Did Pearson Just Make PARCC Questions Public Records?

Pearson's statement that PARCC questions
belong to the states.
On March 14th, PARCC test author, Pearson, publicly divested themselves of legal ownership of test questions.  Did this move make PARCC questions a matter of public record?  The answer is a resounding "Possibly."

From Private Matter to Public Record

From the beginning, PARCC test questions represented work completed by a government contractor and paid for with taxpayer dollars, a fact which subjects them to the risk of entering the public domain.  Since then, several factors have come together which potentially exclude the PARCC test questions from protections typically provided to state tests:

  1. A huge number of schools in New Jersey have publicly stated that the PARCC test would not be used for academic evaluations for 2015, while the State of NJ has not seen fit to make the PARCC a requirement for graduation.  
  2. In early March the NJ State Assembly put forth A4190, which among other things, eliminates PARCC as an academic assessment for 3 years (the PARCC would take place, but have no academic application).  
  3. Finally, in a mind-boggling move, on March 14th 2015, Pearson public gave up rights to the PARCC test questions in the following statement on their website, "Test questions are owned by the PARCC states, which must protect their investment and the integrity and validity of their tests."  -- Some have suggested the PARCC states always owned the questions, despite the fact that Pearson has previously claimed ownership in public forums.

All of this starts to sound like a false "magic words" argument, the sort of thing where someone tries to get out of a speeding ticket because the officer used an unregulated pen, but the concern is actually quite legitimate: New Jersey has some of the best public records laws available and exemptions are present only for very limited scenarios.  Abusing those exemptions to keep things which should be a matter of public record away from taxpayers erodes the public's right to informed participation in government.

A Typical PARCC Question
In the case of the PARCC test questions, it's questionable as to whether or not a state needs to have ownership of the test materials.  States are interested in standardized tests remaining up to date, secure, and carried out in an efficient and accurate fashion.  It makes perfect sense for a state to hire a professional testing company to develop and administer tests.  Government, under any definition, is about managing limited resources to the benefit of the taxpayers, not necessarily being hip deep in the minutiae of standardized test development.  Contracting out test development is an appropriate form of delegation.  Moreover, test materials are likely more secure when owned by a private corporation.

The Exemption Invalidated

So how did the PARCC questions become a matter of public record?  Simple: You paid your taxes.  You paid your taxes, NJ paid Pearson (via PARCC), and Pearson just publicly stated that the PARCC states own the test questions.  By default, that means you own the test questions and can request them from the State Department of Education using this form for free online here (we'll wait for you).  In New Jersey, in addition to FOIA, there is the New Jersey Open Public Records Act (OPRA).

There are a number of exemptions from the Open Public Records Act in NJ that are intended to prevent the disclosure of standardized test questions.  The most relevant of these is GRC Exemption No. 17:

  • Pedagogical, scholarly and/or academic research records and/or the specific details of any research project conducted under the auspices of a public higher education institution in New Jersey, including, but not limited to research, development information, testing procedures, or information regarding test participants, related to the development or testing of any pharmaceutical or pharmaceutical delivery system, except that a custodian may not deny inspection of a government record or part thereof that gives the name, title, expenditures, source and amounts of funding and date when the final project summary of any research will be available;
  • test questions, scoring keys and other examination data pertaining to the administration of an examination for employment or academic examination;
  • records of pursuit of charitable contributions or records containing the identity of a donor of a gift if the donor requires non-disclosure of the donor's identity as a condition of making the gift provided that the donor has not received any benefits of or from the institution of higher education in connection with such gift other than a request for memorialization or dedication;
  • valuable or rare collections of books and/or documents obtained by gift, grant, bequest or devise conditioned upon limited public access;
  • information contained on individual admission applications; and
  • information concerning student records or grievance or disciplinary proceedings against a student to the extent disclosure would reveal the identity of the student.

A Question, from the PARCC Exam
See the bolded text?  That's the problem: the PARCC is not an "academic examiniation" as it currently serves no academic purpose.  Even if the PARCC were used to determine funding, which it is not currently (no matter what you've heard), the results of PARCC are not being utilized by the NJ Department of Education to evaluate students academically at this time.  PARCC is not a requirement for graduation or grade advancement and the majority of schools have stated it will not be reflected in the grades of students.  By any measure, indeed by nearly any relevant definition, the PARCC is not being administered as an academic examination at this time.

So what is PARCC at this time, if not an academic examination?  There may not be a clear role for the test, since it's been essentially stripped of its original purpose through controversy and conflicting policies.  I would suggest that the 2015 NJ PARCC assessments might be a metric used in the development of future PARCC tests, which may then themselves constitute academic assessments, but that's largely a point of conjecture.

On a related note, write to me in the comments if you can find a definition of "Academic Examination" within the laws of the State of New Jersey.  That might help clarify this entire issue.

Why Does This Matter?

Let's back up for a minute and ask a better question, "Who would want the PARCC test questions to be public?"  The answer is, just about no one.  Not me, not you, not the millions of taxpayers across now 11 states who paid for the development of the test; just about nobody would want the PARCC test questions to be made public.  However, the question of whether or not the questions are public remains an important one because it relates to Pearson's strategy in trying to shift the blame following their recent investigation by the NJ State government for harassing and intimidating a student who allegedly posted about the PARCC test on their personal Twitter account.

That case, which occurred in Warren, NJ, involved a student allegedly posting a PARCC test question to their personal Twitter account.  Several time zones away in Utah, an employee of Caveon, under contract from Pearson, tracked down the student (a minor) and got the school district's testing coordinator out of bed to discuss the "security breach."  The NJ Department of Education was called in to investigate and has reportedly declined the punish the student.  The student removed the offending tweet, under some duress, and has not been either publicly named or charged with a crime.  That case resulted in Pearson and the PARCC being placed under a microscope for alleged harassment and intimidation, culminating with a representative of Pearson being summoned before the NJ State Assembly, Thursday March 19th.

Pearson is now trying to make the argument that their monitoring of children's social media accounts, via Utah based sub-contractor Caveon, was a case of "just following orders" put forth by the NJ State government.  Their argument that they don't own the test questions is a dubious part of that strategy, designed to take the blame off their company and place it onto state governments.  We need to hold elected officials responsible for protecting the privacy of our children, particularly when massive quantities of personal data is being stored about them as in the case of the PARCC, but this does not absolve Pearson, which went out of its way to create and staff a system of monitoring which is both invasive and abusive to students.

Believe it or Not

Believe it or not, it gets worse for PARCC.  Pearson stated that the PARCC questions belong to the member states of the PARCC consortium, which means that requests for PARCC questions as a matter of public record can be entered in all 11 states of the PARCC consortium (and DC), as well as potentially states which have left the consortium, under both the national Freedom of Information Act (FOIA) and the respective state's open public records law.  You do not have to be a resident of a state to make a request, either.  This greatly increases the exposure of the PARCC test questions under public records law as well as the possibility that one of the many requests made could succeed in part or in its entirety.

In New Jersey, the Town of Roxbury recently lost a lawsuit for failure to turn over police procedures which were a matter of public record under OPRA and paid some $21,500, which largely consisted of legal fees.

The New Jersey Government Records Council fields thousands of requests for OPRA clarifications each year, with a number of them resulting in the release of additional records.  In the case of PARCC test questions, the burden will be upon the NJ Department of Education's Records Custodian (and their legal team) to demonstrate that the test, which has no academic use, still meets the requirements for the exemption.

What Happens Now

Private companies take note, when engaging in government contracts, it is extremely important to carefully consider ways in which your competitive advantage could inadvertently become a part of the public record as a result of differences in public records laws across legal jurisdictions.

Several requests have been submitted under New Jersey's OPRA to gain access to the PARCC test questions.  Personally, I hope those requests do not succeed, but will not speculate on what grounds the courts may use to decide the matter.  As taxpayers, we paid too much to have the questions out in the open, but it is hoped that these requests will help to demonstrate the need for firm leadership and ethical management of the standardized testing process.
Kids taking the PARCC exam

PARCC has its good and bad points, as with anything.  We've used the SATs for decades, despite the fact that it's been shown they're largely a test of how well you can take a test, they traditionally relied heavily upon multiple choice questions, the math portions are extremely susceptible to a strategy known as "ballparking," and huge variations in scores can occur from a relatively minor amount of test preparation.

There is nothing wrong with creating a modern standardized test which evaluates student mastery of the materials currently being taught in schools.  However, the process that brought forth PARCC and which resulted in a standardized test that requires a ratio of nearly 1 computer per student even in the poorest districts and a massive 18 days of testing time at the 3rd grade level is an absolute disaster.  Pearson's attempts to shift blame for the entire fiasco to the states, who have largely tried to pin the blame on Pearson, continues to demonstrate the need for the development of quality standardized tests and testing procedures which effectively assess student education at a time at which changes can still be made to benefit the student while taking into account the very real limitations of time, schools, teachers, and districts throughout the country.  Not only is this latest public records wrinkle yet another mark against the PARCC test, it's a strong indicator that Pearson may not be the company to develop the effective, modern standardized test that America needs.