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Federal Appeals Court Overturns Judgment Against New York's

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'Truth in Testing' Law By Mark Walsh

New York State's law requiring disclosure of standardized-testing information won a reprieve last week when a federal appeals court vacated a district court's summary judgment that the law conflicted with federal copyright law.

The ruling by a three-judge panel of the U.S. Court of Appeals for the Second Circuit, issued March 12, remands for trial a decision issued last year by U.S. District Judge Neal P. McCurn of Syracuse, N.Y.

Acting in a challenge brought by the Association of American Medical Colleges, Judge McCurn ruled that the truth-in-testing law does not constitute a "fair use" exception to federal copyright law and, thus, was unenforceable.

The judge issued a permanent injunction that made his ruling applicable only to the aamc, which administers the Medical College Admission Test, or mcat. (See Edu4cation Week, Jan. 31, 1990.)

The truth-in-testing law, adopted in 1979 after intensive lobbying by consumer and civil-rights groups, requires the submission of standardized tests and related materials to the state. It also mandates that individual test-takers be allowed to obtain a copy of their test questions and answers, as well as the correct answers.

The medical colleges' association has never been required to conform to the law because of a temporary injunction issued when the aamc first challenged the law in 1980.

Other testing agencies, however, were motivated by the New York law to adopt nationwide test-disclosure policies. They include the College Board, which sponsors the Scholastic Aptitude Test, and the American College Testing Program, which sponsors the American College Test.

However, the College Board and other testing agencies last year cited Judge McCurn's ruling when they sought an injunction from the U.S. District Court that would have allowed them to administer some of their tests without disclosing the questions and answers. (See Education Week, April 25, 1990.)

Under an agreement reached with state officials last May, the College Board added two administrations of the sat in New York this academic year that were exempted from the disclosure requirements.

The aamc has argued that disclosure of its tests would prevent the reuse of test questions and would require the expensive development of new tests. But the state of New York has suggested that questions could be reused, if the testing organization took steps to minimize the impact.

Cinthia H. Schuman, executive director of the National Center for Fair and Open Testing, or FairTest, said the appeals-court decision "breathes new life into truth-in-testing."

"This is too important of a public policy issue for it not to get a full and fair hearing," she added.

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