Sharing Too Much Information?

In May, the U.S. Education Department warned testing organizations, colleges and schools that changes in testing practices add to their obligations to protect the privacy of test takers.

For years, testing organizations have asked high school students questions about themselves when they register to take examinations like the SAT or ACT. Some of those answers are then reported on to colleges that buy lists of the names of students fitting certain characteristics. Many students don't realize that they have consented to such disclosures -- think of the surprise of many high school juniors about how it is that they are all of a sudden receiving material from colleges.

But whether knowingly or not, the students have consented, at least from a legal standpoint, since they never were required to register for the test. But the Education Department warning noted that the issue of consent has changed as many states have moved to require all high school students to take the SAT or ACT. In this environment, the department said, there is no presumption of consent, which in many cases could only be obtained from a parent.

A new lawsuit, filed on behalf of students with disabilities and their parents, charges that the ACT is violating numerous privacy protection laws and potentially enabling colleges to weed out or discriminate against applicants with disabilities. The lawsuit says that ACT, because of the way it asks students about their disabilities, is making them think they must reveal various conditions -- even if they are not seeking testing accommodations. In fact, the suit says that ACT asks the questions separate from the process used to decide on accommodations.

"The sale and disclosure of student disability data are flagrant violations of the privacy and civil rights of students with disabilities," states the lawsuit. "ACT profits off these violations and uses them to gain an edge in the marketplace over its only competitor, the College Board, which does not disclose students’ disabilities to colleges and universities."

An ACT spokesman, while declining to discuss details about the lawsuit, said that the organization is committed to respecting the privacy of test takers, and to reporting to colleges only information that test takers have agreed to share.

The lawsuit -- which includes screenshots from ACT promotional materials to colleges (such as the illustration above) -- suggests otherwise. And it says that the student plaintiffs found out that colleges to which they applied learned of their disabilities, which they did not necessarily want to disclose or give permission to disclose. While some college applicants want to disclose disabilities early on to make sure the institutions at which they seek to enroll have appropriate services, others fear that they could be rejected by institutions that may not want to have more students with disabilities.

With more than two million students taking the ACT each year (the ACT has overtaken the SAT in this regard, although the SAT is not far beyond), the ACT is a "powerful gatekeeper" in college admissions, the lawsuit says. And the suit says that some 200,000 students a year request some sort of accommodations, pointing to a large population with disabilities.

But the lawsuit charges (again with screenshots to back its claim) that ACT is asking students about disabilities, along with other information, in the registration process.

"ACT asks every student registering for the ACT Test if they have disabilities that require 'special provisions from the educational institution [i.e. a college],' and asks them to choose a disability that 'most closely describes your situation.' The choices include hearing impairment, visual impairment, learning or cognitive disability, motor impairment, multiple disabilities, or no disability that requires special provisions," the suit says. "This question is part of the test registration process and is separate from the ACT accommodations request process. ACT does not use this information to determine whether to grant a student testing accommodations. It uses this information to make money."

Then, the suit charges, this information finds its way into the score reports that ACT provides colleges -- and also into the information on the student names purchased by colleges. In this section of the suit, the plaintiffs quote from materials used by ACT to promote its services to colleges.

"ACT knowingly uses this data in two impermissible ways. First, ACT includes this detailed disability information in its score reporting services to colleges. In fact, ACT reports whether a student has a disability requiring accommodations and the type of disability on the face of the score reports it sends to colleges," the suit says. While ACT says that it no longer engages in "flagging" of scores (letting colleges know that someone has received accommodations), this alleged practice achieves the same purpose, the suit says. Advocates for students with disabilities say that flagging is a form of discrimination, and several court rulings back this view.

"Second, ACT sells the same private and confidential disability data to colleges to make money," the suit says. "As a result of ACT’s access to private student information, its share in the competitive enrollment services marketplace continues to grow. ACT’s dual role as gatekeeper of students and enrollment manager for colleges allows it to compete in the enrollment services business by representing to colleges and universities that it will help them 'remove the guesswork,' 'target their recruiting efforts,' 'evaluate incoming students to make sure they have the tools to succeed' and 'retain and graduate more students.'"

These issues are more important than ever, the suit says, because of ACT's recent purchase of NRCCUA, which also provides names and a range of enrollment services to colleges.

Ed Colby, a spokesman for ACT, said via email that the organization never comments on litigation. But he offered some comments on ACT's views of privacy issues.

"ACT is committed to the appropriate use of information obtained through assessments that we administer. We share the public’s concern that assessments be used appropriately, and we recognize the importance of encouraging the appropriate use of assessment information in decision making," Colby said.

He said that ACT is committed to ethical policies on testing, consistent with guidelines and research from groups such as the Code of Professional Responsibilities in Educational Measurement prepared by the National Council on Measurement in Education, and the Standards for Educational and Psychological Testing prepared by the American Educational Research Association, American Psychological Association and National Council on Measurement in Education.

As for information on students, he said that "ACT’s general policy is to provide individually identifiable information to a third party only at the direction of the individual or after the individual has been provided notice and an opportunity to opt out of such sharing."