News: Rights Watch
Protecting Student Privacy

Don't use students to grade classmates' work, a federal court warns.

In a decision that may change the way many teachers do their jobs, a federal appeals court has declared illegal the practice of having students grade each other's papers.

The U. S. Court or Appeals for the Tenth Circuit in Denver ruled last July that this common grading practice violates the Family Educational Rights and Privacy Act (FERPA). That's a 26-year-old federal law that prohibits schools from disclosing to third parties a student's "educational records" without parental consent.

The school district subsequently asked the full 10-member appeals court to reconsider the ruling of the three-judge panel. The court voted 6-4 in October not to rehear the case, with four dissenting judges.

"Our teachers are overworked and underpaid now," noted the dissenting opinion. "What will happen to them when they can be sued by every irate parent or student claiming that someone saw a grade?"

The case began its way through the judicial process after Kristja Falvo, a mother of three students enrolled in the Owasso (Oklahoma) Independent School District, learned that several of her children's teachers sometimes used students to grade one another's work and to call out their grades.

When her complaints fell on deaf ears, Falvo sued the district and various administrators, claiming that the grading practice embarrassed her children. One of her sons, she said, even threatened to quit school after being ridiculed about his test scores.

"I felt very strongly about it," Falvo said. "I wish we would have been able to resolve this as concerned parents. I wish we didn't have to sue the schools."

The U. S. Department of Education sided with the school district. LeRoy Rooker, the director of the Department's Family Policy Compliance Office and the official responsible for enforcing FERPA, argued that the practice doesn't violate the law because the grades don't become educational records "maintained" by the school until after they're written down in the teacher's gradebook.

But the Tenth Circuit disagreed.

"Grades which students record on one another's homework and test papers and then report to the teacher constitute 'education records' under FERPA," the court concluded.

One aspect of the court's ruling gave teachers and administrators an important--but temporary--victory. The lawsuit sought to recover money damages, not just from the school district, but also from various school officials personally.

Under the doctrine of "qualified immunity," school officials--including teachers--can't be held personally liable unless the law was "clearly established" that what they did violated the plaintiff's rights.

Emphasizing that the Family Policy Compliance Office itself had advised school districts that the practice was permissible, the court held that the individual defendants in the case couldn't be held personally liable because the law was unclear at the time that the challenged grading practice violated FERPA.

"We cannot expect educators to more accurately interpret a law than that law's administering agency," the court said.

In the wake of this decision, however, teachers in the states that are covered by the Tenth Circuit can be held personally liable if they continue to use the peer grading practice, because the law is now firmly established in that circuit that the practice is illegal.

Nevertheless, Falvo isn't binding on states outside the Tenth Circuit, and even teachers in that circuit have several alternatives to avoid potential liability. (See sidebar.)

The school district has not yet announced whether it will appeal the case to the U. S. Supreme Court. It has until early January to decide.

The Tenth Circuit's decision in Falvo v. Owasso Indep. School Dist. can be found on the Web at www.kscourts.org/ca10/cases/2000/10/99-5130.htm.

--Michael D. Simpson
NEA Office of General Counsel

What Does the Falvo Decision Mean to Me?

That depends on where you live.

If you teach in one of the six states that make up the Tenth Circuit--Colorado, Kansas, New Mexico, Oklahoma, Utah, or Wyoming --you should not have students grade each other's work. The Falvo case says that's illegal, and you can be sued personally for money damages if you ignore that ruling.

You also shouldn't post or display student works that reveal grades or use non-school personnel (parent volunteers, for example) to grade student papers.

On the other hand, the Falvo court held that the Family Educational Rights and Privacy Act "does not prohibit students from correcting papers if done anonymously or with the consent of parents."

Obtaining parental consent is, of course, cumbersome, but you could assign students random numbers, so that papers are not personally identifiable.

You can also avoid trouble by having students grade their own papers, as long as they don't call out their grades. And there's nothing wrong with having students grade their classmates' work if the grades are not recorded in your gradebook--as, for instance, with practice tests.

If you teach in a state outside of the Tenth Circuit, you're free to continue having students grade each other's work. That's because the Falvo decision is not binding in any other circuit.

In an important recent development, LeRoy Rooker, the director of the U.S. Department of Education's Family Policy Compliance Office, told NEA Today that his office still maintains its position that peer grading does not violate federal law.

Rooker added that his federal office will not find any school district in violation of the law for allowing peer grading.

There is one caveat to keep in mind. A school district may decide on its own to ban the peer grading practice, either because it fears litigation or believes it's harmful to students. In that circumstance, of course, you should comply with district policy.

--M.D.S.