ACT Lawsuit Sees Victory for Students, While SAT Lawsuit Drops

Last month, Jed reported on an ongoing lawsuit involving Kamilah Campbell, a Florida senior who planned to take the College Board to court for flagging her scores, and Brendan Clare, a New Jersey student who was suing the ACT for the same. On February 8th, CNN reported that Campbell will no longer be pursuing a lawsuit against the creators of the SAT, instead agreeing to retake the test. Campbell’s decision isn’t unusual. Many students whose scores are flagged opt to retake the test in question, rather than fighting the decision. It’s hard to blame these students: who has time to fight a lawsuit against a testing agency when college application deadlines are looming?

Late last month, however, Brendan Clare’s case against the ACT won a small but significant victory against the testing agency – a victory that may have long-lasting repercussions for students taking the SAT and ACT.

Brendan Clare and the ACT

Brendan Clare’s situation is not unusual. Like thousands of students every year, Clare took the ACT without preparing for it and received scores that wouldn’t get him into Penn State (his dream school). He signed up for a second exam and began exam prep to bring his scores up. Here at Applerouth, this is a scenario we see every day. In fact, most of our students plan to take the SAT or ACT multiple times for a variety of reasons: to lessen exam-day anxiety, to take advantage of super-scoring, or to hedge against illness or other external factors that might affect a student’s performance.

Like many dedicated students, Clare improved his score significantly – going from a 21 to a 26 – and could now safely apply to his dream school. However, eight months later, the ACT informed Clare that his scores had been flagged as suspicious. The ACT gave him three choices.

  1. He could simply allow his scores to be invalidated,
  2. he could provide proof that he didn’t cheat,
  3. or he could retake the test at no cost.

Clare had already been accepted at Penn State, but disputed ACT scores could easily have led to the school revoking his acceptance, and he didn’t have time to pursue a legal remedy between the day the ACT informed him that they suspected his scores and the beginning of fall term. Like Campbell, Clare chose to retake the test, and scored well enough to validate his scores. He was able to enroll in his dream school, but the Clares felt that the ACT’s actions had been unwarranted. They planned to take ACT to court for incorrectly flagging his scores and waiting until May to inform his family. The ACT argued that the Clares had no right to sue because Brendan Clare had signed a binding arbitration agreement when he took the test. Although Somerset County Judge Michael Rogers has not yet commented on Clare’s specific lawsuit, he has struck down the ACT’s arbitration agreement.

What is a binding arbitration agreement?

Every student who takes the ACT signs away his or her right to sue the testing agency in cases like Clare’s. The SAT has a similar waiver, which means that if the College Board or the ACT flags a student’s scores, the student has no legal recourse save arbitration. In order to sue the ACT, Clare’s legal team had to take on that arbitration agreement. According to Inside Higher Ed, “his legal team argued that the typical 16- or 17-year-old who takes the ACT would have ‘no idea what rights were being replaced by arbitration,’” and questioned the validity of a contract between a testing agency and an unaccompanied minor.

Judge Rogers agreed. On January 15th, newspaper reported that Rogers voided the agreement in Clare’s case, stating that the ACT’s binding arbitration agreement doesn’t meet the standards for a legally binding contract. For any contract to be legal, both parties must enter the agreement willingly, fully understanding what they are doing. According to Rogers’ decision, the preeminence of the ACT and SAT in the college admissions world means that students don’t truly choose to take either test. “There is nowhere else for a student to turn beyond these two testing services,” the ruling says. “This is a form of de facto economic compulsion.” The ruling goes on to state that minors cannot enter legally binding agreements without their parents or guardians.

What this means going forward

The short-term consequence of Judge Rogers’ decision is that Brendan Clare can take the ACT to trial. That in and of itself is unusual. His father, lawyer Patrick Clare, is hopeful that Brendan’s experience will help future students. “The flaws of ACT’s score review practices can be scrutinized through litigation, something that could never be accomplished in arbitration because of limited discovery rules,” he said.

In the long term, this decision will be a legal precedent for other families who choose to take testing agencies to court. Although Kamilah Campbell will be retaking her SAT, her legal team says the fight is far from over. In a recent statement, Campbell’s team says, “We look forward to exploring ways to make the test security process more transparent and to addressing the broader educational needs of students.” Clare’s victory over the ACT, along with increased media scrutiny, may lead to more transparency on the part of the SAT and ACT, which will certainly benefit future students.

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