## Facts

- Mark Breimhorst and other disabled test takers, along with a disability-rights organization representing similarly situated individuals, sued Educational Testing Service (ETS).
- ETS develops and administers standardized admissions examinations used by colleges and graduate programs, including the SAT, GRE, and GMAT.
- Plaintiffs sought and received testing accommodations based on disability, such as extended time or other nonstandard testing conditions.
- When ETS reported scores from accommodated administrations, it placed a prominent notation on the score report stating: “SCORES OBTAINED UNDER SPECIAL CONDITIONS.”
- ETS asserted the notation was intended to inform score users that the exam was administered under nonstandard conditions and that the resulting scores might not be interpreted the same way as scores from standard administrations.
- Plaintiffs alleged the notation effectively disclosed disability status to schools and other score recipients, created stigma, and discouraged individuals from requesting accommodations needed to take the exams.
- Plaintiffs contended their accommodated scores were comparable to scores of non-disabled examinees and requested ETS remove the notation from score reports.
- ETS refused to stop the notation practice, and plaintiffs filed suit asserting federal disability-discrimination claims and California statutory claims.
- ETS moved for summary judgment, seeking dismissal of the federal claims and the related state-law claims.

## Issues

1. Whether ETS’s practice of placing “SCORES OBTAINED UNDER SPECIAL CONDITIONS” on score reports for accommodated test administrations violates Title III of the Americans with Disabilities Act’s examination provisions.
2. Whether the same “flagging” practice violates § 504 of the Rehabilitation Act.
3. Whether ETS was entitled to summary judgment on plaintiffs’ California claims (including the Unruh Civil Rights Act, the Disabled Persons Act, and California’s unfair competition law, Bus. & Prof. Code § 17200).

## Decision

- The court granted ETS’s motion for summary judgment on the federal ADA claim challenging score-report “flagging.”
- The court also granted summary judgment for ETS on the Rehabilitation Act § 504 claim based on the same conduct.
- The court denied summary judgment on the California statutory claims, allowing them to proceed.

## Legal Principles

- Summary judgment is appropriate when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law.
- ADA Title III includes a specific examination provision requiring covered entities that offer examinations related to educational opportunities to administer them in a manner that best ensures results reflect aptitude or achievement rather than disability.
- Providing accommodations that allow disabled examinees to sit for the test addresses the core access concern under the federal examination provision; a dispute about a subsequent notation on a score report may not, by itself, establish a federal statutory violation on the record presented.
- Section 504 of the Rehabilitation Act generally tracks the federal discrimination analysis for covered entities receiving federal financial assistance; where the ADA theory fails on the same facts and legal theory, the related § 504 claim may also fail.
- California civil-rights statutes and California’s unfair competition law can reach conduct that does not amount to a violation of the ADA, so federal judgment on ADA/§ 504 does not necessarily resolve parallel state statutory claims.

## Conclusion

In *Breimhorst v. Educational Testing Services*, the Northern District of California granted ETS summary judgment on plaintiffs’ federal claims under the ADA and § 504 challenging ETS’s practice of “flagging” accommodated test scores with the notation “SCORES OBTAINED UNDER SPECIAL CONDITIONS,” while allowing plaintiffs’ California statutory discrimination and unfair competition claims to continue.


Breimhorst v. Educational Testing Services, 2000 WL 34510621 (2000)