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Do Parents Have A Right under the Family Educational Rights and Privacy Act To See Their Children’s Responses on State and District Assessments?
A parent, who is committed to ensuring that her child with a disability and who has an IEP participates in the general curriculum and is provided a full opportunity to meet the standards expected of other students, wants to review her essay and short answer responses to better understand how her child performed on the large scale State assessment in which she recently participated. Under the IDEA Amendments of 1997, Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act students with disabilities must be included in any general state or district assessment with appropriate accommodations where necessary. 20 U.S.C. 1412(a)(16), (17), 34 C.F.R. 300.137 - .138; 29 U.S.C. 794, 34 C.F.R. 104.4(b); 42 U.S.C. 28 [For the small number of children who are unable to participate even with accommodations, alternate assessments must be developed. 20 U.S.C. §1412(17), 34 C.F.R.300.138.] While the purpose of any such assessments is to improve teaching and learning, in some cases tests are also being used for “high stake” decisions to determine whether students will be promoted or be graduated with a regular high school diploma. Whether the assessment is being used solely as a means to improve teaching and learning or, in addition, as a basis for making “high stakes” decisions, does a parent have a right to review the test protocol, including his/her child’s responses to short answer and essay questions, and the scoring rubric?
[ Note, as defined in the glossary of the Standards for Educational and Psychological Testing recently published by the American Educational Research Association, American Psychological Association, National Council on Measurement in Education (1999), “A test protocol will usually consist of the test record and test scores.” Scoring rubric is defined as “[t]he established criteria, including rules, principles, and illustrations, used in scoring responses to individual items and clusters of items. The term usually refers to the scoring procedures for assessment tasks that do not provide enumerated responses from which test takers make a choice. [They] vary in the degree of judgment entailed, in the number of distinct score levels defined, in the latitude given scorers for assigning intermediate or fractional score values, and in other ways.”]
According to the recently revised, joint report on “Standards for Educational and Psychological Testing” by the American Educational Research Association, the American Psychological Association, and the National Council on Measurement in Education (Washington, D.C.,1999): “Those who have test materials under their control should, with due consideration of ethical and legal requirements, take all steps necessary to assure that only individuals with a legitimate need for access to test materials are able to obtain such access before the test administration, and afterwards as well, if any part of the test will be reused at a later time. Test users must balance test security with the rights of all test takers and test users.” at 64. In fact, legal requirements for openness and access to tests very narrowly restrict test administrators’ discretion to maintain assessments as confidential.
Family Educational Rights and Privacy Acts (FERPA)
Access to Test Protocols including the Student’s Written Responses
Under the Family Educational Rights and Privacy Act [hereafter FERPA], 20 U.S.C. s1232g and 34 C.F.R. part 99, parents have a right to access their children’s “educational record,” defined broadly as both “directly related to a student” and “maintained by an educational agency or institution or by a party acting for the agency or institution.” 20 U.S.C. s1232g; 34 C.F.R. 99.3. The plain language of the statute and regulation seem to contemplate not only tests administered by a school, but also tests administered by an outside testing agency on behalf of a school. This conclusion is supported by the Family Policy Compliance Office in New York, which found that “any record, such as a permanent record card, a student's work, or a teacher's gradebook, is an "education record" under FERPA if it is maintained by a school and directly related to a student.” Fonda-Fultonville (NY) Cent. Sch., IDELR 31:149 (special education assessments and protocols are protected education records under FERPA if they directly identify a student); see also Letter to Thomas, IDELR 211:420 (test protocols are considered to be “education records” as defined by 34 C.F.R. 99.3).
Further support for the proposition that parents have the right to access their children’s test comes from more specific regulatory language that defines “records” as “including, but not limited to, handwriting, print, computer media, video or audio tape, film, microfilm, and microfiche.” 34 C.F.R. 99.3. The inclusion of “handwriting” can only mean that the student’s work product, including tests and assessments, are protected under the FERPA umbrella.
In John K. v. Board of Educ. for Sch. Dist. 65, 504 N.E.2d 797 (Ill..App. 1987), the court found that even a Rorschach Test administered by a school psychologist and sought by the student’s parents “was patently included within the education record as defined therein. [citing to FERPA]. It follows that the data was subject to disclosure.” At 803. The court also found support in Illinois’s own School Records Act, under which “Patently, any writing about a student which identifies that student is considered part of his or her school student record.” At 800.
The court’s reasoning that the Rorschach test is a subjective rather than objective evaluation, putting it within the ambit of the Illinois statute, should translate to FERPA as well:
First, the Rorschach test is administered by showing the subject a number of standardized inkblots and recording the subject's responses to them. Those responses are thereafter interpreted by the therapist. Common sense dictates that the term "test results" means exactly that: the objective responses elicited from the subject. The interpretation of those results is, almost definitionally, a subjective evaluation rather than an objective result.
At 801.
Thus, it seems fairly clear that FERPA requires schools to allow parents and qualified students to access standardized tests that are part of the student’s educational record. Even if the school does not administer the test directly, FERPA still applies to the “party acting for the agency or institution.” 20 U.S.C. s1232g; 34 C.F.R. s99.3.
Access to Testing Rubrics
Though FERPA seems to mandate access to students’ work product and actual test results, it is a separate question whether parents and students are also entitled to access the scoring rubric by which the student’s performance is assessed. FERPA states: “The educational agency or institution, or SEA or its component shall respond to reasonable requests for explanations and interpretations of the records.” 34 C.F.R. 99.10(c). A strong case can be made that provision of a scoring rubric is a “reasonable request for explanations and interpretations” – in fact, perhaps the only reasonable explanation.
Furthermore, particularly in those instances where the student’s performance on the test or assessment is being used for a high stakes decision, a decision to deny access to the scoring rubric to a parent or eligible student would be fundamentally unfair and vulnerable to challenge on Fourteenth Amendment fairness and due process grounds. The administrator of the test would not necessarily be required to provide the parent or eligible student with a copy of the rubric but an opportunity for review, consideration and explanation.