Doe v. Billups ( 2024 )

1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 John Doe, a minor by and through Jane Case No. 2:23-cv-00334-APG-DJA 6 Doe, his natural mother and legal guardian, 7 Order Plaintiff, 8 v. 9 Courtney Billups, an individual; and Clark 10 County School District, a political subdivision of the State of Nevada, 11 Defendants. 12 13 14 This is a personal injury and civil rights action arising out of threats and demeaning 15 comments that Clark County School District (CCSD) teacher Courtney Billups allegedly made to 16 minor Plaintiff John Doe. Plaintiffs sue Defendants for damages, alleging claims for negligence, 17 negligent retention, intentional infliction of emotional distress, and violation of Title VI of the 18 Civil Rights Act of 1964. CCSD moves to release student information protected under the 19 Family Educational Rights and Privacy Act (FERPA) in its initial disclosures and through 20 discovery. (ECF No. 42). Both Plaintiffs and Billups filed non-oppositions to the motion. (ECF 21 Nos. 44 and 45). No other non-parties filed a response. The Court grants CCSD’s motion and 22 sets a fourteen-day notice period. 23 I. Discussion. 24 Congress enacted FERPA to protect the privacy of students and their parents. See 25 Disability Law Center of Alaska, Inc. v. Anchorage School Dist., 581 F.3d 936, 939 (9th Cir. 26 2009); see S.O. v. Rescue Union Sch. Dist., No. 2:23-cv-00406-DJC-AC, 2023 WL 8003876, at 27 *4-5 (E.D. Cal. Nov. 17, 2023). The law conditions the receipt of federal funding by educational 1 of student educational records and restricting release of student educational records to third 2 parties without parental consent. See 20 U.S.C. § 1232g; Morgan Hill Concerned Parents Ass’n 3 v. California Dep’t of Educ., No. 2:11-CV-03471-KJM-AC, 2015 WL 10939711, at *3 (E.D. Cal. 4 July 2, 2015). One exception to the consent requirement is if a “disclosure is to comply with a 5 judicial order…” 34 C.F.R. § 99.31(a)(9)(i); see 20 U.S.C. § 1232g(b)(2); Morgan Hill, 2015 6 WL 10939711, at *3. In that instance, the school may disclose information “only if [it] makes a 7 reasonable effort to notify the parent or eligible student of the order…in advance of compliance, 8 so that the parent or eligible student may seek protective action…” 34 C.F.R. § 99.31(a)(9)(ii). 9 “FERPA does not create an evidentiary privilege and documents protected by FERPA are 10 discoverable in the context of civil litigation.” Cherry v. Clark County Sch. Dist., No. 2:11-CV- 11 01783-JCM, 2012 WL 4361101, at *5 (D. Nev. Sept. 21, 2012). “Given FERPA’s underlying 12 privacy concerns, it does, however, place a higher burden on a party seeking access to student 13 records to justify disclosure than with the discovery of other types of records.” Id. (quoting Ellis 14 v. Cleveland Municipal School Dist., 309 F.Supp.2d 1019, 1023 (N.D. Ohio 2004)). 15 The Court grants CCSD’s motion because CCSD has shown that the documents and 16 information at issue are necessary in discovery. CCSD explains that ten students witnessed a 17 verbal altercation between Plaintiff and Billups. After Plaintiff left the classroom, Billups 18 allegedly made derogatory statements about Plaintiff to the rest of the class. Certain students 19 recorded those statements. Afterwards, CCSD investigated the events, obtaining statements from 20 the student witnesses. Because these students were the only witnesses to the altercation between 21 Plaintiff and Billups and Billups’ later comments, their statements, contact information, and 22 CCSD’s investigatory records are relevant to the case. 23 CCSD has also demonstrated that it first sought the parents’ consent to “release your, and 24 your student’s name and contact information so that your student may be contacted concerning 25 the events which led to the lawsuit.” (ECF No. 42 at 9). And only three parents responded, one 26 consenting, one objecting, and one advising that the Clark County Department of Family Services 27 is the legal custodian of the subject student and statutorily unable to consent without a court 1 order. Because it did not receive consent from all the parents, CCSD then sought this Court’s 2 approval under FERPA. 3 Given the relevance of the information CCSD seeks to disclose, the Court will grant 4 CCSD’s motion. To comply with FERPA’s notice requirement, the Court will require CCSD to 5 serve a copy of this order on the parents of the ten students at issue and to file a certificate of 6 service with the Court. The parents will have fourteen days after being served with this order to 7 seek protective action. If the parents do not seek protective action within fourteen days, CCSD 8 may disclose the information described in its motion. 9 10 IT IS THEREFORE ORDERED that CCSD’s motion (ECF No. 42) is granted. 11 IT IS FURTHER ORDERED that CCSD must serve this order on the parents of the ten 12 students at issue and file a certificate of service with the Court. Those parents will have fourteen 13 days from the date on which CCSD served this order to seek protective action. If they do not, 14 CCSD may disclose the student information described in its motion under the terms of the parties’ 15 protective order filed at ECF No. 21. 16 17 DATED: January 2, 2024 18 19 DANIEL J. ALBREGTS 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27