The U.S. Supreme Court has ruled that students grading the papers of other students and even calling out the scores is not a violation of the Family Educational Rights and Privacy Act (FERPA).
Under FERPA, schools and educational agencies receiving federal funds must comply with certain conditions, which includes not releasing the education records of a student without the written consent of the student’s parents. The question put before the Supreme Court was whether peer-graded classroom work and assignments are considered education records.
In the case, filed by a parent as a class action lawsuit against the Owasso (Oklahoma) Independent School District, a teacher used a peer grading system. In a typical case, the students exchange papers with each other, score them according to the teacher’s instructions, and return the work to the student who prepared it. The teacher may ask the students to report their own scores. In the case before the Supreme Court, the student could either call out his/her score or walk to the teacher’s desk and reveal it in confidence, though by that stage the score was known at least to the one other student who did the grading.
Both the grading and the system of calling out the scores were in contention in the Owasso case. The parent who filed the suit claimed the peer grading embarrassed her children, and asked the school district to adopt a uniform policy banning peer grading and requiring teachers either to grade assignments themselves or at least to forbid students from grading papers other than their own. The school district declined to make such a change, prompting the parent to file a class-action suit.
The U.S. District Court for the Northern District of Oklahoma granted summary judgment in favor of the school district. The court held that grades put on papers by another student are not, at that stage, records "maintained by an educational agency or institution or by a person acting for such agency or institution," and thus do not constitute "education records" under FERPA. On this reasoning it ruled that peer grading does not violate FERPA.
The case was appealed, and the 10th Circuit Court of Appeals reversed the lower court decision. In its ruling, the appeals court stated that grades marked by students on each other’s work are education records protected by FERPA, so the very act of grading was an impermissible release of the information to the student grader.
The case advanced to the nation’s highest court, and on Feb. 19 the U.S. Supreme Court announced that it found no FERPA violation and therefore reversed the decision of the Court of Appeals.
The Supreme Court decision, written by Justice Anthony M. Kennedy, states that the "Court of Appeals erred in concluding that an assignment satisfies the definition of education records as soon as it is graded by another student." At that stage, the papers are not "maintained" within the meaning of FERPA, the opinion states. The Court also rejected the appeals court conclusion that each student grader is "a person acting for" an educational institution, as determined by FERPA.
"The phrase ‘acting for’ connotes agents of the school, such as teachers, administrators, and other school employees. Just as it does not accord with our usual understanding to say students are "acting for" an educational institution when they follow their teacher’s direction to take a quiz, it is equally awkward to say students are ‘acting for’ an educational institution when they follow their teacher’s direction to score it," the Supreme Court decision states. "Correcting a classmate’s work can be as much a part of the 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. By explaining the answers to the class as the students correct the papers, the teacher not only reinforces the lesson but also discovers whether the students have understood the material and are ready to move on."
The Supreme Court also did not agree with the broad interpretation of education records, as put forth by those filing the suit and accepted by the Court of Appeals. "The logical consequences of the respondent’s view are all but unbounded," Justice Kennedy wrote in the opinion, noting that "if a teacher in any of the thousands of covered classrooms in the nation puts on a happy face, a gold star, or a disapproving remark on a classroom assignment, federal law does not allow other students to see it."
In concluding the opinion, Justice Kennedy wrote, "… grades on students’ papers would not be covered under FERPA at least until the teacher has collected them and recorded them in his or her grade book. We limit our holding to this narrow point, and do not decide the broader question whether the grades on individual student assignments, once they are turned in to teachers, are protected by (FERPA)."
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