Breimhorst v. ETS

Click here for case documents Landmark Case Ends Discriminatory Practice of Flagging Standardized Testing Last Updated September 21st, 2012 Status:

This case received major national attention as it challenged the practice of “flagging” test scores for students with disabilities who ask for accommodations. Flagging is the practice by which administrators of standardized tests place notations on the score reports of people with disabilities who take the exams with accommodations for their disabilities. Since its implementation decades ago, the practice of flagging has been controversial (the federal judge in our case called it a “scarlet letter”) with disability groups pointing out that the flag is discriminatory and that the flag has a chilling effect that discourages students from even asking for appropriate accommodations.

DRA and ETS reached a settlement in December 2000, wherein ETS agreed to stop flagging on a number of tests it administered, such as the Graduate Management Admission Test (GMAT). Then both parties agreed to have an expert panel analyze the impact of flagging on other exams that ETS administers but which are controlled by the College Board, such as the Scholastic Aptitude Test (SAT).

In mid-July 2002, DRA and the College Board then reached a settlement under which the College Board agreed to stop its practice of flagging test scores on the SAT, PSAT, and Advanced Placement tests when test takers use the accommodation of extended time.

A national panel of experts, who were jointly selected by DRA and the College Board, undertook an intensive study of flagging on the SAT. The panel recommended that the practice be discontinued because of its discriminatory impact on test takers with disabilities and because it was not psychometrically justified. The use of a national panel of experts, jointly agreed to by both parties, is a “signature” mechanism often proposed by DRA as a way of efficiently and fairly resolving litigation that would benefit from the input of experts from a variety of disciplines.

Shortly after the announcement of the settlement, the ACT announced that it too would stop flagging test scores on its college entrance examination.

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