Does reading grades aloud invade privacy?

FERPA defines educational records as "those records, files, documents, and other materials which contain information directly related to a student; and are maintained by an educational agency or institution or by a person acting for such agency or institution."

A federal judge threw out Ms. Falvo's case, ruling that the classroom grades at issue were being maintained by an individual teacher rather than the school district and thus did not qualify as "educational records" covered by the federal law. The judge cited the opinion of a Department of Education official as support for that conclusion.

Falvo appealed, and won. The 10th US Circuit Court of Appeals ruled that the law as written by Congress is broad enough to cover classroom grading arrangements.

"Based purely on the language of the statute itself, this court concludes the grades which students record on one another's homework and test papers and then report to the teacher constitute 'educational records' under [the federal law]," says Circuit Court Judge Michael Murphy, writing for a unanimous three-judge panel.

The appeals court ruled that student-graded papers contain "information directly related to a student" and that when those grades are entered into a teacher's grade book, that information is then being maintained by a person who is acting on behalf of an educational agency.

"This interpretation of FERPA is consistent with Congress' intent to protect from disclosure grades in a teacher's grade book," Judge Murphy writes.

In a friend-of-the-court brief, the National School Boards Association and the American Council on Education say peer-grading is a common practice in US classrooms. "The court of appeals' novel interpretation would profoundly affect how teachers across the country educate students," the brief says. "It would bar not only peer-grading but also many other commonly utilized, benign, and effective instructional methods that involve student review of others' work, teacher evaluation of work in a group setting, and the like."

The brief adds, "The effect of such a doctrine would be to proliferate lawsuits against school districts."

Others see the issue from a different perspective.

"The Owasso grading practice is harmful to children," says Dennis Owens, a Kansas City lawyer, in a friend-of-the-court brief filed by the Council of Counseling Psychology Training Programs. "Educational practices that degrade and humiliate students undermine the efforts of counselors to build positive attitudes toward learning."

The case is titled Owasso Independent School District v. Kristja Falvo.

A decision is expected by next June.

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