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High Court finds education records law not violated by 'peer grading'

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    NMU         U.S. SUPREME COURT         Freedom of Information         Feb 19, 2002    

High Court finds education records law not violated by ‘peer grading’

  • The Court ruled in favor of an Oklahoma school district that was being sued for allowing students to grade each other’s quizzes, determining that the calling out of grades does not constitute an education record protected by the Buckley Amendment.

The U.S. Supreme Court, in a narrowly focused decision released today, ruled unanimously that peer grading and students calling out peers’ grades in the classroom do not violate the Family Educational Rights and Privacy Act of 1974, also known as the Buckley Amendment. It reversed the decision of the U.S. Court of Appeals in Denver (10th Cir.).

The specific question the Supreme Court addressed was “whether peer graded classroom work and assignments are education records.” Under FERPA, schools that disclose, without parental consent, personally identifiable information contained in student records risk loss of federal funds.

FERPA defines education records as “records, files, documents and other materials” containing information directly related to a student, “maintained by an educational agency or institution or by a person acting for such an agency or institution.”

The Supreme Court held that assignments graded by students, immediately upon being graded, do not satisfy the definition of an education record. The Court also held that a student grading papers does not “maintain” records, and a student is not considered a person acting for an educational institution.

The Court did not determine whether a teacher’s grade book is an education record.

The issue of peer grading came before the Court after Kristja Falvo, mother of three children, sued the Owasso School District in Oklahoma for allowing peer grading. She said she did not consent to the release of her children’s scores through peer grading and claimed the practice violated the confidentiality of records guaranteed by FERPA.

Falvo said her son, who has a learning disability, was humiliated by having his grades reported aloud before his classmates.

Wilfred K. Wright Jr., Falvo’s attorney, said the Court’s decision was “inaccurate and misguided” because its opinion did not mention the rights of parents when it comes to releasing their children’s records.

Despite the loss before the Court, there was a “moral victory,” said Wright, who predicted that the Owasso school district would probably stop the practice of peer grading. “Hopefully the attention this case brought will end the age-old practice of humiliating students in the classroom.”

Jerry A. Richardson, the school district’s attorney, said he was pleased with the outcome, even though the opinion has a narrow application.

“I’m gratified the Supreme Court recognized the significance of this case,” Richardson said. “I think the Court was perfectly justified for sticking to the specific question at hand.”

Richardson said the outcome was “a victory across the board.”

“This is a victory not only for education — public education — but for parents and students because education is a local concern,” he said. “Federal courts should not be involved.”

The court did not decide the threshold issue of whether a student whose records are disclosed can bring a federal civil rights claim, which the federal appellate court presumed was allowed but the parties did not brief. However, several other groups, including The Reporters Committee for Freedom of the Press, raised the question in friend-of-the-court briefs. The Reporters Committee argued that allowing civil rights claims in such cases will cause officials to withhold important public records out of fear of litigation, thus harming the public interest. The Supreme Court noted that it would address the question in a case from the Washington Supreme Court that it will hear later this term. The Reporters Committee is filing a brief in that case as well.

(Owasso v. Falvo) KG

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© 2002 The Reporters Committee for Freedom of the Press

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