Defendants unpersuasively characterize the added burden on plaintiffs as trivial.
1. Justiciability of Plaintiffs' Claim.
Defendants raise three threshold issues: mootness, standing, and ripeness. Each of these issues goes to the existence of a case or controversy as required by Article III of the Constitution. See Warth v. Seldin, 422 U.S. 490, 500, 45 L. Ed. 2d 343, 95 S. Ct. 2197 n.10 (1975).
The Court dispenses with defendants' mootness argument briefly. Defendants suggest that this action has become moot because the House of Representatives and the Senate both have approved legislation altering the FERPA to exclude all law enforcement records. "All that now remains is for the final measure to be reported out of conference committee, approved by both houses, and signed by the President." (Defendants' Supp. Memorandum at 1.) Defendants' argument is patently wrong. Until the proposed measure actually becomes law, this action remains a live case or controversy.
Defendants also assert that plaintiffs lack standing to challenge the FERPA. "The 'gist of the question of standing' is whether the party seeking relief has 'alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.'" Flast v. Cohen, 392 U.S. 83, 100, 20 L. Ed. 2d 947, 88 S. Ct. 1942 (1968) (quoting Baker v. Carr, 369 U.S. 186, 204, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962)). To satisfy the constitutional minimum of standing, a plaintiff must demonstrate: "that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant, and that the injury fairly can be traced to the challenged action and is likely to be redressed by a favorable decision." Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 473, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982) (citations omitted).
Plaintiffs' alleged injury is their inability to obtain the information they seek from their respective universities. Defendants contend that plaintiffs have suffered no actual injury because the information is available from local law enforcement agencies. Plaintiffs deny that the information is available as a practical matter, but the parties' dispute on that point is irrelevant. Plaintiffs have established that cross-checking the local law enforcement records increases their work and delays their receipt of information. Defendants suggest that the actual burden on plaintiffs is minimal. Nevertheless, the obviously increased work and delay constitute an "injury in fact" sufficient to satisfy the first requirement for standing.
Plaintiffs also have demonstrated that the injury is "fairly traceable" to the FERPA. Although the FERPA does not prohibit releasing any information, it imposes a severe penalty on universities that disclose personally identifiable information in law enforcement records. As plaintiffs' exhibits demonstrate, university officials consistently (and quite understandably) elect to avoid the statute's penalty. The officials specifically cite the FERPA as the reason for withholding information regarding students in campus crime reports. The officials' statements demonstrate that the universities would release the information but for the risk of losing federal funds. (Coor Aff. at 2; Cristy Aff. Ex. B; Goodman Aff. at 4-6.) Therefore, plaintiffs' injury is traceable to the FERPA's provisions.
The same reasoning leads to the conclusion that a favorable decision barring enforcement of the subject provision of the FERPA is likely to redress plaintiffs' injury. Therefore plaintiffs have standing to challenge the FERPA's provisions regarding law enforcement records.
Defendants pose a third challenge to the justiciability of plaintiffs' claim on the basis of ripeness. To determine whether a case is ripe for review, the Court must consider "the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Abbott Lab. v. Gardner, 387 U.S. 136, 149, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967). This test serves to "prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from premature judicial interference." Id. at 148. To determine the fitness of an issue for review, the Court must weigh "the petitioner's interest in prompt consideration of the allegedly unlawful agency action against the agency's interest in crystallizing its policy before that policy is subjected to judicial review." Payne Enterprises, Inc. v. United States, 267 App. D.C. 63, 837 F.2d 486, 492 (D.C. Cir. 1988); Eagle-Picher Indus. v. EPA, 759 F.2d 905, 915 (D.C. Cir. 1985). "The clearest instance of an issue unfit for judicial decision is one that turns wholly on an open question of fact rather than law. But the presence of a 'purely legal question' is not enough, of itself to render a case ripe for review." Office of Communication of United Church of Christ v. FCC, 264 App. D.C. 29, 826 F.2d 101 (D.C. Cir. 1987) (citations omitted). The Court determines the fitness of an agency action for review independent of whether the agency "labels" the decision as interpretive or final. Id. at 105.
Plaintiffs' claim presents a ripe issue although the DoE has not yet found it necessary to make a formal ruling as to any of the universities involved. First, plaintiffs present a facial challenge to the statute. Such a claim raises primarily legal issues. Second, the agency has had a sufficient opportunity to develop its policy and to apply it to concrete factual circumstances. Finally, the DoE may never render a "formal" ruling under the FERPA, because the agency always obtains voluntary compliance. Even without a formal complaint, the DOE regularly achieves compliance through the manifestly coercive technique that it euphemistically labels as technical assistance letters. In practice if not in name, the letters represent the agency's fully-developed and final statement on FERPA's application to campus law enforcement records. Ruling on plaintiffs' claim does not risk interfering with an unrefined policy. Therefore, plaintiffs' interest in resolving their claim outweighs the DoE's need to crystallize its policy further, and plaintiffs' claim is ripe for review.
2. Plaintiffs' Motion for a Preliminary Injunction
To rule on a request for preliminary injunctive relief, "the district court should consider (1) the plaintiff's likelihood of prevailing on the merits, (2) the threat of irreparable injury to the plaintiff in the absence of injunctive relief, (3) the possibility of substantial harm to other interested parties from the injunctive relief, and (4) the interests of the public." Foundation on Economic Trends v. Heckler, 244 App. D.C. 122, 756 F.2d 143, 151 (D.C. Cir. 1985) (citing WMATC v. Holiday Tours, Inc., 182 App. D.C. 220, 559 F.2d 841, 842-43, (D.C. Cir. 1977); Virginia Petroleum Jobbers Ass'n v. Federal Power Comm., 104 App. D.C. 106, 259 F.2d 921, 925 (D.C. Cir. 1958)).
Plaintiffs have not demonstrated a significant likelihood of success on the merits of their equal protection claim. Plaintiffs contend that the FERPA adversely affects the First Amendment rights of the student press by restricting access to information that is uniquely interesting to the campus community. There is no precedent to support plaintiffs' claim, and the student press suffers no restriction that does not apply to the public as a whole. Therefore, plaintiffs have not shown that the FERPA implicates equal protection concerns.
Plaintiffs have demonstrated a greater likelihood of success on the merits of their First Amendment claim. The Supreme Court has noted in a variety of contexts that the First Amendment "protects the right to receive information and ideas." Board of Educ. v. Pico, 457 U.S. 853, 868, 102 S. Ct. 2799, 73 L. Ed. 2d 435 (1982); see Kleindienst v. Mandel, 408 U.S. 753, 762-63, 33 L. Ed. 2d 683, 92 S. Ct. 2576 (1972); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 23 L. Ed. 2d 371, 89 S. Ct. 1794 (1969); Thomas v. Collins, 323 U.S. 516, 89 L. Ed. 430, 65 S. Ct. 315 (1945). The right to receive information and ideas "is an inherent corollary of the rights of free speech and press that are explicitly guaranteed by the Constitution."
Pico, 457 U.S. at 868. Therefore, plaintiffs' claim that the FERPA interferes with their ability to gather information regarding campus crimes implicates the First Amendment.
The right to receive information is not as broad as the right of free speech from which it stems.
"The right to speak and publish does not carry with it the unrestrained right to gather information." Zemel v. Rusk, 381 U.S. 1, 16-17, 14 L. Ed. 2d 179, 85 S. Ct. 1271 (1965). The government does not have an affirmative obligation to increase the scope of information available to the public.
See Pico, 457 U.S. at 872. Even in cases involving an otherwise willing or available source of information, the Supreme Court has upheld restrictions on the public's right of access.
See, e.g., Pell v. Procunier, 417 U.S. 817, 41 L. Ed. 2d 495, 94 S. Ct. 2800 (1974) (upholding restriction against interviewing prison inmates).
Plaintiffs have a substantial likelihood of success on the merits of their claim despite the somewhat limited protection that the First Amendment provides the right to receive information. In cases approving a rule or law restricting public access to information, the Supreme Court has noted a governmental interest justifying the restriction. See, e.g., Pell, 417 U.S. at 830-833 (prison security); Kleindienst, 408 U.S. at 770 (plenary authority to exclude aliens). Defendants have not offered a single justification for preventing universities from disclosing the names of students involved in criminal activity.
The Government apparently takes the position that the FERPA's imposition on the right to receive information is minimal, and therefore requires no justification. That position is untenable even in an area of limited constitutional protection. In light of the universities' willingness (absent coercion to the contrary) to release campus crime reports in full, the Government must assert some interest that outweighs the public's First Amendment right to receive the information.
The remaining considerations for a preliminary injunction also weigh in plaintiffs' favor. The Court presumes that irreparable harm will flow to plaintiffs from a continuing constitutional violation. See Elrod v. Burns, 427 U.S. 347, 373, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976). The Court recognizes that releasing the names of students arrested on campus poses potential harm to their reputations. As defendants noted at oral argument, any information released pursuant to a preliminary injunction cannot be reclaimed. There is no legitimate privacy interest in arrest records, Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976), and therefore the potential harm to third-parties is not legally cognizable. Finally, the Court's decision is consistent with the interests of the public in greater access to information. That interest is at its highest in matters that bear on personal safety and the prevention of crime.
The Court accordingly grants plaintiffs' motion for a preliminary injunction. The DoE and the Secretary are enjoined from preventing univerisities or other educational institutions from releasing to the public personally identifiable information regarding students in law enforcement records by withdrawing or threatening to withdraw federal funding. The DoE's Compliance Office shall refrain from issuing technical assistance letters that take the position that the Department may withdraw federal funding from an institution for releasing such information. Of course, the Court's decision does not affect defendants' authority to enforce any other provisions of the FERPA. An appropriate Order accompanies this Opinion.
For the reasons set forth in the accompanying Opinion, it hereby is
ORDERED, that plaintiffs' motion for a preliminary injunction is granted. Defendants shall not withdraw or threaten to withdraw the federal funding of a university or other educational institution on the grounds that the institution provides public access to personally identifiable information regarding students in law enforcement records such as campus police reports. Defendants shall not issue technical assistance letters asserting the authority to withdraw federal funding for releasing such information.