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The parents and students who filed a class action lawsuit over technical bugs in the College Board AP Exams online testing program this spring are required to go through arbitration first, board lawyers say.
Defense lawyers for the College Entrance Examination Board filed a motion in federal court Aug. 31 asking that the class action be put on hold and the plaintiffs compelled to submit to arbitration they agreed to before taking the tests.
The parents are suing on behalf of their children, who took the Advanced Placement (AP) exams online in May but encountered glitches in the system that prevented them from accessing, completing or submitting the tests.
The College Board is a nonprofit organization that administers a variety of educational assessment tests, including the SAT college entrance exams and AP subject tests.
After the coronavirus pandemic spread to the U.S. this spring, the board cancelled in-person testing and administered the year-end AP testing online.
When the students registered for and began the process to take the exams, they agreed to the board’s terms and conditions, which included a mandatory arbitration clause, the board’s motion says.
In fact, if the plaintiffs want to argue whether the mandatory arbitration is applicable to their dispute, even that must be put through the arbitration process, the College Board says.
“Any challenge to the arbitrability of this dispute belongs with the arbitrator and not this court,” the College Board motion says. But “regardless of who decides, the arbitration agreements are enforceable, as their terms are clear and fair, and plainly cover this dispute.”
The plaintiffs, led by a parent identified only as J.P., who is acting on behalf of her son, filed the class action lawsuit in the U.S. District Court for the Central District of California in May.
The College Entrance Examination Board and its subcontractor, Educational Testing Services, which handles the College Board AP Exams, are the named defendants.
The National Center for Fair & Open Testing, or FairTest, is also a plaintiff in the case.
According to the class action, the test takers faced multiple bugs during the 45-minute online version of the College Board AP Exams.
The most frequently encountered problem occurred when the students tried to submit their answers – the system didn’t accept them. Other students couldn’t access the test at all.
The students who could not successfully complete the assessment online were told they would have to retake the test in the summer, their complaint said, and some of them had technical difficulties signing up for the make-up.
College Board officials estimated early on that 1% of the 2.2 million online AP tests taken were marred by “technical glitches that prevented students from submitting their answers once the test had been completed,” Forbes reported in late May. “The company initially suggested that outdated browsers may have been behind the problems.”
Nearly 3 million students took College Board AP Exams last year, the Forbes article said. Typically, the tests are administered in a “proctored venue” and are hours long, much like the SATs.
The class action lawsuit claims the College Board and Educational Testing Services committed breach of contract and gross negligence and received unjust enrichment from the faulty testing.
It also accuses the defendants of violating the Americans With Disabilities Act.
The plaintiffs are seeking more than $500 million in compensation for the student test takers and they want the College Board to accept the students’ already completed test answers instead of making them take the exam again.
Lawyers for the defense, who argued the entire case should be sent to arbitration because the test takers agreed to that when they accepted the College Board’s terms and conditions, said FairTest should also be bound by the arbitration clause.
Do you know any students who took the College Board AP Exams online this year? Did they have any problems or technical difficulties with the test? Tell us about it in the comment section below.
The plaintiffs and potential Class Members are represented by Phillip A. Baker, Derrick S. Lowe and Jennifer L. Stone of Baker Keener & Nahra LLP and Marci Lerner Miller and Christina N. Hoffman of Miller Advocacy Group.
The College Board AP Exams Class Action Lawsuit is J.P., et al. v. Educational Testing Services, et al., Case No. 2:20-cv-04502, in the U.S. District Court for the Central District of California, Western Division.
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