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: “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 Educational Testing Service did not respond to a query about the lawsuit.
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.) Schwartz, in his statement, called the lawsuit “a PR stunt masquerading as a legal complaint” that was “manufactured” FairTest. FairTest interim director Bob Schaeffer said his organization did not start the lawsuit but was asked to join as a plaintiff by the lead counsel, and that his organization has been collecting complaints about the online tests.
“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 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.
Here is the lawsuit: