ACT has stopped a practice that advocates for students with disabilities charged was a violation of their rights.
Until recently, ACT's service of selling names of potential students to colleges included information on which students had reported having various disabilities.
ACT maintained that the practice was legal because students' information was not automatically reported but was shared only when students signed a waiver indicating that their information could be shared. But a lawsuit filed on behalf of students with disabilities noted that many students don't understand their right not to consent, or that a college could theoretically use the information as part of a decision-making process on a given applicant. Further, the recent practice of many states to require all students in high school to take the ACT (or the SAT) has changed privacy protection requirements, since taking the tests is no longer voluntary in those states.
In a recent legal filing, ACT informed the court hearing the lawsuit that it no longer will report to colleges that buy names whether students have said that they have a disability. (The College Board, which sells colleges names of those who take the SAT and certain information about them, does not report anything about disability status.)
Ed Colby, a spokesman for ACT, said via email that "as part of our ongoing process to review and improve our data governance practices, ACT had determined that it will no longer include voluntary, self-reported information about students’ disabilities in ACT college reporting. While this information is valued and used by colleges to help students succeed, and while we believe it is nondiscriminatory and lawful, ACT respects student privacy."
This shift does not resolve the suit (which is in part about past actions of the ACT in this regard). Colby said ACT "is vigorously defending itself and denies all of the allegations."
Some reports on the lawsuit have referred to the practice ACT has now stopped as "flagging," but Colby disputed the comparison. Flagging was a once common practice under which testing organizations used to report to colleges whether students received any testing accommodations based on disabilities. Advocates for students with disabilities said that the practice undercut these students' applications, and -- with backing from courts -- their argument led testing organizations to end flagging. ACT did so in 2003.
Supporters of the lawsuit against ACT said that its method of selling names was effectively a return to flagging for those students. Colby denied this.
Of the past sale of names, he said that "this is about how examinees may voluntarily choose to disclose their disability status as part of an optional student profile survey. The information does not indicate that the student requested or took the ACT test with accommodations and is not used in any part of the testing accommodations processes."