Excerpt from the Chronicle of Higher Education Online, 2/25/02
Privacy Law Does Not Preclude Use of Student Graders, Supreme Court
Rules
By BEN GOSE
The U.S. Supreme Court ruled last week that a federal privacy law
governing educational records does not prohibit teachers from asking
students to grade one another's work.
The 9-to-0 decision ends a challenge filed by an Oklahoma mother who had
argued that so-called peer grading violates the Family Educational
Rights and Privacy Act because the grades are disclosed without parental
consent.
The language that Congress used in establishing FERPA "implies that
education records are institutional records kept by a single central
custodian, such as a registrar, not individual assignments handled by
many student graders," Justice Anthony M. Kennedy wrote for himself and
seven colleagues. Justice Antonin Scalia filed a concurring opinion, in
which he agreed that FERPA did not apply to student graders but said it
might apply to marks maintained by teachers.
Justice Kennedy noted that the law requires schools and colleges that
receive federal funds to offer parents a hearing at which they could
contest the accuracy of their child's educational records. "It is
doubtful Congress would have provided parents with this elaborate
procedural machinery to challenge the accuracy of the grade on every
spelling test and art project the child completes," he wrote.
Krisja J. Falvo, a mother of three, had filed the lawsuit against the
Owasso, Okla., school district after her learning-disabled son was
ridiculed as a "dummy" when his poor grades were read aloud to
sixth-grade classmates. A federal district court ruled for the school
district in 1998. However, the U.S. Court of Appeals for the 10th
Circuit sided with Ms. Falvo in 1999.
Ms. Falvo said last week that she and her supporters would turn from the
courts to Congress, and try to persuade lawmakers to change the law.
While most critics of peer grading are parents of children in elementary
and secondary school, Ms. Falvo said that she has friends who are in
college, "and they certainly don't want their grades posted on
[professors'] doors" or read aloud to the class.
The American Council on Education and the National School Boards
Association had filed a Supreme Court brief backing the Owasso district.
The brief argued that if peer grading were deemed a violation of FERPA,
"teachers throughout the nation would be required to abandon time-tested
instructional methods," such as posting exemplary papers or assignments
in the classroom, and having students exchange and assess written work
that had already been graded by the instructor.
"It's a very welcome decision," said Sheldon E. Steinbach, vice
president and general counsel at the education council.
The Bush administration had also backed the school district; the U.S.
Education Department is responsible for enforcing the privacy law.
Jim Bradshaw, a spokesman for the department, said that its officials
were pleased with the ruling in Owasso Independent School District v.
Falvo and would "work as quickly as we can" to write clarifying
regulations.
Colleges are eyeing with even greater interest another case involving
FERPA that will be heard by the Supreme Court in April. In Gonzaga
University v. Doe, the court will decide whether an individual can sue a
college for violating FERPA (The Chronicle, January 25).