OCTOBER TERM, 2001
Syllabus
GONZAGA UNIVERSITY ET AL.
v. DOE
CERTIORARI TO THE SUPREME COURT OF WASHINGTON No. 01-679. Argued
April 24, 2002-Decided June 20, 2002
As a student at petitioner Gonzaga University, a private
educational institution in Washington State, respondent planned to
become a public elementary schoolteacher in that State after
graduation. Washington at the time required all new teachers to
obtain an affidavit of good moral character from their graduating
colleges. Petitioner League, Gonzaga's teacher certification
specialist, overheard one student tell another that respondent had
engaged in sexual misconduct. League then launched an
investigation; contacted the state agency responsible for teacher
certification, identifying respondent by name and discussing the
allegations; and, finally, told him that he would not receive his
certification affidavit. Respondent sued Gonzaga and League in
state court under,
inter alia, 42 U. S. C. § 1983, alleging
a violation of the Family Educational Rights and Privacy Act of
1974 (FE RPA), 20 U. S. C. § 1232g, which prohibits the federal
funding of schools that have a policy or practice of permitting the
release of students' education records without their parents'
written consent. A jury awarded respondent compensatory and
punitive damages on the FERPA claim. The Washington Court of
Appeals reversed in relevant part, concluding that FERPA does not
create individual rights and thus cannot be enforced under § 1983.
Reversing in turn, the State Supreme Court acknowledged that FERPA
does not give rise to a private cause of action, but reasoned that
the nondisclosure provision creates a federal right enforceable
under § 1983.
Held: Respondent's action is foreclosed because the
relevant FERPA provisions create no personal rights to enforce
under § 1983. Pp. 278-291.
(a) This Court has never held, and declines to do so here, that
spending legislation drafted in terms resembling FERPA's can confer
enforceable rights. FERPA directs the Secretary of Education to
enforce its nondisclosure provisions and other spending conditions,
§ 1232g(f), by establishing an office and review board to
investigate, process, review, and adjudicate FERPA violations, §
1232g(g), and to terminate funds only upon determining that a
recipient school is failing to comply substantially with any FERPA
requirement and that such compliance cannot be secured voluntarily,
§§ 1234c(a), 1232g(f). In
Pennhurst State School and
Hospital v.
Halderman, 451 U. S. 1, the Court made
clear that unless Congress "speak[s] with a clear voice," and
manifests an
274
Syllabus
"unambiguous" intent to create individually enforceable rights,
federal funding provisions provide no basis for private enforcement
by § 1983,
id., at 17, 28, and n. 21. Since
Pennhurst, the Court has found that spending legislation
gave rise to rights enforceable under § 1983 only in
Wright
v.
Roanoke Redevelopment and Housing Authority, 479 U. S. 418, 426, 432,
and
Wilder v.
Virginia Hospital Assn., 496 U. S. 498, 522523,
where statutory provisions explicitly conferred specific monetary
entitlements upon the plaintiffs, and there was no sufficient
administrative means of enforcing the requirements against
defendants that failed to comply. The Court's more recent
decisions, however, have rejected attempts to infer enforceable
rights from Spending Clause statutes whose language did not
unambiguously confer such a right upon the Act's beneficiaries.
See,
e. g., Suter v.
Artist M., 503 U. S. 347, 363;
Blessing v.
Freestone, 520 U. S. 329, 340, 343.
Respondent's attempt to read this line of cases to establish a
relatively loose standard for finding rights enforceable by § 1983
is unavailing. Because § 1983 provides a remedy only for the
deprivation of "rights ... secured by the [Federal] Constitution
and laws," it is
rights, not the broader or vaguer
"benefits" or "interests," that may be enforced thereunder. Thus,
the Court further rejects the notion that its implied right of
action cases are separate and distinct from its § 1983 cases. To
the contrary, the former cases should guide the determination
whether a statute confers rights enforceable under § 1983. Although
the question whether a statutory violation may be enforced through
§ 1983 is a different inquiry from that involved in determining
whether a private right of action can be implied from a particular
statute,
Wilder, supra, at 508, n. 9, the inquiries overlap
in one meaningful respect-in either case it must first be
determined whether Congress
intended to create afederal
right, see
Touche Ross & Co. v.
Redington, 442
U. S. 560, 576. For a statute to create private rights, its
text must be phrased in terms of the persons benefited.
E.
g., Cannon v.
University of Chicago, 441 U. S. 677, 692, n.
13. Once the plaintiff demonstrates that the statute confers rights
on a particular class of persons,
California v.
Sierra
Club, 451 U. S.
287, 294, the right is presumptively enforceable by § 1983.
Conversely, where a statute provides no indication that Congress
intends to create new individual rights, there is no basis for a
private suit under § 1983. Pp. 278-286.
(b) There is no question that FERPA's confidentiality provisions
create no rights enforceable under § 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," § 1232g(b)(I). This focus is two steps removed from the
interests of individual students and parents
275
and clearly does not confer the sort of
individual
entitlement that is enforceable under § 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 §§
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 FERPA's requirements, § 1234c(a), also
supports a finding that FERPA fails to support a § 1983 suit. 520
U. S., at 335, 343. References in §§ 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," § 1232g(f), and required to establish a
review board to investigate and adjudicate such violations, §
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, §
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. Pp. 287-290.
143 Wash. 2d 687, 24 P. 3d 390, reversed and remanded.
REHNQUIST, C. J., delivered the opinion of the Court, in which
O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. BREYER, J.,
filed an opinion concurring in the judgment, in which SOUTER, J.,
joined,
post, p. 291. STEVENS, J., filed a dissenting
opinion, in which GINSBURG, J., joined,
post, p. 293.
John G.
Roberts, Jr., argued the cause for
petitioners.
With him on the briefs were Martin Michaelson, Charles K.
Wiggins, and Kenneth W Masters.
276
Patricia A. Millett argued the cause for the United States as
amicus curiae urging reversal. With her on the brief were Solicitor
General Olson, Assistant Attorney General McCallum, Deputy
Solicitor General Kneedler, Mark B. Stern, Alisa B. Klein, and Anne
Murphy.
Beth S.
Brinkmann argued the cause for
respondent.
With her on the brief were
Drew S.
Days III
and
Lois K. Perrin. *
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
The question presented is whether a student may sue a private
university for damages under Rev. Stat. § 1979, 42 U. S. C. § 1983
(1994 ed., Supp. V), to enforce provisions of the Family
Educational Rights and Privacy Act of 1974 (FERPA or Act), 88 Stat.
571, 20 U. S. C. § 1232g, which prohibit the federal funding of
educational institutions that have a policy or practice of
releasing education records to unauthorized persons. We hold such
an action foreclosed because the relevant provisions of FERPA
create no personal rights to enforce under 42 U. S. C. § 1983 (1994
ed., Supp. V).
*Briefs of
amici curiae urging reversal were filed for
the State of Illinois et al. by
James E. Ryan, Attorney
General of Illinois,
Joel D. Bertocchi, Solicitor General,
Michael P. Doyle, Assistant Attorney General, and
Dan
Schweitzer, and by the Attorneys General for their respective
States as follows:
Bill Pryor of Alabama,
M. Jane
Brady of Delaware,
Robert A. Butterworth of Florida,
Earl I. Anzai of Hawaii,
J. Joseph Curran,
Jr., of Maryland,
Mike Moore of Mississippi,
Don
Stenberg of Nebraska,
Frankie Sue Del Papa of Nevada,
David Samson of New Jersey,
Betty D. Montgomery of
Ohio,
Hardy Myers of Oregon,
Mark L. Shurtleff of
Utah,
Christine O.
Gregoire of Washington, and
Hoke MacMillan of Wyoming; for the American Association of
Community Colleges et al. by
Philip Burling, John M.
Stevens, and
Sheldon E. Steinbach; and for the Reporters
Committee for Freedom of the Press et al. by
Gregg P. Leslie,
Lucy A. Dalglish, Bruce W Sanford, and S.
Mark
Goodman.
Aaron H. Caplan, Jordan Gross, and
Steven R.
Shapiro filed a brief for the American Civil Liberties Union et
al. as
amici curiae urging affirmance.
277
Respondent John Doe is a former undergraduate in the School of
Education at Gonzaga University, a private university in Spokane,
Washington. He planned to graduate and teach at a Washington public
elementary school. Washington at the time required all of its new
teachers to obtain an affidavit of good moral character from a dean
of their graduating college or university. In October 1993, Roberta
League, Gonzaga's "teacher certification specialist," overheard one
student tell another that respondent engaged in acts of sexual
misconduct against Jane Doe, a female undergraduate. League
launched an investigation and contacted the state agency
responsible for teacher certification, identifying respondent by
name and discussing the allegations against him. Respondent did not
learn of the investigation, or that information about him had been
disclosed, until March 1994, when he was told by League and others
that he would not receive the affidavit required for certification
as a Washington schoolteacher.
Respondent then sued Gonzaga and League (petitioners) in state
court. He alleged violations of Washington tort and contract law,
as well as a pendent violation of § 1983 for the release of
personal information to an "unauthorized person" in violation of
FERPA.l A jury found for respondent on all counts, awarding him
$1,155,000, including $150,000 in compensatory damages and $300,000
in punitive damages on the FERPA claim.
1 The Washington Court of Appeals and the Washington Supreme
Court found petitioners to have acted "under color of state law"
for purposes of § 1983 when they disclosed respondent's personal
information to state officials in connection with state-law teacher
certification requirements. 143 Wash. 2d 687, 710-711, 24 P. 3d
390, 401-402 (2001). Although the petition for certiorari
challenged this holding, we agreed to review only the question
posed in the first paragraph of this opinion, a question reserved
in
Owasso Independent School Dist. No. 1-011 v.
Falvo, 534 U.
S. 426, 430431 (2002). We therefore assume without deciding
that the relevant disclosures occurred under color of state
law.
278
The Washington Court of Appeals reversed in relevant part,
concluding that FERPA does not create individual rights and thus
cannot be enforced under § 1983. 99 Wash. App. 338, 992 P. 2d 545
(2000). The Washington Supreme Court reversed that decision, and
ordered the FERPA damages reinstated. 143 Wash. 2d 687, 24 P. 3d
390 (2001). The court acknowledged that "FERPA itself does not give
rise to a private cause of action," but reasoned that FERPA's
nondisclosure provision "gives rise to a federal right enforceable
under section 1983."
Id., at 707-708, 24 P. 3d, at 400.
Like the Washington Supreme Court and the State Court of Appeals
below, other state and federal courts have divided on the question
of FERPA's enforceability under § 1983.2 The fact that all of these
courts have relied on the same set of opinions from this Court
suggests that our opinions in this area may not be models of
clarity. We therefore granted certiorari, 534 U. S. 1103 (2002), to
resolve the conflict among the lower courts and in the process
resolve any ambiguity in our own opinions.
Congress enacted FERPA under its spending power to condition the
receipt of federal funds on certain requirements relating to the
access and disclosure of student educational records. The Act
directs the Secretary of Education to withhold federal funds from
any public or private "educational agency or institution" that
fails to comply with these conditions. As relevant here, the Act
provides:
2 Compare
Gundlach v.
Reinstein, 924 F. Supp. 684,
692 (ED Pa. 1996) (FERPA confers no enforceable rights because it
contains "no unambiguous intention on the part of the Congress to
permit the invocation of § 1983 to redress an individual release of
records"), aff'd,
114 F.3d
1172 (CA3 1997); and
Meury v.
Eagle-Union
Community School Corp., 714 N. E. 2d 233, 239 (Ind. Ct. App.
1999) (same), with
Falvo v.
Owasso Independent School
Dist. No. 1-011,
233 F.3d
1203, 1210 (CAlO 2000) (concluding that release of records in
"violation of FERPA is actionable under ... § 1983"), rev'd on
other grounds,
534 U.
S. 426 (2002); and
Brown v.
Oneonta, 106 F. 3d
1125, 1131-1132
(CA2 1997) (same).
279
"No funds shall be made available under any applicable program
to any educational agency or institution which has a policy or
practice of permitting the release of education records (or
personally identifiable information contained therein ... ) of
students without the written consent of their parents to any
individual, agency, or organization." 20 U. S. C. §
1232g(b)(1).
The Act directs the Secretary of Education to enforce this and
other of the Act's spending conditions. § 1232g(f). The Secretary
is required to establish an office and review board within the
Department of Education for "investigating, processing, reviewing,
and adjudicating violations of [the Act]." § 1232g(g). Funds may be
terminated only if the Secretary determines that a recipient
institution "is failing to comply substantially with any
requirement of [the Act]" and that such compliance "cannot be
secured by voluntary means." §§ 1234c(a), 1232g(f).
Respondent contends that this statutory regime confers upon any
student enrolled at a covered school or institution a federal
right, enforceable in suits for damages under § 1983, not to have
"education records" disclosed to unauthorized persons without the
student's express written consent. But we have never before held,
and decline to do so here, that spending legislation drafted in
terms resembling those of FERPA can confer enforceable rights.
In
Maine v.
Thiboutot, 448 U. S. 1 (1980), six
years after Congress enacted FERPA, we recognized for the first
time that § 1983 actions may be brought against state actors to
enforce rights created by federal statutes as well as by the
Constitution. There we held that plaintiffs could recover payments
wrongfully withheld by a state agency in violation of the Social
Security Act.
Id., at 4. A year later, in
Pennhurst State
School and Hospital v.
Halderman, 451 U. S. 1 (1981), we
rejected a claim that the Developmentally Disabled Assistance and
Bill of Rights Act of 1975 conferred enforceable rights,
saying:
280
"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." Id., at 28.
We made clear that unless Congress "speak[s] with a clear
voice," and manifests an "unambiguous" intent to confer individual
rights, federal funding provisions provide no basis for private
enforcement by § 1983.
Id., at 17, 28, and n. 21.
Since
Pennhurst, only twice have we found spending
legislation to give rise to enforceable rights. In
Wright v.
Roanoke Redevelopment and Housing Authority, 479 U. S. 418 (1987), we
allowed a § 1983 suit by tenants to recover past overcharges under
a rent-ceiling provision of the Public Housing Act, on the ground
that the provision unambiguously conferred "a mandatory [benefit]
focusing on the individual family and its income."
Id., at
430. The key to our inquiry was that Congress spoke in terms that
"could not be clearer,"
ibid., and conferred entitlements
"sufficiently specific and definite to qualify as enforceable
rights under
Pennhurst." Id., at 432. Also significant was
that the federal agency charged with administering the Public
Housing Act "ha[d] never provided a procedure by which tenants
could complain to it about the alleged failures [of state welfare
agencies] to abide by [the Act's rent-ceiling provision]."
Id., at 426.
Three years later, in
Wilder v.
Virginia Hospital
Assn., 496 U. S.
498 (1990), we allowed a § 1983 suit brought by health care
providers to enforce a reimbursement provision of the Medicaid Act,
on the ground that the provision, much like the rent-ceiling
provision in
Wright, explicitly conferred specific monetary
entitlements upon the plaintiffs. Congress left no doubt of its
intent for private enforcement, we said, because the provision
required States to pay an "objective" monetary entitlement to
individual health care providers, with no sufficient administrative
means of enforcing the
281
requirement against States that failed to comply. 496 U. S., at
522-523.
Our more recent decisions, however, have rejected attempts to
infer enforceable rights from Spending Clause statutes. In
Suter v.
Artist M., 503 U. S. 347 (1992), the
Adoption Assistance and Child Welfare Act of 1980 required States
receiving funds for adoption assistance to have a "plan" to make
"reasonable efforts" to keep children out of foster homes. A class
of parents and children sought to enforce this requirement against
state officials under § 1983, claiming that no such efforts had
been made. We read the Act "in the light shed by
Pennhurst,"
id., at 358, and found no basis for the suit, saying:
"Careful examination of the language ... does not unambiguously
confer an enforceable right upon the Act's beneficiaries. The term
'reasonable efforts' in this context is at least as plausibly read
to impose only a rather generalized duty on the State, to be
enforced not by private individuals, but by the Secretary in the
manner [of reducing or eliminating payments]." Id., at
363.
Since the Act conferred no specific, individually enforceable
rights, there was no basis for private enforcement, even by a class
of the statute's principal beneficiaries.
Id., at 357.
Similarly, in
Blessing v.
Freestone, 520 U. S. 329 (1997),
Title IV -D of the Social Security Act required States receiving
federal child-welfare funds to "substantially comply" with
requirements designed to ensure timely payment of child support.
Five Arizona mothers invoked § 1983 against state officials on
grounds that state child-welfare agencies consistently failed to
meet these requirements. We found no basis for the suit,
saying:
"Far from creating an individual entitlement to services,
the standard is simply a yardstick for the Secretary to measure the
systemwide performance of a State's Title IV-D program.
Thus, the Secretary must look to
282
the aggregate services provided by the State, not to whether the
needs of any particular person have been satisfied." Id., at
343 (emphases in original).
Because the provision focused on "the aggregate services
provided by the State," rather than "the needs of any particular
person," it conferred no individual rights and thus could not be
enforced by § 1983. We emphasized: "[T]o seek redress through §
1983, ... a plaintiff must assert the violation of a federal
right, not merely a violation of federal
law." Id.,
at 340 (emphases in original).
Respondent reads this line of cases to establish a relatively
loose standard for finding rights enforceable by § 1983. He claims
that a federal statute confers such rights so long as Congress
intended that the statute "benefit" putative plaintiffs. Brief for
Respondent 40-46. He further contends that a more "rigorous"
inquiry would conflate the standard for inferring a private right
of action under § 1983 with the standard for inferring a private
right of action directly from the statute itself, which he admits
would not exist under FERPA.
Id., at 41-43. As authority,
respondent points to
Blessing and
Wilder, which, he
says, used the term "benefit" to define the sort of statutory
interest enforceable by § 1983. See
Blessing, supra, at
340-341 ("Congress must have intended that the provision in
question benefit the plaintiff");
Wilder, supra, at 509
(same).
Some language in our opinions might be read to suggest that
something less than an unambiguously conferred right is enforceable
by § 1983.
Blessing, for example, set forth three "factors"
to guide judicial inquiry into whether or not a statute confers a
right: "Congress must have intended that the provision in question
benefit the plaintiff," "the plaintiff must demonstrate that the
right assertedly protected by the statute is not so 'vague and
amorphous' that its enforcement would strain judicial competence,"
and "the provision giving rise to the asserted right must be
couched in mandatory, rather than precatory, terms." 520 U. S., at
340-341. In
283
the same paragraph, however,
Blessing emphasizes that it
is only violations of
rights, not
laws, which give
rise to § 1983 actions.
Id., at 340. This confusion has led
some courts to interpret
Blessing as allowing plaintiffs to
enforce a statute under § 1983 so long as the plaintiff falls
within the general zone of interest that the statute is intended to
protect; something less than what is required for a statute to
create rights enforceable directly from the statute itself under an
implied private right of action. Fueling this uncertainty is the
notion that our implied private right of action cases have no
bearing on the standards for discerning whether a statute creates
rights enforceable by § 1983.
Wilder appears to support this
notion, 496 U. S., at 508-509, n. 9, while
Suter, 503 U. S.,
at 363-364, and
Pennhurst, 451 U. S., at 28, n. 21, appear
to disavow it.
We now reject the notion that our cases permit anything short of
an unambiguously conferred right to support a cause of action
brought under § 1983. Section 1983 provides a remedy only for the
deprivation of "rights, privileges, or immunities secured by the
Constitution and laws" of the United States. Accordingly, it is
rights, not the broader or vaguer "benefits" or "interests,"
that may be enforced under the authority of that section. This
being so, we further reject the notion that our implied right of
action cases are separate and distinct from our § 1983 cases. To
the contrary, our implied right of action cases should guide the
determination of whether a statute confers rights enforceable under
§ 1983.
We have recognized that whether a statutory violation may be
enforced through § 1983 "is a different inquiry than that involved
in determining whether a private right of action can be implied
from a particular statute."
Wilder, supra, at 508, n. 9. But
the inquiries overlap in one meaningful respect-in either case we
must first determine whether Congress
intended to create a
federal right. Thus we have held that "[t]he question whether
Congress ... intended to create a private right of action [is]
definitively an-
284
swered in the negative" where a "statute by its terms grants no
private rights to any identifiable class."
Touche Ross &
Co. v.
Redington, 442 U. S. 560, 576
(1979). For a statute to create such private rights, its text must
be "phrased in terms of the persons benefited."
Cannon v.
University of Chicago, 441 U. S. 677, 692, n. 13
(1979). We have recognized, for example, that Title VI of the Civil
Rights Act of 1964 and Title IX of the Education Amendments of 1972
create individual rights because those statutes are phrased "with
an
unmistakable focus on the benefited class."
Id.,
at 691 (emphasis added).3 But even where a statute is phrased in
such explicit rights-creating terms, a plaintiff suing under an
implied right of action still must show that the statute manifests
an intent "to create not just a private
right but also a
private
remedy." Alexander v.
Sandoval, 532 U. S. 275, 286 (2001)
(emphases added).
Plaintiffs suing under § 1983 do not have the burden of showing
an intent to create a private remedy because § 1983 generally
supplies a remedy for the vindication of rights secured by federal
statutes. See
supra, at 279-281. Once a plaintiff
demonstrates that a statute confers an individual right, the right
is presumptively enforceable by § 1983.4 But
3 Title VI provides:
"No person in the United States
shall ... be subjected to discrimination under any program
or activity receiving Federal financial assistance" on the basis of
race, color, or national origin. 78 Stat. 252, 42 U. S. C. § 2000d
(1994 ed.) (emphasis added). Title IX provides:
"No person in the United States
shall, on the
basis of sex, ... be subjected to discrimination under any
education program or activity receiving Federal financial
assistance." 86 Stat. 373, 20 U. S. C. § 1681(a) (emphasis added).
Where a statute does not include this sort of explicit "right- or
duty-creating language," we rarely impute to Congress an intent to
create a private right of action. See
Cannon, 441 U. S., at
690, n. 13 (listing provisions);
Alexander v.
Sandoval, 532
U. S. 275, 288 (2001) (existence or absence of rights-creating
language is critical to the Court's inquiry).
4 The State may rebut this presumption by showing that Congress
"specifically foreclosed a remedy under § 1983."
Smith v.
Robinson, 468
U. S. 992, 1004-1005, n. 9 (1984). The State's burden is to
demonstrate that Congress shut the door to private enforcement
either expressly, through
285
the initial inquiry-determining whether a statute confers any
right at all-is no different from the initial inquiry in an implied
right of action case, the express purpose of which is to determine
whether or not a statute "confer[s] rights on a particular class of
persons."
California v.
Sierra Club, 451 U. S. 287,
294 (1981). This makes obvious sense, since § 1983 merely provides
a mechanism for enforcing individual rights "secured" elsewhere, i.
e., rights independently "secured by the Constitution and
laws" of the United States. "[O]ne cannot go into court and claim a
'violation of § 1983' -for § 1983 by itself does not protect anyone
against anything."
Chapman v.
Houston Welfare Rights
Organization, 441
U. S. 600, 617 (1979).
A court's role in discerning whether personal rights exist in
the § 1983 context should therefore not differ from its role in
discerning whether personal rights exist in the implied right of
action context. Compare
Golden State Transit Corp. v.
Los
Angeles, 493 U.
S. 103, 107-108, n. 4 (1989) ("[A] claim based on a statutory
violation is enforceable under § 1983 only when the statute creates
'rights, privileges, or immunities' in the particular plaintiff"),
with
Cannon, supra, at 690, n. 13 (statute is enforceable
under implied right only where Congress "explicitly conferred a
right directly on a class of persons that included the plaintiff in
the case"). Both inquiries simply require a determination as to
whether or not Congress intended to confer individual rights upon a
class of beneficiaries. Compare
Wright, 479 U. S., at 423
(statute must be "intended to rise to the level of an enforce-
"specific evidence from the statute itself,"
Wright v.
Roanoke Redevelopment and Housing Authority, 479 U. S. 418, 423
(1987), or "impliedly, by creating a comprehensive enforcement
scheme that is incompatible with individual enforcement under §
1983,"
Blessing v.
Freestone, 520 U. S. 329, 341
(1997). See also
Middlesex County Sewerage Authority v.
National Sea Clammers Assn., 453 U. S. 1, 20 (1981).
These questions do not arise in this case due to our conclusion
that FERPA confers no individual rights and thus cannot give rise
to a presumption of enforceability under § 1983.
286
able right"), with
Alexander v.
Sandoval, supra,
at 289 (statute must evince "congressional intent to create new
rights"); and
California v.
Sierra Club, supra, at
294 ("The question is not simply who would benefit from the Act,
but whether Congress intended to confer federal rights upon those
beneficiaries" (citing
Cannon, supra, at 690-693, n. 13)).
Accordingly, where the text and structure of a statute provide no
indication that Congress intends to create new individual rights,
there is no basis for a private suit, whether under § 1983 or under
an implied right of action.
JUSTICE STEVENS disagrees with this conclusion principally
because separation-of-powers concerns are, in his view, more
pronounced in the implied right of action context as opposed to the
§ 1983 context.
Post, at 300-301 (dissenting opinion)
(citing
Wilder, 496 U. S., at 509, n. 9). But we fail to see
how relations between the branches are served by having courts
apply a multifactor balancing test to pick and choose which federal
requirements may be enforced by § 1983 and which may not. Nor are
separation-of-powers concerns within the Federal Government the
only guideposts in this sort of analysis. See
Will v.
Michigan Dept. of State Police, 491 U. S. 58, 65 (1989)
("[I]f 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'" (quoting
Atascadero State Hospital v.
Scanlon, 473
U. S. 234, 242 (1985); citing
Pennhurst State School and
Hospital v.
Halderman, 465 U. S. 89, 99
(1984))).5
5 This case illustrates the point well. JUSTICE STEVENS would
conclude that Congress intended FERPA's nondisclosure provisions to
confer individual rights on millions of school students from
kindergarten through graduate school without having ever said so
explicitly. This conclusion entails a judicial assumption, with no
basis in statutory text, that Congress intended to set itself
resolutely against a tradition of deference to state and local
school officials,
e. g., Falvo, 534 U. S., at
435 (rejecting proposed
287
With this principle in mind, there is no question that FERPA's
nondisclosure provisions fail to confer enforceable rights. To
begin with, the provisions entirely lack the sort of
"rights-creating" language critical to showing the requisite
congressional intent to create new rights.
Alexander v.
Sandoval, 532 U. S., at 288-289;
Cannon, 441 U. S.,
at 690, n. 13. Unlike the individually focused terminology of
Titles VI and IX ("No person ... shall ... be subjected to
discrimination"), FERPA's provisions speak only to the Secretary of
Education, directing that "[n]o funds shall be made available" to
any "educational agency or institution" which has a prohibited
"policy or practice." 20 U. S. C. § 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 § 1983.
Blessing, 520
U. S., at 343 (emphasis in original). As we said in
Cannon:
"There would be far less reason to infer a private remedy in
favor of individual persons if Congress, instead of drafting Title
IX with an unmistakable focus on the benefited class, had written
it simply as a ban on discriminatory conduct by recipients of
federal funds or as a prohibition against the disbursement of
public funds to educational institutions engaged in discriminatory
practices." 441 U. S., at 690-693.
See also
Alexander v.
Sandoval, supra, at 289
("Statutes that focus on the person regulated rather than the
individuals protected create 'no implication of an intent to confer
rights on a particular class of persons'" (quoting
California v.
Sierra Club, supra, at 294)).
interpretation of FERPA because "[w]e doubt Congress meant to
intervene in this drastic fashion with traditional state
functions");
Regents of Univ. of Mich. v.
Ewing,
474 U. S. 214,
226 (1985) (noting tradition of "reluctance to trench on the
prerogatives of state and local educational institutions"), by
subjecting them to private suits for money damages whenever they
fail to comply with a federal funding condition.
288
FERPA's nondisclosure provisions further speak only in terms of
institutional policy and practice, not individual instances of
disclosure. See §§ 1232g(b)(1)-(2) (prohibiting the funding of "any
educational agency or institution which has a
policy or
practice of permitting the release of education records"
(emphasis added)). Therefore, as in
Blessing, they have an
"aggregate" focus, 520 U. S., at 343, they are not concerned with
"whether the needs of any particular person have been satisfied,"
ibid., and they cannot "give rise to individual rights,"
id., at 344. Recipient institutions can further avoid
termination of funding so long as they "comply substantially" with
the Act's requirements. § 1234c(a). This, too, is not unlike
Blessing, which found that Title IV -D failed to support a §
1983 suit in part because it only required "substantial compliance"
with federal regulations. 520 U. S., at 335, 343. Respondent
directs our attention to subsection (b)(2), but the text and
structure of subsections (b)(l) and (b)(2) are essentially the
same.6 In each provision the reference to individual consent is in
the context of describing the type of "policy or practice" that
triggers a funding prohi-
6 Subsection (b)(2) provides in relevant part:
"No funds shall be made available under any applicable program
to any educational agency or institution which has a policy or
practice of releasing, or providing access to, any personally
identifiable information in education records other than directory
information ... unless-
"(A) there is written consent from the student's parents
specifying records to be released, the reasons for such release,
and to whom, and with a copy of the records to be released to the
student's parents and the student if desired by the parents." 20 U.
S. C. § 1232g(b)(2)(A).
Respondent invokes this provision to assert the very awkward
"individualized right to withhold consent and prevent the
unauthorized release of personally identifiable information in
education records by an educational institution that has a policy
or practice of releasing, or providing access to, such
information." Brief for Respondent 14. That is a far cry from the
sort of individualized, concrete monetary entitlement found
enforceable in
Maine v.
Thiboutot, 448 U. S. 1 (1980),
Wright, and
Wilder v.
Virginia Hospital Assn.,
496 U. S. 498
(1990). See
supra, at 279-281.
289
bition. For reasons expressed repeatedly in our prior cases,
however, such provisions cannot make out the requisite
congressional intent to confer individual rights enforceable by §
1983.7
Our conclusion that FERPA's nondisclosure provisions fail to
confer enforceable rights is buttressed by the mechanism that
Congress chose to provide for enforcing those provisions. Congress
expressly authorized the Secretary of Education to
"deal with
violations" of the Act, § 1232g(f) (emphasis added), and
required the Secretary to "establish or designate [a] review board"
for investigating and adjudicating such violations, § 1232g(g).
Pursuant to these provisions, the Secretary created the Family
Policy Compliance Office (FPCO) "to act as the Review Board
required under the Act [and] to enforce the Act with respect to all
applicable programs." 34 CFR §§ 99.60(a) and (b) (2001). The FPCO
permits students and parents who suspect a violation of the Act to
file individual written complaints. § 99.63. If a complaint is
timely and contains required information, the FPCO will initiate an
investigation, §§ 99.64(a)-(b), notify the educational institution
of the charge, § 99.65(a), and request a written response, § 99.65.
If a violation is found, the FPCO distributes a notice of factual
findings and a "statement of the specific steps that the agency or
institution must take to comply" with FERPA. §§ 99.66(b) and
(c)(l). These admin-
7 JUSTICE STEVENS would have us look to other provisions in
FERPA that use the term "rights" to define the obligations of
educational institutions that receive federal funds. See
post, at 293-294, 296. He then suggests that any reference
to "rights," even as a shorthand means of describing standards and
procedures imposed on funding recipients, should give rise to a
statute's enforceability under § 1983.
Ibid. This argument
was rejected in
Pennhurst State School and Hospital v.
Halderman, 451
U. S. 1, 18-20 (1981) (no presumption of enforceability merely
because a statute "speaks in terms of 'rights' "), and it is
particularly misplaced here since Congress enacted FERPA years
before
Thiboutot declared that statutes can ever give rise
to rights enforceable by § 1983.
290
istrative procedures squarely distinguish this case from
Wright and
Wilder, where an aggrieved individual
lacked any federal review mechanism, see
supra, at 280-281,
and further counsel against our finding a congressional intent to
create individually enforceable private rights.8
Congress finally provided that "[e]xcept for the conduct of
hearings, none of the functions of the Secretary under this section
shall be carried out in any of the regional offices" of the
Department of Education. 20 U. S. C. § 1232g(g). This centralized
review provision was added just four months after FERPA's enactment
due to "concern that regionalizing the enforcement of [FERPA] may
lead to multiple interpretations of it, and possibly work a
hardship on parents, students, and institutions." 120 Congo Rec.
39863 (1974) (joint statement). Cf.
Wright, 479 U. S., at
426 ("Congress' aim was to provide a
decentralized ...
administrative process" (emphasis added; internal quotation marks
omitted)). It is implausible to presume that the same Congress
nonetheless intended private suits to be brought before thousands
of federal- and state-court judges, which could only result in the
sort of "multiple interpretations" the Act explicitly sought to
avoid.
In sum, if Congress wishes to create new rights enforceable
under § 1983, it must do so in clear and unambiguous terms-no less
and no more than what is required for Congress to create new rights
enforceable under an implied private right of action. FERPA's
nondisclosure provisions contain no rights-creating language, they
have an aggregate, not individual, focus, and they serve primarily
to direct the Secretary of Education's distribution of public funds
to educational institutions. They therefore create no rights
enforceable under § 1983. Accordingly, the judgment of the
8We need not determine whether FERPA's procedures are
"sufficiently comprehensive" to offer an independent basis for
precluding private enforcement,
Middlesex County Sewerage
Authority, 453 U. S., at 20, due to our finding that FERPA
creates no private right to enforce.
291
Supreme Court of Washington is reversed, and the case is
remanded for further proceedings not inconsistent with this
opinion.
It is so ordered.
JUSTICE BREYER, with whom JUSTICE SOUTER joins, concurring in
the judgment.
The ultimate question, in respect to whether private individuals
may bring a lawsuit to enforce a federal statute, through 42 U. S.
C. § 1983 or otherwise, is a question of congressional intent. In
my view, the factors set forth in this Court's § 1983 cases are
helpful indications of that intent. See,
e. g., Blessing v.
Freestone, 520
U. S. 329, 340-341 (1997);
Suter v.
Artist M.,
503 U. S. 347,
357 (1992);
Wilder v.
Virginia Hospital Assn.,
496 U. S. 498,
509-511 (1990);
Wright v.
Roanoke Redevelopment and
Housing Authority, 479 U. S. 418, 423-427 (1987). But the
statute books are too many, the laws too diverse, and their
purposes too complex, for any single legal formula to offer more
than general guidance. I would not, in effect, predetermine an
outcome through the use of a presumption-such as the majority's
presumption that a right is conferred only if set forth
"unambiguously" in the statute's "text and structure." See
ante, at 280, 288.
At the same time, I do not believe that Congress intended
private judicial enforcement of this statute's "school record
privacy" provisions. The Court mentions most of the considerations
I find persuasive: The phrasing of the relevant prohibition
(stating that "[n]o funds shall be made available" to institutions
with a "policy or practice" of permitting the release of "education
records"), see
ante, at 288, n. 6, 288289; the total absence
(in the relevant statutory provision) of any reference to
individual "rights" or the like, see
ante, at 287; the
related provisions that make clear, by creating administrative
enforcement processes, that the Spending Clause was not simply a
device to obtain federal jurisdiction,
292
BREYER, J., concurring in judgment
see
ante, at 289-290; and later statutory insistence upon
centralized federal enforcement at the national, not the regional,
level, see
ante, at 290.
I would add one further reason. Much of the statute's key
language is broad and nonspecific. The statute, for example,
defines its key term, "education records," as (with certain
enumerated exceptions) "those records, files, documents, and other
materials which (i) contain information directly related to a
student; and (ii) are maintained by an educational ...
institution." 20 U. s. C. § 1232g(a)(4)(A). This kind of language
leaves schools uncertain as to just when they can, or cannot,
reveal various kinds of information. It has led, or could lead, to
legal claims that would limit, or forbid, such practices as peer
grading, see
Owasso Independent School Dist. No. 1-011 v.
Falvo, 534 U.
S. 426 (2002), teacher evaluations, see
Moore v.
Hyche, 761 F. Supp. 112 (ND Ala. 1991), school "honor
society" recommendations, see
Price v.
Young, 580 F.
Supp. 1 (ED Ark. 1983), or even roll call responses and "bad
conduct" marks written down in class, see Tr. of Oral Arg. in
Falvo, supra, O. T. 2001, No. 00-1073, pp. 37-38. And it is
open to interpretations that invariably favor confidentiality
almost irrespective of conflicting educational needs or the
importance, or common sense, of limited disclosures in certain
circumstances, say, where individuals are being considered for work
with young children or other positions of trust.
Under these circumstances, Congress may well have wanted to make
the agency remedy that it provided exclusive-both to achieve the
expertise, uniformity, widespread consultation, and resulting
administrative guidance that can accompany agency decisionmaking
and to avoid the comparative risk of inconsistent interpretations
and misincentives that can arise out of an occasional inappropriate
application of the statute in a private action for damages. This
factor, together with the others to which the majority refers,
convinces me that Congress did not intend private judicial
enforcement actions here.
293
JUSTICE STEVENS, with whom JUSTICE GINSBURG joins,
dissenting.
The Court's
ratio decidendi in this case has a "now you
see it, now you don't" character. At times, the Court seems to hold
that the Family Educational Rights and Privacy Act of 1974 (FERPA
or Act), 20 U. S. C. § 1232g, simply does not create any federal
rights, thereby disposing of the case with a negative answer to the
question "whether Congress
intended to create a federal
right," ante, at 283. This interpretation would explain the Court's
studious avoidance of the rights-creating language in the title and
the text of the Act. Alternatively, its opinion may be read as
accepting the proposition that FERPA does indeed create both
parental rights of access to student records and student rights of
privacy in such records, but that those federal rights are of a
lesser value because Congress did not intend them to be enforceable
by their owners. See,
e. g., ante, at 290 (requiring of
respondent "no less and no more" than what is required of
plaintiffs attempting to prove that a statute creates an implied
right of action). I shall first explain why the statute does,
indeed, create federal rights, and then explain why the Court's
novel attempt to craft a new category of second-class statutory
rights is misguided.
I
Title 20 U. S. C. § 1232g, which embodies FERPA in its entirety,
includes 10 subsections, which create rights for both students and
their parents, and describe the procedures for enforcing and
protecting those rights. Subsection (a)(l)(A) accords parents "the
right to inspect and review the education records of their
children." 1 Subsection (a)(l)(D) pro-
1 The following portions of 20 U. S. C. §§ 1232g(a)(1)(A) and
(B) identify the parents' right. After stating that no funds shall
be made available to an institution that has a policy of denying
parents "the right to inspect and review the education records of
their children," subsection (a)(l)(A) clarifies that if an
education record pertains to more than one student, "the parents of
one of such students shall have the right to inspect and
294
vides that a "student or a person applying for admission" may
waive "his right of access" to certain confidential statements. Two
separate provisions protect students' privacy rights: subsection
(a)(2) refers to "the privacy rights of students," and subsection
(c) protects "the rights of privacy of students and their
families." And subsection (d) provides that after a student has
attained the age of 18, "the rights accorded to the parents of the
student" shall thereafter be extended to the student. Given such
explicit rights-creating language, the title of the statute, which
describes "family educational rights," is appropriate: The entire
statutory scheme was designed to protect such rights.
Of course, as we have stated previously, a "blanket approach" to
determining whether a statute creates rights enforceable under 42
U. s. C. § 1983 (1994 ed., Supp. V) is inappropriate.
Blessing v.
Freestone, 520 U. S. 329, 344
(1997). The precise statutory provision at issue in this case is §
1232g(b).2 Although the rights-creating language in this subsection
is not as explicit as it is in other parts of the statute, it is
clear that, in substance, § 1232g(b) formulates an individual
right: in respondent's words, the "right of parents to withhold
consent and prevent the unauthorized release of education record
information by an educational
review only" the parts pertaining to that student. That
subsection then provides that the educational institution "shall
establish appropriate procedures" for the granting of parental
requests for access within 45 days.
Ibid. Subsection
(a)(l)(B) also refers to the parents' "right to inspect and review
the education records" of their children.
2 In relevant part, § 1232g(b)(2) states that "[n]o funds shall
be made available under any applicable program to any educational
agency or institution which has a policy or practice of releasing,
or providing access to, any personally identifiable information in
education records other than directory information ... unless"
either "there is written consent from the student's parents
specifying records to be released, the reasons for such release,
and to whom, and with a copy of the records to be released to the
student's parents and the student if desired by the parents," or a
court order dictating release of information.
295
institution ... that has a policy or practice of releasing such
information." Brief for Respondent 11. This provision plainly meets
the standards we articulated in
Blessing for establishing a
federal right: It is directed to the benefit of individual students
and parents; the provision is binding on States, as it is "couched
in mandatory, rather than precatory, terms"; and the right is far
from" 'vague and amorphous,'" 520 U. S., at 340-341. Indeed, the
right at issue is more specific and clear than rights previously
found enforceable under § 1983 in
Wright v.
Roanoke
Redevelopment and Housing Authority, 479 U. S. 418 (1987), and
Wilder v.
Virginia Hospital Assn., 496 U. S. 498 (1990),
both of which involved plaintiffs' entitlement to "reasonable"
amounts of money.3 As such, the federal right created by § 1232g(b)
is "presumptively enforceable by § 1983,"
ante, at 284.
The Court claims that § 1232g(b), because it references a
"policy or practice," has an aggregate focus and thus cannot
qualify as an individual right. See
ante, at 288 (emphasis
deleted). But § 1232g(b) does not simply ban an institution from
having a policy or practice-which would be a more systemic
requirement. Rather, it permits a policy or practice of releasing
information,
so long as "there is written consent from the
student's parents specifying records to be released, the reasons
for such release, and to whom, and with a copy of the records to be
released to the student's parents and the student if desired by the
parents." 20 U. S. C. § 1232g(b)(2)(A). The provision speaks of the
individual "student," not students generally. In light of FERPA's
stated purpose to "protect such individuals' rights to privacy by
limiting the transferability of their records without their
consent," 120 Congo Rec. 39862 (1974) (statement of Sen.
3 In
Wright, the right claimed was "that a 'reasonable'
amount for utilities be included in rent that a [public housing
authority] was allowed to charge." 479 U. S., at 430. In
Wilder, health care providers asserted the right to
"reasonable and adequate rates" from "States participating in the
Medicaid program." 496 U. S., at 512.
296
Buckley), the individual focus of § 1232g(b) is manifest.
Moreover, simply because a "pattern or practice" is a precondition
to individual relief does not mean that the right asserted is not
an individually enforceable right. Cf.
Monell v.
New York
City Dept. of Social Servs., 436 U. S. 658, 690695
(1978) (authorizing municipal liability under § 1983 when a
municipality's "policy or custom" has caused the violation of an
individual's federal rights).
Although § 1232g(b) alone provides strong evidence that an
individual federal right has been created, this conclusion is
bolstered by viewing the provision in the overall context of FERPA.
Not once in its opinion does the Court acknowledge the substantial
number of references to "rights" in the FERPA provisions
surrounding § 1232g(b), even though our past § 1983 cases have made
clear that a given statutory provision's meaning is to be discerned
"in light of the entire legislative enactment,"
Suter v.
Artist M., 503
U. S. 347, 357 (1992).4 Rather, ignoring these provisions, the
Court asserts that FERPA-not just § 1232g(b)-"entirely lack[s]"
rights-creating language,
ante, at 287. The Court also
claims that "we have never before held ... that spending
legislation drafted in terms resembling those of FERPA can confer
enforceable rights."
Ante, at 279. In making this claim, the
Court contrasts FERPA's "[n]o funds shall be made available"
language with "individually focused termi-
4 The Court correctly states that "rights" language alone does
not necessarily create rights enforceable under § 1983,
ante, at 289, n. 7 (quoting
Pennhurst State School and
Hospital v.
Halderman, 451 U. S. 1 (1981)), but
such language is certainly relevant to whether a statute creates
rights, see
ante, at 287 (describing "'rights-creating'
language" as "critical to showing the requisite congressional
intent to create new rights"). Moreover, in
Pennhurst, the
Court treated the "rights" language as the only arguable evidence
that the statute created rights; here, the "'overall' or 'specific'
purposes of the Act," 451 U. S., at 18, also show an intent to
create individual rights. See
supra, at 295 and this page
(discussing FERPA's "stated purpose").
297
nology" characteristic of federal antidiscrimination statutes,
such as "[n]o person ... shall ... be subjected to discrimination,"
ante, at 287. But the sort of rights-creating language
idealized by the Court has
never been present in our § 1983
cases; rather, such language ordinarily gives rise to an implied
cause of action. See
Cannon v.
University of Chicago,
441 U. S. 677,
690, n. 13 (1979). None of our four most recent cases involving
whether a Spending Clause statute created rights enforceable under
§ 1983-
Wright, Wilder, Suter, and
Blessing-involved
the sort of "no person shall" rightscreating language envisioned by
the Court. And in two of those cases-Wright and
Wilder-we
concluded that individual rights enforceable under § 1983 existed.
See n. 3,
supra.
Although a "presumptively enforceable" right,
ante, at
284, has been created by § 1232g(b), one final question remains. As
our cases recognize, Congress can rebut the presumption of
enforcement under § 1983 either "expressly, by forbidding recourse
to § 1983 in the statute itself, or impliedly, by creating a
comprehensive enforcement scheme that is incompatible with
individual enforcement [actions]."
Blessing, 520 U. S., at
341. FERPA has not explicitly foreclosed enforcement under § 1983.
The only question, then, is whether the administrative enforcement
mechanisms provided by the statute are "comprehensive" and
"incompatible" with § 1983 actions. As the Court explains,
ante, at 289, FERPA authorizes the establishment of an
administrative enforcement framework, and the Secretary of
Education has created the Family Policy Compliance Office (FPCO) to
"deal with violations" of the Act, 20 U. S. C. § 1232g(f). FPCO
accepts complaints from the public concerning alleged FERPA
violations and, if it so chooses, may follow up on such a complaint
by informing institutions of the steps they must take to comply
with FERPA, see 34 CFR §§ 99.63-99.67 (2001), and, in exceptional
cases, by administrative adjudication against noncomplying
institutions, see 20 U. S. C. § 1234. These ad-
298
ministrative avenues fall far short of what is necessary to
overcome the presumption of enforceability. We have only found a
comprehensive administrative scheme precluding enforceability under
§ 1983 in two of our past
cases-Middlesex County Sewerage
Authority v.
National Sea Clammers Assn., 453 U. S. 1 (1981), and
Smith v.
Robinson, 468 U. S. 992 (1984). In
Sea Clammers, the relevant statute not only had "unusually
elaborate enforcement provisions," but it also permitted private
citizens to bring enforcement actions in court. 453 U. S., at
13-14. In
Smith, the statute at issue provided for
"carefully tailored" administrative proceedings followed by federal
judicial review. 468 U. S., at 1009. In contrast, FERPA provides no
guaranteed access to a formal administrative proceeding or to
federal judicial review; rather, it leaves to administrative
discretion the decision whether to follow up on individual
complaints. As we said in
Blessing, 520 U. S., at 348, the
enforcement scheme here is "far more limited than those in
Sea
Clammers and
Smith," and thus does not preclude
enforcement under § 1983.5
5The Court does not test FERPA's administrative scheme against
the "comprehensive enforcement scheme,"
Blessing, 520 U. S.,
at 341, standard for rebutting the presumptive enforceability of a
federal right,
ante, at 290, n. 8, because it concludes that
there is no federal right to trigger this additional analysis. Yet,
at the same time, the Court imports "enforcement scheme"
considerations into the initial question whether the statute
creates a presumptively enforceable right. See
ante, at 289
("Our conclusion that FERPA's nondisclosure provisions fail to
confer enforceable rights is buttressed by the mechanism that
Congress chose to provide for enforcing [FERPA violations]").
Folding such considerations into the rights question renders the
rebuttal inquiry superfluous. Moreover, the Court's approach is
inconsistent with our past cases, which have kept separate the
inquiries whether there is a right and whether an enforcement
scheme rebuts presumptive enforceability. Thus, the Court's
discussion of the schemes in
Wright v.
Roanoke
Redevelopment and Housing Authority, 479 U. S. 418 (1987), and
Wilder v.
Virginia Hospital Assn., 496 U. S. 498
(1990), is inapposite, see
ante, at 289-290, because neither
of those cases considered the existence of an enforcement scheme
relevant to whether a federal right had been created in the first
instance.
299
II
Since FERPA was enacted in 1974, all of the Federal Courts of
Appeals expressly deciding the question have concluded that FERPA
creates federal rights enforceable under § 1983.6 Nearly all other
federal and state courts reaching the issue agree with these
Circuits.7 Congress has not overruled these decisions by amending
FERPA to expressly preclude recourse to § 1983. And yet, the Court
departs from over a quarter century of settled law in concluding
that FERPA creates no enforceable rights. Perhaps more pernicious
than its disturbing of the settled status of FERPA rights, though,
is the Court's novel use of our implied right of action cases in
determining whether a federal right exists for § 1983 purposes.
In my analysis of whether § 1232g(b) creates a right for § 1983
purposes, I have assumed the Court's forthrightness in stating that
the question presented is "whether Congress
intended to create a
federal right," ante, at 283, and that "[p]laintiffs suing
under § 1983 do not have the burden of showing an intent to create
a private remedy,"
ante, at 284. Rather than proceeding with
a straightforward analysis
6 See
Falvo v.
Owasso Independent School Dist. No.
1-011,
233 F.3d
1203, 1210 (CAW 2000), rev'd on other grounds,
534 U. S. 426 (2002);
Tarka v.
Cunningham, 917 F.2d
890, 891
(CA5 1990);
Brown v.
Oneonta, 106
F. 3d 1125, 1131
(CA2 1997) (citing
Fay v.
South
Colonie Central School Dist., 802 F.2d
21, 33
(CA2 1986)). The Court does not cite-nor can ita
circuit or state high court opinion to the contrary. See
ante, at 278, n. 2.
7 To justify its statement that courts are "divided,"
ante, at 278, concerning FERPA's enforceability under §
1983, the Court cites only
two cases disagreeing with the
overwhelming majority position of courts reaching the issue. See
ante, at 278, n. 2 (citing
Gundlach v.
Reinstein,
924 F. Supp. 684 (ED Pa. 1996), aff'd,
114
F.3d 1172 (CA3 1997), and
Meury v.
Eagle-Union
Community School Corp., 714 N. E. 2d 233, 239 (Ind. Ct. App.
1999)). And
Gundlach did not even squarely hold that FERPA
rights are unenforceable; rather, the court merely rejected a claim
under § 1232 in which the plaintiff "failed to allege that
Defendants released the alleged educational records pursuant to
university policy," 924 F. Supp., at 692.
300
under these principles, however, the Court has undermined both
of these assertions by needlessly borrowing from cases involving
implied rights of action-cases which place a more exacting standard
on plaintiffs. See
ante, at 283-286. By using these cases,
the Court now appears to require a heightened showing from § 1983
plaintiffs: "[I]f Congress wishes to create new rights enforceable
under § 1983, it must do so in clear and unambiguous terms-no less
and no more than what is required for Congress to create new rights
enforceable under an implied private right of action."
Ante,
at 290.
A requirement that Congress intend a "right to support a cause
of action,"
ante, at 283, as opposed to simply the creation
of an individual federal right, makes sense in the implied right of
action context. As we have explained, our implied right of action
cases "reflec[t] a concern, grounded in separation of powers, that
Congress rather than the courts controls the availability of
remedies for violations of statutes."
Wilder, 496 U. S., at
509, n. 9. However, imposing the implied right of action framework
upon the § 1983 inquiry, see
ante, at 283-286, is not
necessary: The separationof-powers concerns present in the implied
right of action context "are not present in a § 1983 case," because
Congress expressly authorized private suits in § 1983 itself.
Wilder, 496 U. S., at 509, n. 9. Nor is it consistent with
our precedent, which has always treated the implied right of action
and § 1983 inquiries as separate. See,
e. g.,
ibid.s
It has been long recognized that the pertinent question in
determining whether a statute provides a basis for a § 1983 suit is
whether Congress intended to create individual rights binding on
States-as opposed to mere "precatory terms" that do not
"unambiguously" create state obligations,
Penn-
8 Indeed, endorsing such a framework
sub silentio
overrules cases such as
Wright and
Wilder. In those
cases we concluded that the statutes at issue created rights
enforceable under § 1983, but the statutes did not "clear[ly] and
unambiguous[ly],"
ante, at 290, intend
enforceability
under § 1983.
301
hurst State School and Hospital v.
Halderman,
451 U. S. 1, 17, 18
(1981), or "generalized,"
"systemwide" duties on States,
Blessing, 520 U. S., at 343;
Suter, 503 U. S., at
363. What has never before been required is congressional intent
specifically to make the right
enforceable under § 1983. Yet
that is exactly what the Court, at points, appears to require by
relying on implied right of action cases: the Court now asks
whether "Congress nonetheless intended private suits to be brought
before thousands of federal- and state-court judges,"
ante,
at 290.
If it were true, as the Court claims, that the implied right of
action and § 1983 inquiries neatly "overlap in one meaningful
respect-in either case we must first determine whether Congress
intended to create a federal right," ante, at 283, then I
would have less trouble referencing implied right of action
precedent to determine whether a federal right exists. Contrary to
the Court's suggestion, however, our implied right of action cases
do not necessarily cleanly separate out the "right" question from
the "cause of action" question. For example, in the discussion of
rights-creating language in
Cannon v.
University of
Chicago, 441 U.
S. 677 (1979), which the Court characterizes as pertaining only
to whether there is a right,
ante, at 287,
Cannon's
reasoning is explicitly based on whether there is "reason to infer
a private remedy," 441 U. S., at 691, and the "propriety of
implication of a cause of action,"
id., at 690, n. 13.
Because
Cannon and other implied right of action cases do
not clearly distinguish the questions of "right" and "cause of
action," it is inappropriate to use these cases to determine
whether a statute creates rights enforceable under § 1983.
The Court, however, asserts that it has not imported the entire
implied right of action inquiry into the § 1983 context, explaining
that while § 1983 plaintiffs share with implied right of action
plaintiffs the burden of establishing a federal right, § 1983
plaintiffs "do not have the burden of showing an intent to create a
private remedy because § 1983 generally
302
supplies a remedy for the vindication of rights secured by
federal statutes."
Ante, at 284. If the Court has not
adopted such a requirement in the § 1983 context-which it purports
not to have done-then there should be no difference between the
Court's "new" approach to discerning a federal right in the § 1983
context and the test we have "traditionally" used, as articulated
in
Blessing: whether Congress intended to benefit individual
plaintiffs, whether the right asserted is not" 'vague and
amorphous,'" and whether Congress has placed a binding obligation
on the State with respect to the right asserted. 520 U. S., at
340-341. Indeed, the Court's analysis, in part, closely tracks
Blessing's factors, as it examines the statute's language,
and the asserted right's individual versus systematic thrust. See
ante, at 287-289.
The Court's opinion in other places, however, appears to require
more of plaintiffs. By defining the § 1983 plaintiff's burden
concerning "whether a statute confers any right at all,"
ante, at 285, as whether "Congress nonetheless intended
private suits to be brought before thousands of federal- and
state-court judges,"
ante, at 290, the Court has collapsed
the ostensible two parts of the implied right of action test ("is
there a right" and "is it enforceable") into one. As a result, and
despite its statement to the contrary,
ante, at 284, the
Court seems to place the unwarranted "burden of showing an intent
to create a private remedy,"
ibid., on § 1983 plaintiffs.
Moreover, by circularly defining a right actionable under § 1983
as, in essence, "a right which Congress intended to make
enforceable," the Court has eroded-if not eviscerated-the
long-established principle of presumptive enforceability of rights
under § 1983. Under this reading of the Court's opinion, a right
under
Blessing is second class compared to a right whose
enforcement Congress has clearly intended. Creating such a
hierarchy of rights is not only
303
novel, but it blurs the long-recognized distinction between
rights and remedies. And it does nothing to clarify our § 1983
jurisprudence.
Accordingly, I respectfully dissent.
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