The Court's Verdict

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Following are excerpts from the opinion of Justice Anthony M. Kennedy in the U.S. Supreme Court's decision in Owasso Independent School District v. Falvo.

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). We took this case to resolve the issue. ...

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." ... The precise question for us is whether peer-graded classroom work and assignments are education records. ...

Petitioners [the school district and school officials] ... 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.

Respondent [Krista J. Falvo and her children] ... contends student-graded assignments fall within the definition of education records. ...

The [U.S.] Court of Appeals [for the 10th Circuit] reasoned 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. The court thus held that student graders maintain the grades until they are reported to the teacher.

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. ...

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 [the statute]. ...

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. ...

Correcting a classmate's work can be as much a part of the assignment as taking the test itself. ... 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. ...

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.

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. ...

Vol. 21, Issue 24, Page 29

Published in Print: February 27, 2002, as The Court's Verdict
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  • Read the text of Justice Anthony M. Kennedy's opinion in the case of Owasso Independent School District v. Falvo, posted by, Feb. 19, 2002.
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