December 4, 2004 | By Diana Jean Schemo | New York Times

The College Board, which owns the SAT college entrance exam, is demanding that a nonprofit group critical of standardized tests remove from its Web site data that breaks down scores by race, income and sex.

The demand, in a letter to The National Center for Fair and Open Testing, also known as FairTest, accuses the group of infringing on the College Board's copyright.

"Unfortunately, your misuse overtly bypasses our ownership and significantly impacts the perceptions of students, parents and educators regarding the services we provide," the letter said.

The move by the College Board comes amid growing criticism of the exams, with more and more colleges and universities raising questions about their usefulness as a gauge of future performance and discarding them as requirements for admission. The College Board is overhauling parts of the exam and will be using a new version beginning in March.

FairTest has led opposition to the exams, and releases the results to support its accusation of bias in the tests, a claim rejected by test makers, who contend the scores reflect true disparities in student achievement. FairTest posts the information in easily accessible charts, and Robert A. Schaeffer, its spokesman, said they were the Web site's most popular features.

In its response to the College Board letter, which FairTest posted on its Web site on Tuesday, the group said it would neither take down the data nor seek formal permission to use it. FairTest has been publicly showing the data for nearly 20 years, Mr. Schaeffer said, until now without objection from the testing company, which itself releases the data in annual reports it posts on its Web site.

"You can't copyright numbers like that," Mr. Schaeffer said. "It's all about public education and making the public aware of score gaps and the potential for bias in the exams."

Devereux Chatillon, a specialist on copyright law at Sonnenschein, Nath & Rosenthal in New York, said case law supported FairTest's position. "Facts are not copyrightable," Ms. Chatillon said. In addition, she said, while the College Board may own the exam, the real authors of the test results are those taking the exams.

"The College Board cannot prohibit other people's use of the scores," Ms. Chatillon said. "That's especially true here, where FairTest is using the scores to criticize the test itself."

Chiara Coletti, a spokeswoman for the College Board, said the company was not trying to suppress test results. Though FairTest's use of the data may not be new, Ms. Coletti said: "No one ever brought it to our attention before. But if it comes to our attention, we have to protect our copyright."

The College Board's letter to FairTest also demanded that the group stop listing scores from the ACT, a competing college entrance exam that belongs to another company. But Ms. Coletti said that the College Board raised the issue of ACT scores in error. The paralegal who wrote the letter to FairTest mistakenly pasted the reference to ACT scores, along with one to SAT results, at the top of the letter, Ms. Coletti said.

Should FairTest seek its permission, she added, the College Board would most likely approve the group's use of the SAT data.

A spokesman for the ACT, Ken Gullette, said his company did not object to FairTest's use of the test scores, "as long as it's accurate."

While the College Board maintains that its sole concern is copyright protection, others suggest that more is at stake. Frank L. Matthews, publisher of Black Issues in Higher Education, said that last year the College Board demanded a fee for preparing special breakdowns of test scores by race and wanted to restrict the magazine's right to publish the findings. His magazine has reported on test scores and their impact on access to higher education.

"They knew that when we got the information we were going to present it in a way that was not going to show them in the best light," Mr. Matthews said.

But he said the deeper issues his magazine addressed were important, particularly for college-bound African Americans. "If the consequences are that people don't have a clear understanding of the impact of these test scores, they can't make informed decisions," he said.

Ms. Coletti, of the College Board, said the charge for providing the information and the demand that the magazine sign a licensing agreement restricting use of the data would have normally been waived for the news media. But in requesting the information, she said, the magazine checked a box on a form identifying itself as a research institute, not a publication, and so did not receive any special consideration.