United States: Employment And Privacy Law Developments: Racial Association Under Title VII and Proposed FERPA Regulations


In a case of first impression before the U.S. Court of Appeals for the Second Circuit, the court held that an employer may violate Title VII if it takes action against an employee because of the employee's association with a person of another race.

Factual Background

According to the Second Circuit, in 1995, Craig Holcomb, who is white, was hired as an assistant coach of the Iona Gaels men's basketball team and, in 1998, became the top assistant to head coach Jeff Ruland, also white. In 2000, Holcomb married Pamela Gauthier, a black woman. In 2001, Ruland began a relationship with Iris Hansen, who is also African-American and a friend of Gauthier. During much of his tenure with the Iona Gaels, Holcomb worked alongside two other assistant coaches — Tony Chiles, who is black and Rob Driscoll, who is white and the most junior of the three assistant coaches.

Iona College terminated Holcomb and Chiles in 2004, explaining that their terminations were based on poor job performance. On the court, the team's record had declined over the years, from an impressive win-loss tally of 74-50 from 1997 to 2001, to a lackluster record of 41-47 from 2001 to 2004. Iona College also failed to qualify for the NCAA tournament in 2002, 2003 and 2004. Notwithstanding the basketball program's deteriorating record, Holcomb contended that his termination was based largely on improper racial motives of two decision makers — Shawn Brennan (the Director of Athletics) and Richard Petriccione (a Vice President of the College). Specifically, Holcomb claimed that Brennan barred Holcomb's wife and certain high school students, many of whom were African-American, from attending events of Iona College's "Goal Club," which is the school's alumni fundraising and social organization. In addition, Holcomb claimed that Brennan and Petriccione made offensive racial comments about black players in the basketball program. Holcomb further asserted that Petriccione made racially derogatory comments about a woman in the alumni office and used a racial epithet to describe Holcomb's wife on at least one occasion. Holcomb brought suit on January 25, 2005, in the U.S. District Court for the Southern District of New York. The district court concluded that, even if Brennan and Petriccione had engaged in racist conduct, the plaintiff had not established any facts linking the alleged conduct to his termination.

The Decision

On appeal, the Second Circuit vacated the District Court's judgment and remanded the case for further proceedings. As a threshold matter, the court noted that the burden of establishing a prima facie case of disparate treatment "is not onerous" and that a plaintiff must demonstrate only that he (1) belonged to a protected class; (2) was qualified for the position he held; (3) suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent. With respect to the first factor and in a determination of first impression for the Second Circuit, the court held that an employer may violate Title VII if it takes action against an employee because of the employee's association with a person of another race, in this case, the plaintiff's wife. In so holding, the Second Circuit declined to follow the decisions of other courts that have held that such claim cannot stand because the plaintiff is not alleging discrimination motivated, in the words of Title VII, "because of an individual's race." Rejecting the reasoning of other courts, the court stated that where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee's own race.

The court further found that the plaintiff had satisfied the minimally low threshold of establishing that Holcomb was terminated under circumstances that gave rise to an inference of unlawful discrimination. In so holding, the court noted that the college decided to terminate Holcomb, a white man married to a black woman, and Chiles, a black man, while retaining O'Driscoll, a white man who was not in an interracial relationship. While it was apparent that the decision to keep Ruland was largely based on financial reasons, including an eight-year contract that he signed in 2001 for a $300,000 yearly salary, there was no contemporaneous record for retaining O'Driscoll while firing Holcomb and Chiles. Moreover, for both Brennan and Petriccione, Holcomb had demonstrated evidence of racially improper motives. The fact that the college decided to keep Ruland, who was also in an interracial relationship, did not allay the suspicion that the firings were grounded in an illegitimate motive since, as determined by the court, Ruland was simply too expensive to fire.

What This Means for Employers

Employers should be mindful that circumstantial evidence is enough to satisfy a plaintiff's burden of demonstrating racially discriminatory intent and that plaintiffs are not required to produce "smoking gun" evidence. In "mixed motive" cases, such as Holcomb, the plaintiff does not have to show that racial discrimination was the sole reason for the plaintiff's termination, only that it played a role in the decision. Finally, the Second Circuit has made clear that an employer will violate Title VII if it takes action against an employee because of the employee's association with a person of another race.


The Family Educational Rights and Privacy Act (FERPA) applies to all public and private educational institutions that receive funding from the U.S. Department of Education and conditions these institutions' receipt of funds on their compliance with its provisions. It provides parents with access to students' education records and requires written consent before release of such records to third parties. These rights transfer to students once they have attained 18 years of age or upon their attending a post-secondary institution.

On March 24, 2008, the Department of Education released its proposed regulations to FERPA. The Department of Education seeks to accomplish three main goals with these regulations: (1) to implement provisions of the USA Patriot Act and the Campus Sex Crimes Prevention Act, which amended FERPA, (2) to reference recent U.S. Supreme Court decisions interpreting FERPA, and (3) to respond to changes in information technology and make necessary changes identified in the Department's administration of the Act and its current regulations. The proposed regulations discussed herein are among those that, if adopted, will have a significant impact on the operations of educational institutions. Although important, it should be noted that these proposals are currently open to commentary and are subject to modification until formally adopted.

Access to Education Records by School Officials

Under FERPA, educational institutions may allow teachers and other school officials within the institution to access education records without prior written consent if the institution has determined that the teacher or official has "legitimate educational interests" in the information. The current regulations require institutions that disclose student information under this provision to specify such disclosure in their annual FERPA notification. However, the current regulations make no provision to ensure that teachers and officials who access education records in fact have "legitimate educational interests."

The proposed regulations affect the current provisions in two significant ways: First, the proposed regulations expand the scope of the term "school official" to include contractors, consultants, volunteers and other outside parties to whom the institution has outsourced services. Second, the proposed regulations require educational institutions to take affirmative steps in implementing "physical, technical, administrative, and operational controls" to ensure that teachers and other officials can access education records only where they have "legitimate educational interests" in obtaining such access. The Department's reasoning in proposing the latter proposal reflects the increasing trend among institutions to use computerized or electronic recordkeeping systems, which run the risk of providing unrestricted access to users.

Identification and Authentication of Identity

FERPA prohibits educational institutions from releasing, allowing release of, or providing access to students' personally identifiable information from education records without written consent, except where specifically permitted by statute. The current regulations do not address an institution's obligation to ensure that it has properly identified the recipient of personally identifiable information from education records.

The proposed regulations require institutions to use reasonable methods to properly identify and authenticate the identity of parties to whom personally identifiable information in education records is released. The proposals note that the main challenge of identifying proper recipients arises in the context of electronic and telephonic requests for education records. As for authentication, instead of allowing the release of education records upon a requester's recital of widely available information, such as a student's name and date of birth, or name and Social Security number or student identification number, the proposed regulations require institutions to confirm the identity of a requesting party by eliciting information that only the proper user would know, such as a pin, password or answer to a personal question.

Health and Safety Emergencies

Under FERPA, an educational institution may disclose personally identifiable information from a student's education records in connection with an emergency where such information is necessary to protect the health or safety of the student or another individual. The current regulations state that education records may include information regarding disciplinary action taken against a student for conduct that posed a significant risk to the safety or well-being of that student, another student or another member of the school community. Educational institutions may disclose such information to teachers and other school officials within the institution or in other educational institutions if they have "legitimate educational interests" in the behavior of the student. These provisions in the current regulations are to be strictly construed.

The proposed regulations, advanced in the wake of the school shootings at Virginia Tech, remove the language from the current regulations requiring strict construction of the exception that allows disclosure of such behavioral information. The proposed regulations also provide for institutions to consider the totality of the circumstances in determining whether there exists an "articulable and significant threat to the health or safety of a student or other individuals." If such a threat exists, the institution may disclose information from education records to "any person whose knowledge is necessary to protect the health and safety of the student or other individuals."

In Addition, the Proposed Regulations:

  • Expand the term "attendance" to include attendance by videoconference, satellite, Internet and other electronic information and telecommunication technologies.
  • Provide that educational institutions cannot specify students' Social Security numbers or student identification numbers as "directory information." However, directory information can include unique identifiers for students, so long as such identifiers cannot be used by themselves to authenticate identity and gain access to education records.
  • Include "biometric record" as a personal identifier and set forth additional indirect identifiers, such as a student's date and place of birth, as well as mother's maiden name.
  • Provide objective standards under which educational institutions can release education records without written consent of students by de-identifying the records through redaction of all personally identifiable information.
  • Clarify that an educational institution may disclose education records to the parents of an eligible student, i.e., a student who has attained 18 years of age or who is attending a post-secondary educational institution, without the consent of the eligible student if the student is a dependent for federal income tax purposes, in the context of a health or safety emergency, where a student under the age of 21 has violated a drug or alcohol policy, or in compliance with a court order or subpoena.
  • Clarify that the term "education records" with regard to a former student excludes records created or received by the educational institution after the individual is no longer a student if the records are not directly related to the individual's attendance as a student. However, a record that is created after a student is no longer in attendance may still be deemed an education record if it is directly related to the individual's previous attendance as a student.

What Does This Mean for Educational Institutions?

The Department of Education's proposed regulations for FERPA reflect a careful balance between disclosure and privacy. The Department acknowledges the increasingly global reach and technological character of the country's educational institutions. As such, it proposes a broader scope of qualified school officials who may access education records. Similarly, in establishing a platform to advance national preparedness for school violence, the Department proposes additional avenues for the disclosure of student information. However, in an effort to preserve and strengthen the underlying purpose of FERPA, the Department proposes mechanisms to identify and authenticate recipients of education records. It proposes stringent regulation of students' Social Security numbers and student identification numbers to reduce the risk of identity theft. The proposed regulations require institutions to ensure that school officials with access to education records establish a "legitimate educational interest" for such access. Together, these proposals provide a comprehensive effort to confront the challenges faced by educational institutions today.

Educational institutions should be aware of the proposed regulations and stay tuned to further modifications or adoption of such regulations. If the proposed regulations are adopted, educational institutions will be required to use reasonable methods to reduce the risk of unauthorized disclosure to a level "commensurate with the likely threat and potential harm." Of course, mandated compliance with such regulations will depend on the institution's size and its available resources.

The attorneys in the Employment and Immigration Practice Group at Duane Morris LLP regularly review educational institutions' policies and guidelines and their compliance with FERPA.

If you have any questions about this Alert or would like more information, please contact any member of the Employment & Immigration Law Practice Group or the attorney in the firm with whom you are regularly in contact.

This article is for general information and does not include full legal analysis of the matters presented. It should not be construed or relied upon as legal advice or legal opinion on any specific facts or circumstances. The description of the results of any specific case or transaction contained herein does not mean or suggest that similar results can or could be obtained in any other matter. Each legal matter should be considered to be unique and subject to varying results. The invitation to contact the authors or attorneys in our firm is not a solicitation to provide professional services and should not be construed as a statement as to any availability to perform legal services in any jurisdiction in which such attorney is not permitted to practice.

Duane Morris LLP, one of the 100 largest law firms in the world, is a full-service firm of more than 650 lawyers. In addition to legal services, Duane Morris has independent affiliates employing approximately 100 professionals engaged in other disciplines. With offices in major markets in the United States and internationally, Duane Morris represents clients across the U.S. and around the world.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions