With all the news and hand-wringing about the college-applications scandal, residents of Silicon Valley — an epicenter — may be scratching their heads about part of the story that has been overlooked but was in plain sight. I refer to the practice of granting some students "extra time" on the SAT or ACT while not signaling this extension to the colleges and universities to which they apply. Putting aside the criminal aspect of the current scandal, readers may wonder how a doctor's letter diagnosing a disability, as has been widely reported, or a history of extra time in school can end up getting a student 50% or 100% more time than fellow test takers — while keeping that fact confidential. This lack of notice is the loophole discussed here — not the extra time itself.
As I see it, with undocumented extra time, these "timed" tests are no longer standardized. Yet, due to current policy of the College Board (the part of the Educational Testing Service (ETS) that administers the SAT) and the ACT, a separate entity, nobody is notified of that reality. It's like having a larger font on an eye exam — but calling it the same exam, or getting more time to run the "4-minute mile"!
The story begins in 1999, when a student with a disability sued the ETS for "flagging" his test scores because he had been granted extra time. Through Disability Rights Advocates, which represented him, he argued that a "flag" was unlawfully discriminatory.
For unexplained reasons, the ETS settled the case in 2002 and agreed that after 2003, it would no longer "flag" test results taken with extended time — a move opposed by 79% of college admissions officers at the time. The ACT followed suit. As an attorney who has practiced public education law for many years, I expressed my view that "flagging" was not unlawfully discriminatory and the ETS and ACT decisions eviscerated the very meaning of a "standardized" test. (See educationnext.org/disablingthesat/).
The 2003 "extended time" loophole opened the floodgates, especially in upscale communities such as those in Silicon Valley. While at the time 2% of test takers were granted extra time, the percentages have more than doubled to 4-5%. More troubling, the use of this so-called "accommodation" varies widely by ZIP code — from very few in poor communities to, reportedly, 20-40% of test takers in some upscale communities and private schools. Where is equity, fairness and transparency?
The totally predictable pickle we are in, as exposed by the recent scandal, will undoubtedly continue to grow until stopped. As I see it, the end of "flagging" was neither fair nor wise, especially as other tests (with some exceptions) have followed suit. Ask yourself: Who benefits from results with compromised validity?
What to do? Don't blame parents or students for using this attractive loophole on the SAT and the ACT. Blame its creators, the College Board and the ACT. Like tort law's "attractive nuisance" doctrine, those who create a nuisance on their property are responsible for injuries it causes — not the children who come to play there. So, too, here.
As a school attorney, I know that this loophole has also challenged and confused good teachers in providing honest achievement reports that indicate when standards are modified. Some will ask, "Why should I do this when the SAT doesn't?"
I believe it's time for a redo by the big players — the College Board's SAT and the ACT. They have many options, including these three below, to lead the way out of the current quandary.
First, they can provide evidence for why they time their tests; e.g., that, among other skills or knowledge, the tests are designed to measure processing speed, efficiency, and/or other valid time-related indicators — and reinstate flagging. It is legal and not unlawful discrimination to have timed tests and to notify test users (colleges, etc.) when tests are given under nonstandard conditions.
Second, they can give all students (not only students with disabilities) the choice to have extra time, knowing that their results will be flagged. Some students may opt for this. It's a fair and valid option that has the advantage of obviating the need for a disability diagnosis.
Third, they can stop timing test takers. Since some students can have more time, it's fair to ask if timing really matters. Whether a student takes a test under standard conditions or with extra time, the tests are treated as if they are the same! Given all of this, stop the anxiety, gamesmanship and perverse incentives that the current policy invites.
Instantly, each of these three options would solve the problem addressed above. I recommend either of the first two options. Since I believe that timing matters and is worth measuring, I can't endorse the third option — the seemingly simple solution.
Miriam Kurtzig Freedman, a local resident and expert in public-education law, is a school attorney and author of seven books, including her latest, "Special Education 2.0," and many articles. She can be reached at firstname.lastname@example.org.
• Listen to the March 15 episode of "Behind the Headlines," where Palo Alto college adviser John Raftrey discusses the implications of the nationwide admissions bribery scandal, now available on our YouTube channel and podcast.