Protocols and Parents Rights—to Copies?
By Andrea Canter, NCSP
As we start a new school year, school psychologists can expect to run
into at least one sticky situation involving a parent request for copies
of their child’s test protocols. And while a recent clarification from
the Office of Special Education Programs (OSEP) would seem to quell any
concerns about changes in federal policy regarding disclosure of educational
records, a U.S. District Court decision in California may set an uncomfortable precedent—allowing parents to
receive copies of their child’s protocols, including those for commonly
used intelligence tests.
has been accepted practice, supported by IDEA and the Family Education
Records Privacy Act (FERPA), that parents of students with disabilities may request and
receive access to all educational records that identify their child. “Access” has
generally been defined as the right to review the information, not necessarily
to obtain copies of all records. Conditions in both laws address when copies
of records must be provided, such as when the opportunity to review a record
is not possible within 45 days of a request or when records are subpoened.
And in fact, as recently as May 2005, this was the policy of OSEP, as clarified
in response to an inquiry from Harcourt Assessment. The text of the OSEP
OSEP Response to Harcourt
NASP was contacted by Harcourt in May 2005 for information
about a Bureau of the Handicapped policy letter issued in 1979 regarding
parent rights to inspect educational records. BEH became OSEP, and Harcourt
contacted OSEP for information as to the validity of the 1979 policy letter.
OSEP concluded that there was no change in current policy, and provided
the following response (May 26, 2005):
A policy letter issued
in 1979 may no longer be consistent with the current law. The following
discussion relating to release of test protocols is taken from the IDEA
97 regulations (see Attachment 1 - Analysis of Comments and Changes,
64 Fed. Reg. at 122641 [Mar. 12, 1999]). These
regulations remain in effect until final regulations consistent with
IDEA 2004 are issued.
Comments: Access rights (§300.562)
A number of commenters were concerned about
the types of records to which parents have access under this section. For
example, some believed that the regulations should make clear that parents
would not have access to copyrighted materials such as test protocols or
private notes of an evaluator or teacher. Others took the opposite
view, urging that whenever raw data or notes are used to make a determination
about a student, that information should be subject to parent access. Commenters also
requested clarity on the question of the school’s liability for allowing
parents access to records under these regulations when other laws or contractual
agreements prohibit such disclosure.
One commenter asked that the right be phrased as the right "to inspect
and review all records relating to their children" rather than to "all
education records relating to their children."
Part B incorporates and cross-references the Family Educational Rights
and Privacy Act (FERPA). Under Part B, the term "education records" means
the type of records covered by FERPA as implemented by regulations in 34
CFR Part 99. Under §99.3 (of the FERPA regulations), the term "education
records" is broadly defined to mean those records that are related
to a student and are maintained by an educational agency or institution.
(FERPA applies to all educational agencies and institutions to which funds
have been made available under any program administered by the Secretary
Records that are not directly related to a student and maintained by
an agency or institution are not "education records" under FERPA
and parents do not have a right to inspect and review such records. For
example, a test protocol or question booklet which is separate from the
sheet on which a student records answers and which is not personally identifiable
to the student would not be a part of his or her "education records." However,
Part B and FERPA provide that an educational agency or institution shall
respond to reasonable requests for explanations and interpretations of
education records. (34 CFR §300.562(b)(1);
34 CFR §99.10(c)).
Accordingly, if a school were to maintain a copy of a student's test
answer sheet (an "education record"), the parent would have a
right under Part B and FERPA to request an explanation and interpretation
of the record. The explanation and interpretation by the school could
entail showing the parent the test question booklet, reading the questions
to the parent, or providing an interpretation for the responses in some
other adequate manner that would inform the parent.
With regard to parents having access to "raw data or notes," FERPA
exempts from the definition of education records under 34 CFR §99.3 those
records considered to be "sole possession records." FERPA's sole
possession exception is strictly construed to mean "memory-jogger" type
information. For example, a memory-jogger is information that a school
official may use as a reference tool and, thus, is generally maintained
by the school official unbeknownst to other individuals.
With respect to the issue of liability for disclosing information to
parents when other laws or contractual obligations would prohibit it, public
agencies are required to comply with the provisions of IDEA and FERPA,
and must ensure that State law and other contractual obligations do not
interfere with compliance with IDEA and FERPA. Federal copyright
law protects against the distribution of copies of a copyrighted document,
such as a test protocol. Since IDEA and FERPA generally do not require
the distribution of copies of an education record, but rather parental
access to inspect and review, Federal copyright law generally should not
be implicated under these regulations.
There is nothing in the legislative history of section 615(b)(1) of the
Act to suggest that it expanded the scope of information available to parent
examination beyond those records that they would have access to under FERPA (OSEP,
California Decision Allows Parents to Receive Copies of Protocols
About a month after NASP received a copy of the above OSEP response, we
were contacted by LRP Publications Editor Brian Caruso for comment following
the release of a U.S. District Court (Central California) decision that appears
to extend parents rights well beyond current OSEP policy. The following summary
of that decision was provided to NASP by LRP Publications:
Case name. Newport-Mesa Unified Sch.
Dist. v. State of California Dept. of Educ.,
43 IDELR 161 (C.D. Cal. 2005).
Ruling. In a case of first impression, and acknowledging its action was contrary to
established law on competitive admission testing, the U.S. District Court,
Central District of California ruled that a California statute requiring
copies of test protocols to be provided to parents of special education
students falls within acceptable "fair use" under federal copyright
law. Nor does federal copyright law preempt the state statute, it said.
What it means. California school districts can distribute copies of test protocols to parents
of special education students without violating federal copyright law,
in accordance with California Education Code section 56504.
Such distribution of copyrighted test protocols is a fair use under copyright
law because it is noncommercial and broadens parents' understanding of
their child's educational needs. FERPA similarly allows parents to inspect
and review education records "directly related to a student," including
test protocols. 20 USC 1232g(a)(1)(A), (a)(4)(A).
Summary. Allowing parents to view test protocols after a child has taken the test is
a noncommercial use, consistent with California law, which will aid parents
in ensuring that their children receive an appropriate education, a use
that is a legislated public interest. California Education Code Section
56504 provides that parents of special education students may have copies of
their child's test protocols. When the state department of education received
a parent's complaint that a school district would not provide him with
the copyrighted test protocol for the Woodcock-Johnson Test of Achievement
III, the department ordered the district to provide it. On review, the
court recognized that the existing body of law considered it a copyright
violation to distribute copies of copyrighted standardized tests. However,
it ruled that allowing parents to view test protocols after a child
has taken the test was a noncommercial use that will aid parents in ensuring
that their children receive an appropriate education, a use which is a
legislated public interest. The court determined that was a fair use under
copyright law and copyright law did not preempt the education code provision.
The copyright holder for the test protocol intervened in the suit to assert
its interest in protecting its copyright, claiming that widespread public
access to the test protocols would diminish the test's market value. The
court, however, found no evidence that the limited release of test protocols
to parents of special education students, which has been the department's
policy since 1983, resulted in any adverse market effect.
It is premature to speculate as to how the decision in California
will affect practice elsewhere, and how or if it
will lead to any change in OSEP policy. Because this decision was made by
a federal court, rather than state court, the potential for national ramifications
It also seems imperative for assessment professionals and test
publishers who feel that this ruling will substantially impact the value
of educational and psychological to offer data (or at least solid logic)
to support this concern. Is there a great risk that parents of students with
disabilities will take advantage of copies of test protocols to “teach to
the test” or “rehearse” with their children, thereby compromising the future
value of the tests for their children? Will parents who receive copies of
protocols actively share these with other parents, compromising test security
on a grand scale? Or will the release of copies of protocols to parents merely
provide them with more information about the nature and meaning of their
child’s assessment, as proposed by the California court?
School psychologists should work with their district administrators
to ensure that their current practices regarding the release of educational
records including protocols minimally follows the laws of the state, special
education regulations and FERPA policies. And if working in California schools,
school psychologists should be aware that copies of protocols might be requested
more frequently following this ruling, and that compliance with requests
for copies will be expected. But there are many precautions that school psychologists
can take—in California or elsewhere—to ensure that any information from a
student’s evaluation is communicated in a manner that is informative for
the parent while protecting the spirit of test security as much as possible:
- Establish clear written district-wide policies governing the storage
and release of educational records, with more specific guidance for the
storage, review and release of protocols. Review proposed policies with
district legal counsel before implementing and disseminating.
- Ensure that all relevant school personnel (including records clerks)
are trained in the records policies; policies and procedures should be
- Work to ensure a climate of trust between school personnel and families,
including efforts to provide clear explanations to families regarding the
purposes of assessment, to involve parents in the assessment process, and
to provide complete and useful information about the results of all evaluations – such
practices often will reduce requests for raw data. Parents who understand
the assessment process and the results for their child are less likely
to request review or copies of protocols.
- When a parent makes a legitimate request to review or have a copy of
a test protocol, be sure to provide accompanying information about the
nature and limitations of the test procedure and how the results are used.
Rather than simply provide copies of materials, an appropriate team member
should personally review the information with the parent prior to releasing
copies. This review might also include information about the purpose of
maintaining test security to help the parent understand how future assessments
could be compromised by inappropriate disclosure of test items and responses.
© 2005, National Association of School Psychologists. Andrea
Canter, PhD, NCSP, is the Editor of Communiqué and author of previously published
articles regarding storage and access to test protocols (see: http://www.nasponline.org/publications/cq297protocols1.htmll http://www.nasponline.org/publications/cq301protocolsII.html;