Justices Signal Interest in Appeal Over Grading Practices

By Mark Walsh — March 14, 2001 3 min read
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The U.S. Supreme Court asked the Bush administration last week for its views about a federal appeals court ruling that struck down the practice of having students grade each other’s schoolwork.

The March 5 request from the justices increases the odds somewhat that they will review an appeal from the Owasso, Okla., school district, whose classroom grading practices were found to be in violation of the Family Education Rights and Privacy Act, or FERPA. The federal law, also known as the Buckley Amendment, guarantees the privacy of education records.

Many educators see benefits in having classmates exchange their tests or other work to be graded, and the ruling last July by a panel of the U.S. Court of Appeals for the 10th Circuit, in Denver, has caused some concern.

“This common practice ... allows students to receive immediate feedback on, and evaluation of, their daily work,” says a friend-of-the-court brief filed by the Oklahoma Education Association in support of the district in Owasso Independent School District v. Falvo (Case No. 00-1073).

FERPA prohibits educational institutions from releasing students’ school records without parental consent. The question in the Oklahoma case is whether allowing students to grade one another’s work constitutes the release of an educational record.

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

A federal district court ruled for the district on both issues, giving deference to a 1993 letter from the family-policy-compliance office in the U.S. Department of Education. That letter said the classroom-grading practices did not violate FERPA because those grades were not yet education records “maintained” by an education institution.

As part of the Owasso case, the head of the Education Department office gave an affidavit that the 1993 letter represented his office’s interpretation of FERPA.

Last July, the three-judge panel of the 10th Circuit court ruled unanimously that Ms. Falvo had no valid 14th Amendment claim, but that the grading practices violated FERPA. The court said the Education Department’s letter was not entitled to deference.

The 6,700-student Owasso district sought a rehearing before the full 10th Circuit court last fall. The request was denied by a 6-4 vote, which leaves the panel’s opinion as the law in that circuit, which covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.

The four dissenting judges on the full 10th Circuit noted that under FERPA, teachers’ grade books are not considered education records.

“If the teacher’s grade book normally does not constitute an ‘education record,’ how can it be that individual grades on papers can be ‘education records?’” the dissenters wrote.

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

Last week, the justices asked the U.S. solicitor general to offer an opinion on whether they should hear the case. The process will likely take several months.

Valedictory Prayer

Separately last week, the high court declined to hear the appeal of two California brothers who were barred by school administrators from delivering a religious message in their valedictory addresses at two graduation ceremonies.

Chris and Jason Niemayer, who were valedictorians at Oroville (Calif.) High School in 1998 and 1999, respectively, each sought to use the address to deliver a Christian message. School administrators who reviewed the speeches in advance declined to let the brothers deliver them, citing the First Amendment’s prohibition against a government establishment of religion.

The brothers sued, but lost in both federal district court and the U.S. Court of Appeals for the 9th Circuit. A three-judge panel of the San Francisco-based appellate court, which ruled unanimously last year, said a religious speech by the valedictorian “would have borne the imprint of the district” and thus violated the establishment clause.

The Supreme Court declined without comment to hear the brothers’ appeal in Niemayer v. Oroville Union High School District (No. 00-1074).

A version of this article appeared in the March 14, 2001 edition of Education Week as Justices Signal Interest in Appeal Over Grading Practices


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