The Supreme Court reserved judgment on whether FERPA provides private parties with a cause of action enforceable under section 1983, noting that it will resolve that issue later this term in another case, Gonzaga University v. Doe. An "A+" for Supreme Court Decision in Peer Grading Case

The United States Supreme Court issued its opinion Tuesday, February 19, 2002, in the peer grading case of Owasso Independent School District v. Falvo (No. 00-1073). Ruling for the school district, the Supreme Court held that allowing students to score each other’s tests and call out the grades does not violate the Family Educational Rights and Privacy Act of 1974 (FERPA). Justice Kennedy wrote the opinion for the unanimous court, with Justice Scalia writing a concurring opinion that agreed with the judgment but took issue with some of the finer points of the opinion.

In finding no violation of the Act, the Court found that the Tenth Circuit Court of Appeals erred in its reasoning regarding an education record that must be kept confidential under the Act. First, the Court ruled that student papers are not "maintained" for purposes of applicability of FERPA until the teacher records a grade. The act of peer grading and calling out the grade does not violate FERPA because at that stage, the grade is not yet part of the record "maintained" by the school. The Court, adopting the ordinary meaning of the word maintain — "to keep in existence or continuance; preserve; retain," held that the "teacher does not maintain the grade while students correct their peers’ assignments or call out their own marks." Additionally, the Court found error in the Court of Appeals’ ruling that a student grader is a "person acting for" the school and rejected any application of an agency theory to the facts of this case.

Evident of the fact that this issue should have been resolved before it became a lawsuit, and certainly before it reached the Supreme Court, Justice Kennedy made several remarks about the negative implications of a contrary decision, noting that "[w]e doubt Congress would have imposed such a weighty administrative burden on every teacher, and certainly it would not have extended the mandate to students" and
"[w]e doubt Congress meant to intervene in this drastic fashion with traditional state functions."

Justice Scalia concurred only in the judgment in this case, arguing that the majority’s opinion goes too far in suggesting "that education records include only documents kept in some central repository at the school."

The Supreme Court reserved judgment on whether FERPA provides private parties with a cause of action enforceable under section 1983, noting that it will resolve that issue later this term in another case, Gonzaga University v. Doe. For a detailed description of this matter, click here.

For background information about the peer grading case, click here.

February 22, 2001
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