- The Washington Times - Friday, June 21, 2002

The Supreme Court yesterday barred individual civil rights suits based on laws in which Congress attaches conditions to federal grant money.

The 7-2 decision overturned Ru Paster's $450,000 judgment against Gonzaga University in Spokane, Wash., for releasing damaging personal information to the state education department. Mr. Paster claimed the school violated his rights under a 1974 privacy law.

"If Congress wishes to create new rights enforceable under Section 1983 [of civil rights law], it must do so in clear and unambiguous terms," the court said.

The ruling, which blocks such lawsuits in state or federal courts against government-funded programs, specifically excluded Title VI of the 1964 Civil Rights Act which forbids racial discrimination, and the 1972 law Title IX law which outlaws sex discrimination by schools.

"Where the text and structure of a statute provide no indication that Congress intends to create new individual rights, there is no basis for a private suit, whether under Section 1983 or under an implied right of action," said Chief Justice William H. Rehnquist's written opinion.

Joining that view were Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.

Justices Stephen G. Breyer and David H. Souter also agreed with the outcome, but confined their reasoning to congressional intent in enacting the "school record privacy" aspects of the Family Educational Rights and Privacy Act of 1974.

Justices John Paul Stevens and Ruth Bader Ginsburg said the decision created a second tier of rights and wrote a dissent arguing that "the court's novel attempt to craft a new category of second-class statutory rights is misguided."

Yesterday's decision ends a lawsuit by an alumnus of the private university who said his rights were violated when the Jesuit school withheld the certificate of good moral character required to obtain a Washington state teaching license after investigating what he called false sexual misconduct accusations by another student.

Among other things, the 1974 law allows federal funds to be withheld from schools that have a "policy or practice" of releasing private information about grades, discipline or other personal data without the consent of adult students or by parents of minors.

Yesterday's ruling reverses a Washington state Supreme Court order upholding a total jury award to Mr. Paster of $1.15 million dollars.

The chief justice said the opinion resolved ambiguities in several of its previous opinions but named only one, the 1997 Blessing v. Freestone in which five mothers unsuccessfully charged Arizona with failing to comply with Social Security law.

Almost $600,000 of the judgment for violating state privacy laws was not affected by yesterday's decision, said Doug Honig, education director of the American Civil Liberties Union in Seattle.

"What the decision means is that Congress has passed a law and there is no meaningful way to enforce it. The federal government has never withdrawn funds from anybody to punish him for violating the education privacy laws," Mr. Honig said yesterday of laws in which the only recourse is loss of federal funds.

"If someone brings a complaint, it's investigated. The settlements are really just, 'Sin no more.' They've got to play nice, but that's about it," said Seton Hall Law School professor Daniel J. Solove.

In another major case, the court allowed the practice of "imputing" or estimating how many people live in a home from which no response is received to Census forms after six attempts.

The decision means that North Carolina will not lose a House seat to Utah, which argued that the estimating practice used in 0.4 percent of the homes caused Utah to fall 900 persons short of the number needed to get a fourth House seat.

"The tiny differences make a difference," Justice Breyer said in announcing from the bench the opinion joined by Justices Rehnquist, Stevens, Souter and Ginsburg.

The 5-4 ruling differentiated "imputations" based on data from the nearest house that does respond from a practice from a separate statistical method called "sampling" which federal law forbids.

Lawyers for Utah argued that both methods violate the Constitution's requirement for "actual enumeration" and Justice Breyer said the court "did spill a certain amount of ink along the way" about that question but was specifically not deciding now if those words require that each person contact a census-taker.

The court also ruled 9-0 that American lawyer Jennifer Harbury may not sue former Secretary of State Warren Christopher and other Clinton administration officials for failing to turn over information about the death of her husband.

Miss Harbury said Efrain Bamaca-Velasquez was tortured and killed by CIA informants and claimed that CIA officers and American diplomats knew what happened, but prevented her from helping save his life by not telling her the truth.

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