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Confidentiality, Copyright Law, and Tests

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Note: We have a YouTube video about Access to a child's test protocols. For that and other Wrightslaw YouTube videos, go to the "Wrightslaw YouTube Channel" at: www.youtube.com/user/wrightslaw

A parent asks: moving boxes

"My third grader has ADHD and an IEP. The school used the WIAT to test my child. When I asked to see the test, I was told I was not allowed to see my child's educational achievement test. How can this be true?"

Pam Wright responds:

Many school people erroneously believe that test materials are copyright protected so they won't let parents see these materials. Most genuinely believe this but it's simply not true

Yes, there are Federal copyright laws that say copies of a copyrighted document, such as tests, cannot be distributed. When a parent asks to see their child's test records, they are asking for "parental access to inspect and review". This is not a violation of Federal copyright laws.

What the School Says

School psychologists often refuse to provide copies of tests to parents, telling them it is not possible to do so because of copyright laws.

This parent was asking about the Wechsler Individual Achievement Test, Second Edition, which measures written and oral expression.

Suppose your child consistently had difficulty with writing assignments and written answers on tests. You are convinced that he needs additional help. The school administers the WIAT-11 and says your child made a high grade on a subtest that measures written expression.

You ask to see the test. You want to review your child's written responses to the test questions so you can understand his performance.

The school refuses, citing fear of copyright violations. 

What the Law Says

On August 7, 2007, The Office of Special Education Programs stated specifically

"...long standing policy regarding test protocoals as education records and our policy regarding providing copies of copyrighted materials (such as test protocols) to parents. This policy is contained in the Analysis of Comments and Changes section of the 1999 IDEA regulations. Our policy remains the same. The discussion from the 1999 regulations regarding these issues states:

"...Part B and FERPA provide that an educational agency or institution shall respond to reasonable requests for explanations and interpretations of education records."

The U. S. Department of Education issued a memorandum on this subject a few years ago that may help. It was issued by the Director of the Family Policy Compliance Office which administers FERPA.

The Family Educational Rights and Privacy Act (FERPA) is a Federal law which affords parents the right to have access to their children's education records, the right to seek to have the records amended, and the right to have some control over the disclosure of information from the records.

FERPA Memorandum: Access to Test Protocols and Answer Sheets. In 1997, the the Family Policy Compliance Office of the U. S. Department of Education issued this memorandum about the parent's right to have access to their child's test protocols and answer sheets. The parent's right to "inspect and review" education records includes test protocols and answer sheets. FERPA does not create an exception for "copyrighted materials."

"Completed test instruments or question booklets containing information that identify a particular student, whether or not the actual name of the student appears on the booklet, constitute "education records" subject to the FERPA requirements."

FERPA requires that a school comply with a parent's request for access to the student's records within 45 days of the receipt of a request.

Letter from Director, Family Policy Compliance Office, (September 13, 2005) from the FERPA Online Library.

"Both FERPA and Part B provide that an educational agency or institution (under FERPA) and a participating agency (under Part B) must respond to reasonable requests for explanations and interpretations of education records. 34 CFR 99.10(c); 34 CFR 300.562(b)(1). Accordingly, if an educational agency or institution or participating agency maintains a copy of a student's test answer sheet, then it must provide the parent with an explanation and interpretation of the record, which could involve showing the parent the test question booklet, reading the questions to the parent, or providing an interpretation for the responses in some other manner adequate to inform the parent."

California Decision Allows Parents to Receive Copies of Protocols. A federal District Court decision, Newport-Mesa Unified Sch. Dist. v. State of California Dept. of Educ., (click to read) published in 371 F.Supp.2d 1170 (C.D. Cal. 2005), held that providing parents with a copy of test protocols is not a violation of the copyright law, and that parents are permitted such access under the "fair use" provision of the copyright law.

In this decision, the Judge explained that he brought Harcourt Assessment, Inc. (owner/publisher of the WISC-III) and Riverside Publishing Company (owner/publisher of the Woodcock-Johnson III) into the case as "intervenors" to assert the copyright interest since the Court was concerned about deciding "copyright issues unless the copyright owner was also a party to the case." This case from the Central District of California was appealed to the 9th Circuit where it languished for several years while the parties engaged in mediation.

On April 2, 2010, the parties settled and the appeal was voluntarily dismissed. Since the case was dismissed at the request of all the parties, without any ruling from the 9th Circuit, the District Court decision stands as the law in the Central District of California. Click here to read the 9th Circuit order.

Read more about the impact of this decision in Test Protocols and Parents Rights—to Copies? from the National Association of School Psychologists.

Citing an OSEP letter and a federal court case, may help remove these obstacles when parents seek copies of test protocols.

 

Modified: 03/23/12

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