Federal Judge Questions Truth-In-Testing Constitutionality

General Testing

In a court case which could have a profound impact on test-takers across the country (see Examiner, Spring 1995), a Federal District Court has issued a preliminary injunction challenging the constitutionality of the fifteen-year-old New York State law forcing university admissions test-makers to make copies of their exams public.


Pending final resolution of the law suit, Judge Neal P. McCurn left in place requirements giving students, researchers and the media access to some previously-administered test questions and answers. He also preserved provisions requiring technical reports on the tests' validity and scoring to be made public. But the text of Judge McCurn's ruling strongly suggests that he will ultimately decide to overturn the test item disclosure portions of the state statute.


The plaintiffs in the case, the Educational Testing Service (ETS), College Entrance Examination Board, Graduate Record Examinations (GRE) Board, and Test of English as a Foreign Language (TOEFL) Policy Council, claim that the New York State law violates federal copyright protection. Mandatory disclosure, they charge, undermines their ability to reuse items on future exams and, thus, reduces the value of their work, causing "irreparable harm."


Judge McCurn concluded that the test-makers "have demonstrated a likelihood of success on the merits of their claim," but did note the Truth-in-Testing law "serves laudable goals which address important public concerns about standardized testing." The final court decision will depend on the resolution of these "competing public interests."


The testing industry plaintiffs have already filed a motion asking Judge McCurn to reconsider his decision. They are unhappy because they cannot immediately cut back on the number of tests they disclose. That motion will be considered early this fall. The full case will not be argued on its merits until next year at the earliest. Whatever the District Court decides, further appeals are likely.


If the disclosure mandate is ultimately ruled unconstitutional, the test-makers say they will voluntarily make public a smaller number of exams. But provisions and timetables for disclosure will be solely at their discretion. Though the Truth-in-Testing law technically applies only in New York State, the testing industry follows its guidelines nationally, giving this case broader implications.


FairTest is working with the New York State Attorney General's office, private sector lawyers who are volunteering their time, and technical experts to build the best possible defense for the Truth-in-Testing law.