Test publishers and school districts may not assert copyright protections.
To view the YouTube video about "Parent's Right of Access to Test Protocols" by Pete Wright, please click the YouTube link below.
On May 24, 2005 the U.S. District Court, Central District of California issued a decision in Newport-Mesa v. California Dept. of Ed. and held 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. The Court invited the publishers of the Weschler IQ test and of the Woodcock-Johnson tests, who had the right to complain about copyright violations if necessary, to intervene in this case.
"The Court concludes a school giving parents of special education students copies of their children's test protocols when requested under California Education Code section 56504 is a fair use under 17 U.S.C. § 107. In order to minimize the risk of improper use, the District may choose to use appropriate safeguards, such as requiring a review by parents of the original test protocols before obtaining a copy, a written request for a copy, a nondisclosure or confidentiality agreement, or other reasonable measures."
NASP Communiqué, Vol. 31, #1
By Andrea Canter, NCSP
NASP Communique, Vol. 31, #1, September 2002 http://www.nasponline.org/publications/cq/cq311protocols.aspx
Since the publication of "Test Protocols" (Canter, Communiqué, May 2001), NASP staff and Ethics Committee members have continued to review available laws and regulations, as well as reported experiences and district policies, regarding the review and release of copies of test protocols.
Recently a New York City NASP member provided material from Wrightslaw (Wright & Wright, 1999) citing complete text of the Family Education Records and Privacy Act (FERPA), highlighting a section regarding the release of copies of test protocols.
As previously reported, FERPA, IDEA and Section 504 all require that parents be given access to school records (including test protocols), and that this access is limited to a review of records unless the records cannot be provided for review within 45 days.
When such a delay occurs, then parents are to receive copies of the records.
Further, parents may request that actual copies of records be released to appropriate third parties (such as community mental health providers).
FERPA includes an additional provision neglected in our earlier analysis: Once the parent has formally requested release of school records to a third party, the parent is then entitled to copies of the same records.
In other words, once schools have released copies of protocols to a third party at the parents' request, the parent may request and receive copies as well.
Wright, P.W.D. & Wright, P.D. (1999). Wrightslaw: Special Education Law. Hartfield, VA: Harbor House Law Press.
Thanks to the New York City NASP member (whose name was not accurately obtained) for passing along this information. School psychologists are cautioned that the above information is not intended to substitute for legal advice and district legal counsel should be consulted regarding interpretation of federal and state regulations.