A class action lawsuit was filed against Educational Testing Services (ETS), the College Entrance Examination Board, and the College Board in relation to difficulties in administering the AP Exam. The plaintiffs, students registered to take the AP exams and the National Center for Fair & Open Testing (FairTest), sued the defendants because of their “failure to allow access to and failure to administer its Advanced Placement (AP) program properly” when students took the AP exams at home, “but with significant structural changes.”
Advanced Placement program exams are usually administered near the end of the school year; however, the COVID-19 pandemic has closed many schools nationwide, moving the AP exams to an online environment.
In addition to concerns over fairness, including “that the at-home AP exams would not be fair to students who have no computer, access to Internet or quiet workspaces from which to work, or to under-resourced students in general…questions remained about the availability and applicability of legally required accommodations for students with disabilities, the fair access to connectivity for all students, test security, and score comparability.”
On May 14, after 3 days of AP exams, “the College Board admitted that there was a measurable failure rate in uploading exams, and it attempted to change its policies going forward.” Moreover, “[r]eports of anywhere between 5% and 20% of examinees were unable to submit their responses through the at-home testing platform during the first three days of AP exams. One AP Coordinator reported a failure rate of 30%. Some students could only submit partial responses, and others could not even log on to take the exams.” The plaintiffs claimed that the College Board did not offer acceptable remedies to test fairly or for students who had technical issues with the AP platform. They said the College Board must address these issues of equality, access, and technology.
The at-home AP exam is administered online via computer, instead of the normal paper test; the electronic test is 45 minutes and the paper test is three hours long. Additionally, the same subject exam is given at the same time regardless of location; for example, noon in New York and 6 a.m. in Hawaii. The plaintiffs also cited the home environment as another potentially unfair factor, because “the testing environment can be unpredictable and distracting.” They argued that some of the issues that occurred with the at-home format should have been anticipated and resolved before exams were administered.
The plaintiffs alleged that the defendants did not address these issues prior to holding the exams at home. “Instead of changing the testing format to address the disparities among student testing environments, however, Mr. Coleman [the President of College Board] recommended that students explain their disadvantages to college admissions officers.” The first few days of exams “revealed the deep digital divide among AP test-takers, and it became clear how the revised exam format disproportionately impacted certain groups of students…A number of students suffered from technical glitches, timing issues,[and] issues with their computer software.” While the College Board reported a failure rate of 1 percent, schools and administrators reported between a 5-20 percent failure rate.
The plaintiffs additionally alleged that the new format has hurt students with disabilities, who were told they would need to use their own assistive technology that was compatible with the exam. However, the College Board would not be providing any assistance or aid, even if these would have been provided under normal test circumstances.
Students must upload images of their handwritten work. The College Board only accepts formats in JPG, JPEG or PNG image formats; certain devices, such as iPhone and Samsung store pictures in HEIC format, which is a smaller, condensed version of other photo formats. Therefore, students who submitted HEIC formatted photos received an error message and were unable to upload their responses. The College Board advises students to change the file format on their phones to ensure the file formats are compatible with the AP Exam.
In sum, the complaint accused The College Board of breach of contract; breach of the implied covenant of good faith and fair dealing; negligence; negligent misrepresentation; gross negligence; unjust enrichment; breach of implied in fact contract; breach of fiduciary duty; violation of Americans With Disabilities Act; violation of UNRUH Act – denial of opportunities for disabled and underresourced students; violation of Rehabilitation Act; unfair competition; and false advertising.
The plaintiffs have sought certification as a class action. The complaint was filed in the Central District of California. The plaintiffs are represented by Baker, Keener & Nahra LLP, as well as the Miller Advocacy Group.