Owasso Independent School District v. Falvo is one of those cases that becomes harder to understand as one’s elementary-school experiences recede into the back corners of one’s memory. The deathly mortifications of those early years—the peeing before you could get your snowsuit off; the getting kissed by Jeffrey Goobley during boys-catch-the-girls-and-kiss-them—these horrible memories probably recede with time. But for Philip Pletan, age 10, the humiliation of having his homework and tests marked by other students in the classroom, and of having to call out that grade to the teacher as she marked it in her book, was devastating. Classmates in his Oklahoma school were calling the special-ed. student “stupid” and “dummy.” So his mom sued the school district, claiming the school’s grading policy violated her three children’s privacy rights under the 14th Amendment and the Family Education Rights and Privacy Act. Falvo lost in the district court, but won on the FERPA claim in the 10th Circuit Court of Appeals. Onward to the Supreme Court, then, with the right to privacy in school grades.
You can pretty much tell that no member of the Supreme Court was ever embarrassed to have his grade read aloud to the class. “Billy Rehnquist, A-plus” must have had a rich, sonorous sound. Because the only issue before the court today is whether FERPA’s requirement that schools maintain the confidentiality of “education records,” the scrum revolves around whether a teacher’s grade book is an education record, and whether a child’s announcement of a grade that’s about to be recorded in a teacher’s grade book is an education record. Easy-peasy, right? A 10-year-old could decide this case.
Jerry Richardson, who argues for the Owasso School District, runs afoul of Justice Scalia’s inner child’s inner bully early on. Since FERPA defines an “education record” as one that 1) “contains personally identifiable material”; and 2) “is maintained by an educational agency or institution,” Scalia wants to quarrel about the meaning of “maintained.”
“What’s your definition of maintained?” he asks, “A week? A month?”
“I don’t know,” begins Richardson.
“Make me an offer,” says Scalia.
As they wrangle over whether a teacher’s grade book is a “record” for purposes of the statute, Scalia crawls on Richardson’s chest and begins to pound at him. Richardson argues that the only thing Congress envisioned as “records” was information that went onto a student’s permanent record. Scalia finds an exception to the statute for the teacher’s personal notes—”they never go to central records”—and argues that if the statute excepts these notes, it clearly contemplated other documents that never went onto a permanent academic record.
Pound, pound, pound, goes little Antonin. “Your definition doesn’t square with this exception,” he chortles. Finally Justice Souter pulls him off Richardson.
Deputy Solicitor General Edwin Kneedler gets 10 minutes for the Justice Department. Probably not surprisingly, the DOJ has taken a strong stand against privacy in test scores for small children. As Kneedler stands shyly against the playground fence, Scalia takes a flying leap at him with yet more questions about the teacher’s grade book and whether it represents a “record.” Kneedler says it may, if the principal has open access to it, but it is not a record if the teacher only uses it as a “memory jog.”
Wilfred Wright, Falvo’s attorney, gets an A-plus in drama. His opening statement is an astonishing piece of overstatement and hyperbole. As he launches into the part about teachers who post exam scores in newspapers, Chief Justice Rehnquist cuts him off. “Has that ever happened?”
“It’s not in the record,” replies Wright.
“Was Congress [in enacting FERPA] responding to that?”
“So this is something that was never done?” growls Rehnquist.
Wright tries to cite a Rutgers University case. Rehnquist slams him again for claiming that teachers in this case, Falvo, were posting student scores in newspapers. Designated bouncer Souter saves Wright by subduing Rehnquist.
Wright then offers Souter another hyperbolic example: The grading policy is no different than if a doctor lined up five patients and told them to please exchange diagnostic tests and call out the results. Souter dismisses the analogy (because it’s stupid), which gives Scalia enough time to dip some little girl’s pigtail in ink and come screaming back to pound Wright.
Scalia wants to know how it is that a student calling out a grade can be “maintaining an educational record.” Wright responds that the teacher is writing that grade down simultaneously, which makes it a record.
” ‘A,’ is that a record?” asks Scalia.
“If I write it down!” retorts Wright.
Six more rounds on this subject, with Scalia claiming that information not yet in the teacher’s grade book cannot be a “record,” while Wright insists that if a teacher has the legal obligation to protect what’s in her grade book, that information cannot be disclosed to the class.
No one need guess about what Justice Breyer was like in third grade, because he volunteers it: “My teacher in the third grade,” he begins, nostalgically, also had to discipline. “I might talk too much, or used to,” he goes on. If he did, the teacher gave little Stephen a check mark for lacking “reasoned self-discipline.” Three checks went onto his report card. Also, it seems, she would take attendance. He smiles fondly. “We all said, ‘here,’ ‘here,’ sometimes ‘present.’ “
Wright says that revelations of both check marks for lacking “reasoned self-discipline” and attendance records are violations of FERPA. According to Wright’s view of the law, every student operates under a cone of silence like the one on Get Smart. Any information that seeps out is a violation of the privacy statute. Justice Stevens, who doubtless wore his jaunty little bowtie in third grade, points out that students have a pretty good idea of who in their class is performing well and who isn’t, regardless of whether their grades are read aloud. And Justice Kennedy offers: “No more gold stars, or in these days, stickers with a happy face. The government forbids that.” (They stopped using happy face stickers before I was a kid. I think now they use ammunition clips.)
Scalia gets in the final outraged body slam, however, when Wright again takes a visit to the land of hyperbole, describing his client as a “special education student being mainstreamed.” Scalia erupts. Pointing to the record, which reveals that the only special education Philip received was 45 minutes of speech therapy a week, he scoffs, “That’s not as appealing as your description of a special education student.” When Wright tries to answer, Scalia cuts him off. “Speech therapy! Did he have a stutter?” Then he adds, “I suggest that you not paint the client as more sympathetic than he is.”
Surprisingly, he doesn’t demand Philip’s lunch money on the spot.
Breyer points out that in his day, grades were an incentive; that teachers used grades and competition to get you to work harder. Boy, are those days behind us. When Kennedy points out that maybe students should just grade their own papers, Rehnquist reminds him that this would lead to cheating. Wright insists that having students grade one another can also lead to cheating, but Scalia reminds him that you’d need “two cheaters for that to work, while grading your own paper only takes one.”
If any more evidence is necessary that this case is trivial and unworthy of the high court, I can’t find it. Most of the bench has regressed to its third-grade selves today, with the exception of Justice Thomas, who probably spoke in third grade, at least sometimes. But maybe he wouldn’t have if he was afraid Justice Scalia might punch him.