We’re All in This Together

Dealing Fairly with Assessment Contracts as Schools Cancel or Suspend Student Testing During the COVID-19 Crisis

As of this writing, more than 80% of U.S. K-12 students will be home from school for at least multiple weeks. More likely, many or most could be out for the rest of the school year. Therefore, many states have decided to call off or suspend student testing for the 2019-2020 school year – and the number of states following suit are doing so by the day.

The Center for Assessment team has been writing about the assessment and accountability ramifications of these decisions over the last week (see CenterLine) and pledge to continue offering guidance and support to our state colleagues during this unprecedented time. One of the major questions facing state leaders now is: how can we deal fairly with our assessment providers if we do not test? While it might sound simple to say, “We paid to have students tested and scores reported, so if we don’t do that, why should we have to pay for something we did not receive?” Unfortunately, reality is rarely that simple. In this post, we – a technical assistance consultant and a state assessment director – outline some considerations to help states and providers come to agreements that are as fair as possible to both parties. We discuss several factors to consider in support of fair discussions, including:

• Fixed and variable costs,
• Stage of the work, and
• Force majeure

Breaking Down Contracts: Fixed and Variable Costs

Essentially, all assessment contracts include breakdowns of fixed and variable costs, so that represents a good starting point in figuring a fair way to consider costs and charges. However, even things that are seemingly variable have underlying fixed costs. Using the human scoring example, setting up the scoring centers, preparing training papers and other materials, and establishing quality assurance procedures are all fixed costs associated with a largely variable cost enterprise. In fact, the majority of the costs associated with testing programs, especially those that are fully online, are fixed costs that likely occur before testing even begins. Those with a substantial paper-pencil component, however, have a greater proportion of variable costs, since this more manual approach increases the resources required per student.

Further, we should consider things that can easily be carried over to future years. While item development is a fixed cost, paying for item development this year will not be “wasted” because those items can be used once testing resumes.

Additionally, we must also consider the time of year and the stage/sequence of the work. In most states, testing had already started or was scheduled to start around this time of year or in the very near future. In other words, test providers have already expended significant resources to prepare for testing, whether the costs are fixed or variable. This scenario is like ordering a nice entrée at a restaurant but you have to leave due to an emergency two minutes before the server is set to deliver your meal. Should you be responsible for paying for the meal if you have not had a chance to eat it? Probably paying for a good portion would be fair, but most restaurants would not charge the full amount. We are advocating for a similar philosophy here.

Where the Work Stands and the Absence of Data

States and assessment providers must consider whether work has been completed, is in development, or not yet started. For example, at this point, we doubt states have produced student score reports. There’s no question they have been designed and approved, but they have not been produced since there is no test data. Similarly, if students do not test, there are no data for psychometric analyses; however, the assessment provider psychometricians probably have already done the preparation work for equating and related analysis. For states that started testing but had to halt, the partial testing might allow for predictive analysis of the state, and some possible analyses of field test data.

Managing Unforeseen Circumstances

Force majeure is a clause common to almost all contracts. Derived from the French and Latin, force majeure refers to an unavoidable accident and/or chance occurrence, and generally frees both parties from liability or obligation when an extraordinary event or circumstance falls beyond the control of the parties. Events such as war, riot, crime, plague, or the legal term “Act of God” to cover things such as floods, earthquakes, and other such events, are all examples of things that would be covered by a force majeure clause. What counts as a force majeure event or circumstance can be the source of much controversy in the negotiation and interpretation of a contract, so we urge both parties to approach this as generously as possible.

Making the Best of Forces Outside Our Control

This situation is also where we can think outside of the box to search for solutions that can be mutually beneficial to both states and assessment providers. For example, can we use this as an opportunity to boost item banks for the future and get ahead of the typically rushed assessment cycle? Additionally, these “extra” items could allow for increasing the pool of released items, something many stakeholders appreciate. Would the states want to consider administering the summative test, or a portion of it, in early fall to see where students are and how instruction can be tailored based on the results? What about the states that are in the middle of the testing and had to stop? What work – such as field test results – can be salvaged for current or future use?

Once this unprecedented situation resolves, which we hope happens relatively soon, state assessment leaders and assessment providers need to sort through the issues discussed above to see where the state might recover some contract costs this year and do so as fairly as possible. Remember, it will not help anyone if the assessment providers go out of business and we will need their top experts when it is time to pick up the pieces at a later date. That said, assessment providers need to be as fair as possible with states that are undoubtedly going to experience serious financial challenges. We urge both sets of parties to approach negotiations with the recognition that both sides are hurting and anxious and that our collective goal is to do what is best in the long run for students and schools.

Andy Middlestead is the State Assessment and Accountability Director for the Michigan Department of Education. Scott Marion and Andy Middlestead thank several anonymous industry professionals for providing helpful insights and comments that contributed to this post.