Students Grading Students:
Is it an Invasion of Privacy?

For generations, classroom teachers have employed the technique of having their students exchange and grade one anther's work. Consequently, this practice of peer grading would allow at least one student's classmate to know how that student performed on a particular assignment.

It is likely, however, that few of those classroom teachers-or their students for that matter-could have predicted that peer grading would be controversial enough to warrant scrutiny by the US Supreme Court.

Last, February, the Court announced its decision in Owasso Independent School District No. I-011 v. Falvo, an appeal from a lawsuit out of suburban Tulsa, Oklahoma. That lawsuit placed the issue of peer grading before the Court.

Many teachers in this elementary school district not only instructed their students to exchange assignments for grading, but also asked the grading students to report out their classmates' scores. Some of these students would report the scores confidentially, while others would "call out the score."

The mother of several children in the Owasso district complained to school officials that the peer grading practice "embarrassed her children." When she asked those officials, however, to outlaw the practice, they refused.

Alleging that peer grading violates the Family Educational Rights and Privacy Act (FERPA), the mother sued the school district.

According to FERPA, an elementary or secondary institution may not disclose what the statute terms "education records" pertaining to a student without the written consent of that student's parents. (In postsecondary institutions, the right of privacy belongs to the student, and not the parents.)

FERPA defines education records as "records, files, documents, and other materials" containing information related to a student that "are maintained by an educational agency or institution or by a person acting for such agency or institution."

All nine members of the Court, however, held that the practice of peer grading does not violate FERPA. Until the graded classroom assignments are delivered to the teacher to be recorded, the Court reasoned, those assignments do not meet FERPA's definition of "education records," as they are not "maintained by" the institution.

Accordingly, the peer-graded assignments are not subject to the statute's confidentiality requirements.

"The word 'maintain,'" wrote Justice Kennedy, "suggests FERPA records will be kept in a filing cabinet in a records room at the school or on a permanent secure database, perhaps even after the student is no longer enrolled. The student graders only handle assignments for a few moments as the teacher calls out the answers.

"It is fanciful to say they maintain the papers in the same way the registrar maintains a student's folder in a permanent file."

The Court also approved, for public policy reasons, the practice of peer grading, and doubted that Congress in enacting FERPA intended to make it illegal. "Correcting a classmate's work," Justice Kennedy reasoned, "can be as much a part of the assignment as taking the test itself. It is a way to teach material again in a new context, and it helps show students how to assist and respect fellow pupils.

"By explaining the answers to the class as the students correct the papers, the teacher not only reinforces the lesson but also discovers whether the students have understood the material and are ready to move on. We do not think FERPA prohibits these educational techniques."

While Falvo arose in a K-12 context, the holding would apply to peer grading employed in a postsecondary setting as well. The decision held that assignments graded in such manner do not meet the definition of "education records." That definition is the same for all educational institutions; whether the confidentiality privilege is held by parents (in K-12) or the student (in postsecondary), the assignments are not-thanks to the Falvo ruling-"education records" until they are received and recorded by the instructor.

Published in the Spring 2002 Edition of In Brief