High-stakes tests spawn high-stakes lawsuits

NEA Today, May 2003 by Simpson, Michael D

Teachers fired, sued for revealing test questions, while a testing company agrees to pay $12 million for faulty scoring.

James Hope just wanted to warn parents that the new high-stakes test was unfair. But when this NEA member and Teacher of the Year posted six test questions on a parents' website, along with his criticisms that the test covered material that had not been taught, his school district charged him with violating the state Code of Ethics for Educators. The Georgia Professional Standards Commission (PSC) agreed and voted last year to suspend Hope's teaching license.

But with the help of the Georgia Association of Educators, Hope appealed the proposed suspension. Last December, Fulton County Judge Gail Tusan exonerated him of any wrongdoing.

The court ruled that the ethics code only prohibits teachers from helping students cheat by providing them with test questions prior to administering the test. Hope didn't do that, the court said.

After a three-year odyssey, the case ended in January, when the Georgia Court of Appeals refused to overturn the trial court's decision. Hope is still teaching fourth grade in Gwinnett County.

Some other recent challenges to flaws in the high-stakes testing process:

* Chicago teacher George Schmidt hasn't fared as well as James Hope. The Chicago Public Schools (CPS) fired and then sued him for $1.4 million for publishing parts of the Chicago Academic Standards Examinations (CASE) in 1999.

Schmidt had criticized the CASE tests for sloppy wording and inaccurate answers.

Last December, a federal district court ruled that Schmidt's publication violated the CPS's copyright to the tests and enjoined him from publishing any copyrighted school district materials. In February, CPS stipulated that Schmidt owed only $500 for the copyright violation. Nevertheless, Schmidt has appealed the case to the federal circuit court.

Schmidt's termination for insubordination was upheld by a state board hearing officer, however, and his appeal to state court is still pending.

* Meanwhile, a group of Chicago teachers threatened last fall to boycott the CASE tests, calling them "flawed and invalid." CPS announced last December that it had decided that the CASE tests would not be administered in January as scheduled, but that the district would develop new tests better aligned with state standards.

* In Minnesota, a testing company agreed last November to pay up to $12 million to settle a class action lawsuit alleging that it wrongly scored thousands of the Minnesota Basic Skills Tests in 2000.

The National Computer Systems falsely notified some 8,000 students that they had failed the high-stakes test.

Under the settlement, students denied the opportunity to participate in graduation ceremonies because of the company's error can recover $16,000, while students who had to attend summer school are eligible for up to $1,000. The state of Minnesota has since switched testing companies.

* High-stakes tests are being challenged in two other states. Last February, a Florida organization filed a complaint with the U.S. Department of Education charging that the state's new mandatory graduation exam violates the rights of students with disabilities because they are denied adequate accommodations for taking the test.

* And in Massachusetts last September, advocates filed a class action lawsuit claiming that the state's mandatory graduation exam discriminates against Black and Hispanic students, as well as students with disabilities and limited English proficiency.

-Michael D. Simpson NEA Office of General Counsel