Langston By and Through Langston v. ACT, 88-7719
| Decision Date | 13 December 1989 |
| Docket Number | No. 88-7719,88-7719 |
| Citation | 890 F.2d 380 |
| Parties | , 57 Ed. Law Rep. 373 Terry K. LANGSTON, a minor who sues By and Through his mother and next friend, Patricia LANGSTON, Plaintiff-Appellant, v. ACT a/k/a/ American College Testing Program; Ann York, Vice President of Operations Division of ACT; Dr. Richard Ferguson, Executive Vice President of ACT; Peg Dana, Assistant Vice President ACT Assessment Program, Services, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Hugh A. Locke, Jr., Locke & Locke, Birmingham, Ala., for plaintiff-appellant.
Sally P. Paxton, Fulbright & Jaworski, Carl W. Vogt, Robert A. Burgoyne, Washington, D.C., for defendants-appellees.
N. Lee Cooper, Maynard, Cooper, Frierson & Gale, P.C., Birmingham, Ala., for ACT, Dick Ferguson, Ann York, Peg Dana.
Appeal from the United States District Court for the Northern District of Alabama.
Before JOHNSON and EDMONDSON, Circuit Judges, and PECKHAM *, Senior District Judge.
This case arises on appeal from the district court's grant of summary judgment in favor of the defendant American College Testing Program ("ACT") on August 12, 1988.
Terry Langston ("plaintiff") was an outstanding football player at Gardendale High School in Gardendale, Alabama. He was heavily recruited by many colleges, including the University of Alabama. As part of the college admissions process, plaintiff took the ACT test, a multiple choice college entrance exam that is required for admission to many colleges. The registration booklet for the ACT test contained the following provision:
ACT reserves the right to cancel any test score if it finds reason to believe that the score is invalid due to testing irregularities or student misconduct. When student misconduct may have led to invalid scores, ACT routinely conducts an inquiry. If a student's scores are questioned, the student is informed of the options, including procedures for appeal, that are available.
In June of 1986, plaintiff received a composite score of ten on a scale of one to thirty-five. This score was inadequate to qualify him to play Division I football under National Collegiate Athletic Association ("NCAA") rule Proposition 48. Six months later, in December of 1986, plaintiff retook the test and received a composite score of twenty. This score was adequate to qualify him to play Division I football, and he accepted a scholarship to attend the University of Alabama. By June of 1987 he had enrolled at Alabama and was attending football practice.
ACT's computers automatically flag the test results of any applicant whose score increases by more than 6 points during a twenty-month period. Because plaintiff's score had increased by ten points in 6 months, ACT's computers automatically flagged his test results for further investigation on December 23, 1986. In late January 1987, ACT began an internal audit of plaintiff's December test results. 1
This audit indicated that plaintiff's December results were inconsistent with the results that would be expected for an examinee with plaintiff's self-reported high school grades. ACT therefore went on to compare plaintiff's individual answers on the exam with the answers of those examinees who were sitting near him. ACT relied on the numerical sequencing of the test booklets to determine who was sitting near the plaintiff. 2 Plaintiff's test number was 413620. By reviewing the answers on the tests around the plaintiff, ACT found an unusual similarity between plaintiff's answers and the answers on test number 413619.
Plaintiff's test and test number 413619 had 189 identical responses out of a total of 219 answers on the test. The two tests had identical wrong answers to 70 questions. 3 At this point ACT determined that there was reason to question plaintiff's December 1986 results and, on February 19, 1987, ACT wrote to plaintiff informing him that ACT wished to further investigate his December score.
The letter informed plaintiff of the three reasons why ACT questioned his score: (1) the large jump in performance from June 1986 to December 1986, (2) the discrepancy between the December score of 20 and the expected score for someone with his grade point average, and (3) the similarity between his test answers and those of an examinee sitting near him. The letter presented plaintiff with three options:
Option 1: If you have information that you believe would establish the validity of your 12/86 test scores, ... please provide that information in writing along with any official documentation (e.g., high school transcripts, other test scores, documentation from school officials) to substantiate that information.
Option 2: Retest to confirm your 12/86 scores without additional charge under special arrangement with ACT. If the results from this retest confirm your 12/86 scores, both the 12/86 and the retest scores will remain on file, and no further action will be taken. If the retest scores do not confirm your 12/86 scores, the 12/86 scores will be cancelled and the retest scores will be entered in ACT's records. Your college and scholarship agency choices will be informed that the 12/86 scores should be cancelled. 4
Option 3: Cancel the 12/86 scores and receive a refund of the basic test fee....
The letter also informed Plaintiff of his right to appeal any action taken by ACT as a result of the investigation through arbitration.
Plaintiff took the first alternative. He wrote to ACT denying any wrongdoing and he supplied ACT with several letters written on his behalf. A letter from the exam proctor stated that while the proctor could not swear that no cheating took place at the December exam, he found it very difficult to believe that anyone cheated. Officials from plaintiff's high school also wrote letters on his behalf. 5 The school officials wrote ACT explaining that plaintiff was not motivated to do well on the first test. They explained that in the fall plaintiff realized that his chances of going to college and playing football hinged on his performing well on the test and in school and that since that time plaintiff's grades had improved to the point where they were "quite satisfactory." The officials also stated that plaintiff had done satisfactorily on another standardized test.
At this point, ACT asked to see plaintiff's high school transcript. Plaintiff refused to supply it. Plaintiff's lawyer wrote to ACT that a review of the transcript would "cause interminable delay and exhaustive evidence without relevance." ACT then presented plaintiff with three options: (1) retest at ACT's expense, (2) cancel the scores and receive a refund, or (3) arbitrate. Plaintiff's attorney wrote ACT rejecting both the retest and arbitration, and demanding certification of the December score. 6
On June 1, and again on June 10, 1987, ACT wrote plaintiff's attorney explaining that ACT was cancelling the December score. On June 10, ACT also wrote plaintiff's high school explaining to them that the December score was cancelled and instructing the high school to destroy all copies of the scores. Despite the June 10 cancellation of plaintiff's scores by ACT, plaintiff went on to register at Alabama. Apparently, Alabama did not know about the cancellation when the university accepted plaintiff and relied on the December scores, which his high school had attached to his transcript. When Alabama called ACT to confirm the scores on August 18, 1987, ACT refused to comment. Alabama then declared plaintiff ineligible to play football pursuant to NCAA Proposition 48. Plaintiff did not leave Alabama, but continued to attend classes.
On September 16, 1987, plaintiff sued ACT for breach of contract, for outrageous conduct causing severe emotional distress, and for denial of due process under 42 U.S.C.A. Sec. 1983. Plaintiff later amended the complaint to add libel and slander claims. The complaint asked the district court for a preliminary injunction directing ACT to reinstate his December score. Plaintiff's motion for a preliminary injunction was denied on September 28, 1987. ACT filed a motion for summary judgment along with supporting affidavits on December 15, 1987.
On August 12, 1988, the district court granted summary judgment to ACT on all counts. The district court found that there was no state action to support a claim under section 1983 or under the Fourteenth Amendment. It found that no material issue existed as to whether ACT's actions were so outrageous in character or extreme in degree that they constituted intentional or reckless infliction of emotional distress. The court held that plaintiff's libel and slander claims were untenable because ACT and the high school had a qualified privilege to communicate information regarding the scores and because plaintiff first published the investigation to authorities at his high school.
The district court also granted summary judgment on plaintiff's breach of contract claim. It held that the plain language of the ACT registration booklet reserved to ACT the right to cancel a score in the face of wrongdoing. Under Alabama contract law, the court ruled, the most that ACT was required to show was a good faith basis for its cancellation of the score. The court found no genuine issue of fact concerning the reasonableness of ACT's actions.
In this appeal we consider the district court's grant of summary judgment on plaintiff's constitutional and state law claims. We also consider plaintiff's challenge to the district court's March 29, 1988 discovery order. This Court's review of a grant of summary judgment is plenary. This court must ask whether there is any genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Shipes v. Hanover Ins. Co., 884 F.2d 1357, 1359 (11th Cir.1989); Fed.R.Civ.P. 56. All evidence and...
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