The parents of a handful of students who were unable to upload responses to online Advanced Placement exams last week have filed a federal lawsuit against the College Board, which owns the tests. The plaintiffs allege that the organization is guilty of breach of contract, gross negligence, and violating the Americans With Disabilities Act, among other claims.
The National Center for Fair & Open Testing, known as FairTest, joined the plaintiffs in seeking punitive and compensatory damages “in an amount that exceeds $500 million.” The lawsuit, which seeks class-action status, also names as a defendant the Educational Testing Service, which develops, administers, and scores AP exams.
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As The Chronicle reported last week, test takers around the world reported technical difficulties during the first five days of Advanced Placement exams, which students are taking online at home this month because of the pandemic. The most frequently cited problem was an inability to submit responses to completed questions.
The College Board has said that less than 1 percent of test takers each day were unable to submit their answers because of technical challenges. But some high-school teachers and college counselors reported that that 10 to 20 percent of their students had been unable to upload their responses.
“Even if only 1 percent of test takers could not transmit their answers because the College Board’s technology was not ready for prime time, at least 20,000 students were affected,” Robert A. Schaeffer, FairTest’s interim executive director, said in a written statement.
The other plaintiffs are not named in the lawsuit. One is the mother of a high-school junior who successfully submitted answers to the Calculus AB exam last week. The next day, while using the same computer and browser to take his AP chemistry exam, he received an error message stating that his submission was not received. He is unable to take the makeup exam because of a scheduling conflict.
Another plaintiff is a high-school senior with several learning disabilities. After his mother was unable to find a school to provide test-taking accommodations, she arranged for his high-school counselor to proctor his exam at a high school, “making access challenging and unduly burdensome,” the lawsuit says.
A third plaintiff is a mother of a student whose “severe test anxiety,” the lawsuit says, was heightened by “rushed and condensed conditions” of the take-from-home exams, which students had 45 minutes to complete. She was unable to complete her AP English exam during the allotted time last week.
The fourth plaintiff is a mother whose son uploaded a response to the first question on the AP chemistry exam, but received an error message when he tried to upload his response to the second one. The student, who saved his responses, including his response to the second question, “requests that the College Board accept his work and grade his test answers.”
After the first week of the exams, which will continue through Friday, the College Board created a backup email-submission process for students who encounter problems. That option, however, was not available to test takers who hit snags last week; the College Board told them that they could take a makeup exam in June. The plaintiffs seek to compel the College Board to score their answers.
The lawsuit was filed by a lawyers at Baker, Keener & Nahra LLP, in Los Angeles, and the Miller Advocacy Group, a Newport Beach firm that represents students with disabilities. The plaintiffs say they are suing on behalf of all students who “did not have fair and equal access to, or were not able to complete, the 2020 AP exams as a result of the College Board’s decisions prior to the administration of the exams.”
They also allege that the College Board ignored warnings that the take-at-home exams would discriminate against underresourced students and those with disabilities.
The lawsuit, which was filed in the U.S. District Court for the Central District of California, includes a warning about future exams. “The College Board,” the lawsuit says, “intends to move all of its assessments to an at-home format, including the SAT; however, this year’s AP exam administration makes it perfectly clear that until the technical issues, the digital divide, and other inequities are adequately addressed, it cannot do so.”
In a written statement, Peter Schwartz, the College Board’s general counsel and chief risk officer, described how the organization redesigned its Advanced Placement exams this spring after a national survey of AP students revealed that “an overwhelming 91 percent” wanted to take the tests at home instead not taking them at all. Students who couldn’t submit test scores next week, he explained, could still take a makeup exam.
“This lawsuit is a PR stunt masquerading as a legal complaint being manufactured by an opportunistic organization that prioritizes media coverage for itself,” Schwartz wrote. “It is wrong factually and baseless legally; the College Board will vigorously and confidently defend against it, and expect to prevail.”
In an email to The Chronicle on Wednesday afternoon, Schaeffer, at FairTest, said that his organization did not initiate the lawsuit: “We simply compiled complaints and stories for” the Miller Advocacy Group, which had been concerned about testing access issues, including disability accommodations, on the take-at-home AP exams. He said that he was surprised when the plaintiffs’ lead lawyer asked about the possibility of listing FairTest as a plaintiff.
Complaints like those FairTest has been compiling kept circulating on Wednesday. In the hours after the lawsuit was announced, a dozen parents emailed The Chronicle to share their frustrations. Some said that technical difficulties were continuing.
Joe Zoeckler, in Middleburg Heights, Ohio, said his son had no problems uploading his answer to the AP psychology exam’s first question on Tuesday. But when he tried to upload his answer to the second question, the system “glitched,” Zoeckler said. Then a page of instructions appeared, explaining how to email the answers.
The father took a screenshot of those instructions, which said: “You must email your responses immediately.” The College Board has indicated elsewhere that students must email their responses within 10 minutes of the end of the exam. “But nowhere on the page,” the father said, “did it say he had 10 minutes to respond.”
He offered a vivid description of his son’s experience with the backup email-submission process: “He had to figure out what they wanted him to do, figure out how to separate his answers into two files (because they wanted them submitted separately!), download his Google docs into a Word document, then open his e-mail, then attach and send each answer in two e-mails.”
Finally, after emailing his responses, the student received an automated message that said his answers would be graded if he sent them within 10 minutes of the end of the exam. But judging by the time stamp of his emailed submissions, the task had taken at least 15 minutes.
If you’re not sure if you have met all the requirements for email submissions, the automated message said, “the safest thing for you to do is to request a makeup exam.”
That frustrated Zoeckler, who said he and his son would wait until Thursday to see if the College Board sends any further messages about the status of his submissions before deciding what to do. Test takers who aren’t able to submit answers have 48 hours to request a makeup exam.
“We’re kind of in limbo because there’s no clear explanation of what you’re supposed to do here,” Zoeckler said. “It just seems like they’re just kind making it up as they go.”
Read the lawsuit here:
