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Newport-Mesa Unified School District v. State of California Department of Education

Instructor: Ashley Dugger

Ashley is an attorney. She has taught and written various introductory law courses.

The decision in the Newport-Mesa Unified School District v. State of California Department of Education case gave parents the right to receive copies of test protocols in certain situations. This lesson explains the case and discusses its significance.

Student Tests and Copyright Law

Anne's son, Andrew, has ADHD. He was recently tested at school, using the Weschler Intelligence Scale for Children-III. The test results will be used to help formulate Andrew's Individualized Education Program, or IEP. An IEP is a legal document which serves as a plan. It states a special education child's learning needs and the services the school will provide.

Anne asks for a copy of the test protocol, including the test questions and Andrew's answers. A test protocol is a test plan that details the testing criteria. Anne has read that The Family Educational Rights and Privacy Act, or FERPA, is a federal law granting her the right to inspect and review her child's education records.

But the school administrators, including the school psychologist, tell Anne she cannot see Andrew's testing items. They tell her the test is copyrighted, so law prohibits them from providing her with a copy.

Popularly used assessments are copyrighted material.

Are the school administrators correct? Not exactly. Let's take a closer look.

Popular assessments like the Weschler IQ test and the Woodcock-Johnson Test of Achievement III are copyrighted. In general, this means the test creators have the exclusive legal right to print, copy, publish and distribute test protocols. Others, like the school, usually need to obtain the owner's express permission before printing, copying, publishing, or distributing the information; however, there are certain exceptions to copyright law.

Fair Use

All copyright law is federal law, and governed through The United States Copyright Act. This act recognizes the doctrine of fair use. The Fair Use Doctrine allows the public to make reasonable use of copyrighted material without the owner's permission in special circumstances. These special circumstances include situations such as news reporting, teaching, and research.

Andrew's school administrators should know that fair use applies to Andrew's testing. Anne has the legal right to receive copies of Andrew's test protocols after Andrew takes the assessments.

Newport-Mesa Unified School District v. State of California Department of Education

This rule comes from the important federal district court case of Newport-Mesa Unified School District v. State of California Department of Education. In this 2010 case, the court specifically ruled that giving a copy of a copyrighted test protocol to the parents of a special education student falls within the Fair Use Doctrine of federal copyright law. Prior to this case, parents often had difficulty obtaining this type of information.

In the Newport-Mesa case, the California Education Code already allowed parents of special education students to have copies of their child's test protocols. Nevertheless, when Jack Anthony requested copies of his son's special education test protocols prior to an IEP meeting, the Newport-Mesa school district refused. Anthony then complained to the California Department of Education, who ordered the district to comply with the code. Instead, the district took the matter to court, alleging that copyright law prevented them from complying with the California code.

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