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Breimhorst v. Educational Testing Service (2000)

By Matthew Chin



Overview


The plaintiff, Mark Breimhorst, along with the International Dyslexia Association (IDA) and Californians for DIsability Rights (CDR) brought a case of discrimination against the Educational Testing Service (ETS), whose actions are directed by the College Board, as they flagged his Graduate Management Admission Test (GMAT) due to his accommodations. The district court concluded that the ETS was not in violation of § 302 of the Americans with Disabilities Act (ADA), however, the remaining claims against them can still be litigated by the plaintiffs.


Summary


Mark Breimhorst is an individual who does not have hands. In pursuing his goal of attending business school, he took the GMAT, where he was given a trackball and 25% more time to complete the test. Upon completion, the ETS labeled his test “Scores obtained under special conditions” [1]. Breimhorst asked them to remove this flag on his test, which the ETS refused. Breimhorst filed several claims against the ETS, which included violations of § 302, 309, and 503(b) of the ADA, § 504 of the Rehabilitation Act, § 54 of the California Civil Code, the California Unruh Civil Rights Act, and unfair business practice in violation of § 17200 of the California Business and Professions Code [1]. The ETS moved for judgment on these claims under Rule 12(c) of the Federal Rules of Civil Procedure, which directs the court to consider the pleading on a pure legal basis. This means that the court treats the pleadings as true and determines whether they are supported by the law. The only evidence they use is the exhibits attached to the pleadings and the relevant statutes and laws in the case. 

  • The defendant claims that none of the plaintiffs have standing because there is no evidence that suggests that they were injured by ETS flagging of their test scores [1]. Looking back at a precedent set by Doe v. National Board of Medical Examiners (1999), which involved a medical student with multiple sclerosis taking his medical license exam, the circuit court found that annotations that mention additional accommodations due to a disability do cause injury. The reasoning is that Doe did establish concrete injury because the annotation “...identified him as a disabled person against his will [1].” They believed that it would cause bias and that Doe would be perceived and treated differently by people like admission officers. The same issue arises here. Based on that reasoning, Breimhorst also demonstrates how flagging his test may result in concrete harm of revealing he is a disabled individual against his will. For those reasons, the court finds that the plaintiffs have standing.

  • In their first claim, the plaintiffs allege that ETS’s flagging policy violates § 309 of the ADA. This section states that: “Any person that offers examinations or courses related to applications, licensing, certification, or credentialing for secondary or postsecondary education, professional, or trade purposes shall offer such examinations or courses in a place and manner accessible to persons with disabilities or offer alternative accessible arrangements for such individuals [2].” Now, there is nothing inherently wrong with the ETS flagging Breimhorst’s test; however, the plaintiffs specifically target the ETS’s flagging policy, which they argue treats accommodated test scores unequally to those of non-disabled test takers. The court recognizes this as a legitimate issue of fact and one that cannot be resolved in a judgment on the pleadings. Therefore, the plaintiffs' claim that the ETS flagging policy violates § 309 of the ADA can be pursued in a trial. 

  • The plaintiffs’ second claim is that the ETS violates § 302 of the ADA. This section states that: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodations”[2]. The primary reason, as they found in the Doe case, is that under the canon of statutory construction, or the set of principles and tools judges use to interpret statutes, it says that “the specific governs the general” [1].  §309 addresses the specifics of testing and accommodations provided by test proctors, while §302 is a more general rule. If the court were to also validate the §302 violation plea, it would make §309 superfluous if §302 settled the question. With that, the court granted the ETS’ motion for judgment on the pleadings in regard to the violation of §302.

  • The next claim argues that the defendants violated §503(b) of the ADA, which states that “It shall be unlawful to coerce, intimidate, threaten or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter” [2]. Despite interpretations around this section being hard to come by, the court finds this violation valid as they see the ETS’ flagging policies as intimidating, as it discourages individuals with disabilities from asking for accommodation for the fear of having their test flagged. They also see these flagging policies as a negative mark towards those with disabilities, even though there is no reason to believe that their scores are any less valid than those who have taken it without accommodations.

  • The plaintiffs also cited a violation of §504 of the Rehabilitation Act. §504 protects those with disabilities from being excluded from participation, denied benefits of, or subjected to discrimination in a program or activity receiving Federal financial aid based solely on his or her disability [1]. When looking at Section 104.42(b)(4) of Title 34 of the Code of Federal Regulations, it mainly regulates the actions of postsecondary schools when it comes to admissions, stating that during the process, they cannot make preadmission inquiries of a person’s disability, and they cannot discriminate against individuals with a disability if they took the test under different circumstances. However, it does not directly address whether a test provider can be responsible for discriminatorily flagging tests. In its interpretation of the regulation by the Department of Education’s Office of Civil Rights, it is assumed that flagging test scores is not inherently discriminatory, as it is used to show differences in how these tests were taken. The plaintiffs do not agree with this interpretation. Therefore, a legitimate issue of fact exists, and the answer should be determined during the trial, and in turn, the court must deny ETS’ motion for judgment on the pleadings in relation to §504 of the Rehabilitation Act.

  • The plaintiffs' last claim was that the ETS also violated state laws, specifically the Unruh Civil Rights Act, the Disabled Persons Act, and the Unfair Competition Act. Here, the court simply stated that the issue of whether these extend from the violations under the ADA and Rehabilitation Act is not for them to decide at the moment. Because a trial is guaranteed to take place to resolve the dispute of facts, this issue will be resolved then.

After the motion for judgment on the pleadings, the case was resolved through a settlement. The College Board and ETS expressly denied liability, or, in other words, remained firm in their view that their flagging policies did not violate any regulations. In the settlement, in exchange for dropping the claims against them, the College Board changed its flagging policy to remove flagging scores for individuals who were given extended time accommodations. It also gave $85,500 to the Disabilities Rights Advocates, which covered the attorney costs and fees in full [3]. 


Impact


The significance of this case is that it helps create a more equal opportunity for individuals with a disability to have their admissions applications evaluated similarly to those without a disability. While there is nothing inherently wrong with flagging a test to simply note that this person was given special accommodations, as the court reasoned, it does cause injury to the test taker because, without their approval, this note may cause admission officers to develop biases when reading their records. To ensure individuals with disabilities are compared equally to their non-disabled counterparts during the admission process, the ADA and the Breimhorst case helped bring awareness to how the practice of flagging tests when taken under special accommodations can be seen as a discriminatory practice.


Court Documents

[1] Breimhorst v. Educational Testing Service, No. C-99-CV-3387 (N.D. Cal. Mar. 27, 2000), 2000 WL 34510621. Breimhorst v. Educational Testing Service - Opinion



[3] Breimhorst v. Educational Testing Service, Settlement Agreement and Full and Final Release of Claims, Case No. C-99-CV-3387 (N.D. Cal.), PDF, University of Michigan Civil Rights Litigation Clearinghouse, https://clearinghouse-umich-production.s3.amazonaws.com/media/doc/82433.pdf.



 
 
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