Defensibility and Legal Certainty for Tests and Exams
Posted by John Kleeman
We are all familiar with the concept of a chain of custody for evidence in a criminal case. If the prosecution seeks to provide evidence to a court of an object found at a crime scene, they will carefully document its provenance and what has happened to it over time, to show that the object offered as evidence at court is the object recovered from the crime scene.
There is a useful analogy between this concept and defensibility and legal certainty in tests and exams. Assessments have a “purpose” or a “goal”, for example, the need to check a person’s competence before allowing them to perform a job task. It is important that an assessment programme defines its purpose clearly, ensures that this purpose is then enshrined in the design of the test or exam, and checks that the assessment and delivery is consistent with the defined purpose. Essentially, there should be a chain from the purpose to design to delivery to decision, which makes the end decision defensible. If you follow that chain, your assessments may be defensible and legally certain; if that chain has breaks or gaps, then your assessments are likely to become less certain and more legally vulnerable.
Defensibility of assessments
Defensibility, in the context of assessments, concerns the ability of a testing organisation to withstand legal challenges. These legal challenges may come from individuals or groups who claim that the organisation itself, the processes followed (e.g., administration, scoring, setting pass scores, etc.), or the outcomes of the testing (e.g., a person is certified or not) are not legally valid. Essentially, defensibility has to do with the question: “Are the assessment results, and more generally the testing program, defensible in a court of law?”.
Ensuring that assessments are defensible means ensuring that assessments are valid, reliable and fair and that you have evidence and documentation available to demonstrate the above, in case of a challenge.
Legal certainty for assessments
Legal certainty (“Rechtssicherheit” in German) means that the law (or other rules) must be certain, in that the law is clear and precise, and its legal implications foreseeable. If there is legal certainty, people should understand how to conduct themselves in accordance with the law. This contrasts with legal indeterminacy, where the law is unclear and may require a court’s ruling to determine what it means
- Lack of legal certainty can provide grounds to challenge assessment results. For instance many organisations have rules for how they administer assessments or make decisions based on the results of assessments. A test-taker might claim that the organisation has not followed its own rules or that the rules are ambiguous.
- Some public bodies are constrained by law in which case they can only deliver assessments in a way that laws and regulations permit, and if they veer from this, they can be challenged under legal certainty.
- Legal certainty issues can also arise if the exam process goes awry. For example, someone might claim that their answers have been swapped with those of another test-taker or that the exam was unfair because the user interface was confusing, e.g. they unintentionally pressed to submit their answers and finish the exam before actually intending to do so.
The best practice guide describes the principles and key steps to make assessments that are defensible and that provide legal certainty, and which are less likely to be successfully challenged in courts. The guide focuses primarily on assessments used in the workplace and in certification. It focuses particularly on legal cases and issues in Europe but will also be relevant in other regions.
You can download the guide HERE – it is free with registration.