Court Looks At Making The Grade

Teachers say it every day: Trade papers. In classrooms across the country, students and teachers go over schoolwork together, with each student correcting the work of a classmate.

Social conservatives and parental rights advocates are watching closely as the Supreme Court decides whether paper-swapping violates students' privacy rights.

The court was hearing arguments in the case Tuesday.

Affirmative Action
Case Abandoned

The Supreme Court abandoned plans to rule in an affirmative action case once billed as a potential blockbuster.

Opponents of racial preferences hoped the court would use an 11-year-old lawsuit over government highway contracts to effectively declare federal affirmative action programs unconstitutional. But the case, Adarand Constructors Inc. v. Mineta, developed problems that justices deemed too messy to fix.

The case began as a new test of whether the government can offer incentives to minorities or others traditionally at a disadvantage in business without unconstitutionally harming white-owned business.

The court agreed to hear the latest Adarand case in March. But at oral arguments Oct. 31, it was apparent that the two sides could no longer agree what they are fighting about, or whether there was even a case at all.

The court's action essentially erases the Adarand appeal and leaves a federal appeals court ruling against the company in place.

Kristja Falvo, a mother of three students in a school district outside Tulsa, Okla., claims it is needlessly embarrassing for students to grade one another's papers and announce the results in front of classmates.

Classmates called her son Philip "dummy" and "stupid" because the reading-disabled child's scores were lower than his sixth-grade classmates in Owasso, Okla. She said she complained, but got nowhere.

She sued in 1998, claiming the practice violated students' civil rights. She won a lower court ruling that focused instead on whether paper-swapping violates a 1974 law that conditioned federal aid for schools to a guarantee that "education records" will be kept private.

"The practice of exchanging papers and then calling out the grades unlawfully circumvents the purpose of safeguarding students' personal grade information," attorneys from the conservative Rutherford Institute wrote on Falvo's behalf.

The Bush administration sided with the school district, and urged the high court to overturn a federal appeals court ruling that critics say could spell the end of acdemic honors like "student of the week," or displays of graded student art in school hallways.

The Denver-based 10th U.S. Circuit Court of Appeals misinterpreted the 1974 law, the administration argued.

The Falvo case has split conservative opinion. Some on the right say Congress meant to protect the privacy of both students and parents in 1974, and that schools cut parents out of too many decisions.

Others say the case has no business in court, and that government has no business regulating the minutiae of classroom conduct. They find themselves allied with the generally left-leaning teachers unions and other school groups, which argue that a national policy like the one laid out by the 10th Circuit would strip teachers of the right to run their own classrooms.

"The grading practice at issue is widely used throughout the United States because many teachers, and their employing school districts, have found it to be educationally beneficial," the National Education Association and the National Federation of Teachers wrote in a friend-of-the-court brief.

Not all teachers have their students swap homework, quizzes or other schoolwork, but the choice is theirs, the unions argued. Teachers should also be protected from this kind of lawsuit, teachers' unions argued.

Many lawyers who pay close attention to the Supreme Court were stunned that the justices agreed to hear the case, and the court has taken some ribbing and worse for involving itself in what seems to many like a silly spat.

Days after the court accepted the appeal in June, The Washington Post published an editorial headlined, "Why is This in Court?"

The case is Owasso Independent School District v. Falvo, 00-1073.

By Anne Gearan
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