Opinion
Civil ACtion No. 00-0202-BH-C.
January 30, 2001
JUDGMENT
It is ORDERED, ADJUDGED and DECREED that, pursuant to the Order entered this day granting defendants' motion for summary judgment, JUDGMENT be and is hereby entered in favor of the defendants, Angela DeVilbiss, John Cobb, and Dr. Albert Thomas, and against the plaintiffs, Susan Diane Appelberg, Kenneth Otto Appelberg, who bring this suit by and for their minor children, Andrew Kenneth Appelberg and Joshua Tyler Appelberg, the plaintiffs to have and recover nothing of the defendants. Costs are taxed against the plaintiffs.
FINDINGS OF FACT; CONCLUSIONS OF LAW AND ORDER
This action is before the Court on defendants' motion for summary judgment (Docs. 35, 36, 37, 38 and 41). Upon consideration of the motion, plaintiffs' responses m opposition thereto (Docs. 56, 58 and 59), and all other pertinent portions of the record, the Court concludes that defendant's motion is due to be granted.
FINDINGS OF FACT
In the complaint, plaintiffs essentially contend that their claims are asserted under 42 U.S.C. § 1983 for a violation of the Family Educational and Rights of Privacy Act (FERPA), 20 U.S.C. § 1232g et seq. Plaintiffs further allege the following material facts:
1. Kenneth Otto Appelberg and Susan Diane Appelberg, plaintiffs herein, have been residents of Elberta, Alabama since July 1, 1999, and are the parents of Andrew Kenneth Appelberg and Joshua Tyler Appelberg, minor plaintiffs herein. Complaint at ¶ ¶ 1 and 4.
2. Andrew and Joshua enrolled in the Elberta Middle School and began their classes in August, 1999. Complaint at ¶ 4.
3. The defendants in this action include Angela DeVilbiss, who was at all times material to this litigation the secretary for the Elberta Middle School; John Cobb, who is the Principal for the Elberta Middle School; and Albert Thomas, who is the Superintendent for the Baldwin County Board of Education. Each of the defendants is being sued in their individual, and not in their official, capacities. Complaint at ¶ 2.
4. Rhea DeVilbiss, the minor daughter of defendant Angela DeVilbiss and also a student at Elberta Middle School, is alleged to have gained access to Andrew Appelberg's student file at the school and divulged to Andrew's friend Stacy and then to Andrew himself the fact that Andrew was adopted. See, Complaint at ¶ ¶ 9, 11 and 12. It is alleged that neither Kenneth nor Susan Appelberg had ever told either Andrew or Joshua that they were adopted. Id. at ¶ 13.
Angela DeVilbiss was actually the receptionist/attendance clerk for the school but her designation is irrelevant to the issues in this litigation.
It is alleged that Rhea first told Stacy who then told Andrew that Rhea had seen his school file and knew his "deepest darkest secret." It is when Andrew, at his mother's instruction, telephoned Rhea for an explanation that Rhea told Andrew she knew he was adopted. See, Complaint at ¶ ¶ 7, 9, 10, and 12.
Although the plaintiffs, in response to defendants' motion for summary judgment, "deny all allegations in their paragraphs one through thirteen" (Plaintiffs' First Response filed January 19, 2001 [Doc. 56] at 1), plaintiffs have submitted no specific challenges to those factual statements and no evidence to refute the statements. The Court must, therefore, find that the plaintiffs have failed to contradict the following additional material facts in this case:
5. The office at Elberta Middle School is separated into an administrative area and a waiting area for students, parents and visitors by swinging doors. Students are not allowed behind the swinging doors into the administrative area unless they have permission. (Angela DeVilbiss Depo. at 31).
6. Elberta Middle School students' permanent cumulative records are kept in an unmarked room off of the administrative area of the office, separated from the waiting area and down the hall from the swinging doors. (Cobb Depo. at 101; Angela DeVilbiss Depo at 16 and 37). In this room, the records are located in filing cabinets. (Angela DeVilbiss Depo at 17).
7. The records room itself has a locking mechanism on the door. The records room is locked at the end of every day either by the bookkeeper, Mrs. Clark, or the receptionist/attendance clerk, Angela DeVilbiss, and opened every morning by the first person in the office. (Cobb Depo. at 84-84 and 89; Angela DeVilbiss Depo at 22, 23 and 27).
8. On the day of the incident at issue in this litigation, Elberta Middle School dismissed its students at noon due to a teachers' conference being held off campus. (Cobb Depo. at 37; Angela DeVilbiss Depo at 101-02). The only people remaining on campus after school was dismissed that day were Mrs. Clark, Angela DeVilbiss, the DeVilbiss children and the custodians. (Angela DeVilbiss Depo at 103). Typically, the DeVilbiss children would wait for Angela DeVilbiss after school for a ride home. ( Id.).
9. The afternoon of the incident, Angela DeVilbiss worked in her office which extends off the administrative area and from which there is no view of the records room. (Angela DeVilbiss Depo at 31, 100-101). Rhea, without permission, went through the swinging doors, into the records room and looked at Andrew Appelberg's file. (Cobb Depo. at 168; Angela DeVilbiss Depo at 105).
The following factual statements asserted by the defendants in their narrative summary (Doc. 37) are not in any fashion objected to or challenged by the plaintiffs:
10. Andrew Appelberg was adopted in 1995 by his stepfather, Kenny Appelberg. At the time of this adoption, the Appelbergs received an adoption decree which was placed in Andrew's file at a prior school in Florida, not Elberta Middle School. None of the office staff at Elberta Middle School knew that this document was in Andrew Appelberg's file.
11. On the day of the incident, Rhea DeVilbiss apparently saw the adoption decree in Andrew's student file in the records' room. Rhea did not inform her mother or any other member of the office staff or faculty that she was aware that Andrew Appelberg had been adopted. Rhea did subsequently tell her friend Lindsay who thereafter told another fourth grade student, Stacy. On October 18, 1999, Stacy informed Andrew that she knew a secret about him but would not tell him what the secret was. Instead, Stacy told Andrew to call Rhea.
12. When Andrew then called Rhea, Rhea told him that she knew he was adopted. Prior to this conversation, Andrew Appelberg says that he had not been told by either his mother or his stepfather, Kenneth Appelberg, that he had been adopted by his stepfather. (Andrew Appelberg Depo. at 31). However, Andrew remembers meeting with his biological father, Mr. Mosely, on at least one occasion and that at one point in his life his last name was Mosely. ( Id. at 29 and 30). Andrew has always known that Mr. Mosely was his biological father. ( Id. at 30 and 46).
13. Following Andrew Appelberg's conversation with Rhea, Susan Appelberg spoke with both Angela DeVilbiss and John Cobb about the situation. Rhea was suspended from school for the remainder of the week due to her violation of school rules. (John Cobb Depo. at 118 and 132).
14. The defendants are not aware of any other incidents of unauthorized persons gaining access to any student's permanent cumulative records at Elberta Middle School. There is no evidence of any other such incident at Elberta Middle School.
CONCLUSIONS OF LAW
In their first response (Doc. 56) to defendants' motion for summary judgment, plaintiffs concede that government officials performing discretionary function "are shielded from suit unless the court is convinced that `the legal norms allegedly violated by the defendant[s] were clearly established at the time of the challenged actions or . . . the law clearly proscribed the actions the defendant[s] . . . took'." Plaintiffs' First Response at 2 (emphasis added), citing, Dartland v. Metropolitan Dade County, 866 F.2d 1321, 1322 (11th Cir. 1989), which in turn quotes Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411, 426 (1985). The plaintiffs also concede that `"[t]he court must be convinced of the existence of a clear, factually-defined, well-recognized right which a reasonable [official] should have known'." Plaintiffs' First Response at 2, citing, Dartland, 866 F.2d at 1322-23. As the plaintiffs further acknowledge, "[t]he contours of this type of clearly established constitutional right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Plaintiffs' First Response at 3, quoting, Dartland, 866 F.2d at 1323, which in turn quotes Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). Plaintiffs further acknowledge that, "[i]n order for qualified immunity not to apply to the defendant, `the law must have earlier been developed in such a concrete and factually defined context to make it obvious to all reasonable governmental actors, in the defendant's place, that `what he is doing' violates federal law'." Plaintiffs' First Response at 4, quoting, Lassiter v. Alabama AM University, 28 F.3d 1146, 1149 (11th Cir. 1994), which in turn quotes Anderson, 483 U.S. at 640, 107 S.Ct. at 3039."Once the qualified immunity defense is raised, plaintiffs bear the burden of showing that the federal `rights' allegedly violated were `clearly established'." Lassiter, 28 F.3d at 1150 n. 3, citing, Barts v. Joyner, 865 F.2d 1187, 1190 (11th Cir. 1989) ( citing, Mitchell, 472 U.S. at 528, 105 S.Ct. at 2816.). Plaintiffs in the case at bar have failed to meet their burden.
Despite their concessions and acknowledgments as set forth above, plaintiffs argue that qualified immunity does not exist in this case solely because "the language of FERPA is not ambiguous [in that] [t]he statute allows for the revocation of funds to educational institutions that release a student's records without consent." Plaintiffs' First Response at 6 (emphasis in original). Ignoring for the moment that FERPA's remedy is indeed the "revocation of federal funds" and not the damages claimed by these plaintiffs, plaintiffs present no legal authority, and none exists, which earlier defined, or even now defines, a "release" under FERPA to mean the mere unauthorized access of a student's records by a fellow student without the knowledge of the school superintendent, principal or any other staff member or faculty member. No other case has ever, in factual terms, staked out a bright line establishing that the mere unauthorized access to student records, whether or not resulting from some failure on the part of the defendants to provide a security system within some previously defined parameters which prevents such access, would constitute a violation of FERPA. The defendants' mere knowledge of the requirements of FERPA, namely that the law prohibited them from releasing student records without consent, does not preclude the application of qualified immunity in this case.
There is no evidence that unauthorized access to the student records at Elberta Middle School, or any other school within the territory of the Baldwin County Board of Education, has been a "widespread or longstanding" problem.
In plaintiffs' second response (Doc. 58) to defendant's motion for summary judgment, plaintiffs concede that, with respect to the Baldwin County Board of Education, "an isolated incident is not enough to amount to a custom under [§ 1983]." Plaintiffs' Second Response at 1. However, plaintiffs present no evidence either that the defendants participated in the release of any information from Andrew Appelberg's school records or that Rhea's access was anything beyond a single, isolated occurrence at Elberta Middle School. There is simply no evidentiary basis for plaintiffs' contention that a custom or practice existed of releasing information from student records at Elberta Middle School without the student's consent in violation of FERPA.
Plaintiffs' continued reliance on a recorded conversation of a high school student concerning student records at that high school is inappropriate in view of the Court's prior Order striking such proffered evidence from the record. See, Order dated January 22, 2001 (Doc. 57).
To the extent plaintiffs argue that the defendants' alleged "policy of inaction by failing to implement safeguards to prevent unauthorized disclosure of educational records," the Court again concludes that the defendants are entitled to immunity inasmuch as no precedent has ever held similar defendants liable for such conduct or inaction.
In their third response (Doc. 59) to defendants' motion, plaintiffs merely highlight certain deposition testimony which, to the extent not inconsistent with other testimony by the same deponent, is nonetheless irrelevant. None of this proffered testimony establishes the existence of clearly established legal precedent which would preclude qualified immunity to each defendant on each claim presented in this litigation.
CONCLUSION AND ORDER
For the reasons stated above, the Court concludes that there exists no genuine issue of material fact and that the defendants are entitled to judgment in their favor as a matter of law. It is therefore ORDERED that defendants' motion for summary judgment be and is hereby GRANTED and that JUDGMENT be entered in favor of the defendants, Angela DeVilbiss, John Cobb, and Dr. Albert Thomas, and against the plaintiffs, Susan Diane Appelberg, Kenneth Otto Appelberg, who bring this suit by and for their minor children, Andrew Kenneth Appelberg and Joshua Tyler Appelberg, the plaintiffs to have and recover nothing of the defendants. Costs are taxed against the plaintiffs.