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Court allows for peer grading

Students grading other students' work in class is okay, the Supreme Court says in a unanimous ruling.

©Washington Post
February 20, 2002

WASHINGTON -- If school teachers want students to put an "A" or an "F" on another pupil's work in class, the Supreme Court will not stand in the way.

Ruling unanimously in a case that had escalated from an Oklahoma mother's bid to protect her son from other children's taunts, the court held Tuesday that the widespread practice of "peer grading" does not violate federal education privacy law.

Typically, students swap homework, quizzes or other schoolwork and then correct one another's work as the teacher goes over it aloud. Sometimes the teacher then has students call out the results, and the teacher records them.

"Correcting a classmate's work can be as much a part of the assignment as taking the test itself," Justice Anthony Kennedy wrote in the opinion for the court. "We do not think (federal law) prohibits these educational techniques."

The court thus came down squarely on the side of national teachers unions, which had argued that the case threatened to bury teachers in paperwork and subject them to federal micromanaging. It rejected the view of some psychologists and conservative privacy rights activists, who had urged the court to empower parents against a commonplace but, to some children, demeaning classroom ritual.

The case, Owasso Independent School District vs. Falvo, arose in 1998, when an Oklahoma parent, Kristja Falvo, sued her suburban Tulsa school district in federal court, seeking an end to peer grading at her three children's school. She said that her son, a special education student being "mainstreamed" into regular classes, was especially embarrassed when other children found out his grades.

Falvo, whose legal effort was funded by the Rutherford Institute, the conservative organization that once sponsored Paula Jones' lawsuit against President Bill Clinton, contended that a grade, once marked down on a student's paper, is an "education record" covered by the 1974 Family Educational Rights and Privacy Act, which says that student files "maintained" by school administrators may not be released without parental consent.

A federal trial judge in Oklahoma ruled summarily in the school district's favor in 1999, but Falvo appealed to the Denver-based 10th Circuit Court of Appeals. A three-judge panel of that court agreed with her view of the 1974 law, usually known as the Buckley Amendment, which was adopted to address public concern over the impact students' permanent records could have on their futures if not handled discreetly. The school district, supported by the Justice Department, appealed to the Supreme Court.

The justices agreed with the school district that the law did indeed contain an implicit distinction between the files and documents kept in a steel cabinet down at the principal's office and the more transitory contents of a teacher's grade book.

Kennedy's opinion noted that, at oral argument in November, Falvo's attorney "seemed to agree that if a teacher in any of the thousands of covered classrooms in the nation puts a happy face, a gold star or a disapproving remark on a classroom assignment, federal law does not allow other students to see it."

The justice added, "We doubt Congress meant to intervene in this drastic fashion with traditional state functions."

The court declined to decide a potentially broader issue embedded in the case, however. The privacy act provides for a cutoff of federal funds to bring noncomplying school districts into line. It says nothing about private suits such as Falvo's. The court noted that it will decide this issue in a separate case, Gonzaga vs. Doe, to be argued April 24.

The Reporters Committee for Freedom of the Press and the Student Press Law Center warned the court in a friend-of-the-court brief that recognizing a right to sue under the privacy act would bolster ongoing efforts by school administrators to stop publication of newsworthy information about students.

Already, they said, invocation of student privacy by administrators "threatens the student media's continued viability."

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