Russo v. Ncs Pearson, Inc.
| Decision Date | 09 November 2006 |
| Docket Number | Civ. No. 06-1481 (JNE/SRN). |
| Citation | 462 F.Supp.2d 981 |
| Parties | Felix RUSSO, as parent and natural guardian of John Doe 1, a minor, Steve DeLillo, as parent and natural guardian of Jake DeLillo, a minor, Shane Fulton and Caleigh Sawicki on behalf of themselves and all others similarly situated, Plaintiffs, v. NCS PEARSON, INC., d/b/a Pearson Educational Measurement, and College Entrance Examination Board, d/b/a The College Board, Defendants. |
| Court | U.S. District Court — District of Minnesota |
T. Joseph Snodgrass, Esq., and Shawn M. Raiter, Esq., Larson King LLP, St. Paul, MN, and J. Gordon Rudd, Esq., Zimmerman Reed, PLLP, appeared for Plaintiffs Felix Russo, as parent and natural guardian of John Doe 1, a minor, Steve DeLillo, as parent and natural guardian of Jake DeLillo, a minor, Shane Fulton and Caleigh Sawicki on behalf of themselves and all others similarly situated.
Stephen P. Lucke, Esq., and William R. Stoeri, Esq., Dorsey & Whitney LLP, Minneapolis, MN, appeared for Defendant NCS Pearson, Inc., d/b/a Pearson Educational Measurement.
A. Stephen Hut, Jr., Esq., Bruce M. Berman, Esq., and Jonathan E. Paikin, Esq., Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC, and Robert R. Weinstine, Esq., Winthrop & Weinstine, P.A., appeared for Defendant College Entrance Examination Board, d/b/a The College Board.
Plaintiffs are citizens of New York, Massachusetts, and Pennsylvania who have sued the College Entrance Examination Board (College Board) and NCS Pearson, Inc. (NCSP) for damages allegedly caused by Defendants' incorrect scoring and reporting of the October 2005 Scholastic Aptitude Reasoning Test (SAT). The College Board administers the SAT and has retained NCSP to scan the SAT answer sheets. The case is before the Court on Plaintiffs' motion for preliminary injunctive relief. In essence, Plaintiffs request that the reported scores of 613 students be reduced and re-reported. Plaintiffs allege that the scores of these 613 students were incorrectly reported as too high after the initial scanning and scoring of the October 2005 SAT and that subsequent scanning indicated that these students merited scores that were lower than reported. Also before the Court are Defendants' motions to dismiss certain counts of the complaint for failure to state a claim upon which relief can be granted. For the reasons set forth below, the Court denies Plaintiffs' motion for a preliminary injunction, and grants in part and denies in part the motions to dismiss by the College Board and NCSP.
Plaintiffs are students, or parents and guardians suing on behalf of students, who took the October 2005 SAT. Felix Russo is a New York citizen and brings this case on behalf of John Doe, a minor, as his parent and guardian. Steve DeLillo is also a citizen of New York and brings this case on behalf of Jake DeLillo, a minor, as his parent and guardian. Caleigh Sawicki and Shane Fulton are citizens of Massachusetts and Pennsylvania, respectively. Plaintiffs registered for the SAT by paying a test fee to the College Board. The fee was paid either online or by mail, through registration forms contained in a printed SAT Registration Booklet. The Registration Booklet states that the "SAT Program's policies for testing are designed to give every student an equal opportunity to demonstrate college readiness and to prevent anyone from gaining an unfair advantage."
Founded in 1900, the College Board is a national not-for-profit association headquartered in New York. The College Board sponsors the SAT, which is an examination widely used as part of the admissions process by many colleges and universities. A new version of the SAT was developed and first administered by the College Board in March 2005. The new version contains three sections: Critical Reasoning, Math, and Writing. Each section is scored on a scale from 200 to 800; the highest possible combined score is 2400. To determine the score, a raw score is first calculated based on the number of points earned for correctly answered questions minus a calculated fraction for each question answered incorrectly. Through a statistical process called equating, the raw scores are then converted to scaled scores, which are reported on a 200 to 800 scale in ten point intervals. The College Board uses the equating process to ensure that, within reasonable statistical certainty, a reported score reflects the same level of achievement on the exam irrespective of the edition of the SAT a test taker took and the level of ability of the group of students tested at that particular administration. In other words, equating makes it possible to make reasonable and fair comparisons among test takers without regard to the edition of the SAT used or when the exam was administered. Educational Testing Service (ETS) provides psychometric support services, including equating, to the College Board. ETS performed the initial equating and scaling conversion for the October 2005 SAT as part of its normal procedures in connection with that administration.
The SAT contains an essay question and multiple-choice questions that test takers answer by filling in "bubbles" on an answer sheet. To scan the SAT answer sheets, the College Board retained NCSP a Minnesota corporation. Under a Services Agreement between NCSP and the College Board, NCSP began scanning the SAT answer sheets with the March 2005 administration of the exam. According to NCSP, its role is limited to scanning the answer sheets and reporting the raw data on the answer sheets to the College Board or its designees. NCSP asserts that it does not know which answers the College Board considers to be correct, does not tabulate the raw score, has no role in converting the raw scores to a scaled score, and does not report scores to students.
After receiving requests from two test takers to hand score their exams in December 2005, the College Board learned of scoring issues related to the October 2005 administration of the SAT. In February 2006, the College Board asked NCSP to investigate the cause and scope of the scoring issues. NCSP ultimately rescanned all of the approximately 495,000 answer sheets from the October 2005 exam. As a result of the rescanning process, it was determined that 4,411 test takers received initial scores that were too low. The majority of these scores were understated by less than 100 points on the SAT's 2400-point scale. Approximately 83 percent of the understated scores were too low by no more than 40 points; less than 5 percent were understated by more than 100 points; ten scores were understated by more than 300 points too low. All of the named Plaintiffs received scores that initially were understated, but were re-reported before the close of the college admissions season. The College Board refunded all test fees paid by test takers whose scores were initially underreported.
The College Board also asked ETS to prepare a second equating and scaling conversion for the October 2005 test. According to ETS, the second conversion yielded virtually identical results to the original conversion. The only difference appeared in the Writing section, where a raw score of twenty-five converted to a scaled score of 490, as opposed to a score of 500 in the initial conversion.
The rescanning process also revealed that 613 students received scores that were higher than they should have been. According to the College Board, 550 of the 613 test takers had scores that were overstated by only ten points, fifty-eight had scores that were overstated by twenty points, three had a thirty-point difference, one had a forty-point difference, and one had a fifty-point difference. The College Board decided not to re-report any score changes that decreased a test taker's score, rationalizing that penalizing test takers for factors beyond their control would be unfair.
Plaintiffs have filed a fifteen-count amended complaint alleging: (1) negligence and strict liability against NCSP and the College Board; (2) defamation against NCSP and the College Board; (3) breach of contract for damages against the College Board; (4) breach of contract for injunctive relief against the College Board; (5) breach of contract for damages against NCSP; (6) breach of contract for injunctive relief against NCSP; (7) breach of the implied warranty of merchantability against the College Board; (8) breach of the implied warranty of fitness for a particular purpose against the College Board; (9) breach of express warranties against the College Board; (10) breach of the implied warranty of merchantability against NCSP; (11) breach of the implied warranty of fitness for a particular purpose against NCSP; (12) breach of express warranties against NCSP; (13) violation of the Magnuson-Moss Warranty Act against NCSP and the College Board; (14) violation of the Minnesota false advertising and prevention of consumer fraud statutes against NCSP; and (15) violation of the New York consumer protection statutes against the College Board.
Plaintiffs seek a preliminary injunction ordering the College Board (1) to readjust or reduce the actual scores of the students who took the October 2005 administration of the SAT, and who received an improperly overstated or inflated score due to scanning and scoring errors, and. (2) to reissue and report the corrected scores of all students who were improperly overscored to the students and institutions to which the students or the College Board reported the incorrect SAT scores.
Injunctive relief may be granted only if the moving party can demonstrate: (1) a likelihood of success on the merits; (2) the movant will suffer irreparable harm absent the restraining order; (3) the balance of harms favors the movant; and (4) the public...
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