author: Justice Breyer Justice Scalia,

text:
    KANSAS v. CRANE
    No. 00-957.
    Argued October 30, 2001
    Decided January 22, 2002

      Breyeb, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connor, Kennedy, Souter, and Ginsburg, JJ., joined. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined, post, p. 415.

      Carla J. Stovall, Attorney General of Kansas, argued the cause for petitioner. With her on the briefs was Stephen R. McAllister, State Solicitor.

      John C. Donham argued the cause and filed a brief for respondent.

      Briefs of amici curiae urging reversal were filed for the State of Illinois et al. by James E. Ryan, Attorney General of Illinois, Joel D. Ber-tocchi, Solicitor General, and William L. Browers, Lisa Anne Hoffman, and Margaret M. O’Connell, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Janet Napolitano of Arizona, Bill Lockyer of California, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Thomas J. Miller of Iowa, J Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Mike Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Don Stenberg of Nebraska, John J. Farmer, Jr., of New Jersey, Wayne Stenehjem of North Dakota, W. A. Drew Edmondson of Oklahoma, D. Michael Fisher of Pennsylvania, Charles M. Condon of South Carolina, Christine 0. Gregoire of Washington, and James E. Doyle of Wisconsin; for the Association for the Treatment of Sexual Abusers by John J. Sulli

        van and Michael E. Lackey, Jr.; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A. Samp.

      Briefs of amici curiae urging affirmance were filed for the American Psychiatric Association et al. by Richard G. Taranto; and for the National Association of Criminal Defense Lawyers et al. by Jody Manier Kris, Lisa Kemler, and Steven R. Shapiro.

   Justice Breyer

delivered the opinion of the Court.

This case concerns the constitutional requirements substantively limiting the civil commitment of a dangerous sexual offender — a matter that this Court considered in Kansas v. Hendricks, 521 U. S. 346 (1997). The State of Kansas argues that the Kansas Supreme Court has interpreted our decision in Hendricks in an overly restrictive manner. We agree and vacate the Kansas court’s judgment.

I

In Hendricks, this Court upheld the Kansas Sexually Violent Predator Act, Kan. Stat.. Ann. §59-29a01 et seq. (1994), against constitutional challenge. 521 U. S., at 371. In doing so, the Court characterized the confinement at issue as civil, not criminal, confinement. Id., at 369. And it held that the statutory criterion for confinement embodied in the statute’s words “mental abnormality or personality disorder” satisfied “‘substantive’ due process requirements.” Id., at 356, 360.

In reaching its conclusion, the Court’s opinion pointed out that “States have in certain narrow circumstances provided for the forcible civil detainment of people who are unable to control their behavior and who thereby pose a danger to the public health and safety.” Id., at .357. It said that “[w]e have consistently upheld such involuntary commitment statutes” when (1) “the confinement takes place pursuant to proper procedures and evidentiary standards,” (2) there is a finding of “dangerousness either to one’s self or to others,” and (3) proof of dangerousness is “coupled ... with the proof of some additional factor, such as a ‘mental illness’ or ‘mental abnormality.’” Id., at 357-358. It noted that the Kansas “Act unambiguously requires a finding of dangerousness either to one’s self or to others,” id., at 357, and then “links that finding to the existence of a ‘mental abnormality’ or ‘personality disorder’ that makes it difficult, if not impossible, for the person to control his dangerous behavior,” id., at 358 (citing Kan. Stát. Ann. § 59-29a02(b) (1994)). And the Court ultimately determined that the statute’s “requirement of a ‘mental abnormality’ or ‘personality disorder’ is consistent with the requirements of . . . other statutes that we have upheld in that it narrows the class of persons eligible for confinement to those who are unable to control their dangerousness.” 521 U. S., at 358.

The Court went on to respond to Hendricks’ claim that earlier cases had required a finding, not of “mental abnormality” or “personality disorder,” but of “mental illness.” Id., at 358-359. In doing so, the Court pointed out that we “have traditionally left to legislators the task of defining [such] terms.” Id., at 359. It then held that, to “the extent that the civil commitment statutes we have considered set forth criteria relating to an individual’s inability to control his dangerousness, the Kansas Act sets forth comparable criteria.” Id., at 360. It added that Hendricks’ own condition “doubtless satisfies those criteria,” for (1) he suffers from pedophilia, (2) “the psychiatric profession itself classifies” that condition “as a serious mental disorder,” and (3) Hendricks conceded that he cannot “ ‘control the urge’ ” to molest children. And it concluded that this “admitted lack of volitional control, coupled with a prediction of future dangerousness, adequately distinguishes Hendricks from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings.” Ibid.

rH

In the present case the State of Kansas asks us to review the Kansas Supreme Court’s application of Hendricks. The State here seeks the civil commitment of Michael Crane, a previously convicted sexual offender who, according to at least one of the State’s psychiatric witnesses, suffers from both exhibitionism and antisocial personality disorder. In re Crane, 269 Kan. 578, 580-581, 7 P. 3d 285, 287 (2000); cf. also American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 569 (rev. 4th ed. 2000) (DSM-IV) (detailing exhibitionism), 701-706 (detailing antisocial personality disorder). After a jury trial, the Kansas District Court ordered Crane’s civil commitment. 269 Kan., at 579-584, 7 P. 3d, at 286-288. But the Kansas Supreme Court reversed. Id., at 586, 7 P. 3d, at 290. In that court’s view, the Federal Constitution as interpreted in Hendricks insists upon “a finding that the defendant cannot control his dangerous behavior” — even if (as provided by Kansas law) problems of “emotional capacity” and not “volitional capacity” prove the “source of bad behavior” warranting commitment. 269 Kan., at 586, 7 P. 3d, at 290; see also Kan. Stat. Ann. §59-29a02(b) (2000 Cum. Supp.) (defining “[m]ental abnormality” as a condition that affects an individual’s emotional or volitional capacity). And the trial court had made no such finding.

Kansas now argues that the Kansas Supreme Court wrongly read Hendricks as requiring the State always to prove that a dangerous individual is completely unable to control his behavior. That reading, says Kansas, is far too rigid.

Ill

We agree with Kansas insofar as it argues that Hendricks set forth no requirement of total or complete lack of control. Hendricks referred to the Kansas Act as requiring a “mental abnormality” or “personality disorder” that makes it “difficult, if not impossible, for the [dangerous] person to control his dangerous behavior.” 521 U. S., at 358 (emphasis added). The word “difficult” indicates that the lack of control to which this Court referred was not absolute. Indeed, as different amici on opposite sides of this case agree, an absolutist approach is unworkable. Brief for Association for the Treatment of Sexual Abusers as Amicus Curiae 3; cf. Brief for American Psychiatric Association et al. as Amici Curiae 10; cf. also American Psychiatric Association, Statement on the Insanity Defense 11 (1982), reprinted in G. Melton, J. Petrila, N. Poythress, & C. Slobogin, Psychological Evaluations for the Courts 200 (2d ed. 1997) (“ ‘The line between an irresistible impulse and an impulse not resisted is probably no sharper than that between twilight and dusk’ ”). Moreover, most severely ill people — even those commonly termed “psychopaths” — retain some ability to control their behavior. See Morse, Culpability and Control, 142 U. Pa. L. Rev. 1587, 1634-1635 (1994); cf. Winick, Sex Offender Law in the 1990s: A Therapeutic Jurisprudence Analysis, 4 Psychol. Pub. Pol’y & L. 505, 520-525 (1998). Insistence upon absolute lack of control would risk barring the civil commitment of highly dangerous persons suffering severe mental abnormalities.

We do not agree with the State, however, insofar as it seeks to claim that the Constitution permits commitment of the type of dangerous sexual offender considered in Hendricks without any lack-of-control determination. See Brief for Petitioner 17; Tr. of Oral Arg. 22, 30-31. Hendricks underscored the constitutional importance of distinguishing a dangerous sexual offender subject to civil commitment “from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings.” 521 U. S., at 360. That distinction is necessary lest “civil commitment” become a “mechanism for retribution or general deterrence” — functions properly those of criminal law, not civil commitment. Id., at 372-373 (Kennedy, J., concurring); cf. also Moran, The Epidemiology of Antisocial Personality Disorder, 34 Social Psychiatry & Psychiatric Epidemiology 231, 234 (1999) (noting that 40%-60% of the male prison population is diagnosable with antisocial personality disorder). The presence of what the “psychiatric profession itself classifie[d] . .'. as a serious mental disorder” helped to make that distinction in Hendricks. And a critical distinguishing feature of that “serious . . . disorder” there consisted of a special and serious lack of ability to control behavior.

In recognizing that fact, we did not give to the phrase “lack of control” a particularly narrow or technical meaning. And we recognize that in cases where lack of control is at issue, “inability to control behavior” will not be demonstrable with mathematical precision. It is enough to say that there must be proof of serious difficulty in controlling behavior. And this, when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case. 521 U. S., at 357-358; see also Foucha v. Louisiana, 504 U. S. 71, 82-83 (1992) (rejecting an approach to civil commitment that would permit the indefinite confinement “of any convicted criminal” after completion of a prison term).

We recognize that Hendricks as so read provides a less precise constitutional standard than would those more definite rules for which the parties have argued. But the Constitution’s safeguards of human liberty in the area of mental illness and the law are not always best enforced through precise bright-line rules. For one thing, the States retain considerable leeway in defining the mental abnormalities and personality disorders that make an individual eligible for commitment. Hendricks, 521 U. S., at 359; id., at 374-375 (Breyer, J., dissenting). For another, the science of psychiatry, which informs but does not control ultimate legal determinations, is an ever-advancing science, whose distinctions do not seek precisely to mirror those of the law. See id., at 359. See also, e. g., Ake v. Oklahoma, 470 U. S. 68, 81 (1985) (psychiatry not “an exact science”); DSM-IV xxx (“concept of mental disorder... lacks a consistent operational definition”); id., at xxxii-xxxiii (noting the “imperfect fit between the questions of ultimate concern to the law and the information contained in [the DSM’s] clinical diagnosis”). Consequently, we have sought to provide constitutional guidance in this area by proceeding deliberately and contextually, elaborating generally stated constitutional standards and objectives as specific circumstances require. Hendricks embodied that approach.

IV

The State also questions how often a volitional problem lies at the heart of a dangerous sexual offender’s serious mental abnormality or disorder. It points out that the Kansas Supreme Court characterized its state statute as permitting commitment of dangerous sexual offenders who (1) suffered from a mental abnormality properly characterized by an “emotional” impairment and (2) suffered no “volitional” impairment. 269 Kan., at 583, 7 P. 3d, at 289. It adds that, in the Kansas court’s view, Hendricks absolutely forbids the commitment of any such person. 269 Kan., at 585-586, 7 P. 3d, at 290. And the State argues that it was wrong to read Hendricks in this way. Brief for Petitioner 11; Tr. of Oral Arg. 5.

We agree that Hendricks limited its discussion to volitional disabilities. And that fact is not surprising. The case involved an individual suffering from' pedophilia — a mental abnormality that critically involves what a lay person might describe as a lack of control. DSM-IV 571-572 (listing as a diagnostic criterion for pedophilia that an individual have acted on, or been affected by, “sexual urges” toward children). Hendricks himself stated that he could not “ ‘control the urge’ ” to molest children. 521 U. S., at 360. In addition, our cases suggest that civil commitment of dangerous sexual offenders will normally involve individuals who find it particularly difficult to control their behavior — in the general sense described above. Cf. Seling v. Young, 531 U. S. 250, 256 (2001); cf. also Abel & Rouleau, Male Sex Offenders, in Handbook of Outpatient Treatment of Adults: Nonpsychotic Mental Disorders 271 (M. Thase, B. Edelstein, & M. Hersen eds. 1990) (sex offenders’ “compulsive, repetitive, driven behavior . . . appears to fit the criteria of an emotional or psychiatric illness”). And it is often appropriate to say of such individuals, in ordinary English, that they are “unable to control their dangerousness.” Hendricks, supra, at 358.

Regardless, Hendricks must be read in context. The Court did not draw a clear distinction between the purely “emotional” sexually related mental abnormality and the “volitional.” Here, as in other areas of psychiatry, there may be “considerable overlap between a ... defective understanding or appreciation and . . . [an] ability to control . . . behavior.” American Psychiatric Association Statement on the Insanity Defense, 140 Am. J. Psychiatry 681, 685 (1983) (discussing “psychotic” individuals). Nor, when considering civil commitment, have we ordinarily distinguished for constitutional purposes among volitional, emotional, and cognitive impairments. See, e. g., Jones v. United States, 463 U. S. 354 (1983); Addington v. Texas, 441 U. S. 418 (1979). The Court in Hendricks had no occasion to consider whether confinement based solely on “emotional” abnormality would be constitutional, and we likewise have no occasion to do so in the present case.

* *

For these reasons, the judgment of the Kansas Supreme Court is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Scalia,

with whom Justice Thomas joins, dissenting.

Today the Court holds that the Kansas Sexually Violent Predator Act (SVPA) cannot, consistent with so-called substantive due process, be applied as written. It does so even though, less than five years ago, we upheld the very same statute against the very same contention in an appeal by the very same petitioner (the State of Kansas) from the judgment of the very same court. Not only is the new law that the Court announces today wrong, but the Court’s manner of promulgating it — snatching back from the State of Kansas a victory so recently awarded — cheapens the currency of our judgments. I would reverse, rather than vacate, the judgment of the Kansas Supreme Court.

J — i

Respondent was convicted of lewd and lascivious behavior and pleaded guilty to aggravated sexual battery for two incidents that took place on the same day in 1993. In the first, respondent exposed himself to a tanning salon attendant. In the second, 30 minutes later, respondent entered a video store, waited until he was the only customer present, and then exposed himself to the clerk. Not stopping there, he grabbed the clerk by the neck, demanded she- perform oral sex on him, and threatened to rape her, before running out of the store. Following respondent’s plea to aggravated sexual battery, the State filed a petition in State District Court to have respondent evaluated and adjudicated a sexual predator under the SVPA. That Act permits the civil detention of a person convicted of any of several enumerated sexual offenses, if it is proven beyond a reasonable doubt that he suffers from a “mental abnormality” — a disorder affecting his “emotional or volitional capacity which predisposes the person to commit sexually violent offenses” — or a “personality disorder,” either of “which makes the person likely to engage in repeat acts of sexual violence.” Kan. Stat. Ann. §§ 59-29a02(a), (b) (2000 Cum. Supp.).

Several psychologists examined respondent and determined he suffers from exhibitionism and antisocial personality disorder. Though exhibitionism alone would not support classification as a sexual predator, a psychologist concluded that the two in combination did place respondent’s condition within the range of disorders covered by the SVPA, “cit[ing] the increasing frequency of incidents involving [respondent], increasing intensity of the incidents, [respondent’s] increasing disregard for the rights of others, and his increasing daring and aggressiveness.” In re Crane, 269 Kan. 578, 579, 7 P. 3d 285, 287 (2000). Another psychologist testified that respondent’s behavior was marked by “impulsivity or failure to plan ahead,” indicating his unlawfulness “was a combination of willful and uncontrollable behavior,” id., at 584-585, 7 P. 3d, at 290. The State’s experts agreed, however, that “‘[Respondent’s mental disorder does not impair his volitional control to the degree he cannot control his dangerous behavior.’” Id., at 581, 7 P. 3d, at 288.

Respondent moved for summary judgment, arguing that for his detention to comport with substantive due process the State was required to prove not merely what the statute requires — that by reason of his mental disorder he is “likely to engage in repeat acts of sexual violence” — but also that he is unable to control his violent behavior. The trial court denied this motion, and instructed the jury pursuant to the terms of the statute. Id., at 581, 7 P. 3d, at 287-288. The jury found, beyond a reasonable doubt, that respondent was a sexual predator as defined by the SVPA. The Kansas Supreme Court reversed, holding the SVPA unconstitutional as applied to someone, like respondent, who has only an emotional or personality disorder within the meaning of the Act, rather than a volitional impairment. For such a person, it held, the State must show not merely a likelihood that the defendant would engage in repeat acts of sexual violence, but also an inability to control violent behavior. It based this holding solely on our decision in Kansas v. Hendricks, 521 U. S. 346 (1997).

II

Hendricks also involved the SVPA, and, as in this case, the Kansas Supreme Court had found that the SVPA swept too broadly. On the basis of considerable evidence showing that Hendricks suffered from pedophilia, the jury had found, beyond a reasonable doubt, that Hendricks met the statutory standard for commitment. See id., at 355; In re Hendricks, 259 Kan. 246, 247, 912 P. 2d 129, 130 (1996). This standard (to repeat) was that he suffered from a “mental abnormality” — a disorder affecting his “emotional or volitional capacity which predisposes [him] to commit sexually violent offenses” — or a “personality disorder,” either of which “makes [him] likely to engage in repeat acts of sexual violence.” Kan. Stat. Ann. §§ 59-29a02(a), (b) (2000 Cum. Supp.). The trial court, after determining as a matter of state law that pedophilia was a “mental abnormality” within the meaning of the Act, ordered Hendricks committed. See 521 U. S., at 355-356. The Kansas Supreme Court held the jury finding to be constitutionally inadequate. “Absent. .. a finding [of mental illness],” it said, “the Act does not satisfy . . . constitutional standard[s],” 259 Kan., at 261, 912 P. 2d, at 138. (Mental illness, as it had been defined by Kansas law, required a showing that the detainee “[i]s suffering from a severe mental disorder”; “lacks capacity to make an informed decision concerning treatment”; and “is likely to cause harm to self or others.” Kan. Stat. Ann. §59-2902(h) (1994).) We granted the State of Kansas’s petition for certiorari.

The first words of our opinion dealing with the merits of the case were as follows: “Kansas argues that the Act’s definition of ‘mental abnormality’ satisfies ‘substantive’ due process requirements. We agree.” Hendricks, 521 U. S., at 356. And the reason it found substantive due process satisfied was clearly stated:

“The Kansas Act is plainly of a kind with these other civil commitment statutes [that we have approved]: It requires a finding of future dangerousness [viz., that the person committed is “likely to engage in repeat acts of sexual violence”], and then links that finding to the existence of a ‘mental abnormality’ or ‘personality disorder’ that makes it difficult, if not impossible, for the person to control his dangerous behavior. Kan. Stat. Ann. § 59-29a02(b) (1994).” Id., at 358 (emphasis added).

It is the italicized language in the foregoing excerpt that today’s majority relies upon as establishing the requirement of a separate finding of inability to control behavior. Ante, at 411-412.

That is simply not a permissible reading of the passage, for several reasons. First, because the authority cited for the statement — in the immediately following reference to the Kansas Statutes Annotated — is the section of the SVPA that defines “mental abnormality,” which contains no requirement of inability to control. What the opinion was obviously saying was that the SVPA’s required finding of a causal connection between the likelihood of repeat acts of sexual violence and the existence of a “mental abnormality” or “personality disorder” necessarily establishes “difficulty if not impossibility” in controlling behavior. This is clearly confirmed by the very next sentence of the opinion, which reads as follows:

“The precommitment requirement of a ‘mental abnormality’ or ‘personality disorder’ is consistent with the requirements of . . . other statutes that we have upheld in that it narrows the class of persons eligible for confinement to those who are unable to control their dangerousness.” 521 U. S., at 358.

It could not be clearer that, in the Court’s estimation, the very existence of a mental abnormality or personality disorder that causes a likelihood of repeat sexual violence in itself establishes the requisite “difficulty if not impossibility” of control. Moreover, the passage in question cannot possibly be read as today’s majority would read it because nowhere did the jury verdict of commitment that we reinstated in Hendricks contain a separate finding of “difficulty, if not impossibility, to control behavior.” That finding must (as I have said) have been embraced within the finding of mental abnormality causing future dangerousness. And finally, the notion that the Constitution requires in every case a finding of “difficulty if not impossibility” of control does not fit comfortably with the broader holding of Hendricks, which was that “we have never required state legislatures to adopt any particular nomenclature in drafting civil commitment statutes. Rather, we have traditionally left to legislators the task of defining terms of a medical nature that have legal significance.” Id., at 359.

The Court relies upon the fact that '“Hendricks underscored the constitutional importance of distinguishing a dangerous sexual offender subject to civil commitment ‘from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings.’” Ante, at 412 (quoting 521 U. S., at 360). But the SVPA as written — without benefit of a supplemental control finding— already achieves that objective. It conditions civil commitment not upon a mere finding that the sex offender is likely to reoffend, but only upon the additional finding (beyond a reasonable doubt) that the cause of the likelihood of recidivism is a “mental abnormality or personality disorder.” Kan. Stat. Ann. §59-29a02(a) (2000 Cum. Supp.). Ordinary recidivists choose to reoffend and are therefore amenable to deterrence through the criminal law; those subject to civil commitment under the SVPA, because their mental illness is an affliction and not a choice, are unlikely to be deterred. We specifically pointed this out in Hendricks. “Those persons committed under the Act,” we said, “are, by definition, suffering from a ‘mental abnormality’ or a ‘personality disorder’ that prevents them from exercising adequate control over their behavior. Such persons are therefore unlikely to be deterred by the threat of confinement.” 521 U. S., at 362-363.

Ill

Not content with holding that the SVPA cannot be applied as written because it does not require a separate “lack-of-control determination,” ante, at 412, the Court also reopens a question closed by Hendricks: whether the SVPA also cannot be applied as written because it allows for the commitment of people who have mental illnesses other than volitional impairments. “Hendricks,” the Court says, “had no occasion to consider” this question. Ante, at 415.

But how could the Court possibly have avoided it? The jury whose commitment we affirmed in Hendricks had not been asked to find a volitional impairment, but had been charged in the language of the statute, which quite clearly covers nonvolitional impairments. And the fact that it did so had not escaped our attention. To the contrary, our Hendricks opinion explicitly and repeatedly recognized that the SVPA reaches individuals with personality disorders, 521 U. S., at 352, 353, 357, 358, and quoted the Act’s definition of mental abnormality (§ 59-29a02(b)), which makes plain that it embraces both emotional and volitional impairments, id., at 352. It is true that we repeatedly referred to Hendricks’s “volitional” problems — because that was evidently the sort of mental abnormality that he had. But we nowhere accorded any legal significance to that fact — as we could not have done, since it was not a fact that the jury had been asked to determine. We held, without any qualification, “that the Kansas Sexually Violent Predator Act comports with [substantive] due process requirements,” id., at 371, because its “precommitment requirement of a ‘mental abnormality’ or ‘personality disorder’ is consistent with the requirements of . . . other statutes that we have upheld in that it narrows the class of persons eligible for confinement to those who are unable to control their dangerousness,” id., at 358.

The Court appears to argue that, because Hendricks involved a defendant who indeed had a volitional impairment (even though we made nothing of that fact), its narrowest holding covers only that application of the SVPA, and our statement that the SVPA in its entirety was constitutional can be ignored. See ante, at 414-415. This cannot be correct. The narrowest holding of Hendricks affirmed the constitutionality of commitment on the basis of the jury charge given in that case (to wit, the language of the SVPA); and since that charge did not require a finding of volitional impairment, neither does the Constitution.

I cannot resist observing that the distinctive status of volitional impairment which the Court mangles Hendricks to preserve would not even be worth preserving by more legitimate means. There is good reason why, as the Court accurately says, “when considering civil commitment... we [have not] ordinarily distinguished for constitutional purposes among volitional, emotional, and cognitive impairments,” ante, at 415. We have not done so because it makes no sense. It is obvious that a person may be able to exercise volition and yet be unfit to turn loose upon society. The man who has a will of steel, but who delusionally believes that every woman he meets is inviting crude sexual advances, is surely a dangerous sexual predator.

IV

I not only disagree with the Court’s gutting of our holding in Hendricks; I also doubt the desirability, and indeed even the coherence, of the new constitutional test which (on the basis of no analysis except a misreading of Hendricks) it substitutes. Under our holding in Hendricks, a jury in an SVPA commitment case would be required to find, beyond a reasonable doubt, (1) that the person previously convicted of one of the enumerated sexual offenses is suffering from a mental abnormality or personality disorder, and (2) that this condition renders him likely to commit future acts of sexual violence. Both of these findings are coherent, and (with the assistance of expert testimony) well within the capacity of a normal jury. Today’s opinion says that the Constitution requires the addition of a third finding: (3) that the subject suffers from an inability to control behavior— not utter inability, ante, at 411, and not even inability in a particular constant degree, but rather inability in a degree that will vary “in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself,” ante, at 413.

This formulation of the new requirement certainly displays an elegant subtlety of mind. Unfortunately, it gives trial courts, in future cases under the many commitment statutes similar to Kansas’s SVPA, not a clue as to how they are supposed to charge the jury! Indeed, it does not even provide a clue to the trial court, on remand, in this very case. What is the judge to ask the jury to find? It is fine and good to talk about the desirability of our “proceeding deliberately and contextually, elaborating generally stated constitutional standards and objectives as specific circumstances require,” ante, at 414, but one would think that this plan would at least produce the “elaboration” of what the jury charge should be in the “specific circumstances” of the present case. “[Pjroceeding deliberately” is not synonymous with not proceeding at all.

I suspect that the reason the Court avoids any elaboration is that elaboration which passes the laugh test is impossible. How is one to frame for a jury the degree of “inability to control” which, in the particular case, “the nature of the psychiatric diagnosis, and the severity of the mental abnormality” require? Will it be a percentage (“Ladies and gentlemen of the jury, you may commit Mr. Crane under the SVPA only if you find, beyond a reasonable doubt, that he is 42% unable to control his penchant for sexual violence”)? Or a frequency ratio (“Ladies and gentlemen of the jury, you may commit Mr. Crane under the SVPA only if you find, beyond a reasonable doubt, that he is unable to control his penchant for sexual violence 3 times out of 10”)? Or merely an adverb (“Ladies and gentlemen of the jury, you may commit Mr. Crane under the SYPA only if you find, beyond a reasonable doubt, that he is appreciably — or moderately, or substantially, or almost totally — unable to control his penchant for sexual violence”)? None of these seems to me satisfactory.

But if it is indeed possible to “elaborate” upon the Court’s novel test, surely the Court has an obligation to do so in the “specific circumstances” of the present case, so that' the trial court will know what is expected of it on remand. It is irresponsible to leave the law in such a state of utter indeterminacy.

* * *

Today’s holding would make bad law in any circumstances. In the circumstances under which it is pronounced, however, it both distorts our law and degrades our authority. The State of Kansas, unable to apply its legislature’s sexual predator legislation as written because of the Kansas Supreme Court’s erroneous view of the Federal Constitution, sought and received certiorari in Hendricks, and achieved a reversal, in an opinion holding that “the Kansas Sexually Violent Predator Act comports with [substantive] due process requirements,” 521 U. S., at 371. The Kansas Supreme Court still did not like the law and prevented its operation, on substantive due process grounds, once again. The State of Kansas again sought certiorari, asking nothing more than reaffirmation of our 5-year-old opinion — only to be told that what we said then we now unsay. There is an obvious lesson here for state supreme courts that do not agree with our jurisprudence: ignoring it is worth a try.

A jury determined beyond a reasonable doubt that respondent suffers from antisocial personality disorder combined with exhibitionism, and that this is either a mental abnormality or a personality disorder making it likely he will commit repeat acts of sexual violence. That is all the SVPA requires, and all the Constitution demands. Since we have already held precisely that in another case (which, by a remarkable feat of jurisprudential jujitsu the Court relies upon as the only authority for its decision), I would reverse the judgment below.

      As quoted earlier in the Hendricks opinion, see 521 U. S., at 352, §59— 29a02(b) defines ‘‘mental abnormality” as a “congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others.”


source: Caselaw Access Project

author: Justice Kennedy Justice Scalia,

license: Public Domain

text:
    OWASSO INDEPENDENT SCHOOL DISTRICT NO. I-011, aka OWASSO PUBLIC SCHOOLS, et al. v. FALVO, parent and next friend of her minor children, PLETAN, et al.
    No. 00-1073.
    Argued November 27, 2001
    Decided February 19, 2002

      Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connor, Souter, Thomas, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed an opinion concurring in the judgment, post, p. 436.

      Jerry A. Richardson argued the cause for petitioners. With him on the briefs was Karen L. Long.

      Deputy Solicitor General Kneedler argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Olson, Acting Assistant Attorney General Schiffer, Beth S. Brinkmann, Mark B. Stern, and Colette G. Matzzie.

      Will K. Wright, Jr., argued the cause for respondent. With him on the brief were John W Whitehead and Steven H. Aden

      Briefs of amici curiae urging reversal were filed for the National Education Association et al. by Robert H. Chanin and Andrew D. Roth; for the National School Boards Association et al. by Julie Underwood, Julie E. Lewis, Sheldon E. Steinbach, and Martin Michaelson; for the Oklahoma Education Association by Richard B. Wilkinson and Brandon R. Webb; and for the Reporters Committee for Freedom of the Press et al. by Gregg R Leslie, Lucy A. Dalglish, and S, Mark Goodman.

      Briefs of amici curiae urging affirmance were filed for the Capitol Resource Institute et al. by Richard D. Ackerman and Gary G. Kreep; for the Council of Counseling Psychology Training Programs et al. by Dennis Owens; and for the Eagle Forum Education & Legal Defense Fund by Karen Tripp and Phyllis Schlafiy.

   Justice Kennedy

delivered the opinion of the Court.

Teachers sometimes ask students to score each other’s tests, papers, and assignments as the teacher explains the correct answers to the entire class. Respondent contends this practice, which the parties refer to as peer grading, violates the Family Educational Rights and Privacy Act of 1974 (FERPA or Act), 88 Stat. 571, 20 U. S. C. § 1232g. We took this case to resolve the issue.

h — I

Under FERPA, schools and educational agencies receiving federal financial assistance must comply with certain conditions. § 1232g(a)(3). One condition specified in the Act is that sensitive information about students may not be released without parental consent. The Act states that federal funds are to be withheld from school districts that 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 their parents.” § 1232g(b)(l). The phrase “education records” is defined, under the Act, as “records, files, documents, and other materials” containing information directly related to a student, which “are maintained by an educational agency or institution or by a person acting for such agency or institution.” § 1232g(a)(4)(A). The definition of education records contains an exception for “records of instructional, supervisory, and administrative personnel. .. which are in the sole possession of the maker thereof and which are not accessible or revealed to any other person except a substitute.” § 1232g(a)(4)(B)(i). The precise question for us is whether peer-graded classroom work and assignments are education records.

Three of respondent Kristja J. Falvo’s children are enrolled in Owasso Independent School District No. I — Oil, in a suburb of Tulsa, Oklahoma. The children’s teachers, like many teachers in this country, use peer grading. In a typical case the students exchange papers with each other and score them according to the teacher’s instructions, then return the work to the student who prepared it. The teacher may ask the students to report their own scores. In this case it appears the student could either call out the score or walk to the teacher’s desk and reveal it in confidence, though by that stage, of course, the score was known at least to the one other student who did the grading. Both the grading and the system of calling out the scores are in contention here.

Respondent claimed the peer grading embarrassed her children. She asked the school district to adopt a uniform policy banning peer grading and requiring teachers either to grade assignments themselves or at least to forbid students from grading papers other than their own. The school district declined to do so, and respondent brought a class action pursuant to Rev. Stat. § 1979, 42 U. S. C. § 1983 (1994 ed., Supp. V), against the school district, Superintendent Dale Johnson, Assistant Superintendent Lynn Johnson, and Principal Rick Thomas (petitioners). Respondent alleged the school district’s grading policy violated FERPA and other laws not relevant here. The United States District Court for the Northern District of Oklahoma granted summary judgment in favor of the school district’s position. The court held that grades put on papers by another student are not, at that stage, records “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), and thus do not constitute “education records” under the Act. On this reasoning it ruled that peer grading does not violate FERPA.

The Court of Appeals for the Tenth Circuit reversed. 233 F. 3d 1203 (2000). FERPA is directed to the conditions schools must meet to receive federal funds, and as an initial matter the court considered whether the Act confers a private right of action upon students and parents if the conditions are not met. Despite the absence of an explicit authorization in the Act conferring a cause of action on private parties, the court held respondent could sue to enforce FERPA’s terms under 42 U. S. C. § 1983. 233 F. 3d, at 1211-1213. Turning to the merits, the Court of Appeals held that peer grading violates the Act. The grades marked by students on each other’s work, it held, are education records protected by the statute, so the very act of grading was an impermissible release of the information to the student grader. Id., at 1216.

We granted certiorari to decide whether peer grading violates FERPA. 533 U. S. 927 (2001). Finding no violation of the Act, we reverse.

II

At the outset, we note it is an open question whether FERPA provides private parties, like respondent, with a cause of action enforceable under § 1983. We have granted certiorari on this issue in another case. See Gonzaga Univ. v. Doe, post, p. 1103. The parties, furthermore, did not contest the §1983 issue before the Court of Appeals. That court raised the issue sua sponte, and petitioners did not seek certiorari on the question. We need not resolve the question here as it is our practice “to decide cases on the grounds raised and considered in the Court of Appeals and included in the question on which we granted certiorari.” Bragdon v. Abbott, 524 U. S. 624, 638 (1998). In these circumstances we assume, but without so deciding or expressing an opinion on the question, that private parties may sue an educational agency under § 1983 to enforce the provisions of FERPA here at issue. Though we leave open the § 1983 question, the Court has subject-matter jurisdiction because respondent’s federal claim is not so “completely devoid of merit as not to involve a federal controversy.” Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 89 (1998) (citation omitted). With these preliminary observations concluded, we turn to the merits.

The parties appear to agree that if an assignment becomes an education record the moment a peer grades it, then the grading, or at least the practice of asking students to call out their grades in class, would be an impermissible release of the records under § 1232g(b)(l). Tr. of Oral Arg. 21. Without deciding the point, we assume for the purposes of our analysis that they are correct. The parties disagree, however, whether peer-graded assignments constitute education records at all. The papers do contain information directly related to a student, but they are records under the Act only when and if they “are maintained by an educational agency or institution or by a person acting for such agency or institution.” § 1232g(a)(4)(A).

Petitioners, supported by the United States as amicus curiae, contend the definition covers only institutional records — namely, those materials retained in a permanent file as a matter of course. They argue that records “maintained by an educational agency or institution” generally would include final course grades, student grade point averages, standardized test scores, attendance records, counseling records, and records of disciplinary actions — but not student homework or classroom work. Brief for Petitioners 17; Brief for United States as Amicus Curiae 14.

Respondent, adopting the reasoning of the Court of Appeals, contends student-graded assignments fall within the definition of education records. That definition contains an exception for “records of instructional, supervisory, and administrative personnel. . . which are in the sole possession of the maker thereof and which are not accessible or revealed to any other person except a substitute.” § 1232g(a)(4)(B)(i). The Court of Appeals reasoned that if grade books are not education records, then it would have been unnecessary for Congress to enact the exception. Grade books and the grades within, the court concluded, are “maintained” by a teacher and so are covered by FERPA. 233 F. 3d, at 1215. The court recognized that teachers do not maintain the grades on individual student assignments until they have recorded the result in the grade books. It reasoned, however, that if Congress forbids teachers to disclose students’ grades once written in a grade book, it makes no sense to permit the disclosure immediately beforehand. Id., at 1216. The court thus held that student graders maintain the grades until they are reported to the teacher. Ibid.

The Court of Appeals’ logic does not withstand scrutiny. Its interpretation, furthermore, would effect a drastic alteration of the existing allocation of responsibilities between States and the National Government in the operation of the Nation’s schools. We would hesitate before interpreting the statute to effect such a substantial change in the balance of federalism unless that is the manifest purpose of the legislation. This principle guides our decision.

Two statutory indicators tell us that the Court of Appeals erred in concluding that an assignment satisfies the definition of education records as soon as it is graded by another student. First, the student papers are not, at that stage, “maintained” within the meaning of § 1232g(a)(4)(A). The ordinary meaning of the word “maintain” is “to keep in existence or continuance; preserve; retain.” Random House Dictionary of the English Language 1160 (2d ed. 1987). Even assuming the teacher’s grade book is an education record— a point the parties' contest and one we do not decide here— the score on a student-graded assignment is not “contained therein,” § 1232g(b)(l), until the teacher records it. The teacher does not maintain the grade while students correct their peers’ assignments or call out their own marks. Nor do the student graders maintain the grades within the meaning of § 1232g(a)(4)(A). The word “maintain” suggests FERPA records will be kept in a filing cabinet in a records room at the school or on a permanent secure database, perhaps even after the student is no longer enrolled. The student graders only handle assignments'for a few moments as the teacher calls out the answers. It is fanciful to say they maintain the papers in the same way the registrar maintains a student’s folder in a permanent file.

The Court of Appeals was further mistaken in concluding that each student grader is “a person acting for” an educational institution for purposes of § 1232g(a)(4)(A). 233 F. 3d, at 1216. The phrase “acting for” connotes agents of the school, such as teachers, administrators, and other school employees. Just as it does not accord with our usual understanding to say students are “acting for” an educational institution when they follow their teacher’s direction to take a quiz, it is equally awkward to say students are “acting for” an educational institution when they follow their teacher’s direction to score it. Correcting a classmate’s work can be as much a part of the assignment as taking the test itself. It is a way to teach material again in a new context, and it helps show students how to assist and respect fellow pupils. By explaining the answers to the class as the students correct the papers, the teacher not only reinforces the lesson but also discovers whether the students have understood the material and are ready to move on. We do not think FERPA prohibits these educational techniques. We also must not lose sight of the fact that the phrase “by a person acting for [an educational] institution” modifies “maintain.” Even if one were to agree students are acting for the teacher when they correct the assignment, that is different from saying they are acting for the educational institution in maintaining it.

Other sections of the statute support our interpretation. See Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 809 (1989) (“It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme”). FERPA, for example, requires educational institutions to “maintain a record, kept with the education records of each student.” § 1232g(b)(4)(A). This record must list those who have requested access to a student’s education records and their reasons for doing so. Ibid. The record of access “shall be available only to parents, [and] to the school official and his assistants who are responsible for the custody of such records.” Ibid.

Under the Court of Appeals’ broad interpretation of education records, every teacher would have an obligation to keep a separate record of access for each student’s assignments. Indeed, by that court’s logic, even students who grade their own papers would bear the burden of maintaining records of access until they turned in the assignments. We doubt Congress would have imposed such a weighty administrative burden on every teacher, and certainly it would not have extended the mandate to students.

Also, FERPA requires “a record” of access for each pupil. This single record must be kept “with the education records.” This suggests Congress contemplated that education records would be kept in one place with a single record of access. By describing a “school official” and “his assistants” as the personnel responsible for the custody of the records, FERPA implies that education records are institutional records kept by a single central custodian, such as a registrar, not individual assignments handled by many student graders in their separate classrooms.

FERPA also requires recipients of federal funds to provide parents with a hearing at which they may contest the accuracy of their child’s education records. § 1232g(a)(2). The hearings must be conducted “in accordance with regulations of the Secretary,” ibid., which in turn require adjudication by a disinterested official and the opportunity for parents to be represented by an attorney. 34 CFR § 99.22 (2001). It is doubtful Congress would have provided parents with this elaborate procedural machinery to challenge the accuracy of the grade on every spelling test and art project the child completes.

Respondent’s construction of the term “education records” to cover student homework or classroom work would impose substantial burdens on teachers across the country. It would force all instructors to take time, which otherwise could be spent teaching and in preparation, to correct an assortment of daily student assignments. Respondent’s view would make it much more difficult for teachers to give students immediate guidance. The interpretation respondent urges would force teachers to abandon other customary practices, such as group grading of team assignments. Indeed, the logical consequences of respondent’s view are all but unbounded. At argument, counsel for respondent seemed to agree that if a teacher in any of the thousands of covered classrooms in the Nation puts a happy face, a gold star, or a disapproving remark on a classroom assignment, federal law does not allow other students to see it. Tr. of Oral Arg. 40.

We doubt Congress meant to intervene in this drastic fashion with traditional state functions. Under the Court of Appeals’ interpretation of FERPA, the federal power would exercise minute control over specific teaching methods and instructional dynamics in classrooms throughout the country. The Congress is not likely to have mandated this result, and we do not interpret the statute to require it.

For these reasons, even assuming a teacher’s grade book is an education record, the Court of Appeals erred, for in all events the grades on students’ papers would not be covered under FERPA at least until the teacher has collected them and recorded them in his or her grade book. We limit our holding to this narrow point, and do not decide the broader question whether the grades on individual student assignments, once they are turned in to teachers, are protected by the Act.

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Scalia,

concurring in the judgment.

I agree with the Court that peer-graded student papers do not constitute “education records” while they remain in the possession of the peer grader because, as the Court explains, a student who grades another’s work is not “a person acting for” the school in the ordinary meaning of that phrase. Ante, at 432, 433. I cannot agree, however, with the other ground repeatedly suggested by the Court: that education records include only documents kept in some central repository at the school. Ante, at 433 (“The word ‘maintain’ suggests FERPA records will be kept in a filing cabinet in a records room at the school or on a permanent secure database .... It is fanciful to say [student graders] maintain the papers in the same way the registrar maintains a student’s folder in a permanent file”), 435 (“FERPA implies that education records are institutional records kept by a single central custodian, such as a registrar . . .”).

As the Court acknowledges, ante, at 429, 432, Congress expressly excluded from the coverage of FERPA “records of instructional... personnel... which are in the sole possession of the maker thereof and which are not accessible or revealed to any other person except a substitute,” 20 U. S. C. § 1232g(a)(4)(B)(i). Respondent argues that this exception, which presumably encompasses many documents a teacher might create and keep in the classroom, including a grade book, would be rendered superfluous if education records included only “institutional records kept by a single central custodian, such as a registrar.” We do not, of course, read statutes in such fashion as to render entire provisions inoperative. United States v. Nordic Village, Inc., 503 U. S. 30, 35-36 (1992).

The Court does not explain why respondent’s argument is not correct, and yet continues to rely upon the “central custodian” principle that seemingly renders the exception for “records of instructional... personnel” superfluous. Worse still, while thus relying upon a theory that plainly excludes teachers’ grade books, the Court protests that it is not deciding whether grade books are education records, ante, at 433. In my view, the Court’s endorsement of a “central custodian” theory of records is unnecessary for the decision of this case, seemingly contrary to § 1232g(a)(4)(B)(i), and (when combined with the Court’s disclaimer of any view upon the status of teachers’ grade books) incurably confusing. For these reasons, I concur only in the judgment of the Court.