The Family Educational Rights and Privacy Act (FERPA)
What Implications Does FERPA have on Classroom Grading Procedures?
This paper will discuss the issues revolving around grading practices used in classrooms and if parents can protest grades given by a teacher. Parents feel that because of FERPA regulations they have the right to privacy of those grades and the right to challenge the grades. Teachers should be aware of some cases that have been decided in the courts and what the outcome of those cases means for the teacher's grading practices.
FERPA, The Family Educational Rights and Privacy Act, also known as The Buckley Amendment, was passed by Congress in 1974. Under this amendment, "parents have the right to access their children's 'educational record', defined broadly as both 'directly related to a student' and 'maintained by an educational agency or institution or by a party acting for the agency or institution'". (http://www.spannj.org/BridgeArchives/do parents have a right under th.htm)
PEER GRADING
One of the stipulations of FERPA is that educational records on a student could not be released without prior consent of the parent. Any school that does not follow the stipulations of the act will have federal funds withheld. So, does peer grading and the reporting of those grades verbally in class violate the conditions of FERPA? This is the question that was raised in the court case Owasso v. Falvo.
The case originated in a Tulsa, Oklahoma school where the teachers used a process called peer grading. This is the process where teachers have the students exchange papers with another student and they grade that student's paper. The students then return the paper to its owner and they report their own grade to the teacher. In this case the teacher would ask the students to verbally report their grade. Krista Falvo claimed that this process was embarrassing to her children and that it was forbidden by FERPA. She asked the school district to ban this grading policy and to require teachers to grade the assignments themselves or let the students grade their own papers.
The question then is, are the grades collected by the teacher educational records and therefore protected by FERPA and if not, when do grades become educational records?
The United States District Court for the Northern District of Oklahoma ruled in favor of the school district but the ruling was appealed. The Tenth Circuit Court of Appeals then ruled against the school district stating that the grades were indeed educational records and therefore were protected by FERPA. The Supreme Court then took the case and ruled on it in February of 2002. In their decision they stated
"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 the material and are ready to move on. We do not think FERPA prohibits these educational techniques...
Respondent's construction of the term "educational 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 would 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...
We doubt Congress meant to intervene in this drastic fashion with traditional state functions."
Owasso Independent School District No. 1-011 v. Falvo, 534 U.S. 426 (2002)
The Supreme Court ruled in favor of the school district stating that the grades at this point were not considered educational records and therefore not protected by FERPA. "Despite the Supreme Court ruling, individual school districts may still decide to ban the practice of peer grading. Depending on State Law, however, the district may be required to bargain over the issue before implementing such a policy."
http://www.nea.org/neatoday/0205/rights.html
PARENTS CHALLENGING GRADES: Does FERPA allow parents to challenge the correctness of a grade?
Not according to a 5th Circuit Court of Appeals decision of Tarka v. Cunningham in 1990. In this case a student was challenging a "D" he received as a physics grade. Under FERPA, parent or students are given the right to a hearing to challenge the accuracy of the information found in the educational records. This poses the question, what is inaccurate or incorrect?
In the decision of Tarka v. Cunningham 917 F.2d 890 (5th Cir. 1990), the ruling stated
student 's grades, as reflected in educational records, can only be inaccurate or misleading if they do not reflect what the grader intended or it they are mathematically incorrect.
http://www.spannj.org/BridgeArchives/do parents have a right under th.htm
Tarka v. Cunningham was followed by Altschuler v. University of Penn. Law. Sch., 1998 U.S. Dist. Lexis 3046 finding that Grades may be characterized as inaccurate or misleading under FERPA only "if they do not reflect what the grader intended or if they are mathematically incorrect"'".
http://www.spannj.org/BridgeArchives/do parents have a right under th.htm
In the case Lewin v. Medical College of Hampton Rds., 931 F. Supp. 433 (E.D. Va. 1996), a student tried to prove that his answers to some "ambiguous questions were 'objectively correct'". The court ruled in favor of the school again stating that the student "could not dispute the test rubrics accuracy"
http://www.spannj.org/BridgeArchives/do parents have a right under th.htm.
In looking as some case law it seems the courts agree that FERPA does not give parents or students the power to change grades that they feel are inaccurate or misleading. The only way the grades may be changed is if they are not what the grader intended or if they are mathematically incorrect.
CAN AN ADMINISTRATOR / SCHOOL BOARD MAKE A TEACHER CHANGE A GRADE?
I was unable to find any case law on administrators or school boards trying to force a teacher to change a grade for a student. Through an email correspondence, Roth Will, assistant superintendent in charge of curriculum at USD 489, said, "As an administrator, it is my responsibility to know the grading procedures of all my teachers. If I have a problem with the procedure, I need to work it out with a teacher before there is a problem. In discussing procedure with a teacher, an administrator has a lot of clout. After the grade has been assigned, an administrator has much less clout".
The only other example I could find resembling this issue is the plagiarism issue at Piper High School in Kansas City last year. In that case Ms. Pelton, a biology teacher assigned a semester long project in which the students were to collect leaves, describe them and write a report over their collection. She had the parents read and sign the class syllabus at the beginning of the year and specifically discussed plagiarism with the parents. The assignment was to be worth 50 percent of the semester grade. When the reports were turned in she confirmed with her principal that 28 of the 118 students plagiarized.
In December the School Board met in a closed session and Mr. Rooney, the Superintendent, came out of the meeting and announced that the penalty would be reduced. "The next day Mr. Rooney directed Ms. Pelton to change the project's weight from 50 percent to 30 percent of the course's semester grade. And he said that 600 points should be taken from the plagiarists, rather than the entire 1800 points the project was worth.".
http://edweek.org/ew/newstory.cfm?slug=29piiper.h21
This is what caused the big uproar but there has been no litigation over the changing of the grades. The only litigation I could find was the District Attorney filing suit on the Board's violation of the Kansas open-meetings law. There has been one teacher and one principal resign over this issue.
CONCLUSION
It seems clear that FERPA does not allow parents to contest grades only on the grounds that they think it was unfair. They can contest the grade if they feel it was not what the teacher meant or if they think it is mathematically incorrect. FERPA also does not prohibit peer-grading methods. It seems the court is saying that the grades at that point are not considered educational records at that point. Finally, from an administrator's point of view you probably need to be aware of your teachers grading procedures. If you have a problem with the way they take grades you need to work it out before there is a problem.
SELF-TEST--Supply short answers to these questions & email them to your instructor.
- What is FERPA and briefly what is its application to education?
- As a teacher what can you do to protect yourself from grading controversies?
- According to the Supreme Court, is peer-grading still acceptable in our schools?
RESOURCES
- http://www.spannj.org/BridgeArchives/do_parents_have_a_right_under_th.htm
- http://www.reedmartin.com/ferpadecision.htm
- http://www.nea.org/neatoday/0205/rights.html
- http://www.edweek.org/ew/newstory.cfm?=29piper.h21
Will Roth, Assistant Superintendent of Schools for USD 489, in charge of curriculum provided some very helpful information.
Fischer, Schimmel, and Stellman, Teachers and the Law (6th Ed. ), Allyn and Bacon, 2003
Additional Information on FERPA
Confidentiality of Student Records
Definitions
- Educational records are defined as those records directly related to a student and maintained by the institution or by a party acting for the institution. Educational records can include personal information, enrollment records, grades, schedules, etc.These records can be a document in the principal's office, a computer printout in your office, a class list on your desktop, a computer display screen, notes you have taken during an advisement session, etc. (It does not matter what kind of storage media the information is on, it is still considered an educational record.)
- School officials are those members of the institution who are deemed to have a legitimate educational interest, with access to educational records provided on a need-to-know basis. School officials may include faculty, administration, clerical and professional employees and other persons who manage student educational record information.
What Are The Basic Rules Of FERPA
- Student educational records are considered confidential and may not be released without the written consent of the parent or student.
- As a faculty or staff member, you have the responsibility to protect educational records in your possession.
- Some information is considered public.This information can be released without the parent's or students written permission. However, the student may opt out to consider this info confidential as well.This information can include: name, address, phone number, and height and weight of athletes.
- You have access to information only for legitimate use in completion of your responsibilities.Need to know is the basic principle.
- If you are ever in doubt, to not release any information until you talk to the appropriate authorities.
- http://www/Salisbury.edu/academic/provost/ferpa/ferpa_basics.htm
FERPA Regulations
FERPA 99.10--What rights exist for a parent or eligible student to inspect and review education records?
(a) A parent or eligible student must be given the opportunity to inspect and review the student's education records.
(b) The educational agency shall comply with a request for access to records within a reasonable period of time, but not more than 45 days after it has received the request.
(c) The educational agency shall respond to reasonable requests for explanations and interpretations of the records.
(d) If circumstances effectively prevent the parent or eligible student from exercising the right to inspect and review the student's education records, the educational agency shall
1) Provide the parent or eligible student with a copy of the records requested; or
2) Make other arrangements for the parent or eligible student to inspect and review the requested records.
(e) The educational agency shall not destroy any education records if there is an outstanding request to inspect and review the records under this section.
(f) While an education agency is not required to give an eligible student access to treatment records, the student may have those records reviewed by a physician or other appropriate professional of the student's choice.
FERPA 99.12--What limitations exist on the right to inspect and review records?
(a) If the education records of a student contain information on more than one student, the parent or eligible student may inspect and review or be informed of only the specific information about that student.
FERPA 99.30--Under what conditions is prior consent required to disclose information?
(a) The parent or eligible student shall provide a signed and dated written consent before an educational agency discloses personally identifiable information from the students' education records, except as provided in 99.31.
(b) The written consent must:
1) Specify the records that may be disclosed;
2) State the purpose of the disclosure; and
3) Identify the party or class of parties to whom the disclosure may be made.
(c) When a disclosure is made under paragraph (a) of this section:
1) If a parent or eligible student so requests, the educational agency shall provide him/her with a copy of the records disclosed; and
2) If the parent of a student who is not an eligible student so requests, the agency shall provide the student with a copy of the records disclosed.
FERPA 99.31--Under what conditions is prior consent not required to disclose information?
(a) An educational agency may disclose personally identifiable information from an education record of a student without the consent required by 99.30 if the disclosure meets one of the following conditions:
1) The disclosure is to other school officials, including teachers with the agency, whom the agency has determined to have legitimate educational interests.
2) The disclosure is, subject to the requirements of 99.34, to officials of another school system or institution of postsecondary education where the student seeks or intends to enroll.
3) The disclosure is to authorized representatives of:
(i) The Comptroller General of the United States;
(ii) The Attorney General of the United States;
(iii) The Secretary; or
(iv) State and local education authorities.
4) The disclosure is in connection with financial aid for which the student has applied or which the student has received, if the information is necessary for such purposes.
5) The disclosure is to State and local officials or authorities to whom this information is specifically
(i)Allowed to be reported or disclosed pursuant to a State statute adopted before November 19, 1974, if the allowed reporting or disclosure concerns the juvenile system and the system's ability to effectively serve the student whose records are released.
(ii) Allowed to be reported or disclosed pursuant to a State statute adopted after November 19, 1974, subject to the requirements of 99.38.
6) The disclosure is to organizations conducting studies for, or on behalf of, educational agencies or institutions to
Develop, validate, or administer predictive tests;
(ii)Administer student aid programs; or
(iii) Improve instruction.
7) The disclosure is to accrediting organizations to carry out their accrediting functions.
8) The disclosure is to parents, as defined in 99.30, of a dependent student.
9) The disclosure is to comply with a judicial order or lawfully issued subpoena.
10) The disclosure is in connection with a health or safety emergency, under the conditions in 99.36.
11) The disclosure is information the educational agency has designated as "directory information".
12) The disclosure is to the parent of a student who is not an eligible student.
FERPA 99.32--What record keeping requirements exist concerning requests and disclosures?
FERPA 99.34--What conditions apply to disclosure of information to other educational agencies or institutions?
(a) An educational agency that discloses an education record under 99.31 (a)(2) shall:
1) Make a reasonable attempt to notify the parent or eligible student at the last known address of the parent or eligible student, unless:
(i)The disclosure is initiated by the parent or eligible student.
2) Give the parent or eligible student, upon request, a copy of the record that was disclosed; and
3) Give the parent or eligible student, upon request, an opportunity for a hearing.
(b) An educational agency may disclose an education record of a student in attendance to another educational agency if:
1) The student is enrolled in or receives services from the other agency; and
2) The disclosure meets the requirements of paragraph (a) of this section.
FERPA 99.36--What conditions apply to disclosure of information in health and safety emergencies?
(a) An educational agency may disclose personally identifiable information from an education record to appropriate parties in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals.
(b) Nothing in the Act or this part shall prevent an educational agency from
1) Including in the education records of a student appropriate information concerning disciplinary action taken against the student for conduct that posed a significant risk to the safety or well being of that student, other students, or other members of the school community;
2) Disclosing appropriate information maintained under paragraph (b)(1) of this section to teachers and school officials within the agency who the agency has determined have legitimate educational interests in the behavior of the student; or
3) Disclosing appropriate information maintained under paragraph (b)(1) of this section to teachers and school officials in other schools who have been determined to have legitimate educational interests in the behavior of the student.
5 Main Features Of FERPA
- It requires school districts to inform parents of their rights under the act each year.
- It guarantees parents the right to inspect and review the educational records of their children.
- It establishes procedures through which parents can challenge the accuracy of student records.
- It protects the confidentiality of student records by preventing disclosure of personally identifiable information to outsiders without prior parental consent.
- It entitles parents to file complaints with the U.S Department of Education concerning alleged failures to comply with the act.
(Teachers and the Law, page 375)
Other Regulations To Consider - http://www.kansped.org/ksde/ph01/ch0.html
Destruction of Records--For auditing purposes, schools are required to maintain education records for 5 years after they exit from special education services. After that period of time, schools may destroy records. However, before destroying an educational record, the school must notify the parent (or student if age 18 or older) that the information is no longer needed to provide services to the student ant that the school is proposing to destroy them.
The requirement to notify the parent or the student before records are destroyed may be problematic if the student moves from the address last known to the school. In such cases, the school is advised to send a certified letter to the student at the last known address. If that letter is returned to the school, that return becomes the documentation of the school's attempt to inform the student of the proposed destruction of records. The school may also publish a public notice to students who graduated or left school five years previously. The notice should be addressed to students and guardians, advising them of the proposed destruction of records and asking them to contact the school if they object to the destruction.
Child In Need Of Care--As part of the Child in Need of Care case, the following people may freely exchange information:
- Department of Social and Rehabilitation Services
- Commissioner of Juvenile Justice
- Law enforcement agency receiving the report
- Members of a Court-appointed multidisciplinary team
- Entity mandated by Federal or State law to investigate child in need of care cases
- Military enclave or Indian tribal organization authorized to investigate such cases
- County or district attorney
- Court services officer who has taken a child into custody
- Guardian ad litem appointed for a child alleged to be in need of care
- An intake and assessment worker
- Any community corrections program that has the child under Court-ordered supervision
What must a school do to provide parents reasonable access to their child's records?
Records should be in a location that parents can find, maintained during normal business hours, and not in a physically inaccessible area. Upon request, someone who can interpret the records should be available to the parents. Parents may also request that copies of their child's education records be made for them. Schools may charge a reasonable fee and may take reasonable time to provide the copies to the parents. If the parents are unable to pay the fee, the school must provide the records without charge.
Additional Web Sites:
- http://www.pacer.org/parent/PHP-c41%20School%20Records.pdf
- http://www.kansped.org/ksde/ph01/ch9.html
- http://www.ed.gov/offices/OII/fcpo/ferpa/parents.html
- http://www.ed.gov/offices/OII/fpco/ferpa/
- http://www.ed.gov/offices/OII/fpco/ferpa/ferparegs.html
- http://www.ess.calpoly.edu/_records/stu_info/ferpa_use.htm
- http://www.Salisbury.edu/academic/provost/ferpa/ferpa_basics.htm
- http://www/1donline.org/1d_indepth/special_education/maze_records.html
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