Transcript

CHIEF JUSTICE WILLIAM H. REHNQUIST: We'll hear argument next in Number 00-1073, Jerry -- correction, Owasso Independent School District No. I-011, also known as the Owasso Public Schools, v. Kristja J. Falvo.

Mr. Richardson.

MR. JERRY A. RICHARDSON: Mr. Chief Justice, and may it please the Court:

The issue presented by this case is whether Congress, in enacting the Family Educational Rights and Privacy Act, intended to prohibit the common and longstanding practice of peer grading of routine homework papers, quizzes, and tests.

Congress did not intend FERPA to apply to such routine classroom activities, because Congress was concerned only with information that might have a long-term negative impact on a student's academic or career opportunities.

JUSTICE SANDRA DAY O'CONNOR: Mr. --

JUSTICE ANTHONY KENNEDY: Did you take the position in the court of appeals that there is no private cause of action?

MR. RICHARDSON: We did not raise that issue in the court of appeals, Your Honor. No, we did not.

JUSTICE O'CONNOR: The court of appeals discussed it.

MR. RICHARDSON: The court of appeals raised it sua sponte, and it has been raised in amicus briefs submitted -- in fact, three amici have discussed it.

JUSTICE O'CONNOR: Why didn't you raise the issue? Why isn't that more important than what you did raise?

MR. RICHARDSON: Candidly, Your Honor, we didn't raise it for a number of reasons. Number 1, because in the district court there was a Fourteenth Amendment claim which clearly was actionable under section 1983.

Number 2, quite honestly we believe the merits argument regarding FERPA was stronger than the section 1983 argument. Remember --

JUSTICE KENNEDY: Well, I just don't know if it's a good practice for you to force us to reach an issue you think is important if there's no cause of action anyway. That just doesn't seem to me an orderly way to proceed.

MR. RICHARDSON: Well, in hindsight I would agree with the Court that we should have approached it a different way. Please recall, however, that at the time this case was filed, at the time the court of -- at the time the district court entered its decision, and at the time the briefs were submitted in the Tenth Circuit, the Christiansen decision had not come down.

We did not have the benefit -- we were under the impression, I should say, that we -- that the family policy compliance officer's letter would be accorded Chevron deference, as the district court did.

We did not know that the Court was going to decide Christiansen and hold that such opinion letters were not entitled to such deference. We made a tactical decision to focus on the merits rather than focus --

CHIEF JUSTICE REHNQUIST: Well --

MR. RICHARDSON: -- on the 1983 aspect of it.

CHIEF JUSTICE REHNQUIST: -- you also certainly had some justification on the private cause of action. Seeing a number of decisions from this Court which have come out 5 to 4 one way and then 5 to 4 the other way --

MR. RICHARDSON: That's very true, Your Honor.

CHIEF JUSTICE REHNQUIST: -- you're not sure that you're going to prevail on that.

MR. RICHARDSON: That's very true, Your Honor. Both the decisions of this Court, with all due respect, are sometimes difficult for a practicing attorney to discern a clear line of --

JUSTICE O'CONNOR: They're hard for us, too.

(Laughter.)

MR. RICHARDSON: And the other factor I would say is that the two decisions that the Tenth Circuit cited from other courts of appeals, the only two decisions that we were aware of from the Second Circuit, the Fay v. South Colonie School District decision, and from the Fifth Circuit, Tarka v. Cunningham, both of those courts of appeals had held that FERPA was actionable under 1983, so again, we made a strategic decision --

JUSTICE O'CONNOR: Well, what if we think there's a real problem with that notion under this scheme, where the whole object was to have it administratively determined and it was funding mechanism, and under the act, the penalty for not following it is a cut-off of funding.

Now, what if we're quite concerned about that.

MR. RICHARDSON: Oh, I --

JUSTICE O'CONNOR: Do we send it back and let it be briefed and argued below?

MR. RICHARDSON: No, I don't believe so, Your Honor. The Tenth Circuit did rule on it, and we not only have -- three amici in support of the petitioners addressed it. Respondent herself did address it in her brief. The only party that really hasn't briefed the issue is petitioners.

We would be the only one that would suffer any prejudice. We have endorsed the position argued by the amici in the three briefs that have raised the issue.

I believe it's perfectly appropriate for the Court to decide that, and I believe that the Court -- that the Court's decisions do indicate that FERPA is not actionable under 1983.

If you focus on the -- go back and look at the language of the statute, of course, which is the ultimate issue, there is no rights creating language in FERPA the way there is, for instance, in title 9, that the Court focused on in Canon.

Also, this is a Spending Clause case. There is no -- the Spending Clause, as the Court has indicated repeatedly, is in the nature of a contract and there is no unambiguous indication here that Congress --

CHIEF JUSTICE REHNQUIST: You didn't raise this in your petition for certiorari, though, did you?

MR. RICHARDSON: We didn't raise it -- no, Your Honor, we didn't. We didn't raise it in the petition for certiorari because we had not raised it in the court below and, frankly, we believed that the odds of persuading the Court to grant certiorari on an issue that we had not raised and briefed below were not very good and, again, our focus had always been on the merits of the case, and I believe we should win on the merits, but I also believe that section 1983 is not -- does not provide a cause of action under FERPA.

FERPA says -- it uses the language, no funds shall be available to an educational agency or institution that has a policy or practice of allowing the disclosure of education records.

That is clearly talking about a systematic practice on the part of an educational agency or institution.

If a section 1983 remedy were allowed, then what about an individual teacher who, in violation of the district's own policy or practice -- the district, say, has a policy that we will not release it, yet an individual teacher makes a deliberate choice to release the information.

Under 1983 that teacher would have to be held liable, it would seem to me, even though the district had done exactly what Congress commanded. The district had enacted a policy saying, don't do that, so that clearly militates against a 1983 cause of action.

In addition, FERPA --

JUSTICE RUTH BADER GINSBURG: Do you know anything about how this act is enforced on the Federal side? Have there been any fund terminations, because the only thing in the statute itself is fund termination, isn't that right?

MR. RICHARDSON: That is correct, Your Honor, and I'm not aware of any decisions. There is certainly nothing in the record to indicate that there's ever been a funding -- well, I may have overspoken. I do not recall from the record.

There might be something in the lodging of those extensive letters from the FPCO, but I do not recall, and do not -- cannot represent to the Court that there's anything in the record regarding there ever having been a funding cut-off.

JUSTICE KENNEDY: Well, I guess we are taking you away from the question on which we granted certiorari.

As I understand the position of the respondent here, and tell me if I'm incorrect, if the respondent is correct, the teacher would have to keep a record of all of these quizzes as part of the permanent record, is that the necessary result of the respondent's argument?

MR. RICHARDSON: The respondent seems to take the position, which is contrary to what the Tenth Circuit said -- the respondent seems to take the position that only records, only grades or scores that are recorded in the teacher's grade book are education records.

The Tenth Circuit clearly said that's not the case. The Tenth Circuit clearly said, even if the grade is never recorded in a teacher's grade book, the mere fact that the teacher receives it and uses it for some purpose, maybe even just to evaluate her own teaching performance, and determine whether the class is ready to move on to the next lesson, that makes it an education record.

Respondents have backed away from that. They argue in their brief at least, or she argues in her brief at least that it has to be recorded in the teacher's grade book, but we believe that even that is a far more broad definition of education records than what Congress plainly says in the statute. The statute defines education records with a two-part definition.

It's those records, files, documents, or other materials that contain personally identifiable information and are maintained by an educational agency or institution, or by a person acting for an educational agency or institution.

Now, maintained has to have some substantive meaning, because it's half of the definition. Clearly, homework papers are personally identifiable. There's no doubt about that.

But if maintained doesn't mean anything more than what the Tenth Circuit said it meant, simply possessed by a teacher for some brief period of time, then that's really writing that word out of the definition.

Any document that comes across a teacher's desk would be an education record.

In fact, chalkboard work would have to be an education record. If a teacher asks a student to come to the chalkboard, do a math problem, that's personally identifiable information. The entire class can see this student working a math problem.

That math problem is maintained on the chalkboard until the teacher directs a student either to erase it, or erases it herself, or himself.

JUSTICE ANTONIN SCALIA: What's your definition of maintain, what, a week, a month?

MR. RICHARDSON: I don't think that --

JUSTICE SCALIA: Make me an offer. What's your --

(Laughter.)

MR. RICHARDSON: Your Honor, I think that what Congress is getting at with the word maintained, it goes back to what I said in the opening statement, which is, information that could have a long-term effect on the student's career.

I think Congress was talking about -- and the legislative history bears this out. I know Your Honor is not particularly persuaded by that --

JUSTICE SCALIA: Some of my colleagues like that stuff.

(Laughter.)

MR. RICHARDSON: -- by that argument, but Congress was concerned about things that would have a long-term effect.

What I would suggest the Court focus on, is this the kind of document that's going to be looked at by a college admissions officer? Is this the kind of document that's going to be looked at by a potential employer, or a governmental agency at some point down the road?

JUSTICE GINSBURG: Is there a difference between your position and -- the Government said, it means, educational records means institutional records.

MR. RICHARDSON: No.

JUSTICE GINSBURG: The kind that would be in the principal's office and not in the teacher's drawer.

MR. RICHARDSON: No. No, Your Honor. Our position and the Government's, with that regard I believe the Government's current position, as reflected in the brief of the United States, are consistent. I don't think --

JUSTICE GINSBURG: It's not been the position that the Government, that this FPCO has taken consistently, because wasn't there -- didn't they say that the teacher's grade book --

MR. RICHARDSON: Yes.

JUSTICE GINSBURG: -- did count as an educational record?

MR. RICHARDSON: Yes. The FPCO had previously taken a much broader interpretation of education records, and had taken the position which essentially seems now to be adopted by the respondent, that once the teacher main -- once the teacher receives possession of the grade, or the score, it becomes an education record. The United States has disavowed that position and said that is clearly more broad than what the -- but the key point --

JUSTICE SCALIA: But if your definition is correct, and it's that limited that it's only the stuff the school keeps that will go on into the permanent record of the student, what would be the reason for that exception that the statute contains for, you know, personal notes that a teacher makes? You wouldn't need that exception. That stuff never goes down to the central office, much less is kept for, you know, for future reference.

MR. RICHARDSON: Well, not necessarily, Your Honor, and that -- you're referring, I believe, to the sole possession notes exception --

CHIEF JUSTICE REHNQUIST: Oh please --

MR. RICHARDSON: -- but that's not limited to grade books. In fact, that --

JUSTICE SCALIA: Where is it? Can we look at that? What's the section?

MR. RICHARDSON: Yes, Your Honor. That's section (a)(4)(B)(i).

CHIEF JUSTICE REHNQUIST: Where is it, in the briefs?

JUSTICE DAVID H. SOUTER: Appendix page 4 of your brief?

MR. RICHARDSON: Yes. Yes. I'm sorry. B, capital (B), then small (i), the term education records does not include -- there's nothing in this definition about grade books.

The reference to the grade books, and it's really not a reference to grade books, it's a reference to record books, is from the legislative history, where the Court -- where the Congress said, this exception was meant to apply to things used as memory aids.

I would argue that a grade book is not something that is intended as a memory aid.

JUSTICE SCALIA: But my point is, you wouldn't need that exception.

MR. RICHARDSON: Well --

JUSTICE SCALIA: If -- that -- I mean, that exception suggests that other things that are only -- only held in the sole possession of the maker --

MR. RICHARDSON: I disagree that you would not need that.

JUSTICE SCALIA: -- could be within the statute. Why would you need that exception?

MR. RICHARDSON: Well, for instance, a document -- a counseling record, for instance, perhaps the student had experienced some emotional problems, or something --

JUSTICE SCALIA: Right.

MR. RICHARDSON: -- that has come to the attention of a counselor. The counselor writes a confidential memorandum to her permanent file. That is an institutional record.

It's not something that's going to be thrown away, but it's also, as long as the counselor doesn't put that document, that memorandum in the institution records, or doesn't show it to another person, that's a sole possession notes exception, and would not --

JUSTICE SCALIA: And you think that's the kind of thing that would come within your definition of permanent records, the kind of things that go on to college admissions offices, and so forth? That's what I thought you were saying.

MR. RICHARDSON: Well, I think that's --

JUSTICE SCALIA: But now you're saying, even the notes, personal notes kept by a counselor come -- would come within this statute but for that exception, right?

MR. RICHARDSON: Well, but for that exception. I think that's why the exception is there, is to keep materials like that from coming into the possession --

JUSTICE SCALIA: Exactly.

MR. RICHARDSON: -- because materials like that are maintained by an educational agency or institution. They are a -- counselors that have a record of a student with emotional problems --

JUSTICE SCALIA: So are a teacher's grade books. Why in that respect is a teacher's grade book different from the counselor's notes?

MR. RICHARDSON: I believe because a grade book is, in my opinion, Your Honor, more of an evaluation instrument rather than a record. A transcript shows what the student earned in a grade, or in a group of grades during the course of his academic career.

A grade book is more than simply a dry record of the percentages that a student achieved during his time in his class. For instance, during a relevant grading period a student might start out doing very average C work.

The student then might near the end of the grading period suddenly get it, and start doing B and A work.

The teacher would, I think any teacher in America would look at a grade book containing those records and would not simply go, okay, the total average for this grading period is a 78.5, he or she gets a C.

the teacher would look at the improvement shown in the student's performance and would in all likelihood round it up and give the student a B. The grade book is an evaluation instrument. It is not simply a collection of records.

JUSTICE SCALIA: And the counselor's notes aren't? The counselor's notes aren't?

MR. RICHARDSON: Well, that argument might very well apply to counselor's notes as well.

JUSTICE SCALIA: I mean, that's the problem. Your notion of what are records maintained just does not square with the existence of that exception.

I mean, sometimes Congress does more harm than good by putting in an exception, because the exception suggests that if it had not been there, the stuff would have been covered. Maybe Congress didn't want this stuff to be covered, but --

MR. RICHARDSON: Well, I think that's an alternative possibility, Your Honor, is that it's a belt and suspenders approach that Congress never intended grade books to be covered, but just in case somebody happened to be inclined to read them that way, we're going to put this exception in as well.

JUSTICE SCALIA: We usually don't interpret statutes that way.

MR. RICHARDSON: Well, I can understand --

JUSTICE SOUTER: You started out by referring to maintain as implying some significant period.

MR. RICHARDSON: Yes.

JUSTICE SOUTER: And it would be consistent with that argument that you say, well, a teacher's grade book is kept for the year, but it doesn't become normally part of the institutional records of the school, so it's not maintained for a substantial enough period of time to qualify, whereas -- and I just don't know factually about this -- maybe the guidance counselor's records are simply kept forever.

I don't know. I mean, is that kind of a durational criterion something you want to stand on here?

MR. RICHARDSON: Not in a -- no, not a pure durational criteria. I don't think that is the key. Again, many grade books are not -- I don't think Congress meant to draw a line and say, okay, you keep it 6 months, it's maintained, if you keep it 5 months and 3 weeks and 6 days it's not maintained. I don't think Congress intended to do that, and I'm not asking the Court to do that.

I think Congress again intended to get at records that are, as a practical matter, maintained over a long period of time that are institutional records.

JUSTICE SOUTER: But what is the definition of maintain, then, that you're using?

MR. RICHARDSON: The definition of maintain that I would ask the Court to adopt is its common meaning, to preserve, to retain.

JUSTICE SOUTER: Yes, but don't -- doesn't that force us into some kind of a durational -- and I'm not saying this is an objection to your argument, particularly, but I mean, doesn't this force us into some kind of a durational criterion?

The record of the quiz which student A corrects the student B and calls out to the teacher, the number that student B puts on top of the quiz is a record for a short period of time.

MR. RICHARDSON: But it's not the kind --

JUSTICE SOUTER: I mean, something is recorded, and you're saying, well, sure, they can't be getting at that, but if they're not getting at that, then it's either got to be for one of two reasons, either the kid who does the correction isn't a person who maintains, who makes a record by definition --

MR. RICHARDSON: Correct.

JUSTICE SOUTER: -- or a record is something that has got to be maintained longer than the period that it takes for some kid to call a number out to the teacher, which is a durational criteria.

MR. RICHARDSON: That's true, and that's the same reason that a chalkboard, work on a chalkboard would not be maintained in the meaning of FERPA, even though it might be up there not only for a minute or two -- I mean, in some college --

JUSTICE JOHN PAUL STEVENS: May I ask you --

MR. RICHARDSON: -- courses you may have chalkboard work that's up there for a week or more.

JUSTICE STEVENS: -- do you concede, or do you not, that the announcement by one student of another student's grades within the classroom and not outside the classroom is a release of information within (B)(i)?

MR. RICHARDSON: No, absolutely not.

JUSTICE SOUTER: Because?

MR. RICHARDSON: Because it's not an education record. You can only have --

JUSTICE STEVENS: Assuming it was an educational record, would you say that it's a release when it's revealed by one student to another within the classroom?

MR. RICHARDSON: No, I don't believe -- in the context of pure grading, it would make no sense to say that one student, that it's not a release if the student grading the paper records the grade. I mean, in that context, the Tenth Circuit's analysis would be right.

If it is an education record, then the fact that one student sees it is just as damming as the fact that the entire class sees it, it seems to me, but it's not an education record, therefore there's no question of release.

The other point I would make, going back to the grade book --

JUSTICE STEPHEN G. BREYER: I'm slightly worried about that, because suppose that -- I take it attendance records are also -- they probably are maintained, and they are records, [*19] aren't they?

MR. RICHARDSON: Attendance -- well, again I would say that attendance records are not the kind of information --

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Richardson.

Mr. Kneedler, we'll hear from you.

MR. EDWIN S. KNEEDLER: Mr. Chief Justice, and may it please the Court:

The Family Educational Rights and Privacy Act does not prohibit the common classroom practice of one student grading another student's paper, or other common classroom and teaching practices.

FERPA regulates the records maintained by an institution, not the homework and classwork of students. Congress did not intend for FERPA to intrude into the day-to-day activities of hundreds of thousands of classrooms across the Nation, or the way in which teachers conduct the educational process in those classrooms, or the way in which students interact with each other.

JUSTICE SCALIA: Does the act cover a teacher's grade book that she keeps during the term?

MR. KNEEDLER: It addresses the grade book, in our view, by including it -- we think ordinarily it would come within the sole possession exception in the act.

Now, I think it's important to recognize that even a grade book -- there may be no one uniform practice about the way a grade book is handled.

It could be that a particular school would regard the grade book as an official school record from the outset, where the principal always has access to it, and the teacher is really maintaining a record on behalf of the institution in keeping the grade book.

You could have other school systems in which the grade book is essentially used by and for the future as a memory jog, and all that she ever discloses to the front office is the semester grade.

In that event, we think that the grade book would fall within the sole possession exception, so that this is one of the things about FERPA, is that it addresses the situation in which actual record-keeping practices may vary, or let me change that, actual pedagogical practices may vary widely from school district to school district, and that's why we think importantly this act did not enter the classroom by addressing the way teachers handle papers, give feedback to students, have students grade each other's --

JUSTICE SCALIA: What about posting the results of the exam, the big exam, mid-term exam, and the student posts the results on the board.

MR. KNEEDLER: I think under the position we've espoused here, that would not be a violation of the act. FPCO has taken the position in the past that it would be. I think it would depend, though, or may depend on the way in which the grades were assembled.

I think if the teacher or professor, let's say, in college, the only grades probably ever, ever assembled or marked down for a college course may be the final exam grade.

The professor may have a grade sheet, a roster in which the professor marks down the grade for everyone in that class and sends it to the registrar, and from that list puts a list of final grades for the course.

I think at that point, the fact that the grades would be derived from something that would be regarded as an institutional record, in that instance I think the posting of the grades may well be a violation.

JUSTICE SCALIA: But if he posts it before he sends it on to the administration office --

MR. KNEEDLER: If it's posted -- and this may sound technical, but this is where the two categories we think intersect. If a grade is divulged from the paper, he takes the grade book and puts A or B or C on the paper, we don't think that the student work itself is an institutional record, and it's not --

JUSTICE SOUTER: But you're also, I think, saying that the disclosure has got to be of the record, not merely of information that may ultimately end up in a record?

MR. KNEEDLER: That's exactly true, and there are analogous situations in which that's true, for instance the attorney-client privilege, that the attorney can't disclose something that he's learned from the client, but that doesn't mean that the same information in the possession of the client is privileged.

JUSTICE BREYER: How is this -- the more I hear, I -- there used to be schools in any case that would say, the following 10 percent of the class graduates with honors, the next 40 percent, okay, and sort of honors, and the last 60 percent, well, they graduated, didn't they.

I mean, they didn't put it quite like that, but it was all public, in the newspaper.

MR. KNEEDLER: Yes.

JUSTICE BREYER: Now, is that all forbidden now?

MR. KNEEDLER: No. Quite aside from the issue in this case, this statute contains an exception for what's called directory information, which includes common information about a student, the fact of their attendance, et cetera, and that includes honors awarded to a student.

That information can be released. The school district or higher education institution has to announce a policy.

JUSTICE O'CONNOR: What are we dealing with here? You don't have much time, and I am concerned. Are we dealing, do you think, just with the student grading and the knowledge obtained thereby, or are we dealing with the teacher's grade book, or both?

MR. KNEEDLER: All that is strictly presented in this case is the practice of one student grading another's paper before the teacher has gotten the papers themselves or entered them in the grade book.

JUSTICE O'CONNOR: And as to that, what is your succinct explanation of why it's not covered by the statute?

MR. KNEEDLER: There's no educational record maintained by the school.

JUSTICE O'CONNOR: Because it isn't maintained, or because it isn't a record?

MR. KNEEDLER: Well, whether it's maintained is part of the definition of educational record. An educational record is a record or document containing information directly related to the student that is maintained by the school and, in our view, maintained in that situation means maintained as an institutional record, and we think that the act generally draws a distinction between the institutional records and the classroom records of the teacher, and I --

JUSTICE GINSBURG: Mr. Kneedler, do you have a position on the threshold question? Is there a claim for relief, a private claim for relief?

MR. KNEEDLER: We do not have a position on that. That was not presented in the petition and therefore we did not address it in our brief, and under this Court's Air Couriers decision, the existence of a cause of action is not jurisdictional and may be assumed.

We -- I would point out, though, that the ability of the Department of Education to cut off funds is not the sort of factor that has in other situations been thought to be sufficient to preclude a 1983 cause of action.

In Blessing v. Freestone and other cases, this Court has said that that is a different sort of remedy and does not preclude a private right of action.

JUSTICE SCALIA: Mr. Kneedler, you said it doesn't include the teacher's classroom records. Why, by reason of that exception that we were talking about earlier --

MR. KNEEDLER: Well --

JUSTICE SCALIA: -- the sole possession exception?

MR. KNEEDLER: Two different questions. One is whether it covers the student's work, and we think that that --

JUSTICE SCALIA: Yes, I understand that.

MR. KNEEDLER: That that's not covered.

By teacher's records, if you mean the grade book, yes, we think that that would fall under the -- or, what we commonly call grade book, some way in which the teacher keeps track of the student's progress during the marking period or --

JUSTICE SCALIA: It's covered by the sole possession exception?

MR. KNEEDLER: That's correct.

JUSTICE SCALIA: Which means it would have been embraced by the statute, but for that.

MR. KNEEDLER: That's probably true, but it's -- one thing to bear in mind here is, this act was passed in one form early in 1974. Some difficulties were identified, and it was amended and revised and elaborated upon later in 1974, and there is a description by Senators Pell and Buckley describing the original version of the act, in which they indicated that personal records were not the sort of thing that was intended to be included, because the act then used the definition of official records that were intended to be for school use, and they said that these informal notes, and I think teacher notes would be include din that, were not intended to be included in the act to begin with.

So I think that there is a way in which that gives emphasis to something that may well have been excluded anyway, but they do fall within the coverage of the act, because the act was revised to meet some concerns that had been raised by local school districts.

I did want to point out two things in response to Justice Kennedy's question. This act does not require a school district to retain any records. It may destroy records at any time. It only addresses rights of parents while the records are actually retained.

The other point is, we don't think that there is anything talismanic about the duration --

JUSTICE KENNEDY: But they don't have to be retained for 45 days or anything?

MR. KNEEDLER: If a request is made for them they have to be retained until the request is resolved, a request to inspect them, but if the parent or student, adult student has not requested it, nothing in this act requires the school district to keep them.

We don't think that duration is dispositive. We think because the act was designed -- we point this out at pages 20 and 21 of our brief, and page 23 of our brief -- was intended to reach records that the school was going to be -- use to make decisions about the student in an institutional way, institutional decisions about the student, which we think are different from what goes on in the classroom in the day-to-day learning experience, and so we think that that could include records, or some materials that are kept by a principal that wouldn't necessarily go into the permanent record, but would be part of the school's overall supervision of the student for that school year, so we do not think that the duration of the period is dispositive.

Having said that, what gave rise to this act was concerns about the sorts of things that were in the permanent institutional records of the student, the sorts of things that would follow the student, or that law enforcement officers or probation officers or others would have free access to when parents did not, and there was concern that there might be irrelevant information, or inaccurate or anecdotal information in records that would make a real difference in the child's life, and that's what this act is directed towards.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Kneedler.

Mr. Wright, we'll hear from you.

MR. WILFRED K. WRIGHT, JR.: Mr. Chief Justice, and may it please the Court:

The Family Educational Rights and Privacy Act was drafted by Senator Buckley, also known as the Buckley Amendment.

Senator Buckley in 1974 stated that most conscientious teachers would have no problem gaining the consent of a parent, provided the teacher has demonstrated the worth of his proposal.

In other words, Senator Buckley did intend the Family Educational Rights and Privacy Act to reach out into the record keeping process that included the teacher's work or the -- or the records that were being maintained by the teacher.

What the petitioners are requesting of this Court is to have unfettered and unshackled right to disclose exam grades to whomever they choose. If in fact, only the cumulative or the permanent or the transcript record is the only record that is an education record, then a teacher like Justice Scalia mentioned could post the exam scores in the local newspaper, if she wanted to, prior to handing them in to the central custodian. Such a result was not intended --

CHIEF JUSTICE REHNQUIST: Well, but has that ever happened? Had any teacher ever posted exam scores in the local newspaper?

MR. WRIGHT: Under the facts of this particular case --

CHIEF JUSTICE REHNQUIST: No. I say, was there any -- any incident of that sort that had ever been called to the attention of Congress? I mean, was that really what Congress was trying to prevent?

MR. WRIGHT: Not that particular action, but that would be a consequence of -- of finding that the education records would be just a permanent --

CHIEF JUSTICE REHNQUIST: Well, it would be -- the consequence you describe would allow a teacher to do something that no teacher has ever done.

MR. WRIGHT: Contrary, Your Honor, I believe that the teachers, not only in this particular case, but in many cases, especially in the -- the Krebs v. the Rutgers University case, were disclosing exam scores --

CHIEF JUSTICE REHNQUIST: They were posting them in newspapers?

MR. WRIGHT: No. They weren't posting them in newspapers.

CHIEF JUSTICE REHNQUIST: Well, that was what I asked you about because you mentioned it.

MR. WRIGHT: That's correct, Your Honor. They weren't posting them in newspapers.

JUSTICE SOUTER: If -- even if we -- we take the -- the expansive definition that you would use, what is your response to the point that came out in -- in my exchange with Mr. Kneedler, that the -- that the mere disclosure of information, which may ultimately end up in a record, but a disclosure before that information is, in fact, recorded would not be prohibited by the act?

MR. WRIGHT: Here we have a situation, the facts of this case, that happened simultaneously. The teacher is gathering --

JUSTICE SOUTER: Well, do -- I don't want to cut off your answer there. But as -- as a general proposition -- it may not apply here, but as a general proposition, do you agree with Mr. Kneedler?

MR. WRIGHT: If it doesn't make it into the teacher's maintenance of the record.

JUSTICE SOUTER: No. I think the assumption is it may well make it into. It simply hasn't made it into the record yet. At that point, before it makes it into the record, is the disclosure a violation of -- of the act?

MR. WRIGHT: I believe that the teacher is disclosing the information that she is intending to collect. It would be no different than a doctor sitting five patients down in front of them, having them exchange their diagnostic test, and saying, please call out that information to me.

JUSTICE SOUTER: Well, yes --

MR. WRIGHT: That would not be permitted.

JUSTICE SOUTER: -- we -- we don't know whether there's a statute that covers that, and we've got a statute here.

You're saying that the words of the statute would -- would make it an -- a violation [*31] to disclose the information that may ultimately be recorded, even before it is in fact recorded and made part of a record, as you define record.

MR. WRIGHT: No. As I define record, here we have a gathering of the information, and that's as far as I'm going. And that is, the teacher is gathering the information. She is collecting it. This whole process is simultaneous. They're having the students call out the grades.

Ms. Falvo's children were having to call out the grades without her consent.

JUSTICE SCALIA: Is the calling out a record? What -- what does the record consist of?

MR. WRIGHT: That's gathering the information. The teacher writing --

JUSTICE SCALIA: What -- what is the definition of record? I mean, it -- does it include --

MR. WRIGHT: Records, files, documents, something --

CHIEF JUSTICE REHNQUIST: Something written.

JUSTICE SOUTER: Yes, but when -- yes, and when the --

MR. WRIGHT: She's making the record.

JUSTICE SOUTER: -- when the kid speaks, nothing has been written yet.

JUSTICE SCALIA: Records, files, documents, and other materials. I don't see what there is in this case that falls within that category.

MR. WRIGHT: The grade.

JUSTICE SCALIA: The grade is not a record, file, document, or other material.

MR. WRIGHT: She's making --

JUSTICE SCALIA: A. You know, I say, A. The child shouts out, A. That is a record?

MR. WRIGHT: And I write it down as you shout it out.

JUSTICE SCALIA: Oh, after you write it down, maybe when the teacher writes it down -- at most when the teacher writes it down in her grade book, you say it -- it then becomes a record. But she doesn't disclose that grade book.

The only thing that's been disclosed is the child's, after he grades that paper, shouting out A. What -- what is the record that has been disclosed when the child does that?

MR. WRIGHT: That is the record that has been disclosed because the teacher is making the record.

JUSTICE SCALIA: So you're saying the information before it becomes a -- before it becomes a record, because it doesn't become a record until the child says it, and then the teacher writes it down. You're saying the information even before it becomes a record cannot be disclosed.

MR. WRIGHT: If she's collecting it, yes.

JUSTICE BREYER: Suppose a child --

JUSTICE SCALIA: Where do you get that from the statute?

MR. WRIGHT: (B)(i). It would be illogical for a teacher to have a legal obligation to protect the confidentiality of that grade that she just created in her grade book, yet have the student call out the grade. It is no longer --

JUSTICE SCALIA: It may well be illogical, but I don't see anything in the statute that -- that prohibits it, anymore -- you could say it's just as illogical to prohibit the teacher from disclosing that information, but if somebody else happens to know it, for that person to be perfectly free to say, you know, Jack Smith's kid got a D in that test. Does that violate the statute?

No, of course, it doesn't because the statute only covers certain things, and what it covers is records. I don't see what record has been disclosed here.

MR. WRIGHT: If a teacher has a legal obligation to protect the information in the grade book, if the grade book is an education record --

JUSTICE SCALIA: It isn't in the grade book yet. Your -- your objection is the child grades the paper and says to the class, says to the teacher, A. What -- what is the record that is being disclosed then?

MR. WRIGHT: She's making the record. The facts of this case --

JUSTICE SCALIA: Ah, yes.

MR. WRIGHT: -- where she's making the record.

JUSTICE SCALIA: The teacher is making the record after the child says, A.

MR. WRIGHT: That is true.

JUSTICE BREYER: What about a child who -- I remember in my third grade, my teacher, who thought it was her job to teach, had problems sometimes with discipline. And I might talk too much. I used to.

(Laughter.)

And -- and so the teacher would say that's reasoned self-discipline. You lack it. And I'd get a check. And you'd get three checks, and you get a mark on your report card. All right? And say, Stephen, that's the third time. You now have a mark on your report card.

All right. Now, she did that in front of the class because she felt that this is the way I keep my class in order and it helps me teach. She did the same thing with her grades, many of them. She did the same thing with attendance, by the way. We all said, here, here, sometimes present.

All right. In your view, are all those things now forbidden by Senator Buckley's statute that the teacher cannot run her class that way?

MR. WRIGHT: Not all of those items are forbidden, Your Honor. The Socratic method is not forbidden, Your Honor. Going to the chalkboard is not forbidden.

JUSTICE BREYER: No, no. Let's use my examples. My example was I act up in class. The teacher says you get a check for reasoned self-discipline. She says to the whole class -- that's how she keeps order in her class. That used to be true in the third grade. My teacher, Miss Rosmond --

(Laughter.)

-- whom I recall with fondness, did --

(Laughter.)

All right. But now -- now, what about my example? I'd like an answer to that example.

MR. WRIGHT: If she's making a record, I would say that would be a disclosure.

JUSTICE BREYER: Okay.

My next question is each morning we came in and said, present or here, and she'd keep a record. Now, is that also forbidden by this statute, unless you go through the elaborate procedures in the directory section, which I don't know any school that would have done for something like that? But is that, in the absence of that, also forbidden?

MR. WRIGHT: No. That's part of the directory information.

JUSTICE BREYER: No, no. If they don't go through the procedures. In other words, they -- the teacher doesn't announce to every parent, now we want to have a hearing for you to see whether we say to your child, here or not here.

MR. WRIGHT: Under your --

JUSTICE BREYER: That would be a violation in your view on the same theory.

MR. WRIGHT: It'd be a violation, but it's not under the statute.

JUSTICE BREYER: Well, all right.

My question ultimately then, given our examples, is do we really think that Senator Buckley intended to so interfere with the way in which a teacher would run his or her classroom --

MR. WRIGHT: Senator --

JUSTICE BREYER: -- for teaching and disciplinary purposes.

JUSTICE SCALIA: And -- and if so, do we think that the Congress agreed with Senator Buckley?

MR. WRIGHT: That's correct, because in answer to -- to Justice Breyer, Senator Buckley specifically stated, some may argue that my amendment will create too much additional work and red tape.

To that argument, I must reply that I am no -- not so much concerned about the workload or convenience of the educational bureaucracy. He was not concerned about what type of convenience. Another way --

JUSTICE KENNEDY: So no -- no gold stars on the -- on the paper that goes back to the student that any other student can see, or in these days, a Post-it with a happy face?

(Laughter.)

The Federal Government prohibits that.

MR. WRIGHT: He's intending to give the parent the right to consent to the release of information. We believe the grade book is information. Handing back a paper, it could be handed back to the child upside down if it has a grade on it.

There are a hundred ways to skin this cat.

JUSTICE BREYER: If I -- if I don't agree with you on this -- and I thought my examples that I gave are extreme instances, and it doesn't cover that.

Can you give me any help at all as to how this statute might be interpreted to keep its basic point, which -- which might be a desirable one, but not to cover my extreme cases?

MR. WRIGHT: Senator Buckley said another statement. Simple forms could be mailed to parents to obtain their permission for certain activities with regard to their children.

I would also further note that many schools already require the prior written consent of parents on a number of matters, including testing, special projects, drug programs, sex education, not to mention permission slips to go on field trips, permission slips to go play on the football team, permission slips to sell candy. Parents are bombarded with consent forms.

What the consent form does is it informs the parent as to what is happening to their child with respect to their education.

The teacher does not have the fundamental right to educate the child. Ms. --

JUSTICE GINSBURG: But it gives the individual -- it gives the individual parent a veto, and that's what you're saying. You have a school district. Education is one of the -- the areas that is most traditionally handled locally. Right?

And your -- your scheme is that any one parent in any classroom is going to have a veto over how that classroom operates.

MR. WRIGHT: Not necessarily, Your Honor. One parent has a veto with respect to their one child because they have the fundamental parental right to educate their child. The teacher does not; they do.

And that's exactly what Senator Buckley was -- was intending with the Buckley Amendment.

JUSTICE GINSBURG: So the rules -- any parent can make the rules for that parent's child, what that parent wants them to be, not the teacher, not the school district.

MR. WRIGHT: With respect to --

JUSTICE GINSBURG: You think that's what Senator Buckley meant.

MR. WRIGHT: Yes, with respect to education records, that is correct, especially scores on exams. We're dealing with a special ed student here that was being mainstreamed in the classroom and having his grades called out loud.

JUSTICE GINSBURG: As long as the teacher records them, you say that. But I think you said all this could go on, the teacher could give a spot quiz and say, I'm not counting it today, but everybody wants to know how everybody performed, so we're going to have the grades called out.

MR. WRIGHT: That's possibly true, but there are other means. Even the district court found --

JUSTICE GINSBURG: But what is the answer to that? Is it -- is it -- the teacher gives a quiz, has the grades called out, but doesn't record in her grade book.

MR. WRIGHT: If she's not recording it in her grade book, that is not a violation.

JUSTICE GINSBURG: And if she says, class, I want to give you an incentive to do better, so I'm going to write down these grades but I'm going to discount -- at the end of the term I'm going to discount the lower two-thirds of them.

MR. WRIGHT: It's an education record. The fact that the teacher only uses three exam scores that she's written in her grade book as opposed to five exam scores does not nullify the parent's right to consent to the release of that exam grade in the classroom.

JUSTICE STEVENS: Is it perfectly clear that the disclosure of information within the classroom setting is a release of education records within the meaning of (B)(i)?

MR. WRIGHT: Within the meaning of (B)(i) --

JUSTICE STEVENS: Yes.

MR. WRIGHT: -- our interpretation is it has to be.

JUSTICE STEVENS: Why do you say that if -- if it has the more formal concern about release to the public and law enforcement and so forth?

It seems to me that there's an awful lot of information about special students and others that -- that the student's classmates are inevitably going to learn about just by being in class seeing what goes on in class.

It isn't, though, the -- his general performance is a secret to the -- to the other -- to his classmates.

MR. WRIGHT: That -- that's correct, Your Honor. In fact, FERPA is not a panacea for all performances. In fact, the directory information exception to the education record specifically says that participation in school activities is fine.

JUSTICE STEVENS: But this particular school activity, it's not fine. I'm reading off the answers in -- in the presence of no one else except your classmates who generally have a pretty good idea of who the good students are and who -- who the bad students are.

But you still say that's -- that's clearly a release within the meaning of the statute in your view.

MR. WRIGHT: The grade that's going in the grade book is a release, Your Honor.

JUSTICE SCALIA: You think it's especially -- especially mean with respect to this special -- special ed student who's being mainstreamed.

What -- what do you say to the petitioners' footnote in their reply brief that the record establishes that the only special education service Philip received was 45 minutes of speech therapy once a week?

And that was discontinued, with respondent's consent, prior to the end of Philip's seventh grade year. That's not as appealing as your description of this -- of this student.

MR. WRIGHT: The fact that a special ed --

JUSTICE SCALIA: Is that -- is that what you mean by a special ed student, a student who is receiving 45 minutes of speech therapy once a -- once a week?

MR. WRIGHT: Yes. I think that's --

JUSTICE SCALIA: That's what you mean by a special -- special ed student.

MR. WRIGHT: He was. He was IEP. He was in an IEP program under the IDE Act.

JUSTICE SCALIA: 45 minutes a week. Did he get anything else other than that? Of speech therapy. What did he have? A stutter perhaps?

MR. WRIGHT: No. He was slow in reading, Your Honor. He was slow in reading the exams, the pop quizzes, Your Honor. I mean --

JUSTICE BREYER: Well, how would speech therapy help that?

MR. WRIGHT: I don't know, Your Honor. Those questions were not raised. None of those material facts were part of the record.

JUSTICE SCALIA: Well, I suggest you not paint your client as more sympathetic than he is.

MR. WRIGHT: I am just trying to be sensitive not only to just that one child, but even to her other children who are also part of this case with respect to their A's. They were straight A students.

So rather -- whether one child receives low grades or whether one child receives stellar performance in the classroom, it does not matter. It is still a release of a grade. Those children know the grade. The parents of those children know the grade.

When a parent goes to the parent-teacher conference and she shows up and the teacher says, all right, these are the -- we're going to keep this private, it's not private information. It's already been disclosed. That information is not private.

How can the teacher keep concealed that which she already revealed? And even the district court found that hard to believe.

And -- and that's -- that's the logic of the Tenth Circuit. The Tenth Circuit didn't prohibit the practice. The Tenth Circuit merely suggested that the statute on its face, the plain language of the statute, says, give the parent the right to consent.

That was the intent of Senator Buckley: give the parent the right to consent to the release.

JUSTICE O'CONNOR: If it's an educational record as defined under the act and maintained as such -- and that's really the issue, whether it -- it's covered at this stage of a fellow student calling out a grade.

MR. WRIGHT: It's covered because in the facts of this case, the teacher is using that protocol to collect the information.

JUSTICE O'CONNOR: Well, but that is not the text of the statute. You have to overcome the fact that the literal language wouldn't cover it.

MR. WRIGHT: The literal language interpreted in the context of the parent's right to consent, in other words, keeping that information confidential. If there is a legal obligation on the part of the teacher to keep that grade confidential once it's in her hands --

JUSTICE SCALIA: She had -- they have no right to keep information confidential. They have a right to keep the record confidential. If the information is obtained from some source other than the record, the statute does not -- does not address its release.

MR. WRIGHT: I respectfully disagree. The statute specifically says, which has a policy or practice of permitting the release of education records or personally identifiable information contained therein --

JUSTICE SCALIA: Contained in the records.

MR. WRIGHT: She's making the record. She's maintaining the record. That has to be interpreted in the context of what we're doing here. And if we look at Whalen v. Roe --

JUSTICE BREYER: I'm way out-of-date probably, but again, when I used to be in school, grades were thought of, to some degree, as an incentive, that they weren't totally private.

One of their functions is they should be at least told to other people in the class in order to get them to work harder or to strive harder.

Now, in -- the term of records, when they talk about records, which I don't think defines itself, is there any indication in this history that that idea that if a teacher wants to use grades as a kind of incentive device, that that should not be up to the teacher?

She isn't able to do it? I mean, is there -- see, records doesn't define itself, and I'm looking for a line.

MR. WRIGHT: Congress intended that --

JUSTICE BREYER: In -- in the absence of some other line, I might tend to think a line should be drawn to give the teacher maximum freedom to run his or her class the way the teacher feels is best educationally.

That's different from having a record in an office somewhere in the clerk's office in the school. See, that's where -- that's where I'm sort of looking for, and I'm trying to get some help from you with that.

MR. WRIGHT: The line is the grade that is going in the grade book with respect to this particular case. If the grade is going in the grade book, what she is creating, she is maintaining.

If -- if that -- if maintain does not mean that she is making the record or creating the record, if we subscribe to their view that maintain means the central custodian, then the central custodian doesn't have any record either until it's actually in their hands.

And then we can disclose, we can access, we -- everything.

JUSTICE BREYER: So what -- so what if you could? Suppose you were to say that. Suppose you were to say before it becomes part of the permanent records of the school, you can disclose it to other people. You can. That's right. The teacher can tell other students.

The teacher can tell the parents. The teacher can have a discussion about it. They can do a lot of those things if the teacher feels that's good educationally and the school approves. What would be so terrible about that in terms of this statute?

MR. WRIGHT: It would be terrible. It would be disastrous. Students, parents would not have the right, that privacy. That interest in keeping that information private would not be there.

Everybody would have access to that information. In fact, that reads out of the statute (B)(i). You wouldn't have confidentiality.

Education records, by its plain language in the statute, means information directly related to the student and maintained by the institution or somebody acting on behalf of the institution. And clearly, by the plain language of the statute, that includes the teacher.

So, yes, the teacher grade books -- the teacher grade books are education records, subject to the Family Educational Rights and Privacy Act, the privileges and the obligations that come with this particular statute.

JUSTICE GINSBURG: Mr. Wright, this goes all the way through, I take it, in your view that -- take a college student. The college student can say, oh, I don't want to participate.

I don't want anybody else to know what my grade is, and I'm not going to exchange papers with another person.

MR. WRIGHT: Precisely. We don't engage in this practice at college because we would have mutiny at all colleges. They have the capacity as adults, I'm not doing this. I'm out of this class. I don't want people knowing what my --

JUSTICE GINSBURG: I understand it's a --

JUSTICE SCALIA: You're out of the college. I mean, that --

(Laughter.)

JUSTICE GINSBURG: It's a technique that teachers do use, to have students prepare and present each other's papers, that that's a technique that's quite common in colleges and professional schools.

MR. WRIGHT: You're referring to the -- the teacher assistant helping them grade?

JUSTICE GINSBURG: No, no. The students critique each other's papers.

MR. WRIGHT: Okay. Student peer critiquing? That is not prohibited by FERPA. The teacher is not collecting that information. The students are making the evaluation or assessment of each other for their sole purpose, not for the purpose of the teacher recording and making --

JUSTICE GINSBURG: The teacher writes down -- the teacher writes down in the book the comments that the students made and she takes that into account in the final grade in the course.

MR. WRIGHT: Outside of the facts of this case, that may be a violation if, in fact, she's making a record and that was the intent of the teacher to make a record.

JUSTICE KENNEDY: A -- a good alternate name for this statute would have been the Anti -- the Prevention of Mutiny Among Students Act?

(Laughter.)

Suppose -- suppose that a school district received $100 a year in Federal funds, and this act were applied in the way you said, would that to you raise any serious concerns of federalism?

MR. WRIGHT: I think the funds need to be available under an applicable program, and I think the lower cases have -- have deemed that certain programs are applicable and certain others are not. Federal funding through a State agency would be an applicable program.

Those facts were never raised in this particular case, never defended by petitioners as to whether or not there was any applicable Federal funding involved in this particular case.

The solution to the problem with respect to this issue that is before the Court, provide the parent the right to consent -- in fact, that's what they're doing in many schools or they're just, like the Tenth Circuit said, do it anonymously or don't do it at all.

Have the student grade their own paper. Encourage the parent to come and -- and be informed as to what is happening --

CHIEF JUSTICE REHNQUIST: To have the student grade their own paper might have some problems with it too.

(Laughter.)

MR. WRIGHT: I cross examined the principal with respect to that particular issue, and he said, well, we exchange papers because the students cheat. I said, well, the neighbor grading the other neighbor's paper -- they don't have an opportunity to cheat?

Oh, yes, you're right, Mr. Wright. They do cheat. So that doesn't preclude the students from cheating, does it? No. Well, no, they could cheat even during the exam because they could write the answers on their hand.

JUSTICE SCALIA: Well, you need two cheaters for that to work, whereas if you grade your own paper, it only takes one. Right?

(Laughter.)

MR. WRIGHT: We believe that the plain language governs what is an educational record and it does not mean the permanent transcript.

If Congress had intended for education records to mean a permanent transcript, they could have easily placed language in there that said only the permanent or cumulative record of a child is an education record. They didn't say that.

They even excepted out sole possession notes, which are notes of the teachers. They excepted out directory information. The Family Policy Compliance Office has consistently over the last 25 years held that the grade book is an education record.

A parent would like to access it. Here's the -- here's another consequence, that a parent doesn't have a right to access if it's merely the permanent education record of the grades. The teacher could -- could say, no, you can't see your child's grades.

A parent has to have that information available to her for the purpose of making some important decisions with respect to her child, and that's exactly what Ms. Falvo went to the school district and argued. She argued that those are my children's grades.

Those are between me and the teacher. I have a right to consent to their release, and I have a right to access.

CHIEF JUSTICE REHNQUIST: Well, but a moment ago, from what you said, I thought the school district was telling her that she couldn't see her children's grades. That never happened, did it?

MR. WRIGHT: No, that never happened. But that happened in a particular case that has been cited by the petitioners in the State of California where a mom with a special ed child was having a hearing and needed the information in the grade book, and they said, no, FERPA doesn't apply. The grades in the grade book -- she had no evidence available to her to make an informed decision with respect to whether or not her child belonged --

CHIEF JUSTICE REHNQUIST: But that -- that wasn't what happened here, was it?

MR. WRIGHT: That isn't what happened here, but that has happened, Your Honor.

Any further questions?

Seeing none, Your Honor, we submit.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Wright. The case is submitted.