If PARCC, Inc., Is the Owner of PARCC Items, Produce the Document Proving It

In a letter issued around May 12, 2016, to professor Celia Oyler regarding Oyler’s publishing three “live” PARCC items on her blog on May 07, 2016, PARCC, Inc., CEO Laura Slover wrote the following as part of a warning email to Oyler:

Parcc, Inc. is the owner of all intellectual property contained in the various PARCC assessments (other than third party literary excerpts, for which we have reprint permission), including the essay prompts you have posted.

According to Slover, her nonprofit, PARCC, Inc., owns the rights to the PARCC test items.

In the DMCA takedown notice sent to bloggers and others who shared Oyler’s post on Twitter, Slover is identified as the copyright owner of the items:

DMCA Takedown Notice

== Copyright owner: Laura Slover
== Name: Kevin Michael Days
== Company: PARCC Inc.
== Job title: Associate Director, Operations
== Email address: kdays@parcconline.org

== Address: 1747 Pennsylvania Avenue, NW, 6th Floor
== City: Washington
== State/Province: District of Columbia
== Postal code: 20006
== Country: United States
== Phone (optional): 2027488077
== Fax (optional): n/a

Here is why I challenge the idea that Slover’s PARCC, Inc., is “the owner of all intellectual property contained in various PARCC assessments”:

PARCC, Inc., is not synonymous with the PARCC consortium. PARCC, Inc., is only the “project manager” for the consortium. Moreover, PARCC, Inc.’s position as project manager is not permanent; it is set to expire in 2017. So, how is it that the PARCC consortium would surrender ownership of its intellectual property to an entity with which it has a temporary relationship?

As project management partner for the PARCC consortium, PARCC, Inc., could surely handle PARCC test promotion and licensing, and it could even police social media on behalf of the PARCC consortium. (See more regarding PARCC, Inc., role in this Linkedin ad for a director of contracts management.) But there is a freedom that comes with ownership (“the” owner, at that)– an ability to exercise free rein over what is owned.

In a May 17, 2016, press release regarding Oyler’s post, Heather Reams, Director of Communications and Public Relations, at PARCC, Inc., alludes to copyrighted materials. However, Reams does not go so far as to tell the public that PARCC, Inc., owns the items:

Students are given an unfair test environment when anyone posts active test questions on the internet – whether the test is PARCC, the SAT, or any other exam. Because of this, states rely on Parcc Inc., a non-profit organization, to help ensure that every student who takes a test does so on an even playing field without any unfair advantages or disadvantages, and this requires that copyrighted materials be closely guarded.

Guarding copyrighted material is not the same as owning the material. Thus, Reams’ statement does not echo Slover’s statement to Oyler about PARCC, Inc., ownership of PARCC items.

Nor does this PARCC, Inc., Request for Proposal (RFP), in which PARCC, Inc., describes itself as follows:

PARCC, Inc. is a 501(c) 3 non-profit corporation established to support the PARCC consortium. Under an agreement with the State of Maryland, which acts as fiscal agent for the U.S. Department of Education grant to the PARCC consortium, PARCC, Inc. is authorized to conduct procurements and enter into contracts that will be funded under the grant….

No mention about being the owner of all PARCC assessment intellectual property.

If PARCC, Inc., is “the” owner of all intellectual property associated with PARCC assessments, then if and when the PARCC consortium terminates its relationship with PARCC, Inc., PARCC, Inc., gets to take the intellectual property that it owns with it when it goes.

But what about “temporary ownership”? (The “temporary ownership” idea is briefly discussed in this post by ed measurement specialist Michael Russell; however, Russell does not link to any document supporting the assertion.)

Expiration of ownership appears nonsensical on its face and reads like a lease. But I do not believe the PARCC consortium has leased its intellectual property to PARCC, Inc. Moreover, neither Slover nor PARCC, Inc., has made public any official document supporting the idea that PARCC, Inc. and not the PARCC consortium and the PARCC states actually are the owners of all intellectual property contained in the PARCC assessments. (Indeed, the PARCC, Inc., web site is an informationally-thin affair that sends the message, “Don’t take us seriously.”)

Time for some history on PARCC, its project manager, and more.

According to the cooperative agreement that PARCC entered into with the US Department of Education (USDOE) when USDOE awarded PARCC with Race to the Top (RTTT) assessment money in January 2011, the PARCC consortium needed to have a “project management plan.” So, as part of its 2012 MOU for PARCC states, the PARCC consortium decided it would procure a project management partner to oversee PARCC consortium management:

Proposed Project Management Partner:

Consistent with the requirements of ED’s (USDOE’s) notice, the PARCC Governing states are conducting a competitive procurement to select the consortium Project Management Partner. The PARCC Governing Board will direct and oversee the work of the organization selected to be the Project Management Partner. (page 8).

The PARCC MOU is also clear that it is the PARCC Governing Board that is responsible for decisions regarding intellectual property:

The Governing Board shall make decisions regarding major policy design, operational and organizational aspects of the Consortium’s work, including…

Policies and decisions regarding control and ownership of intellectual property developed or acquired by the Consortium… provided that such policies and decisions… will provide equivalent rights to all states participating in the Consortium, regardless of membership type (governing state or participating state).

Note that the MOU clearly has the intellectual property belonging to the consortium, not to the project management partner. Such is in keeping with this statement from the minutes of the September 22, 2015, Massachusetts Board of Ed meeting. Former PARCC governing board chair, Mitchell Chester, was present at this meeting; though he did not speak the following words recorded in the board minutes, he surely could have intervened to correct any error of fact regarding ownership of intellectual property (page 5):

[Deputy Commissioner] Wulfson said the consortium owns the intellectual property and PARCC, Inc is managing it on behalf of the member states.

Chester was involved in the above conversation, and he did not object to Wulfson’s statement about ownership of PARCC intellectual property.

Note also that PARCC, Inc., was not the PARCC consortium’s only project manager to date. Here’s that story:

PARCC’s first project management partner was the nonprofit, Achieve, Inc.  It just so happens that Achieve, Inc., was one of three organizations specifically named in the Common Core (CCSS) MOU to be inside on the development of CCSS. Furthermore, it just so happens that Laura Slover was one of the Achieve chosen who was an insider in the CCSS development.

Slover had been with Achieve, Inc., since 1998. In 2009 and 2010, she was Achieve, Inc.’s VP of Content and Policy (40 hrs./wk.; $153,000 in 2009 and $147,000 in 2010).

When Achieve, Inc., became the PARCC project management partner (see page 3 of Achieve’s 2011 990 tax form), Slover was listed as the VP of Content (40 hrs./wk.; $177,421). However, by 2012, her title became VP of PARCC (40 hrs./wk.; $176,536).

By 2013, there was a transition in process as Achieve, Inc., continued to be the PARCC consortium’s project management partner even as Slover was about to become the CEO of a new nonprofit, PARCC, Inc.

PARCC, Inc., only has a single 990 on file, for 2013. It is a mystery that it does not have a 2014 990 yet available. PARCC, Inc., was officially granted nonprofit status in June 2014; in November 2014, the organization filed a tax form for 2013.

(Note that even though the PARCC, Inc., website defines PARCC, Inc., as, “a nonprofit formed in 2013 by member states of the Partnership for Assessment of Readiness for College and Careers (PARCC),” PARCC, Inc.’s board of directors does not overlap with the PARCC consortium governing board.)

On that PARCC, Inc., 2013 990, Slover was noted as working 40 hrs./wk. for only $10,000. Meanwhile, she was still listed on Achieve’s 2013 990 as working 40 hrs./wk. as SVP (senior VP) of PARCC ($189,388). (In 2013, PARCC, Inc., had three board members, with Slover being the only one who was paid. That number is now four; not sure whether others are now being paid.)

In 2014, Slover continued to draw a major salary from Achieve, Inc.; her title became the more general “senior assoc mathematics” (40 hrs./wk.; $190,821). However, Slover disappeared from the Achieve, Inc., web site between November 2013 and December 2013. (She was still listed as SVP, PARCC, on November 27, 2013, and she disappeared by December 30, 2013. It appears that Slover the “senior assoc mathematics” never made it to the Achieve, Inc., web site.)

What salary she drew from PARCC, Inc., in 2014 remains a mystery because of that as-of-yet unfiled PARCC, Inc, 2014 990. (Aside: As for a couple of documented contributions to PARCC, Inc.: It received a $200,000 grant from the Sandler Foundation in 2013-14– see page 80— and a $500,000 grant from the Hewlett Foundation from July 2014 to July 2015.)

In September 2014, PARCC, Inc., entered into a four-year contract (2014-17) with PARCC states to serve as PARCC project management partner. (Here is Rhode Island’s 2014-17 contract with PARCC, Inc.)

Page 27 of Rhode Island’s contract with PARCC, Inc., specifies that the PARCC consortium owns the PARCC test items unless otherwise agreed to in writing:

Ownership of Deliverables. Unless the parties hereto agree otherwise in writing, all Deliverables created in connection with the Services provided by Contractor under this Agreement, including, but not limited to, any and all test-related content delivered under this Agreement, test items and other test content… and any and all Intellectual Property Rights therein… shall be owned and managed as directed by the PARCC Consortium Governing Board.

The same language is used in this Colorado Pearson Contract and this Illinois Pearson contract.

In May 2014, Gail Walsh of the State or Rhode Island Division of Purchases offered this Q & A document to clarify components of the Rhode Island contract with PARCC, Inc. Below is her clarification regarding PARCC, Inc.’s role and legal responsibilities concerning the consortium’s intellectual property (IP). Note that PARCC, Inc., is manager and not owner (see pages 5-6):

The PMSC (project manager) will be responsible for the management and policing of all IP. On behalf of the PARCC Consortium It will obtain and enforce confidentiality agreements. …

Given that control of any intellectual property (IP) will be held by the consortium of PARCC states, it is presumed that each participating state would be responsible for legal support relative to that shared control/ownership. To the extent that the PMSC engages in the licensing, sub-licensing, or other use of IP on behalf of the PARCC consortium as part of its assigned and contracted duties, any legal support relative to such tasks would be the responsibility of the PMSC. Any actions or litigation outside of these responsibilities would be the financial responsibility of the PARCC Consortium states.

Again, unless Slover can produce a document showing that the PARCC governing board has signed over to PARCC, Inc.,  its intellectual property rights to its test items, then her statement to Oyler (and to Twitter) about PARCC, Inc., being the intellectual property owner of PARCC items is unfounded.

As previously noted, I doubt that the PARCC consortium would fork over intellectual property to a project manager with a contract set to expire next year (2017). In a February 2016 Ed Week article, current (yet comically unacknowledged) PARCC chair, Hanna Skandera, discusses the possibility of dumping PARCC, Inc., as project management partner:

Hanna Skandera, the secretary of education in New Mexico, which belongs to PARCC, said in an interview that the input received at the forum will help the governing board decide whether to restructure or replace its current organization, Parcc Inc., since that nonprofit’s contract with its states runs out in June 2017.

The Ed Week article continues with info about this Request for Information (RFI), which is supposed to help Skandera and other PARCC states figure out whether they need to reinvent themselves. (In the RFI, PARCC notes that it is “seeking to create a new model….” In this Massachusetts DOE summation, Bellwether Partners is identified as advising PARCC on its attempted reinvention.)

The RFI also mentions PARCC’s intent to act as an item vendor by giving states “options” other than using the entire PARCC test vended by Pearson. Included is a note about who will own items (with the entity that wins the future contract referred to as the “structure”):

3.2 Ownership of Products and Services The structure will serve as a neutral third party to securely hold all items previously developed by the PARCC consortium states under the Race to the Top Assessment grant, as well as items thereafter contributed to the structure’s item bank by states working individually or in collaboration. Additionally, the structure will own all summative content in the item bank to maintain continuity and stability of the content. However, each state can legally claim to own the copyright and be content co-owner of items it individually contributes to the item bank (i.e., items contributed by states would be co-owned by the structure and the individual state that developed the item).

Of course, this “co-ownership” of items could prove to be a sticky business as states grapple with the issue of not being sole owner of the items that state might develop for PARCC. (I examined the issue of who actually wrote the initial PARCC items in this December 2014 post.) But that is a topic for another day.

Today, PARCC, Inc., CEO Laura Slover needs to

• Produce the document supporting her declaration that PARCC, Inc., is the owner of all intellectual property contained in PARCC assessments;
• Make such a document readily available to the public;
• Along with the PARCC governing board, reconcile the terms of such a document (if it exists) with the contents of the documents included in this post, and
• Produce PARCC, Inc.’s missing 2014 990 tax form and explain why it has yet to be publicly available by May 2016.

That’ll do for now.

My thanks to Jennifer Berkshire (“Edushyster”) for her assistance with this post.

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Coming June 24, 2016, from TC Press:

School Choice: The End of Public Education? 

  (Click image to enlarge)

Stay tuned.

 

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Schneider is a southern Louisiana native, career teacher, trained researcher, and author of the ed reform whistle blower, A Chronicle of Echoes: Who’s Who In the Implosion of American Public Education.

She also has a second book, Common Core Dilemma: Who Owns Our Schools?.

Don’t care to buy from Amazon? Purchase my books from Powell’s City of Books instead.