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Appeals court denies activist's request for school test scores

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NEWS MEDIA UPDATE   ·   TEXAS   ·   Freedom of Information   ·   Sep. 10, 2005

Appeals court denies activist’s request for school test scores

  • An education activist cannot have access to test data for Dallas schoolchildren — even with their identities obscured by random numbers — in his effort to evaluate teacher performance, a state appeals court has ruled.

Sep. 10, 2005  ·   Student test scores in Dallas Independent School District will not be made public, the Texas Court of Appeals in Dallas ruled last month, in an almost eight-year fight over the records.

In upholding a trial court ruling, a three-judge panel ruled unanimously that the Texas open records law and the Family Educational Rights and Privacy Act of 1974 shield the information from the public.

The legal struggle began in 1997 when education activist Russell Fish was denied student test results from the Dallas Independent School District. Fish requested 11 years of results from the Iowa Test of Basic Skills for all Dallas schoolchildren for an independent analysis of teacher performance.

Three months after Fish requested the scores under the Texas Public Information Act, the school district said that the data were not available in the form he wanted, and to get it into the format requested would cost about $2,040. Fish then sued the school district to force it to produce the documents at either a reasonable cost or for free.

The school district contended that the requested records contained confidential information exempt from public view under the Texas open records law, and that the Texas Education Code prohibits releasing personally identifiable information concerning students or teachers.

Fish argued in court that he wanted students’ individual scores to hold teachers publicly accountable for their performance. He said he asked the district to replace students’ names with unique, random numbers to help shield the students’ identities, the opinion said.

The lawsuit garnered support from the Dallas branch of the National Association for the Advancement of Colored People and then Texas Attorney General John Cornyn, now a U.S. senator, who filed a friend-of-the-court brief in support of the records’ release.

During the initial trial, the jury was asked to decide whether the information on the form requested was “easily traceable” or “personally identifiable.” Finding the information “easily traceable” would mean that students might be identified later with other information supplied, and that it would not be released to the public in order to protect students’ privacy.

The jury did not find the information “personally identifiable” but did find it “easily traceable.” However, Fish said that under the FERPA definitions, “easily traceable” information is “personally identifiable.” If information were not “personally identifiable,” it could not be “easily traceable.” He appealed, but the high court ruled that he should have objected to the question of what was “personally identifiable” before the jury deliberated. “We will not read into the charge a definition that was never requested before the jury began deliberations and was never considered by the jury,” she said.

(Fish v. Dallas Independent School District; Requester’s counsel: Clayton Trotter, Texas Justice Foundation, Dallas)KT

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