High court rules ‘trade and grade’ not violation of FERPA

Posted 3:11 p.m. Feb 27

by Marcus Mrowka

(U-WIRE) WASHINGTON – The Supreme Court ruled last week that peer grading does not violate the 1974 Family Education Rights and Privacy Act (FERPA), also known as the Buckley Amendment after its author, Sen. James Buckley (R-N.Y.).

The 9-0 decision marked the first time the court had ruled on a case involving FERPA.

The High Court decided student papers that were graded by peers are not educational records that could be covered by the 1974 law because the students could not be considered “agents” of the school.

“The student-graders only handle assignments for a few moments as the teacher calls out the answers,” Justice Anthony M. Kennedy wrote in his decision. “Correcting a classmates’ work can be as much a part of an assignment as taking the test itself. It is a way to teach material again in a new context, and it helps show students how to assist and respect fellow pupils.”

Kristja Falvo filed a lawsuit in 1998 against the Tulsa, Okla., suburb school board, arguing “peer grading” was embarrassing her children.

The popular “peer grading” system allows students to swap papers as the teacher reads off the answers, and students correct each other’s papers. Often times the grades then are read aloud to the teacher, or the student may walk up to the teacher to give his or her grade in a more confidential way.

Falvo argued this practice violated FERPA and demanded the school suspend the practice of peer grading.

In 1998 the U.S. District Court for the Northern District of Oklahoma granted a judgment in favor of the school board. The court held that grades put on paper by another student are not records “maintained by an educational agency or institution or by a person acting for such agency or institution” and do not constitute “educational records” under the act.

In 2000 the 10th U.S. Circuit Court of Appeals reversed the lower court’s decision that the grades marked by students on each other’s work are not educational records protected by the statute. The school board appealed to the Supreme Court, and opening arguments were presented last November.

“The precise question for us is whether peer-graded classroom work and assignments are educational records,” Kennedy wrote in the opinion of the court.

Associate Justice Antonin Scalia agreed with the rest of the justices on the fact peer-graded papers are not “educational records” but wrote in a concurring of judgment opinion, “I cannot agree, however, with the other ground repeatedly suggested by the court that educational records include documents kept in some central repository at the school.”

The Reporter’s Committee for Freedom of the Press and the Student Press Law Center warned the court in a friend-of-the-court brief that “recognizing a right to sue under FERPA would bolster ongoing efforts by school administrations to stop publication of newsworthy information about students.”

The brief also urged the court to clarify the definition of FERPA and “reaffirm that schools not be allowed to use it to restrict the release of all documents relating to students, especially those created by student journalists.”

The High Court chose not to address other questions involving FERPA, like what defines an educational record and whether individuals have any right to sue under the law. Those decisions will be addressed in the upcoming Gonzaga v. Doe case, expected to be before the court in March.

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