Can @PARCCPlace BAN You From Seeing?

I think the students in our leadership and education policy classes at California State University Sacramento (scholarly and academic purposes) and the readers of Cloaking Inequity (news reporting) will be very interested in this new, ongoing case study where a PARCC, a testing company, is trying to limit the fair use of copyrighted material. Here is a case study that was contributed to by several anonymous and on-the-record authors that I believe is fair use for research, scholarship and news reporting:

scantronCelia Oyler, professor at Teachers College, Columbia University, posted a biting commentary by an anonymous teacher about the flaws of PARCC. She received a letter from PARCC threatening legal action unless she removed the post because it contained copyrighted material —and divulged the name of the author. Oyler left the post on her blog but removed anything that might be copyrighted. She has not given up the name of the author. Many people who posted a link to Oyler’s original post or tweeted it received an email warning that they should remove the link or expect legal action.

Peter Greene posted about the test, based on Oyler’s blog, and flew under the radar. He didn’t receive a threat from PARCC, and I feel badly for him.

He wrote, in his inimitable fashion:

“You know what kind of test needs this sort of heavy security? A crappy test.”

As Leonie Haimson said in a tweet, it is crazy to give a test to millions of students and expect that no one would write about it or talk about it.

There is something worse than disclosure of “secure” test items. There is loss of reputation. And that is what PARCC  is putting at risk with its heavy-handed tactics.

Here is the the original post:

NYC Public School Parents
Independent voices of New York City public school parents
Saturday, May 14, 2016

Here is the critique of the 4th grade PARCC exam  by an anonymous teacher, as it originally appeared on Celia Oyler’s blog before she was threatened by PARCC and deleted key sections.

As the teacher points out below, “we can use these three PARCC prompts to glimpse how the high stakes accountability system has deformed teaching and warped learning in many public schools acr
oss the United States. “

No high-stakes test that is used to judge students, teachers and schools should be allowed to be kept secret to escape accountability for the test-makers — especially ones as flawed as these!

The PARCC Test: Exposed

I will not reveal my district or my role due to the intense legal ramifications for exercising my Constitutional First Amendment rights in a public forum. I was compelled to sign a security form that stated I would not be “Revealing or discussing passages or test items with anyone, including students and school staff, through verbal exchange, email, social media, or any other form of communication” as this would be considered a “Security Breach.” In response to this demand, I can only ask—whom are we protecting?

There are layers of not-so-subtle issues that need to be aired as a result of national and state testing policies that are dominating children’s lives in America. As any well prepared educator knows, curriculum planning and teaching requires knowing how you will assess your students and planning backwards from that knowledge. If teachers are unable to examine and discuss the summative assessment for their students, how can they plan their instruction? Yet, that very question assumes that this test is something worth planning for. The fact is that schools that try to plan their curriculum exclusively to prepare students for this test are ignoring the body of educational research that tells us how children learn, and how to create developmentally appropriate activities to engage students in the act of learning. This article will attempt to provide evidence for these claims as a snapshot of what is happening as a result of current policies.

The PARCC test is developmentally inappropriate

In order to discuss the claim that the PARCC test is “developmentally inappropriate,” examine three of the most recent PARCC 4th grade items.

A book leveling system, designed by Fountas and Pinnell, was made “more rigorous” in order to match the Common Core State Standards. These newly updated benchmarks state that 4th Graders should be reading at a Level S by the end of the year in order to be considered reading “on grade level.” [Celia’s note: I do not endorse leveling books or readers, nor do I think it appropriate that all 9 year olds should be reading a Level S book to be thought of as making good progress.]

The PARCC, which is supposedly a test of the Common Core State Standards, appears to have taken liberties with regard to grade level texts. For example, on the Spring 2016 PARCC for 4th Graders, students were expected to read an excerpt from Shark Life: True Stories about Sharks and the Sea by Peter Benchley and Karen Wojtyla. According to Scholastic, this text is at an interest level for Grades 9-12, and at a 7th Grade reading level. The Lexile measure is 1020L, which is most often found in texts that are written for middle school, and according to Scholastic’s own conversion chart would be equivalent to a 6th grade benchmark around W, X, or Y (using the same Fountas and Pinnell scale).

Even by the reform movement’s own standards, according to MetaMetrics’ reference material on Text Complexity Grade Bands and Lexile Bands, the newly CCSS aligned “Stretch” lexile level of 1020 falls in the 6-8 grade range. This begs the question, what is the purpose of standardizing text complexity bands if testing companies do not have to adhere to them? Also, what is the purpose of a standardized test that surpasses agreed-upon lexile levels?

So, right out of the gate, 4th graders are being asked to read and respond to texts that are two grade levels above the recommended benchmark. After they struggle through difficult texts with advanced vocabulary and nuanced sentence structures, they then have to answer multiple choice questions that are, by design, intended to distract students with answers that appear to be correct except for some technicality.

Finally, students must synthesize two or three of these advanced texts and compose an original essay. The ELA portion of the PARCC takes three days, and each day includes a new essay prompt based on multiple texts. These are the prompts from the 2016 Spring PARCC exam for 4th Graders along with my analysis of why these prompts do not reflect the true intention of the Common Core State Standards.

ELA 4th Grade Prompt #1

Refer to the passage from “Emergency on the Mountain” and the poem “Mountains.” Then answer question 7.

  1. Think about how the structural elements in the passage from “Emergency on the Mountain” differ from the structural elements in the poem “Mountains.”

Write an essay that explains the differences in the structural elements between the passage and the poem. Be sure to include specific examples from both texts to support your response.

The above prompt probably attempts to assess the Common Core standard RL.4.5: “Explain major differences between poems, drama, and prose, and refer to the structural elements of poems (e.g., verse, rhythm, meter) and drama (e.g., casts of characters, settings, descriptions, dialogue, stage directions) when writing or speaking about a text.”

However, the Common Core State Standards for writing do not require students to write essays comparing the text structures of different genres. The Grade 4 CCSS for writing about reading demand that students write about characters, settings, and events in literature, or that they write about how authors support their points in informational texts. Nowhere in the standards are students asked to write comparative essays on the structures of writing. The reading standards ask students to “explain” structural elements, but not in writing. There is a huge developmental leap between explaining something and writing an analytical essay about it. [Celia’s note: The entire enterprise of analyzing text structures in elementary school – a 1940’s and 50’s college English approach called “New Criticism” — is ridiculous for 9 year olds anyway.]

The PARCC does not assess what it attempts to assess

ELA 4th Grade Prompt #2

Refer to the passages from “Great White Shark” and Face the Sharks. Then answer question 20. Using details and images in the passages from “Great White Sharks” and Face to Face with Sharks, write an essay that describes the characteristics of white sharks.

It would be a stretch to say that this question assesses CCSS W.4.9.B: “Explain how an author uses reasons and evidence to support particular points in a text.”

In fact, this prompt assesses a student’s ability to research a topic across sources and write a research-based essay that synthesizes facts from both articles. Even CCSS W.4.7, “Conduct research projects that build knowledge through investigation of different aspects of a topic,” does not demand that students compile information from different sources to create an essay. The closest the standards come to demanding this sort of work is in the reading standards; CCSS RI.4.9 says: “Integrate information from two texts on the same topic in order to write or speak about the subject knowledgeably.” Fine. One could argue that this PARCC prompt assesses CCSS RI.4.9.

However, the fact that the texts presented for students to “use” for the essay are at a middle school reading level automatically disqualifies this essay prompt from being able to assess what it attempts to assess. (It is like trying to assess children’s math computational skills by embedding them in a word problem with words that the child cannot read.)

ELA 4th Grade Prompt #3

  1. In “Sadako’s Secret,” the narrator reveals Sadako’s thoughts and feelings while telling the story. The narrator also includes dialogue and actions between Sadako and her family. Using these details, write a story about what happens next year when Sadako tries out for the junior high track team. Include not only Sadako’s actions and feelings but also her family’s reaction and feelings in your story.

Nowhere, and I mean nowhere in the Common Core State Standards is there a demand for students to read a narrative and then use the details from that text to write a new story based on a prompt. That is a new pseudo-genre called “Prose Constructed Response” by the PARCC creators, and it is 100% not aligned to the CCSS. Not to mention, why are 4th Graders being asked to write about trying out for the junior high track team? This demand defies their experiences and asks them to imagine a scenario that is well beyond their scope.

Clearly, these questions are poorly designed assessments of 4th graders CCSS learning. (We are setting aside the disagreements we have with those standards in the first place, and simply assessing the PARCC on its utility for measuring what it was intended to measure.)

Rather than debate the CCSS we instead want to expose the tragic reality of the countless public schools organizing their entire instruction around trying to raise students’ PARCC scores.

Without naming any names, I can tell you that schools are disregarding research-proven methods of literacy learning. The “wisdom” coming “down the pipeline” is that children need to be exposed to more complex texts because that is what PARCC demands of them. So children are being denied independent and guided reading time with texts of high interest and potential access and instead are handed texts that are much too hard (frustration level) all year long without ever being given the chance to grow as readers in their Zone of Proximal Development (pardon my reference to those pesky educational researchers like Vygotsky.)

So not only are students who are reading “on grade level” going to be frustrated by these so-called “complex texts,” but newcomers to the U.S. and English Language Learners and any student reading below the proficiency line will never learn the foundational skills they need, will never know the enjoyment of reading and writing from intrinsic motivation, and will, sadly, be denied the opportunity to become a critical reader and writer of media. Critical literacies are foundational for active participation in a democracy.

We can look carefully at one sample to examine the health of the entire system– such as testing a drop of water to assess the ocean. So too, we can use these three PARCC prompts to glimpse how the high stakes accountability system has deformed teaching and warped learning in many public schools across the United States.

In this sample, the system is pathetically failing a generation of children who deserve better, and when they are adults, they may not have the skills needed to engage as citizens and problem-solvers. So it is up to us, those of us who remember a better way and can imagine a way out, to make the case for stopping standardized tests like PARCC from corrupting the educational opportunities of so many of our children.

For a summary of the legal threats from PARCC you can visit this post on Diane Ravitch’s blog. Celia Oyler’s Controversial PARCC Post, Redacted Under Legal Threat from PARCC 

So my question for our students in this case study and the news reader of this blog is whether this qualifies as fair use? The follow is taken directly from the Boston College library page defining fair use of copyrighted material in academic settings.

Fair use is a doctrine under copyright law that permits certain uses of a work without the copyright holder’s permission.  The fair use of a copyrighted work is an exception to the exclusive rights of a copyright holder. Fair use may be made of a copyrighted work for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.  However, the use of a work for one of these purpose does not automatically qualify as a fair use: a nuanced analysis weighing four factors must be done for each factual scenario.

Fair Use Factors

The copyright statute states that the following four factors must be evaluated to determine in whether a use is fair:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

No one factor is dispositive. Fair use is a flexible balancing test that is difficult to define apart from the specific factual circumstances in which it has been applied by courts.  Be wary of fair use “scales” that attempt to assign a weight to each factor to be weighed against the others; the doctrine requires determining fairness on the whole in the particular context.

Explanation of Each Factor:

Purpose and character of the use

Consider: is the use educational or commercial? Is it a non-profit use or a use for profit? Is the use transformative or iterative?

  • Educational use does not automatically render a use fair; this is just one helpful factor.  For example, note that many materials are created specifically for the educational market and fair use cannot be relied upon to make these works “free.”
  • Many recent cases have centered on whether the use is transformative or iterative, with transformative use more likely to be considered fair. Transformative uses include use of portions of a work in parodies or thumbnail images that reproduce a full–sized image but for a different purpose, such as a search engine.
  • Many educational uses are iterative in that they require the use of exact copies, which is usually less defensible than the use of limited portions of a work for a new purpose or in a new way.
  • The more transformative a use is, the less likely it is to negatively affect the market for the original work, the fourth fair use factor.

Nature of the copyrighted work

Consider: is the work published or unpublished? Is it factual or creative?

  • Unpublished works generally receive greater protection because the courts consider the copyright holder’s right to first publication.  The fact that a work is unpublished does not bar a finding of fair use, but it makes the other factors more important.
  • The more creative a work is, the stronger the copyright.  Purely factual data such as phone numbers do not receive copyright protection, but the selection and arrangement of factual data with some modicum of originality may.

Amount and substantiality of the use

Consider: how much of the work are you using? How important is the portion you are using to the work as a whole?

  • Using a smaller portion of a work is more likely to qualify as a fair use, though there are no rigid page number or percentage guidelines in the statute.
  • This factor is analyzed qualitatively as well as quantitatively: a small amount of the work may be too much if it reproduces “the heart of the work.”

Impact on the market

Consider: how many copies are being made and how widely will they be distributed? Is the use spontaneous or is it repeated? Is the original for sale or license?

  • A use for which there is a clear market or licensing mechanism is less likely to be fair than the use of a work for which there is no market or clear potential market.
  • Making numerous copies of a work weighs against a fair use finding; digital reproduction exacerbates this factor because digital copies are easier to copy and disseminate widely.
  • The Supreme Court has stated that this factor is the most important, and the analysis of some of the other factors often lead to a market analysis.

So, my questions to the faculty and students of the Doctorate in Educational Leadership at California State University Sacramento and the readers of Cloaking Inequity…

Is the analysis of PARCC tests fair use for research and scholarly purposes?

Analyzing banned PARCC test items would be a great dissertation topic wouldn’t it?

Please Facebook Like, Tweet, etc below and/or reblog to share this discussion with others.

Want to know about Cloaking Inequity’s freshly pressed conversations about educational policy? Click the “Follow blog by email” button on the home page.

Twitter: @ProfessorJVH

Click here for Vitae.





  • Pingback: What you need to read (and do) - Network For Public Education

  • Reblogged this on Saving school math and commented:
    Any use would be fair use at the end of the testing period.


  • Thanks! I downloaded a copy of this page, in case Always Earning decides to try to shut down more bloggers.


  • Once Fair Use is determined though, isn’t the overriding question whether or not the teacher, who either willingly or under duress signed the confidentiality agreement: 1. can be legally held to that agreement 2. Is morally-ethically bound to uphold his-her agreement?

    Additionally, does the confidentiality requirement/statement have any legal standing? Is it and has it always been an outrageous mandate contrary to any reasonable teaching practice?

    Further, in Louisiana, a similar pledge of confidentiality is required to be signed by students. Most parents are not aware of the oath their children must make. Those who are aware consider it unethical and potentially dangerous breach of parent/child communication so important in regard to issues such as safety. They must agree: * not to discuss the test questions at any time with anyone.

    The question of confidentiality/privacy is also a concern from the student’s viewpoint. Isn’t what’s good for the goose good for the gander? Students are “guaranteed” privacy by PARCC, and yet: The PARCC states’ policy follows the best practices outlined by the Council of Chief State School Officers, which recommends that there should be “procedures to monitor the internet and social websites before, during and after test administration for any evidence the items and/or answers have been shared” online. In order to maintain test security, each PARCC state contracted with its test vendor, Pearson, to search for any live PARCC test questions that are shared through public social media sites. This is standard practice for large-scale tests including ACT and SAT.

    How does this PARCC privacy policy reconcile with Pearson using their student data to trace the kids who posted, as reported by the NYT?



  • Pingback: Julian Vasquez Heilig Assigns a Lesson on Testing and Censorship | Diane Ravitch's blog

  • Pingback: The Long Arm of the PARCC? | Daniel Katz, Ph.D.

  • 1englishteacher

    The PARCC test samples are so far above grade level that it is laughable. Nowhere does 4th grade instruction in writing prepare kids for this, nor should it. Kids do not have the critical reading skills to perform such tasks. The writing prompts were more appropriate for AP classes.


  • Kathleen Mikulka

    Dr. Heilig, I believe that this is fair use based on factor 1–“non-profit educational purposes” as I see the main purpose of the discussion is to educate parents as to the inappropriateness of the tests. Parents are so busy trying to make ends meet they trust the schools to be doing the right thing. If parents realized that their children were either melting down or just pushing buttons to get to the next question (since they have no idea what the first question means), they would be outraged. Never mind the incredible waste of taxpayers dollars and valuable teaching time given to test prep. I’m beginning to wonder if these children, who are being used as guinea pigs, will ever take a test seriously in the future when it really matters. This is also a vital conversation for educators…to give them the information to say, Enough is enough. Someone has to speak up for the children who are missing out on a rich educational experience as teachers are forced to teach to an invalid test. Oh, yes. I forgot to mention a small point: the test is invalid because it doesn’t test what is taught. NO 4th grade teacher teaches New Criticism structural analysis to 9 and 10 year olds.


  • You know intellectual property is included in ESEA 2015 as something that students should learn to respect and honor. That’s why I love students who snap and post test questions #YOLO


Leave a Reply

Please log in using one of these methods to post your comment: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s