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Test-Makers File Challenge to N.Y. Disclosure Law

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The College Board, the Educational Testing Service, and other testing agencies last week filed a suit asking a federal court to allow them to offer some of their examinations in New York State without disclosing the questions and answers, as state law currently requires.

The suit, filed in Albany in the U.S. District Court for the Northern District of New York, cites a ruling in that jurisdiction earlier this year that the disclosure provisions of the state's pioneering "truth-in-testing" law are in direct conflict with federal copyright law. (See Education Week, Jan. 31, 1990.)

College Board officials said the chief purpose of the new suit was to allow the Scholastic Aptitude Test, the Graduate Record Examination, and the Test of English as a Foreign Language to be administered in New York as frequently as they are in other states.

Because disclosing the content of the sat requires "significant investments of time, professional expertise, and money" to produce assessments that cannot be reused, documents filed in support of the suit state, the college-admissions test is administered only four times a year in New York, compared with six times elsewhere. The suit cites similar constraints on administration of the other tests.

"We have always been concerned that the New York disclosure law has caused us to restrict services for New York students," Donald M. Stewart, president of the College Board, said in a statement.

In addition to the ets, which devises and administers all three tests, and the College Board, which sponsors the sat, the plaintiffs in the suit filed against the State of New York are the Graduate Record Examinations Board and the Test of English as a Foreign Language Council.

Three months ago, U.S. District Judge Neal P. McCurn of Syracuse, which is part of the Northern Dis8trict, issued a permanent injunction barring the state from enforcing the disclosure provision against the plaintiff in a separate case, the Association of American Medical Colleges, which administers the Medical College Admission Test. That injunction did not extend to other tests.

Judge McCurn held that the mandatory disclosure of test materials does not constitute a "fair use" exception to the federal copyright law.

Cost of New Tests

If the new suit succeeds in gaining an injunction by June 1 barring mandatory release of sat content, College Board officials said last week, the board will add two administrations of the test in New York next year that will not be subject to disclosure.

They promised that the board would continue to release test materials for the four current test dates, and would maintain its national policy of "voluntary disclosure" for studentsel15lwho request copies of their test booklets and answers.

Compliance with the New York law means that no version of the sat can be reused once it has been disclosed, board officials said.

"The cost of replacing each sat form that must be disclosed currently exceeds $300,000," said Frederick H. Dietrich, vice president for guidance, access, and assessment services at the College Board.

Benefit for New Yorkers

The board argues that allowing the administration of some confidential tests would benefit New York test takers by providing more test dates, and would help the board in developing planned changes to the sat, such as the addition of open-ended mathematics questions.

In addition, it says, a favorable ruling would allow the reinstatement of special tests not administered in New York because of the "financial infeasibility" of disclosing them, such as a test used to assess the academic preparation of Spanish-speaking students.

Advocates of truth-in-testing mandates denounced the lawsuit.

"Once again, the nation's largest test makers demonstrated their contempt for public accountability and independent scrutiny of their products," Cinthia H. Schuman, executive director of the National Center for Fair and Open Testing, or FairTest, said in a statement.

Advocates of such laws, who argue that disclosure allows test takers to challenge wrong or biased answers and to learn from their mistakes, said the ruling sought by the plaintiffs would require some test takers to relinquish their consumer-protection rights and would lead to the abolition of truth-in-testing.

Others questioned a major premise of the New York suit.

"Truth-in-testing didn't limit the number of times the test is offered in New York," said Blair Horner of the New York Public Interest Research Group. "The test makers cut back administrations to punish the state for trying to protect its consumers."

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