UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------X ARNALDO MAGNONI and RACHEL MAGNONI, in their individual capacities and as the parents and legal guardians of A.M., a disabled infant,
Plaintiffs, MEMORANDUM AND ORDER 2:17-cv-4043 (DRH)(AKT)
- against –
PLAINEDGE UNION FREE SCHOOL DISTRICT, EDWARD A. SALINA JR., individually and as a Superintendent of Schools, PLAINEDGE UNION FREE SCHOOL DISTRICT BOARD OF ED., JENNIFER THEARLE, individually and as a Principal, and ANTHONY DERISO, individually and as a Principal, Defendants. -------------------------------------------------------X
APPEARANCES
ARONOW LAW P.C. Attorney for Plaintiffs 20 Crossways Park Drive North, Suite 210 Woodbury, NY 11797 By: Darren Arthur Aronow, Esq.
SOKOLOFF STERN LLP Attorneys for Defendants 179 Westbury Ave. Carle Place, NY 11514 By: Steven C. Stern, Esq. Melissa Lauren Holtzer, Esq.
HURLEY, Senior District Judge:
INTRODUCTION
Plaintiffs Arnaldo Magnoni and Rachel Magnoni (“Plaintiffs”), in their individual
capacities and as the parents and legal guardians of A.M. (a disabled infant) brought this action
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against Plainedge Union Free School District (“School District”), Edward A. Salina Jr.,
individually and as a Superintendent of Schools (“Superintendent”), Plainedge Union Free
School District Board of Education (“Board”), Jennifer Thearle, individually and as a Principal,
and Anthony Deriso, individually and as a Principal, for violations of 42 U.S.C. § 1983, the
Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C. § 1400 et seq., the Family
Education Rights and Privacy Act (“FERPA”) 20 U.S.C. § 1232(g), and New York Education
Law § 2-d. Plaintiffs allege that Defendants breached their privacy rights by releasing personally
identifiable information (“PII”) “to a third party without the authority to obtain such PII.”
(Compl. [DE 1] ¶ 15.) Defendants have moved for a motion to dismiss. For the reasons
discussed below, the motion is granted in its entirety.
BACKGROUND
The following relevant facts come from the Complaint and are assumed true for purposes
of the motion to dismiss.
Plaintiffs Arnaldo and Rachel Magnoni (“Parents) are parents and legal guardians of
A.M., a disabled 12-year old boy with autism. (Compl. ¶ 1.) Plaintiff A.M. has an
Individualized Education Program (“IEP”). (Id. ¶ 28.) Plaintiff A.M. has attended schools in the
Plainedge School District for six years; he currently attends the Plainedge Middle School
(“Middle School”), and previously attended the Charles E. Schwarting Elementary School
(“Elementary School”). (Id. ¶ 2.) Defendant School District is a special district created under
the auspices of the New York State Education Law. (Id.) Defendant Board “is an elected body
currently comprised of seven (7) members who are residents of the district who are elected for a
three-year term of office, consisting of a President, Vice President and five trustees.” (Id. ¶ 4.)
The Board is “responsible for operating the School District and for overseeing the
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Superintendent of Schools” as well as the principals of all schools. (Id. ¶¶ 5, 8.) Defendant
Salina is the Superintendent of the School District. (Id. ¶ 7.) Defendant Deriso is the Principal
of Plainedge Middle School, the infant A.M.’s current school. (Id. ¶ 11.) Defendant Thearle is
the Principal of Charles E. Schwarting Elementary School, the infant A.M.’s prior school. (Id. ¶
12.)
In the 2014-2015 school year, while Plaintiff A.M. was a student at the Elementary
School, an “anonymous donor” began donating holiday gifts to the special education children in
Plaintiff A.M.’s class on Halloween and Christmas. (Id. ¶¶ 33, 36.) The parents of the children
in this class were required to sign a consent form regarding the gifts, but they were not told the
anonymous donor’s identify.1 (Id. ¶ 34.) The anonymous donor did not give gifts to the students
in any other class. (Id. ¶ 35.) Plaintiffs do not specify the nature of these gifts in the Complaint,
but they do not dispute Defendants’ assertion in the Memorandum in Support that the donations
included candy and toys for the children. (See Defs.’ Mem. in Supp. [DE 12] at 1 (hereinafter
“Mem. in Supp.”.) When Plaintiff A.M. graduated and entered the Middle School, the
anonymous donor stopped making donations to the Elementary School and began making
donations to the Middle School. (Compl. ¶ 36.) The Complaint is not clear on the question of
whether the anonymous donor received pictures and information about the students in the
Elementary School in exchange for the gift, however Defendants state in their Memorandum in
Support that they told the anonymous donor Plaintiff A.M.’s name, preference in candy and toys,
and classroom number. (Def.’s Reply Mem. [DE 18] at 3–4 (hereinafter “Reply Mem.”).)
1 The Court was not presented with a copy of the consent, but based on the brief description in the Complaint it appears that the consent only covered acceptance of gifts and candy from an anonymous donor, and not the release of information to the anonymous donor. (Compl. ¶ 45.) Defendants do not address the consent.
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Defendants also gave the anonymous donor a photograph, but neither Defendants nor Plaintiffs
state whether the photograph was of just Plaintiff A.M. or of his entire class. (See id.)
Plaintiff Parents “became suspicious after seeing a note which was attached to a gift
[that] was ‘donated’” to Plaintiff A.M. for Christmas. (Compl. ¶ 35.) On January 17, 2017,
Plaintiff Rachel Magnoni contacted Plaintiff A.M.’s middle school teacher about the identity of
the anonymous donor. (Id. ¶ 33.) On January 18, 2017, Defendant Deriso informed Plaintiff
Parents that the anonymous donor was Renata Magnoni—Plaintiff Arnaldo Magnoni’s sister and
Plaintiff A.M.’s aunt. (Id. ¶ 37.) Plaintiffs had “consciously and vehemently excluded” Renata
Magnoni from Plaintiff A.M.’s life due to concerns about her mental stability and violent
tendencies, including her arrest for allegedly assaulting her elderly mother by throwing a
telephone at the mother’s head. (Id. ¶¶ 37, 48–49.)
The same day that Plaintiffs learned that Renata Magnoni was the anonymous donor,
Plaintiffs filed a complaint and received a police report from the Nassau County Police
Department. (Id. ¶ 38.) The following day, Plaintiffs filed a Family Offense Petition with the
Nassau County Family Court. (Id. ¶ 39.) The Nassau Family Court issued a temporary order of
protection restraining Renata Magnoni from “taking actions in connection with the Infant
Plaintiff.” (Id. ¶ 40.) Defendants were aware that Plaintiffs had been granted a temporary order
of protection against Renata Magnoni. (Id. ¶ 41.) On January 24, 2017, Defendant Deriso wrote
a letter on the Middle School letterhead stating: “The Parents of one of our special Education
program [students], Mr. and Mrs. Arnaldo Magnoni, have made it clear that they would prefer
that Renata Magnoni not visit Plainedge Middle School in the future.” (Id.) Plaintiffs filed the
instant action on July 7, 2017—with no explanation as to what happened in the intervening six
months. As far as the Court can glean from the Complaint and the moving papers, there has been
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no further contact between Plaintiff and Renata Magnoni since Plaintiffs sought the temporary
order of protection. (See Mem. in Supp. at 3.)
LEGAL STANDARD
Defendants fail to specify the particular section of the federal rules upon which their
motion to dismiss is predicated but, based on their repeated assertion that Plaintiffs have failed to
state a claim, the Court assumes that Plaintiffs intend to move pursuant to Fed. R. Civ. P.
(“Rule”) 12(b)(6).
In deciding a motion to dismiss under Rule 12(b)(6), a court should “draw all reasonable
inferences in Plaintiff[‘s] favor, assume all well-pleaded factual allegations to be true, and
determine whether they plausibly give rise to an entitlement to relief.” Faber v. Metro. Life Ins.
Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks omitted). The plausibility
standard is guided by two principles. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544 (2007)); accord Harris v. Mills, 572 F.3d 66, 71–72 (2d Cir.
2009).
First, the principle that a court must accept all allegations as true is inapplicable to legal
conclusions. Thus, “threadbare recitals of the elements of a cause of action supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Although “legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.” Id. at
679. A plaintiff must provide facts sufficient to allow each named defendant to have a fair
understanding of what the plaintiff is complaining about and to know whether there is a legal
basis for recovery. See Twombly, 550 U.S. at 555.
Second, only complaints that state a “plausible claim for relief” can survive a motion to
dismiss. Iqbal, 556 U.S. at 679. “A claim has facial plausibility when the plaintiff pleads factual
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content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged. The plausibility standard is not akin to a ‘probability requirement,’ but asks
for more than a sheer possibility that defendant acted unlawfully. Where a complaint pleads
facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short of the line’ between
possibility and plausibility of 'entitlement to relief.’” Id. at 678 (quoting Twombly, 550 U.S. at
556-57) (internal citations omitted); see In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir.
2007). Determining whether a complaint plausibly states a claim for relief is “a context specific
task that requires the reviewing court to draw on its judicial experience and common sense.”
Iqbal, 556 U.S. at 679; accord Harris, 572 F.3d at 72.
DISCUSSION
I. The Parties’ Arguments
Plaintiffs bring four causes of action against Defendants. The first is for violations of 42
U.S.C. § 1983, pursuant to the IDEA and the regulations promulgated thereunder, for depriving
“Plaintiffs of their federally protected right to keep the Infant Plaintiff’s [personally identifiable
potentially endangered Plaintiffs[.]” (Compl. ¶ 71.) The second is for violations of the IDEA,
20 U.S.C. § 1417, for depriving “Plaintiffs of their federally protected right to keep the
Plaintiffs’ PII confidential and further by failing to keep the confidential PII confidential
potentially endangered Plaintiffs[.]” (Id. ¶ 82.) The third is for declaratory judgment under
FERPA, 20 U.S.C. § 1232(g), in that Defendants violated that statute’s confidentiality
requirements. (Id. ¶ 89.) Finally, Plaintiffs seek a declaratory judgment that Defendants violated
New York Education Law §2-d “by disclosing personally identifiable information to an
unauthorized third party.” (Id. ¶¶ 92, 95.)
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Defendants argue that Plaintiffs have failed to state a claim because FERPA provides no
private right of action. (Mem. in Supp. at 1.) Further, Defendants aver that the IDEA only
provides a private right of action “when a student or parent alleges a denial of a free appropriate
public education,” which is not the case here. (Id.) Finally, Defendants claim that New York
Education Law §2-d only provides an administrative remedy, not a private right of action. (Id.)
Plaintiffs respond that “a private right of action exists for any violation of IDEA whether
or not the violation is in connection with denial of a Free Appropriate Public Education[.]”
(Mem. in Opp. [DE 14] at 1.) Additionally, Plaintiffs insist that under the Declaratory Judgment
Act, 28 U.S.C. § 2201, they may seek declaratory judgment even if they cannot maintain a
private right of action under either FERPA or New York Education Law §2-d. (Id. at 9.)
II. Count I – 42 U.S.C. § 1983 Claim
a. 42 U.S.C. § 1983
Section 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .
42 U.S.C. § 1983. To prevail on a Section 1983 claim, a plaintiff must establish that a person
acting under color of state law deprived him of a federal right. See 42 U.S.C. § 1983; Gomez v.
Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980); Back v. Hastings on Hudson
Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir.2004). In addition, “[i]n this Circuit personal
involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of
damages under § 1983.” Back, 365 F.3d at 122 (internal quotation marks and citation omitted).
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b. Defendants’ Motion is Granted as to Count I: Section 1983
Plaintiffs claim that “a private right of action exists against individuals who breach [the]
IDEA” under § 198, however, Plaintiffs fail to provide any authority in support of their assertion.
(Mem. in Opp. at 8 n. 6.) Nevertheless, Plaintiffs are correct that they may proceed under § 1983
given that the Second Circuit has opined that the IDEA is enforceable under § 1983 (though the
Second Circuit stands alone in finding thus). See DL v. District of Columbia, 730 F. Supp. 2d
84, 90 (D.D.C. 2010) (explaining that the First, Third, Ninth, and D.C. circuits have held that the
IDEA is not enforceable under § 1983, but that the Second Circuit has “noted in passing” that it
is.) While in earlier cases it seems that the Second Circuit only intended for § 1983 to apply to
the denial of a Free and Appropriate Public Education (“FAPE”), in later cases the Second
Circuit appears to have expanded their holding to apply to IDEA claims more broadly. Compare
D.D. ex rel. v. New York City Bd. of Educ., 465 F.3d 503, 513 (2d Cir. 2006) (explaining that the
regulations related to an IEP “standing alone, do[] not create a federal right. Instead, it is the
IDEA that creates the right to a free appropriate public education enforceable through § 1983”)
with Smith v. Guilford Bd. of Educ., 226 Fed. Appx. 58, 63 (2d Cir. 2007) (holding that “[i]t is
well-settled that, while the IDEA itself does not provide for monetary damages, plaintiffs may
sue pursuant to § 1983 to enforce its provisions—including the right to a FAPE—and to obtain
damages for violations of such provisions[,]” and then going on to overrule the district court’s
dismissal of plaintiffs’ claim that defendants violated their child’s statutory right to a FAPE.)
Neither party provides controlling authority as to whether § 1983 applies to an IDEA action for
an invasion of a student’s privacy. However, based on the Second Circuit’s expansive language
in Smith, the Court will assume for present purposes that Plaintiffs may bring this action pursuant
to § 1983.
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Defendants argue that even if § 1983 does apply, Plaintiffs have still failed to state a
claim upon which relief may be granted because Defendants “did not disclose education records
in violation of the IDEA.” (Mem. in Supp. at 1.) Specifically, Defendants aver that they
disclosed “directory information,” rather than PII, which they may disclose absent parental
permission unless the parents affirmatively opt-out of disclosure. (Reply Mem. at 3.)
The IDEA provides that the “Secretary shall take appropriate action, in accordance with
[20 U.S.C.] section 1232g . . . to ensure the protection of the confidentiality of any personally
identifiable data, information, and records collected or maintained by the Secretary and by State
educational agencies and local educational agencies[.]” 20 U.S.C. § 1417. Section 1232g
provides in relevant part that “[n]o funds shall be made available . . . to any educational
institution which has a policy or practice of permitting the release of education records (or
personally identifiable information contained therein other than directory information . . . ) of
students without the written consent of their parents to any individual, agency, or
organization[.]” 20 U.S.C. § 1232g(b)(1). In other words, under the IDEA an educational
institution may not disclose PII without consent, but they may disclose directory information.
See id.
The IDEA defines PII as information that contains—
(a) The name of the child, the child’s parent, or other family member; (b) The address of the child; (c) A personal identifier, such as the child’s social security number or student number; or (d) A list of personal characteristics or other information that would make it possible to identify the child with reasonable certainty.
34 C.F.R. § 300.32; see also 20 U.S.C. § 1415(a). Neither the IDEA nor the IDEA regulations
specifically define the term “directory information.” However, the IDEA defines education
records as “the type of records covered under the definition of ‘education records’ in 34 CFR
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part 99 (the regulations implementing [FERPA]).” 34 C.F.R. § 300.611(b). In 34 C.F.R. part 99,
“directory information” is defined as “information contained in an education record of a student
that would not generally be considered harmful or an invasion of privacy if disclosed.” 34
C.F.R. § 99.3. The regulations further provide that directory information includes, but is not
limited to:
[T]he student’s name; address; telephone listing; electronic mail address; photograph; date and place of birth; major field of study; grade level; enrollment status (e.g., undergraduate or graduate, full-time or part-time); dates of attendance; participation in officially recognized activities and sports; weight and height of members of athletic teams; degrees, honors, and awards received; and the most recent educational agency or institution attended.2
Id. Interestingly, a student’s name is listed as both PII and directory information.
Here, Defendants do not dispute that they disclosed Plaintiff A.M.’s “name, photograph,
classroom, and favorite types of candy and snacks” to his estranged Aunt. (Reply. Mem. at 3–4.)
A student’s name and photograph are both specifically listed as directory information under 34
C.F.R. § 99.3, and may be disclosed without prior consent. Therefore, the only outstanding
question is whether Defendants permissibly disclosed Plaintiff A.M.’s classroom and preferred
types of candy and snacks. Based on the definition of “directory information” as information
that would not generally be considered harmful or an invasion of privacy, the Court finds that a
student’s classroom and favorite candy is directory information rather than PII. See 34 C.F.R.
§ 99.3. By contrast, the type of information that qualifies as PII is highly sensitive information
that could be used to identify or steal the identity of a child such as a social security number or a
personal characteristic. See 34 C.F.R. § 300.32. Neither a student’s classroom nor his favorite
type of candy is the type of information that could be used in this way; there are usually many
2 FERPA itself defines “directory information” similarly but does not include photographs as directory
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children in a given classroom, and a child’s favorite candy could be the favorite candy of any
number of other children.
Based on the foregoing, the Court finds that even if Plaintiffs can bring an IDEA claim
under § 1983 in the Second Circuit, they have failed to state a claim here. Accordingly,
Plaintiffs’ first cause of action is dismissed.3
III. Count II – IDEA Claim
a. The IDEA
The IDEA requires states receiving federal funding to provide a FAPE to children with
disabilities. 20 U.S.C. § 1412(a)(1)(A). The IDEA requires an aggrieved party to exhaust all
administrative remedies before commencing a federal civil action, subject to certain exceptions.
See, e.g., J.S. ex rel N.S. v. Attica Cent. School, 386 F. 3d 107, 112 (2d Cir. 2004); L.K. v.
Sewanhaka, 2015 WL 12964663, at *8 (E.D.N.Y. July 16, 2015).
b. Defendants’ Motion is Granted as to Count II: the IDEA
The Supreme Court has recently confirmed that the IDEA only provides a private right of
action for individuals challenging the denial of a FAPE under 20 U.S.C. § 1415. Fry v.
Napoleon Community Schools, 137 S.Ct. 743, 755 (2017) (“the only ‘relief’ the IDEA makes
‘available’ is relief for the denial of a FAPE.”)
In an attempt to circumvent the holding in Fry, Plaintiffs cite to a Second Circuit case
from 2002 in support of their proposition that the IDEA provides other remedies under certain
circumstances. (See Mem. in Opp. at 7 (citing Taylor v. Vermont Dep’t of Educ., 313 F.3d 768
(2d Cir. 2002)). Besides the fact that Fry controls over an older Circuit Court case, Plaintiff’s
3 Plaintiffs have not asserted a Monell claim against the School District or the Board. Moreover, there are no allegations of personal actions taken by the Superintendent. Therefore, there are no other actions that may proceed under § 1983.
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argument is unavailing because the Second Circuit itself has held that a local education
authority’s failure to provide a FAPE is the sole private right of action permitted by the IDEA.
See County of Westchester v. New York, 286 F.3d 150, 152 (2d Cir. 2002). In County of
Westchester, the Second Circuit explained that
Since Congress expressly provided a private right of action in favor of certain groups, specifically, any party aggrieved by particular findings or a decision rendered under subsection 1415, see 20 U.S.C. § 1415(i)(2)(A), but did not expressly provide a private right of action in favor of [other groups] . . . we find it extremely unlikely that Congress intended to do so.
Id. (citing Transamercia Mortg. Advisors, Inc. (TAMA) v. Lewis, 441 U.S. 11, 20 (1979) (“In
view of those express provisions for enforcing the duties imposed . . . , it is highly improbable
that Congress absentmindedly forgot to mention an intended private action.”) (internal quotations
omitted)); see also Y.D. v. New York City Dep’t of Educ., 2016 WL 698139, at *4 (S.D.N.Y. Feb.
18, 2016) (quoting the same); Scaggs v. New York Dep’t of Educ., 2007 WL 1456221, at *9
(E.D.N.Y. May 16, 2007) (“In the absence of any support for the notion that another section of
the IDEA statute permits plaintiffs to bring the instant claim or that an implicit private right of
action is available under the Act, the Court finds that any IDEA claims must be brought pursuant
to Section 1415.”).
While an attempt to assert a private right of action under the IDEA seems a fruitless
pursuit, Plaintiffs further undermine their argument by asserting in their Memorandum in
Opposition that the sole section of the IDEA that Defendants violated is 20 U.S.C. § 1439; a
section under subchapter III of the IDEA, titled “Infants and Toddlers with Disabilities.”
Pursuant to § 1439(a), procedural safeguards are required to be included in a statewide system
under § 1435(a)(13). Section 1435 limits the applicability of the procedural safeguards to
“programs under this subchapter [III].” In other words, the provision Plaintiffs claim that
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Defendants violated only applies to “infants and toddlers with disabilities.” The term “infant and
toddler with a disability” is defined in subchapter III as “an individual under 3 years of age who
needs early intervention services” for certain delineated reasons, as well as “children with
disabilities who are eligible for services under section 1419 of this title and who previously
received services under this subchapter until such children enter, or are eligible under State law
to enter, kindergarten or elementary school[.]” 20 U.S.C. § 1432(5) (emphasis added). As this
action relates to events that transpired after Plaintiff A.M. entered elementary school, this
provision clearly does not apply to him. (Compl. ¶ 1.) Accordingly, Plaintiffs’ claim under
§ 1439 is dismissed.
In addition to citing 20 U.S.C. § 1439, Plaintiffs also quote 34 CFR § 300.6104 in support
of their proposition that Defendants were required to “take appropriate action, in accordance with
section 444 of the General Education Provisions Act, to ensure the protection of the
confidentiality of personally identifiable data, information, and records collected or maintained
by the Secretary and by State educational agencies and local education agencies pursuant to this
part.” (See also Mem. in Opp. at 8.) Plaintiffs do not elaborate on how or why this regulation
applies to Defendants. As the IDEA does not support private rights of action, the Court will not
try to address this incomplete argument.5
In their Memorandum in Opposition, Plaintiffs do not attempt to make out any other
specific claim against Defendants under the IDEA. However, in their Complaint, Plaintiffs seem
to bring their claim under the IDEA pursuant to 20 U.S.C. § 1417, and the IDEA regulations at
4 Plaintiffs incorrectly cite this provision as “300 CFR §617,” which does not exist. Based on the language quoted, the Court concludes that Plaintiffs intended to cite 34 C.F.R. § 300.610. (See Mem. in Opp. at 8.) 5 Likewise, as Plaintiffs’ claims are all hereby dismissed, the Court will not address Defendants’ moot argument that Plaintiffs were required to exhaust administrative remedies under the IDEA.
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34 C.F.R. §§ 300.32, 300.9. (Compl. ¶¶ 75, 79.) As Plaintiffs do not cite or refer to these
sections in their Memorandum in Opposition, the Court considers these arguments abandoned.
Therefore, Defendants’ motion is granted and Count II is dismissed.
IV. Count III – FERPA Claim
a. FERPA
“Congress enacted FERPA under its spending power to condition the receipt of federal
funds on certain requirements relating to the access and disclosure of student educational
records.” Gonzaga Univ. v. Doe, 536 U.S. 273, 278 (2002). The Act provides in relevant part:
No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable
of their parents to any individual, agency, or organization.
20 U.S.C. § 1232g(b)(1). The purpose of FERPA is to “assure parents of students . . . access to
their education records and to protect such individuals’ right to privacy by limiting the
transferability (and disclosure) of their records without their consent.” Rios v. Read, 73 F.R.D.
589, 597 (E.D.N.Y. 1977) (quoting 120 Cong. Rec. S21497 (daily ed. Dec. 13, 1974) (joint
remarks of Sen. Buckley and Sen. Pell)); see also Khalil v. Pratt Institute, 2017 WL 8813136, at
*5 (E.D.N.Y. Dec. 11, 2017). FERPA acts “by threatening financial sanctions . . . to deter
schools from adopting policies of releasing student records. Rios, 73 F.R.D. at 598. However, it
is well-settled that FERPA does not provide a private right of action. Gonzaga Univ., 536 U.S.
at 289; see also Khalil, 2017 WL 8813136, at *5. As the Supreme Court held in Gonzaga
University
[I]f Congress wishes to create new rights enforceable under § 1983, it must do so in clear and unambiguous terms—no less and no more than what is required for Congress to create new rights enforceable under an implied private right of action. FERPA’s nondisclosure provisions contain no
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rights-creating language . . . [t]hey therefore create no rights enforceable under § 1983.
536 U.S. at 290.
b. The Declaratory Judgment Act
The Declaratory Judgment Act (“DJA”), 28 U.S.C. § 2201 provides in relevant party that
“any court of the United States, upon the filing of an appropriate pleading, may declare the rights
and other legal relations of any interested party seeking such declaration, whether or not further
relief is or could be sought.” § 2201(a).
c. Defendants’ Motion is Granted as to Count III: Declaratory Judgment Under FERPA
As discussed above, Plaintiffs argue that they are entitled to relief under FERPA even
though FERPA does not provide a private right of action because they are only seeking a
declaratory judgment. (Mem. in Opp. at 9.) In support, Plaintiffs point to the last clause of the
DJA, which states that a court may grant a declaratory judgment even if no further relief could be
sought. 28 U.S.C. § 2201(a). However, neither Plaintiffs nor Defendants offer any case law or
other authority on point regarding whether an individual may seek a declaratory judgment under
FERPA. After a thorough search, this Court was unable to find any controlling authority. In
fact, in the handful of cases presented with this question, no court has specifically answered
whether an individual may seek a declaratory judgment under FERPA in light of the Supreme
Court’s holding in Gonzaga. See, e.g., Owasso Independent School Dist. No. I-011 v. Falvo, 534
U.S. 426, 429 (2002) (prior to the Court deciding Gonzaga, plaintiff sought declaratory judgment
under FERPA regarding her children’s school district’s policy of peer grading, and the Supreme
Court explained that it would not consider whether the plaintiff had individual standing to bring
the action); see also Schaefer v. U.S. Dept. of Educ., 2005 WL 3008516, at *3–4 (E.D. Mo. Nov.
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9, 2005) (declining to consider the plaintiff’s request for declaratory relief under FERPA on the
basis that plaintiff was “barred by injunction from bringing suit on the issue” under an earlier
state court action between the same parties).
As Defendants correctly note in their Reply Memorandum, the DJA is “procedural only”
and “does not create an independent cause of action.” Chevron Corp v. Naranjo, 667 F.3d 232,
244 (2d Cir. 2012) (citing Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950);
Davis v. United States, 499 F.3d 590, 594 (6th Cir. 2007)); see also Hanson v. Wyatt, 552 F.3d
1148, 1157 (10th Cir. 2008) (explaining that the DJA “does not create substantive rights”
(internal quotation marks omitted)). Thus, where an act “does not provide the legal predicate,
the DJA cannot expand the statute’s authority by doing so.” Chevron, 667 F.3d at 245. Stated
another way, “the DJA cannot create legal rights that do not otherwise exist[.]” Id.
As FERPA does not provide an individual right of action, the DJA cannot expand
FERPA by doing so. See id. Even though the DJA provides that a court may grant a declaratory
judgment even if no further relief could be sought, the precedent is clear; the DJA cannot create
an individual right of action under FERPA if one does not exist. Therefore, Plaintiffs’ claim for
a declaratory judgment under FERPA is dismissed.
V. Count IV – New York Education Law § 2-d Claims
a. New York Education Law § 2-d
New York Education Law § 2-d prohibits the release of PII, and requires that schools
comply with all state and federal laws that protect the confidentiality of PII. N.Y. Educ. Law §
2-d. As Plaintiffs concede, the New York Education Law explicitly states that “[n]othing in this
section shall be construed as creating a private right of action against the department or an
educational agency.” Id. at § 2-d(7)(c); see also Compl. ¶ 31.
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b. Defendants’ Motion to Dismiss is Granted as to Count IV: Declaratory Judgment Under New York Education Law § 2-d
Mirroring their FERPA claim, Plaintiffs claim that even though no private action exists
under FERPA, they may seek “a declaratory judgment that the Defendants’ actions constitute a
violation of . . . New York Education Law § 2-d.” (Compl. ¶ 31.) As discussed in detail above,
where an act “does not provide the legal predicate, the DJA cannot expand the statute’s authority
by doing so.” Chevron, 667 F.3d at 245. New York Education Law § 2-d does not provide an
individual right of action, therefore, the DJA cannot expand it by doing so. See id. As such,
Plaintiffs’ claim for a declaratory judgment under New York Education Law § 2-d is also
dismissed.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss pursuant to Rule 12(b) for
failure to state a claim is granted as to all claims. The Clerk of Court is directed to enter
judgment and close the case.
SO ORDERED. Dated: Central Islip, New York August 22, 2018
/s/ _ Denis R. Hurley Unites States District Judge
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