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Monday, April 28, 2008
Why are grades private?
Why are an individual’s grades considered to be a private matter that others presumptively should not disclose or observe? The Federal Educational Right to Privacy Act (FERPA), for instance, prohibits disclosure of a student’s academic records without that student’s consent.
I ask because the ordinary justifications for a right to privacy have uncertain application to grades. On one theory, privacy protects “personal” information about a person that is properly relevant to only a tiny number of people who are personally connected to that person. On this view, privacy prevents voyeurism by the general public. On another theory, rules of privacy are like rules of evidence, barring disclosure of information that particular decision-makers ought to disregard: If employers ought not to make decisions based on an employees’ marital status or book purchases, then such information ought to be suppressed to purify the employment decision-making process.
But neither of these theories explains why anyone ought to be entitled to conceal their grades. In theory, grades are assigned based on fairly objective comparisons of otherwise unrelated students’ mastery of material presented in a completely public setting for completely public reasons. One need not be a voyeur to want to know how one’s potential employee, medical provider, legal counsel, guest speaker, candidate, etc, performed on an exam. The information is at least indirect evidence of diligence or capacity. So what exactly is the basis for giving individuals a federally protected right to conceal such information?
Is there, for instance, a persuasive theory that individuals should be able to control their self-presentation to the public by concealing information that is perfectly accurate, obviously relevant, but potentially embarrassing – say, one’s income, credit rating, and one’s grades? Is the idea that it is intolerable in a democracy to publicize individual’s lack of prestige too widely? That, absent a special reason, no one should have the basis for drawing too many fine social-educational distinctions among their peers? Or some other notion?
Whatever the theory, I tend to think that the justification for concealing one’s grades is different from, and much less analyzed than, the justification for concealing other sorts of information deemed “private.”
Posted by Rick Hills on April 28, 2008 at 09:54 AM in Current Affairs | Permalink
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Comments
Orrin and "newly minted lawyer" both confirm my suspicion that the privacy of grades is based on the idea that each individual ought to be able to control their self-presentation. It is essentially the right to act as one's own 'spin doctor,' selectively disclosing only those facts that are favorable to one's desired public image.
Rick, isn't this just a dismissive way of characterizing the basic argument underlying most privacy claims? It would most clearly seem to be the case about, say, medical privacy. If I understand you correctly, you assume that medical privacy is about "protecting the autonomy of specific relationships." But that explanation doesn't resonate with what I have experienced or read about medical privacy. My sense is that people want their medical records private because their records are no one else's business, and they want to "selectively disclose" on a need to know basis -- not because they are seeking to preserve their autonomy of their relationship with their doctor.
Now, perhaps you disagree with this common privacy argument as a normative matter, and you think that privacy claims should be more limited. If so, I think you should consider writing on this: Your views would cut against the grain of lots and lots of scholarship, and would be a valuable addition to the literature. But I think the argument about self-definition is a very common one.
Posted by: Orin Kerr | Apr 29, 2008 12:35:52 PM
Three thoughts:
(1) "Another 3L" states that "Americans are distinctly uncomfortable with being represented by sterile numbers of any variety."
I think that there is a great deal in what 3L says, although I would put the point differently: Americans are distinctly uncomfortable with clear class distinctions. We like to keep our hierarchies murky. I wonder if a Cantab or Oxonian would feel uncomfortable about advertising their success in the math tripos.
(2) Orrin and "newly minted lawyer" both confirm my suspicion that the privacy of grades is based on the idea that each individual ought to be able to control their self-presentation. It is essentially the right to act as one's own 'spin doctor,' selectively disclosing only those facts that are favorable to one's desired public image.
(3) I think that "newly minted lawyer" might be mistaken in stating that control over one's image was easier in an earlier, pre-high tech period. In small-town America of the 19th century, such privacy would be utterly impossible, as one would tend to live in the same community for a lifetime, and one's neighbors would tend to know one's doings and sayings to a degree that the NSA and FBI would envy today. Even in urban America of the post-1892 period, immigrant neighborhoods would tend to maintain a tight watch on their members. One's image would be the product not of one's individual efforts at spin control but rather one's community's judgment of one's past -- a past that would be an open book to that community.
I really have no idea whether this new expectation of privacy is normatively attractive. But it strikes me as quite distinct from the species of privacy that protect the autonomy of specific relationships (spousal, parental, doctor-patient, lawyer-client, etc). I know the normative function of these other forms of privacy. But I do not have a clear idea of what normatively attractive function is served by entitling individuals to "air brush" their image as a general matter.
Posted by: Rick Hills | Apr 29, 2008 11:21:16 AM
Rick Hills writes:
But surely the purpose of grades, as with academic degrees themselves, is to communicate to third parties whether the student is proficient in some topic. The student would not be interested in the grade except to communicate information to employers, right? Or do you have students who like being graded for the intrinsic pleasure of the experience?
But the question is, who are the third parties? A default rule for privacy lets the students choose who the third parties are. A contrary rule would mean they can't. The question isn't whether grades should be private or not, but rather whether students should have control who knows their grades and in what circumstances. Students obviously do not like being graded for the intrinsic pleasure, but they just as obviously prefer control over this information rather than a lack of control over it.
Posted by: Orin Kerr | Apr 29, 2008 12:10:21 AM
Rick, I'd like to go back to your analogy using the rules of evidence. Although an accident victim generally does not choose to be injured, he does make a conscious choice to avail himself of the courts when he brings a tort suit. Therefore, it is fair in this situation for the plaintiff to disclose his medical records to the extent necessary to prosecute his claim and for the defense to respond. Similarly, when a college or law school graduate enters the job market, he too makes a conscious choice and it is fair for potential employers to ask for grades. The same with credit scores, when a prospective borrower consciously chooses to contact a bank about a loan. Absent an intent by the person whose information is of concern to derive some benefit from their disclosure, or some other compelling public policy to the contrary, it should be part of an individual's right to privacy for such information to remain private. I suppose this might be tautological thinking, unless you hold privacy to be an inherent right in the first place.
Granted, this was much simpler to accomplish in an age of anonymity, before biometric security, credit cards, and CCTV, but as we enter an age in which an increasing amount of our movements and our lives can be tracked, it makes privacy laws like FERPA all the more important. If we can't have absolute privacy then we must at least ensure that those who hold information about us guard it securely. But I digress somewhat.
In the lawyer employment example you're working with, say the law student chooses not to practice. What's the use then in making his grades public, if the only reason to do so is to make grades a proxy for professional competency? (And that's another discussion altogether...) Or what if he does practice and over time a better measure of his competency emerges (as usually happens in real practice) and thus his grades are no longer relevant. How then do we put the genie back in the bottle but for FERPA and the implicit compliance of previous employers?
Posted by: newly minted lawyer | Apr 28, 2008 9:59:54 PM
I think it's purely cultural - grades are a social taboo. It's just as rude to ask someone's GPA as it is to ask them how much they make, or how much they weigh, or what their credit score is. I would suggest there is no good theory, other than the fact that it creeps people out. No judge wants to go there.
Americans are distinctly uncomfortable with being represented by sterile numbers of any variety. I mean, what American doesn't identify with the (false) stories about Einstein failing math, or some other famous smart person only completing the third grade?
Posted by: another 3L | Apr 28, 2008 6:17:22 PM
I've always viewed grades as first and foremost a pedagogical and motivational device to provide feedback to students on their educational progress. Unlike in other disciplines, most law professors don't take advantage of this function of grades very well--they generally only provide grades at the end of the term, and they don't give much other feedback to go along with them. But this is a failing of the legal academy; it does not indicate that grades should be transformed into something public, akin to a degree or to honors/dean's list/etc.
Posted by: 3L | Apr 28, 2008 5:15:02 PM
FERPA is key to maintaining academic freedom. It's not only about protecting grades, but allowing students to study whatever they wish.
Posted by: Laura | Apr 28, 2008 4:18:10 PM
This is a fascinating topic. To add one data point, my understanding was that until very recently the Harvard Business School graded students, provided the students their grades, but refused to release those grades in any official way to employers, or others, even at students' request. The one exception was that there were certain grades that garnered one particular distinction in the class (I seem to recall there being a "Dean's scholar" demarcation or something). I presume that students could then choose to give an account of grades to employers, but they were never able to verify it, and employers had to rely on honesty, etc.
My understanding was that this policy was recently changed to provide transcripts like the other Harvard schools.
Again, this is my dim recollection from when I was a Harvard (law) student. If anyone is more familiar with what happened (both in the past and what motivated the current situation), I would definitely welcome any corrections/additions.
Posted by: Glenn Cohen | Apr 28, 2008 3:29:21 PM
"I suspect most people would say that grades are private because they are primarily of interest and concern to the student."
But surely the purpose of grades, as with academic degrees themselves, is to communicate to third parties whether the student is proficient in some topic. The student would not be interested in the grade except to communicate information to employers, right? Or do you have students who like being graded for the intrinsic pleasure of the experience?
Of course, there is no practical problem with FERPA, because employers simply insist on the waiver of FERPA rights. But the routine waiver suggests that the privacy right is a bit odd. It is strange to say that a piece of information is nobody's business but one's own when it manifestly is only useful if it is communicated to third parties.
Posted by: Rick Hills | Apr 28, 2008 2:33:07 PM
In theory, grades are assigned based on fairly objective comparisons of otherwise unrelated students’ mastery of material presented in a completely public setting for completely public reasons.
Rick, can you elaborate a bit on this theory? I suspect that most students and teachers would disagree with the "completely public" part of this view, if not all of it. I suspect most people would say that grades are private because they are primarily of interest and concern to the student, who can then choose to disclose grades or not disclose them based on his or her interests.
More broadly, it seems to me that the market takes care of this pretty well. If a person has a legitimate interest in knowing another person's grades, he can ask. Further, a social norm of disclosure will evolve in those circumstances where the information is understood to be relevant. For example, a student doesn't need to tell Wachtell what his grades are when applying for a job there, but he surely understands that he isn't going to get the job without disclosing that information. Further, a person who chooses not to disclose in that setting will be understood to have effectively disclosed, as failure to report will generally be understood as indicating poor performance.
Posted by: Orin Kerr | Apr 28, 2008 2:17:55 PM
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