Tennessee, Measurement Incorporated Tussle Over Blame for Testing Woes

Managing Editor

When online tests in Tennessee went off the rails two years ago, state officials blamed the vendor, Measurement Incorporated, and eventually canceled its assessment contracts.

But the company says that blame was misdirected—and it’s fighting in court to get reimbursed for more than $25 million it says it’s owed by the state.

The vendor’s lawsuit, which is now being heard before the Tennessee Claims Commission, is just one chapter in a spate of testing problems that have bedeviled the state over the past few years — with the most recent problems emerging just last month.

The case offers a window into the prolonged and complicated disputes that often follow states’ online testing mishaps. In some cases, vendors agree to pay settlements to reimburse states for alleged shortcomings that knock students offline, consume class time, and rile parents.

In Tennessee, however, Measurement Incorporated says the fault for delays and confusion during the 2016 testing cycle lies with state officials, who the vendor contends overreacted to testing glitches and made fixable problems worse.

The vendor’s lawsuit is seeking $25.7 million from the state’s department of education for breach of contract.

Attorneys for Measurement Incorporated and the Tennessee state Attorney General’s office both declined comment, referring Marketplace K-12 to court documents laying out their positions. But in those filings, Tennessee officials dispute the vendor’s claims—and they’re seeking damages of their own, to be determined by the court.

Regardless of how the lawsuit is decided, Tennessee’s testing woes did not end when it parted ways with Measurement Incorporated.

This year, login problems and an apparent cyberattack prevented thousands of students from accessing the exam, and about 1,400 students ended up taking the wrong version  of the test, known TNReady, as my colleague Ben Herold explained in a recent story. The state’s current vendor is Questar.

The legal challenge filed by Measurement Inc. stems from disruptions that occurred on Feb. 8, 2016, after students began logging onto the vendor’s online testing platform, MIST.

In its lawsuit, the company says that by 9:15 a.m. that day, 22,000 students were online taking tests, and the vendor began receiving reports that some school districts were having delays during the login process, and coping with slow response times. By 10:15 a.m., however, response times returned to normal, Measurement Incorporated argues.

But at 11 a.m. that day, according to the vendor’s recounting, Tennessee Commissioner of Education Candice McQueen sent an e-mail to all school districts telling them to halt testing.

During the hours that followed, thousands of tests were nonetheless processed successfully, the lawsuit claims. Yet later during the same day, Tennessee officials went ahead with what the vendor describes as a “knee-jerk reaction to unreasonably, unilaterally, and unjustifiably” cancel all online tests and switch to paper-and-pencil versions.

State’s Vision Set Back

In fact, Measurement Incorporated says, the delays that frustrated some schools were due to “temporary network saturation” caused by students logging onto the MIST platform at the same time. That problem would have been resolved, the company says, with an adjustment of the testing window.

Measurement Incorporated says Tennessee officials later required the vendor to cancel all online testing and switch to paper-based testing, without considering alternatives.

In a separate document filed with the Tennessee Claims Commission, Measurement Inc. says it had to swallow big costs while trying to satisfy Tennessee’s demands for paper-testing. The company says it was “using all known United States-based paper printing vendors” available. At one point, FedEx’s air operations from one state, North Carolina, could no longer accept some paper shipments “because of the huge volume involved,” the vendor says

Measurement Inc. had a pair of contracts with the state, worth roughly $107 million and $58 million, both of which were canceled.

State officials deny Measurement Inc.’s claims. In its response to the lawsuit, state officials say the company failed to live up to its contracts, including the ability to shift from online tests to paper ones when needed.

“The move to online testing represented an important step for Tennessee’s investment in education technology, with the aim of preparing students for the real world,” state officials said. “The state spent months working with school districts in advance of the rollout” of the exams.

Ultimately, Tennessee officials “trusted and relied on” Measurement Inc. to deliver a “functioning, computer-based testing platform,” the state argued, but the vendor fell short.

The case is now pending before the state’s claims commission, which considers lawsuits brought against the state of Tennessee, including those for alleged breaches of contract.

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