and the students cannot do it themselves for fear that one student
might see another's grade, intentionally or unintentionally. This
cannot be what Congress meant when it sought to protect a student's
personal information and permanent academic record from unwarranted
disclosure. Our teachers are overworked and underpaid now. What
will happen to them when they can be sued by every irate parent
or student claiming that someone saw a grade or that they were denied
a fair hearing to challenge a test grade? For these reasons, I respectfully
dissent from the denial of rehearing en banc.
I.
INTRODUCTION
In
the instant case, this court must decide whether a practice employed
by pre-secondary school [3] teachers in the Owasso Independent School
District (the "School District") of allowing their students
both to grade one another's tests and other work and to call out
their own grades in class (the "grading practice") violates
either the Fourteenth Amendment to the United States Constitution
or the Family Education Rights and Privacy Act ("FERPA").
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we conclude
that although the Fourteenth Amendment does not preclude the grading
practice, FERPA does. The individual defendants, however, are entitled
to qualified immunity because it was not clearly established law
that the grading practice violated FERPA. This court therefore affirms
the district court's grant of summary judgment in favor of all defendants
on the constitutional claim and reverses the grant of summary judgment
in favor of the School District on the FERPA claim. Also as to the
FERPA claim, we affirm the grant of summary judgment in favor of
the individual defendants on the plaintiff's claim for monetary
relief, but reverse the judgment on the plaintiff's claim for injunctive
relief.
II.
BACKGROUND
Kristja
J. Falvo is the mother of Elizabeth, Philip, and Erica Pletan, who
all attended school in the School District. Falvo learned that a
number of her children's teachers would sometimes have their students
grade one another's work assignments and tests and then would have
the students call out their own grades to the teacher. During the
1997-98 and 1998-99 school years, Falvo complained about this grading
practice to school counselors and to the School District superintendent,
claiming it severely embarrassed her children by allowing other
students to learn their grades. Although Falvo was told that her
children always had the option of confidentially reporting their
grades to the teacher, [4] the School District refused to disallow
the grading practice.
In
October 1998, when Falvo's children were in the sixth, seventh,
and eighth grades, she brought a class action lawsuit pursuant to
42 U.S.C. § 1983 against the School District, Superintendent
Dale Johnson, Assistant Superintendent Lynn Johnson, and Principal
Rick Thomas (the "individual defendants"), alleging the
grading practice violated Fourteenth Amendment privacy rights and
FERPA. Before the district court resolved whether to certify the
class, Falvo moved for declaratory and summary judgment on her two
claims. The School District filed a cross-motion for summary judgment
on both claims. The district court applied the test articulated
in Flanagan v. Munger, 890 F.2d 1557, 1570 (10th Cir. 1989)
and concluded the grading practice did not implicate a constitutionally-protected
privacy interest. Additionally, the district court ruled that the
grades subject to the grading practice do not constitute "education
records" under FERPA. Thus, the district court granted summary
judgment in favor of all defendants on both claims.
Falvo
then moved for reconsideration and clarification of the district
court's judgment, arguing the court should have granted relief in
favor of Philip Pletan on the Fourteenth Amendment claim because,
as a special education student, he had a legitimate expectation
of privacy in his grades under the Individuals with Disabilities
Education Act ("IDEA"). The district court denied that
motion, concluding that because Falvo did not make a distinct claim
under IDEA, she could not premise a Fourteenth Amendment claim on
that statute.
On
appeal, Falvo asserts the district court erroneously granted summary
judgment in favor of the defendants, because the grading practice
violates both the Fourteenth Amendment and FERPA.
III.
DISCUSSION
A.
Standard of Review
This
court conducts a de novo review of a district court's summary judgment
decision. See Bancoklahoma Mortgage Corp. v. Capital Title Co.,
194 F.3d 1089, 1097 (10th Cir. 1999). Summary judgment is appropriate
"if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
Fed. R. Civ. P. 56(c). In applying this standard, this court views
the evidence and draws reasonable inferences therefrom in a light
most favorable to the party opposing summary judgment. See Committee
to Save the Rio Hondo v. Lucero, 102 F.3d 445, 450 (10th Cir.
1996). Although the instant case involves cross-motions for summary
judgment, this court nonetheless views the evidence in a manner
most favorable to Falvo, because she is the party challenging the
district court's grant of summary judgment.
B.
The Fourteenth Amendment Claim
Falvo
contends the right to privacy under the Fourteenth Amendment prohibits
public disclosure of students' grades. She thus argues the district
court erred in dismissing her Fourteenth Amendment claim because
the grading practice employed by her children's teachers impermissibly
infringes upon that constitutional privacy right. Although this
court acknowledges the existence of a Fourteenth Amendment right
to prevent disclosure of certain types of personal information,
the school work and test grades of pre-secondary school students
do not rise to the level of this constitutionally-protected category
of information.
In
relevant part, the Fourteenth Amendment states, "nor shall
any State deprive any person of . . . liberty . . . without due
process of law." U.S. Const. Amend. XIV, § 1. In Roe
v. Wade, the Supreme Court announced that a constitutional "right
of privacy . . . [is] founded in the Fourteenth Amendment's concept
of personal liberty." 410 U.S. 113, 153 (1973). Subsequently,
the Court noted that one type of constitutionally-protected privacy
right "is the individual interest in avoiding disclosure of
personal matters." Whalen v. Roe, 429 U.S. 589, 599
(1977); see also Nixon v. Administrator of Gen. Servs., 433
U.S. 425, 457 (1977).
In
assessing whether a specific category of information is constitutionally
protected, this court "must consider, (1) if the party asserting
the right has a legitimate expectation of privacy [in that information],
(2) if disclosure serves a compelling state interest, and (3) if
disclosure can be made in the least intrusive manner." [5]
Denver Policemen's Protective Ass'n v. Lichtenstein, 660
F.2d 432, 435 (10th Cir. 1981); see also Flanagan, 890 F.2d
at 1570. Although this test's formulation seems to indicate this
court must consider all three factors, the actual application of
the test in prior cases demonstrates that we need not address the
second and third factors if the first is not met. See Nilson
v. Layton City, 45 F.3d 369, 371 (10th Cir. 1995) ("Because
the alleged unconstitutional conduct in this case fails to meet
the first prong of this test, we hold that Mr. Nilson has no constitutional
privacy in his expunged criminal record."); Flanagan,
890 F.2d at 1571 ("Since we hold that the information released
by Chief Munger is not of a highly personal nature, we deny the
plaintiffs' privacy claim."). In other words, if Falvo and
her children do not have a legitimate expectation of privacy in
the children's school work and test grades, they have no Fourteenth
Amendment privacy right protecting those grades from disclosure.
A
party's expectation in the privacy of specific information is sufficiently
legitimate to warrant constitutional protection only if that information
"is highly personal or intimate." Nilson, 45 F.3d
at 372. Although this court acknowledges that the school work and
test grades of pre-secondary school students constitute somewhat
personal or intimate information, we cannot conclude that these
grades are so highly personal or intimate that they fall within
the zone of constitutional protection; to hold otherwise would trivialize
the Fourteenth Amendment. Alexander v. Peffer, 993 F.2d 1348,
1350-51 (8th Cir. 1993); Davis v. Bucher, 853 F.2d 718, 721
(9th Cir. 1988); see generally Washington v. Glucksberg,
521 U.S. 702, 720 (1997) (noting that even the Supreme Court "must
. . . exercise the utmost care" when asked to announce a new
substantive due process right (quotation omitted)).
Falvo
contends that she and her children have a legitimate expectation
of privacy in these grades because two federal statutes, FERPA and
IDEA, provide just such an expectation. This court has recognized
that "[t]he presence of privacy statutes and regulations may
inform our judgment concerning the scope of the constitutional right
to privacy." Flanagan, 890 F.2d at 1571. In several
prior public disclosure cases, however, this court has refused to
premise a constitutional privacy right merely on the existence of
state privacy statutes. See id; Nilson, 45 F.3d at
372; Mangels v. Pena, 789 F.2d 836, 839 (10th Cir. 1986).
In one such case, this court explained, "Rights of substantive
due process are founded not upon state provisions but upon deeply
rooted notions of fundamental personal interests derived from the
Constitution. . . . Any disclosed information must itself warrant
protection under constitutional standards." Mangels,
890 F.2d at 839. This court therefore must similarly conclude that
federal privacy statutes standing alone cannot be the basis for
a Fourteenth Amendment right to prohibit disclosure of personal
information. [6] Thus, contrary to Falvo's contention, neither FERPA
nor IDEA can create a Fourteenth Amendment privacy right; rather,
the grades themselves must warrant constitutional protection.
Although
this court's conclusion, discussed infra, that FERPA prohibits
revelation of students' school work and test grades informs our
judgment about the scope of the constitutional right to prevent
disclosure of personal information, we cannot say the right to prevent
disclosure of pre-secondary school work and test grades is a "deeply
rooted notion[] of fundamental personal interest[] derived from
the Constitution."[7] Mangels, 890 F.2d at 839. Falvo
and her children therefore lack a sufficiently legitimate expectation
of privacy in those grades to claim a constitutional right in their
protection. This court thus concludes the district court properly
granted summary judgment in favor of the defendants on Falvo's Fourteenth
Amendment claim.
C. FERPA Claim
1.
Jurisdiction
Although
most courts have concluded that a violation of FERPA may be the
basis for a civil rights lawsuit under 42 U.S.C. § 1983, the
parties have not raised that issue in the instant case. See Tarka
v. Cunningham, 917 F.2d 890, 891 (5th Cir. 1990); Fay v.
South Colonie Cent. Sch. Dist., 802 F.2d 21, 33 (2d Cir. 1986);
Achman v. Chisago Lakes Indep. Sch. Dist. No. 2144, 45 F.
Supp.2d 664, 672-74 (D. Minn. 1999); Doe v. Knox County Bd. of
Educ., 918 F. Supp. 181, 184 (E.D. Ky. 1996); Maynard v.
Greater Hoyt Sch. Dist. No. 61-4, 876 F. Supp. 1104, 1107 (D.S.D.
1995); Belanger v. Nashua, N.H. Sch. Dist., 856 F. Supp.
40, 47-48 (D.N.H. 1994); Norwood v. Slammons, 788 F. Supp.
1020, 1026 (W.D. Ark. 1991). But see Gundlach v. Reinstein,
924 F. Supp. 684, 692 (E.D. Pa. 1996); Norris v. Board of Educ.
of Greenwood Community Sch. Corp., 797 F. Supp. 1452, 1465 (S.D.
Ind. 1992).
Whether
the alleged violation of FERPA is actionable under 42 U.S.C. §
1983, however, may implicate this court's and the district court's
subject matter jurisdiction over Falvo's FERPA claim. See Duke
v. Absentee Shawnee Tribe of Okla. Hous. Auth., 199 F.3d 1123,
1126 (10th Cir. 1999) ("Federal question jurisdiction exists
when a cause of action `aris[es] under the Constitution, laws, or
treaties of the United States.'" (quoting 28 U.S.C. §
1331)), cert. denied, 120 S. Ct. 2014 (2000); see also Ackerley
Communications of Fla., Inc. v. Henderson, 881 F.2d 990, 993
(11th Cir. 1989) (dismissing for lack of subject matter jurisdiction
a claim premised on the violation of a federal statute because §
1983 does not provide a remedy for a violation of that particular
statute); Belanger, 856 F. Supp. at 42 ("Before addressing
the question of whether the requested records are `education records'
as defined by FERPA . . . , the court must determine whether the
plaintiff has a cause of action under § 1983 for the alleged
violation of [this] statute[]." (emphasis added)). Because
the issue was not raised by the parties, this court does not decide
if subject matter jurisdiction hinges on whether a federal statute
is remediable under § 1983 or if that question is more properly
resolved pursuant to Federal Rule of Civil Procedure 12(b)(6). Heeding
the lesson of Steel Company v. Citizens for a Better Environment,
we will assume, without deciding, that subject matter jurisdiction
is implicated by the question whether § 1983 provides a remedy
for the alleged FERPA violation and thus resolve that question before
addressing the merits of Falvo's FERPA claim. See 523 U.S. 83, 95
(1998) (discussing federal appellate court's duty to decide whether
it has jurisdiction, even when jurisdiction is not challenged by
parties, before addressing the merits of the appeal).
In
Wilder v. Virginia Hosp. Ass'n, the Supreme Court stated,
"A plaintiff alleging a violation of a federal statute will
be permitted to sue under § 1983 unless (1) the statute [does]
not create enforceable rights, privileges, or immunities within
the meaning of § 1983, or (2) Congress has foreclosed such
enforcement of the statute in the enactment itself." [8] 496
U.S. 498, 508 (1990) (quotations omitted). To resolve the first
part of this test, this court must decide whether the provision
in question was intend[ed] to benefit the putative plaintiff. If
so, the provision creates an enforceable right unless it reflects
merely a congressional preference for a certain kind of conduct
rather than a binding obligation on the governmental unit, or unless
the interest the plaintiff asserts is too vague and amorphous such
that it is beyond the competence of the judiciary to enforce. Id.
at 509 (citations and quotations omitted).
The
plain language of the relevant provision of FERPA, 20 U.S.C. §
1232g(b)(1), reveals that it is intended to protect the privacy
of students and their parents. Moreover, the sponsors of the amendment
to FERPA which added this particular provision stated, "The
purpose of the Act is two-fold-to assure parents of students . .
. access to their education records and to protect such individuals'
rights to privacy by limiting the transferability of their records
without their consent." 120 Cong. Rec. 39862 (Dec. 13, 1974)
(Joint Statement in Explanation of Buckley/Pell Amendment). The
relevant provision of FERPA, therefore, was intended to benefit
Falvo and her children. Additionally, this provision reflects a
binding obligation on schools, rather than a mere Congressional
preference for a certain kind of conduct. Under the provision, an
educational agency or institution is absolutely precluded from receiving
federal funds if it maintains a policy or practice of allowing disclosure
of education records to unauthorized individuals or entities without
parental consent. See 20 U.S.C. § 1232g(b)(1). The language
of this provision is akin to other statutory language which the
Supreme Court has interpreted as creating "precise requirements."
Suter v. Artist M., 503 U.S. 347, 361 n.12 (1992); see also
Belanger, 856 F. Supp. at 46, 47. Finally, as this court's
statutory analysis, infra, makes clear, the interest which
Falvo asserts is neither vague nor amorphous and is thus within
the competence of the judiciary to enforce. We therefore conclude
20 U.S.C. § 1232g(b)(1) creates an enforceable right within
the meaning of § 1983.
This
conclusion raises a rebuttable presumption, under the second part
of the Wilder test, that Congress did not impliedly foreclose a
§ 1983 remedy by creating a comprehensive remedial scheme within
FERPA itself. [9] See Blessing v. Freestone, 520 U.S. 329,
341 (1997); Wilder, 496 U.S. at 520-21. "We do not lightly
conclude that Congress intended to preclude reliance on § 1983
as a remedy for the deprivation of a federally secured right."
Wright v. Roanoke Redevelopment and Hous. Auth., 479 U.S.
418, 423-24 (1987) (quotation omitted). In only two cases has the
Supreme Court concluded that a sufficiently comprehensive scheme
exists within a statute to demonstrate Congress' intent to foreclose
a § 1983 remedy. See Middlesex County Sewerage Auth. v.
National Sea Clammers Ass'n, 453 U.S. 1, 19-20 (1981); Smith
v. Robinson, 468 U.S. 992, 1011 (1984), overruled by statute
on other grounds as recognized in Fontenont v. Louisiana Bd.
of Elementary and Secondary Educ., 805 F.2d 1222, 1223 (5th
Cir. 1986). The statutes in both of those cases contained extensive
remedial schemes, including noncompliance orders, local administrative
procedures, civil suits, and criminal penalties. See Sea Clammers,
453 U.S. at 13-14; Smith, 468 U.S. at 1009. FERPA's remedial
scheme is far more limited.
The
only remedy Congress provided within FERPA itself is allowing the
Secretary of Education to cut off federal funding to educational
institutions that violate the statute. See 20 U.S.C. § 1232g(b),
(f). In FERPA, Congress also directed the Secretary of Education
to "establish or designate an office and review board within
the Department [of Education]" to investigate, process, review,
and adjudicate FERPA violations and complaints alleging such violations.
See id. § 1232g(g). The Department of Education, in accordance
with Congress' directive to "take appropriate actions to enforce"
FERPA, has promulgated regulations which establish more detailed
administrative proceedings through which a parent or student may
seek to remedy a FERPA violation. Id. § 1232g(f); see
34 C.F.R. §§ 99.60-.67. Ultimately, however, the only
remedy which a complaining parent or student may obtain through
these proceedings is the same which Congress itself set out in the
statute: the Secretary of Education may terminate the violating
institution's federal funding. See 34 C.F.R. § 99.67.
In
Wright, the Supreme Court concluded that an administrative
scheme in the federal Housing Act, which provided the administering
agency the power to audit, enforce contracts, and cut off federal
funds, was "insufficient to indicate a congressional intention
to foreclose § 1983 remedies." 479 U.S. at 428; see also
Blessing, 520 U.S. at 348; Wilder, 496 U.S. at 522.
Pursuant to Supreme Court precedent, therefore, this court must
conclude that the only remedy provided for in FERPA and its associated
regulations-the termination of federal funding-is not sufficiently
comprehensive to "raise a clear inference" of Congressional
intent to foreclose a § 1983 remedy. Wright, 479 U.S.
at 425; see also Fay, 802 F.2d at 33 ("Although FERPA
authorizes extensive enforcement procedures created by regulation,
these regulations do not demonstrate a congressional intent to preclude
suits under section 1983 to remedy violations of FERPA." (citation
omitted)); Achman, 45 F. Supp.2d at 673-74; Maynard,
876 F. Supp. at 1107.
This
court, therefore, has subject matter jurisdiction over Falvo's appeal
of the district court's dismissal of her FERPA claim, because the
specific violation of FERPA which she alleged is actionable under
§ 1983.
2.
Merits
In assessing Falvo's claim under FERPA, this court shifts its analytical
mode from that employed in resolving her constitutional claim. When
asked to pronounce the existence of a previously unrecognized constitutional
right, this court must proceed with great caution, because "[b]y
extending constitutional protection to an asserted right or liberty
interest, we, to a great extent, place the matter outside the arena
of public debate and legislative action." Glucksberg,
521 U.S. at 720. [10] Constitutional scrutiny is thus cloaked in
a "backdrop of history, tradition, and practice"; it requires
vigilance that the examination is not subtlely driven by the personal
"policy preferences of the [m]embers of [the] [c]court,"
unelected public officials. Id. at 719, 720. Statutory analysis,
however, is differently clad: the court weighs the words of elected
legislators to resolve their meaning. This court must go wherever
the language and intent of the statute take us. Should our interpretation
cause public discomfort or impose undesired burdens, it is to the
source of the enactment, Congress, that those who are discomforted
or burdened must turn for relief. See Patterson v. McLean Credit
Union, 491 U.S. 164, 172-73 (1989). With that approach in mind,
we proceed to examine Falvo's claim under FERPA.
FERPA
prohibits educational agencies or institutions from maintaining
"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 anyone other than statutorily-designated authorities or individuals,
which does not include other students. 20 U.S.C. § 1232g(b)(1)
(emphasis added). The statute defines "education records"
as "those records, files, documents, and other materials which
(i) contain information directly related to a student; and (ii)
are maintained by an educational agency or institution or by a person
acting for such agency or institution." Id. §1232g(a)(4)(A)
(emphasis added).
The
district court granted the School District's summary judgment motion
on Falvo's FERPA claim because it concluded the grades of Falvo's
children which were revealed to other students were not "maintained"
by the School District and thus do not constitute "education
records" within the meaning of FERPA. In so ruling, the district
court gave deference to the interpretation set out both in a 1993
letter (the "Rooker letter") [11] written by LeRoy S.
Rooker, the Director of the Family Policy Compliance Office ("FPCO")
within the United States Department of Education, and in a 1999
sworn declaration by Rooker (the "Rooker declaration")
that the Rooker letter states the current position of the FPCO regarding
the grading practice. On appeal, Falvo contends the district court
both improperly deferred to the interpretation in the Rooker letter
and Rooker declaration and misconstrued the statute. This court
agrees with both of these contentions and thus concludes that the
district court erroneously determined the term "education records"
within FERPA does not encompass the grades at issue here.
The
district court erred in granting deference to the Rooker letter
and declaration for two reasons. First, as discussed infra,
the meaning of the terms "education records" and "maintain"
are clear from the statute itself, and a court can only defer to
an agency's interpretation if a statute is deemed ambiguous. See
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 842-44 (1984) (holding that when a court is asked
to construe an ambiguous statute, it must defer to the interpretation
set out in a regulation promulgated by the agency charged with administering
the statute, so long as the agency's interpretation is reasonable).
Second, even if the relevant statutory language was ambiguous, the
Supreme Court recently announced that Chevron deference does not
extend to an interpretation contained in an opinion letter issued
by the administering agency. See Christensen v. Harris County,
120 S. Ct. 1655, 1662 (2000). The district court thus erred in affording
Chevron deference to the Rooker letter and declaration.
The
Supreme Court did state, however, that interpretations contained
in agency opinion letters "are `entitled to respect' under
our decision in Skidmore v. Swift & Co., 323 U.S. 134,
140 (1944)." Christensen, 120 S. Ct. at 1663. In Skidmore,
the Court earlier stated that the weight which a court should afford
such non-binding agency interpretations "will depend upon the
thoroughness evident in its consideration, the validity of its reasoning,
its consistency with earlier and later pronouncements, and all those
factors which give it power to persuade, if lacking power to control."
323 U.S. at 140. Even if the language of FERPA was ambiguous, the
Rooker letter and declaration would carry minimal persuasive power
under Skidmore.
A
statement of qualification contained earlier in the letter indicates
that in issuing the opinion, the FPCO may not have thoroughly considered
the issue before this court. That portion of the letter states,
"Because
you do not fully explain the details surrounding the activities
you identify, it would not be appropriate for this Office to comment
on whether the District's participation in the activities would
violate rights afforded parents by FERPA. However, below is a general
discussion of FERPA as it relates to the types of activities you
present."
Additionally,
the Rooker letter and declaration are bereft of any reasoning underlying
the rather conclusory opinion that grades written down by other
students and announced to the teacher are not "maintained"
as required under FERPA. The Rooker letter's power to persuade is
further diminished because it rests its statutory interpretation
on the conclusion that the grades are not "`maintained' by
an educational agency or institution," ignoring the broader
language of FERPA which encompasses records "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)(ii)
(emphasis added). The Rooker declaration, however, which was submitted
in the instant case over five years after the Rooker letter was
issued, at least indicates the FPCO's interpretation of FERPA as
it relates to the grading practice has been consistent for some
time. Nonetheless, because the Rooker letter and declaration lack
sufficient reasoning, fail to account for the breadth of FERPA's
language, and indicate the FPCO's somewhat cursory and purely hypothetical
consideration of the issue before this court, the interpretation
of FERPA offered in those documents is not persuasive.
Based
purely on the language of the statute itself, this court concludes
the grades which students record on one another's homework and test
papers and then report to the teacher [12] constitute "education
records" under FERPA. The statute provides that "education
records" are "those records, files, documents, and other
materials which- (i) contain information directly related to a student;
and (ii) are maintained . . . by a person acting for [an educational]
agency or institution." Id. §1232g(a)(4)(A). There is
no dispute that the grades which students place on each other's
papers and then report to the teacher "contain information
directly related to a student" and thus satisfy the first element
of the statutory definition for "education record." Id.
§1232g(a)(4)(A)(I). To constitute an "education record,"
however, these grades must also be "maintained . . . by a person
acting for [an educational] agency or institution." Id. §1232g(a)(4)(A)(ii).
The
undisputed evidence indicates that at least some grades which students
give one another and report to the teacher are then recorded in
the teacher's grade book. At that later time when the grades are
placed in the teacher's grade book, they are "maintained .
. . by a person acting for [an educational] agency or institution"
and constitute "education records." Id. FERPA itself
provides, "The term `education records' does not include []
records of instructional . . . personnel . . . which are in the
sole possession of the maker thereof and which are not accessible
or revealed to any other person except a substitute . . . ."
Id. § 1232g(a)(4)(B)(I) (emphasis added). This language
explicitly provides that records of instructional personnel, such
as grade books, do not constitute "education records"
only if they "are not accessible or revealed to any other person
except a substitute." Id. Therefore, grade books disclosed
to people other than substitute teachers, such as students, do qualify
as education records. Because grade books, except those disclosed
only to substitutes, fall within the statutory definition of "education
records" and because one element of that definition is that
the records are "maintained," grade books and the grades
within are necessarily "maintained" by a person acting
for the educational institution, as required by FERPA.
The
School District contends the language of § 1232g(a)(4)(B)(I)
categorically excludes grade books, and hence, the grades at issue
in the instant case, from the definition of "education records."
The School District's proposed construction of this provision, however,
defies both the plain language of this provision and a well-settled
rule of statutory construction. "[A] statute must, if possible,
be construed in such fashion that every word has some operative
effect." United States v. Nordic Village, Inc., 503
U.S. 30, 36 (1992). If § 1232g(a)(4)(B)(I) excludes records
such as grade books from the definition of "education records"
in an unqualified manner, as the School District urges, the language
"and which are not accessible or revealed to any other person
except a substitute" becomes meaningless. If grade books never
constitute "education records," teachers would be free
under FERPA to reveal them to anyone, thus obviating the need to
provide in the statute for allowing disclosure to substitute teachers.
In
its petition for rehearing, the School District argues that interpreting
§ 1232g(a)(4)(B)(I) as merely allowing for the disclosure of
grade books to substitutes, as this court does, "renders subsection
1232g(a)(4)(B)(I) superfluous, because subsection 1232g(b)(1)(A)
already provides that it is not a violation of FERPA to allow access
to education records" by substitute teachers. As just explained,
however, it is the School District's construction of § 1232g(a)(4)(B)(I)
which renders language within that subsection meaningless. This
court's interpretation of § 1232g(a)(4)(B)(I) does not suffer
that same malady.
It
is important to note that FERPA serves two general purposes: (1)
prohibiting disclosure of private education records, the aspect
of FERPA at issue in the instant case; and (2) providing parents
access to their children's education records. See id. § 1232g(a)(1)(A),
(b)(1). In light of this second purpose, § 1232g(a)(4)(B)(I),
as interpreted by this court, means that a teacher may reveal a
grade book to a substitute teacher without being required to also
disclose that grade book to a parent; if, however, the teacher reveals
the grade book to anyone other than a substitute, the grade book
becomes an "education record" to which a parent gains
the right to access. The School District, therefore, is wrong to
assert that § 1232g(a)(4)(B)(I), which allows a teacher to
disclose a grade book to a substitute only, is superfluous because
such disclosure is already permitted under § 1232g(b)(1)(A).
Section 1232g(a)(4)(B)(I), unlike § 1232g(b)(1)(A), permits
a teacher to reveal a grade book to a substitute without having
to also show it to a parent. Contrary to the School District's challenge,
therefore, our interpretation of § 1232g(a)(4)(B)(I) does not
render that subsection superfluous, but is, in fact, the only reasonable
way to construe that provision.
This
court must next resolve whether grades are also "maintained
. . . by a person acting for [an educational] agency or institution"
at the more preliminary stage when one student simply writes the
grade of a fellow student on homework and test papers. Id.
§1232g(a)(4)(A)(ii). The student's transmission of that recorded
grade, when the teacher later receives that grade, is necessarily
done to allow the teacher to use the grade in some fashion. [13]
In so assisting the teacher, the correcting student becomes a "person
acting for [an educational] agency or institution." Id.
The grade the correcting student places on the paper is also "maintained,"
because that student is preserving the grade until the time it is
reported to the teacher for further use. In sum, the grades which
students mark, at the teacher's direction, on each other's homework
and test papers and later report to the teacher are "maintained
. . . by a person acting for [an educational] agency or institution."
Id. This interpretation of FERPA is consistent with Congress' intent
to protect from disclosure grades in a teacher's grade book. If
Congress intended FERPA to preclude a teacher from revealing to
one student the grades of another when written in a grade book,
it would be incongruous to permit a teacher to disclose or allow
the dissemination of those grades to other students immediately
before recording them in the grade book or noting them in some similar
way which serves the same purposes as a grade book record.
In
its petition for rehearing, the School District argues, for the
first time, that two provisions within FERPA, 20 U.S.C. §§
1232g(a)(2), 1232g(b)(4)(A), undermine our statutory interpretation.
This court is first unconvinced that in resolving whether particular
documents constitute education records within the meaning of FERPA,
we need to look beyond the statutory definition for the term "education
records" when that definitional section provides a clear answer.
Moreover, this court disagrees with the School District that these
two provisions demonstrate Congressional intent to exclude student-graded
work from the definition of "education records."
Section
1232g(a)(2) states that educational institutions must provide parents
"an opportunity for a hearing . . . to challenge the content
of . . . education records." The School District asserts that
Congress could not have reasonably intended to allow parents to
challenge in a hearing the accuracy of a grade placed on a student's
homework or test by another student. The School District, relying
on a statement from the legislative history, contends Congress only
meant to afford parents a procedural right to challenge "institutional
records."
To
the contrary, Congress could have sensibly intended to provide parents
a means to challenge the accuracy of grades on individual homework
and test papers. Indeed, a challenge to "institutional records"
such as a semester grade might necessarily require an investigation
into the accuracy of the individual homework and test grades used
to calculate the final semester grade. Moreover, the notion that
a parent should have a right to raise such a challenge is neither
beyond the pale of possible Congressional intent, nor does it "trivialize"
such intent, as the School District asserts. Imagine a student who,
perhaps out of juvenile malice, consistently records grades on another
student's papers which are lower than that which the student actually
earned. Such inaccurate student grading could significantly impact
the slighted student's more permanent grades. In such a situation,
a parent has a definite and strong need to challenge the accuracy
of the student-recorded grades. Under this court's view, FERPA provides
the necessary recourse. Reading § 1232g(a)(2) on its face,
therefore, does not, as the School District contends, illuminate
the meaning of the term "education records."
As
to the legislative history noted by the School District, this court
need not test those murky waters because we conclude the statutory
language defining "education records" is clear on its
face. It is because expressions in legislative history often lack
the precision and clarity which we expect from the language of enacted
statutes that this court generally does not look to such history
when construing a statute unless the statutory language itself is
ambiguous. See United States v. Ron-Pair Enterprises, 489
U.S. 235, 241-42 (1989); Starzynski v. Sequoia Forest Indus.,
72 F.3d 816, 820 (10th Cir. 1995). Even if this court were to consider
legislative history, we are unconvinced that the cited reference
to "institutional records" demonstrates a clear Congressional
intent to limit the meaning of "education records" to
"centralized, cumulative records." The enacted definition
of "education records" within FERPA makes no reference
to "institutional," "centralized," or "cumulative"
records. See 20 U.S.C. §1232g(a)(4).
Finally,
this court disagrees that § 1232g(b)(4)(A) [14] vitiates our
statutory construction. The School District asserts that this provision,
in light of our conclusion that the term "education records"
encompasses student-recorded grades which are provided to the teacher,
would require individual teachers to maintain a record (an "access
record") indicating every individual or entity which has requested
or obtained access to the student's graded homework or tests and
identifying that person's or entity's interest in accessing the
student's education records. Such a requirement, the School District
contends, runs contrary to Congress' intent expressed in §
1232g(b)(4)(A) to allow a central custodian to maintain such access
records. This argument is unavailing, however, because nothing in
this court's interpretation of the term "education records"
would prohibit a central custodian from maintaining these access
records, as the School District seems to fear.
In
sum, because a reading of the plain language of FERPA demonstrates
that the term "education records" encompasses the grades
at issue in the instant case, this court concludes the district
court erred when it resolved that the grading practice did not offend
FERPA. [15]
D.
Qualified Immunity
In
their cross-motion for summary judgment, the individual defendants
argued they are entitled to qualified immunity. Despite ruling that
the grading practice violated neither the Fourteenth Amendment nor
FERPA, the district court concluded that qualified immunity does
not protect the individual defendants because "the rights of
privacy under FERPA and the Fourteenth Amendment were clearly established
at the time of the alleged violations." On appeal, the individual
defendants contend the district court's qualified immunity ruling
was erroneous and that qualified immunity provides an alternative
basis to affirm the district court's summary judgment ruling in
favor of those individuals. Contrary to Falvo's assertion that this
issue is not properly before this court because the individual defendants
failed to file a cross-appeal, this court may affirm the district
court's ruling on any basis supported by the record. See Schalk
v. Gallemore, 906 F.2d 491, 498 (10th Cir. 1990) ("Because
we may affirm the trial court's decision on any grounds supported
in the record, we proceed to consider the qualified immunity defense.").
When
a public official raises a qualified immunity defense in a §
1983 lawsuit, the plaintiff bears the burden of establishing (1)
"that the defendant's actions violated a federal constitutional
or statutory right," and (2) "that the right violated
was clearly established at the time of the conduct at issue."
Horstkoetter v. Department of Pub. Safety, 159 F.3d 1265,
1277, 1278 (10th Cir. 1998) (quotation omitted). Having concluded
that the grading practice violates FERPA, this court must further
determine whether Falvo has demonstrated that the right she and
her children enjoy under FERPA was clearly established at the time
the individual defendants permitted the grading practice.
A
right is "clearly established" when "[t]he contours
of the right [are] sufficiently clear that a reasonable official
would understand that what he is doing violates that right."
Anderson v. Creighton, 483 U.S. 635, 640 (1987). "Although
a plaintiff need not show that the very action in question was previously
held unlawful, she must demonstrate that there is a Supreme Court
or Tenth Circuit decision on point, or the clearly established weight
of authority from other courts must have found the law to be as
the plaintiff maintains." Horstkoetter, 159 F.3d at
1278 (quotation and citation omitted). Falvo has presented no case
law whatsoever which concludes that FERPA creates a right to prevent
the disclosure of homework, test, or similar grades, nor is this
court aware of any such legal authority. Moreover, although this
court does not deem the Rooker letter or declaration to be persuasive,
the FPCO's statutory interpretation contained in those documents
suggests that the right which we elucidate today was not clearly
established. The individual defendants are thus entitled to qualified
immunity in the instant suit. [16] Because the qualified immunity
doctrine only protects these individual defendants from liability
for monetary damages and not from injunctive remedies, however,
Falvo may pursue a claim for injunctive relief against these individual
defendants in their official capacities. See Jones v. City &
County of Denver, 854 F.2d 1206, 1208 n.2 (10th Cir. 1988);
DeVargas v. Mason & Hanger-Silas Mason Co., 844 F.2d
714, 718 (10th Cir. 1988).
IV. CONCLUSION
Because
the grading practice which Falvo challenges does not implicate a
Fourteenth Amendment right, this court AFFIRMS the District
Court for the Northern District of Oklahoma's grant of summary judgment
in favor of all defendants on the Fourteenth Amendment claim. Nevertheless,
that grading practice does violate FERPA, and we thus REVERSE
the district court's grant of summary judgment in favor of the School
District on Falvo's FERPA claim. [17]
On
the basis of qualified immunity, this court also AFFIRMS
the grant of summary judgment in favor of the individual defendants
on Falvo's FERPA claim for monetary relief. Because qualified immunity
does not protect the individual defendants from liability for injunctive
relief, however, we REVERSE the district court's grant of
summary judgment in favor of the individual defendants on Falvo's
FERPA claim for injunctive relief. This court REMANDS for
further proceedings consistent with this opinion.
Footnotes
[1] The critical part of the court's decision: If Congress intended
FERPA to preclude a teacher from revealing to one student the grades
of another when written in a grade book, it would be incongruous
to permit a teacher to disclose or allow the dissemination of those
grades to other students immediately before recording them in the
grade book or noting them in some similar way which serves the same
purposes as a grade book record. Amended Ct. Op. at 26.
[2] When interpreting a statute, a court should look to its plain
language, resorting to legislative history in an attempt to discern
congressional intent only when the language of the statute is unclear.
See Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447
U.S. 102, 108 (1980). Contrary to the court's conclusion, the definition
of "education records" to encompass grades placed on papers
is far from clear on the face of the statute. The court reaches
its conclusion only after assuming that if Congress intended to
protect grade books, it also intended to protect graded papers and
tests. Thus, whether "education records" refers to graded
papers is unclear from the face of the statute. In such cases, consideration
of legislative history is wholly appropriate.
[3] The record indicates that the plaintiff students were in the
sixth through eighth grades during the relevant time period and
that this school district has a different school for each of these
grades. We thus employ the term "pre-secondary school"
to encompass the institutions attended by all three children.
[4] Falvo has not asserted that the distinct practice of calling
out grades in class constitutes a violation of the Constitution
and FERPA, independent of the process of having children exchange
papers for grading. In fact, she testified that the calling out
of her children's grades did not really matter because the prior
act of one student grading another's paper itself constitutes a
disclosure. As a consequence, this court need not determine whether
the challenge to the practice of calling out grades in class is
resolved by the option which the School District provided Falvo's
children to privately report their own grades to the teacher.
[5]
This test differs significantly from the analysis employed to determine
the constitutionality of governmental infringement of other types
of liberty interests. In these other contexts, a court first ascertains
whether a liberty interest exists. See, e.g., Seamons v. Snow,
84 F.3d 1226, 1234-35 (10th Cir. 1996). Similarly here, this court
must first determine whether the claimant possessed a form of liberty
interest, a legitimate expectation of privacy in the information
sought to be protected. See Denver Policemen's Protective Ass'n
v. Lichtenstein, 660 F.2d 432, 435 (10th Cir. 1981). The tests,
however, diverge at this point. In the usual Fourteenth Amendment
liberty analysis, a court, having resolved that a liberty interest
exists, then determines the degree of importance of that liberty
interest in order to decide which level of analytical scrutiny to
apply. See, e.g., United States v. Deters, 143 F.3d 577,
583 (10th Cir. 1998). Under the test articulated in Lichtenstein,
once a legitimate expectation of privacy is established, the court
must automatically subject the governmental deprivation to strict
scrutiny without ever determining whether the expectation of privacy
constitutes a fundamental right. See Lichtenstein, 660 F.2d
at 435; see also infra note 4 (noting a further distinction
between this court's jurisprudence regarding the constitutional
right to have personal information protected and other types of
Fourteenth Amendment liberty interests).
[6]
We acknowledge the possible inconsistency between such precedent
and both the legitimate expectation of privacy test itself and other
Tenth Circuit case law which holds that constitutionally-protected
liberty interests can spring from statutes. See, e.g., Wildermuth
v. Furlong, 147 F.3d 1234, 1237 (10th Cir. 1998). Nonetheless,
this court is bound by this Circuit's controlling authority in this
particular area of Fourteenth Amendment jurisprudence. See In
re Smith, 10 F.3d 723, 724 (10th Cir. 1993).
[7]
This court need not resolve whether IDEA similarly prohibits the
grading practice, because even if the grading practice does violate
that statute, we still could not conclude that the right to prevent
disclosure of these grades is a "deeply rooted notion[] of
fundamental personal interest[] derived from the Constitution."
i, 789 F.2d 836, 839 (10th Cir. 1986).
[8]
Some courts have concluded that in Suter v. Artist M., 503
U.S. 347 (1992), the Supreme Court imposed additional requirements
upon this analytical framework. See, e.g., Albiston v. Maine
Comm'r of Human Servs., 7 F.3d 258, 262-63 (1st Cir. 1993).
This court, however, has held that any analytical additions announced
in i are "no longer to be followed" in light of post-Suter
Congressional action. Stanberry v. Sherman, 75 F.3d 581,
584 (10th Cir. 1996); see also Blessing v. Freestone, 520
U.S. 329, 340-41 (1997) (employing the pre-Suter analytical framework).
[9]
Congress did not "expressly . . . forbid[] recourse to §
1983 in the statute itself." Blessing, 520 U.S. at 341.
[10]
This court recognizes that in Washington v. Glucksberg, the
question presented was whether the Constitution itself created a
liberty interest in physician-assisted suicide. See 521 U.S. 702,
705-06 (1997). Under the law of this Circuit, a constitutionally-protected
liberty interest in the non-disclosure of personal information can
only arise from the Constitution and not from federal or state statutes
and regulations. See supra notes 3-4 and accompanying text. For
that reason, Glucksberg is relevant to resolving Falvo's
constitutional claim. The applicability of Glucksberg, however,
is not as clear in other areas of Fourteenth Amendment jurisprudence
in which a statute can create a constitutionally-protected liberty
interest and the only question is whether the Constitution limits
the manner in which that interest can be deprived. See supra note
4.
[11]
The Rooker letter was drafted in response to inquiries made by a
union representative of the New York State United Teachers about
the legality under FERPA of certain practices by school officials.
It states, FERPA would not prohibit teachers from allowing students
to grade a test or homework assignment of another student or from
calling out that grade in class, even though such grade may eventually
become an education record. Such papers being graded and the grades
which will be assigned would fall outside the FERPA definition of
education records as they are not, strictly speaking, "maintained"
by an educational agency or institution at that point.
[12]
As mentioned supra note 2, the method of reporting the grade is
irrelevant to our analysis, because a disclosure occurs at the earlier
stage when one student grades the work of another.
[13]
The teacher might use the grade by recording it in a grade book
to calculate the student's final grade. Even if the homework or
test grade never figures into the student's final grade, the teacher
must still receive the grade to use it for some other purpose, perhaps
to preserve, in a grade book or otherwise, a yardstick of each student's
performance and progress to better develop effective teaching strategies.
[14]
Section 1232 g(b)(4)(A) provides, Each educational agency or institution
shall maintain a record, kept with the education records of each
student, which will indicate all individuals . . . , agencies, or
organizations which have requested or obtained access to a student's
education records maintained by such educational agency or institution,
and which will indicate specifically the legitimate interest that
each such person, agency, or organization has in obtaining this
information. Such a record of access shall be available only to
parents, to the school official and his assistants who are responsible
for the custody of such records, and to 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.
20 U.S.C. §1232g(b)(4)(A).
[15]
The School District justifies the grading of homework and tests
by other students on two grounds: (1) it allows immediate feedback
to the students; and (2) it relieves the teacher of the time-consuming
task of correcting the papers. FERPA, however, forbids neither the
practice nor the benefits. The statute does not prohibit students
from correcting papers if done anonymously or with the consent of
parents. See 20 U.S.C. § 1232g(b)(1). Furthermore, the evidence
establishes that not all teachers have their students grade one
another's work. As a consequence, there necessarily exist further
alternatives to the practice of having students correct other students'
papers without parental consent or anonymity. In its petition for
rehearing, the School District itself recognized two additional
techniques which teachers may employ to avoid liability-collecting
and passing out papers themselves or placing graded papers in sealed
envelopes. There are still other means by which teachers can continue
to work efficiently and effectively without violating FERPA. For
example, if a teacher would like one student to collect from the
others self-graded papers, the teacher can simply direct the students
to turn their papers over so the grade is not revealed. Similarly,
if a teacher does not wish to personally hand out graded papers,
the teacher may have the students come to retrieve the papers one
at a time, so they do not see each others' grades; alternatively,
the teacher could fold over the papers to conceal the students'
grades but not their names and thus allow a student to hand back
the papers. The School District's protestations that this opinion
somehow marks the end of the world for teachers, therefore, are
far exaggerated.
[16]
We recognize the existence of authority, albeit not in this Circuit,
which holds that qualified immunity is unavailable to a defendant
who violates a right arising from an unambiguous statute. See Jackson
v. Rapps, 947 F.2d 332, 339 (8th Cir. 1991). That rule does
not apply in the instant case, however, because prior to this court's
construing FERPA and concluding it unambiguously prohibits the grading
practice, the very agency charged with administering that statute,
the FPCO, had put forward a directly contrary interpretation. See
20 U.S.C. § 1232g(f), (g) (designating to the Secretary of
Education the authority to enforce and address violations of FERPA
and to establish a review board to investigate, process, review,
and adjudicate such violations); 34 C.F.R. § 99.60(b) ("The
Secretary [of Education] designates the [FPCO] . . . to: (1) Investigate,
Process, and review complaints and violations under [FERPA] and
this part; and (2) Provide technical assistance to ensure compliance
with [FERPA] and this part."). We cannot expect educators to
more accurately interpret a law than that law's administering agency;
educators should be able to rely on the FPCO's opinions, in the
absence of already existing, conflicting case law, regarding permissible
practices under FERPA. To apply the rule set out by the Eighth Circuit
in Jackson in the instant case, therefore, would undermine the purpose
of qualified immunity, which aims to protect all but the objectively
unreasonable. See Anderson v. Creighton, 483 U.S. 635, 639
(1987)
[17]
The School District, however, will only be liable if Falvo can demonstrate
"that the [illegal] actions of an employee were representative
of an official policy or custom of [the School District], or were
carried out by an official with final policy making authority with
respect to the challenged action." Seamons v. Snow,
206 F.3d 1021, 1028 (10th Cir. 2000).
Revised 10/23/15
