Lawsuits over high-stakes standardized tests? Attorney suggests test vendors and U.S., state education departments better shape up

Is it time yet to sue over high-stakes standardized tests? Maybe not quite yet, but a prominent school attorney says lawsuits are all but inevitable unless the standardized "test consortia and our federal and state governments should take a deep breath" and take a closer look at what they're doing.

Miriam Kurtzig Freedman is a former teacher and hearing officer for the Massachusetts Education Department. Since 1988 she has been with the Stoneman, Chandler & Miller law firm of Boston, "a full service labor, employment and education law firm engaged in the representation of public and private employers and public schools."

In a recent post to her blog at http://www.schoollawpro.com, Freedman suggests the Common Core tests should not be used to evaluate teachers because they were designed to measure student "college- and career-readiness," a very different purpose that calls for different kinds of testing.

"If we continue on this track of creating high stakes for teachers with tests designed for a different purpose, we may well end up with unintended consequences, including distrust of the system, questionable accountability, and lawsuits," she said.

Freedman's post was reprinted today on Diane Ravitch's education blog at http://dianeravitch.net/2015/04/16/freedman-are-the-common-core-tests-valid/.

Freedman's beef isn't with all standardized testing. It is with the new language arts and math tests being given this year as part of the federal government's Common Core initiative, and with their use to evaluate teacher effectiveness when they weren't designed to measure that.

"As an attorney who has represented public schools for more than 30 years, I am concerned about this multipurpose use," she said. "It may not get us what we need — a valid, reliable, fair, trusted, and transparent accountability system. The tests at issue include the PARCC and SBAC, two multi-state consortia that are funded by the U. S. Department of Education and private funders. They were charged with developing an assessment system aligned to the CCSS by the 2014-15 school year."

Freedman's concern is with the validity of the tests as a teacher effectiveness assessment. "Validity" is a technical term, and she defines it as used in this context/

"At its core, [validity] is the basic, bedrock requirement that a test measure what it is designed to measure," she said. "Thus, if a test is designed to measure how well 3rd graders decode [written texts], we judge the test according to how well it does that. Can students decode? If it is designed to be predictive; say, to measure if students are ‘on track’ or progressing toward college or career-readiness, we judge it accordingly. Either way, we must ask if a test whose purpose is to measure what students learn or whether they are ‘on track’ can also be used to measure something else — such as how well teachers teach?"

Her answer, in a word, is no.

"Clearly, these tests’ purpose is to (a) measure student progress on the Common Core State Standards (CCSS) and college or career readiness, (b) give teachers and parents better information about students, and (c) help improve instruction," she said. "No mention is made of gauging teacher effectiveness."

Freeman's analysis is worth reading in detail. She unpacks the statements of purpose on the PARCC and SBAC websites, and suggests their tests are not being used appropriately -- validly -- when they are used to evaluate teachers' performance for purposes of retention and/or remediation.

"If we continue on this track of creating high stakes for teachers with tests designed for a different purpose, we may well end up with unintended consequences, including distrust of the system, questionable accountability, and lawsuits," she says.

Let's repeat that. It's important.

"If we continue on this track of creating high stakes for teachers with tests designed for a different purpose, we may well end up with unintended consequences, including distrust of the system, questionable accountability, and lawsuits."

Freeman suggests the test-makers and the state and federal bureaucrats "should take a deep breath and do two things":

• "First, the consortia should remind the public that the purpose of these tests is to measure student achievement on the new CCSS and career and college readiness, provide better information to teachers and parents, and improve instruction.

• "Second, the states (with federal approval and encouragement) that intend to use these results also to evaluate teacher effectiveness must inform the public explicitly about how they intend to validate the tests for this new purpose. They need to provide solid proof that their proposed use, which differs from the stated purpose of these tests, is valid, reliable, and fair. The current silence is worrisome, not transparent, and unwise."

Freeman's conclusion reads like a shot across the bow.

"This test validity issue needs to be fully aired and resolved satisfactorily before we can begin to tackle the larger issues about the multiple uses of testing," she said. "Otherwise, in our litigious land of opportunity, the ensuing battles may be costly and not pretty. Let’s not go there."

Perhaps it reads like a shot across the bow because it is a shot across the bow.