We frequently get questions about the rights of parents of special education students to access the prompts, protocols and raw testing data produced by a special education evaluation. These requests raise concerns that seem much broader than one student’s evaluation; the confidentiality and security of testing protocols is stressed as an essential condition of the test’s continued integrity and validity. And what about copyright? Despite these concerns, does the parent have a right to access the protocol? Does the parent have a right to copy the protocol? Before the assessment is administered, the answer is no; access to testing protocols at that time would undermine the evaluation’s validity. After, the evaluation is complete, though, it depends. . .
Right to Access Education Records
Under both state and federal law, parents have the right to access and inspect the education records maintained regarding their student. Education records are generally defined as “records, files, documents, and other materials” that “contain information directly related to a student” and are “maintained by an education agency or institution.” 20 U.S.C. § 1232g(a)(4). Similarly, with respect to the records of special education students, the IDEA incorporates this same definition.
Consequently, whether parents have a right to access and inspect testing protocols under FERPA is dependent upon whether those protocols “contain information directly related to a student” and are “maintained by an education agency or institution.” In Nebraska, parents have a right to copies of any education records, whereas in South Dakota parents would, at most, have the ability to inspect the records.
If a student’s identifying information and answers are being “maintained” – as that term is defined by district policy – the testing protocols are education records. “A test protocol or question booklet which is separate from the sheet on which a student records answers and which is not personally identifiable to the student would not be a part of his or her ‘education records.’" Letter to Shuster, 108 LRP 2302 (OSEP 2007).
Parental Participation Rights
Even if testing protocols are kept separately from a student’s personally identifiable information (PII) or are not “maintained” by a school district, parents may still have a right to access those protocols in whole or in part in order to understand their student’s records and evaluative results.
According to the federal Office of Special Education Programs (OSEP):
Part B and FERPA provide that an educational agency or institution shall respond to reasonable requests for explanations and interpretations of education records. Accordingly, if a school were to maintain a copy of a student's test answer sheet (an ‘education record’), the parent would have a right under . . . FERPA to request an explanation and interpretation of the record. The explanation and interpretation by the school could entail showing the parent the test question booklet, reading the questions to the parent, or providing an interpretation for the response in some other adequate manner that would inform the parent.
Id. (Internal citations omitted).
As a result, if you receive a request for testing protocols it is possible that some or all of that protocol must be provided in an appropriate form. Ultimately, it depends on what information is necessary and appropriate to explain the student’s education records and facilitate meaningful parental participation. See, e.g., McKinney Indep. Sch. Dist., 54 IDELR 303 (SEA TX 2010).
But What About Copyright Protections?
I know . . . every time you want to do something fun, we here at KSB stand ready with the Copyright Act of 1976 to tell you to stop. Finally, we’ve come across a scenario where copyright protections seem like they should help you avoid disclosing sensitive testing protocols. Unfortunately, though, this probably isn’t the case.
With respect to requests for records under the IDEA and FERPA, the Department of Education has noted that “federal copyright law generally should not be implicated” because the requests “generally do not require the distribution of copies of an education record, but rather parental access to inspect and review.” However, unlike FERPA and the IDEA, some states like Nebraska provide that parents also have a right to copies of education records.
While Nebraska courts have not yet addressed the issue, at least one court has indicated that providing copies of testing protocol that qualify as education records, as required by section 79-2,104, is a permissive “fair use” of the copyrighted materials. See Newport-Mesa Unified Sch. Dist. v. State of Calif. Dep’t of Educ., et. al., 371 F. Supp. 2d 1170 (C.D. Cal. 2005).
But I Thought Karen Said. . .
I know. . . I know. Sometimes it only takes 15 years to convince Karen she could be a little less aggressive. But, in fairness, the extent to which parents are entitled to access to testing protocols and raw responses is truly a fact-dependent inquiry. In a lot of cases, the evaluative report and other information supplemented by the evaluator is comprehensive enough to interpret records and facilitate meaningful parental input. After a few recent experiences, though, we’ve found it is beneficial to err on the side of retention in the event that the protocols and other documentation generated during the evaluation become necessary.
Going Forward
We know that many evaluators have a practice of destroying testing protocols and raw response data after an evaluative report has been completed. Unfortunately, in some circumstances this practice will run afoul of a school’s obligation to provide and explain education records or facilitate meaningful parental participation in special education processes. As a result, we recommend that you inform all of your evaluators and service providers that they are required to retain testing protocols and other documents produced while conducting evaluations. In fact, this is a requirement we’ve incorporated into our recently updated evaluation criteria policy.
If you have any questions about requests for access to testing protocols, or any other issue, please don’t hesitate to call Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send us all an email at ksb@ksbschoollaw.com.
