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Using Test Questions from Prep Guides – Ethical, Legal?

FAMU Law, strike 2

That’s a question raised by a recent lawsuit filed by a former Florida A&M University [FAMU] Law student. Clayton Hallford’s suit against the school describes a very interesting situation in which an open book final exam for a class contained questions reproduced directly from prep guides.

Some students had the commercially-available guides, others didn’t – therein lies the problem of fairness.

It’s only a small portion of a complex suit in which the test grading was changed in a way that significantly harmed his grade and led to his dismissal, but it’s an important question: Can we just reproduce questions at our own convenience?

I’m not a lawyer, so proceed at your own risk.

The short answer is “no.”

First – questions in a review book are the intellectual property of the author and/or publisher. There’s no question about that. I don’t have the review books the article mentions, but on the publisher’s page there should be a statement about needing permission to use any of the contents..

I pulled a review book off my shelf to use as an example. It’s a Barron’s AP European History book that says:

“No part of this book may be reproduced in any form, by photostat, microfilm, xerography, or any other means, or incorporated into any information retrieval system, electronic or manual, without the written permission of the copyright owner.”

I’ve never once seen a review book that failed to have a statement like that. Using the questions on a test is reproduction of the content.

Content may be reproduced under the auspices of “Fair Use,” a set of principles that direct how we can and can’t use another’s intellectual property. Fair use is at the core of blogging; though the St. Petersburg Times wrote the article to which I linked above, I can legally reproduce snippets on my site for the purpose of analysis. And even if I were to write a 400 page critique of Harry Potter literature – one in which I would necessarily use many [and potentially lengthy] passages from the books – I wouldn’t need JK Rowling’s permission.

Fair use is pretty much common sense for anyone who has the slightest bit of respect for others’ work and a commitment to professionalism.

Publishers of texts and review books pay dearly for questions to be written. I came across an ad this week from a publisher looking for teachers to write social studies test questions; they pay $8.50 per question. Considerable investment of time and money go into developing a test-prep book. Cherry-picking a publisher’s efforts to more conveniently generate a test combines laziness, plagiarism [I doubt a citation was given after the question] and copyright violation.

The publishing company of the books in question would likely support this opinion. If asked, I’m certain that they’d say they needed to give written consent for an instructor to reproduce questions from books but they would acknowledge that it is probably a common practice.

It’s a very difficult thing to police, especially because it’s tough to quantify the damage of the tort [as opposed to, say, copying the book and reselling it]. Publishers differ with respect to how they process requests to use material; some have a rubric for charging, others just give permission to use questions at no charge when a request is properly filed.

Reproducing questions from review books happens frequently in New York. We have state-issued curricula for most all high school subjects with a statewide final exam. Barron’s publishes review books for these state exams and it is very common for teachers to make unit tests from questions taken directly from the review books. No one really complains [other than that it suggests a classroom teacher is "teaching to the test,"], but I find it highly unprofessional and unnecessary at the post-secondary and especially law school level.

At the least, the unauthorized reproduction of test questions speaks volumes about an instructor’s efforts with a course. A good teacher not only doesn’t need to do this, but also generates questions that are highly correlated with the curriculum he’s taught throughout the semester. In the case of FAMU Law’s Professor Wallace Rudolph’s Torts II exam, it would be interesting to compare the course syllabus with the table of contents of those books.

So, the conclusion is that it’s almost certainly in violation of copyright law [the irony here that it happened at a law school is not lost] and is an embarrassing admission of the professor’s inadequacy.

Unfortunately, Rudolph’s method of authoring exams isn’t rare in the education business. At least he’s not teaching intellectual property law or ethics.

FAMU Law – especially Dean Pernell – take note. It’s about time you paid a bit more attention to the efforts of your professors.

FAMU Hires New Law School Dean

welcome to FAMU, mr. pernell

FAMU has hired Leroy Pernell, formerly of Northern Illinois University, to oversee the Law School. The Gradebook cited a press release from NIU that announced Pernell’s departure; the Gradebook reports that:

“FAMU has not made an announcement naming a new dean, and The Gradebook could not reach FAMU communications officials this morning.”

Odd, but certainly not FAMU’s oddest move.

The NIU press release said Pernell is “convinced that he can provide positive leadership in an enterprise that is ‘emotionally close to my heart and symbolic of the very reason why I have dedicated my professional life to legal education.’”

Pernell, as The Gradebook points out, has a lot to do:

  • Work through the ABA accreditation process [and that might get tougher for FAMU, says]
  • Deal with faculty quality issues such as the Victoria Dawson debacle
  • Repair damaged credibility in the legal field, public eye and among their own student body

I wish Mr. Pernell the best.

Related Articles:

UPDATE at 11.53pm, 08.08.07:

There’s a somewhat sensible explanation for FAMU not releasing information of Pernell’s hiring – the Board of Trustees has to approve him first. NIU shouldn’t have jumped the gun, for sure.

Why Student Evaluations and Course Reviews Matter – at FAMU, too


Victoria Dawson, disgraced law professor at Florida A&M’s Law School, exposed a meat-and-potatoes administrative failure that forced me to blacklist FAMU in college admissions consulting. As I said in that article, I can’t in good faith send a student to a school where they won’t receive top-notch preparation for their career. I do, however, support FAMU in full as it attempts to re-establish its place in higher education.

Incoming President James Ammons has an unenviable to-do list that includes solving accreditation woes, overhauling accounting procedures and restoring the image of his University. Now he’s got to take a look at the administration and use of student evaluations. Ms. Dawson’s evaluations were wonderful one semester, terrible the other and the rest are missing. That’s not normal.

Before I go through the article detailing Dawson’s particular case, I’d like to write a bit about the role of student feedback in higher education.

In what seems like a former life, I developed and administered student evaluations for a large research university – I’ve read over 75,000 in full. The first task was to create an evaluation that met the needs of the students and the university. The following factors drive the need for and development of effective course evaluations:

  • Students need aggregated data/reactions for a variety of reasons. Yes, some students flip through the book and choose the easiest classes – that can’t be helped. Those who are serious about their education want to know the format of the class; the expected workload and type of assignments [having four 25pg research papers due at the end of the semester is difficult]; pacing of the class [so it can fit in with an inflexible work schedule, for example]; the list is long. Combine this with numbers like average class size and some simplified satisfaction ratings and the student can combine this data with conversations with academic advisors and professors to choose classes that fit their courses of study.
  • Students want to gravitate toward certain characteristics and avoid others. Reading the written and free response sections of evaluations are critical to finding classes you’ll like or will benefit you the most – especially in a large research university where you may not know anything about a particular professor. Do you want a stodgy-but-informative lecturer? Would you rather be with a professor who encourages open debate with peers and himself? Are you looking for a professor with Conservative views or wish to avoid one? For better or worse, all of these attributes matter to students and have a profound effect on their education.
  • Departments need feedback from students. Department heads and university administration need to know how students feel about their staff’s effectiveness. Too many professors/admins discount student evaluations because of their supposed lack of credibility and value – hence the negative reactions toward sites like In truth, most of the comments have little value, but any prof/admin worth his weight in sea salt sifts through the bad, identifies the good and uses the results. Distilled results from evaluations play an important role in monitoring an instructor’s effectiveness and provide uniquely-valuable insight during tenure and promotion processes. An administrator who doesn’t make use of student feedback is neglecting an important part of the evaluative process.
  • Professors need feedback from students. Instructors need to monitor constantly their students’ attitudes toward the class and its instructional value. It isn’t a matter of the customer always being right or pandering to the students’ tastes; this is about identifying successful strategies in teaching and repairing holes in curriculum/instruction. Every professor should want to do this, not only complying fully but encouraging evaluation. It benefits everyone.
  • A credible, comprehensive feedback system is proactive. If your institution has its own well-researched, well-executed – and consequently well-respected – evaluation system highly accessible to all students, you don’t have to worry about ratemyprofessors or any of the other rogue review sites reflecting poorly on your school or staff. Don’t whine and seethe about the unwarranted harm these outsiders are doing – make them irrelevant by administering your own evaluation that’s even better.
  • Accountability, accountability, accountability. Every institution needs to demonstrate accountability at every turn. Having a solid course review system – and then implementing its results with seriousness – demonstrate a commitment to accountability.

This is a simplified list, but you get the idea – student-generated evaluations are important to everyone in higher education. Students, professors and administrators need to take them seriously.

That’s why Dawson’s case is so troubling. A little investigative reporting by the St. Pete Times found this:

In Dawson’s fall 2006 class, 17 of 20 students enrolled bubbled in the “assessment of instruction” forms, and 12 of them rated Dawson excellent or very good. Dawson got high marks in all 7 categories, ranging from “communication of ideas and information” to “respect and concern for students” to “facilitation of learning.”

First, FAMU needs to change its evaluation. An evaluation shouldn’t appear as though it was made from the Education Jargon Generator – everyone in higher education should understand that bad questions = bad data. However, if 95% of FAMU students have the same interpretation of “facilitation of learning,” I’ll admit that I’m wrong.

Second, congratulations to Dawson on a round of glowing evaluations. The sample size isn’t huge, but as the college evaluation adage goes, “50,000,000 Elvis Fans Can’t Be Wrong.” Or, in Dawson’s case, 17. The spring semester wasn’t as kind:

In Dawson’s spring class, though, 14 of 20 students responded, and while none rated her excellent or good, 11 rated her poor, with correspondingly low marks in every category. Mystery question No. 1: Why would Dawson’s fall class have such a peachy view of her, while her spring class thought she was the pits?

That not only is troubling, it’s highly unusual. It’s rare to see such a dramatic change in a professor’s evaluations without some specific reason [for example, I saw it once when a professor suffered a massive illness in December and missed some time during his Spring classes]. As an administrator, I’d look into this immediately – legitimate or not, something is wrong and the University owes it to everyone to find out.

The Times wanted to compare these two semesters to Dawson’s past evaluations:

Mystery question No. 2: What did students in Dawson’s other classes think? The Times requested the forms June 13, and within a day FAMU emailed the two cited in this blog post. But the forms for Dawson’s other classes – including the classes she taught in 2005-2006 – are apparently either missing or non-existent or not being turned over. After The Times sent a series of emails to FAMU officials seeking either the records or an explanation, Dean Witherspoon emailed a two-sentence response at nearly 8 o’clock Friday, saying the evaluations for Dawson’s elder law class – and a few other courses last year – were not administered.

Witherspoon doesn’t say why. She also doesn’t say what happened to the forms for Dawson’s 2005-06 classes. (The Times’ records request was not limited to one year.)

If I had to guess, I’d say that nothing sinister was going on. I think FAMU doesn’t take seriously their evaluations – which makes sense when you consider their lax oversight in general – and neither did Dawson. This is likely negligence, not outright malice or suppression.

Even though there likely isn’t a conspiracy here, this incident speaks to the culture of FAMU. They lack credibility and have brought it upon themselves by not giving due attention to accountability. President Ammons needs to restore a seriousness of purpose mixed with accountability if FAMU is to reclaim its reputation.

FAMU can start its recovery by taking care of some of the smaller projects. I’d like to see the University develop a new course evaluation system, including plans for its implementation in University matters and an effort to market a fresh, accessible system to its students.

And FAMU, I’m at your service. I’m available by e-mail/phone and am more than willing to help you turn this around.

*The famed historical drawing thumbnailed above is titled “The S.O.S.”

Update on Florida A&M / FAMU Probation

Florida A&M University’s recent probationary placement by the Southern Association of Colleges and Schools is less complex than I thought. It boils down to executive mismanagement, fiscal impropriety and general incompetence. Throw in some specific errors and you’ve got a mess that will be tough to turn around.

The Tallahassee Democrat reports that FAMU’s books were unable to be audited properly and were almost wholly unverifiable:

“The red flags were whipping by last summer, when state auditors released their annual audit of FAMU’s books from July 2004 through June 2005 and qualified their findings. In other words, they said they couldn’t be sure the numbers they were looking at were right.

“They could not audit (FAMU’s) accounting,” said Joelen Merkel, a University of Florida trustee who serves on the state’s FAMU task force. “This is very, very serious.”

No other university has had a qualified state financial audit.”

Indeed it is. The Democrat also has COO Larry Robinson’s explanation for the probation placement, which came after concerns about FAMU’s management mounted year after year:

“It got to the point they felt compelled to ask the university what’s going on,” Robinson said about the number of complaints the accreditation committee members received.

If “probation” means “asking what’s going on,” the OED needs an update.

RattlerNation is doing a solid job tracking the difficult times in Tallahassee.

It’s Party Time, But I’ve Got FAMU on the Brain


Light posting this afternoon – we’ve got a good, old-fashioned shindig this early evening and I’ve got to prepare.

Check out the news on FAMU, which is now on probation:

Florida A & M University has been placed on probation for six months by the Southern Association of Colleges and Schools, the regional accrediting body that oversees the public institution. The commission on colleges, during its bi-annual meeting in Ponte Vedra Thursday, concluded that FAMU is in violation of 10 accrediting standards dealing with financial controls, leadership, inventory tracking, and controls over areas like sponsored research and financial aid.

The probation is the worst of two actions the commission can take against a university, and if a college does not clean up its act within the probationary period, it can lose its accreditation altogether, said Tom Benberg, vice president and chief of staff for the SACS commission on colleges. A university that loses accreditation is no longer eligible for federal financial aid for its students. The probation comes just weeks before new FAMU president James Ammons takes over at his long-troubled alma mater.

RattlerNation has several good links on SACS vs. FAMU. This is serious business – I’ll get to looking over this mess soon enough.

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