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Peer-graded assignment student papers are not, as soon as they are graded by another student, "maintained" within the meaning of 20 U.S.C.S. § 1232g(a)(4)(A). The score on a student-graded assignment is not "contained therein," 20 U.S.C.S. § 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 20 U.S.C.S. § 1232g(a)(4)(A). The word "maintain" suggests the Family Educational Rights and Privacy Act of 1974, 20 U.S.C.S. § 1232g, 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.
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" violated 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, authorized federal funds to be withheld from school districts that permit students' "education records to be released without their parents' written consent.” 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 were "education records," so the very act of grading was an impermissible release of information to the student grader. Certiorari was granted.
Did peer grading violate the Family Educational Rights and Privacy Act of 1974 (FERPA), 20 U.S.C.S. § 1232g?
The Court found that student graders only handled assignments for a few moments as the teacher called out the answers. They did not "maintain" the papers within the meaning of 20 U.S.C.S. § 1232g(a)(4)(A) in the same way a registrar maintained a student's folder in a permanent file. Correcting a classmate's work could be as much a part of the assignment as taking the test itself. It was a way to teach material again in a new context, and helped show students how to assist and respect fellow pupils. FERPA did not prohibit those educational techniques. The phrase "by a person acting for an educational institution" modified "maintain." FERPA implied that education records were institutional records kept by a single central custodian, such as a registrar, not individual papers handled by student graders in their classrooms. It was doubtful Congress would have provided the elaborate procedural machinery to challenge the accuracy of a student's grade on every test. The grades on the peer-graded papers were not covered under FERPA. The judgment of the United States Court of Appeals for the Tenth Circuit was reversed, and the case was remanded.