drafted with an unmistakable focus on the benefited class and therefore a private remedy could be properly implied. Id. at 693-94.
By contrast, the dispositive language in FERPA disfavors the implication of a private remedy. Unlike the rigidly prohibitive language of Title IX, FERPA is simply a directive to the Secretary of Education, which prohibits the distribution of public funds as a sanction against schools which deny students the right to inspect and review their educational records. In this regard, FERPA's language is similar to that rejected by Congress for Title IX -- language which does not expressly identify the benefited class and the type of language which the Supreme Court opined was not specific enough to warrant an implied private remedy. Cannon, 441 U.S. at 694-95.
The second question under Cort is whether the statute's legislative history indicates a congressional intent to create or deny a private cause of action. Cort, 422 U.S. at 78. Not surprisingly, the legislative history of FERPA is silent on this point. Under Cort's third prong, a private remedy will not be implied if it is inconsistent with the underlying legislative scheme of FERPA. If however, a private remedy furthers the statutory purpose, courts are decidedly more responsive to its implication. See Cannon, 441 U.S. at 703. In this instance, a private remedy would not materially aid FERPA's primary congressional goal.
FERPA's legislative history indicates that it is principally a right to privacy of educational records act. See 120 Cong. Rec. S39858 (daily ed. Dec. 13. 1974) (joint remarks of Sen. Buckley and Sen. Pell). See also Education Amendments of 1974, S. Rep. No. 93-1026, 93d Cong. 2d. Sess. 186, reprinted in 1974 U.S. Code Cong. & Admin. News 4250. FERPA was adopted as a response to a growing nationwide concern that no provisions existed to protect school records from unauthorized use. With the threat of financial sanctions, FERPA seeks to deter schools from indiscriminately releasing student records and places a heavy burden on a party seeking access to student records to demonstrate a genuine need which outweighs the student's privacy interest. Id.
In addition, enforcement of FERPA is lodged with the Secretary of Education. See 20 U.S.C. § 1232g(f). Pursuant to its congressional mandate, the Department of Education has adopted an elaborate enforcement mechanism which includes an adjudication procedure and a review board to resolve complaints regarding FERPA violations. See Privacy Right of Parents and Students, 34 C.F.R. § 99.60-61 (1984).
Against this background, it is clear that FERPA was adopted to address systematic, not individual, violations of students' privacy and confidentiality rights through unauthorized releases of sensitive educational records. The underlying purpose of FERPA was not to grant individual students a right to privacy or access to educational records, but to stem the growing policy of many institutions to carelessly release student records.
The final prong of the Cort test, whether the subject matter is traditionally relegated to the state, Cort, 422 U.S. at 78, does not aid the Court in its analysis of this case. In sum, it is enough to say that prosecution of isolated FERPA violations in federal courts does little to abate the overriding congressional concerns embodied in the act. For this reason, this Court holds that the relevant considerations adopted in the Cort decision -- to determine whether a federal statute can be privately enforced -- preponderates heavily against the implication of a private federal remedy for FERPA violations. Absent an express congressional directive, this Court declines to hold that a private litigant may enforce the mandates of FERPA in federal courts.
Both the plaintiff's section 1983 state action claim and the FERPA private remedy claim fall as a matter of law, therefore the defendant is entitled to summary judgment. An appropriate order follows.
AND NOW, to wit, this 28th day of May, 1985, after consideration of Duquesne University's Motion for Summary Judgment, arguments and briefs in support thereof and opposition thereto, and in accordance with the accompanying Opinion in the above-captioned case, it is hereby ORDERED, ADJUDGED and DECREED that Duquesne University's Motion for Summary Judgment be and the same is hereby GRANTED.
The clerk is directed to forthwith mark the above-captioned case closed.