LAW OFFICES OF

Jeffry K Finer, PS
505 West
RiversideSuite 600
Spokane, Washington • 99201
509 747-4900 • facsimile 838-2050


August 18,
2006

Dr. Teresa Bergeson
Office Superintendent Public Instruction
Old Capital Building
PO Box 47200

Olympia, WA 98504


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
Washington 10th graders retook the WASL. We anticipate that
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 June 1, 2006 Guidelines, does not appear to track
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
Washington State law.
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: Governor Christine Gregoire
Attorney General Rob McKenna
State
Auditor Brian Sonntag
Senator Rosemary McAuliffe
Representative Dave Quall
Washington Association of School Administrators
Washington State School
Directors Association
Washington Education Association