On May 24, 2005 the U.S. District Court, Central District of California in Newport-Mesa v. California Dept. of Ed.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. The publishers of the Weschler IQ test and of the Woodcock-Johnson tests (who, because they, if anyone, had the right to complain about copyright violations) intervened in this case. The Court held that the parents were entitled to a copy of their child's test protocols.
NEWPORT-MESA UNIFIED SCHOOL DISTRICT, Plaintiff,
STATE OF CALIFORNIA DEPT. OF EDUCATION et al., Defendants.
371 F.Supp.2d 1170 (2005)
(Verbatim quotes below from the 14 page decision.)
California Education Code section 56504 provides parents of special education students may have copies of their child's test protocols. Defendant Jack Anthony's son is a seven-year-old with special education needs who lives in Plaintiff Newport-Mesa Unified School District. Mr. Anthony requested copies of his son's test protocols before a scheduled Individualized Education Program ("IEP") meeting. The District declined to provide him with the copyrighted test protocol for the Woodcock-Johnson Test of Achievement III.
Mr. Anthony filed a complaint with Defendant California Department of Education, which found the District out of compliance with California Education Code section 56504 by failing to provide Mr. Anthony with records within five days of his request. The Department ordered the District to revise its policies and procedures on student record requests to comply with section 56504 and to send it a copy of the new written policy within sixty days. The Department denied a request for reconsideration of this compliance report. Plaintiff brought the matter to this Court, contending United States copyright law prevents it from providing copies of copyrighted test protocols.
The District requested a declaration of its rights under copyright law and an injunction to prevent the Department from enforcing its compliance report. At the Court's invitation, Harcourt Assessment, Inc., the publisher and copyright owner of the Weschler Intelligence Scale for Children-III, and Riverside Publishing Co., the publisher and copyright owner of the Woodcock-Johnson III, intervened in the case to assert the copyright interest.
* * *
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.
From NASP - Copying Protocols to Parents: Clarification of FERPA Requirements
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.