john g roberts jr and gonzaga university and ferpa and private federal right and section 1983

One might think, from looking at another recent case in which Roberts was the Counsel of Record, Gonzaga University v. Doe (2002), that he specialized in John Doe cases. Not the case, though. What I would like to illustrate about Judge Roberts through the brief he filed here is the thorough and insightful way he put together a brief, a brief which appeared to turn the tide so that the Supreme Court, by a 7-2 margin, reversed the decision of the WA Supreme Court.

The Issue in the Case

The only thing for which Gonzaga University, a Jesuit institution in Spokane, is nationally known is its men's basketball program. Things hit the fan in Spokane, however, in 1993 when an administrator in the teacher education program overheard a student tell another that "Jane Doe" had been sexually assaulted by "John Doe." The issue might have remained at that level of conversation if the education department wasn't required to sign off on the moral fitness of its students to teach and if John Doe wasn't a student teacher. As it was, several Gonzaga administrators caucaused and then consulted with a representative of the State Department of Higher Education about what should be done. When "John Doe" was confronted in mid-1994, for the first time, with a letter which said the school wasn't going to recommend him for a teaching credential, he understandably went ballistic.

Not knowing who his accusers were, he filed suit in WA state court primarily against the university and its officers, with both state and federal claims, alleging defamation, breach of privacy, negligence and a technical federal claim--a Sec. 1983 action alleging violation of the disclosure provisions of the Family Educational Rights and Privacy Act ("FERPA"). The crucial provision of FERPA conditioned university/school recept of federal funds on the recipient institution not having certain policies or practices regarding access to and disclosure of students' education records. At trial, "John Doe" came up big: winning a jury verdict of more than $1,000,000, with a few hundred thousand from the FERPA claim. The state Ct of Appeals reversed, holding that an individual had no federal right to bring a private claim under FERPA, but the state Sup Ct reversed again, holding that under the US Sup Ct's jurisprudence individuals had a federal right to bring a Sec. 1983 action for a FERPA violation. As mentioned above, the US Sup Ct would reverse this holding, and itself held that there was no right for an individual to bring a Sec. 1983 claim under FERPA.

What's At Stake

The issue is far too complex to get into in a brief essay but, in brief, it implicates a very important issue in civil rights law today--to what extent private individuals who feel that a federal statute has been violated (such as the Endangered Species Act) have a right to sue on behalf of themselves or a group of people for the violation. More liberal Sup Cts of the 1970s and early 1980s were interested in expanding individual rights to sue; ever since the "Rehnquist Revolution" took hold, however, rights under Sec. 1983 have been considerably curtailed. Roberts argued, on behalf of Gonzaga, that "John Doe" really couldn't bring the federal claim because the statute didn't "unambiguously" provide for it (a test developed by the S Ct). And, it isn't too much to suggest that when Chief Justice Rehnquist, who wrote the majority opinion, read Roberts' brief, it was just like old times, for Roberts had clerked for Rehnquist in 1980-81.

The Key to Roberts' Brief

If anyone wants a lesson in thorough and precise brief-writing, take up the Petitioner's Brief in this case. In four places, the Introduction, Statement of the Case, Summary of Argument and Argument, Roberts lays out the same story: (1) there is no indication in FERPA that a private federal right is being conferred on individuals and (2) the statutory scheme actually contemplates another form of action--where the federal Department of Education would consult with the school about unauthorized disclosures, and individuals dissatisfied with the way they were treated could file a complaint with the DOE for a hearing on their problems. In other words, Roberts skillfully and patiently argued, from the structure of the statute and the lengthy and detailed administrative regulations in the CFR's implementing FERPA, that Congress had enacted a complete statutory scheme that envisioned administrative handling of all issues related to violations of FERPA.

While nothing of what I have just written might sound especially brilliant, Mr. Roberts' brief really was quite extraordinary. None of the courts below looked at the total statutory scheme in trying to ask the question of whether the statute contemplated another remedy other than in the federal courts for disgruntled individuals. Roberts did that. And, when he did that, by combing the entire statute as well as the regulations to implement it, he showed, convincingly in my mind, that Congress had made provisions for citizen complaints to be handled through the federal DOE.

Conclusion: No Remedy?

By taking away "John Doe's" federal remedy, did Roberts think that he was bereft of a cause of action for an apparently egregious violation of his privacy? Not at all. Roberts doesn't hesitate to point out that several state causes of action, which Doe had already pursued, were open to him. Roberts simply wanted to slam the federal door.

Some have argued that you really can't tell a person's judicial philosophy from the briefs s/he writes because, after all, s/he is just working "for a client" and since the attorney's job is zealously to represent the client, s/he has to present those interests clearly. But I think it is true that lawyers also tend to agree with, if not fall in love with, the research they do. Judge John Roberts, then, is not one who would support expansion of federal rights to sue unless they are unambiguously expressed in the statute under consideration.

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