Owasso Independent School District No. I-011 v. Falvo – Oral Argument – November 27, 2001

Media for Owasso Independent School District No. I-011 v. Falvo

Audio Transcription for Opinion Announcement – February 19, 2002 in Owasso Independent School District No. I-011 v. Falvo

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William H. Rehnquist:

We’ll hear argument next in Number oh oh ten seventy-three, Jerry p- correction, Owasso Independent School District Number one eleven, also known as the Owasso Public Schools versus Kristja J.

Falvo.

Sounds like the school has an alias Mr. Richardson.

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.

Sandra Day O’Connor:

Mister…

Did you take…

Anthony M. Kennedy:

the position in the court of appeals that there is no private cause of action?

We…

Jerry A. Richardson:

We did not raise that issue in the court of appeals, Your Honor.

Sandra Day O’Connor:

The court of appeals discussed it.

Jerry A. Richardson:

The the court of appeals raised it sua sponte, and it has been raised in amicus briefs submitted, in fact, three amici…

Why didn’t you…

Sandra Day O’Connor:

raise the issue? Why isn’t that more important than what you did raise?

Jerry A. Richardson:

Candidly, Your Honor, we didn’t raise it for a number of reasons.

Well, I I just…

Anthony M. Kennedy:

don’t know if if it’s 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.

Jerry A. Richardson:

Well, in hi- i- i- in hindsight I would agree with the Court that we should have approached it a different way.

focus on…

Jerry A. Richardson:

the nineteen eighty-three…

aspect of it.

William H. Rehnquist:

certainly had some justification on the private cause of action.

That That’s very true, Your Honor.

William H. Rehnquist:

sure that you’re going to prevail on that.

Jerry A. Richardson:

That That’s very true, Your Honor.

Sandra Day O’Connor:

They’re hard for us, too.

Jerry A. Richardson:

A- And the other factor I would say is that the two decisions that the Tenth Circuit cited from from other courts of appeals, the only two decisions that we were aware of from the Second Circuit, the Fay versus South Colonie School District decision, and from the Fifth Circuit, Tarka vers- versus Cunningham, both of those courts of appeals had held that FERPA was actionable under nineteen eighty-three, so again, we made…

strategic decision…

Sandra Day O’Connor:

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 a funding mechanism, and under the act, the penalty for not following it is a cut-off of funding.

Jerry A. Richardson:

Oh,

Sandra Day O’Connor:

Do we send it back…

[Inaudible]

Sandra Day O’Connor:

let it be briefed and argued below?

Jerry A. Richardson:

No, I don’t believe so, Your Honor.

Congress…

William H. Rehnquist:

raise this in your petition for certiorari, though, did you?

Jerry A. Richardson:

We didn’t raise it, no, Your Honor, we didn’t.

In addition, FERPA…

Ruth Bader Ginsburg:

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?

Jerry A. Richardson:

That is correct, Your Honor, and I am not aware of any any decisions.

Anthony M. Kennedy:

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

Jerry A. 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 e- records, only grades or scores that are re- recorded in the teacher’s grade book are education records.

Antonin Scalia:

What’s your definition of maintain, what, a week, a month ?

I don’t think that…

Antonin Scalia:

Make me an offer.

Jerry A. Richardson:

Your Honor, I think that that what Congress was 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.

Antonin Scalia:

Some of my colleagues like that stu-

Jerry A. Richardson:

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

Ruth Bader Ginsburg:

Is there a difference between your position and the Government said, but it means, educational records means institutional…

No.

Ruth Bader Ginsburg:

The kind that would be in the principal’s office or and not in the teacher’s drawer.

Jerry A. Richardson:

No.

I I I don’t think…

Ruth Bader Ginsburg:

been the posi- position that the Government, that this FPCO has taken consistently, because wasn’t there, didn’t they say that the teacher’s grade book…

Yes.

Ruth Bader Ginsburg:

as an educational record?

Jerry A. Richardson:

Yes.

But if if…

Antonin Scalia:

if if if your definition is correct, and it’s it’s it’s 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 that a teacher makes? You wouldn’t need that exception.

Jerry A. Richardson:

Well, not necessarily, Your Honor, and and that that, you’re referring, I believe, to the sole possession notes…

exception…

Jerry A. Richardson:

B- but that’s not that’s not limited to grade books.

Antonin Scalia:

W- where is it? C- can we look at that? It’s in the, w- what’s the sect-

Jerry A. Richardson:

Yes, Your Honor.

William H. Rehnquist:

Where is it, in the briefs?

Jerry A. Richardson:

[Inaudible]

Antonin Scalia:

Appendix page four of your brief?

Jerry A. Richardson:

Yes.

memory aid.

Antonin Scalia:

But my point is, you wouldn’t need that exception.

Well…

Antonin Scalia:

If, I mean, that e- that e- that exception suggests that other things that are only, only held b- in the sole possession of the maker…

Jerry A. Richardson:

I disagree that you…

not need that.

Antonin Scalia:

could could be within within the statute.

Jerry A. Richardson:

Well, for instance, a document, a counseling record, for instance, perhaps the the student had had experienced some emotional problems, or…

something that has…

Jerry A. Richardson:

come to the attention of a counselor.

And you think…

Antonin Scalia:

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

Well, I I I think that’s…

Antonin Scalia:

even the notes, personal notes kept by a by a counselor come, would come within this statute but for that exception, right?

Jerry A. Richardson:

Well, but for that exception.

Exactly.

Jerry A. Richardson:

materials like that are maintained by an educational agency or institution.

S- so are…

Antonin Scalia:

Ste- so are a teacher’s grade books.

Jerry A. Richardson:

I believe t- because a grade book is, in my opinion, Your Honor, more of an evaluation instrument rather than a a record.

of records.

Antonin Scalia:

notes aren’t? The counselor’s notes aren’t?

Jerry A. Richardson:

Well, I I that argument might very well apply to counselor’s…

notes as well.

Antonin Scalia:

that’s the problem.

Jerry A. Richardson:

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

Antonin Scalia:

And we usually don’t interpret statutes that way.

Well, I I…

David H. Souter:

You you started out by by referring to to maintain as implying some significant period.

Jerry A. Richardson:

Yes.

David H. 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.

Jerry A. Richardson:

I Not i- in a, no, not a a pure durational criteria.

time that are institutional rec-

David H. Souter:

maintain, then, that you’re using?

Jerry A. Richardson:

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

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

But it’s not the kind…

David H. Souter:

something is recorded, and you’re saying, well, sure, they 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 the kid who does the correction isn’t a person who maintain-, who who makes a record by definition…

Jerry A. Richardson:

Correct…

David H. 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 criteri-

Jerry A. Richardson:

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

May I ask you a a question…

Jerry A. Richardson:

that’s up there for a week…

Do you…

John Paul Stevens:

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 one?

Jerry A. Richardson:

No, absolutely not.

Because?

Jerry A. Richardson:

Because it’s not an education record.

You can only…

John Paul Stevens:

Assuming it was an educational record, would you say that it’s a it’s a release b- when it’s tol- when it’s realvaled [: revealed] by one student to another within the classroom?

Jerry A. Richardson:

No, I don’t believe, in in the context of pure grading, it would make no sense to say that one student, that it’s not a release if if the student grading the paper records the grade.

Stephen G. Breyer:

I’m slightly worried about that, because suppose that, I take it attendance records are are are also, they are probably are maintained, and they are records, aren’t they?

Jerry A. Richardson:

A- Attendance, well, again I would say that attendance records are not the kind of information…

William H. Rehnquist:

Thank you, Mr. Richardson Mr. Kneedler, we’ll hear from you.

Edwin S. Kneedler:

Mr. Chief Justice, and may it please the Court: The Family E- Educational Rights and Privacy Act does not prohibit the common classroom practice of s- one student grading another student’s paper, or other common classroom and teaching practices.

Antonin Scalia:

Does does the act cover a teacher’s grade book that she keeps during the term?

Edwin S. Kneedler:

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

exams…

Antonin Scalia:

results of the exam, you know, the big exam, mid-term exam, and the stee- student you know posts this the results on the board.

Edwin S. Kneedler:

I I I think under the position we’ve espoused here, that would not be a violation of the act.

violation.

Antonin Scalia:

posts it before he sends it on to the to the administration office…

Edwin S. Kneedler:

I- If it’s posted, and this may sound technical, but this is this is where this is where the two categories we think intersect.

and it’s not for everyone…

David H. Souter:

I think, saying that the that the disclosure has got to be of the record, not merely of information that may ultimately end up…

That…

Edwin S. Kneedler:

That’s that’s exactly true, and t- and there are analogous situations in which that’s true, for instance the attorney-client privilege, that the 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.

Stephen G. Breyer:

I’m I the more I hear, I’m, a little there used to be schools in any case that would say, the following ten percent of the class graduates with honors, next forty percent, okay, and sort of honors, and the last sixty percent, well, they graduated, didn’t they.

Edwin S. Kneedler:

Yes…

Now, is…

Stephen G. Breyer:

that all forbidden now?

Edwin S. Kneedler:

No.

institution has to announce a policy.

Sandra Day O’Connor:

we dealing with here? You don’t have much time, and I am concerned.

Edwin S. Kneedler:

All that is strictly presented in this case is the practice of s- one student grading another’s paper before the before the teacher has gotten the papers themselves…

or entered them in the grade book.

Sandra Day O’Connor:

what is your succinct explanation of why it’s not covered by the statu-

Edwin S. Kneedler:

There’s no educational record maintained by the school.

Because it…

Sandra Day O’Connor:

isn’t maintained, or because it isn’t a record?

Edwin S. Kneedler:

Well, n- whether it’s maintained is part of the definition of educational record.

Mr. Kneedler,

Ruth Bader Ginsburg:

do you do you have a position on the threshold question? Is there a claim for relief, a private claim for relief?

Edwin S. Kneedler:

We we do not have a a position on that.

[Inaudible]

Antonin Scalia:

Mr. Kneedler, you you you said it doesn’t include the the the teacher’s classroom records.

Edwin S. Kneedler:

Well…

the sole…

Antonin Scalia:

possession exception?

Edwin S. Kneedler:

Two different questions.

Yes, I understand that.

Edwin S. Kneedler:

That that that’s not covered.

It’s covered by the sole e-

Antonin Scalia:

sole possession exception?

Edwin S. Kneedler:

That’s correct.

Antonin Scalia:

Which means it it would have been embraced by the statute, but for that…

Edwin S. Kneedler:

That’s probably true, but but but it’s, one thing to bear in mind here is, this act was passed in one form early in nineteen seventy-four.

duration…

Anthony M. Kennedy:

don’t have to be retained for forty-five days or anything like that?

Edwin S. Kneedler:

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

William H. Rehnquist:

Thank you, Mr. Kneedler.

Wilfred K. Wright, Jr.:

Mr. Chief Justice, and may it please the Court.

William H. Rehnquist:

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

Wilfred K. Wright, Jr.:

Under the facts of this particular…

No. I say,

William H. Rehnquist:

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?

Wilfred K. Wright, Jr.:

Not that particular action, but that would be a consequence of, of finding that the education records would be just a permanent…

William H. Rehnquist:

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

Wilfred K. Wright, Jr.:

Contrary, Your Honor, I believe that the teachers, not only in this particular case, but in many cases, especially in the Kreb-, the Krebs versus the Rutgers University case, were disclosing exam scores…

William H. Rehnquist:

They were posting them in newspapers?

Wilfred K. Wright, Jr.:

No.

posting them in newspapers.

William H. Rehnquist:

what I asked you about because you mentioned it.

Wilfred K. Wright, Jr.:

That’s correct, Your Honor.

David H. 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?

Wilfred K. Wright, Jr.:

Here we have a situation, the facts of this case, that happened simultaneously.

David H. Souter:

Well, do you, d- I don’t want to cut off your answer there.

Wilfred K. Wright, Jr.:

If it doesn’t make it into the teacher’s maintenance of…

the record.

David H. Souter:

I think the assumption is it may well make it into.

Wilfred K. Wright, Jr.:

I believe that the teacher is disclosing the information that she is intending to collect.

Well, yeah, but we we don’t know…

David H. Souter:

whether there’s a statute that covers that, and we’ve got a statute here.

Wilfred K. Wright, Jr.:

No.

Antonin Scalia:

The cau- is the calling out a record? What what does the record consist of?

That’s…

Wilfred K. Wright, Jr.:

gathering the information.

What what is the definition of…

Antonin Scalia:

record? I mean, it it d- d- does…

Records, files,

Wilfred K. Wright, Jr.:

documents, something…

William H. Rehnquist:

Something written…

Yeah, but when the yeah, and when the kid when the kid…

David H. Souter:

speaks, nothing has been written yet.

Antonin Scalia:

Records, files, documents, and other materials.

Wilfred K. Wright, Jr.:

The grade.

Antonin Scalia:

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

She’s making…

Antonin Scalia:

You know, I say, A.

Wilfred K. Wright, Jr.:

And I write it down as you shout it out.

Antonin Scalia:

Oh oh, after you write it down, maybe when the teacher writes it down, a- at most when the teacher writes it down in her grade book, you say it, it then becomes a record.

Wilfred K. Wright, Jr.:

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

Antonin 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.

Wilfred K. Wright, Jr.:

If she’s collecting it, yes.

Suppose a child…

Antonin Scalia:

that from the statute?

Wilfred K. Wright, Jr.:

B one.

It may well be…

Antonin Scalia:

illogical, but I don’t see anything in the statute that, that prohibits it, anymore, it 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.

Wilfred K. Wright, Jr.:

If a teacher has a legal obligation to protect the information in the grade book, if the grade book is an education record…

Antonin Scalia:

It isn’t in the grade book yet.

Wilfred K. Wright, Jr.:

She’s making the record.

Ah, yes.

Wilfred K. Wright, Jr.:

the record.

Antonin Scalia:

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

Wilfred K. Wright, Jr.:

That is true.

Stephen G. 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.

Not all of those items are forbidden, Your Honor.

Wilfred K. Wright, Jr.:

The Socratic method is not forbidden, Your Honor.

forbidden, Your Honor.

Stephen G. Breyer:

Let’s use my examples.

I’ve heard this…

Stephen G. Breyer:

my example? I’d I’d like an answer to that example.

Wilfred K. Wright, Jr.:

If she’s making a record, I would say that would be a…

disclosure.

Stephen G. Breyer:

My next question is each morning we came in and said, present or here, and she’d keep a record.

Wilfred K. Wright, Jr.:

No.

information.

Stephen G. Breyer:

they don’t go through the procedures.

I- okay…

Stephen G. Breyer:

they didn’t they th- 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.

Wilfred K. Wright, Jr.:

Under your…

Stephen G. Breyer:

That would be a violation in your view on the same…

It’d be a…

Wilfred K. Wright, Jr.:

violation, but it’s not under the statute.

Stephen G. Breyer:

Well, all right.

Senator…

Stephen G. Breyer:

disciplinary purposes.

And i-

Antonin Scalia:

and if so, do we think that the Congress agreed with Senator Buckley?

Wilfred K. Wright, Jr.:

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

Anthony M. Kennedy:

So no no gold stars on the on 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? the the Fe- The F- Federal Government prohibits that.

Wilfred K. Wright, Jr.:

He’s intending to give the parent the right to consent to the release of information.

If I…

Stephen G. Breyer:

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.

Wilfred K. Wright, Jr.:

Senator Buckley said another statement.

child. Miss Fe-

Ruth Bader Ginsburg:

it gives the individual parent a veto, and that’s what you’re saying.

Wilfred K. Wright, Jr.:

Not necessarily, Your Honor.

Buckley Amendment.

Ruth Bader Ginsburg:

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.

With respect to…

Ruth Bader Ginsburg:

that’s what Senator Buckley meant.

Wilfred K. Wright, Jr.:

Yes, with respect to education records, that is correct, especially scores on exams.

Ruth Bader Ginsburg:

As long as the teacher records them, you say that.

Wilfred K. Wright, Jr.:

That’s possibly true, but there other means.

court found…

Ruth Bader Ginsburg:

the answer to that? Pos- Is it, is it the teacher gives a quiz, has the grades called out, but doesn’t record in her grade book.

Wilfred K. Wright, Jr.:

If she’s not recording it in her grade book, that is not a violation.

Ruth Bader 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.

Wilfred K. Wright, Jr.:

It’s an education record.

John Paul Stevens:

Is it perfectly clear that disclosure of information within the classroom setting is a release of education records within the meaning of of of B one?

Wilfred K. Wright, Jr.:

Within the meaning of B one…

John Paul Stevens:

Yeah.

Wilfred K. Wright, Jr.:

our interpretation is it has to be.

John Paul 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 that that the student’s classmates are inevitably going to learn about just by being in class seeing what goes on in class.

Wilfred K. Wright, Jr.:

That that’s correct, Your Honor.

But this…

John Paul Stevens:

particular school activity, it’s not fine.

Wilfred K. Wright, Jr.:

The grade that’s going in the grade book is a release,

Your Honor.

Antonin Scalia:

it’s especially especially mean with respect to this special e- e- special ed student who’s being mainstreamed.

The fact that a special ed…

Antonin Scalia:

is that what you mean by a special aid student, a student who is receiving forty-five minutes of speech therapy once a once a week?

Wilfred K. Wright, Jr.:

Yes.

Antonin Scalia:

That’s what you mean by a special special ed…

Wilfred K. Wright, Jr.:

He was.

Antonin Scalia:

Forty-five minutes a week.

Wilfred K. Wright, Jr.:

No.

Well, how would…

Antonin Scalia:

speech therapy help that?

Wilfred K. Wright, Jr.:

I don’t know, Your Honor.

None of those material facts were part of the record.

Antonin Scalia:

paint your client as more sympathetic than he is.

Wilfred K. Wright, Jr.:

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.

Sandra Day 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.

Wilfred K. Wright, Jr.:

It’s covered because in the facts of this case, the teacher is using that protocol to collect…

the information.

Sandra Day O’Connor:

but that is not the text of the statute.

Wilfred K. Wright, Jr.:

The literal language interpreted in the context of the parent’s right to consent, in other words, keeping that information confidential.

confidential once it’s in her hands…

Antonin Scalia:

they have no right to keep the information confidential.

Wilfred K. Wright, Jr.:

I respectfully disagree.

Contained in…

Antonin Scalia:

the records.

Wilfred K. Wright, Jr.:

She’s making the record.

Is…

Wilfred K. Wright, Jr.:

interpreted in the context of what we’re doing here.

versus Roe…

Stephen G. Breyer:

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

Wilfred K. Wright, Jr.:

Congress intended that…

Stephen G. 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.

Wilfred K. Wright, Jr.:

The line is the grade that is going in the grade book with respect to this particular case.

So what…

Stephen G. Breyer:

what if you could? Suppose you were to say that.

Wilfred K. Wright, Jr.:

It would be terrible.

Mr. Wright,

Ruth Bader Ginsburg:

this goes all the way through, i- I take it, in your view that th- co- take a college student.

Wilfred K. Wright, Jr.:

Precisely.

I don’t want people knowing what my…

You’re out of…

You’re out of the college. I mean, that…

Ruth Bader Ginsburg:

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

Wilfred K. Wright, Jr.:

You’re referring to the the the teacher assistant helping them gra-

Ruth Bader Ginsburg:

No, no.

Wilfred K. Wright, Jr.:

Okay.

teacher recording and making…

Ruth Bader Ginsburg:

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.

Wilfred K. Wright, Jr.:

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.

Anthony M. Kennedy:

A a good alternate name for this statute would have been the Anti, the the Prevention of Mutiny Among Students Act? Su- Su- Suppo- suppose that a school district received a hundred dollars a year in in Federal funds, and this act were applied in the way you said, would that to you raise any serious concerns of federalism?

Wilfred K. Wright, Jr.:

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.

William H. Rehnquist:

To have the student grade their own paper might have some problems with it too that y- Laughter.

Wilfred K. Wright, Jr.:

I cross examined the principal with respect to that particular issue, and he said, well, we exchange papers because the students cheat.

Antonin Scalia:

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

[Inaudible]

Wilfred K. Wright, Jr.:

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

to access.

William H. Rehnquist:

a moment ago, from what you said, I thought the school district was telling her that she couldn’t see her children’s grades.

No,

Wilfred K. Wright, Jr.:

that never happened.

But that…

William H. Rehnquist:

that wasn’t what happened here, was it?

Wilfred K. Wright, Jr.:

That isn’t what happened here, but that has happened, Your Honor.

William H. Rehnquist:

Thank you, Mr. Wright.

The Marshal:

The honorable court is now adjourned until tomorrow at ten o’clock.