Wednesday, November 28, 2001

Several Supreme Court justices wondered aloud yesterday why the court ever agreed to decide if students may grade each other’s papers, but most saw no harm in letting teachers continue the traditional practice.

“There can be no gold stars, or in these days, a happy face?” asked a skeptical Justice Anthony M. Kennedy.

“I might be inclined to let the teacher have maximum flexibility to teach her class,” Justice Stephen G. Breyer said, citing his own third-grade experience to argue that disclosure of grades was an incentive to improve.

“It would be terrible, it would be disastrous. Everybody would have access to that information,” argued Wilfred K. Wright Jr., a Claremore, Okla., attorney for Kristja J. Falvo and her three children, whose opposition to public grading brought the case to the Supreme Court.

Backed by the Rutherford Institute, Mr. Wright sued Owasso (Okla.) Public Schools in 1998 under a federal law barring unauthorized release of school records. He said overworked teachers in grades seven through 12 were letting students grade other students’ papers and relaying the scores to teachers.

Mr. Wright said Mrs. Falvo’s son, Philip, was a poor reader embarrassed by disclosure of pop-quiz grades lower than those of fellow students, who called him “dummy” and “stupid.”

“You think it’s especially mean to this special-ed student who is being mainstreamed,” Justice Antonin Scalia said in accusing Mr. Wright of overstating the case for sympathy when Philip’s only special provision was a 45-minute speech-therapy class each week.

Parents and children “have no right to keep the information confidential. They have the right to keep the record confidential,” Justice Scalia said.

Deputy U.S. Solicitor General Edwin S. Kneedler agreed the 1974 Family Education Rights and Privacy Act “does not prohibit the common classroom practice of one student grading another student’s paper.”

“This act does not enter the classroom,” said Mr. Kneedler, who said the law permits disclosure of test scores just as it allows publication of an honors list, awarding attendance medals and naming students of the week.

Mr. Wright said schools should seek prior parental consent as they now do for sex education, special examinations and field trips.

Justice Ruth Bader Ginsburg said that sounded like allowing one parent veto power over the class.

Mr. Wright said the law sponsors sought to shield the entire grading system and block schools from the “unfettered, unshackled right to disclose a record to anyone they choose,” even to publish exam scores in the newspaper.

Chief Justice William H. Rehnquist chided Mr. Wright, saying the attorney was arguing that an adverse ruling “would allow a teacher to do something that no teacher has ever done.”

School board attorney Jerry A. Richardson said Congress intended to shield records with “long-term impact” that police or probation officers or a future employer might seek.

“If a child shouts out an ‘A,’ is that a record?” Justice Scalia asked.

“I write that down and it’s a record,” Mr. Wright said, adopting the rationale of the U.S. 10th Circuit Court of Appeals, which the school board asked the Supreme Court to overturn.

When Chief Justice Rehnquist noted the court had handed down conflicting 5-4 rulings on related issues, Mr. Richardson said attorneys found it hard to follow the court’s line of reasoning.

“They’re hard for us, too,” Justice Sandra Day O’Connor said.

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