The National Merit Scholarship Corporation has used legal pressure to stop an independent college counselor from publishing the state-by-state cutoff scores for its prestigious scholarship program.
Nancy Griesemer, the counselor, says she wasn’t looking for trouble, just pursuing her favorite hobby with the help of a laptop computer. Ms. Griesemer, 59, works from her home, in Oakton, Va. On weekday mornings she sits down at her dining-room table to write. With Tom, her arthritic tabby cat, perched beside her, she types short entries about college admissions trends, which she posts on her blog, College Explorations, as well as Examiner.com, a vast online hub for bloggers.
All told, Ms. Griesemer gets between 150 and 250 page views per day, not bad for someone who doesn’t write about politics or sex. It’s a safe bet that most of her readers are local high-school students and their parents.
Recently, someone else started reading her blog. That someone works for the National Merit Scholarship Corporation, which conducts the annual competition for its high-profile National Merit Scholarships. Based in Evanston, Ill., the privately financed nonprofit organization is a powerful—and controversial—player in the realm of selective admissions. Ms. Griesemer characterizes the group this way: “It appears that they go after people who are critical of them.”
An Unexpected Call
In late January, Ms. Griesemer received a telephone call from Eileen Artemakis, the corporation’s director of public information. Ms. Artemakis asked Ms. Griesemer for the name of her lawyer. The counselor was stunned. “What’s the problem?” she asked.
The answer: the blog entry Ms. Griesemer had published on January 26. In that post, she described how the National Merit Scholarship program works. The corporation uses just one measure, PSAT scores, as the “initial screen” to determine which students are eligible for the scholarships. The corporation uses a specific methodology to ensure an equitable geographic distribution of the awards, which means that the cutoff scores vary from state to state.
In her post, Ms. Griesemer explained that a student in Massachusetts needs a higher PSAT score than a student from Wyoming does. “Unfair?” she wrote. “Maybe.”
Ms. Griesemer also listed the 2010 minimum qualifying scores for each state, which range from 201 to 221 (on the PSAT’s scale of 60 to 240), according to information she compiled. The National Merit Scholarship Corporation does not release those data to the public, though it does publish the information in its “Guide to the National Merit Scholarship Program,” mailed each summer to high schools throughout the nation. Test takers are informed only of the qualifying score in their own states. “Surely,” Ms. Griesemer writes of the variances among state qualifying scores, “there must be a better way.”
Ms. Griesemer, who says she has never seen the guide, obtained her information from other Web sites, including College Planning Simplified. It was the first site that came up in a Google search, says Ms. Griesemer, who later double-checked the numbers on the Web site College Confidential‘s discussion board, where various commenters had posted the minimum scores in their respective states.
‘Misleading to the Public’
In other words, the cutoff scores are hardly a secret. Still, Ms. Griesemer says Ms. Artemakis told her that she had published proprietary data. Although Ms. Artemakis did not ask Ms. Griesemer to remove the information, she told the consultant that she would soon hear from the corporation’s lawyer.
Last Thursday, Ms. Griesemer received a letter from J. Kevin Fee, a lawyer in the Washington, D.C., office of Morgan Lewis. Mr. Fee wrote that Ms. Griesemer had used proprietary data from the corporation’s “copyrightable materials,” referring to the guide it sends to high schools. He also wrote that her posts contained incorrect information: “Using inaccurate ... information out of context is misleading to the public and highly damaging to NMSC.”
The letter urged Ms. Griesemer to remove the data, as well as links to the National Merit Scholarship Corporation, from her posts. “Your unauthorized posting of them without clear explanation or any ability to confirm their accuracy is a serious problem,” the letter says, “and doing so to benefit your personal consulting business is unlawful under various federal and state laws.” Which laws those are, the letter does not say.
Ms. Griesemer did not think that she had done anything wrong, but she did not want to get sued. “They scared me,” Ms. Griesemer says. “This is a page out of the bully’s handbook.” Although she did not pull her posts from the Web, she removed all the cutoff scores, as well as each mention of the National Merit Scholarship Corporation and its scholarship program.
Copyright’s Reach
Although the letter achieved its intended effect, several lawyers contacted by The Chronicle described the corporation’s assertions as questionable. “It sounds pretty outrageous,” said Greg Beck, a lawyer with the Public Citizen Litigation Group, in Washington, who works on free-speech and intellectual-property cases. Mr. Beck described the letter as “inconsistent” in asserting that Ms. Griesemer’s post was both inaccurate and a copyright infringement.
“It’s public information,” Mr. Beck said of the data. “You can’t stop someone from relaying a fact to someone else.”
James Grimmelmann agreed. “Facts are emphatically not copyrightable,” said Mr. Grimmelmann, associate professor at New York Law School who teaches courses on intellectual property and legal issues arising on the Internet. He believes that the corporation would have trouble arguing that its data constitute a trade secret, especially because it widely distributes the information to high schools. “All she’s done,” he said, “is to look at information that’s available publicly, and tried to see how it works.”
Ms. Artemakis, the corporation’s public-information director, told The Chronicle that the corporation informs high-school officials that the data they receive is for their use only. “We just don’t want it out there for public consumption,” she said, “because there’s a lot of confusion and invalid conclusions that are made based on that information.”
What kind of conclusions? That the scores might be used to make unfair comparisons about the quality of schools in different states, for one, Ms. Artemakis said. She conceded that there are other ways for students and parents to share information about the cutoff scores. “People try and circumvent us,” she said, “but if someone were to call from Texas and ask what the qualifying score was, we would tell them.” Nevertheless, the corporation would not tell that caller about the qualifying scores in Colorado, Oklahoma, or any other state, she said.
‘A Negative Tone’
Although Ms. Artemakis said Ms. Griesemer reached “invalid conclusions” in her post, she declined to cite specific examples. “I can’t say what it was, but she did take a negative tone,” she said. As for why the corporation tapped its lawyer to contact her, she said: “We believe it’s a matter of proprietary information, and maybe we just wanted to be strong about it.”
Last week, Ms. Griesemer contacted Robert A. Schaeffer, public-education director for FairTest, a testing watchdog group that has long challenged the scholarship program’s eligibility rules. Several years ago, Mr. Schaeffer’s group brought a gender-bias complaint against the College Board and the Educational Testing Service, which run the PSAT with the National Merit Scholarship Corporation. That complaint prompted changes in the exam, yet Mr. Schaeffer continues to chide the organization for not disclosing the racial and ethnic breakdown of students who receive its scholarships, which he and other critics contend disproportionately benefit white and Asian students from upper-income families.
After Ms. Griesemer contacted Mr. Schaeffer last week, he compiled his own list of state-by-state cutoff scores, which he posted on FairTest’s Web site on Monday.
“This behavior is bizarre, but consistent with past behaviors,” Mr. Schaeffer said of the National Merit Scholarship Corporation’s communications with Ms. Griesemer. “It really suggests that they’ve become quite defensive in the face of criticism. It’s as if they want to keep it secret because they’re concerned about what would happen if people knew how arbitrary and unfair the system is.”
In recent years, the National Merit Scholarship Corporation has drawn criticism from other stakeholders in the admissions field. In 2005, the University of California announced that it would pull out of the National Merit Scholarship program, citing concerns about the use of a single test score for eligibility. Last fall, the University of Texas at Austin announced that it would follow suit. Recently, a panel of experts on standardized testing convened by the National Association for College Admission Counseling called on the National Merit Scholarship Corporation to stop using PSAT cutoff scores to determine eligibility for its awards.
Before receiving the letter, Ms. Griesemer had planned to write about other aspects of the National Merit Scholarship program that trouble her. She thinks she will do that despite the letter she received last week.
“My view is that if you run a good program, administer it fairly, and are proud of the results, you don’t have anything to fear from the press,” she said. “Here they seek to squash a two-bit blogger who’s no threat to them.”