In re Educational Testing Service Praxis Principle

• Decision Date: 29 May 2007
• Docket Number: MDL No. 1643.
• Citation: 517 F.Supp.2d 832
• Parties: In re EDUCATIONAL TESTING SERVICE PRAXIS PRINCIPLES OF LEARNING AND TEACHING: GRADES 7-12 LITIGATION. This Document Relates to the Following Cases: Civil Action Nos. 05-282, 05-2155, 06-6107, and 06-11276.
• Court: U.S. District Court — Eastern District of Louisiana

517 F.Supp.2d 832

In re EDUCATIONAL TESTING SERVICE PRAXIS PRINCIPLES OF LEARNING AND TEACHING: GRADES 7-12 LITIGATION This Document Relates to the Following Cases: Civil Action Nos. 05-282, 05-2155, 06-6107, and 06-11276.

MDL No. 1643.

United States District Court, E.D. Louisiana.

May 29, 2007.

COPYRIGHT MATERIAL OMITTED

Arnold Russell Williams, Singer, LA, pro se.

Philip Hessler, Bethel Park, PA, pro se.

Christopher A. Vallano, Blum, Reiss & Plaitano Law Offices, Mount Pleasant, PA, for Larry Tavlarides.

Wamon C. Buggs, Antioch, TN, pro se.

Megan Seeger, Columbus, OH, pro se.

B. Brad D. Booker, Cincinnati, OH, pro se.

Paul A. Perrea, Cincinnati, OH, pro se.

Mark Joseph Smith, Attorney at Law, for Sarah Hash.

Abdul Halim Ali, Cincinnati, OH, pro se.

A. Stephen Hut, Jr., Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC, Keith M. Pyburn, Jr., Fisher & Phillips, LLP, New Orleans, LA, for Educational Testing Services, Inc.

Patrick A. Juneau, Juneau Law Firm, Lafayette, LA, pro se.

Jeffery N. Luthi, One Columbus Circle, NE, Washington, DC, pro se.

ORDER AND REASONS

SARAH S. VANCE, District Judge.

The defendant, Educational Testing Service, moves to dismiss several of plaintiffs claims. For the following reasons, the Court GRANTS defendant's motion in part and DENIES it in part.

I. FACTUAL BACKGROUND

A. Educational Testing Service

Defendant Educational Testing Service ("ETS") is a not-for-profit corporation organized under the laws of New York, with its principal place of business in Princeton, New Jersey. A major portion of ETS's business consists of designing, administering, and scoring a wide range of standardized educational tests. ETS is the world's largest private educational testing organization, and it administers over 12 million examinations annually.

Among the educational tests that ETS designs, administers and scores are the Praxis Series examinations. The Praxis tests are a series of tests used by many states in the teacher licensing process. Nearly 80 percent of the states that include tests as a part of the teacher licensing process use one or more of the Praxis tests, and passage of some or all of the Praxis tests is required for licensing in 39 states and U.S. jurisdictions. The Praxis tests are administered six times per year, at 650 test centers in all 50 states.

This case concerns only one of the Praxis series of tests — the Praxis Principles of Learning and Teaching: Grades 7-12 (the "PLT: 7-12") test. The PLT: 7-12 consists of both multiple choice and short-answer "constructed response" questions and is designed to evaluate a beginning teacher's knowledge of a variety of material relevant to teaching students in grades seven through twelve. During 2003-2004, 19 states contracted with ETS to use the PLT: 7-12 as part of their teacher licensing process. The PLT: 7-12 is also relevant to colleges, universities and professional organizations as a measure of teaching credentials. Persons who take the PLT: 7-12 can request that ETS report their scores directly to various states, colleges, and universities.

Prospective test-takers contract with ETS to take the PLT: 7-12 by completing a registration form and paying a registration fee. Plaintiffs allege that during 2003 and 2004, the deadline for registering for the next administration of the PLT: 7-12 passed before the individuals who sat for the previous administration of the test received their scores. The result of this practice was that test-takers who failed the test and wished to retake it during the next test administration were forced to pay a $40 late registration fee. For example, a test-taker who took the PLT: 7-12 on December 7, 2004 would be notified of his or her score around February 8, 2005. The next administration of the PLT: 7-12 would be scheduled for March 5, 2005, but the registration deadline for that exam would be February 1, 2005, before those test-takers who sat for the December 2004 administration received their scores. Test-takers who failed the December 2004 administration of the exam and wished to retake it in March 2005 would therefore miss the registration deadline and would be permitted to register for the March 2005 test only if they paid a $40 late registration fee. In April 2004, ETS instituted a policy that test-takers who timely registered for a test before knowing the results of a previous test would receive an automatic refund of the registration fee if they passed the earlier test. Even under this system, test-takers who wish to avoid a late registration fee must provide ETS with additional money up front to account for the possibility that they might fail the exam.

Once ETS scores a test, it sends the score to the test-taker and up to three institutions or agencies designated by the test-taker and that ETS has determined are eligible to receive the scores. ETS does not set the passing score for the PLT: 7-12. Rather, each eligible institution or agency sets its own passing scores. The score report sent to a designated institution includes the test-taker's current score, the highest score the test-taker earned on each test taken over the past ten years, and the passing score information for that particular institution. ETS does not provide the test-taker or any of the test-taker's designated institutions with a copy of the test book or the test-taker's answer sheet.

If a test-taker feels that his or her score has been reported incorrectly, ETS also offers a "score verification service," which allows the test-taker to request that ETS verify that the score received was accurate and consistent with the scoring rules for that exam. ETS charges between $40 and $80 for its score verification service.

Test-takers who fail the PLT: 7-12 and wish to retake the test can sign up for ETS's "Diagnostic Preparation Program." The Diagnostic Preparation Program is designed to provide test-takers with detailed, customized, state-specific feedback about their test performance. Test-takers who sign up for the Diagnostic Preparation Program receive a Diagnostic Feedback Report designed to help them understand their performance on the test, identify their so-called problem areas, and create a study plan to target those areas the next time they take the test. ETS charges between $75 and $175 for the Diagnostic Preparation Program, depending on whether the test is multiple choice, constructed response, or both. ETS does not disclose the test-taker's test book or answer sheets as part of the Diagnostic Preparation Program, nor does it provide any information that reveals the content of the test that was taken.

B. The PLT: 7-12 Scoring Error

Over the course of nine test administrations between January 2003 and April 2004, ETS incorrectly scored the PLT: 7-12. Specifically, when scoring the tests from those nine administrations of the PLT: 7-12, ETS graded the constructive response portion of the exams more stringently than it should have graded them. As a result of this error, each of the approximately 27,000 people who took the PLT: 7-12 during that time period received a score that was lower than it would have been had the exams been properly graded. The scoring error caused at least 4,100 test-takers to receive a "false failure," e., they were notified that they had received a failing score in at least one state in which their score was reported when in fact they should have received a passing score. Although the scoring error affected the reported scores of all of the individuals who took the PLT: 7-12 during that time period, for the remaining 23,000 test-takers, it did not affect whether they received a passing score in the state or states to which their scores were sent.

After a client state questioned ETS about the scoring results for the PLT: 7-12, ETS began an investigation that ultimately led it to discover the scoring error. On or about July 10, 2004, ETS began to notify affected test-takers by telephone and letter that ETS incorrectly told them that they had failed the PLT: 7-12 test when, after rescoring, they had actually passed the test. ETS sent a letter to affected test-takers that read, in pertinent part:

I am writing to inform you that ETS has re-scored your Principles of Teaching and Learning: 7-12 test and that you have achieved a passing score in one or more of the states that you designated as a score recipient.... A copy of your corrected score report is enclosed, and, we will soon mail your revised report to the states you requested. If you took the PLT: 7-12 test multiple times between January 2003 and April 2004, then your scores for each test have been rescored and corrected reports are enclosed for any tests when your passing status changed.

(AMC ¶ 29). Although ETS re-scored the tests of those test-takers who had been told incorrectly that they failed the exam in each of the states to which they had they their score reported, ETS did not rescore the tests of those test-takers whose initially-reported score was sufficient to pass the exam in at least one of the states to which it was reported.

Plaintiffs allege that ETS's scoring error prevented many test-takers who received a false failing score from receiving or from timely receiving their teaching credentials and therefore prevented them from retaining or obtaining employment as certified teachers. The scoring error also allegedly delayed some of those test-takers' completion of bachelor's and/or master's degrees, and it caused some test-takers to abandon teaching and pursue alternate majors and careers. Many of those test-takers also retook the PLT: 7-12 and in the process incurred additional registration fees and test preparation expenses. Further, some test-takers who initially received a passing score in each of the jurisdictions to which their score was reported were allegedly harmed by having artificially low scores reported to states and institutions.

II. PROCEDURAL HISTORY

On December 16, 2004,...