Re: test misuse

["Deanna M. De'Liberto" <Ddeliberto@AOL.COM>]

William,

In a message dated 9/1/01 8:55:58 AM Eastern Daylight Time,
kber@EARTHLINK.NET writes:

> Deanna

>  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.

I agree with the distinctions you have made.  I was a former teacher so I
know the above obligations well.
>
>  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.

Again I agree.  Then publishers can 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.

Again, I agree, but it might be more effective to also send notices to the
test publisher.
>

>  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?

They should and I know of cases in which test publishers have sued states for
their failure to ensure that tests used in their state are used appropriately.

> 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).

Again we are in agreement.  The only issue that we seem to disagree on is how
to enforce this.  My suggestion is that test publishers need to be notified
in addition to other reasonable actions.
>
>  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.

Correct.  But in order for courts to rule in that way, usually, someone needs
to prove that 1) the patent/copyrigt holder was aware that another entity was
violating these rights and 2) the patent/copyright holder did not take
reasonable actions to protect these rights.

I can tell you that about a year ago we filed 2 injunctions to protect our
copyrights and trade secret information.  While we might not be aware of
every offense, most courts would view us as vigorously protecting our rights
based upon the fact that when we have knowledge of the fact that our rights
are being violated, we have taken action.

 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.

Now I realize that there are some on this list that probably do read every
newspaper article I every newspaper.  But I am sure that test publishers do
not have the time to do that if they are to meet their contractual
obligations.  Yes, we take action when we see claims of this nature reported
in the newspaper and as part of my responsibilities for ATP, I do try to keep
well informed on these claims.  But again, I believe that courts would ask
the plaintiff to show evidence that the test publisher had knowledge and
simply pointing to a published article is not going to carry the burden of
proof required.  In this day and age, we have mail, overnight carriers,
phones, faxes, emails, etc.  Courts would want to know how YOU made the
publisher aware of these alleged violations and would require a Certification
of Service of same.
>


Deanna
===================================================
Deanna M. De'Liberto, President/Director of Assessment
D Squared Assessments, Inc.
(Specialists in Test Development/Validation and Test Administration)
9 Bedle Road, Suite 250
Hazlet, NJ 07730-1209
Phone:  (732) 888-9339
Email:    Ddeliberto@aol.com
Web:     http://www.quikpage.com/D/dsquared

Member of the Association of Test Publishers
===================================================
Join "D2 Algebra Readiness Discussion Forum" now!
  http://www.topica.com/lists/D2Algebra/

D Squared and D2 are trademarks of D Squared Assessments, Inc.
===================================================
Confidentiality Notice: This e-mail transmission
may contain confidential or legally privileged
information that is intended only for the individual
or entity named in the e-mail address. If you are not
the intended recipient, you are hereby notified that
any disclosure, copying, distribution, or reliance
upon the contents of this e-mail is strictly prohibited.

If you have received this e-mail transmission in error,
please reply to the sender, so that DSA can arrange
for proper delivery, and then please delete the message
from your inbox. Thank you.

--------------------------------------------------------------------------
To unsubscribe from the ARN-L list, send command SIGNOFF ARN-L
to LISTSERV@LISTS.CUA.EDU.