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New York Test-Disclosure Law Illegal, Judge Rules

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Acting in a case involving a medical-school entrance exam, a federal judge has ruled that the disclosure of standardized-test information required under a New York State law is in "direct conflict with federal copyright law."

In a summary judgment this month, U.S. District Judge Neal P. McCurn of Syracuse, N.Y., held that the disclosure of test questions and answers required under the state's truth-in-testing law does not constitute a "fair use" exception to the copyright law, which expressly covers "secure tests."

Although the judge issued a permanent injunction barring the state from enforcing the disclosure provision against the plaintiff in the case, the Association of American Medical Colleges, it remained unclear last week whether he would extend the injunction to include other test- makers subject to the New York law.

"It does seem that if it is [illegal] in the one case, it should probably apply to all test agencies," said David R. Bower, chief of the bureau of professional-examination development in the state education department. "But it might require another test agency to go to court."

Gregory R. Anrig, president of the Educational Testing Service, which develops and administers the Scholastic Aptitude Test, said ets lawyers were examining the case. But he stressed that his organization did not plan to back off from the policy of voluntary national disclosure of test information that it adopted following the passage of the New York law more than a decade ago.

"I would not want to see us step back in terms of disclosure," he said. "But the better route is voluntary disclosure."

A statement issued by the College Board, which sponsors the sat, said the decision was "of considerable interest" and was being reviewed.

Was Opposed by Testing Groups

Officials of the American College Testing program, sponsor of the other major undergraduate-admission exam, said it was too early to comment.

The New York law, the only one of its kind in the nation, was adopted in 1979 after intensive lobbying by a coalition of consumer and civil-rights groups. It requires the submission of standardized tests, as well as studies on their validity and fairness, to the state. The law also mandates that individual test-takers be allowed to obtain a copy of their test questions and answers, along with the correct answers.

Advocates of such truth-in-testing provisions contend that disclosure allows test-takers to learn from their mistakes and challenge wrong or biased answers.

The College Board and the ets lobbied against passage of the law. But once it was adopted, they and other testing organizations, including the sponsors of the act and the Law School Admissions Test, decided to implement a disclosure policy nationwide that was in line with the New York mandates.

Judge McCurn's ruling stems from a challenge to the law filed in 1980 by the medical colleges' association, which administers the Medical College Admission Test, or mcat. Because of a preliminary injunction granted in the case, the association has never been required to comply with the disclosure provisions.

The group has argued that such disclosure would require it to devise an expensive new test each time the mcat was administered and would lead to the exhaustion of a finite supply of usable questions.

In finding that requiring such disclosure conflicts with federal copyright protections, Judge McCurn noted that the material disclosed would become public information and thus be easily available for use by test-coaching books and services.

'Blow to Accountability'

Cinthia H. Schuman, executive director of the National Center for Fair and Open Testing, or FairTest, called the decision "a blow to public accountability of the testing industry."

FairTest, a testing-reform advocacy group, has used questions from the tests disclosed under the New York law to bolster its argument that the sat is biased against women and minorities, a charge that the College Board and the ets strongly dispute.

Since the passage of the law and the adoption of the ets disclosure policy, there have been hundreds of challenges nationwide to specific aspects of ets tests, Ms. Schuman said. About a dozen were successful, she said, and four of those required rescoring of an exam.

Mr. Anrig said about 6 percent of sat takers pay a $10 fee to see their exam booklet. From 1980 to 1985, he said, there were four errors on the sat and the preliminary sat, only two of which required rescoring.

In its statement, the College Board said that since the law went into effect, "studies have indicated that the great majority of students requesting their tests tend to be high scorers and come from affluent backgrounds."

Ms. Schuman called on New York officials to appeal the ruling. She also suggested Congressional action to make standardized tests exempt from the federal copyright law under the "fair use" exception.

Lawyers in the state education department and in the state Attorney General's office were reviewing the case last week and had not yet decided whether to appeal.

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