The House and Senate broke gridlock Wednesday night on problems stemming from the results of troubled TNReady testing by passing legislation saying no “adverse action” would be taken against teachers, students or schools for poor test scores.

After an hours-long impasse, both chambers of the General Assembly agreed to language designed to let TNReady scores be placed in teachers’ files for purposes of seeking tenure and to ensure the state doesn’t lose tens of millions of dollars in federal funding. If scores benefit teachers, they also can be used in evaluations.

The General Assembly adjourned for the session after dealing with that matter and several other pieces of unfinished business as House and Senate leaders scurried back and forth trying to find compromise.

But first, Rep. John Mark Windle, a Livingston Democrat, argued the wording had not changed enough to keep flawed scores from botched testing from affecting teacher evaluations.

“What kind of validity is that test?” Windle asked, saying he received reports from teachers in his district last week saying they would be hurt by the legislation.

Testing woes started when a hacker and foul-up with Questar, the state’s vendor, caused chaos for students in grades 3-12 across the state last week as they tried to take the end-of-year exam. In some instances, students couldn’t log in, and in other cases essays disappeared into cyberspace when students tried to file their completed work.

Reports were coming in that school systems across the state were having trouble this week as well.

Despite Windle’s protests, House Democratic Caucus Leader Craig Fitzhugh argued the amended bill should satisfy the demands of House members and teachers worried about how breakdowns in the testing would affect their careers.

“This is language that would prevent any adverse action from being taken,” Fitzhugh said, contending the initial bill was OK and the new legislation would provide more backing.

Fitzhugh, a Democratic gubernatorial candidate, said problems came from the Tennessee Department of Education misinterpreting the legislation passed last week.

The Legislature hit an impasse as it prepared to adjourn for the year, even though both chambers passed bills last week restricting local systems from basing teacher employment and pay decisions on the results of the end-of-year testing. The sticking point: Data from the test scores could still be placed in teachers’ files for evaluations over a three-year period.

Senate Majority Leader Mark Norris said afterward the Senate didn’t hold up the process and instead restated Wednesday what it passed a week earlier.

“I think it’s just a function of the time it takes given the numbers of people involved to understand exactly where we are, and there was a lag time understandably, about a week there. But the Senate had already taken the initiative as it related to the testing situation and protecting teachers, holding them harmless,” said Norris, a Collierville Republican.

Lt. Gov. Randy McNally said the back-and-forth between the Senate and House for several hours on the General Assembly’s final day was unnecessary.

House members, though, held a different point of view, saying they wanted to change what they passed last week because the legislation would allow this year’s test scores to count for 10 percent toward teachers’ evaluations.

“We are committed to holding the teachers harmless with a testing system that’s not working as it should,” said House Majority Leader Glen Casada.

The House voted unanimously by voice early Wednesday to “hold” the state’s $37.7 billion budget until the matter was resolved, even though the document had already made it to the House Clerk’s Engrossing Office. The initial amendments dealing with TNReady were attached to the budget bill.

For a few hours, it appeared the Legislature would not adjourn until Thursday or Friday because of the disagreement over TNReady.

“I think it’s well worth us staying here an extra day or two to mitigate the disaster that teachers have dealt with every day in their class for the last 180 days,” state Rep. Andy Holt said during an emergency House Republican Caucus meeting.

Holt, a Dresden Republican, added House members might have to wait out the Senate in order to get what they want. Holt also pushed for a study on the impact of TNReady testing and for alternative testing for students.

House Majority Caucus Chairman Ryan Williams noted he was “frustrated” by the Senate’s refusal to agree on the matter. And after several minutes of discussing, the controlling party decided it would take a piece of legislation, make several amendments and send it to the Senate to see if it would concur.

In the midst of testing screw-ups last week, House Democrats called for the resignation of Education Commissioner Candice McQueen, and lawmakers from both sides of the aisle said Questar should be penalized for the problems.

During Wednesday’s Republican Caucus meeting on the House floor, Rep. Tim Rudd of Murfreesboro also said he felt the group should seek McQueen’s resignation. But Williams said he wasn’t ready to go that far.

The House and Senate also were held up over two constitutional amendments, one stating liberty comes from Almighty God and another designed to remove references to slavery from the state Constitution. The slow-down in Senate approval of those two measures held them up.

Besides lessening the effect of test scores on teacher evaluations, lawmakers also offered local school boards the option of counting the tests from zero to 15 percent on students’ final grades for the semester and gave school systems a year off from a letter grade, in addition to deciding not to count this year’s tests toward identifying schools as a “priority school” or assigning them to the Achievement School District.

In addition, the Legislature will require the test provider to reimburse local school systems for “misadministration” affecting scoring and put it in the position of a potential breach of contract.

State review sought

The ultimate decision came the day after Republican House leaders called for a review of the state’s TNReady testing vendor.

House Speaker Beth Harwell directed Rep. Jeremy Faison to request a Comptroller review of the TNReady assessments, saying by the Department of Education and Questar, which is working under a $30 million-a-year contract, need to provide more information about what happened.

“While we may have figured out a temporary fix for this year’s TNReady problems, there are still questions that need to be answered, especially related to the contract with the testing vendor,” Faison said. “We need to get all of the facts before us so we’re able to make decisions necessary to best benefit the futures of our students, teachers and school administrators.”

Said Harwell, “We owe it to our students and parents to ensure that their personal and confidential information is not compromised and what steps will be taken to ensure that information is not vulnerable. These assessments are important for accountability, and we need teachers, administrators, parents and students to have confidence in the integrity of the test.”

Faison wants the Comptroller’s Office to determine:

• Whether “clawback” provisions are available, financially or otherwise, for failures in testing enabling the state to penalize the vendor.

• Whether Questar is required by contract to “act in full faith and fidelity” to ensure test foul-ups are resolved.

• Whether Questar must protect all student testing under its contract and whether the state can take action if personal information is lost in a cyber-attack.

The Department of Education responded by saying protection of student data is its top priority and noted it is working with the Comptroller’s Office, Tennessee Department of Homeland Security, Tennessee Bureau of Investigation and the Davidson County District Attorney’s Office to make sure no data was compromised.

In addition, the department is tabbing a third-party vendor to investigate the cyber-attack and report to the Comptroller’s Office and TBI.

“We have regularly engaged the General Assembly as we have prepared for TNReady and informed them of how we were proactively planning for various risks that come with the online environment,” the department said in a statement. “Over the past two years, leaders from the department have met regularly with legislators at the Information Systems Council meetings to provide reports and updates on TNReady, and they shared with us in February that they felt confident enough in the steps we were taking that they wanted to release us from further oversight.”

The Education Department said it will continue “stand by” the steps it took along with local school districts to prepare for testing. During testimony before a joint House committee, McQueen said using paper tests would be a step backward and cause a burden on the state and local systems.

Sam Stockard is a Nashville-based reporter covering the Legislature for the Nashville Ledger. He can be reached at [email protected].