Case Study: Peer Grading and the Protection of Student Privacy Under the Family Education and Privacy Rights Act of 1972

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Abstract

In order to expedite the grading process, many educational professionals rely on the practice of peer grading where students exchange their exams to be graded by other classmates. While these practices are commonplace in many schools it poses significant legal ramifications for educators. The practice of peer grading was disputed before the United States Supreme Court in Owasso Independent School District v Falvo (2002). While the Supreme Court reversed the Tenth District Court’s ruling that the practice of peer grading violated a student’s right to privacy, the case drew attention to the protection of student privacy outlined in the Family Education and Privacy Rights Act of 1972. This case study will address the legal measures and judicial decisions that pertain to student privacy in order to assess the legality of implementing peer grading in the classroom.

Peer Grading and the Protection of Student Privacy

In order to save time on grading papers and to reinforce the answers to test questions, many educators adopt the practice of peer grading where students exchange papers and mark the tests of their classmates. Though this practice offers convenience and provides a tool for reviewing course materials, it also poses significant legal ramifications. Adopted in 1972, the Family Education and Privacy Rights Act created a legal environment that aggressively protects the privacy rights of students. While the Act does not list student exam scores under its definition of student records, the Supreme Court considered whether peer grading undermines a student’s right to privacy in Owasso Independent School District v Falvo (2002). This case study will analyze the legislative, judicial, and policy environment that defines the privacy rights of students. Through this assessment, it can be determined that while peer grading is permissible, educators hold an ethical obligation to protect the sensitive information of students.

Legal Research

The Family Education and Privacy Rights Act (FEPRA) of 1972 serves as the cornerstone for the protection of student privacy rights at the federal level. The Act fulfills two purposes: 1) to ensure that parents of students are able to access the educational records of their children, and 2) to protect the confidential information of students enrolled in educational institutions. According to the Act, an educational agency or institution is defined as “any public or private agency which is the recipient of funds under any applicable program.” Further, the Act attaches penalties for noncompliance by authorizing the denial of funding to institutions that fail to comply with the provisions of the Act. Thus, state and local agencies are compelled to implement their own policies to ensure compliance.

What does and does not constitute an educational record is addressed extensively by the legislation. Educational records are defined as records, files, documents, and any other materials that contain information that is directly related to the student or any material that is maintained by an educational agency. Further, “directory information” usually garnered from school internet use or email including a student’s name, address, phone number, or date of birth constitutes protected information. However, the Act makes it explicitly clear that it does not pertain to records of administrative personnel and educational personnel that are in the sole possession of the individual who created the record and are not accessible to any other individual. Additionally, records that are maintained by a law enforcement agency and records by individuals who are employed by the agency yet not created on the job and not protected under the legislation. These definitions are important in determining the extent to which information on a student is protected under federal law.

The Crestwood School District of Pennsylvania also established procedures on the maintenance of school records and the protection of student privacy. In the District’s policy handbook, the Crestwood School District Board recognized the legal requirements to maintain the confidentiality of student records and prohibits unauthorized individuals from accessing, reproducing, or disclosing protected education records (Student Records, 2000, p. 1). Additionally, the district adopted a comprehensive plan for the management of student education records in order to ensure that it remains in compliance with state and federal laws (2000, p. 1). While the District maintains the same criteria for classifying protected information outlined in FEPRA, it specifies that the definition of education records does not pertain to records that are kept in the sole possession of the individual who made the record, records created or received by the District after the individual is no longer in attendance, grades on peer-graded papers before they are collected and recorded by the teacher, and other records that are excluded by definition in FERPA (2000, pp. 1-2). Thus, the Crestwood School District policies provide clearer definitions of private information that shouldn't be made public.

At the judicial level, the Constitutional protection of school students was first established in Tinker v. Des Moines Independent Community School District (1969) where high school students John F. Tinker, Mary Beth Tinker, and Christopher Eckhardt petitioned that their First Amendment rights were violated when they were suspended for wearing black armbands as a form of political expression. The Court recognized that the act of wearing armbands to express political views was within the Free Speech Clause of the First Amendment and that students had the right to express those rights within the confines of the public school. The significance of the ruling is that it affirmed that school authorities were obligated to consider the Constitutional rights of students in a public school environment.

The privacy guarantees of FEPRA serve as a further acknowledgment of the Constitutional rights of public school students. In 2002, the Supreme Court assessed the privacy rights of students when it was asked to consider whether the practice of peer grading violated FERPA in Owasso Independent School District v Falvo. As the Court opinion states, the practice of peer grading in the classroom was challenged by Kristja Falvo whose children were enrolled in the Owasso Independent School District. According to Falvo’s complaint, the practice of allowing other children to grade the work of their classmates embarrassed her children. Further, the teacher recorded the scores by having the students call out the scores or opt to walk to the desk to reveal their score in private. The Court considered both practices in determining the legality of the grading system. While the Court of Appeals for the Tenth Circuit ruled that the practice was in violation of FERPA, the Supreme Court reversed this decision, establishing that the students’ grades following an examination did not constitute a record because they had yet to be stored and maintained by the instructor. Thus, the practice of peer grading, as it was conducted by the teacher in this case, was determined to be compliant with federal law.

Analysis and Interpretation of the Law

The primary legal question that arises in discussing FEPRA is what constitutes as a school record. As the United States Supreme Court determined in Owasso Independent School District v. Favo, there is a physical component to keeping a record. In the Court’s opinion, Justice Kennedy asserted that the language of FEPRA, which applies to records that are “maintained” by the school district implies that protected records must be stored either physically or electronically by a school employee. Thus, the practice of peer grading is permissible under the law as long as the grade has not yet been recorded by the teacher.

A secondary question that arises is whether the school is obligated to protect student grades in accordance with the student’s Constitutional right to privacy. As the Tinker v. the Des Moines Independent Community School District ruling determined school administrators cannot infringe upon a student’s Constitutional rights in the school. Yet, the practice of revealing a student’s grades to classmates can be viewed as a violation of the student’s Constitutional right to privacy. However, because the United States Supreme Court only considered whether the practice of peer grading was in violation of FEPRA, there is no established case that addresses whether peer grading is permissible under the provisions of the Constitution.

Application of the Law to Instructional Practice

According to federal law, Supreme Court decisions, and local District policy, the practice of peer grading is generally permissible under the law. While FEPRA protects student records from being distributed without permission, it makes no explicit reference to classroom grades and fails to provide concrete definitions as to what constitutes a record while listing general categories of protected information. Further, the Crestwood School District expresses in its policy handbook that peer grading is not protected under its privacy policy until the grade is recorded by a teacher. Thus, educators can use peer grading in the classroom as long as they refrain from discussing a student’s grade once it is recorded.

However, there are ethical implications that should be considered by educators. As the opinion delivered by Justice Kennedy noted, the practice of peer grading led to the embarrassment of the represented students. Though the practice does not involve the disclosure of a legally defined record, it produces negative consequences that FEPRA was intended to protect. Further, Tinker v. Des Moines Independent Community School District establishes that Constitutional considerations should be taken into account by educators in determining whether policies preserve the rights of students. With these reservations in mind, educators should be advised that it is legally permissible to utilize peer grading in the classroom but should be encouraged to modify the practice in a manner that protects the identity and privacy of the student whose paper is being graded.

References

Family Educational and Privacy Rights Act of 1972, 20 U.S.C. § 1232g; 34 CFR Part 99. (1972).

Owasso Independent School District No. I-011 v. Falvo, 534 U.S. 426, 233 F.3d 1203 (2002).

Tinker et al. v. Des Moines Independent Community School District et al., 393 U.S. 503 (1969).

“Student Records”. (2000). Crestwood School District Policy Manual. Retrieved from http://www.psba.org/districts_policies/c/155/POLCRES216.pdf