OWASSO INDEPENDENT SCHOOL DISTRICT NO. I–011, aka OWASSO PUBLIC SCHOOLS, et al. v. FALVO, parent and next friend of her minor children, PLETAN, et al.

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426 OCTOBER TERM, 2001
Syllabus
OWASSO INDEPENDENT SCHOOL DISTRICT NO.
I–011, aka OWASSO PUBLIC SCHOOLS, et al.
v. FALVO, parent and next friend of her
minor children, PLETAN, et al.
certiorari to the united states court of appeals for
the tenth circuit
No. 00–1073. Argued November 27, 2001—Decided February 19, 2002
Teachers sometimes ask students, including respondent’s children, to score
each other’s tests, papers, and assignments as the teachers explain the
correct answers to the entire class. Claiming that such “peer grad-
ing” violates the Family Educational Rights and Privacy Act of 1974
(FERPA or Act), respondent filed a 42 U. S. C. § 1983 action against
the school district and school officials (petitioners). FERPA, inter alia,
authorizes federal funds to be withheld from school districts that permit
students’ “education records (or personally identifiable information con-
tained therein . . .)” to be released without their parents’ written con-
sent, 20 U. S. C. § 1232g(b)(1); and defines education records as “records,
files, documents, and other materials” containing information directly
related to a student, which “are maintained by an educational agency
or institution or by a person acting for such agency or institution,”
§ 1232(a)(4)(A). In granting petitioners summary judgment, the Dis-
trict Court held that grades put on papers by another student are not
“education records.” The Tenth Circuit reversed, holding that FERPA
provided respondent with a cause of action enforceable under § 1983,
and finding that grades marked by students on each other’s work are
“education records,” so the very act of grading is an impermissible re-
lease of information to the student grader.
Held: Peer grading does not violate FERPA. Pp. 430–436.
(a) This Court assumes, without deciding, that FERPA provides pri-
vate parties with a cause of action enforceable under § 1983. Though
that question is left open, the Court has subject-matter jurisdiction here
because respondent’s federal claim is not so completely devoid of merit
as not to involve a federal controversy. Pp. 430–431.
(b) Petitioners and the United States contend that education records
include only institutional records, e. g., student grade point averages,
standardized test scores, and records of disciplinary actions. But re-
spondent, adopting the Tenth Circuit’s reasoning, contends that an as-
signment satisfies § 1232(a)(4)(A)’s definition as soon as another student
grades it. That court determined that teachers’ grade books and the
grades within are “maintained” by the teacher and thus covered by the

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Syllabus
Act. The court recognized that teachers do not maintain the grades on
individual student assignments until they have recorded them in the
grade books. It reasoned, however, that if the teacher cannot disclose
the grades once written in the grade book, it makes no sense to permit
disclosure immediately beforehand. The court thus held that student
graders maintain the grades until they are reported to the teacher.
Two statutory indicators show that the Tenth Circuit erred. First, stu-
dent papers are not, at that stage, “maintained” under § 1232(a)(4)(A).
That word’s ordinary meaning is to preserve or retain. Even assuming
that a grade book is an education record, the score on a student-graded
assignment is not “contained therein,” § 1232g(b)(1), until the teacher
records it. “Maintain” suggests FERPA records will be kept in a file
in a school’s record room or on a secure database, but student graders
only handle assignments for a few moments as the teacher calls out
the answers. The Tenth Circuit also erred in concluding that a
student grader is “a person acting for” an educational institution,
§ 1232g(a)(4)(A). That phrase connotes agents of the school. Just as it
would be awkward to say students are acting for the institution when
following their teacher’s instruction to take a quiz, it is equally awkward
to say they are acting for the institution when following their teacher’s
direction to score it. That process can be as much a part of the assign-
ment as taking the test itself. This Court does not think FERPA pro-
hibits such educational techniques. Moreover, saying that students are
acting for the teacher in grading an assignment is different from saying
they are acting for an educational institution in maintaining it. Other
FERPA sections—e. g., § 1232g(b)(4)(A), which requires educational in-
stitutions to maintain a record of access kept with the student’s educa-
tion records—support this Court’s interpretation. The instant holding
is limited to the narrow point that, assuming a teacher’s grade book is
an education record, grades on students’ papers are not covered by the
Act at least until the teacher has recorded them. The Court does not
reach the broader question whether the Act protects grades on individ-
ual assignments once they are turned in to teachers. Pp. 431–436.
233 F. 3d 1203, reversed and remanded.
Kennedy, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Stevens, O’Connor, Souter, Thomas, Ginsburg, and
Breyer, JJ., joined. Scalia, J., filed an opinion concurring in the judg-
ment, post, p. 436.
Jerry A. Richardson argued the cause for petitioners.
With him on the briefs was Karen L. Long.
Deputy Solicitor General Kneedler argued the cause for
the United States as amicus curiae urging reversal. With

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428 OWASSO INDEPENDENT SCHOOL DIST. NO. I–011
v. FALVO
Opinion of the Court
him on the brief were Solicitor General Olson, Acting
Assistant Attorney General Schiffer, Beth S. Brinkmann,
Mark B. Stern, and Colette G. Matzzie.
Will K. Wright, Jr., argued the cause for respondent.
With him on the brief were John W. Whitehead and Steven
H. Aden.*
Justice Kennedy delivered the opinion of the Court.
Teachers sometimes ask students to score each other’s
tests, papers, and assignments as the teacher explains the
correct answers to the entire class. Respondent contends
this practice, which the parties refer to as peer grading, vio-
lates the Family Educational Rights and Privacy Act of 1974
(FERPA or Act), 88 Stat. 571, 20 U. S. C. § 1232g. We took
this case to resolve the issue.
I
Under FERPA, schools and educational agencies receiving
federal financial assistance must comply with certain condi-
tions. § 1232g(a)(3). One condition specified in the Act is
that sensitive information about students may not be re-
leased without parental consent. The Act states that fed-
eral funds are to be withheld from school districts that have
“a policy or practice of permitting the release of education
records (or personally identifiable information contained
*Briefs of amici curiae urging reversal were filed for the National Edu-
cation Association et al. by Robert H. Chanin and Andrew D. Roth; for
the National School Boards Association et al. by Julie Underwood, Julie
E. Lewis, Sheldon E. Steinbach, and Martin Michaelson; for the Oklahoma
Education Association by Richard B. Wilkinson and Brandon R. Webb;
and for the Reporters Committee for Freedom of the Press et al. by Gregg
P. Leslie, Lucy A. Dalglish, and S. Mark Goodman.
Briefs of amici curiae urging affirmance were filed for the Capitol Re-
source Institute et al. by Richard D. Ackerman and Gary G. Kreep; for
the Council of Counseling Psychology Training Programs et al. by Dennis
Owens; and for the Eagle Forum Education & Legal Defense Fund by
Karen Tripp and Phyllis Schlafly.

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therein . . .) of students without the written consent of their
parents.” § 1232g(b)(1). The phrase “education records” is
defined, under the Act, as “records, files, documents, and
other materials” containing information directly related to a
student, which “are maintained by an educational agency or
institution or by a person acting for such agency or institu-
tion.” § 1232g(a)(4)(A). The definition of education records
contains an exception for “records of instructional, supervi-
sory, and administrative personnel . . . which are in the sole
possession of the maker thereof and which are not accessible
or revealed to any other person except a substitute.”
§ 1232g(a)(4)(B)(i). The precise question for us is whether
peer-graded classroom work and assignments are education
records.
Three of respondent Kristja J. Falvo’s children are en-
rolled in Owasso Independent School District No. I–011, in a
suburb of Tulsa, Oklahoma. The children’s teachers, like
many teachers in this country, use peer grading. In a typi-
cal case the students exchange papers with each other and
score them according to the teacher’s instructions, then re-
turn the work to the student who prepared it. The teacher
may ask the students to report their own scores. In this
case it appears the student could either call out the score or
walk to the teacher’s desk and reveal it in confidence, though
by that stage, of course, the score was known at least to the
one other student who did the grading. Both the grading
and the system of calling out the scores are in contention
here.
Respondent claimed the peer grading embarrassed her
children. She asked the school district to adopt a uniform
policy banning peer grading and requiring teachers either to
grade assignments themselves or at least to forbid students
from grading papers other than their own. The school dis-
trict declined to do so, and respondent brought a class action
pursuant to Rev. Stat. § 1979, 42 U. S. C. § 1983 (1994 ed.,
Supp. V), against the school district, Superintendent Dale

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430 OWASSO INDEPENDENT SCHOOL DIST. NO. I–011
v. FALVO
Opinion of the Court
Johnson, Assistant Superintendent Lynn Johnson, and Prin-
cipal Rick Thomas (petitioners). Respondent alleged the
school district’s grading policy violated FERPA and other
laws not relevant here. The United States District Court
for the Northern District of Oklahoma granted summary
judgment in favor of the school district’s position. The
court held that grades put on papers by another student are
not, at that stage, records “maintained by an educational
agency or institution or by a person acting for such agency
or institution,” 20 U. S. C. § 1232g(a)(4)(A), and thus do not
constitute “education records” under the Act. On this rea-
soning it ruled that peer grading does not violate FERPA.
The Court of Appeals for the Tenth Circuit reversed. 233
F. 3d 1203 (2000). FERPA is directed to the conditions
schools must meet to receive federal funds, and as an initial
matter the court considered whether the Act confers a pri-
vate right of action upon students and parents if the condi-
tions are not met. Despite the absence of an explicit au-
thorization in the Act conferring a cause of action on private
parties, the court held respondent could sue to enforce
FERPA’s terms under 42 U. S. C. § 1983. 233 F. 3d, at 1211–
1213. Turning to the merits, the Court of Appeals held that
peer grading violates the Act. The grades marked by stu-
dents on each other’s work, it held, are education records
protected by the statute, so the very act of grading was
an impermissible release of the information to the student
grader. Id., at 1216.
We granted certiorari to decide whether peer grading vio-
lates FERPA. 533 U. S. 927 (2001). Finding no violation
of the Act, we reverse.
II
At the outset, we note it is an open question whether
FERPA provides private parties, like respondent, with a
cause of action enforceable under § 1983. We have granted
certiorari on this issue in another case. See Gonzaga
Univ. v. Doe, post, p. 1103. The parties, furthermore, did

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not contest the § 1983 issue before the Court of Appeals.
That court raised the issue sua sponte, and petitioners did
not seek certiorari on the question. We need not resolve
the question here as it is our practice “to decide cases on the
grounds raised and considered in the Court of Appeals and
included in the question on which we granted certiorari.”
Bragdon v. Abbott, 524 U. S. 624, 638 (1998). In these cir-
cumstances we assume, but without so deciding or express-
ing an opinion on the question, that private parties may sue
an educational agency under § 1983 to enforce the provisions
of FERPA here at issue. Though we leave open the § 1983
question, the Court has subject-matter jurisdiction because
respondent’s federal claim is not so “completely devoid of
merit as not to involve a federal controversy.” Steel Co. v.
Citizens for Better Environment, 523 U. S. 83, 89 (1998) (ci-
tation omitted). With these preliminary observations con-
cluded, we turn to the merits.
The parties appear to agree that if an assignment becomes
an education record the moment a peer grades it, then the
grading, or at least the practice of asking students to call out
their grades in class, would be an impermissible release of
the records under § 1232g(b)(1). Tr. of Oral Arg. 21. With-
out deciding the point, we assume for the purposes of our
analysis that they are correct. The parties disagree, how-
ever, whether peer-graded assignments constitute education
records at all. The papers do contain information directly
related to a student, but they are records under the Act only
when and if they “are maintained by an educational agency
or institution or by a person acting for such agency or insti-
tution.” § 1232g(a)(4)(A).
Petitioners, supported by the United States as amicus
curiae, contend the definition covers only institutional rec-
ords—namely, those materials retained in a permanent file
as a matter of course. They argue that records “maintained
by an educational agency or institution” generally would
include final course grades, student grade point averages,

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v. FALVO
Opinion of the Court
standardized test scores, attendance records, counseling rec-
ords, and records of disciplinary actions—but not student
homework or classroom work. Brief for Petitioners 17;
Brief for United States as Amicus Curiae 14.
Respondent, adopting the reasoning of the Court of Ap-
peals, contends student-graded assignments fall within the
definition of education records. That definition contains an
exception for “records of instructional, supervisory, and ad-
ministrative personnel . . . which are in the sole possession
of the maker thereof and which are not accessible or revealed
to any other person except a substitute.” § 1232g(a)(4)(B)(i).
The Court of Appeals reasoned that if grade books are not
education records, then it would have been unnecessary for
Congress to enact the exception. Grade books and the
grades within, the court concluded, are “maintained” by a
teacher and so are covered by FERPA. 233 F. 3d, at 1215.
The court recognized that teachers do not maintain the
grades on individual student assignments until they have re-
corded the result in the grade books. It reasoned, however,
that if Congress forbids teachers to disclose students’ grades
once written in a grade book, it makes no sense to permit
the disclosure immediately beforehand. Id., at 1216. The
court thus held that student graders maintain the grades
until they are reported to the teacher. Ibid.
The Court of Appeals’ logic does not withstand scrutiny.
Its interpretation, furthermore, would effect a drastic alter-
ation of the existing allocation of responsibilities between
States and the National Government in the operation of the
Nation’s schools. We would hesitate before interpreting the
statute to effect such a substantial change in the balance of
federalism unless that is the manifest purpose of the legisla-
tion. This principle guides our decision.
Two statutory indicators tell us that the Court of Appeals
erred in concluding that an assignment satisfies the definition
of education records as soon as it is graded by another stu-
dent. First, the student papers are not, at that stage,

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Opinion of the Court
“maintained” within the meaning of § 1232g(a)(4)(A). The
ordinary meaning of the word “maintain” is “to keep in exist-
ence or continuance; preserve; retain.” Random House Dic-
tionary of the English Language 1160 (2d ed. 1987). Even
assuming the teacher’s grade book is an education record—
a point the parties contest and one we do not decide here—
the score on a student-graded assignment is not “contained
therein,” § 1232g(b)(1), until the teacher records it. The
teacher does not maintain the grade while students correct
their peers’ assignments or call out their own marks. Nor
do the student graders maintain the grades within the
meaning of § 1232g(a)(4)(A). The word “maintain” suggests
FERPA records will be kept in a filing cabinet in a records
room at the school or on a permanent secure database, per-
haps even after the student is no longer enrolled. The stu-
dent graders only handle assignments for a few moments as
the teacher calls out the answers. It is fanciful to say they
maintain the papers in the same way the registrar maintains
a student’s folder in a permanent file.
The Court of Appeals was further mistaken in concluding
that each student grader is “a person acting for” an educa-
tional institution for purposes of § 1232g(a)(4)(A). 233 F. 3d,
at 1216. The phrase “acting for” connotes agents of the
school, such as teachers, administrators, and other school em-
ployees. Just as it does not accord with our usual under-
standing to say students are “acting for” an educational in-
stitution when they follow their teacher’s direction to take a
quiz, it is equally awkward to say students are “acting for”
an educational institution when they follow their teacher’s
direction to score it. Correcting a classmate’s work can be
as much a part of the assignment as taking the test itself.
It is a way to teach material again in a new context, and it
helps show students how to assist and respect fellow pupils.
By explaining the answers to the class as the students cor-
rect the papers, the teacher not only reinforces the lesson
but also discovers whether the students have understood

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v. FALVO
Opinion of the Court
the material and are ready to move on. We do not think
FERPA prohibits these educational techniques. We also
must not lose sight of the fact that the phrase “by a person
acting for [an educational] institution” modifies “maintain.”
Even if one were to agree students are acting for the teacher
when they correct the assignment, that is different from
saying they are acting for the educational institution in
maintaining it.
Other sections of the statute support our interpretation.
See Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 809
(1989) (“It is a fundamental canon of statutory construction
that the words of a statute must be read in their context and
with a view to their place in the overall statutory scheme”).
FERPA, for example, requires educational institutions to
“maintain a record, kept with the education records of each
student.” § 1232g(b)(4)(A). This record must list those
who have requested access to a student’s education records
and their reasons for doing so. Ibid. The record of access
“shall be available only to parents, [and] to the school official
and his assistants who are responsible for the custody of such
records.” Ibid.
Under the Court of Appeals’ broad interpretation of edu-
cation records, every teacher would have an obligation to
keep a separate record of access for each student’s assign-
ments. Indeed, by that court’s logic, even students who
grade their own papers would bear the burden of maintain-
ing records of access until they turned in the assignments.
We doubt Congress would have imposed such a weighty ad-
ministrative burden on every teacher, and certainly it would
not have extended the mandate to students.
Also, FERPA requires “a record” of access for each pupil.
This single record must be kept “with the education rec-
ords.” This suggests Congress contemplated that education
records would be kept in one place with a single record of
access. By describing a “school official” and “his assistants”
as the personnel responsible for the custody of the records,

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FERPA implies that education records are institutional rec-
ords kept by a single central custodian, such as a registrar,
not individual assignments handled by many student graders
in their separate classrooms.
FERPA also requires recipients of federal funds to provide
parents with a hearing at which they may contest the accu-
racy of their child’s education records. § 1232g(a)(2). The
hearings must be conducted “in accordance with regulations
of the Secretary,” ibid., which in turn require adjudication
by a disinterested official and the opportunity for parents to
be represented by an attorney. 34 CFR § 99.22 (2001). It
is doubtful Congress would have provided parents with this
elaborate procedural machinery to challenge the accuracy of
the grade on every spelling test and art project the child
completes.
Respondent’s construction of the term “education records”
to cover student homework or classroom work would impose
substantial burdens on teachers across the country. It
would force all instructors to take time, which otherwise
could be spent teaching and in preparation, to correct an
assortment of daily student assignments. Respondent’s
view would make it much more difficult for teachers to give
students immediate guidance. The interpretation respond-
ent urges would force teachers to abandon other customary
practices, such as group grading of team assignments. In-
deed, the logical consequences of respondent’s view are all
but unbounded. At argument, counsel for respondent
seemed to agree that if a teacher in any of the thousands of
covered classrooms in the Nation puts a happy face, a gold
star, or a disapproving remark on a classroom assignment,
federal law does not allow other students to see it. Tr. of
Oral Arg. 40.
We doubt Congress meant to intervene in this drastic fash-
ion with traditional state functions. Under the Court of Ap-
peals’ interpretation of FERPA, the federal power would ex-
ercise minute control over specific teaching methods and

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v. FALVO
Scalia, J., concurring in judgment
instructional dynamics in classrooms throughout the country.
The Congress is not likely to have mandated this result, and
we do not interpret the statute to require it.
For these reasons, even assuming a teacher’s grade book
is an education record, the Court of Appeals erred, for in all
events the grades on students’ papers would not be covered
under FERPA at least until the teacher has collected them
and recorded them in his or her grade book. We limit our
holding to this narrow point, and do not decide the broader
question whether the grades on individual student assign-
ments, once they are turned in to teachers, are protected
by the Act.
The judgment of the Court of Appeals is reversed, and
the case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
Justice Scalia, concurring in the judgment.
I agree with the Court that peer-graded student papers
do not constitute “education records” while they remain in
the possession of the peer grader because, as the Court ex-
plains, a student who grades another’s work is not “a person
acting for” the school in the ordinary meaning of that phrase.
Ante, at 432, 433. I cannot agree, however, with the other
ground repeatedly suggested by the Court: that education
records include only documents kept in some central reposi-
tory at the school. Ante, at 433 (“The word ‘maintain’ sug-
gests FERPA records will be kept in a filing cabinet in a
records room at the school or on a permanent secure
database . . . . It is fanciful to say [student graders] main-
tain the papers in the same way the registrar maintains a
student’s folder in a permanent file”), 435 (“FERPA implies
that education records are institutional records kept by a
single central custodian, such as a registrar . . .”).
As the Court acknowledges, ante, at 429, 432, Congress
expressly excluded from the coverage of FERPA “records of

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Scalia, J., concurring in judgment
instructional . . . personnel . . . which are in the sole posses-
sion of the maker thereof and which are not accessible or
revealed to any other person except a substitute,” 20 U. S. C.
§ 1232g(a)(4)(B)(i). Respondent argues that this exception,
which presumably encompasses many documents a teacher
might create and keep in the classroom, including a grade
book, would be rendered superfluous if education records
included only “institutional records kept by a single central
custodian, such as a registrar.” We do not, of course, read
statutes in such fashion as to render entire provisions inop-
erative. United States v. Nordic Village, Inc., 503 U. S. 30,
35–36 (1992).
The Court does not explain why respondent’s argument
is not correct, and yet continues to rely upon the “central
custodian” principle that seemingly renders the exception for
“records of instructional . . . personnel” superfluous. Worse
still, while thus relying upon a theory that plainly excludes
teachers’ grade books, the Court protests that it is not decid-
ing whether grade books are education records, ante, at 433.
In my view, the Court’s endorsement of a “central custodian”
theory of records is unnecessary for the decision of this case,
seemingly contrary to § 1232g(a)(4)(B)(i), and (when com-
bined with the Court’s disclaimer of any view upon the status
of teachers’ grade books) incurably confusing. For these
reasons, I concur only in the judgment of the Court.