Justices question definition of ‘education record’ in FERPA case

WASHINGTON, D.C. — For the first time since the lawwas passed in 1974, the U.S. Supreme Court heard arguments Tuesdayin a case involving the federal statute that regulates the releaseof student education records.

Kristja J. Falvo sued her son’s Oklahoma school in 1998, claimingthe disclosure of his test grade during class violated the FamilyEducational Rights and Privacy Act, also known as the BuckleyAmendment. Falvo said the grading practice, in which studentsgrade other students’ work and read the marks aloud, embarrassedher son and violated the federal law, which regulates the privacyof student records. A federal appeals court sided with Falvo inOctober 2000. Falvo vs. Owasso Independent School District,233 F.3d 1203 (10th Cir. 2000).

While the justices probed many aspects of the law during oralarguments, most of their questions centered on the definitionof an "education record" covered by the law — a termthat has been interpreted differently by the courts. Justicesstruggled to define how broadly or narrowly Congress intendedthe statute.

Falvo’s attorney, Wilfred K. Wright Jr., said former Sen. JamesBuckley, R-N.Y., the author of FERPA, meant for the law to bebroad in order to protect student records. Wright argued schoolsshould err on the side of students’ privacy by seeking parentalpermission before releasing information. He said even the scoreon a quiz, as long as it contains personally identifiable information,is protected under FERPA.

Justices used examples from their own school days to ponderwhether Congress intended the law to include a school’s most commonrecords.

"When they called the roll in class, we used to say ‘here.’Sometimes we’d say ‘present.’ And the teacher would write it down,"Justice Stephen Breyer said. "Would that be forbidden?"

Meanwhile, several justices questioned whether student informationbecomes an education record under the law before it becomes apart of a student’s permanent file.

The school’s attorney, Jerry A. Richardson, told the justicestemporary records, such as test grades, do not carry the sameweight under FERPA as permanent records, which include transcriptsor report cards.

Two justices, Anthony Kennedy and Sandra Day O’Connor, askedRichardson why he did not challenge Falvo’s claim based on a lackof jurisdiction. Since the only explicit penalty in the law isa withdrawal of federal funding for a school in violation, thejustices questioned whether individual students or parents hadthe right to sue in court to enforce the law.

By finding that individuals cannot legally challenge the law,the court could avoid the underlying question of what constitutesan "education record."

The Student Press Law Center joined with the Reporters Committeefor Freedom of the Press in filing a friend-of-the-court brief,urging the Court to rule that FERPA does not give individualsthe right to bring a private lawsuit because Congress did notspecifically create such a remedy.

The brief warned that allowing such lawsuits any time a federallaw implicates privacy interests could create a flood of courtcases that will prompt government agencies to cut-off access tomany public records. The brief also urged the Court to clarifythe definition of FERPA and reaffirm that schools not be allowedto use it to restrict the release of all documents relating tostudents, especially those created by student journalists.

Supreme Court agrees to hear FERPA case Report, Fall 2001Federal court rules peer grading violates FERPA Report, Winter 2000-01