                            NUMBER 13-18-00422-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

IDEA PUBLIC SCHOOLS,                                                       Appellant,

                                           v.

SOCORRO INDEPENDENT
SCHOOL DISTRICT,                                                            Appellee.


                   On appeal from the 389th District Court
                         of Hidalgo County, Texas.



                       MEMORANDUM OPINION
            Before Justices Benavides, Longoria, and Hinojosa
                Memorandum Opinion by Justice Longoria

      This is an appeal from the trial court’s granting of appellee Socorro Independent

School District’s (Socorro ISD) petition for writ of mandamus and the denial of appellant

IDEA Public School’s (IDEA) plea to the jurisdiction. By three issues, IDEA argues that:

(1) Socorro ISD’s claims are moot; (2) the trial court erred in denying the plea to the
jurisdiction because: (a) the trial court lacked jurisdiction over the claims brought by

Socorro ISD, and (b) there is no private cause of action for alleged violations of the Family

Educational Rights and Privacy Act (FERPA); and (3) if the trial court had jurisdiction, it

erred in granting the mandamus because the Texas Public Information Act (TPIA) did not

apply to the underlying record request and IDEA was not required to seek an Attorney

General (AG) determination in order to withhold the requested information. We reverse

and render judgment dismissing Socorro ISD’s claims.

                                    I.     BACKGROUND

       Socorro ISD is an independent school district that operates public elementary and

secondary schools in the El Paso, Texas area. IDEA is a Texas nonprofit corporation

that operates public school campuses throughout the state of Texas, including the El

Paso, Texas area. In January 2018, Socorro ISD submitted a written request under the

TPIA to IDEA for:

       •   A complete Student List of 2018-19 El Paso IDEA Public Schools Lottery
           selection to include the following information; and

       •   A complete list of students selected for admission to El Paso IDEA
           Public Schools for the 2018-2019 school year to include the following
           information:

           1.   Name
           2.   Grade
           3.   Address
           4.   Telephone #
           5.   Current School District Student Attending
           6.   Current School Student Attending

IDEA denied the request outright, stating that the information was classified under

FERPA.     Socorro ISD submitted a subsequent request in March 2018, specifically

seeking applicant information from IDEA:


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      1) Names of individuals who applied to El Paso IDEA Public Schools for
         the 2018-2019 school year;

      2) Names of individuals who were selected for admission to El Paso
         IDEA Public Schools for the 2018-2019 school year via the lottery
         system; and

      3) A complete list of individuals for applied to El Paso IDEA Public Schools
         with the following information:

          1.   Name
          2.   Grade
          3.   Address
          4.   Telephone Number
          5.   Name of the Current School District Each Individual Attends
          6.   Name of the Current School Campus Each Individual Attends

Again, IDEA denied the request, this time responding:

      I am in receipt of your public information request dated March 8, 2018. The
      Texas Public Information Act excludes matters covered by FERPA. The
      United States Department of Education Family Policy Compliance Office
      has informed the Attorney General that it does not permit state and local
      educational authorities to disclose records the LEA [local educational
      agency] determines are covered by FERPA, and the TPIA itself excludes
      FERPA records. Pursuant to standing practice of the Attorney General
      “determinations under FERPA must be made by the educational authority
      in possession for [sic] the education records.” Further, the Attorney
      General’s standing decision is that “when and [sic] educational authority
      responds to a request for public information by stating the responsive
      information is covered by FERPA we must accept its statement.”

      IDEA Public Schools has determined that all of the information you have
      requested constitutes FERPA records of students that are protected and
      will not be released. We consider this request closed.

      Socorro ISD filed a petition for writ of mandamus with the trial court on May 7,

2018, seeking production of the requested information from IDEA pursuant to § 552.321

of the Texas Government Code. See TEX. GOV’T CODE ANN. § 552.321 (allowing for a

requestor to file suit for writ of mandamus to compel a governmental body to make

information available for public inspection if the governmental body refuses to request an



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attorney general’s decision). IDEA filed a plea to the jurisdiction and its original answer

on June 6, 2018. After a hearing, the trial court granted Socorro ISD’s request for

mandamus and denied IDEA’s plea to the jurisdiction. This appeal followed.

                       II.    SUBJECT MATTER JURISDICTION

       In each of its three issues, IDEA addresses the underlying crux of this case,

whether the information requested by Socorro ISD is exempted from disclosure by

FERPA. Because it implicates our subject matter jurisdiction, we first address IDEA’s

contention that Socorro ISD lacked standing to challenge IDEA’s FERPA determinations

in the trial court. This Court considers “the trial court’s order on a motion to dismiss for

lack of standing in the same manner as a plea to the jurisdiction.” Estate of Lee, 551

S.W.3d 802, 807 (Tex. App.—Texarkana 2018, no pet.). “If the evidence creates a fact

question regarding the jurisdictional issue, then the trial court cannot grant the plea to the

jurisdiction, and the fact issue will be resolved by the fact[-]finder.” Tex. Dep’t of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 227–28 (Tex. 2004). But if no fact issue exists, the

trial court decides the plea as a matter of law. Id. at 228. We review a trial court’s

determination of standing de novo. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 502

(Tex. 2010) (subject-matter jurisdiction includes the issue of standing).

       FERPA provides that an educational institution may disclose FERPA-protected

information without the consent of the student or parent to “other school officials, including

teachers within the educational institution or local educational agency, who have been

determined by such agency or institution to have legitimate educational interests.” 20

U.S.C. § 1232g(b)(1)(A) (emphasis added). Because such determinations under FERPA

must be made by the institution from whom they are requested, neither this Court, nor the



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trial court, nor the Office of the Attorney General of Texas is the proper entity to interpret

FERPA and its application to IDEA’s records. See id.; see also B.W.B. v. Eanes Indep.

Sch. Dist., No. 03-16-00710-CV, 2018 WL 454783, at *8 (Tex. App.—Austin Jan. 10,

2018, no pet.).

       FERPA creates no private right of action. See Gonzaga Univ. v. Doe, 536 U.S.

273, 290 (2002) (holding that “FERPA's nondisclosure provisions” do not create an

implied private right of action and do not create enforceable rights under § 1983); see

also B.W.B, 2018 WL 454783, at *8. Accordingly, if Socorro ISD believes that IDEA has

not properly complied with FERPA, it may file a complaint with the Department of

Education, but neither this court, nor the trial court, may be asked to enforce or interpret

FERPA “by second-guessing [IDEA’s] FERPA determinations.”                B.W.B., 2018 WL

454783, at *8; see 20 U.S.C. § 1232g(g) (“The Secretary shall establish or designate an

office and review board within the Department for the purpose of investigating,

processing, reviewing, and adjudicating violations of this section and complaints which

may be filed concerning alleged violations of this section.”).

       As explained in B.W.B., the United States Court of Appeals for the Seventh Circuit

has explained,

       FERPA, at issue in Gonzaga, directs the Secretary of Education to establish
       an office and review board for “investigating, processing, reviewing, and
       adjudicating violations of [FERPA].” 20 U.S.C. § 1232g(g). Students and
       parents who suspect a violation can file written complaints with the board,
       which can initiate investigations. See 34 C.F.R. §§ 99.63–99.67. If the
       Secretary determines that a recipient institution is failing to comply with
       FERPA and that compliance cannot be secured voluntarily, the statute
       allows the Secretary to terminate funding to the institution. 20 U.S.C. §§
       1234c(a), 1232g(f). The Gonzaga Court found that Congress’s decision to
       provide a mechanism to enforce FERPA buttressed its conclusion that the
       statute did not confer individual rights.



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B.W.B., 2018 WL 454783, at *9 (citing Indiana Prot. & Advocacy Servs. v. Indiana Family

& Soc. Servs. Admin., 603 F.3d 365, 379 (7th Cir. 2010); Doe v. Pontifical Coll.

Josephinum, No. 16AP–300 2017–Ohio–1172, 2017 WL 1180661, at *6 (Ohio Ct. App.

Mar. 30, 2017) (Brunner, J., concurring) (“Based on the plain language of the statute, the

consequence for failing to recognize FERPA rights is the denial of federal funds, not

exposure to private suit. FERPA is enforced by the United States Secretary of Education,

not by the individual legal action of an aggrieved student or parent ....”)).

        The FERPA statute sets forth the remedy allowing for investigating, processing,

reviewing, and adjudicating potential violations. See 20 U.S.C. § 1232g(g). Accordingly,

because no applicable state or federal law allows judicial review of IDEA’s FERPA

determinations, we conclude that Socorro ISD lacked standing to challenge IDEA’s

FERPA determination. Therefore, the trial court erred in granting Socorro ISD’s petition

for writ of mandamus and denying IDEA’s plea to the jurisdiction. We sustain IDEA’s

second issue. As this issue is dispositive, we need not address IDEA’s remaining issues.

See TEX. R. APP. P. 47.1. 1

                                         III.    CONCLUSION

        We reverse the trial court’s final judgment granting Socorro ISD’s petition for writ

of mandamus and denying IDEA’s plea to the jurisdiction, and we render judgment

dismissing Socorro ISD’s claims against IDEA.




        1 While the dissent argues that there is jurisdiction over this matter, it does not address IDEA’s

remaining issues before this Court. See TEX. R. APP. P. 47.1; Proenza v. State, 471 S.W.3d 35, 56 (Tex.
App.—Corpus Christi–Edinburg 2015), aff’d in part and remanded, 541 S.W.3d 786 (Tex. Crim. App. 2017)
(Garza, J., dissenting) (wherein the dissent proceeded to address remainder of appellant’s arguments on
appeal having disagreed with dispositive analysis in the majority).


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                                                      NORA L. LONGORIA
                                                      Justice

Dissenting Memorandum Opinion by Justice Benavides.

Delivered and filed the
9th day of January, 2020.




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