- Do routine, written K-12 classroom tests and quizzes which are completed by students and count toward their grade for the class fall within the definition of academic examinations for purposes of Minnesota Statutes, section 13.34, such that a student who completed such an examination (and the parents of minor students) would only have the access rights accorded by section 13.34?
- Would Independent School District 196, Rosemount-Apple Valley-Eagan, be in compliance with Minnesota Statutes, Chapter 13, and federal law if it declined to provide students (and the parents of minor students) with copies of their completed tests and quizzes, but provided them with access to their completed examinations by allowing them to inspect and review the completed tests and quizzes in school under the circumstances described in the analysis section of the School District's April 18, 2005, letter?
|
Discussion:
Issue 1:
Do routine, written K-12 classroom tests and quizzes which are completed by students and count toward their grade for the class fall within the definition of academic examinations for purposes of Minnesota Statutes, section 13.34, such that a student who completed such an examination (and the parents of minor students) would only have the access rights accorded by section 13.34?
Minnesota Statutes, section 13.04, generally provides that data subjects have the right to inspect or obtain copies of data about themselves. Thus, a student who is a minor, and his/her parents, have the right to gain access to educational data about that student. (See sections 13.32 and 13.02, subdivision 8.) However, section 13.34 permits government entities to withhold certain information relating to academic examinations:
Data consisting solely of testing or examination materials, or scoring keys used solely to determine individual qualifications for appointment or promotion in public service, or used to administer a licensing examination, or academic examination, the disclosure of which would compromise the objectivity or fairness of the testing or examination process are classified as nonpublic, except pursuant to court order. Completed versions of personnel, licensing, or academic examinations shall be accessible to the individual who completed the examination, unless the responsible authority determines that access would compromise the objectivity, fairness, or integrity of the examination process. Notwithstanding section 13.04, the responsible authority shall not be required to provide copies of completed examinations or answer keys to any individual who has completed an examination.
In analyzing Ms. Coyle's question, the first issue is whether section 13.34 applies to the type of academic examinations she describes. Section 13.34 does not define the term academic examination. Minnesota Statutes, section 645.08, provides that words and phrases are to be construed according to their common and approved usage. Merriam Webster's Collegiate Dictionary, Tenth Edition, Merriam-Webster, Incorporated, 1996, defines academic as, of, relating to, or associated with an academy or school esp. of higher learning, and examination as, an exercise designed to examine progress or test qualification or knowledge. The Commissioner, in looking to the common and approved usage of academic examination, concludes that section 13.34 does apply to routine, written K-12 classroom tests and quizzes, which are completed by students and count toward their grades.
The second issue is resolving the apparent conflict between section 13.04 and section 13.34. Section 645.26 provides that when a general provision in a law is in conflict with a specific provision, and the conflict is irreconcilable, the special provision shall prevail and shall be construed as an exception to the general provision. Here, section 13.34 appears to be a special provision that is an exception to section 13.04. In addition, when the Legislature enacted section 13.34, it clearly was aware of the conflict and added the following language, Notwithstanding section 13.04, the responsible authority shall not be required to provide copies of completed examinations or answer keys to any individual who has completed an examination. (Emphasis added.) This suggests the Legislature intended section 13.34 to be an exception to section 13.04.
Issue 2:
Would Independent School District 196, Rosemount-Apple Valley-Eagan, be in compliance with Minnesota Statutes, Chapter 13, and federal law if it declined to provide students (and the parents of minor students) with copies of their completed tests and quizzes, but provided them with access to their completed examinations by allowing them to inspect and review the completed tests and quizzes in school under the circumstances described in the analysis section of the School District's April 18, 2005, letter?
In her opinion request, Ms. Coyle wrote, The [District's] second question is whether Minn. Stat. section 13.34 has the potential to conflict with federal law governing access to student data, and, if so, how such a potential conflict should be reconciled. Generally, federal law preempts state law, which, in this case, means that state law, specifically section 13.34, cannot place further restrictions on the rights of a minor student, or his/her parents, to gain access to data about the student.
Federal law addresses access to student records in both the Family and Educational Rights and Privacy Act (FERPA) and the Individuals with Disabilities in Education Act (IDEA). Generally, FERPA applies to all students attending educational institutions that receive funding from the federal Department of Education, and IDEA applies to children with disabilities. Except in a few situations not applicable here, FERPA provides that a parent or student must be given the opportunity to inspect and review the student's education record. (See 34 C.F.R. section 99.10(a).)
Providing copies of an education record is discussed in 34 C.F.R. section 99.10(d):
If circumstances effectively prevent the parent or student from exercising the right to inspect and review the student's education records, the educational [institution]... shall-
(1) Provide the parent or eligible student with a copy of the records requested or;
(2) Make other arrangements for the parent or eligible student to inspect and review the requested records.
IDEA contains a similar provision. (See 34 C.F.R. section 300.562.)
In her opinion request, Ms. Coyle wrote:
... Neither law requires that copies be provided except in rare situations in which circumstances effectively prevent the parents from physically exercising the right to inspect and review... (e.g., significant distance from school, parental disability or serious illness, extended travel, lack of transportation). In these atypical circumstances, a school district must either provide the copies or, under FERPA, make other arrangements for the parents to inspect and review the records.
Ms. Coyle noted, For purposes of this request for an opinion, assume that the rare circumstances that may necessitate copies under federal law do not apply.
She further wrote:
In School District 196, when parents are not provided with copies of completed examinations due to security concerns, they (and their child) are permitted to come to school to access to [sic] the completed tests through in-school inspection. This approach would appear to comply with both state and federal law regarding access to completed tests.
Ms. Coyle attached to her opinion request a copy of a memorandum prepared by the Minnesota Department of Education dated May 24, 2004. It is addressed to, Directors of Special Education, Other Interested Parties. The subject is, Test Protocols: Access and Retention. In the section entitled, Test Protocols as Educational Data, the Department wrote:
... The Family Policy and Compliance Office (FPCO), the federal office responsible for implementation of FERPA, determined in a Letter to Thomas that test protocols, as educational data, may be accessible to the parents under the following conditions:
1. If the test questions and answers are both personally identifiable to the student (that is, if the answers appear on the same sheet as the questions, and are identified by the student's name), the parents have a right to inspect both the questions and answers.
2. If the questions are separate from the answers, and only the answers are personally identifiable to the student, the parent has the right of access to the answers only. However, since 34 C.F.R. section 99.10 also requires an agency to respond to a reasonable request for explanation or interpretation of the record, the agency would have to inform the parent of the questions, if so requested, in order to explain the answers to the questions.
(See Letter to Thomas, 211 IDELR 240 (FPCO 1986).)
Accordingly, if a school were to maintain a copy of a student's test answer sheet (an 'education record'), the parent would have a right under Part B [of IDEA] and FERPA to request an explanation and interpretation of the record. The explanation and interpretation by the school district could entail showing the parent the test question booklet, reading the questions to the parent, or providing an interpretation for the responses in some other adequate manner that would inform the parent. 34 C.F.R. section 300.562 (discussion).
In the section of the memo entitled, Providing Copies of Test Protocols and Educational Data, the Department wrote:
The district is not unequivocally obliged to distribute copies of test protocols containing educational data to the parents unless failure to do so would effectively prevent the parents from exercising their right to inspect and review. 34 C.F.R. section 300.562(b)(2). In other words, if parents are physically unable to inspect and review the educational data about their child, the district must provide copies of the data to them. The U.S. Department of Education has interpreted this to mean that a parent shall receive copies of the records when he or she lives too far from the school district to see the records in person. Letter to Anonymous, 213 IDELR 188 (OSERS 1989) and Letter to Kincaid, 213 IDELR 271 (OSERS 1989). The parent also might be prevented from exercising the right to inspect and review for other reasons, such as a disability, lack of transportation, etc. Representatives from the district may use their own judgment regarding whether a parent is effectively denied access, but should take the above examples into consideration when making this determination.
Thus, in the situation presented by Ms. Coyle, it appears that, beyond those contemplated in federal law, section 13.34 does not place restrictions on a data subject's right to gain access to data. It appears, therefore, that if the District elects not to provide copies of completed tests and quizzes to data subjects, the District will be in compliance with state and federal law as long as it provides data subjects an opportunity to inspect and review the data.
Opinion:
Based on the facts and information provided, my opinion on the issues that Ms. Coyle raised is as follows:
- Routine, written K-12 classroom tests and quizzes, which are completed by students and count toward their grade for the class, fall within the definition of academic examinations for purposes of Minnesota Statutes, section 13.34, such that a student who completed such an examination (and the parents of minor students) would have only the access rights accorded by section 13.34.
- Independent School District 196, Rosemount-Apple Valley-Eagan, would be in compliance with Minnesota Statutes, Chapter 13, and federal law if it declined to provide students (and the parents of minor students) with copies of their completed tests and quizzes, but provided them with access to their completed examinations by allowing them to inspect and review the completed tests and quizzes in school under the circumstances described in the analysis section of the School District's April 18, 2005, letter.
|
Signed:
Dana B. Badgerow
Commissioner
Dated: June 10, 2005
