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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.

6 Responses to “Using Test Questions from Prep Guides – Ethical, Legal?”

  1. Liz D. says:

    I’m taking two psychology courses at a local community college. As part of the “text adoption package” (which is something about assigning a particular textbook) the professor has access to a bank of test questions, as well as Power Point lecture slides.

    Guess what? The professor doesn’t make up her own test questions.

    Actually, we take the chapter tests online, and each student’s tests are different (randomly generated from the test bank).

    This would be all fine and good with me if the test question stems were well-formed and probed for understanding, and the multiple-choice answers actually reliably discriminated between clueless and clued-in.

    Unfortunately, about 50% of the questions are malformed, with about an equal number of poorly-formed multiple choice answers.

  2. Matthew says:

    Liz,

    That’s one of the exceptions – I should have mentioned a few circumstances like the type of package your class is using. I certainly wouldn’t consider a teacher lazy for for using questions packaged with texts.

    In theory, those questions should be totally appropriate for the text. It’s very odd that they seem not to be, don’t you think?

    My understanding of these publishing packages is not too advanced, but I think oftentimes companies will have different teams developing the text and authoring assessments. I can see some misalignment resulting from poor communication between those two teams.

    Is the text on its own good? Do you think they dropped the ball on the book, the test questions or both?

    And is anyone familiar with how textbook/assessment packages are created?

    This is sort of interesting.

  3. Hi5 Codes says:

    I personally think its a bit unethical. During college I had several teachers “quiz” us on the test questons right before the test – easy way to get A’s, eh?

  4. Matthew says:

    Hi5,

    Wow… I’d have been livid if I were in a college class and the professor did that. I would’ve been on my way to the department or dean’s office about 7 seconds after class ended.

    … and some people wonder why grade inflation exists on so many college campuses.

  5. Frank Jump says:

    Test prep! Ugh. We call it “test sophistication” at our school. One method that I’ve always thought was a bit more constructivist is let the kids make up the test. Model some test questions for them (one’s that you’ve created to avoid copyright infringement) and then have them create test questions and administer them. Could be more fun than TEST PREP. Ugh.

  6. Matthew says:

    “We call it “test sophistication” at our school.”

    That might be the worst education euphemism I’ve ever heard. Emily Post and test prep shouldn’t mix.

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  1. ISTP Dad : Using Test Questions from Prep Guides — matthewktabor.com - [...] A law school teacher copies questions from a test prep guide to use in a final exam. Plagiarism! Copyright ...

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