What Ever Happened in the Appeal of … ? Part I

IT IS NOT particularly uncommon for this column to end with caveat that the case described is subject to further judicial proceedings, typically by way of an appeal filed by the losing party. In the 15 years that I've been writing this column, I have covered approximately 150 cases but have rarely revisited any subsequent published decisions for them.1 In this, the first of two-part Courtside, I set the record straight. In all but two of the approximately 20 covered cases in which the losing party filed for certiorari by the U.S. Supreme Court,2 the attempt has been for naught; the nation's highest Court is too busy to hear most of the many cases that seek its discretionary review.3 Thus, for example, in 1990 the Supreme Court declined to review the merits of the Fifth Circuit Court of Appeals' rejection of student's Fourth Amendment challenge to sniffer-dog search of her car.4 Similarly, in 1993 the Supreme Court denied certiorari for the Seventh Circuit's ruling that the federal Private Express Statutes prohibited school districts from using their interschool mail service for correspondence from the teacher union.5 The lessons are simply that 1) the odds are strongly against obtaining review by the Supreme Court and 2) the Court's denial of certiorari is not ruling on the merits of the case and thus does not add to the precedential value of the lower court's ruling.6 I have already covered the first of the two cases that went to the Supreme Court. In that case, the Court reversed the trial court's dismissal of peer sexual harassment suit under Title IX, clarifying that school districts may be liable when they act with 1) actual knowledge of and 2) deliberate indifference to 3) peer sexual harassment that is so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an opportunity or benefit.7 The second case, in which the Supreme Court reversed the decision of the 10th Circuit Court of Appeals concerning peer grading, was so recent that it escaped coverage.8 In this case, concluding that the 10th Circuit's interpretation of the Family Education Rights and Privacy Act (FERPA) effected, without the requisite clear Congressional intent, a drastic alteration of the existing allocation of responsibility between the State and the National Government in the operation of the Nation's schools, the justices unanimously ruled that peer-graded papers do not fit within FERPA's definition of educational records. First, for the purposes of this definition, such papers are not maintained at the point that students correct their peers' assignments or call out the resulting grades. Second, the student grader is not a person acting for [the educational] institution when he or she is correcting quiz any more than when he or she is taking quiz. In reversing the 10th Circuit, the Court left for another day the questions of whether teachers' grade books, once such marks are entered into them, are educational records and whether individuals have right to sue - as compared to the enforcement mechanism of filing complaint with the Family Policy Compliance Office of the U.S. Department of Education - under FERPA. In several of the remaining 25 or so cases I've covered in this column that have yielded further published proceedings, the result was not significant change. We summarize these outcomes here, saving the significant changes for next month. First, the majority of the cases in which the losing party filed for appeal to court other than the Supreme Court resulted in affirmances. This outcome does not change the original story, but it adds to its generalizability; the appellate court has larger jurisdiction, in which the decision has binding effect, and higher level, which increases the decision's persuasive effect elsewhere. For example, as I predicted, the 10th Circuit Court of Appeals - which covers six-state region - affirmed the decision of the federal district court of Colorado regarding suit filed by education professor Marie Wirsing. …