Frequently Asked Questions About Falvo (The FERPA Case)

[This article was written by Michelle Beus, the Davis School District Legal Issues Specialist and a member of the Davis Education Association. ]

Many questions have been raised by the recent court case - Falvo v. Owasso Independent School District- decided on July 30, 2000 in the 10th Circuit Court of Appeals. The Court in Falvo found that a school district practice of allowing students to grade one another's work and then have the student call their own grade aloud for the teacher to record violates the Family Educational Rights and Privacy Act (FERPA) even where the children had the option of confidentially reporting their grades.

"The purpose of the Act is two-fold, to assure parents of students . . . access to their education records and to protect such individuals' rights to privacy by limiting the transferability of their records without their consent."

While the court answered the question of whether the practice used in Owasso schools violates FERPA, it left many unanswered questions regarding other practices used in schools. The following are questions which have been raised most frequently by teachers and administrators.

  1. Can I post student grades by student number?
    No. This issue is not new to the Falvo decision. A 1992 case found that student ID numbers and Social Security numbers are personally identifiable information and it would be inappropriate to publicly post a student's grades by either. The Federal case appears to permit this practice while a New Jersey case does not. We believe it is not an acceptable practice.

  2. Can students grade one another's work?
    Yes. Although the Falvo practice was a violation of FERPA, the court stated that the "statute does not prohibit students from correcting papers if done anonymously or with the consent of parents."

    Consent - require a permission slip from parent/guardian of student. In order to avoid yet another parent permission statement, consider making it part of the regular class/course disclosure. There is a sample on the final page of this document which includes all necessary information. If a school or teacher drafts a different form, to meet FERPA requirements, the form must include: 1)what records will be disclosed; 2)who will see them (not necessarily by name); 3)why they will see them (explain the benefits of peer grading); and 4)parent signature and date.

    Anonymity - Assign school-wide or class student numbers - do not use social security numbers - and have students use the number on all assignments and test.

  3. If one student's parent objects or will not sign consent, does that mean that peer grading may not happen?
    No. If a parent will not consent to peer grading, their child may still grade other student's work and the teacher could grade the non-consenting student's work. Alternatively, the student without consent could self correct while the rest of the class participates in peer grading.

  4. Can I require students to call out grades for me to record in my grade book?
    No. This practice is specifically prohibited in the court's decision.

  5. Can student aides grade other student's work and record grades in roll book?
    Yes. Although the court did not specifically address this issue, student aides are acting as official agents of the school and can therefore have access to this private information. However, student aides should be selected with the idea in mind that they have access to private information about other students and must be capable of keeping it confidential. Each student aide should be required to sign a confidentiality agreement before having access to confidential information about other students.

  6. Can student aides input grades in computer?
    No. Even with a confidentiality agreement, student aides and parent volunteers should not be allowed access to the system. Privacy of computer passwords and systems is the issue here, not the recent FERPA court decision. The Federal case appears to permit this practice while a New Jersey case does not. We believe it is not an acceptable practice.

  7. What about parent volunteers grading work or assisting with reading programs, passing off assignments, etc?
    Yes. There are two ways that this can be accomplished. A parent volunteer may be considered a designated school official and sign a confidentiality agreement. Our District Volunteer Agreement already does this. Alternatively, you may get parental consent in your class disclosure.

  8. What about peer tutoring - a 6th grader or high school student helping a younger student with reading or tests - or cooperative learning activities in class?
    When students are simply learning together rather than grading each other, there is nothing in the court decision which prohibits this. It may be a good idea to have high school students who come to work with younger students sign a confidentiality agreement.

  9. What about posting awards such as Reading Awards, Honor Roll, Peacemakers, Discipline Awards, etc.?
    Yes. Awards and honors received are considered directory information and can be released without parental consent. Parents should be given notice annually that they may request student directory information not be released. Information on how to notify parents of this was provided to you in the "Information Notification for principals and district staff responsible for student registration" and was also included in "Administrative Memo #28/04:06:00." Post only name and award - do not post actual GPA.

  10. What about posting graduation list?
    Yes. This is also directory information. Post names of those on line to graduate - not those who are not on line to graduate. Post listing alphabetically, not by class ranking.

  11. Can I post a chart to track homework, reading, multiplication tables, etc.?
    It depends. Regardless of whether an assignment or activity will be used for a student's final grade, the court stated that the information would be recorded in a grade book or "otherwise" and used for some purpose, perhaps as "a yardstick of each student's performance and progress to better develop effective teaching strategies." It is therefore a student record.

    With the court's quotes in mind, tracking of accomplishments on a chart should be done only anonymously or with parental consent. There is no problem with a student having their own chart taped to their desk.

  12. What about having the class stand if they are prepared for the day, (i.e., books, pencils, etc.) or writing names of those unprepared on the board?
    No. This is simply a quiet way of calling out their own preparation grade.

  13. Can I post samples of student work?
    Yes. Two ways to do this and remain within the law are: 1)parental consent to display good work; or 2)make certain the work has no name or grade showing. Remember that if you choose the consent option, it must be the consent of the parent rather than the student. The student is not given the right to consent under FERPA until they reach the age of 18.

  14. Can students pass back work that has been graded?
    Maybe. In so doing, they are being given access to each student's grades. A student aide who has signed a confidentiality agreement could certainly do this. Alternatively, if you have obtained parental consent for students to grade one another's work, it would be all right to have them pass back graded work. (Remember, for the student whose parent did not consent, you will need to pass the papers back yourself.)

  15. Can we issue a school-wide permission slip?
    No. The consent exception of the law requires a parent be advised of who and why access will be given to their student's work. The consent must also be signed and dated. Not every teacher uses peer grading and reasons why the practice is used differ depending on the teacher and the subject matter. Making a parent feel comfortable consenting to the practice is better done by the individual teacher and keeping track of objections to the practice must be done on a teacher by teacher basis.

  16. Our school-wide discipline plan requires rule breakers to "pull a card" or have their name written on the board. Is this okay?
    Maybe. This may only be done if you have parental consent. The consent may be in your initial class or school disclosure about the discipline policy. If you had parents sign off on the discipline policy, that is sufficient.

Please keep in mind that the court did not specifically address all of these issues. This information is designed to help you as educators apply the language of the case to alternative situations and provide some workable solutions to day-to-day issues you may face.