FERPA is spending clause legislation. The primary enforcement mechanism is the withholding of funds from the violating institution or education program.[i] FERPA provides that the Secretary of Education “shall take appropriate actions to enforce [the law]…except that action to terminate assistance may be taken only if the Secretary finds there has been a failure to comply with [the law], and he has determined that compliance cannot be secured by voluntary means.”[ii] Furthermore, FERPA provides that the Secretary may “(1)withhold further payments under [a violating] program…(2) issue a complaint to compel through a cease and desist order of the Office…(3) enter into a compliance agreement with recipient to bring it into compliance; or (4) take any other action authorized by law with respect to recipient.”[iii] Some courts have recognized the right of the United States Department of Education to bring suits in equity to protect FERPA rights.[iv] In U.S. v. Miami University, the sixth circuit held that the fourth option above “expressly permits the Secretary to bring suit to enforce the FERPA conditions in lieu of its administrative remedies.”[v] Furthermore, the court in U.S. v. Miami held that “[e]ven in the absence of statutory authority, the United States has the inherent power to sue to enforce conditions imposed on the recipients of federal grants.”[vi]
The U.S. Department of Educations Family Policy Compliance Office (FPCO) is the administrative unit charged with enforcement of FERPA. FPCO is charged with the responsibility of administering FERPA, receiving and investigating complaints of FERPA violations, and determining penalties for violation.[vii] While the main stick of FERPA is the withholding of Federal funds, since FERPA was enacted, there have been no occasions of funds withheld from any institution or education program as a result of FERPA violations.[viii] Instead, FPCO’s usual business is to provide technical assistance to States and education programs about how to comply with FERPA. Where violations are alleged, FPCO usually works with educational programs to achieve voluntary compliance.[ix]
Prior to 2002, many parents and students brought suit under § 1983 against institutions or education programs claiming a violation of their FERPA rights.[x] “[S]ection 1983 offers citizens a remedy for state or federal violation of constitutional or federal statutory rights….While it does not create any rights of its own, section 1983 offers the pathway to achieve relief from violations created elsewhere in federal statutes.”[xi] However, the U.S. Supreme Court ruled in 2002 in Gonzaga University v. Doe that FERPA creates no right to personal enforcement.[xii]
Text adapted from Vavricka, J. “Making FERPA Work for our Nation’s Children,” Second Year Seminar Paper, University of Hawai’i, William S. Richardson School of Law, July 10, 2012.
[i] See 20 U.S.C.A. 1232(g) (West 2012).
[ii] 20 U.S.C.A. §1232g(f) (West 2012).
[iii] 20 U.S.C.A. 1234(c)(a) (West 2012).
[iv] U.S. v. Miami, 294 F.3d 797, 808 (6th Cir. 2002).
[vii] “About the Family Compliance Office,” available at http://www2.ed.gov/policy/gen/guid/fpco/index.html (Date accessed: August 20, 2012).
[viii] See Lynn M. Daggett, FERPA in the Twenty-First Century: Failure to Effectively Regulate Privacy for All Students, 58 Cath. U. L. Rev. 59, 67 (2008)
[ix] See “FERPA online library of technical assistance letters from FPCO,” available at http://www2.ed.gov/policy/gen/guid/fpco/ferpa/library/index.html, (Date accessed: July 10, 2012).
[xi] Lynn M. Daggett, supra note 87 at 64.
[xi] D. Martin Warf, Loose Lips Won’t sink ships: Federal Education Rights to [sic] Privacy Act After Gonzaga v. Doe, 25 Campbell L. Rev. 201, 206 (2003).
[xii] See Gonzaga University v. Doe, 536 U.S 273, 276 (2002).