ACCO,(PVCx),DISCOVERY,MANADR
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA (Western Division − Los Angeles)
CIVIL DOCKET FOR CASE #: 2:20−cv−04502−PSG−PVC

J.P. on behalf of her minor son R.P., et al v. Educational Testing Date Filed: 05/19/2020

Services , et al

Jury Demand: Plaintiff

Assigned to: Judge Philip S. Gutierrez

Nature of Suit: 190 Contract: Other

Referred to: Magistrate Judge Pedro V. Castillo

Jurisdiction: Diversity

Demand: $9,999,000

Cause: 28:1332 Diversity−Contract Dispute

Plaintiff

J.P. on behalf of her minor son R.P., and all others similarly situated

represented by Christina N Hoffman Miller Advocacy Group 1303 Avocado Avenue Suite 230 Newport Beach, CA 92660 949−706−9734 Fax: 949−706−9734 Email: choffman@milleradvocacy.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Stone Baker Keener and Nahra LLP 633 West 5th Street Suite 5500 Los Angeles, CA 90071 213−241−0900 Fax: 213−241−0990 Email: jstone@bknlawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marci Lerner Miller Miller Advocacy Group PC 1303 Avocado Avenue Suite 230 Newport Beach, CA 92660 714−706−9734 Fax: 949−266−8069 Email: marci@milleradvocacy.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phillip A Baker Baker Keener and Nahra LLP 633 West Fifth Street Suite 5500 Los Angeles, CA 90071 213−241−0900 Fax: 213−241−0990 Email: pbaker@bknlawyers.com ATTORNEY TO BE NOTICED

Plaintiff
The National Center for Fair and Open Testing a Massachusetts corporation doing business as Fairtest

represented by Christina N Hoffman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Stone (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff A.K. individually and on behalf of all others similarly situated
Plaintiff R.G. on behalf of her minor son J.G., and all others similarly situated
Plaintiff M.S. on behalf of her minor daugther Z.S., and all others similarly situated

Marci Lerner Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Phillip A Baker (See above for address) ATTORNEY TO BE NOTICED
represented by Christina N Hoffman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Stone (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marci Lerner Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Phillip A Baker (See above for address) ATTORNEY TO BE NOTICED
represented by Christina N Hoffman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Stone (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marci Lerner Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Phillip A Baker (See above for address) ATTORNEY TO BE NOTICED
represented by Christina N Hoffman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Stone (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marci Lerner Miller (See above for address) LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Phillip A Baker (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Educational Testing Services (ETS) a New York corporation
Defendant The College Entrance Examination Board a New York corporation doing business as The College Board Defendant DOES 1 through 50, inclusive

represented by Matthew D Benedetto Wilmer Cutler Pickering Hale and Dorr LLP 350 South Grand Avenue Suite 2100 Los Angeles, CA 90071 213−443−5300 Fax: 213−443−5400 Email: matthew.benedetto@wilmerhale.com ATTORNEY TO BE NOTICED
represented by Matthew D Benedetto (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/19/2020
05/19/2020 05/19/2020 05/20/2020 05/20/2020

# Docket Text
1 COMPLAINT Receipt No: ACACDC−26495301 − Fee: $400, filed by Plaintiffs A.K., individually and on behalf of all others similarly situated, The National Center for Fair & Open Testing, doing business as FairTest, a Massachusetts corporation, M.S. on behalf of her minor daugther Z.S., and all others similarly situated, J.P. on behalf of her minor son R.P., and all others similarly situated, R.G. on behalf of her minor son J.G., and all others similarly situated. (Attorney Phillip A Baker added to party A.K., individually and on behalf of all others similarly situated(pty:pla), Attorney Phillip A Baker added to party J.P. on behalf of her minor son R.P., and all others similarly situated(pty:pla), Attorney Phillip A Baker added to party M.S. on behalf of her minor daugther Z.S., and all others similarly situated(pty:pla), Attorney Phillip A Baker added to party R.G. on behalf of her minor son J.G., and all others similarly situated(pty:pla), Attorney Phillip A Baker added to party The National Center for Fair & Open Testing, doing business as FairTest, a Massachusetts corporation(pty:pla))(Baker, Phillip) (Entered: 05/19/2020)
2 CIVIL COVER SHEET filed by Plaintiffs A.K., individually and on behalf of all others similarly situated, J.P. on behalf of her minor son R.P., and all others similarly situated, M.S. on behalf of her minor daugther Z.S., and all others similarly situated, R.G. on behalf of her minor son J.G., and all others similarly situated, The National Center for Fair & Open Testing, doing business as FairTest, a Massachusetts corporation. (Baker, Phillip) (Entered: 05/19/2020)
3 CERTIFICATION and NOTICE of Interested Parties filed by Plaintiffs All Plaintiffs, (Baker, Phillip) (Entered: 05/19/2020)
4 NOTICE OF ASSIGNMENT to District Judge Philip S. Gutierrez and Magistrate Judge Pedro V. Castillo. (jtil) (Entered: 05/20/2020)
5 NOTICE TO PARTIES OF COURT−DIRECTED ADR PROGRAM filed. (jtil) (Entered: 05/20/2020)

05/20/2020 05/27/2020 05/27/2020 05/28/2020 05/28/2020 06/02/2020
06/02/2020
06/02/2020
06/02/2020 06/22/2020

6 STANDING ORDER REGARDING NEWLY ASSIGNED CASES by Judge Philip S. Gutierrez. (ji) (Entered: 05/20/2020)
7 Request for Clerk to Issue Summons on Complaint (Attorney Civil Case Opening),,,, 1 filed by Plaintiffs A.K., J.P., M.S., R.G., The National Center for Fair and Open Testing. (Baker, Phillip) (Entered: 05/27/2020)
8 Request for Clerk to Issue Summons on Complaint (Attorney Civil Case Opening),,,, 1 filed by Plaintiffs A.K., J.P., M.S., R.G., The National Center for Fair and Open Testing. (Baker, Phillip) (Entered: 05/27/2020)
9 21 DAY Summons Issued re Complaint 1 as to Defendant The College Entrance Examination Board. (bm) (Entered: 05/28/2020)
10 21 DAY Summons Issued re Complaint 1 as to Defendant Educational Testing Services (ETS). (bm) (Entered: 05/28/2020)
11 WAIVER OF SERVICE Returned Executed filed by defendant Educational Testing Services (ETS). upon Educational Testing Services (ETS) waiver sent by Plaintiff on 6/1/2020, answer due 7/31/2020. Waiver of Service signed by Alan E. Schoenfeld. (Benedetto, Matthew) (Entered: 06/02/2020)
12 WAIVER OF SERVICE Returned Executed filed by defendant The College Entrance Examination Board. upon The College Entrance Examination Board waiver sent by Plaintiff on 6/1/2020, answer due 7/31/2020. Waiver of Service signed by Alan E. Schoenfeld. (Benedetto, Matthew) (Entered: 06/02/2020)
13 NOTICE of Appearance filed by attorney Matthew D Benedetto on behalf of Defendants Educational Testing Services (ETS), The College Entrance Examination Board (Attorney Matthew D Benedetto added to party Educational Testing Services (ETS)(pty:dft), Attorney Matthew D Benedetto added to party The College Entrance Examination Board(pty:dft))(Benedetto, Matthew) (Entered: 06/02/2020)
14 CORPORATE DISCLOSURE STATEMENT filed by Defendants Educational Testing Services (ETS), The College Entrance Examination Board (Benedetto, Matthew) (Entered: 06/02/2020)
15 FIRST AMENDED COMPLAINT against Defendants All Defendants amending Complaint (Attorney Civil Case Opening),,,, 1 , filed by Plaintiffs A.K., The National Center for Fair and Open Testing, M.S., J.P., R.G.(Baker, Phillip) (Entered: 06/22/2020)

 
 Case 2:20-cv-04502 Document 1 Filed 05/19/20 Page 1 of 46 Page ID #:1

1 PHILLIP A. BAKER, BAR ID #169571 pbaker@bknlawyersc.com
2 JENNIFER L. STONE, BAR ID #325493 jstone@bknlawyers.com
3 BAKER, KEENER & NAHRA, LLP 633 West 5th Street, Suite 5500
4 Los Angeles, California 90071 Telephone: (213) 241-0900/Facsimile: (213) 241-0990
5
MARCI LERNER MILLER, BAR ID # 162790 6 marci@milleradvocacy.com
CHRISTINA N. HOFFMAN, BAR ID #161932 7 choffman@milleradvocacy.com
MILLER ADVOCACY GROUP 8 1303 Avocado Avenue, Suite 230
Newport Beach, California 92660 9 Telephone: (949) 706-9734/Facsimile: (949) 266-8069

10
Attorneys for Plaintiffs
11

12

UNITED STATES DISTRICT COURT

13

CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION

14 Plaintiff J.P. on behalf of her minor son Case No.:

R.P., and all others similarly situated;

15 THE NATIONAL CENTER FOR FAIR

& OPEN TESTING doing business as

16 FAIRTEST, a Massachusetts

NATIONWIDE AND

corporation; A.K., individually and on CALIFORNIA CLASS ACTION

17 behalf of all others similarly situated; COMPLAINT

R.G. on behalf of her minor son J.G., and

18 all others similarly situated; Plaintiff

DEMAND FOR JURY TRIAL

M.S. on behalf of her minor daughter

19 Z.S., and all others similarly situated,

20

Plaintiffs,

21 vs.

22 EDUCATIONAL TESTING SERVICES (ETS), a New York corporation;
23 THE COLLEGE ENTRANCE EXAMINATION BOARD, a New York
24 corporation, doing business as THE COLLEGE BOARD; and
25 DOES 1 through 50, inclusive,

26

Defendants.

27

28 ///

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1

Plaintiffs, Plaintiff J.P. on behalf of her minor son R.P. and all others similarly

2 situated; THE NATIONAL CENTER FOR FAIR & OPEN TESTING (“FairTest”);

3 A.K., individually and on behalf of all others similarly situated; R.G. on behalf of her

4 minor son J.G., and all others similarly situated; Plaintiff M.S. on behalf of her minor

5 daughter Z.S., and all others similarly situated (collectively, “Plaintiffs”), allege and

6 plead as follows:

7

INTRODUCTION

8

1. Plaintiffs bring this suit against Defendants to recover the damages owed to

9 them and others similarly situated and for injunctive relief as a result of the Defendants’

10 failure to allow access to and failure to administer its Advanced Placement (“AP”)

11 program properly and without prejudice.

12

2. The College Board is involved at every level of the college preparation,

13 testing, admissions, financial aid, and placement process. It is the leading player in the

14 higher education industry responsible for the fates of millions of high school students

15 every year, deciding who will be recruited, who will apply, who will be accepted, who

16 will receive financial aid, and who will be able to afford college and other

17 postsecondary opportunities. The Educational Testing Service (“ETS”) is responsible

18 for the development, administration, and scoring of College Board’s assessments,

19 including AP exams.

20

3. AP is a program offered by the College Board that offers college-level

21 courses and examinations to high school students. Colleges and universities frequently

22 grant placement and course credit to students who obtain passing scores on their AP

23 examinations. The length of time each student will spend in college, their curriculum,

24 and how much they pay to attend college are factors heavily influenced by College

25 Board and the AP opportunities available to students. The College Board claims that

26 AP courses and examinations also favorably impact college admissions decisions by

27 demonstrating to admissions officers that a student is prepared for college-level work.

28

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1 AP courses strengthens a student’s high school transcript and help students qualify for

2 scholarships.

3

4. In March of 2020, schools around the world moved to distance learning

4 due to the COVID-19 pandemic. The College Board was faced with the decision of

5 cancelling its popular and profitable AP program for the year, postponing the exams, or

6 offering them at home to students. The College Board made the decision to offer the

7 AP exams to students at home but with significant structural changes.

8

5. The College Board was immediately made aware by numerous sources,

9 including counselors, educators, advocates and families, that there were serious

10 concerns that the at-home AP exams would not be fair to students who have no

11 computer, access to Internet or quiet workspaces from which to work, or to under-

12 resourced students in general. Even as the test began, questions remained about the

13 availability and applicability of legally required accommodations for students with

14 disabilities, the fair access to connectivity for all students, test security, and score

15 comparability.

16

6. Counselors, educators, advocates, and families immediately reached out to

17 The College Board to make them aware of their serious concerns with the at-home AP

18 format’s likely impact on students who have no computer, access to Internet or quiet

19 workspaces from which to work, or on under-resourced students in general. Even as the

20 test began, questions remained about the availability and applicability of legally

21 required accommodations for students with disabilities, connectivity, test security, and

22 score comparability.

23

7. The College Board acknowledged that these issues existed, but it did not

24 change its policies to address them. On May 14, 2020, after 3 full days of at-home AP

25 exams, the College Board admitted that there was a measurable failure rate in uploading

26 exams, and it attempted to change its policies going forward. The College Board’s

27 President, David Coleman acknowledged in an email that, “we can't control the

28 conditions in students' homes.” Technical problems with the digital versions of the AP

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1 exams caused and continue to cause tremendous angst for high school students and their

2 parents during this already stressful time.

3

8. Before this year, high school students took their AP exams at school during

4 the regular school day hours in a controlled and regulated environment where they could

5 ask for assistance if necessary. The College Board acknowledged that it knew moving

6 the exams home may exclude some students from testing at all, stating that, “We

7 recognize that the digital divide could prevent some low-income and rural students from

8 participating.” The College Board moved the AP exams to students’ homes under the

9 present conditions despite this acknowledgement. In doing so, the College Board

10 knowingly discriminated against under-resourced students, disabled students, and

11 students in remote locations, and it failed to honor its commitments to students and their

12 families.

13

9. After one day of testing, it became clear that the College Board and ETS

14 had failed to fairly, competently, or equitably administer the AP exams. The students

15 who relied on AP scores for the financial benefits of college placement and credit

16 experienced technical glitches, timing issues, and a heightened level of anxiety and

17 distress. Reports of anywhere between 5% and 20% of examinees were unable to

18 submit their responses through the at-home testing platform during the first three days

19 of AP exams. One AP Coordinator reported a failure rate of 30%. Some students could

20 only submit partial responses, and others could not even log on to take the exams.

21

10. Despite the fact that these are challenging times for families, The College

22 Board offered no acceptable remedies to students whose lack of digital access prevented

23 them from fairly testing. Nor did it offer remedies to students who experienced glitches

24 with the AP platform. On May 15, 2020, The Chronicle of Higher Education reported,

25 “AP Tests During Covid-19: Heartbreak, Technical Glitches, and Anonymous

26

27

28

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1 Intrigue.”1 On the same day, The Washington Post reported, “College Board Says New

2 AP Test Online Going Well – But Students Report Big Problems.”2

3

11. The College Board intends to move all of its assessments to an at-home

4 format, including the SAT; however, this year’s AP exam administration makes it

5 perfectly clear that until the technical issues, the digital divide and other inequities are

6 adequately addressed, it cannot not do so.

7

12. The challenge of the at-home AP exam format is only the final hurdle for

8 many AP students, and it is also one step that many students may never even reach.

9 Some AP students are fully denied access to AP exams and others must overcome

10 additional hurdles to obtain access to AP exams based solely on where they are enrolled

11 in school. Access is particularly challenging for students enrolled in California public

12 charter schools or homeschools.

13

THE PARTIES

14

Plaintiffs:

15

13. Plaintiff J.P. is acting on behalf of her minor son R.P. and all others

16 similarly situated. R.P. is a high school student who is registered to take at-home AP

17 exams. Pseudonyms have been used throughout the complaint in order to protect the

18 identity of the minor Plaintiffs. Further the public has little legitimate interest in

19 knowing the true identity of the Plaintiffs. The Defendants will not be prejudiced by

20 allowing the Plaintiffs to proceed anonymously and in this manner until a protective

21 order is in place.

22

14. The National Center for Fair & Open Testing (“FairTest”) is a nationwide

23 public charity that operates in California. FairTest’s mission is to advance quality

24 education and equal opportunity by promoting fair, open, valid evaluations of students,

25 teachers, and schools. FairTest works on behalf of examinees to end the misuses of

26

27 1 https://www.chronicle.com/article/AP-Tests-During-Covid-19-/248792
2 https://www.washingtonpost.com/education/2020/05/15/college-board-says-new-online-ap-tests-are-going-well-students-
28 report-big-problems/

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1 standardized tests, placing special emphasis on eliminating the racial, class, gender, and

2 cultural barriers to equal opportunity. In pursuit of its mission, FairTest provides

3 information and technical assistance to students and parents as well as advocacy on a

4 broad range of testing concerns, including those relating to the at-home AP exams.

5

15. Plaintiff A.K. is acting individually and on behalf of all others similarly

6 situated. A.K. is a high school student who registered for and took AP exams.

7

16. Plaintiff R.G. is acting on behalf of her minor son J.G and all others

8 similarly situated. J.G. is a high school student who is registered to take at-home AP

9 exams.

10

17. Plaintiff M.S. is acting on behalf of her minor daughter Z.S. and all others

11 similarly situated. Z.S. is a high school student who is registered to take one at-home

12 AP exam.

13

Defendants:

14

18. Defendant EDUCATIONAL TESTING SERVICE (“ETS”) is registered as

15 a non-profit organization headquartered in Princeton, New Jersey. ETS has multiple

16 offices in the State of California, including within this jurisdiction. Plaintiffs are

17 informed and believe that ETS administers AP exams on behalf of Defendant College

18 Board.

19

19. Defendant COLLEGE ENTRANCE EXAMINATION BOARD (“The

20 College Board”) is a New York corporation with its principal place of business in New

21 York, New York, which does business in California. Plaintiffs are informed and believe

22 that the AP program is fully owned and operated by The College Board.

23

20. Defendants ETS and College Board are referred to collectively herein as

24 “Defendants.”

25

21. The true names and capacities of defendant DOES 1 through 50, inclusive,

26 whether individual, corporate, associate or otherwise, are unknown to Plaintiff, who

27 therefore sues said defendants by such fictitious names and will amend to allege their

28 true names and capacities when ascertained. Plaintiffs are informed and believe that

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1 each of the DOE defendants is responsible for the acts or omissions alleged in this

2 complaint, and that Plaintiffs’ injuries and damages were proximately caused by the acts

3 or omissions of these unnamed defendants.

4

22. Plaintiffs are informed and believe, and based thereon allege, that each of

5 the Defendants herein was at all relevant times the principal, agent, alter-ego, joint-

6 venturer, partner, affiliate, manager, subsidiary, servant, employee and/or co-conspirator

7 of each other Defendant, and in performing the acts described in this complaint, was

8 acting in the scope of his, her or its authority with the consent of each other Defendant.

9 Each Defendant ratified and/or authorized the wrongful acts, conduct, omissions, or

10 commissions of each of the other Defendants. At all relevant times, each Defendant

11 acted with full knowledge of the conduct of each of the other Defendants, with the

12 intention to cooperate therewith.

13

23. Plaintiffs do not know the true names and capacities, whether corporate,

14 partnership, associate, individual, or otherwise of Defendant issued herein as DOES 1

15 through 10, inclusive, under the provisions of Central District of California, Local Rule

16 19-1. Defendant DOES 1 through 50, inclusive, are in some manner responsible for the

17 acts, occurrences and transactions set forth herein, and are legally liable to Plaintiff.

18 Plaintiff will seek leave to amend this Complaint to set forth the true names and

19 capacities of the fictitiously named Defendants, together with appropriate charging

20 allegations, when ascertained.

21

24. All acts of corporate employees as alleged were authorized or ratified by an

22 officer, director or managing agent of the corporate employer.

23

JURISDICTION AND VENUE

24

25. This Court has subject matter jurisdiction over this action pursuant to the

25 Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d), as the proposed class contains

26 more than 100 members, at least one of whom maintains citizenship in a state diverse

27 from the defendant, and seeks in the aggregate more than $5,000,000, exclusive of costs

28 and interest.

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1

26. Venue is proper pursuant to 28 U.S.C. § 1391(b) & (c) because a

2 substantial part of the events or omissions giving rise to the claim occurred in this

3 judicial district, and because Defendants are subject to the Court’s personal jurisdiction

4 in this judicial district.

5

27. This Court has personal jurisdiction over the parties hereto, because the

6 Defendants are corporations that do business throughout the State of California. The

7 facts underlying this case arise from the State of California and from within this judicial

8 district. Defendants’ conduct substantially impacts the State of California and its

9 students. Plaintiffs are informed and believe that each Defendant herein has sufficient

10 contacts with California so as to make proper the exercise of personal jurisdiction over

11 them, and have sufficient minimum contacts so as to render the exercise of personal

12 jurisdiction permissible under traditional notions of fair play and substantial justice.

13

COMMON FACTUAL ALLEGATIONS

14

28. The College Board claims that students who score a 3 or higher (out of 5)

15 on an AP Exam typically experience greater academic success in college and are more

16 likely to earn a college degree on time than non-AP students.3 As the only player in the

17 education market with this level of influence over high school curriculum, college

18 admissions, course placement, and financial outcomes, the College Board knows that

19 access to its AP exams must be fair, reliable, and affordable.

20

29. To ensure that low-income students can access AP Exams at a reduced

21 cost, Every Student Succeeds Act (ESSA) provides funding for AP Exams and courses

22 under the Title IV, Part A block grant.4 Additional funding is also available for states

23 and districts to cover AP Exam fees for low-income students. In California, an

24 increasing number of lower income students are enrolling in AP courses. Of the 58.7

25

26

27 3 https://collegereadiness.collegeboard.org/about/benefits/connect-to-ap

28 4 https://professionals.collegeboard.org/testing/states-local-governments/new-education-policies/essa-federal-funding-ap

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1 percent of the state's K–12 students eligible for the free or reduced-price lunch program

2 in the Class of 2017, 45.5 percent took at least one AP exam.5

3

30. Each year, millions of high school students take 38 different AP exams at

4 the end of the school year. In 2019, 3.1 million students took a total of 4.9 million AP

5 exams at school. In 2020, 3.4 million students are registered to take over 5 million AP

6 exams. During the first week of testing, students took or attempted to take over 2.2

7 million AP exams. The cost of an AP exam is generally between $100 and $150 per test.

8

31. In 2018, the College Board earned over $480 million dollars from its AP

9 program alone. The College Board collected its exam fees in the Fall of 2019 for the

10 Spring 2020 exams.

11

32. AP exams provide a means for high school students to earn college credit

12 while in high school. Defendant College Board advertises that, “by taking an AP course

13 and scoring successfully on the related AP Exam, [a high school student] can save on

14 college expenses: most colleges and universities nationwide offer college credit,

15 advanced placement, or both, for qualifying AP Exam scores... These credits can allow

16 students to save college tuition, study abroad, or secure a second major.” College Board

17 further advertises that, “[e]arning a qualifying score on the AP Exam can help you

18 advance and avoid required introductory courses – so you can move directly into upper-

19 level classes and focus on the work that interests you most.”

20

33. The AP program is the only widely available high program allowing

21 students to earn college credits. Defendant College Board organizes and administers the

22 AP tests. The AP program is the only means for high school students to test for college

23 credit in dozens of subject matters. In order to obtain college credits, students are

24 required to pass the AP test, as scored and reported by Defendants.

25

34. Passing scores (a 3, 4, or 5) on the AP exams can save students and their

26 parents thousands of dollars in college tuition and costs. A successful student who takes

27

28 5 https://www.cde.ca.gov/nr/ne/yr18/yr18rel16.asp

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1 multiple AP exams can potentially finish college a year or more earlier than students

2 who did not earn AP credit during high school. Some students understandably wanted

3 an option to take their AP exams for college credit when COVID-19 forced their

4 schools to convert to distance learning and they could no longer test at school.

5

35. However, the format of the at-home AP exams is different from the format

6 students are accustomed to and different from the practice AP exams they have taken.

7 The 2020 home-based AP exams are digitally-based instead of on paper as they have

8 always been in the past. The new exams are scheduled to last only 45 minutes (actually

9 40 minutes with the required 5 minutes to begin uploading answers before the test ends)

10 instead of 3 hours, and all tests in the same subject are given at exactly the same time.

11 This means that some students in one part of the world could be taking an exam in the

12 middle of the night, while others are taking it in the middle of the day. Students in

13 Hawaii begin their first exams each day at 6 a.m., while students in New York begin the

14 same exams at noon. The 2020 exams include material covered until the time of the

15 COVID-19 breakout instead of the entire course curriculum. Most importantly, the

16 exams are taken at home, where the testing environment can be unpredictable and

17 distracting.

18

36. Some of the issues with the at-home format should have been anticipated.

19 As soon as the College Board announced its plans to administer at-home exams,

20 educators, students, parents, and AP coordinators voiced their concerns over equity and

21 access issues. They also expressed concerns about timing and technical problems with

22 the new format as well as score validity.

23

37. The College Board announced prior to the administration of the at-home

24 exams that certain disability accommodations that were previously provided would be

25 modified, eliminated, or were deemed “unnecessary” due to the new format.

26

38. Dozens of educators and counselors wrote an “Open Letter” to the College

27 Board on April 22, 2020 outlining why the exams would not be fair to students who

28 have no computer, access to Internet or quiet work spaces from which to work, or to

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1 students with disabilities who would not have their approved accommodations.6 Plaintiff

2 FairTest announced that its concerns about the 2020 AP exams included computer

3 equipment and technology, connectivity, the availability of legally required

4 accommodations, security, and score comparability.

5

39. The College Board did not address these issues or change its policies prior

6 to the administration of the at-home AP exams. In fact, on May 14, 2020, after 3 full

7 days of AP exam administration, College Board’s President David Coleman

8 acknowledged in an email that, “we can't control the conditions in students' homes.” He

9 added, “Students may face technology or internet issues, need to tend to unexpected

10 family obligations, or face other disruptions that will impact their testing experience.

11 Like the virus itself, these disruptions will disproportionately impact low-income and

12 underrepresented students.” Instead of changing the testing format to address the

13 disparities among student testing environments, however, Mr. Coleman recommended

14 that students explain their disadvantages to college admissions officers. In an admission

15 that the tests are not valid for all students, Coleman said, “We're working to ensure that

16 students who take the exam in challenging situations can share context with admissions

17 officers about their exam experience.”

18

40. The first week of the 2020 AP exams revealed the deep digital divide

19 among AP test-takers, and it became clear how the revised exam format

20 disproportionately impacted certain groups of students, including those who are under-

21 resourced, who lack access to technology or quiet workspaces, students with disabilities,

22 and students testing in non-ideal time zones. A number of students suffered from

23 technical glitches, timing issues, issues with their computer software, disability

24 accommodation issues, and widespread panic due to the inability to reach anyone at the

25 College Board for assistance.

26

27

28 6 https://www.washingtonpost.com/education/2020/04/22/an-open-letter-college-board-about-online-at-home-ap-tests/

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1

41. After the first week of testing, The College Board reported a failure rate of

2 only 1%, but AP coordinators and students told a different story. Schools estimated that

3 anywhere between 5-20% of their AP test-takers were unable to submit their exam

4 responses through College Board’s testing platform during the first week. Other

5 students could not finish their exams or log into the platform at all despite practicing

6 beforehand.

7

42. One AP Calculus teacher reported that 3 out of her 13 students, or 23% of

8 her students, faced technical obstacles submitting their work during the AP Calculus AB

9 examination. This Santa Barbara-area teacher reported that one of her students received

10 an upload error message after the testing time had expired. A second student had issues

11 with her devices, even though she had practiced logging on and taking mock exams with

12 her teacher. A third student in the class reported that her screen froze, then went blank,

13 and then logged the student out upon trying to submit her answers. This student was

14 never able to get back into the exam to upload her submissions.

15

43. Another AP Coordinator reported that, “This whole thing was a mess. It

16 was unprofessional and added more stress to the students, teachers, families, and

17 coordinators.” Another AP coordinator reported a 10% failure rate on the AP Calculus

18 exam. These reports from the ground to do not square up with the College Board’s

19 statement that “the vast majority” of the 2.2 million students who tested last week

20 successfully completed those exams, or its written statement that less than 1% technical

21 of test takers encountered technical difficulties.

22

44. Students who experienced issues with the College Board’s platform

23 emailed their time-stamped work to the College Board, but it was not accepted. They

24 were told that their only remedy was to retake the exam over the summer, if they

25 qualified for a retake exam. Students’ anxiety continued to grow as the week progressed

26

27

28

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1 due to legitimate fears that they would complete their work but not be unable to submit

2 it and would then have no remedy.7

3

45. Students have not been able to confirm access to the retake exams despite

4 technical failures. Students have also reported that they have two AP exams scheduled

5 for the same retake day and that they were told by The College Board that they would

6 have to choose only one exam to take.

7

46. FairTest received an influx of reports about at-home AP exam failures and

8 the lack of remedies. One parent reported, “We also had technical issues trying to sign

9 up for a make-up exam. I spent over an hour on phone with CB. They refused to allow

10 me to speak to supervisor and offered no reassurance that the problem would be fixed

11 by a makeup.”

12

47. One student reported that, “Due to a technical malfunction on the College

13 Board's website during the APUSH exam (AP U.S. History), I was unable to submit by

14 work. My dad has been critically ill and hospitalized for the past few weeks and despite

15 this challenge, I persisted in preparing for my AP exams because I wanted to achieve

16 my goals of earning college credits. Now, due to a technical issue on the College

17 Board's website, I am going to have to continue working during this incredibly stressful

18 time in my life to prepare to re-take the exam in June.”

19

48. One parent said, “My son has time stamped images of his Physics AP

20 answers. Why can’t college board find a way to accept those? We worry there is no

21 make up for the make-up test. What happens if this glitch happens on the make up?”

22 Another parent reported, “We also had technical issues trying to sign up for make-up

23 exam. I spent over an hour on phone with CB. They refused to allow me to speak to

24 supervisor and offered no reassurance that problem would be fixed by makeup.”

25

26

27 7 https://www.washingtonpost.com/education/2020/05/15/college-board-says-new-online-ap-tests-are-going-well-students-
report-big-problems/
28 https://www.insidehighered.com/admissions/article/2020/05/18/students-complain-they-cannot-submit-ap-tests

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1

49. One student described the experience of carefully preparing for the exam

2 but still being unable to submit his responses. “I took all precautions once I heard from

3 some students that there were submission errors. I updated my computer, used chrome

4 because it was recommended by the college board, sent my brother to my dad’s house

5 so I wasn’t distracted during my test, and made my family get off the wifi so I could

6 have the maximum potential my wifi could give me. . . Then, when I took Physics 1, my

7 first answer submitted with no problem, but my second question wouldn’t submit.”

8

50. In response to the complaints, the College Board officials initially claimed

9 that their systems did not malfunction, but the problems were instead caused by

10 students. Students were instructed to update their browsers, disable plug-ins, and make

11 sure their devices were properly set up.

12

51. Ultimately, in response to what some called a “tsunami” of complaints, the

13 College Board made some adjustments to its policies, announcing on May 17, 2020 that

14 it would provide a backup email submission option of browser-based exams for students

15 testing between May 18 and May 22, 2020. Nonetheless, if the student is unable to

16 upload responses through the exam platform or successfully transmit by email at the

17 time of the exam, as in the case of a home connectivity problem, the student would still

18 have to request a makeup exam. In addition, the College Board will not accept email

19 transmissions from students who already tested between May 11 and May 15, 2020.

20

52. Students taking exams between May 18 and May 22, 2020 have an added

21 safeguard, providing a slightly more desirable and less stressful testing environment for

22 these test-takers. Students who experienced technical failures during the first week have

23 still not received any confirmation that they will be eligible to take a makeup exam or

24 that they will receive the added safeguard of email submission, even for their retakes.

25

53. An online petition is circulating, called “Let Students Submit AP Work,”

26 which requests remedies for the students who tested between May 11 and May 15, 2020

27 and could not submit their work.8 The Petition states that, “We, along with all our

28
8 https://www.change.org/p/college-board-let-students-re-submit-ap-work?signed=true
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1 sisters and brothers in humanity, have already been having a hard time because of

2 COVID and we were already tired and stressed out and a lot of us have been struggling

3 with sadness and mental health issues. This will make all of that worse. Fortunately,

4 there's a solution. Most of us still have our work and answers saved. The college board

5 can give us time to re-submit after they fix their website.” As of the time of filing, the

6 petition had over 20,000 signatures.

7

54. Students who do not wish to retake their exams, and even those who do not

8 wish to test at all, cannot receive a refund of their test fees directly from the College

9 Board. Even though the College Board collected money for the AP exams at least six

10 months ago, it will not directly issue refunds to students. The College Board has stated

11 that after both the regular and makeup testing windows have passed, if students have not

12 taken or attempted to take any exams, their schools will be refunded the cost of their

13 exam fees. It is then up to the students to request fee refunds from their schools. The

14 College Board’s website does not provide any instructions to students about how

15 students can receive fee refunds. Its website says, “[L]ocal school policy determines the

16 amount of the refund.”

17

55. These are challenging times for high school students and their families,

18 emotionally and financially. Students are entitled to the valid and reliable exam they

19 signed up and paid for, absent the severe stress and anxiety associated with the new

20 format. Despite collecting what Plaintiffs believe to be approximately half a billion

21 dollars in exam fees, The College Board has failed to provide students with an AP exam

22 that is similar to the one they purchased.

23

56. One counselor reported that, “For students this was a traumatic experience,

24 especially after all the time they put into salvaging this course/the year/etc. CB should

25 have troubleshooted the "what-ifs" ahead of time and had the policy in place for

26 students to submit answers that did not immediately go. Technology issues are not a

27 new phenomenon! What more can these poor kids be penalized for? CB needs to accept

28 the answers that would not submit last week.”

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1

57. The “digital divide” was not properly managed. Students are entitled to an

2 exam that does not discriminate based on their lack of access to resources or based on

3 their disabilities. The College Board represented that it would provide the necessary

4 technology to all students; however, there is more than one type of device required to

5 take the AP exams this year and different exams require different equipment. For

6 example, all language tests must be taken on a phone or tablet (only specific models),

7 while others are taken on a computer. Although the College Board claimed that it would

8 get a device to everyone who needed one, the method of requesting a device required

9 digital access and was therefore not accessible to the students who needed it.

10

58. As of the first day of AP testing, the College Board said that it had

11 “connected” with 27,000 students, less than 1% of this year’s AP exam-takers. The

12 distribution of devices to under-resourced students does not fix slow or unavailable

13 internet service, multiple family members using the internet at the same time, or other

14 issues contributing to poor testing environments.

15

59. Some students have reported that they have nowhere to take their exams at

16 home where they can be free of distraction. It is unrealistic to think that all students

17 have quiet, private spaces at home in which to test. Lower income students are much

18 more likely to face cramped housing, siblings and parents sharing the same workspace,

19 internet connectivity problems, noisy environments, and less comfortable testing spaces.

20 It has been reported that one New Jersey teacher, worried about her star AP English

21 student’s lack of reliable internet at home, inquired with the College Board but was told

22 “have her use the free WiFi at McDonald’s.”9

23

60. Prior to the at-home AP exams, counselors, educators and advocates

24 requested that The College Board provide additional testing time to all students. An

25 Open Letter to the College Board said that students should be provided with a flexible

26 time period, not a fixed time, in which to test. As support for this request, the Letter

27

28 9 https://www.nydailynews.com/opinion/ny-oped-taking-an-ap-test-outside-mcds-20200518-pbzbctec4rgnvkhlwrzfsd3poe-
story.html
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1 stated, “The proposed time limitations have not been tested under these extreme

2 conditions. With the extra stress associated with this year’s tests, many students fear

3 they will not be able to complete the tests in the allotted time frames. We expect this to

4 cause widespread anxiety and panic from minute one. If students know they have

5 enough time, they may still be stressed, but they will be able to relax a little and may

6 even complete the tests with a small amount of extra time, time that may be necessary to

7 accommodate differences in access.”10

8

61. Students have already reported issues with the time limits imposed by this

9 year’s AP exams. The exams have not been properly piloted for time limits, and they are

10 more speeded and abridged than the original versions. The College Board has

11 acknowledged the timing issues. The 2020 AP Testing Guide states, “Don't worry if you

12 don't complete all parts of the question before you need to attach and submit your

13 response. To give students as many different chances to demonstrate what they know as

14 possible, a question may have more parts than can be answered in the allowed time. You

15 don't need to complete the entire question to get a score of 5, but you do need to submit

16 whatever work you've done.” While this could alleviate some students’ despair about

17 not finishing their exams, it confirms the fears of other students that their scores will be

18 seen as invalid or meritless.11

19

62. Adding to the perception that the scores on this year’s exam may not be fair

20 or consistent is the ability of high schools to review students’ scores and request score

21 increases. The 2020 AP Testing Guide says that “AP teachers will have the chance to

22 review your score and your exam responses this summer. If you don't receive a score of

23 3 or higher and your teacher is convinced you should have, your teacher will be able to

24 engage with the AP Program's college faculty partners to review and confirm your

25 score, ensuring it's fair and appropriate.” This policy benefits students at schools with

26

27
10 https://www.washingtonpost.com/education/2020/04/22/an-open-letter-college-board-about-online-at-home-ap-tests/

28
11 https://apcentral.collegeboard.org/pdf/ap-testing-guide-2020.pdf

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1 more resources, and it discriminates against students who are underprivileged or who

2 attend under-resourced schools.12

3

63. Moreover, there is no guarantee that the AP exam scores will count for

4 anything in the collegiate landscape. While some colleges have said they will accept the

5 credit, others have remained silent. Some colleges view at-home testing as inherently

6 inequitable.

7

64. Defendants’ unlawful conduct has caused and will continue to cause

8 substantial and irreparable damage and injury to Plaintiffs in ways that cannot be

9 compensated with money, and Plaintiffs have no speedy, plain, or adequate remedy at

10 law. Students pay for these AP exams but will have disadvantages due to the College

11 Board's restrictions and practices discussed herein.

12

65. If Defendants’ actions are not remedied immediately, Plaintiffs will also

13 suffer injuries, such as the cost of preparing for yet another set of AP exams.

14

Students with Disabilities

15

66. When the College Board announced the new at-home testing format, it

16 initially stayed silent on accessibility and accommodations for disabled students. After

17 parents, teachers and counselors repeatedly asked for more details about

18 accommodations, the College Board announced a month before the AP exams were

19 scheduled to begin that all accommodations would be provided on the at-home exams. S

20 Still, no details about how the exams would be delivered to students with disabilities

21 were released at that time.

22

67. On April 27, approximately two weeks before the exams were scheduled to

23 begin, the College Board finally released information regarding disability

24 accommodations. 13 Students were told that extended time would be provided through

25 the online exam. They were also told that they needed to use their own assistive

26

27

28 12 Id.
13 https://apcentral.collegeboard.org/pdf/ap-testing-guide-2020.pdf?SFMC_cid=EM305179-&rid=80697368
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1 technology, such as screen reader software, that was compatible with the at-home AP

2 platform.

3

68. The College Board’s announcement regarding test accommodations also

4 stated that “Students approved to use specific devices or aids may use what they have

5 access to at home.” In other words, The College Board would not be providing any of

6 these devices or aids, even if the students had access to them during AP exams taken at

7 school.

8

69. Assuming the availability, willingness and ability of students’ household

9 members, the College Board stated that students approved for a reader or scribe “may be

10 assisted by a family or household member while testing.” These tasks are ordinarily

11 performed by a trained staff member at school during AP exams.

12

70. Some students who were initially approved for 50% extended time were

13 initially told they had their 50% time built into the exams. On May 7, less than one

14 week before the AP exams were scheduled to begin, some, but not all, of those students

15 with the accommodation of 50% extended time were informed they would automatically

16 receive 100% extended time (those with 100% extended time did not get more time).

17 Students with this 50% extended time were informed this would take the place of their

18 breaks. Some students with 50% extended time did not want this additional time,

19 because they have to wait the time for each question of the exam has passed to move to

20 the next question.

21

71. In addition, with the additional time, students who have two exams on one

22 day have little to no break between them. For example, there are exams scheduled at

23 11:00 a.m. and 1:00 p.m. on the same day. So, if a student with extended time has 90

24 minutes to finish the first exam at 11:00 a.m., he or she would have to start the 1:00 p.m.

25 exam immediately thereafter at 12:30 p.m. There is no time to take a break, as the AP

26 instructions specifically require students to log on 30 minutes before their exams

27 commence.

28

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1

72. “Breaks-as-needed” is a common disability accommodation, especially for

2 students with medical issues such as diabetes. These students are generally not given

3 extended testing time, but their breaks do not count as part of their testing time. With

4 the 2020 format, there are no breaks at all.

5

73. Many disability accommodations offered to the at-home AP examinees are

6 dependent upon access to purchased software. Other accommodations require the

7 availability of an adult who happens to be free during testing time. This available adult

8 must not be working remotely in the home, or outside of the home and must also be

9 qualified to act as a reader or a scribe according to the College Board’s detailed

10 standards. These required circumstances again weigh heavily in favor of wealthier

11 students who have access to purchase software and adults who have the luxury of time

12 to help them take their AP exams.

13

74. All AP students were told that any disability accommodation requests

14 approved after the conversion to online testing would force them to forfeit their original

15 testing day and have only one opportunity to test. Some students needed to request

16 different or additional accommodations based upon exam’s format change.

17

75. The at-home AP exams have not been validated for students with

18 disabilities or for students with these accommodations. The inequitable access to

19 available household members and the disparity in technology invalidate the at-home AP

20 exam results.

21

Public Charter School Students and Homeschool Students

22

76. The change of the AP exam to the at-home format is only the final hurdle

23 for many students, and it is one hurdle that some students will never even reach. The

24 College Board denies access to students or causes them to incur additional costs to

25 access AP exams based solely on where they are enrolled in school.

26

77. The College Board decides who will and who will not be able to access its

27 AP program and the associated secondary, postsecondary and financial aid

28 opportunities. The College Board does not allow access on an equal and nonpartisan

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1 basis and makes false claims regarding the availability of its programs in its written

2 materials. The College Board has been made aware that it excludes groups of students

3 from its programs and their benefits. However, it has not made any effort to remedy the

4 situation.

5

78. The College Board determines what schools and what types of schools can

6 provide AP courses and administer AP exams. The College Board’s Level 1

7 authorization allows schools to provide AP courses to their students and receive their

8 students’ AP and other College Board test scores. Schools with Level 1 authorization

9 cannot administer AP or other College Board exams. The College Board’s Level 2

10 authorization allows schools to receive scores as well as administer AP Exams to their

11 students.

12

79. The College Board has denied certain classes of schools, including public

13 charter schools, the opportunity to administer AP exams, if their curriculum is partially

14 or entirely non-classroom based. Even after the AP exams moved to an at-home format

15 this year, students who attended Level 1 schools were not permitted to register for AP

16 exams. This policy is discriminatory and deprives students of the financial opportunities

17 that the AP program affords students who pass the exams.

18

80. In California, families have the option of sending their children to local

19 public schools, public charter schools or private schools. As of the 2017–18 school year,

20 the number of California students enrolled in charter schools was approximately

21 628,849, or approximately ten percent of the public school student population

22 in California.14 Approximately 25% of California charter schools are either partially or

23 exclusively non-classroom-based (independent study).

24

81. There are approximately 120,000 public independent study high school

25 students in California.15 An estimated 15-20% of these independent study students have

26

27
14 https://www.cde.ca.gov/sp/ch/cefcharterschools.asp
28
15 Id.
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1 documented disabilities, and this number is on the rise due to the personalized learning

2 opportunities offered through independent study.

3

82. The College Board does not allow public charter schools that offer

4 independent study programs or blended learning to administer AP exams to their own

5 students, even if they are qualified to teach the curriculum. There are countless other

6 small private schools, homeschool and religious schools that are not College Board-

7 approved test centers. Students at these schools have no access to AP exams or

8 additional barriers.

9

83. Families at schools without the College Board’s approval to test are

10 required to find willing test centers on their own, without the assistance of the College

11 Board. If asked, the College Board will provide parents with a list of all local schools

12 that are approved to administer the AP exam, and parents can call around hoping to find

13 one that will accept their student. Based on Plaintiffs’ experiences, few schools actually

14 accept outside students, and the schools on the College Board’s lists may be hundreds of

15 miles away from their homes. Some schools that do agree to test outside students charge

16 exorbitant sums on top of the official test fees. Test centers that accept outside students

17 are generally less willing to accept disabled students with accommodations for AP

18 testing.

19

84. The College Board’s policy says that “The AP Program encourages AP

20 coordinators to assist homeschooled students, students from virtual schools, and

21 students whose schools don’t offer AP Exams,” but there is no requirement that they do

22 so and no alternative if parents cannot locate a willing test center on their own.

23

85. A.K. is a public charter school student with disabilities who resides in Long

24 Beach, California. His high school does not have authorization to administer AP exams.

25 One local high school would not administer A.K.’s AP exams with accommodations,

26 saying that it had a “limited number of proctors and it sounds like [the student] will

27 require a designated proctor because of the specific accommodations from the College

28 Board.”

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1

86. Z.S. attends a public charter school that offers an independent study

2 curriculum. Z.S. and her siblings have always been educated through homeschooling or

3 through an independent study program due to religious reasons. Her school is not a

4 College Board-approved test center, but she wished to take the AP English exam after

5 having taken the course.

6

87. In the Fall of 2019, Z.S.’s mother called approximately 14 schools in an

7 attempt to register her to take the AP exam. Her neighborhood high school would not

8 accept her for testing, and neither would any of the schools on the list provided to her by

9 the College Board. Z.S.’s mother finally heard of a school near her home that would test

10 outside students for an additional fee of $150 on top of her exam registration fee.

11

88. Due to the testing difficulties, some Level 1 schools now discourage

12 enrollment in AP courses or have stopped offering them altogether, even though this

13 means that their students may forego the opportunity to earn the college credits (and

14 cost savings) that come along with those courses.

15

Background of Plaintiffs

16

FairTest:

17

89. The National Center for Fair and Open Testing (“FairTest”) is a

18 Massachusetts public charity that operates in California, nationwide, and internationally.

19 FairTest’s mission is to advance quality education and equal opportunity by promoting

20 fair, open, and valid evaluations of students, teachers, and schools. FairTest also works

21 to end the testing practices that impede those goals, including standardized testing that

22 negatively impacts students with disabilities, underrepresented minorities, gender bias,

23 and dozens of other issues involving the fair evaluation of students, teachers, and

24 schools.

25

FairTest engages in three main activities:

26

1) Education of the public. FairTest serves as a unique source of information

27

about testing and alternatives for educators, parents, public officials, journalists

28

and policymakers.

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1

2) Advocacy. FairTest advocates on behalf of low income families, disabled

2

students and other marginalized student groups to close the gap in admissions

3

and outcomes. FairTest coordinates and catalyzes educators, citizen groups and

4

parents to bring about needed assessment reforms.

5

3) Strategic Assistance. FairTest provides training and advice to parents,

6

educators and a broad range of civil rights organizations about assessments.

7

90. FairTest places special emphasis on eliminating the racial, class, gender,

8 and cultural barriers to equal opportunity posed by standardized tests. In pursuit of its

9 mission, FairTest provides information, technical assistance and advocacy on a broad

10 range of testing concerns, focusing on three main areas: K-12, college and university

11 admissions, and employment tests.

12

91. Since the College Board announced its changes to the AP exam two

13 months ago, FairTest has expended significant resources addressing the issues

14 associated with the at-home exam and advocating for the student groups most affected.

15 In the past two months, FairTest has repeatedly communicated its concerns about the

16 2020 AP exams through social media, interviews with journalists, phone calls, and

17 emails.

18

92. Specifically, FairTest emphasized the potential issues involving computer

19 equipment and technology, connectivity, the availability of legally required

20 accommodations, test security and score comparability. In the last week alone, Robert

21 Schaeffer, FairTests’ Interim Executive Director, communicated with dozens of

22 students, parents, and reporters specifically about the glitches and “snafus” that took

23 place during the first week of AP exams. Dozens of other queries were sent to FairTest's

24 general email box and referred for response.

25

93. In the last week, Akil Bello, FairTest’s Senior Director of Advocacy and

26 Advancement, has responded to hundreds of emails about AP issues and recorded close

27 to 200 accounts of student testing issues. He has spent additional time advocating for

28 under-resourced students taking the AP exams this year through social media and

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1 interviews with reporters. In the last two weeks, nearly all of Mr. Bello’s time has been

2 devoted to AP-related issues.

3

94. FairTest addresses multiple testing reform issues involving high stakes

4 testing, college admissions testing, mandatory state testing, K-12 admissions, as well as

5 graduation and promotion tests. Instead of expending its resources on the spectrum of

6 testing issues, FairTest has been forced to allocate a disproportionate amount of

7 resources in recent weeks to address the College Board’s AP failures.

8

R.G. on behalf of J.G.:

9

95. R.G. is acting on behalf of her minor son J.G, who is a high school junior

10 enrolled in four (4) AP courses this year: AP Calculus AB, AP Chemistry, AP United

11 States History, and AP English Literature and Composition. He paid for and registered

12 to take all four AP exams. On Tuesday, May 12, 2020, J.G. took the AP Calculus AB

13 examination and successfully submitted his work in a JPEG format. The next day,

14 while using the same computer, the same browser, and connected to the same Wi-Fi

15 network in the same room in his home, he took the AP Chemistry exam; however, when

16 he attempted to submit his work in the same JPEG format, he received a message

17 stating: “there was an error, we did not receive your submission.”

18

96. J.G. and his mother, R.G., immediately took a picture of his work, emailed

19 the College Board with his test work attached as a JPEG, and called the College Board.

20 They were unable to reach anyone after remaining on hold for 90 minutes.

21

97. As a result, J.G. applied to take a Retake Examination. In the application,

22 he had to explain why he needed the retake. J.G. received a message saying that he be

23 notified the week of May 25, 2020, if he was accepted for a Retake, less than a week

24 before the Retake was scheduled to take place.

25

98. After applying to retake the AP Chemistry exam, J.G. realized he will not

26 be able available to retake this test on the scheduled date because of a scheduling

27 conflict. If the College Board does not accept his work that was photographed, time-

28

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1 stamped, and promptly emailed to the College Board on May 13, 2020, he will not have

2 the opportunity to pass the test and receive the benefits of AP credit.

3

A.K.:

4

99. Plaintiff A.K. is a graduating senior with learning disabilities including

5 ADHD, sensory motor dysfunction, and a speech and language disorder. When A.K.

6 was in his 9th grade year at a public charter school, his mother contacted the AP

7 Coordinator at the local public school in his district in Long Beach, California, and A.K.

8 was initially approved to take the AP examination at the high school. When A.K.’s

9 mother informed the AP Coordinator that A.K. needed accommodations for his AP

10 Exam, the AP Coordinator told her that the school could no longer administer the test

11 for A.K. because it did not have a proctor or a teacher available to administer his

12 accommodations.

13

100. A.K.’s high counselor contacted the College Board to see if the charter

14 school could administer the examination. The College Board denied the request, and

15 A.K. had to find an alternative location. A.K.’s mother finally made private

16 arrangements for A.K.’s high school counselor to proctor A.K.’s AP test at the local

17 public school. In this case, the student and his family were solely responsible for

18 finding the proctor and ensuring he could even take the examination, making access

19 challenging and unduly burdensome.

20

M.S. on behalf of Z.S.

21

101. Plaintiff M.S. is acting on behalf of her minor daughter Z.S., who both

22 reside in the Central District of California. Z.S. is currently enrolled in AP English

23 Literature and Composition, and she took the AP examination on May 13, 2020. Z.S.

24 suffers from severe test anxiety, even under ordinary testing conditions. Z.S.

25 experienced heightened anxiety and fear due to the technical challenges involved with

26 the administration and submission of the exam. Under these rushed and condensed

27 conditions, Z.S. did not have time to complete the AP English exam on May 13th;

28 however, she is not eligible to retake the exam. The College Board’s website policy

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Case 2:20-cv-04502 Document 1 Filed 05/19/20 Page 27 of 46 Page ID #:27

1 expressly prohibits retakes of the examination when a student runs out of time:

2 “Running out of time to finish and submit your response is NOT an approved reason for

3 requesting a makeup test.”

4

J.P. on behalf of R.P.

5

102. Plaintiff J.P., on behalf of her minor son R.P. who is a sophomore at

6 Saugus High School, is currently enrolled in two AP classes, AP Chemistry and AP

7 World History. J.P. and R.P. live in the Central District. The AP Chemistry exam was

8 administered on May 20, 2020, the very day of the six-month anniversary of the tragic

9 Saugus school shooting.

10

103. Already under tremendous amounts of stress and anxiety due to COVID

11 and the anniversary of this horrific school event, R.P. began the AP Chemistry exam

12 and successfully submitted the answer to the first question. After finishing the second

13 of two questions with six minutes remaining, R.P. tried to submit his answer but

14 received an error message that his work would not upload, despite his careful attention

15 to following instructions. He and his mother actually practiced logging in, preparing,

16 and submitting answers the day prior to the real examination.

17

104. His mother J.P., an LAUSD teacher, immediately called the College Board.

18 After waiting on hold and transferring to several different departments, she finally

19 reached a customer service agent. J.P. asked whether College Board was experiencing

20 reports of similar technical problems, and rather than responding honestly, the College

21 Board customer service employee said they had received very few technical problem

22 reports, and blamed the student for using an out of date browser. R.P.’s browser was not

23 out of date.

24

105. J.P. asked if she could help her son R.P. submit the work, and was told no.

25 R.P. as a first week test-taker, does not have the same remedy nor did he have the same

26 test experience as the week two test-takers, who now have the opportunity to submit

27 their work if the College Board rejects submission attempts. R.P. has saved his entire

28

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Case 2:20-cv-04502 Document 1 Filed 05/19/20 Page 28 of 46 Page ID #:28

1 answer, including the unsubmitted portion to question 2, and requests that the College

2 Board accept his work and grade his test answers.

3

CLASS ACTION ALLEGATIONS

4

PlaintiffS bring this action on his own behalf, and as a class action on behalf of

5 the Classes defined herein, pursuant to, and properly maintainable under Fed. R. Civ. P.

6 23(a) and Fed. R. Civ. P. 23(b)(3). The Classes consist of tens of thousands of students

7 victimized by Defendants’ unfair and illegal practices. Specifically, Plaintiffs brings

8 this suit on behalf of the following Classes:

9

10

The “Nationwide Class”: All persons who are or were students who did

11

not have fair and equal access to, or were not able to complete, the 2020

12

AP exams as a result of the College Board's decisions prior to the

13

administration of the exams. The class excludes counsel representing the

14

class and all persons employed by said counsel.

15

16

The Fair Access “California Subclass”: All persons who are or were

17

students who did not have fair and equal access to, or were not able to

18

complete, the 2020 AP exams as a result of the College Board decisions

19

prior to the administration of the exams. The class excludes counsel

20

representing the class and all persons employed by said counsel.

21

22

The Disabled Students “California Subclass”: All persons who are or

23

were disabled students who did not have fair and equal access to the AP

24

exams due to the College Board's decisions. The class excludes counsel

25

representing the class and all persons employed by said counsel.

26

27

The Under-Resourced “California Subclass”: All persons who are or

28

were under-resourced students who did not have fair and equal access to

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1

the AP exams due to the College Board's decisions. The class excludes

2

counsel representing the class and all persons employed by said counsel.

3

4

The Denied Access Students “California Subclass”: All persons who

5

are or were students who were denied access to, faced additional burdens,

6

or were not able to complete, the 2020 AP exams as a result of the College

7

Board decisions prior to the administration of the exams. The class

8

excludes counsel representing the class and all persons employed by said

9

counsel.

10

11

Numerosity: The proposed classes are so numerous that individual joinder of all

12 their members is impracticable. While the exact number and identities of the Class

13 Members are unknown at this time, such information can be ascertained through

14 appropriate investigation and discovery. The disposition of the claims of these Class

15 Members in a single class action will provide substantial benefits to all parties and to

16 the Court.

17

Typicality: Plaintiff’s claims are typical of the claims of his respective Classes in

18 that his claims arise from the same event or practice or course of conduct that gives rise

19 to the claims of other class members, and is based on the same legal theory as their

20 claims.

21

Adequacy of Representation: Plaintiffs will fairly and adequately represent and

22 protect the interests of the Classes. Undersigned counsel has substantial experience in

23 prosecuting complex lawsuits and class action litigation. Plaintiffs and undersigned

24 counsel are committed to vigorously prosecuting this action on behalf of the Classes,

25 and have the financial resources to do so. Neither Plaintiffs nor their counsel have any

26 interests adverse to the Classes.

27

Superiority of Class Action and Impracticability of Individual Actions: Plaintiffs

28 and the members of the Classes suffered harm as a result of the College Board

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1 Defendants’ unlawful conduct. A class action is superior to other available methods for

2 the fair and efficient adjudication of the controversy. Individual joinder of all members

3 of the Classes is impractical. Even if individual Class Members had the resources to

4 pursue individual litigation, it would be unduly burdensome to the courts in which the

5 individual litigation would proceed. Individual litigation magnifies the delay and

6 expense to all parties in the court system of resolving the controversies engendered by

7 the Defendants’ common course of conduct. The class action device allows a single

8 court to provide the benefits of unitary adjudication, judicial economy, and the fair and

9 equitable handling of all Class Members’ claims in a single forum. The conduct of this

10 action as a class action conserves the resources of the parties and of the judicial system,

11 and protects the rights of the Class Members. Adjudication of individual Class

12 Members’ claims with respect to Defendants would, as a practical matter, be dispositive

13 of the interests of other members not parties to the adjudication, and could substantially

14 impair or impede the ability of other Class Members to protect their interests.

15

Common Questions of Law and Fact Predominate: In addition, the requirements

16 of Federal Rule of Civil Procedure 23 are satisfied by questions of law and fact

17 common to the claims of Plaintiff and of each member of the Classes and which

18 predominate over any question of law or fact affecting only individual members of the

19 Classes. Common questions of law and fact include, but are not limited to, the

20 following:

21

a. The questions of law and fact common to the Nationwide Class include the

22

following: (1) were members of the Nationwide Class entitled to equal

23

access to the AP exams?; (2) did Defendants' practices constitute breach of

24

contract?; (3) did Defendants' practices constitute breach of implied

25

covenant of good faith and fair dealing?; (4) did Defendants’ practices

26

constitute negligence?; (5) did Defendants’ practices constitute negligent

27

misrepresentation?; (6) did Defendants’ practices constitute gross

28

negligence?; (7) did Defendants’ practices constitute unjust enrichment?;

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1

(8) did Defendants’ practices constitute breach of implied in fact contract?;

2

(9) did Defendants’ practices constitute breach of fiduciary duty?; (10) did

3

Defendants’ practices constitute violation of Americans with Disabilities

4

Act?; (11) did Defendants’ practices constitute violation of Unruh Act?;

5

(12) did Defendants’ practices constitute violation of Americans with

6

Disabilities Act Section 794?; (13) did Defendants’ practices constitute

7

violation of Americans with Disabilities Act Section 12101?; (14) did

8

Defendants’ practices constitute violation of Rehabilitation Act?; (15) did

9

Defendants’ practices constitute unfair competition?; (16) did Defendants’

10

practices constitute false advertising?; and (17) are members of the

11

Nationwide Class entitled to damages?

12

b. The questions of law and fact common to the California Subclasses include

13

the following: (1) were members of the California SubClass entitled to

14

equal access to the AP exams?; (2) did Defendants' practices constitute

15

breach of contract?; (3) did Defendants' practices constitute breach of

16

implied covenant of good faith and fair dealing?; (4) did Defendants’

17

practices constitute negligence?; (5) did Defendants’ practices constitute

18

negligent misrepresentation?; (6) did Defendants’ practices constitute gross

19

negligence?; (7) did Defendants’ practices constitute unjust enrichment?;

20

(8) did Defendants’ practices constitute breach of implied in fact contract?;

21

(9) did Defendants’ practices constitute breach of fiduciary duty?; (10) did

22

Defendants’ practices constitute violation of Americans with Disabilities

23

Act?; (11) did Defendants’ practices constitute violation of Unruh Act?;

24

(12) (12) did Defendants’ practices constitute violation of Rehabilitation

25

Act?; (15) did Defendants’ practices constitute unfair competition?; (16)

26

did Defendants’ practices constitute false advertising?; and (17) are

27

members of the California Sub Class entitled to damages?

28

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Case 2:20-cv-04502 Document 1 Filed 05/19/20 Page 32 of 46 Page ID #:32

1

106. Notice: Notice can be provided via internet publication, published notice

2

and/or through the mail and paid for by the College Board.

3

FIRST CLAIM FOR RELIEF

4

BREACH OF CONTRACT

5

112. Plaintiffs repeat and incorporates by reference paragraphs 1 to 111 of this

6 Complaint.

7

113. Upon registration for the AP exams, the Class Members entered into an

8 agreement with the College Board wherein the College Board expressly recognizes its

9 obligation to ensure a fair and equitable opportunity to demonstrate college readiness

10 for every student and to prevent anyone from gaining an unfair advantage on the tests.

11

114. Defendants breached the agreement by failing to ensure a fair and equitable

12 testing opportunity and to prevent anyone from gaining an unfair advantage by the

13 College Board's distinctions between what is considered an official test site,

14 accommodations and bars to taking the exams.

15

115. As a direct result of Defendants' breach, Plaintiff and the Class suffered

16 damages.

17

SECOND CLAIM FOR RELIEF

18 BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING

19

116. Plaintiffs repeat and incorporates by reference paragraphs 1 to 115 of this

20 Complaint.

21

117. Defendants breached the express contract provision obligating Defendants

22 to ensure a fair and equitable opportunity to demonstrate college readiness for every

23 student and to prevent anyone from gaining an unfair advantage on the AP exams.

24

118. As a direct result of Defendant's breach, Plaintiff and the Class suffered

25 damages.

26 ///

27 ///

28 ///

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1

THIRD CLAIM FOR RELIEF

2

NEGLIGENCE

3

119. Plaintiffs repeat and incorporates by reference paragraphs 1 to 118 of this

4 Complaint.

5

120. Defendants, as owners, sponsors, developers and administrators of the AP

6 exams, respectively, had a duty to exercise reasonable care in providing the exams to

7 Plaintiff and the Class. Specifically, Defendants were under a duty to offer and

8 administer the exams in a fair and equitable manner and to safeguard the exams against

9 any foreseeable unfair advantages.

10

121. Defendants, through an affirmative and/or promised act, undertook to

11 render the exams in a fair and equitable manner, free from impropriety.

12

122. Defendants breached their duty by negligently offering and administering

13 the exams despite failing to ensure a fair and equitable testing opportunity and access

14 and failing to prevent anyone from gaining an unfair advantage by the College Board's

15 distinctions between what is considered an official test site, accommodations, and bars

16 to taking the exams.

17

123. Defendants' conduct foreseeably and substantially caused Plaintiff and the

18 Class to suffer damages.

19

124. Plaintiff and the Class suffered damages as a direct and proximate result of

20 Defendants' breach.

21

FOURTH CLAIM FOR RELIEF

22

NEGLIGENT MISREPRESENTATION

23

125. Plaintiffs repeat and incorporates by reference paragraphs 1 to 124 of this

24 Complaint.

25

126. Defendants misrepresented to Plaintiff and the Class that the AP exams

26 would be fairly and equitably offered and administered.

27

127. Based on the history of which types of students took these exams and the

28 College Board's active role in creating rules and barriers to entry to the exams,

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Case 2:20-cv-04502 Document 1 Filed 05/19/20 Page 34 of 46 Page ID #:34

1 Defendants should have known that its representations regarding fairness, equity and

2 validity were false.

3

128. Defendants intended to induce Plaintiff and the Class to rely on the

4 misrepresentations in signing up for the exams and in trusting that Defendants were

5 administering the exams fairly.

6

129. Plaintiff and the Class acted in justifiable reliance upon the

7 misrepresentation by registering for and taking or not being able to take the exams,

8 resulting in injury to Plaintiff and the Class.

9

FIFTH CLAIM FOR RELIEF

10

GROSS NEGLIGENCE

11

130. Plaintiffs repeat and incorporates by reference paragraphs 1 to 129 of this

12 Complaint.

13

131. There is an imminently clear and present danger that the AP exams will be

14 administered unfairly and invalidly as there is no equal access to these exams for all

15 2020 AP exam takers, students with disabilities or under-resourced students, based on

16 fundamental flaws inherent to the College Board's requirements for access to these

17 exams.

18

132. There is also an imminently clear and present danger that the AP exams

19 will be exploited by individuals.

20

133. Defendants have knowledge of and/or awareness of the imminent danger of

21 unfair administration of these exams and the risk of exploitation.

22

134. Therefore, it is indisputably foreseeable that more students like those in this

23 class will be denied an equal opportunity to partake in these tests, which in turn will

24 affect their ability to show college readiness.

25

135. By failing to rectify the obvious flaw—unequal access—Defendants evince

26 a conscious disregard of the consequences.

27

As a result of Defendants gross negligence, Plaintiff and the Class suffered

28 damages.

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Case 2:20-cv-04502 Document 1 Filed 05/19/20 Page 35 of 46 Page ID #:35

1

SIXTH CLAIM FOR RELIEF

2

UNJUST ENRICHMENT

3

136. Plaintiffs repeat and incorporates by reference paragraphs 1 to 135 of this

4 Complaint.

5

137. Plaintiff and the Class conferred benefits to Defendants by registering for,

6 paying for, and taking the exams.

7

138. Defendants knowingly and willingly retained the registration fees and

8 associated fees conferred in connection with registering for and taking the exams

9 despite knowing of these inequities.

10

139. Under the circumstances, it would be inequitable for Defendants to retain

11 this monetary benefit at the expense of Plaintiff and the Class.

12

140. Moreover, no adequate legal remedy exists.

13

141. As a direct result of Defendants' unjust enrichment, Plaintiff and the Class

14 have suffered injury and are entitled to reimbursement, restitution and disgorgement by

15 Defendants of the benefit conferred by Plaintiff and the Class.

16

142. Defendants benefited from their unlawful acts, as alleged herein, through

17 payment by Plaintiffs and the Class for the 2020 AP exams, and through the resulting

18 profits enjoyed by Defendants as a direct result of such payments.

19

143. As a direct and proximate result of Defendants' conduct, they have been

20 and continue to be unjustly enriched at the expense of, and to the detriment of, Plaintiffs

21 and the Class.

22

144. It would be against equity and good conscience to permit Defendants to

23 retain the benefit of these payments that were conferred by the Plaintiff and the Class

24 and retained by Defendants. The benefit held by Defendants rightly belongs to the

25 Plaintiffs and the Class, as the Plaintiff and the Class have paid for services that

26 Defendants failed and continue to fail to provide.

27

145. In equity, Defendants should not be allowed to retain the economic benefit

28 from their improper conduct and should be ordered to disgorge profits or pay restitution

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1 and pre-judgment interest to the Plaintiff and the Class, or in the alternative, ordered to

2 score the exams that were recorded and time-stamped immediately if the student is

3 unable to take a make-up test without charge on the date unilaterally scheduled by

4 Defendants.

5

SEVENTH CLAIM FOR RELIEF

6

BREACH OF IMPLIED IN FACT CONTRACT

7

146. Plaintiffs repeat and incorporates by reference paragraphs 1 to 145 of this

8 Complaint.

9

147. Defendants tacitly promised Plaintiff and the Class, as inferred in whole or

10 in part by its conduct, that it would fairly and equitably offer and administer the exams.

11

148. Under the circumstances, Plaintiff and the Class presumed based on

12 Defendants' conduct that the tests would be fairly and equitably offered and

13 administered.

14

149. Defendants breached the implied contract by failing to ensure a fair and

15 equitable testing opportunity for all students.

16

150. As a result of Defendants' breach, Plaintiff and the Class were damaged.

17

EIGHTH CLAIM FOR RELIEF

18

BREACH OF FIDUCIARY DUTY

19

151. Plaintiffs repeat and incorporates by reference paragraphs 1 to 150 of this

20 Complaint.

21

152. A fiduciary relationship between Plaintiffs and the Class and Defendants

22 exists. Defendants agreed to offer and administer fair and equitable exams for the

23 benefit of Plaintiff and the Class and were thereby granted a high degree of control and

24 discretionary power to do so, evidencing a high level of trust and confidence in and

25 reliance on Defendants to perform their duties.

26

153. Defendants breached their fiduciary duty by failing to administer the exams

27 and allow access to the exams in a fair and equitable manner.

28

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1

154. As a proximate result of Defendants' breach, Plaintiff and the Class

2 suffered damages.

3

NINTH CLAIM FOR RELIFF

4

VIOLATION OF AMERICANS WITH DISABILITIES ACT 42

5

USC SECTION 12101

6

155. Plaintiffs repeat and incorporates by reference paragraphs 1 to 154 of this

7 Complaint.

8

156. By creating barriers to access for these exams and failing to provide

9 appropriate accommodations for all students, whether disabled or in need of resources,

10 Defendants failed to prevent an unfair disadvantage for students with disabilities.

11

157. As a result of Defendants' breach of its duty to provide appropriate

12 accommodations and its violation of the ADA, Plaintiff and the Class were damaged.

13

TENTH CLAIM FOR RELIEF

14

VIOLATION OF UNRUH ACT CCC SECTION 51-DENIAL OF

15

OPPORTUNITIES FOR DISABLED AND

16

UNDERRESOURCED STUDENTS

17

158. Plaintiffs repeat and incorporates by reference paragraphs 1 to 157 of this

18 Complaint.

19

159. The Unruh Act provides: “All persons within the jurisdiction of this state

20 are free and equal, and no matter what their…disability…are entitled to the full and

21 equal accommodations, advantages, facilities, privileges, or services in all business

22 establishments of every kind whatsoever.” Cal. Civil Code Section 51(a). The Unruh

23 Act makes liable any person who “denies, aids or incites a denial, or makes any

24 discrimination or distinction” contrary to Section 51.

25

160. The Unruh Act provides that a “violation of the right of any individual

26 under the federal Americans with Disabilities Act of 1990…shall also constitute a

27 violation of this section.” Cal. Civil Code Section 51(f).

28

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1

161. Defendants have denied students with disabilities the same access other

2 students have to the AP exams. Defendants have therefore denied, aided, or incited a

3 denial, or made a discrimination or distinction contrary to Section 51 in doing so.

4

162. As a result of Defendants' breach of its duty to provide equal access to AP

5 exams and their violations of the Unruh Act, Plaintiff and the Class were damaged.

6

ELEVENTH CLAIM FOR RELIEF

7

VIOLATION OF REHABILITATION ACT

8

163. Plaintiffs repeat and incorporates by reference paragraphs 1 to 162 of this

9 Complaint.

10

164. By creating barriers to access for these exams and failing to provide

11 appropriate accommodations for disabled students, Defendants failed to ensure that the

12 students with disabilities would have equitable access and opportunity to take these

13 exams and participate equally in college admissions by failing to provide adequate

14 accommodations.

15

165. As a result of Defendants' breach of their duty to ensure that disabled

16 students would have equitable access and opportunity to take the AP exams and its

17 violation of the Rehabilitation Act, Plaintiff and the Class were damaged.

18

TWELVTH CLAIM FOR RELIEF

19

UNFAIR COMPETITION, BUSINESS AND PROFESSIONS

20

CODE SECTION 17200

21

166. Plaintiffs repeat and incorporates by reference paragraphs 1 to 165 of this

22 Complaint.

23

167. California Business & Professions Code Section 17200 et seq., also known

24 as the California Unfair Competition Law (“UCL”), prohibits acts of “unfair

25 competition” including any unlawful, unfair, fraudulent or deceptive business act or

26 practice as well as “unfair, deceptive, untrue or misleading advertising.”

27

28

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1

168. By engaging in the unlawful conduct alleged above, Defendants have

2 engaged in unlawful business acts and practices in violation of the UCL by violating

3 state and federal laws including but not limited to the ADA and the Unruh Act.

4

169. As a result of Defendants' violation of Business & Professions Code

5 Section 17200, Plaintiff and the Class were damaged.

6

THIRTEENTH CLAIM FOR RELIEF

7

FALSE ADVERTISING, BUSINESS AND PROFESSIONS CODE

8

SECTION 17500

9

170. Plaintiffs repeat and incorporates by reference paragraphs 1 to 169 of this

10 Complaint.

11

171. California Business & Professions Code Section 17500 prohibits acts of

12 “untrue or misleading” advertising.

13

172. By engaging in the unlawful conduct alleged above, including the issuance

14 of false statements regarding the percentage of students who faced technological

15 obstacles with submitting their exam answers, Defendants have engaged in unlawful

16 business acts and practices in violation of Business & Professions Code Section 17500

17 by violating state and federal laws including, but not limited to the prohibition against

18 false advertising.

19

173. As a result of Defendants' violation of Business & Professions Code

20 Section 17500, Plaintiff and the Class were damaged.

21

22

PRAYER FOR RELIEF

23

WHEREFORE, Plaintiffs pray for judgment against Defendants as follows:

24

86. Plaintiffs seek to recover the following damages and obtain the following

25 relief from Defendants:

26 ///

27 ///

28 ///

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Case 2:20-cv-04502 Document 1 Filed 05/19/20 Page 40 of 46 Page ID #:40

1

ON THE CAUSE OF ACTION FOR BREACH OF CONTRACT

2

1. An Order certifying that the action be maintained as a class action under

3

Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.

4

2. Economic loss and damages suffered by Plaintiffs.

5

3. For attorneys’ fees incurred herein, to the extent permitted by law.

6

4. Court costs.

7

5. For pre and post judgment interest and costs of suit incurred herein.

8

6. For such other relief to which Plaintiffs may show themselves justly

9

entitled.

10

7. For injunctive relief requiring injunctive relief the College Board to accept

11

any test answers from last week’s test by time stamp, photo and email.

12

13

ON THE CAUSE OF ACTION FOR BREACH OF IMPLIED COVENANT

14

OF GOOD FAITH AND FAIR DEALING

15

1. An Order certifying that the action be maintained as a class action under

16

Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.

17

2. An injunction precluding the wrongful conduct described herein.

18

3. For compensatory damages in an amount that exceeds $500 million, with

19

the exact amount to be proven at trial.

20

4. For punitive damages in an amount sufficient to punish Defendants and to

21

deter them from engaging in wrongful conduct in the future.

22

5. For pre and post judgment interest and costs of suit incurred herein.

23

6. For attorneys’ fees incurred herein, to the extent permitted by law.

24

7. For such other and further relief as the Court may deem just and proper.

25 ///

26 ///

27 ///

28 ///

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Case 2:20-cv-04502 Document 1 Filed 05/19/20 Page 41 of 46 Page ID #:41

1

ON THE CAUSE OF ACTION FOR NEGLIGENCE

2

1. An Order certifying that the action be maintained as a class action under

3

Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.

4

2. An injunction precluding the wrongful conduct described herein.

5

3. For compensatory damages in an amount that exceeds $500 million, with

6

the exact amount to be proven at trial.

7

4. For punitive damages in an amount sufficient to punish Defendants and to

8

deter them from engaging in wrongful conduct in the future.

9

5. For pre and post judgment interest and costs of suit incurred herein.

10

6. For attorneys’ fees incurred herein, to the extent permitted by law.

11

7. For such other and further relief as the Court may deem just and proper.

12

8. For injunctive relief requiring injunctive relief the College Board to accept

13

any test answers from last week’s test by time stamp, photo and email.

14

15 ON THE CAUSE OF ACTION FOR NEGLIGENT MISREPRESENTATION

16

1. An Order certifying that the action be maintained as a class action under

17

Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.

18

2 An injunction precluding the wrongful conduct described herein.

19

3. For compensatory damages in an amount that exceeds $500 million, with

20

the exact amount to be proven at trial.

21

4. For punitive damages in an amount sufficient to punish Defendants and to

22

deter them from engaging in wrongful conduct in the future.

23

5. For pre and post judgment interest and costs of suit incurred herein.

24

6. For attorneys’ fees incurred herein, to the extent permitted by law.

25

7. For such other and further relief as the Court may deem just and proper.

26 ///

27 ///

28 ///

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Case 2:20-cv-04502 Document 1 Filed 05/19/20 Page 42 of 46 Page ID #:42

1

ON THE CAUSE OF ACTION FOR GROSS NEGLIGENCE

2

1. An Order certifying that the action be maintained as a class action under

3

Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.

4

2. An injunction precluding the wrongful conduct described herein.

5

3. For compensatory damages in an amount that exceeds $500 million, with

6

the exact amount to be proven at trial.

7

4. For punitive damages in an amount sufficient to punish Defendants and to

8

deter them from engaging in wrongful conduct in the future.

9

5. For pre and post judgment interest and costs of suit incurred herein.

10

6. For attorneys’ fees incurred herein, to the extent permitted by law.

11

7. For such other and further relief as the Court may deem just and proper.

12

8. For injunctive relief requiring injunctive relief the College Board to accept

13

any test answers from last week’s test by time stamp, photo and email.

14

15

ON THE CAUSE OF ACTION FOR UNJUST ENRICHMENT

16

1. An Order certifying that the action be maintained as a class action under

17

Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.

18

2. An injunction precluding the wrongful conduct described herein.

19

3. For compensatory damages in an amount that exceeds $500 million, with

20

the exact amount to be proven at trial.

21

4. For punitive damages in an amount sufficient to punish Defendants and to

22

deter them from engaging in wrongful conduct in the future.

23

5. For pre and post judgment interest and costs of suit incurred herein.

24

6. For attorneys’ fees incurred herein, to the extent permitted by law.

25

7. For such other and further relief as the Court may deem just and proper.

26 ///

27 ///

28 ///

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Case 2:20-cv-04502 Document 1 Filed 05/19/20 Page 43 of 46 Page ID #:43

1

ON THE CAUSE OF ACTION FOR BREACH OF IMPLIED

2

IN FACT CONTRACT

3

1. An Order certifying that the action be maintained as a class action under

4

Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.

5

2. An injunction precluding the wrongful conduct described herein.

6

3. For compensatory damages in an amount that exceeds $500 million, with

7

the exact amount to be proven at trial.

8

4. For punitive damages in an amount sufficient to punish Defendants and to

9

deter them from engaging in wrongful conduct in the future.

10

5. For pre and post judgment interest and costs of suit incurred herein.

11

6. For attorneys’ fees incurred herein, to the extent permitted by law.

12

7. For such other and further relief as the Court may deem just and proper.

13

8. For injunctive relief requiring injunctive relief the College Board to accept

14

any test answers from last week’s test by time stamp, photo and email.

15

16

ON THE CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY

17

1. An Order certifying that the action be maintained as a class action under

18

Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.

19

2. An injunction precluding the wrongful conduct described herein.

20

3. For compensatory damages in an amount that exceeds $500 million, with

21

the exact amount to be proven at trial.

22

4. For punitive damages in an amount sufficient to punish Defendants and to

23

deter them from engaging in wrongful conduct in the future.

24

5. For pre and post judgment interest and costs of suit incurred herein.

25

6. For attorneys’ fees incurred herein, to the extent permitted by law.

26

7. For such other and further relief as the Court may deem just and proper.

27

8. For injunctive relief requiring injunctive relief the College Board to accept

28

any test answers from last week’s test by time stamp, photo and email.

899-5656-0001

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Case 2:20-cv-04502 Document 1 Filed 05/19/20 Page 44 of 46 Page ID #:44

1

ON THE CAUSE OF ACTION FOR VIOLATION OF AMERICANS

2

WITH DISABILITIES ACT 42 USC SECTION 12101

3

1. An Order certifying that the action be maintained as a class action under

4

Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.

5

2. An injunction precluding the wrongful conduct described herein.

6

3. For compensatory damages in an amount that exceeds $500 million, with

7

the exact amount to be proven at trial.

8

4. For punitive damages in an amount sufficient to punish Defendants and to

9

deter them from engaging in wrongful conduct in the future.

10

5. For pre and post judgment interest and costs of suit incurred herein.

11

6. For attorneys’ fees incurred herein, to the extent permitted by law.

12

7. For such other and further relief as the Court may deem just and proper.

13

14

ON THE CAUSE OF ACTION FOR VIOLATION OF UNRUH ACT CCC

15

SECTION 51-DENIAL OF OPPORTUNITIES

16

1. An Order certifying that the action be maintained as a class action under

17

Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.

18

2. An injunction precluding the wrongful conduct described herein.

19

3. For compensatory damages in an amount that exceeds $500 million, with

20

the exact amount to be proven at trial.

21

4. For statutory damages as set forth under the Unruh Act.

22

5. For punitive damages in an amount sufficient to punish Defendants and to

23

deter them from engaging in wrongful conduct in the future.

24

6. For pre and post judgment interest and costs of suit incurred herein.

25

7. For attorneys’ fees incurred herein, to the extent permitted by law.

26

8. For such other and further relief as the Court may deem just and proper.

27 ///

28 ///

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Case 2:20-cv-04502 Document 1 Filed 05/19/20 Page 45 of 46 Page ID #:45

1

ON THE CAUSE OF ACTION FOR UNFAIR COMPETITION, BUSINESS

2

AND PROFESSIONS CODE SECTION 17200

3

1. An Order certifying that the action be maintained as a class action under

4

Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.

5

2. An injunction precluding the wrongful conduct described herein.

6

3. For compensatory damages in an amount that exceeds $500 million, with

7

the exact amount to be proven at trial.

8

4. For restitution as set forth in Business & Professions Code 17200.

9

5. For punitive damages in an amount sufficient to punish Defendants and to

10

deter them from engaging in wrongful conduct in the future.

11

6. For pre and post judgment interest and costs of suit incurred herein.

12

7. For attorneys’ fees incurred herein, to the extent permitted by law.

13

8. For such other and further relief as the Court may deem just and proper.

14

15

ON THE FIFTEENTH CAUSE OF ACTION FOR FALSE ADVERTISING,

16

BUSINESS AND PROFESSIONS CODE SECTION 17500

17

1. An Order certifying that the action be maintained as a class action under

18

Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.

19

2. An injunction precluding the wrongful conduct described herein.

20

3. For compensatory damages in an amount that exceeds $500 million, with

21

the exact amount to be proven at trial.

22

4. For restitution as set forth in Business & Professions Code section 17500.

23

5. For punitive damages in an amount sufficient to punish Defendants and to

24

deter them from engaging in wrongful conduct in the future.

25

6. For pre and post judgment interest and costs of suit incurred herein.

26 ///

27 ///

28 ///

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Case 2:20-cv-04502 Document 1 Filed 05/19/20 Page 46 of 46 Page ID #:46

1

7. For attorneys’ fees incurred herein, to the extent permitted by law.

2

8. For such other and further relief as the Court may deem just and proper.

3

4 DATED: May 19, 2020

BAKER, KEENER & NAHRA, LLP

5

By /s/ PHILLIP A. BAKER

PHILLIP A. BAKER

6

JENNIFER L. STONE

7
MILLER ADVOCACY GROUP
8

9

By /s/ MARCI LERNER MILLER

MARCI LERNER MILLER

10

CHRISTINA N. HOFFMAN

11

Attorneys for Plaintiffs

12
JURY DEMAND
13
Plaintiffs hereby demand a trial by jury on all issues so triable.
14

15
DATED: May 19, 2020
16 17 18 19 20 21 22

BAKER, KEENER & NAHRA, LLP
By /s/ PHILLIP A. BAKER PHILLIP A. BAKER JENNIFER L. STONE
MILLER ADVOCACY GROUP
By /s/ MARCI LERNER MILLER MARCI LERNER MILLER CHRISTINA N. HOFFMAN
Attorneys for Plaintiffs

23

24

25

26

27

28

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NATIONWIDE AND CALIFORNIA CLASS ACTION COMPLAINT & DEMAND JURY TRIAL

 
 Case 2:20-cv-04502-PSG-PVC Document 15 Filed 06/22/20 Page 1 of 60 Page ID #:79

1 PHILLIP A. BAKER, BAR ID #169571 pbaker@bknlawyers.com
2 DERRICK S. LOWE, BAR ID #267998 dlowe@bknlawyers.com
3 JENNIFER L. STONE, BAR ID #325493 jstone@bknlawyers.com
4 BAKER, KEENER & NAHRA, LLP 633 West 5th Street, Suite 5500
5 Los Angeles, California 90071 Telephone: (213) 241-0900/Facsimile: (213) 241-0990
6

7 MARCI LERNER MILLER, BAR ID # 162790 marci@milleradvocacy.com
8 CHRISTINA N. HOFFMAN, BAR ID #161932 choffman@milleradvocacy.com
9 MILLER ADVOCACY GROUP 1303 Avocado Avenue, Suite 230
10 Newport Beach, California 92660 Telephone: (949) 706-9734/Facsimile: (949) 266-8069
11

12 Attorneys for Plaintiffs

13

UNITED STATES DISTRICT COURT

14

CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION

15

Plaintiff J.P. on behalf of her minor son Case No.:2:20-cv-04502-PSG (PVCx)

16 R.P., and all others similarly situated;

THE NATIONAL CENTER FOR FAIR

17 & OPEN TESTING doing business as NATIONWIDE AND

FAIRTEST, a Massachusetts

CALIFORNIA CLASS ACTION

18 corporation; A.K., individually and on FIRST AMENDED COMPLAINT

behalf of all others similarly situated;

19 R.G. on behalf of her minor son J.G., and DEMAND FOR JURY TRIAL

all others similarly situated; Plaintiff

20 M.S. on behalf of her minor daughter

Z.S., and all others similarly situated,

21

Plaintiffs,

22

vs.

23

EDUCATIONAL TESTING SERVICES

24 (ETS), a New York corporation;

THE COLLEGE ENTRANCE

25 EXAMINATION BOARD, a New York

corporation, doing business as THE

26 COLLEGE BOARD; and

DOES 1 through 50, inclusive,

27

Defendants.

28

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Case 2:20-cv-04502-PSG-PVC Document 15 Filed 06/22/20 Page 2 of 60 Page ID #:80

1

1. Plaintiff, THE NATIONAL CENTER FOR FAIR & OPEN TESTING

2 (“FairTest”); Plaintiff L.D. on behalf of her minor son J.D. and all others similarly

3 situated, Plaintiff D.K., individually and on behalf of all others similarly situated,

4 Plaintiff S.N. on behalf of her minor daughter C.M. and all others similarly situated,

5 Plaintiff P.C. on behalf of his minor son N.C. and all others similarly situated, Plaintiff

6 C.T. on behalf of her minor son S.T. and all others similarly situated, Plaintiff C.W. on

7 behalf of her minor daughter M.W. and all others similarly situated, Plaintiff D.M. on

8 behalf of her minor son L.B. and all others similarly situated, Plaintiff J.P. on behalf of

9 her minor son R.P. and all others similarly situated; Plaintiff A.K., individually and on

10 behalf of all others similarly situated; Plaintiff R.G. on behalf of her minor son J.G., and

11 all others similarly situated; Plaintiff M.S. on behalf of her minor daughter Z.S., and all

12 others similarly situated (collectively the “Plaintiffs”), allege and plead as follows:

13

INTRODUCTION

14

2. Plaintiffs bring this suit against Defendants EDUCATIONAL TESTING

15 SERVICES (“ETS”) and THE COLLEGE ENTRANCE EXAMINATION BOARD

16 (the “College Board”), collectively the “Defendants,” to recover the damages owed to

17 them and others similarly situated and for injunctive relief as a result of Defendants’

18 failure to allow access to and failure to administer its Advanced Placement (“AP”)

19 program properly and without prejudice.

20

3. Defendants are involved at every level of the college preparation, testing,

21 admissions, financial aid, and placement process. It is the leading player in the higher

22 education industry responsible for the fates of millions of high school students every

23 year, deciding who will be recruited, who will apply, who will be accepted, who will

24 receive financial aid, and who will be able to afford college and other postsecondary

25 opportunities. ETS is responsible for the development, administration, and scoring of

26 College Board’s assessments and examinations including the Advanced Placement

27 Examinations (“AP Exams”).

28

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Case 2:20-cv-04502-PSG-PVC Document 15 Filed 06/22/20 Page 3 of 60 Page ID #:81

1

4. Defendants’ AP Program offers college-level courses and examinations to

2 high school students. Colleges and universities frequently grant placement and course

3 credit to students who obtain passing scores on their AP Exams. The length of time

4 each student will spend in college, their curriculum, and how much they pay to attend

5 college are factors heavily influenced by College Board and the AP opportunities

6 available to students. Defendants also claim that AP courses and AP Exams favorably

7 impact college admissions decisions by demonstrating to admissions officers that a

8 student is prepared for college-level work. AP courses strengthen a student’s high

9 school transcript and help students qualify for scholarships.

10

5. In March of 2020, schools around the world moved to distance learning

11 due to the COVID-19 pandemic. Defendants were faced with the decision of cancelling

12 its popular and profitable AP program for the year, postponing the exams, or offering

13 them at home to students. The College Board made the decision to offer the AP Exams

14 to students at home but with significant structural changes.

15

6. Defendants were immediately made aware by numerous sources, including

16 counselors, educators, advocates and families, that there were serious concerns that the

17 at-home AP Exams would not be fair to students who have no computer, access to

18 Internet or quiet workspaces from which to work, or to under-resourced students in

19 general. Even as the test began, questions remained about the availability and

20 applicability of legally required accommodations for students with disabilities, the fair

21 access to connectivity for all students, test security, and score comparability.

22

7. Counselors, educators, advocates, and families immediately reached out to

23 The College Board to make them aware of their serious concerns with the at-home AP

24 format’s likely impact on students who have no computer, access to Internet or quiet

25 workspaces from which to work, or on under-resourced students in general. Even as the

26 test began, questions remained about the availability and applicability of legally

27

28

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Case 2:20-cv-04502-PSG-PVC Document 15 Filed 06/22/20 Page 4 of 60 Page ID #:82

1 required accommodations for students with disabilities, connectivity, test security, and

2 score comparability.

3

8. Prior to administering the at-home AP Exams, Defendants acknowledged

4 that access issues existed, but it still chose to administer the AP Exams at-home and did

5 not change its policies to address these issues. On May 14, 2020, after 3 full days of at-

6 home AP Exams, the College Board admitted that there was a measurable failure rate in

7 uploading exams, and it attempted to change its policies going forward. The College

8 Board’s President, David Coleman acknowledged in an email that, “we can't control the

9 conditions in students' homes.” Technical problems with the digital versions of the AP

10 Exams caused and continue to cause tremendous angst for high school students and their

11 parents during this already stressful time.

12

9. Before this year, high school students took their AP Exams at school

13 testing sites during the regular school day hours in a controlled and regulated

14 environment where they could ask for assistance if necessary. The College Board

15 acknowledged that it knew moving the exams home may exclude some students from

16 testing at all, stating that, “We recognize that the digital divide could prevent some low-

17 income and rural students from participating.” The College Board moved the AP

18 Exams to students’ homes under the present conditions despite this acknowledgement.

19 The College Board’s tax-exempt status is based on the fact that it “connects students to

20 college success and opportunity” and that it is “increasing opportunities and breaking

21 down barriers to college through expanded access to AP courses.” Through its

22 administration of the at-home AP Exams, Defendants knowingly discriminated against

23 under-resourced students, disabled students, and students without digital access, and by

24 doing so, it failed to honor its commitments to students and their families.

25

10. After one day of testing, it became clear that Defendants had failed to

26 fairly, competently, or equitably administer the AP Exams. The students who relied on

27 AP scores for the financial benefits of college placement and credit experienced

28

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Case 2:20-cv-04502-PSG-PVC Document 15 Filed 06/22/20 Page 5 of 60 Page ID #:83

1 technical glitches, timing issues, access issues, and a heightened level of anxiety and

2 distress. Reports of anywhere between 5% and 20% of examinees were unable to

3 submit their responses through the at-home testing platform during the first three days

4 of AP Exams. One AP Coordinator reported a failure rate of 30%. Some students could

5 only submit partial responses, and others could not even log on to take the exams.

6

11. Despite the fact that these are challenging times for families, Defendants

7 offered no acceptable remedies to students whose lack of digital access prevented them

8 from fairly testing or to those who could not access their disability accommodations.

9 Nor did it offer remedies to students who experienced glitches with the AP platform

10 preventing them from accessing their AP Exams. On May 15, 2020, The Chronicle of

11 Higher Education reported the extent of these problems in “AP Tests During Covid-19:

12 Heartbreak, Technical Glitches, and Anonymous Intrigue.”1 On the same day, The

13 Washington Post reported the technology glitches and hardships in “College Board Says

14 New AP Test Online Going Well – But Students Report Big Problems.”2

15

12. Prior to its faulty administration of the at-home AP Exams, Defendants

16 had intended to move all of its assessments to an at-home format, including the SAT;

17 however, this year’s AP exam administration made it perfectly clear that until the

18 technical issues, the digital divide and other inequities are adequately addressed, it

19 cannot not do so. On June 2, 2020, the College Board announced that “after gathering

20 more understanding and evidence over the past weeks and months, we have decided to

21 delay an at-home digital SAT” and that “the technological challenges of developing an

22 online test that all students could take has led to the decision to drop it.” 3

23

24

25 1 https://www.chronicle.com/article/AP-Tests-During-Covid-19-/248792 26 2 https://www.washingtonpost.com/education/2020/05/15/college-board-says-new-online-ap-tests-are-going-well-students-
report-big-problems/

27 3College Board Scraps Plans for SAT at Home,” New York Times, June 2, 2020

28

https://www.nytimes.com/2020/06/02/us/at-home-sat-coronavirus.html
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1

13. The challenge of the at-home AP exam format is only the final hurdle for

2 many AP students, and it is also one step that many students never reached. Some AP

3 students were fully denied access to AP Exams and others overcame additional hurdles

4 to obtain access to AP Exams based solely on where they are enrolled in school. Access

5 is particularly challenging for students enrolled in California public charter schools or

6 homeschools. Some students were denied access, because Defendants’ abrupt change in

7 its policies left schools without the ability to register students or modify their

8 registration in when they would have had the opportunity to do so in the past. Students

9 were notified shortly before exam day that they were inexplicably dropped from the AP

10 Exam roster and their AP coordinators were unable to add them back to their rosters.

11

THE PARTIES

12

Plaintiffs:

13

14. Pseudonyms have been used throughout the complaint in order to protect

14 the identity of the minor Plaintiffs. Further the public has little legitimate interest in

15 knowing the true identity of the pseudonymous Plaintiffs. Defendants will not be

16 prejudiced by allowing the pseudonymous Plaintiffs to proceed anonymously and in this

17 manner until a protective order is in place.

18

15. FairTest is a nationwide public charity that operates in California.

19 FairTest’s mission is to advance quality education and equal opportunity by promoting

20 fair, open, valid evaluations of students, teachers, and schools. FairTest works on behalf

21 of examinees to end the misuses of standardized tests, placing special emphasis on

22 eliminating the racial, class, gender, and cultural barriers to equal opportunity. In

23 pursuit of its mission, FairTest provides information and technical assistance to students

24 and parents as well as advocacy on a broad range of testing concerns, including those

25 relating to the at-home AP Exams.

26

27

28

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Case 2:20-cv-04502-PSG-PVC Document 15 Filed 06/22/20 Page 7 of 60 Page ID #:85

1

16. Plaintiff D.K. is a California resident acting individually and on behalf of

2 all others similarly situated. D.K. is a high school student who registered for and

3 intended to take AP Exams.

4

17. Plaintiff S.N. on behalf of her minor daughter C.M., is a California resident

5 acting individually and on behalf of all others similarly situated. C.M. is a high school

6 student who registered for and intended to take AP Exams.

7

18. Plaintiff P.C., on behalf of his minor son N.C., is a New Hampshire

8 resident acting individually and on behalf of all others similarly situated. N.C. is a high

9 school student who registered for and intended to take AP Exams.

10

19. Plaintiff C.T., on behalf of her minor son S.T., is a South Carolina resident

11 acting individually and on behalf of all others similarly situated. S.T. is a high school

12 student who registered for and intended to take AP Exams.

13

20. Plaintiff C.W., on behalf of her minor daughter M.W., is acting

14 individually and on behalf of all others similarly situated, M.W. is a high school student

15 who registered for and intended to take AP Exams.

16

21. Plaintiff D.M., on behalf of her minor son L.B., is a Pennsylvania resident

17 acting individually and on behalf of all others similarly situated. L.B. is a high school

18 student who registered for and intended to take AP Exams.

19

22. Plaintiff J.P., on behalf of her minor son R.P. and all others similarly

20 situated, is a California resident acting individually and on behalf of all others similarly

21 situated. R.P. is a high school student who registered for and intended to take AP

22 Exams.

23

23. Plaintiff A.K. is a California resident, is acting individually and on behalf

24 of all others similarly situated. A.K. is a high school student who registered for and

25 intended to take AP Exams.

26

27

28

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Case 2:20-cv-04502-PSG-PVC Document 15 Filed 06/22/20 Page 8 of 60 Page ID #:86

1

24. Plaintiff R.G., on behalf of her minor son J.G., is a Pennsylvania resident

2 acting individually and on behalf of all others similarly situated; J.G. is a high school

3 student who registered for and intended to take AP Exams.

4

25. Plaintiff M.S., on behalf of her minor daughter Z.S., is a California resident

5 acting individually and on behalf of all others similarly situated Z.S. is a high school

6 student who registered for and intended to take AP Exams.

7

26. Plaintiff L.D., on behalf of her minor son J.D., is a California resident

8 acting individually and on behalf of all others similarly situated. J.D. is a high school

9 student who registered for and intended to take AP Exams.

10

Defendants:

11

27. Defendant ETS is registered as a non-profit organization headquartered in

12 Princeton, New Jersey. ETS has multiple offices in the State of California, including

13 within this jurisdiction. Plaintiffs are informed and believe that ETS developed and

14 administered the 2020 AP Exams on behalf of Defendant College Board. ETS derives

15 its non-profit status based on its stated mission “to help advance quality and equity in

16 education by providing fair and valid assessments, research and related services.” 4

17

28. Defendant College Board is a New York corporation with its principal

18 place of business in New York, New York. College Board does business in California

19 and has a Western Regional Office in California within this jurisdiction. Plaintiffs are

20 informed and believe that the AP program and the AP Exam are fully owned and

21 operated by College Board.

22

29. As previously defined above, Defendants ETS and College Board are

23 referred to collectively herein as “Defendants.”

24

30. The true names and capacities of defendant DOES 1 through 50, inclusive,

25 whether individual, corporate, associate or otherwise, are unknown to Plaintiff, who

26

27 4 https://pdf.guidestar.org/PDF_Images/2018/210/634/2018-210634479-111818c6-9.pdf

28

ETS Form 990 (2018).
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1 therefore sues said defendants by such fictitious names and will amend to allege their

2 true names and capacities when ascertained. Plaintiffs are informed and believe that

3 each of the DOE defendants is responsible for the acts or omissions alleged in this

4 complaint, and that Plaintiffs’ injuries and damages were proximately caused by the acts

5 or omissions of these unnamed defendants.

6

31. Plaintiffs are informed and believe, and based thereon allege, that each of

7 Defendants herein was at all relevant times the principal, agent, alter-ego, joint-venturer,

8 partner, affiliate, manager, subsidiary, servant, employee and/or co-conspirator of each

9 other Defendant, and in performing the acts described in this complaint, was acting in

10 the scope of his, her or its authority with the consent of each other Defendant. Each

11 Defendant ratified and/or authorized the wrongful acts, conduct, omissions, or

12 commissions of each of the other Defendants. At all relevant times, each Defendant

13 acted with full knowledge of the conduct of each of the other Defendants, with the

14 intention to cooperate therewith.

15

32. Plaintiffs do not know the true names and capacities, whether corporate,

16 partnership, associate, individual, or otherwise of Defendants issued herein as DOES 1

17 through 50, inclusive, under the provisions of Central District of California, Local Rule

18 19-1. Defendant DOES 1 through 50, inclusive, are in some manner responsible for the

19 acts, occurrences, and transactions set forth herein, and are legally liable to Plaintiff.

20 Plaintiff will seek leave to amend this Complaint to set forth the true names and

21 capacities of the fictitiously named Defendants, together with appropriate charging

22 allegations, when ascertained. Unless otherwise determined upon ascertaining their true

23 names and capacities, Defendants DOES 1 through 50 are incorporated into the

24 definition of “Defendants” as used herein.

25

33. All acts of corporate employees as alleged were authorized or ratified by an

26 officer, director, or managing agent of the corporate employer.

27 ///

28

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1

JURISDICTION AND VENUE

2

34. This Court has subject matter jurisdiction over this action pursuant to the

3 Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d), as the proposed class contains

4 more than 100 members, at least one of whom maintains citizenship in a state diverse

5 from the defendant, and seeks in the aggregate more than $5,000,000, exclusive of costs

6 and interest.

7

35. Venue is proper pursuant to 28 U.S.C. § 1391(b) & (c) because a

8 substantial part of the events or omissions giving rise to the claim occurred in this

9 judicial district, and because Defendants are subject to the Court’s personal jurisdiction

10 in this judicial district.

11

36. At least six of the pseudonymously named Plaintiffs are residents of the

12 State of California and Plaintiffs are informed and believe, and thereon allege, that

13 numerous members of the Nationwide Class and the various subclasses, as those classes

14 are defined below, are or were residents of the State of California at all relevant times so

15 as to establish California’s vested interest in maintaining jurisdiction over this matter.

16

37. The College Board’s Western Regional Office is located in Los Angeles,

17 California, and more than 402 leading organizations participate as members of the

18 College Board, including higher education institutions, districts, and secondary schools.

19 Last year, 423,124 students in California took 793,695 AP Exams at approximately

20 2400 California high schools. An estimated 20,500 AP Test scores were sent to UCLA

21 alone last year.5

22

38. ETS maintains offices in the United States and around the world on the

23 assertion that such offices are necessary to fulfill its stated mission of “advancing

24 quality and equity in education for all people worldwide” and further attests that such

25 offices oversee many of its “core operations, such as test development and research and

26

27 5 State Summary Report – California (2019)

28

http://research.collegeboard.org/programs/ap/data/participation/ap-2019
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1 development.” ETS maintains three such offices in California, located in Concord,

2 Sacramento, and San Francisco. The Concord offices provide “operational support for

3 ETS’s national and international programs, as well as customized programs for clients

4 in California” and further provides “mail fulfillment, call center, operational, scoring,

5 IT, accounting and program management services,” the San Francisco office “provides

6 assessment development and psychometric and data analysis support for ETS’s

7 assessment programs,” and the Sacramento office is “home to program management and

8 partnership for ETS’s California K-12 programs and the California State University

9 placement tests. In addition, the Sacramento office’s staff includes K-12 and higher

10 education program directors and managers, IT, finance and government,

11 psychometricians, external relations, and thought partners and serves as a “hub for

12 teacher and stakeholder focus groups, assessment content reviews, bias reviews and

13 standard setting.” 6

14

39. As such, this Court has personal jurisdiction over the parties hereto,

15 because Defendants are corporations that do extensive business throughout the State of

16 California. The facts underlying this case fundamentally involve the State of California

17 and this judicial district as Defendants’ conduct substantially impacts both the State of

18 California and its students. For the reasons described above Plaintiffs allege that each

19 Defendant herein has sufficient contacts with California so as to make proper the

20 exercise of personal jurisdiction over them and have sufficient minimum contacts so as

21 to render the exercise of personal jurisdiction permissible under traditional notions of

22 fair play and substantial justice.

23

COMMON FACTUAL ALLEGATIONS

24

40. The common factual allegations set forth below, as well as all factual

25 allegations set forth herein within this Complaint, are all alleged based on presently

26 available information and are therefore all alleged based on said information and

27

28

6 https://www.ets.org/about
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1 reasonable belief arising therefrom. Initial document exchanges, depositions, and other

2 forms of formal discovery have yet to be commenced, much less completed, and

3 therefore Plaintiffs expressly reserve the right to amend, modify, change, or remove any

4 or all of the factual allegations within this Complaint based on subsequently discovered

5 evidence or subsequently conducted review and/or analysis with respect thereto.

6

41. Defendants claim that students who score a 3 or higher (out of 5) on an AP

7 Exam typically experience greater academic success in college and are more likely to

8 earn a college degree on time than non-AP students.7 As the only player in the education

9 market with this level of influence over high school curriculum, college admissions,

10 course placement, and financial outcomes, Defendants know that access to its AP

11 Exams must be fair, reliable, and affordable.

12

42. To ensure that low-income students can access AP Exams at a reduced

13 cost, Every Student Succeeds Act (ESSA) provides funding for AP Exams and courses

14 under the Title IV, Part A block grant.8 Additional public funding is also available for

15 states and districts to cover AP Exam fees for low-income students. In California, an

16 increasing number of lower income students are enrolling in AP courses. Of the 58.7

17 percent of the state's K–12 students eligible for the free or reduced-price lunch program

18 in the Class of 2017, 45.5 percent took at least one AP exam.9

19

43. Each year, millions of high school students take 38 different AP Exams at

20 the end of the school year. In 2019, 3.1 million students took a total of 4.9 million AP

21 Exams at school. In 2020, 3.4 million students registered to take over 5 million AP

22 Exams. During the first week of testing, students attempted to take over 2.2 million AP

23 Exams. The cost of an AP exam is generally between $100 and $150 per test.

24

25

26 7 https://collegereadiness.collegeboard.org/about/benefits/connect-to-ap

27

8 https://professionals.collegeboard.org/testing/states-local-governments/new-education-policies/essa-federal-funding-ap 9 https://www.cde.ca.gov/nr/ne/yr18/yr18rel16.asp

28

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1

44. In 2018, the most recent audit available, the College Board had

2 $1,152,226,448.00 in Cash and Investments. It holds over 1.15 billion dollars that can

3 be used to finance any College Board related activity. In 2018, the College Board

4 earned over $480 million dollars from its AP program alone. The College Board

5 collected its exam fees in the Fall of 2019 for the Spring 2020 exams10

6

45. AP Exams provide a means for high school students to earn college credit

7 while in high school. The College Board advertises that, “by taking an AP course and

8 scoring successfully on the related AP Exam, [a high school student] can save on

9 college expenses: most colleges and universities nationwide offer college credit,

10 advanced placement, or both, for qualifying AP Exam scores... These credits can allow

11 students to save college tuition, study abroad, or secure a second major.” The College

12 Board further advertises that, “[e]arning a qualifying score on the AP Exam can help

13 you advance and avoid required introductory courses – so you can move directly into

14 upper-level classes and focus on the work that interests you most.”

15

46. The AP program is the only widely available high school program allowing

16 students to earn college credits. The College Board organizes and administers the AP

17 tests. The AP program is the only means for high school students to test for college

18 credit in dozens of subject matters. In order to obtain college credits, students are

19 required to pass the AP test, as scored and reported by Defendants.

20

47. Passing scores (a 3, 4, or 5) on the AP Exams can save students and their

21 parents thousands of dollars in college tuition and costs. A successful student who takes

22 multiple AP Exams can potentially finish college a year or more earlier than students

23 who did not earn AP credit during high school. Some students understandably wanted

24 an option to take their AP Exams for college credit when COVID-19 forced their

25 schools to convert to distance learning and they could no longer test at school.

26

27 10 https://www.totalregistration.net/AP-Exam-Registration-Service/Follow-The-Money-History-of-College-Board-

28

Finances.php
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1

48. Students cannot register to take AP Exams. All exam registration is

2 completed by high school AP coordinators that are approved in advance by Defendants.

3 The AP coordinator “enters class sections for all AP classes at their school (and exam

4 only sections, if applicable) and “organizes the exam roster and submits the exam order

5 by the November final exam ordering deadline.” By taking these steps, the AP

6 coordinators have completed the AP Exam registration process for the students at their

7 high schools. Payment is made directly to Defendants through the high school by the AP

8 coordinator, there is no student involvement. Every school has its own method of

9 collecting fees from students for the exams, and some do not require students to pay

10 fees to the school.

11

49. Defendants do not require students who are registered for the AP Exams by

12 their schools to take any further steps before exam day. The AP coordinator provides the

13 student roster to Defendants and only the AP coordinator can make changes to students’

14 registration status, including cancellation. AP coordinators are the ultimate decision-

15 makers regarding who registers and stays registered for AP Exams. In some instances,

16 an AP coordinator may even switch registered students from one AP Exam they are

17 registered for to another (ex. AP Calculus BC to AP Calculus AB). The AP coordinator

18 manual states, “Remember that even with the advanced setting, you still have the ability

19 to make final changes to your exam roster, including changes to students’ exam

20 registration as necessary. The AP coordinators are instructed: “[t]eachers should inform

21 students about any changes to their exam registration; the system doesn’t send

22 notification to students if a teacher changes their exam registration for a course.”11

23

50. Defendants do not require students to take an AP course in order to sit for

24 an AP Exam. In order to log into any AP features such as AP Classroom, “Students

25 need access to a computer or mobile device that supports the latest versions of Chrome

26

27 11 https://apcentral.collegeboard.org/pdf/ap-coordinators-manual-part-1-2019-20.pdf

28

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1 (preferred), Safari (preferred), Firefox, or Internet Explorer and is connected to the

2 internet. Students who are only taking the AP Exam but not the AP course do not have

3 access to AP Classroom.

4

51. In the past, prior to the COVID-19 pandemic, AP coordinators may have

5 distributed a written pamphlet to students entitled, “2019-20 Bulletin for AP Students

6 and Parents” which discussed in-school written exam policies and how to prepare for

7 test day at school, including what could and could not be taken into the test room (all

8 electronics), what materials were necessary to have on test day at school (sharpened

9 pencils, letter to verify any accommodations) and a description of the test format

10 (multiple choice and free response, closed book). In 2020, because high schools were

11 closed by March, Plaintiffs did not receive these materials; nor were they sent home.

12

52. The AP Exam format changed significantly in 2020. Defendants therefore

13 needed to provide detailed instructions about what to expect Exams, including how to

14 log in, what technology that would be needed, what other materials would be needed,

15 and how to ensure the best testing environment at home. This information was provided

16 to students in a haphazard way, all electronically, through social media, emails to

17 students, and word of mouth. During the time period when the AP Exams took place,

18 there were hundreds of tweets from AP Trevor, an account belonging to Trevor Packer,

19 the Senior Vice President of College Board’s AP program. There were also

20 approximately 10-20 tweets per day from College Board’s AP Students account. These

21 tweets contained crucial information about technology updates, changes to test policies,

22 makeup exam registration deadlines, and device and software requirements. For

23 example, on May 11, AP Students tweeted the following: “Students can use two

24 devices, but you can only click your e-ticket and access your exam from one of the

25 devices.” There were hundreds more public tweets from AP Trevor and AP Students

26 directly to students who were struggling with technical, access and other issues. AP

27 Trevor tweeted “If you received a confirmation email for a makeup exam, there were

28

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1 issues w/ the files you submitted through the exam app. We cannot score your May

2 exam, so you will need to take the makeup” and “No HEIC photo files.” Defendants

3 made hundreds of posts and messages and replies on its Facebook account. Many

4 students and parents reported feeling confused by the constant updates and changes and

5 overwhelmed by what they felt was a responsibility to constantly check social media for

6 AP Exam updates, while others had no ability to access this information at all.

7

53. On test day, students had a maximum of 30-minutes to log into the AP

8 Exam and complete any pre-test requirements. Students had less time if they

9 experienced log in issues or if they had moved directly from one exam to another.

10 Students reported “rushing” through this part of the process, trying to finish quickly so

11 that they did not take time away from the actual Exam. Students also reported that

12 throughout this log in process, they were focused on the material they had learned for

13 the AP exams. 12

14

54. The format of the at-home AP Exams was significantly different from the

15 format students were accustomed to and different from the practice AP Exams they had

16 taken. The 2020 home-based AP Exams are digitally-based instead of on paper as they

17 have always been in the past. The new exams are scheduled to last only 45 minutes

18 (actually 40 minutes with the required 5 minutes to begin uploading answers before the

19 test ends) instead of 3 hours, and all tests in the same subject are given at exactly the

20 same time. This means that some students in one part of the world could be taking an

21 exam in the middle of the night, while others are taking it in the middle of the day.

22 Students in Hawaii begin their first exams each day at 6 a.m., while students in New

23 York begin the same exams at noon. The 2020 exams include material covered until the

24 time of the COVID-19 breakout instead of the entire course curriculum. Most

25 importantly, the exams are taken at home, where testing environments vary, are

26

27 12 https://apcentral.collegeboard.org/pdf/ap-testing-guide-2020.pdf

28

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1 unpredictable, can be distracting, and are not equal to all students. The at home

2 environment disproportionately impacts low-income and underrepresented students.

3

55. Some, if not all, of the issues with the at-home format should have been

4 anticipated. As soon as Defendants announced its plans to administer at-home exams,

5 educators, students, parents, and AP coordinators voiced their concerns over equity and

6 access issues. They also expressed concerns about timing and technical problems with

7 the new format as well as score validity.

8

56. Defendants announced prior to the administration of the at-home exams

9 that certain disability accommodations that were previously provided would be

10 modified, eliminated, or were deemed “unnecessary” due to the new format.

11

57. Dozens of educators and counselors wrote an “Open Letter” to the College

12 Board on April 22, 2020 outlining why the exams would not be fair to students who

13 have no computer, access to Internet or quiet work spaces from which to work, or to

14 students with disabilities who would not have their approved accommodations.13

15 Plaintiff FairTest announced that its concerns about the 2020 AP Exams included

16 computer equipment and technology, connectivity, the availability of legally required

17 accommodations, security, and score comparability.

18

58. The College Board acknowledged in a statement made prior to the

19 administration of the at-home AP Exams that “[w]e recognize that the digital divide

20 could prevent some low-income and rural students from participating.” 14 However,

21 Defendants never addressed these issues or changed their policies prior to the

22 administration of the at-home AP Exams. In fact, on May 14, 2020, after 3 full days of

23 AP exam administration, the College Board’s CEO David Coleman acknowledged in an

24 email that, “we can't control the conditions in students' homes.” He added, “Students

25

26 13 https://www.washingtonpost.com/education/2020/04/22/an-open-letter-college-board-about-online-at-home-ap-tests/

27 14 https://www.washingtonpost.com/education/2020/04/03/home-or-school-may-or-june-advanced-placement-exams-will-

28

go-despite-coronavirus/
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1 may face technology or internet issues, need to tend to unexpected family obligations, or

2 face other disruptions that will impact their testing experience. Like the virus itself,

3 these disruptions will disproportionately impact low-income and underrepresented

4 students.” Instead of changing the testing format to address the disparities among

5 student testing environments, however, Mr. Coleman recommended that students

6 explain their disadvantages to college admissions officers. In an admission that the tests

7 are not valid for all students, Coleman said, “We're working to ensure that students who

8 take the exam in challenging situations can share context with admissions officers about

9 their exam experience.”

10

59. The first week of the 2020 AP Exams revealed the deep digital divide

11 among AP test-takers, and it became clear how the revised exam format

12 disproportionately impacted certain groups of students, including those who are under-

13 resourced, who lack access to technology or quiet workspaces, students with disabilities,

14 and students testing in non-ideal time zones. A number of students suffered from

15 technical glitches, timing issues, issues with their computer software, disability

16 accommodation issues, and widespread panic due to the inability to reach anyone at the

17 College Board for assistance.

18

60. After the first week of testing, Defendants reported a failure rate of only

19 1%,15 but AP coordinators and students told a different story. Schools estimated that

20 anywhere between 5-20% of their AP test-takers were unable to submit their exam

21 responses through College Board’s testing platform during the first week. Other

22 students could not finish their exams or log into the platform at all despite practicing

23 beforehand.

24

61. While Defendants later claimed publicly that there was 93% success rate, 16

25 its own data report published at the same time showed a 20% failure rate. The May 23,

26

27

15 https://apcentral.collegeboard.org/pdf/2020-ap-exam-data-overview.pdf 16 https://www.collegeboard.org/releases/2020/students-take-more-than-4-million-advanced-placement-exams-online-for-

28

the-first-time
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1 2020 data report included 5,335,125 AP Exams that were registered for by the Fall 2019

2 deadline.17 It reports that out of these 5,333,125 AP Exams that were registered for and

3 paid for, only 4,633,626 started their exams. It reported 333,768 AP Exams that were

4 started but not completed, and an additional 19,772 additional detected errors. Out of

5 5,333,125 AP Exams paid and registered for by the early Fall deadline, only 4,280,086

6 were completed –a 20% failure rate. There is no data reported for AP Exams registered

7 for after the early deadline, and late examinees are more likely to be from lower income

8 families.18

9

62. Out of 215,059 AP Spanish and Culture Exams, only 157,388 were

10 completed – only a 73% success rate.19 On the AP Spanish and Literature exams, 21,613

11 students out of 31,855 completed the exam – only a 68% success rate. In 2019, 187,133

12 students completed the AP Spanish Language and Culture exam with an 89% passing

13 rate, and 59,243 students completed the AP Language and Literature exam with a 72%

14 passing rate.20

15

63. One AP Calculus teacher reported that 3 out of her 13 students, or 23% of

16 her students, faced technical obstacles submitting their work during the AP Calculus AB

17 examination. This Santa Barbara-area teacher reported that one of her students received

18 an upload error message after the testing time had expired. A second student had issues

19 with her devices, even though she had practiced logging on and taking mock exams with

20 her teacher. A third student in the class reported that her screen froze, then went blank,

21 and then logged the student out upon trying to submit her answers. This student was

22 never able to get back into the exam to upload her submissions.

23

24 17 The College Board notes in this data report that the final deadline for registration was March 13, 2019, and that Fall 2019

25

was only the early registration date. 18 https://www.insidehighered.com/admissions/article/2019/03/11/anger-grows-over-changes-ap-registration-deadlines

26

https://www.totalregistration.net/AP-Exam-RegistrationService/Concerns_Regarding_Changes_to_AP_Exam_Ordering_Deadlines.php

27 19 https://apcentral.collegeboard.org/pdf/2020-ap-exam-data-overview.pdf

28

20 https://secure-media.collegeboard.org/digitalServices/pdf/research/2019/Student-Score-Distributions-2019.pdf
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1

64. Another AP Coordinator reported that, “This whole thing was a mess. It

2 was unprofessional and added more stress to the students, teachers, families, and

3 coordinators.” Yet another AP coordinator reported a 10% failure rate on the AP

4 Calculus exam. These reports from the ground to do not square up with the College

5 Board’s statement that “the vast majority” of the 2.2 million students who tested during

6 the first week in May successfully completed those exams, or its written statement that

7 less than 1% technical of test takers encountered technical difficulties.

8

65. Students who experienced issues with Defendant’s platform emailed their

9 time-stamped work to the College Board, but it was not accepted. They were told that

10 their only remedy was to retake the exam over the summer, if they qualified for a retake

11 exam. Students’ anxiety continued to grow as the week progressed due to legitimate

12 fears that they would complete their work but not be unable to submit it and would then

13 have no remedy.21

14

66. Students were not able to confirm access to the makeup exams (“Retakes”)

15 despite Defendants’ technical failures. Some students also reported that they had two

16 AP Exams scheduled for the same Retake day and that they were told by The College

17 Board that they would have to choose only one Retake.

18

67. FairTest has received a barrage of reports about at-home AP exam failures

19 and the lack of remedies. One parent reported technical issues trying to sign up for a

20 make-up exam. She spent over an hour on phone with Defendants but they refused to

21 allow her to speak to a supervisor. She was offered no reassurance that the problem

22 would be fixed by a makeup.

23

68. One student reported that, “Due to a technical malfunction on the College

24 Board's website during the APUSH exam (AP U.S. History), I was unable to submit by

25

26 21 https://www.washingtonpost.com/education/2020/05/15/college-board-says-new-online-ap-tests-are-going-well-students-

27

report-big-problems/ https://www.insidehighered.com/admissions/article/2020/05/18/students-complain-they-cannot-submit-ap-tests

28

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1 work. My dad has been critically ill and hospitalized for the past few weeks and despite

2 this challenge, I persisted in preparing for my AP Exams because I wanted to achieve

3 my goals of earning college credits. Now, due to a technical issue on the College

4 Board's website, I am going to have to continue working during this incredibly stressful

5 time in my life to prepare to retake the exam in June.”

6

69. One parent said, “My son has time stamped images of his Physics AP

7 answers. Why can’t college board find a way to accept those? We worry there is no

8 make up for the make-up test. What happens if this glitch happens on the make up?”

9

70. One student described the experience of carefully preparing for the exam

10 but still being unable to submit his responses. He took all precautions once he heard

11 from some students that there were submission errors. He updated his computer, used

12 Chrome because it was recommended by Defendants, told his brother to leave the house

13 so that he would not be distracted during his test, and he made his entire family get off

14 of the Wifi so that he would have the “maximum potential” his Wifi could give him.

15 “Then, when I took Physics 1, my first answer submitted with no problem, but my

16 second question wouldn’t submit.”

17

71. Thousands of students described Defendants’ unwillingness to accept time-

18 stamped documents by email when the system would not allow them to submit their

19 responses and the inability to reach anyone who would respond to their questions. One

20 parent was on hold with the College Board for an hour and forty minutes, when a

21 representative finally picked up the line and placed the parent back on hold. Student and

22 parent emails to Defendants were not responded to.

23

72. In response to the complaints, Defendants initially claimed that their

24 systems did not malfunction, but the problems were instead caused by students.

25 Students were instructed to update their browsers, disable plug-ins, and make sure their

26 devices were properly set up.

27

28

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1

73. Ultimately, in response to what some called a “tsunami” of complaints, the

2 College Board made some adjustments to its policies, announcing on May 17, 2020 that

3 it would provide a backup email submission option of browser-based exams for students

4 testing between May 18 and May 22, 2020. Nonetheless, if the student is unable to

5 upload responses through the exam platform or successfully transmit by email at the

6 time of the exam, as in the case of a home connectivity problem, the student would still

7 have to request a makeup exam. In addition, the College Board would not accept email

8 transmissions from students who already tested between May 11 and May 15, 2020.

9

74. Students struggled with the email submissions as well. Unbeknownst to

10 students, if they used an email other than the one used by their schools to register them,

11 Defendants would not accept their submission. If they attempted to submit an email

12 without Defendants’ finding that they suffered from technological difficulties,

13 Defendants would not accept it. No students from the first week of testing were

14 permitted to submit their time-stamped work. If students were unsure as to whether or

15 not their submissions were accepted, and they chose to register for Retakes, they waived

16 their right to have their first tests scored.

17

75. An online petition is circulating, called “Let Students Submit AP Work,”

18 which requests remedies for the students who tested between May 11 and May 15, 2020

19 and could not submit their work.22 The Petition states that, “We, along with all our

20 sisters and brothers in humanity, have already been having a hard time because of

21 COVID and we were already tired and stressed out and a lot of us have been struggling

22 with sadness and mental health issues. This will make all of that worse. Fortunately,

23 there's a solution. Most of us still have our work and answers saved. The college board

24 can give us time to re-submit after they fix their website.” As of the time of filing, the

25 petition had over 32,000 signatures.

26

27

28

22 https://www.change.org/p/college-board-let-students-re-submit-ap-work?signed=true
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1

76. Students who do not wish to retake their exams, and even those who do not

2 wish to test at all, cannot receive a refund of their test fees directly from Defendants.

3 Even though Defendants collected money for the AP Exams at least six months before

4 their exams, it will not directly issue refunds to students. Defendants have stated that

5 after both the regular and makeup testing windows have passed, if students have not

6 taken or attempted to take any exams, it will refund schools the cost of their exam fees.

7 It is then up to the students to request fee refunds from their schools. The College

8 Board’s website does not provide any instructions to students about how students can

9 receive fee refunds. Its website says, “[L]ocal school policy determines the amount of

10 the refund.”

11

77. These are challenging times for high school students and their families,

12 emotionally and financially. Students are entitled to the valid and reliable exam they

13 signed up and paid for, absent the severe stress and anxiety associated with the new

14 format. Despite collecting what Plaintiffs believe to be approximately half a billion

15 dollars in exam fees, Defendants failed to provide students with an AP exam that is

16 similar to the one they purchased.

17

78. One counselor reported that, “For students this was a traumatic experience,

18 especially after all the time they put into salvaging this course/the year/etc. CB should

19 have troubleshooted the "what-ifs" ahead of time and had the policy in place for

20 students to submit answers that did not immediately go. Technology issues are not a

21 new phenomenon! What more can these poor kids be penalized for? CB needs to accept

22 the answers that would not submit last week.”

23

79. The “digital divide” was not properly managed. Students are entitled to an

24 exam that does not discriminate based on their lack of access to resources or based on

25 their disabilities. Defendants represented that they would provide the necessary

26 technology to all students; however, there is more than one type of device required to

27 take the AP Exams this year and different exams require different equipment. For

28

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1 example, all language tests must be taken on a phone or tablet (only specific models),

2 while others are taken on a computer. Defendants claimed that they would get a device

3 to everyone who needed one, the method of requesting a device required digital access

4 and was therefore not accessible to the students who needed it.

5

80. California school leaders estimate that approximately one in five students

6 lacks broadband or computer access. The lack of digital access is particularly bad in

7 rural areas, where only 34% of California households have an internet service

8 subscription.23 One under-resourced high school tried to get mobile hot spots but

9 experienced delays due to demand as well as technical difficulties. “It’s just hard to

10 focus and find a place to be by myself,” one underprivileged student reported, adding, “I

11 don’t know how they expect us to do an AP exam at home.”

12

81. As of the first day of AP testing, Defendants said that they had “connected”

13 with 27,000 students, less than 1% of this year’s AP exam-takers. The distribution of

14 devices to under-resourced students does not fix slow or unavailable internet service,

15 multiple family members using the internet at the same time, or other issues

16 contributing to poor testing environments.

17

82. Some students have reported that they have nowhere to take their exams at

18 home where they can be free of distraction. It is unrealistic to think that all students

19 have quiet, private spaces at home in which to test. Lower income students are much

20 more likely to face cramped housing, siblings and parents sharing the same workspace,

21 internet connectivity problems, noisy environments, and less comfortable testing spaces.

22 It has been reported that one New Jersey teacher, worried about her star AP English

23 student’s lack of reliable internet at home, inquired with Defendants but was told “have

24 her use the free WiFi at McDonald’s.”24

25

26 23 https://edsource.org/2020/more-california-students-are-online-but-digital-divide-runs-deep-with-distance-
learning/630456

27 24 https://www.nydailynews.com/opinion/ny-oped-taking-an-ap-test-outside-mcds-20200518-pbzbctec4rgnvkhlwrzfsd3poe-

28

story.html
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1

83. Prior to the at-home AP Exams, counselors, educators and advocates

2 requested that The College Board provide additional testing time to all students. An

3 Open Letter to the College Board said that students should be provided with a flexible

4 time period, not a fixed time, in which to test. As support for this request, the Letter

5 stated, “The proposed time limitations have not been tested under these extreme

6 conditions. With the extra stress associated with this year’s tests, many students fear

7 they will not be able to complete the tests in the allotted time frames. We expect this to

8 cause widespread anxiety and panic from minute one. If students know they have

9 enough time, they may still be stressed, but they will be able to relax a little and may

10 even complete the tests with a small amount of extra time, time that may be necessary to

11 accommodate differences in access.”25

12

84. Students have reported issues with the time limits imposed by this year’s

13 AP Exams. This year’s AP Exams have not been properly piloted for time limits, and

14 they are more speeded and abridged than the original versions. Defendants have

15 acknowledged the timing issues. The 2020 AP Testing Guide states, “Don't worry if you

16 don't complete all parts of the question before you need to attach and submit your

17 response. To give students as many different chances to demonstrate what they know as

18 possible, a question may have more parts than can be answered in the allowed time. You

19 don't need to complete the entire question to get a score of 5, but you do need to submit

20 whatever work you've done.” While this could alleviate some students’ despair about

21 not finishing their exams, it confirms the fears of other students that their scores will be

22 seen as invalid or meritless.26

23

85. Adding to the perception that the scores on this year’s exam may not be fair

24 or consistent is the ability of high schools to review students’ scores and request score

25 increases. The 2020 AP Testing Guide says that “AP teachers will have the chance to

26

27 25 https://www.washingtonpost.com/education/2020/04/22/an-open-letter-college-board-about-online-at-home-ap-tests/

28

26 https://apcentral.collegeboard.org/pdf/ap-testing-guide-2020.pdf
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1 review your score and your exam responses this summer. If you don't receive a score of

2 3 or higher and your teacher is convinced you should have, your teacher will be able to

3 engage with the AP Program's college faculty partners to review and confirm your

4 score, ensuring it's fair and appropriate.” This policy benefits students at schools with

5 more resources, and it discriminates against students who are underprivileged or who

6 attend under-resourced schools.27

7

86. Moreover, there is no guarantee that the AP exam scores will count for

8 anything in the collegiate landscape. While some colleges have said they will accept the

9 credit, others have remained silent. Some colleges view at-home testing as inherently

10 inequitable.

11

87. Defendants’ unlawful conduct has caused and will continue to cause

12 substantial and irreparable damage and injury to Plaintiffs in ways that cannot be

13 compensated with money, and Plaintiffs have no speedy, plain, or adequate remedy at

14 law. Students pay for these AP Exams but will have disadvantages due to Defendants’

15 restrictions and practices discussed herein.

16

88. If Defendants’ actions are not remedied immediately, Plaintiffs will also

17 suffer injuries, such as the cost of preparing for yet another set of AP Exams. Students

18 who already requested and took Retakes were required to forego other activities and

19 employment to study, and their families were required to forego access to work and

20 school for a second time. The students forced to do the Retakes even when they

21 completed their first Exams competently and followed all rules for submission, were

22 more nervous about potential technology glitches during the Retake than they were

23 about the actual course content. They were also at a disadvantage because they were

24 multiple weeks away from the course preparation, and many schools had finished for

25 the year so they did not have access to their AP teachers.

26

27

28

27 Id.
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1

89. Plaintiffs are informed and believe that Defendants attempted and will

2 attempt to enforce a series of different terms and conditions against those who took and

3 those who did not take the AP Exams. Plaintiffs are informed and believe that

4 Defendants will even do so against students who never had the opportunity to register

5 for the tests, those who experienced log in failures or who could not submit their test

6 responses, those who were dropped from AP Exam rosters, and students who were

7 required to test without the accommodations that Defendants had granted them.

8

Students with Disabilities

9

90. When Defendants announced the new at-home testing format, it initially

10 stayed silent on accessibility and accommodations for disabled students. After parents,

11 teachers and counselors repeatedly asked for more details about accommodations,

12 Defendants announced a month before the AP Exams were scheduled to begin that all

13 accommodations would be provided on the at-home exams. Still, no details about how

14 the exams would be delivered to students with disabilities were released at that time.

15

91. On April 27, approximately two weeks before the exams were scheduled to

16 begin, Defendants finally released information regarding disability accommodations. 28

17 Students were told that extended time would be provided through the online exam.

18 They were also told that they needed to use their own assistive technology, such as

19 screen reader software, that was compatible with the at-home AP platform.

20

92. The College Board’s announcement regarding test accommodations also

21 stated that “Students approved to use specific devices or aids may use what they have

22 access to at home.” In other words, Defendants would not be providing any of these

23 devices or aids, even if the students had access to them during AP Exams taken at

24 school.

25

93. Assuming the availability, willingness and ability of students’ household

26 members, Defendants stated that students approved for a reader or scribe “may be

27

28

28 https://apcentral.collegeboard.org/pdf/ap-testing-guide-2020.pdf?SFMC_cid=EM305179-&rid=80697368
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1 assisted by a family or household member while testing.” These tasks are ordinarily

2 performed by a trained staff member at school during AP Exams.

3

94. Some students who were initially approved for 50% extended time were

4 initially told they had their 50% time built into the exams. On May 7, less than one

5 week before the AP Exams were scheduled to begin, some, but not all, of those students

6 with the accommodation of 50% extended time were informed they would automatically

7 receive 100% extended time (those with 100% extended time did not get more time).

8 Students with this 50% extended time were informed this would take the place of their

9 breaks. Some students with 50% extended time did not want this additional time,

10 because they have to wait the time for each question of the exam has passed to move to

11 the next question.

12

95. In addition, with the additional time, students who have two exams on one

13 day have little to no break between them. For example, there are exams scheduled at

14 11:00 a.m. and 1:00 p.m. on the same day. So, if a student with extended time has 90

15 minutes to finish the first exam at 11:00 a.m., he or she would have to start the 1:00 p.m.

16 exam immediately thereafter at 12:30 p.m. There is no time to take a break, as the AP

17 instructions specifically require students to log on 30 minutes before their exams

18 commence.

19

96. “Breaks-as-needed” is a common disability accommodation, especially for

20 students with medical issues such as diabetes. These students are generally not given

21 extended testing time, but their breaks do not count as part of their testing time. With

22 the 2020 format, there are no breaks at all.

23

97. Many disability accommodations offered to the at-home AP examinees are

24 dependent upon access to purchased software. Other accommodations require the

25 availability of an adult who happens to be free during testing time. This available adult

26 must not be working remotely in the home, or outside of the home and must also be

27 qualified to act as a reader or a scribe according to Defendants’ detailed standards.

28

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1 These required circumstances again weigh heavily in favor of wealthier students who

2 have access to purchase software and adults who have the luxury of time to help them

3 take their AP Exams.

4

98. All AP students were told that any disability accommodation requests

5 approved after the conversion to online testing would force them to forfeit their original

6 testing day and have only one opportunity to test. Some students needed to request

7 different or additional accommodations based upon exam’s format change.

8

99. The at-home AP Exams have not been validated for students with

9 disabilities or for students with these accommodations. The inequitable access to

10 available household members and the disparity in technology invalidate the at-home AP

11 exam results.

12

100. For example, Plaintiff M.W. was forced to take her AP Exam without the

13 accommodations that Defendants had already approved for her. S.M., another disabled

14 student, believed that the condensed format of her AP Exam made it particularly

15 difficult for students like her to demonstrate her knowledge. Plaintiff L.D. had extreme

16 difficulty with the format of the at-home AP Exams due to his disabilities and was also

17 unable to retake the exam.

18

Public Charter School Students and Homeschool Students

19

101. The change of the AP exam to the at-home format is only the final hurdle

20 for many students, and it is one hurdle that some students will never even reach.

21 Defendants deny access to students or causes them to incur additional costs to access

22 AP Exams based solely on where they are enrolled in school.

23

102. Defendants decide who will and who will not be able to access the AP

24 program and the associated secondary, postsecondary and financial aid opportunities.

25 Defendants do not allow access on an equal and nonpartisan basis and makes false

26 claims regarding the availability of its programs in its written materials. Defendants

27

28

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1 have been notified that they were excluding groups of students from its programs and

2 their benefits; however, they have not made any effort to remedy the situation.

3

103. Defendants determine what schools and what types of schools can provide

4 AP courses and administer AP Exams. Although Defendants represent that they offer

5 AP opportunities to all students, authorization to administer AP Exams is not granted to

6 all schools, leaving students who have completed the AP curriculum with no place to

7 take AP Exams. The ability to administer AP Exams is routinely denied by Defendants,

8 even to schools that are specifically authorized to provide AP courses by teachers

9 certified by Defendants, and those that are authorized receive their students’ AP Exam

10 scores.

11

104. Defendants have denied certain classes of schools, including public charter

12 schools, schools that offer distance learning, and homeschools, the opportunity to

13 administer AP Exams. Students who attend these schools often do so for religious

14 purposes, because they are disabled, or because of their remote location. Authorization

15 is routinely denied to schools whose curriculum is partially or entirely non-classroom

16 based. Even when the AP Exams moved to an at-home format this year, and all students

17 were participating in distance learning, students were unable to take AP Exams if their

18 schools were not authorized to administer them. This policy is discriminatory and

19 deprives students of the financial opportunities that the AP program affords students

20 who pass the exams.

21

105. In California, families have the option of sending their children to local

22 public schools, public charter schools, or private schools. As of the 2017–

23 18 school year, the number of California students enrolled in charter schools was

24 approximately 628,849, or approximately ten percent of the public school

25 student population in California.29 Approximately 25% of California charter schools are

26 either partially or exclusively non-classroom-based (independent study).

27

28

29 https://www.cde.ca.gov/sp/ch/cefcharterschools.asp
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1

106. There are approximately 120,000 public independent study high school

2 students in California.30 An estimated 15-20% of these independent study students have

3 documented disabilities, and this number is on the rise due to the personalized learning

4 opportunities offered through independent study. Following the COVID-19 pandemic,

5 the demand for schools that offer distance learning has sky-rocketed, causing student

6 attendance to double or triple. The rate of students learning through homeschooling

7 programs is also expected to rise dramatically in response to the pandemic.

8

107. Defendants do not allow public charter schools that offer independent study

9 programs or blended learning to administer AP Exams to their own students, even if

10 they are qualified to teach the curriculum. There are countless other small private

11 schools, homeschool and religious schools that are not approved test centers. Students at

12 these schools have no access to AP Exams or additional barriers.

13

108. Families at schools without Defendants’ approval to test are required to

14 find willing test centers on their own, without the assistance of Defendants. If asked,

15 Defendants will provide parents with a list of all local schools that are approved to

16 administer the AP exam, and parents must call to plead with the school to accept their

17 student. Based on Plaintiffs’ experiences, few schools actually accept outside students,

18 and the schools on Defendants’ lists may be hundreds of miles away from their homes.

19 Some schools that do agree to test outside students charge exorbitant sums of money in

20 addition to the official test fees. Test centers that accept outside students are generally

21 less willing to accept disabled students with accommodations for AP testing.

22

109. Defendants’ policy says that “The AP Program encourages AP

23 coordinators to assist homeschooled students, students from virtual schools, and

24 students whose schools don’t offer AP Exams,” but there is no requirement that they do

25 so and no alternative if parents cannot locate a willing test center on their own.

26

27

28

30 Id.
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1

110. Following Defendants’ decision to move AP Exams to an at-home format,

2 students who were successful in locating schools other than their own to administer

3 testing were dropped from the rosters and could not take their AP Exams.

4

111. A.K. is a public charter school student with disabilities who resides in Long

5 Beach, California. His high school does not have authorization to administer AP Exams.

6 One local high school would not administer A.K.’s AP Exams with accommodations,

7 saying that it had a “limited number of proctors and it sounds like [the student] will

8 require a designated proctor because of the specific accommodations from the College

9 Board.”

10

112. Z.S. attends a public charter school that offers an independent study

11 curriculum. Z.S. and her siblings have always been educated through homeschooling or

12 through an independent study program due to religious reasons. Her school is not a

13 College Board-approved test center, but she wished to take the AP English exam after

14 having taken the course.

15

113. In the Fall of 2019, Z.S.’s mother called approximately 14 schools in an

16 attempt to register her to take the AP exam. Her neighborhood high school would not

17 accept her for testing, and neither would any of the schools on the list provided to her by

18 the College Board. Z.S.’s mother finally heard of a school near her home that would test

19 outside students for an additional fee of $150 on top of her exam registration fee.

20

114. L.B. attends a private Catholic school where he was enrolled in AP Latin.

21 At the time he registered to take his AP Exams, L.B.’s school was unable to offer the

22 AP Exam in Latin. Early in the school year, L.B. found another school that was willing

23 to administer the AP Exam for him. However, when that school, along with all other

24 schools in the area, closed due to COVID-19, his access to this test location was

25 cancelled. Defendants advised him to re-register at a different location or to get a

26 refund. L.B. could not find another test site to take the AP Exam. L.B. asked the College

27

28

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1 Board if he could take his test at home like everyone else, now that all exams were

2 being provided in an online format. The College Board repeatedly denied this request.

3

4

115. Due to the testing difficulties, some schools who have not been able to

5 obtain Defendants’ approval to administer AP Exams now discourage enrollment in AP

6 courses or have stopped offering them altogether, even though this means that their

7 students may forego the opportunity to earn the college credits (and cost savings) that

8 come along with those courses.

9

Background of Plaintiffs

10

116. The National Center for Fair and Open Testing (“FairTest”) is a

11 Massachusetts public charity that operates in California, nationwide, and internationally.

12 FairTest’s mission is to advance quality education and equal opportunity by promoting

13 fair, open, and valid evaluations of students, teachers, and schools. FairTest also works

14 to end the testing practices that impede those goals, including standardized testing that

15 negatively impacts students with disabilities, underrepresented minorities, gender bias,

16 and dozens of other issues involving the fair evaluation of students, teachers, and

17 schools.

18

FairTest engages in three main activities:

19

1) Education of the public. FairTest serves as a unique source of information

20

about testing and alternatives for educators, parents, public officials, journalists

21

and policymakers.

22

2) Advocacy. FairTest advocates on behalf of low-income families, disabled

23

students and other marginalized student groups to close the gap in admissions

24

and outcomes. FairTest coordinates and catalyzes educators, citizen groups and

25

parents to bring about needed assessment reforms.

26

3) Strategic Assistance. FairTest provides training and advice to parents,

27

educators and a broad range of civil rights organizations about assessments.

28

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1

117. FairTest places special emphasis on eliminating the racial, class, gender,

2 and cultural barriers to equal opportunity posed by standardized tests. In pursuit of its

3 mission, FairTest provides information, technical assistance and advocacy on a broad

4 range of testing concerns, focusing on three main areas: K-12, college and university

5 admissions, and employment tests.

6

118. Since Defendants announced their changes to the AP exam several months

7 ago, FairTest has expended significant resources addressing the issues associated with

8 the at-home exam and advocating for the student groups most affected. In the past two

9 months, FairTest has repeatedly communicated its concerns about the 2020 AP Exams

10 through social media, interviews with journalists, phone calls, and emails.

11

119. Specifically, FairTest emphasized the potential issues involving computer

12 equipment and technology, connectivity, the availability of legally required

13 accommodations, test security, and score comparability. In the last week alone, Robert

14 Schaeffer, FairTests’ Interim Executive Director, communicated with dozens of

15 students, parents, and reporters specifically about the glitches and “snafus” that took

16 place during the first week of AP Exams. Dozens of other queries were sent to

17 FairTest's general email box and referred for response.

18

120. In the last month, Akil Bello, FairTest’s Senior Director of Advocacy and

19 Advancement, has responded to several hundred emails and as many calls about AP

20 issues, and in the first week of testing alone recorded close to 200 accounts of student

21 testing issues. Mr. Bello has spent additional time advocating for under-resourced

22 students taking the AP Exams this year through social media and interviews with

23 reporters. Since the AP Exams began, FairTest staff has put in hundreds of additional

24 hours communicating with anguished parents, hours it could have spent on other

25 important testing issues, and hours it would not have spent but for the AP Exam failures.

26

121. FairTest addresses multiple testing reform issues involving high stakes

27 testing, college admissions testing, mandatory state testing, K-12 admissions, as well as

28

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1 graduation and promotion tests. Instead of expending its resources on the spectrum of

2 testing issues, FairTest has been forced to allocate a disproportionate amount of

3 resources in recent weeks to address Defendants’ AP failures.

4

122. FairTest has expended significant resources to address the issues resulting

5 from the at-home AP Exams. Immediately prior to the administration of the AP Exams,

6 FairTest spent a high percentage of its time responding to parents, advocates, counselors

7 and educators who were concerned about the format of the AP Exams, the timing of the

8 Exams, and access issues. FairTest advocated for changes to the AP Exam format before

9 the Exams were administered.

10

123. Starting on the first day of the AP Exam administration, FairTest started

11 receiving emails and phone calls from hundreds of students and their parents due to

12 access and technical issues. FairTest had to divert additional resources to issues

13 surrounding the AP Exam failures due to the sheer volume of calls and emails it

14 received. For example, FairTest designated specific staff members and volunteers to

15 answer calls, respond to emails, to otherwise manage the high volume of complaints

16

124. R.G. is acting on behalf of her minor son J.G, who is a high school junior

17 enrolled in four (4) AP courses this year: AP Calculus AB, AP Chemistry, AP United

18 States History, and AP English Literature and Composition. He paid for and registered

19 to take all four AP Exams. On Tuesday, May 12, 2020, J.G. took the AP Calculus AB

20 examination and successfully submitted his work in a JPEG format. The next day,

21 while using the same computer, the same browser, and connected to the same Wi-Fi

22 network in the same room in his home, he took the AP Chemistry exam; however, when

23 he attempted to submit his work in the same JPEG format, he received a message

24 stating: “there was an error, we did not receive your submission.”

25

125. J.G. and his mother, R.G., immediately took a picture of his work, emailed

26 the College Board with his test work attached as a JPEG, and called the College Board.

27 They were unable to reach anyone after remaining on hold for 90 minutes.

28

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1

126. As a result, J.G. applied to take a Retake Examination. In the application,

2 he had to explain why he needed the Retake. J.G. received a message saying that he be

3 notified the week of May 25, 2020, if he was accepted for a Retake, less than a week

4 before the Retake was scheduled to take place.

5

127. After applying to retake the AP Chemistry exam, J.G. realized he will not

6 be able available to retake this test on the scheduled date because of a scheduling

7 conflict. If Defendants do not accept his work that was photographed, time-stamped,

8 and promptly emailed to Defendants on May 13, 2020, he will not have the opportunity

9 to pass the test and receive the benefits of AP credit.

10

128. Plaintiff A.K. is a graduating senior with learning disabilities including

11 ADHD, sensory motor dysfunction, and a speech and language disorder. When A.K.

12 was in his 9th grade year at a public charter school, his mother contacted the AP

13 Coordinator at the local public school in his district in Long Beach, California, and A.K.

14 was initially approved to take the AP examination at the high school. When A.K.’s

15 mother informed the AP Coordinator that A.K. needed accommodations for his AP

16 Exam, the AP Coordinator told her that the school could no longer administer the test

17 for A.K. because it did not have a proctor or a teacher available to administer his

18 accommodations.

19

129. A.K.’s high counselor contacted Defendants to see if the charter school

20 could administer the examination. Defendants denied the request, and A.K. had to find

21 an alternative location. A.K.’s mother finally made private arrangements for A.K.’s

22 high school counselor to proctor A.K.’s AP test at the local public school. In this case,

23 the student and his family were solely responsible for finding the proctor and ensuring

24 he could even take the examination, making access challenging and unduly burdensome.

25

130. Plaintiff M.S. is acting on behalf of her minor daughter Z.S., who both

26 reside in the Central District of California. Z.S. is currently enrolled in AP English

27 Literature and Composition, and she took the AP examination on May 13, 2020. Z.S.

28

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1 suffers from severe test anxiety, even under ordinary testing conditions. Z.S.

2 experienced heightened anxiety and fear due to the technical challenges involved with

3 the administration and submission of the exam. Under these rushed and condensed

4 conditions, Z.S. did not have time to complete the AP English exam on May 13 and

5 Defendants said that the inability to complete an exam alone does not make her eligible

6 for a Retake. The College Board’s website policy expressly prohibits Retakes when a

7 student runs out of time: “Running out of time to finish and submit your response is

8 NOT an approved reason for requesting a makeup test.”

9

131. Plaintiff J.P., on behalf of her minor son R.P. who is a sophomore at

10 Saugus High School, is currently enrolled in two AP classes, AP Chemistry and AP

11 World History. J.P. and R.P. live in the Central District. The AP Chemistry exam was

12 administered on May 20, 2020, the very day of the six-month anniversary of the tragic

13 Saugus school shooting.

14

132. Already under tremendous amounts of stress and anxiety due to COVID

15 and the anniversary of this horrific school event, R.P. began the AP Chemistry exam

16 and successfully submitted the answer to the first question. After finishing the second

17 of two questions with six minutes remaining, R.P. tried to submit his answer but

18 received an error message that his work would not upload, despite his careful attention

19 to following instructions. He and his mother actually practiced logging in, preparing,

20 and submitting answers the day prior to the real examination.

21

133. His mother J.P., an LAUSD teacher, immediately called the College Board.

22 After waiting on hold and transferring to several different departments, she finally

23 reached a customer service agent. J.P. asked whether Defendants were experiencing

24 reports of similar technical problems, and rather than responding honestly, the customer

25 service employee said they had received very few technical problem reports, and

26 blamed the student for using an out of date browser. R.P.’s browser was not out of date.

27

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1

134. J.P. asked if she could help her son R.P. submit the work, and was told no.

2 R.P. as a first week test-taker, does not have the same remedy, nor did he have the same

3 test experience as the week two test-takers, who were given the opportunity to submit

4 their work to Defendants. During week two, after realizing how its database, server,

5 and platform for accepting test data was inadequate, Defendants provided a “unique

6 email address” to students in the middle of the failed exam submission attempts. R.P.

7 has saved his entire answer, including the unsubmitted portion to question 2, and

8 requests that Defendants accept his work and grade his test answers.

9

135. D.K. is a San Diego-area senior headed to a large prestigious public

10 California university located in the Central District this fall. He was counting on passing

11 as many AP exams as possible to receive college credit and to reduce his total college

12 tuition cost. D.K. took the AP Calculus BC exam during the first week of AP testing and

13 completed every question successfully. He did not have the benefit of a “back-up

14 email” to send his completed work to Defendants, a benefit and safety plan for students

15 who took the exam during the second week of AP testing. When D.K. reached the 5-

16 minute warning, he immediately started to upload his handwritten answers. He was

17 never able to upload or submit his answers, which he believed were 100% correct and

18 accurate. He used an updated Firefox browser on an iMac computer. He then tried to

19 upload by taking a picture with his iPhone using the JPEG format, but was still unable

20 to upload or submit that either. He watched the clock hit zero minutes, devastated that

21 after a year of hard work, he was unable to submit his answers and receive full college

22 credit. He immediately called Defendants to find out how to submit his time-stamped

23 work, to no avail. He was left on hold and never heard back from Defendants until a

24 few days before the Retake examination. He was forced to take another exam again on

25 the scheduled Retake, but the exam was more challenging, and he was worried that

26 another technical glitch would occur.

27

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1

136. S.N. and her minor daughter, C.M. reside in the Los Angeles area and C.M.

2 attends a public high school in the Long Beach area. As a learning-disabled student, she

3 received extended time accommodations to take her exams. After a challenging year of

4 working hard in AP Chemistry, C.M. tried to submit her AP Chemistry test answer, but

5 it would not upload. C.M. believes that the 45-minute abridged version of this

6 examination was far too condensed to fairly test an entire year of college level

7 chemistry, particularly for learning-disabled students.

8

137. M.W. is a student who has a medical diagnosis of migraine with aura that

9 was complicated by a head injury stemming from a car accident. According to her 504

10 Plan, M.W. suffers from symptoms resulting from her head injury that limit one or more

11 major activities. M.W.’s 504 Plan requires that she take a 5-minute break for every 10

12 minutes of reading she does in class. She is also entitled to additional time to turn in her

13 assignments.

14

138. Due to her diagnosed disabilities and her school 504 Plan, the College

15 Board found that M.W. is entitled to “extra breaks” accommodations on all Defendants

16 exams, including the AP Exams. As such, M.W. expected to have access to breaks

17 during her at-home AP Biology exam.

18

139. Immediately prior to the AP Exams, Defendants instructed all students with

19 disabilities who had applied for accommodations to log into to Defendants’ “Big

20 Future” platform to find their accommodation decisions.31 Had M.W. not been disabled

21 and searching for her accommodations, she would not otherwise have been required to

22 log into Big Future. M.W.’s Defendants accommodations letter states that she is entitled

23 to “extra breaks.”

24

140. However, when changes to the AP Exam format were announced, M.W.

25 learned that the at-home AP Exam format did not allow for any breaks whatsoever.

26

27 31 https://accommodations.collegeboard.org/tips-faqs/faq

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1 Since extended time was not one of her approved accommodations, she attempted to

2 change her accommodations so that she could fit breaks in. Because she did not have a

3 decision from Defendants about her requested accommodations in time, M.W. had to

4 skip the AP Exam. However, Defendants ultimately denied M.W.’s request based on the

5 fact that extended time was not provided in her school 504 Plan. M.W. never needed

6 extended time because she was provided the accommodation of required breaks.

7

141. M.W. had no choice but to take the Retake without any breaks. As a result,

8 M.W. suffered from headaches and vision issues because she could not take any breaks.

9 M.W. is a senior planning to go to college in the fall. She wanted her test score so that

10 she could place out of introductory classes without having to go to summer school. It is

11 likely she will not have her score in time to make a decision about summer school.

12

142. N.C. lives in a remote, rural location in New Hampshire. N.C. took AP

13 Physics and saved his work on a permissible application before trying to upload his

14 responses. He was unable to upload or submit anything for his AP Physics test. N.C.

15 then filled out the paperwork for a Retake examination, but Defendants rejected his

16 request. He is no longer able to take the AP exam for which he was registered or

17 receive the college credit he deserves. Because N.C. colleges are generally unaware of

18 the rigor at his high school, N.C. relied upon his AP Exam scores for his college

19 applications.

20

During the COVID pandemic and stay at home orders, multiple members of

21 S.T.’s family were diagnosed with COVID, including S.T. S.T.’s grandfather passed

22 away from COVID, and everyone was fully quarantined during the AP Testing period in

23 May. Amid this family crisis and mourning, S.T.’s first AP Test would not upload.

24 C.T. reported a “terrible scream, her son running downstairs, crying and screaming.”

25 C.T. then called Defendants and was on hold for over an hour. She then sent two

26 emails, to which she received no response. S.T. attempted the Retake exam but again,

27

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1 his test answers would not “paste” or upload. He is unavailable for AP “exceptions

2 testing.”

3

L.B., attends a private Catholic high school where he was enrolled in AP Latin.

4 Because his school did not offer the AP Latin exam, his mother located another school

5 in the area to administer the exam. He was deleted from the new school’s roster when

6 the COVID-19 pandemic forced its closure. Defendants only offered L.B. a refund and

7 would not allow him to test at-home and would not help him secure another location.

8

9

CLASS ACTION ALLEGATIONS

10

Plaintiffs bring this action on their own behalf, and as a class action on behalf of

11 the Classes defined herein, pursuant to, and properly maintainable under Fed. R. Civ. P.

12 23(a) and Fed. R. Civ. P. 23(b)(3). The Classes consist of tens of thousands of students

13 victimized by Defendants’ unfair and illegal practices. Specifically, Plaintiffs brings

14 this suit on behalf of the following Classes:

15

The “Nationwide Class”: All American students, whether living within

16

the United States or abroad, who were unable to register for, complete, or

17

successfully submit, and successfully have scored, answers to the 2020 AP

18

Exams, whether on an initial testing attempt or during subsequent testing

19

attempts (e.g., Retakes or Exceptional testing), as a result of the acts and

20

omissions of Defendants, including, but not limited to, representations and

21

communications, prior to, during, and/or subsequent to the administration

22

of the 2020 AP Exams. The class excludes counsel representing the class

23

and all persons employed by said counsel.

24

25

The Fair Access “Subclass”: All members of the Nationwide Class who

26

were unable to register for, complete, or successfully submit answers to the

27

2020 AP Exams, whether on an initial testing attempt or during subsequent

28

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1

testing attempts (e.g., re-tests or make-up tests), as a result of the acts

2

and/or omissions of Defendants prior to, during, and/or subsequent to the

3

administration of the 2020 AP Exams that deprived members of this

4

Subclass of fair, equal, and reasonable access to the 2020 AP Exams.

5

6

The Disabled Students “Subclass”: All disabled members of the

7

Nationwide Class who were unable to register for, complete, or

8

successfully submit answers to the 2020 AP Exams, whether on an initial

9

testing attempt or during subsequent testing attempts (e.g., re-tests or

10

make-up tests), as a result of the acts and/or omissions of Defendants prior

11

to, during, and/or subsequent to the administration of the 2020 AP Exams

12

that resulted in a failure to reasonably accommodate or account for the

13

disabilities of the members of this Subclass, including, but not limited to,

14

providing alternative testing methods, accommodation breaks, or

15

additional time.

16

17

The Under-Resourced “Subclass”: All under-resourced members of the

18

Nationwide Class who were unable to register for, complete, or

19

successfully submit answers to the 2020 AP Exams, whether on an initial

20

testing attempt or during subsequent testing attempts (e.g., re-tests or

21

make-up tests), as a result of the acts and/or omissions of Defendants prior

22

to, during, and/or subsequent to the administration of the 2020 AP Exams

23

that resulted in a failure to reasonably accommodate or account for the lack

24

of resources available to the members of this Subclass, including, but not

25

limited to those students with challenging test environments, limited

26

connectivity, or lack of internet access to receive Defendants’ multiple

27

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1

instructions and guidelines regarding the AP Exams and/or to take the AP

2

Exams.

3

4

The Denied Access “Subclass”: All members of the Nationwide Class

5

who were denied the ability to register for, complete, or submit answers to

6

the 2020 AP Exams, whether with respect to an initial testing attempt or

7

subsequent testing attempts (e.g., re-tests or make-up tests), as a result of

8

the acts and/or omissions of Defendants prior to, during, and/or subsequent

9

to the administration of the 2020 AP Exams.

10

11

Numerosity: The proposed classes are so numerous that individual joinder of all

12 their members is impracticable. While the exact number and identities of the Class

13 Members are unknown at this time, such information can be ascertained through

14 appropriate investigation and discovery. The disposition of the claims of these Class

15 Members in a single class action will provide substantial benefits to all parties and to

16 the Court.

17

Typicality: Plaintiffs’ claims are typical of the claims of their respective Classes

18 in that their claims arise from the same event or practice or course of conduct that gives

19 rise to the claims of other class members, and are based on the same legal theory as

20 their claims.

21

Adequacy of Representation: Plaintiffs will fairly and adequately represent and

22 protect the interests of the Classes. Undersigned counsel has substantial experience in

23 prosecuting complex lawsuits and class action litigation. Plaintiffs and undersigned

24 counsel are committed to vigorously prosecuting this action on behalf of the Classes,

25 and have the financial resources to do so. Neither Plaintiffs nor their counsel have any

26 interests adverse to the Classes.

27

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1

Superiority of Class Action and Impracticability of Individual Actions: Plaintiffs

2 and the members of the Classes suffered harm as a result of Defendants’ unlawful

3 conduct. A class action is superior to other available methods for the fair and efficient

4 adjudication of the controversy. Individual joinder of all members of the Classes is

5 impractical. Even if individual Class Members had the resources to pursue individual

6 litigation, it would be unduly burdensome to the courts in which the individual litigation

7 would proceed. Individual litigation magnifies the delay and expense to all parties in

8 the court system of resolving the controversies engendered by Defendants’ common

9 course of conduct. The class action device allows a single court to provide the benefits

10 of unitary adjudication, judicial economy, and the fair and equitable handling of all

11 Class Members’ claims in a single forum. The conduct of this action as a class action

12 conserves the resources of the parties and of the judicial system, and protects the rights

13 of the Class Members. Adjudication of individual Class Members’ claims with respect

14 to Defendants would, as a practical matter, be dispositive of the interests of other

15 members not parties to the adjudication, and could substantially impair or impede the

16 ability of other Class Members to protect their interests.

17

Common Questions of Law and Fact Predominate: In addition, the requirements

18 of Federal Rule of Civil Procedure 23 are satisfied by questions of law and fact

19 common to the claims of Plaintiff and of each member of the Classes and which

20 predominate over any question of law or fact affecting only individual members of the

21 Classes. Common questions of law and fact include, but are not limited to, the

22 following:

23

a. The questions of law and fact common to the Nationwide Class include the

24

following: (1) were members of the Nationwide Class entitled to equal

25

access to the AP Exams?; (2) did Defendants' practices constitute breach of

26

contract?; (3) did Defendants' practices constitute breach of implied

27

covenant of good faith and fair dealing?; (4) did Defendants’ practices

28

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1

constitute negligence?; (5) did Defendants’ practices constitute negligent

2

misrepresentation?; (6) did Defendants’ practices constitute gross

3

negligence?; (7) did Defendants’ practices constitute unjust enrichment?;

4

(8) did Defendants’ practices constitute breach of implied in fact contract?;

5

(9) did Defendants’ practices constitute breach of fiduciary duty?; (10) did

6

Defendants’ practices constitute violation of Americans with Disabilities

7

Act?; (11) did Defendants’ practices constitute violation of Unruh Act?;

8

(12) did Defendants’ practices constitute violation of Americans with

9

Disabilities Act Section 794?; (13) did Defendants’ practices constitute

10

violation of Americans with Disabilities Act Section 12101?; (14) did

11

Defendants’ practices constitute violation of Rehabilitation Act?; (15) did

12

Defendants’ practices constitute unfair competition?; (16) did Defendants’

13

practices constitute false advertising?; and (17) are members of the

14

Nationwide Class entitled to damages?

15

b. The questions of law and fact common to the Subclasses include the

16

following: (1) were members of the subclasses entitled to equal access to

17

the AP Exams?; (2) did Defendants' practices constitute breach of

18

contract?; (3) did Defendants' practices constitute breach of implied

19

covenant of good faith and fair dealing?; (4) did Defendants’ practices

20

constitute negligence?; (5) did Defendants’ practices constitute negligent

21

misrepresentation?; (6) did Defendants’ practices constitute gross

22

negligence?; (7) did Defendants’ practices constitute unjust enrichment?;

23

(8) did Defendants’ practices constitute breach of implied in fact contract?;

24

(9) did Defendants’ practices constitute breach of fiduciary duty?; (10) did

25

Defendants’ practices constitute violation of Americans with Disabilities

26

Act?; (11) did Defendants’ practices constitute violation of Unruh Act?;

27

(12) (12) did Defendants’ practices constitute violation of Rehabilitation

28

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1

Act?; (15) did Defendants’ practices constitute unfair competition?; (16)

2

did Defendants’ practices constitute false advertising?; and (17) are

3

members of the subclasses entitled to damages?

4

143. Notice: Notice can be provided via internet publication, published notice

5 and/or through the mail and paid for by Defendants.

6

FIRST CLAIM FOR RELIEF

7

BREACH OF CONTRACT

8

144. Plaintiffs repeat and incorporates by reference paragraphs 1 to 143 of this

9 Complaint.

10

145. Upon registration for the AP Exams, the Class Members entered into an

11 agreement with Defendants wherein Defendants expressly recognizes its obligation to

12 ensure a fair and equitable opportunity to demonstrate college readiness for every

13 student and to prevent anyone from gaining an unfair advantage on the tests.

14

146. Defendants breached the agreement by failing to ensure a fair and equitable

15 testing opportunity and to prevent anyone from gaining an unfair advantage by

16 Defendants’ distinctions between what is considered an official test site,

17 accommodations and bars to taking the exams.

18

147. As a direct result of Defendants' breach, Plaintiffs and the Class suffered

19 damages.

20

SECOND CLAIM FOR RELIEF

21 BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING

22

148. Plaintiffs repeat and incorporates by reference paragraphs 1 to 147 of this

23 Complaint.

24

149. Defendants breached the express contract provision obligating Defendants

25 to ensure a fair and equitable opportunity to demonstrate college readiness for every

26 student and to prevent anyone from gaining an unfair advantage on the AP Exams.

27

28

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1

150. As a direct result of Defendants’ breach, Plaintiffs and the Class suffered

2 damages.

3

THIRD CLAIM FOR RELIEF

4

NEGLIGENCE

5

151. Plaintiffs repeat and incorporates by reference paragraphs 1 to 150 of this

6 Complaint.

7

152. Defendants, as owners, sponsors, developers and administrators of the AP

8 Exams, respectively, had a duty to exercise reasonable care in providing the exams to

9 Plaintiff and the Class. Specifically, Defendants were under a duty to offer and

10 administer the exams in a fair and equitable manner and to safeguard the exams against

11 any foreseeable unfair advantages.

12

153. Defendants, through an affirmative and/or promised act, undertook to

13 render the exams in a fair and equitable manner, free from impropriety.

14

154. Defendants breached their duty by negligently offering and administering

15 the exams despite failing to ensure a fair and equitable testing opportunity and access

16 and failing to prevent anyone from gaining an unfair advantage by Defendants’

17 distinctions between what is considered an official test site, accommodations, and bars

18 to taking the exams.

19

155. Defendants' conduct foreseeably and substantially caused Plaintiffs and the

20 Class to suffer damages.

21

156. Plaintiffs and the Class suffered damages as a direct and proximate result

22 of Defendants' breach.

23

FOURTH CLAIM FOR RELIEF

24

NEGLIGENT MISREPRESENTATION

25

157. Plaintiffs repeat and incorporates by reference paragraphs 1 to 156 of this

26 Complaint.

27

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1

158. Defendants misrepresented to Plaintiffs and the Class that the AP Exams

2 would be fairly and equitably offered and administered.

3

159. Based on the history of which types of students took these exams and

4 Defendants’ active role in creating rules and barriers to entry to the exams, Defendants

5 should have known that its representations regarding fairness, equity and validity were

6 false.

7

160. Defendants intended to induce Plaintiffs and the Class to rely on the

8 misrepresentations in signing up for the exams and in trusting that Defendants were

9 administering the exams fairly.

10

161. Plaintiffs and the Class acted in justifiable reliance upon the

11 misrepresentation by registering for and taking or not being able to take the exams,

12 resulting in injury to Plaintiffs and the Class.

13

FIFTH CLAIM FOR RELIEF

14

GROSS NEGLIGENCE

15

162. Plaintiffs repeat and incorporates by reference paragraphs 1 to 161 of this

16 Complaint.

17

163. There is an imminently clear and present danger that the AP Exams will be

18 administered unfairly and invalidly as there is no equal access to these exams for all

19 2020 AP exam takers, students with disabilities or under-resourced students, based on

20 fundamental flaws inherent to Defendants’ requirements for access to these exams.

21

164. There is also an imminently clear and present danger that the AP Exams

22 will be exploited by individuals.

23

165. Defendants have knowledge of and/or awareness of the imminent danger of

24 unfair administration of these exams and the risk of exploitation.

25

166. Therefore, it is indisputably foreseeable that more students like those in this

26 class will be denied an equal opportunity to partake in these tests, which in turn will

27 affect their ability to show college readiness.

28

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1

167. By failing to rectify the obvious flaw—unequal access—Defendants evince

2 a conscious disregard of the consequences.

3

168. As a result of Defendants gross negligence, Plaintiffs and the Class

4 suffered damages.

5

SIXTH CLAIM FOR RELIEF

6

UNJUST ENRICHMENT

7

169. Plaintiffs repeat and incorporates by reference paragraphs 1 to 168 of this

8 Complaint.

9

170. Plaintiffs and the Class conferred benefits to Defendants by registering for,

10 paying for, and taking the exams.

11

171. Defendants knowingly and willingly retained the registration fees and

12 associated fees conferred in connection with registering for and taking the exams

13 despite knowing of these inequities.

14

172. Under the circumstances, it would be inequitable for Defendants to retain

15 this monetary benefit at the expense of Plaintiffs and the Class.

16

173. Moreover, no adequate legal remedy exists.

17

174. As a direct result of Defendants' unjust enrichment, Plaintiffs and the Class

18 have suffered injury and are entitled to reimbursement, restitution and disgorgement by

19 Defendants of the benefit conferred by Plaintiffs and the Class.

20

175. Defendants benefited from their unlawful acts, as alleged herein, through

21 payment by Plaintiffs and the Class for the 2020 AP Exams, and through the resulting

22 profits enjoyed by Defendants as a direct result of such payments.

23

176. As a direct and proximate result of Defendants' conduct, they have been

24 and continue to be unjustly enriched at the expense of, and to the detriment of, Plaintiffs

25 and the Class.

26

177. It would be against equity and good conscience to permit Defendants to

27 retain the benefit of these payments that were conferred by the Plaintiffs and the Class

28

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1 and retained by Defendants. The benefit held by Defendants rightly belongs to the

2 Plaintiffs and the Class, as the Plaintiff and the Class have paid for services that

3 Defendants failed and continue to fail to provide.

4

178. In equity, Defendants should not be allowed to retain the economic benefit

5 from their improper conduct and should be ordered to disgorge profits or pay restitution

6 and pre-judgment interest to the Plaintiffs and the Class, or in the alternative, ordered to

7 score the exams that were recorded and time-stamped immediately if the student is

8 unable to take a make-up test without charge on the date unilaterally scheduled by

9 Defendants.

10

SEVENTH CLAIM FOR RELIEF

11

BREACH OF IMPLIED IN FACT CONTRACT

12

179. Plaintiffs repeat and incorporates by reference paragraphs 1 to 178 of this

13 Complaint.

14

180. Defendants tacitly promised Plaintiff and the Class, as inferred in whole or

15 in part by its conduct, that it would fairly and equitably offer and administer the exams.

16

181. Under the circumstances and based upon Defendants’ conduct, Plaintiffs

17 and the Class presumed that the tests would be fairly and equitably offered and

18 administered.

19

182. Defendants breached the implied contract by failing to ensure a fair and

20 equitable testing opportunity for all students.

21

183. As a result of Defendants' breach, Plaintiffs and the Class were damaged.

22

EIGHTH CLAIM FOR RELIEF

23

BREACH OF FIDUCIARY DUTY

24

184. Plaintiffs repeat and incorporates by reference paragraphs 1 to 183 of this

25 Complaint.

26

185. A fiduciary relationship between Plaintiffs and the Class and Defendants

27 exists. Defendants agreed to offer and administer fair and equitable exams for the

28

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1 benefit of Plaintiff and the Class and were thereby granted a high degree of control and

2 discretionary power to do so, evidencing a high level of trust and confidence in and

3 reliance on Defendants to perform their duties.

4

186. Defendants breached their fiduciary duty by failing to administer the exams

5 and allow access to the exams in a fair and equitable manner.

6

187. As a proximate result of Defendants' breach, Plaintiffs sand the Class

7 suffered damages.

8

NINTH CLAIM FOR RELIFF

9

VIOLATION OF AMERICANS WITH DISABILITIES ACT 42

10

USC SECTION 12101

11

188. Plaintiffs repeat and incorporates by reference paragraphs 1 to 187 of this

12 Complaint.

13

189. By creating barriers to access for these exams and failing to provide

14 appropriate accommodations for all students, whether disabled or in need of resources,

15 Defendants failed to prevent an unfair disadvantage for students with disabilities.

16

190. As a result of Defendants' breach of its duty to provide appropriate

17 accommodations and its violation of the ADA, Plaintiffs and the Class were damaged.

18

TENTH CLAIM FOR RELIEF

19

VIOLATION OF UNRUH ACT CCC SECTION 51-DENIAL OF

20

OPPORTUNITIES FOR DISABLED AND

21

UNDERRESOURCED STUDENTS

22

191. Plaintiffs repeat and incorporates by reference paragraphs 1 to 191 of this

23 Complaint.

24

192. The Unruh Act provides: “All persons within the jurisdiction of this state

25 are free and equal, and no matter what their…disability…are entitled to the full and

26 equal accommodations, advantages, facilities, privileges, or services in all business

27 establishments of every kind whatsoever.” Cal. Civil Code Section 51(a). The Unruh

28

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1 Act makes liable any person who “denies, aids or incites a denial, or makes any

2 discrimination or distinction” contrary to Section 51.

3

193. The Unruh Act provides that a “violation of the right of any individual

4 under the federal Americans with Disabilities Act of 1990…shall also constitute a

5 violation of this section.” Cal. Civil Code Section 51(f).

6

194. Defendants have denied students with disabilities the same access other

7 students have to the AP Exams. Defendants have therefore denied, aided, or incited a

8 denial, or made a discrimination or distinction contrary to Section 51 in doing so.

9

195. As a result of Defendants' breach of its duty to provide equal access to AP

10 Exams and their violations of the Unruh Act, Plaintiffs and the Class were damaged.

11

ELEVENTH CLAIM FOR RELIEF

12

VIOLATION OF REHABILITATION ACT

13

196. Plaintiffs repeat and incorporates by reference paragraphs 1 to 197 of this

14 Complaint.

15

197. By creating barriers to access for these exams and failing to provide

16 appropriate accommodations for disabled students, Defendants failed to ensure that the

17 students with disabilities would have equitable access and opportunity to take these

18 exams and participate equally in college admissions by failing to provide adequate

19 accommodations.

20

198. As a result of Defendants' breach of their duty to ensure that disabled

21 students would have equitable access and opportunity to take the AP Exams and its

22 violation of the Rehabilitation Act, Plaintiffs and the Class were damaged.

23

TWELVTH CLAIM FOR RELIEF

24

UNFAIR COMPETITION, BUSINESS AND PROFESSIONS

25

CODE SECTION 17200

26

199. Plaintiffs repeat and incorporates by reference paragraphs 1 to 198 of this

27 Complaint.

28

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1

200. California Business & Professions Code Section 17200 et seq., also known

2 as the California Unfair Competition Law (“UCL”), prohibits acts of “unfair

3 competition” including any unlawful, unfair, fraudulent or deceptive business act or

4 practice as well as “unfair, deceptive, untrue or misleading advertising.”

5

201. By engaging in the unlawful conduct alleged above, Defendants have

6 engaged in unlawful business acts and practices in violation of the UCL by violating

7 state and federal laws including but not limited to the ADA and the Unruh Act.

8

202. As a result of Defendants' violation of Business & Professions Code

9 Section 17200, Plaintiffs and the Class were damaged.

10

THIRTEENTH CLAIM FOR RELIEF

11

FALSE ADVERTISING, BUSINESS AND PROFESSIONS CODE

12

SECTION 17500

13

203. Plaintiffs repeat and incorporates by reference paragraphs 1 to 202 of this

14 Complaint.

15

204. California Business & Professions Code Section 17500 prohibits acts of

16 “untrue or misleading” advertising.

17

205. By engaging in the unlawful conduct alleged above, including the issuance

18 of false statements regarding the percentage of students who faced technological

19 obstacles with submitting their exam answers, Defendants have engaged in unlawful

20 business acts and practices in violation of Business & Professions Code Section 17500

21 by violating state and federal laws including, but not limited to the prohibition against

22 false advertising.

23

206. As a result of Defendants' violation of Business & Professions Code

24 Section 17500, Plaintiffs and the Class were damaged.

25 ///

26 ///

27 ///

28

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1

PRAYER FOR RELIEF

2

WHEREFORE, Plaintiffs pray for judgment against Defendants as follows:

3

ON THE CAUSE OF ACTION FOR BREACH OF CONTRACT

4

1. An Order certifying that the action be maintained as a class action under

5

Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.

6

2. Economic loss and damages suffered by Plaintiffs.

7

3. For attorneys’ fees incurred herein, to the extent permitted by law.

8

4. Court costs.

9

5. For pre and post judgment interest and costs of suit incurred herein.

10

6. For such other relief to which Plaintiffs may show themselves justly

11

entitled.

12

7. For injunctive relief requiring Defendants to accept and score any verifiable

13

test answers for the AP Exams, whether verified by time stamp, photo, video,

14

email, or other reasonable means.

15

16

ON THE CAUSE OF ACTION FOR BREACH OF IMPLIED COVENANT

17

OF GOOD FAITH AND FAIR DEALING

18

1. An Order certifying that the action be maintained as a class action under

19

Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.

20

2. An injunction precluding the wrongful conduct described herein.

21

3. For compensatory damages in an amount that exceeds $500 million, with

22

the exact amount to be proven at trial.

23

4. For punitive damages in an amount sufficient to punish Defendants and to

24

deter them from engaging in wrongful conduct in the future.

25

5. For pre and post judgment interest and costs of suit incurred herein.

26

6. For attorneys’ fees incurred herein, to the extent permitted by law.

27

7. For such other and further relief as the Court may deem just and proper.

28

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1

ON THE CAUSE OF ACTION FOR NEGLIGENCE

2

1. An Order certifying that the action be maintained as a class action under

3

Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.

4

2. An injunction precluding the wrongful conduct described herein.

5

3. For compensatory damages in an amount that exceeds $500 million, with

6

the exact amount to be proven at trial.

7

4. For punitive damages in an amount sufficient to punish Defendants and to

8

deter them from engaging in wrongful conduct in the future.

9

5. For pre and post judgment interest and costs of suit incurred herein.

10

6. For attorneys’ fees incurred herein, to the extent permitted by law.

11

7. For such other and further relief as the Court may deem just and proper.

12

8. For injunctive relief requiring Defendants to accept and score any verifiable

13

test answers for the AP Exams, whether verified by time stamp, photo, video,

14

email, or other reasonable means.

15

16 ON THE CAUSE OF ACTION FOR NEGLIGENT MISREPRESENTATION

17

1. An Order certifying that the action be maintained as a class action under

18

Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.

19

2 An injunction precluding the wrongful conduct described herein.

20

3. For compensatory damages in an amount that exceeds $500 million, with

21

the exact amount to be proven at trial.

22

4. For punitive damages in an amount sufficient to punish Defendants and to

23

deter them from engaging in wrongful conduct in the future.

24

5. For pre and post judgment interest and costs of suit incurred herein.

25

6. For attorneys’ fees incurred herein, to the extent permitted by law.

26

7. For such other and further relief as the Court may deem just and proper.

27 ///

28

899-5656-0001

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1

ON THE CAUSE OF ACTION FOR GROSS NEGLIGENCE

2

1. An Order certifying that the action be maintained as a class action under

3

Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.

4

2. An injunction precluding the wrongful conduct described herein.

5

3. For compensatory damages in an amount that exceeds $500 million, with

6

the exact amount to be proven at trial.

7

4. For punitive damages in an amount sufficient to punish Defendants and to

8

deter them from engaging in wrongful conduct in the future.

9

5. For pre and post judgment interest and costs of suit incurred herein.

10

6. For attorneys’ fees incurred herein, to the extent permitted by law.

11

7. For such other and further relief as the Court may deem just and proper.

12

8. For injunctive relief requiring Defendants to accept and score any verifiable

13

test answers for the AP Exams, whether verified by time stamp, photo, video,

14

email, or other reasonable means.

15

16

ON THE CAUSE OF ACTION FOR UNJUST ENRICHMENT

17

1. An Order certifying that the action be maintained as a class action under

18

Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.

19

2. An injunction precluding the wrongful conduct described herein.

20

3. For compensatory damages in an amount that exceeds $500 million, with

21

the exact amount to be proven at trial.

22

4. For punitive damages in an amount sufficient to punish Defendants and to

23

deter them from engaging in wrongful conduct in the future.

24

5. For pre and post judgment interest and costs of suit incurred herein.

25

6. For attorneys’ fees incurred herein, to the extent permitted by law.

26

7. For such other and further relief as the Court may deem just and proper.

27 ///

28

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1

ON THE CAUSE OF ACTION FOR BREACH OF IMPLIED

2

IN FACT CONTRACT

3

1. An Order certifying that the action be maintained as a class action under

4

Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.

5

2. An injunction precluding the wrongful conduct described herein.

6

3. For compensatory damages in an amount that exceeds $500 million, with

7

the exact amount to be proven at trial.

8

4. For punitive damages in an amount sufficient to punish Defendants and to

9

deter them from engaging in wrongful conduct in the future.

10

5. For pre and post judgment interest and costs of suit incurred herein.

11

6. For attorneys’ fees incurred herein, to the extent permitted by law.

12

7. For such other and further relief as the Court may deem just and proper.

13

8. For injunctive relief requiring Defendants to accept and score any verifiable

14

test answers for the AP Exams, whether verified by time stamp, photo, video,

15

email, or other reasonable means.

16

17

ON THE CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY

18

1. An Order certifying that the action be maintained as a class action under

19

Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.

20

2. An injunction precluding the wrongful conduct described herein.

21

3. For compensatory damages in an amount that exceeds $500 million, with

22

the exact amount to be proven at trial.

23

4. For punitive damages in an amount sufficient to punish Defendants and to

24

deter them from engaging in wrongful conduct in the future.

25

5. For pre and post judgment interest and costs of suit incurred herein.

26

6. For attorneys’ fees incurred herein, to the extent permitted by law.

27

7. For such other and further relief as the Court may deem just and proper.

28

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1

8. For injunctive relief requiring Defendants to accept and score any verifiable

2

test answers for the AP Exams, whether verified by time stamp, photo, video,

3

email, or other reasonable means.

4

5

ON THE CAUSE OF ACTION FOR VIOLATION OF AMERICANS

6

WITH DISABILITIES ACT 42 USC SECTION 12101

7

1. An Order certifying that the action be maintained as a class action under

8

Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.

9

2. An injunction precluding the wrongful conduct described herein.

10

3. For compensatory damages in an amount that exceeds $500 million, with

11

the exact amount to be proven at trial.

12

4. For punitive damages in an amount sufficient to punish Defendants and to

13

deter them from engaging in wrongful conduct in the future.

14

5. For pre and post judgment interest and costs of suit incurred herein.

15

6. For attorneys’ fees incurred herein, to the extent permitted by law.

16

7. For such other and further relief as the Court may deem just and proper.

17

18

ON THE CAUSE OF ACTION FOR VIOLATION OF UNRUH ACT CCC

19

SECTION 51-DENIAL OF OPPORTUNITIES

20

1. An Order certifying that the action be maintained as a class action under

21

Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.

22

2. An injunction precluding the wrongful conduct described herein.

23

3. For compensatory damages in an amount that exceeds $500 million, with

24

the exact amount to be proven at trial.

25

4. For statutory damages as set forth under the Unruh Act.

26

5. For punitive damages in an amount sufficient to punish Defendants and to

27

deter them from engaging in wrongful conduct in the future.

28

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1

6. For pre and post judgment interest and costs of suit incurred herein.

2

7. For attorneys’ fees incurred herein, to the extent permitted by law.

3

8. For such other and further relief as the Court may deem just and proper.

4

5

ON THE CAUSE OF ACTION FOR UNFAIR COMPETITION, BUSINESS

6

AND PROFESSIONS CODE SECTION 17200

7

1. An Order certifying that the action be maintained as a class action under

8

Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.

9

2. An injunction precluding the wrongful conduct described herein.

10

3. For compensatory damages in an amount that exceeds $500 million, with

11

the exact amount to be proven at trial.

12

4. For restitution as set forth in Business & Professions Code 17200.

13

5. For punitive damages in an amount sufficient to punish Defendants and to

14

deter them from engaging in wrongful conduct in the future.

15

6. For pre and post judgment interest and costs of suit incurred herein.

16

7. For attorneys’ fees incurred herein, to the extent permitted by law.

17

8. For such other and further relief as the Court may deem just and proper.

18

19

ON THE FIFTEENTH CAUSE OF ACTION FOR FALSE ADVERTISING,

20

BUSINESS AND PROFESSIONS CODE SECTION 17500

21

1. An Order certifying that the action be maintained as a class action under

22

Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.

23

2. An injunction precluding the wrongful conduct described herein.

24

3. For compensatory damages in an amount that exceeds $500 million, with

25

the exact amount to be proven at trial.

26

4. For restitution as set forth in Business & Professions Code section 17500.

27 ///

28

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1

5. For punitive damages in an amount sufficient to punish Defendants and to

2

deter them from engaging in wrongful conduct in the future.

3

6. For pre and post judgment interest and costs of suit incurred herein.

4

7. For attorneys’ fees incurred herein, to the extent permitted by law.

5

8. For such other and further relief as the Court may deem just and proper.

6

7 DATED: June 22, 2020

BAKER, KEENER & NAHRA, LLP

8

By /s/ PHILLIP A. BAKER

PHILLIP A. BAKER

9

DERRICK S. LOWE

JENNIFER L. STONE

10

11

MILLER ADVOCACY GROUP

12

By /s/ MARCI LERNER MILLER

13

MARCI LERNER MILLER

14

CHRISTINA N. HOFFMAN Attorneys for Plaintiffs

15

16

17

JURY DEMAND

18

Plaintiffs hereby demand a trial by jury on all issues so triable.

19

20 DATED: June 22, 2020

BAKER, KEENER & NAHRA, LLP

21

By /s/ PHILLIP A. BAKER

PHILLIP A. BAKER

22

DERRICK S. LOWE

JENNIFER L. STONE

23

24

MILLER ADVOCACY GROUP

25

26

27

28

899-5656-0001

By /s/ MARCI LERNER MILLER MARCI LERNER MILLER CHRISTINA N. HOFFMAN
Attorneys for Plaintiffs
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