## F I L E D United States Court of Appeals Tenth Circuit 

### APR 30 2002 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

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,

Plaintiff-Appellant,

v. 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; JOHN DOE, sued as: Does 1 through 50,

Defendants-Appellees. No. 99-5130

ON REMAND FROM THE SUPREME COURT

OF THE UNITED STATES (S.C. No. 00-1073) Appeal from the United States District Court for the N. District of Oklahoma (D.C. No. 98-CV-765-K)-2-

Wilfred K. Wright, Jr. of Tulsa, Oklahoma, for Appe llant. Karen L. Long of Rosenstein, Fist & Ringold, Tulsa, Oklahoma, (Jerry A. Richardson with her on the brief), for Appellees.

Before LUCERO, McKAY, and MURPHY, Circuit Judges.

MURPHY , Circuit Judge.

This case is before the court on remand from the Un ited States Supreme Court. See Owasso Indep. Sch. Dist. No. I-011 v. Falvo , 122 S. Ct. 934, 941 (2002). In Falvo v. Owasso Independent School District No. I-0 11 , 233 F.3d 1203 (10th Cir. 2000), this court considered the le gal implications of a grading procedure wherein teachers would have their student s grade one another’s work assignments and tests and then would have the stude nts call out their own grades to the teacher. See id. at 1207. In particular, the plaintiff-appellant a sserted that the use of this grading procedure violated both herchildren’s Fourteenth Amendment right to privacy and the Federal Educatio n Rights and Privacy Act (“FERPA”). See id. In brief, this court held that the practice of pe er grading did not implicate the Fourteenth Amendment right to pri vacy. See id. at 1208-12. We reached the opposite conclusion with regard to the FERPA claim, however, concluding that the grading procedure violated FERP A. See id. at 1213-18. We-3-

nevertheless affirmed the district court’s grant of summary judgment in favor of the individual defendants as to Falvo’s claims for monetary relief on the ground that the individual defendants were entitled to qua lified immunity. See id. at 1218-19. This court remanded the case to the distr ict court for further proceedings on Falvo’s claims for injunctive and mo netary damages against the defendant school district and claims for injunctive relief against the individual defendants. See id. at 1219-20. The Supreme Court granted the school district’s pet ition for a writ of certiorarito review this court’s conclusion that the peer gr ading procedure violated FERPA. See Owasso Indep. Sch. Dist. No. I-011 v. Falvo , 533 U.S. 927 (2001). The Court ultimately concluded that the pe er grading practice at issue here does not violate FERPA. See Owasso Indep. Sch. Dist. , 122 S. Ct. at 940-41. The court remanded the case to this court for furth er proceedings consistent with its opinion. See id. at 941. In response, this court issued an order o n March 28, 2002, vacating its prior judgment and reopening thecase. Having reviewed the Supreme Court’s recently issuedopinion, we conclude as follows. Those portions of our opinion disposin g of plaintiff-appellant’s Fourteenth Amendment claims are unaffected by the S upreme Court’s mandate. Accordingly, this court reinstates Parts II, III.A, and III.B of the panel opinion. See Falvo , 233 F.3d at 1207-1210. In light of the Supreme C ourt’s conclusion1 This court likewise vacates Part III.C.1 of the pan el opinion wherein we

discussed whether a violation of FERPA was actionab le under 42 U.S.C. § 1983. See Falvo v. Owasso Indep. Sch. Dist. No. I-011 , 233 F.3d 1203, 1210-13 (10th Cir. 2000). We reached that question, despite the fact that it had not been raised by the parties, because it was possible that its re solution implicated this court’s subject-matter jurisdiction. See id. at 1210-11. The Supreme Court concluded, however, that it could exercise subject-matter juri sdiction over the case without regard to whether FERPA could be enforced under § 1 983 because plaintiffappellant’s “federal claim is not so ‘completely de void of merit as not to involve a federal controversy.’” Owasso Indep. Sch. Dist. No. I-011 v. Falvo , 122 S. Ct. 934, 938 (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998)). In light of the Court’s conclusion in thi s regard and the procedural posture of this case, we conclude that the more pru dent course is to vacate our previous discussion of this question, leaving the question for a later day when it is raised by the parties and its resolution may well b e dispositive. -4- that the peer grading at issue in this case does no t violate FERPA, we vacate Part III.C.2 of the panel opinion. 1 See id. at 1213-18. Furthermore, the Supreme Court’s conclusion that the actions of the defendants did not violate FERPA obviates the need to discuss the availability of qu alified immunity. See Siegert v. Gilley , 500 U.S. 226, 232-33 (1991) (holding that federalcourts must first address whether a plaintiff has asserted a violation of a c onstitutional or statutory right before proceeding to question of whether that rightis clearly established). Accordingly, this court vacates Parts III.D and IV of the panel opinion. See Falvo , 233 F.3d at 1218-20. Because the peer grading practice at issue here doe s not implicate the Fourteenth Amendment and does not violate FERPA, th e district court’s grant of-5-

summary judgment in favor of all defendants is here by AFFIRMED . The mandate shall issue forthwith.