Dalton v. Educational Testing Service of Princeton, N.J.

• Decision Date: 07 August 1992
• Citation: 588 N.Y.S.2d 741,155 Misc.2d 214
• Parties: , 78 Ed. Law Rep. 438 Peter DALTON, as parent and natural guardian of Brian M. Dalton, an infant under the age of 18 years, Plaintiff, v. EDUCATIONAL TESTING SERVICE OF PRINCETON, NEW JERSEY, Defendant.
• Court: New York Supreme Court

Page 741

588 N.Y.S.2d 741

155 Misc.2d 214, 78 Ed. Law Rep. 438

Peter DALTON, as parent and natural guardian of Brian M Dalton, an infant under the age of 18 years, Plaintiff, v. EDUCATIONAL TESTING SERVICE OF PRINCETON, NEW JERSEY, Defendant.

Supreme Court, Queens County IA Part 3.

Aug. 7, 1992.

Nicolosi & Sciacca (Vincent F. Nicolosi, of counsel), Bayside, for plaintiff.

White & Case (Philip H. Schaeffer, James M. Wicks, of counsel), New York City and Ginsberg, Katsorhis & Fedrizzi (Jerome M. Ginsberg, of counsel), Flushing, for defendant Educational Testing Service.

WILLIAM D. FRIEDMANN, Justice.

In the context of this action for specific performance, the Scholastic Aptitude Test (SAT), widely used to evaluate the potential of candidates for college admission is considered. This extremely important examination is the key to admission into an educational institution of choice, to the awarding of scholarship grants and as the basis for other financial assistance incentives. It is evident that such a test's development, administration and evaluation must be conducted fairly and under circumstances evidencing a relationship of good faith dealings.

Brian Dalton (Brian), as a junior at Holy Cross High School in Queens took the Scholastic Aptitude Test (SAT) which was developed, administered and evaluated by Educational Testing Service (ETS), in May 1991 and received a combined verbal and math score of 620. Disappointed with the results, which did not qualify him for a St. John's University Swimming Scholarship, Brian was advised by his guidance counselor to enroll in a SAT review or coaching course and to take the examination again in different surroundings. As a senior, Brian took the SAT again six months later, on November 2, 1991, at John Bowne High School. He attained a combined verbal and math score of 1030 or an increase of 410 points.

As the result of a routine computer check, Brian's scores were reviewed by the Educational Testing Service's Office of Test Security. ETS informed Brian that because of the large increase in scores and because of handwriting differences allegedly found by an ETS employee in the Test Security Office, "the evidence suggests that someone else may have completed your answer sheet and that the questioned scores may be invalid." Brian was presented with various options at this juncture and chose to submit additional information to ETS relevant to a review of the questioned scores. Having been unsuccessful in persuading ETS to alter its determination, the Dalton family instituted this action to compel the release of the scores obtained by Brian at the November 2, 1991 SAT examination.

HISTORY OF PROCEEDINGS

Peter Dalton, (Plaintiff), as parent and natural guardian of Brian originally commenced a special proceeding to compel ETS to release the SAT results of Brian to the colleges and universities of his selection for the examination administered on November 2, 1991. ETS cross-moved to convert the special proceedings into an action at law and upon conversion, for summary judgment dismissing the complaint. By order dated March 9, 1992 ETS' motion was granted solely to the extent of converting the special proceeding into an action of law. The petition was deemed a complaint alleging a cause of action for specific performance of a contract and summary judgment was denied on the ground of the existence of a triable issue of fact with respect to defendant's good faith in the discharge of its contractual obligations. ETS' motion for a stay pending determination of its appeal of the order denying summary judgment was denied by the Appellate Division. (Matter of Dalton [Educational Testing Service], 2nd Dept., NYLJ April 15, 1992 p 25, c 6.)

Plaintiff was subsequently granted leave to amend the complaint to allege additional

                causes of action for money damages, to be tried separately from the original cause of action.   Upon the completion of disclosure, an expedited non-jury trial of the first cause of action was afforded the parties.   The trial proceeded over a period of twelve days.   The parties presented twenty-five witnesses, sixteen for the plaintiff and nine for ETS, whose testimony occupied more than two thousand pages of transcript
                

CONTENTIONS IN SUMMARY

Plaintiff argues that ETS was contractually obligated to conduct a fair and thorough investigation when questioning the validity of Brian's scores on the November 2, 1991 SAT examination. He contends that ETS breached its contract by refusing to give proper consideration to the substantial relevant evidence of Brian's presence at the November 2, 1992 SAT examination, by failing to conduct a proper investigation and by relying on inadequate evidence to support its decision to continue questioning the validity of Brian's score.

ETS contends that it has an unqualified right to question the validity of SAT scores that may have been unfairly obtained. It argues that the court's review must be directed, not to a factual inquiry into whether an imposter sat for Brian Dalton at the November 2, 1991 SAT examination or whether the court would have reached the same conclusions as ETS, but rather, solely whether ETS followed the procedures set forth in the SAT Registration Bulletin. ETS contends that its investigation was conducted strictly in accordance with its internal policies and was, therefore, in compliance with its obligations.

RELEVANT FINDINGS IN TRIAL RECORD

ETS is a private, not-for-profit corporation which develops and administers the SAT by arrangement with the College Entrance Examination Board. Students who seek admission to institutions that are members of the College Board must take the SAT as part of the admission process. In the 1990-1991 academic year approximately 2,400,000 students registered to take the SAT and ETS sent scores to over 6,000 colleges. When students like Brian register to take the SAT they "agree to the conditions in the New York State Edition of the Registration Bulletin concerning the administration of the tests and the reporting of scores ..." With respect to the cancellation of scores, the SAT Bulletin provides the following:

"The College Board is obligated to report scores that accurately reflect your performance. For this reason, ETS maintains, on behalf of the College Board, test administration and test security standards designed to assure that all test takers are given the same opportunity to demonstrate their abilities and to prevent any student from gaining an unfair advantage over others because of testing irregularities or misconduct. ETS routinely reviews irregularities and test scores believed to be earned under unusual or questionable circumstances.

ETS reserves the right to cancel any test score if the student engages in misconduct, if there is an administration irregularity, or if ETS believes there is reason to question the score's validity. Before test scores are canceled for misconduct, the student is notified and given an opportunity to provide additional information. When test scores are canceled because of administrative irregularities, such as improper timing or defective materials, the student is given an opportunity to take the test again as soon as possible at the College Board's expense.

When the validity of a test score is questioned because it may have been obtained unfairly, ETS notifies the test taker of the reasons for questioning the score and gives him or her an opportunity to provide additional information, to confirm the questioned score by taking the test again, or to authorize ETS to cancel the score and receive a refund of all test fees.

In addition, the test taker can request third-party review of the matter by asking any institution to review the information and make its own decision about accepting a score that may be invalid or by asking that a member of the American The internal procedures employed by ETS in validating SAT scores are centered around the "Test Security Office" (TSO) and the inhouse "Board of Review." Scores are routinely checked for what ETS defines as "large score differences." ETS considers an increase of 250 points in either the verbal or math sections of the SAT or an overall increase of 350 points to constitute a large score difference or "LSD." Where an LSD is found, it is the function of the TSO to open an "investigative brief" or "investigative file" consisting of the questioned test answer sheet, prior answer sheet and the test taker's respective registration forms. A "Test Security Specialist", an employee in the Test Security office, initially reviews the documents for inconsistent handwritings and initiates a computer check comparing the questioned answer sheet with other answer sheets from the same examination room and test center for instances of "unusual agreement", or suspected cheating. As a matter of ETS policy, if no unusual agreement or disparate handwriting is found, the security office clears the scores and the review proceeds no further. In terms of actual cases, however, of the approximately 416 cases involving large score differences arising in the academic year of November 1990 through June 1991, approximately 400 of these scores were ultimately canceled by ETS.

                Arbitration Association arbitrate ETS' action in accordance with ETS procedures established for this purpose.   Special exceptions and additional details of the procedures for questioning scores and for third-party reviews are available on request."
                

In Brian's case the "unusual agreement" check produced negative results but the test security specialist involved, while not formally trained in handwriting analysis, formed a "doubtful opinion" about the handwriting on Brian's second SAT answer sheet. As a result, the documents were submitted to a handwriting examiner on permanent retainer by ETS who concluded that the May and November exams were not written by the same person. Findings of disparate handwriting are made by regularly...