16
SOCIAL, ETHICAL, AND LEGAL ISSUES
Over the past decade, educational testing and assessment have grown in use and importance for students in general, and nursing students in particular. One only has to read the newspapers and watch television to appreciate the prevalence of testing and assessment in contemporary American society. With policies and laws such as the No Child Left Behind Act, mandatory high school graduation tests in some states, and the emphasis on standardized achievement tests in many schools, testing and assessment have taken a prominent role in the educational system. From the moment of birth, when we are weighed, measured, and rated according to the Apgar scale, throughout all of our educational and work experiences, and even in our personal and social lives, we are used to being tested and evaluated. In addition, nursing and other professional disciplines have come under increasing public pressure to be accountable for the quality of educational programs and the competency of their practitioners; thus, testing and assessment often are used to provide evidence of quality and competence.
With the increasing use of assessment and testing come intensified interest and concern about fairness, appropriateness, and impact. This chapter discusses selected social, ethical, and legal issues related to testing and assessment practices in nursing education.
Social Issues
Testing has tremendous social impact because test scores can have positive and negative consequences for individuals. Tests can provide information to assist in decision-making; some of these decisions have more importance to society and to individuals than other decisions. The licensure of drivers is a good example. Written and performance tests provide information for deciding who may drive a vehicle. Society has a vested interest in the outcome because a bad decision can affect the safety of a great many people. Licensure to drive a vehicle also may be an important issue to an individual; some jobs require the employee to drive a car or truck, so a person who lacks a valid operator’s license will not have access to these employment opportunities.
312Tests also are used to help to place individuals into professional and occupational roles. These placement decisions have important implications because a person’s profession or occupation to some extent determines status and economic and political power. Because modern society depends heavily on scientific knowledge and technical competence, occupational and professional role selection are based to a significant degree on what individuals know and can do. Therefore, by controlling who enters certain educational programs, institutions have a role in determining the possible career path of an individual.
The way in which schools should select candidates for occupational and professional roles is a matter of controversy, however. Some individuals and groups hold the view that schools should provide equal opportunity and access to educational programs. Others believe that equal opportunity is not sufficient to allow some groups of people to overcome discrimination and oppression that has handicapped their ability and opportunity.
Decisions about which individuals should be admitted to a nursing education program are important because of the nursing profession’s commitment to the good of society and to the health and welfare of current and future patients (American Nurses Association, 2010). Nursing faculties must select individuals for admission to nursing programs who are likely to practice nursing competently and safely; tests frequently are used to assist educators in selecting candidates for admission. Improper use of testing or the misinterpretation of test scores can result in two types of poor admission decisions. If an individual is selected who is later found to be incompetent to practice nursing safely, the public might be at risk; if an individual who would be competent to practice nursing is not admitted, that individual is denied access to a professional role.
The use of testing in employment situations and for the purpose of professional certification can produce similar results. Employers have a stake in making these decisions because they are responsible for ensuring the competence of their employees. Tests for employment, to ensure competencies at the end of orientation, and to certify continuing knowledge and skills are important not only to the employee but also to the employer. Through assessments such as these, the employer verifies that the individual is competent for the role. Selection decisions, therefore, have social implications for individuals, institutions, and society as a whole.
Although educational and occupational uses of testing are growing in frequency and importance, the public often expresses concerns about testing. Some of these concerns are rational and relevant; others are unjustified.
Assessment Bias
One common concern is that assessments are biased or unfair to certain groups of test-takers. A major purpose of assessment is to discriminate among people, that 313is, to identify important differences among them with regard to their knowledge, skills, or attitudes. To the extent that differences in scores represent real differences in achievement of objectives, this discrimination is not necessarily unfair. Bias can occur, however, when scores from an assessment are misinterpreted, or conclusions are drawn about performance that go well beyond the assessment. For example, if a test is found to discriminate between men and women on variables that are not relevant to educational or occupational success, it would be unfair to use that test to select applicants for admission to a program or for a job. Thus, the question of test bias really is one of measurement validity, the degree to which inferences about test results are justifiable in relation to the purpose and intended use of the test (Brookhart & Nitko, 2019; Miller, Linn, & Gronlund, 2013).
Assessment bias also has been defined as the differential validity of an assessment result for a group of students or other people being assessed. With assessment bias, a given score does not have the same meaning for all students who were assessed. The teacher may interpret a low test score to mean inadequate knowledge of the content, but there may be a relevant subgroup of individuals, for example, students with learning disabilities, for whom that score interpretation is not accurate. The test score may be low for a student with a learning disability because he or she did not have enough time to complete the exam or because there was too much environmental noise, not because of a lack of knowledge about the content.
Individual test items also can discriminate against subgroups of test-takers, such as students from ethnic minority groups; this is termed differential item functioning (DIF). Test items are considered to function differentially when students of different subgroups but of equal ability, as evidenced by equal total test scores, perform differently on the item. However, differences in item functioning do not necessarily confirm item bias (Brookhart & Nitko, 2019). Although some experts suggest excluding DIF items from a test, eliminating such items may decrease evidence of content and construct validity, especially if there is a large number of DIF items (Kabasacal & Kelecioğlu, 2015).
Item bias (and collectively, test bias) also can be construed as a content and experience differential. Bias is produced by test or item content that differs substantially from one subgroup’s life experiences and when these differences are not taken into account when the assessment results are interpreted (Brookhart & Nitko, 2019). The presence of test bias does not necessarily mean that the test is unfair. For a test to be unfair, the bias among test scores for different groups occurs when (a) scores are not used and interpreted the same across all students, (b) the opportunity to prepare for or complete the test is not the same for all students, and (c) the test conditions are not uniform for all students (Balkin, Heard, Lee, & Wines, 2014).
314A culturally biased item contains references to a particular culture and is more likely to be answered incorrectly by students from a minority group. An example of a culturally biased test item follows:
1. While discussing her health patterns with the nurse, a patient says that she enjoys all of the following leisure activities. Which one is an aerobic activity?
a. Attending ballet performances
b. Cultivating house plants
c. Line dancing
d. Singing in the church choir
The correct answer is “line dancing,” but students who are non-native English speakers or English-language learners, students from cultural minority groups, and even domestic students from certain regions of the country may be unfamiliar with this term and therefore may not select this response. In this case, an incorrect response may mean that the student is unfamiliar with this type of dancing, not that the student is unable to differentiate between aerobic and nonaerobic activities. As discussed in Chapter 2, Qualities of Effective Assessment Procedures: Validity, Reliability, and Usability, cultural bias of this type contributes to construct-irrelevant variance that can reduce measurement validity (Miller et al., 2013). The Standards for Educational and Psychological Testing (American Educational Research Association, American Psychological Association, & National Council on Measurement in Education [NCME], 2014) specify that test developers should reduce language differences that threaten the reliability and validity of inferences made from test scores.
Careful peer review of test items for discernible bias allows the teacher to reword items to remove references to American or English literature, music, art, history, customs, or regional terminology that are not essential to the nursing content being tested. The inclusion of jokes, puns, and other forms of humor also may contribute to cultural bias because these forms of expression may not be interpreted correctly by international students, non-native English speakers, and English-language learners. It is appropriate, however, to include content related to cultural differences that are essential to safe nursing practice. Students and graduate nurses must be culturally competent if they are to meet the needs of patients from a variety of cultures.
A test item with linguistic or structural bias is poorly written. It may be lengthy, unclear, or awkwardly worded, interfering with the student’s understanding of the teacher’s intent. Structurally biased items create problems for all students, but they are more likely to discriminate against English-language learners or those with learning disabilities. In addition, students from minority cultures may be less likely than dominant-culture students to ask the test proctor to clarify a poorly written item, 315usually because it is inappropriate to question a teacher in certain cultures. Following the general rules for writing test items in this book will help the teacher to avoid structural bias.
An assessment practice that helps to protect students from potential bias is anonymous or blinded scoring and grading. The importance of scoring essay items and written assignments anonymously was discussed earlier in the book. Anonymous grading also can be used for an entire course. The process is similar to that of peer review of manuscripts and grant proposals: The teacher is unaware of the student’s identity until the end of the course. Students choose a number or are randomly assigned an anonymous grading system number at the beginning of a course. That number is recorded on every test, quiz, written assignment, and other assessments during the semester, and scores are recorded according to these code numbers. The teacher does not know the identity of the students until the end of the course. This method of grading prevents the influence of a teacher’s previous impressions of a student on the scoring of a test or written assignment.
Grade and Test Score Inflation
Another common criticism of testing concerns the general trend toward inflation of test scores and grades at all educational levels. Grade inflation is the tendency to award higher grades over time for performance that does not improve in quality. Another sense of this term is grading leniency, which is the tendency to award higher grades to students than they deserve. Grade inflation distorts the meaning of test scores, making it difficult for teachers to use them wisely in decision-making. If an A is intended to represent exceptional or superior performance, then all students cannot earn A grades because if everyone is exceptional, then no one is. With grade inflation, all grades are compressed near the top, which makes it difficult to discriminate among students. When there is little distribution of scores or grades, there is little value in testing. Issues common to the problem of grade inflation include:
• Students’ expectations related to the belief that they are consumers of the educational program (Edgar, Johnson, Graham, & Dixon, 2014; Nata, Pereira, & Neves, 2014) and the desire to have a greater role in their own educations (Holman, 2015)
• The growing importance of grades for graduate school and employment applications (Holman, 2015)
• Mandatory faculty evaluation and the threat of negative student evaluations; faculty members “wanting to be liked” (Docherty, 2018; Holman, 2015)
• Faculty aversion to giving failing grades (Couper, 2018; Paskausky & Simonelli, 2014)
• 316Faculty beliefs about what constitutes satisfactory performance (the “good enough” approach) and the subjective nature of grading (Docherty, 2018)
• Faculty anxiety about students’ seeking legal recourse for a failing grade (Couper, 2018)
• The “hassle factor” associated with assigning a failing grade (Docherty, 2018)
• Faculty perception of absence of administrative support for assigning failing grades (Couper, 2018; Hughes, Mitchell, & Johnston, 2016)
• Differences in grading practices of tenured and nontenured faculty members (Donaldson & Gray, 2012; Paskausky & Simonelli, 2014)
• Increasing use of part-time faculty members in nursing education programs
The relationship among these factors is especially relevant in nursing education. Most part-time faculty members teach in the clinical area, and many are skilled clinicians with little or no formal academic preparation for the role of educator. Many nursing faculty members are reluctant to assign failing grades in clinical courses, giving students the benefit of the doubt especially in beginning courses. This belief is easily communicated to part-time faculty members, who may have additional concerns about their job security because most of them are hired on limited-term contracts. Where student evaluation of faculty members is mandatory, part-time teachers may be unwilling to assign lower clinical grades because of possible repercussions related to continued employment in that role.
In addition, grading discrepancies between theory and related clinical courses frequently occur. Especially in nursing education programs where clinical practice is assigned a letter grade (instead of a pass–fail or similar grading system), higher clinical grades tend to inflate the overall grade point average. This discrepancy is difficult to explain or defend on the basis of the assumption that theory informs clinical practice; why would a student with a grade of C in a theory course be likely to earn an A grade in the corresponding clinical course? Clinical grade inflation of this sort may result in more students with marginal ability “slipping through the cracks” and failing the final clinical course of the nursing education program, or graduating only to fail the National Council Licensure Examination (NCLEX®).
In a study of discrepancy between the scores on a final exam and the clinical grades assigned by faculty members in an undergraduate program, Paskausky and Simonelli (2014) found a moderate to low correlation between the two measurements. The clinical grade distribution was negatively skewed with a narrow range; the test scores were normally distributed with a wide range. Grade discrepancy scores were calculated by subtracting the final exam score from the clinical grade; 98% of students had clinical grades higher than final exam grades.
Clinical grading also may be governed by the “rule of C,” where the D grade is virtually eliminated as a grading option because of program policies that require 317a minimum grade of C to pass a clinical course. As previously mentioned, faculty members who are reluctant to assign failing grades to students then may award C grades to students with marginal performance, and the B grade becomes the symbol for average or acceptable performance. This grade compression (only three grade levels instead of five) contributes to grade inflation (Donaldson & Gray, 2012).
Another factor contributing to grade inflation is the increasing pressure of accountability for educational outcomes. When the effectiveness of a teacher’s instruction is judged on the basis of students’ test performance, the teacher may “teach to the test.” Teaching to the test may involve using actual test items as practice exercises, distributing copies of a previously used test for review and then using the same test, or focusing exclusively on test content in teaching.
Because regulatory and accreditation standards for nursing education programs commonly include expectations of an acceptable first-time NCLEX pass rate for graduates each year, and the quality of graduate nursing programs is judged by graduates’ pass rates on certification exams, these test results have significant implications for the educational institutions as well as the individual test-takers. When faculty members and educational programs are judged by how well their graduates perform on these high-stakes assessments, “direct preparation for the tests and assessments is likely to enter into classroom activities and thereby distort the curriculum” (Miller et al., 2013, p. 15).
It is important, however, to distinguish between teaching to the test and purposeful teaching of content to be sampled by the test and the practice of relevant test-taking skills. Nursing faculty members who understand the NCLEX test plan and ensure that their nursing curricula include content and learning activities that will enable students to be successful on the NCLEX are not teaching to the test.
Effect of Tests and Grades on Self-Esteem
Some critics of tests claim that testing results in emotional or psychological harm to students. The concern is that tests threaten students and make them anxious, fearful, and discouraged, resulting in harm to their self-esteem. There is no empirical evidence to support these claims. Feelings of anxiety about an upcoming test are both normal and helpful to the extent that they motivate students to prepare thoroughly so as to demonstrate their best performance. Because testing is a common life event, learning how to cope with these challenges is a necessary part of student development. Giving effuse praise for every performance whether or not it is praiseworthy (i.e., “ovation inflation”), while temporarily raising self-esteem, does little to produce students who can realistically assess their own efforts and persist despite challenges.
Brookhart and Nitko (2019) identified three types of test-anxious students: (a) students who have poor study skills and become anxious prior to a test because they do not understand the content that will be tested, (b) students who have good 318study skills and understand the content but fear they will do poorly no matter how much they prepare for the exam, and (c) students who believe that they have good study skills but in essence do not. If teachers can identify why students are anxious about testing, they can direct them to specific resources such as those on study skills, test-taking strategies, and techniques to reduce their stress.
Most nursing students will benefit from developing good test-taking skills, particularly learners who are anxious. For example, students should be told to follow the directions carefully, read the item stems and questions without rushing to avoid misreading critical information, read each option for multiple-choice items before choosing one, manage time during the test, answer easy items first, and check their answers. Arranging the test with the easy items first often helps relieve anxiety as students begin the test. Because highly anxious students are easily distracted (Brookhart & Nitko, 2019), the teacher should ensure quiet during the testing session.
General guidelines for the teacher to follow to intervene with students who have test anxiety include (Brookhart & Nitko, 2019):
1. Identify the problem to be certain it is test anxiety and not a learning disability or a problem such as depression
2. Give specific detailed feedback about the student’s performance on each test
3. Help the student to develop testwiseness skills (e.g., using time well, avoiding technical and clerical errors, learning how to make informed guesses, using unintended cues in item content or structure)
4. Refer the student to outside resources as needed
5. Advise students to concentrate on the assessment tasks and not allow themselves to be distracted (Brookhart & Nitko, 2019)
Although it is probably true that a certain level of self-esteem is necessary before a student will attempt the challenges associated with nursing education, high self-esteem is not essential to perform well on a test. In fact, if students are able to perform at their best, their self-esteem is enhanced. An important part of a teacher’s role is to prepare students to do well on tests by helping them improve their study and test-taking skills and to learn to manage their anxiety.
Testing as a Means of Social Control
All societies sanction some form of social control of behavior; some teachers use the threat of tests and the implied threat of low test grades to control student behavior. In an attempt to motivate students to prepare for and attend class, a teacher may decide to give unannounced tests; the student who is absent that day will earn a score of zero, and the student who does not do the assigned readings will likely earn a low score. This practice is unfair to students because they need sufficient time to prepare 319for a test to demonstrate their maximum performance, as discussed in Chapter 3, Planning for Testing. Students have a right to be informed in advance about when a test will be administered, and using tests in a punitive, threatening, or vindictive way is unethical (Brookhart & Nitko, 2019).
Ethical Issues
Ethical standards make it possible for nurses and patients to achieve understanding of and respect for each other. These standards also should govern the relationships of teachers and students. Contemporary bioethical standards include those of autonomy, freedom, veracity, privacy, beneficence, nonmaleficence, and fidelity. Several of these standards are discussed here as they apply to common issues in testing and evaluation.
The standards of privacy, autonomy, and veracity relate to the ownership and security of tests and test results. Some of the questions that have been raised are: Who owns the test? Who owns the test results? Who has or should have access to the test results? Should test-takers have access to standardized test items and their own responses?
Because educational institutions and employers started using standardized tests to make decisions about admission and employment, the public has been concerned about the potential discriminatory use of test results. The result of this public concern was the passage of federal and state “truth in testing” laws, requiring greater access to tests and test results.
Test-takers have the right to expect that certain information about them will be held in confidence. Teachers, therefore, have an obligation to maintain a privacy standard regarding students’ test scores. Such practices as public posting of test scores and grades should be examined in light of this privacy standard. Teachers should not post assessment results if individual students’ identities can be linked with their results; for this reason, many educational programs do not allow scores to be posted with student names or identification numbers. During posttest discussions, teachers should not ask students to raise their hands to indicate whether they answered an item correctly or incorrectly; this practice can be considered an invasion of students’ privacy (Brookhart & Nitko, 2019).
An additional privacy concern relates to the practice of keeping student records that include test scores and other assessment results. Questions often arise about who should have access to these files and the information they contain. Access to a student’s test scores and other assessment results is limited by laws such as the Family Educational Rights and Privacy Act of 1974 (FERPA). This federal law gives students certain rights with respect to their education records. For example, they can review their education records maintained by the school and request that the school correct records they believe to be inaccurate or misleading. Schools must have written 320permission from the student to release information from the student’s record except in selected situations such as accreditation or for program assessment purposes (U.S. Department of Education, n.d.). The FERPA limits access to a student’s records to those who have legitimate rights to the information to meet the educational needs of the student. This law also specifies that a student’s assessment results may not be transferred to another institution without written authorization from the student. In addition to these limits on access to student records, teachers should ensure that the information in the records is accurate and should correct errors when they are discovered. Files should be purged of anecdotal material when this information is no longer needed (Brookhart & Nitko, 2019).
Another way to violate students’ privacy is to share confidential information about their assessment results with other teachers. To a certain extent, a teacher should communicate information about a student’s strengths and weaknesses to other teachers to help them meet that student’s learning needs. In most cases, however, this information can be communicated through student records to which other teachers have legitimate access. Informal conversations about students, especially if those conversations center on the teacher’s impressions and judgments rather than on verifiable data such as test scores, can be construed as gossip.
Test results sometimes are used for research and program evaluation purposes. As long as students’ identities are not revealed, their scores usually can be used for these purposes (Brookhart & Nitko, 2019). One way to ensure that this use of test results is ethical is to announce to the students when they enter an educational program that test results occasionally will be used to assess program effectiveness. Students may be asked for their informed consent for their scores to be used, or their consent may be implied by their voluntary participation in optional program evaluation activities. For example, if a questionnaire about student satisfaction with the program is distributed or mailed to students, those who wish to participate simply complete the questionnaire and return it; no written consent form is required. In many institutions of higher education, however, this use of test results may require review by the institutional review board.
The ethical principle of fidelity requires faithfulness in relationships and matters of trust. In nursing education programs, adherence to this principle requires that faculty members act in the best interest of students. By virtue of their education, experience, and academic position, faculty members hold power over their students. They have the ability to influence students’ progress through the nursing education program and their ability to gain employment after graduation. Violations of professional boundaries may occur and affect students’ ability to trust faculty members. Teachers who have personal relationships with students may be accused of awarding grades based on favoritism or, conversely, may be accused of using failing grades to retaliate against students who rebuff a sexual or emotional advance.
321Standards for Ethical Testing Practice
Several codes of ethical conduct in using tests and other assessments have been published by professional associations, one of which is the Code of Fair Testing Practices in Education (Joint Committee on Testing Practices, 2004), reproduced in Appendix C. The Standards for Educational and Psychological Testing (American Educational Research Association et al., 2014) describe standards for test construction, administration, scoring, and reporting; supporting documentation for tests; fairness in testing; and a range of testing applications. The Standards also address testing individuals with disabilities and different linguistic backgrounds. Common elements of these codes and standards are:
• Students have the right to be tested with tests that have been developed to meet professional standards.
• Teachers are responsible for the quality of the tests they develop and for selecting tests that are appropriate for the intended use.
• Test administration procedures must be fair to all students and protect their safety, health, and welfare.
• Teachers are responsible for the accurate scoring of tests and reporting test results to students in a timely manner.
• Students should receive prompt and meaningful feedback.
• Test results should be interpreted and used in valid ways.
• Teachers must communicate test results accurately and anticipate the consequences of using results to minimize negative results to students.
• Students must be able to present their concerns about the testing process or results and have those concerns reviewed seriously. (Brookhart & Nitko, 2019)
High-Stakes Assessments
High-stakes assessments are used for decision-making that results in serious consequences for the test-takers, teachers, and administrators of educational programs (Brookhart & Nitko, 2019). As mentioned in the introduction to this chapter, public demands for accountability have influenced a growing use of assessments intended to demonstrate that students and graduates meet knowledge and performance standards. In nursing as in many other health professions, an ongoing concern is the need to protect the public through the use of standardized licensure examinations to ensure competence to practice. State boards of nursing, which have regulatory authority to license nurses, share accountability with nursing education programs to 322ensure the competence of program graduates. A state board of nursing’s oversight of nursing education programs gives it the authority to curtail programs that have low licensure examination first-time pass rates. Therefore, licensure examinations are high-stakes assessments not only for nursing students and new graduates, but also for faculty members and administrators of nursing education programs (National Council of State Boards of Nursing [NCSBN®], 2007; National League for Nursing [NLN], 2010, 2012b).
Adding to the pressure on nursing education programs to meet state board of nursing minimum first-time pass rate requirements is a board of nursing’s responsibility and authority also to sanction programs that have high attrition rates (NCSBN, 2007). The need to meet both standards (high NCLEX-RN® pass rate and low attrition rate) is a double-edged sword that has motivated increasing numbers of nursing education programs to use standardized end-of-program tests to identify students at risk of NCLEX-RN failure, and to deny program progression or graduation to students who are predicted to fail the licensure examination. According to Giddens and Morton (2010), this type of high-stakes assessment “borders on unethical educational practice” (p. 374) based on the need for multiple approaches to assessment of knowledge and skill when high-stakes decisions are based on the assessment (NLN, 2012b). In addition, use of a single standardized test as a basis for progression and graduation decisions raises concerns about whether any such test reliably predicts success among various subgroups of an increasingly diverse group of learners (Brookhart & Nitko, 2019).
Requiring students to achieve a predetermined score on a standardized test to graduate from the nursing education program or to be authorized to take the NCLEX so that the program’s first-time pass rates meet or exceed a state board-mandated level is a complex problem for those who have successfully met all other program requirements. If this “exit exam” is a required component of a nursing course, students who cannot achieve the required score may fail the course, endangering their academic status. Students may need to take the exit examination repeatedly until they meet the standard, delaying graduation or licensure and thus adversely affecting them economically (NLN, 2012b). Also, most of the standardized tests being used as exit examinations are intended to predict whether an individual student is likely to pass the NCLEX. Such tests are much less accurate in predicting the likelihood of failure.
Progression or graduation policies requiring high-stakes testing also can distort the intended purpose of NCLEX pass-rate requirements as a measure of program quality. A nursing program that achieves a high first-time pass rate by allowing only the highest performing students to progress in the program, graduate, and take the NCLEX illustrates the effect of selection bias. Thus, the use of high-stakes assessments in progression and graduation policies raises concern about the extent to which the 323nursing education program provides equal opportunity and access to diverse groups of students.
The NLN’s concern about the “prevalent use of standardized tests to block graduation or in some other way deny eligibility to take the licensing exam” (NLN, 2012b) prompted creation of fair testing guidelines to assist nursing faculty members and administrators in developing and implementing ethical academic progression and graduation policies. These guidelines, reprinted in Appendix D, emphasize the obligation of faculty members and administrators to:
• Use multiple approaches for assessment of knowledge and clinical abilities when making high-stakes decisions.
• Select tests with evidence of measurement validity, and fairness and equity demonstrated by test performance across cultural, racial, or gender subgroups.
• Inform students about how the test results will be used.
• Undertake a comprehensive review of factors leading to development and implementation of high-stakes testing.
• Review other factors that affect NCLEX-RN pass rates and other measures of program quality, such as admissions policies, instructional effectiveness, remediation requirements, and course-level assessments, to identify opportunities for improvement. (NLN, 2012a)
Legal Aspects of Assessment
It is beyond the scope of this book to interpret laws that affect the use of tests and other assessments, and the authors are not qualified to give legal advice to teachers concerning their assessment practices. However, it is appropriate to discuss a few legal issues to provide guidance to teachers in using tests.
A number of issues have been raised in the courts by students claiming violations of their rights by testing programs. These issues include race or gender discrimination, violation of due process, unfairness of particular tests, various psychometric aspects such as measurement validity and reliability, and accommodations for students with disabilities (Brookhart & Nitko, 2019).
Psychometric Issues
Students seeking legal recourse for a failing grade in a course or on a high-stakes test may present concerns about technical or psychometric issues to the court. These issues may involve:
• 324Adherence to testing standards such as the Standards for Educational and Psychological Testing (American Educational Research Association et al., 2014) or the Code of Fair Testing Practices in Education (Joint Committee on Testing Practices, 2004)
• The measurement reliability and reliability of a test
• Test development procedures
• Methods of determining a passing score
• Issues with the physical features of the test, such as the quality of directions or print size
• Accommodations for students with disabilities (Brookhart & Nitko, 2019)
Assessment of Students With Disabilities
The Americans with Disabilities Act (ADA) of 1990 and the ADA Amendments Act of 2008 (P.L. 110–325) have influenced testing and assessment practices in nursing education and employment settings. This law prohibits discrimination against qualified individuals with disabilities. A qualified individual with a disability is defined as a person with a physical or mental impairment that substantially limits major life activities. Qualified individuals with disabilities meet the requirements for admission to and participation in a nursing program. Nursing education programs have a legal and an ethical obligation to accept and educate qualified individuals with disabilities. It is up to the nursing education program to provide reasonable accommodations, additional services and aids as needed, and to remove any barriers. This does not mean that institutions lower their standards to comply with the ADA.
The ADA requires teachers to make reasonable accommodations for disabled students to assess them properly. Such accommodations may include oral testing, computer testing, modified answer format, extended time for exams, test readers or sign language interpreters, a private testing area, or the use of large type for printed tests (Brookhart & Nitko, 2019; May, 2014). However, nursing faculty members should provide accommodations only if a student submits verification of qualification for such accommodations. This verification should be provided by the institutional officer responsible for disability services after receipt of evidence of the student’s disability and individual needs from an appropriate professional. NCLEX policies permit test-takers with documented learning disabilities to have extended testing time as well as other reasonable accommodations, if approved by the board of nursing in the states in which they apply for initial licensure (NCSBN, 2019). This approval usually is granted only when the educational institution has verified the documentation of a disability and students’ use of accommodations during the nursing education program. Because English-language proficiency is required for competent nursing 325practice in the United States, non-native English speakers or English-language learners are not considered to be qualified persons with disabilities.
A number of concerns have been raised regarding the provision of reasonable testing accommodations for students with disabilities. One issue is the validity of the test result interpretations if the test was administered under standard conditions for one group of students and under accommodating conditions for other students. Any changes made to test items, administration conditions, or student response modes in order to accommodate students with disabilities must provide the teacher with valid assessment information (Brookhart & Nitko, 2019). The privacy rights of students with disabilities is another issue: Should the use of accommodating conditions be noted along with the student’s test score? Such a notation would identify the student as disabled to anyone who had access to the record. There are no easy answers to such questions. In general, faculty members should be guided by accommodation policies developed by their institution and have any additional policies reviewed by legal counsel to ensure compliance with the ADA.
Summary
Educational testing and assessment are growing in use and importance for society in general and for nursing in particular. Nursing has come under increasing public pressure to be accountable for the quality of educational programs and the competency of its practitioners, and testing and assessment often are used to provide evidence of quality and competence. With the increasing use of assessment and testing come intensified interest in and concern about fairness, appropriateness, and impact.
The social impact of testing can have positive and negative consequences for individuals. Tests can provide information to assist in decision-making, such as selecting individuals for admission to education programs or for employment. The way in which selection decisions are made can be a matter of controversy, however, regarding equality of opportunity and access to educational programs and jobs.
The public often expresses concerns about testing. Common criticisms of tests include: tests are biased or unfair to some groups of test-takers; test scores have little meaning because of grade inflation; testing causes emotional or psychological harm to students; and tests are sometimes used in a punitive, threatening, or vindictive way. By understanding and applying codes for the responsible and ethical use of tests, teachers can ensure the proper use of assessment procedures and the valid interpretation of test results. Teachers must be responsible for the quality of the tests they develop and for selecting tests that are appropriate for their intended use. The use of high-stakes testing in progression and graduation policies is of particular concern, and guidelines are available to assist faculty members to develop fair testing policies.
326The ADA of 1990 and the ADA Amendments Act of 2008 have implications for the proper assessment of students with physical and mental disabilities. This law requires educational programs to make reasonable testing accommodations for qualified individuals with learning as well as physical disabilities.
