LAW
OFFICES OF
Jeffry
K Finer, PS
505 West
509 747-4900 • facsimile 838-2050
August 18,
Dr. Teresa Bergeson
Office Superintendent Public Instruction
Old Capital Building
PO Box 47200
re: WASL appeal process
Dear Dr. Bergeson:
I have been retained by the Parent Empowerment Network (PEN) to address the
organization’s legal concerns regarding the WASL.
Last week thousands of
there will be a proportion of failing scores and we anticipate a number of
requests to appeal
those scores.
PEN has instructed me to communicate its growing alarm at OSPI’s failure to
provide
timely redress for those children, families, teachers,
school districts, and citizens of the State who are affected by a failing
score. Their number is legion as these score impact
mainstream students, special needs students, ethnic/racial minorities, and
non-minority
students alike.
My files now contain the following history, for which I have documentation on
each point:
1. In 2005 PEN learned that, in violation of FERPA, OSPI had destroyed all past
test
booklets prior to 2004. The loss of these personal education records was not
explained. This was apparently done without any specific animus: your Office
simply did not understand that FERPA rules covered these results. In any event,
no
notice was given to any parent as contemplated by 34 CFR 300.573. The right of
each child and parent to appeal has been eclipsed by OSPI’s failure to protect
these
identifiable records.
2. In response to a March, 2005, PEN request for public disclosure records,
OSPI
delayed release of the identifiable matters; incorrectly claimed the production
of all
documents was complete when in fact it had not even begun; and ultimately
retracted
that claim in light of the AGs’ discovery of an “erroneous identification.” The
candid admission was only forthcoming following PEN’s repeated complaints.
3. After your office reported the Spring, 2006 WASL
scores, numerous parents
requested a review and appeal. Each was refused and returned with instructions
to
re-request review in September. These children, denied any opportunity to
appeal
their scores in a timely manner, had their academic careers altered to include
summer
school and/or remedial junior classes and this month’s retake — all without due
process. Given the past errors in scoring, there is no way to estimate the
possible
number of mis-scored results.
4.
Federal regulations govern OSPI’s appeal process. (Exhibit
1). Nevertheless, the
process OSPI proposed in its
these minimum guidelines in no fewer than the following five respects:
1.
FERPA standards and accountability guidelines place limitations on
whom the Director may
designate to perform review (Exhibit 2);
2.
No notice is given to parents that they may attach a response to their
student’s WASL scores, regardless of the appeal process
(Exhibit 2);
3.
OSPI Guidelines only address 10th grade failing scores, there are no means
for students with passing scores or any Third-to-Eighth
grade students to
appeal; and,
4.
Most alarmingly, OSPI Guidelines fail to adhere to the FERPA’s published
45-day appeal rule (Exhibit 3). OSPI claims that the
delay is necessary due to the testing
contractor’s need to physically separate, score, and then
recombine the testing booklets.
Yet,
OSPI utilizes these scores for grade retention, summer remedial courses, and
exam retakes — even while it refuses to act on timely
challenges to these
scores.
Federal law mandates that students be afforded due process hearings to
amend any recorded educational record. 34 CFR § 300.568. These
standards are clear: there must be a reasonable process
for parental review of
any scoring record that involves identifiable materials
maintained by OSPI.
Parents and students who wish to appeal their scores
should be afforded a
fair review in 45 days, not months after they have
already been made to
choose between remediation sessions or failing records.
PEN considers
OSPI’s refusal to accept promptly filed appeals to
signal a complete
misapplication the State’s duties towards its students.
OSPI
has placed the convenience of the contract agency’s self-imposed
schedule over the testing population’s right to seek
redress. OSPI’s
priorities are backwards.
PEN,
through its members, has brought these and other troubling issues to the attention
of
OSPI throughout the last two years. OSPI has justified its conduct — at the
cost of the
legal rights of students and their parents/guardians — with claims of
inadvertence,
misunderstanding of legal requirements, and lately with capitulation to the
alleged
convenience of state-contracted testing company. It is imperative that OSPI
immediately
correct policy and practice to conform to FERPA regulations and
The
following standards should be implemented without delay:
1. The practice
of returning parental viewing requests is a blatant obstruction of
due process that must cease immediately. Parents must be provided viewing
rights within 45 days of request. Adequate documentation of the adults’
identity and rights to view the particular student’s records can be assembled
in this time.
2. Parents must be allowed their right to appeal any WASL score, including
passing
scores and those of all tested grade levels.
3. All parents and all school personnel must be informed in writing that
parents
have the right to view and appeal WASL scores—OSPI is not in the
business of
thwarting the legitimate exercise of this right.
4.
Under no circumstances should OSPI permit the destruction of student
WASL test booklets. Any parent or student who wishes to challenge a test
score for which there is no longer a booklet should be allowed to have the
score expunged.
Two years of patient requests and attempts to ameliorate the WASL’s impact on
PEN’s
members has shown scant progress. Even when OSPI has taken action based on
PEN’s
concerns, such as canceling the Survey portion of the Spring WASL, the steps
taken to stop
the survey were too late and ineffectively communicated. We know that many
teachers put
their students through the survey. We see this pattern as an indication that
PEN may have to
obtain legal sanctions against OSPI.
Thanking you for your time and consideration in this matter, I remain,
Very
truly yours,
Jeffry
K. Finer
cc:
Senator Rosemary McAuliffe
Representative Dave Quall