U.S. Supreme Court upholds the practice of peer grading

3/5/02 – The U.S. Supreme Court ruled unanimously Feb. 19 that a teacher's practice of having students grade each other's work does not violate the federal Family Educational Rights and Privacy Act (FERPA).

"Correcting a classmate's work can be as much a part of the assignment as taking the test itself. We do not think [FERPA] prohibits these educational techniques," wrote Justice Anthony M. Kennedy in the majority opinion in Owasso (Okla.) Independent School District v. Falvo.

NSBA had filed an amicus brief to the Supreme Court supporting the school district. NSBA argued that federal law should have no role in peer grading, that peer grading results are not a "record" maintained by the school district, and that the practice does not violate anyone's privacy rights. The U.S. Justice Department also sided with the school district.

In its ruling, the Supreme Court emphasized that a finding against the school district would have altered the existing allocation of responsibilities between states and the federal government in operating schools.

"As a policy matter, this ruling leaves discretion where it belongs–at the local level and within local control," says NSBA Executive Director Anne L. Bryant.

"This opinion is clearly based on a common-sense reading of the statute," adds NSBA General Counsel Julie Underwood. "A contrary ruling could have been fraught with problems and would have turned a widely used practice into a legal nightmare."

The case was filed by Kristja F. Falvo, who complained that her three children were embarrassed–particularly one son in special education who was mainstreamed in regular classes–when their teachers had students review each other's papers and call out the grade in class.

When the Owasso school district, in suburban Tulsa, refused to stop the practice, Falvo accused the district of violating FERPA.

FERPA was enacted in 1974, primarily to protect parents against intrusive school policies. The law prohibits the "release of educational records" that have been maintained by an educational institution or by a "person acting for" the institution.

While the Supreme Court ruled that peer-graded schoolwork is not an educational record, it did not define what an educational record is.

The high court also didn't address the question of whether private parties can file suits under FERPA. The court will hear arguments on that issue April 24 in Gonzaga University v. Doe.

Justice Kennedy's majority opinion in Falvo held that students were not "maintaining" their peers' grades.

Kennedy pointed out that student papers are not "maintained" within the meaning of FERPA because the word "maintain" suggests FERPA records will be kept in some sort of permanent file in a records room or on a secure database.

"It is fanciful to say [student graders or teachers] maintain the papers in the same way the registrar maintains a student's folder in a permanent file," Kennedy writes.

Having students correct each other's work "is a way to teach material again in a new context, and it helps show students how to assist and respect fellow pupils," the opinion states.

"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," Kennedy writes. "We do not think FERPA prohibits these educational techniques."

Falvo's argument that "education records" should cover student homework or classroom work "would impose substantial burdens on teachers across the country," Kennedy says.

This would force teachers to spend more time correcting papers and less time on instruction and would make it more difficult for teachers to give students immediate guidance.

Under the plaintiff's argument, Kennedy concludes, "if a teacher . . . puts a happy face, a gold star, or a disapproving remark on a classroom assignment, federal law [would] not allow other students to see it."