Until it botched last year's math basic-skills test, Eden Prairie-based NCS was just another big company operating under most people's radar screens.

But all that changed last July when the state announced that the testing company had told 8,000 Minnesota students that they'd failed the math section of the test when they had actually passed it.

A year after the scoring errors were announced, a groundbreaking class-action lawsuit is working its way through the courts and the federal government is poised to dramatically expand K-12 testing. Meanwhile, NCS, which changed its name to NCS Pearson after being acquired by a larger company, is trying to put its biggest blunder behind and position itself to reap the seeds of educational accountability being sown in Washington. Sixty-one families have received checks from the testing giant for expenses incurred because of the mistake and 12 seniors have been granted college tuition vouchers.

While news of the errors brought some relief to most students and their families, it also angered a number of them.

Frankie and Greg Kurvers of Burnsville sued NCS on behalf of themselves and their daughter, Danielle, one week after Education Commissioner Christine Jax and NCS President David Smith announced the errors.

In addition to the $3,000 they spent having Danielle tutored, the Kurvers sought damages for the emotional pain their family endured because of the company's mistake.

Within a few days three more suits -- all seeking damages for emotional distress -- were filed against the company. In May, all four suits were consolidated and certified as a class action -- making all 8,000 students and their families eligible for any potential judgment.

Because it is the first test-scoring case to make such claims, Kurvers, et al. vs. National Computer Systems Inc. may set a national precedent for how future cases will be handled. And no one believes that the $500 million-a-year industry can be flawless -- not even officials at NCS Pearson, which does about half that business.

With more than 100 million tests administered annually, the odds are that some mistakes will be made, they concede.

"I think the industry should strive for perfection," Smith said. "At the same time, I know it's probably not possible because we're human."

That's not good enough for Greg Kurvers, an auto-parts salesman who watched his nauseated daughter huddle over a toilet bowl the night before retaking the math test last summer. It was a test she didn't need to take.

"She was afraid she wasn't going to graduate from high school. This thing had become a huge thing," Greg Kurvers said. "If you're requiring the kids to pass the test to graduate from high school, I would expect perfection."

NCS Pearson's position is that it has tried to do the right thing by offering to reimburse families' out-of-pocket expenses -- including tutoring, mileage, lost wages and educational materials.

But initially, the company did not offer such a wide range of acceptable claims. NCS Pearson began by offering $1,000 tuition vouchers to seniors whose graduations were affected. In fact, the Kurvers said they filed their suit after an NCS employee told them the company would not reimburse them for Danielle's tutoring expenses.

While NCS Pearson won't say how much it has spent trying to make things right, a spokesman said the company has reimbursed the expenses of 61 families and issued 12 tuition vouchers for seniors who went on to college or technical school. There were 48 seniors who didn't get to participate in their high schools' graduation ceremonies solely because of the scoring errors; 16 of them participated in a special NCS Pearson-funded graduation ceremony hosted by Gov. Jesse Ventura in October.

An important case

As the case progresses, attorneys for each side are exchanging records and conducting interviews.

One of the few things on which they agree is the importance of the case.

"The question in this case arises at a time when, increasingly, politicians and educators are using testing as a high-stakes measure of educational achievement," NCS Pearson's attorneys stated in one brief.

"Whether testing companies that administer such state-sponsored tests (and, for that matter, states or schools themselves) can be subject to class-action lawsuits when they make mistakes is a matter of wide-ranging importance," the brief continued.

At the time errors were discovered, Smith was very critical of the system breakdowns that contributed to and failed to catch them. An internal memo he sent to other NCS managers a week before the error was announced reads as if it were written by one of the plaintiffs' attorneys:

"In the testing industry not being able to get the scoring keys correct and the test items appropriately placed on a page is properly labeled 'incompetence.' This is not a single event, but multiple connected events. I do not believe anything resembling quality control was in place. Do we not have any pride in our work?"

But a year later, he's ready to move on.

"We're human; we made a mistake," Smith said last week. "We did everything that we could think of to minimize the mistake after it happened."

But Shawn Raiter, one of the plaintiffs' attorneys, said that the company's desire to make money led it to take on more work than it could reasonably handle.

"It looks like corporate greed," he said. "They were taking on as many projects as they could, without regard to how their quality control was going to be affected."

And what's worse, he said, is that because there is such a small field of companies dominating the business, NCS hasn't been held accountable for its business practices.

Minnesota extended NCS Pearson's contract a few weeks after the scoring errors were announced. At the time, state officials said switching to another testing company would have required forgoing a year of testing.

Jessie Montano, assistant commissioner of the Minnesota Department of Children, Families and Learning, said both NCS Pearson and the department have added many safeguards to prevent future errors. She also said the department will bid out the contract this year for the 2002-2003 school year.

Smith, NCS' president, said the company takes its responsibilities very seriously and that its track record shows that it gets it done right more than 99.999 percent of the time.

Painful reminders

After months of having the Minnesota errors mentioned in newspaper stories from coast to coast, Smith is tired of talking about them.

"It's a little frustrating now," he said. "There's a point at which you just want them to stop beating you."

NCS Pearson is being defended by the Chubb Insurance Group under an insurance policy with $52 million in coverage, according to court records.

As the suit progresses toward a trial scheduled for next June, plaintiffs' attorneys are accusing NCS Pearson of preparing to wage a smear campaign against their clients. A handful of internal NCS Pearson memos produced as part of the court proceedings suggest that some company officials were considering playing hardball.

In their efforts to show that the scoring errors caused "minimum impact or harm," to the students, NCS staff members and consultants began kicking around various strategies. One internal company memo sent to Smith last August suggested that with regard to seniors denied graduation solely because of the wrong math score:

"We need to profile these 50 kids regarding such things as their course grades, courses taken, attendance (both excused and unexcused), discipline problems, drug problems, trouble with the law, etc."

The memo went on to say that "in Texas, the testimony of these students reading such things as solid D grades into the court record painted a picture that these students did not deserve to pass regardless of their test scores. They really built the case that those students were not academic."

Keith Dotseth, one of the plaintiffs' attorneys, said such memos offer a glimpse behind NCS Pearson's veil.

"It's clear that once they realized that they had potential liability that their concerns were less with the benefit of the students and more with how to protect the bottom line," he said.

But NCS Pearson attorney Lindsay Arthur said such internal discussions occurred during confusing and stressful times and have had no bearing on the company's strategy.

"We've not attempted to belittle anybody," he said. "We've attempted to find people that have been damaged" and pay them.

"NCS's position on this case is that the vast majority of people really have not sustained any kind of measurable damage," Arthur said. "If that position is ultimately vindicated -- proven correct -- that would be important for NCS and other testing companies."

That's life

The suit, he said, should give people pause.

"Overall, people have to ask the question, 'Is every time there is some type of an isolated setback or disappointment in somebody's life that's caused by an act of a neighbor, a friend, a company, is that something that ought to be litigated in court?"

Such adversity, he added, is part of life.

As the trial progresses, the mud may fly in both directions. Harvey Clarizio, a psychologist retained by NCS Pearson, interviewed the student plaintiffs and determined that in most cases the test scores weren't the only major stressors in their lives. One had a history of depression, one was pregnant, single and living on her own for the first time and a third was a single, unmarried mother dealing with post-partum depression, according to Clarizio.

While Smith acknowledges he wants his company to make money, he said he's not willing to do it at the expense of its reputation.

If he had his druthers, accountability systems would not have promotion, retention and graduation decisions ride on a single test.

"We shouldn't be relying on teacher grades alone and we shouldn't be relying on test scores alone. Both are part of the equation," Smith said.

"The industry has an obligation, and I believe the obligation is to try to be perfect. Recognizing that it can't be perfect, we need some safety checks," Smith said.

But the answer, he added, isn't to stop testing.

"I still want to know how my kids are doing in school."

For Raiter, one of the plaintiffs' attorneys, it's a cut-and-dried issue.

"The problem with high-stakes testing," he said, "is that one error is too many."

Spokesman Review

-- Anonymous, July 29, 2001