Ron DeSantis Admits It All: And a Word on The Commerciality Doctrine

A sample of changes to AP African American Studies Curriculum After DeSantis Rejected the Original Curriculum in Florida

The nearly $2 billion tax exempt behemoth known as the College Board is in a helluva lot of hot water.  On the one hand, it was tricked by Florida Governor DeSantis into defending itself against an allegation of being woke, as allegedly proven by its AP African American History curriculum.  It lost miserably in that game, not because it really is or isn’t woke, but because it shouldn’t have taken the bait anyway.  You’d think a buncha people who specialize in torturing kids and adults alike with mind-numbing standardized tests would show a little shrewdness themselves in defending their right to do so.  But once they took the bait and said “no, we are not ‘woke,'” the Governor said “well prove it!” and then after revamping the curriculum they said “see, we are not woke!” and then the Governor turned to his base and said “see folks, I will protect you from dangerous African American History, vote for me.” Better they had said “we are educators, here is the knowledge as best we can survey and gather it, do with it as you will.”   Anyway, when the governor tricked those gullible eggheads to change knowledge as they had gathered it, the College Board received even more intense heat from those opposed to the Governor’s wolf-crying campaign where African Americans are the preferred wolves. The College Board is being taken to the woodshed by the left side media, and justifiably so.  I didn’t have any love for the entire standardized testing industry before this and I certainly have even less now. 

Do you realize what it means when a politician can demand, for political and cultural reasons, that a supposedly objective assessment — one that cannot be avoided by any admissions candidate — be altered to fit a political or cultural belief? And what it means when the test writer agrees? Do you?! The College Board also writes admissions tests, you know. To the Governor as well as the College Board — a plague o’ both their houses! — I would say this:  “It means the test is politically and culturally biased and ought not be used to allocate scarce resources, like seats for  undergraduate, law school, or graduate school butts, or admission to the bar,  you fucking idiots!” DeSantis is proving what’s been asserted by many and denied by few all along.  He is insisting that knowledge, from wherever it is found, must be in line with “our” beliefs, “our” culture, what “we” value, and “our” experiences.”  And sure enough it is so presented everywhere; but that “others” generally score lower on the tests is of their own unintelligence? At least the Council has sense enough to recommend doing away with the LSAT as an admissions requirement.  DeSantis has done us a great favor and should be thanked.  He let the cat out of the bag, by insisting explicitly on the cultural bias already there. 

THE TAX STUFF

Needless to say, none of this has made for a very good week around the College Board.  It is in damage control mode.  A Slate Magazine article only makes it worse.  The article is entitled, “The Sooner We Start Thinking of the College Board as a Business, the Better.”  The article explains how the College Board is anything but deserving of tax exemption, without ever mentioning the “commerciality doctrine.:” 

What people didn’t know then, and what they still seem not to understand now, even as the entity is in the news for the ongoing controversy over Florida’s involvement in amending the Advanced Placement curriculum in African American studies, is that the College Board is a business, despite its lofty mission statement, which suggests that it’s about “connect[ing] students to college success and opportunity.” Yes, it’s a not-for-profit business, but not-for-profit does not mean that it’s a charity. In fact, it’s about the furthest thing from a charity that you can imagine.

Over the years, the College Board used its connections with high schools to expand the penetration of the PSAT, as a companion to the SAT; it uses the PSAT to collect names and information about students, which it then licenses to colleges who want to recruit those students as the de facto national database of high school students; it uses the results of the tests (for which half the students and half the school districts will, by definition, be below average) to promote its AP courses, to make students more “college ready” (an essentially meaningless term it invented); and it uses its substantial lobbying budget to convince legislators to make students take the SAT in order to graduate from high school, to pay for AP, and to make public universities accept the results of those exams and grant credit for them.  

. . . 

The College Board is a billion-dollar business, with over a billion dollars in assets (including as much as $150 million held in offshore accounts). It paid Coleman, its CEO, over $2.5 million in 2020, even after he had been demoted from the dual roles of president and CEO in early 2019, and paid several other executives over $500,000 in that same year, a year in which revenue dropped by $400 million.

The article spends a good amount of time heaping mud on the CEO’s head for alleged management missteps, but it need not have.  It makes a prima facie case that the College Board, and maybe ETS and LSAC are no longer entitled to tax exemption because they have crossed the rubicon from charity to a commercial entity.  They have that “commercial hue,” often perceived when a charity becomes a business.  The doctrine serves to backstop the effort to preclude unfair competition.  Read John’s article, he will tell you.  But I am not even sure there is competition, because the testing charities have erected formidable market barriers to for-profit entry. Maybe that’s as it should be.  But right now are there any for-profit test makers to help us find out?  No.  There are no for-profit actors in this multi-billion dollar industry.  This is a blog and I know I am spouting academic dogma without footnotes, but the law is not always so far from our intuition, once we get real intimate with the law.  I stayed at a Holiday Inn before and I’m telling you, these test taking services are commercial entities whether they are owned by colleges and universities, or spend all their time designing tests and curricular materials (to Governor DeSantis’ cultural views, don’t forget).  Certainly there is enough market demand, because the organizations have built the markets themselves, to support the entities without tax subsidy.  The commerciality doctrine lays out a hard to find border between charity and commerce, but my best bet is that these testing services have crossed that border a long time ago.  

darryll jones