By Lauren Berg

Law360 (September 1, 2020, 4:43 PM EDT) -- The College Entrance Examination Board has urged a California federal judge to send to arbitration a proposed class action alleging its online Advanced Placement exams, administered remotely during the coronavirus pandemic, were filled with technical glitches, saying students signed arbitration agreements.

The College Board and the Educational Testing Service, which creates and administers the Advanced Placement tests, said on Monday that the suit should be stayed and sent to arbitration, because high school students taking the May AP exams agreed to certain terms and conditions, including a provision mandating arbitration of any disputes.

When the coronavirus began to spread in the U.S., forcing schools to abruptly close in March, the AP exams were changed to allow students to take them remotely.

But in their suit launched in May, a group of students said the College Board and Educational Testing Service discriminated against disadvantaged and disabled students when they decided to move the testing online without taking into account how all test-takers would be able to access the exams.

Students who couldn't submit their answers or access the test were told they would have to retake the exam in the 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. The plaintiffs 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.

But on Monday, the testing companies said the students have to arbitrate their claims and that any challenge to the arbitrability of the dispute must be decided by an arbitrator and not the federal court.

"Regardless of who decides, the arbitration agreements are enforceable, as their terms are clear and fair, and plainly cover this dispute," the companies said. "Plaintiffs cannot resist arbitration on any cognizable ground."

The College Board and Educational Testing Service also said that the National Center for Fair & Open Testing — another plaintiff in the case — should also be bound by the arbitration agreement, even though it isn't a signatory. Because the center asserts that it represents the interests of students, it brings claims that are derivative of the individual test-taker plaintiffs and purports to enforce the contract between the test-takers and the College Board, the companies said.

The companies said FairTest can't claim the benefits of the contract while simultaneously attempting to avoid the obligations the contract imposes.

The College Board said it undertook a "substantial task" to create a new, remotely administered test at a time when its own offices were closed and its employees quarantined. The company said it developed free online AP prep classes, distributed more than 7,500 laptops, tablets and internet hotspots to students in need and made extended time accommodations to students with disabilities.

Representatives for the parties did not immediately respond to requests for comment.

The plaintiffs 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 and the Educational Testing Service are represented by Matthew D. Benedetto, Alan E. Schoenfeld and Bruce M. Berman of WilmerHale.

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 Nicole Bleier.

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