Law & Courts

Peer Grading Passes Muster, Justices Agree

By Mark Walsh — February 27, 2002 6 min read

Allowing students to grade each other’s papers in class does not violate the federal law that guarantees the privacy of education records, a unanimous U.S. Supreme Court ruled last week.

Jerry A. Richardson, a lawyer for the Owasso, Okla., school district, speaks to reporters after arguing the peer- grading case in November. The Supreme Court ruled for the district this week.
—Allison Shelley/Education Week

Besides upholding so-called peer grading, the ruling helps protect such common classroom practices as assigning work to teams of students and affixing gold stars to student’s papers.

The court rejected arguments by an Oklahoma family that peer grading violates the Family Educational Rights and Privacy Act, or FERPA, a 1974 federal law also known as the Buckley Amendment. The practice does not fall under the legal umbrella of student education records that school districts receiving federal money must keep private, Justice Anthony M. Kennedy said in the court’s opinion.

A “construction of the term ‘education records’ to cover student homework or classroom work would impose substantial burdens on teachers across the country,” Justice Kennedy wrote in the Feb. 19 opinion in Owasso Independent School District v. Falvo (Case No. 00- 1073).

Kristja J. Falvo, who had children enrolled in the 6,700-student Owasso district near Tulsa, objected to the practice of peer grading in her children’s schools during the 1997-98 school year. She argued that it embarrassed her son Philip, who at the time was a 6th grade special education student assigned to a regular classroom.

The district offered to excuse Ms. Falvo’s children from peer grading, but refused her request to stop the practice altogether. She sued the district under FERPA.

An Early Victory

A federal district court ruled for the school district in 1998. But 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.

At the Nov. 27 oral arguments before the Supreme Court, the justices had appeared skeptical of the contention that peer grading violated the statute. But the court also devoted attention to a separate issue: whether individuals have any right to bring a lawsuit claiming a violation of FERPA.

Right to Sue

The Owasso district had never raised the defense in the lower courts that there was no private right to sue under FERPA. The 10th Circuit court brought up the issue on its own and decided that there was a private right to sue to enforce the law.

In January, the justices granted review of another FERPA case that squarely presents the question of whether the federal statute authorizes private lawsuits. Some legal observers had expected the high court to hold on to the Owasso case until it decided the case known as Gonzaga University v. Doe (No. 01- 679). (“Court Accepts Appeal in Privacy-Law Case,” Jan. 23, 2002.)

But the justices went ahead with their decision, apparently because they wanted to overturn a 10th Circuit court ruling that they believed was onerous for schools.

Justice Kennedy said that for the purposes of the Owasso case, the court was assuming, without actually deciding, that “private parties may sue an educational agency ... to enforce the provisions of FERPA here at issue.”

He viewed the peer-grading question through the lens of the recent concern by the court’s more conservative members, including Justice Kennedy, for preserving states’ power.

The 10th Circuit court’s view that peer grading violates FERPA “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,” he wrote.

Justice Kennedy noted that the appellate court had reasoned that student graders “maintain the grades” of their classmates’ work until the grades are reported to the teacher.

“The Court of Appeals’ logic does not withstand scrutiny,” Justice Kennedy said.

The word “maintain” in the statute suggests student 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,” he said.

“The student graders only handle assignments for a few moments as the teacher calls out the answers,” he added. “It is fanciful to say they maintain the papers in the same way the registrar maintains a students’ folder in a permanent file.”

Gold Stars

Justice Kennedy even appeared to endorse the practice of peer grading.

“Correcting a classmate’s work can be as much a part of the assignment as taking the test itself,” Justice Kennedy wrote. “It is a way to teach material again in a new context, and it helps show students how to assist and respect fellow pupils.”

Prohibiting peer grading would require teachers to spend more time grading papers, might limit practices such as “group grading of team assignments,” and would mean federal law does not allow other students to see papers in which the teacher has put “a happy face, a gold star, or a disapproving remark,” he said.

Justice Kennedy said the court was not ruling on whether grades recorded in teacher grade books are protected under FERPA. The law contains an exception for records of instructional, supervisory, and administrative personnel that are “in the sole possession of the maker.”

One goal of that exception was apparently to allow districts to share a teacher’s grade book or notes about students with a substitute teacher.

Lawyers for Ms. Falvo had argued to the high court that teachers’ grade books are records protected by the law, while lawyers for the school district and the Bush administration took the opposite view.

Scalia’s Opinion

In an opinion concurring in the result of the case, Justice Antonin Scalia said he agreed that peer-graded student papers are not education records under FERPA.

But he said he could not endorse Justice Kennedy’s view that the law applied only to student records maintained by a “central custodian.”

If the only records covered by the law were those kept in a central repository, the law’s exception for “sole possession” notes would be superfluous, Justice Scalia said.

“In my view, the court’s endorsement of a ‘central custodian’ theory of records is ... incurably confusing,” he wrote.

Most education groups had lined up on the side of the Owasso school district and were relieved by the Supreme Court’s decision.

“As a policy matter, this ruling leaves discretion where it belongs, at the local level and within local control,” said Anne L. Bryant, the executive director of the National School Boards Association.

‘The Human Issue’

Conservative groups such as the Eagle Forum and the Rutherford Institute had sided with Ms. Falvo, arguing that peer grading is an unsound educational practice, and that parents should be able to challenge alleged violations of FERPA in court.

“This court did not reach the human issue,” said John W. Whitehead, the president of the Charlottesville, Va.-based Rutherford Institute, which helped represent Ms. Falvo.

“This practice has a negative effect on some children,” Mr. Whitehead added. “In the wake of this decision, I don’t think school boards should be jumping up and down with joy. They should recognize a problem has been raised here.”

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A version of this article appeared in the February 27, 2002 edition of Education Week as Peer Grading Passes Muster, Justices Agree

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