Testing company ACT flagged students’ disabilities to colleges. Now it must pay $16 million

College admissions testing company ACT Inc. has agreed to pay out $16 million to California students with disabilities who alleged their rights were violated when the company flagged their disability status to colleges and excluded them from a beneficial recruitment program, according to a settlement announced Thursday.

A class-action federal lawsuit filed in California in 2018 alleged that ACT violated the Americans With Disabilities Act and California’s Unruh Civil Rights Act by indicating to colleges on students’ score reports whether those students had received special testing accommodations or otherwise indicated they had a disability.

The lawsuit also alleged that ACT discriminated against students with disabilities by making it harder for them to participate in a student search service called Educational Opportunity Service, which the company sells to colleges to help them identify potential recruits — and then allowed colleges to filter the data based on disability status.

A consent decree announced as part of the settlement prohibits ACT from engaging in any of these practices.

“We’ve worked very hard to get to a consent decree that they agreed to, and they’re doing the right thing, and it’s going to benefit hundreds of thousands of students,” said attorney Jesse Creed of the law firm Panish Shea & Boyle, which represented the plaintiffs.

ACT has denied any wrongdoing and said it entered into the settlement to avoid the costs and uncertainty of protracted litigation.

“Neither the settlement nor the court found that ACT violated any laws or rights of students with disabilities or privacy rights,” the company said in a statement. “ACT’s mission includes serving underserved populations, including students with disabilities. ACT creates opportunities in education for students with disabilities; this is a longstanding priority for ACT and will continue to be.”

The lawsuit said that the administrator of the SAT, the College Board, does not report student disabilities on its score reports.

The lead plaintiff in the case, Halie Bloom, had a history of attention deficit hyperactivity disorder and a reading disability similar to dyslexia. Bloom, who attended high school in Newport Beach, had an individualized education program, or IEP, and received ACT testing accommodations.

The complaint alleges that the company acquired her disability status through her testing registration and documents provided by her school counselor and annotated all of the score reports it sent to colleges on her behalf with information about her disability. It further alleges that the company disclosed Bloom’s disability status without her permission to colleges, universities and scholarship organizations through its Educational Opportunity Service, listing her disability status as a searchable data element on which they could sort and exclude her.

“She had no expectation that ACT would include her disability status with her score reports or otherwise ever report her confidential disability information,” the complaint says.

Bloom, now 21 and a junior at the University of Arizona, said in an interview that she has learned to accommodate her disability in daily life and that she is “loud and proud” about it.

But, she said, when the disability was labeled by the ACT on material it sent to colleges, “it was labeled without my being able to put my words to it. Every college has their own understanding of a disability and I do feel like it did hurt me because it wasn’t my voice being told.”

Bloom said she’s happy that others with disabilities won’t face the same hurt or hurdles she did.

“From our perspective the actual admissions process by the college and the testing company should be disability-blind, and they’ve really stepped up and made powerful changes to ensure that any discussion of disability is from the student’s voice only,” Creed said.

The lawsuit represents two classes of plaintiffs: those who had their disability disclosed on score reports, and those who were excluded from the Educational Opportunity Service because of their disabilities. Creed said there are more than 65,000 claims in California, and probably hundreds of thousands nationwide.