No. 00-1073 

In the Supreme Court of the United States 

OWASSO INDEPENDENT SCHOOL DISTRICT NO. I-011, 

AKA OWASSO PUBLIC SCHOOLS, ET AL., PETITIONERS 

v. 

KRISTJA J. FALVO, PARENT AND NEXT FRIEND 
OF HER MINOR CHILDREN, ELIZABETH PLETAN, 
PHILIP PLETAN AND ERICA PLETAN 

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE TENTH CIRCUIT 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE 

BARBARA D. UNDERWOOD 

Acting Solicitor General 

Counsel of Record 

STUART E. SCHIFFER 

Acting Assistant Attorney 

General 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

BETH S. BRINKMANN 

Assistant to the Solicitor 

General 

MARK B. STERN 
COLETTE G. MATZZIE 

Attorneys 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

QUESTION PRESENTED 

The Family Educational Rights and Privacy Act of 
1974 (FERPA), 20 U.S.C. 1232g(b)(1) (1994 & Supp. V 
1999), prohibits the furnishing of federal funds to an 
educational institution that has a policy or practice of 
releasing, without parental consent, students’ “educa- 
tion records,” which are defined by FERPA as “those 
records, files, documents, and other materials which-–(i) 
contain information directly related to a student; and 
(ii) are maintained by an educational agency or insti- 
tution or by a person acting for such agency or institu- 
tion.” 20 U.S.C. 1232g(a)(4)(A). The question pre- 
sented is: 

Whether allowing students to grade each other’s 
homework and tests as their teacher goes over the 
correct answers aloud in class violates FERPA’s 
prohibition against the release of “education records.” 

(I) 

TABLE OF CONTENTS 

Page 

Statement ........................................................................................ 1 

Discussion ........................................................................................ 13 

Conclusion ....................................................................................... 20 

TABLE OF AUTHORITIES 

Cases: 

Chevron U.S.A. Inc. v. Natural Res. Def. Council, 

Inc., 467 U.S. 837 (1984) ...................................................... 

9 

Christensen v. Harris County, 529 U.S. 576 (2000) ........ 

9 

Fay v. South Colonie Century Sch. Dist., 802 F.2d 21 

(2d Cir. 1986) ........................................................................... 

7 

Tarka v. Cunningham, 917 F.2d 890 (5th Cir. 1999) ...... 

7 

United States v. Riverside Bayview Homes, Inc., 

474 U.S. 121 (1985) ................................................................ 

7 

Constitution, statutes and regulations: 

U.S. Const. Amend. XIV ......................................................... 

6, 8 

Education Amendments of 1974, Pub. L. No. 93-380, 

§ 513(a), 88 Stat. 571: 

88 Stat. 571 ......................................................................... 

3 

88 Stat. 572 ......................................................................... 

3, 4 

Family Educational Rights and Privacy Act of 

1974, 20 U.S.C. 1232g: 

20 U.S.C. 1232g note ......................................................... 

3 

20 U.S.C. 1232g(a)(1)(A) ................................................ 

4, 16 

20 U.S.C. 1232g(a)(1)(B) .................................................. 

4 

20 U.S.C. 1232g(a)(2) ................................................ 

4, 11, 16 

20 U.S.C. 1232g(a)(3) ........................................................ 

2 

20 U.S.C. 1232g(a)(4)(A) ................................................ 

3, 13 

20 U.S.C. 1232g(a)(4)(A)(i) .............................................. 

10 

20 U.S.C. 1232g(a)(4)(A)(ii) .............................. 

10, 11, 12, 14 

20 U.S.C. 1232g(a)(4)(B)(i) .............................................. 

3 

20 U.S.C. 1232g(a)(5) ........................................................ 

2 

20 U.S.C. 1232g(a)(5)(A) .................................................. 18 

(III) 

IV 

Statutes and regulations—Continued: 
Page 

20 U.S.C. 1232g(a)(5)(B) .................................................. 

18 

20 U.S.C. 1232g(b)(1) (1994 & Supp. V 1999) ............... 

1, 2 

20 U.S.C. 1232g(b)(1)(A)-(J) (1994 & Supp. 1999) ....... 

2 

20 U.S.C. 1232g(b)(2) ........................................................ 

2 

20 U.S.C. 1232g(b)(4)(A) .......................................... 

2, 11, 16 

20 U.S.C. 1232g(b)(6)(A) (Supp. V 1999) ...................... 

2 

20 U.S.C. 1232g(f ) ....................................................... 

5, 7, 17 

20 U.S.C. 1232g(g) ........................................................... 

5, 17 

Joint Resolution of Dec. 31, 1974, Pub. L. No. 93-568, 

88 Stat. 1855: 

§ 2(a): 

88 Stat. 1858-1862 ........................................................ 

4 

88 Stat. 1859-1860 ........................................................ 

4 

§ 2(b), 88 Stat. 1862 ........................................................... 

4 

Privacy Act of 1974, 5 U.S.C. 552a(a)(3) ............................... 

7, 8 

20 U.S.C. 1234c ........................................................................ 

5, 17 

42 U.S.C. 1983 ........................................................................ 

6, 7, 9 

34 C.F.R.: 

Section 99.32 ........................................................................... 

16 

Section 99.60(a) ...................................................................... 

5 

Section 99.60(b) ...................................................................... 

5 

Section 99.60(c) ....................................................................... 

5 

Miscellaneous: 

120 Cong. Rec. (1974): 
pp. 39,861-39,862 .................................................................... 

17 
p. 39,862 ......................................................................... 
13, 16, 17 

pp. 39,862-39,866 .................................................................... 
12 

Random House Dictionary of the English Language 
(2d ed. 1987) ............................................................................ 
14 

Webster’s Third New International Dictionary 
(1993) ........................................................................................ 14 

In the Supreme Court of the United States 

No. 00-1073 

OWASSO INDEPENDENT SCHOOL DISTRICT NO. I-011, 

AKA OWASSO PUBLIC SCHOOLS, ET AL., PETITIONERS 

v. 

KRISTJA J. FALVO, PARENT AND NEXT FRIEND 
OF HER MINOR CHILDREN, ELIZABETH PLETAN, 
PHILIP PLETAN AND ERICA PLETAN 

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE TENTH CIRCUIT 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE 

This brief is submitted in response to the Court’s 
order inviting the Solicitor General to express the 
views of the United States. 

STATEMENT 

1. a. The Family Educational Rights and Privacy Act 
of 1974 (FERPA), 20 U.S.C. 1232g(b)(1) (1994 & Supp. 
V 1999), provides that “[n]o funds shall be made 
available under any applicable program to any educa- 
tional agency or institution[1] which has a policy or 

1 For purposes of FERPA, “the term ‘educational agency or 
institution’ means any public or private agency or institution which 

(1) 

2 

practice of permitting the release of education records 
(or personally identifiable information contained there- 
in other than directory information [as defined in 20 
U.S.C. 1232g(a)(5)]) of students without the written 
consent of their parents,” other than in certain statu- 
torily identified circumstances. 20 U.S.C. 1232g(b)(1) 
(1994 & Supp. V 1999); see also 20 U.S.C. 1232g(b)(2). 
The cirumstances identified by the statute in which 
education records may be released without written 
parental consent include release to other teachers and 
school officials who have been determined by the insti- 
tution to have legitimate educational interests, officials 
of other schools in which the student seeks to enroll, 
certain state and federal educational and law enforce- 
ment officials, persons designated in a subpoena for law 
enforcement purposes, victims of certain crimes at a 
postsecondary institution, and educational testing, 
financial aid, and accrediting organizations. 20 U.S.C. 
1232g(b)(1)(A)-(J) (1994 & Supp. V 1999); 20 U.S.C. 
1232g(b)(6)(A) (Supp. V 1999).2 

The term “education records” is defined by FERPA 
to mean: 

those records, files, documents, and other materials 
which— 

is the recipient of funds under any applicable program.” 20 U.S.C. 
1232g(a)(3). 

2 The educational institution must “maintain a record, kept 
with the education records of each student, which will indicate all 
individuals (other than [school officials]), agencies, or organizations 
which have requested or obtained access to a student’s education 
records maintained by such educational agency or institution, and 
which will indicate specifically the legitimate interest that each 
such person, agency, or organization has in obtaining this infor- 
mation.” 20 U.S.C. 1232g(b)(4)(A). 

3 

(i) contain information directly related to a 
student; and 

(ii) are maintained by an educational agency or 
institution or by a person acting for such agency 
or institution. 

20 U.S.C. 1232g(a)(4)(A). The statute excludes from its 
definition of “education records” several specific catego- 
ries of records, including “records of instructional, su- 
pervisory, and administrative personnel and educa- 
tional personnel ancillary thereto which are in the sole 
possession of the maker thereof and which are not 
accessible or revealed to any other person except a 
substitute.” 20 U.S.C. 1232g(a)(4)(B)(i).3 

3 FERPA was enacted on August 21, 1974, as Section 513(a) of 
the Education Amendments of 1974, Pub. L. No. 93-380, 88 Stat. 
571, and became effective on November 19, 1974. 20 U.S.C. 1232g 
note. As initially enacted, FERPA did not use the term “education 
records” or contain a definition of that term. It instead used differ- 
ent terms to describe the materials that were subject to its various 
restrictions. Thus, it provided parents a right to inspect “any and 
all official records, files, and data directly related to their children, 
including all material that is incorporated into each student’s 
cumulative record folder, and intended for school use or to be 
available to parties outside the school or school system, and specifi- 
cally including, but not necessarily limited to, identifying data, 
academic work completed, level of achievement (grades, standard- 
ized achievement test scores), attendance data, scores on standard- 
ized intelligence, aptitude, and psychological tests, interest inven- 
tory results, health data, family background information, teacher 
or counselor ratings and observations, and verified reports of 
serious or recurrent behavior patterns.” 88 Stat. 572. It also 
provided parents with the right to challenge the accuracy of “their 
child’s school records,” 88 Stat. 572, and prohibited release, with 

4 

In addition to restricting release, without parental 
consent, of materials that constitute education records, 
FERPA requires that education records be made 
available to parents. FERPA provides that “[n]o funds 
shall be made available under any applicable program 
to any educational agency or institution which has a 
policy of denying, or which effectively prevents, the 
parents of students who are or have been in attendance 
at a school of such agency or at such institution, as the 
case may be, the right to inspect and review the 
education records of their children.” 20 U.S.C. 
1232g(a)(1)(A); see also 20 U.S.C. 1232g(a)(1)(B) (apply- 
ing requirement to State educational agencies). Educa- 
tional agencies and institutions also must provide 
parents an opportunity for a hearing “to challenge the 
content of such student’s education records, in order to 
insure that the records are not inaccurate, misleading, 
or otherwise in violation of the privacy rights of stu- 
dents, and to provide an opportunity for the correction 
or deletion of any such inaccurate, misleading or 
otherwise inappropriate data contained therein and to 
insert into such records a written explanation of the 
parents respecting the content of such records.” 20 
U.S.C. 1232g(a)(2). 

out parental consent (except in limited circumstances), of “per- 
sonally identifiable records or files.” 88 Stat. 572. 

Congress amended FERPA less than 45 days after its effective 
date and made the amendments “effective, and retroactive to, 
November 19, 1974.” Pub. L. No. 93-568, § 2(a) and (b), 88 Stat. 
1858-1862. One of the changes made by the amendments was to 
define the term “education records” and to insert that term in 
place of both the list of materials accessible to parents, and the 
description of the records the release of which is restricted. 88 
Stat. 1859-1860. 

5 

b. Congress authorized the Secretary of Education 
to “take appropriate actions to enforce” FERPA and to 
“deal with violations,” but specified that “action to 
terminate assistance may be taken only if the Secretary 
finds there has been a failure to comply with [FERPA], 
and he has determined that compliance cannot be 
secured by voluntary means.” 20 U.S.C. 1232g(f ); see 
also 20 U.S.C. 1234c. Congress also directed the Secre- 
tary to establish an office and a review board within the 
Department of Education for the purpose of investigat- 
ing, processing, reviewing, and adjudicating violations 
of FERPA and complaints concerning alleged violations 
of the statute. 20 U.S.C. 1232g(g). Pursuant to that 
authority, the Secretary designated the Department’s 
Family Policy Compliance Office (Compliance Office) to 
provide technical assistance to ensure compliance with 
the statute through voluntary means and to process 
complaints. 34 C.F.R. 99.60(a) and (b). The Secretary 
designated the Office of Administrative Law Judges as 
the review board. 34 C.F.R. 99.60(c). 

As part of the technical assistance provided to ensure 
compliance with FERPA, the Compliance Office re- 
sponds to inquiries from educational agencies and 
institutions about the statute. Pet. App. F2. In a letter 
dated July 15, 1993, the Director of the Compliance 
Office responded to an inquiry whether certain activi- 
ties violate FERPA. That letter explained, inter alia, 
that “FERPA would not prohibit teachers from 
allowing students to grade a test or homework assign- 
ment of another student or from calling out that grade 
in class, even though such grade may eventually 
become an education record. Such papers being graded 
and the grades which will be assigned would fall outside 
the FERPA definition of education records as they are 
not, strictly speaking, ‘maintained’ by an educational 

6 

agency or institution at that point.” Id. at F4-F5. The 
Director of the Compliance Office submitted a declara- 
tion in the instant case confirming that the July 15, 
1993, letter correctly sets forth the longstanding posi- 
tion of the Department. Id. at F2-F3. 

2. a. Respondent, Kristja Falvo, is the mother of 
three children who are enrolled in the petitioner school 
district, Owasso Independent School District No. I-011, 
in a suburb of Tulsa, Oklahoma. During the 1997-1998 
and 1998-1999 school years, respondent objected to the 
practice of teachers in her children’s classes having 
students grade one another’s homework and tests while 
the teacher went over the correct answers in class and, 
after the students received back their own papers, 
having the students call out their grades to the teacher. 
Pet. App. A3, B2. Respondent complained about the 
practice to school counselors and to the school district 
superintendent, claiming that it “severely embarrassed 
her children by allowing other students to learn their 
grades.” Id. at A3. Petitioners told respondent that 
her children had the option of reporting their grades to 
the teacher confidentially, but petitioners declined to 
prohibit the student grading of schoolwork. Id. at A3- 
A4. 

In October 1998, respondent filed the instant action 
in the United States District Court for the Northern 
District of Oklahoma, under 42 U.S.C. 1983, seeking 
damages and declaratory and injunctive relief against 
petitioners, including the Owasso School District and 
various school and school district officials. Respondent 
alleged that the challenged grading practice violated 
FERPA and was unconstitutional under the Four- 
teenth Amendment. Pet. App. A4. 

7 

b. On April 26, 1999, the district court, ruling on 
cross-motions for summary judgment, entered judg- 
ment for petitioners. Pet. App. B1-B6.4 
The district court held that allowing a student to 
grade the paper of another student and to have 
students call out their grades in class does not violate 
FERPA. Pet. App. B2-B4. The court relied (id. at B2- 
B3) on the Department of Education’s interpretation of 
FERPA set forth in the July 15, 1993, letter of the 
Director of the Compliance Office (see id. at F3-F6), 
which explains that FERPA does not prohibit the 
practices at issue here because homework assignments 
and tests, as well as the grades assigned to them by 
other students in such circumstances, “would fall 
outside the FERPA definition of education records as 
they are not, strictly speaking, ‘maintained’ by an 
educational agency or institution at that point.” Id. at 
F4-F5. The court noted that the Department of Educa- 
tion is the agency charged with enforcing FERPA, see 
20 U.S.C. 1232g(f ) and, as such, its interpretation of the 
statute “is entitled to deference if it is reasonable and 
not in conflict with the expressed intent of Congress.” 
Pet. App. B3 (quoting United States v. Riverside Bay- 
view Homes, Inc., 474 U.S. 121, 131 (1985)). The court 
rejected respondent’s contention that the court should 
adopt the definition of “maintain” set forth in the 
Privacy Act of 1974, 5 U.S.C. 552a(a)(3), which includes 

4 On October 16, 1998, in an order denying respondent’s request 
for a temporary restraining order, the court stated that, for pur- 
poses of that motion, it was following the holdings of two other 
circuits that a plaintiff may bring a FERPA claim under 42 U.S.C. 
1983. See Pet. App. C4 (citing Fay v. South Colonie Century Sch. 
Dist., 802 F.2d 21 (2d Cir. 1986); Tarka v. Cunningham, 917 F.2d 
890 (5th Cir. 1990)). 

8 

any collection or use of the material.5 The court 
emphasized that Congress did not choose to incorporate 
that special definition into FERPA. The court instead 
construed “maintain” in accordance with its ordinary 
meaning of “preserve” or “retain” and held that the 
Department of Education’s interpretation of FERPA 
was reasonable in light of that construction and did not 
conflict with the expressed intent of Congress. Pet. 
App. B4. 

The district court rejected respondent’s constitu- 
tional claim as well, holding that a student’s “interim 
tests and homework assignments” “are not ‘highly 
personal’ matters worthy of constitutional protection.” 
Pet. App. B5. The court noted that, in any event, 
“students are given the option of having their grade 
related in confidence,” “students do not grade 9-week 
exams,” and “[n]o revelation is made of a letter grade 
on a report card or from a student’s permanent tran- 
script.” Ibid.6 

3. a. The court of appeals affirmed in part and re- 
versed in part. Pet. App. A1-A32.7 The court affirmed 

5 The Privacy Act provides that, for purposes of that statute, 
“the term ‘maintain’ includes maintain, collect, use, or dissemi- 
nate.” 5 U.S.C. 552a(a)(3). 

6 The court declined to rule on respondent’s motion for class 
certification in light of its ruling on the merits. Pet. App. B6. The 
court also rejected the individual petitioners’ argument that they 
were entitled to summary judgment based on qualified immunity 
because, in the court’s view, the rights of privacy under FERPA 
and the Fourteenth Amendment were clearly established at the 
time of the alleged violations. Ibid. 

7 The panel filed its original opinion on July 31, 2000, but in the 
court’s October 4, 2000, order denying rehearing and rehearing en 
banc, see pp. 11-13, infra, the court announced that the panel had 
determined, on its own motion, to amend its July 31 opinion. Pet. 
App. D2. The court therefore ordered the original opinion with- 

9 

the grant of summary judgment in petitioners’ favor on 
the constitutional claim, holding that “the school work 
and test grades of pre-secondary school students do not 
rise to the level of [the] constitutionally-protected 
category of information,” id. at A6, because they do not 
constitute “highly personal or intimate” information, id. 
at A8 (internal quotation marks omitted). 

The court of appeals reversed the judgment of the 
district court on the FERPA claim.8 The court first 
concluded that the terms “education records” and 
“maintain” are “clear from the statute itself” and that 
deference therefore was not due the Department of 
Education’s interpretation under Chevron U.S.A. Inc. 

v. Natural Resources Defense Council, Inc., 467 U.S. 
837, 842-844 (1984). Pet. App. A18-A19.9 The court 
further held that, in any event, Chevron deference was 
not owed the agency interpretation at issue here 
because it was contained in an opinion letter issued by 
the administering agency. Ibid. (citing Christensen v. 
Harris County, 529 U.S. 576, 586-587 (2000)). The court 
recognized that such an interpretive letter is “ ‘entitled 

drawn and the amended opinion filed forthwith. Ibid. Our descrip- 
tion of the court of appeals’ opinion is of the opinion as amended 
and filed on October 4, 2000, which is reported at 229 F.3d 956 and 
reprinted in the appendix to the petition, Pet. App. A1-A32. 

8 The court affirmed the grant of summary judgment on the 
FERPA claim with regard to the individual petitioners to the 
extent respondent sought monetary relief. The court ruled that 
the individual petitioners were entitled to qualified immunity from 
liability for money damages because it was not clearly established 
that the challenged grading practice violated FERPA. Pet. App. 
A2-A3; A29-A32. 

9 As an initial matter, the court held that a violation of FERPA 
may be the basis for a suit under 42 U.S.C. 1983. Pet. App. A10- 
A16. 

10 

to respect’ under * * * Skidmore v. Swift & Co., 323 
U.S. 134, 140 (1944),” but the court found the letter and 
accompanying declaration to have minimal persuasive 
power under Skidmore because, in its view, they lacked 
sufficient reasoning, failed to take into account the 
breadth of the statutory language, and were stated in 
general terms that did not address the details of the 
practice at a particular school. Id. at A19-A20. 

Turning to its own analysis of the statutory terms, 
then, the court of appeals first noted that there was no 
dispute that the grades placed on the papers by 
students and then reported to the teacher “contain 
information directly related to a student” and thereby 
satisfy the first element of the statutory definition of 
“education records.” See 20 U.S.C. 1232g(a)(4)(A)(i). 
The only disagreement was over whether the grades 
placed by one student on the paper of another are 
“maintained * * * by a person acting for 
[an educational] agency or institution,” for purposes of 
the second element of the definition. 20 U.S.C. 
1232g(a)(4)(A)(ii). Pet. App. A21. 

The court of appeals noted that at least some of the 
grades that are reported to the teacher are then 
recorded in the teacher’s grade book. The court 
concluded that the grades become education records at 
least at that time because, in its view, a teacher’s grade 
book and the grades it contains are “maintained * * * 
by a person acting for” an educational institution and 
therefore are “education records.” Pet. App. A21-A24. 
The court then concluded that the grades are also 
“maintained * * * by a person acting for” the school, 
and therefore “education records,” even at what the 
court characterized as “the more preliminary stage 
when one student simply writes the grade of a fellow 
student on homework and test papers.” Id. at A24. 

11 

The court reasoned that when one student writes the 
grade of another student on the homework or test, the 
correcting student is a “person acting for [an 
educational] agency or institution.” Ibid. (quoting 20 
U.S.C. 1232g(a)(4)(A)(ii), court’s alteration). And the 
court held that the student is “maintain[ing]” the grade, 
within the meaning of Section 1232g(a)(4)(A)(ii), by 
marking the homework or test paper, “because that 
student is preserving the grade until the time it is 
reported to the teacher for further use.” Ibid. 

Finally, the court rejected petitioners’ argument that 
other provisions of FERPA demonstrate that Congress 
did not intend to include in the definition of “education 
records” the student grading of other students’ work 
under the auspices of an individual teacher. Pet. App. 
A25-A26. Petitioners argued that a broad definition of 
“education records” is inconsistent with the statutory 
requirement that educational institutions provide a 
hearing to challenge education records, 20 U.S.C. 
1232g(a)(2), and maintain a record of all persons who 
have requested or obtained access to a student’s 
education records, 20 U.S.C. 1232g(b)(4)(A). But the 
court explained that “Congress could have sensibly 
intended to provide parents a means to challenge the 
accuracy of grades on individual homework and test 
papers,” Pet. App. A26, and that schools could continue 
the practice of having a central custodian keep records 
of who was granted access even though such papers 
remain under the individual teacher’s classroom 
supervision. 

b. On October 4, 2000, the court entered an order 
denying petitioners’ petition for rehearing and sugges- 
tion for en banc review. Pet. App. D1-D6. 

Four judges dissented from the denial of rehearing 
en banc. Pet. App. D2-D6. Those judges stated that 

12 

the grades recorded by students on the papers of other 
students, as well as the papers themselves, do not 
constitute “education records” within the meaning of 
FERPA because a student grading another student’s 
paper is not acting for the educational institution within 
the meaning of Section 1232g(a)(4)(A)(ii). Id. at D3. 
The dissenting judges questioned how grades on 
individual student papers could be education records 
when, in their view, even a teacher’s grade book is 
normally not an education record, except in limited 
circumstances. Ibid. Moreover, even if a teacher may 
act for the school in recording a grade in a grade book, 
they continued, “it is one step removed to say that the 
teacher’s potential receipt of that grade makes every 
uncompensated student that participates in the grading 
process ‘a person acting for such agency or institution.’ ” 
Ibid. 

The judges dissenting from the denial of rehearing en 
banc also expressed the view that it “seem[s] impossi- 
ble, if not implausible,” that educational institutions 
must provide the right to a hearing to challenge each of 
the “thousands of grades a student might receive over 
time” and must maintain a record of access to each 
grade. Pet. App. D5. They cited the Joint Statement 
submitted by the Senators who sponsored the 1974 
floor amendment containing the current definition of 
“education records.” Ibid. (citing Joint Statement in 
Explanation of the Buckley/Pell Amendment, 120 Cong. 
Rec. 39,862-39,866 (1974)); see notes 3, supra, & 10, 
infra. The dissenting judges noted that the Joint 
Statement “drew a critical distinction between an 
institutional record in which a grade was recorded (the 
accuracy of which can be challenged) and the graded 
material itself (the accuracy of which cannot be 
challenged),” and they agreed with the Joint State- 

13 

ment’s conclusion “that ‘education records’ referred 
only to the former.” Pet. App. D5 (citing 120 Cong. 
Rec. at 39,862). Finally, the dissenting judges sug- 
gested that practical difficulties will result from the 
panel’s ruling because it means that no student may 
learn the grade of another. Id. at D6. 

DISCUSSION 

The court of appeals’ interpretation of the term 
“education records,” as set forth in the Family Educa- 
tional Rights and Privacy Act of 1974 (FERPA or Act), 
20 U.S.C. 1232g(a)(4)(A), is contrary to the statutory 
text and framework and inconsistent with the 
interpretation of the Department of Education, which is 
the agency charged with administering and enforcing 
the statute. In our view, therefore, the court of appeals 
erred in concluding that FERPA prohibits students 
from grading the homework and tests of other students 
in the classroom. 

Nonetheless, we believe that review by the Court is 
not warranted at this time. The question presented 
was a matter of first impression for the court of appeals 
in this case, and the question has not been addressed by 
any other court of appeals in the more than 25 years 
since FERPA was enacted. Thus, there is no circuit 
conflict. In addition, the court of appeals’ analysis was 
based, in significant part, on the absence of formal 
guidance by the Department of Education and the 
brevity of the reasoning the Department had provided 
in support of its interpretation in the 1993 letter that 
was before the court. See Pet. App. A19-A20. In 
response to the court of appeals’ decision, the Depart- 
ment has determined that it will issue regulations or 
other formal guidance setting forth a more detailed 
analysis of the meaning of “education records” under 

14 

FERPA and the application of that term and of 
FERPA not only to the particular practice at issue in 
this case, but also to a variety of other practices. For 
example, that process will afford the Department an 
opportunity to consider such matters as the teacher’s 
own handling of students’ homework, tests, and class- 
room work and the recognition of students’ perform- 
ance. The regulations or guidance should be of sub- 
stantial assistance to school districts and teachers about 
a range of issues, and should also furnish the courts 
(including the Tenth Circuit) in any future cases a more 
complete presentation of the views of the agency 
charged by Congress with administering and enforcing 
the Act. In those circumstances, we believe that it 
would be premature for the Court to grant review in 
this case to consider the meaning of “education records” 
under FERPA. 

1. a. When a student grades another student’s 
homework or test as a teacher goes over the answers 
aloud in the classroom, the homework or test and 
the grade placed on the paper are not being “main- 
tained” as records or documents by an educational 
institution, or by “a person acting for such agency or 
institution,” within the meaning of FERPA, 20 U.S.C. 
1232g(a)(4)(A)(ii). The ordinary meaning of the word 
“maintain” is “to keep in existence or continuance; pre- 
serve; retain.” Random House Dictionary of the Eng- 
lish Language 1160 (2d ed. 1987); see also Webster’s 
Third New International Dictionary 1362 (1993) 
(maintain: “1: to keep in a state of repair, efficiency, or 
validity: preserve from failure or decline”). The 
grading student does not keep the paper or the grade. 
In this case, for example, each grading student 
apparently returned the graded paper immediately to 
the student who had written the paper. See Pet. App. 

15 

C2. Only after students received back their own 
papers, and were in a position to review the grading by 
the other student, were the students called upon to 
submit their grades to the teachers. Ibid. 

The student’s homework or test answers that have 
not been graded and are initially provided to another 
student, as well as the grade marked by the other 
student that has not been adopted by the teacher, are 
the work product of the students. Even if the grading 
student submitted the other student’s paper or grade 
directly to the teacher, rather than handing it back to 
the student who produced the paper, the fact that the 
teacher may maintain the grade (or the student’s 
paper) on behalf of the school, thereby making it an 
education record, does not mean that any grade or 
paper that potentially may be so maintained for the 
educational institution becomes an education record 
from its inception. 

Reviewing fellow students’ work can be a useful tool 
in the process of learning and critical thinking. The 
exchange of student papers for grading or other 
purposes is part of the on-going educational dynamic in 
the classroom among students and between students 
and teachers. And as the judges who dissented from 
the denial of rehearing en banc observed, the “teacher’s 
potential receipt of that grade” does not make “every 
uncompensated student that participates in the grading 
process” a person acting for the school in connection 
with the maintenance of records. Pet. App. D3. 

b. The court of appeals’ contrary conclusion cannot 
be reconciled with the purposes underlying other 
provisions of FERPA. The designation of a document 
as an education record under FERPA means not only 
that it is subject to restrictions against release without 
parental consent, but also that parents have a right to 

16 

inspect and review the record, a right to a hearing to 
challenge the content of the record to ensure that it is 
not inaccurate, misleading, or otherwise in violation of 
the privacy rights of the student, and a right to insert 
into such records a written explanation by the parents 
regarding the content of the records. 20 U.S.C. 
1232g(a)(1)(A) and (a)(2). In addition, the school must 
maintain a record of all individuals, agencies, and 
organizations (other than the parent, eligible student 
and certain other authorized persons) that have re- 
quested or obtained access to a student’s education 
records. 20 U.S.C. 1232g(b)(4)(A); 34 C.F.R. 99.32. 

The court of appeals’ interpretation raises questions 
concerning the application of those requirements to 
homework assignments, classroom exercises, and stu- 
dent evaluations and grading, and whether parents may 
be entitled to an opportunity to a hearing by school 
officials to present challenges concerning the accuracy 
of such materials and to insert the parent’s own written 
explanation into the record. Imposing such an obliga- 
tion on schools and teachers would constitute a dra- 
matic departure from ordinary educational practices, 
and there is no indication that Congress intended that 
the enactment of FERPA, including its definition of 
“education records,” would result in such a change. 
Rather, when Congress enacted the definition of 
“education records,” the accompanying Joint Statement 
by the Senators who sponsored the legislation explicitly 
stated that the amendment was “not intended to 
overturn established standards and procedures for the 
challenge of substantive decisions made by the 
institution.” 120 Cong. Rec. 39,862 (1974). The Joint 
Statement further noted that “[t]here has been much 
concern that the right to a hearing will permit a parent 
or student to contest the grade given the student’s 

17 

performance in a course. That is not intended. It is 
intended only that there be procedures to challenge the 
accuracy of institutional records which record the grade 
which was actually given.” Ibid.; see also ibid. (stating 
that hearing procedures must be adapted to different 
circumstances and noting that “[i]t is not the intent of 
the Amendment to burden schools with onerous hear- 
ing procedures”). 

10 

2. The Department of Education, as the agency 
charged with enforcing FERPA (see 20 U.S.C. 1232g(f ) 
and (g), 1234c), interprets the statute not to prohibit 
students from grading other students’ homework or 
tests in class because such papers and grades are not 
“maintained” by the school at that point and therefore 
are not “education records” within the meaning of the 
statute. Although the court of appeals’ ruling is con- 
trary to that longstanding and, in our view, reasonable 
administrative interpretation of FERPA, we believe 
that the Court should not review the issue at this time. 
The Department of Education intends to issue 
regulations or other formal guidance regarding the 
meaning of “education records” and the application of 
FERPA to a range of practices concerning student 
papers and grading and the recognition of students’ 
performance. The Department has received an inquiry 

10 When Senator Buckley submitted the Joint Statement to the 
Senate, he explained that the amendments were intended to 
address certain ambiguities that had arisen from the language of 
FERPA as originally enacted, which itself had been offered as an 
amendment on the Senate floor and therefore had not been 
accompanied by traditional legislative history materials that would 
guide the agency in implementing the statute. 120 Cong. Rec. at 
39,861-39,862. He stated that the Joint Statement therefore “pro- 
vides a narrative and explanation of the meaning and intent of the 
various provisions of the amendment.” Id. at 39,862. 

18 

from the National Education Association about the 
implications of the court of appeals’ decision in this 
case, and the Department is responding by informing 
the Association about its intention to issue regulations 
or other formal guidance that will address the issues 
raised by the opinions in this case. The Department of 
Education disagrees, for example, with the suggestion 
in the dissent from denial of rehearing en banc in the 
court of appeals that the panel’s ruling in this case 
renders invalid all school practices that may reveal 
students’ grades. See Pet. App. D5-D6. Indeed, many 
such practices, including honor rolls and other awards 
received, are specifically allowed by FERPA. See 20 
U.S.C. 1232g(a)(5)(B) (allowing publication of certain 
“directory information,” after prior public notice of 
directory categories and opportunity for parents to 
prevent publication) and 20 U.S.C. 1232g(a)(5)(A) 
(defining “directory information” to include “awards 
received” by a student). In the past, the Department’s 
Compliance Office has responded to questions from 
school officials regarding other such practices and has 
analyzed such practices individually, finding that some 
are valid under FERPA, whereas others are not. See, 

e.g., Pet. App. F3-F6. 
In any event, regardless of the questions raised by 
the opinions below about other school practices, the 
instant case presents only the narrow question of the 
validity under FERPA of the practice of students 
grading other students’ homework and tests in class. 
Although the court of appeals discussed parental chal- 
lenges to homework and test papers under FERPA, it 
did not definitively rule on the question concerning the 
circumstances or scope of any such right. See Pet. App. 
A26. Nor did the court decide whether having students 
call their grades out in class is allowed under FERPA. 

19 

See id. at A3 n.2, A21 n.10. Thus, the case does not 
present those issues or other questions that may arise 
regarding the treatment of students’ papers and other 
work, in the classroom and elsewhere. For those 
reasons alone, this case is not a suitable vehicle for this 
Court to address the meaning and application of 
FERPA in a sufficiently broad context to furnish 
significant guidance to the lower courts and school 
administrators and teachers. 

By contrast, the Department of Education is well 
situated to consider the meaning of “education records” 
and the application of FERPA in the context of a 
variety of common educational practices. As we have 
said, in response to the court of appeals’ decision in this 
case, the Department intends to do so through the 
issuance of regulations or other formal guidance. We 
believe that such regulations or formal guidance will be 
of substantial benefit to the courts (including the Tenth 
Circuit) in any future case considering the validity of 
various practices under FERPA. Indeed, because the 
interpretation of FERPA by the agency charged with 
its enforcement is entitled to deference, the action the 
Department intends to take will have a bearing on the 
disposition of those legal issues by the courts. For 
these reasons, and because of the absence of a circuit 
conflict, we believe that review by the Court at this 
time is not warranted. 

20 

CONCLUSION 

For the foregoing reasons, the petition for a writ of 
certiorari should be denied. 

Respectfully submitted. 

BARBARA D. UNDERWOOD 

Acting Solicitor General 

STUART E. SCHIFFER 

Acting Assistant Attorney 

General 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

BETH S. BRINKMANN 

Assistant to the Solicitor 

General 

MARK B. STERN 
COLETTE G. MATZZIE 

Attorneys 

JUNE 2001