Can a teacher allow students to grade other students' work?
Supreme Court Decision in Owasso Independent School
District v. Falvo

On February 19, 2002 the United States Supreme Court overturned a lower appellate court ruling in Owasso Independent School District v. Falvo and held that the common practice of "peer grading" did not violate the Family Education Rights and Privacy Act (FERPA). As you know, peer grading involves students scoring the work of their peers as the teacher explains the answers to the assignment. Falvo, the parent of three school children, had argued that peer grading was embarrassing to her children and violated the Family Education Rights and Privacy Act (FERPA) because the process of peer grading resulted in the disclosure of an "educational record" without the advance permission of a parent. Beyond the issue of peer grading, educators have watched this case closely because potentially the Court's ruling could have upheld the lower court decision and thereby impacted a variety of common school practices, such as posting the honor roll, displaying exemplary work, or otherwise allowing students to be recognized for achievement, such as displaying ribbons on science fair projects.

Facts and Background

In Owasso, the school district used a peer grading system under which students exchanged papers with each other and scored the other student's work according to the teacher's instructions. After scoring, the assignment was returned to the student who prepared it and that student could either call out the grade or walk to the teacher's desk to disclose the grade in confidence. Falvo objected to this practice, arguing that it embarrassed her children. Falvo urged the school to adopt a uniform policy banning peer grading and requiring that teachers grade all papers or at least forbid students from grading any papers other than their own. When the school district refused to enact such a policy, Falvo brought suit, alleging that peer grading violated FERPA. Pursuant to FERPA, the Department of Education may withhold federal funds from a school district that has a "policy or practice of permitting the release of education records or other personally identifiable information . . .) of students without the written consent of their parents."

The Federal District Court held that the grades revealed to other students through peer grading were not "education records" within the meaning of FERPA. The Court further held that students did not have a legitimate expectation of privacy in their grades on homework assignments and interim tests. Falvo appealed this ruling. The Tenth Circuit Court of Appeals reversed the District Court's ruling with regard to FERPA. The Court of Appeals found that students' homework grades were "education records" within the meaning of FERPA and, therefore, the disclosure of these records through peer grading violated the statute.

The school district petitioned the Supreme Court to review the Tenth Circuit's decision, the Court then granted that request and issued a ruling which is discussed below.

The Supreme Court Decision

Initially, the Court noted that it is an open question whether FERPA provides private parties, like respondent, with a private right of action or whether the Department of Education was the sole entity authorized by Congress to enforce the statute. However, because the issue was not raised in this case, except by the Tenth Circuit, the Court determined that it would assume, without deciding, that private parties may sue to enforce the provisions of FERPA. It is important to note that the Court has granted certiorari in another case that specifically raises the issue. The Court's comments indicate that it may hold that private parties cannot sue to enforce FERPA when it hears that case, Gonzaga, later this year.

FERPA protects "education records" and as such, the pivotal question before the Court was whether peer graded assignments are education records within the meaning of the Act. "Education records" are defined as: "records, files, documents, and other materials, which-(i) contain information directly related to a student; and (ii) are maintained by an education agency or institution or by a person acting for such agency or institution." This definition includes an exception for "records of instructional, supervisory, or administrative personnel . . . which are in the sole possession of the maker thereof and which are not accessible or revealed to any other person except a substitute." This statutory definition formed the basis of a three step inquiry for the court.

As to the first part of the definition, the Court stated and the parties agreed that student assignments do contain information directly related to a student. However, following the statutory scheme and as explained in the following paragraph, these assignments become education records subject to FERPA only if they are "maintained" by an education agency, institution, or an agent of the agency or institution.

With regard to the second step of the inquiry, the Supreme Court held that the Tenth Circuit erred in concluding that a homework assignment is an education record once it has been graded by another student. First, the Court explained that student papers are not "maintained" at this stage within the meaning of the Act. Common dictionary definitions, as well as the statute, indicate that FERPA records must be kept in a secure location, such as a filing cabinet or records room, for an extended period of time. Student graders, however, only handle assignments for a short period of time. As such, the Court opined, "it is fanciful to say they (the students) maintain the papers in the same way the registrar maintains a student's folder in a permanent file."

As to the third factor, the Court explained that it was incorrect to conclude that a student grader is "a person acting for" an educational institution. While a student is following a teacher's instructions by grading a peer's assignment, the student is not "acting for" the school in the way teachers, administrators, and other employees "act for" the school. In this regard, the Court explained that rather than acting for a teacher, peer grading represents a way to teach or review material in a new context, while also teaching students how to respect and assist fellow pupils.

This interpretation comports with other language in the statute, which indicates a scheme placing burdens on the overall education institution, not individual teachers and/or students. For instance, FERPA requires a record of access for each student, which suggests that Congress envisioned education records would be kept in one place with a single record of access. FERPA also provides parents with the opportunity for a hearing regarding the accuracy of education records. This hearing process supports the notion that FERPA applies to a more limited group of documents because "[i]t is doubtful Congress would have provided parents with this elaborate machinery to challenge the accuracy of the grade on every spelling test and art project a child completes."

The Court concluded that a broader view of "education records" to cover homework and classroom assignments would impose substantial burdens on teachers throughout the country. Additionally, it is not likely that Congress intended to intervene in such a drastic fashion into traditional state and local functions, such as teaching and instructional methods.

Conclusions

In upholding the practice of peer grading, most commentators opine that practices such as assigning work to groups of students, affixing stars or comments denoting good work on student papers, and the publishing of honor rolls are protected. However, there are obviously any number of circumstances that the Court did not address and where schools make some public differentiation between students and, since this ruling is narrow, there are still potential arguments that such acts might be covered by FERPA. While we believe private lawsuits on these topics will be limited based on our presumption, which could be incorrect, that the Court in Gonzaga will rule that private parties do not have the right to maintain a cause of action to enforce FERPA, it may be that a number of complaints regarding such activity will end up at the Department of Education.