Valerie Strauss writes in the Washington Post about a class-action lawsuit filed against the College Board:
A class-action lawsuit has been filed in federal court on behalf of students who took online Advanced Placement tests last week and ran into technical trouble submitting their answers. It demands that the College Board score their answers instead of requiring them to retake the test in June, and provide hundreds of millions of dollars in monetary relief.
The lawsuit, dated Tuesday, says that students’ inability to submit answers was the fault of the exam creators, and it charges that the College Board engaged in a number of “illegal activities,” including breach of contract, gross negligence, misrepresentation and violations of the Americans With Disabilities Act. It also seeks more than $500 million in compensatory damages as well as punitive damages.
The College Board owns the AP program, although the AP tests are created and administered by the Educational Testing Service. Both of those organizations were named as defendants in the lawsuit, which was filed in a U.S. District Court in California.
Peter Schwartz, College Board Chief risk officer and general counsel, said in a statement: “This lawsuit is a PR stunt masquerading as a legal complaint being manufactured by an opportunistic organization that prioritizes media coverage for itself. It is wrong factually and baseless legally; the College Board will vigorously and confidently defend against it, and expect to prevail.” He also said, “When the country shut down due to coronavirus, we surveyed AP students nationwide, and an overwhelming 91 percent reported a desire to take the AP Exam at the end of the course. Within weeks, we redesigned the AP Exams so that they could be taken at home. Nearly 3 million AP Exams have been taken over the first seven days. Those students who were unable to successfully submit their exam can still take a makeup and have the opportunity to earn college credit.”
The College Board said last week that it had found the problems students faced submitting answers were largely caused by outdated browsers and students’ failure to see messages announcing the end of an exam.
This is the first time that AP tests have been given online at home, a result of the shutdown of schools because of the coronavirus pandemic. The tests were previously given at school.
But the College Board said it had surveyed students and that most wanted to take the tests online, noting that the scores can factor into college admissions decisions and that students can receive college credit for high scores. The online tests, in numerous subjects, were shortened from several hours to 45 minutes.
Critics had warned that online testing is not fair to students who have no computer, access to Internet or quiet work spaces from which to study and work, or to students with disabilities who do not have appropriate accommodations — challenges the College Board acknowledged and said it tried to ameliorate. Critics also questioned the validity of the shortened exams.
The lawsuit was filed by parents on behalf of students who could not submit answers, as well as by the National Center of Fair and Open Testing, a nonprofit organization known as FairTest that works to end the misuse of standardized tests. (The lawsuit cites a post on The Answer Sheet blog with news about the problems students were facing.) “
The College Board was warned about many potential access, technology and security problems by FairTest and other groups that had documented crashes when other computerized tests were introduced,” said FairTest interim director Bob Schaeffer. “Nevertheless, the board rushed ‘untested’ AP computerized exams into the marketplace in order to preserve its largest revenue-generating program when they could no longer administer in-school tests.”
The College Board, a nonprofit organization that operates substantially like a business, said that students last week took 2.186 million AP exams in various subjects during the first week of the two-week May testing window, and that “less than 1 percent of students were unable to submit their responses.”
The College Board did not provide the exact number of students who had problems but did note in an email that some students took more than one test. That makes it impossible for the public to know exactly how many students were affected.
Most of the students who had problems found that they could not submit all or some of their answers. Many took photos or videos of their responses, but the College Board told them their responses could not be scored and that they would have to retake their exams in June.
Then, on Sunday, the College Board announced that students taking exams during this week of testing could email responses if they found they had trouble submitting. Students who took the tests last week, however, could not submit their answers for scoring and still had to retake them in June.
The lawsuit asks that the College Board accept any test answers from last week’s AP tests that can be shown to have been completed in time by time stamp, photo and email.
It charges that the College Board ignored warnings that giving AP tests online would discriminate against students with disabilities and those who did not have access to technology or the Internet at home to take the exams.
The plaintiffs are seeking compensatory damages of more than $500 million and “punitive damages in an amount sufficient to punish defendants” and “to deter them from engaging in wrongful conduct in the future.”
The suit was filed by Phillip A. Baker from Baker, Keener & Nahra LLP in Los Angeles and Marci Lerner Miller from Miller Advocacy Group in Newport Beach.
Diane Ravitch's blog 
“We surveyed students and 91% said they wanted to take the test.”
HOW many students actually were asked in that survey? NONE of my 32 students got that survey. You’d think at least one of them would have gotten it.
and different parts of the country, not to mention differing cultural backgrounds, have different views about how crucial tests are to student identity
Although I recognize that there is a reasonable role for online learning and assessment, for example, students with immune conditions undergoing cancer treatments, etc. I think that online only assessment is a cheater’s paradise. Some students taking these high stakes tests online don’t cheat, but it is unlikely that no students cheat. I know that face to face course are not cheating free, but online only makes it so much easier.
How different would the proposed re-test be?
A re-test would preferentially favor the middle class and affluent students. No student should be harmed by the test giver incompetence.
Peter Schwartz, College Board Chief risk officer and general counsel, said in a statement: “This lawsuit is a PR stunt masquerading as a legal complaint being manufactured by an opportunistic organization that prioritizes media coverage for itself. It is wrong factually and baseless legally”
That’s some hubris.
He’d better hope that the “over 99% of students successfully submitted their AP exam responses today” claim made by College Board on May 12 was not knowingly incorrect.
This public statement made by College Board to the media and not to the court is a PR stunt masquerading as a legal argument, being manufactured by an opportunistic organization that prioritizes private revenue for itself. It is wrong factually and irrelevant legally.
That sounds like Woody Allen’s (excuse me for mentioning his name, but it is his schtick) “It’s a sham of a travesty of a sham of a
travesty of a sham!”
To clarify: Peter Schwartz’s ridiculous whining above.
ooooooooo. I want to read the discovery in this case!!!!
My money is on the notion that they not only blamed the students for their error in not having enough server capacity but also lied about the number of students affected.
The biggest problem at College Board is not sever capacity but brain capacity.
Good for them! The college board has a monopoly and are unavailable for questions or help. I had to pay for the AP Exams in October and I spent two hours trying to find out why they were requiring payment so early when in past years payment was due in the winter.
Oh, and College Board, it should be “fewer than 1 percent of students,” not “less than 1 percent of students.” So, you fail again.
“fewer” with countable items (students); “less” with continuous times (milk)
cx: items; typo
And fewer than 1% of members of the College Board have more than 1% of the normal number of neuron synapses.
But hey, SomeDAM, these are the representatives of the wealthy class in the U.S., so that’s entirely appropriate. They are better than others because they just are, you see. A stable of stable geniuses.
Unfortunately, David Coleman is not among the few.
Or is it “among the fewer”?
Is Coleman in Fewer?
If Coleman’s in few
Is Coleman in fewer?
Cuz fewer is two
But Coleman is too
Coleman should quit ruining students’ lives and join the Marines. Weren’t they looking for a less good men?
I doubt the Marines are looking for Coleman.
Somehow, I don’t think Coleman’s motto (“Nobody gives a &@#”) is compatible with the Marine’s motto ( “Semper Fidelis” –always faithful”)
Coleman’s Motto: Semper Test
Fewer than 1% of the members of the College Board know that it’s “fewer than 1%” rather than “less than 1%”
Ain’t none of these folks got the sense of a dead possum
Scam artists like David Coleman can only operate if other buy into the scam. The grifter needs the mark. For the most part, Coleman’s scams have hurt poor brown kids (e.g., the Coring of U.S. curricula and pedagogy and the associated invalid testing), but now he’s really done it. He’s scammed a lot of wealthy white parents in the suburbs. Big mistake.
cx: others
Will this hoopla turn large numbers of those suburban white parents against the testing in general? I doubt it because they love anything that will advance even more the prospects of their little darlings of privilege.
cx: can operate only, not can only operate
Bob
No one is even concerned.
SomeDAM, I would say that there are standards to uphold, but Coleman and his ilk have forever ruined the word “standards” for me.
“Fewer lesser standards”
“Fewer” standards would be good
Coleman’s “lesser” –understood
Fewer lesser really should
Be the goal for neighborhood
The grammar of the goblin language Deformish, aka Reformish and Disruptian, requires the adjective “higher” be used before the word “standards” whenever the puerile, backward, prescientific, curriculum-narrowing Gates/Coleman bullet list is being referenced. This might be a misspelling of “hired,” because Gates hired Coleman to hack these together.
“Low aspirations”
Higher than Death Valley
Isn’t very higher
Zero ain’t a tally
Person should desire
The wealthy white parents in the suburbs are ticked, but they don’t know they have been scammed. It’s not a scam for them because they like the scores and the competition. Ticked, yes…scammed, no. It still makes for a good law suit and I can’t wait to see where this goes.
Let’s define this once & for all: “stable geniuses”~ horses who win the Trifecta.
Yeah! Cancel the AP exams! Give me my $94 back so I can send it and an additional $2876 to my college and relearn the material I already know, take their exam, and get those sweet sweet college credits.
Wait, I’m confused what do we want again? Is it just college credit? Isn’t that entirely up to the colleges? You know those huge “non-profits” with literally billions of dollars in endowments charging 30 times as much for the same test?
AC, an honest question, what has been the experience of people that you know with colleges actually giving credit for the AP exams? One parent I know was very unhappy with her son’s college. He had taken a number of AP courses in high school and qualified for the requirements, yet the college didn’t give her son college credit for many of the AP courses.
Haven’t had much, I know it varies from college to college, but more to my point, I’m not aware of anyone filing a $500 million class action lawsuit against a “non-profit” college for not giving them proper credit for their work and making them pay thousands more in tuition than they should. I don’t love college board, but this whole things seems kinda ridiculous to me.
AC, if you have to “relearn” material to pass the actual college course, then you never really learned the material in the first place. Learning and memorization are NOT the same. Maybe you should look at the way that these tests are scored. It’s worth the research and you will actually learn something.
My “relearn” comment was more directed at the idea that if you don’t get the credit via AP then you have to spend a semester attending classes, doing homework, taking quizzes, etc all covering material you already learned in high school. And it costs a fortune. It just seems weird to have all this anger directed at CB even if they botch the exam 5 times and made you pay for each retake it’s still a bargain. Couldn’t the colleges just say “if you got a grade of C or higher in any AP course we’ll give you the credit”?
The colleges aren’t extorting students. The states and feds are by cutting support for higher education
AC…The colleges are accepting AP credit less and less because the kids aren’t prepared for the next level college classes. MANY AP classes do NOT give the same material as the actual college class. This has happened over the past 10 yrs with College Board. CB is a business and they need lots of kids to pay $$$$ for tests so that they stay in business. School systems purchase the AP curriculum and then “train” teachers to implement it. AP is a marketable “product” and nothing more. Rote info memorization to pass the test only to be mind dumped is NOT learning.
LisaM- If that’s true (and I have no reason to doubt it, sounds like you know more about this than I do) then I think the AP test needs to be changed, because I love the concept of paying next to nothing for college credits if you can demonstrate you already know the material.
I get that CB is a business, but so are the colleges, and they are putting kids in lifelong debt for an education that is somehow subject to less scrutiny than a $94 AP exam.
Hi Diane- something seems wrong that colleges, with billions of dollars in their endowments, paying insane salaries, are asking student to mortgage their futures for an education.
The fact that it costs this much to get an education, even while the school receives (admittedly shrinking) state and federal subsidies, is ridiculous. My university is spending billions tearing down buildings newer than my apartment and replacing them with towering palaces of marble and glass. My university gym has 50 ft tall glass atrium. I have mountain of debt. How is that the fault of the federal government?
The states and feds used to subsidize college tuitions. They steadily reduced the subsidy.
In Finland all higher education is tuition free because the Finns believe education is a human right.
AC….The AP tests, SAT (also College Board) and ACT all need to go away. They measure absolutely nothing except that you know how to take the test. Many colleges aren’t even looking at the scores because they know the scores mean nothing. I have been in college hell with a high sr. this year and I also have a nephew who will be a college jr/sr this year. You need to do some research. Go to fairtest.org, research UnKoch my campus to look for your answers. You are correct that you shouldn’t have to be in debt for the rest of your life for an education, but it’s the “business model” now. Believe me, I have to send one off in the fall and there were many decisions that had to be made because of cost. NYU (her 1st choice) with a scholarship was still $60,000 for us and that was NOT going to be in the financial cards. I feel for you and all the others trying to make it without racking up a mound of debt, but in many ways AP isn’t the answer. My nephew lost his scholarship and had to go back and take classes because the college took the 5 on his AP and skipped him into a higher class because of his perfect math SAT and now he is saddled with $50-60,000 in debt when he graduates.
What I am mad about is my daughter did really well all year long in her 3 AP classes. Then went to take one exam last week and it was on a topic that they never learned about/ never heard of!!!! How in the world are you supposed to test on something you know nothing about!!!!!! And now may not get credit for the entire class because of it. So not fair at all!!!!!
How can one join the lawsuit? Along with this, not a single person in my entire school was given the survey on taking the exam. I am one of the students where my exam would not submit as well. My office account shows the last day and time I was on my exam. However, when submitting the exam, their website said that it couldn’t accept my response and that it wouldn’t load. All of my web browsers were fully updated and my wifi was strong prior to and during the exam, and I made sure to follow the guidelines given by the College Board. I had my document ready and all of my materials set up a week prior so when my exam time came I could start focussing on my prompt. On top of all of this, my prompt and question didn’t even load in until 3 to 5 minutes into the exam time. I quickly filed the make up exam application directly after it said my response was not accepted. I also have the original exam completed to the extent I was able to work on it during the 35ish minutes I had. I have worked so hard for this exam this year with all of the stress building up just to find out I will have to retake the whole thing due to malfunctioning on the College Board’s side. I agree that the college board should accept the tests that malfunctioned in submission to the College Board in the last weeks!
How does one join the lawsuit? Also, my entire school and county as far as I know was not included in the survey for taking the exam whatsoever. I am also one of the students whose exam could not be submitted. My prompt did not load until 3-5 minutes had passed into my exam time, as well as my exam saying that my work could not be submitted or would not load during the 5 minutes allotted for submission. Now I know many and even the College Board may blame my end for browsers not being updated or issues with my connection, but I have proof and can assure you that my browsers, wifi connectivity, and documents were set up for exam day a week prior to the test. Not only have I put so much work into preparing for the exam, but the stress placed upon me was extremely high only to find out that my exam could not be submitted in the end. I immediately filed the application for the makeup exam after I recieved the message on my submission. I also have the document with the original exam I completed to the extent of how much time I had been given with the malfunction in the beginning. My document shows the last day I was working on the test and was cut off immediately after my time was up for writing, and I had 5 minutes to submit. These issues with the exam were not on my side, and I am extremely upset with being told all of my work was for nothing and that I have to retake the whole thing again in June! I entirely agree that the College Board reconsider their system and accept the AP exams that had issues with submission and loading in during the last couple of weeks.
I’d like to know how to join the lawsuit as well.
Christy,
If you want to learn more about the class-action lawsuit, contact Fairtest.
for further information, contact:
Bob Schaeffer FairTest (239) 395-6773
Sanan Barbar BKN Lawyers (213) 241-0900
for immediate release, Wednesday, May 20, 2020
COLLEGE BOARD SUED BY STUDENTS, FAIR-TESTING ADVOCATES
FOR ACCESS AND TECHNOLOGY FAILURES ON COMPUTERIZED AP EXAMS;
PLAINTIFFS SEEK SCORING OF ANSWERS STUDENTS COULD NOT SUBMIT
PLUS MORE THAN HALF A BILLION DOLLARS IN CLASS ACTION SUIT DAMAGES
Students and families from across the U.S., whose Advanced Placement (AP) responses could not be submitted during last week’s exams due to the test-makers technology problems, have filed a class action lawsuit in federal court seeking to force AP’s sponsor, the College Board, to score their answers. The National Center for Fair & Open Testing (FairTest), whose staff spent many hours documenting and publicizing students’ experiences, joined the plaintiffs in seeking compensatory and punitive damages from the College Board.
The suit claims breach of contract, gross negligence, misrepresentation, unjust enrichment, and violations of the Americans with Disabilities Act among other illegal activities. It also charges the College Board with ignoring warnings that the online AP exams discriminated against under-resourced students and students with disabilities. Plaintiffs will seek “compensatory damages in an amount that exceeds $500 million” and “punitive damages in an amount sufficient to punish Defendants” and “to deter them from engaging in wrongful conduct in the future.”
The landmark case was filed by Phillip A. Baker from Baker, Keener & Nahra LLP in Los Angeles and Marci Lerner Miller from Miller Advocacy Group in Newport Beach, California.
“The College Board rushed ‘untested’ AP computerized exams into the marketplace in order to preserve the testing company’s largest revenue-generating program after schools shut down this spring, even though they were warned about many potential access, technology and security problems,” explained Bob Schaeffer, FairTest’s interim Executive Director. “Even if only 1% 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.”
According to the College Board, more than 2.1 million Advanced Placement exams were administered last week. College Board Vice President Trevor Packer, who runs the AP program has repeatedly admitted that about “1%” of tests were affected by problems. The College Board’s most recent information tax return reports that revenues from its AP program topped $480 million annually, even more than from its flagship SAT and related products. Each AP exam costs $95.
Plaintiffs’ attorneys Philip Baker and Marci Lerner Miller added, ““Despite revenues of close to half a billion dollars a year from its AP program alone, the College Board failed to do what was necessary to make its at-home AP exams fair and accessible. This is inexcusable in light of the unprecedented challenges faced by students and their families this year.”