Minnesota students win millions from testing company for faulty scoring…

Test secrecy fails to cover up major mess

By Teresa Saum

(MINNEAPOLIS) Marty Swaden, of Mendota Heights, Minnesota, only wanted to help his fifteen-year old daughter pass the math test so she could graduate from high school.

When he was notified in May of 2000 that she had not passed the math test again, he contacted the state’s Department of Children Families and Learning (CFL) by email and later by phone to ask if he could see the exam, thinking he could help her if he knew where she was making mistakes. More than two months after his initial request, he sat down with a CFL testing specialist and discovered five questions that had been scored incorrectly.

Swaden, an attorney, had to be both knowledgeable and persistent to get to see the test. Minnesota and the test company — National Computer Systems, or NCS — first claimed the test was secret. What Swaden learned when he reviewed the test created headlines in Minnesota for more than two years and resulted in a major class action lawsuit which has just been resolved. The lawsuit will cost NCS Pearson at least $12 million. Despite the Minnesota scandal, however, it has had little effect on the testing industry or on the way test secrecy and high-stakes tests are used.

On July 28, 2000, an article in the Minneapolis Star Tribune revealed that 40,000 of Minnesota’s basic standards math tests were scored incorrectly by National Computer Systems. Minnesota requires passing scores on tests of math, reading, and writing for students to graduate from high school.

Almost 8,000 students were told they failed the test when they had really passed. The state estimated that as many as 336 high school seniors were affected, but schools had to crosscheck to see if students who now had passed the math test had met the other requirements to graduate. Ultimately, 48 seniors missed their graduations because of the scoring error.

Families in tears

Mike McMahon told the press that his son Tim was one of the students incorrectly informed that he didn’t pass. They family had been led to believe (by a math teacher who had unofficially reviewed his test) that Tim had passed. They broke down when they heard otherwise.

“ I can remember the day when my wife called me on the phone and she was choking. She said Tim didn’t pass. We have lived, eaten and breathed basic standards. It’s what you do when your kid is on the line,” said McMahon.

Discouraged, Tim stopped attending school and his grades slid from A’s and B’s to C’s and D’s.

This was not the first error by National Computer Systems in Minnesota, according to press reports. NCS had miscalculated the state averages for the fifth-grade writing test of the 2000 Minnesota Comprehensive Assessments. More than three thousand tests were not correctly calculated into the state’s averages, but the results did not affect individual students’ scores.

Christine Jax, head of the state education system, said NCS would have discovered this error if they had performed the standard test for “frequency distribution”.

“ Asking a testing company if they’re doing frequency distribution is like asking your doctor if he washes his hands,” Jax said.

When asked if they would seek a company that had a cleaner record to take charge of Minnesota’s testing program, Jax said, “No testing company appears to be blemish-free. “

Company tries to fend off critics

After the scandal broke in the summer of 2000, NCS offered to pay $1,000 in tuition reimbursement to each of Minnesota’s seniors wrongly told he or she had failed the test, but students and parents were not satisfied. A number of individual lawsuits were combined into a class-action suit representing most of the students who were affected by the scoring error.

In April 2002, lawyers argued that NCS Pearson has demonstrated a pattern of making mistakes in other states, had no quality control procedures in place, and had skimped on resources in order to make higher profits.

The potential for other errors is huge as NCS tests students in all fifty states and manages entire testing programs in 18 states. An attorney for students and parents, Shawn Raiter, discovered during the litgation that the company had assigned some of its least experienced people to Minnesota and assigned more resources and better people in states that awarded them fatter contracts.

Raiter also told the press that NCS Pearson had made test scoring, reporting, or typographical errors in Arizona, California, Washington, Virginia, Florida, Ohio and Michigan.

Several examples were given. For two years in a row, NCS delivered test results late in Michigan. Florida docked NCS $4 million on its three-year $69.2 million contract because state test results were delivered almost a month late making it impossible for them to use the results to determine if students advanced to the next grade.

The test company tried to explain away the problems. Lindsay Arthur, lead attorney for NCS, said, “The fact of the matter is there are millions and millions of tests given around the country, and it’s probably inevitable that there will be mistakes from time to time. “

Wayne Martin, director of the state education assessment center of the Council of Chief State School Officers, said 49 states have tests that require hand scoring by trained evaluators. Big growth in the testing industry presents a hiring challenge. Testing companies cannot hire enough qualified workers.

Results of the suit

In September 2002, Hennepin County (Minnesota) District Judge Allen Oleisky ruled that students could seek punitive damages. He said the students’ lawyer presented enough evidence to convince him to rethink his initial decision and to allow punitive damages and not just actual damages for such things as tutoring, missed work, embarrassment and humiliation.

According to the lawsuit results released Monday, November 25, the blunder will cost NCS $7 million in damages to students and a total of $12 million by the time lawyers’ fees and other costs are included. The total payout, according to the lawsuit’s website(www.mntest settlement.com), is $7 million. In addition to that, the firm has to pay $4.5 million in attorneys’ fees and costs, plus the cost of administration of claims, which is expected to be about $500,000.

The web site states: “The Court will hold a hearing on January 24, 2003, at 8:30 a.m. to decide (a) whether to grant final approval to the Settlement, (b) whether to approve the Class Counsel’s request for attorneys’ fees and reimbursement of expenses, and (c) whether to approve the request for payment of incentive awards to Plaintiffs.”

The students who were victims of the test company’s mistakes will are entitled to receive varying amounts. Compensation will range from $363 for students who received minor consequences to $16,000 for seniors who missed graduation. Students who went through graduation ceremonies but did not get a diploma could get as much as $6,000. Students would also be eligible for other benefits. Those who attended summer school because they believed they had failed the test could get up to $275.

Students who needed medical or psychiatric care related to the test error could be eligible for as much as $3,250. Those who individually sue NCS could be eligible for another $10,000.

NCS sold for $2.5 billion to British firm

Shortly after the story of the testing error broke during the summer of 2000, NCS agreed to be sold to a British firm, Pearson PCS, for $2.5 billion. Russell Gulotti, CEO of National Computer Systems, Inc., was to receive $28.3 million for his shares when the sale was completed. The errors in the Minnesota testing program were not considered a problem in the sale, which created the company now knows as “NCS Pearson.”

In April of 2002, NCS Pearson was jettisoned by Minnesota’s Department of Children Families and Learning, but both parties say the change in testing companies had nothing to do with the grading mistake. NCS Pearson, based in Eden Prairie, Minnesota, still has the contract for the 10th-grade writing test, and the 11th-grade MCA’s in math and reading.

The state of Minnesota will pay about $24.5 million to score most of its K-12 tests over the next five years to Data Recognition, Inc. of Maple Grove, Minnesota.