News
Education
Feb. 20, 2002
Ruling in Privacy Case Protects Peer Grading
WASHINGTON - The Supreme Court on Tuesday ruled unanimously that the federal law protecting the privacy of school records does not prohibit the common practice of having students grade one another's homework or pop quiz papers.
Writing for the court, Justice Anthony M. Kennedy said the Family Educational Rights and Privacy Act of 1974 was intended by Congress to cover only permanent records maintained by teachers and other school employees.
"The teacher does not maintain the grade while students correct their peers' assignments or call out their own marks," Kennedy said. "Nor do the student graders maintain the grades within the meaning of [the act]."
The decision in Owasso Independent School District No. 1-011 v. Falvo, 2002 DJDAR 1869 (2002), is a setback for the mother of an Oklahoma special education student who contended that "peer grading" was humiliating for him.
The decision was narrow.
The justices did not reach the question of whether the educational privacy act applies to such test or homework grades once they are entered into the teacher's grade book.
And they did not decide whether the act allows parents or other private parties to sue school systems for violation of the act, using the civil rights statute 42 U.S.C. Section 1983, because the parties did not raise that issue. Kennedy noted, however, that the court will hear arguments on that question on April 24 in Gonzaga University v. Doe, 01-679.
In unrelated actions Tuesday, the justices granted review to four cases that will be argued next October. Among the issues raised by those cases are:
• Whether Congress exceeded its authority under the Commerce Clause when it passed the Sonny Bono Copyright Term Extension Act of 1998, which extended all existing copyrights for 20 years and future copyrights for the life of the author plus 70 years. Eldred v. Ashcroft, 01-618.
The case will determine when hundreds of thousands of books, songs and movies will be freely available on the Internet or in digital libraries. The U.S. Circuit Court of Appeals for the District of Columbia upheld the law last February, finding that it did not violate the First Amendment's freedom of speech guarantee and that Congress properly used its traditional powers to extend copyright coverage.
• Whether Alaska's law providing for dissemination of information about sex offenders on the Internet - similar to laws in 28 states - amounts to punishment and violates the Constitution's Ex Post Facto Clause by including information that predates passage of the state's law. Otte v. Doe, 01-729.
The justices will review a 9th Circuit decision, written by Judge Stephen Reinhardt, that struck down Alaska's law. An amicus brief for Alaska filed by California Attorney General Bill Lockyer noted that the California Supreme Court has upheld his state's similar "Megan's Law," which was made expressly retroactive by the California Legislature.
The school records privacy case was brought by Krista J. Falvo, the mother of three children in a Tulsa, Okla.-area school district.
Her complaint focused on her son, Philip, a middle-school special-education student who was being "mainstreamed" three days a week. Falvo said the practice of peer grading was humiliating to her son because his grades often were lower than his classmates'.
After failing to convince school officials to abandon the practice, Falvo in 1998 filed suit in the U.S. District Court for the Northern District of Oklahoma. In a complaint filed under Section 1983, she contended that the district's peer grading practice violates the educational privacy act, which requires schools receiving federal funds to keep confidential all "education records."
Falvo lost in 1999 in the District Court but won the following year before the Denver-based 10th Circuit.
In reversing that ruling Tuesday, Kennedy said that the justices' decision was guided by the "federalism" principle that the court should not "effect a drastic alteration of the allocation of existing responsibilities between States and the National Government in the operation of the Nation's schools."
In this case, it is clear that Congress in passing the act did not intend to prohibit peer-grading techniques by local schools, he added.
Expanding privacy protection to cover student homework or classroom work "would impose substantial burdens on teachers across the country" and "make it much more difficult for teachers to give students immediate guidance," Kennedy said.
It also "would force teachers to abandon other customary practices, such as group grading of team assignments," he added. "Indeed the logical consequences of [Falvo's] view are all but unbounded."
Kennedy noted that, in response to his question at argument, Falvo's attorney "seemed to agree that if a teacher in any of the thousands of covered classrooms in the Nation puts a happy face, a gold star, or a disapproving remark on a classroom assignment, federal law does not allow students to see it."
"We doubt Congress meant to intervene in this drastic fashion with traditional state functions," he concluded.
The decision drew predictable responses from lawyers in the case.
"I'm not happy with the decision or that the vote was overwhelming," said John W. Whitehead, director of the Rutherford Institute in Charlottesville, Va., who was on Falvo's brief.
"The thing they really missed here was the human issue. They didn't reach it, but courts should," Whitehead added. "There are similar suits pending around the country in which students have been humiliated and traumatized [by peer grading]."
Still, "good school districts will evaluate this decision for how they can restructure their practices so kids don't get hurt," Whitehead said. "And Congress could make it clear that when kids call out a grade and the teacher writes it down simultaneously, there is a record [protected by the act]."
Julie Underwood, general counsel of the National School Boards Association in Washington, D.C., who filed an amicus brief for the Owasso district, called the ruling "a nice decision based on common sense."
"This was an issue of local control, and the federal statute didn't intend to be that sweeping," Underwood added.
A decision the other way, she said, "would have had an incredible effect on classroom practices," including "a ban on taking attendance."
"It was a very narrow case. I'm surprised they took it," Underwood said. "I thought they intended to do something broader, to roll together federalism and the private right of action. But they will decide the other question later this term."
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David Pike
Daily Journal Staff Writer
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