Court clarifies privacy law

WASHINGTON, D.C. — The Supreme Court in February unanimously upheld the right of schools to engage in the common practice of having students grade one another’s work in the classroom, which the Court ruled does not violate federal privacy statutes.

In a 9-0 ruling, the Court in Owasso Independent School District v. Falvo held that students do not act as agents of the school when they grade their peers’ work, a clarification that could be helpful to student journalists in the future. 

The Court ruled that classroom work graded by peers does not constitute “education records” regulated by the federal Family Educational Rights and Privacy Act — at least not until after the scores are recorded in a teacher’s grade book. The 1974 act, also known as the Buckley Amendment, penalizes schools that have a policy or practice of releasing student “education records” without parental consent.

“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,” Justice Anthony M. Kennedy wrote in the Court’s opinion. 

Furthermore, the Court said that when quiz grades are read aloud by students in class, they are not “maintained” by a school district, a stipulation required for records to be protected under FERPA. 

The decision should help dismiss arguments by school officials that material published by student journalists, including names and photos on Web sites, poses FERPA problems.

Kristja J. Falvo sued her son’s Oklahoma school district in 1998, claiming the disclosure of his quiz grades when students swapped and graded work during class was a violation of FERPA. 

Falvo challenged the policy because she said her learning-disabled son was ridiculed when his poor grades were read aloud in front of his classmates. 

A federal appeals court sided with Falvo in October 2000. The Owasso school district then appealed to the Supreme Court, making it the first time the nation’s highest court heard a case involving FERPA.

The Court chose not to address the question of whether student assignment grades are protected under FERPA once they are turned in to teachers. 

The Court said it assumed — without deciding — that FERPA provides students and their parents the ability to sue for violations of the law. The Court resumed inquiry on the question in April, when it heard arguments in Gonzaga University v. Doe, a second FERPA-related case on its docket.

Former Gonzaga University student Ru Paster sued the Spokane, Wash., university for defamation, negligence, breach of contract and violation of FERPA after it released information to his potential employers related to allegations that he had sexually assaulted another student. Paster was never convicted of a crime, and the state supreme court upheld a jury decision awarding him $450,000 in damages. 

At issue is the question whether Congress intended to give private individuals, such as Paster, the right to sue for violations of FERPA.

Case: Owasso Independent School Dist. v. Falvo 122 S.Ct. 934 (2002)