Court to Judge If Law Forbids Peer Grading

By Mark Walsh — November 21, 2001 8 min read

Next week, the U.S. Supreme Court will take up a case whose impact truly will be felt in the classroom. From desk to desk, in fact.

At issue is whether teachers may require students to swap their quizzes, papers, or other work with classmates for grading. The question is whether such exchanges, as well as the practice of having students call out their own scores so the teacher may record them, amount to a violation of a federal law that guarantees the privacy of educational records.

Kristja J. Falvo, the mother of four children who attend the Owasso, Okla., public schools near Tulsa, argues that so-called peer grading runs the risk of embarrassing children in front of their classmates. Grades on such classwork fall within the protection of the Family Educational Rights and Privacy Act of 1974, her lawyers say, because they are recorded by the teacher and contribute to students’ permanent class grades.

“The practice of exchanging papers and then calling out the grades unlawfully circumvents the purpose of safeguarding the students’ personal grade information,” says the brief filed on behalf of Ms. Falvo, who won her case in a federal appeals court.

But the 6,700-student Owasso school district, backed by the Bush administration and an array of education groups, argues that the law, also known as FERPA or the Buckley Amendment, was never meant to cover such classroom practices or even routine homework assignments, quizzes, or tests. The law was enacted to protect the privacy of permanent grades and school records maintained by school systems, district court papers say.

“Congress meant to exclude from the definition of ‘education records’ teacher grade books, and the routine grades and scores recorded therein,” the district maintains.

27-Year-Old Law

Oral arguments are scheduled for Nov. 27 in Owasso Independent School District v. Falvo (Case No. 00-1073). The case marks the first time the Supreme Court will interpret FERPA, a law that has long been embraced by social conservatives and parental- rights advocates.

The law protects the privacy of students from “the increasingly intrusive demands for information by public schools,” says a brief filed in support of the Falvo family by the Eagle Forum, the St. Louis- based group founded by longtime parent advocate Phyllis Schlafly.

“The law is 27 years old, and it has been very satisfactory,” Mrs. Schlafly said in an interview.

But allowing peer grading and calling out of scores in class are clear violations of the law’s intent, Mrs. Schlafly argues.

“That is a major chipping away of FERPA,” she said.

Teachers’ unions and other education groups, meanwhile, have told the justices that peer grading of classwork is a traditional classroom teaching method that Congress did not intend to prohibit under FERPA.

“The grading practice at issue is widely used throughout the United States because many teachers ... have found it to be educationally beneficial,” says a brief filed in support of the Owasso district by the National Education Association and the American Federation of Teachers.

And the district’s strongest ally is the Bush administration, whose brief examines the legislative history of FERPA and concludes that the law applies to “institutional records, but not student homework or classroom work.”

Secret Records?

The brief submitted by Solicitor General Theodore B. Olson looks back to the 1974 enactment of the law, which was sponsored by then-Sen. James L. Buckley, who was elected from New York as a member of that state’s Conservative Party.

At the time, Sen. Buckley and other members of Congress were responding to a concern expressed in educational journals and the popular press about the permanent records schools maintained on their students.

When the senator introduced his measure, he referred to a March 1974 article in Parade magazine, the Sunday newspaper insert, titled “How Secret School Records Can Hurt Your Child.” The article discussed school records that included not only “hard data, such as IQ scores, medical records, and grades,” but also information such as teacher anecdotes and disciplinary reports “routinely filed away in school offices or stored in computer databanks.”

As originally enacted, FERPA ensured parents’ right to inspect “official records, files, and data directly related to their children,” and to have a hearing to contest inaccurate information, such as incorrectly recorded grades. It included a list of illustrative examples of the records covered, but that led educators to express concern about ambiguities in the law.

In late 1974, Congress amended FERPA by adding a definition of “education records” covered by the law. The term is defined as “those records, files, documents, and other materials which contain information directly related to a student; and are maintained by an educational agency or institution or by a person acting for such agency or institution.”

The solicitor general argues that the statute’s legislative history confirms that “Congress was concerned that institutional records maintained by schools on students contained too much misleading and inappropriate information that parents could not review, and that such information was being disclosed by schools to other people making decisions about the student, such as employers and government agencies.”

In the Bush administration’s view, FERPA applies to final course grades, student grade point averages, standardized-test scores, attendance records, intelligence tests, psychological tests, aptitude and vocational tests, disciplinary records, and individualized education plans.

“FERPA does not, however, apply to the handling of the work product of students themselves, such as routine homework assignments or tests or other classroom activities,” the solicitor general argues.

The law allows schools to disclose student “directory information,” which includes names, addresses, telephone numbers, birthdates, participation in activities, dates of attendance, and the height and weight of members of athletic teams. Parents may block the release of such information about their minor children.

Department Guidance

Ms. Falvo probably was not familiar with the legislative history of FERPA when she complained to Owasso officials about teachers who required students to exchange papers and quizzes for scoring in class. Three of her four children were in classrooms where teachers used such practices during the 1997-98 school year.

“When my son entered 6th grade, we noticed there were a lot of papers coming home with remarks such as ‘graded by Amanda,’ or so-and-so,” Ms. Falvo said in an interview last year.

She was especially concerned about her son Philip, who was a 6th grade special education student being mainstreamed into a regular classroom. Having classmates grade his work and then call out the scores in front of other students was damaging to his self-esteem, she believed.

Ms. Falvo asked Owasso officials to stop the practice, but her requests were rejected. They did tell her that her children could report their scores to their teachers confidentially.

“It is undisputed that the district accommodated any request the Falvos made with respect to their kids,” said Jerry A. Richardson, the lawyer for the district.

Ms. Falvo believed the classroom practices violated FERPA, and filed a lawsuit to stop them.

The Owasso district responded to the lawsuit by pointing to a 1993 letter ruling from the U.S. Department of Education’s office for family-policy compliance, which handles FERPA-related matters. In a query from another school district, the office said that allowing students to grade one another’s work would not violate FERPA because those grades are not yet education records maintained by the district.

A federal district judge gave deference to the Education Department’s view in ruling for the Owasso district in 1998. Ms. Falvo appealed that decision, and last year a three-judge panel of the U.S. Court of Appeals for the 10th Circuit, in Denver, ruled unanimously in her favor.

The appeals court held that the department’s letter was not entitled to deference, and that “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 Owasso district appealed to the Supreme Court, which agreed this past summer to review the case.

Possible Repercussions

Under the 10th Circuit court’s ruling, the district argues, other common educational practices might run afoul of FERPA. Band teachers could not select “first chair” and “second chair” players of instruments because that would disclose evaluations of those students’ performance, it contends. Team grades could not be awarded for group classroom projects, the district says, because each student on the team would learn the grade of his teammates.

Lawyers for Ms. Falvo argue that such fears are overblown. Because the scores resulting from peer grading are recorded in the teacher’s grade book, they constitute education records maintained by the district.

“Congress intended that the grades being recorded in the teacher’s grade book were intended to be kept private and not released to anyone without parental consent,” they told the court.

However, the argument of Ms. Falvo’s lawyers that a teacher’s grade book is an education record under the law conflicts with a view, supported by the Bush administration, that grade books fall under FERPA’s exception for records kept in the “sole possession” of an educator. The administration says that exception covers teacher’s notes and grade books, which may be shared with a substitute teacher without violating the law.

Julie Underwood, the general counsel of the National School Boards Association, said the case should provide helpful guidance about what constitutes an education record under the law.

“Schools have really learned to live with FERPA,” said Ms. Underwood, whose association has joined a brief in support of the Owasso district. “The school law community has really drilled it into educators’ brains that they cannot share student education records.”

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A version of this article appeared in the November 21, 2001 edition of Education Week as Court to Judge If Law Forbids Peer Grading


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