A group of students has filed a class action suit against the ACT, Inc. in the US District Court in Los Angeles claiming, among other things, that it violated the Americans with Disabilities Act. Specifically, it alleges that instead of keeping the existence of an applicant’s disability confidential, the ACT has been sharing it with colleges by indicating that the scores were earned by someone who took the exam with accommodations.  This practice, known as “flagging”, has been deemed illegal by the Department of Justice, and the ACT and SAT both agreed to stop it a number of years ago. According to the suit, the ACT has continued the practice in part to gain an advantage over its competitor, the SAT.  A spokesperson for the ACT stated that the organization does not comment on pending litigation.

Are the allegations true?  I don’t know - that’s what the lawsuit will decide.  If they are, I confess to one overwhelming emotion: confusion.  Of course, I could discuss the ramifications of discrimination and the breach of the public trust, but I’m confident that they have been (and will be) adequately covered elsewhere.  I also believe that most people understand the fundamental problems with such a practice.  But if people cannot be counted on to do the right things for the right reasons, can’t we at least be counted on to do the right things for strategic ones?  If we take the time to look around, the landscape is littered with cautionary tales.  Wouldn’t it behoove us to pay better attention?

In 2014 the Law School Admissions Council, the creator and administrator of the LSAT, settled a class action lawsuit in which the Department of Justice intervened.  Among the allegations?  Illegal “flagging” of test scores to alert law schools that an applicant had taken the exam with accommodations!  That lawsuit resulted in a Consent Decree, which included a permanent injunction against flagging test scores.  It also required LSAC to pay $55,000 in civil penalties to the DOJ, $7,675,000 in damages, and $1,000,000 in attorneys’ fees. So, to repeat, I am confused.  How could anyone in the educational testing business NOT be aware of the LSAC lawsuit?  Seriously?

To be certain, if the allegations are true, the ACT wouldn’t be the first organization to be reckless and shortsighted. Individuals, corporations, and even governments repeatedly fall into the trap of making the same mistakes as their predecessors.  But with the history of the suit against LSAC so fresh, I personally wonder how such a thing could have happened (if it did) - and what those in charge could have possibly been thinking.  They say that those who forget the past are condemned to repeat it.  How true.