Martin v. Educational Testing Service, Inc.

• Decision Date: 16 April 1981
• Citation: 431 A.2d 868,179 N.J.Super. 317
• Parties: James L. MARTIN, Plaintiff, v. EDUCATIONAL TESTING SERVICE, INC., Defendant.
• Court: New Jersey Superior Court

Page 317

179 N.J.Super. 317

431 A.2d 868

James L. MARTIN, Plaintiff, v. EDUCATIONAL TESTING SERVICE, INC., Defendant.

Superior Court of New Jersey, Chancery Division Mercer County.

Decided April 16, 1981.

James L. Martin pro se.

William J. Brennan, III, Princeton, for defendant (Smith, Stratton, Wise & Heher, Princeton, attorneys).

DREIER, J. S. C.

The parties to this action are before the court for rehearing of defendant's motion for summary judgment. ¹

Plaintiff, James L. Martin, is an applicant for a Pennsylvania real estate salesman's license. ² After satisfying all the eligibility requirements and paying the examination fees, plaintiff twice sat for the required Real Estate Licensing Examinations (hereafter the "R.E.L.E."), on November 11, 1979 and January 12, 1980. The examinations, administered by defendant Educational Testing Service, Inc. (hereafter "ETS") of Princeton, New Jersey, consisted of a uniform test, administered in all jurisdictions using the R.E.L.E., and a state test, developed in close cooperation with Pennsylvania and reflecting that state's particular real estate law and practice. ³ Both consist of objective, multiple-choice questions. Passing score, established by Pennsylvania, is 75, and a successful candidate for licensure must pass both parts of the examination. Plaintiff passed the uniform portion, but failed the state test twice, first scoring 67 in November 1979 and then 74 in January 1980.

Plaintiff thereafter made oral and written requests to ETS both to regrade his second examination and to send him copies of the state test. ETS informed plaintiff that under the signed "agreement" between the parties ⁴ it was under no obligation to provide plaintiff with the requested information. ETS did regrade plaintiff's second examination by hand and found no grading error.

On May 12, 1980 plaintiff filed a pro se complaint against ETS (1) alleging that ETS wrongfully scored his examination ^4a and (2) requesting copies of the November 10, 1979 and January 12, 1980 examination, as well as plaintiff's and ETS' answers to both examinations for study purposes. Although not stated specifically, it appears from the pleadings that pursuant to the allegation of wrongful scoring plaintiff is requesting this court to rescore his examination and declare that he has passed all requirements for licensure should it be proven that a mistake was made which brought his score below passing level. ⁵ ETS has, among other things, answered that plaintiff's action is barred by the doctrines of waiver and estoppel in that he entered into the alleged "written contract" with ETS (the Bulletin Information) which, as noted earlier, provided that a failing applicant had no right to review the test results. At the initial hearing ETS further argued that the documents sought were protected under the copyright laws, were confidential and constituted trade secrets. ⁶ Relying on these defenses, ETS moved for summary judgment on both of plaintiff's claims.

Plaintiff, in opposition to the motion for summary judgment, contends that he is unable to prove that ETS wrongfully graded his examination because the examination and answers are in the exclusive possession and control of ETS.

I

In deciding the issues in this case, it is first necessary to point out that plaintiff claims two distinct rights: (1) the substantive right to have his test graded accurately and (2) the procedural right to discovery as a means of ascertaining any violation of the substantive right. In the absence of a substantive right deserving of judicial protection, the granting of a procedural right would be meaningless.

A

In Brotspies v. Civil Service Dep't, N.J., 66 N.J.Super. 492, 169 A.2d 484 (App.Div.1961), applicants for a New Jersey Civil Service position challenged, among other matters, the grading of particular questions on an objective, multiple-choice promotional examination alleging that the answers considered correct by the Department were, in fact, incorrect. On that issue the court said:

We have carefully reviewed the questions and answers considered correct by the respondent Department, as well as those claimed to be correct by plaintiffs' consensus. We perceive no reason for judicial intervention ... The answers considered correct by (respondent) ... have not been shown to be unreasonable or implausible. We are persuaded that respondent exercised a reasonable administrative judgment in finding its answers more appropriate than those for which plaintiffs contend. (at 498-499, 169 A.2d 484)

Although not directly addressed, it is implicit in the court's holding that had the answers been clearly incorrect there would be cause for judicial intervention. By clear implication, plaintiffs had a right to be accurately tested. This conclusion is inescapable on an examination of our law regarding due process.

The United States Supreme Court has held that all examinations designed to test the competence of one seeking a particular position or entry into an occupation or profession must be conducted in a manner which comports with due process. Schware v. Bd. of Examiners, 353 U.S. 232, 238-39, 77 S.Ct. 752, 755-56, 1 L.Ed.2d 796 (1957). It is, of course, elementary that action by the State which is arbitrary and capricious does not comport with due process. ⁷ Douglas v. Noble, 261 U.S. 165, 43 S.Ct. 303, 67 L.Ed. 590 (1923); Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956), reh. den. 351 U.S. 944, 76 S.Ct. 843, 100 L.Ed. 1470 (1956); Robson v. Rodriquez, 26 N.J. 517, 522, 141 A.2d 1 (1958); State v. Krol, 68 N.J. 236, 344 A.2d 289 (1975).

In Zicherman v. Civil Service Dep't, 40 N.J. 347, 351, 192 A.2d 566 (1963), our Supreme Court indicated that it would uphold the validity of the form and content of an examination where "there is any fair argument in support of the course taken (by the examiners.)" See, also Flanagan v. Civil Service Dep't, 29 N.J. 1, 12, 148 A.2d 14 (1959); Kelly v. Civil Service Comm'n, 37 N.J. 450, 460, 181 A.2d 745 (1962); Artaserse v. Civil Service Dep't, 37 N.J.Super. 98, 117 A.2d 22 (App.Div.1955). Certainly, New Jersey places a heavy burden on one challenging the validity of an examination, but demands a fair argument, i. e., will not uphold an arbitrary and capricious action.

ETS relies on cases which found, among other things, no due process right to examinee review of the grading of bar examination questions. These cases are distinguishable on the nature of the examination alone. In Tyler v. Vickery, 517 F.2d 1089 (5 Cir. 1975), and Whitfield v. Illinois Bd. of Law Examiners, 504 F.2d 474 (7 Cir. 1974), applicants to the state bar challenged the correctness of subjective grading of essay examinations. In deciding that the type of review sought by plaintiffs was not necessary to due process, both courts stressed the subjective nature of the examinations involved. The courts indicated that correctness was elusive and that the burden on examiners of having to defend their evaluations of questions was great. Whitfield at 478; Tyler at 1102, 1105. ⁸

In the context before this court no subjective element enters as to the grader's evaluation of the R.E.L.E. (as opposed to the formulation of the question). As a correlative, there is a less onerous burden on the formulater of objective questions to substantiate his answers, as opposed to that of the essay examiner in substantiating a grade based upon an infinite number of possible responses. Where plaintiff could readily be shown that he was either correct or incorrect in his answer, to fail him for a correct answer would be arbitrary and capricious.

In Bruno v. Kern, 174 Misc. 958, 22 N.Y.S.2d 272 (Sup.Ct.1940), 17 applicants for position in the New York City Civil Service petitioned the Supreme Court to correct the grading of one question on a multiple-choice promotion examination, which examination each had failed by one point. After reviewing the unanimous reports of experts that the question was indeed incorrectly graded, the court granted the petition, stating:

Where the Commission marks as incorrect an answer which is clearly and undoubtedly correct, its action in so doing cannot but be regarded as arbitrary, whimsical or capricious; and as such it is subject to judicial review. (22 N.Y.S.2d at 279)

This court thus finds that plaintiff has a substantive right to be tested fairly and accurately, i. e., to see that the examinations are graded properly and that the ETS grading key is correct.

B

Proceeding from this decision, this court next must determine whether plaintiff has a procedural right to discovery in this matter.

Plaintiff claims that without some form of inspection of the requested documents, he cannot protect his substantive right, and defendant's ex parte assurances that its examination and grading practices are correct are not enough.

Where a party, opposing a motion for summary judgment, is unable to file supporting affidavits because the critical facts are peculiarly within the moving party's knowledge, the motion should be denied until the opposing party has had an opportunity to complete discovery. Bilotti v. Accurate Financing Forming Corp., 39 N.J. 184, 206, 188 A.2d 24 (1963); R. 4:46-5(a). This principle has been applied to discovery issues related to the grading of state administered examinations. In Parrish v. Alabama State Bar Bd. of Commr's, 533 F.2d 942 (5 Cir. 1976), a black lawyers association and eight individual plaintiffs brought a class action against the Board, claiming discriminatory policies and practices governing admission to the Alabama Bar. The court held that the trial court erred in not requiring production of the bar examination essays and grader's notes, as requested by plaintiffs, before passing on the motion for summary judgment.

Of course, the whole purpose of discovery in a case in which a motion for summary judgment is filed is to give the...