- The Washington Times - Wednesday, February 20, 2002

Letting pupils grade classmates' work does not violate the federal education-privacy law, the Supreme Court said yesterday when it unanimously overturned an appeals court ruling that banned the practice.

The opinion rejected contentions "that if a teacher in any of the thousands of covered classrooms in the nation puts a happy face, a gold star, or a disapproving remark on a classroom assignment, federal law does not allow others to see it."

It is a major victory for teachers, but a defeat for Kristja J. Falvo of Tulsa, Okla., who said the practice violated the civil rights of her son Philip Pletan, a poor reader who was embarrassed when students heard his pop-quiz scores and called him "Dummy" or "Stupid."

"Correcting a classmate's work can be as much a part of the assignment as taking the test itself," said the opinion written by Justice Anthony M. Kennedy, a former law professor who still teaches and whose wife, Mary, was a California schoolteacher.

"The teacher not only reinforces the lesson but also discovers whether the students have understood the material and are ready to move on," he said, asserting that Congress never "meant to intervene" in classroom techniques.

Carolyn Crowder, a fifth-grade teacher and president of the Oklahoma Education Association, said the "common-sense" decision recognizes the "academic freedom" of teachers.

"The appeals court decision hampered teachers' ability to be flexible. Several school districts stopped publishing honor rolls and teachers quit posting artwork on the wall," Mrs. Crowder said.

She said the appeals court ruling also prevented students from working together at the blackboard, or to do group assignments.

"What is clear in this case is this is not a good thing to be doing to some kids," said John W. Whitehead, president of the Rutherford Foundation, which supported Mrs. Falvo and lawyer Wilfred K. Wright Jr. in the losing effort.

Mr. Whitehead said the outcome was a product of a conservative court that supported a school board over the students. When asked why the court's liberals would join the opinion he said it was a "majoritarian" court.

"Courts should focus on the human element. The human element is what it does to children. There is doubt in this law, and if there is doubt you go with the human interest," Mr. Whitehead said yesterday.

Mr. Wright, attorney for Mrs. Falvo and Philip, told the court the law's sponsors meant 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.

While all nine justices voted to reverse the U.S. 10th Circuit Court of Appeals ruling, Justice Antonin Scalia joined only the judgment to overturn that ruling not the reasoning that will govern other cases.

Justice Scalia disputed what he called the majority position that only documents in a central file were "education records," a view urged by the federal government whose lawyers said the 1974 law does not govern what goes on in the classroom.

Justice Kennedy's written opinion said the court decided only that student grades do not become a record covered by the Family Educational Rights and Privacy Act (FERPA), "at least until the teacher has collected them and recorded them in his or her grade book."

"The court of appeals' logic does not withstand scrutiny" and would upset the balance of state and federal responsibilities for operating schools, the court said.

Hamline University School of Law's Joseph J. Daly, who is analyzing the case for the American Bar Association, said the ruling will have "narrow significance and probably only definitional importance for those who work with FERPA."

Among a broad spectrum of education groups supporting the Owasso Independent School District were the American Association of School Administrators, representing the nation's school superintendents, two major teachers unions the National Education Association and the American Federation of Teachers and the National School Boards Association.

"This is a practice that has gone on forever and does not disadvantage children," said Bruce Hunter, public policy director of the school administrators group.

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