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Tennessee to investigate ACT Inc. after controversy over student test scores

(Seth Perlman/AP)

The state of Tennessee will investigate the giant education nonprofit ACT Inc., following an episode in which the Iowa City-based organization refused to release exam scores to hundreds of high school students, a spokesman for the state comptroller’s office said Tuesday. The students were administered exams that had been given two weeks earlier to other students, though no cheating has been alleged.

John Dunn, spokesman for Tennessee comptroller Justin Wilson’s office, said Wilson had agreed to conduct a probe as requested by Randy McNally, the speaker of the state Senate and Tennessee’s lieutenant governor. Among the things McNally asked to be investigated are ACT’s nonprofit status and how much it pays its leaders.

ACT issued a statement saying in part (and the full response is below),

While ACT has not been contacted by the comptroller at this time, we always welcome any discussion with our partners. ACT is fully compliant with its not-for-profit status and will cooperate with any inquiries made in this regard.
 ACT is committed to the appropriate use of information obtained through assessments that we administer.

The episode involves ACT’s refusal to release test scores to more than 400 students — most of them at Bearden High School in Knoxville — because the school accepted ACT test materials dated Oct. 3 and administered them to students on Oct. 17 instead.

ACT officials said they cannot release the scores because other students took the same test Oct. 3 and the integrity of the test would be suspect. Students, parents and McNally asked ACT to release the scores, noting no accusation of cheating had been made. ACT officials met with McNally and other officials Nov. 28 in an unsuccessful bid to reach a resolution.

The University of Tennessee agreed to accept applicants’ scores from the exam at Bearden and from Alvin C. York Institute in Jamestown, Tenn., the other school where some student schools were withheld, and ACT said it is working with schools to mitigate problems. Several hundred students have retaken the exam.

Paul Weeks, senior vice president for client relations at ACT, said Bearden officials had requested the Oct. 3 version of the ACT but didn’t give it to students until two weeks later, though 1,068 schools did take the test on the correct date. Sara Gast, spokeswoman for the Tennessee Department of Education, acknowledged in an email that Bearden had “inadvertently left their test date as the default of Oct. 3 in the ACT electronic ordering system.”

“We have continually conveyed our opinion to ACT that we want them to change their position so students’ effort is honored, but we recognize that this decision is theirs alone to make,” Gast said.

But McNally has been insistent that ACT should release the scores and allow colleges and universities to decide whether they will use them or not in the admissions process. In a recent news release, he said:

“A bureaucratic error should not stand in the way of these young people’s future. . . . The ACT simply needs to explain the situation, release the scores and let colleges and universities make their own determination as to their value. Their refusal to release the scores has turned the college admissions process into a hostage situation. The ACT needs to release these scores and let our young adults have the fighting chance at the scholarships, financial aid and college acceptance they have worked for.”

In a Nov. 29 letter from ACT to McNally, published on ACT’s website, the testing organization said flatly:

ACT deeply regrets the inconvenience and confusion the mis-administration has caused to impacted students at such an important time in their lives. We also regret that so much misinformation has been generated about this issue and the ensuing public perception that ACT is “punishing” students. As we discussed with you and the other leaders, we are committed to acting with integrity and doing what is in the best interest of all of our stakeholders in providing college readiness test scores that are valid, reliable and useful for all concerned.

McNally’s response was to call for an investigation of ACT. In a letter to Wilson’s office (see below), McNally requested that a number of issues be investigated, including the compensation of ACT’s leaders, contracts the state has with ACT and ACT’s nonprofit status, which provides it with tax benefits.

Dunn, the comptroller’s spokesman, office includes an audit division as well as researchers who look into education issues. “We will utilize personnel to attempt to look into the issues that Lt. Gov McNally has asked us to look into,” he said, adding that it would take several months. He also said of McNally: “He used the word ‘investigate.’ We would use the word ‘review.’ ”

ACT and the College Board, a nonprofit that owns the SAT and other exams administered worldwide, award hefty compensation packages to top employees. According to the 2015 990 form that ACT submitted to the U.S. Internal Revenue Service, the latest one available on, the organization paid its chief executive, Jon Whitmore, $845,333 in salary — not including other benefits — for the fiscal year Sept. 1, 2014 through Aug.  31, 2015. Richard Paz, as chief measurement officer, earned in the same year $671,951 in salary.

For that same fiscal year, the College Board paid its chief executive, David Coleman, $742,278 in salary, with another $155,655 in other compensation from the organization and related organizations, according to its 990 form.

This is not the first time a call has been made for an investigation into ACT. A decade ago, Iowa’s attorney general asked the IRS to investigate compensation at ACT after the Des Moines Register reported in 2007 that the company was paying members of its board of directors more than nearly all other nonprofits across the country. Some ACT board members, according to the Register’s stories, received more than $40,000 annually to attend four meetings, review documents and participate in conference calls.

The Register was assisted in that reporting by the National Center for Fair & Open Testing, a nonprofit that works to reduce high-stakes testing, which paid its executive director, Monty Neill, $88,000 in the 2016 fiscal year, according to the organization’s 990 form.

Bob Schaeffer, education director of FairTest, said there is not “a shred of evidence” that the “mis-administration” of the ACT test at the Tennessee schools had “undermined the integrity of a single student’s ACT results.”  He also said in an email:

Since the administration in question was largely a retest date for seniors trying to boost their scores, ACT could have run their standard student performance comparative studies (regularly used to detect cheating) and flagged unusual results. Yet, the company has never said that the results are suspicious.

Here is ACT’s full comment on McNally’s call for an investigation:

While ACT has not been contacted by the Comptroller at this time, we always welcome any discussion with our partners. ACT is fully compliant with its not-for-profit status and will cooperate with any inquiries made in this regard.
ACT is committed to the appropriate use of information obtained through assessments that we administer. We share the public’s concern that assessments be used appropriately, and we recognize the importance of encouraging the appropriate use of assessment information in decision making. ACT’s general policy is to provide individually identifiable information to a third party only at the direction of the individual or after the individual has opted in to such sharing. When authorized by the individual student, ACT provides only selected student information and only to organizations that provide educational, scholarship, career, or financial aid opportunities — mostly colleges.
We operate within a framework of policies and procedures designed to ensure delivery of high-quality programs and services and protect the privacy of the data we collect. We review our programs and services to confirm that they are consistent with the standards expressed in the current versions of the Code of Fair Testing Practices in Education prepared by the Joint Committee on Testing Practices, the Code of Professional Responsibilities in Educational Measurement prepared by the National Council on Measurement in Education, and the Standards for Educational and Psychological Testing prepared by the American Educational Research Association, American Psychological Association, and National Council on Measurement and Education.
At this time, ACT remains committed to and focused on the students we serve in Tennessee and around the globe. We are working with Bearden and York high school students who retook the ACT on Dec. 8 in getting their scores to their selected colleges and universities to successfully meet extended deadlines such as those of the University of Tennessee.

And here is the letter McNally sent to the comptroller’s office requesting an investigation into ACT: