Dr. Celia Oyler is a professor of education at Teachers College. Recently, a teacher contacted her with an intelligent and cogent critique of the recent PARCC examination, including a few selections of content from the test itself. Dr. Oyler published this on her blog as the critique demonstrated very deep flaws within the test, specifically that PARCC is developmentally inappropriate, requiring students to read far above grade level, and that PARCC is dubiously aligned with the Common Core State Standards it allegedly assesses, requiring students to demonstrate skills not evident in the CCSS standards for their grade levels. As a critique, the teacher’s observations, backed with selected material from the exam, was pointed and a very valuable contribution to the discourse on the examinations. Because of the highly secretive nature of the exams and because of the extremely restrictive confidentiality agreements those who have access to it have to sign, it has been difficult to find critiques that are actually rooted in what the exams themselves require.
So, of course, that could not stand.
Within a week, Dr. Oyler was contacted by the CEO of PARCC, Laura Slover, with official “requests” that she remove “all of the material reproduced from the PARCC assessments.” The letter claimed ownership of all “intellectual property” for PARCC, Inc., claimed that Dr. Oyler’s blog “infringed” on PARCC’s copyright, “amplified” the breach of confidentiality the teacher committed by revealing the content to anyone, and that as an “infringer” Dr. Oyler could “be held personally liable for the damages incurred by Parcc, Inc. and those who have contributed financially to the creation and validation of the assessments, including without limitation the possible need, not only to create replacement items, but to create and revalidate new test forms.” Ms. Slover demanded that the material be taken down within 24 hours and asked Dr. Oyler to reveal the name of the teacher who contacted her with the material. In fact, she openly stated that PARCC’s willingness to “waive claims” against Dr. Oyler hinged not only on removal of the material from her blog, but also upon her cooperation in identifying the teacher — within 24 hours.
Dr. Diane Ravitch of New York University received a similar letter from Ms. Slover because of her blog post linking to Dr. Oyler’s, and Dr. Ravitch as well as a number of other Twitter users had tweets linking to Dr. Oyler’s post removed from the micro-blogging platform.
PARRC, Inc.’s heavy handed tactics lead me to a number of observations:
First: We should, once and for all, dispense with the tomfoolery from Common Core and testing proponents that the PARCC, SBAC, and other Common Core aligned exams are valuable for individual students and their families. For some time now, they have gone on about an alleged “honesty gap” in education where students and families were told by the previous state assessments that they were doing well in school while proficiency levels on the National Assessment of Educational Progress “proved” they were actually floundering. According to this line of thought, it is a good thing that many more students struggle to meet proficiency levels on the new exams because it is a hard “truth” that families must know.
For multiple reasons (kindly demonstrated by Jersey Jazzman both here and here), this is a load of hooey. But it is even a bigger load of hooey that these tests demonstrate this new “reality” in any meaningful way for individual students and their families, and PARCC’s heavy handed response to test security breaches pretty well proves it. Ms. Slover told Dr. Oyler that she could happily “view over 800 released questions from the spring 2015 tests that show the breadth and depth of the kinds of questions on the PARCC assessments.” That’s all nice, but a selection of hand curated items from the exams is not remotely the same as being able to view, and critique, the exam itself. Without releasing the entire exam, as it is presented to students who take it, there is no real ability for parents or teachers or researchers to critically examine it to determine if it is the kind of assessment PARCC claims it to be.
Even more to the point, without returning the entire exam to both teachers and students, the claim that we are “no longer lying” to people about their education is just air. When my children take an assessment made by their teachers at school, we get to see what items they got correct and what items they got wrong. We can inquire with their teachers about what the assessment says about their strengths and about their weaknesses. We can find out what is going on in the school to help support our children in their learning, and we can ask what we can do at home to help support their teachers. We can plan based on the assessment with the guidance of the professional teachers who know our children in context.
PARCC does no such thing. Far from their claim to Dr. Oyler that “transparency is one of the hallmarks of PARCC,” the hallmark of PARCC is to label students on their proficiency scale and to provide a simple statistical comparison of students to other students. Knowing that your child scored below, near, at, or above school, district, state, and national averages may be slightly more informative than previous assessments, but it doesn’t tell anyone jack frat about a single student’s strengths, challenges, or what can be done to better support that child. Of course, there are many standardized exams that sort and rank students, especially college and graduate/professional school admissions examinations, but nobody pretends that those exams are meant to help individual students get a better education or to provide teachers and schools with actionable information on how to better serve students.
Those promises were made for PARCC. They are unadulterated bull plop, and will remain so as long as the current reporting system remains in place where nobody knows a darn thing about how they actually did.
Second: I remain utterly mystified why PARCC retains such a copyright on a deployed exam in the first place. The two testing consortia, PARCC and SBAC, were awarded $330 million in grants from the federal Department of Education to develop the assessments. At the time, PARCC was comprised of 26 states – this year, they are down to 8 “fully participating” states. The grant announcement in 2010 promised that PARCC would “replace the one end-of-year high stakes accountability test with a series of assessments throughout the year that will be averaged into one score for accountability purposes, reducing the weight given to a single test administered on a single day, and providing valuable information to students and teachers throughout the year.” What we’ve gotten are – wait for it – annual end of year examinations and a set of “instructional tools” that teachers can use “at their discretion” during the school year. States left for a variety of reasons, but the projected ongoing costs certainly played a role. The consortium, however, still has expensive contracts with various states — New Jersey’s four year contract with PARCC could top $100 million. Pearson, by the way, was the only bidder for the contract to write the exam.
PARCC, Inc has taken in a lot of public money to develop and produce the tests. So one has to wonder why they get to maintain so much control of the test built for public use and on the public dime? An architecture firm that is contracted to design a new city hall may be able to copyright the design, but they cannot tell the town who can enter the building or block off entire wings from the public. When Northrop Grumman designed and delivered the B2 stealth bomber for the U.S. Air Force, they certainly filed patents on the technology, but they did not tell the Air Force who can see the finished product and when it could be used. They built it with public money, and then they had to let the government decide how to use it and who could know anything about it – they relinquished control.
But not PARCC, Inc which goes so far as to continuously monitor social media to detect students and others who know test content divulging any of it in public. While it is certainly fair for the testing consortium to keep strict control on the test as it is under development and in current use, the refusal to generally distribute the test after it is done using the copyright system is noxious and thoroughly antithetical to the stated purposes of the exam, undermining any reason for the public and for educators to have faith in it as anything other than a means of sorting and ranking children and schools without real transparency. We’ve paid for PARCC’s development as a nation. The various states pay for PARCC to distribute and to deploy the exam in their states and to score them. But not one person has a right to see the entire exam, and not one parent or teacher has the right to see how particular students did on the exam and to learn from it. And Ms. Slover revealed PARCC’s real reason in her letter to Dr. Oyler when she threatened to hold her “personally liable for the damages incurred by Parcc, Inc. and those who have contributed financially to the creation and validation of the assessments, including without limitation the possible need, not only to create replacement items, but to create and revalidate new test forms.”
In other words: money. PARCC wants to recycle as much as the exam as is practical, and holding the copyright threats over those who want to study and discuss the exams is the best way of doing that.
So PARCC may hold a legal copyright – but the fact that they were allowed to do so in their contracts is absurd.
Third: Even if PARCC’s copyright is legally valid, is Ms. Slover’s application of that copyright – threatening bloggers and having content removed from social media – valid? Copyright does not provide a complete protection from revealing material that is under copyright, and Dr. Julian Vasquez-Heilig, Professor at California State University at Sacramento, makes a pointed observation that “fair use” allows for limited reproduction of copyrighted material for a variety of purposes such as “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” The fair use doctrine is not absolute and requires a careful balancing analysis in each and every case. For example, “fair use” would not allow someone to set up a College and Career Readiness Assessment Partnership (or, CCRAP, if you will) and then just distribute the entire test under the guise of an “educational” purpose.
However, Dr. Oyler’s post was clearly a critique and designed to inform the public about the nature of the PARCC examinations. While fair use under that category would have to be argued by people with expertise, it is hard to imagine why such an argument cannot be made. Diane Ravitch reports that a board member of the Network for Public Education is an attorney with significant experience in intellectual property law, and his opinion was that PARCC’s claim has little merit. Not only were most of the materials considered objectionable descriptions rather than excerpts, but also the question of fair use for actual quotations has to be considered given the purpose of of the blog.
Another potential fair use exception should be considered as well: news reporting. While the law on this is a complex and shifting landscape, it is true that there have been court rulings that grant bloggers the status of journalists. Critically examining the PARCC tests could not be more in the public interest regardless of the organization’s desire to wield copyright to prevent that examination from happening. 100s of millions of dollars of federal money was spent developing them. States are contracted to spend 100s of million of dollars more using them. While the secrecy about the tests make them utterly useless in helping teachers and schools design better instruction for students individually and collectively, the exams are being used for very high stakes purposes. Annual testing is a requirement under federal law, including the revised Elementary and Secondary Education Act that passed last year as the successor to No Child Left Behind. While states and districts have more flexibility in the use of testing under the new law, there is no indication that states are rushing to remove growth measures based on standardized tests from teacher evaluations, so PARCC still has an impact on teachers’ careers. Students and schools are still being ranked based largely on standardized test data, and under agreements with the Obama administration that are still in effect, states are obligated to identify their lowest performing schools using standardized test data. What exactly will come when the new law is in full effect is unknown, but there is no reason to believe that annual tests will cease to play high stakes roles in how students are sorted, how teachers are evaluated, and how schools and districts are ranked.
I find it very hard to entertain the notion that PARCC Inc’s interest in being able to continually dip into a pool of unreleased test items outweighs the public’s interest in knowing the content and the quality of tests we’ve already spent huge sums of money on and which are and will continue to be used for high stakes purposes. PARCC needs to put down the copyright club and legitimately engage the public whose tax dollars fund its entire existence.