Cite as: 536 U. S. 273 (2002)
Stevens, J., dissenting
II
Since FERPA was enacted in 1974, all of the Federal Courts of Appeals expressly deciding the question have concluded that FERPA creates federal rights enforceable under § 1983.6 Nearly all other federal and state courts reaching the issue agree with these Circuits.7 Congress has not overruled these decisions by amending FERPA to expressly preclude recourse to § 1983. And yet, the Court departs from over a quarter century of settled law in concluding that FERPA creates no enforceable rights. Perhaps more pernicious than its disturbing of the settled status of FERPA rights, though, is the Court's novel use of our implied right of action cases in determining whether a federal right exists for § 1983 purposes.
In my analysis of whether § 1232g(b) creates a right for § 1983 purposes, I have assumed the Court's forthrightness in stating that the question presented is "whether Congress intended to create a federal right," ante, at 283, and that "[p]laintiffs suing under § 1983 do not have the burden of showing an intent to create a private remedy," ante, at 284. Rather than proceeding with a straightforward analysis
6 See Falvo v. Owasso Independent School Dist. No. I-011, 233 F. 3d 1203, 1210 (CA10 2000), rev'd on other grounds, 534 U. S. 426 (2002); Tarka v. Cunningham, 917 F. 2d 890, 891 (CA5 1990); Brown v. Oneonta, 106 F. 3d 1125, 1131 (CA2 1997) (citing Fay v. South Colonie Central School Dist., 802 F. 2d 21, 33 (CA2 1986)). The Court does not cite—nor can it— a circuit or state high court opinion to the contrary. See ante, at 278, n. 2.
7 To justify its statement that courts are "divided," ante, at 278, concerning FERPA's enforceability under § 1983, the Court cites only two cases disagreeing with the overwhelming majority position of courts reaching the issue. See ante, at 278, n. 2 (citing Gundlach v. Reinstein, 924 F. Supp. 684 (ED Pa. 1996), aff'd, 114 F. 3d 1172 (CA3 1997), and Meury v. Eagle-Union Community School Corp., 714 N. E. 2d 233, 239 (Ind. Ct. App. 1999)). And Gundlach did not even squarely hold that FERPA rights are unenforceable; rather, the court merely rejected a claim under § 1232 in which the plaintiff "failed to allege that Defendants released the alleged educational records pursuant to university policy," 924 F. Supp., at 692.
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