Sue Ellen McGuier Deposition - Delk v. Ohio County (WV) Board of Education

IN THE CIRCUIT COURT OF OHIO COUNTY
WEST VIRGINIA
DAVID L. DELK,
Plaintiff,
vs.
CIVIL ACTION NO.

15-C-196
OHIO COUNTY BOARD OF

EDUCATION, a Political
Subdivision,
Defendants.
- - DEPOSITION of SUE ELLEN McGUIER
Monday, September 14, 2015
- - The deposition of SUE ELLEN McGUIER, called
for examination by the Plaintiff, taken pursuant to
Notice and the West Virginia Rules of Civil Procedure
pertaining to the taking of depositions, before me,
the undersigned, Victoria J. Bostic, Registered
Professional Reporter-Notary Public, in and for the
State of West Virginia, held at the offices of Grove
& Delk, 44 1/2 Fifteenth Street, Wheeling, West
Virginia 26003 at approximately 10:00 a.m. on the day
and above set forth.
- - -
APPEARANCES:
On Behalf of the Plaintiff:
David L. Delk, Jr., Esquire

GROVE & DELK, PLLC
44 1/2 Fifteenth Street
Wheeling, West Virginia 26003
4
5
On Behalf of the Defendant:

6
Patrick S. Casey, Esquire
CASEY & CHAPMAN, P.L.L.C.
1140 Chapline Street
7
8
9
Also present:
Dianna Vargo
10
- - -
11
I-N-D-E-X
12
WITNESS
EXAMINED BY
SUE ELLEN McGUIER
Mr. Delk
PAGE
13
3
14
E-X-H-I-B-I-T-S
15
Deposition Exhibit No.:
16
1.
17
Plaintiff's Notice of Rule 30(b)(7)

Deposition of Defendant
5
8
18
2.
4-7-15 letter from Mr. Delk to Dr. Vargo
19
3.
Individual Student Report, test scores
21
20
4.
5-1-15 letter from Mr. Casey to Mr. Delk
50
21
5.
Excerpt - Online Test Administration Manual
59
22
23
24
- - -
P R O C E E D I N G S
(10:00 a.m.)
- - -
SUE ELLEN McGUIER
a witness herein, called for examination by the
plaintiff, having been first duly sworn, as
hereinafter certified, was deposed and said as
follows:
EXAMINATION
10
BY MR. DELK:
11
Q.
12
record, please.
13
A.
Sue Ellen McGuier.
14
Q.
Where do you reside?
15
A.
I reside at 108 Fernwood Avenue, in Wheeling,
16
West Virginia.
17
Q.
And who is your employer?
18
A.
Ohio County Schools.
19
Q.
How long have you been with Ohio County
20
Schools?
21
A.
Since 1986.
22
Q.
What's your current position with Ohio County
23
Schools?
24
A.
Would you state your full name for the
I'm am the director of assessment and federal
programs.
Q.
How long have you been in that position?
A.
This is my eighth year in that position.
Q.
When you started with Ohio County Schools, in
1986, what did you start out as?
A.
Street then-junior high.
Q.
teacher?
I started as an English teacher at Bridge
How long were you at Bridge Street as a
10
A.
Five years.
11
Q.
Until 1993; does that sound right?
12
A.
Uh-huh.
13
Q.
What was your next position?
14
A.
English teacher at Wheeling Park High School.
15
Q.
How long were you at Wheeling Park?
16
A.
Until I came to the board office eight years
17
ago.
18
Q.
Teacher at Wheeling Park the whole time?
19
A.
Yes.
20
Q.
Describe for me what your role is as the
21
director of assessment and federal programs for Ohio
22
County Schools?
23
A.
24
Ohio County Schools follows the West Virginia
My responsibilities include making sure that
management of academic performance plan.
Q.
That's it?
A.
Related to assessment.
responsibilities with federal programs.
Q.
to federal programs?
A.
as they relate to schoolwide improvement efforts and
to improving teacher learning and teacher quality for
10
In addition, I have
What responsibilities do you have with regard
Overseeing the Title I and Title II programs
Title II.
11
(Whereupon, Deposition Exhibit No. 1
12
marked for purposes of identification.)
13
BY MR. DELK:
14
Q.
15
which is plaintiff's Notice of Rule 30(b)(7)
16
Deposition of Defendant.
17
Hand you what's been marked as Exhibit 1,
Have you seen this document?
18
A.
Yes, I have.
19
Q.
And are you the designee of Ohio County
20
Schools today for the topics that are listed on this
21
notice of deposition?
22
A.
Yes, I am.
23
Q.
And you're prepared to address all 13 of
24
those topics?
A.
knowledge.
Q.
deposition?
A.
some of my documentation.
Q.
What documents did you review?
A.
Policy 2340 from the West Virginia Department
of Education.
Yes, I am, to the best of my abilities and my
Okay.
What did you do to prepare for this
Met with Mr. Casey and essentially reviewed
10
Q.
Do you have that with you now?
11
A.
I do.
12
Q.
May I see that?
13
A.
Uh-huh.
14
15
16
MR. CASEY:
marked?
A.
Wait a second.
Is that
Are these your notations?
Those are my notations.
17
MR. CASEY:
18
you need to see hers, or do you --
19
MR. DELK:
20
make sure we're on the same page.
21
BY MR. DELK:
22
Q.
23
highlighted?
24
A.
Do you have a copy, or do
Yeah, I want to see, just
These highlighted portions are stuff that you
Yes.
Q.
deposition?
A.
because they are points of emphasis when I did
training.
Q.
training purposes?
A.
Yeah.
Q.
I understand.
10
Highlighted in preparation for the
To some degree.
Some highlighting is there
This was your copy that you also used for
I think I asked you this, but you reviewed
11
this in preparation for the deposition?
12
A.
Yes.
13
Q.
Any other documents that you reviewed?
14
A.
The other document that I brought was the
15
current document, the parents' guide and so forth
16
that were presented to parents in the schools.
17
18
MR. CASEY:
His question was:
What else
did you review, and you told him what you brought.
19
Does that answer the question?
20
that addressed the question.
21
BY MR. DELK:
22
Q.
23
deposition?
24
A.
Don't know if
Did you review that in preparation for the
Yes, sir.
Q.
Can I see that document?
A.
(Witness complies.)
Q.
I think I've seen it before, but --
A.
Thank you.
Q.
Did you review any other documents in
preparation for the deposition?
A.
I did not.
Q.
Other than Mr. Casey, did you meet or have
any communications with anyone to prepare for the
10
deposition?
11
A.
I did not.
12
Q.
When you met with Mr. Casey, was there anyone
13
there other than attorneys?
14
A.
Dr. Vargo was present.
15
Q.
Okay.
16
17
18
BY MR. DELK:
19
Q.
20
Information Act request that I sent to Ohio County
21
Schools.
22
Handed you the April 7, 2015 Freedom of
Have you see that before?
23
A.
I did see it in Dr. Vargo's office.
24
Q.
When?
At the time -- around --
A.
At the time we received it.
Q.
Did you review that document in preparation
for the deposition?
A.
Yes.
Q.
Okay.
for the deposition?
A.
this in preparation for the deposition.
Q.
When did you review it in preparation
Oh, I did not.
Okay.
I'm sorry.
Did not review
Going back to the notice of
10
deposition, the first topic, I asked for, "The
11
position of the Ohio County Board of Education/Ohio
12
County Schools as to whether the West Virginia
13
General Summative Assessment administered to third
14
graders constitutes a licensing examination,
15
examination for employment or academic examination
16
pursuant to Section 29B-1-4(a)(3)," and I have some
17
questions about that.
18
Now, you're aware, in the FOIA request I
19
made, I requested a copy of the assessment tests
20
given to third graders in Ohio County Schools?
21
You're you aware of that, correct?
22
A.
Yes, I am aware of that.
23
Q.
And are you aware that the response of Ohio
24
County Schools to this litigation was that the
10
assessment was subject to an exemption under the West
Virginia Freedom of Information Act?
Were you aware that?
A.
Yes.
Q.
And my question to you is:
of Ohio County Schools that the assessment is a
licensing examination?
A.
please.
Is the position
I would ask you to clarify your question,
10
Q.
11
understand?
12
A.
In regards to the licensing examination.
13
Q.
Okay.
14
you not understand?
15
A.
16
license for the examination?
17
Q.
No.
18
A.
Okay.
19
Q.
One of the exemptions under the Freedom of
20
Information Act is that a public body does not have
21
to produce a licensing examination.
22
What part of my question did you not
What about licensing examination do
Is your question that Ohio County holds the
That helps me.
And is it the position of Ohio County Schools
23
that the assessment provided to its students
24
constitutes a licensing examination?
11
A.
unclear of what you're asking here.
MR. CASEY:
Then I would say yes.
I -- I'm really very
Let me object to the extent
that this may call for legal conclusions as the
terms may be defined.
6
7
It's not Ohio County School's position it's a

license examination.
MR. DELK:
MR. CASEY:
10
MR. DELK:
11
Okay.
Is an academic examination.
That's what I thought.
just wanted to nail it down.
12
THE WITNESS:
13
MR. DELK:
Okay.
I don't have to ask her any
14
more questions if that's what it is.
15
THE WITNESS:
16
MR. CASEY:
17
THE WITNESS:
Okay.
Okay.
Thank you.
18
BY MR. DELK:
19
Q.
20
examination, what is the position of Ohio County
21
Schools as to what constitutes an academic
22
examination?
23
24
With respect, Ms. McGuier, to academic
MR. CASEY:
I'm going to object only to
the extent it may call for a legal conclusion,
12
assuming interpretation of statute.
But you can answer as a witness.
A.
refer to West Virginia Department of Ed Policy 2340,
where they clearly defined those measures, provided
through the West Virginia Department of Education,
that each county in the state would then implement.
BY MR. DELK:
Q.
10
to?
11
A.
12
Summative Assessment, NAEP, ACT PLAN and EXPLORE.
13
Q.
What page are you referring to?
14
A.
Actually, just kind of --
15
Q.
Okay.
16
A.
West Virginia Summative Assessment is defined
17
on page 7, 3.61, 3.60.
18
Department of Ed Alternative Summative Assessment;
19
and then there are references in the document to ACT
20
COMPASS, ACT EXPLORE, ACT PLAN and NAEP.
21
Q.
22
aren't part of Summative Assessment, correct?
23
A.
They are not.
24
Q.
I'm talking about the -- my question was:
An academic examination -- and I'm going to
What portion of Title 126 are you referring
They spell out the West Virginia General
I had forgotten West Virginia
And ACT COMPASS, ACT EXPLORE, ACT NAEP, those
13
What is the position of Ohio County Schools as to
what an academic examination is?
A.
the West Virginia Department of Education.
Q.
examination defined?
A.
under 3.61 where it says, "WVDE General Summative
Assessment.
And we would follow the guidance provided by
Where in this Title 126 is an academic
I would have to refer you, again, to page 7
A customized test consisting of selected
10
criterion-referenced response items used to measure a
11
student's level of achievement of the West Virginia
12
CSOs in mathematics, English Language Arts, social
13
studies and science in grades 3-11."
14
Q.
I'm sorry.
15
A.
Uh-huh.
16
Q.
On page 8 on mine.
17
A.
Okay.
18
19
Did you say "3.61"?
On page 7, near the bottom.
MR. CASEY:
When you're answering, use
yes or no, as opposed to --
20
THE WITNESS:
21
MR. CASEY:
22
THE WITNESS:
23
MR. CASEY:
24
That's okay.
I'm sorry.
That's okay.
Okay.
Thank you.
That's all right.
14
BY MR. DELK:
Q.
is not used, correct?
A.
It is not, sir.
Q.
Is the position of Ohio County Schools that
the -- only the West Virginia General Summative
Assessment is an academic examination?
And in 3.61, the term "academic examination"
MR. CASEY:
I object to the form.
You can go ahead and answer.
10
A.
11
BY MR. DELK:
12
Q.
13
examination, then?
14
A.
It would be the use of the other assessments.
15
Q.
The assessments listed in Title 126?
16
A.
Yes.
17
cannot clearly provide an answer to that question
18
without reference to policies, and we may or may not
19
be using the term "academic assessment," sir.
20
Q.
21
assessment."
22
A.
Oh, okay.
23
Q.
Well, I've used the term "academic
24
examination," because that's what the statute --
No.
All right.
What else is an exempt academic
In addition to -- I'm afraid that I
I haven't used the term "academic
15
A.
Okay.
Q.
So when you say "we may not be using the term
academic assessment" or "academic examination," what
are you talking about?
A.
balance of assessment data"; in that we would use
multiple measures to determine what is it that a
child knows and is able to do.
formative, some are summative, some are interim, some
We use the term, in Ohio County Schools, "a
So some are
10
are benchmark assessments.
11
Q.
12
allows me to collect public records, but it doesn't
13
allow me to collect an academic examination?
14
A.
Uh-huh.
15
Q.
I want to know what the definition of an
16
academic examination is in Ohio County Schools such
17
that I'm not permitted to, under the theory of Ohio
18
County Schools, to get this test?
19
A.
20
examination.
21
Q.
22
mean it is.
23
A.
24
test may not be shared.
Well, my question is:
You know, the statute
Then we would call this an academic
Why?
Just because you call it that, doesn't

Why?
As defined by Policy 2340, content of secured
16
MR. CASEY:
just simply:
examination?
I think his question was
Why are you calling it an academic
BY MR. DELK:
Q.
We're going to get the security.
A.
Okay.
Q.
Trust me.
A.
Okay.
Q.
We're going to get there.
10
A.
Okay.
11
Okay.
MR. CASEY:
He just wants to know why
12
you consider this an academic examination -- why
13
Ohio County Schools considers it an academic
14
examination.
15
BY MR. DELK:
16
Q.
That's his question.
All right?
That's my question.
17
MR. CASEY:
That's right.
18
A.
19
Virginia measures of academic progress.
20
BY MR. DELK:
21
Q.
22
Schools considers any assessment that measures
23
academic progress to be an academic examination?
24
A.
Because, in essence, it's one of the West
Would I be correct in saying that Ohio County
Could you rephrase again?
17
MR. DELK:
What was the question?
(Whereupon, reporter read record as requested.)
2
3
A.
the wide variety of instruments that could be used.
So I would be hesitant to say yes to that, sir.
BY MR. DELK:
Q.
assessment that measures academic progress that would
qualify it as an academic examination?
I'm concerned about the word "any" because of
So what would be the criteria or traits of an
10
Since you don't like the term "any," describe
11
for me what traits or qualities of such an assessment
12
would have to have to be considered an academic
13
examination.
14
A.
15
delineated in Policy 2340 would be an academic
16
examination.
17
It would be my understanding that everything
Items that we would use for interim
18
assessments would be considered academic assessments.
19
Even some teacher-developed academic assessments
20
would not be subject to review if they were developed
21
collaboratively.
22
Q.
23
want to make sure we're on the same page -- you refer
24
to this as Policy 2340?
And correct me if I'm wrong -- and I just
18
A.
Right.
Q.
Just want to make sure we're talking the same
thing.
A.
Right.
Uh-huh.
If you see --
Q.
Right.
A.
West Virginia Measures of Academic Progress.
2340 in parenthesis.
Q.
I see it.
So Policy 2340 was, you know, authored, put
10
together by the West Virginia Department of
11
Education; am I right about that?
12
A.
Yes, sir.
13
Q.
Pursuant to legislative authority from the --
14
you know, our legislature, correct?
15
A.
Yes, sir.
16
Q.
So any test assessment mentioned, discussed
17
in Policy 2340, Ohio County Schools would consider
18
that an academic examination?
19
A.
Yes, sir.
20
Q.
Now talk specifically, for a second, about
21
the West Virginia assessment provided to third
22
graders in Ohio County Schools.
23
A.
Uh-huh.
24
Q.
Is that a yes or a no?
Okay?
19
MR. CASEY:
A.
BY MR. DELK:
Q.
Yes, sir.
You have to say "yes."
I'm sorry.
That's all right.
MR. CASEY:
That's all right.
Vickie is taking it down
word-for-word, and she has trouble interpreting the
uh-huhs and the huh-uhs.
A.
BY MR. DELK:
Okay.
10
Q.
11
Ohio County Schools, the third grade teachers, had no
12
idea what the test questions were on the assessment
13
provided to third graders?
14
A.
Yes, sir, that would be fair.
15
Q.
And fair to say the third grade teachers in
16
Ohio County Schools were not involved with creating
17
or designing the assessment?
18
A.
19
the assessment.
20
Q.
21
provided to third graders was 100 percent designed by
22
a outside, third-party testing company?
23
A.
24
speculating in answering that question because I do
Is it a fair statement that the teachers in
Yes, sir, they were not involved in creating
Is it fair to say that the assessment
I would have to say that I would be
20
know that there were curriculum experts from various
states who collaborated with the vendor.
be unable to answer that.
Q.
West Virginia curriculum expert collaborating with
the vendor, the testing company still was the one
that prepared and created the test?
A.
various, at least my understanding is, from the
Okay.
So I would
It would be speculation.
Well, to the extent that there was a
Yes, sir.
With collaboration from the
10
department of educations in the states in the
11
consortium.
12
Q.
13
consortium that West Virginia is a part of?
14
A.
I do not, sir.
15
Q.
And the consortium that West Virginia is part
16
of is the Smarter Balanced Assessment Consortium; is
17
that correct?
18
A.
Yes, it is, sir.
19
Q.
When I use the term "Smarter Balanced," you
20
know what I'm referring to?
21
A.
Yes, sir.
22
Q.
It's true that there would be subjects or
23
topics on the tests provided to third graders -- the
24
assessment provided to third graders that were not
Okay.
Do you know what states are in the
21
covered by teachers in Ohio County Schools?
A.
standards and objectives.
content the teacher may select to deliver, that
content standard or objective, may be different than
what's on the assessment; however, it's still tied to
the knowledge and skills, what kids need to know and
be able to do.
Q.
By way of clarification, each state has its

And it is true that the
I appreciate that.
But the content on the
10
test may not correlate with the content that the
11
third grade teachers provided to the students in its
12
entirety.
13
There may be some gaps between the test and
14
what happened in the classroom; is that fair?
15
A.
Yes, that would be fair to say.
16
17
18
BY MR. DELK:
19
Q.
20
which is just a sample of a student's test scores.
Handing you what's been marked as Exhibit 3,
21
22
23
24
MR. CASEY:
Do you want any of this
redacted?
MR. DELK:
No.
22
BY MR. DELK:
Q.
literacy for third graders, correct?
A.
Yes, sir, it is.
Q.
Does this report tell me what specific test
questions were asked of this student?
A.
No, sir, it does not.
Q.
Does this report indicate how many or what
questions were missed by the student?
The first page is the English language arts
10
A.
11
Q.
Does the report provide any indication that
12
this student had trouble with any specific area
13
tested?
14
A.
15
Q.
Is there any way for a parent to find out
16
what specific areas of the test that the student may
17
have had trouble with on the assessment?
18
A.
No, sir, it does not indicate that.
19
Q.
I'm asking you:
20
is there any way for a parent to find out what
21
specific subject matter or area that was tested that
22
the student may have had trouble with?
23
A.
24
Beyond what's on that page,
No, sir.
This report shows that this child was above
23
standard -- using the "Legend: Claims Performance
Levels" here at the top, in reading, listening and
speaking, writing and research and inquiry.
Q.
I understand that.
A.
Uh-huh.
Q.
But is there any way for a parent to find out
what subject matters a child may have had an issue
with on a -- not this one in particular, but say a
student got a one or a two on there.
10
Is there any way for a parent to find out
11
what specific subject matters that their child may
12
have had an issue with on this particular test?
13
A.
Specifically, no.
14
Q.
Yes.
15
Thank you.
Does this report here indicate in any way
16
what reading level the child was tested on, as far as
17
reading passages provided on the test?
18
A.
19
that the student has exceeded the achievement
20
standard and demonstrates advanced progress toward
21
mastery of knowledge and skills in English language
22
arts and literacy.
23
Q.
I understand that.
24
A.
Uh-huh.
The report shows Level 4 performance here;
24
Q.
But it was a computer-adaptive test, correct?
A.
It was, sir.
Q.
And tell me if I'm wrong, but I assume that
means if a child is answering questions correctly,
those questions are going to get progressively more
difficult?
A.
computer-adaptive tests.
Q.
Yes.
That is the basic design of
If the child is missing a question or misses
10
questions, that it -- the way it adapts, it changes
11
to make the test, I guess, less rigorous, or less
12
hard, for lack of a better term; is that correct?
13
A.
14
computer-adaptive nature of the test.
15
Q.
16
language arts test that if a child is performing well
17
on -- for reading comprehension, do the reading
18
passages get progressively harder?
19
A.
I'm unable to answer that question.
20
Q.
You don't know?
21
A.
I do not know.
22
the selection of passages.
23
Q.
24
the grade level reading questions were, what -- as
In general, that describes the
Do you know, for example, in the English
I have not been involved in
Is there any way for a parent to know what
25
far as a specific reading comprehension or reading
passage, what grade level that the kid was ultimately
reading on the test?
A.
The answer to that would be no, sir.
Q.
Okay.
what subject matters in English language arts were
actually tested?
A.
listening and speaking, writing, research and inquiry
Now, on this report, does it indicate
The areas of the four claims here of reading,
10
were the claims that were combined for the overall
11
score.
12
Q.
13
specific kind of grammar questions were on the test,
14
if any?
15
A.
No, sir, we do not.
16
Q.
How would we find that out?
17
wanted to know, like, what grammar was tested on this
18
assessment, how would a parent find that out?
19
A.
20
the parents.
21
Q.
22
find that out?
23
A.
Exactly, sir.
24
Q.
Are there ever -- are the schools provided
And do we have any idea, for example, what
If a parent
The student report is all that is provided to
So the answer would be:
The parent can't
26
with any kind of report data showing how the child
answered on specific questions?
A.
They are not, sir.
Q.
They are not.
And if I am correct, on the WESTEST, the
report was provided showing how a student did on test
questions, whether they got it right or got it wrong?
A.
analysis provided for each item in the old WESTEST.
Yes, that is true.
There was an item
10
Q.
11
language art assessment, and even in third grade,
12
there was a writing assessment; is that correct?
13
A.
14
the performance task.
15
Q.
And who sees that writing assessment?
16
A.
Would you clarify?
17
Q.
Sure.
18
And my understanding is, on these English
It was embedded into the process as part of
The student keyboards in the --
19
A.
Uh-huh.
20
Q.
-- whatever they're writing?
21
A.
Uh-huh.
22
Q.
Yes?
23
A.
Yes, they do.
24
Q.
And who actually sees that?
Uh-huh.
27
A.
Would you clarify?
Q.
Sure.
Does anyone in Ohio County Schools get to see
what the student wrote?
A.
No one in Ohio County Schools would see that.
Q.
Anybody at the West Virginia Department of
Education get to see that?
A.
Education would see that.
No one at the West Virginia Department of
10
Q.
That goes off to whoever grades the test?
11
A.
The vendor, it is my understanding, has
12
trained scores, so they would be the only folks, to
13
my knowledge, that would see that.
14
Q.
And who is the vendor for this test?
15
A.
American Institutes for Research, AIR.
16
Q.
And do you have an understanding how those
17
people who read the assessments are trained?
18
A.
I do not, sir.
19
Q.
Do you have any idea what their background
20
is?
21
A.
I do not, sir.
22
Q.
Do you have any idea what their level of
23
education is?
24
A.
I do not, sir.
28
Q.
temporary job?
A.
I have no idea, sir.
Q.
Do you have any idea what the job pays?
A.
I have no idea, sir.
Q.
Does Ohio County Schools have any indication
or knowledge what level of performance is required to
hit the various cut levels on the assessment?
A.
Ohio County Schools has no knowledge of that.
10
Q.
Does the West Virginia Department of
11
Education have that information, to your knowledge?
12
A.
13
Do you know whether it's a part-time or
I would say they probably do not.

This report uses a scale score, and the scale
14
scores would be a conversion of the student's raw
15
score to a common scale.
16
know, and I would be reluctant to answer on behalf of
17
the department of ed.
18
Q.
19
score?
20
A.
We do not.
21
Q.
The parents are not provided the raw score?
22
A.
No.
23
Q.
I mean, it's fair to say whatever scale score
24
the student receives on this test, we have no idea to
So they may or may not
Ohio County Schools doesn't know the raw
29
know whether that means they answered 25 percent
right or 99 percent right?
A.
You're right, sir.
Q.
Thank you.
Turn to the next page of Exhibit 3.
This is the math portion, correct?
A.
Yes, sir.
Q.
Again, this report doesn't tell a parent what
specific test questions were asked of the student,
10
correct?
11
A.
It does not, sir.
12
Q.
And it in no way indicates how many -- how
13
many or what questions were missed by the student,
14
correct?
15
A.
No indication, sir.
16
Q.
Is there any indication provided as to
17
whether a student had trouble with a particular
18
mathematical concept?
19
A.
Not according to this report.
20
Q.
Are Ohio County Schools provided with any
21
additional information about the student's test
22
result other than this report?
23
A.
We are not, sir.
24
Q.
Ohio County Schools is not provided with any
30
indication of how many questions a student got right
or missed?
A.
We have no knowledge of that.
Q.
All right.
they're waiting for additional information about test
responses, that teacher was just incorrect?
A.
and perhaps thinking about what we've had for several
years with WESTEST, in that we did have specifically
So if a teacher has told me that
I would say that that teacher was incorrect
10
question by question, concept by concept.
11
Q.
Okay.
12
A.
Uh-huh.
13
Q.
-- getting at.
14
A.
Uh-huh.
15
Q.
So on this West Virginia Summative
16
Assessment, a parent will not know concept by concept
17
what was tested and how their child did on the test?
18
A.
No, sir.
19
Q.
Is there any way for Ohio County Schools to
20
know what portion, percentage of the test, for
21
example, was addition, subtraction, multiplication,
22
division, anything like that?
23
A.
No, sir.
24
Q.
We don't know if the child had one question
That's what I'm --
31
on multiplication or 50 questions; is that correct?
A.
We have no way of knowing, sir.
Q.
Do you we know, for example, with the third
grade test, what specific mathematical concepts were
tested?
A.
test.
Q.
language arts, is there any way to know -- does Ohio
10
County Schools know, in any way, what performance by
11
the student is necessary to reach Level 1, 2, 3 or 4?
12
A.
No, sir.
13
Q.
And a raw score, again, is converted to the
14
scale score, correct?
15
A.
Exactly.
16
Q.
And we don't know what the raw score is for
17
the students?
18
A.
We have no idea.
19
Q.
Now, of the scale -- these scale scores and
20
the cut lines for this report, is that the same for
21
each state that is a part of the consortium, or does
22
that change from state to state?
23
A.
24
states.
We have no way of knowing what was on the
And the same for the report on the English
I would be unable to answer for all of the

It's my understanding that West Virginia is
32
using the cut scores provided by Smarter Balance.
I wouldn't even begin to answer for the other states.
Q.
I appreciate that.
A.
Uh-huh.
Q.
But to your knowledge -- your knowledge is
that the West Virginia Department of Education is not
setting the cut line; that's coming from Smarter
Balance?
A.
That would be my understanding.
10
Q.
Okay.
11
Schools going to do with the results of the
12
assessment?
13
results?
14
A.
15
of assessment data, so this would be one piece of
16
assessment data.
17
So
In general, what is Ohio County
How does Ohio County Schools use the
I made reference before about using a balance
We would also use data from Pearson
18
SuccessNet math.
19
assessment.
20
We would use information from classroom teacher
21
assessment data so -- and probably others that I've
22
forgotten about at this moment, to try to get a true
23
handle on where a child is in his or her learning.
24
So we use a multitude of data sources.
We would use data from the DIBELS
We would use information from aimsweb.
33
Q.
uses this test, to some level of degree, to determine
how a child is doing in their grade level; is that
fair, summarizing what you just said?
So a portion of what -- Ohio County Schools
If not, do a better job for me.
A.
Schools with a picture of where the child is in
relationship to the standards at that particular
grade level, but bear in mind, it's only one piece of
10
I think what it does is presents Ohio County
the entire picture of a child's learning.
11
We know, after years in education, that not
12
every child performs well on an assessment like the
13
West Virginia General Summative Assessment, so we
14
like to look at other data sources --
15
Q.
Sure.
16
A.
-- as well.
17
Q.
How does Ohio County Schools use that
18
information it receives from the testing company or
19
the Department of Education for an individual
20
student?
21
A.
22
the child's entire learning.
23
Q.
24
teacher would use the test result?
Again, it gives us a piece of the picture of
And is that the same response for how a
34
A.
Absolutely.
Q.
It's just a piece of a bigger puzzle?
A.
Absolutely.
Q.
Does the West Virginia Summative Assessment,
the report that's provided -- just for clarification,
the only information you have on an individual
student about the assessment results are provided on
those two pages?
A.
Absolutely.
10
Q.
That's it?
11
A.
That's it.
12
Q.
That's the full range of -- everything we
13
know is on those two pages?
14
A.
Yes, sir.
15
Q.
Thank you.
16
Does those two pages provide any specific
17
instruction for what a student needs to improve on in
18
either math or English language arts?
19
A.
20
indicate any specific content standards and
21
objectives, as I look at this report.
22
The results provided here do not clearly
However, as a classroom teacher, it would
23
tell me when I have a student who's fairly high
24
functioning.
I would then use other data sources to
35
see if I could identify specific content areas which
this child might need.
Q.
the individual student report, as far as the
summative assessment goes, really just provides a big
picture of whether the student is meeting standards,
above standard, below standard?
A.
That's very fair to say.
Q.
Okay.
Okay.
I mean, is it fair to say, then, that
I know you have Policy 2340 in front
10
you.
11
want to give you my copy just so we're talking about
12
the same page --
13
A.
Okay.
14
Q.
-- if that's fine?
15
A.
That's perfectly fine.
16
Q.
I didn't tell you this when we started, but
17
if, at any time, you need to take a break, just let
18
me know.
19
A.
Thank you.
20
Q.
All right.
21
the document I provided to you, and it's Appendix B.
22
23
24
We don't need to make this an exhibit, but I
If you could turn to page 24 of
Appendix B is the District Test Coordinator's

Secure Materials and Test Procedures Agreement.
Do you see that?
36
A.
I do, sir.
Q.
In Ohio County Schools, who is the district
test coordinator?
A.
I am, sir.
Q.
You.
Okay.
And did you have to sign this document or a
document like this?
A.
to the West Virginia Department of Education at the
I actually sign this document and submit it
10
beginning of each school year.
11
implementing any assessment in the West Virginia
12
measures of academic progress, I am required to
13
attend training in Charleston, and then I re-sign
14
that I have had specific training for each of those
15
assessments.
16
Then prior to
So I sign this document multiple times during
17
the school year.
18
Q.
This exact same document?
19
A.
This exact same document.
20
Q.
And a signed copy exists of this document?
21
A.
It would be with -- be held at the West
22
Virginia Department of Education.
23
Q.
24
Ohio County Schools anywhere?
Okay.
Is there a copy -- a signed copy in
37
A.
training, to give them my copy.
Q.
So you don't have a copy?
A.
I do not have a copy of this.
the West Virginia Department of Education.
Q.
If you could turn to page 26.
A.
(Witness complies.)
Q.
That is Appendix C.
A.
Yes, sir.
10
Q.
It says, "District Technology Coordinator
11
Secure Materials Test Procedures Agreement."
12
A.
Uh-huh.
13
Q.
In Ohio County Schools, who is the district
14
technology coordinator?
15
A.
16
Mr. Patrick Riddle.
17
Q.
18
I am required, at the conclusion of my
I submit it to
Do you see that?
The district technology coordinator is
It says "or a technology vendor."

Is that a different person in Ohio County
19
Schools?
20
A.
We do not have a technology vendor.
21
Q.
Okay.
22
document?
23
A.
Yes, he does.
24
Q.
And does Ohio County Schools have a copy of
Mr. Riddle would have had to sign this
38
that signed document, or is that provided to the
state as well?
A.
I do have a copy of his signed document.
Q.
That's on file?
A.
It is on file.
Q.
All right.
not produced in response to the FOIA request, do you
know?
A.
And unless I'm wrong, that was
To the best of my knowledge, because of our
10
number of documents, I would say that it was not.
11
Q.
If we could turn to page 28.
12
A.
(Witness complies.)
13
Q.
This says, Principal's -- it's Appendix D.
14
"Principal's Secure Materials and Testing Procedures
15
Agreement," correct?
16
A.
Correct.
17
Q.
And every principal in Ohio County Schools
18
would have signed this document?
19
A.
Absolutely.
20
Q.
And do you have a copy of the signed
21
documents for each of the principals?
22
A.
I have copies.
23
Q.
Unless I'm missing something, that was not
24
produced pursuant to the FOIA request?
39
A.
It was not.
Q.
Is there a reason why it was not produced?
A.
Other than the fact that I have it on file
and locked away, no.
Q.
Level Coordinator's Secure Materials and Testing
Procedures Agreement.
Okay.
Turn to page 30.
Appendix E, Building
Do you see that?
A.
Yes, sir.
10
Q.
Okay.
11
are the building level coordinators?
12
A.
13
building to serve in this capacity.
14
school.
15
Q.
16
Who at Ohio County Schools -- or who
Principals select key staff within their

So it varies by
Gotcha.
And do you have a copy of the signed
17
agreements for the building level coordinators?
18
A.
I do, sir.
19
Q.
And is it one per school or would it be more?
20
A.
It's one per school.
21
Q.
And again, was there a reason why the signed
22
copies of this agreement weren't provided?
23
A.
No.
24
Q.
Page 32, Appendix F.
I just -- I had them locked away.
40
I'm going to object.
MR. CASEY:
By
asking why they weren't produced, I'm not conceding
that they were encompassed, but she can tell you why
she didn't do it.
MR. DELK:
MR. CASEY:
BY MR. DELK:
Q.
Agreement.
10
That's fine.
Okay.
Go ahead.
Page 32, Examiner's/Scribe's Secure Materials
Do you see that?
11
A.
I do, sir.
12
Q.
Who are the examiners or scribes in Ohio
13
County Schools?
14
A.
15
examination -- in the testing centers with the
16
students.
17
Those are the teachers who would be in the
These are signed and kept on file in each
18
school.
19
Q.
In each school?
20
A.
In each school.
21
Q.
Would it be fair to say in the elementary
22
schools every third, fourth and fifth grade teacher
23
would have signed this agreement?
24
A.
Yes, sir, I think that would be fair to say.
41
Q.
all the English and math teachers would have signed
the agreement?
A.
the building would serve as examiners.
Q.
Okay.
A.
But in general, most of them use the English
teachers and the math teachers.
Q.
Same for the high school?
10
A.
Yes, sir.
11
Q.
Okay.
12
science test.
13
A.
Uh-huh.
14
Q.
Would the science teacher have signed that?
15
A.
Yes.
16
Q.
I don't think -- last year, there was no
17
social studies test, or was there?
18
A.
No social studies testing last year.
19
Q.
Again, I think you just answered this.
20
And would it be fair to say in middle schools
The principals determined which teachers in
And I know some grades had to take a
Going back to page 32, the
21
examiner's/scribe's agreement, those would be
22
exclusively teachers who would have signed this one?
23
A.
Yes, sir.
24
Q.
Again, Ohio County Schools did not provide a
42
copy of the signed agreements by the teachers
pursuant to the FOIA request, correct?
A.
No.
Q.
Okay.
each of these agreements that we just talked about?
A.
Yes, I am.
Q.
And I let -- unless I read it wrong, I think
the first paragraph -- numbered paragraph in each
was, "I will not keep, copy, reproduce, paraphrase,
10
distribute or review/discuss secure test materials
11
and/or test items"?
12
A.
Yes.
13
Q.
And I think that applied to every single one
14
of the agreements?
15
A.
Absolutely.
16
Q.
And specifically, as this applied to
17
teachers, teachers were not allowed to look at the
18
test questions, correct?
19
A.
No, they are not, sir.
20
Q.
Teachers were not allowed to review the test
21
in any way before or after the test, correct?
22
A.
No, sir.
23
Q.
Teachers were not allowed to discuss the test
24
with other teachers or educators, correct?
They are in the individual schools, sir.

Are you familiar with the contents of
43
A.
They were not, sir.
Q.
Is it fair to say that there was no peer
review at all conducted by any Ohio County educator
with respect to these assessments?
MR. CASEY:
You can go ahead and answer.
If you know
what's meant by the word "peer review," go ahead and
answer.
A.
Our teachers did not review the materials.
10
BY MR. DELK:
11
Q.
12
know, on any of -- let's say the third grade
13
assessment.
14
Okay.
And just by way of example, if -- you
Let's say that, you know, there was a portion
15
of the assessment that had -- I'm just going to make
16
up something -- had Roman Numerals on it, and for
17
whatever reason, the third grade -- that last year,
18
Roman Numerals didn't get covered, and the kids
19
obviously probably wouldn't have done very well.
20
There's no way for the teachers to be able to
21
tell parents, Well, you know, part of the test was a
22
subject matter we did not cover?
23
A.
24
that.
There would be no way for teachers to know
44
Q.
level, if a teacher considered it, you know, two or
three grade levels above what they were doing
throughout the year, there would be no way for a
teacher to know that?
A.
Teachers would not know that.
Q.
Do you know if the testing company was the
entity that required this agreement to be signed as
part of the contract?
And if the reading passages at any grade
10
A.
11
Education, and we've had these similar agreements in
12
effect for years.
13
Q.
For years?
14
A.
For years.
15
Q.
Do you know if the testing company requires
16
this sort of agreement?
17
A.
18
require -- the testing vendor would require.
19
Q.
20
education requires these agreements to be signed?
21
A.
Yes.
22
Q.
What is the penalty on an employee or teacher
23
if they breach this agreement?
24
A.
This was the West Virginia Department of
I have no knowledge about what the testing
You just know that the department of
If I may --
45
Q.
Sure.
A.
-- let me go back to page 25, and I think
this -- the statement is similar in all of the
agreements.
Number 13 says, "I understand that if a
breach of test security or copyright infringement
occurs as a direct result of my actions, my
license/certification may be suspended or revoked, or
I may be suspended, terminated, or have other action
10
taken."
11
Q.
12
try to assist a parent as to what specifically a kid
13
may not have done well on the assessment could be
14
violation of the agreement?
So potentially, any effort by a teacher to
15
MR. CASEY:
16
BY MR. DELK:
17
Q.
18
violation of the agreement?
19
To find out what was on the test could be a
MR. CASEY:
20
You can answer, if you know.
21
A.
22
the teachers could use this document, if we had a
23
minus here or the little exclamation point, triangle,
24
and say "Your child" and could give some general
This score implementation of the testing --
46
information to parents, based upon this report only.
2
3
MR. CASEY:
You're referring to
Exhibit 3?
A.
BY MR. DELK:
Q.
came to the teacher and said, Well, mine got one of
these --
A.
Uh-huh.
10
Q.
-- you know, below standard, the caution
11
sign, exclamation point.
12
A.
Uh-huh.
13
Q.
And said, you know, What can you tell me that
14
they had a problem with?
15
A.
Uh-huh.
16
Q.
And if the teacher did anything to try to go
17
back and review the test or look up the test, that
18
would be a violation of the agreement?
19
A.
20
ability to go look at the test items.
21
Q.
22
teacher could have looked at the test, but it would
23
have been a violation of the agreement?
24
A.
Exhibit 3, uh-huh.
But for example, if -- you know, if a parent
It would be, but the teachers don't have the
When the test was being administered, a
It would have been a violation.
47
Q.
says, "I understand that if a breach of test security
or copyright infringement occurs."
On the paragraph you read, paragraph 13, it
Who has the copyright on the assessment, do
you know?
A.
I do not know that, sir.
Q.
Do you know if it's the testing company or
the department of education?
A.
I do not.
I'm unable to answer that
10
question.
11
Q.
12
in West Virginia is required to take the assessment,
13
the West Virginia General Summative Assessment?
14
A.
15
required to take the test.
16
Q.
A parent can opt their child out?
17
A.
Yes, sir.
18
Q.
And there's no consequences to the student if
19
the test is not taken; is that correct?
20
A.
No, sir.
21
Q.
Am I correct?
22
A.
You are correct.
23
Q.
Thank you.
24
All right.
Is it fair to say that no student
It would be fair to say that no student is
And for example, my third grader, she would
48
move on to fourth grade --
A.
Yes, she would.
Q.
-- regardless of whether she took that test
or not?
A.
Yes, she would.
Q.
Is it fair to say nothing about the test
result would change the educational instruction
provided to my child?
9
10
MR. CASEY:
I'm going to object to the
form.
11
You mean if she didn't take it?
12
MR. DELK:
13
MR. CASEY:
Right, if she didn't take it.

Okay.
14
A.
15
data that we received and go to those multiple
16
sources again.
17
BY MR. DELK:
18
Q.
19
result of the test, how would the educational
20
instruction provided to my child potentially change,
21
or would it change?
22
A.
23
personalize the education for each child.
24
Oh, no, sir.
We would just look at the other
If my child takes the test, regardless of the
In Ohio County Schools, we like to
So that if I were to look at the results here
49
on Exhibit 3, I can tell in English language arts I
have a very high performing child within my
classroom.
new skills.
I would still do my core instruction for
And then using formative assessment data, any
other data saying maybe she's ready to be enriched,
and then, depending upon the result here, maybe I
need to think, Is there an opportunity for me to
reteach?
10
So it's only, again, one piece of information
11
that we use in the teaching and learning process.
12
Q.
13
the assessment test for a third grader, any third
14
grader, would not be determinative at all on whether
15
they moved on to fourth grade?
16
A.
It would be fair to say that, sir.
17
Q.
When did Ohio County Schools receive the
18
individual test scores for the students?
19
A.
20
exact date, at about the end of July, and were
21
provided to my principals as soon as I could get all
22
of the district results printed.
23
Q.
24
principals, then, before the school year began?
I mean, is it fair to say that the result on
They became available, and I don't know the
And they were provided, I guess, to
50
A.
At about the beginning of the school year.
Q.
Do you know, if you know, whether the
curriculum in any individual classrooms or grades
changed as a result of the test scores?
A.
Virginia Next Generation Content Standards and
Objectives, so there would have been no revision of
the curriculum.
Q.
The curriculum is still tied to the West
So regardless of what the test scores were,
10
there would be no revision to the curriculum?
11
A.
No.
The curriculum would stand as it is.
12
13
14
BY MR. DELK:
15
Q.
16
which is a May 1, 2015 letter from Mr. Casey to me in
17
response to the April 7th FOIA request.
18
Handed you what's been marked as Exhibit 4,
Have you seen this letter before?
19
A.
Have I seen this letter?
20
Q.
Yes, ma'am.
21
A.
No, sir.
22
Q.
If you look at the April 7th letter from me,
23
you see that Number 4 is, "Provide a copy of the West
24
Virginia General Summative Assessment administered to
51
third graders in Ohio County Schools."
Do you see that?
A.
I see that.
Q.
And then at Number 4 of Mr. Casey's letter,
it says, "OCS," which is Ohio County Schools, "does
not have access to this information."
Do you see that?
A.
I do.
Q.
You understand that a copy of the assessment
10
provided to third graders was asked for by me?
11
A.
I understand that, sir.
12
Q.
Do you know who in Ohio County Schools
13
provided the information to Mr. Casey that Ohio
14
County Schools does not have access to the tests?
15
16
MR. CASEY:
extent it invades the attorney-client privilege.
17
18
MR. DELK:
Are you instructing her not
to answer?
19
20
I'm going to object to the
MR. CASEY:
Well, I need more detail as
to when you say "who" and --
21
BY MR. DELK:
22
Q.
23
Ohio County Schools to the FOIA request, and it
24
indicates that Ohio County Schools does not have
My question is -- this is the response of
52
access to the information.
And I want to know who in Ohio County Schools
would have provided this information to Dr. Vargo or
to Mr. Casey to come up with this response?
MR. CASEY:
MR. DELK:
MR. CASEY:
Sure.
If you ask her, Who within
the Ohio County Schools made the determination --
9
10
Let me -- if I can rephrase?
MR. DELK:
That's good.
That's a better
question.
11
MR. CASEY:
-- I'll go with that.
12
BY MR. DELK:
13
Q.
14
determination that it did not have access to the
15
assessment provided to third graders?
16
A.
I provided the information to Dr. Vargo.
17
Q.
Okay.
18
A.
Uh-huh.
19
Q.
Then, are you the one who made the
20
determination that Ohio County Schools does not have
21
access to the third grade assessment?
22
A.
Yes, I would be the individual.
23
Q.
Okay.
24
not have access to the third grade assessment?
Who in Ohio County Schools made the
Why did Ohio County Schools say it did
53
A.
provided only to students.
Q.
On a computer, correct?
A.
Correct.
Q.
Would you agree with me that the time period
that this request was made and Mr. Casey's response
was the time period that assessments were being
provided to students in Ohio County Schools?
A.
Yes, sir.
10
Q.
And let me ask you this, if you know:
11
example, now if a student, for whatever reason,
12
needed to take the third grade assessment, could that
13
student now take it?
14
Access to the third grade assessment was
For
Would there be a way to access it and allow
15
the student to take it?
16
A.
No, sir.
17
Q.
That window is closed?
18
A.
Correct.
19
Q.
There's nothing Ohio County Schools could do
20
to get on a computer and pull up the assessment and
21
allow a student to take it?
22
A.
That is correct, sir.
23
Q.
Who controls that, I guess, portal, for lack
24
of a better word?
The testing company or the
54
department of education?
A.
Virginia Department of Education works
collaboratively with AIR, and they determine the
opening date and the closing date.
Q.
When was the closing date?
A.
In Ohio County Schools?
Q.
Yes.
A.
June 5th, the last day of school.
10
Q.
Now, it's true Ohio County Schools could have
11
printed a hard copy of the test third graders was
12
taken, correct?
13
A.
No, we could not.
14
Q.
You're familiar with the print-on-demand
15
function of the test?
16
A.
I am, sir.
17
Q.
And why could that not have been printed?
18
A.
The print-on-demand function is an
19
accommodation provided to students with an IEP, and
20
in Ohio County, we had absolutely zero students who
21
have that accommodation.
22
Q.
IEP stands for?
23
A.
Individualized Educational Plan.
24
Q.
So not a single student in Ohio County
To the best of my knowledge, the West
55
Schools needed an IEP -- or had an IEP?
MR. CASEY:
don't think that's what she said.
BY MR. DELK:
Q.
Well, what did you say?
A.
It's an accommodation provided in an
individualized educational plan, and we have no
students with that accommodation.
Q.
Well, regardless of whether a student had
10
that accommodation, you had the ability to use the
11
print-on-demand function to print out a copy of the
12
test?
13
A.
I did not, sir.
14
Q.
Why?
15
A.
The test is delivered by way of a secure
16
browser.
17
browser, it disables all other functions, except
18
those needed to answer questions.
19
been impossible to print any piece of the test.
20
Q.
Why is that?
21
A.
Because of -- the secure browser disables all
22
the other functions of the computer.
23
Q.
Could not take a screenshot of each screen?
24
A.
No, sir.
Once the child logs in to that secure
So it would have
56
Q.
to access print on demand?
A.
No, sir.
Q.
How would you log in to access print on
demand for a student?
A.
information is uploaded from the West Virginia
Department of Education to the vendor, which then
allows that function to occur; but again, we had no
10
students in Ohio County who had that accommodation.
11
Q.
12
wanted to, you could have create a student just --
13
A.
No, sir.
14
Q.
-- to get in there and log in --
You could not log in under the -- in any way
If a student has that accommodation, the
I mean, you could have created -- if you had
15
16
MR. CASEY:
Wait for him to finish his
question.
17
A.
18
BY MR. DELK:
19
Q.
20
information for a John Doe student to access print on
21
demand?
22
A.
No, sir.
23
Q.
Why not?
24
A.
All of our students are entered into the West
Sorry.
In theory, could you have created login
57
Virginia Educational Information System, and we can
not, quote, create students.
Q.
Okay.
A.
I apologize for jump --
Q.
That's all right.
A.
I was just a little startled by that
hypothetical.
8
9
MR. CASEY:
That's okay.
You need a
break?
10
THE WITNESS:
Yes, please.
(Brief Break)
11
12
BY MR. DELK:
13
Q.
14
let's stick with third graders since that was my
15
request.
The testing procedure for students -- and
16
The third graders in each individual
17
elementary school, I guess, are in the testing room,
18
taking this test?
19
A.
Yes.
20
Q.
And the testing room, I guess, is where the
21
computers are in each school?
22
A.
It varied by school.
23
Q.
Were computers brought in for the test,
24
specifically, or did you just -- did Ohio County
58
Schools just use what computers were at the school
already?
A.
yes.
Q.
or would they be provided assistance with doing that?
A.
Students logged in individually.
Q.
And when a student logged in, that test was
on the terminal, computer, that they were working on,
We used what computers were at the school,
And would the students log in individually,
10
correct?
11
A.
Yes, sir.
12
Q.
I probably need to ask this of Mr. Riddle
13
rather than you, but to the extent you know, was
14
there a server in Ohio County Schools that the test
15
came through and was distributed out to the schools,
16
or do you know how that worked?
17
A.
18
any server in Ohio County Schools.
19
in using their WVEIS student numbers and their first
20
names, and then my understanding is it -- that in
21
secure browser, it went directly to the vendor.
22
Q.
Went directly to the vendor?
23
A.
Yes, sir.
24
Q.
Not at the West Virginia Department of
I do know that.
The test did not reside on

Students logged
59
Education at all?
A.
No, sir.
Q.
So as far as you know, no government entity
in the state of West Virginia had access to the test?
A.
That is correct, to the best of my knowledge.
BY MR. DELK:
Q.
Let me hand you Exhibit 5, which are just
10
documents that were part of what was produced by Ohio
11
County Schools pursuant to my FOIA request, that I've
12
highlighted some portions.
13
If you could turn to the next to the last
14
page, and then I'll ask you about -- I highlighted
15
the part at the bottom.
16
A.
Are we referring to page 461 or --
17
Q.
Yes, 461.
18
A.
(Witness complies.)
19
Q.
And the question at the bottom says, "Will
20
printed versions of the WV GSA be available to
21
students?
22
technology displays/use a computer due to an eye
23
disease.
24
Yes.
I have a 504 student who is unable to read
Could she use print on demand?"
And just so I have an understanding, if you
60
know, what's a 504 student?
A.
students with special needs.
comparable to an IEP plan, and generally they are
provided for students who have medical needs or some
kind of specialized need.
We have individualized educational plans for

A 504 plan generally is
So again, just like an IEP, it's a legally
enforceable document.
Q.
Okay.
10
A.
So that's what a 504 is.
11
Q.
If you could turn to the next page, 462.
12
at the top left, it says, "Print on demand is an
13
option if the student has P40 as an identified
14
accommodation.
15
ordered for the student."
16
Additionally, a LP book may be
What's a P40, if you know?
17
A.
It would be an accommodation.
18
Q.
Is it a specific kind of accommodation?
19
A.
Yes, it would be.
20
Q.
What -- I mean --
21
A.
Off the top my head --
22
Q.
Okay.
23
A.
-- I can't speak to that.
24
Q.
What's an LP book?
A large-print book?
And
61
A.
It would be a large-print book.
Q.
Did Ohio County Schools order or have any
large-print books?
A.
We have no students with that need.
Q.
had any issue in the testing room during the test
that there was no way to print out any of the test
questions during the test?
Ohio County Schools had no large-print books.
Okay.
Is it your testimony that if a student
10
A.
11
not have the capacity to print anything from the
12
test.
13
Q.
14
that individual computer were basically disabled
15
during the test?
16
A.
17
the mouse clicks and so forth -- to perform the task
18
necessary to answer the question.
19
Q.
20
documents that were produced pursuant to the FOIA
21
request.
That is absolutely correct.
Is it your testimony all other functions on
Yes, sir.
Okay.
22
23
24
We had -- we did
Except for the ones needed to --
I want to go through with you the
I'm going to hand you this copy.

MR. CASEY:
Are you making this an
exhibit?
MR. DELK:
No.
62
BY MR. DELK:
Q.
numbered these on the bottom right, for the most
part.
If could you turn to page 4, and I've
This document indicates there is one
attachment to it on page 4 towards the top.
A.
Yes, sir.
Q.
What's the attachment, do you know?
A.
The department of ed did -- and that would
10
have been the online link for it, their webinar, so
11
that, literally, I could have clicked, looked at
12
their PowerPoint presentation as they talked and
13
listened to it on the telephone.
14
Q.
15
printed out?
16
A.
17
readily available.
18
Q.
That's what I'm asking.
19
A.
Yeah.
20
Q.
Okay.
21
A.
(Witness complies.)
22
Q.
Is that the same type of --
23
A.
It's a similar --
24
Q.
-- document?
Okay.
That's something that could have been
I would be hesitant to say that it would be
Turn to page 6.
63
A.
It's similar.
2
3
Let him finish.
MR. CASEY:
A.
Okay.
Thank you.
Go ahead.
MR. CASEY:
BY MR. DELK:
Q.
be hesitant to say whether you could print that out?
A.
Exactly.
Q.
Okay.
10
A.
(Witness complies.)
11
Q.
Same question.
12
presentation that you're referring to?
13
A.
Same thing.
14
Q.
15
A.
(Witness complies.)
16
Q.
The attachment on this e-mail indicates it's
17
a PDF; is that correct?
18
A.
Yes, sir.
19
Q.
And that could have been printed out if it
20
wasn't --
21
A.
22
at the department of ed.
23
Q.
24
as well, correct?
That's the same sort of PowerPoint that you'd
Turn to page 19.
Is that a PowerPoint
It could have been.
It's publicly available
But it was part of this e-mail, or document,
64
A.
Yes.
Q.
Any reason why it wasn't produced?
A.
No, sir.
Q.
Turn to page 50.
A.
(Witness complies.)
Q.
What is this document?
something you receive from the department of
education?
A.
Is it an e-mail or
If so, how do you receive it?
This was information about -- from the West
10
Virginia assessment portal.
11
Q.
Uh-huh.
12
A.
That is available for anybody who clicked in
13
to look at it.
14
Q.
People who have access to it?
15
A.
Yes.
16
Q.
Not any member of the public, but someone in
17
the school systems, I take it; is that correct?
18
A.
Yes, sir.
19
Q.
And this has a PDF attachment to it, Test
20
Delivery System User Guide?
21
A.
Yes, sir.
22
Q.
That would be a public record?
23
A.
To the best of my knowledge, it would be.
24
Q.
Next page.
65
A.
(Witness complies.)
Q.
PDF, TIDE User Guide?
A.
Yes, sir.
Q.
What is that?
A.
It's another component of the West Virginia
assessment portal.
Q.
communication you received?
A.
Yes, sir.
10
Q.
That would be a public record as well?
11
A.
To the best of my knowledge, yes.
12
Q.
Next page, page 52.
13
A.
(Witness complies.)
14
Q.
PDF, Teacher Hand Scoring System User Guide.
15
And this PDF was attached to this document or
Do you see that?
16
A.
Yes.
17
Q.
That would be a public record as well?
18
A.
Yes, sir.
19
Q.
Next page, page 53.
20
A.
(Witness complies.)
21
Q.
It doesn't say here.
22
System User Guide, was that a PDF or --
23
A.
Yes, sir.
24
Q.
Would that be a public record?
This Online Reporting
66
A.
Q.
Page 54.
A.
(Witness complies.)
Q.
System Requirements, that's a PDF as well,
correct?
A.
Yes, sir.
Q.
Do you know what that document was?
A.
It had the technical specifications, which
Mr. Riddle would have used to install the secure
10
browser, was my understanding.
11
Q.
12
secure browser is?
13
A.
The installation process, yes.
14
Q.
Potentially information about the
15
print-on-demand function?
16
A.
17
information was considered in there.
18
Q.
19
information that Mr. Riddle would have been provided
20
about the secure browser?
21
A.
Yes.
22
Q.
Potentially talking about what you can and
23
cannot access?
24
A.
That would provide information about what the
I would be reluctant to say if that
But it's part of the technological
Yes, sir.
Uh-huh.
67
Q.
me you don't know.
A.
was the installation of the secure browser.
Q.
And that's a public document?
A.
Yes, sir.
Q.
Page 55, User Role PDF.
8
9
Is that -- and if you don't know, just tell
I seriously -- I don't know.
I believe it
What is that document?

A.
That document specifies the role of the
10
district test coordinator, the school coordinator,
11
the test examiners.
12
Q.
Public document?
13
A.
Yes, sir.
14
Q.
Page 56, Technical Specification Manual.
15
Was that a PDF?
16
A.
Yes, sir.
17
Q.
What was that document?
18
A.
Again, it related to Mr. Riddle's work in the
19
installation of the secure browser.
20
Q.
21
information about the browser and how the test is
22
provided from the company, potentially?
23
A.
Potentially about the installation, right.
24
Q.
That would have specific technical
68
A.
Yes, sir.
Q.
Page 57, are those PowerPoint-type
presentations again?
A.
Yes, sir.
Q.
Look at page 64.
User Role 2014-15 final PDF."
That says, "West Virginia
Do you see that attachment?
A.
Yes, sir.
Q.
Do you know what that is?
10
A.
It's the same User Role document that was
11
provided earlier.
12
Q.
13
refresh my memory.
14
A.
15
the West Virginia portal.
16
department of education.
17
Q.
I understand.
18
A.
Uh-huh.
19
Q.
So we -- when we were going through the
20
earlier pages, we talked about this PDF?
21
A.
Right.
22
Q.
Okay.
23
document?
24
A.
When you say "provided earlier," help --
When you asked about -- one was located at

This was sent out from the
Okay.
That would have been a public
Yes, sir.
69
Q.
A.
(Witness complies.)
Q.
You see Interim Quick Guide PDF?
A.
Yes, sir.
Q.
That -- I take it that description next to it
tells me what it is?
A.
Yes, sir.
Q.
A.
10
Q.
11
A.
(Witness complies.)
12
Q.
Do you see, towards the top third, there's --
13
I think there's two PDFs listed.
14
Do you see that?
15
A.
Yes, sir.
16
Q.
Request to Utilize Other Personnel for West
17
Virginia General Summative Assessment.
18
Do you know what that document is?
19
A.
20
beyond the regular classroom teacher in the
21
assessment, it has to be submitted to the department
22
of education for approval.
23
24
It's a form, that if we would use someone
Ohio County never uses that form.

Q.
Okay.
If you could look at page 115.
70
A.
(Witness complies.)
Q.
The attachment is noted about 60 percent of
the way down.
A.
Yes, sir.
Q.
What would that be?
A.
It was a document that just -- I think was
used for district test coordinators, to kind of
organize all of the information that was available in
the West Virginia portal.
Do you see it says, "Portal updates"?
Is that a document?
10
Q.
11
the West Virginia portal," so I'm clear, what's the
12
West Virginia portal?
13
A.
14
students, school authorities and the test examiners
15
to literally click on the tab and then go into the
16
system to perform the functions that are necessary.
17
Q.
Your prior answers are saving a lot of time.
18
A.
That's good.
19
Q.
I'm not having to go through every single one
20
of them.
21
And when you say "information available in
The West Virginia portal allows parents and
I'm trying to streamline it.
If you could turn to 153.
22
A.
(Witness complies.)
23
Q.
That attachment there towards the top, it
24
says, "Crosswalk."
71
Do you know what that is?
A.
the department of ed put together that
cross-referenced, if we quickly needed to find
something; the TAM -- is the Test Administration
Manual.
Q.
Manual is part of what was produced?
A.
Yes, sir.
So -And if I'm right, the Test Administration
Yes, sir.
10
these documents.
11
Q.
12
It was a single-page document that
And there's a lot of redundancy in
Yes, there is.

If you could look at 163.
13
A.
(Witness complies.)
14
Q.
That's a PDF listed there, correct?
15
A.
Yes, sir.
16
Q.
17
A.
It's a document that helps our teachers
18
complete the hand scoring of items on interim
19
assessments.
20
Q.
And that's a public record?
21
A.
To the best of my knowledge, yes, sir.
22
Q.
Page 164.
23
A.
(Witness complies.)
24
Same thing.
72
Q.
Same thing?
A.
Uh-huh.
Q.
And that would be a public record?
A.
To the best of my knowledge, yes, sir.
Q.
Look at page 184.
A.
I'm sorry?
Q.
I'm sorry.
184.
A.
Thank you.
(Witness complies.)
Q.
Am I right, that's the document you told me
10
Ohio County Schools doesn't use?
11
A.
We do not use that document.
12
Q.
185.
13
A.
(Witness complies.)
14
Q.
It says, "Assessment Scribe Verification
15
Form."
16
A.
Yes, sir.
17
Q.
What's that?
18
A.
If a student would require a scribe, based on
19
upon an IEP accommodation, it would be the form
20
that's completed.
21
Q.
22
correct?
23
A.
I had one scribe for one student on an IEP.
24
Q.
Okay.
And Ohio County Schools didn't need that,
Page 186, Security Incident Log.
73
A.
Yes, sir.
Q.
What is that?
A.
It's a document provided that, if there was
an impropriety, an irregularity or a breach during
testing, that my test administrators, school
coordinators, principals, and I would have used to
record such an incident.
Q.
And that form is a public record?
A.
To the best of my knowledge.
10
Q.
On page 187, is that the same form,
11
different --
12
A.
It's the same form.
13
Q.
Okay.
14
A.
Yes.
15
Q.
Page 189, Students Not Tested Log.
16
Looks like a different format?
That's public record?
17
A.
18
Q.
And that's a form?
19
A.
Yes, sir.
20
Q.
And would that be used for both students who
21
opt out and then students who go on vacation, are
22
sick; all on that same form?
23
A.
No, sir.
24
Q.
Okay.
74
A.
have used, that if Dr. Vargo was absent that day, it
was noted that she was not present for the test that
day, and kind of told all of our teachers to keep
track and make sure she comes to a make-up session
and completes the test.
Q.
You confused me when you said "Dr. Vargo."
A.
She was my example.
Q.
Okay.
10
A.
Didn't want to name any children in the
11
school.
12
Q.
13
This was a document that the teacher would
I understand.
I appreciate that.
But it was used for students?
14
A.
Right.
15
Q.
Okay.
16
document?
17
A.
Right.
18
Q.
19
A.
(Witness complies.)
20
Q.
This PDF says, "Apple and Smarter
21
Assessments."
22
190 is the same thing, just an Excel
Do you know what that document was?
23
A.
198?
24
Q.
198, yes.
75
A.
we were not using iOS 8.1.3 configuration.
Q.
any Apple products?
A.
Not to my -- no, sir.
Q.
If you could look at page 204.
A.
(Witness complies.)
Q.
Says, "ELA Blueprint PDF"?
A.
Yes, sir.
10
Q.
Is that a public record?
11
A.
12
Q.
Turn to page 208.
13
A.
(Witness complies.)
14
Q.
That's a math blueprint --
15
A.
Yes, sir.
16
Q.
-- PDF?
17
I do not know what that document is because
Basically, Ohio County Schools was not using
That's a public record?
18
A.
19
Q.
Okay.
20
A.
(Witness complies.)
21
Q.
It says, "Smarter Balanced Mathematics,
22
General Rubrics Final."
23
24
Turn to page 210, please.
Do you see that?

A.
Yes, sir.
76
Q.
A.
I believe this would be the rubric that they
would use to score the math performance task and
would have been used by our teachers to get a general
sense of what a general score of 4, 3, 2 or 1 on the
math performance task would be.
Q.
A.
Q.
It says on there, it says, "Smarter
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Balanced"?
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A.
Yes.
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Q.
Do you see that?
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A.
I do.
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Q.
Do you know why it uses that term instead of
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West Virginia General Summative Assessment?
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A.
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Virginia used the Smarter Balanced mathematics and
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English language arts content as part of the West
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Virginia General Summative Assessment.
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Q.
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Freedom of Information Act request, or hear about the
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day I filed one asking for all information related to
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Smarter Balanced materials?
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A.
It would be my understanding that West
I mean, are you aware, before I filed this
Yes, sir.
77
Q.
And I received nothing?
A.
Because at that time, I did not have
knowledge that they had contracted to use those
items.
Q.
Okay.
A.
And my information on that day is what I
provided for you.
Q.
I appreciate that.
Page 211.
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A.
(Witness complies.)
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Q.
That's a PDF regarding the Smarter Balanced
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Scoring Guide?
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A.
Yes, sir.
14
Q.
Is that a public record?
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A.
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Q.
215.
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A.
(Witness complies.)
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Q.
That's Opening a Test Session PDF?
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A.
Yes, sir.
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Q.
And what does that describe?
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A.
I would be hesitant to comment because we did
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not use that document.
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Q.
Oh, you did not use that document?
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A.
No.
Yes, sir.
78
Q.
Okay.
A.
(Witness complies.)
Q.
Says, "Accommodation Guidelines March 2015,
Smarter Balanced."
217.
Do you see that?
A.
I do.
Q.
A.
It would be the general guidelines provided
for the universal tools and supports and
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accommodations provided in the online testing.
11
Q.
12
what's that referring to?
13
A.
14
receive accommodations, which give them access to the
15
content.
16
Q.
17
information about print on demand?
18
A.
19
again, was in the test administration manual.
20
Q.
All right.
21
A.
I think this is just a smaller, cleaner
22
version, if I recall.
23
Q.
24
A.
When it uses the term "accommodations,"
Students on individualized educational plans
So it would be in reference to that.
And that could have potentially had
It could have, but the same information,
79
Q.
Page 239.
A.
(Witness complies.)
Q.
That's a document, says, "Letter to parent
who request to opt out"?
A.
Yes, sir.
Q.
Did Ohio County Schools use that document?
A.
We did not use that document.
Q.
Did you have any students in Ohio County
Schools that opted out?
10
A.
Yes, sir, we did.
11
Q.
This document was a public record?
12
A.
13
May I?
14
Q.
Sure.
15
A.
Many of these things that you are
16
referencing, what they were doing was trying to make
17
a one-stop shop for the district personnel, and so
18
these are available, and there's a lot of redundancy
19
built here.
20
location, that's what you're seeing here.
21
Q.
Okay.
22
A.
(Witness complies.)
23
Q.
The attachment is, Opening a Summative Test
24
Session.
So as they added them to the one
252.
80
Is that the same document that wasn't used?
A.
It's the same document.
Q.
289.
A.
(Witness complies.)
Q.
It says on the attachment, "Technology
Requirements Presentation."
Is that a PowerPoint?
A.
That would be a PowerPoint.
Q.
That's different than the document we talked
10
about before?
11
A.
12
MR. DELK:
13
14
15
Yes.
We're done with that.
Pat, I can make this easy or you can make it

easy.
Is the only exemption you're claiming under
16
the statue, academic examination?
17
my last bullet point.
18
19
20
Because that was
I don't need to go into it with her if that's

the only exemption being claimed.
MR. CASEY:
Well, you know, in the
21
answer, I referenced the entirety of the Freedom Of
22
Information statute.
23
MR. DELK:
24
MR. CASEY:
Right.
I mean, that's the primary
81
one.
question.
exemption upon which we are relying.
I mean, at the moment, I can't answer the

And that is -- but that is the primary
BY MR. DELK:
Q.
Freedom of Information Act has a number of
exemptions.
8
9
Ms. McGuier, let me ask you, then:
Have you reviewed the act at all?

A.
10
I have not.
MR. DELK:
Have not.
11
I'll take my chances.
12
MR. CASEY:
13
Probably a pretty good
guess.
14
15
The
MR. DELK:
That's all the questions I
have for you.
16
THE WITNESS:
17
MR. DELK:
Thank you.
You have the opportunity to
18
review your transcript and make whatever changes you
19
think are necessary and provide that back to the
20
court reporter, and that's your right to do.
21
You can discuss it with your attorney,
22
whether you want to exercise that right or waive that
23
right.
24
MR. CASEY:
She'll read and sign.
82
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- - (Whereupon, at 11:43 a.m. the deposition

was concluded and signature was not waived.)
- - -
83
September 25, 2015
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Patrick S. Casey, Esquire

CASEY & CHAPMAN, P.L.L.C.
1140 Chapline Street
5
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RE: Delk vs. Ohio County Board of Education

Circuit Court of Ohio County, WV
Deposition of SUE ELLEN McGUIER
7
Dear Mr. Casey,
8
9
At the conclusion of the above deposition, the

witness did not waive signature. Therefore, I have
enclosed herein a copy of the transcript.
10
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Please make arrangements for the witness to read,

inspect and sign the transcript. She may enter the
changes and/or corrections she wishes to make, if
any, on page 84. She is then to sign page 85 before
a notary public.
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Once signature has been obtained, please provide the

executed Errata page and signature page to Attorney
Delk to be attached to the original transcript
already in his possession, and a copy to all counsel
of record. Also, at your convenience, please provide
me a copy for my file.
If this is not accomplished within 30 days, the
original transcript will be considered certified as
is. A copy of this letter is being attached to the
original transcript and all copies and is considered
to be a part of the transcript. If you have any
questions, please contact me.
20
Sincerely,
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Victoria J. Bostic
Registered Professional Reporter
Enclosure
cc: All counsel of record (w/enc.)
84
DEPOSITION OF:
CHANGES AND/OR CORRECTIONS
2
3
SUE ELLEN McGUIER
PAGE
LINE
CHANGE/CORRECTION
REASON
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_____________There are no changes (if applicable.)
85
I, SUE ELLEN McGUIER, having read the foregoing
deposition, hereby certify that all corrections that
I desire to make, together with my reasons for such
corrections, appear on the preceding page, and I
further certify that the foregoing deposition is a
true record of my testimony.
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____________________________________
SUE ELLEN McGUIER
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_____________________________________
Date
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_____________________________________
Notary Public
My Commission Expires:
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_____________________________________
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STATE OF WEST VIRGINIA :

: SS:
COUNTY OF OHIO
:
C E R T I F I C A T E
I, VICTORIA J. BOSTIC, Registered

Professional Reporter and Notary Public within and
for the State of West Virginia, duly commissioned and
qualified, do hereby certify that the within-named
witness, SUE ELLEN McGUIER, was by me first duly
sworn to testify to the truth, the whole truth and
nothing but the truth in the foregoing cause; and the
testimony then given by the witness was by me reduced
to stenotype in the presence of the witness;
afterwards reduced to Computer Aided Transcription
under my direction and control; and that the
foregoing is a true and accurate transcription of the
testimony given by said witness.
I further certify that the testimony was
taken at the time and place in the foregoing caption,
and was completed without adjournment.
I further certify that I am not a relative,
employee of, or attorney for any of the parties; I am
not a relative or employee of any attorney of any of
the parties, or financially interested in the event
of this action.
I further certify that I am not, nor is
the court reporting firm with which I am affiliated,
under a contract.
IN WITNESS THEREOF, I have hereunto set my
hand and affixed my seal of office at Wheeling, West
Virginia, on the ______ day of________________, 2015.
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__________________________
VICTORIA J. BOSTIC
Registered Professional
Reporter and Notary Public
within and for the State of
West Virginia

Sue Ellen McGuier Deposition - Delk v. Ohio County (WV) Board of Education

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Sue Ellen McGuier Deposition - Delk v. Ohio County (WV) Board of Education

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IN THE CIRCUIT COURT OF OHIO COUNTY

CIVIL ACTION NO.

OHIO COUNTY BOARD OF

On Behalf of the Plaintiff:

David L. Delk, Jr., Esquire

On Behalf of the Defendant:

SUE ELLEN McGUIER

Plaintiff's Notice of Rule 30(b)(7)

4-7-15 letter from Mr. Delk to Dr. Vargo

Individual Student Report, test scores

5-1-15 letter from Mr. Casey to Mr. Delk

Excerpt - Online Test Administration Manual

SUE ELLEN McGUIER

a witness herein, called for examination by the

plaintiff, having been first duly sworn, as

hereinafter certified, was deposed and said as

Sue Ellen McGuier.

Where do you reside?

I reside at 108 Fernwood Avenue, in Wheeling,

And who is your employer?

Ohio County Schools.

How long have you been with Ohio County

What's your current position with Ohio County

Would you state your full name for the

I'm am the director of assessment and federal

How long have you been in that position?

This is my eighth year in that position.

When you started with Ohio County Schools, in

1986, what did you start out as?

Street then-junior high.

I started as an English teacher at Bridge

How long were you at Bridge Street as a

Until 1993; does that sound right?

What was your next position?

English teacher at Wheeling Park High School.

How long were you at Wheeling Park?

Until I came to the board office eight years

Teacher at Wheeling Park the whole time?

Describe for me what your role is as the

director of assessment and federal programs for Ohio

Ohio County Schools follows the West Virginia

My responsibilities include making sure that

management of academic performance plan.

responsibilities with federal programs.

as they relate to schoolwide improvement efforts and

to improving teacher learning and teacher quality for

What responsibilities do you have with regard

Overseeing the Title I and Title II programs

(Whereupon, Deposition Exhibit No. 1

marked for purposes of identification.)

which is plaintiff's Notice of Rule 30(b)(7)

Hand you what's been marked as Exhibit 1,

Have you seen this document?

And are you the designee of Ohio County

Schools today for the topics that are listed on this

And you're prepared to address all 13 of

What documents did you review?

Policy 2340 from the West Virginia Department

Yes, I am, to the best of my abilities and my

What did you do to prepare for this

Met with Mr. Casey and essentially reviewed

Do you have that with you now?

May I see that?

Are these your notations?