Allowing students to grade one another's work violates federal privacy law.

In a case of first impression, the Tenth Circuit Court of Appeals has held that the Federal Education Rights and Privacy Act (FERPA) prohibits teachers from having students grade one another's tests and work assignments. The statute precludes schools from receiving federal funds if they permit the release of education records to unauthorized institutions or individuals without parental consent. (Falvo v. Owasso Independent School District No. 1-011,220 F.3d 1200 (10th Cir. 2000).)

The case was brought by Kristja Falvo, who learned that her children's teachers would sometimes have their students grade one another's work assignments and tests. Falvo complained about the practice to school counselors and the school district superintendent, but the district refused to disallow the practice.

Falvo then sued the school district, claiming that the practice violated FERPA. The trial court granted the district summary judgment, ruling that the grades do not constitute "education records" under FERPA.

Reversing in part, the Tenth Circuit noted that the statutory definition of "education record" contains two elements. The first requires that the record contain information directly related to a student. The second says the record must be maintained by an educational agency or institution or by a person acting for one.

Applying this definition, Justice Michael Murphy noted that the first element was satisfied in the Falvo case, since the grades that students place on each other's papers and then report to the teacher "contain information directly related to a student."

Turning to the second element, Murphy noted that some grades that students give one another and report to the teacher are then recorded in the teacher's grade book. These books fall within the statutory definition of "education record" unless they are disclosed only to a substitute, the court observed. Therefore, the court concluded, grade books and the grades within are necessarily maintained by a person acting for the educational institution.

Will Wright, a Tulsa, Oklahoma, attorney who represented Falvo, said the decision is significant because it represents the first time a federal court has decided whether FERPA's right to privacy applies to students' homework, tests, and other school assignments. "By ruling in favor of the Falvos, the Tenth Circuit has sent a message to all school districts across the country that FERPA was meant to curb school districts' careless and reckless disregard for the privacy rights of families," Wright said.