Owasso Independent School District No. I-011 v. Falvo Ex Rel. Pletan
534 U.S. 426, 122 S. Ct. 934, 2002 U.S. LEXIS 619 (2002)
Rule of Law:
The Family Educational Rights and Privacy Act (FERPA) does not prohibit the practice of peer grading student assignments because student-graded papers are not 'education records' until they are collected and recorded by a teacher, as they are not 'maintained by an educational agency or institution or by a person acting for such agency or institution' at the peer grading stage.
Facts:
- Kristja J. Falvo’s three children were enrolled in Owasso Independent School District No. I-011 in Oklahoma.
- Teachers in the school district, like many across the country, used a practice called peer grading for tests, papers, and assignments.
- In peer grading, students exchanged papers, scored them according to the teacher’s instructions, and then returned the graded work to the student who prepared it.
- Teachers sometimes asked students to report their own scores, either by calling them out in class or revealing them confidentially at the teacher’s desk, though the score was already known to the student grader.
- Kristja J. Falvo claimed that the peer grading practice embarrassed her children.
- Falvo asked the school district to adopt a uniform policy banning peer grading and requiring teachers to grade assignments themselves or forbid students from grading papers other than their own.
- The school district declined to change its policy regarding peer grading.
Procedural Posture:
- Kristja J. Falvo brought a class action lawsuit under 42 U.S.C. § 1983 against the Owasso Independent School District and its officials in the United States District Court for the Northern District of Oklahoma.
- The District Court granted summary judgment in favor of the school district, ruling that grades put on papers by another student are not 'education records' under FERPA.
- Falvo appealed the District Court's decision to the Court of Appeals for the Tenth Circuit (Falvo was the appellant, the school district was the appellee).
- The Tenth Circuit reversed the District Court's judgment, holding that peer-graded assignments are 'education records' protected by FERPA and that peer grading was an impermissible release of information.
- The Supreme Court of the United States granted certiorari to decide whether peer grading violates FERPA (the school district and officials were the petitioners, Falvo was the respondent).
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Issue:
Does the practice of peer grading student assignments, where students score each other's work and sometimes call out scores, violate the Family Educational Rights and Privacy Act (FERPA) by constituting the release of 'education records'?
Opinions:
Majority - Justice Kennedy
No, the practice of peer grading student assignments does not violate FERPA because such assignments are not 'education records' at the stage of peer grading, and thus their disclosure to other students does not fall under the Act's prohibitions. The Court reasoned that FERPA defines 'education records' as 'records, files, documents, and other materials' that 'are maintained by an educational agency or institution or by a person acting for such agency or institution.' The scores on peer-graded assignments are not 'maintained' by the school at that stage, as 'maintain' suggests keeping records in a permanent file or secure database, which student graders do not do for a few moments. Furthermore, student graders are not 'persons acting for' an educational institution; 'acting for' implies agents like teachers or administrators, not students engaged in an instructional activity themselves. Other provisions of FERPA, such as the requirement for schools to keep records of access and to provide elaborate procedural machinery for parents to challenge records, imply that 'education records' are institutional records kept by a central custodian, not individual assignments handled transiently in classrooms. A broader interpretation would impose substantial administrative burdens on teachers and effect a drastic and unlikely federal intervention into traditional state educational functions. The Court limited its holding to the point that grades are not covered under FERPA until the teacher has collected and recorded them in a grade book.
Concurring - Justice Scalia
Yes, I concur with the judgment that peer-graded student papers do not constitute 'education records' while in the possession of the peer grader. This is because, as the Court correctly explains, a student who grades another’s work is not 'a person acting for' the school in the ordinary meaning of that phrase. However, I disagree with the majority's repeated suggestion that 'education records' include only documents kept in some central repository at the school. This 'central custodian' theory renders superfluous FERPA's explicit exception for 'records of instructional... personnel... which are in the sole possession of the maker thereof.' This exception implies that some teacher-maintained records could otherwise be covered, contradicting the idea that only centrally maintained records qualify. The Court's reliance on this theory while disclaiming a decision on the status of teachers' grade books is 'incurably confusing.'
Analysis:
This case significantly narrows the interpretation of 'education records' under FERPA, clarifying that not all student academic work is protected by the Act immediately upon creation. It reinforces the Supreme Court's reluctance to interpret federal statutes in a manner that would impose substantial administrative burdens on schools or intrude dramatically into traditional state and local control over educational methods and pedagogical practices. The decision provides schools with greater flexibility to employ common instructional techniques, like peer grading, without fear of violating federal privacy law, although it leaves some ambiguity about the precise moment when a collected assignment becomes an 'education record' in a teacher's possession.
