Does reading grades aloud invade privacy?

The court today weighs a school policy of students orally reporting exam results.

It happens thousands of times each day in classrooms across the United States. Students grade the papers of their fellow pupils and then announce aloud the results to the teacher.

To many instructors, this is a timesaving way of giving a pop quiz or checking homework. But to Kristja Falvo, a mother of three in Tulsa, Okla., such oral recitation of her kids' grades in front of other students was an embarrassing and degrading violation of her children's privacy.

In particular, one of her sons , a special-education student assigned to a "mainstream" class, and was being ridiculed by his classmates for his low marks.

When school administrators at the Owasso Independent School District declined to change the grading practice to accommodate Ms. Falvo's concerns, she filed a federal lawsuit.

Today, the legal dispute is set for argument at the US Supreme Court in a case that could dramatically change the way American teachers conduct classroom exams, grade papers, and interact with students.

The case is being closely watched by educators who are concerned that a Falvo victory could open a new frontier of legal liability and expensive litigation for school districts and individual teachers.

On the other side, a number of conservative groups are hopeful that the case will help bolster parental rights. They say school officials are increasingly making important decisions about a child's well-being without seeking approval or input from parents.

"There is a mentality in the schools over the last 10 years in which educators act more like a parent and make parental-type decisions with no consultation with parents," says John Whitehead of the Rutherford Institute in Charlottesville, Va., which is underwriting Falvo's case. "What this case can do," he says, "is send a message that maybe the schools should be a little more responsive to parents."

At the center of the case is a dispute over the scope of a 1973 federal law, the Family Educational Rights and Privacy Act, also known as FERPA.

The law was passed by Congress to help prevent the unauthorized disclosure of educational records. But, despite nearly three decades on the books, it remains unclear which educational records are covered.

Does the law bar the airing by students of their own pop-quiz grades? Or is it limited to maintaining the confidentiality of final grades and transcript-type materials retained in a student's permanent educational file?

"Congress intended the statute to apply only to the permanent, institutional records maintained by a registrar or other central-records custodian," says Jerry Richardson, lawyer for Tulsa's Owasso Independent School District, in his brief to the court.

Others say the law is far less specific.

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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