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.
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.
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.
Most of the time students and parents have challenged school grades, the courts have upheld the educators and policies in question. Therefore, you should familiarize yourself with district policies about grading and follow them in your grading practices. Some grade reduction and “penalty” policies do not follow sound and recommended educational practice. For example, a grade is intended to convey information about academic achievement, and reducing a grade for reasons of behavior does not fit this purpose. If a policy seems educationally misguided, the best legal advice would be to follow the policy while it is in force, and work within the district to change it.
Appeals Policies and Due Process
The two main legal principles under which students and parents have challenged students’ grades are both from the 14th Amendment of the U.S. Constitution. These two are the due process provision and the equal protection provision.
The due process clause says that the state (or its actorsin the case of grading, that would be the school board, a superintendent, a principal, or a teacher) cannot deprive anyone of “life, liberty, or property, without due process of law” (U.S. Constitution, Amendment XIV). Due process has two aspects: procedural due process and substantive due process. Procedural due process requires that notice be given to those affected by a decision and that a fair hearing take place; substantive due process requires that the content of the proceedings be fair. In the case of grading, that means grading policies and appeals processes should be in place and clear, and that hearings about grades be conducted fairly.
The equal protection clause says that a person acting for the state cannot deny anyone “the equal protection of the laws” (U.S. Constitution, Amendment XIV). Equal protection cases are all different, but they share the common theme that decision makers cannot treat differently people who are alike in all ways relevant to the decision being made. In the case of grading, that means all students to whom a grading policy applies should be treated in the same way according to that policy.
These cases can be very complicated legally and are generally more about due process or equal protection than about the grades per se. The best advice we can give here is for teachers and school districts to review their grading policies and make sure there are procedures for appeal and due process and that all students are treated equitably.
Treating students equitably, communicating clearly about grading policies and practices, keeping records confidential, and hearing student appeals are not only “defensive” acts to protect against student litigation. They are positive, proactive teacher responsibilities.
Teachers should find out how grading authority is delegated in their state and district. If a student or parent challenges a grade you assign, does the policy say your principal or school board can change it? In some places the answer would be yes, and in others no. It’s not that you would grade differently under the different scenarios. The information in this book should help you establish defensible grading practices and keep good records. However, it’s important for you to understand your place in the overall grading policy context in which you work.
The question of whether grades are a protected form of teacher expression, under the 1st Amendment of the U.S. Constitution, has been decided in different ways by different courts. If grading practices are a form of expression (protected or not), then one can also view instructional practices as a form of teacher expression. Both should work together to support and accurately report student learning. Current standards-based language would call this alignment.
In summary, legal issues in grading may have been intensified by the current litigious climate and the increased stakes attached to accountability for student achievement. There is not a lot of specific legislation to give guidance on grading practices. Rather, most grading issues are a matter of policy. Thus at present, thoughtful policies, clearly communicated and uniformly applied, are the key to legally defensible grading practices.
This chapter has explored the historical, social, and legal contexts for grading. Few grading issues or methods are really new. The main difficulty driving grading issues both historically and currently is that grades are pressed to serve a variety of conflicting purposes. The next chapter will add educational psychology as another context in which to think about grades. As you learn about the role of grades in learning and motivation, you will realize that students’ own uses of grades add to the complexity of the multiple purpose problem in grading. Nevertheless, it is better to understand and to deal with these multiple purposes and contexts than to ignore them. They can inform decisions you make in your own grading practices.
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