University of Michigan Law School
Civil Rights Litigation Clearinghouse
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Case Name Breimhorst v. Educational Testing Service DR-CA-0050
Docket / Court 3:99-cv-03387 ( N.D. Cal. )
State/Territory California
Case Type(s) Disability Rights-Pub. Accom.
Case Summary
On July, 1999, an individual plaintiff and disability rights advocacy organization filed lawsuit in the Northern District of California against test providers for the GMAT, SAT, and ACT. The claims were both federal and state-based: the ADA, the Rehabilitation Act, California Unruh Civil Rights Act, ... read more >
On July, 1999, an individual plaintiff and disability rights advocacy organization filed lawsuit in the Northern District of California against test providers for the GMAT, SAT, and ACT. The claims were both federal and state-based: the ADA, the Rehabilitation Act, California Unruh Civil Rights Act, California Disabled Persons Act and a California statute that provides a civil cause of action for unlawful business practices, CA Bus. & Prof Code §17200. Specifically, the plaintiffs alleged that the Educational Testing Service's "flagging" practice, where administrators placed notations on the score reports of people with disabilities who take the exams with accommodations for their disabilities, was discriminatory and had a chilling effect that discourages students from even asking for appropriate accommodations.

The case proceeded with discovery for the next several months.

On January 6, 2000, the defendants filed a motion for summary judgment. Senior Judge William H. Orrick granted the motion with respect to the claims made under the ADA, but allowed all other claims to proceed. As a result, the parties began scheduling settlement discussions.

The plaintiffs and ETS reached a settlement in December 2000. ETS agreed to stop flagging on a number of tests it administered, such as the Graduate Management Admission Test (GMAT). Then both parties agreed to have an expert panel analyze the impact of flagging on other exams that ETS administers but which are controlled by the College Board, such as the Scholastic Aptitude Test (SAT).

In mid-July 2002, plaintiffs and the College Board then reached a settlement under which the College Board agreed to stop its practice of flagging test scores on the SAT, PSAT, and Advanced Placement tests when test takers use the accommodation of extended time. A national panel of experts, who had been jointly selected by plaintiffs and the College Board, had undertaken an intensive study of flagging on the SAT. The panel had recommended that the practice be discontinued because of its discriminatory impact on test takers with disabilities and because it was not psychometrically justified.

On February 8, 2001, Senior Judge William H. Orrick dismissed the case with prejudice. Shortly after the announcement of the settlement, the ACT announced that it too would stop flagging test scores on its college entrance examination.

Soojin Cha - 06/19/2016


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Issues and Causes of Action
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Issues
Content of Injunction
Discrimination Prohibition
Disability
disability, unspecified
Discrimination-area
Testing
Discrimination-basis
Disability (inc. reasonable accommodations)
General
Education
Test or device
Testing
Plaintiff Type
Non-profit NON-religious organization
Private Plaintiff
Type of Facility
Non-government for profit
Causes of Action Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12111 et seq.
Section 504 (Rehabilitation Act), 29 U.S.C. § 701
Defendant(s) Educational Testing Service
Plaintiff Description Plaintiffs included an individual plaintiff and two disability rights organizations: International Dyslexia Association and Californians For Disability Rights.
Indexed Lawyer Organizations None on record
Class action status sought Unknown
Class action status granted Moot
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Injunction / Injunctive-like Settlement
Source of Relief Settlement
Form of Settlement Court Approved Settlement or Consent Decree
Order Duration 2002 - n/a
Case Closing Year 2002
Case Ongoing No
Docket(s)
3:99-cv-03387-WHO2 (N.D. Cal.) 02/08/2001
DR-CA-0050-9000.pdf | Detail
PACER [Public Access to Court Electronic Records]
General Documents
Opinion 03/27/2000 (2000 WL 34510621) (N.D. Cal.)
DR-CA-0050-0002.pdf | WESTLAW | Detail
Document Source: Westlaw
Settlement agreement 08/05/2002
DR-CA-0050-0001.pdf | Detail
Document Source: Plaintiffs' counsel
Judges Laporte, Elizabeth D. (N.D. Cal.) [Magistrate]
DR-CA-0050-9000
Orrick, William Horsley Jr. (N.D. Cal.)
DR-CA-0050-0002 | DR-CA-0050-9000
Monitors/Masters None on record
Plaintiff's Lawyers Konecky, Joshua Geoffrey (California)
DR-CA-0050-0001 | DR-CA-0050-9000
Paradis, Laurence W. (California)
DR-CA-0050-0001 | DR-CA-0050-9000
Defendant's Lawyers Ashe, R. Lawrence Jr. (Georgia)
DR-CA-0050-0001 | DR-CA-0050-9000
Gevertz, David E. (Georgia)
DR-CA-0050-0001 | DR-CA-0050-9000
Grube, E. Jeffrey (California)
DR-CA-0050-0001 | DR-CA-0050-9000
Huge, Todd A (California)
DR-CA-0050-0001 | DR-CA-0050-9000
Rafuse, Nancy E. (Georgia)
DR-CA-0050-0001 | DR-CA-0050-9000
Weirich, C. Geoffrey (Georgia)
DR-CA-0050-0001 | DR-CA-0050-9000
Other Lawyers None on record

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