A D-Grading Experience?

Abstract

IN THE PUBLIC schools of Owasso, Oklahoma, which is a suburb of Tulsa, some of the teachers - like those in many other districts in the nation - have students grade one another's assignments and tests. The students call out their grades to the teacher when they get their papers back. During the 1997-98 school year, Kristja Falvo, a mother of three students enrolled in Owasso's public schools, complained about the practice to the school counselors and, eventually, to the superintendent. She contended that it severely embarrassed her children, who were then in the fifth, sixth, and seventh grades. The fifth- and seventh-graders were regular students, and the sixth-grader was a mainstreamed special student. In October 1998, after her complaints had fallen on deaf ears, Falvo filed a Section 1983 civil rights suit in federal court, alleging that the grading practice violated the privacy rights implicit in the 14th Amendment and explicit in the Family Education Rights and Privacy Act, previously known as the Buckley Amendment and now often referred to as FERPA. She named as individual defendants the superintendent, the assistant superintendent, the principal, and - as a group - the participating teachers. She named the school district as the institutional defendant. On 26 April 1999, the federal district court granted the motion of the individual defendants for a summary judgment - a decision in their favor without a trial. In doing so, the district court ruled that the challenged practice did not implicate a privacy interest protected by the 14th Amendment and that the grades subject to this practice were not education under FERPA. Falvo immediately sought reconsideration by the district court, arguing that, even if her other two children were not protected, her middle child had a 14th Amendment claim based on a legitimate expectation of privacy with regard to his grades in light of the Individuals with Disabilities Education Act (IDEA). On 2 June 1999, the court denied her motion because she had failed to include this new claim in her original suit. Undaunted, on 28 June 1999, Falvo filed for review by the 10th Circuit Court of Appeals. On 31 July 2000, the 10th Circuit affirmed the lower court's ruling on the general 14th Amendment claim but reversed its FERPA ruling.1 While acknowledging that the 14th Amendment implicitly protects against governmental disclosure of certain types of highly personal or intimate information, the appellate court concluded that the grades in question did not fit this limited category. In response to Falvo's argument that FERPA and the IDEA created a legitimate expectation of privacy with regard to students' grades, the court cited 10th Circuit precedent clarifying that privacy statutes and regulations may help demarcate, but do not create, constitutionally protected privacy. As to the statutory claim, the court first ruled that Section 1983, the generic civil rights legislation passed in the wake of the Civil War, may serve as a remedy to enforce FERPA. The rationale for this threshold ruling was that FERPA's enforcement scheme, which is the administrative responsibility of the Family Policy Compliance Office of the U.S. Department of Education (FPCO) and which is ultimately limited to termination of federal funding, is not sufficiently comprehensive to imply a congressional intent to foreclose a Section 1983 remedy. Second, turning to the merits of the case, the 10th Circuit concluded that the students' grading of other students' papers, even without the subsequent calling out of grades, violated FERPA's prohibition of any policy or practice that permits the disclosure, without consent, of education records, which are defined in the Act as records . . . and other materials which (i) contain information directly related to a student; and (ii) are maintained . . . by a person acting for [an educational] agency or institution. …