Test protocols are the answers provided to educational testing, and explanations and interpretations of test questions even if the answers are integrated with the test question. The legal question which frequently arises is whether test protocols are "student records" and therefore, subject to parental inspection and copying. Schools almost reflexively answer "no" to this question and parents are left to fight this response. A recent hearing officer decision from Illinois, School District U-46, 45 IDELR 74 (2005) provides some sound reasoning for the parents’ position on this question.
In U-46 among the issues before the hearing officer were whether the child had been properly evaluated. The school district took the position that test protocols were either exempt from disclosure under the state mental health code or under Federal copyright laws. As to the mental health code argument, the hearing officer rejected this argument because the state law permitted hearing officers to order disclosure, disclosure was expressly permitted between psychologists and to the extent the state law was in conflict with IDEA it would need to give way. While the school’s argument is premised on Illinois law, many states’ mental health codes are similarly worded, so this reasoning may be useful in refuting the same or similar arguments.
As to the copyright argument, the hearing officer rejected this position because the school failed to point to any specific provision that prohibited disclosure of test protocols. Since this argument is based upon Federal law this part of the decision should have application in other states.
Most importantly the decision reviewed in some length the definition of an "education record" under FERPA, the more generalized student records statute, and under IDEA. This overview of the law leaves no doubt that test booklets, protocols, answer sheets and explanations of test answers are all students records that should be maintained and disclosed to parents and their professionals. Although this decision is not from a court, its reasoning is sound, the authorities cited are applicable in other states, and should be persuasive.
Schools and testing administrators routinely make major mistakes in grading and administering tests. I have seen numerous examples of shoddy and careless practices that parents need to examine closely and have their experts analyze as well. The reality, however, is that test protocols are not typically kept in the student’s file, and frequently they are not kept at all. The following are some affirmative steps that parents should take to increase the likelihood of receiving test protocols:
- Make explicit requests for these records when writing to the school and seeking student records;
- When giving consent for student records make it clear that all test protocols, answer sheets and other test-related documentation are to be maintained and not to be discarded or destroyed;
- If the parent has a psychologist have the test protocols sent to him or her to avoid any mental health code issue (if your state mental health code is worded similarly to Illinois’ provision)
As with many other areas of the law, schools take positions that are based upon perceptions of the law instead of law. Under pressure and closer scrutiny, the school’s position often fails to have any merit, as in this instance on issues related to student records.