Case: Breimhorst v. Educational Testing Service

3:99-cv-03387 | U.S. District Court for the Northern District of California

Filed Date: July 12, 1999

Closed Date: 2002

Clearinghouse coding complete

Case Summary

On July, 1999, an individual plaintiff and disability rights advocacy organization filed lawsuit in the Northern District of California against test providers for the GMAT, SAT, and ACT. The claims were both federal and state-based: the ADA, the Rehabilitation Act, California Unruh Civil Rights Act, California Disabled Persons Act and a California statute that provides a civil cause of action for unlawful business practices, CA Bus. & Prof Code §17200. Specifically, the plaintiffs alleged that …

On July, 1999, an individual plaintiff and disability rights advocacy organization filed lawsuit in the Northern District of California against test providers for the GMAT, SAT, and ACT. The claims were both federal and state-based: the ADA, the Rehabilitation Act, California Unruh Civil Rights Act, California Disabled Persons Act and a California statute that provides a civil cause of action for unlawful business practices, CA Bus. & Prof Code §17200. Specifically, the plaintiffs alleged that the Educational Testing Service's "flagging" practice, where administrators placed notations on the score reports of people with disabilities who take the exams with accommodations for their disabilities, was discriminatory and had a chilling effect that discourages students from even asking for appropriate accommodations.

The case proceeded with discovery for the next several months.

On January 6, 2000, the defendants filed a motion for summary judgment. Senior Judge William H. Orrick granted the motion with respect to the claims made under the ADA, but allowed all other claims to proceed. As a result, the parties began scheduling settlement discussions.

The plaintiffs and ETS reached a settlement in December 2000. ETS agreed to stop flagging on a number of tests it administered, such as the Graduate Management Admission Test (GMAT). Then both parties agreed to have an expert panel analyze the impact of flagging on other exams that ETS administers but which are controlled by the College Board, such as the Scholastic Aptitude Test (SAT).

The parties voluntarily sought dismissal of the case, and on February 8, 2001, Senior Judge William H. Orrick dismissed the case with prejudice. Shortly after the announcement of the settlement, the ACT announced that it too would stop flagging test scores on its college entrance examination.

In mid-July 2002, plaintiffs and the College Board then reached a settlement under which the College Board agreed to stop its practice of flagging test scores on the SAT, PSAT, and Advanced Placement tests when test takers use the accommodation of extended time beginning October 1, 2003. A national panel of experts, who had been jointly selected by plaintiffs and the College Board, had undertaken an intensive study of flagging on the SAT. The panel had recommended that the practice be discontinued because of its discriminatory impact on test takers with disabilities and because it was not psychometrically justified.

Summary Authors

Soojin Cha (6/19/2016)

People


Judge(s)

Laporte, Elizabeth D. (California)

Orrick, William Horsley Jr. (California)

Attorneys(s) for Plaintiff

Konecky, Joshua Geoffrey (California)

Paradis, Laurence W. (California)

Attorneys(s) for Defendant

Ashe, R. Lawrence Jr. (Georgia)

Grube, E. Jeffrey (California)

Huge, Todd A (California)

Rafuse, Nancy E. (Georgia)

Weirich, C. Geoffrey (Georgia)

Expert/Monitor/Master

Gevertz, David E. (Georgia)

Judge(s)

Laporte, Elizabeth D. (California)

Orrick, William Horsley Jr. (California)

Attorneys(s) for Plaintiff

Konecky, Joshua Geoffrey (California)

Paradis, Laurence W. (California)

Attorneys(s) for Defendant

Ashe, R. Lawrence Jr. (Georgia)

Grube, E. Jeffrey (California)

Huge, Todd A (California)

Rafuse, Nancy E. (Georgia)

Weirich, C. Geoffrey (Georgia)

Expert/Monitor/Master

Gevertz, David E. (Georgia)

Documents in the Clearinghouse

Document

3:99-cv-03387

Docket

Breimhorst v. Educational Testing

Feb. 8, 2001

Feb. 8, 2001

Docket
33

3:99-cv-03387

Opinion

Breimhorst v. Educational Testing Services

2000 WL 34510621

March 27, 2000

March 27, 2000

Order/Opinion

3:99-cv-03387

Settlement agreement

Breimhorst v. Educational Testing Services

Aug. 5, 2002

Aug. 5, 2002

Settlement Agreement

Resources

Docket

Last updated Aug. 8, 2022, 3:08 a.m.

ECF Number Description Date Link Date / Link
1

COMPLAINT Summons(es) issued; Fee status pd entered on 7/12/99 in the amount of $ 150.00 ( Receipt No. 3302574); jury demand [3:99−cv−03387] (ga, COURT STAFF) (Entered: 07/13/1999)

July 12, 1999

July 12, 1999

2

ORDER RE COURT PROCEDURE and SCHEDULE (ADR Multi−Option) by Mag. Judge Maria−Elena James : Proof of service to be filed by 8/26/99 ; counsels' case management statement to be filed by 11/1/99 ; initial case management conference will be held 10:00 11/10/99 . (cc: all counsel) [3:99−cv−03387] (ga, COURT STAFF) (Entered: 07/13/1999)

July 12, 1999

July 12, 1999

4

AMENDED COMPLAINT [1−1] by Plaintiff Mark Breimhorst; jury demand; adding Internationall Dyslexia, Californians for Disability Rights [3:99−cv−03387] (ga, COURT STAFF) (Entered: 08/24/1999)

Aug. 23, 1999

Aug. 23, 1999

5

ANSWER by defendant Educational Testing to complaint [4−1] [3:99−cv−03387] (ga, COURT STAFF) (Entered: 09/16/1999)

Sept. 13, 1999

Sept. 13, 1999

7

DECLINATION to proceed before magistrate by defendant Educational Testing [3:99−cv−03387] (ga, COURT STAFF) (Entered: 10/05/1999)

Oct. 1, 1999

Oct. 1, 1999

6

ORDER by Mag. Judge Maria−Elena James of impending reassignment to a United States District Judge () (cc: all counsel) [3:99−cv−03387] (ga, COURT STAFF) (Entered: 10/05/1999)

Oct. 4, 1999

Oct. 4, 1999

8

ORDER by Assignment Committee Case reassigned to Senior Judge William H. Orrick () (cc: all counsel) [3:99−cv−03387] (ga, COURT STAFF) (Entered: 10/15/1999)

Oct. 6, 1999

Oct. 6, 1999

9

CLERK'S NOTICE Case Management Conference set for 2:00 12/9/99 ; [3:99−cv−03387] (cs, COURT STAFF) (Entered: 11/04/1999)

Nov. 3, 1999

Nov. 3, 1999

10

CASE MANAGEMENT STATEMENT and PROPOSED ORDER filed. [3:99−cv−03387] (db, COURT STAFF) (Entered: 12/07/1999)

Nov. 29, 1999

Nov. 29, 1999

11

MINUTES: ( C/R Lydia Radovich) ( Hearing Date: 12/9/99)Case Management Conference. Counsel shall agree on trial date, pretrial date, discovery cut of date and last date to hear dispositive motions. Counsel to file a proper case management order. [3:99−cv−03387] (db, COURT STAFF) (Entered: 12/16/1999)

Dec. 9, 1999

Dec. 9, 1999

12

ORDER by Senior Judge William H. Orrick ( Date Entered: 12/16/99) Parties to file a proper joint case management conference statement no later than Wednesday, 12/15/99. A trial date within 15 months, must begin on a Monday at 8;30 am. See order for conditions (cc: all counsel) [3:99−cv−03387] (db, COURT STAFF) (Entered: 12/16/1999)

Dec. 13, 1999

Dec. 13, 1999

13

CASE MANAGEMENT STATEMENT and PROPOSED ORDER filed. Further case management conference 2/24/00: Expert disclosure, 11/17/00: Non−Expert discovery cut−off, 12/15/00: Rebuttal expert disclosure 1/5/01: Expert discovery cut−off, 2/9/01: Summary judgment motion hearing cut−off 3/15/01: Pretrial conference 4/5/01: Trial 5/3/01: [3:99−cv−03387] (db, COURT STAFF) (Entered: 12/16/1999)

Dec. 13, 1999

Dec. 13, 1999

14

JOINT REQUEST for re filing of amended case management conf. statement. [3:99−cv−03387] (cgd, COURT STAFF) (Entered: 12/21/1999)

Dec. 15, 1999

Dec. 15, 1999

16

ORDER by Senior Judge William H. Orrick denying proposed trial schedule [13−1] ( Date Entered: 12/28/99) (cc: all counsel) [3:99−cv−03387] (RS, COURT STAFF) (Entered: 12/28/1999)

Dec. 15, 1999

Dec. 15, 1999

15

ORDER by Senior Judge William H. Orrick granting request for refiling of amended case management conference statement [14−1]. ( Date Entered: 12.21.99) (cc: all counsel) [3:99−cv−03387] (cgd, COURT STAFF) (Entered: 12/21/1999)

Dec. 17, 1999

Dec. 17, 1999

17

SECOND AMENDED CASE MANAGEMENT STATEMENT and PROPOSED ORDER filed. [3:99−cv−03387] (RS, COURT STAFF) (Entered: 12/28/1999)

Dec. 17, 1999

Dec. 17, 1999

18

PROOF OF SERVICE by defendant Educational Testing of request [14−1] 12/28/99 [3:99−cv−03387] (db, COURT STAFF) (Entered: 01/03/2000)

Dec. 29, 1999

Dec. 29, 1999

19

MOTION before Senior Judge William H. Orrick by defendant Educational Testing for attorney to appear pro hac vice [3:99−cv−03387] (mmr, COURT STAFF) (Entered: 01/07/2000)

Jan. 5, 2000

Jan. 5, 2000

19

ORDER by Senior Judge William H. Orrick granting motion for attorney to appear pro hac vice [19−1] ( Date Entered: 1/7/00) (cc: all counsel) [3:99−cv−03387] (mmr, COURT STAFF) (Entered: 01/07/2000)

Jan. 5, 2000

Jan. 5, 2000

23

CASE MANAGEMENT STATEMENT and PROPOSED ORDER filed. [3:99−cv−03387] (db, COURT STAFF) (Entered: 01/13/2000)

Jan. 6, 2000

Jan. 6, 2000

21

APPLICATION of C. Geoffrey Weirich to appear as counsel Pro Hac Vice: Declarations etc... by defendant Educational Testing [3:99−cv−03387] (db, COURT STAFF) (Entered: 01/11/2000)

Jan. 10, 2000

Jan. 10, 2000

22

ORDER by Senior Judge William H. Orrick granting application [21−1] ( Date Entered: 1/11/00) (cc: all counsel) [3:99−cv−03387] (db, COURT STAFF) (Entered: 01/11/2000)

Jan. 10, 2000

Jan. 10, 2000

22

NOTICE by defendant Educational Testing of association of attorney C. Geoffrey Weirich [3:99−cv−03387] (db, COURT STAFF) (Entered: 01/11/2000)

Jan. 10, 2000

Jan. 10, 2000

24

PROOF OF SERVICE by defendant Educational Testing of orders granting the applications to appear as counsel pro hac vice [3:99−cv−03387] (db, COURT STAFF) (Entered: 01/13/2000)

Jan. 11, 2000

Jan. 11, 2000

25

SCHEDULING ORDER by Senior Judge William H. Orrick : ; discovery cutoff 9/8/00 ; all motions hearing on 2:00 12/21/00 ; pretrial conference set for 2:00 2/15/01 ; jury trial set for 8:30 3/12/01 (cc: all counsel) [3:99−cv−03387] (db, COURT STAFF) (Entered: 01/13/2000)

Jan. 12, 2000

Jan. 12, 2000

26

ORDER by Senior Judge William H. Orrick, the date for plaintiffs' opposition brief is extended to 2/1/00. Plaintiff's counsel will serve the opposition , this change will not alter the hearing date because defendant's reply brief will still be due on 2/10/00 (db, COURT STAFF) Modified on 01/27/2000 (Entered: 01/26/2000)

Jan. 18, 2000

Jan. 18, 2000

27

OPPOSITION by Plaintiffs to motion for judgment on the pleadings [20−1] [3:99−cv−03387] (db, COURT STAFF) (Entered: 02/02/2000)

Feb. 1, 2000

Feb. 1, 2000

28

NOTICE of summary of argument, by Plaintiff Mark Breimhorst, Plaintiff Int'l Dyslexia, Plaintiff Californians Rights [27−1] re opposition [3:99−cv−03387] (db, COURT STAFF) (Entered: 02/02/2000)

Feb. 1, 2000

Feb. 1, 2000

29

STATEMENT of facts by defendant Educational Testing in support of motion for judgment on the pleadings [20−1] [3:99−cv−03387] (db, COURT STAFF) (Entered: 02/11/2000)

Feb. 10, 2000

Feb. 10, 2000

30

REPLY by defendant Educational Testing re motion for judgment on the pleadings [20−1] [3:99−cv−03387] (db, COURT STAFF) (Entered: 02/11/2000)

Feb. 10, 2000

Feb. 10, 2000

31

JOINT STATUS REPORT by Plaintiff, defendant, Plaintiff [3:99−cv−03387] (db, COURT STAFF) (Entered: 02/15/2000)

Feb. 14, 2000

Feb. 14, 2000

32

MINUTES: ( C/R Jim Yeoman) ( Hearing Date: 2/24/00) that the motion for judgment on the pleadings [20−1] is submitted [3:99−cv−03387] (scu, COURT STAFF) (Entered: 02/25/2000)

Feb. 24, 2000

Feb. 24, 2000

33

MEMORANDUM OPINION, AND ORDER: by Senior Judge William H. Orrick granting in part and denying in part motion for judgment on the pleadings [20−1] Granted with respect to plaintiffs' claim for violation of # 302 of the ADA. ETS' motion for judgment on the pleadings is denied in all other respects. Remaining claims to be litigated are plaintiffs' claims that ETX' flagging policy violates # 309 of the ADA, # 504 of the Rehabilitation Act, the Unruh Civil Rights Act, the Disabled Persons Act and # 17200 of the CA Bus. &Prof Code Status conference set for 2:00 5/25/00 ; A Joint Status Conference Statement will be file by 5/18/00 ( Date Entered: 3/27/00) (cc: all counsel) [3:99−cv−03387] (db, COURT STAFF) Modified on 05/03/2000 (Entered: 03/27/2000)

March 27, 2000

March 27, 2000

34

LETTER dated 4/25/00 from David E. Gevertz to the Court re joint request permission to participate in the scheduled 5/25/00 status conference or reschedule the status conference for 6/1/00 at 2:00 PM [3:99−cv−03387] (db, COURT STAFF) Modified on 05/03/2000 (Entered: 05/01/2000)

April 28, 2000

April 28, 2000

RECEIVED Proposed Protective Order ( defendant, Plaintiff) [3:99−cv−03387] (db, COURT STAFF) (Entered: 05/16/2000)

May 15, 2000

May 15, 2000

36

ORDER by Senior Judge William H. Orrick for protective order ( Date Entered: 5/17/00) (cc: all counsel) [3:99−cv−03387] (db, COURT STAFF) (Entered: 05/17/2000)

May 17, 2000

May 17, 2000

37

REPORTER'S TRANSCRIPT; Date of proceedings: 2/24/00 ( C/R: James Yeomans) [3:99−cv−03387] (db, COURT STAFF) (Entered: 05/23/2000)

May 22, 2000

May 22, 2000

38

CLERK'S NOTICE Resetting Status conference for 2:00 6/29/00 ;Status Conference Statements are due ten days before the conference. [3:99−cv−03387] (db, COURT STAFF) (Entered: 05/24/2000)

May 24, 2000

May 24, 2000

39

CASE MANAGEMENT STATEMENT and PROPOSED ORDER filed. [3:99−cv−03387] (db, COURT STAFF) (Entered: 06/19/2000)

June 19, 2000

June 19, 2000

40

Plaintiff's Separate CASE MANAGEMENT STATEMENT and PROPOSED ORDER filed. [3:99−cv−03387] (db, COURT STAFF) (Entered: 06/20/2000)

June 19, 2000

June 19, 2000

41

MINUTES: ( C/R Jim Yeomans) ( Hearing Date: 6/29/00) Status conference set for 2:00 9/28/00 ; , and referring case for settlement to a US Magistrate. Defendant's motion for an extension of time for the Trial Date, submitted. [3:99−cv−03387] (db, COURT STAFF) (Entered: 06/30/2000)

June 29, 2000

June 29, 2000

REFERRAL: referring case for settlement to Mag. Judge Elizabeth D. Laporte [3:99−cv−03387] (wh, COURT STAFF) (Entered: 06/30/2000)

June 30, 2000

June 30, 2000

42

NOTICE OF MOTION AND MOTION WITH MEMORANDUM OF POINTS AND AUTHORITIES before Senior Judge William H. Orrick by Plaintiff to compel responses to first request for production of documents with Notice set for 8/17/00 @ 2:00 PM. [3:99−cv−03387] (db, COURT STAFF) (Entered: 07/14/2000)

July 13, 2000

July 13, 2000

43

DECLARATION by Joshua Konecky on behalf of Plaintiff re motion to compel responses to first request for production of documents [42−1] [3:99−cv−03387] (db, COURT STAFF) (Entered: 07/14/2000)

July 13, 2000

July 13, 2000

44

NOTICE of Summary of Argument and Evidence re: Plaintiffs' motion to compel responses to first request for production of documents by Plaintiff [3:99−cv−03387] (db, COURT STAFF) (Entered: 07/14/2000)

July 13, 2000

July 13, 2000

45

ORDER by Mag. Judge Elizabeth D. Laporte Settlement conf. (Mag) at 2:00 8/16/00 ;On 8/2/00 parties to deliver to Magistrate Judge a confidential settlement conference statement. ( Date Entered: 7/24/00) (cc: all counsel) [3:99−cv−03387] (db, COURT STAFF) (Entered: 07/24/2000)

July 21, 2000

July 21, 2000

46

RENOTICE of hearing by Plaintiff setting motion to compel responses to first request for production of documents [42−1] ; hearing set for 2:00 8/24/00 [3:99−cv−03387] (db, COURT STAFF) (Entered: 07/28/2000)

July 27, 2000

July 27, 2000

47

RESPONSE by defendant Educational Testing re motion to compel responses to first request for production of documents [42−1] [3:99−cv−03387] (db, COURT STAFF) (Entered: 08/11/2000)

Aug. 10, 2000

Aug. 10, 2000

48

ORDER by Mag. Judge Elizabeth D. Laporte excusing attendance at settlement conference that Patricia Taylor, associate General Counsel for ETS be excused from personally appearing at the settlement conference set 8/16/00. No opposition was filed by plaintiffs. Patricia Taylor be available by phone from 2 PM until further notice on 8/16/00. ( Date Entered: 8/14/00) (cc: all counsel) [3:99−cv−03387] (db, COURT STAFF) (Entered: 08/14/2000)

Aug. 10, 2000

Aug. 10, 2000

49

MINUTES: Magistrate Laporte ( C/R Tape #SC) ( Hearing Date: 8/16/00) Settlement Conference. Case did not settle. Other: Settlement Conference continuance to be set. 5 Hours. [3:99−cv−03387] (db, COURT STAFF) (Entered:

Aug. 16, 2000

Aug. 16, 2000

51

Joint REQUEST by Plaintiff Mark Breimhorst for short extension in non−expert discovery schedule based on good cause to facilitate settlement [3:99−cv−03387] (lal, COURT STAFF) (Entered: 08/21/2000)

Aug. 17, 2000

Aug. 17, 2000

52

REPORTER'S TRANSCRIPT; Date of proceedings: 6/29/00 ( C/R: James Yeomans) minutes [41−3] [3:99−cv−03387] (rbe, COURT STAFF) (Entered: 08/24/2000)

Aug. 21, 2000

Aug. 21, 2000

53

ORDER by Senior Judge William H. Orrick granting request [51−1]; setting hearing on motion to compel responses to first request for production of documents [42−1] 2:00 9/28/00 Discovery cutoff set for 10/6/00 ; ( Date Entered: 8/24/00) (cc: all counsel) [3:99−cv−03387] (rbe, COURT STAFF) (Entered: 08/24/2000)

Aug. 22, 2000

Aug. 22, 2000

54

ORDER by Mag. Judge Elizabeth D. Laporte Settlement conf. (Mag) at 2:00 9/27/00 ; ( Date Entered: 8/24/00) (cc: all counsel) [3:99−cv−03387] (rbe, COURT STAFF) (Entered: 08/24/2000)

Aug. 23, 2000

Aug. 23, 2000

55

MINUTES: ( C/R none) ( Hearing Date: 8/16/00) Settlement conf. (Mag)reset for 2:00 9/27/00 ; [3:99−cv−03387] (db, COURT STAFF) (Entered: 09/11/2000)

Sept. 8, 2000

Sept. 8, 2000

56

JOINT STATUS CONFERENCE STATEMENT by Plaintiff, defendant, [3:99−cv−03387] (db, COURT STAFF) (Entered: 09/19/2000)

Sept. 18, 2000

Sept. 18, 2000

57

ORDER by Mag. Judge Elizabeth D. Laporte for leave to for appearance telephonically at settlement conference for Tom Viall and Jon Lonbergb from 12 noon PM until further notice on 9/27/00. ( Date Entered: 9/28/00) (cc: all counsel) [3:99−cv−03387] (db, COURT STAFF) (Entered: 09/28/2000)

Sept. 27, 2000

Sept. 27, 2000

58

CLERK'S NOTICE Status conference set for 2:00 10/19/00 ; Status Conference Statements are due ten days before the conference [3:99−cv−03387] (db, COURT STAFF) (Entered: 10/02/2000)

Oct. 2, 2000

Oct. 2, 2000

59

MINUTES:Magistrate Laporte ( C/R none) ( Hearing Date: 9/27/00) Settlement conference held for six hours. [3:99−cv−03387] (db, COURT STAFF) (Entered: 10/05/2000)

Oct. 4, 2000

Oct. 4, 2000

60

MINUTES: Magistrate Laporte( C/R none) ( Hearing Date: 9/27/00) Settlement Conference held, and case settled. 6 hours. [3:99−cv−03387] (db, COURT STAFF) (Entered: 10/10/2000)

Oct. 4, 2000

Oct. 4, 2000

61

STATUS CONFERENCE STATEMENT by Plaintiff, defendant, Plaintiff [3:99−cv−03387] (db, COURT STAFF) (Entered: 10/12/2000)

Oct. 10, 2000

Oct. 10, 2000

62

ORDER by Senior Judge William H. Orrick Status Conference set 10/19/00 @ 2:00 PM vacated per letter ( Date Entered: 10/13/00) (cc: all counsel) [3:99−cv−03387] (db, COURT STAFF) (Entered: 10/13/2000)

Oct. 12, 2000

Oct. 12, 2000

63

NOTICE by Plaintiff, defendant, of parties stipulation to voluntarily dismiss action with prejudice. [3:99−cv−03387] (db, COURT STAFF) (Entered: 02/08/2001)

Feb. 7, 2001

Feb. 7, 2001

64

STIPULATION and ORDER by Senior Judge William H. Orrick : dismissing case voluntarily with prejudice (cc: all counsel) [3:99−cv−03387] (db, COURT STAFF) (Entered: 02/09/2001)

Feb. 8, 2001

Feb. 8, 2001

Case Details

State / Territory: California

Case Type(s):

Disability Rights

Key Dates

Filing Date: July 12, 1999

Closing Date: 2002

Case Ongoing: No

Plaintiffs

Plaintiff Description:

Plaintiffs included an individual plaintiff and two disability rights organizations: International Dyslexia Association and Californians For Disability Rights.

Plaintiff Type(s):

Non-profit NON-religious organization

Private Plaintiff

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Defendants

Educational Testing Service (Lawrence Township), Private Entity/Person

Case Details

Causes of Action:

Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12111 et seq.

Section 504 (Rehabilitation Act), 29 U.S.C. § 701

Availably Documents:

Injunctive (or Injunctive-like) Relief

Outcome

Prevailing Party: Plaintiff

Nature of Relief:

Injunction / Injunctive-like Settlement

Attorneys fees

Source of Relief:

Settlement

Form of Settlement:

Court Approved Settlement or Consent Decree

Amount Defendant Pays: 85500

Order Duration: 2000 - None

Content of Injunction:

Discrimination Prohibition

Issues

General:

Education

Testing

Test or device

Discrimination-area:

Testing

Discrimination-basis:

Disability (inc. reasonable accommodations)

Disability:

disability, unspecified

Type of Facility:

Non-government for profit