Do Parents Have A Right Under The
Family Educational Rights and Privacy Act (FERPA) To See Their Children’s Responses On State And District Assessments?From Connection, newsletter of Community Action for Public Schools (CAPS), March-April 2000
Today large-scale assessments are routinely being administered as part of State accountability systems. 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 to determine whether students will be promoted or be graduated with a regular high school diploma, does a parent have a right to review the test protocol, the scoring rubric and his/her child’s responses to short answer and essay questions?
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 other ways.”
The recently revised, joint report on Standards for Educational and Psychological Testing states that: “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 afterward 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 Education Rights and Privacy Act (FERPA)
Access to Test Protocols Including the Student’s Written Responses
Under the Family Education Right to 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. 1232g; 34 C.F.R. 99.3. The plain language of the statute and regulation seems 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 grade book, 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 scores comes from more specific regulatory language that defines “records” as “including, but not limited to, handwriting, print, computer media, video or audiotape, 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.
Access to Scoring 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 rubrics by which the student’s performance is assessed. FERPA, however, expressly 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 the scoring rubric is a necessary response to 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, the decision to deny access to the scoring rubric to a parent or eligible student would be fundamentally unfair and vulnerable to challenge of 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.
Right to Challenge Accuracy of Information is Limited
Under the statute and its regulations, parents or eligible students are entitled to a hearing to challenge the accuracy of information recorded in the education record. Access to the test responses and test rubrics does not necessarily imply an ability to challenge the grading of a particular test. Case law suggests that a dispute over the subjective grading of an assessment does not create a question of whether the record is “inaccurate” or “misleading.” In passing FERPA, Congress emphasized that its purpose is to ensure that “parents of students could seek to correct an improperly recorded grade” but not “contest whether the teacher should have assigned a higher grade because the parents or students believe that the student was entitled to the higher grade.” 120 Cong. Rec. 39,862 (1974) (Joint Statement in Explanation of Buckley/Pell Amendment). This purpose was reiterated in Tarka v. Cunningham, 917 F.2d 890 (5th Cir. 1990), ruling that in the case of a graduate student challenging a “D” he received as a grade in physics, “[s]tudents’ grades, as reflected in educational records, can only be inaccurate or misleading if they do not reflect what the grader intended or if they are mathematically incorrect.” At 891. The court found that it would otherwise legitimate a substantial federal intrusion into matters of local governance. At 892.
Tarka was followed by Altschuler v. University of Penn. Law Sch., 1998 U.S. Dist. Lexis 3046 (finding that “Grades may be characterized as inaccurate or misleading under FERPA only ‘if they do not reflect what the grader intended or if they are mathematically incorrect’”) and Lewin v. Medical College of Hampton Rds., 931 F. Supp. 433 (E.D. Va. 1996) (finding that a medical student who, with federal Department of Education intervention, received access to an exam he failed could not dispute the test rubric’s accuracy). The court’s reasoning in Lewin reinforces the narrow interpretation of the FERPA term “inaccurate” by rejecting the student’s attempt to offer proof that his answers to two allegedly ambiguous questions were “objectively correct.” Id. at 445. It based this conclusion on three reasons: (1) “the complexity of the questions at issue reveals that Lewin’s proof of the alleged inaccuracy does not relate to a technical, ministerial or mathematical mistake in the grading of his exam”; (2) the disputed possible answers seemed too subjective for the court to adjudicate; and (3) considering the totality of the test, “[i]t is entirely possible that, of the remaining 156 questions, Lewin may have received credit which did not “accurately” reflect his knowledge of the subject.” Id. At 446.