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San Mateo Union High School District v. Educational Testing Services

United States District Court, Ninth Circuit

August 30, 2013

SAN MATEO UNION HIGH SCHOOL DISTRICT, a school district, individually and on behalf of the members of the SAN MATEO UNION HIGH SCHOOL DISTRICT and AP STUDENTS — VIKING PARENT GROUP, an unincorporated association, Plaintiffs,
EDUCATIONAL TESTING SERVICES, a corporation; and COLLEGE ENTRANCE EXAMINATION BOARD, a corporation; and DOES 1 through 10, inclusive, Defendants.



Plaintiffs San Mateo Union High School District ("School District") and the AP Students-Viking Parent Group ("Viking Group") bring the instant action against the College Entrance Examination Board ("College Board") and Educational Testing Services ("ETS") on behalf of themselves and students and families of the School District who were affected by the decision of the College Board to invalidate the Advanced Placement ("AP") test scores of 286 students at Mills High School ("MHS"). The parties are presently before the Court on Plaintiffs' Ex Parte Application for Temporary Restraining Order and Order to Show Cause re: Preliminary Injunction, which seeks the reinstatement of those test scores. Having read and considered the papers filed in connection with this matter and being fully informed, the Court hereby DENIES the application for the reasons set forth below. The Court, in its discretion, finds this matter suitable for resolution without oral argument. See Fed.R.Civ.P. 78(b); N.D. Cal. Civ. L.R. 7-1(b).



The College Board is a not-for-profit membership association comprised of over 6, 000 colleges, universities and other educational organizations. Packer Decl. ¶ 3, Dkt. 7. Among other things, the College Board develops and administers a variety of programs, tests and curricula for secondary level students seeking admission to college. Id . Some of the College Board's best known testing programs are the SAT, PSAT/NMSQT and the AP Program. Id.

At issue here is the College Board's AP Program, through which high school students may enroll in college-level courses in numerous subjects, such as English Literature, Biology and Calculus, among others. Id . ¶¶ 4, 6. The College Board offers an annual examination in connection with these courses, the results of which may qualify students for college credit. Id . ¶¶ 6, 9. The exams typically vary from two to three hours and contain multiple choice and essay questions. Id . ¶ 7. Tests are scored on a scale of one to five. Id . ¶ 9. The College Board recommends that colleges (which are specified by the particular student) award credit to students who score three or higher on an AP test; however, the college ultimately makes the decision of whether to confer credit. Id.

On behalf of the College Board, ETS is responsible for test security with respect to a variety of College Board tests, including the AP exams. Id . ¶ 10. In that capacity, ETS develops test administration procedures for AP exams; conducts security investigations where appropriate (i.e., cases where the high school failed to comply with test administration procedures); and makes recommendations to the College Board as to how cases should be resolved. Id . The College Board makes the final decision about what action, if any, should be taken in the event of testing irregularities. Id.

All high schools administering AP exams are required to comply with detailed test administration and test security requirements, as set forth in the AP Coordinator's Manual ("AP Manual"). Cuccia Decl. ¶ 8 & Ex. D ("AP Manual") at 45, Dkt. 6. The AP Manual requires, inter alia, that tests must start on time and that students must refrain from discussing exam materials with each other. AP Manual at 45. In addition, and particularly relevant here, students must be seated consistent with the following: students must be seated at least five feet from one another; they must face the same direction; more than one student may be seated at a table only if the seating distance and directional requirements are satisfied; and no students may be seated at round tables. Id . The AP Manual expressly warns (in boldface type): "Failure to follow seating requirements could result in cancellation of exam scores." Id . The purpose of the seating requirements is to prevent students from communicating with one another and thereby gain an unfair advantage over other students taking the examination. Cuccia Decl. ¶ 9.

AP students and parents are advised of the AP exam test security policies and procedures through the AP Bulletin for AP Students and Parents ("AP Bulletin"), which is provided to students desiring to take one or more AP exams. Id . ¶ 6 & Ex. B ("AP Bulletin"). The AP Bulletin expressly advises students of the paramount importance of test security and administration procedures, which are "designed to protect the integrity of the AP Exam and AP Exam scores." AP Bulletin at 3. Importantly, students are warned that: "When the College Board determines that your testing experience did not meet the College Board's standards for administering exams - even through no fault of your own - the College Board reserves the right to cancel your AP Exam score." Id.

The AP Bulletin identifies six types of occurrences that could lead to the cancellation of a test score. Id . One of those situations, identified by the heading, "Testing irregularities, " refers specifically to the administration of the exams. Id. at 4. The types of issues identified as testing irregularities include "administrative errors (e.g., improper timing, improper seating, improper proctoring, ...." Id . (emphasis added). The AP Bulletin warns that when testing irregularities occur, the College Board "may decline to score the exams of one or more students when it determines that such actions are required to protect the integrity of the exam, " irrespective of whether the test-taker caused the testing irregularity. Id.[1] The College Board may, in its judgment, allow the affected student or students to retake the test without charge. Id . Every AP test-taker is required to signify his or her agreement to comply with the policies and procedures outlined in the AP Bulletin by affirming on his or her exam answer sheet: "I am aware and agree to the AP Program's policies and procedures as outlined in the 2012-13 Bulletin for AP Students and Parents[.]" Cuccia Decl. ¶ 6 & Ex. C.


1. May 2013 AP Exams at MHS

MHS, which is part of the School District, signed up to administer the 2012-13 AP exams. Id . ¶ 10. As part of that process, MHS Principal, Paul Belzer ("Principal Belzer"), and Vice-Principal, Irma Munoz ("VP Munoz"), signed the 2012-13 AP Participation Form ("AP Participation Form") in which they agreed that MHS would comply with all of the requirements contained in the AP Manual. Id . Ex. E. They each further acknowledged as follows: "I understand that if my school does not comply with the above conditions and procedures set forth in the AP Coordinator's Manual, then... one, some or all of my students' AP Exam scores may be cancelled." Id.

In early May 2013, MHS administered 21 different AP examinations. Id . ¶ 12. At the outset of the Statistics exam on May 10, 2013, a student complained to VP Munoz about the exam. Id . Ex. F. VP Munoz responded by telling the student to take the test. Id . Several days later on May 13, 2013, the student complained directly to ETS in a detailed email regarding what the student perceived were violations of the testing rules. Id . Among other things, the student alleged that the test was started late, all students were not facing the same direction, students were seated at round tables facing each other, students were allowed to discuss the exam during breaks, and that at least one of the proctors was using a cellular phone during the exam. Ex. F.[2]

2. ETS' Investigation

As a result of the student's complaint, ETS' Office of Testing Integrity ("OTI") commenced an investigation. Id . ¶ 14. The matter was assigned to Test Security Analyst Dionne Evans on May 16, 2013. Id . On that date, Ms. Evans called and left a message for VP Munoz, the AP Coordinator at MHS, but received no response. Id . After Ms. Evans called and left a second message on May 20, 2013, VP Munoz called back to state that Valeria Arbizu oversaw the May 2013 AP exam. Id.

On May 21, 2013, Ms. Evans spoke with Ms. Arbizu about the student's complaint. Id . ¶ 15.[3] Ms. Arbizu claims that she answered all of the questions presented to her regarding the Statistics exam. Arbizu Decl. ¶ 26. In contrast, Ms. Evans found Ms. Arbizu to be "evasive and unwilling to give direct answers." Cuccia Decl. ¶ 15. Ms. Arbizu denied the student's claims, but acknowledged that all students were not seated in the same direction and that round tables were used without authorization. Id . Upon Ms. Evans' request, Ms. Arbizu provided a written statement responding to the student's allegations. Id . ¶ 16. Ms. Arbizu submitted the requested statement, though she omitted mention of the seating violations. Id . & Ex. H.

On May 23 and 24, 2013, Ms. Evans left voicemail messages asking Ms. Arbizu to return her call. Id . ¶ 17; Arbizu Decl. ¶ 27. On May 24, 2013, Ms. Evans spoke with Ms. Arbizu and requested a seating chart for the Statistics exam. Cuccia Decl. ¶ 17. Although she agreed to provide such a chart, Ms. Arbizu failed to provide one. Id . Ms. Evans attempted to follow up with Ms. Arbizu on June 7, 2013, but was only able to reach her voicemail. Id . After hearing nothing further from Ms. Arbizu, Ms. Evans sent an email to Ms. Arbizu on June 7, 2013, again requesting the seating chart. Id . Finally, on June 12, 2013, Ms. Arbizu sent a "preliminary" seating chart which showed the names of the students and where they were seated, but did not indicate the direction they were facing, the distance between them, or the shape and size of the tables used. Id . ¶ 17 & Ex. I.

Thereafter, Test Security Analyst Patricia Taylor was assigned to the investigation. Id . ¶ 18. On June 13, 2013, Ms. Taylor sent an email to Ms. Arbizu requesting additional details regarding the seating arrangements, i.e., the table sizes and types of rooms used and whether the exams were administered in the same location. Id . ¶ 19 & Ex. J. Ms. Arbizu responded that the Statistics exam was conducted offsite in a large conference room. Id . Ex. J. With respect to the request for seating details, Ms. Arbizu stated: Given the flexible nature of this room, I am unable to provide you with the specific details on which students sat at square or rectangular tables - my proctor moved them around often for the first week of the tests and that's one item we did not track during the testing (exactly which style of table was used by which set of students)." Id . She added, however, that, "I can say that students were placed at least 4' apart from each other in the testing room." Id.

Concerned with the possibility that MHS testing irregularities extended beyond the Statistics exam, Ms. Taylor contacted Principal Belzer on June 17, 2013, to request information about the administration of the other tests. Id . ¶ 20. Principal Belzer consulted with other staff and responded by email later that day. Id . Ex. K. In his email, Principal Belzer admitted that: students were not facing the same direction in the Chemistry and Statistics exams and that one to two students were at each table; three to four round tables were used for the Statistics exam; and two to three round tables were used for the Chemistry exam. Id.

On June 21, 2013, Principal Belzer informed Ms. Taylor by telephone that test-takers were facing each other during the Biology exam, which was administered in the MHS library. Id . ¶¶ 22-23. Per Principal Belzer's suggestion, Ms. Taylor followed up with Ms. Arbizu on June 24, 2013, by leaving a voicemail and sending her an email. Arbizu Decl. ¶¶ 33, 34; Cuccia Decl. ¶ 24. On the same day, Ms. Arbuzi sent an email in response to Ms. Taylor's voicemail and included a hand-drawn "quick diagram of the way the tables and chairs were set up in the library for testing." Cuccia Decl. Ex. N. She indicated that students were seated facing each other "on the right and left sides of the room" during the Biology exam. Id . Ms. Taylor subsequently called Ms. Arbizu and asked where exactly students were seated in the library, how close students were in relation to each other, and whether students were facing each other. Id . According to Ms. Taylor, Ms. Arbizu did not provide "direct answers" but did admit that students sitting at rectangular tables sat on the short side of the tables, facing each other. Id . ¶ 25. Ms. Taylor asked for seating charts for all tests administered in the library, but they were never produced. Id . ¶¶ 25, 26.

Dissatisfied with Ms. Arbizu's responses, Ms. Taylor sent her another email on June 24, 2013, with specific questions regarding eight other AP exams in U.S. History, Macroeconomics, English Language and Composition ("English Language"), English Literature and Composition ("English Literature"), U.S. Government and Politics, Physics B, Calculus AB and Calculus BC. Id . ¶ 27. In response, Ms. Arbizu acknowledged that all students were not facing the same direction in the exams for U.S. History, Macroeconomics, U.S. Government and Politics, Physics B, Calculus AB and Calculus BC. Id . ¶ 28 & Ex. O. Ms. Taylor also learned that students taking the English Language, English Literature, and Calculus AB exams were not facing the same direction. Id.[4]

3. Decision to Cancel Exam Scores

On June 26, 2013, ETS informed the College Board that the OTI had recommended cancelling the scores in the following eleven exams: U.S. History, Macro-Economics, English Language, English Literature, U.S. Government and Politics, Calculus AB, Calculus BC, Physics B, Statistics, Chemistry and Biology. Id . ¶ 30. The College Board accepted the OTI's recommendations on July 2, 2013. Id.

On July 8, 2013, the College Board notified Principal Belzer by email of its decision to deem the scores for the aforementioned exams "invalid, " and indicated that the affected 286 MHS students would have the opportunity to retake the exam free of charge. Id . ¶¶ 31-32; Arbizu Decl. ¶ 38 & Ex. 3. Principal Belzer, in turn, notified MHS staff, students and parents of the College Board's action on July 11, 2013. Cuccia Decl. ¶ 33. Shortly thereafter, students were notified that the retests were scheduled from August 5 to August 12, 2013. Id . ¶ 34. At MHS' request, those dates were postponed to August 9 to August 19, 2013. Id . ¶ 37. Defendants have offered a second retest opportunity for those students unable to make the rescheduled test dates. Id.

On July 19, 2013, representatives from the College Board and Cynthia Clark, Director of Curriculum and Standardized Assessment for the School District, participated in a telephone conference call. Id . ¶ 35. During the call, Ms. Clark admitted that there were testing irregularities at MHS, but asked whether the score cancellations could be limited to only the particular students impacted by the violations of test protocols. Id . The College Board expressed a willingness to consider her proposal if she could provide information regarding the seating arrangements that were more detailed than those previously provided by Principal Belzer and Ms. Arbizu. Id . Although Ms. Clark stated that she had additional seating charts that she could provide, none were presented to the College Board. Id.


On August 5, 2013, the School District and the Viking Group filed the instant action against ETS and College Board in the California Superior Court for the County of San Mateo. The Viking Group is a non-profit association comprised of MHS students whose scores were invalidated and parents of such students who claim they have been financially harmed by Defendants' actions. Lee Reply Decl. ¶¶ 2-5, Dkt. 34-3. Plaintiffs claim that 180 students and parents have joined the Viking Group. Id . ¶ 4. ...

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