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Case Name J.P. v. Educational Testing Services ED-CA-0037
Docket / Court 2:20-cv-04502 ( C.D. Cal. )
State/Territory California
Case Type(s) Disability Rights-Pub. Accom.
Education
Special Collection COVID-19 (novel coronavirus)
Case Summary
COVID-19 summary: This is a putative class action complaint brought by four parents and a public charity against the College Entrance Examination Board and Education Testing Services for breach of contract on behalf of all students registered to take at-home Advanced Placement (AP) exams, for the ... read more >
COVID-19 summary: This is a putative class action complaint brought by four parents and a public charity against the College Entrance Examination Board and Education Testing Services for breach of contract on behalf of all students registered to take at-home Advanced Placement (AP) exams, for the defendant’s failure to administer its AP exams without prejudice. The suit was filed after students experienced a series of technical difficulties with their AP exams, administered at home by the defendant due to COVID-19. The plaintiffs alleged that the defendant breached contract by failing to ensure a fair and equitable testing opportunity and that the defendant knowingly discriminated against under-resourced and disabled students, and students in remote locations. The plaintiffs sought injunctive relief, compensatory damages exceeding $500 million, and punitive damages. In October 2020, the court compelled arbitration on several of the plaintiffs' claims and stayed the entire case pending the arbitration. The court denied a motion by the plaintiffs to reconsider the stay in April of 2021. The case remains stayed.


In March 2020, the College Board decided that AP exams for the 2019-2020 school year would be administered at home due to the COVID-19 pandemic. Prior to the exams, counselors and educators communicated concerns that the at-home exams were not fair to students who had no access to a computer, internet, or quiet workspaces, under-resourced students, and students requiring accommodations. The plaintiffs claimed that prior to the exams, the defendants acknowledged that the “digital divide” could prevent low-income and rural students from participating, however, they did not change their policies to address the issues. After three days of at-home exams, the defendant announced that there were failures in uploading the exams due to technical difficulties. According to reports, anywhere between 5% to 20% of examinees were unable to submit their responses during the first three days of exams. The plaintiffs noted that many students relied on AP exam scores for the financial benefits of college placement and credit.

On May 19, 2020, four parents and the National Center for Fair & Open Testing ("FairTest") brought suit against the College Entrance Examination Board and Education Testing Services on behalf of their minor children and all other similarly situated students registered to take at-home Advancement Placement ("AP") exams. The plaintiffs alleged that the defendants breached their contract with the plaintiffs and the implied covenant of good faith and fair dealing between the parties by failing to ensure a fair and equitable testing opportunity and by failing to prevent anyone from gaining an unfair advantage. The plaintiffs also alleged that the defendants knowingly discriminated against under-resourced students, disabled students, and students in remote locations in violation of the Americans with Disabilities Act, the Unruh Act, and the Rehabilitation Act. They further alleged unfair competition, false advertisement, and negligence. Filed in the District Court of the Central District of California, the plaintiffs sought injunctive relief requiring the College Board to accept any test answers by timestamp, photo, and email, as well as compensatory damages exceeding $500 million. The plaintiffs also sought punitive damages and interests and costs. The plaintiffs also sought class certification and a jury trial. The plaintiffs were represented by the Miller Advocacy Group and private attorneys. The case was assigned to District Judge Philip S. Guitierrez and Magistrate Judge Pedro V. Castillo.

The plaintiffs filed an amended complaint on June 22, 2020, and the defendants moved to stay the case pending arbitration on August 31. The defendants claimed that the individual plaintiffs had agreed to abide by certain terms and conditions when they registered for the exam, which included a mandatory arbitration clause. They also argued that FairTest should be forced to arbitrate because FairTest's claims are dependent on a contract between the defendant and the individual plaintiffs that included a mandatory arbitration clause. The defendants requested that the court enforce the arbitration agreement and stay the case under the Federal Arbitration Act. The plaintiffs opposed the motion. They first argued that the defendants failed to make the terms of the AP exams accessible to the disabled plaintiffs, which made it impossible for the disabled plaintiffs to agree to the terms. Next, they argued that the charter plaintiffs had not agreed to arbitration because they were unable to take the AP exams for lack of a testing site and therefore did not agree to the terms. The plaintiffs also argued that FairTest is not bound by any arbitration agreement, since it did not sign any contracts with the defendants.

On October 30, 2020, the court granted the defendants' motion to stay all proceedings pending arbitration for all plaintiffs that accepted the AP Exam Agreement. The court found that there were two different agreements at issue in this case: (1) the "My AP Agreement," which individual plaintiffs accepted in order to access the College Board's website; and (2) the "AP Exam Agreement," which all AP test takers were required to accept in order to take online AP exams. The court found that the My AP Agreement was unconscionable because the arbitration provision only applied to test-takers' claims against the College Board and did not apply to any claims brought by the College Board against test-takers. The court found that this showed that the agreement clearly favored the defendants in this case over the plaintiffs and was thus unenforceable.

The court then turned to the AP Exam Agreement. The court found that the parties formed a contract when the test-taker plaintiffs accepted the agreement and that the agreement contained a valid delegation clause. Since the court found that the test-takers had agreed to arbitrate the arbitrability of the AP Exam agreement, the court declined to consider the test-taker plaintiffs' challenges to the validity or enforceability of the AP Exam Agreement as a whole. The court also found that, since FairTest did not bring any clauses of action independent of the individual test-takers, FairTest was required to arbitrate any of its claims that depend on the claims of the plaintiffs who accepted the AP Exam Agreement. However, the court denied the motion to compel arbitration for the plaintiffs who had not accepted the AP Exam Agreement, in addition to FairTest's claims based on the claims of these plaintiffs. The court also stayed all further litigation, pending the arbitration of the arbitrable claims, finding that the plaintiffs without arbitrable claims would only suffer a delay in proceedings, while all parties and the court could avoid costly and potentially unnecessary proceedings.

On February 24, 2021, the plaintiffs moved to re-open the litigation. On April 15, the court denied the motion. 2021 WL 3519916. The court construed the plaintiffs' motion as a motion for reconsideration of its prior order on October 30, 2020. Based on the Central District of California's Local Rule 7-18, a motion for reconsideration may be made only on the grounds of (a) a material difference in fact or law from that previously presented to the court and that could not have been known by the plaintiff in the exercise of reasonable diligence; (b) the emergence of new material facts or a change of law occurring after the prior decision; or (c) a manifest showing of a failure to consider material facts presented to the court. The court found that the plaintiffs' motion did not meet the Local Rule 7-18 standard. The court found that the plaintiffs' motion re-raised two arguments, which is not a proper ground for a motion for reconsideration. The court also found that two of the plaintiffs' other arguments should have been raised earlier in the litigation and therefore should not be considered by the court. The court also found that the plaintiffs failed to raise any new evidence that would justify granting a motion for reconsideration. Therefore, the court allowed its prior order to stay the proceedings to stand and declined to re-open the litigation.

The case remains stayed.

Averyn Lee - 09/21/2020
Nicholas Gillan - 11/22/2021


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Issues and Causes of Action
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Issues
Disability
disability, unspecified
Discrimination-area
Accommodation / Leave
Testing
Discrimination-basis
Disability (inc. reasonable accommodations)
General
Access to public accommodations - privately owned
Screen readers and similar accessibility devices
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) Education Testing Services
the College Entrance Examination Board
Plaintiff Description Four parents and a public charity on behalf of all students registered to take at-home AP exams.
Class action status sought Yes
Class action status outcome Pending
Filed Pro Se No
Prevailing Party Defendant
Public Int. Lawyer Yes
Nature of Relief None yet
Source of Relief None yet
Filed 05/19/2020
Case Ongoing Yes
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
Court Docket(s)
C.D. Cal.
11/02/2021
2:20-cv-04502-PSG-PVC
ED-CA-0037-9000.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
General Documents
C.D. Cal.
05/19/2020
Nationwide and California Class Action Complaint [ECF# 1]
ED-CA-0037-0001.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
C.D. Cal.
06/22/2020
Nationwide and California Class Action First Amended Complaint & Demand for Jury Trial [ECF# 15]
ED-CA-0037-0002.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Castillo, Pedro V. Court not on record [Magistrate] show/hide docs
ED-CA-0037-9000
Gutierrez, Philip S. (C.D. Cal.) show/hide docs
ED-CA-0037-9000
Plaintiff's Lawyers Baker, Phillip A. (California) show/hide docs
ED-CA-0037-0001 | ED-CA-0037-0002 | ED-CA-0037-9000
Hoffman, Christina N (California) show/hide docs
ED-CA-0037-0001 | ED-CA-0037-0002 | ED-CA-0037-9000
Lowe, Derrick S. (California) show/hide docs
ED-CA-0037-0002
Miller, Marci Lerner (California) show/hide docs
ED-CA-0037-0001 | ED-CA-0037-0002 | ED-CA-0037-9000
Stone, Jennifer (California) show/hide docs
ED-CA-0037-0001 | ED-CA-0037-0002 | ED-CA-0037-9000
Defendant's Lawyers Benedetto, Matthew D. (California) show/hide docs
ED-CA-0037-9000

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