Legal Context of Grading

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Education law, and therefore the legal context for grading, differs from state to state. You must check grading policies and education law in your own state and district. Most often, the authority for grading is vested in the school board but delegated to educators in the school district. The delegation is a matter of policy more than law, and the level of delegation (superintendent, principal, teacher, or a mixture) varies.

For a state-by-state survey of legislation that refers to grading, see McElligott and Brookhart (2008). The wide variation from state to state was the main finding from our review of state legislation and case law related to grading. There were, however, a few general conclusions that we present below, with the repeated caution to check your own state when you begin teaching.

Confidentiality

Report card grades in official school records qualify as information subject to confidential treatment under the Family Education Rights and Privacy Act (FERPA). Grades recorded in teachers’ personal grade books probably do not; cases about this issue have been decided in different ways. Teachers’ grading practices are not subject to legal challenge under FERPA. A U.S. Supreme court case involving peer grading was decided in 2002 in Owasso Ind. Sch. Dist. v. Falvo. The court held that peer grading does not constitute official educational records. While confidentiality as a legal issue extends only to official educational records, there are times that student perception of fairness (see Chapter 3) is just as important for sound grading practices as the legal basis. Therefore, “public” declaration of grades, like posting scores on charts or calling out scores after peer grading, is not recommended even though it is legal.

Grade Penalties

Students have brought suit to challenge the lowering of their grades for absenteeism or disciplinary reasons. Here are two contradictory cases about students using alcohol on a field trip. In Texas, students who drank alcohol on a field trip received no credit for work assigned while they were away, and their overall grade for that grading period was reduced three percentage points (New Braunfels Indep. Sch. Dist. v. Armke, 1983). The court upheld the grade reduction. In Pennsylvania, however, a student who drank alcohol on a field trip had her overall quarterly grades in every class reduced by two percentage points for every day of suspension, for a total 10% reduction for 5 days of suspension. The court found the grade reduction to be unfair and illegal (Katzman v. Cumberland Valley Sch. Dist., 1984).

And here are three contradictory cases about lowering grades for absenteeism. In Connecticut, a school board’s policies said a student would receive no credit in any year-long class after 24 absences (whether unexcused or excused) and would get a 5% reduction in a course grade for every unexcused absence beyond the first. A student failed one class under the first policy and had his passing grades in three classes reduced to failing grades under the second policy. The court upheld the policies (Campbell v. Bd. of Educ., 1980). In Kentucky (Dorsey v. Bale, 1975) and Colorado (Gutierrez v. Sch. Dist. R-1, 1978), however, school board policies that reduced students’ grades because of absences were found to be invalid because those policies were found to breach state statutes.