Supreme Court Tightens Scope of Rights Enforceable Under 1983
by Herb Semmel, National Senior Citizens Law Center
In a decision that will surely result in a variety of arguments against enforcement of federal laws under 42 U.S.C. § 1983, the US Supreme Court held that one provision of the Federal Educational Rights and Privacy Act (FERPA) does not create a right enforceable under Section 1983. Gonzaga University v. Doe, 2002 WL 1338070 (June 20, 2002). One of the many disturbing portions of the opinion of Chief Justice Rehnquist (for the five conservative Justices) is his equation of the criteria for implying a cause of action directly from a statute with the criteria for determining whether Congress created a right enforceable under 1983.
The provision of FERPA in question, 20 U.S.C. § 1232g prohibits federal funding to schools that have "a policy or practice" of releasing student records without the consent of the student or parent. Because the prohibition is against a disclosure under general policy rather than simply applying to any unauthorized disclosure, the result could have been reached by applying the three part test for enforceable rights under 1983, namely that Congress intended to benefit the plaintiff, the statute is not vague and amorphous and the provision is couched in mandatory rather than precatory terms. Blessing v. Freestone, 520 U.S. 329, 340-341 (l997).
However, the decision is replete with broader statements.
The opinion says the "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." If the reference was solely to the "policy or practice" provision, the case would be unexceptional.
But the court goes on to say the following:
"Some language in our opinions might be read to suggest that something less than an unambiguously conferred right is enforceable by §1983, offering the Blessing three part test as an example. The opinion then says "[w]e now reject the notion that our cases permit anything short of an unambiguously conferred right to support a cause of action brought under § 1983".
"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. The significance of this statement is emphasized as the opinion then cites Sandoval for the proposition that "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'(emphasis in original). . . . Accordingly, where the text and structure of a statute provide no indication that Congress intends to create new individual rights, there is no basis fora private suit, whether under § 1983 or under an implied right of action.
It is difficult to decide exactly what to make of all this, but clearly the majority are tightening the reins, if they are not yet ready to come to a complete stop in enforcement of federal rights. Only a week ago, in the Verizon case, the Court reaffirmed Ex parte Young as a method of enforcing federal rights against states. It is not entirely clear from the two cases whether the absence of a private right of action, implied or under 1983, will leave anything to enforce, with the possible exception of preemption claims.
Further, the Court does not overrule cases going back to Maine v. Thiboutot which allowed 1983 actions to enforce the AFDC. Medicaid and federal housing laws, but distinguishes them from the FERPA claim. But the Court does emphasize the difference between statutes such as Titles VI and IX which use "rights creating" language such as "no persons shall be subject to discrimination" with statutes which speak only in terms of institutions, such as FERPA which is addressed to federal agencies providing grants. The Court does not directly address the intermediate case where the statute addresses the recipient of federal funds, rather than the granting agency, in a manner intended to protect individuals. For example, "no recipient of federal funds shall discriminate. . . "
In addition, the Court almost combines the issue of Congressional intent as to private enforcement with the alternate remedies analysis, finding that the conclusion that FERPA is not enforceable is "buttressed by the mechanism that Congress chose to provide for enforcing those provisions," referring to an unusual mechanism for enforcement of FERPA by a federal agency. How this will affect cases like Wilder, which held the administrative remedy of cut off of federal Medicaid funds did not preclude a 1983suit to enforce a provision of the Medicaid statute.
Justices Breyer and Souter concur in the result but reject the test of an unambiguous intent used by the majority. The concurrence does emphasize the unusual administrative remedy as a reason for concluding that Congress did not intend private enforcement.
Justice Stevens (with Justice Ginsburg) dissents. They emphasize the issue of separation of powers, which the majority ignore. To imply a private right of action, the Court must act where Congress has not done so. But the reverse applies to 1983, an express grant of authority by Congress for private suits, which the Court is negating.
Read it and weep, or, as Wobbly Joe Hill said as he faced the firing squad "Don't mourn, organize' ( or at least that is the way the song tells it).
