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ACT, Inc. Sued Over Confidential Student Information

Last week the story broke that the ACT, Inc. is being sued by students with disabilities and their families for having released to colleges self-reported student data about the students’ disabilities. The students are arguing that their score reports are being “flagged” for disabilities, which would be in direct violation of the Americans with Disabilities Act (ADA) and would be discriminatory in its nature.

The ADA specifically prohibits the flagging of tests taken with accommodations for disabilities

Testing entities are explicitly prohibited from flagging the tests of students who receive accommodations for disabilities. The U.S. Department of Justice (DOJ) spelled this out in no uncertain terms in in 2016. The language could not be more clear:

Testing entities should report accommodated scores in the same way they report scores generally.

Flagging policies that impede individuals with disabilities from fairly competing for and pursuing educational and employment opportunities are prohibited by the ADA. “Flagging” is the policy of annotating test scores or otherwise reporting scores in a manner that indicates the exam was taken with a testing accommodation. Flagging announces to anyone receiving the exam scores that the test-taker has a disability and suggests that the scores are not valid or deserved.

The College Board and ACT, Inc. stopped flagging score reports in 2003

Neither the College Board nor ACT, Inc. have flagged tests for nonstandard administrations since 2003. After the Educational Testing Service (ETS) was sued in 1999 for flagging GMAT tests, it entered a settlement that ended the practice of flagging GMAT scores. In 2002 the College Board completed a study entitled The Impact of Flagging on the Admission Process and agreed to remove its flag from the SAT; the ACT, Inc. followed suit within weeks. From the end of 2003 to the present day, no SAT or ACT test has been flagged with a non-standard administration indication.

The LSAT continued to flag tests and paid a very steep price

A testing entity that kept the flag, the Law School Admissions Council (LSAC), administrator of the LSAT, paid a steep price for flagging LSAT scores and engaging in other discriminatory practices that violated the ADA. The Civil Rights Division of the DOJ intervened in a California lawsuit against the LSAC and helped secure a $7.73 million judgment in 2014. The lawsuit specifically addressed the discriminatory practice of flagging the LSAT score reports of individuals who received extended time as a testing accommodation. The judgment required the LSAC to end its practice of flagging LSAT score reports for test takers with disabilities.

Why is The ACT, Inc. in trouble?

The ACT Inc. collects voluntary self-reported student data when students register for an ACT as well as on the Student Information Form that students complete before an official testing administration. According to the official legal complaint the ACT, Inc. asks each student “if they have disabilities that require “special provisions from the educational institution [i.e. a college],” and asks them to choose a disability that “most closely describes your situation.” The choices include hearing impairment, visual impairment, learning or cognitive disability, motor impairment, multiple disabilities, or no disability that requires special provisions.”

The ACT, Inc. uses this data in two troubling ways. On the score reports that the ACT, Inc. send to colleges, there is a section entitled admissions enrollment data with an entry for Physical/Learning disability. If a student volunteers this information, it is included in the score report that is sent to colleges. This information is voluntary, but students are not aware that this information will be sent to colleges. The complaint alleges that colleges can also purchase access to student score reports “with information about a student’s disabilities from ACT so that they can sort their applicants in a way that is by definition exclusionary.”

ACT also monetizes this data by listing disability information in a searchable database that ACT, Inc. sells to enrollment management clients as a tool to “find the right students for your institution.” Disability information is also available to employers via the ACT’s WorkKeys assessment, used by tens of thousands of employers, which identifies individuals with disabilities as “ADA Candidates.”

Is the ACT in violation of the ADA?

Although the ACT, Inc. is sharing self-reported student data, it is not indicating whether a student received any special testing accommodation on the ACT, so this is not the accommodations “flag” of old. If you contact the ACT accommodations office about the process of flagging tests, any representative will convey that the ACT does not disclose any information about testing accommodations to colleges. The question here is does the inclusion of student-reported information about having a disability qualify as a “flag?” Does this policy violate the ADA? This is certainly not the practice that created trouble for the GMAT or LSAT. But sharing any kind of disability data without full informed consent may be enough to cause substantial woes for the ACT. This policy seems misguided at best. It remains to be seen if the ACT, Inc. will settle this class action or see this lawsuit through to its conclusion. If it loses a class action of this magnitude, it could pay dearly. It is almost certain the negative fallout from this case will result in the permanent end of this practice of sharing disability data without acquiring clear informed consent.


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