Courting Disaster: Update 2001-2002

Privacy Rights and Reproductive Freedom

Although the Court decided no cases concerning reproductive freedom this Term, the Court did rule in several important cases that addressed the growing concerns over the privacy rights of students in schools, and in each case ruled against the claims brought by students.

In a 5-4 ruling in Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 2002 WL 1378649, the Court upheld a public school district policy requiring all middle and high school students to consent to drug testing in order to participate in any extracurricular activity, including “Future Farmers of America, Future Homemakers of America, [and] band . . . .” In an opinion written by Justice Thomas and joined by Rehnquist, Scalia, Kennedy, and Breyer, the Court rejected claims that the policy was a significant invasion of students’ privacy that violated the Fourth Amendment’s prohibition against unreasonable searches and seizures, holding that the policy “reasonably serves the School District’s important interest in detecting and preventing drug use among its students . . .” In the opinion of the dissenting Justices, Ginsburg, Stevens, O’Connor, and Souter, the drug testing program “is not reasonable, it is capricious, even perverse: [the] policy targets for testing a student population least likely to be at risk from illicit drugs and their damaging effects.” The potential implications of the Court’s decision on students’ privacy rights are vast, since schools presumably have an interest “in detecting and preventing drug use” among all students, not merely those participating in extracurricular activities. The ruling may also have implications beyond the school setting, given the majority’s embrace of suspicionless drug testing and its reference to “the nationwide epidemic of drug use.”

In Gonzaga University v. Doe, 122 S.Ct. 2268 (2002), the Court ruled, 7-2, with Justices Scalia and Thomas in the majority, that a student has no right to bring a lawsuit for damages against a private university that disclosed personal information about him without his consent. The student based his lawsuit on the Family Educational Rights and Privacy Act of 1974 (FERPA), which provides that federal funds shall not be made available to any educational institution that “has a
9policy or practice of permitting the release of [a student’s] education records (or personally identifiable information contained therein)” without consent. In a ruling that could have implications for other spending legislation, the Court held that FERPA’s nondisclosure provisions do not give private parties enforceable rights.

In Owasso Independent School District v. Falvo, 122 S.Ct. 934 (2002), the Court held that the practice of having students grade each other’s work does not violate the Family Educational Rights and Privacy Act. The Court stopped short of deciding “the broader question whether grades on individual student assignments, once they are turned in to teachers, are protected by the Act.” Justice Scalia wrote an opinion concurring only in the judgment of the Court and stating his disagreement with what he described as the Court’s suggestion that education records protected by FERPA include “only those documents kept in some central repository at the school.”

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