00-1073, Owasso Independent School District v. Falvo

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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 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.

Local effect:

The issue has not previously been considered in Wisconsin or by the Seventh Circuit.

Kennedy, J.; Scalia, J., concurring.