`
`
`
`PHILLIP A. BAKER, BAR ID #169571
`pbaker@bknlawyersc.com
`JENNIFER L. STONE, BAR ID #325493
`jstone@bknlawyers.com
`BAKER, KEENER & NAHRA, LLP
`633 West 5th Street, Suite 5500
`Los Angeles, California 90071
`Telephone: (213) 241-0900/Facsimile: (213) 241-0990
`
`MARCI LERNER MILLER, BAR ID # 162790
`marci@milleradvocacy.com
`CHRISTINA N. HOFFMAN, BAR ID #161932
`choffman@milleradvocacy.com
`MILLER ADVOCACY GROUP
`1303 Avocado Avenue, Suite 230
`Newport Beach, California 92660
`Telephone: (949) 706-9734/Facsimile: (949) 266-8069
`
`
`Attorneys for Plaintiffs
`
`
`
`UNITED STATES DISTRICT COURT
`
`CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION
`
`Plaintiff J.P. on behalf of her minor son
`Case No.:
`R.P., and all others similarly situated;
`
`THE NATIONAL CENTER FOR FAIR
`
`& OPEN TESTING doing business as
`
`NATIONWIDE AND
`FAIRTEST, a Massachusetts
`CALIFORNIA CLASS ACTION
`corporation; A.K., individually and on
`COMPLAINT
`behalf of all others similarly situated;
`
`R.G. on behalf of her minor son J.G., and
`DEMAND FOR JURY TRIAL
`all others similarly situated; Plaintiff
`M.S. on behalf of her minor daughter
`
`Z.S., and all others similarly situated,
`
`
`
`Plaintiffs,
`
`vs.
`
`EDUCATIONAL TESTING SERVICES
`(ETS), a New York corporation;
`THE COLLEGE ENTRANCE
`EXAMINATION BOARD, a New York
`corporation, doing business as THE
`COLLEGE BOARD; and
`DOES 1 through 50, inclusive,
`
`
`
`Defendants.
`
`
`///
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`Case 2:20-cv-04502 Document 1 Filed 05/19/20 Page 2 of 46 Page ID #:2
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`Plaintiffs, Plaintiff J.P. on behalf of her minor son R.P. and all others similarly
`situated; THE NATIONAL CENTER FOR FAIR & OPEN TESTING (“FairTest”);
`A.K., individually and on behalf of all others similarly situated; R.G. on behalf of her
`minor son J.G., and all others similarly situated; Plaintiff M.S. on behalf of her minor
`daughter Z.S., and all others similarly situated (collectively, “Plaintiffs”), allege and
`plead as follows:
`
`INTRODUCTION
`1.
`Plaintiffs bring this suit against Defendants to recover the damages owed to
`them and others similarly situated and for injunctive relief as a result of the Defendants’
`failure to allow access to and failure to administer its Advanced Placement (“AP”)
`program properly and without prejudice.
`2.
`The College Board is involved at every level of the college preparation,
`testing, admissions, financial aid, and placement process. It is the leading player in the
`higher education industry responsible for the fates of millions of high school students
`every year, deciding who will be recruited, who will apply, who will be accepted, who
`will receive financial aid, and who will be able to afford college and other
`postsecondary opportunities. The Educational Testing Service (“ETS”) is responsible
`for the development, administration, and scoring of College Board’s assessments,
`including AP exams.
`3.
`AP is a program offered by the College Board that offers college-level
`courses and examinations to high school students. Colleges and universities frequently
`grant placement and course credit to students who obtain passing scores on their AP
`examinations. The length of time each student will spend in college, their curriculum,
`and how much they pay to attend college are factors heavily influenced by College
`Board and the AP opportunities available to students. The College Board claims that
`AP courses and examinations also favorably impact college admissions decisions by
`demonstrating to admissions officers that a student is prepared for college-level work.
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`AP courses strengthens a student’s high school transcript and help students qualify for
`scholarships.
`4.
`In March of 2020, schools around the world moved to distance learning
`due to the COVID-19 pandemic. The College Board was faced with the decision of
`cancelling its popular and profitable AP program for the year, postponing the exams, or
`offering them at home to students. The College Board made the decision to offer the
`AP exams to students at home but with significant structural changes.
`5.
`The College Board was immediately made aware by numerous sources,
`including counselors, educators, advocates and families, that there were serious
`concerns that the at-home AP exams would not be fair to students who have no
`computer, access to Internet or quiet workspaces from which to work, or to under-
`resourced students in general. Even as the test began, questions remained about the
`availability and applicability of legally required accommodations for students with
`disabilities, the fair access to connectivity for all students, test security, and score
`comparability.
`6.
`Counselors, educators, advocates, and families immediately reached out to
`The College Board to make them aware of their serious concerns with the at-home AP
`format’s likely impact on students who have no computer, access to Internet or quiet
`workspaces from which to work, or on under-resourced students in general. Even as the
`test began, questions remained about the availability and applicability of legally
`required accommodations for students with disabilities, connectivity, test security, and
`score comparability.
`7.
`The College Board acknowledged that these issues existed, but it did not
`change its policies to address them. On May 14, 2020, after 3 full days of at-home AP
`exams, the College Board admitted that there was a measurable failure rate in uploading
`exams, and it attempted to change its policies going forward. The College Board’s
`President, David Coleman acknowledged in an email that, “we can't control the
`conditions in students' homes.” Technical problems with the digital versions of the AP
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`exams caused and continue to cause tremendous angst for high school students and their
`parents during this already stressful time.
`8.
`Before this year, high school students took their AP exams at school during
`the regular school day hours in a controlled and regulated environment where they could
`ask for assistance if necessary. The College Board acknowledged that it knew moving
`the exams home may exclude some students from testing at all, stating that, “We
`recognize that the digital divide could prevent some low-income and rural students from
`participating.” The College Board moved the AP exams to students’ homes under the
`present conditions despite this acknowledgement. In doing so, the College Board
`knowingly discriminated against under-resourced students, disabled students, and
`students in remote locations, and it failed to honor its commitments to students and their
`families.
`9.
`After one day of testing, it became clear that the College Board and ETS
`had failed to fairly, competently, or equitably administer the AP exams. The students
`who relied on AP scores for the financial benefits of college placement and credit
`experienced technical glitches, timing issues, and a heightened level of anxiety and
`distress. Reports of anywhere between 5% and 20% of examinees were unable to
`submit their responses through the at-home testing platform during the first three days
`of AP exams. One AP Coordinator reported a failure rate of 30%. Some students could
`only submit partial responses, and others could not even log on to take the exams.
`10. Despite the fact that these are challenging times for families, The College
`Board offered no acceptable remedies to students whose lack of digital access prevented
`them from fairly testing. Nor did it offer remedies to students who experienced glitches
`with the AP platform. On May 15, 2020, The Chronicle of Higher Education reported,
`“AP Tests During Covid-19: Heartbreak, Technical Glitches, and Anonymous
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`Intrigue.”1 On the same day, The Washington Post reported, “College Board Says New
`AP Test Online Going Well – But Students Report Big Problems.”2
`11. The College Board intends to move all of its assessments to an at-home
`format, including the SAT; however, this year’s AP exam administration makes it
`perfectly clear that until the technical issues, the digital divide and other inequities are
`adequately addressed, it cannot not do so.
`12. The challenge of the at-home AP exam format is only the final hurdle for
`many AP students, and it is also one step that many students may never even reach.
`Some AP students are fully denied access to AP exams and others must overcome
`additional hurdles to obtain access to AP exams based solely on where they are enrolled
`in school. Access is particularly challenging for students enrolled in California public
`charter schools or homeschools.
`
`THE PARTIES
`
`Plaintiffs:
`13. Plaintiff J.P. is acting on behalf of her minor son R.P. and all others
`similarly situated. R.P. is a high school student who is registered to take at-home AP
`exams. Pseudonyms have been used throughout the complaint in order to protect the
`identity of the minor Plaintiffs. Further the public has little legitimate interest in
`knowing the true identity of the Plaintiffs. The Defendants will not be prejudiced by
`allowing the Plaintiffs to proceed anonymously and in this manner until a protective
`order is in place.
`14. The National Center for Fair & Open Testing (“FairTest”) is a nationwide
`public charity that operates in California. FairTest’s mission is to advance quality
`education and equal opportunity by promoting fair, open, valid evaluations of students,
`teachers, and schools. FairTest works on behalf of examinees to end the misuses of
`
`
`1 https://www.chronicle.com/article/AP-Tests-During-Covid-19-/248792
`2 https://www.washingtonpost.com/education/2020/05/15/college-board-says-new-online-ap-tests-are-going-well-students-
`report-big-problems/
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`standardized tests, placing special emphasis on eliminating the racial, class, gender, and
`cultural barriers to equal opportunity. In pursuit of its mission, FairTest provides
`information and technical assistance to students and parents as well as advocacy on a
`broad range of testing concerns, including those relating to the at-home AP exams.
`15. Plaintiff A.K. is acting individually and on behalf of all others similarly
`situated. A.K. is a high school student who registered for and took AP exams.
`16. Plaintiff R.G. is acting on behalf of her minor son J.G and all others
`similarly situated. J.G. is a high school student who is registered to take at-home AP
`exams.
`17. Plaintiff M.S. is acting on behalf of her minor daughter Z.S. and all others
`similarly situated. Z.S. is a high school student who is registered to take one at-home
`AP exam.
`Defendants:
`18. Defendant EDUCATIONAL TESTING SERVICE (“ETS”) is registered as
`a non-profit organization headquartered in Princeton, New Jersey. ETS has multiple
`offices in the State of California, including within this jurisdiction. Plaintiffs are
`informed and believe that ETS administers AP exams on behalf of Defendant College
`Board.
`19. Defendant COLLEGE ENTRANCE EXAMINATION BOARD (“The
`College Board”) is a New York corporation with its principal place of business in New
`York, New York, which does business in California. Plaintiffs are informed and believe
`that the AP program is fully owned and operated by The College Board.
`20. Defendants ETS and College Board are referred to collectively herein as
`“Defendants.”
`21. The true names and capacities of defendant DOES 1 through 50, inclusive,
`whether individual, corporate, associate or otherwise, are unknown to Plaintiff, who
`therefore sues said defendants by such fictitious names and will amend to allege their
`true names and capacities when ascertained. Plaintiffs are informed and believe that
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`each of the DOE defendants is responsible for the acts or omissions alleged in this
`complaint, and that Plaintiffs’ injuries and damages were proximately caused by the acts
`or omissions of these unnamed defendants.
`22. Plaintiffs are informed and believe, and based thereon allege, that each of
`the Defendants herein was at all relevant times the principal, agent, alter-ego, joint-
`venturer, partner, affiliate, manager, subsidiary, servant, employee and/or co-conspirator
`of each other Defendant, and in performing the acts described in this complaint, was
`acting in the scope of his, her or its authority with the consent of each other Defendant.
`Each Defendant ratified and/or authorized the wrongful acts, conduct, omissions, or
`commissions of each of the other Defendants. At all relevant times, each Defendant
`acted with full knowledge of the conduct of each of the other Defendants, with the
`intention to cooperate therewith.
`23. Plaintiffs do not know the true names and capacities, whether corporate,
`partnership, associate, individual, or otherwise of Defendant issued herein as DOES 1
`through 10, inclusive, under the provisions of Central District of California, Local Rule
`19-1. Defendant DOES 1 through 50, inclusive, are in some manner responsible for the
`acts, occurrences and transactions set forth herein, and are legally liable to Plaintiff.
`Plaintiff will seek leave to amend this Complaint to set forth the true names and
`capacities of the fictitiously named Defendants, together with appropriate charging
`allegations, when ascertained.
`24. All acts of corporate employees as alleged were authorized or ratified by an
`officer, director or managing agent of the corporate employer.
`JURISDICTION AND VENUE
`25. This Court has subject matter jurisdiction over this action pursuant to the
`Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d), as the proposed class contains
`more than 100 members, at least one of whom maintains citizenship in a state diverse
`from the defendant, and seeks in the aggregate more than $5,000,000, exclusive of costs
`and interest.
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`26. Venue is proper pursuant to 28 U.S.C. § 1391(b) & (c) because a
`substantial part of the events or omissions giving rise to the claim occurred in this
`judicial district, and because Defendants are subject to the Court’s personal jurisdiction
`in this judicial district.
`27. This Court has personal jurisdiction over the parties hereto, because the
`Defendants are corporations that do business throughout the State of California. The
`facts underlying this case arise from the State of California and from within this judicial
`district. Defendants’ conduct substantially impacts the State of California and its
`students. Plaintiffs are informed and believe that each Defendant herein has sufficient
`contacts with California so as to make proper the exercise of personal jurisdiction over
`them, and have sufficient minimum contacts so as to render the exercise of personal
`jurisdiction permissible under traditional notions of fair play and substantial justice.
`COMMON FACTUAL ALLEGATIONS
`28. The College Board claims that students who score a 3 or higher (out of 5)
`on an AP Exam typically experience greater academic success in college and are more
`likely to earn a college degree on time than non-AP students.3 As the only player in the
`education market with this level of influence over high school curriculum, college
`admissions, course placement, and financial outcomes, the College Board knows that
`access to its AP exams must be fair, reliable, and affordable.
`29. To ensure that low-income students can access AP Exams at a reduced
`cost, Every Student Succeeds Act (ESSA) provides funding for AP Exams and courses
`under the Title IV, Part A block grant.4 Additional funding is also available for states
`and districts to cover AP Exam fees for low-income students. In California, an
`increasing number of lower income students are enrolling in AP courses. Of the 58.7
`
`
`3 https://collegereadiness.collegeboard.org/about/benefits/connect-to-ap
`
` 4
`
` https://professionals.collegeboard.org/testing/states-local-governments/new-education-policies/essa-federal-funding-ap
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`percent of the state's K–12 students eligible for the free or reduced-price lunch program
`in the Class of 2017, 45.5 percent took at least one AP exam.5
`30. Each year, millions of high school students take 38 different AP exams at
`the end of the school year. In 2019, 3.1 million students took a total of 4.9 million AP
`exams at school. In 2020, 3.4 million students are registered to take over 5 million AP
`exams. During the first week of testing, students took or attempted to take over 2.2
`million AP exams. The cost of an AP exam is generally between $100 and $150 per test.
`31.
`In 2018, the College Board earned over $480 million dollars from its AP
`program alone. The College Board collected its exam fees in the Fall of 2019 for the
`Spring 2020 exams.
`32. AP exams provide a means for high school students to earn college credit
`while in high school. Defendant College Board advertises that, “by taking an AP course
`and scoring successfully on the related AP Exam, [a high school student] can save on
`college expenses: most colleges and universities nationwide offer college credit,
`advanced placement, or both, for qualifying AP Exam scores... These credits can allow
`students to save college tuition, study abroad, or secure a second major.” College Board
`further advertises that, “[e]arning a qualifying score on the AP Exam can help you
`advance and avoid required introductory courses – so you can move directly into upper-
`level classes and focus on the work that interests you most.”
`33. The AP program is the only widely available high program allowing
`students to earn college credits. Defendant College Board organizes and administers the
`AP tests. The AP program is the only means for high school students to test for college
`credit in dozens of subject matters. In order to obtain college credits, students are
`required to pass the AP test, as scored and reported by Defendants.
`34. Passing scores (a 3, 4, or 5) on the AP exams can save students and their
`parents thousands of dollars in college tuition and costs. A successful student who takes
`
`
`5 https://www.cde.ca.gov/nr/ne/yr18/yr18rel16.asp
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`multiple AP exams can potentially finish college a year or more earlier than students
`who did not earn AP credit during high school. Some students understandably wanted
`an option to take their AP exams for college credit when COVID-19 forced their
`schools to convert to distance learning and they could no longer test at school.
`35. However, the format of the at-home AP exams is different from the format
`students are accustomed to and different from the practice AP exams they have taken.
`The 2020 home-based AP exams are digitally-based instead of on paper as they have
`always been in the past. The new exams are scheduled to last only 45 minutes (actually
`40 minutes with the required 5 minutes to begin uploading answers before the test ends)
`instead of 3 hours, and all tests in the same subject are given at exactly the same time.
`This means that some students in one part of the world could be taking an exam in the
`middle of the night, while others are taking it in the middle of the day. Students in
`Hawaii begin their first exams each day at 6 a.m., while students in New York begin the
`same exams at noon. The 2020 exams include material covered until the time of the
`COVID-19 breakout instead of the entire course curriculum. Most importantly, the
`exams are taken at home, where the testing environment can be unpredictable and
`distracting.
`36. Some of the issues with the at-home format should have been anticipated.
`As soon as the College Board announced its plans to administer at-home exams,
`educators, students, parents, and AP coordinators voiced their concerns over equity and
`access issues. They also expressed concerns about timing and technical problems with
`the new format as well as score validity.
`37. The College Board announced prior to the administration of the at-home
`exams that certain disability accommodations that were previously provided would be
`modified, eliminated, or were deemed “unnecessary” due to the new format.
`38. Dozens of educators and counselors wrote an “Open Letter” to the College
`Board on April 22, 2020 outlining why the exams would not be fair to students who
`have no computer, access to Internet or quiet work spaces from which to work, or to
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`students with disabilities who would not have their approved accommodations.6 Plaintiff
`FairTest announced that its concerns about the 2020 AP exams included computer
`equipment and technology, connectivity, the availability of legally required
`accommodations, security, and score comparability.
`39. The College Board did not address these issues or change its policies prior
`to the administration of the at-home AP exams. In fact, on May 14, 2020, after 3 full
`days of AP exam administration, College Board’s President David Coleman
`acknowledged in an email that, “we can't control the conditions in students' homes.” He
`added, “Students may face technology or internet issues, need to tend to unexpected
`family obligations, or face other disruptions that will impact their testing experience.
`Like the virus itself, these disruptions will disproportionately impact low-income and
`underrepresented students.” Instead of changing the testing format to address the
`disparities among student testing environments, however, Mr. Coleman recommended
`that students explain their disadvantages to college admissions officers. In an admission
`that the tests are not valid for all students, Coleman said, “We're working to ensure that
`students who take the exam in challenging situations can share context with admissions
`officers about their exam experience.”
`40. The first week of the 2020 AP exams revealed the deep digital divide
`among AP test-takers, and it became clear how the revised exam format
`disproportionately impacted certain groups of students, including those who are under-
`resourced, who lack access to technology or quiet workspaces, students with disabilities,
`and students testing in non-ideal time zones. A number of students suffered from
`technical glitches, timing issues, issues with their computer software, disability
`accommodation issues, and widespread panic due to the inability to reach anyone at the
`College Board for assistance.
`
`
`6 https://www.washingtonpost.com/education/2020/04/22/an-open-letter-college-board-about-online-at-home-ap-tests/
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`41. After the first week of testing, The College Board reported a failure rate of
`only 1%, but AP coordinators and students told a different story. Schools estimated that
`anywhere between 5-20% of their AP test-takers were unable to submit their exam
`responses through College Board’s testing platform during the first week. Other
`students could not finish their exams or log into the platform at all despite practicing
`beforehand.
`42. One AP Calculus teacher reported that 3 out of her 13 students, or 23% of
`her students, faced technical obstacles submitting their work during the AP Calculus AB
`examination. This Santa Barbara-area teacher reported that one of her students received
`an upload error message after the testing time had expired. A second student had issues
`with her devices, even though she had practiced logging on and taking mock exams with
`her teacher. A third student in the class reported that her screen froze, then went blank,
`and then logged the student out upon trying to submit her answers. This student was
`never able to get back into the exam to upload her submissions.
`43. Another AP Coordinator reported that, “This whole thing was a mess. It
`was unprofessional and added more stress to the students, teachers, families, and
`coordinators.” Another AP coordinator reported a 10% failure rate on the AP Calculus
`exam. These reports from the ground to do not square up with the College Board’s
`statement that “the vast majority” of the 2.2 million students who tested last week
`successfully completed those exams, or its written statement that less than 1% technical
`of test takers encountered technical difficulties.
`44. Students who experienced issues with the College Board’s platform
`emailed their time-stamped work to the College Board, but it was not accepted. They
`were told that their only remedy was to retake the exam over the summer, if they
`qualified for a retake exam. Students’ anxiety continued to grow as the week progressed
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`due to legitimate fears that they would complete their work but not be unable to submit
`it and would then have no remedy.7
`45. Students have not been able to confirm access to the retake exams despite
`technical failures. Students have also reported that they have two AP exams scheduled
`for the same retake day and that they were told by The College Board that they would
`have to choose only one exam to take.
`46. FairTest received an influx of reports about at-home AP exam failures and
`the lack of remedies. One parent reported, “We also had technical issues trying to sign
`up for a make-up exam. I spent over an hour on phone with CB. They refused to allow
`me to speak to supervisor and offered no reassurance that the problem would be fixed
`by a makeup.”
`47. One student reported that, “Due to a technical malfunction on the College
`Board's website during the APUSH exam (AP U.S. History), I was unable to submit by
`work. My dad has been critically ill and hospitalized for the past few weeks and despite
`this challenge, I persisted in preparing for my AP exams because I wanted to achieve
`my goals of earning college credits. Now, due to a technical issue on the College
`Board's website, I am going to have to continue working during this incredibly stressful
`time in my life to prepare to re-take the exam in June.”
`48. One parent said, “My son has time stamped images of his Physics AP
`answers. Why can’t college board find a way to accept those? We worry there is no
`make up for the make-up test. What happens if this glitch happens on the make up?”
`Another parent reported, “We also had technical issues trying to sign up for make-up
`exam. I spent over an hour on phone with CB. They refused to allow me to speak to
`supervisor and offered no reassurance that problem would be fixed by makeup.”
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`7 https://www.washingtonpost.com/education/2020/05/15/college-board-says-new-online-ap-tests-are-going-well-students-
`report-big-problems/
`https://www.insidehighered.com/admissions/article/2020/05/18/students-complain-they-cannot-submit-ap-tests
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`49. One student described the experience of carefully preparing for the exam
`but still being unable to submit his responses. “I took all precautions once I heard from
`some students that there were submission errors. I updated my computer, used chrome
`because it was recommended by the college board, sent my brother to my dad’s house
`so I wasn’t distracted during my test, and made my family get off the wifi so I could
`have the maximum potential my wifi could give me. . . Then, when I took Physics 1, my
`first answer submitted with no problem, but my second question wouldn’t submit.”
`50.
`In response to the complaints, the College Board officials initially claimed
`that their systems did not malfunction, but the problems were instead caused by
`students. Students were instructed to update their browsers, disable plug-ins, and make
`sure their devices were properly set up.
`51. Ultimately, in response to what some called a “tsunami” of complaints, the
`College Board made some adjustments to its policies, announcing on May 17, 2020 that
`it would provide a backup email submission option of browser-based exams for students
`testing between May 18 and May 22, 2020. Nonetheless, if the student is unable to
`upload responses through the exam platform or successfully transmit by email at the
`time of the exam, as in the case of a home connectivity problem, the student would still
`have to request a makeup exam. In addition, the College Board will not accept email
`transmissions from students who already tested between May 11 and May 15, 2020.
`52. Students taking exams between May 18 and May 22, 2020 have an added
`safeguard, providing a slightly more desirable and less stressful testing environment for
`these test-takers. Students who experienced technical failures during the first week have
`still not received any confirmation that they will be eligible to take a makeup exam or
`that they will receive the added safeguard of email submission, even for their retakes.
`53. An online petition is circulating, called “Let Students Submit AP Work,”
`which requests remedies for the students who tested between May 11 and May 15, 2020
`and could not submit their work.8 The Petition states that, “We, along with all our
`
`8 https://www.change.org/p/college-board-let-students-re-submit-ap-work?signed=true
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`Case 2:20-cv-04502 Document 1 Filed 05/19/20 Page 15 of 46 Page ID #:15
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`sisters and brothers in humanity, have already been having a hard time because of
`COVID and we were already tired and stressed out and a lot of us have been struggling
`with sadness and mental health issues. This will make all of that worse. Fortunately,