By Lauren Berg

Law360 (May 20, 2020, 5:59 PM EDT) -- The College Entrance Examination Board's online Advanced Placement exams designed to reach high school students amid the coronavirus pandemic are filled with technical glitches, preventing some students from even taking the tests, according to a class action filed Tuesday in California federal court.

The College Board and the Educational Testing Services, the latter of which creates and administers the AP tests, discriminated against disadvantaged and disabled students, as well as those in remote locations, when they decided to move the testing online without taking into account how all test-takers would be able to access the exams, according to the complaint filed by a group of students and the National Center for Fair & Open Testing.

Students who couldn't submit their answers or access the test were told they would have to retake the exam this summer, according to the complaint. But even then, the students said, they experienced technical difficulties trying to sign up for a make-up exam.

The suit includes a number of clams — including breach of contract, gross negligence and unjust enrichment — as well as alleged violations of the Americans With Disabilities Act. They want the College Board to score the answers they tried to submit, instead of retaking the tests, and pay more than $500 million in compensatory damages to test-takers.

The plaintiffs, who are identified only by their initials, want to represent tens of thousands of other students who were "victimized by defendants' unfair and illegal practices," according to the complaint. They seek to represent a nationwide class of all students who did not have "fair and equal access to, or who were not able to complete, the 2020 AP exams."

When the spread of the coronavirus in March forced schools around the world to move to distance learning, the College Board made the decision to have students take AP exams at home, according to the complaint. But that raised concerns about fairness and how to make sure every student would have access to a computer, the internet and a quiet workspace to take the test, the students said.

On May 14, following three days of AP testing, the College Board admitted there were technical issues for test-takers trying to submit their exam answers, according to the complaint. It also stated that moving the exams to home testing could prevent some low-income and rural students from even accessing the tests, the students said.

But the College Board decided to do it anyway, according to the complaint.

"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," the students said.

Students who take AP classes for college credit in high school rely on those test scores for financial benefits in college, the plaintiffs asserted, and there were reports of 5% to 20% of test-takers who were unable to submit their answers through the at-home testing program.

The College Board hasn't offered students and their families any remedies for these issues, the students said. And now the College Board said it plans to move all of its assessments to an at-home format, including the SAT, according to the complaint.

Before the exams were set to begin earlier this month, the College Board never specified how disabled students would be able to access the tests, according to the complaint. And during the exams, disabled students were not given breaks, like they normally would be granted at school.

"The College Board rushed untested AP computerized exams into the marketplace in order to preserve the testing company's largest revenue-generating program after schools shut down this spring, even though they were warned about many potential access, technology and security problems," Bob Schaeffer, FairTest's interim executive director said in a statement Wednesday.

Peter Schwartz, the College Board's general counsel, said in a statement Wednesday that the lawsuit is a "PR stunt masquerading as a legal complaint" and that it is factually wrong and legally baseless. He said the College Board surveyed AP students nationwide and that 91% reported a desire to take their AP exams at the end of the course.

"Within weeks, we redesigned the AP Exams so that they could be taken at home," Schwartz said. "Nearly 3 million AP Exams have been taken over the first seven days. Those students who were unable to successfully submit their exam can still take a make-up and have the opportunity to earn college credit."

Trevor Packer, senior vice president of Advanced Placement and Instruction at the College Board, acknowledged the tests' technical issues in a statement on Twitter on May 17, saying they listened to every student, teacher and parent who reported a problem. He said that, beginning on May 18 and continuing through the make-up test window, students who couldn't submit their answers will receive a personalized email address to send their answers immediately following their exam.

But Packer said the College Board can't accept email submissions from students who tested from May 11 to May 15.

"However, these students can feel confident that the email backup option will be in place for them during the makeup exams," Packer said. "Any student who encountered an issue last week will be able to retest."

The students' attorney Phillip A. Baker of Baker Keener & Nahra LLP, told Law360 that the College Board's response was as "disappointing as their handling of complaints about the exams."

The ETS did not immediately respond to a request for comment Wednesday.

The plaintiffs are represented by Phillip A. Baker and Jennifer L. Stone of Baker Keener & Nahra LLP, and Marci Lerner Miller and Christina N. Hoffman of Miller Advocacy Group.

Counsel information for the defendants was not immediately available.

The suit is J.P. et al. v. Educational Testing Services et al., case number 2:20-cv-04502, in U.S. District Court for the Central District of California.

--Editing by Steven Edelstone.

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