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Grades Are for Students' Eyes Only, Federal Appeals Court Rules: The practices of having students grade their classmates' work and of announcing their own grades out loud in the classroom violate the federal law guaranteeing privacy in education records, a federal appeals court has ruled.

The decision by the U.S. Court of Appeals for the 10th Circuit, in Denver, was the first by a federal appellate court to consider whether those classroom practices violate the Family Education Rights and Privacy Act, or FERPA.

The unanimous ruling by a three-judge panel of the court was also significant because it rejected an interpretation of the law put forth by the U.S. Department of Education.

The law, also referred to as the Buckley Amendment, prohibits educational institutions from releasing students' school records without parental consent. The key question in the case was whether allowing students to grade one another's work or requiring them to call out their grades constituted a release of educational records.

The case arose during the 1997-98 school year, when Kristja J. Falvo, an Owasso, Okla., mother, complained about those classroom practices to the local school district, saying they embarrassed her children. District officials refused to prohibit the grading practices, so Ms. Falvo sued on behalf of three of her four children.

"They were saying this is always the way it has been done," she said in an interview.

Ms. Falvo's lawsuit argued that the grading practices violated both FERPA and her 14th Amendment right to privacy. A district court ruled for the school district on both issues, giving deference to a 1993 letter issued by the Education Department's family-policy-compliance office.

In the letter, LeRoy S. Rooker, the director of the office, responded to a query regarding another school district that allowed students to grade one another's work and announce grades in class.

The letter said such practices would not violate FERPA because those grades were not yet education records maintained by an educational institution.

As part of the Oklahoma litigation, Mr. Rooker gave an affadavit stating that the 1993 letter represented his office's interpretation of the statute.

In its July 31 ruling, the 10th Circuit court agreed that Ms. Falvo had no valid 14th Amendment claim, but it ruled in her favor on the FERPA claim.

The court said Mr. Rooker's letter was not entitled to deference under various U.S. Supreme Court rulings regarding agency interpretations of federal statutes. Furthermore, the court disagreed with Mr. Rooker's interpretation of FERPA.

"Based purely on the language of the statute itself, this court concludes the grades which students record on one another's homework and test papers and then report to the teacher constitute 'education records' under FERPA," the court's opinion said.

The 6,700-student Owasso district has asked the full 10th Circuit court to reconsider the decision.

"This could go far beyond students grading each other's papers in the classroom," said Karen Long, a lawyer for the district. Publishing the names of students on the honor roll or displaying student artwork showing an A grade could be violations of the law under the 10th Circuit's ruling, she said.

Jim Bradshaw, a spokesman for the Education Department, said officials at the federal agency were reviewing the ruling.

"We've had a request from [the National Education Association] for guidance on the ruling," he said. "It appears as if we'll be providing that in the form of a letter to the association sometime in the next few weeks."

Drug Testing: Student drug testing has been unusually popular in Indiana, where more than half the state's districts are believed to conduct random testing of athletes, participants in extracurricular activities, or other categories of students.

The trend was fueled by federal court rulings, including the U.S. Supreme Court's 1995 ruling upholding drug testing of student athletes, and a 1998 ruling by the U.S. Court of Appeals for the 7th Circuit, in Chicago, upholding an Indiana district's policy of testing extracurricular participants.

But now such testing has come to a halt, thanks to a ruling last month by a state appeals court. A three-judge panel of the Indiana Court of Appeals held that the Northwestern school district's testing policy, which covers athletes, extracurricular and co-curricular participants, and students who drive to school, violates a provision of the state constitution.

The court said the Indiana Constitution provides greater protection to students against unreasonable searches than the Fourth Amendment of the U.S. Constitution.

The court noted that the 1,700-student district in Kokomo, Ind., did not adopt its policy because of any direct correlation with increased drug use.

"Rather, [the district] admits that its goal is to prevent future tragedies," the court said in its Aug. 21 opinion. "This is an unmistakable move toward randomly testing all students."

"We see no reason to depart from requiring individualized suspicion to protect against the abuses associated with blanket suspicionless searches of school children," the court added.

Thomas Wheeler, the lawyer for the Northwestern district, said the ruling was being appealed.

Textbook Fraud: One of the nation's largest book distributors and its former parent company have agreed to pay $15.5 million to settle allegations that they overcharged schools, colleges, libraries, and government agencies for more than a decade.

W.R. Grace & Co. and its former subsidiary, Baker & Taylor Inc., were the targets of a lawsuit under the federal False Claims Act. The suit alleged that Charlotte, N.C.-based Baker & Taylor, which was owned by Columbia, Md.-based W.R. Grace until 1992, had agreed to provide discounts of about 40 percent on books for institutional customers, but did not follow through on that promise.

The suit was originally filed by a private whistleblower, but it was taken over by the U.S. Department of Justice and 18 states.

Under the settlement, W.R. Grace will pay the federal government $3 million. It will also pay $12.5 million to the 18 states, as will Baker & Taylor, which paid $3 million to the federal government last year. Both companies issued statements in which they continued to deny the allegations.

-Mark Walsh

Vol. 20, Issue 1, Page 26

Published in Print: September 6, 2000, as Law Update
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