Fortunately, the Supreme Court appears ready to decide this case without interfering in the classroom, yet still maintaining the integrity of the law to protect the privacy of educational "records." Peer Grading: An Issue for the Schools Not the Courts

As teachers and students return to schools following the holiday break, many school districts will begin reviewing their in-classroom grading procedures. This comes after oral arguments heard last month in a case before the U.S. Supreme Court involving the legality under federal law of students grading one another’s papers.

The case, Owasso Independent School District v. Falvo, is on appeal from the Tenth Circuit Court of Appeals. The appellate court in Denver ruled in favor of the parent, Kristja Falvo, who claimed that the federal Family Education Rights and Privacy Act prohibits the practice of peer grading because the law is aimed at protecting records that are maintained by the school. Of particular offense to Ms. Falvo is student grading that results in students’ grades being called out in front of the class, a practice that resulted in her reading-disabled son being labeled by classmates as a "dummy" when his low scores were read.

The question the Supreme Court is asked to answer is whether Congress intended to prohibit students from grading each other’s papers when it passed the privacy law in 1974. The law, commonly referred to as the Buckley Amendment because it was written by then-Senator James Buckley from New York, was adopted in response to parental concern that information from students’ files could prove damaging or embarrassing if released without their notice, particularly in the college-application process.

The intent of the law, certainly a good one, is to make sure that schools do not reveal student’s records without a parent’s permission. The law defines education records as documents or other materials by which an individual student can be identified and that are maintained by a school or by someone acting on the school’s behalf.

For almost 30 years since the Buckley Amendment was passed, parents and educators have debated other aspects of the law and its application, but this is the first time the Supreme Court has been called upon to determine what the law actually means. At oral argument, the Justices did not appear pleased that this case has made it all the way to them.

Justice Kennedy’s dismay was exemplified when he asked Falvo’s lawyers whether teachers should also be barred from putting smiley-face stickers on students’ papers. Justice Stevens added that academic performance is not a well-kept secret in any student environment. Justices O’Connor and Scalia both questioned how the law could apply to scores that are called out in class but have not yet been logged into a teacher’s gradebook. Justice Breyer added that he was frequently admonished by a third-grade teacher for talking too much in class with her announcing that he would receive a negative mark on his next report card, a pronouncement that likely would violate the Buckley Amendment under Falvo’s interpretation.

Although no parent should be chastised for wanting to protect her child from an embarrassing moment, asking the U.S. Supreme Court, or any court for that matter, to interfere in traditional classroom activities in the name of privacy is going too far (not to mention counterproductive). A ruling in Falvo’s favor calls into jeopardy the long-standing practice of posting honor rolls, letting parent volunteers help with grading, and perhaps even calling students to the board to work out problems in front of the class. If we think there is a classroom crisis now with teacher shortages, image how bleak it would be if these changes are imposed.

"This act does not enter the classroom," said Deputy U.S. Solicitor General Edwin S. Kneedler, adding that the privacy act "does not prohibit the common classroom practice of one student grading another student’s paper." Commentators speculate that the Supreme Court will narrow the Tenth Circuit’s decision by ruling that it was wrong to extend the law to cover an instance not specifically addressed. As stated by Justice Scalia at oral argument, parents and children "have no right to keep the information confidential. They have the right to keep the record confidential. . . . .It may be illogical, but I don’t see anything in the statute that prohibits it. The statute only covers certain things, and that’s a record. I don’t see a record here."

The Center strongly supports individual efforts to protect privacy, but the efforts must be logical and not infringe on the rights of other individuals, such as in this case, the right of a teacher reasonably to conduct her classroom without being under the microscope of the legal system. Certain disputes should be settled in Board of Education and PTA meetings or parent-teacher conferences, not paraded into the courts. Fortunately, the Supreme Court appears ready to decide this case without interfering in the classroom, yet still maintaining the integrity of the law to protect the privacy of educational "records."

January 4, 2002
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