Re: test misuse

[kber <kber@EARTHLINK.NET>]

Deanna

you wrote "In a crime situation, if you witness the crime, you MUST report it to
the
police so that they can investigate it."


I hope you realize that your use of "must" is unclear.  If you mean to say that
you have a moral obligation to do so otherwise the fabric of the social contract
is rent, then your use is proper.  But if you mean that a witness has an
affirmative legal obligation, you are incorrect in most circumstances.  If
questioned we are supposed to tell the truth, and to be responsive to the
questions posed.  Failure to come forward is NOT, however,  a criminal offense.

Public servants are, however, held to a higher standard.  Municipal, county and
state codes often specify that failure to report possible wrong-doing qualifies
as dereliction of duty and can be by itself grounds for dismissal.  Let me give
an example.  I am a school teacher.  If I observe certain things that may be
indicative of sexual or physical abuse of a child, I am required to report my
observations to appropriate authorities.  Technically this can be done through a
report to the designated official in my school or system - I do not have to
personally contact child welfare services.  But failure to take any action can
and likely will lead to loss of the privilege to teach in the Commonwealth of
Virginia.   But I am held to a different standard because I have a position of
public trust and a responsibility for minor children.  The average man or woman
in the street is not currently held to any such standard legally.

Now let's place this back in the context of misuse of tests by public
officials.   I would argue, and I am not lawyer, that ANY public official who
has possible knowledge of misuse of a test has an affirmative responsibility to
take action.  Thus, and Mickey I hope you are listening, it seems to me that
teachers possibly should be filing notices of abuse up the line when tests that
are specifically labeled for one purpose are used for another.  Potentially
there could be child abuse elements to this.  Clearly a state test like SOL
specifically designed for the purpose which the Commonwealth of Virginia
applies, even if a poor instrument, would not meet this test.  But
misapplication of SAT9 or Iowa,  tests which do have disclaimers and/or
instructions about proper use, might.

Of course, now we get into fuzzy areas.  Cigarette companies fought the
requirement for the Surgeon General's warning to be on their products.  Then
they tried to hide behind the warnings claiming the warning meant the consumer
was informed, and that they were therefore not liable for any damages covered by
that warning.  Recent court cases seem to have undermined that stance.

let's apply it to testing.  Clearly state and school authorities have chosen to
use legal powers to discipline when test security has been violated.  So why
cannot they be held to the same standard if approved use is violated?  Further,
might not denying a graduation by application of a test not approved or
validated for the purpose of determining high school graduation possibly
represent a property loss (high school diploma) by a government authority
(public schools are considered part of the state constitutionally, even if the
decision is a local decision), and might not there be a fifth amendment property
right violation (takings) or fourteenth amendment rights (due process nd/or
equal protection).

Let's bring it back to the test companies.  Let's suppose I have a patent or a
copyright.  If I fail to enforce my rights under that grant of patent or
copyright, the courts are likely to rule that the rights are waived by my
failure to act.  I would think (and again I am not lawyer) that a clever person
could craft an argument that failure of test companies to VIGOROUSLY enforce
their rules for appropriate use of their product (test) means any legal
protection against suit has also been waived.  Failure to require your customer
to use your product in the way you specify when you have reasonable notice
(through published reports) that the customer is not so doing may mean that you
have tacitly accepted their misuse, therefore you are as responsible as they
are.


Just the few musings of a slightly cracked social studies teacher.  WARNING:
the foregoing does not represent legal advice to any party, as the author of
this posting is not a member of the bar of any state.  FURTHER WARNING:  if you
really start thinking all the pieces through, you may want to scream with
Emerson that "a foolish consistency is the hobgoblin of little minds."

Take my remarks for what they are worth.  If you consider them half-baked
musings from a not quite awake teacher on a Saturday morning, so be it.  But
just maybe I've provoked a few more thoughts?

peace to all.


Ken Bernstein

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