Legal Commentary

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.?