A lower court has ruled that the practice is banned by the Family Education Rights and Privacy Act.
"Some teachers in the Owasso (Okla.) School District utilize students to grade homework papers and week tests by having the students exchange papers and score one another's work as the teacher goes over the answers aloud in class," a petition from the school district told the Supreme Court earlier this year.
"Under Oklahoma law, a teacher may be responsible for teaching up to 140 students a day," the petition said. "It would be virtually impossible for a teacher to grade all 140 homework papers or weekly quizzes overnight and have them ready to be returned the following day, and it would be utterly impossible for a teacher to grade that many papers and return them on the same day .... "
One mother of three local students decided to challenge the practice. Kristja Falvo's 10-year-old son, Philip Pletan, was a special education student being "mainstreamed" into the regular class room. "Philip was subjected to humiliation, ridicule and loss of privacy" because of the student grading, Falvo's lawyers said in her brief to the high court.
Falvo said she complained during the 1997-98 and 1998-99 school years without result. Then she filed a class action lawsuit on behalf of Philip, her two daughters and all other students in the same situation. Falvo cited the federal law and the privacy guarantees inherent in the 14th Amendment.
A federal judge ruled for the school district, saying "the interim tests and homework assignments ... are not 'highly personal' matter worthy of constitutional protection." The judge also ruled that such material was outside the scope of records protected by the federal law.
A federal appeals court agreed and disagreed.
The appeals court upheld the judge on the constitutional issue, but reversed on the meaning of the federal law. The types of papers and tests graded in the classroom were "education records" under the Family Education Rights and Privacy Act, or FERPA, the appeals court said.
The school district then asked the Supreme Court for review, saying the lower-court decision "will have a significant impact on the day-to-day operations of our nation's public schools."
Speaking for the district Tuesday, Tulsa, Okla., attorney Jerry Richardson told the Supreme Court, "Congress did not intend (the law) to apply to such routine activities .... "
FERPA instead was designed to protect the privacy of "institutional records" that "could have a long-time effect on a student's career," Richardson said.
The Bush administration supported the school district. Deputy Solicitor General Edwin Kneedler said, "Congress did not intend FERPA to intrude on the day-to-day activities of tens of thousands of schoolrooms."
The law protects the privacy of "institutional records."
"If a grade is divulged from the paper" being graded by another student, Kneedler said, "we don't think that the student work itself is an institutional record."
Claremore, Okla., attorney Wilfred Wright Jr. spoke for Falvo and her children.
If test scores are not protected by the law, Wright said, "then a teacher could post exam scores in the local newspaper."
However, he conceded under prodding from Chief Justice William Rehnquist that that did not happen in the present case.
But Wright continued to argue that day-to-day test scores entered into a teacher's grade book are records protected by the act.
"The teacher's grade books are institution records," he said.
The Supreme Court should hand down a decision some time this winter or early spring.
(No. 00-1073, Owasso Independent School District No. I-001 et al vs. Falvo et al)