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).

The parties voluntarily sought dismissal of the case, and 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.

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 beginning October 1, 2003. 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.

Soojin Cha - 06/19/2016


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