The U.S. Court of Appeals for the Tenth Circuit recently ruled that the age-old tradition of pupils' grading their classmates' work violates a federal privacy act. Although the ruling directly affects just six western states -- Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming -- it might have national impact as the U.S. Department of Education develops guidelines for the nation's schools about this common classroom practice.
The ruling in Falvo v. Owasso Independent School District states that schools that allow their students to grade classmates' tests and assignments or have students call out their own grades in class violate the Family Educational Rights and Privacy Act (FERPA). The court determined that graded work becomes part of a student's record and, therefore, parents or eligible students must give written permission before that work is disclosed to others. Schools that violate the privacy statute risk losing federal funding.
The court decision states that the federal statute is clear and that under the provision a school is "absolutely precluded from receiving federal funds if it maintains a policy or practice of allowing disclosure of education records to unauthorized individuals or entities without parental consent."
The ruling is the result of a class action suit brought by Kristja J. Falvo, the mother of Elizabeth, Philip, and Erica Pletan, in 1998. She claimed the practice of pupil grading and students' calling out their grades "severely embarrassed" her children, who were in the sixth, seventh, and eighth grades in the Owasso Independent School District of Tulsa, Oklahoma, at the time.
Before filing the lawsuit, Falvo had complained to school district officials and asked them to stop the practice. The district refused. Instead, she said she was told, her children could report their own grades confidentially to the teacher.
Although the court ruled in favor of Falvo, it denied her request for relief for her son, Philip Pletan. She claimed that because he was a special education student, he had a legitimate expectation of privacy for his grades under the Individuals With Disabilities Education Act (IDEA). The court ruled against this part of her claim because she did not make a distinct claim under IDEA.
In the Granite Public School District in Utah, some teachers are complaining that this court decision creates more work for them, said Michele Bartmess, spokesperson for the Granite School District. "Teachers aren't thrilled about it," Bartmess told Education World. "They're saying this is another thing that makes their job harder.
"We're rich with children in Utah," Bartmess explained. "We have huge class sizes. Our average upper elementary classes have 30 to 32 kids in each class." Bartmess said the per-pupil ratio is much higher in reality than on paper because small classes of special education classes are calculated in the district's overall class size student-teacher ratio.
Teachers also say there is some value in having students correct their own work because it gives them immediate feedback, Bartmess added.
"There is nothing inherently wrong with students' grading each others' work," said Michael Simpson, assistant general counsel for the National Education Association (NEA). "The only thing that is wrong is that the student is identified.
"We are advising teachers to stop allowing students to grade other student work unless they assign random numbers or some other system so the student isn't personally identifiable," Simpson told Education World.
As for displaying student work, Simpson said teachers might want to get signed waivers from parents for permission to do so. Simpson said the ruling doesn't pertain to early childhood artwork, unless it's graded. "I don't think a first grader's drawing is an educational record. But the short answer is, in practice, teachers should get parent and student permission to display their work," he said.
In absence of parental permission, the Utah teachers are being advised to be sure the grade and the student's name appear on the back of the artwork, said Jean Hill, an attorney with Utah's State Office of Education. "You particularly don't want the grade showing on the front."
The state will send guidelines to school districts and answer teachers' questions on how to adhere to the court's interpretation of FERPA during in-service development training sessions, she said. "Basically, we're going to leave it up to local school districts."
Diane Weaver Dunne
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