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Supreme Court v. Third Grade

Tao Yue

The Supreme Court of the United States. A mighty arena of great principles and weighty decisions. Federalism. Slavery. Antitrust laws. Abortion. Presidential elections. And, of course, peer grading of quizzes in elementary school.

Yes, indeed, peer grading. The increasing value of a good education has led to an environment where parents spend millions to hook their toddlers on phonics and other educational products which purport to remedy the alleged deficiencies of the public schools. In such a climate, it comes as no surprise that an issue like peer grading would make it all the way up to the Supreme Court. It did, in Owasso Independent School Dict. No I-011i v. Falvo, a case whose decision was handed down just days ago.

Falvo, the mother of three students in the school system, challenged peer grading on the ground that it was embarrassing her children. The case comes with a twist, though. The students involved were special education students, savaged by their insensitive classmates. The embarrassment discussed is a bit more intense than just a little shamefacedness at a “B.” In one method of peer grading, two students would swap papers, the teacher would read out answers, the students would mark them, exchange the papers again, then report their own grades. They were given the option of calling the grades out or walking up to the front of the room and showing the marked-up quiz to the teacher. Of course, the fact that one other person in the room already knows the grade serves to keep the student honest should he decide to announce the grade to the teacher, and thereby, to the class. Sometimes the grader announces the grade as well, and other variations are possible on the theme.

In the first form of peer grading, students have the option of not revealing their grade except to the teacher. In the second form, no such choice exists. However, eliminating peer grading will not eliminate embarrassment due to grades. Savage bullies can and probably still will announce low grades, looking over shoulders, sneaking a peek when the student is out of his desk. The real problem is insensitivity and a thrill in successful humiliation.

This is true not just from a special education angle. There are bullies in schools everywhere. And the next time an overcompetitive third-grader sneaks a peek at his peer’s score, could the Supreme Court step in and order the third grader to stop looking at others’ grades? Of course not. Why, then, should the Supreme Court ban peer grading? They are both manifestations of the same urge to humiliate.

Interestingly, the Supreme Court ignored the special education angle completely in its opinion. Perhaps they looked upon this as a touch of color in their weighty days of hearings. News accounts showed the Justices reminiscing fondly about their own schoolboy (schoolgirl for O’Connor and Ginsburg) days, remarking on their own embarrassing little moments.

More likely, they saw the problem noted above, peer grading, is not done specifically to humiliate special education students. It is done to save teachers time, and also serves as a learning tool as solutions are explained. Eliminating peer grading would remove its positive benefits for the class as a whole while not eliminating the humiliation suffered by some.

The case, though, was built upon the Buckley Amendment, which protects the privacy of educational records, and claims that graded papers constitute a form of “record.” This was too far a stretch to be credible to the Justices. However, the way the Supreme Court works is that it responds to legal complaints, so the majority opinion filled half a dozen pages with discussions of the meaning of words like “record” in the context of the law. At the same time, Justice Scalia, one of the most conservative members of the Court who nevertheless stuns observers every once in a million cases by joining J. P. Stevens in a two-man dissent, wrote an opinion which disagrees with all of the Court’s rationale and ends, “The Court’s ... theory of records is... incurably confusing ... I concur only in the judgment of the Court.”

In defeat, Falvo claims that she at least brought an important issue to the attention of the nation. Or did she? Most news accounts treated this as light entertainment, making it seem as though a mother had sued to protect her precious little children from a little bit of embarrassment caused by their own lack of hard work, almost like the way fathers nowadays beat each other up over their kids’ hockey games. The case was about peer grading, and so everyone, from the Supreme Court to the news media, treated that as the main concern.

There is no problem with that. When an issue is brought up in a legal challenge, it should be directly addressed. However, Falvo’s mistake is in choosing the wrong issue. The problem is not peer grading; it is, instead, the sometimes very cruel nature of children. Both issues are sociological and educational issues, not legal issues, and hitchhiking onto a skewed interpretation of a law passed for an entirely different purpose did not convince anyone and, rather than highlight the real problem, buried it as the focus was placed onto the fronting issue. That is the really sad thing about this episode; that the Supreme Court, doing its job earnestly as always, had to decide a nonissue to prevent it from doing unanticipated damage to regular education.