U.S. Supreme Court: Peer Grading Does Not Violate FERPA
 
June 5, 2002
 

Recently, the United States Supreme Court issued its decision on whether the practice of "peer grading" violates the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g (FERPA), in Owasso Independent School District v. Falvo, No. 00-1073 (February 19, 2001),

The case involved a lawsuit by Krista Falvo on behalf of her three children against Oklahoma's Owasso School District.  Three days a week, Ms. Falvo's son attended a mainstream fifth grade class instead of his special education class.  The teacher in the regular fifth grade classroom used "peer grading" as a means of grading and recording test scores.

Peer grading, as we recall from elementary school days, involves a teacher giving a test, such as a spelling or math quiz, to the students.  The students then swap papers and the teacher calls out the correct answers while the students grade their peers' papers.  Often, the teacher will have the students "call out" the scores so that she may record them in her gradebook.

Ms. Falvo objected to this practice, claiming that it humiliated her child.  She requested that the teachers cease peer grading, and when they did not, Ms. Falvo sued the school district claiming that the practice of peer grading violated FERPA. Under FERPA, educational institutions are required to preserve the confidentiality of "education records," defined as "those records, files, documents, and other materials which - (i) contain information directly related to a student, and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution."

Ms. Falvo argued that a teacher's gradebook is an education record.  She asserted that if a teacher cannot reveal a grade once it has been entered into a grade book, immediate disclosure of a grade prior to entering it into the grade book violates FERPA.

The District Court for the Northern District of Oklahoma ruled in favor of the school district, finding that the practice of peer grading and calling out grades does not violate FERPA.  The Tenth Circuit, however, reversed the lower court's decision, and ruled in favor of Ms. Falvo.  After hearing the case on November 27, 2001, the Supreme Court of the United States held that the practice of peer grading and calling out grades for recordation in a teacher's gradebook does not violate FERPA.

The Supreme Court ruled that an assignment does not become an "education record" as soon as a peer graded it.  The Court held that student assignments are not "maintained," according to the meaning of FERPA Section 1232g(a)(4)(A), during the time that other students are grading them.  The Court cited the Random House Dictionary meaning of "maintain," which is "to keep in existence or continuance; preserve; retain."  A grade on a student's paper does not fall within the definition until, at least, the teacher records it.  (Even then, the Court was not sure whether a teacher's gradebook constituted an "education record" under FERPA). 

The Court further said that "maintain" referred to records "kept in a filing cabinet in a records room at the school or on a permanent secure database."  The Court also held that student graders were not "acting for educational institutions" when asked to grade their peers' assignments.  The Court found that teachers, administrators and other school employees were the persons who "act for" the school district, not the students.  Justice Kennedy stated that "it is fanciful to say [student graders or teachers] maintain the papers in the same way the registrar maintains a student's folder in a permanent file."

The Court emphasized the value of peer grading as a teaching and learning tool.  Additionally, it determined that Congress did not intend for peer grading to infringe upon a student's rights under FERPA.  The Court concluded that deeming all classroom work an "education record" would place far too great a burden on teachers, let alone students who may briefly handle assignments. 

The Court left open several questions.  First, does FERPA give individuals a private right of action to sue for enforcement?  Second, is a teacher's gradebook an "education record" protected under FERPA?  Third, are the grades on individual student assignments, once they are turned in to teachers, protected by FERPA? 

School districts must be mindful of these outstanding questions and should consider how they will treat grades contained in teachers' gradebooks or computer grading programs; they also may need to adopt policies to ensure appropriate treatment of recorded grades.

For more information, contact Kelly A. Sherrill at 888-688-8500, or by e-mail at kasherri@hklaw.com.