FERPA Supreme Court Decision

References: Supreme Court Proceedings 00-1073, Supreme Court Decision 00-1073, Comments on Owasso vs Falvo Decision

The United States Supreme Court issued its opinion Tuesday, February 19, 2002, in the peer grading case of Owasso Independent School District v. Falvo (No.00-1073). Ruling for the school district, the Supreme Court held that allowing students to score each other's tests and call out the grades does not violate the Family Educational Rights and Privacy Act of 1974 (FERPA). Justice Kennedy wrote the opinion for the unanimous court, with Justice Scalia writing a concurring opinion that agreed with the judgment but took issue with some of the finer points of the opinion.

In finding no violation of the Act, the Court found that the Tenth Circuit Court of Appeals erred in its reasoning regarding an education record that must be kept confidential under the Act. First, the Court ruled that student papers are not "maintained" for purposes of applicability of FERPA until the teacher records a grade. The act of peer grading and calling out the grade does not violate FERPA because at that stage, the grade is not yet part of the record "maintained" by the school. The Court, adopting the ordinary meaning of the word maintain - "to keep in existence or continuance; preserve; retain," held that the "teacher does not maintain the grade while students correct their peers' assignments or call out their own marks." Additionally, the Court found error in the Court of Appeals' ruling that a student grader is a "person acting for" the school and rejected any application of an agency theory to the facts of this case.