Opposition Brief — Owasso Independent School Dist. No. I-011 v. Falvo

No. 00-1073

OFFICE OF THE CLERK

In The

Supreme Court of the United States

+

OWASSO INDEPENDENT SCHOOL DISTRICT NO.

I-011, a/k/a OWASSO PUBLIC SCHOOLS;

DALE JOHNSON, individually and in his official

capacity as Superintendent; LYNN JOHNSON,

individually and in her official capacity as Assistant

Superintendent; RICK THOMAS, individually and

in his official capacity as Principal,

Petitioners,

Vv.

KRISTJA J. FALVO, as parent and next friend of her

minor children, ELIZABETH PLETAN, PHILIP

PLETAN, and ERICA PLETAN,

Respondent.

.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

+

BRIEF IN OPPOSITION

+

Witt K. Wricurt, Jr.*

P.O. Box 423

Claremore, OK 74018-0423

(918) 749-7378

Counsel for Respondent

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 42-2831

QUESTION PRESENTED

Whether the Family Education Rights and Privacy

Act, 20 U.S.C. § 1232g prohibits an educational institu-

tion’s policy or practice of allowing its students to grade

one another’s tests and other work and/or to call out

their own grades in class.

TABLE OF CONTENTS

Page

OPERONS BELOW. ....cccccceccccessescausnenenne 1

JURISDICTION ............ se 1

STATUTORY PROVISION INVOLVED.............. 1

STATEMENT OF THE CASE............:20eeeeeees 1

A. NATURE OF THE CASE ............cscescc00. 1

B. DISPOSITION GELOW.....cccsccccsccscsuceunen 2

REASONS FOR DENYING THE PETITION......... 4

I. THERE IS NO CONFLICT AMONG THE CIR-

II. THE DECISION IS IN HARMONY WITH THE

PLAIN LANGUAGE AND PURPOSE OF THE

PEDERAL GTATUES occ cccsccccecssseesnaneees 4

Ill. THE TENTH CIRCUIT CORRECTLY REJECTED

THE DEPARTMENT OF EDUCATION’S INFOR-

MAL LETTER OPINION UNDER CHEVRON,

SKIDMORE AND CHRISTENSEN ............. 8

IV. OWASSO HAS MODIFIED AND CORRECTED

ITS GRADING PRACTICES WITH LITTLE OR

NO INCONVENIENCE TO THE SCHOOL DIS-

TRICT, ITS TEACHERS OR ITS STUDENTS... 9

CONCLEIGIOIN o.oo ccccccscccscsscosecsuenennenee 12

NP App. 1

a es

TABLE OF AUTHORITIES

Page

Cases

Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984)................. 8, 9

Christensen v. Harris County, 529 U.S. 576 (2000)....8, 9

Skidmore v. Swift & Co., 323 U.S. 134 (1944) ........ 8, 9

STATUTES

Family Education Rights and Privacy Act, 20

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Family Education Rights and Privacy Act, 20

WSL. § 1ZSaalaNENBM). ... 2. nn ccccccccccsceess 5, 6

Family Education Rights and Privacy Act, 20

Bes O MUEIEIUEIED ccccccccccccccesccscscccs 6, 11

Family Education Righ’s and Privacy Act, 20

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Family Education Rights and Privacy Act, 20

BPs © BRMINOIUARD occ ccccccccccccccccccccccces 7

Family Education Rights and Privacy Act, 20

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Th i cc cedseccocccccesccccccce: 1, 2, 3, 4, 11

Iv 1

TABLE OF AUTHORITIES - Continued OPINIONS BELOW

Page

The Opinions below are attached to petitioner’s Peti-

OTHER | tion at Appendices A-D.

Kurt, Grading lawsuit ruling expected to bring warn-

ing for teachers, Shawnee News-Star Online, °

Tuesday, August 1, 2000 ........ 22... - cece cee eeuee 12 |

U.S. Code Cong. & Admin. News, at 4251 (1974) : JURISDICTION

_—— 93-1026, 93rd Congs., 2nd Sess. 5 | Petitioner adequately invokes this Court's jurisdic-

sicesscentdenudnd catenin namie males tion under 28 US.C. § 1254(1). Subject matter jurisdiction

is likewise proper under 42 U.S.C. § 1983.

SI

STATUTORY PROVISION INVOLVED

This case involves the statutory interpretation of the

Family Education Rights and Privacy Act, 20 U.S.C.

§ 1232g (“FERPA”). Petitioner sets forth the full text of

FERPA at Appendix E-1.

¢

STATEMENT OF THE CASE

A. NATURE OF THE CASE

The Owasso school district allowed its teachers to

engage in the practice of having students exchange tests

and quizzes for grading. The teacher then asked the

students to “call out” their own grades to the teacher. The

teachers testified that the purpose for “calling out” the

grade was to record the grade in the grade book.

Philip Pletan, the son of respondent, was a 10 year

old 5th grade student at Owasso Middle School. Philip

was a special education student being “mainstreamed”

into the regular classroom. Philip was subjected to humil-

iation, ridicule, and loss of privacy caused by the practice

of publicizing his private and confidential grades to his

peers. The humiliation exacerbated when he entered the

6th grade and continued when he was in the 7th grade,

where children at that age, when given the opportunity,

were notorious for humiliating him as a result of the

publication of his grades. During the 1997-98 and 1998-99

school years, respondent complained about the grading

practice to the Owasso school district superintendent, as

well as the teachers, that this policy needlessly subjected

Philip and her other children Erica and Elizabeth to

intimidation and indignity by allowing other students to

learn their grades. The school district refused to disallow

the grading practice.

B. DISPOSITION BELOW

In October 1998, respondent brought a class action

lawsuit pursuant to 42 U.S.C. § 1983 against the Owasso

school district, the superintendent, the assistant superin-

tendent, and principal alleging that the grading practice

violated the Fourteenth Amendment privacy rights and

FERPA. After filing her complaint, respondent sought a

temporary restraining order enjoining the district from

engaging in the practice at issue. After an evidentiary

hearing, the district court denied the relief requested and

issued its findings of fact and conclusions of law.

Before the district court resolved whether to certify

the class, respondent moved for declaratory and sum-

mary judgment on her two claims. Owasso filed a cross-

motion for summary judgment on both claims. The dis-

trict court concluded the grading practice did not impli-

cate a constitutionally-protected privacy interest.

Additionally, the district court ruled that the grades sub-

ject to the grading practice did not constitute “education

records” under FERPA. Respondent filed her motion to

reconsider. The district court denied that motion.

On appeal to the United States Court of Appeals for

the Tenth Circuit, respondent asserted that the district

court erroneously granted summary judgment in favor of

the defendants, because the grading practice violated

both the Fourteenth Amendment and FERPA. The court

of appeals held that although the Fourteenth Amendment

did not preclude the grading practice, FERPA did.

Thus, the court of appeals affirmed the district

court’s grant of summary judgment on the constitutional

claim and reversed the grant of summary judgment on

the FERPA claim. The court of appeals also affirmed the

grant of summary judgment in favor of the individual

defendants on the respondent’s claim for damages, but

reversed the judgment on the respondent’s claim for

injunctive relief. Notably, the petitioners never raised

issue with, and do not now raise issue with, the court's

jurisdiction under § 1983. Nevertheless, the court of

appeals addressed the jurisdictional issue and, in accord

with all circuit courts, correctly held that a private right

of action under § 1983 may be brought by respondent.

Petitioner filed for a rehearing with suggestion for en

banc review, which was denied. Although a majority of

the active judges denied the request, the panel deter-

mined on its own motion, to amend the original decision.

Notably, the argument set forth in petitioners’ rehearing

request was only raised for the first time in their brief for

en banc review. In its amended opinion the court of

appeals addressed those additional concerns the school

district had. Circuit Judge Kelly filed his dissenting opin-

ion from the court’s denial for rehearing en banc.

¢

REASONS FOR DENYING THE PETITION

I. THERE IS NO CONFLICT AMONG THE CIRCUITS

This case raises a question of first impression. As

such, there is no conflict among the circuit courts, or any

lower courts interpreting the plain language of the stat-

utorily defined term “education records.” Moreover, all

circuit courts concur that FERPA provides to a student

and parent a private right of action remedied under

§ 1983. Pet. App. at A-10. For these reasons, this Court

should deny the petitioners’ writ for certiorari.

Il. THE DECISION IS IN HARMONY WITH THE

PLAIN LANGUAGE AND PURPOSE OF THE FED-

ERAL STATUTE

The Tenth Circuit correctly held that the “plain lan-

guage of the relevant provision of FERPA, 20 U.S.C.

§ 1232g(b)(1), reveals that it is intended to protect the

privacy of students and their parents.” The dual purpose

of FERPA is to (i) ensure parents access of information

contained within a students’ “education records,” and at

the same time (ii) protect the information from

unauthorized disclosure. Congress was concerned to assure

that school district practices would “not invade the privacy

of students or pose any threat of psychological damage to

them.” See U.S. Code Cong. & Admin. News, at 4251

(1974) (Sen.Rep.No. 93-1026, 93rd Congs., 2nd Sess. 187).

FERPA prohibits educational agencies or institutions

from maintaining “a policy or practice of permitting the

release of education records (or personally identifiable

information contained therein .. . ) of students without

the written consent of their parents” to anyone other than

statutorily-defined authorities, which does not include other

students. 20 U.S.C. § 1232g(b)(1) (emphasis added). Thus,

the plain language is consistent with its dual purpose by

prohibiting the release of “education records” to anyone

other than the student’s parent or school authority.

FERPA clearly prohibits the teacher from disclosing

the grade information in the teacher’s grade book to

anyone other than a substitute. § 1232g(a)(4)(B)(i) (the

grade book exception). This section provides that infor-

mation contained in records of instructional personnel,

such as grades, shall “not [be] accessible or revealed to

any other person except a substitute.” The court of

appeals explained that “[i]f grade books never constitute

‘education records,’ teachers would be free under FERPA

to reveal them to anyone, thus obviating the need to

provide in the statute” the language: “and which are not

accessible or revealed to any other person except a substi-

tute.” Pet. App. at A-22, 23.

The Tenth Circuit further explained that:

“liJf Congress intended FERPA to preclude a

teacher from revealing to one student the grades

of another student when written in a grade

book, it would be incongruous to permit a

teacher to disclose or allow the dissemination of

those grades to other students immediately

before recording them in the grade book or not-

ing them in some similar way which serves the

same purpose as a grade book record.” Pet.

App. at A-25.

Congress obviously recognized that since the infor-

mation contained within a teacher’s grade book would

necessarily include all students’ grades, allowing a parent

the right to access her child’s “education records” (which

includes the “grade book”) would necessarily disclose the

grade information of another student. This result would

be an absurdity and render the statute superfluous. By its

own terms, § 1232g(a)(4)(B)(i) (the grade book exception)

prevents disclosure of and access to another student's

grade information. Accordingly, there is no statutory

ambiguity.

Indeed, the only information that may be released by

the school district is identified in FERPA as “directory

information.” 20 U.S.C. § 1232g(a)(5)(A). Thus, “educa-

tion records” relating to a student which may be released

without parental consent include the following:

“the student’s name, address, telephone listing,

date and place of birth, major field of study,

participation in officially recognized activities

and sports, weight and height of members of

athletic teams, dates of attendance, degrees and

awards received, and the most recent previous

educational agency or institution attended by

the student.” Pet. App. at E-5.

The statutory list does not include stvdents’ test

scores or grades. Congress could have specifically listed

grades or test scores as “directory information,” yet, it

did not. Thus, any personally identifiable information not

listed as “directory information” shall not be disclosed,

disseminated or revealed to anyone other than the stu-

dent’s parent or school official.

In its petition for rehearing, Owasso argued, for the

first time, that two provisions within FERPA, which are

not at issue, undermine the court’s interpretation. Peti-

tion at 23-28. The court of appeals, however, properly

found that the statutory definition for the term “educa-

tion records” provided the clear answer to the only ques-

tion raised. Neither of the two provisions demonstrate

Congressional intent to exclude student grades from the

definition of “education records.” Indeed, the court found

that “the notion that a parent should have a right to raise

such a challenge [to the accuracy of grades] is neither

beyond the pale of possible Congressional intent, nor

does it ‘trivialize’ such intent.” Pet. App. at A-26.

Owasso further contends that § 1232g(b)(4)(A) viti-

ates the court’s interpretation. Petition at 23-28. Nothing,

however, in the court's interpretation of the defined term

“education records” would prohibit a central custodian

from maintaining an access record, as the school district

seems to fear.

In sum, the plain language of FERPA demonstrates

that the term “education records” encompasses the

grades at issue in this case. Because the decision is in

harmony with the plain language and purpose of the

statute, this Court should deny the petition for writ of

certiorari.

Ill. THE TENTH CIRCUIT CORRECTLY REJECTED

THE DEPARTMENT OF EDUCATION’S INFOR-

MAL LETTER OPINION UNDER CHEVRON,

SKIDMORE AND CHRISTENSEN

The Tenth Circuit properly rejected the district

court’s deference to a Department of Education informal

letter opinion under Chevron, Skidmore, and Christensen.

The district court erred in granting deference to the

Department of Education’s Family Compliance Office

(“FPCO”) opinion letter (“Rooker letter”). The court of

appeals rejected the Rooker letter for two reasons. First,

the court found the meaning of the term “education

records” was clear from the statute itself. A court may

only defer to an agency’s interpretation if a statute is

deemed ambiguous under Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 842-44 (1984).

Pet. App. at A-18. Second, the court of appeals explained

that,

“even if the relevant statutory language was

ambiguous, the Supreme Court recently

announced that Chevron deference does not

extend to an interpretation contained in an opin-

ion letter issued by the administering agency”

under Christensen v. Harris County, 529 U.S. 576

(2000). Pet. App. at A-19.

Additionally, the court of appeals held that the

Rooker letter would carry minimal persuasive power

under Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)

since the letter contained a disclaimer that the FPCO had

not thoroughly considered the issue before the court. Pet.

App. at A-19, 20. The letter contained the following:

“Because you do not fully explain the details

surrounding the activities you identify, it would

not be appropriate for this Office to comment on

whether the District’s participation in the activities

would violate rights afforded parents by FERPA.”

Pet. App. at F-3.

Rooker explains that an educational agency is prohib-

ited by FERPA from publishing or posting the grades of

students if personally identifiable. Yet, without reason or

logic, he opines that FERPA would not prohibit the prac-

tice of “calling out” that grade. As the court of appeals

found, the Rooker letter is “bereft of any reasoning

underlying the rather conclusory opinion that grades

written down by other students and announced to the

teacher are not maintained” by the school district. Pet.

App. at A-20.

The Rooker letter ignores the broad language of the

term “education records,” the narrow term defining

“directory information,” and the dual purpose of FERPA.

Accordingly, the Tenth Circuit correctly rejected the

FPCO’s informal letter opinion under Chevron, Skidmore,

and Christensen.

IV. QWASSO HAS MODIFIED AND CORRECTED

ITS GRADING PRACTICES WITH LITTLE OR

NO INCONVENIENCE TO THE SCHOOL DIS-

TRICT, ITS TEACHERS OR ITS STUDENTS

Owasso’s assistant superintendent has recently testi-

fied by sworn affidavit that the school district is in full

compliance with the Tenth Circuit order and has mod-

ified its grading practice such that the teachers do not

disclose grades to anyone without ‘authorized consent.

10

Res. App. at 6-7. Moreover, there exists no evidence in the

record that would suggest that Owasso, or any other

school district, could not properly educate students with-

out disclosing grades.

Indeed, the district court admonished Owasso cast-

ing serious doubt as to whether “the grading method

under review could not undergo modification while still

properly educating students.” Pet. App. at B-5. The dis-

trict court stated that it would be hard-pressed to find

that this grading practice is supported by any compelling

interest. Id. Judge Kern explained that “the record reflects

that many teachers, even in this immediate geographical

area, do not employ the student grading method.” Id.

The court of appeals decision, taken together with

the undisputed evidence in the record, demonstrates that

Owasso and its teachers could easily modify, and have

indeed modified, their grading practices with little or no

burden to the school district, the teachers or the students.

Since the record in this case establishes that other

teachers and school districts are able to meet the same

curriculum objectives without disclosing students’

grades, petitioners’ fear that the decision will disrupt a

significant educational practice is neither supported by

the facts nor the law of this case.

As the lower court explained, there exist reasonable

alternatives to accomplish the curriculum objectives

which would not pose any onerous burden on the school

district or the teachers. The court explained that FERPA

forbids neither the practice nor the benefits of allowing

immediate feedback or relieving the teacher of the time-

consuming task of correcting tests. Pet. App. at A-28

11

fn.13. “There necessarily exist further alternatives to the

practice of having students correct other students’ papers

without parental consent or anonymity.” Id. “The statute

does not prohibit students from correcting papers if done

anonymously or with the consent of parents.” Id. The

record reveals several means to accomplish the educa-

tional objectives desired without releasing the students’

grades. Even the school district concedes that the “stu-

dents’ privacy may be maintained by use of confidential

identification numbers on their papers rather than the

students’ names.” Res. App. at 7. Indeed, the fact that

other teachers and school districts do not engage in this

practice undermines petitioners’ speculation.

Petitioners’ concern of not being able to disclose

honors and awards is resolved by the statutory grant of

authority to release such student awards as provided in

the “directory information.” Pet. App. at E-5. Section

1232g(a)(5)(A) specifically allows the release of student

award information. Id.

The teachers’ speculation of personal liability under

§ 1983 is likewise unfounded, since FERPA liability

would arise only from a school district official policy or

practice of disclosing grades. Thus, any inadvertent

release of grade information would not subject a teacher

or the school district to liability if the conduct was not an

official policy or practice. Quoted by the Associated Press

in the August issue of the Shawnee News-Star Online, the

Oklahoma Education Association president, Carolyn

Crowder, explained that this ruling would not tap:

change the way teachers teach.” And, the teachers will

12

“continue to use good sense in protecting students’ pri-

vacy.” Kurt, Grading lawsuit ruling expected to bring warn-

ing for teachers, Shawnee News-Star Online, Tuesday,

August 1, 2000.

e

CONCLUSION

The Tenth Circuit’s decision comports with the pur-

poses and structure Congress intended to achieve in pro-

tecting students’ educational records. Petitioners’

speculative fears are unfounded by evidence of its imme-

diate modification of the practice and available alterna-

tives to trading tests, grading each others work and

calling out those grades. Respondent maintains the deci-

sion is without error and, therefore the petition for cer-

tiorari should be denied.

Respectfully submitted,

Witt K. Wricut, Jr.*

P.O. Box 423

Claremore, OK 74018-0423

(918) 749-7378

Counsel for Respondent

"Counsel of Record

we

eee —_

App. 1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OKLAHOMA

KRISTJA J. FALVO, as parent

and next friend of her minor

children, ELIZABETH PLETAN,

PHILIP PLETAN, and ERICA

PLETAN; and on behalf of all

others similarly situated,

Plaintiffs,

Case No.

98CV 0765K (J)

vs.

OWASSO INDEPENDENT

SCHOOL DISTRICT NO. 1-011,

a/ka/ OWASSO PUBLIC

SCHOOLS; DALE JOHNSON,

individually and in his official

capacity as Superintendent;

LYNN JOHNSON, individually

and in her official capacity as

Assistant Superintendent; RICK

THOMAS, individually and in

his official capacity as

Principal; and Does 1 through

50,

el

Defendants.

DEFENDANTS’ BRIEF IN OPPOSITION TO

PLAINTIFF’S MOTION FOR ENTRY OF

PERMANENT INJUNCTION PURSUANT TO

TENTH CIRCUIT MANDATE

(Filed Nov. 9, 2000)

The defendants, Independent School District No. 11

of Tulsa County, Oklahoma (the “Owasso School Dis-

trict”), Dale Johnson, Superintendent of the Owasso

App. 2

School District, Lynn Johnson, Assistant Superintendent

of the Owasso School District, and Rick Thomas, Princi-

pal of the Sixth Grade Center at the Owasso School

District, respectfully submit this brief in opposition to the

Plaintiff's Motion for Entry of Permanent Injunction Pur-

suant to Tenth Circuit Mandate, filed in this matter of

October 23.! Unless referred to individually, the defen-

dants will be referred to collectively as the “School Dis-

trict Defendants.”

On October 4, 2000, the United States Court of

Appeals for the Tenth Circuit denied the School District

Defendants’ request for a rehearing en banc of that

court’s July 31 decision in the captioned action. Pursuant

to Rule 13(3) of the Rules of the United States Supreme

Court, the School District Defendants have ninety (90)

days from October 4, 2000, or until January 2, 2001, to file

a petition for certiorari in the United States Supreme

Court. The Board of Education of the Owasso School

District will meet on Monday, November 13, 2000, to

determine whether to authorize its attorneys to file a

petition for certiorari with the United States Supreme

Court. The undersigned counsel for the School District

Defendants anticipates the Board of Education will direct

the preparation and filing of a petition for certiorari.

The School District Defendants respectfully submit

that Plaintiff's motion is premature. Entry of a permanent

injunction at this time, given the likelihood that the

School District Defendants will seek certiorari on this

' This response is therefore timely filed pursuant to Rule

6(e), Fep.R.Crv.P.

+ + ere EL ee

App. 3

question of nationwide significance, would needlessly

burden the parties and the courts with the filing of an

additional appeal of the permanent injunction before the

final resolution of the appeal of this Court’s summary

judgment decision. This would involve the needless use

of judicial resources and would unnecessarily increase

the cost of this litigation to both sides. Should the

Supreme Court decline to grant certiorari, this matter can,

at that time, be finally concluded in an efficient manner

for both the parties and this Court.

The Plaintiff will not be prejudiced by declining to

enter a permanent injunction at this time. Although the

Plaintiff asserts in her motion that “[o]n information and

belief individuals at the Owasso schools continue to vio-

late the mandate of the Tenth Circuit ruling,” the Plaintiff

has offered absolutely no evidence in support of this alle-

gation. Attached to this brief is the Affidavit of Lynn

Johnson, the Assistant Superintendent of the Owasso

School District, who states that all teachers and administra-

tors at the Owasso School District were advised of the

Tenth Circuit’s decision prior to the start of classes for the

current (2000-2001) school year and were advisec that the

Tenth Circuit has held that the grading practice chal-

lenged in this action violates federal law. Jobason’s affi-

davit establishes that the Owasso School District has

advised all of its teachers and administrators that the

Owasso School District no longer allows students to

exchange homework papers and in-class assignments and

grade each others’ work.

The School District Defendants are therefore in full

compliance with the Tenth Circuit’s ruling, and there is

no need for the entry of a permanent injunction pending

App. 4

the School District Defendants’ filing of a petition for

certiorari with the United States Supreme Court.

For the reason set forth in this brief, the School

District Defendants respectfully request that the Plain-

tiff’s Motion for Entry of Permanent Injunction be denied or,

in the alternative, that it be held in abeyance pending the

filing and disposition of a petition for certiorari with the

United States Supreme Court.

ROSENSTEIN, FIST & RINGOLD

By: /s/ Karen L. Long

Karen L. Long, OBA #5510

Jerry A. Richardson, OBA #10455

525 South Main, Suite 700

Tulsa, OK 74103

(918) 585-9211

Attorneys for the School

District Defendants

CERTIFICATE OF MAILING

I hereby certify that on this 9th day of November,

2000, I mailed a true, correct and exact copy of the forego-

ing document by United States mail, certified, return

receipt requested to:

Will K. Wright

P.O. Box 423

Claremore, OK 74018

By: /s/ Karen L. Long

Karen L. Long

App. 5

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OKLAHOMA

KRISTJA J. FALVO, as parent

and next friend of her minor

children, ELIZABETH PLETAN,

PHILIP PLETAN, and ERICA

PLETAN; and on behalf of all

others similarly situated,

Plaintiffs,

Case No.

98CV 0765K (J)

vs.

OWASSO INDEPENDENT

SCHOOL DISTRICT NO. I-011,

a/ka/ OWASSO PUBLIC

SCHOOLS; DALE JOHNSON,

individually and in his official

capacity as Superintendent;

LYNN JOHNSON, individually

and in her official capacity as

Assistant Superintendent; RICK

THOMAS, individually and in

his official capacity as

Principal; and Does 1 through

50,

i

Defendants.

AFFIDAVIT OF LYNN JOHNSON

I, Lynn Johnson, being of lawful age, after being duly

sworn upon oath, state as follows:

1. This Affidavit is made on personal knowledge of

facts to which I am competent to testify.

App. 6

2. Iam the Assistant Superintendent of the Owasso

School District. I have held that position since before the

inception of the present litigation.

3. On July 31, 2000, the United States Court of

Appeals for the Tenth Circuit issued its decision in the

instant case. The Tenth Circuit affirmed this Court's grant

of summary judgment to the defendants on the plaintiff's

“right of privacy claim” under the United States Consti-

tution and reversed the summary judgment with regard

to the plaintiff's claim under the Family Education Rights

Privacy Act, 20 U.S.C. § 1232g (“FERPA”). The Tenth

Circuit ruled that the practice followed by some teachers

at the Owasso School District of having students

exchange homework papers and in-class assignments and

grade each others’ work while the teacher went over the

answers aloud in class violated FERPA, without regard to

whether the student was required to announce his or her

score aloud or had the option of reporting the score to the

teacher in confidence. The Owasso School District timely

filed a Petition for Rehearing En Banc, which was denied,

with four (4) judges of the Tenth Circuit dissenting, on

October 4, 2000.

4. Based on the July 31 decision of the Tenth Circuit,

the Owasso School District advised all certified employees

(administrators and teachers) that the practice of

exchanging papers and having students grade each

others’ work had been held to be a violation of federal

law and was no longer permissible. All administrators

and teachers were informed prior to the start of classes

for the 2000-2001 school year in August of 2000 that such

grading practice would no longer be allowed at the

Owasso School District.

App. 7

5. This action was taken to insure that the Owasso

School District and all named defendants were in compli-

ance with the Tenth Circuit’s order notwithstanding the

Owasso School District’s decision to seek a rehearing en

banc of the original decision.

6. Prior to the start of classes for the 2000-2001

school year, the Owasso School District was advised by

its legal counsel that the only circumstances under which

one student could lawfully see the grade or score on

another student’s paper would be if the students’ privacy

was maintained by the use of confidential identification

numbers on their papers rather than the students’ names,

or if the students’ parents voluntarily signed a release

under FERPA authorizing the publication of the students’

scores.

7. I am not aware of any teacher at the Owasso

School District utilizing either of these procedures.

Further Affiant sayeth not.

/s/ Lynn Johnson

Lynn Johnson

Subscribed and sworn to before me this 9th day of

November, 2000.

Notary Public /s/ Peggy L. Morgan

My Commission Expires: Aug. 17, 2003