The Bush administration has urged the U.S. Supreme Court not to grant review of an Oklahoma case that centers on whether the practice of having students grade each other’s classwork violates federal law.
The solicitor general’s office says in a legal brief recently filed with the justices that a federal appeals court was wrong to strike down the grading practice as a violation of the Family Education Rights and Privacy Act, or FERPA. But rather than review and overturn the ruling, the court should allow the Department of Education to issue formal regulations clarifying that FERPA does not prohibit student grading and similar classroom practices, the brief argues.
“The department has determined that it will issue regulations or other formal guidance setting forth a more detailed analysis of the meaning of ‘education records’ under FERPA and the application of that term and of FERPA not only to the particular practice at issue in this case, but also to a variety of other practices,” said the solicitor general’s brief filed in Owasso Independent School District v. Falvo (Case No. 00- 1073).
FERPA, also known as the Buckley Amendment, 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, Okla., parent, Kristja J. Falvo, complained to the school 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.
Last July, a three-judge panel of the U.S. Court of Appeals for the 10th Circuit, in Denver, ruled unanimously that Ms. Falvo had no valid 14th Amendment claim, but that the grading practices violated FERPA.
The appellate panel rejected the Education Department’s view, contained in a 1993 policy letter, that students’ grading of each other’s work was not yet an education record maintained by the school district.
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.
Meanwhile, the ruling has caused concern for school districts and teachers, who fear that it could mean several common classroom practices might be prohibited under FERPA. The National Education Association asked the Education Department to issue regulations clarifying the meaning of the law.
Jim Bradshaw, a department spokesman, said last week that officials were “considering the best means of clarifying our position.”
Under Supreme Court rulings, formal regulations would likely be accorded more deference by the federal courts than the 1993 policy letter. But such regulations might not free schools in the six states covered by the 10th Circuit from that court’s ruling against student grading.
“Until the Supreme Court addresses the issue, I think the rule announced in Falvo will be in force in the 10th Circuit regardless of any regulations from the Education Department,” said Jerry A. Richardson, a lawyer for the Owasso district.
The district appealed the 10th Circuit court’s ruling to the high court, which in March asked the Bush administration for its views on the case.
A version of this article appeared in the June 20, 2001 edition of Education Week as Administration: Student-Grading Flap Not a Federal Case