*RECOMMENDED FOR FULL-TEXT PUBLICATION*

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2002 FED App. 0213P (6th Cir.)

File Name: 02a0213p.06

**UNITED STATES COURT OF APPEALS**

FOR THE SIXTH CIRCUIT

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

+-----------------------------------------------------+----------------+
| United States of America,                           | No. 00-3518    |
|                                                     |                |
| *          Plaintiff-Appellee,*                     |                |
|                                                     |                |
| *          v.*                                      |                |
|                                                     |                |
| Miami University; Ohio State University,            |                |
|                                                     |                |
| *           Defendants-Appellees,*                  |                |
|                                                     |                |
| The Chronicle of Higher Education,                  |                |
|                                                     |                |
| *          Intervening*                             |                |
|                                                     |                |
| *          Defendant-Appellant.*                    |                |
+-----------------------------------------------------+----------------+

Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 98-00097\--George C. Smith, District Judge.

Argued: August 10, 2001

Decided and Filed: June 27, 2002

Before: SILER and MOORE, Circuit Judges; FORESTER, Chief District
Judge.(\*)

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

**COUNSEL**

**ARGUED:** Marc D. Mezibov, SIRKIN, PINALES, MEZIBOV & SCHWARTZ,
Cincinnati, Ohio, for Appellant. Alisa B. Klein, UNITED STATES
DEPARTMENT OF JUSTICE, CIVIL DIVISION, Washington, D.C., Gerald L.
Draper, ROETZEL & ANDRESS, Columbus, Ohio, for Appellees. **ON BRIEF:**
Marc D. Mezibov, Laura A. Abrams, Christian A. Jenkins, SIRKIN, PINALES,
MEZIBOV & SCHWARTZ, Cincinnati, Ohio, for Appellant. Alisa B. Klein,
Mark B. Stern, UNITED STATES DEPARTMENT OF JUSTICE, CIVIL DIVISION,
Washington, D.C., Gerald L. Draper, Margaret R. Carmany, ROETZEL &
ANDRESS, Columbus, Ohio, for Appellees. Adam E. Scurti, KING, HARGRAVE,
SCURT & JACK, Steubenville, Ohio, Kenneth A. Zirm, WALTER & HAVERFIELD,
Cleveland, Ohio, for Amici Curiae.

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**OPINION**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

     KARL S. FORESTER, District Judge. Intervening Defendant-Appellant
*The Chronicle of Higher Education* (\"*The Chronicle*\") contests the
district court\'s grant of summary judgment and subsequent permanent
injunction in favor of Plaintiff-Appellee the United States.
Specifically, the district court concluded that university disciplinary
records were \"educational records\" as that term is defined in the
Family Education Rights and Privacy Act (\"FERPA\"), 20 U.S.C. § 1232g,
and that releasing such records and the personally identifiable
information contained therein constitutes a violation of the FERPA. The
district court permanently enjoined the Defendants-Appellees Miami
University and The Ohio State University (\"Miami,\" \"Ohio State,\" or
collectively \"Universities\") from releasing student disciplinary
records or any \"personally identifiable information\" contained
therein, except as otherwise expressly permitted under the FERPA. For
the reasons that follow, we AFFIRM.

**I.   FACTUAL AND PROCEDURAL BACKGROUND**

     This case was born of a dispute between a university newspaper and
the university\'s administration. In the spring of 1995, the
editor-in-chief of Miami\'s student newspaper, *The Miami Student*
(\"the paper\"), sought student disciplinary records from the University
Disciplinary Board (\"UDB\") to track crime trends on campus.(1) *State
ex rel. Miami Student v. Miami University,* 680 N.E.2d 956, 957 (Ohio
1997). Miami initially refused to release the requested records, but
after the editors made a written request pursuant to the Ohio Public
Records Act, Ohio Rev. Code § 149.43, for all UDB records from
1993-1996, Miami released the records. *Id.* Pursuant to the FERPA
privacy provisions, however, Miami redacted \"from these records the
identity, sex, and age of the accuseds \[sic\], as well as the date,
time and location of the incidents giving rise to the disciplinary
charges.\" *Id.* The editors were dissatisfied with Miami\'s redacted
disclosure and subsequently filed an original mandamus action in the
Ohio Supreme Court seeking full disclosure of the UDB records, redacting
only the \"name, social security number, or student I.D. number of any
accused or convicted party.\" *Id.*

     A divided Ohio Supreme Court granted the editors a writ of
mandamus. *Id.* at 958. According to the Court, the Ohio Public Records
Act \"provides for full access to all public records upon request unless
the requested records fall within one of the specific exceptions listed
in the Act.\" *Id.* The relevant exception in the *Miami* case
\"excludes from the definition of public records those records \'the
release of which is prohibited by state or federal law.\'\" *Id.*
(quoting Ohio Rev. Code § 149.43(A)(1)(o)).(2) Relying on a Georgia
Supreme Court case,(3) the Ohio Supreme Court concluded that university
disciplinary records were not \"education records\" as defined in the
FERPA. *Id.* at 958-59. The Ohio Court reasoned that, because
disciplinary records were not protected by the FERPA, they did not fall
within the prohibited-by-federal-law exception to the Ohio Public
Records Act. *Id.* Accordingly, the Court granted a writ of mandamus
compelling Miami to provide the records requested by the editors. *Id.*
at 959-60. Miami sought United States Supreme Court review of the Ohio
decision, but the Supreme Court denied certiorari. *Miami University v.
The Miami Student*, 522 U.S. 1022 (1997).

     On the heels of the Ohio Supreme Court decision, *The
Chronicle*,(4) pursuant to the Ohio Public Records Act, made written
requests of Miami and Ohio State for disciplinary records amassed during
the calendar years 1995 and 1996. Because the Ohio Supreme Court
concluded that student disciplinary records were not educational records
covered by the FERPA, *The Chronicle* requested the records with names
intact and minimal redaction as required by the Ohio Public Records Act.
Upon receipt of the request, and in light of the Ohio Supreme Court
decision, Miami contacted the United States Department of Education
(\"DOE\") and explained that it might not be able to comply with the
FERPA.(5) The DOE told Miami that it believed the Ohio Supreme Court was
incorrect in holding that student disciplinary records are not
\"education records\" under the FERPA. *Declaration of LeRoy S. Rooker*,
J.A. at 91. The DOE assured Miami \"that the FERPA prohibits the
University from releasing personally identifiable information contained
in student disciplinary records.\" *Id.*

*     *In December of 1997, Miami complied in part with *The
Chronicle*\'s request by providing the newspaper virtually unredacted
disciplinary records from November, 1995, and November, 1996. *Id.* at
92. Miami informed the DOE that it intended to comply with the remainder
of *The Chronicle*\'s request. *Id.* In addition, Miami advised the DOE
that it \"had adopted a policy of releasing disciplinary records to any
third-party requestor.\" *Id.*

     In January of 1998, Ohio State confirmed with the DOE that it too
had received *The Chronicle*\'s request for all disciplinary records
from 1995 and 1996. *Id.* Ohio State informed the DOE that it already
had released unredacted disciplinary records from November, 1995, and
November, 1996. *Id.* Thereafter, Ohio State told the DOE that it
intended to comply with the remainder of *The Chronicle*\'s request.
*Id.*

     Shortly after the DOE learned that Miami and Ohio State intended to
release student disciplinary records containing personally identifiable
information without the consent of the student, the United States filed
the underlying complaint against the Universities.(6) In the complaint,
the DOE sought declaratory and preliminary and permanent injunctive
relief prohibiting the Universities from releasing student disciplinary
records that contain personally identifiable information, except as
permitted under the FERPA. The DOE immediately filed a motion to
preliminarily enjoin the Universities\' release of student disciplinary
records. The district court granted the motion and noted that the
parties did not dispute the material facts; therefore, the court was
left with a pure question of law.

     On February 13, 1998, *The Chronicle* filed an unopposed motion to
intervene and the district court granted the motion. *The Chronicle*
subsequently filed a motion to dismiss the action and a motion to
establish an order of procedure. The motion to dismiss contended that
the DOE lacked standing to bring this action and that the DOE\'s
enforcement power was limited to the administrative remedies outlined in
the FERPA. The second motion alleged that *The Chronicle* may dispute
certain material facts. *The Chronicle* requested a reasonable period of
time for discovery and the filing of additional affidavits to develop
those facts.

     The DOE responded to *The Chronicle*\'s motions and filed its own
motion for summary judgment. The district court denied *The
Chronicle*\'s motion to dismiss and motion for an order of procedure.
Determining that the student disciplinary records were \"education
records\" under the FERPA, the court granted the DOE\'s motion for
summary judgment and permanently enjoined the Universities from
releasing student disciplinary records in violation of the FERPA.(7)
This timely appeal followed.

**II.   *THE CHRONICLE\'S* APPEAL**

     *The Chronicle* asserts that the district court should be reversed
for several reasons. First, *The Chronicle* contends that the DOE lacks
standing to bring an action seeking injunctive relief and compliance
with the FERPA. Second, *The Chronicle* argues that the district court
erred in holding that the FERPA \"prohibits\" education records
disclosure, thereby concluding that education records were not subject
to disclosure under the Ohio Public Records Act. Instead, *The
Chronicle* contends that the district court implicitly held that the
Ohio public records law was preempted by the FERPA. Third, *The
Chronicle* alleges that the district court erred in holding that student
disciplinary records are education records within the meaning of the
FERPA. Next, *The Chronicle* contends that the district court erred by
granting summary judgment without first permitting discovery to develop
a sufficient factual record. Fifth, *The Chronicle* alleges that the
United States had an entirely adequate remedy at law and failed to show
irreparable harm; therefore, the district court erred in granting broad
permanent injunctive relief. Finally, *The Chronicle* argues that, to
the extent it prohibits disclosure of student disciplinary records, the
FERPA violates the First Amendment and the district court failed to
recognize that violation. After a recitation of the applicable standards
of review and a brief FERPA synopsis, we will address these arguments in
turn.

> **A.   Standards of Review**

     We review a district court\'s grant of summary judgment *de novo*,
using the same standard employed by the district court. *Herman Miller,
Inc. v. Palazzetti Imports and Exports*, 270 F.3d 298, 308 (6th Cir.
2001) (citing *Daddy\'s Junky Music Stores, Inc. v. Big Daddy\'s Family
Music Center*, 109 F.3d 275, 280 (6th Cir. 1997)). Summary judgment is
appropriate where \"the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.\"
Fed.R.Civ.P. 56(c). In deciding a motion for summary judgment, this
Court views the factual evidence and draws all reasonable inferences in
favor of the nonmoving party. *Herman Miller, Inc.,* 270 F.3d at 308
(citing *National Enters., Inc. v. Smith*, 114 F.3d 561, 563 (6th Cir.
1997)). Nonetheless, \"\[t\]he mere existence of a scintilla of evidence
in support of the \[nonmoving party\'s\] position will be
insufficient;\" as noted above, the requirement is that there be no
*genuine* issue of *material* fact. *Anderson v. Liberty Lobby, Inc.,*
477 U.S. 242, 248, 252 (1986) (emphasis in original).

     This Court reviews *de novo* the district court\'s determination of
whether the plaintiff had standing to bring the present case while
affording due deference to the court\'s factual determinations on the
issue. *See Coyne v. Am. Tobacco Co.*, 183 F.3d 488, 492 (6th Cir.
1999). In addition, we review issues of statutory interpretation *de
novo*. *Walton v. Hammons,* 192 F.3d 590, 592 (6th Cir. 1999).

     The decision to grant a permanent injunction is within the sound
discretion of the district court. *Kallstrom v. City of Columbus*, 136
F.3d 1055, 1067 (6th Cir. 1998) (citing *Wayne v. Village of Sebring*,
36 F.3d 517, 531 (6th Cir. 1994)). Accordingly, we review a district
court\'s grant of permanent injunction for abuse of that discretion.
*See CSX Transp., Inc. v. Tennessee State Bd. of Equalization*, 964 F.2d
548, 553 (6th Cir. 1992). \"A district court abuses its discretion when
it relies on clearly erroneous findings of fact or when it improperly
applies the law.\" *Herman Miller, Inc.,* 270 F.3d at 317 (citing
*Christian Schmidt Brewing Co. v. G. Heileman Brewing Co.*, 753 F.2d
1354, 1356 (6th Cir. 1985)). \"An abuse of discretion is defined as a
definite and firm conviction that the district court committed a clear
error of judgment.\" *Id.* (citing *Pouillon v. City of Owosso*, 206
F.3d 711, 714 (6th Cir. 2000)).

> **B.   Family Education Rights and Privacy Act**

     For the last quarter of a century, the FERPA has helped protect the
privacy interests of students and their parents. In fact, Congress
enacted the FERPA \"to protect \[parents\' and students\'\] rights to
privacy by limiting the transferability of their records without their
consent.\" Joint Statement, 120 Cong. Rec. 39858, 39862 (1974). Pursuant
to its constitutional spending power,(8) Congress provides funds to
educational institutions via the FERPA on the condition that, *inter
alia*, such agencies or institutions do not have a \"policy or practice
of permitting the release of education records (or personally
identifiable information contained therein . . . ) of students without
the written consent of \[the students or\] their parents\[.\]\" 20
U.S.C. § 1232g(b)(1). The Act also provides that \"\[n\]o funds shall be
made available under any applicable program to any educational agency or
institution which has a policy or practice of releasing, or providing
access to, any personally identifiable information in education
records,\" except as permitted by the Act. 20 U.S.C. § 1232g(b)(2).(9)
Congress also recognizes that, based upon the privacy interests
protected by the FERPA, educational institutions may withhold from *the
federal government* certain personal data on students and families.
*See* 20 U.S.C. § 1232i. Because Congress holds student privacy
interests in such high regard:

> the refusal of a\[n\] . . . educational agency or institution . . . to
> provide personally identifiable data on students or their families, as
> a part of any applicable program, to any Federal office, agency,
> department, or other third party, on the grounds that it constitutes a
> violation of the right to privacy and confidentiality of students or
> their parents, shall not constitute sufficient grounds for the
> suspension or termination of Federal assistance.

*Id.* In other words, Congress places the privacy interests of students
and parents above the federal government\'s interest in obtaining
necessary data and records. The Act broadly defines \"education
records\" as \"those records, files, documents, and other materials
which (i) contain information directly related to a student; and (ii)
are maintained by an educational agency or institution or by a person
acting for such agency or institution.\" 20 U.S.C. § 1232g(a)(4)(A).

> **C.   Standing**

     On appeal, *The Chronicle* contends that the DOE and the United
States(10) do not have standing to bring this suit for injunctive relief
because Congress has not conferred such authority upon them, and because
they are bound by the administrative remedies enumerated in the Act and
its corresponding regulations. Indeed, \"\[a\]gencies do not
automatically have standing to sue for actions that frustrate the
purposes of their statutes.\" *Dir. Office of Workers\' Compensation
Programs, DOL v. Newport News Shipbuilding and Dry Dock Co.*, 514 U.S.
122, 132 (1995). An agency garners its authority to act from a
congressional grant of such authority in the agency\'s enabling statute.
*See Louisiana Pub. Serv. Comm\'n v. FCC*, 476 U.S. 355, 374 (1986). If
Congress does not expressly grant or necessarily imply a particular
power for an agency, then that power does not exist. *See Walker v.
Luther*, 830 F.2d 1208, 1211 (2d Cir. 1987). Accordingly, we must look
to the language of the Act and its enforcement provisions to determine
whether Congress intended to provide the DOE with standing to sue for
injunctive relief.

     The express language of the FERPA provides:

> The Secretary shall take appropriate actions to enforce this section
> and to deal with violations of this section, in accordance with this
> chapter, except that action to terminate assistance may be taken only
> if the Secretary finds there has been a failure to comply with this
> section, and he has determined that compliance cannot be secured by
> voluntary means.

20 U.S.C. § 1232g(f). Standing alone, this singular provision, allowing
the Secretary to take \"appropriate actions\" to enforce this section,
arguably may not sufficiently empower the DOE to enforce the FERPA
through the courts. *Cf*. *Dir. Office of Workers\' Compensation
Programs, DOL,* 514 U.S. at 132. Congress did not resign the
Secretary\'s enforcement power to this sole, imprecise provision.
Instead, 20 U.S.C. § 1234c(a) provides that the Secretary may take the
following actions when a recipient of funds fails to comply with the
FERPA:

> \(1\) withhold further payments under that program, as authorized by
> section 1234d of this title;
>
> \(2\) issue a complaint to compel compliance through a cease and
> desist order of the Office, as authorized by section 1234e of this
> title;
>
> \(3\) enter into a compliance agreement with a recipient to bring it
> into compliance, as authorized by section 1234f of this title; or
>
> \(4\) *take any other action authorized by law with respect to the
> recipient*.

*Id.* (emphasis added). We believe that the fourth alternative expressly
permits the Secretary to bring suit to enforce the FERPA conditions in
lieu of its administrative remedies. The Fifth Circuit held as much when
reviewing a similar catch-all enforcement provision in the
Rehabilitation Act, 29 U.S.C. § 794. *See United States v. Baylor Univ.
Med. Ctr.*, 736 F.2d 1039, 1050 (5th Cir. 1984) (\"We do not mean to
imply that a federal agency seeking to enforce . . . Section 504 must
resort to administrative remedies. The statute expressly states
otherwise: an agency may resort to \'any other means authorized by
law\' - including the federal courts.\"). The District of Columbia
Circuit recognized similar alternatives under Title VI of the Civil
Rights Act. *See National Black Police Ass\'n v. Velde*, 712 F.2d 569,
575 (D.C.Cir.1983), *cert. denied*, 466 U.S. 963 (1984) (Title VI
\"allows the funding agency to effect compliance through funding
termination or \'any other means authorized by law.\' Although fund
termination was envisioned as the primary means of enforcement under
Title VI, . . . Title VI clearly tolerates other enforcement schemes.
Prominent among these other means of enforcement is referral of cases to
the Attorney General, who may bring an action against the recipient. The
choice of enforcement methods was intended to allow funding agencies
flexibility in responding to instances of discrimination.\")(footnotes
omitted).

     Having reached that conclusion, it follows that the DOE can proceed
in equity: a common and \"authorized\" means to enforce legal
obligations. After all, this Court will not lightly assume that Congress
has stripped it of its equitable jurisdiction; such departure from
equity requires a clear and valid legislative command. *See Hecht Co. v.
Bowles*, 321 U.S. 321, 329 (1944); *Porter v. Warner Holding Co.*, 328
U.S. 395, 398 (1946).

     Even in the absence of statutory authority, the United States has
the inherent power to sue to enforce conditions imposed on the
recipients of federal grants. \"\[L\]egislation enacted pursuant to the
spending power \[, like the FERPA,\] is much in the nature of a
contract: in return for federal funds, the States agree to comply with
federally imposed conditions.\" *Pennhurst State School and Hospital,*
451 U.S. at 17; *King v. Smith*, 392 U.S. 309, 333 n. 34 (1968)(\"There
is of course no question that the Federal Government, unless barred by
some controlling constitutional prohibition, may impose the terms and
conditions upon which its money allotments to the States shall be
disbursed.\"). If Congress imposes a \"condition on the grant of federal
moneys, it must do so unambiguously;\" otherwise, the State cannot
\"voluntarily and knowingly accept\[\] the terms of the \'contract.\'\"
*Id.*

     Spending clause legislation, when knowingly accepted by a fund
recipient, imposes enforceable, affirmative obligations upon the states.
*See Wheeler v. Barrera*, 417 U.S. 402, 427 (1974), *modified on another
ground,* 422 U.S. 1004 (1975) (recognizing that states and local
agencies must fulfill their part of a spending clause contract if they
choose to accept the funds); *King*, 392 U.S. at 333; *see also South
Dakota v. Dole*, 483 U.S. 203, 206-08 (1987) (noting that clearly stated
conditions permit a State to be \"cognizant of the consequences of their
participation\"). Finally, the Supreme Court repeatedly has recognized a
court\'s equitable powers to enforce spending clause obligations and
conditions under various statutes. *See Rosado v. Wyman*, 397 U.S. 397,
420-22 (1970) (enjoining the implementation of a state welfare program
because the state scheme conflicted with the spending clause conditions
in federal legislation); *Pennhurst State School and Hospital,* 451 U.S.
at 29 (listing various equitable remedies for state violations of
spending legislation conditions).

     \"Under FERPA, schools and educational agencies receiving federal
financial assistance *must* comply with certain conditions. One
condition specified in the Act is that sensitive information about
students *may not be released* without \[the student\'s\] consent.\"
*Owasso Independent School District v. Falvo,* 534 U.S. 426, 122 S.Ct.
934, 937 (2002) (emphasis added). The FERPA unambiguously conditions the
grant of federal education funds on the educational institutions\'
obligation to respect the privacy of students and their parents. *See*
20 U.S.C. § 1232g(b)(2) (precluding schools from receiving federal funds
if they maintain a policy or practice of disclosing education records
without the student\'s consent). Based upon these clear and unambiguous
terms, a participant *who accepts federal education funds* is well aware
of the conditions imposed by the FERPA and is clearly able to ascertain
what is expected of it. *See Davis v. Monroe County Bd. of Educ*., 526
U.S. 629, 640 (1999) (quoting *Pennhurst State School and Hospital*, 451
U.S. at 17). Once the conditions and the funds are accepted, the school
is indeed prohibited from systematically releasing education records
without consent.(11) Based upon the case law discussed above, we believe
that, in the alternative to its statutory authority to sue, the United
States may enforce the Universities\' \"contractual\" obligations
through the traditional means available at law. If those remedies are
inadequate, then the government may seek contractual relief through a
court of equity.

     Finally, *The Chronicle* argues that the DOE has no power to
prevent future violations of the FERPA because the statute only provides
a remedy when the recipient *\"is* *failing* to comply substantially
with any requirement of law applicable to such funds.\" 20 U.S.C. §
1234c(a) (emphasis added). *The Chronicle* contends that because
Congress couched violations in the present tense, it did not intend to
provide prior restraints such as the permanent injunction granted in
this case. We find these grammatical semantics unpersuasive. The
administrative remedies outlined in the Act encompass various forms of
forward-looking relief, designed to bring straying fund recipients into
compliance. According to the enforcement provisions, the Secretary may
withhold further payments under the program, compel compliance through a
cease and desist order, and enter into a compliance agreement. None of
these provisions imply a congressional intent to limit prospective
relief; to the contrary, it appears that Congress envisioned a broad
range of \"prior restraint\" remedies in the event that fund recipients
failed to comport with their spending clause restraints. Accordingly, we
hold that the DOE had standing to bring the case at bar.

> **D.   The FERPA, *Miami* and the Ohio Public Records Act**

     *The Chronicle* finds error in the district court\'s alleged
refusal to respect the Ohio Supreme Court\'s interpretation of the Ohio
Public Records Act, Ohio Rev. Code § 149.43. *The Chronicle* contends
that, because the Ohio Supreme Court held that disciplinary records are
not \"education records\" as defined by the FERPA, it was unnecessary
for the Court to decide whether the FERPA prohibits the disclosure of
the requested records within the meaning of Ohio Rev. Code § 149.43.
*State ex rel. Miami Student,* 680 N.E.2d at 958 n.1. The Ohio Supreme
Court noted that \"the Ohio Public Records Act is intended to be
liberally construed \'to ensure that governmental records be open and
made available to the public . . . subject to only a few very limited
and narrow exceptions.\'\" *Id.* at 958. Among those exceptions is a
provision that \"excludes from the definition of public records those
records \'the release of which is prohibited by state or federal
law.\'\" *Id.* (citing Ohio Rev. Code § 149.43(A)(1)(v)). It follows,
according to *The Chronicle*, that the district court invaded the
province of the state court when it implicitly concluded that the FERPA
\"prohibited\" the release of student disciplinary records. In reaching
that conclusion, *The Chronicle* contends that the district court
impermissibly broadened the state\'s otherwise narrow definition of the
term \"prohibit.\" We find several flaws in *The Chronicle*\'s
reasoning.

     As an initial matter, *The Chronicle* concedes that the Ohio
Supreme Court never reached the issue of whether the FERPA
\"prohibited\" the release of education records, much less student
disciplinary records as a subpart thereof. Instead, the Ohio Supreme
Court misinterpreted a *federal* statute \-- erroneously concluding that
student disciplinary records were not \"education records\" as defined
by the FERPA \-- and prematurely halted its inquiry based upon that
erroneous conclusion. We decline to speculate how the Ohio Supreme Court
might otherwise have resolved this issue. Furthermore, whether the
release of a particular record is prohibited by federal law necessarily
implicates the interpretation of that federal law. The State of Ohio
clearly recognized that necessity when it exempted from its definition
of public records those records the release of which is prohibited *by
federal law*. Ohio Rev. Code § 149.43(A)(1)(v). The prohibition finds
its root in the federal law, not the Ohio Public Records Act.
Accordingly, to the extent that the district court concluded that the
FERPA prohibited the release of education records, it did so on federal
grounds.(12)

     In this case, the United States sought declaratory and injunctive
relief against the Universities under the FERPA. Specifically, the
United States asked the district court to determine whether student
disciplinary records were \"education records\" as defined by FERPA. If
the district court concluded, as it did, that student disciplinary
records were \"education records,\" then the United States also sought
an injunction prohibiting the Universities from releasing student
disciplinary records. The issues before the district court were of
federal genesis and required no application of state law.

     The Ohio Public Records Act and the *Miami* case were neither
explicitly nor implicitly affected by the district court decision. As
noted above, the Ohio Public Records Act does not require disclosure of
records the release of which is prohibited by federal law. Ohio Rev.
Code § 149.43(A)(1)(v). Based on that exception, the Ohio Public Records
Act does not conflict with the FERPA and the state and federal statutes
can coexist. Furthermore, the *Miami* case expressly adjudicated the
relationship between two parties: Miami University and the editors of
*The Miami Student*. *See* *State ex rel. Miami Student,* 680 N.E.2d at
957. We assume that the rights and responsibilities established in that
case were satisfied long ago. Unlike the case at bar, the editors in the
*Miami* case permitted Miami to redact significantly the student
disciplinary records prior to disclosure and, in its mandamus, the Ohio
Supreme Court expanded the list of items that Miami could redact. *Id.*
at 959. After concluding that student disciplinary records were not
\"education records,\" the Court still permitted Miami to redact the
following \"personally identifiable information\" in accord with the
FERPA: the student\'s name; Social Security Number; student
identification number; and the exact date and time of the alleged
incident. *Id.* With these court-imposed redactions, the mandamus
appears to comport with the FERPA\'s requirements. *See* *id.* at 960
(COOK, J. dissenting).

     In the case *sub judice*, *The Chronicle* seeks records fraught
with personally identifiable information and virtually untainted by
redaction. Given the vast difference in the records sought by *The
Chronicle*, it is by no means clear that the *Miami* case would support,
without exception, the release of those records.

     Finally, the district court was not bound by the Ohio Supreme
Court\'s interpretation of \"education records\" under the FERPA. While
federal courts must defer to a State court\'s interpretation of its own
law, *Terminiello v. City of Chicago*, 337 U.S. 1, 4 (1949), federal
courts owe no deference to a state court\'s interpretation of a federal
statute, *Kuhnle Brothers, Inc. v. County of Geauga*, 103 F.3d 516, 520
(6th Cir. 1997) (\"Notions of federalism do not require this court to
follow a State court\'s holdings with respect to federal questions.\").

     Because the district court\'s conclusions were based entirely on
federal law, and the federal law does not conflict with state law, we
agree with the district court\'s conclusion that preemption is not
implicated in this case.

> **E.   Student Disciplinary Records, Education Records and the FERPA**

     *The Chronicle* argues that the district court erred in concluding
that student disciplinary records are \"education records\" within the
contemplation of FERPA. *The Chronicle* states that there is no evidence
that Congress ever intended the FERPA to protect records other than
those records relating to individual student academic performance,
financial aid or scholastic probation. In addition, *The Chronicle*
contends that student disciplinary records involving criminal offenses
should be construed as unprotected law enforcement records. Otherwise,
the FERPA affords \"special\" privacy rights to students that the
general public does not enjoy.

     As noted above, we review *de novo* issues of statutory
interpretation. *Walton,* 192 F.3d at 592. \"We read statutes and
regulations with an eye to their straightforward and commonsense
meanings.\" *Henry Ford Health Sys. v. Shalala*, 233 F.3d 907, 910 (6th
Cir.2000). \"When we can discern an unambiguous and plain meaning from
the language of a statute, our task is at an end.\" *Bartlik v. U.S.
Dept. of Labor*, 62 F.3d 163, 166 (6th Cir.1995). With these principles
in hand, we turn to the words of Congress for guidance on this issue.

     The FERPA broadly defines \"education records\" as \"those records,
files, documents, and other materials which (i) contain information
directly related to a student; and (ii) are maintained by an educational
agency or institution or by a person acting for such agency or
institution.\" 20 U.S.C. § 1232g(a)(4)(A). Under a plain language
interpretation of the FERPA, student disciplinary records are education
records because they directly relate to a student and are kept by that
student\'s university. Notably, Congress made no content-based judgments
with regard to its \"education records\" definition. We find nothing in
the statute or its legislative history to the contrary, and the various
state court and federal district court cases cited by *The Chronicle* do
not sway our conclusion.(13) In fact, a detailed study of the statute
and its evolution by amendment reveals that Congress intends to include
student disciplinary records within the meaning of \"education records\"
as defined by the FERPA. This intention is evinced by a review of the
express statutory exemptions from privacy and exceptions to the
definition of \"education records.\"

     The FERPA sanctions the release of certain student disciplinary
records in several discrete situations through exemption. The Act does
not prohibit disclosure \"*to an alleged victim* of any crime of
violence . . . or a nonforcible sex offense, the final results of any
disciplinary proceeding conducted by the institution against the alleged
perpetrator . . . .\" 20 U.S.C. § 1232g(b)(6)(A) (emphasis added). The
*public generally* may be informed of \"the final results of any
disciplinary proceeding conducted by \[an\] institution against a
student who is an alleged perpetrator of any crime of violence . . . or
a nonforcible sex offense, if the institution determines . . . that the
student committed a violation of the institution\'s rules or policies
with respect to such crime or offense.\" *Id.* at § 1232g(b)(6)(B).
\"\[T\]he final results of any disciplinary proceeding (i) shall include
only the name of the student, the violation committed, and any sanction
imposed by the institution on that student; and (ii) may include the
name of any other student, such as a victim or witness, only with the
written consent of that other student.\" *Id.* at § 1232g(b)(6)(C).

     These two exemptions clearly evolve from a base Congressional
assumption that student disciplinary records are \"education records\"
and thereby protected from disclosure. Working from that base, Congress
selected two particular situations in which otherwise protected student
disciplinary records may be released. And even then, Congress
significantly limits the amount of information that an institution may
release and the people to whom the institution may release such
information. In the first provision, Congress balanced the privacy
interests of an alleged perpetrator of any crime of violence or
nonforcible sex offense with the rights of the alleged victim of such a
crime and concluded that the right of an alleged victim to know the
outcome of a student disciplinary proceeding, regardless of the result,
outweighed the alleged perpetrator\'s privacy interest in that
proceeding. Congress also determined that, if the institution determines
that an alleged perpetrator violated the institution\'s rules with
respect to any crime of violence or nonforcible sex offense, then the
alleged perpetrator\'s privacy interests are trumped by the public\'s
right to know about such violations. In so doing, Congress acknowledged
that student disciplinary records are protected from disclosure but,
based on competing public interests, carefully permitted schools to
release bits of that information while retaining a protected status for
the remainder.

     Next, the disciplinary records of a student posing a significant
risk to the safety or well-being of that student, other students, or
other members of the school community may be disclosed to individuals
having a \"legitimate educational interest\[\] in the behavior of the
student.\" *Id.* at § 1232g(h)(2). This provision recognizes that a
student has a privacy interest in his or her disciplinary records, even
if those records reflect that the student poses a significant safety
risk. Congress concluded that, although such information may be included
in the student\'s education record, schools may disclose those
disciplinary records to teachers and school officials. Obviously this
narrow exemption does not contemplate release of the student
disciplinary records to the general public.

     Finally, if an institution of higher education determines that a
student, under the age of twenty-one, \"has committed a disciplinary
violation with respect to\" the use or possession of alcohol or a
controlled substance, then the institution may disclose information
regarding such violation to a parent or legal guardian of the student.
*Id.* at § 1232g(i)(1). Once again, this provision explicitly recognizes
that student disciplinary records are education records and therefore
are protected from disclosure. In spite of that protection, Congress
concluded that a parent, not the general public, had a right to know
about such violations.

     If Congress believed that student disciplinary records were not
education records under the FERPA, then these sections would be
superfluous. It is well established that a court must avoid an
interpretation of a statutory provision that renders other provisions
superfluous. *Freytag v. Commissioner of Internal Revenue*, 501 U.S.
868, 877 (1991). Congress is the appropriate body to address whether
student disciplinary records should be open to the public and under what
circumstances. Congress has proven through the exemptions discussed
above that, when faced with a situation justifying limited student
disciplinary record disclosure, it is willing and able to carefully
draft a provision permitting such disclosure. Until Congress broadens
these exemptions or otherwise alters the clear statutory language, we
must conclude that student disciplinary records remain protected under
the term \"education records.\"(14)

     In addition to the exemptions discussed above, Congress also
provided some exceptions to the \"education records\" definition.
Relevant among those exceptions, the term \"education records\" does not
include \"records maintained by a law enforcement unit of the
educational agency or institution that were created by that law
enforcement unit for the purpose of law enforcement.\" 20 U.S.C.
§ 1232g(a)(4)(B)(ii). Because law enforcement records are by definition
not education records, the FERPA does not protect law enforcement
records or place restriction on their disclosure.

     *The Chronicle* notes, without objection, that student disciplinary
proceedings can and sometimes do involve serious criminal conduct. Based
upon that fact, it argues that student disciplinary records addressing
such conduct are law enforcement records and should be disclosed to the
public. Faced with this argument and the fact that this provision is
somewhat ambiguous, the district court turned to the DOE\'s regulations
for interpretive assistance. We agree with this approach.

     In *Chevron U.S.A., Inc. v. NRDC,* 467 U.S. 837 (1984), the Supreme
Court outlined a two-step procedure to determine Congressional intent in
a statute. First, *Chevron* requires courts to determine whether
Congress has directly spoken to the precise question at issue. *Id.* at
842-43. If so, then this panel must give effect to the unambiguously
expressed intent of Congress. *Id.* If the statute is silent or
ambiguous with respect to the specific issue, this Court must defer to
the agency\'s interpretation as long as it is based on a permissible
construction of the statute. *Id.*

     We find the following definitions and interpretations to be
reasonable and permissible constructions of the relevant statute. \"A
\[l\]aw enforcement unit means any . . . component of an educational
agency or institution . . . that is officially authorized or designated
by that agency or institution to \[e\]nforce any local, State, or
Federal law . . . or \[m\]aintain the physical security and safety of
the agency or institution.\" 34 C.F.R. § 99.8(a)(1)(i),(ii). \"A
component of an educational agency or institution does not lose its
status as a law enforcement unit if it also performs other, non-law
enforcement functions for the agency or institution, including
investigation of incidents or conduct that constitutes or leads to a
disciplinary action or proceedings against the student.\" *Id.* at
§99.8(a)(2). In fact, \"\[r\]ecords created and maintained by a law
enforcement unit exclusively for a non-law enforcement purpose, such as
a disciplinary action or proceeding conducted by the educational agency
or institution\" are not records of a law enforcement unit. *Id.* at §
99.8(b)(2)(ii). In addition, \"\[i\]f a law enforcement unit of an
institution creates a record for law enforcement purposes and provides a
copy of that record to a . . . school official for use in a disciplinary
proceeding, that copy is an \'education record\' subject to FERPA if it
is maintained by the . . . school official . . . .\" 60 F.R. 3464, 3466.
Finally, \"\[e\]ducation records . . . do not lose their status as
education records and remain subject to the Act, including the
disclosure provisions . . ., while in the possession of the law
enforcement unit.\" 34 C.F.R. at § 99.8(c)(2).

     The DOE also defines disciplinary action or proceeding as \"the
investigation, adjudication, or imposition of sanctions by an
educational agency or institution with respect to an infraction or
violation of the internal rules of conduct applicable to students of the
agency or institution.\" *Id.* at § 99.3. With these definitions in
mind, the DOE states that, \"\[i\]n contrast to law enforcement unit
records, the Department has been legally constrained to treat the
records of a disciplinary action or proceeding as \'education records\'
under FERPA (20 U.S.C. 1232g), that is, protected against non-consensual
disclosure except in statutorily specified circumstances.\" 60 F.R.
3464, 3464. Finally, the DOE concludes that \"all disciplinary records,
including those related to non-academic or criminal misconduct by
students, are \'education records\' subject to FERPA.\" 60 F.R. 3464,
3465.

     The agency draws a clear distinction between student disciplinary
records and law enforcement unit records. The former are protected as
\"education records\" under the FERPA without regard to their content
while the latter are excluded from the definition of \"education
records\" and receive no protection by the FERPA. In the records request
that gave rise to the underlying suit and this appeal, *The Chronicle*
asked Miami and Ohio State to please send \"copies of records of all
disciplinary proceedings handled by the university\'s internal judicial
system for the calendar years 1995 and 1996.\" *The Chronicle Requests*,
J.A. at 425-26. Even though some of the disciplinary proceedings may
have addressed criminal offenses that also constitute violations of the
Universities\' rules or policies, the records from those proceedings are
still protected \"education records\" within the meaning of the
FERPA.(15)

> **F.   The Right to Discovery**

     *The Chronicle* contends that the district court committed
reversible error when it declined to allow discovery in this matter. In
its motion to establish an order of procedure, *The Chronicle* asked the
district court, pursuant to Fed. R. Civ. P. 56(f), for an order
establishing a cut-off date for discovery, a deadline for motions, and a
date for an evidentiary hearing. The district court denied this motion,
concluding that there were no genuine issues of material fact. We agree.

     The district court\'s decision not to permit *The Chronicle*
discovery before ruling on the motion for summary judgment and permanent
injunction is reviewed by this Court for abuse of discretion. *See Good
v. Ohio Edison Co.*, 149 F.3d 413, 422 (6th Cir. 1998). An evidentiary
hearing typically is required before an injunction may be granted, but a
hearing is not necessary where no triable issues of fact are involved.
*See United States v. McGee*, 714 F.2d 607, 613 (6th Cir. 1983). \"This
court requires \'\[a\] party invoking \[Rule 56(f)\] protections \[to\]
do so in good faith by affirmatively demonstrating \... how postponement
of a ruling on the motion will enable him, by discovery or other means,
to rebut the movant\'s showing of the absence of a genuine issue of
fact.\'\" *Good*, 149 F.3d at 422 (citing *Emmons v. McLaughlin*, 874
F.2d 351, 356 (6th Cir.1989) (additional citations omitted)).

     *The Chronicle* lists three areas in which permitting discovery
could have led to questions of material fact. *The Chronicle* contends
that a close review of the UDB proceedings would have shed light on
whether any or all of the disciplinary records generated are \"education
records\" or \"law enforcement records\" within the meaning of FERPA.
This question is answered by law not by fact. The Universities and the
DOE conceded that some disciplinary proceedings address criminal
conduct; through deference to the DOE\'s rules and regulations, we
conclude as a matter of law that such records are education records
nonetheless. Next, *The Chronicle* contends that additional discovery
would have allowed it to test the DOE\'s claim of irreparable harm. As
we discuss below, based upon the facts in the record, the harm in
releasing student disciplinary records was indeed irreparable and no
amount of discovery could possibly change that. The district court did
not abuse its discretion in denying discovery. Finally, *The Chronicle*
argues that it might have uncovered facts refuting the DOE\'s claim that
criminal statistic availability satisfied *The Chronicle\'s* First
Amendment rights. This information is irrelevant because student
disciplinary proceedings are not criminal proceedings. The Constitution
does not guarantee any rights to the records relating to student
disciplinary proceedings.

     The district court was faced with questions of law and additional
discovery would not aid in the resolution of those questions.
Accordingly, the district court did not abuse its discretion when it
denied *The Chronicle\'s* motion for discovery and a hearing.

> **G.   Injunctive Relief**

     The district court permanently enjoined the Universities \"from
releasing student disciplinary records or any \'personally identifiable
information\' contained therein, as defined in \[the\] FERPA and its
corresponding regulations, except as otherwise expressly permitted under
\[the\] FERPA.\" *The* *Chronicle* contends that the DOE failed to
establish the necessary prerequisites to secure a permanent injunction.
It follows, according to *The Chronicle*, that the district court abused
its discretion in granting such extraordinary relief without sufficient
support.

     \"In order to obtain either a preliminary or permanent injunction,
\[a party\] must demonstrate that failure to issue the injunction is
likely to result in irreparable harm.\" *Kallstrom v. City of Columbus*,
136 F.3d 1055, 1068 (6th Cir. 1998). In addition, the party seeking
injunctive relief generally must show that there is no other adequate
remedy at law. *See id.* at 1067; *see also Weinberger v.
Romero-Barcelo*, 456 U.S. 305, 311-320 (1982) (\"The Court has
repeatedly held that the basis for injunctive relief in the federal
courts has always been irreparable injury and the inadequacy of legal
remedies.\") (citations omitted). If injunctive relief is proper, it
should be no broader than necessary to remedy the harm at issue.
*Kallstrom,* 136 F.3d at 1069.

     As an initial matter, the DOE contends that irreparable harm is
presumed because the FERPA statutory scheme authorizes the government to
obtain injunctive relief to prevent violations. In support of this
proposition, the DOE cites *CSX Transp., Inc. v. Tennessee State Bd. of
Equalization,* 964 F.2d 548, 551 (6th Cir. 1992), and other cases from
the Eighth and Ninth Circuits. *See, e.g., United States v. Odessa
Union*, 833 F.2d 172, 175 (9th Cir. 1987); *Burlington Northern R.R. v.
Bair*, 957 F.2d 599, 601 (8th Cir. 1992). *CSX* held that when:

> Congress has expressly authorized the granting of injunctive relief to
> halt or prevent a violation of \[a statute\], traditional equitable
> criteria do not govern the issuance of preliminary injunctions under
> \[that statute\]. In order to issue a preliminary injunction under
> \[the statute\], a court must determine only whether there is
> \"reasonable cause\" to believe that a violation of \[the statute\]
> has occurred or is about to occur.

964 F.2d at 551 (citations omitted). However, the statute in *CSX*
\"expressly conferred jurisdiction on United States district courts \'to
grant such mandatory and prohibitive injunctive relief . . . as may be
necessary to prevent, restrain, or terminate\' any violations of the
section.\" *Id.* at 550.(16) The Eighth and Ninth Circuits interpreted
identical or similar language.

     When a recipient of funds fails to comply with the FERPA, Congress
permits the Secretary of Education to \"take any . . . action authorized
by law with respect to the recipient.\" 20 U.S.C. § 1234c(a)(4). While
this provision certainly permits the DOE to bring a cause of action,
including, *inter alia*, an action for injunctive relief, it does not
expressly authorize the granting of injunctive relief to halt or prevent
a violation of the FERPA. *Cf. CSX Transportation, Inc.*, 964 F.2d at
551. Given the assortment of remedies available in the FERPA, Congress
by no means foreclosed the exercise of equitable discretion. *Compare*
*Weinberger,* 456 U.S. at 311-320 (providing a thorough discussion of
instances when courts should and should not balance equitable
considerations) *with United States v. Szoka***,** 260 F.3d 516, 523-24
(6th Cir. 2001)(discussing a statute in which Congress foreclosed the
exercise of equitable discretion). Accordingly, the \"reasonable cause\"
standard enunciated in *CSX* does not apply to the instant case and we
must embrace our traditional role in equity.(17)

     Our first step is to determine whether \"failure to issue the
injunction is likely to result in irreparable harm.\" *Kallstrom*, 136
F.3d at 1068. With that in mind, we consider the express purposes of the
FERPA as well as the parties and interests involved in this litigation.

     One explicit purpose of the FERPA is \"to protect \[students\'\]
rights to privacy by limiting the transferability of their records
without their consent.\" Joint Statement, 120 Cong. Rec. 39858, 39862
(1974).(18) Congress effectuated this purpose by providing that: \"No
funds shall be made available under any applicable program to any
educational agency or institution which has a policy or practice of
releasing, or providing access to, any personally identifiable
information in education records.\" 20 U.S.C. § 1232g(b)(2).(19)
Therefore, the Universities\' continued release of student disciplinary
records clearly will injure the reputations of the students involved,
including the perpetrator, the victim and any witnesses. In addition,
the inherent privacy interest that Congress sought to protect will be
greatly diminished. Once personally identifiable information has been
made public, the harm cannot be undone.

     \"When a specific interest and right has been conferred upon the
United States by statute, the remedies and procedures for enforcing that
right are not to be narrowly construed so as to prevent the effectuation
of the policy declared by Congress.\" *United States v. York*, 398 F.2d
582, 586 (6th Cir. 1968). The United States (and the DOE) brought this
action to enforce the Universities\' guarantees and to protect the
privacy interests of the students at those Universities.(20) To be sure,
ours is a \"government of the people, by the people, for the people.\"
A. Lincoln, *Gettysburg Address* (1863) (quoted in *U.S. Term Limits,
Inc. v. Thornton*, 514 U.S. 779, 821 (1995)). It logically follows that
if Congress values the privacy interests acknowledged in the
Congressional record, and authorizes the DOE to enforce those privacy
interests, it must also contemplate that the DOE experiences the
irreparable harm suffered by those students whose privacy interests are
violated. *See generally United States v. City and County of San
Francisco*, 310 U.S. 16, 29-31 (1940) (interpreting a statute that
allowed the United States to enjoin San Francisco, presumably for the
benefit of the City\'s citizens, without requiring the United States to
show irreparable harm); *see also Board of Comm\'rs of Jackson County v.
United States*, 308 U.S. 343, 349 (1939) (recognizing the United
States\'s authority to enforce a treaty and in so doing, sue on behalf
of a Native American who had been improperly taxed by Jackson County,
Kansas). Viewing this conclusion in conjunction with the fact that
Congress granted the DOE authority to sue, presumably for injunctive
relief, to enforce the Universities\' obligations under the FERPA, we
find that the DOE will suffer irreparable harm if the Universities are
not enjoined from releasing the subject student disciplinary records.

     Moreover, millions of people in our society have been or will
become students at an educational agency or institution, and those
people are the object of FERPA\'s privacy guarantees. Accordingly,
systematic violations of the FERPA provision result in appreciable
consequences to the public and no doubt are a matter of public interest.
*See Virginia Railway v. System Federation No. 40*, 300 U.S. 515, 552
(1937). In cases involving the public interest as defined or protected
by an Act of Congress, courts have long held that equitable discretion
\"must be exercised in light of the large objectives of the Act. For the
standards of the public interest not the requirements of private
litigation measure the propriety and need for injunctive relief in these
cases.\" *Hecht*, 321 U.S. at 331. \"Courts of equity may, and
frequently do, go much farther both to give and withhold relief in
furtherance of the public interest than they are accustomed to go when
only private interests are involved.\" *Virginia Railway,* 300 U.S. at
552 (citations omitted). Based on this broad grant of equitable
discretion, we conclude that the United States must represent the public
interests at stake. In light of the noble and broad objectives of the
FERPA and the irreparable harm to the public interest, injunctive relief
was appropriate in this case.

*     The Chronicle* also argues that 20 U.S.C. § 1232a prevents the
district court\'s injunction. In sum, the statute states that no
provision \"shall be construed to authorize any department, agency,
officer, or employee of the United States to exercise any direction,
supervision, or control over \... any educational school system.\" *Id.*
\"\[T\]his concern was directed primarily at the possibility of
\[DOE\'s\] assuming the role of a national school board,\" but it may
also apply if a federal court plays \"an overly active role in
supervising\" a state\'s expenditures of federal funding. *Wheeler v.
Barrera*, 417 U.S. at 416-19; *see also Crawford v. Pittman*, 708 F.2d
1028, 1036 (5th Cir. 1983). The district court does not take an overly
active role in the Universities\' function and the injunction does not
involve supervision of a state\'s expenditures. \"Our decision requires
only that \[the Universities\] fulfill the contract\[s\] \[they\] made
when \[they\] chose to receive federal moneys under the Act.\"
*Crawford*, 708 F.2d at 1036. We reject *The Chronicle\'s* argument
under § 1232a.

     Based upon the foregoing analysis, we hold that continued release
of student disciplinary records will irreparably harm the United States
and the DOE. Before a permanent injunction issues, however, we must
determine whether there is any other adequate remedy at law.
*Kallstrom*, 136 F.3d at 1067. *The Chronicle* contends that money
damages or administrative remedies will satisfy the injuries suffered by
the DOE. Even if equitable relief is appropriate, *The Chronicle*
believes that the district court\'s blanket injunction is too broad.

     \"\[A\]n injury is not fully compensable by money damages if the
nature of the plaintiff\'s loss would make damages difficult to
calculate.\" *Basicomputer Corp.*, 973 F.2d at 511. In general, a loss
of privacy and injury to reputation are difficult to calculate. These
difficulties are compounded by the fact that the DOE or *The Chronicle*
have no way of knowing how many people would require compensation and
how much money would compensate each injury. Moreover, we have already
concluded that the harm suffered by the myriad number of students
affected by the continued release of student disciplinary records is
irreparable, and by definition, not compensable. Accordingly, money
damages are insufficient relief.

     Second, none of the administrative remedies authorized by the FERPA
would stop the violations. The Ohio Supreme Court\'s decision in *Miami*
serves as precedent to compel Miami and Ohio State to release student
disciplinary records in the absence of a federal court injunction. Thus,
it would be nearly impossible to obtain voluntary compliance under 20
U.S.C. § 1234c(a)(3). Cutting off federal funding under 20 U.S.C. §
1234c(a)(1) would be detrimental to the Universities\' educational
purpose and would injure more students than it would protect.
Furthermore, it would not guarantee compliance with the purpose of the
FERPA because the defendants would still feel constrained to follow the
Ohio Supreme Court\'s interpretation of the Act.

     Next, a cease and desist order under 20 U.S.C. § 1234c(a)(2) is
inadequate for two reasons. First, it requires new enforcement measures
each time a violation occurs. Second, as the district court noted, a
cease and desist order is not self-executing \-- it can only be enforced
by withholding funds or by referring the matter to the Attorney General
for enforcement. We have already noted that withholding funds is
inadequate and piecemeal enforcement leads to intermittent violative
releases that would otherwise be protected by permanent injunctive
relief. Having balanced the alternatives, the district court\'s
permanent injunction was not an abuse of discretion.

     Finally, *The Chronicle* contends that the district court\'s
injunction was too broad. Courts regularly have afforded much more
invasive relief, with less consideration, as a result of state
violations of spending conditions. *See, e.g., King*, 392 U.S. at 332-33
(striking a state regulation as invalid because it defined a term in a
manner that was inconsistent with the spending clause condition);
*Townsend v. Swank*, 404 U.S. 282, 285-86 (1971) (striking a state
statute without even addressing the form of relief); *Rosado v. Wyman*,
397 U.S. 397, 420-22 (1970) (enjoining the release of federal welfare
funds). Over the years, courts have expressed a reluctance to require
states to expend a great deal of their own revenue to comply with
federal spending conditions, *see Rosado*, 397 U.S. at 421, and have
declined to enforce open-ended and potentially burdensome obligations,
*see* *Pennhurst State School and Hospital*, 451 U.S. at 29. Instead,
courts generally seem to prefer prospective relief like the permanent
injunction issued in this case. *See id.* Because this injunction is
crafted to protect the privacy interests embodied in the FERPA, and is
narrowly tailored to enjoin only the release of student disciplinary
records or any personally identifiable information contained therein,
except as otherwise expressly permitted under the FERPA, we conclude
that the district court did not abuse its discretion in granting such
relief.(21)

> **H.   The First Amendment**

     *The Chronicle* contends that there is a First Amendment right of
access to student disciplinary records detailing criminal activities and
punishment. To the extent that the permanent injunction limits access to
those documents, *The Chronicle* argues that it constitutes a violation
of *The Chronicle\'s* First Amendment rights.

     \"It has generally been held that the First Amendment does not
guarantee the press a constitutional right of special access to
information not available to the public generally.\" *Branzburg v.
Hayes*, 408 U.S. 665, 684-85 (1972). Moreover, \"\[t\]he Constitution
itself is \[not\] a Freedom of Information Act,\" permitting the release
of government records at the will of the public. *Houchins v. KQED,
Inc.*, 438 U.S. 1, 14 (1978). \"Neither the First Amendment nor the
Fourteenth Amendment mandates a right of access to government
information or sources of information within the government\'s
control.\" *Id.* at 15.

     That being said, the Supreme Court repeatedly has recognized a
First Amendment right of access to criminal trials, proceedings, and
records. *Richmond Newspapers v. Virginia*, 448 U.S. 555, 580 (1980)
(\"the right to attend criminal trials is implicit in the guarantees of
the First Amendment\").(22) As the Supreme Court explained, a qualified
right of access attaches where (1) the information sought has
\"historically been open to the press and general public\"; and (2)
\"public access plays a significant positive role in the functioning of
the particular process in question\[.\]\" *Press-Enter. Co. v. Superior
Court (Press Enterprise II)*, 478 U.S. 1, 8 (1986) (applying this test
and recognizing a qualified right of access to a preliminary hearing
transcript in a criminal matter). Once the qualified First Amendment
right of access attaches, it can \"be overcome only by an overriding
interest based on findings that closure is essential to preserve higher
values and is narrowly tailored to serve that interest.\"
*Press-Enterprise Co. v. Superior Court (Press Enterprise I )*, 464 U.S.
501, 510 (1984). \"The right of access is not absolute, however, despite
these justifications for the open courtroom.\" *Brown & Williamson
Tobacco Corp.*, 710 F.2d at 1179.

     From the outset, *The Chronicle* colors certain student
disciplinary proceedings as criminal proceedings. First, *The Chronicle*
notes that university disciplinary boards adjudicate various infractions
of student rules and regulations which may include: underage drinking;
physical and sexual assault; and theft and destruction of property. It
then contends that, by hearing these cases, the university disciplinary
boards interfere with the traditional criminal prosecutions that would
otherwise remedy this criminal behavior. If these cases were instead
handled through traditional criminal prosecutions, *The Chronicle*
argues, then the First Amendment would undeniably require access to the
underlying criminal trials, proceedings and records. That these
ostensibly criminal activities are dressed up as student rule
infractions does not change the fact that student disciplinary boards
are adjudicating criminal matters, and those criminal matters have
historically enjoyed open access to the press and general public.

     In drawing these conclusions, *The Chronicle* omits a few important
facts. University disciplinary proceedings are not criminal proceedings
despite the fact that some behavior that violates a university\'s rules
and regulations may also constitute a crime. For many reasons, student
disciplinary proceedings do not \"afford the student the opportunity to
secure counsel, to confront and cross-examine witnesses supporting the
charge, or to call his own witnesses to verify his version of the
incident.\" *Goss v. Lopez*, 419 U.S. 565, 583 (1975). Not only are
students often denied the procedural due process protections cherished
by our judicial system, they are also denied procedural finality. The
protections against \"double jeopardy\" do not attach to university
disciplinary proceedings; therefore, as the Ohio State and Miami student
handbooks explain, a student may be disciplined or sanctioned by the
Universities and still be subject to local, state or federal criminal
prosecution for the same offense.(23) This is true because student
disciplinary proceedings govern the relationship between a student and
his or her university, not the relationship between a citizen and \"The
People.\" Only the latter presumptively implicates a qualified First
Amendment right of access to the proceedings and the records. *See
Richmond Newspapers*, 448 U.S. at 580; *Press Enterprise II*, 478 U.S.
at 8.

     In *Cincinnati Gas and Elec. Co. v. General Elec. Co.*, the
district court ordered the parties to participate in a summary jury
trial which was to be closed to the press and the public. 854 F.2d 900,
901-02 (6th Cir. 1988), *cert. denied*, 489 U.S. 1033 (1989). Various
newspapers moved to intervene for the limited purpose of challenging
closure of the summary jury trial proceeding. *Id.* at 902. The district
court denied the newspapers\' motion and the newspapers appealed. On
appeal, the newspapers argued, *inter alia*, that \"the summary jury
proceeding is analogous in form and function to a civil or criminal
trial on the merits, and therefore, the First Amendment right of access
which encompasses civil and criminal trial . . . proceedings also
encompasses the summary jury proceedings.\" *Id.* at 902. Rejecting the
analogy, this Court pointed to the \"manifold differences\" between
summary jury proceedings and a \"real trial.\" *Id*. at 904. In addition
to several procedural differences similar to those in the case *sub
judice*, the Court found it \"important to note that the summary jury
trial does not present any matter for adjudication *by the court*,\"
despite the fact that the district court judge ordered the proceeding
which takes place in a federal courthouse and is overseen by a federal
judge. *Id.*; *see also In re Cincinnati Enquirer*, 94 F.3d 198 (6th
Cir. 1996), *cert. denied*, 520 U.S. 1104 (1997).

     Similarly, while student disciplinary proceedings may resemble a
criminal trial in some limited respects and while certain university
rule and regulation violations may also constitute criminal behavior,
student disciplinary proceedings do not present matters for adjudication
by a court of law. *See First Amendment Coalition v. Judicial Inquiry
and Review Board*, 784 F.2d 467, 471-77 (3d Cir. 1986) (*en banc*)
(denying right of access to judicial disciplinary proceedings and
records unless the records subsequently are filed in a court of law);
*Jessup v. Luther*, 277 F.3d 926, 928-29 (7th Cir. 2002) (noting that
settlement agreements and arbitrations are private documents subject to
a right of access only when filed in the court record); *United States
v. El-Sayegh*, 131 F.3d 158, 162-63 (D.C. Cir. 1997) (holding that there
is no First Amendment or common law right of access to documents which
played no role in a judicial decision). Therefore, we decline to
evaluate student disciplinary proceedings with the same deferential eye
toward First Amendment access as we would government criminal
proceedings.

     With that in mind, we turn to the two-part test applied by courts
when determining whether a qualified First Amendment right of access
attaches in a particular situation. First, we must consider whether
student disciplinary proceedings and records \"historically \[have\]
been open to the press and general public.\" *Press Enterprise II*, 478
U.S. at 8. The question is as easily answered as it is raised. Student
disciplinary proceedings have never been open to the public and until
the Ohio Supreme Court decision in *Miami*, they were presumed to be
protected by the FERPA. This conclusion is supported by the fact that
*The Chronicle* filed its record request with the Universities a mere
five days after the Ohio Supreme Court concluded that student
disciplinary records were not \"education records\" within the meaning
of the FERPA. Moreover, if student disciplinary proceedings were
historically open to the public, then a request \"for records of all
disciplinary proceedings handled by the university\'s internal judicial
system for calendar years 1995 and 1996\" would not have sparked so much
controversy. Clearly student disciplinary proceedings do not satisfy the
first prong of the test. *See First Amendment Coalition*, 784 F.2d at
471-77.

     In addition, \"public access \[does not\] play\[\] a significant
positive role in the functioning of the particular process in
question\[.\]\" *Press Enterprise II*, 478 U.S. at 8. A university is an
\"academic institution, not a courtroom or administrative hearing
room.\" *Board of Curators v. Horowitz*, 435 U.S. 78, 88 (1977). As we
noted earlier, student disciplinary proceedings exclusively affect the
relationship between a particular student and the university. Not only
do the rules, regulations and proceedings define the terms of that
relationship, they also serve as an effective part of the teaching
process. *See Goss*, 419 U.S. at 583. Public access will not enhance
this relational determination, nor will it aid in the student\'s
education. In fact, due to inevitably heightened public scrutiny, public
access to disciplinary proceedings may force universities to afford
students more procedural due process protections than are required by
the Constitution. As the Supreme Court noted, enhanced procedural
requirements \"may not only make \[student disciplinary proceedings\]
too costly as a regular disciplinary tool but \[it may\] also destroy
\[the proceedings\'\] effectiveness as part of the teaching process.\"
*Id.* We find that public access will not aid in the functioning of
traditionally closed student disciplinary proceedings; accordingly, *The
Chronicle* does not enjoy a qualified First Amendment right of access to
such proceedings.(24)

     Finally, a denial of access to student disciplinary records does
not prevent *The Chronicle* from obtaining information about crime on
university campuses. Pursuant to the district court\'s injunction, *The
Chronicle* may still request student disciplinary records that do not
contain personally identifiable information. Nothing in the FERPA would
prevent the Universities from releasing properly redacted records. In
addition, the Student Right-to-Know and Campus Security Act requires
universities to publish statistics concerning the occurrence of various
campus crimes including: murder; sex offenses (forcible or nonforcible);
violent hate crimes; robbery; burglary; motor vehicle theft; aggravated
assault; arson; weapons violations; liquor-law violations; and drug
related violations. *See* 20 U.S.C. § 1092 (f)(1)(F). *The Chronicle*
indeed has access to student disciplinary records and crime related
statistics, just not the unfettered access it hoped to secure.

**III.   CONCLUSION**

     Because the district court\'s grant of summary judgment was
consistent with legal precedent and sound statutory interpretation, and
because the district court did not abuse its discretion in denying
discovery or granting a permanent injunction, we AFFIRM.

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  Footnotes

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     **^\*^**The Honorable Karl S. Forester, United States Chief
District Judge for the Eastern District of Kentucky, sitting by
designation.

     **^1^** Later that year, the editor-in-chief\'s successor joined in
her pursuit to obtain the student disciplinary records, hereinafter
collectively referred to as the \"editors.\"

     **^2^** The Ohio Legislature subsequently amended the Ohio Public
Records Act and the pertinent provision is now found at Ohio Rev. Code
§ 149.43(A)(1)(v). The Court will use the updated citation for the
remainder of the opinion.

     **^3^** *Red & Black Publishing Co. v. Bd. of Regents of Univ. Sys.
of Georgia*, 427 S.E.2d 257 (Georgia 1993).

     **^4^** *The Chronicle* states that it is \"engaged in the business
of publishing and distributing a national weekly newspaper, . . . that
is the preeminent source of information about higher education in the
United States.\" *The Chronicle*\'s *Motion to Intervene* in the
underlying district court case, J.A. at 102.

     **^5^** When an educational agency or institution believes that it
cannot comply with the FERPA due to a potential conflict with state
laws, it must notify the DOE, citing the potentially conflicting law.
*See* 34 C.F.R. § 99.61.

     **^6^** The United States brought the underlying action on its own
behalf and on behalf of the United States Department of Education,
hereinafter referred to collectively as the \"DOE.\"      

     **^7^** Given this author\'s intimate familiarity with the caseload
and backlog facing district court judges across the country, Judge
George Smith should be commended for his remarkably detailed and
insightful opinion and order in this case. *See United States v. Miami
University*, 91 F.Supp.2d 1132 (S.D.Ohio 2000).

     **^8^** \"The Congress shall have the Power to . . . provide for
the . . . general Welfare of the United States\[.\]\" U.S. Const. art.
I, § 8, cl. 1. The Constitutional spending power permits Congress to fix
the terms on which it disburses federal money to the states, and to
receive those funds, the states must agree to comply with clearly
stated, federally imposed conditions. *See Pennhurst State School and
Hospital v. Halderman*, 451 U.S. 1, 17 (1981).     

     **^9^** The DOE\'s definition of \"personally identifiable
information\" includes the student\'s name, a family member\'s name, the
address of the student or family member, personal identifiers such as
the student\'s social security number or student number, and personal
characteristics or other information that would make the student\'s
identity easily traceable. *See* 34 C.F.R. § 99.3

     **^10^** As noted earlier, the United States sued on its own behalf
and on behalf of the DOE. When faced with this situation, other courts
have held that the United States may sue in its own name even though a
statute bestows enforcement rights and obligations on a federal agency.
*See, e.g., United States v. Stuart*, 392 F.2d 60, 64 (3d Cir.1968)
(\"\[T\]he SBA is a nonincorporated federal agency and an integral part
of the United States Government; \[\]while the Administrator may sue,
the United States may also sue on this type of claim as the real party
in interest.\")

     **^11^** We limit this conclusion, that the FERPA imposes a binding
obligation on schools that accept federal funds, to federal government
action to enforce the FERPA. In *Gonzaga University v. Doe*, the Supreme
Court held that the FERPA does not create personal rights that an
individual may enforce through 42 U.S.C. § 1983. 536 U.S. \_\_\_, slip
op. at 1, 2002 WL 1338070, at \* 3 (June 20, 2002).

     **^12^** This conclusion is distinguishable from the Supreme
Court\'s holding on the application of federal versus state law in
*Wheeler v. Barrera*, 417 U.S. at 416-19. In that case, the Court held
that state law controlled the decision of \"whether federal aid is money
\'donated to any state fund for public school purposes,\' within the
meaning of the Missouri Constitution, Art. 9, § 5.\" *Id.* The Missouri
Constitution broadly described its fund pool for public schools and did
not provide an explicit exception for funds received from the federal
government. *Id.* In the case at bar, the Ohio legislators explicitly
exempted from the definition of public records any records the release
of which is prohibited by federal law.

     **^13^** Some exemptions and exceptions, both in the statute and
the DOE\'s regulations, have been added in response to those cases cited
by *The Chronicle*.

     **^14^** If we were unable to determine whether student
disciplinary records were education records from the plain language in
the statute, we would of course defer to a reasonable agency
interpretation of the issue. In 1995, the DOE made the following
conclusion:

> Based on the broad definition of \'education records,\' which includes
> those records, files, documents, and other materials that contain
> information directly related to a student, except those that are
> specifically excluded by statute, all disciplinary records, including
> those related to non-academic or criminal misconduct by students, are
> \'education records\' subject to FERPA.

60 F.R. 3464, 3465 (1995). Given the fact that the DOE reached the same
conclusion that we did, we find it to be a well reasoned and permissible
construction of the statutory language and we would adopt the DOE\'s
construction.

     **^15^** The holding in *Bauer v. Kincaid*, 759 F.Supp. 575
(W.D.Mo. 1991), does not affect this conclusion. Having closely reviewed
*Bauer*, we believe that the records sought in that case, criminal
investigation and incident records compiled and maintained by the
Southwest Missouri State University Safety and Security Department,
would likely fall within the *current* law enforcement unit records
exception. In fact, the subsequent amendments to the FERPA and its
regulations were likely designed to bring the *Bauer* documents clearly
within the law enforcement unit records exception. *See* 20 U.S.C. §
1232g(a)(4)(B)(ii); 34 C.F.R. § 99.8(a)(1)(i),(ii). It goes without
saying, however, that the records sought in *Bauer*, incident and
criminal investigation reports gathered and maintained by a campus
safety and security department, are entirely different than the records
sought by *The Chronicle* in this case, *to wit*, copies of records of
all disciplinary proceedings handled by the university\'s internal
judicial system.

     **^16^** The original section of the statute involved in *CSX*
expressly provided for injunctive relief. *See* § 306(2) of the Railroad
Revitalization and Regulatory Reform Act of 1976, originally codified at
49 U.S.C. § 26c (1976). When the Act was recodified at 49 U.S.C. §
11503(c), the express authority to enjoin was omitted from the statute,
but Congress stated that language changes that occurred during
recodification were not intended to be substantive. Therefore, the court
held that § 11503(c) still expressly granted \"the authority to district
courts to issue injunctive relief to prevent or terminate violations.\"
*CSX*, 964 F.2d at 550.

     **^17^** Because the statute in this case clearly is
distinguishable from the statute in *CSX*, we express no opinion as to
the validity of the \"reasonable cause standard\" in general.

     **^18^** Ten years before Congress enacted the FERPA, the Supreme
Court surmised that \"the First Amendment has a penumbra where privacy
is protected from governmental intrusion.\" *Griswold v. Connecticut*,
381 U.S. 479, 482 (1965). Accordingly, certain student privacy interests
are recognized in the FERPA and may find protection in the Constitution.

     **^19^** As we noted above, this provision creates a binding
obligation on schools that accept federal funds not to release education
records without consent. The FERPA provisions permit the DOE to enforce
this obligation.

     **^20^** Congress did not establish individually enforceable rights
through the FERPA. *Gonzaga University*, 536 U.S. \_\_\_, slip op. at
12-13, 2002 WL 1338070, at \*9. Instead, Congress acknowledged
students\' and parents\' privacy interests as a whole and empowered the
DOE to protect those interests when a University systemically ignores
its obligations under the FERPA. *See id.* *See also* 20 U.S.C. § 1232g
(b)(1)-(2), § 1234c (a).

     **^21^** We note that if Congress changes the definition of
\"education records\" or otherwise alters the balance struck in the
FERPA such that a different interpretation of student disciplinary
records must be reached, or the DOE changes its interpretation of law
enforcement unit records, *The Chronicle* or the Universities may move
the district court to lift the injunction. Moreover, if the Universities
choose to discontinue their receipt of federal education funds, then
they may also move the court to lift the injunction and release student
disciplinary records to the extent authorized by law.

     **^22^** In the heat of these landmark Supreme Court decisions,
this Court concluded that \"\[t\]he Supreme Court\'s analysis of the
justifications for access to the criminal courtroom apply as well to the
civil trial.\" *Brown & Williamson Tobacco Corp. v. F.T.C.*, 710 F.2d
1165, 1178 (6th Cir. 1983) (vacating the lower court\'s order to seal
certain F.T.C. documents filed in the court\'s record during a
preenforcement challenge to proposed changes in cigarette testing)
(citing *Richmond Newspapers,* 448 U.S. at 580 n.17 (noting that
historically civil trials have been presumptively open, but declining to
decide whether they enjoy a First Amendment right of access because the
issue was not before the Court)), *cert. denied*, 465 U.S. 1100 (1984).
*See, e.g., Smith v. United States Dist. Court*, 956 F.2d 647, 650 (7th
Cir.1992) (recognizing a right of access to civil proceedings).

     **^23^** *Code of Student Conduct*, Miami University, 3, J.A. 524;
*Code of Student Conduct*, The Ohio State University, 85, J.A. 546.
\"Students are also advised that a disciplinary action by the University
does not preclude the possibility that a separate criminal or civil
prosecution may also follow, and that, conversely, questionable conduct
in the non-University community may be grounds for the University\'s
taking action as well.\" *Miami University Disciplinary Procedures*,
originally submitted by *The Chronicle\'s* counsel in the *Miami* Ohio
Supreme Court mandamus action, Tab 2, Exhibit 13, J.A. 175. The Miami
University Disciplinary Board Summary occasionally reflects this
mutuality. *See, e.g.*, Tab 2, Exhibit 14, J.A. 177, 178, 179, 184.

     **^24^** Even if a qualified First Amendment right of access
attached to these proceedings, which it clearly does not, the common law
recognizes various exceptions to the right of access including certain
privacy rights of participants or third parties. *Brown & Williamson
Tobacco Corp.*, 710 F.2d at 1179 (citing *Nixon v. Warner
Communications, Inc*., 435 U.S. 589, 598 (1978)). These privacy rights
are of particular import when recognized and protected by federal
statutory provisions like the FERPA. *See In re The Knoxville
News-Sentinel Co., Inc*., 723 F.2d 470, 476 (6th Cir. 1983) (holding
that it was appropriate to seal banking records when Congress clearly
mandated the privacy of those records).