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Justices hear arguments on whether peer grading violates federal law

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    NMU         U.S. SUPREME COURT         Freedom of Information         Nov 27, 2001    

Justices hear arguments on whether peer grading violates federal law

  • In oral arguments centered on whether the shouting out of quiz grades by a student constitutes release of an “educational record” in violation of the Buckley Amendment, justices indicated that the definition of such records — and whether their release can be the basis of a civil rights suit — is unclear.

Attorneys for an Oklahoma school district and a parent of a student in that district debated before the U.S. Supreme Court this morning whether the calling out of a grade during a peer-grading session constituted an unauthorized disclosure of an educational record under a federal privacy law.

The Family Education Rights and Privacy Act, known as FERPA, withholds federal funding from schools if they disclose personally identifiable information from student records. Congress created FERPA to allow students and their parents access to school records while barring the release of private information to anyone else. It is popularly known as the Buckley Amendment.

In the case before the Supreme Court today, Kristja J. Falvo, mother of three children in the Owasso School District, claimed that peer grading — where students grade each other’s quizzes and then call out scores to the teacher — violates FERPA. Falvo said she became concerned because of humiliation one of her children, who has a learning disability, faced when the scores were called out to the teacher.

Failing to persuade the teacher or the school district to change the policy, Falvo sued the school district on Oct. 6, 1998. She argued that she did not consent to the disclosure of her child’s scores through peer grading. Thus, she claimed, the practice violated the confidentiality of records guaranteed by FERPA.

After a federal district court summary judgment in favor of the school district, Falvo appealed to the U.S. Court of Appeals in Denver (10th Cir.), which reversed the lower court’s decision.

At oral arguments before the Supreme Court, the issue narrowed down to what constitutes an educational record.

Jerry A. Richardson, the school district’s attorney, said that FERPA violation claims must pass a two-part test: whethr the schools “maintained” a record containing personally identifiable information and whether they wrongly released the record.

Richardson argued that the word “maintain” suggested a long-term effect on a student such as a record that a secondary school or employer might want to view.

Based on this definition, Richardson tried to distinguish between a teacher’s grade book and a transcript, arguing that a grade book was not an accurate portrayal of “record” as intended by FERPA because it was an evaluation of the student’s abilities, rather than an institutional recording of a final recorded grade.

Richardson argued that the calling out of a score did not constitute disclosure of an educational record since that grade was not yet “maintained” by the teacher.

Wilfred K. Wright, Jr., the attorney for Falvo, argued that the simultaneous disclosure by a student and the teacher’s recording of a student’s score constituted release of an educational record that violated FERPA.

Wright also argued that parents have the ultimate authority over the education of their children and that FERPA was intended to protect that right. Based on this right, the school district should be enjoined from peer grading since it violates the privacy rights of the student and the confidentiality between the student and the school.

Wright suggested that parents be given consent forms to allow peer grading to continue.

Several justices did not seem comfortable with Wright’s definitions.

“I don’t see what record has been disclosed,” said Justice Antonin Scalia. “It isn’t in the grade book yet; what is the record that is being disclosed?”

Two justices also questioned whether the case should have made it in to federal court at all. The appellate court had concluded that a civil rights suit like that brought by the Falvos can be brought under FERPA, but several groups argued in friend-of-the-court briefs that there is no personal “right” created by FERPA that can support a civil rights claim. Justices Anthony Kennedy and Sandra Day O’Connor raised the issue briefly during oral arguments.

Since schools have often used FERPA as a reason for not disclosing education records, the Reporters Committee for Freedom of the Press submitted a friend-of-the-court brief, urging reversal of the appellate decision and for the Supreme Court to clarify the conflicting definitions of “education record” under FERPA.

(Owasso Public Schools v. Falvo) MM

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© 2001 The Reporters Committee for Freedom of the Press

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