The stakes for certification and licensure are very high. Because passing decisions made on such examinations are so consequential, it is not surprising that the controversies have entered the legal arena.
Standard Setting Report
If there is ever a challenge for your examination program, they typically come from candidates who feel that their score should have been passing. The first place that one would look to examine the merits of such a claim would be the documentation of a standard setting process. Think of it this way, if you didn’t document it, you might as well not have even done it. Throughout your standard setting study, create a report with all recorded details of the experience. Include a roster of your participants, as well as their qualifications. Explain the setting of the environment, include the training procedures that were delivered, record the raw data that were provided by the participants, and most importantly, the results of the analysis. This could be the most important document you ever create.
Relevant Legal Challenges
Over the years, there have been legal challenges to the educational, training and character standards established as requirements for the issuance of credentials.
Many court cases have dealt with passing standards over the years. Various legal theories have been employed in such challenges and a review of courts’ analyses of them provide legal standards for those involved in standard setting.
Of particular importance has been the impact of the 14th amendment on state-based exams. Provisions of this amendment ensure equal protection amongst citizens and that individuals must be treated fairly from a substantive and procedural perspective. An appropriate court case from 1957 to cite is Schware v. Board of Bar Examiners of State of New Mexico. This case articulated that states cannot exclude a person from the practice of law, but can require high standards of qualification. This standard must have a connection with an applicant’s capacity to practice.
This case precluded a state from applying licensure requirements which “invidiously discriminate” against protected groups.