Falvo v. Owasso Ind School District #I-011

• Decision Date: 04 October 2000
• Docket Number: I-011,PLAINTIFF-APPELLANT,No. 99-5130,DEFENDANTS-APPELLEES,A,99-5130
• Citation: 233 F.3d 1203
• Parties: Page 1203 233 F.3d 1203 (10th Cir. 2000) KRISTJA J. FALVO, AS PARENT AND NEXT FRIEND OF HER MINOR CHILDREN, ELIZABETH PLETAN, PHILIP PLETAN AND ERICA PLETAN; AND ON BEHALF OF OTHERS SIMILARLY SITUATED,, v. OWASSO INDEPENDENT SCHOOL DISTRICT NO., A/K/A, OWASSO PUBLIC SCHOOLS; DALE JOHNSON, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT; LYNN JOHNSON, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS ASSISTANT SUPERINTENDENT; RICK Page 1204 THOMAS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS PRINCIPAL; JOHN DOE, SUED AS: DOES 1 THROUGH 50, U.S. Court of Appeals, Tenth Circuit
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1203

233 F.3d 1203 (10th Cir. 2000)

KRISTJA J. FALVO, AS PARENT AND NEXT FRIEND OF HER MINOR CHILDREN, ELIZABETH PLETAN, PHILIP PLETAN AND ERICA PLETAN; AND ON BEHALF OF OTHERS SIMILARLY SITUATED, PLAINTIFF-APPELLANT v OWASSO INDEPENDENT SCHOOL DISTRICT NO. I-011, A/K/A, OWASSO PUBLIC SCHOOLS; DALE JOHNSON, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT; LYNN JOHNSON, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS ASSISTANT SUPERINTENDENT; RICK

THOMAS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS PRINCIPAL; JOHN DOE, SUED AS: DOES 1 THROUGH 50, DEFENDANTS-APPELLEES.

No. 99-5130

U.S. Court of Appeals, Tenth Circuit

October 4, 2000

Appeal from the United States District Court for the N. District of Oklahoma (D.C. No. 98-CV-765-K) [Copyrighted Material Omitted] Wilfred K. Wright, Jr., of Tulsa, Oklahoma, for Appellant.

Karen L. Long, of Rosenstein, Fist & Ringold, Tulsa, Oklahoma, (Jerry A. Richardson with her on the brief), for Appellees.

Before LUCERO, McKAY and MURPHY, Circuit Judges.

OPINION

Murphy, Circuit Judge.

I. INTRODUCTION

In the instant case, this court must decide whether a practice employed by pre-secondary school ¹ teachers in the Owasso Independent School District (the "School District") of allowing their students both to grade one another's tests and other work and to call out their own grades in class (the "grading practice") violates either the Fourteenth Amendment to the United States Constitution or the Family Education Rights and Privacy Act ("FERPA"). Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we conclude that although the Fourteenth Amendment does not preclude the grading practice, FERPA does. The individual defendants, however, are entitled to qualified immunity because it was not clearly established law that the grading practice violated FERPA. This court therefore affirms the district court's grant of summary judgment in favor of all defendants on the constitutional claim and reverses the grant of summary judgment in favor of the School District on the FERPA claim. Also as to the FERPA claim, we affirm the grant of summary judgment in favor of the individual defendants on the plaintiff's claim for monetary relief, but reverse the judgment on the plaintiff's claim for injunctive relief.

II. BACKGROUND

Kristja J. Falvo is the mother of Elizabeth, Philip, and Erica Pletan, who all attended school in the School District. Falvo learned that a number of her children's teachers would sometimes have their students grade one another's work assignments and tests and then would have the students call out their own grades to the teacher. During the 1997-98 and 1998-99 school years, Falvo complained about this grading practice to school counselors and to the School District superintendent, claiming it severely embarrassed her children by allowing other students to learn their grades. Although Falvo was told that her children always had the option of confidentially reporting their grades to the teacher, ² the School District refused to disallow the grading practice.

In October 1998, when Falvo's children were in the sixth, seventh, and eighth grades, she brought a class action lawsuit pursuant to 42 U.S.C. § 1983 against the School District, Superintendent Dale Johnson, Assistant Superintendent Lynn Johnson, and Principal Rick Thomas (the "individual defendants"), alleging the grading practice violated Fourteenth Amendment privacy rights and FERPA. Before the district court resolved whether to certify the class, Falvo moved for declaratory and summary judgment on her two claims. The School District filed a cross-motion for summary judgment on both claims. The district court applied the test articulated in Flanagan v. Munger, 890 F.2d 1557, 1570 (10th Cir. 1989) and concluded the grading practice did not implicate a constitutionally-protected privacy interest. Additionally, the district court ruled that the grades subject to the grading practice do not constitute "education records" under FERPA. Thus, the district court granted summary judgment in favor of all defendants on both claims.

Falvo then moved for reconsideration and clarification of the district court's judgment, arguing the court should have granted relief in favor of Philip Pletan on the Fourteenth Amendment claim because, as a special education student, he had a legitimate expectation of privacy in his grades under the Individuals with Disabilities Education Act ("IDEA"). The district court denied that motion, concluding that because Falvo did not make a distinct claim under IDEA, she could not premise a Fourteenth Amendment claim on that statute.

On appeal, Falvo asserts the district court erroneously granted summary judgment in favor of the defendants, because the grading practice violates both the Fourteenth Amendment and FERPA.

III. DISCUSSION

A. Standard of Review

This court conducts a de novo review of a district court's summary judgment decision. See Bancoklahoma Mortgage Corp. v. Capital Title Co., 194 F.3d 1089, 1097 (10th Cir. 1999). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In applying this standard, this court views the evidence and draws reasonable inferences therefrom in a light most favorable to the party opposing summary judgment. See Committee to Save the Rio Hondo v. Lucero, 102 F.3d 445, 450 (10th Cir. 1996). Although the instant case involves cross-motions for summary judgment, this court nonetheless views the evidence in a manner most favorable to Falvo, because she is the party challenging the district court's grant of summary judgment.

B. The Fourteenth Amendment Claim

Falvo contends the right to privacy under the Fourteenth Amendment prohibits public disclosure of students' grades. She thus argues the district court erred in dismissing her Fourteenth Amendment claim because the grading practice employed by her children's teachers impermissibly infringes upon that constitutional privacy right. Although this court acknowledges the existence of a Fourteenth Amendment right to prevent disclosure of certain types of personal information, the school work and test grades of pre-secondary school students do not rise to the level of this constitutionally-protected category of information.

In relevant part, the Fourteenth Amendment states, "nor shall any State deprive any person of . . . liberty . . . without due process of law." U.S. Const. Amend. XIV, § 1. In Roe v. Wade, the Supreme Court announced that a constitutional "right of privacy . . . [is] founded in the Fourteenth Amendment's concept of personal liberty." 410 U.S. 113, 153 (1973). Subsequently, the Court noted that one type of constitutionally-protected privacy right "is the individual interest in avoiding disclosure of personal matters." Whalen v. Roe, 429 U.S. 589, 599 (1977); see also Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 457 (1977).

In assessing whether a specific category of information is constitutionally protected, this court "must consider, (1) if the party asserting the right has a legitimate expectation of privacy [in that information], (2) if disclosure serves a compelling state interest, and (3) if disclosure can be made in the least intrusive manner." ³ Denver Policemen's Protective Ass'n v. Lichtenstein, 660 F.2d 432, 435 (10th Cir. 1981); see also Flanagan, 890 F.2d at 1570. Although this test's formulation seems to indicate this court must consider all three factors, the actual application of the test in prior cases demonstrates that we need not address the second and third factors if the first is not met. See Nilson v. Layton City, 45 F.3d 369, 371 (10th Cir. 1995) ("Because the alleged unconstitutional conduct in this case fails to meet the first prong of this test, we hold that Mr. Nilson has no constitutional privacy in his expunged criminal record."); Flanagan, 890 F.2d at 1571 ("Since we hold that the information released by Chief Munger is not of a highly personal nature, we deny the plaintiffs' privacy claim."). In other words, if Falvo and her children do not have a legitimate expectation of privacy in the children's school work and test grades, they have no Fourteenth Amendment privacy right protecting those grades from disclosure.

A party's expectation in the privacy of specific information is sufficiently legitimate to warrant constitutional protection only if that information "is highly personal or intimate." Nilson, 45 F.3d at 372. Although this court acknowledges that the school work and test grades of pre-secondary school students constitute somewhat personal or intimate information, we cannot conclude that these grades are so highly personal or intimate that they fall within the zone of constitutional protection; to hold otherwise would trivialize the Fourteenth Amendment. Accord Alexander v. Peffer, 993 F.2d 1348, 1350-51 (8th Cir. 1993); Davis v. Bucher, 853 F.2d 718, 721 (9th Cir. 1988); see generally Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (noting that even the Supreme Court "must . . . exercise the utmost care" when asked to announce a new substantive due process right (quotation omitted)).

Falvo contends that she and her children have a legitimate expectation of privacy in these grades because two federal statutes, FERPA and IDEA, provide just such an expectation. This court has recognized that "[t]he presence of privacy statutes and regulations may inform our judgment concerning the scope of the constitutional right to privacy." Flanagan, 890 F.2d at 1571. In several prior public disclosure cases, however, this court has refused to premise a constitutional privacy right merely on the existence of state privacy statutes. See id; Nilson, 45 F.3d at 372; Mangels v. Pena, 789...