Law & Courts

Grading Case Takes High Court Back to School

By Mark Walsh — December 05, 2001 5 min read

A lively U.S. Supreme Court oral argument last week had several justices recalling their own school days and wondering whether common classroom practices were threatened by a strict interpretation of federal law.

Kristja J. Falvo and her lawyer, Wilfred K. Wright, Jr., discuss her case outside the Supreme Court after the Nov. 27 arguments.
—Allison Shelley/Education Week

The issue before them was whether the Family Educational Rights and Privacy Act of 1974 prohibits the assignment of students to grade each other’s classroom work and call out the scores for the teacher to record in a grade book.

Wilfred K. Wright Jr., the lawyer for an Oklahoma mother who objected to the practice in her children’s classrooms, argued that so-called peer grading violates FERPA because it involves a disclosure of student grades without parental consent.

A student’s announcement of a score in class “is a record that has been disclosed because the teacher is gathering a record,” Mr. Wright said.

But he faced a highly skeptical court during the Nov. 27 arguments in Owasso Independent School District v. Falvo (Case No. 00-1073).

Justice Antonin Scalia, noting that the statute refers to “records, files, documents, and other materials” maintained by an educational institution about students, said he failed to see how a student’s classroom announcement of a quiz score qualifies as a record under FERPA.

“The child shouts out ‘A'—that is a record?” he asked Mr. Wright.

The lawyer said the simultaneous process in which a child calls out the score and the teacher records it is a disclosure of an education record and thus is covered by the law.

Justice Anthony M. Kennedy asked whether Mr. Wright’s interpretation of the law would prohibit teachers from putting gold stars on student’s classwork if they were noticeable to other students.

“Or these days, maybe it’s a Post-It note with a happy face on it. The federal government prohibits that?” he asked.

A Judicial Memoir

Justice Stephen G. Breyer also appeared concerned that such an interpretation would stifle teachers’ classroom practices, including one he recalled from his youth.

The justice explained that in 3rd grade he was a good student, but that his teacher, Mrs. Rosemond, believed he sometimes talked too much in class. After two warnings accompanied by check marks in her grade book, she would say, “ ‘Stephen, that’s the third time. You now have a mark on your report card,’” the justice recounted. Would such classroom warnings run afoul of FERPA, he wondered.

“If she was making a record, I would say that is a disclosure,” Mr. Wright said.

Justice Breyer responded that he might be “way out of date,” but that in his youth, grades were disclosed in class as an incentive for others to improve.

“I might be tempted to draw the line to give the teacher maximum power to run the classroom,” he said.

Kristja J. Falvo discusses her case outside the Supreme Court.
—Allison Shelley/Education Week

The case arose when Kristja J. Falvo, the mother of four children in the 6,700-student Owasso, Okla., school district, objected to the practice of peer grading in the 1997-98 school year. Three of her children regularly faced the practice in their classrooms, and Ms. Falvo was concerned about the effect of classmates’ learning their grades. She was especially concerned about her son Philip, a 6th grade special education student who was being mainstreamed into a regular classroom.

The Owasso district offered to let Ms. Falvo’s children’s report their classroom grades and scores privately to their teachers. But Ms. Falvo believed the peer-grading practices violated FERPA, and she sued to stop them.

A federal district court ruled for the school district in 1998. However, the U.S. Court of Appeals for the 10th Circuit, in Denver, agreed last year with Ms. Falvo that having students exchange papers and call out scores in class violated the statute.

The school district appealed to the Supreme Court, which accepted the case for review against the advice of the U.S. solicitor general’s office. That office said the federal Department of Education was working on a set of regulations that would clarify its position that peer grading was not barred by FERPA.

Bush Backs District

Once the case was accepted for review, the Bush administration joined sides with the Owasso district in arguing against the 10th Circuit court’s interpretation of the privacy statute, which is also known as the Buckley Amendment.(“Court to Judge If Law Forbids Peer Grading,” Nov. 21, 2001.)

FERPA “does not prohibit common classroom practices such as one student grading another’s paper,” Deputy Solicitor General Edwin S. Kneedler told the justices during the oral arguments last week. “Congress did not intend FERPA to intrude in the day-to-day activities of hundreds of thousands of classrooms.”

Justice Sandra Day O’Connor asked Mr. Kneedler whether the case was simply about peer grading, or whether it also covered an argument advanced by Mr. Wright that a teacher’s grade book is an educational record covered by FERPA.

Mr. Kneedler said the court need only decide whether the classroom practices violated the statute. However, the administration takes the view that a teacher’s grade book is generally not covered by FERPA. At the least, he argued, such books are covered by an exception in the law for instructional records kept in the “sole possession of the maker” and not revealed to any other person except a substitute teacher.

The administration’s brief in the case essentially disavowed a 1998 letter opinion from the Department of Education’s family- policy-compliance office that teacher grade books were covered by FERPA.

“The act generally draws a distinction between institutional records and classroom records,” Mr. Kneedler said. “What gave rise to this act were the kinds of things found in the permanent institutional records of students.”

Jerry A. Richardson, the lawyer for the Owasso district, told the justices that under the 10th Circuit court’s interpretation of FERPA, a student’s work on a chalkboard might be an educational record under the statute because it is maintained, if only for a short time.

Record Time

Several justices asked whether the length of time a record was maintained had any bearing on whether it was covered by the law.

“What’s your definition of ‘maintained’?” Justice Scalia asked Mr. Richardson. “A week? A month? Make me an offer.” His remarks were typical of the generally breezy nature of the session.

“Congress was concerned about information that has a long-term effect,” Mr. Richardson replied. Lawmakers were concerned whether a document in a student’s permanent record was “going to be looked at by a college-admissions officer,” he said.

The case should be decided by next July.

A version of this article appeared in the December 05, 2001 edition of Education Week as Grading Case Takes High Court Back to School


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