Avoiding Common Core's Biggest Legal Liabilities

From bandwidth issues to playing nice with assistive technologies, there's a lot that can go wrong in the world of high-stakes online testing. Our new legal columnist shares why it's not just states and testing companies with a lot on the line.

• By Justin Bathon
• 08/06/13

Like it or not, massive online examinations are coming to your district. And when they do, it will be for keeps. The reasoning behind that is simple enough: The efficiencies in that delivery model are too large to ignore. But at the same time, so are the risks.

There's the risk of large-scale failures compromising controlled testing conditions, sure. But the bigger concerns are about the lack of flexibility to meet local needs, such as accommodating special education students. As these kinds of high-stakes assessments are now central to our collective definition of schooling success, both the positives and negatives of the assessment delivery systems are magnified. Any interruptions or injustices emerging from these systems are likely to be highly scrutinized and can potentially lead to litigation. The road to full implementation of online assessments is likely to be rocky, and school officials would do well to begin detailed preparations for that journey immediately.

Big Tests, Bigger Problems
The widespread adoption of the Common Core State Standards has created the expectation that most children in the United States will be tested in cloud-based online examinations on the new standards in the next few years. As recent high-profile testing failures of such systems have shown, there are still a few kinks to be worked out. During April, three statewide testing companies had systemic technical failures across four states during the spring examination cycle, inspiring little confidence.

These failures certainly have legal implications for both states and testing companies. States like Oklahoma and Wyoming have considered legal action, and settlements for testing failures can be as large as $11.1 million. Calls for lawsuits like these, stemming from vendor technical failures, also portend similar potential lawsuits on the part of community members angry at technical failures on the part of schools or districts. Some of the students impacted in Oklahoma were high schoolers taking end-of-course exams that can affect their chances for graduation. Thus, potential private sector lawsuits against both the testing company and the school system--say, from jilted parents--are a firm possibility in these instances.

Given the enormous technical challenge of preparing for large-scale online testing at the local level, particularly in rural communities, the potential for technical failures during test administration is high, and states and school districts should be actively working now to prepare for the implementation of these online tests. Preparations might include reviewing contract language with wireless and bandwidth providers, having a device charging plan or policy to ensure access to an adequate charge for the exam, reviewing the district filtering policy for activities during test administration, strategizing for the administrative response in the event of a technical failure, and consulting with district legal counsel in an effort to prepare all for potential eventualities.

Special Ed's Special Circumstances
The challenges--and the liabilities--don't stop there. Even with a strong backend, districts will still need to consider how online testing will affect all students, especially those with special needs. The impact on these students and their individual education plans (IEPs) has the potential to be legally problematic in several ways.

Special education, of course, is one of the most litigious aspects of the education system in general. Not only are there a large number of lawsuits, but administrative due process hearings also constitute a large percentage of legal attention within districts. This is the direct result of the foundational guarantee of the Individuals with Disabilities Education Act (IDEA) that all students be provided an IEP that is responsive to the student's unique needs.

Because of these unique needs, the federal government has long required that special needs students be provided accommodations or modifications to state assessments as part of the IEP. These determinations are made locally by the IEP team. But while a local IEP team can decide that the assessment should be modified, or that the student should be provided special accommodation when taking the exam, national online exams will struggle to offer this level of flexibility given their need for norm-referenced standardization. There's also the increased difficulty in modifying delivery options in the online environment. Issues here include the time of delivery, pacing, and question interface. This may be a particularly acute challenge for students who are deaf, blind, or have multiple disabilities.

So, what's a district to do? Enter assistive technology. Federal law supports educators who wish to provide any equipment that improves the functional ability of the child to overcome barriers that result from disabilities. These days, assistive technologies are increasingly device-driven and depend on software ranging from simple spell-checking applications to complex text-to-speech software.

The good news is that states have already put great effort into making general regulations and recommendations for assistive technology accommodations on their existing assessments (a state-by-state list is available online). These accommodations are often highly controversial, as Kentucky recently found out in its effort to eliminate the "read-aloud" option on the reading part of the state, Common Core-based exam. As these assessments move to nationally oriented, cloud-based, digital exams, the potential for legal controversy at both the local and state level increases because of online assessments' lack of flexibility to permit assistive accommodations.

The most litigious component of special education, though, has always been driven by procedural issues. This is a result of the initial special education Supreme Court decision, the Rowley case, which relied on strict adherence to proper procedures as a way of ensuring quality substance in the IEP. Thanks to Rowley, educators are generally responsible for following procedures, including those related to testing, as defined by regulation and a given student's IEP. It is the procedures in the IEP that present potential problems. As local modifications or accommodations are made on the online exam, any issues in the delivery of the online exam (such as those experienced in Oklahoma and Wyoming) raise the potential of procedural issues.

For instance, a delay in the online assessment--and subsequent rescheduling due to technical difficulties--may interfere with other IEP-mandated activities later in the semester. Any local causes of such delays, such as an overload of a district's bandwidth or wireless networks, only add to the potential liability. Traditionally in special education law, such procedural flexibility on IEP implementation is not permitted. A district that unilaterally modifies the IEP or timelines to implement the assessment risks opening itself to a potential due process hearing, and a subsequent lawsuit.  

The road to full implementation will not be without its bumps, but districts that prepare answers, and their staff, for the difficult questions ahead will find themselves in much better shape as testing moves to this next phase in its evolution.