© caveon, llc legal issues in testing (part one) a legal framework for the appropriate and...

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© Caveon, LLC Legal Issues in Legal Issues in Testing Testing (Part One) (Part One) A legal framework for the appropriate and defensible use of Caveon Data Forensics™ June 21, 2006 Bob Hunt, J.D. Ph.D. Vice President of Legal Services and General Counsel Caveon Test Security

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Page 1: © Caveon, LLC Legal Issues in Testing (Part One) A legal framework for the appropriate and defensible use of Caveon Data Forensics™ June 21, 2006 Bob Hunt,

© Caveon, LLC

Legal Issues in TestingLegal Issues in Testing(Part One)(Part One)

A legal framework for the appropriate and defensible use of Caveon Data Forensics™

June 21, 2006

Bob Hunt, J.D. Ph.D.Vice President of Legal Services and General Counsel

Caveon Test Security

Page 2: © Caveon, LLC Legal Issues in Testing (Part One) A legal framework for the appropriate and defensible use of Caveon Data Forensics™ June 21, 2006 Bob Hunt,

© Caveon, LLC

Overview …Overview …

What is “data forensics” The need for competitive fairness in

testing Adequacy of proctoring Legal rights to use statistics to:

monitor testing behavior cancel scores and take other actions

Examples of Concepts

Page 3: © Caveon, LLC Legal Issues in Testing (Part One) A legal framework for the appropriate and defensible use of Caveon Data Forensics™ June 21, 2006 Bob Hunt,

© Caveon, LLC

Fairness in TestingFairness in Testing

Does the test objectively evaluate relevant knowledge and skills?

Does the test provide consistent

results?

Is the testing process equally fair?

Page 4: © Caveon, LLC Legal Issues in Testing (Part One) A legal framework for the appropriate and defensible use of Caveon Data Forensics™ June 21, 2006 Bob Hunt,

© Caveon, LLC

Why is Competitive Fairness Why is Competitive Fairness Important?Important?

Without competitive fairness, tests are simply biased rituals

The validity and reliability of test results hinge on fair competition

Consistent results

(reliability)

Test Relevance (validity)

Relational Fairness(level playing field)

Page 5: © Caveon, LLC Legal Issues in Testing (Part One) A legal framework for the appropriate and defensible use of Caveon Data Forensics™ June 21, 2006 Bob Hunt,

© Caveon, LLC

The (in)Adequacy of ProctoringThe (in)Adequacy of Proctoring

Cheating behaviors are increasingly “invisible” to proctors Theft of test material Wider use of stolen test content

obtained from the Internet Wireless communications

Human proctoring is hampered by: Scope: one to many Errors of observation, memory and bias

Page 6: © Caveon, LLC Legal Issues in Testing (Part One) A legal framework for the appropriate and defensible use of Caveon Data Forensics™ June 21, 2006 Bob Hunt,

© Caveon, LLC

Data Forensics Promotes Data Forensics Promotes Competitive FairnessCompetitive Fairness

More comprehensive (no limits on effectiveness due to volume of cheating)

Fewer errors of observation, memory and bias (need to elaborate why scientific error is more trustworthy)

Flags “trusted” test results Reinforces other detection efforts

Confirm or clear other suspicions

Page 7: © Caveon, LLC Legal Issues in Testing (Part One) A legal framework for the appropriate and defensible use of Caveon Data Forensics™ June 21, 2006 Bob Hunt,

© Caveon, LLC

Caveon Data Forensics Caveon Data Forensics

“Low-resolution” analyses1.Gain-score2.Response aberrance3.Latency aberrance

“High-resolution” analyses1.Copying indices2.Erasures

Page 8: © Caveon, LLC Legal Issues in Testing (Part One) A legal framework for the appropriate and defensible use of Caveon Data Forensics™ June 21, 2006 Bob Hunt,

© Caveon, LLC

Questions?

Page 9: © Caveon, LLC Legal Issues in Testing (Part One) A legal framework for the appropriate and defensible use of Caveon Data Forensics™ June 21, 2006 Bob Hunt,

© Caveon, LLC

The $1,000,000 Legal QuestionThe $1,000,000 Legal Question

Can statistics improve test security if they don’t provide “first-hand” evidence of cheating?

Page 10: © Caveon, LLC Legal Issues in Testing (Part One) A legal framework for the appropriate and defensible use of Caveon Data Forensics™ June 21, 2006 Bob Hunt,

© Caveon, LLC

Answer: Cheating is OverratedAnswer: Cheating is Overrated Testing programs have broad authority to

manage the validity of test results Courts only require a general “lack of

confidence” in a test result Lots of (other) reasons to lack confidence in

test results: Disruption Illness Technology issues Mishandling, etc.

Page 11: © Caveon, LLC Legal Issues in Testing (Part One) A legal framework for the appropriate and defensible use of Caveon Data Forensics™ June 21, 2006 Bob Hunt,

© Caveon, LLC

“We are satisfied that the relevant public and private interests are fairly accommodated by a procedure which permits ETS to cancel scores upon an adequate showing of substantial question as to their validity, without any necessity for a showing of actual cheating or other misconduct.” Scott v. ETS (N.J. Sup.1991)

Validity vs. CheatingValidity vs. Cheating

Page 12: © Caveon, LLC Legal Issues in Testing (Part One) A legal framework for the appropriate and defensible use of Caveon Data Forensics™ June 21, 2006 Bob Hunt,

© Caveon, LLC

Courts Understand the Need for a Courts Understand the Need for a Broader SolutionBroader Solution

“To demand that ACT prove by eyewitness testimony that an individual cheated before invalidating a score would undermine ACT's primary function of providing colleges with scores that are highly reliable.”

“ACT could not possibly catch every student who cheats on its exams if it had to produce an eyewitness to confirm every instance of misconduct.”

Langston v. ACT, (11th Cir 1989)

Page 13: © Caveon, LLC Legal Issues in Testing (Part One) A legal framework for the appropriate and defensible use of Caveon Data Forensics™ June 21, 2006 Bob Hunt,

© Caveon, LLC

Question: Does that Mean that Test Question: Does that Mean that Test Scores can be Cancelled for ANY Scores can be Cancelled for ANY

Reason? Reason?

Answer: Nearly Testing programs enjoy broad

discretion in evaluating the validity of test scores

Score cancellations based on statistical evidence have been upheld

Courts that have addressed the issue directly have stated that it is not necessary to prove wrongdoing

Page 14: © Caveon, LLC Legal Issues in Testing (Part One) A legal framework for the appropriate and defensible use of Caveon Data Forensics™ June 21, 2006 Bob Hunt,

© Caveon, LLC

Implement Uncertainty!Implement Uncertainty!

“Your scores may be classified as indeterminate if the scores are at or above the passing level and the USMLE program cannot certify that they represent a valid measure of your knowledge or competence as sampled by the examination.”

U.S. Medical Licensing Board

Test retakes replace committee reviews, hearings, etc. as the chief due process opportunity

Page 15: © Caveon, LLC Legal Issues in Testing (Part One) A legal framework for the appropriate and defensible use of Caveon Data Forensics™ June 21, 2006 Bob Hunt,

© Caveon, LLC

Questions?

Case Studies: Scott v. ETS: Private/Contract law

Murray v. ETS: Public/Constitutional law

Page 16: © Caveon, LLC Legal Issues in Testing (Part One) A legal framework for the appropriate and defensible use of Caveon Data Forensics™ June 21, 2006 Bob Hunt,

© Caveon, LLC

Scott v. ETS Scott v. ETS (N.J. Sup. 1991)(N.J. Sup. 1991)

National Teachers Examination administered by ETS for the State

of New Jersey Decided on constitutional grounds

Page 17: © Caveon, LLC Legal Issues in Testing (Part One) A legal framework for the appropriate and defensible use of Caveon Data Forensics™ June 21, 2006 Bob Hunt,

© Caveon, LLC

Scott v. ETS (cont.)Scott v. ETS (cont.)

ETS detected a score gain of 42 points Scott’s second and third attempts

ETS then detected similarity between the Scott’s test-responses and those of another examinee (not seated near her).

ETS cancelled Scott’s score but offered her an opportunity to retest.

Page 18: © Caveon, LLC Legal Issues in Testing (Part One) A legal framework for the appropriate and defensible use of Caveon Data Forensics™ June 21, 2006 Bob Hunt,

© Caveon, LLC

Scott v. ETS (cont.)Scott v. ETS (cont.)

The issue: Whether Scott had been denied due

process by ETS’s failure to prove that she had actually cheated.

Page 19: © Caveon, LLC Legal Issues in Testing (Part One) A legal framework for the appropriate and defensible use of Caveon Data Forensics™ June 21, 2006 Bob Hunt,

© Caveon, LLC

Scott v. ETS (cont.)Scott v. ETS (cont.)

The Decision: “We are satisfied that the relevant public and

private interests are fairly accommodated by a procedure which permits ETS to cancel scores upon an adequate showing of substantial question as to their validity, without any necessity for a showing of actual cheating or other misconduct.”

Page 20: © Caveon, LLC Legal Issues in Testing (Part One) A legal framework for the appropriate and defensible use of Caveon Data Forensics™ June 21, 2006 Bob Hunt,

© Caveon, LLC

Scott v. ETS (cont.)Scott v. ETS (cont.) The “relevant public and private interests”

ETS: accuracy of its test results and predictions

Test-takers: no unfair advantage

School officials: reliability Public: reserving teacher certification for

those who fulfill its requirements

Page 21: © Caveon, LLC Legal Issues in Testing (Part One) A legal framework for the appropriate and defensible use of Caveon Data Forensics™ June 21, 2006 Bob Hunt,

© Caveon, LLC

Scott v. ETS (cont.)Scott v. ETS (cont.)

Meaning of “Substantial Question of validity”:

“Here ETS questioned plaintiff's scores on the basis of a statistical analysis showing hardly more than a 4 in 10 million chance that they were fairly earned … That gave ETS, and would give any other observer, substantial grounds for doubting the reliability of the scores.”

Page 22: © Caveon, LLC Legal Issues in Testing (Part One) A legal framework for the appropriate and defensible use of Caveon Data Forensics™ June 21, 2006 Bob Hunt,

© Caveon, LLC

Case Study: Murray v. ETS Case Study: Murray v. ETS (5(5thth Cir. 1999) Cir. 1999)

U. Texas El-Paso basketball recruit Needed an SAT score of 820 (of 1600) to

receive a scholarship Scored 700 on his first attempt in March Enrolled in “Testbusters” Scored 1300 in June

Page 23: © Caveon, LLC Legal Issues in Testing (Part One) A legal framework for the appropriate and defensible use of Caveon Data Forensics™ June 21, 2006 Bob Hunt,

© Caveon, LLC

Murray v. ETS (cont.)Murray v. ETS (cont.)

Test-use agreement:

“ETS reserves the right to cancel any test score if … the student engages in misconduct, if there is a testing irregularity, or if ETS believes there is a reason to question the score's validity.”

SAT I Registration Bulletin

Page 24: © Caveon, LLC Legal Issues in Testing (Part One) A legal framework for the appropriate and defensible use of Caveon Data Forensics™ June 21, 2006 Bob Hunt,

© Caveon, LLC

Murray v. ETS (cont.)Murray v. ETS (cont.)

The Decision: “The only contractual duty ETS owed to Murray

was to investigate the validity of Murray's scores in good faith.”

Good-faith means: Having a reason to lack confidence in a test

result (from statistics or some other source) Providing an opportunity to retake the test and

to present other evidence supporting scores Allowing independent review

Page 25: © Caveon, LLC Legal Issues in Testing (Part One) A legal framework for the appropriate and defensible use of Caveon Data Forensics™ June 21, 2006 Bob Hunt,

© Caveon, LLC

Murray v. ETS (cont.)Murray v. ETS (cont.)

“ETS dutifully fulfilled its contract [ ..] by following established procedures for determining the validity of questionable scores.”

Page 26: © Caveon, LLC Legal Issues in Testing (Part One) A legal framework for the appropriate and defensible use of Caveon Data Forensics™ June 21, 2006 Bob Hunt,

© Caveon, LLC

ConclusionsConclusions

Statistical analyses of test data like Caveon Data Forensics provide powerful test security information

Managing cheating with test-use agreements, statistics and retakes is within the legitimate power of testing programs to manage the “validity” of their tests

Page 27: © Caveon, LLC Legal Issues in Testing (Part One) A legal framework for the appropriate and defensible use of Caveon Data Forensics™ June 21, 2006 Bob Hunt,

© Caveon, LLC

THANK YOU! THANK YOU!

Bob HuntCaveon Test Security

[email protected]

Page 28: © Caveon, LLC Legal Issues in Testing (Part One) A legal framework for the appropriate and defensible use of Caveon Data Forensics™ June 21, 2006 Bob Hunt,

© Caveon, LLC