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FERPA - Family Education Rights and Privacy Act “Buckley Amendment”

 

- by Jack Ryan
Legal & Liability Risk Management Institute

Under the Family Education Rights and Privacy Act of 1974, commonly referred to as the Buckley Amendment, students are granted a certain level of privacy with respect to their educational records.  The Buckley Amendment sets forth comprehensive requirements as to how student records are processed and maintained.  Under FERPA, parents have the right to inspect and challenge their child’s records.  Schools are not allowed to release a student’s records without the consent of the student’s parents or the consent of the student once attaining the age of 18.  The failure of a school district to follow the mandates of FERPA could result in the loss of federal funding.

In 2002, a decision by the United States Supreme Court held that “peer grading” did not violate the privacy provisions of FERPA.i In Owasso,  Krista Falvo, the mother of three children attending school in the Owasso Schools, challenged the practice of peer grading as violating the provisions of FERPA that require parental consent before releasing information concerning a child.  “The children’s teachers, like many teachers in the country, use peer grading.  In a typical case, the students exchange papers with each other and score them according to the teacher’s instructions, then return the work to the student who prepared it.  The teacher may ask the student to report their own scores. 

The Supreme Court held that peer grading, which is sometimes used as an educational tool, does not violate the provisions of FERPA.  The Court reasoned that grades on a paper are not student records that are “maintained” within the meaning of FERPA.  FERPA prohibits the release of “maintained” records, since these test grades are not “maintained” under the FERPA definition, FERPA does not apply.  Secondly, the Court noted that for a violation of FERPA to occur, information must be released by “a person acting for” an educational institution.  The Court decided that students who conduct peer grading are not agents of the school and therefore are not “a person acting for” the educational institution as required to establish a violation of the statute.  The Court concluded that peer grading does not violate the provisions of the Family Rights and Privacy Act.

In Commonwealth v. Buccella,i a student was investigated for writing graffiti that included racial slurs inside his school.  The student was charged with malicious damage as a result of an investigation that included comparing the written graffiti to the student’s homework assignments and tests.  The student claimed that the use of his school work violated his rights under a Massachusetts statute and the requirements of FERPA.

In rejecting the student’s claim, the Supreme Judicial Court of Massachusetts noted that the student’s assignments were not reviewed for content or the grades; they were merely reviewed for a handwriting comparison.  The court took notice of the fact that the assignments were not turned over to an outside entity but were used by another government actor for a valid government purpose.   The court concluded that the use of the assignments to compare the student’s handwriting did not violate FERPA or the Massachusetts statute at issue.

CITATIONS:


i Owasso Independent School District v. Falvo, 534 U.S.426 (2002).

ii Commonwealth v. Buccella, 751 N.E.2d 373 (SJC Ma. 2001).

 

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