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Test 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.

It 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 response follows.

OSEP Response to Harcourt Inquiry

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."

Discussion

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 of Education.)

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, 5/26/05).

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.

Implications?

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 seems high.

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 reviewed annually.
  • 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; and http://www.nasponline.org/publications/cq311protocols.html