College Board’s AP-botch Lawsuit: No “PR Stunt”

On May 19, 2020, the National Center for Fair and Open Testing (“Fairtest”) and several individuals filed suit against the College Board, Educational Testing Service (ETS), and 50 individuals in a “nationwide and California class action complaint” related to College Board’s et al. botching of the 2020 administration of its Advanced Placement (AP) tests.

Via 13 “claims for relief,” including violations of the Americans with Disabilities Act and the Rehabilitation Act, gross negligence, unjust enrichment, and false advertising, Plaintiffs seek “compensatory damages in an amount that exceeds $500 million, with
the exact amount to be proven at trial.”

Washington Post reporting on the suit includes a response from Peter Schwartz, College Board chief risk officer and general counsel, calling the suit “a PR stunt masquerading as a legal complaint manufactured by an opportunistic organization that prioritizes media coverage for itself.”

In 2017-18, so-called “opportunistic” Fairtest reported an end-of-year fund balance of $17,551. Director Robert Shaeffer was paid $76K, and former executive director, Monty Neill, $91K, in total compensation.

In contrast, in 2018, Schwartz was paid $550K in total compensation as the chief lawyer for an educational testing nonprofit with an end-of-year fund balance of $1.1B and that paid its  CEO/president David Coleman $1.8M in total compensation.

Now that’s *opportunity.*

As for “media coverage for itself”: In 2018, College Board dropped a cool $4.3M for “advertising and promotion,” which was $4.3M more than shoestring-budget Fairtest, with its total 2017-18 revenue of $291K.

((Silence.))

Let us now take a gander at some of the details from Fairtest’s so-called “PR stunt” litigation against well-fed College Board.

Below are excerpts from Fairtest’s et al. 46-page suit. My goal in this post is to offer readers the opportunity to read portions of the document for themselves. As such, I include here excerpts from the first 18 pages of the suit. (I have highlighted a number of statements that particularly caught my attention.)

First, the backstory of the suit as is relayed in the full introduction:

Plaintiffs bring this suit against Defendants to recover the damages owed to them and others similarly situated and for injunctive relief as a result of the Defendants’ failure to allow access to and failure to administer its Advanced Placement (“AP”) program properly and without prejudice.

The College Board is involved at every level of the college preparation, testing, admissions, financial aid, and placement process. It is the leading player in the higher education industry responsible for the fates of millions of high school students every year, deciding who will be recruited, who will apply, who will be accepted, who will receive financial aid, and who will be able to afford college and other postsecondary opportunities. The Educational Testing Service (“ETS”) is responsible for the development, administration, and scoring of College Board’s assessments, including AP exams.

AP is a program offered by the College Board that offers college-level courses and examinations to high school students. Colleges and universities frequently grant placement and course credit to students who obtain passing scores on their AP examinations. The length of time each student will spend in college, their curriculum, and how much they pay to attend college are factors heavily influenced by College Board and the AP opportunities available to students. The College Board claims that AP courses and examinations also favorably impact college admissions decisions by demonstrating to admissions officers that a student is prepared for college-level work. AP courses strengthens a student’s high school transcript and help students qualify for scholarships.

In March of 2020, schools around the world moved to distance learning due to the COVID-19 pandemic. The College Board was faced with the decision of cancelling its popular and profitable AP program for the year, postponing the exams, or offering them at home to students. The College Board made the decision to offer the AP exams to students at home but with significant structural changes.

The College Board was immediately made aware by numerous sources, including counselors, educators, advocates and families, that there were seriousconcerns 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 underresourced students in general. Even as the test began, 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.

Counselors, educators, advocates, and families immediately reached out to The College Board to make them aware of their serious concerns with the at-home AP format’s likely impact on students who have no computer, access to Internet or quiet workspaces from which to work, or on under-resourced students in general. Even as the test began, questions remained about the availability and applicability of legally required accommodations for students with disabilities, connectivity, test security, and score comparability.

The College Board acknowledged that these issues existed, but it did not change its policies to address them. On May 14, 2020, after 3 full days of at-home 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. The College Board’s President, David Coleman acknowledged in an email that, “we can’t control the conditions in students’ homes.” Technical problems with the digital versions of the AP exams caused and continue to cause tremendous angst for high school students and their parents during this already stressful time.

Before this year, high school students took their AP exams at school during the regular school day hours in a controlled and regulated environment where they could ask for assistance if necessary. The College Board acknowledged that it knew moving the exams home may exclude some students from testing at all, stating that, “We recognize that the digital divide could prevent some low-income and rural students from participating.” The College Board moved the AP exams to students’ homes under the present conditions despite this acknowledgement. In doing so, the College Board knowingly discriminated against under-resourced students, disabled students, and students in remote locations, and it failed to honor its commitments to students and their families.

After one day of testing, it became clear that the College Board and ETS had failed to fairly, competently, or equitably administer the AP exams. The students who relied on AP scores for the financial benefits of college placement and credit experienced technical glitches, timing issues, and a heightened level of anxiety and distress. Reports 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.

Despite the fact that these are challenging times for families, The College Board offered no acceptable remedies to students whose lack of digital access prevented them from fairly testing. Nor did it offer remedies to students who experienced glitches with the AP platform. On May 15, 2020, The Chronicle of Higher Education reported, “AP Tests During Covid-19: Heartbreak, Technical Glitches, and Anonymous Intrigue.” On the same day, The Washington Post reported, “College Board Says New AP Test Online Going Well – But Students Report Big Problems.”

The College Board 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 not do so.

The challenge of the at-home AP exam format is only the final hurdle for many AP students, and it is also one step that many students may never even reach. Some AP students are fully denied access to AP exams and others must overcome additional hurdles to obtain access to AP exams based solely on where they are enrolled in school. Access is particularly challenging for students enrolled in California public charter schools or homeschools.

Next, what amounts to the introductory portion of the suit’s section on “common factual allegations”:

The College Board claims that students who score a 3 or higher (out of 5) on an AP Exam typically experience greater academic success in college and are more likely to earn a college degree on time than non-AP students. As the only player in the education market with this level of influence over high school curriculum, college admissions, course placement, and financial outcomes, the College Board knows that access to its AP exams must be fair, reliable, and affordable.

To ensure that low-income students can access AP Exams at a reduced cost, Every Student Succeeds Act (ESSA) provides funding for AP Exams and courses under the Title IV, Part A block grant. Additional funding is also available for states and districts to cover AP Exam fees for low-income students. In California, an increasing number of lower income students are enrolling in AP courses. Of the 58.7 percent of the state’s K–12 students eligible for the free or reduced-price lunch program in the Class of 2017, 45.5 percent took at least one AP exam.

Each year, millions of high school students take 38 different AP exams at the end of the school year. In 2019, 3.1 million students took a total of 4.9 million AP exams at school. In 2020, 3.4 million students are registered to take over 5 million AP exams. During the first week of testing, students took or attempted to take over 2.2 million AP exams. The cost of an AP exam is generally between $100 and $150 per test.

In 2018, the College Board earned over $480 million dollars from its AP program alone. The College Board collected its exam fees in the Fall of 2019 for the Spring 2020 exams.

AP exams provide a means for high school students to earn college credit while in high school. Defendant College Board advertises that, “by taking an AP course and scoring successfully on the related AP Exam, [a high school student] can save on college expenses: most colleges and universities nationwide offer college credit, advanced placement, or both, for qualifying AP Exam scores… These credits can allow students to save college tuition, study abroad, or secure a second major.” College Board further advertises that, “[e]arning a qualifying score on the AP Exam can help you advance and avoid required introductory courses – so you can move directly into upper-level classes and focus on the work that interests you most.”

The AP program is the only widely available high program allowing students to earn college credits. Defendant College Board organizes and administers the AP tests. The AP program is the only means for high school students to test for college credit in dozens of subject matters. In order to obtain college credits, students are required to pass the AP test, as scored and reported by Defendants.

Passing scores (a 3, 4, or 5) on the AP exams can save students and their parents thousands of dollars in college tuition and costs. A successful student who take multiple AP exams can potentially finish college a year or more earlier than students who did not earn AP credit during high school. Some students understandably wanted an option to take their AP exams for college credit when COVID-19 forced their schools to convert to distance learning and they could no longer test at school.

However, the format of the at-home AP exams is different from the format students are accustomed to and different from the practice AP exams they have taken. The 2020 home-based AP exams are digitally-based instead of on paper as they have always been in the past. The new exams are scheduled to last only 45 minutes (actually 40 minutes with the required 5 minutes to begin uploading answers before the test ends) instead of 3 hours, and all tests in the same subject are given at exactly the same time. This means that some students in one part of the world could be taking an exam in the middle of the night, while others are taking it in the middle of the day. Students in Hawaii begin their first exams each day at 6 a.m., while students in New York begin the same exams at noon. The 2020 exams include material covered until the time of the COVID-19 breakout instead of the entire course curriculum. Most importantly, the exams are taken at home, where the testing environment can be unpredictable and distracting.

Some of the issues with the at-home format should have been anticipated. As soon as the College Board announced its plans to administer at-home exams, educators, students, parents, and AP coordinators voiced their concerns over equity and access issues. They also expressed concerns about timing and technical problems with the new format as well as score validity.

The College Board announced prior to the administration of the at-home exams that certain disability accommodations that were previously provided would be modified, eliminated, or were deemed “unnecessary” due to the new format.

Dozens of educators and counselors wrote an “Open Letter” to the College Board on April 22, 2020 outlining why the exams would not be fair to students who have no computer, access to Internet or quiet work spaces from which to work, or to students with disabilities who would not have their approved accommodations. Plaintiff FairTest announced that its concerns about the 2020 AP exams included computer equipment and technology, connectivity, the availability of legally required accommodations, security, and score comparability.

The College Board did not address these issues or change its policies prior to the administration of the at-home AP exams. In fact, on May 14, 2020, after 3 full days of AP exam administration, College Board’s President David Coleman acknowledged in an email that, “we can’t control the conditions in students’ homes.” He added, “Students may face technology or internet issues, need to tend to unexpected family obligations, or face other disruptions that will impact their testing experience. Like the virus itself, these disruptions will disproportionately impact low-income and underrepresented students.” Instead of changing the testing format to address the disparities among student testing environments, however, Mr. Coleman recommended that students explain their disadvantages to college admissions officers. In an admission that the tests are not valid for all students, Coleman said, “We’re working to ensure that students who take the exam in challenging situations can share context with admissions officers about their exam experience.”

The first week of the 2020 AP 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, including those who are underresourced, who lack access to technology or quiet workspaces, students with disabilities, and students testing in non-ideal time zones. A number of students suffered from technical glitches, timing issues, issues with their computer software, disability accommodation issues, and widespread panic due to the inability to reach anyone at the College Board for assistance.

After the first week of testing, The College Board reported a failure rate of only 1%, but AP coordinators and students told a different story. Schools estimated that anywhere between 5-20% of their AP test-takers were unable to submit their exam responses through College Board’s testing platform during the first week. Other students could not finish their exams or log into the platform at all despite practicing beforehand.

One AP Calculus teacher reported that 3 out of her 13 students, or 23% of her students, faced technical obstacles submitting their work during the AP Calculus AB examination. This Santa Barbara-area teacher reported that one of her students received an upload error message after the testing time had expired. A second student had issues with her devices, even though she had practiced logging on and taking mock exams with her teacher. A third student in the class reported that her screen froze, then went blank, and then logged the student out upon trying to submit her answers. This student was never able to get back into the exam to upload her submissions.

Another AP Coordinator reported that, “This whole thing was a mess. It was unprofessional and added more stress to the students, teachers, families, and coordinators.” Another AP coordinator reported a 10% failure rate on the AP Calculus exam. These reports from the ground to do not square up with the College Board’s statement that “the vast majority” of the 2.2 million students who tested last week successfully completed those exams, or its written statement that less than 1% technical of test takers encountered technical difficulties.

Students who experienced issues with the College Board’s platform emailed their time-stamped work to the College Board, but it was not accepted. They were told that their only remedy was to retake the exam over the summer, if they qualified for a retake exam. Students’ anxiety continued to grow as the week progressed due to legitimate fears that they would complete their work but not be unable to submit
it and would then have no remedy.

Students have not been able to confirm access to the retake exams despite
technical failures. Students have also reported that they have two AP exams scheduled for the same retake day and that they were told by The College Board that they would have to choose only one exam to take.

FairTest received an influx of reports about at-home AP exam failures and the lack of remedies. One parent reported, “We also had technical issues trying to sign up for a make-up exam. I spent over an hour on phone with CB. They refused to allow me to speak to supervisor and offered no reassurance that the problem would be fixed by a makeup.”

One student reported that, “Due to a technical malfunction on the College Board’s website during the APUSH exam (AP U.S. History), I was unable to submit by work. My dad has been critically ill and hospitalized for the past few weeks and despite this challenge, I persisted in preparing for my AP exams because I wanted to achieve my goals of earning college credits. Now, due to a technical issue on the College Board’s website, I am going to have to continue working during this incredibly stressful time in my life to prepare to re-take the exam in June.”

One parent said, “My son has time stamped images of his Physics AP answers. Why can’t college board find a way to accept those? We worry there is no make up for the make-up test. What happens if this glitch happens on the make up?” Another parent reported, “We also had technical issues trying to sign up for make-up exam. I spent over an hour on phone with CB. They refused to allow me to speak to supervisor and offered no reassurance that problem would be fixed by makeup.”

One student described the experience of carefully preparing for the exam but still being unable to submit his responses. “I took all precautions once I heard from some students that there were submission errors. I updated my computer, used chrome because it was recommended by the college board, sent my brother to my dad’s house so I wasn’t distracted during my test, and made my family get off the wifi so I could have the maximum potential my wifi could give me. . . Then, when I took Physics 1, my first answer submitted with no problem, but my second question wouldn’t submit.”

In response to the complaints, the College Board officials initially claimed that their systems did not malfunction, but the problems were instead caused by students. Students were instructed to update their browsers, disable plug-ins, and make sure their devices were properly set up.

Ultimately, in response to what some called a “tsunami” of complaints, the College Board made some adjustments to its policies, announcing on May 17, 2020 that it would provide a backup email submission option of browser-based exams for students testing between May 18 and May 22, 2020. Nonetheless, if the student is unable to upload responses through the exam platform or successfully transmit by email at the time of the exam, as in the case of a home connectivity problem, the student would still have to request a makeup exam. In addition, the College Board will not accept email transmissions from students who already tested between May 11 and May 15, 2020.

Students taking exams between May 18 and May 22, 2020 have an added safeguard, providing a slightly more desirable and less stressful testing environment for these test-takers. Students who experienced technical failures during the first week have still not received any confirmation that they will be eligible to take a makeup exam or that they will receive the added safeguard of email submission, even for their retakes.

…

Students who do not wish to retake their exams, and even those who do not wish to test at all, cannot receive a refund of their test fees directly from the College Board. Even though the College Board collected money for the AP exams at least six months ago, it will not directly issue refunds to students. The College Board has stated that after both the regular and makeup testing windows have passed, if students have not taken or attempted to take any exams, their schools will be refunded the cost of their exam fees. It is then up to the students to request fee refunds from their schools. The College Board’s website does not provide any instructions to students about how students can receive fee refunds. Its website says, “[L]ocal school policy determines the amount of the refund.”

These are challenging times for high school students and their families, emotionally and financially. Students are entitled to the valid and reliable exam they signed up and paid for, absent the severe stress and anxiety associated with the new format. Despite collecting what Plaintiffs believe to be approximately half a billion dollars in exam fees, The College Board has failed to provide students with an AP exam that is similar to the one they purchased.

…

Students have already reported issues with the time limits imposed by this year’s AP exams. The exams have not been properly piloted for time limits, and they are more speeded and abridged than the original versions. The College Board has acknowledged the timing issues. The 2020 AP Testing Guide states, “Don’t worry if you don’t complete all parts of the question before you need to attach and submit your response. To give students as many different chances to demonstrate what they know as possible, a question may have more parts than can be answered in the allowed time. You don’t need to complete the entire question to get a score of 5, but you do need to submit whatever work you’ve done.” While this could alleviate some students’ despair about not finishing their exams, it confirms the fears of other students that their scores will be seen as invalid or meritless.

Adding to the perception that the scores on this year’s exam may not be fair or consistent is the ability of high schools to review students’ scores and request score increases. The 2020 AP Testing Guide says that “AP teachers will have the chance to review your score and your exam responses this summer. If you don’t receive a score of 3 or higher and your teacher is convinced you should have, your teacher will be able to engage with the AP Program’s college faculty partners to review and confirm your score, ensuring it’s fair and appropriate.” This policy benefits students at schools with more resources, and it discriminates against students who are underprivileged or who attend under-resourced schools.

Moreover, there is no guarantee that the AP exam scores will count for anything in the collegiate landscape. While some colleges have said they will accept the credit, others have remained silent. Some colleges view at-home testing as inherently inequitable.

Defendants’ unlawful conduct has caused and will continue to cause substantial and irreparable damage and injury to Plaintiffs in ways that cannot be compensated with money, and Plaintiffs have no speedy, plain, or adequate remedy at law. Students pay for these AP exams but will have disadvantages due to the College Board’s restrictions and practices discussed herein.

The Fairtest et al. suit continues for an additional 28 pages and includes details about College Board’s choosing which schools/students have access to AP testing, the specific situations for individual plaintiffs, justification for class action status for several groups (e.g., “nationwide class, “fair access California subclass,” “disabled students California subclass), and more.

Not a PR stunt but instead a hefty underscoring of the bloated power testing wields over American education.

College Board is billion-dollar ineptitude.

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