Stockard on the Stump: ACT runs into hard time everywhere

February 11, 2022 6:30 am
Sen. Brian Kelsey. R-Germantown (Photo: John Partipilo)

Sen. Brian Kelsey. R-Germantown (Photo: John Partipilo)

ACT Inc., author of the college entrance exam dreaded by high school students nationwide, is hitting a wall nationally and in Tennessee.

The company was removed from a Tennessee bill last year that would have directed a state contract to it automatically, allowing only ACT WorkKeys National Career Readiness Certificate to be used to determine whether students are ready for a career. The amended version of the legislation eventually required competitive bids by the Department of Education, a move made amid questions about the constitutionality of requiring a copyright-protected product to be placed into state law.

ACT Inc. is also in the midst of a lawsuit with Worldwide Interactive Network of Kingston, Tennessee, claiming WIN committed trademark and copyright violations when it won a contract for work with the state of South Carolina, beating out ACT for a Career Ready Test.

WIN had worked with ACT in other states, and ACT claimed the competitor used its copyrighted material to obtain contracts.

Part of the lawsuit is on appeal. 

Sen. Brian Kelsey, who has never attended college in a Tennessee university, also reminded his colleagues that he’s licensed to practice law in front of the U.S. Supreme Court and they aren’t, so he knows what he’s talking about.

In California, ACT Inc. settled a class-action lawsuit and paid $16 million to disabled students who claimed the testing company violated their rights by telling colleges about their disabilities and blocking them from a crucial recruitment program, according to news reports. 

Meanwhile, legislation requiring colleges to use the ACT or SAT for student admissions ran into a hurdle this week in the Tennessee Senate, even though the state requires students to take the test and pays for it. 

Tennessee is putting $3.19 million toward ACTs in fiscal 2022-23 after paying $1.85 million for fall testing last year, according to the state budget office.

Thus, ACT stands to lose a big chunk of money if policy changes here and colleges drop it.

The University of Tennessee is the primary opponent of Sen. Brian Kelsey’s bill requiring colleges to use the test for admissions, contending it’s not a fair indicator of student success.

Universities across the nation have taken the same step, dropping the entrance exams during the COVID-19 pandemic and not renewing them, in part, because they’re considered culturally biased.

UT officials didn’t mention anything about the tests being racially insensitive during recent testimony. But Kelsey, a Germantown Republican and attorney, went off on a bit of a tangent when introducing the bill on the Senate floor this week, accusing UT of trying to be like Harvard and using the term “wokeism” to describe officials at both universities.

That is a piece of legislation that is bad for Tennessee students, bad for Tennessee colleges. The only people it's clearly good for is the company that runs the ACT.

– Sen. Jeff Yarbro, D-Nashville

In doing so, Kelsey reminded the august body that he is licensed to practice law before the Supreme Court and they’re not, so he knows what he’s talking about. No doubt, that won support.

Kelsey earned his bachelor’s degree at the University of North Carolina Chapel Hill and his law degree from Georgetown. Consequently, we have a guy who never stepped foot in a Tennessee college classroom trying to shove legislation down the throats of state institutions.

Some question whether this is a money grab by ACT Inc. as it battles to stay afloat. Its chief executive officer makes more than $700,000 a year, which is comparable to salaries of other testing CEOs, but if it can’t keep a near monopoly on college entrance exams, it could struggle to survive.

Sen. Jeff Yarbro questioned whether Kelsey's motivation in insistence on standardized tests at the University of Tennessee involves racism. (Photo: John Partipilo)
Sen. Jeff Yarbro questioned whether Kelsey’s motivation in insistence on standardized tests at the University of Tennessee involves racism. (Photo: John Partipilo)

Other senators were caught off guard by Kelsey’s outburst and came to UT’s defense, noting it is the “premier” land grant university in the state and should be given the opportunity to set its own admissions standards.

State Sen. Jeff Yarbro was miffed by Kelsey’s argument, in which he accused Harvard of “cherry picking” enrollment and leaving out students of Asian descent. Yarbro noted that the Senate debate “devolved” into something he’d never quite seen and questioned whether it was racially tinged.

“That is a piece of legislation that is bad for Tennessee students, bad for Tennessee colleges. The only people it’s clearly good for is the company that runs the ACT,” said Yarbro, a Nashville Democrat. “I don’t know why we want to do something that helps a big company but that neither parents, nor students nor any of the colleges think is a good idea.”

When it was clear Kelsey’s bill was set to go down in flames, calmer heads persuaded him to postpone the vote. He “rolled” it until Thursday, then “rolled” it again until next week. It could roll so far away it becomes invisible.

How inappropriate is it?

If you’re a frequent reader, you might remember last week’s blow-for-blow on a back-and-forth with House Speaker Cameron Sexton on legislation that would set up a process for parents to investigate school library books and curriculum to make sure they’re “age-appropriate” for their children.

Sexton’s office urged reporters to look at a list of books tweeted by country music star John Rich as well as a book called “Me, Earl and the Dying Girl.” If parents don’t feel comfortable reading those books to their children, they should probably be removed from school libraries, Sexton said last week.

And just to demonstrate it, he brought out that very book by award-winning author Jesse Andrews at the end of a Thursday press conference and challenged reporters to read it aloud. Being the adventurous kind, I said I would read it.

But when I reached the part about “eating p—-,” which stands for pizza, I hesitated and with a TV camera running and women in the gaggle, opted to keep the words in this fine literary work to myself.

The only thing I could think of was that the writing was weak at best.

Then again, if a 14-year-old is sitting by himself reading it, instead of having parents read it to him, big whoop. Sexton claimed it was on the shelves in several K-8 schools, and maybe it is. But it probably won’t be there for long in this climate, because some groups are removing books that don’t have nearly this type of language, just ideas that don’t suit

In contrast, Sexton says he disagrees with the removal of “Maus,” a Pulitzer Prize-winning book by Art Spiegelman about the Holocaust, from the reading curriculum in McMinn Count Schools.

He points toward legislation by Republican Rep. Sam Whitson of Franklin to create a state librarian and potentially have the state textbook commission work with librarians on the types of books placed in libraries.

Rep. Sam Whitson, R-Franklin, wants to create the position of state librarian and have the state textbook commission work with school librarians. (Photo: John Partipilo)
Rep. Sam Whitson, R-Franklin, wants to create the position of state librarian and have the state textbook commission work with school librarians. (Photo: John Partipilo)

“But there needs to be some oversight,” Sexton says “and instead of books just drop-shipped into a library and them not knowing, they think it’s approved and they put it on the shelf. And if your fifth-, sixth-, seventh-grader brought this home, would you think that’s appropriate.”

Democrats, of course, disagree.

Lists of books in Metro Nashville Public Schools have been online for years, they argue, making much of this a moot point. They also note kids have access to the Internet and all the sordid things it can offer, so if a student slips into a library to read some books, it might be a good thing.

State Rep. Vincent Dixie calls Republicans’ strategy “smoke and mirrors,” saying they’re questioning books that’ll never be read to a first- or second-grader.

“We have a very complex system of how a book gets into a library,” Dixie says. “And for them to feel like they’re sneaking in books and putting them in arbitrarily to try to get a kid to read ’em because they want them to say a word like ‘p—y,’ or ‘d–k’ or ‘a–’ or anal, I think that’s crazy.”

Dixie, who had more guts than I did, then apologized on behalf of the General Assembly for me being put in the position of reading those nasty words out loud. Colleagues say I did the right thing.

Stealing the governor’s clout

The House Education Administration Committee passed legislation this week that would strip six of the governor’s appointments on nine State School Board members and hand off three each to the speakers of the House and Senate.

The bill’s sponsor, Rep. Scott Cepicky, R-Culleoka, got a 9-6 vote to move the bill out despite opposition and heavy lobbying from the Governor’s Office. Word has it they were hammering committee members right up until the vote.

Lee downplayed the matter during a Thursday press conference, tiptoeing around appointments he clearly wants to keep to himself.

“The process that we have is a good one, confirmation by the General Assembly of appointments to that. That passed through in committee. There’ll be a process that goes on in the House and to the Senate and we’ll see where it goes,” he says.

In other words, he doesn’t want to share with Lt. Gov. Randy McNally or Speaker Sexton, and he thinks he can derail the bill.

Culleoka Republican Rep. Scott Cepicky threw his weight around, managing to derail Gov. Bill Lee’s appointment process for the State School Board.

Cepicky on Wednesday broached the idea that lawmakers were irritated with the Department of Education when it told the Government Operations Committee how it was going to enforce critical race theory rules, which keep teachers from straying off topic on questions of systemic racism.

Not a big fan of the Department of Education, Cepicky is worried that with the education commissioner and State School Board both appointed by the governor, the board will fall under undue pressure and alter “legislation’s intent,” putting too much power in the hands of the executive branch.

I want to apologize to Rep. Cepicky for saying recently he had the influence of a “gnat.” That was based on putting together an “army of three” to fight the Ford electric truck plant. He does have his moments of lucidity.

He wants a real confirmation hearing for these positions, instead of a five-minute meeting with candidates before the Legislature approves them.

“You’ve gotta have some balance in here, so that` we don’t get into a situation that one branch of government can control education,” Cepicky says.

In fact, this issue goes deeper. But we’ll get into that later.

Trouble in paradise

Hallway talk has it that a voucher bill enabling students to take state dollars to private schools if their district doesn’t hold in-class lessons for the state-required 180 days is moving out of a troublesome committee.

The vote count doesn’t look good in the House Education Instruction Committee, so it could be shifting to the House K-12 Subcommittee, which could then send it to the House Education Administration Committee and, finally, to a House floor vote. 

A cursory glance at the subcommittee shows it could pass 6-3.

However, opponents of the measure, which would affect the Achievement School District too, say it’s a clear sign of trouble if sponsors are having to play a shell game just to get out of a subcommittee. During an election year, it could be a death knell.

“All my rowdy friends have settled down”

The House passed a resolution this week honoring Hank Williams Jr. for his illustrious music career, including his rebound from a mountain fall in the mid-1970s. Shockingly, Republican Rep. Bruce Griffey of Paris sponsored it.

Passage didn’t come without some heartburn as Rep. Dixie pointed out Williams made an analysis of former President Barack Obama playing golf with then-House Speaker John Boehner and saying “it would be like Hitler playing golf with Benjamin Netanyahu,” Israel president.

Bocephus gets a nod! Rep. Griffey proposes honoring Hank Williams, Jr. (Photo by Terry Wyatt/Getty Images)
Bocephus gets a nod! Rep. Griffey proposes honoring Hank Williams, Jr. (Photo by Terry Wyatt/Getty Images)

Williams, who was removed as the Monday Night Football opening singer as a result, released a statement admitting it was an extreme comparison but stood by the comparison to Hitler.

Obviously, this got full Republican support and none from Democrats. It was pointed out that Dixie had it removed from the House consent calendar, which is typically for non-controversial items.

Which begs the question: Has Hank Jr. ever been anything but controversial? He’s still raising hell because it’s good for a hell raiser’s career.

“But nobody wants to get high on the town.”

If only my rowdy friends had settled down.


Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Sam Stockard
Sam Stockard

Sam Stockard is a veteran Tennessee reporter and editor, having written for the Daily News Journal in Murfreesboro, where he served as lead editor when the paper won an award for being the state's best Sunday newspaper two years in a row. He has led the Capitol Hill bureau for The Daily Memphian. His awards include Best Single Editorial from the Tennessee Press Association.