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Published in Print: July 11, 2001, as As Term Ends, Supreme Court Takes Student-Grading Case

As Term Ends, Supreme Court Takes Student-Grading Case

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The U.S. Supreme Court will decide in its next term whether school districts violate federal law when they allow students to grade each other's classwork.

The justices have agreed to hear an appeal from the Owasso, Okla., district of a federal appeals court ruling that the classroom practice violates the federal Family Educational Rights and Privacy Act, or FERPA. The law guarantees the privacy of education records.

Meanwhile, in other action during the last days of its 2000-01 term, the court struck down Massachusetts regulations that would have limited the advertising of tobacco products near schools. And it declined to hear an appeal stemming from a much-debated affirmative action case involving the University of Texas Law School.

The court's June 25 decision to hear the FERPA case was somewhat surprising in light of the fact that in early June, the Bush administration had urged it not to grant review of the appeal in Owasso Independent School District v. Falvo (Case No. 00- 1073).

A lower court's interpretation of the education privacy law was incorrect, but formal regulations forthcoming from the Department of Education will help clarify that practices such as students' grading of work by classmates do not violate FERPA, the solicitor general's office had said on behalf of the administration.

The law prohibits educational institutions from releasing students' school records without parental consent. The question in the Oklahoma case is whether allowing students to grade each other constitutes the release of an educational record.

In the 1997-98 school year, an Owasso parent, Kristja J. Falvo, complained to the district about assigning students to grade each other's work and call out the grades in class. She said the practices embarrassed her three children, who were in grades 5-7 at the time. When the district refused her request to stop the practices, she filed a lawsuit claiming they violated both FERPA and her 14th Amendment right to privacy.

Last year, a three-judge panel of the U.S. Court of Appeals for the 10th Circuit, in Denver, ruled unanimously that the grading practices violated the privacy law. The appellate panel rejected the government's view, contained in a 1993 policy letter, that students' grading of one another's work was not yet an education record.

In its appeal to the Supreme Court, the Owasso district said the 10th Circuit's ruling "has created confusion and apprehension among public educators throughout the nation regarding the legality of a common and long-standing educational practice."

The high court asked the Bush administration for its views in early March, and last month the solicitor general's office filed its brief urging that the Education Department be given time to draw up comprehensive rules dealing with whether a variety of classroom practices violate FERPA.

But lawyers for the Owasso district suggested that any such regulations, even if they were treated with deference by federal courts in future cases, would not erase the 10th Circuit ruling against classroom grading.

The case will be argued during the Supreme Court's next term, with a decision likely by next summer.

Tobacco and College

In the tobacco case, the court ruled 5-4 on June 28 that Massachusetts' proposed advertising rules were pre-empted by a 1969 federal law that limited state regulation of cigarette advertising.

The state's regulations would have barred tobacco billboards within 1,000 feet of a school or playground, and would have limited in-store displays.

"From a policy perspective, it is understandable for the states to attempt to prevent minors from using tobacco products," said the majority opinion by Justice Sandra Day O'Connor in Lorillard Tobacco Co. v. Reilly (No. 00- 596). "Federal law, however, places limits on policy choices available to the states."

She was joined on the pre-emption issue by Chief Justice William H. Rehnquist and Justices Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas. Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer dissented.

All nine justices found that the state's regulations posed a problem under the First Amendment's guarantee of free speech, with differences over Justice O'Connor's reasoning on that issue.

Separately, the court on June 25 declined without comment to hear the state of Texas' request that it review a landmark case involving affirmative action at the University of Texas Law School.

The Supreme Court had declined in 1996 to review a ruling by the U.S. Court of Appeals for the 5th Circuit, in New Orleans. A panel of that court ruled 2-1 earlier that year that race-based affirmative action could never be justified on the basis of encouraging campus diversity.

Several white applicants rejected by the law school filed the suit. Last year, in a new phase of the case about whether the white students would have been admitted without regard to race, another 5th Circuit panel reiterated the 1996 ruling against affirmative action for diversity.

The state used the latest ruling to urge review of whether universities can consider race to "achieve reasonable ethnic diversity."

The justices' refusal to accept the appeal in Texas v. Hopwood (No. 00-1609) is not a ruling on the merits of affirmative action in higher education. In fact, the court declined in May to review a virtually opposite ruling by the U.S. Court of Appeals for the 9th Circuit, in San Francisco, that consideration of race for campus diversity was allowed under the Supreme Court's 1978 decision in Regents of the University of California v. Bakke.

Most legal observers believe the justices want the issue to percolate a little longer, given that there are other higher education affirmative action cases moving through the courts, such as those involving the University of Michigan and the University of Georgia.

Other Action

In other action in the final weeks of its term, the court:

  • Ordered the Fifth Circuit court to reconsider its ruling that upheld a Louisiana school district's refusal to rent its facilities for after-hours use by a chapter of the Christian Coalition.

The justices told the appeals court to reconsider the case in light of their June 11 decision in Good News Club v. Milford Central School, which upheld the right of a student Bible club to meet after hours in a public school. The appeal was Campbell v. St. Tammany Parish School Board (No. 00-1194).

  • Declined to hear an appeal from a former Alabama school official who has spent years challenging alleged unconstitutional religious practices in his district, such as organized student prayers before games and graduation.

The appeal filed by former DeKalb County, Ala., assistant principal Michael Chandler said the U.S. Court of Appeals for the 11th Circuit, in Atlanta, had failed to analyze his case in light of the Supreme Court's ruling last year striking down student-led prayers before football games in a Texas district. The case was Chandler v. Siegelman (No. 00-1606).

  • Refused to hear the appeal of an Oregon mother who claimed her son was barred by his public school from reading a Bible story before his class. A federal district judge ruled that the school district could bar all religious stories without running afoul of the First Amendment. On appeal, a panel of the 9th Circuit split 6-6, leaving the district court's judgment in place. The Supreme Court appeal was Hood v. Medford Township Board of Education (No. 00-845).

Vol. 20, Issue 42, Page 30

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