Document Type


Publication Date



In 2002, the Supreme Court in Gonzaga University v. Doe held that the nondisclosure provisions of the Family Educational Rights and Privacy Act (FERPA) did not establish an individual right enforceable through 42 U.S.C. §1983. Chief Justice Rehnquist's requirement of clear and unambiguous proof that Congress intended to establish an individual right on behalf of a class including the plaintiff placed an additional burden on plaintiffs by effectively demanding proof that Congress would have wanted thousands of private suits. The requirement eroded the Court's precedent emphasizing the presumptive enforcement of federal statutory rights through §1983. This Article will focus on the impact of Gonzaga in future §1983 cases rather than on whether the Court was correct in its holding. Two specific proposals are presented. First, the Court should consider legislative history in determining congressional intent to establish individual rights. Second, consistent with the Court's decision in Wright v. City of Roanoke Redevelopment & Housing Authority, the Court should consider agency regulations in defining the scope of a right as long as there is sufficient evidence that Congress intended to establish an individual right. By considering evidence in a statute's legislative history and administrative regulations defining the scope of statutory rights, lower courts are more likely to find Congress's intent than through a textualist approach, which is likely to underestimate those instances where Congress really intends to establish an individual right.