OCTOBER TERM, 2001
Syllabus
OWASSO INDEPENDENT SCHOOL DISTRICT NO. 1-011, AKA OWASSO PUBLIC
SCHOOLS, ET AL.
v. FALVO, PARENT AND NEXT FRIEND OF HER MINOR CHILDREN, PLETAN,
ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT
No. 00-1073. Argued November 27, 200l-Decided February
19,2002
Teachers sometimes ask students, including respondent's
children, to score each other's tests, papers, and assignments as
the teachers explain the correct answers to the entire class.
Claiming that such "peer grading" violates the Family Educational
Rights and Privacy Act of 1974 (FERPA or Act), respondent filed a
42 U. S. C. § 1983 action against the school district and school
officials (petitioners). FERPA, inter alia, authorizes federal
funds to be withheld from school districts that permit students'
"education records (or personally identifiable information
contained therein ... )" to be released without their parents'
written consent, 20 U. S. C. § 1232g(b)(1); and defines education
records as "records, files, documents, and other materials"
containing information directly related to a student, which "are
maintained by an educational agency or institution or by a person
acting for such agency or institution," § 1232(a)(4)(A). In
granting petitioners summary judgment, the District Court held that
grades put on papers by another student are not "education
records." The Tenth Circuit reversed, holding that FERPA provided
respondent with a cause of action enforceable under § 1983, and
finding that grades marked by students on each other's work are
"education records," so the very act of grading is an impermissible
release of information to the student grader.
Held: Peer grading does not violate FERPA. Pp. 430-436.
(a) This Court assumes, without deciding, that FERPA provides
private parties with a cause of action enforceable under § 1983.
Though that question is left open, the Court has subject-matter
jurisdiction here because respondent's federal claim is not so
completely devoid of merit as not to involve a federal controversy.
Pp. 430-431.
(b) Petitioners and the United States contend that education
records include only institutional records, e.
g., student
grade point averages, standardized test scores, and records of
disciplinary actions. But respondent, adopting the Tenth Circuit's
reasoning, contends that an assignment satisfies § 1232(a)(4)(A)'s
definition as soon as another student grades it. That court
determined that teachers' grade books and the grades within are
"maintained" by the teacher and thus covered by the
427
Act. The court recognized that teachers do not maintain the
grades on individual student assignments until they have recorded
them in the grade books. It reasoned, however, that if the teacher
cannot disclose the grades once written in the grade book, it makes
no sense to permit disclosure immediately beforehand. The court
thus held that student graders maintain the grades until they are
reported to the teacher. Two statutory indicators show that the
Tenth Circuit erred. First, student papers are not, at that stage,
"maintained" under § 1232(a)(4)(A). That word's ordinary meaning is
to preserve or retain. Even assuming that a grade book is an
education record, the score on a student-graded assignment is not
"contained therein," § 1232g(b)(1), until the teacher records it.
"Maintain" suggests FERPA records will be kept in a file in a
school's record room or on a secure database, but student graders
only handle assignments for a few moments as the teacher calls out
the answers. The Tenth Circuit also erred in concluding that a
student grader is "a person acting for" an educational institution,
§ 1232g(a)(4)(A). That phrase connotes agents of the school. Just
as it would be awkward to say students are acting for the
institution when following their teacher's instruction to take a
quiz, it is equally awkward to say they are acting for the
institution when following their teacher's direction to score it.
That process can be as much a part of the assignment as taking the
test itself. This Court does not think FERPA prohibits such
educational techniques. Moreover, saying that students are acting
for the teacher in grading an assignment is different from saying
they are acting for an educational institution in maintaining it.
Other FERPA sections--e.
g., § 1232g(b)(4)(A), which
requires educational institutions to maintain a record of access
kept with the student's education records-support this Court's
interpretation. The instant holding is limited to the narrow point
that, assuming a teacher's grade book is an education record,
grades on students' papers are not covered by the Act at least
until the teacher has recorded them. The Court does not reach the
broader question whether the Act protects grades on individual
assignments once they are turned in to teachers. Pp.431-436.
233 F.3d
1203, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and STEVENS, O'CONNOR, SOUTER, THOMAS, GINSBURG,
and BREYER, JJ., joined. SCALIA, J., filed an opinion concurring in
the judgment, post, p. 436.
Jerry A. Richardson argued the cause for petitioners.
With him on the briefs was Karen L. Long.
Deputy Solicitor General Kneedler argued the cause for the
United States as amicus curiae urging reversal. With
428
him on the brief were Solicitor General Olson, Acting Assistant
Attorney General Schiffer, Beth S. Brinkmann, Mark B. Stern, and
Colette G. Matzzie.
Will K. Wright, Jr., argued the cause for respondent.
With him on the brief were John W Whitehead and Steven H.
Aden.*
JUSTICE KENNEDY delivered the opinion of the Court. Teachers
sometimes ask students to score each other's tests, papers, and
assignments as the teacher explains the correct answers to the
entire class. Respondent contends this practice, which the parties
refer to as peer grading, violates the Family Educational Rights
and Privacy Act of 1974 (FERPA or Act), 88 Stat. 571, 20 U. S. C. §
1232g. We took this case to resolve the issue.
I
Under FERPA, schools and educational agencies receiving federal
financial assistance must comply with certain conditions. §
1232g(a)(3). One condition specified in the Act is that sensitive
information about students may not be released without parental
consent. The Act states that federal funds are to be withheld from
school districts that have "a policy or practice of permitting the
release of education records (or personally identifiable
information contained
*Briefs of amici curiae urging reversal were filed for the
National Education Association et al. by Robert H. Chanin and
Andrew D. Roth; for the National School Boards Association et al.
by Julie Underwood, Julie E. Lewis, Sheldon E. Steinbach, and
Martin Michaelson; for the Oklahoma Education Association by
Richard B. Wilkinson and Brandon R. Webb; and for the Reporters
Committee for Freedom of the Press et al. by Gregg
Briefs of amici curiae urging affirmance were filed for the
Capitol Resource Institute et al. by Richard D. Ackerman and Gary
G. Kreep; for the Council of Counseling Psychology Training
Programs et al. by Dennis Owens; and for the Eagle Forum Education
& Legal Defense Fund by Karen Tripp and Phyllis Schlafiy.
429
therein ... ) of students without the written consent of their
parents." § 1232g(b)(1). The phrase "education records" is defined,
under the Act, as "records, files, documents, and other materials"
containing information directly related to a student, which "are
maintained by an educational agency or institution or by a person
acting for such agency or institution." § 1232g(a)(4)(A). The
definition of education records contains an exception for "records
of instructional, supervisory, and administrative personnel ...
which are in the sole possession of the maker thereof and which are
not accessible or revealed to any other person except a
substitute." § 1232g(a)(4)(B)(i). The precise question for us is
whether peer-graded classroom work and assignments are education
records.
Three of respondent Kristja J. Falvo's children are enrolled in
Owasso Independent School District No. 1-011, in a suburb of Tulsa,
Oklahoma. The children's teachers, like many teachers in this
country, use peer grading. In a typical case the students exchange
papers with each other and score them according to the teacher's
instructions, then return the work to the student who prepared it.
The teacher may ask the students to report their own scores. In
this case it appears the student could either call out the score or
walk to the teacher's desk and reveal it in confidence, though by
that stage, of course, the score was known at least to the one
other student who did the grading. Both the grading and the system
of calling out the scores are in contention here.
Respondent claimed the peer grading embarrassed her children.
She asked the school district to adopt a uniform policy banning
peer grading and requiring teachers either to grade assignments
themselves or at least to forbid students from grading papers other
than their own. The school district declined to do so, and
respondent brought a class action pursuant to Rev. Stat. § 1979, 42
U. S. C. § 1983 (1994 ed., Supp. V), against the school district,
Superintendent Dale
430
Johnson, Assistant Superintendent Lynn Johnson, and Principal
Rick Thomas (petitioners). Respondent alleged the school district's
grading policy violated FERPA and other laws not relevant here. The
United States District Court for the Northern District of Oklahoma
granted summary judgment in favor of the school district's
position. The court held that grades put on papers by another
student are not, at that stage, records "maintained by an
educational agency or institution or by a person acting for such
agency or institution," 20 U. S. C. § 1232g(a)(4)(A), and thus do
not constitute "education records" under the Act. On this reasoning
it ruled that peer grading does not violate FERPA.
The Court of Appeals for the Tenth Circuit reversed.
233 F.3d
1203 (2000). FERPA is directed to the conditions schools must
meet to receive federal funds, and as an initial matter the court
considered whether the Act confers a private right of action upon
students and parents if the conditions are not met. Despite the
absence of an explicit authorization in the Act conferring a cause
of action on private parties, the court held respondent could sue
to enforce FERPA's terms under 42 U. S. C. § 1983. 233 F. 3d, at
12111213. Turning to the merits, the Court of Appeals held that
peer grading violates the Act. The grades marked by students on
each other's work, it held, are education records protected by the
statute, so the very act of grading was an impermissible release of
the information to the student grader. Id., at 1216.
We granted certiorari to decide whether peer grading violates
FERPA. 533 U. S. 927 (2001). Finding no violation of the Act, we
reverse.
II
At the outset, we note it is an open question whether FERPA
provides private parties, like respondent, with a cause of action
enforceable under § 1983. We have granted certiorari on this issue
in another case. See Gonzaga Univ. v. Doe, post, p. 1103. The
parties, furthermore, did
431
not contest the § 1983 issue before the Court of Appeals. That
court raised the issue sua sponte, and petitioners did not seek
certiorari on the question. We need not resolve the question here
as it is our practice "to decide cases on the grounds raised and
considered in the Court of Appeals and included in the question on
which we granted certiorari." Bragdon v. Abbott,
524 U. S. 624, 638
(1998). In these circumstances we assume, but without so deciding
or expressing an opinion on the question, that private parties may
sue an educational agency under § 1983 to enforce the provisions of
FERPA here at issue. Though we leave open the § 1983 question, the
Court has subject-matter jurisdiction because respondent's federal
claim is not so "completely devoid of merit as not to involve a
federal controversy." Steel Co. v. Citizens for Better Environment,
523 U. S. 83, 89
(1998) (citation omitted). With these preliminary observations
concluded, we turn to the merits.
The parties appear to agree that if an assignment becomes an
education record the moment a peer grades it, then the grading, or
at least the practice of asking students to call out their grades
in class, would be an impermissible release of the records under §
1232g(b)(1). Tr. of Oral Arg. 21. Without deciding the point, we
assume for the purposes of our analysis that they are correct. The
parties disagree, however, whether peer-graded assignments
constitute education records at all. The papers do contain
information directly related to a student, but they are records
under the Act only when and if they "are maintained by an
educational agency or institution or by a person acting for such
agency or institution." § 1232g(a)(4)(A).
Petitioners, supported by the United States as amicus curiae,
contend the definition covers only institutional records-namely,
those materials retained in a permanent file as a matter of course.
They argue that records "maintained by an educational agency or
institution" generally would include final course grades, student
grade point averages,
432
standardized test scores, attendance records, counseling
records, and records of disciplinary actions-but not student
homework or classroom work. Brief for Petitioners 17; Brief for
United States as Amicus Curiae 14.
Respondent, adopting the reasoning of the Court of Appeals,
contends student-graded assignments fall within the definition of
education records. That definition contains an exception for
"records of instructional, supervisory, and administrative
personnel ... which are in the sole possession of the maker thereof
and which are not accessible or revealed to any other person except
a substitute." § 1232g(a)(4)(B)(i). The Court of Appeals reasoned
that if grade books are not education records, then it would have
been unnecessary for Congress to enact the exception. Grade books
and the grades within, the court concluded, are "maintained" by a
teacher and so are covered by FERPA. 233 F. 3d, at 1215. The court
recognized that teachers do not maintain the grades on individual
student assignments until they have recorded the result in the
grade books. It reasoned, however, that if Congress forbids
teachers to disclose students' grades once written in a grade book,
it makes no sense to permit the disclosure immediately beforehand.
Id., at 1216. The court thus held that student graders maintain the
grades until they are reported to the teacher. Ibid.
The Court of Appeals' logic does not withstand scrutiny.
Its interpretation, furthermore, would effect a drastic
alteration of the existing allocation of responsibilities between
States and the National Government in the operation of the Nation's
schools. We would hesitate before interpreting the statute to
effect such a substantial change in the balance of federalism
unless that is the manifest purpose of the legislation. This
principle guides our decision.
Two statutory indicators tell us that the Court of Appeals erred
in concluding that an assignment satisfies the definition of
education records as soon as it is graded by another student.
First, the student papers are not, at that stage,
433
"maintained" within the meaning of § 1232g(a)(4)(A). The
ordinary meaning of the word "maintain" is "to keep in existence or
continuance; preserve; retain." Random House Dictionary of the
English Language 1160 (2d ed. 1987). Even assuming the teacher's
grade book is an education recorda point the parties contest and
one we do not decide herethe score on a student-graded assignment
is not "contained therein," § 1232g(b)(1), until the teacher
records it. The teacher does not maintain the grade while students
correct their peers' assignments or call out their own marks. Nor
do the student graders maintain the grades within the meaning of §
1232g(a)(4)(A). The word "maintain" suggests FERPA records will be
kept in a filing cabinet in a records room at the school or on a
permanent secure database, perhaps even after the student is no
longer enrolled. The student graders only handle assignments for a
few moments as the teacher calls out the answers. It is fanciful to
say they maintain the papers in the same way the registrar
maintains a student's folder in a permanent file.
The Court of Appeals was further mistaken in concluding that
each student grader is "a person acting for" an educational
institution for purposes of § 1232g(a)(4)(A). 233 F. 3d, at 1216.
The phrase "acting for" connotes agents of the school, such as
teachers, administrators, and other school employees. Just as it
does not accord with our usual understanding to say students are
"acting for" an educational institution when they follow their
teacher's direction to take a quiz, it is equally awkward to say
students are "acting for" an educational institution when they
follow their teacher's direction to score it. Correcting a
classmate's work can be as much a part of the assignment as taking
the test itself. It is a way to teach material again in a new
context, and it helps show students how to assist and respect
fellow pupils. By explaining the answers to the class as the
students correct the papers, the teacher not only reinforces the
lesson but also discovers whether the students have understood
434
the material and are ready to move on. We do not think FERPA
prohibits these educational techniques. We also must not lose sight
of the fact that the phrase "by a person acting for [an
educational] institution" modifies "maintain." Even if one were to
agree students are acting for the teacher when they correct the
assignment, that is different from saying they are acting for the
educational institution in maintaining it.
Other sections of the statute support our interpretation.
See Davis v. Michigan Dept. of Treasury,
489 U. S. 803, 809 (1989)
("It is a fundamental canon of statutory construction that the
words of a statute must be read in their context and with a view to
their place in the overall statutory scheme"). FERPA, for example,
requires educational institutions to "maintain a record, kept with
the education records of each student." § 1232g(b)(4)(A). This
record must list those who have requested access to a student's
education records and their reasons for doing so. Ibid. The record
of access "shall be available only to parents, [and] to the school
official and his assistants who are responsible for the custody of
such records." Ibid.
Under the Court of Appeals' broad interpretation of education
records, every teacher would have an obligation to keep a separate
record of access for each student's assignments. Indeed, by that
court's logic, even students who grade their own papers would bear
the burden of maintaining records of access until they turned in
the assignments. We doubt Congress would have imposed such a
weighty administrative burden on every teacher, and certainly it
would not have extended the mandate to students.
Also, FERPA requires "a record" of access for each pupil.
This single record must be kept "with the education records."
This suggests Congress contemplated that education records would be
kept in one place with a single record of access. By describing a
"school official" and "his assistants" as the personnel responsible
for the custody of the records,
435
FERPA implies that education records are institutional records
kept by a single central custodian, such as a registrar, not
individual assignments handled by many student graders in their
separate classrooms.
FERPA also requires recipients of federal funds to provide
parents with a hearing at which they may contest the accuracy of
their child's education records. § 1232g(a)(2). The hearings must
be conducted "in accordance with regulations of the Secretary,"
ibid., which in turn require adjudication by a disinterested
official and the opportunity for parents to be represented by an
attorney. 34 CFR § 99.22 (2001). It is doubtful Congress would have
provided parents with this elaborate procedural machinery to
challenge the accuracy of the grade on every spelling test and art
project the child completes.
Respondent's construction of the term "education records" to
cover student homework or classroom work would impose substantial
burdens on teachers across the country. It would force all
instructors to take time, which otherwise could be spent teaching
and in preparation, to correct an assortment of daily student
assignments. Respondent's view would make it much more difficult
for teachers to give students immediate guidance. The
interpretation respondent urges would force teachers to abandon
other customary practices, such as group grading of team
assignments. Indeed, the logical consequences of respondent's view
are all but unbounded. At argument, counsel for respondent seemed
to agree 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 other students to see it. Tr. of Oral Arg. 40.
We doubt Congress meant to intervene in this drastic fashion
with traditional state functions. Under the Court of Appeals'
interpretation of FERPA, the federal power would exercise minute
control over specific teaching methods and
436
SCALIA, J., concurring in judgment
instructional dynamics in classrooms throughout the country. The
Congress is not likely to have mandated this result, and we do not
interpret the statute to require it.
For these reasons, even assuming a teacher's grade book is an
education record, the Court of Appeals erred, for in all events the
grades on students' papers would not be covered under FERPA at
least until the teacher has collected them and recorded them in his
or her grade book. We limit our holding to this narrow point, and
do not decide the broader question whether the grades on individual
student assignments, once they are turned in to teachers, are
protected by the Act.
The judgment of the Court of Appeals is reversed, and the case
is remanded for further proceedings consistent with this
opinion.
It is so ordered.
JUSTICE SCALIA, concurring in the judgment.
I agree with the Court that peer-graded student papers do not
constitute "education records" while they remain in the possession
of the peer grader because, as the Court explains, a student who
grades another's work is not "a person acting for" the school in
the ordinary meaning of that phrase. Ante, at 432, 433. I cannot
agree, however, with the other ground repeatedly suggested by the
Court: that education records include only documents kept in some
central repository at the school. Ante, at 433 ("The word
'maintain' suggests FERPA records will be kept in a filing cabinet
in a records room at the school or on a permanent secure database
.... It is fanciful to say [student graders] maintain the papers in
the same way the registrar maintains a student's folder in a
permanent file"), 435 ("FERPA implies that education records are
institutional records kept by a single central custodian, such as a
registrar ... ").
As the Court acknowledges, ante, at 429, 432, Congress expressly
excluded from the coverage of FERPA "records of
437
instructional ... personnel ... which are in the sole possession
of the maker thereof and which are not accessible or revealed to
any other person except a substitute," 20 U. s. C. §
1232g(a)(4)(B)(i). Respondent argues that this exception, which
presumably encompasses many documents a teacher might create and
keep in the classroom, including a grade book, would be rendered
superfluous if education records included only "institutional
records kept by a single central custodian, such as a registrar."
We do not, of course, read statutes in such fashion as to render
entire provisions inoperative. United States v. Nordic Village,
Inc.,
503 U. S.
30, 35-36 (1992).
The Court does not explain why respondent's argument is not
correct, and yet continues to rely upon the "central custodian"
principle that seemingly renders the exception for "records of
instructional ... personnel" superfluous. Worse still, while thus
relying upon a theory that plainly excludes teachers' grade books,
the Court protests that it is not deciding whether grade books are
education records, ante, at 433. In my view, the Court's
endorsement of a "central custodian" theory of records is
unnecessary for the decision of this case, seemingly contrary to §
1232g(a)(4)(B)(i), and (when combined with the Court's disclaimer
of any view upon the status of teachers' grade books) incurably
confusing. For these reasons, I concur only in the judgment of the
Court.
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