Law, Technology and Assessment (14 February 2013)

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1. Introduction
2. How do I deal with personal information as part of the assessment process?
3. What if I want to use other people's materials as part of the assessment?
4. What happens if the technology doesn't work or goes wrong?
5. What happens if a student 'hacks' or cheats in a technology-based assessment?
6. What should I do if I have a student with a disability who has difficulty taking the assessment?
7. What if the student objects to taking the technology-based assessment?
8. Conclusion
9. Want to Know More?

1.     Introduction

What’s in this guidance?

This guidance is intended for staff in colleges and universities involved in assessment, and considers the legal issues which may arise in relation to the use of e-assessment in UK further and higher education.

2.     How do I deal with personal information as part of the assessment process?

The Data Protection Act 1998 (DPA) gives individuals control over the collection and use of their personal data.  Collecting information about an individual’s competences and performance is very likely to be personal information.  Colleges and universities are therefore under an obligation to ensure that the processing of assessment data is done in compliance with the DPA.  This means making sure learners are aware of the collection of information about them, the processing of that information and ensuring that the information is kept securely and is only released in accordance with the DPA.

Scenario

A module specification states that 10% of the grade is to be given for ‘engagement and participation.’  Without making it clear to students, the lecturer decides to use the usage information collected in the virtual learning environment (VLE) to assess this grade.  This use of personal data is likely to be contrary to the DPA, as there is no notification of the collection of data or how it is going to be used.

There are likely to be very few circumstances where the release of a student’s grade to other students (or indeed, to the world at large) is justifiable under the DPA.  For this to happen, the student would need to give his or her consent, or there would need to be a strong argument that the release was necessary for the purposes of learning and assessment.  When a student asks if he can get his friend’s grade the lecturer should decline to provide this information unless certain that the friend has given permission in some way.

Scenario

A lecturer wishes to use a copy of a student’s assessment from a previous year to use as a learning resource in the following academic year.  In terms of data protection, the lecturer should consider anonymising the work.  The student’s permission will usually still be required in order to respect intellectual property rights.

 

Scenario

Where students undertake peer review and assessment of each other’s work, this will clearly involve some students being aware of other students’ grades.  This is likely to be permissible if it is necessary to achieve the assessment objectives, provided that the way in which the information is used is fair.  Announcing student grades to the entire class might be unjustified when group peer assessment has been conducted.

Common questions relate to the release of a student’s grades to parents and to an employer or other sponsor.  Where a parent asks for details of a student’s performance, this should not be released unless the student has given prior permission.  There is no legal right for a parent to access information about a student’s performance, except where the institution is a school under local authority control.  Likewise, even where an employer or other sponsor is paying a student’s fees, grades can only be released when the student has consented to this.  An alternative is to give the student the grades in a form that he or she can pass on to the employer or sponsor, which avoids the institution having to seek and record the student’s consent.  Further information regarding release of information to parents is available in Jisc Legal’s FAQ.

Under the Freedom of Information Act 2000 (FOIA) at s.1(1) any person making a request for information held by a public authority is entitled to have it provided to him.  Most colleges and universities are public authorities under the FOIA and student coursework held by a university or college would be ‘information held’ which must be disclosed when requested unless an exemption to disclosure applies.  It is likely that where coursework is requested, the institution needs to consider whether the FOIA s.40 exemption for personal data applies.  Further information is available in Jisc Legal’s FAQ.

3.     What if I want to use other people’s materials as part of the assessment?

In order to ensure legal compliance, quality and confidence in the assessment process, other people’s materials should be used with due respect for intellectual property rights.  Some assistance comes from s.32(3) of the Copyright, Designs and Patents Act 1988 (CDPA), which states that copyright is not infringed by anything done for the purpose of setting or answering questions in an examination.  The term ‘examination’ is not defined in the CDPA, nor have the limits been defined in court.  However, it is commonly interpreted, within FE and HE establishments, to mean all formal (summative) assessment. 

Care should be taken where a lecturer wishes to make exam papers or other assessment instruments available online afterwards as a learning resource.  The s.32(3) exception does not apply to this which means that the copyright materials will need to be removed or licensed.

A notable exception from s.32(3) is that it does not cover the reprographic copying of a musical score for performance by a student as part of an assessment.  A licence or permission from the rightsholder would be required for this activity.

Overall, s.32(3) is a powerful tool for the inclusion of other people’s text, images, videos, recordings and other works as part of summative assessment.  Further information on the examination exception is available in Jisc Legal’s FAQ.

4.     What happens if the technology doesn’t work or goes wrong?

As well as damage to reputation and confidence in the institution, there may be liability in negligence (part of the law of tort in England, Wales and Northern Ireland, and delict in Scotland) where technology fails or goes wrong.  The law imposes on colleges and universities a duty of care where a lapse would be likely to cause damage or loss.  Where an assessment is poorly planned, managed or delivered, the institution may be subject to a claim from students affected.  It should be noted that the standard of care required is that of a reasonable person in the same circumstances.  Where an assessment goes wrong, as long as reasonable precautions have been taken to prevent disruption, the institutions will not be liable in negligence. 

Typical precautions which should be considered in the case of technology-mediated assessment might include checking to make sure there are no infrastructure problems (a planned power or network outage, for example), that the technology to be used has been tested appropriately and that sufficient technical assistance is on-hand.  It may be appropriate to have a back-up plan in the event a problem arises.

5.     What happens if a student ‘hacks’ or cheats in a technology-based assessment?

Where a student attempts to hack into a technology-based assessment they are almost certain to be in breach of the institution’s acceptable use of IT policy, and its student disciplinary code.  In addition to this, the student may have committed an offence under the Computer Misuse Act 1990, which prohibits unauthorised access to a computer system.

6.     What should I do if I have a student with a disability who has difficulty taking the assessment?

By virtue of the Equality Act 2010, colleges and universities are under a duty to consider the needs of users with disabilities in their educational provision.  This includes the delivery of assessments.  There are two parts to this duty:

  • The duty not to discriminate in the provision of educational services (s.91)
  • The duty to make reasonable adjustments for disabled people (s.20)

Accessibility should be taken into account during the design of an assessment.  It is necessary to consider whether any parts of the assessment are likely to cause issues and whether the technology to be used allows for reasonable adjustments.

Scenario

A tutor adopts a new technology to deliver an online assessment.  The technology allows no facility for changing the appearance of text displayed.  A visually impaired student needs this functionality to access the assessment. The tutor must be able to provide an equivalent alternative assessment appropriate for students with a disability.  This does not necessarily need to be an on-line alternative, the requirement is for the adjustment to be reasonable.


Competence standards:
with regard to the level of attainment used to determine whether a student has reached a particular level of ability or competency, there is no duty to make reasonable adjustments to the competence standard itself, as it is excepted from the s20(3) duty by virtue of Schedule 13 (4) (2) of the Equality Act 2010.  There is however a duty to make reasonable adjustments to the process of how the competence standard is assessed. Institutions should first consider carefully what is actually being assessed, and then make any reasonable adjustments that do not compromise the relevant competence standard being sought.

Any assessment process should take place in a way which does not put students with disabilities at substantial disadvantage.  For example, providing different assessment methods allows a disabled student to choose the method best suited to their disability.  The institution must provide assessments where students have the opportunity to demonstrate their competence in that particular subject.  This might include offering flexibility with the time provided to complete assessments, permitting an exam to be completed at another more appropriate location or changing the format of submissions.

Jisc TechDis, a fellow Jisc advisory service, has information on ways in which assessments can be adjusted to provide for students with disabilities.

Further guidance on assessments and competence standards is available in the EHRC Technical Guidance on Further and Higher Education at paras 7.33 – 7.38

Scenario

It may be decided in appropriate cases to allow a student with a disability extra time where this compensates for a longer time needed to tackle the assessment task.  However, where an electronic manikin is used to assess student response in dealing with a heart attack, it will not be appropriate to grant more time where the speed of response is a necessary part of the assessment criteria – speed is part of the competence standard being measured.

Further information on disability and the law is available on the Equality and Disability area of the Jisc Legal website: http://jiscleg.al/disability

7.     What if the student objects to taking the technology-based assessment?

In legal terms, there is no right to object to any particular form or medium of assessment.  A student might argue that an institution is bound contractually to deliver the course as described at the time of enrolment, including specification of the forms of assessment to be used.  However, institutions are likely to include a notice that the right to alter details of the course is reserved, and in any case, a statement of the forms of assessment to be used is unlikely to be held to be a contractual undertaking.

Students do have a right, by virtue of s.12 of the DPA, to give notice in writing to prevent automated decision-taking, based on their personal data.  Although this would not prevent automated assessment delivery, it would prevent any automated calculation of grade, and progression decisions – these would have to be processed manually.

8.     Conclusion

ICT may be a beneficial tool for assessment, and procedures and practices should be in place in your institution to ensure that the legal issues do not become a barrier to the adoption and use of appropriate technologies. This guidance provides a broad outline of some of the issues involved in the use of ICT in assessment, and the steps you can take to minimise risk and uncertainty.

9.     Want to Know More?

Further information on relevant areas of law in relation to technology use in UK further and higher education can be found on the Jisc Legal website at http://www.jisclegal.ac.uk/

The Equality Challenge Unit:   guidance, projects and resources aimed specifically at staff and students in UK higher education, and in further education in Scotland. http://www.ecu.ac.uk/

JISC Techdis: for information and assistance on provision and use of accessible ICT. http://www.jisctechdis.ac.uk/

EHRC: Technical Guidance on Further and Higher Education at  http://www.equalityhumanrights.com/uploaded_files/EqualityAct/technical_guidance_on_further_and_higher_education.pdf

Posted on 14/02/2013