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K. D. v. Educational Testing Service
87 Misc. 2d 657, 386 N.Y.S.2d 747 (Sup. Ct. N.Y. 1976)
Fraiman
This is a motion to dismiss the complaint, pursuant to CPLR 3211 (subd
[a], pars 1, 7; subd [c]) on the grounds that there is a defense founded upon documentary
evidence and that the complaint fails to state a cause of action.
Plaintiff is a 37-year-old college graduate, having entered college at
the age of 32. Seeking to attend law school, he took the Law School Admission Test (LSAT)
twice within a four-month period in 1973-1974. Defendant is a nonprofit corporation
engaged in the business of preparing and administering various well-known educational
tests, including the LSAT, for use by colleges and graduate schools throughout the nation.
It has administered the LSAT since 1954. The LSAT is an objective test designed to measure
general aptitude for the study of law of candidates seeking admission to law school. It
consists of approximately 130 so-called multiple choice questions and it also has a
section of about 70 questions of a similar nature designed to test writing ability.
Defendant administers the LSAT for the Law School Admissions Council (LSAC), a nonprofit
membership association of graduate schools of law. The LSAC sets policy for administration
of the examinations and the reporting of scores.
Test scores play an important role in determining whether a candidate
will be admitted to law school. To insure that they accurately reflect the candidate's own
effort, the administration of the tests is carefully monitored, and after they are scored,
individual scores are checked by computer against any previous scores by the same
candidate. Where an increase of more than 150 points (out of a total of 800) is found,
defendant conducts an investigation before the candidate's score is reported to the law
schools.
Each candidate who applies to take the LSAT is sent a booklet entitled
"Law School Admissions Bulletin" and a registration form. Upon receipt of the
completed form, defendant sends the candidate an admission card to take the examination on
a specified date at a designated testing center. The registration form requires the
applicant to write out in longhand the following statement and to sign it: "I accept
the conditions set forth in the Bulletin concerning the administration of the test and the
reporting of information to law schools." Plaintiff took the examination in December,
1973 and again in April, 1974. Before each examination, he was sent a copy of the bulletin
and completed in his own handwriting the statement above on his registration forms. The
bulletins received by plaintiff each contained the following language under the heading
"Scores Cancelled by ETS":
"We are concerned with reporting only valid scores. On rare
occasions, misconduct * * * or circumstances beyond the candidate's control * * * may
render scores invalid. If doubts are raised about your score because of these or other
circumstances, we will expect you to cooperate in our investigation. We reserve the right
to cancel any test score if, in our sole opinion, there is adequate reason to question its
validity. Before exercising this right, we will offer you an opportunity to take the
test again at no additional fee.
"If we cancel a score, we will notify the law schools that
received, or were to receive, the scores as well as the schools receiving subsequent
reports."
On his December, 1973 examination plaintiff received a score of 399 on
the LSAT portion and 26 on the writing ability portion. His April, 1974 LSAT score was
637, or 238 points higher, and his writing ability score was 62. The 238-point discrepancy
between the two LSAT scores prompted an investigation by defendant which disclosed
striking similarities between plaintiff's answers and the answers of one "KL,"
the candidate seated adjacent to plaintiff. Plaintiff answered 39 of the 130 multiple
choice questions on the LSAT portion of the test incorrectly. Of these, 27 were the same
incorrect answers as those selected by KL. The significance of this correlation is made
evident from an analysis by defendant of the answer sheets of 10 other candidates taking
the same LSAT who obtained scores in the same range as plaintiff and KL. Comparing their
incorrect answers with plaintiff's, discloses that, on average, there were only seven
incorrect responses identical to plaintiff's. Of the 10 other answer sheets analyzed, the
most incorrect responses on any one answer sheet which were identical to those of
plaintiff was 11. A comparison and analysis of plaintiff's writing ability answer sheet
with KL's and the 10 other candidates disclosed a similar result. fn
On the basis of the foregoing, defendant wrote to plaintiff requesting
that he furnish any information which he believed was relevant to his questioned scores.
In addition, he was offered an opportunity to take the examination again at a regularly
scheduled time at no cost. If he elected to do so, and his retest score came within 50
points of the questioned score, defendant stated that the questioned score would be
forwarded to the law schools. On the other hand, if the retest score failed to confirm the
questioned score, or if plaintiff refused to take the retest, defendant indicated that it
would cancel the questioned score and notify the law schools that plaintiff's score was
canceled "due to serious doubt as to [its] authenticity."
In response to this letter, plaintiff submitted a sworn statement that
he did not cheat on the examination. However, he refused to take a retest. He then
commenced the instant action for a declaratory judgment and an injunction restraining
defendant from canceling his April, 1974 test score; from notifying the law schools that
this action was taken because of the score's doubtful authenticity; and compelling
defendant to report the April, 1974 score to the law schools as a valid score.
In support of its motion to dismiss the complaint, defendant alleges
that plaintiff is barred by the contract he entered into when he agreed on his
registration forms to accept the conditions set forth in the bulletin concerning the
administration of the test and the reporting of results to the law schools. Defendant
contends that its actions are in full accord with the following provisions in the
bulletin: "We reserve the right to cancel any test score if, in our sole opinion,
there is adequate reason to question its validity. * * * If we cancel a score, we will
notify the law schools that * * * were to receive the score".
. . .
Plaintiff, in opposition to the motion, contends that the agreement
relied upon by defendant is void as a contract of adhesion. . . . .
We turn now to a consideration of that portion of the injunctive relief
sought by plaintiff wherein he seeks to restrain defendant from canceling his April, 1974
test scores and to compel it to forward the scores to the law schools. As noted above, the
right to cancel any test score if in its opinion there was adequate reason to question its
validity was expressly reserved to itself by defendant in the bulletin, and plaintiff
accepted that as well as all other conditions set forth in the bulletin when he completed
his registration form. Nevertheless, plaintiff contends that he is not bound by his
agreement, because, he argues, his contract with defendant is a contract of adhesion, and
therefore void. A contract of adhesion is one entered into between parties with unequal
bargaining power. They are typically standard contracts which are offered by the party
with strong bargaining power to the weaker party on a take it or leave it basis. The
instant agreement would appear to fit this description. Almost every accredited law school
in the United States requires a candidate for admission to take the LSAT. Thus, when
plaintiff decided to attend law school he had no alternative but to accept the standard
conditions fixed by defendant for all test takers. Plaintiff could neither contract with a
party other than defendant to take a law school aptitude test, since no such entity
exists, nor indicate to defendant that the terms contained in the bulletin were not
acceptable to him. In the latter case it is clear that if he had done so he would not have
been permitted to take the examination.
However, while plaintiff's description of the agreement herein as a
contract of adhesion may be justified, his conclusion that it is therefore void, is not.
Where the court finds that an agreement is a contract of adhesion, effort will frequently
be made to protect the weaker party from the agreement's harsher terms by a variety of
pretexts, while still keeping the elementary rules of the law of contracts intact.
The court may, for example, find the obnoxious clause "ambiguous", even where no
ambiguity exists, and then construe it against its author; or it may find the clause to be
against public policy and declare it unenforceable; or finally, the court may hold that
although the offending clause prohibits a recovery by plaintiff ex contractu, it does not
prohibit a recovery in tort.
Thus, the issue in the instant case is whether the clause reserving to
defendant itself the right to cancel plaintiff's test score if there is a question about
its validity, and requiring him to take a retest in such event, is so unfair and
unreasonable that the court, having found it a part of a contract of adhesion, will
disregard it by means of one or more of the pretexts above. The issue as thus stated must
be answered in the negative. To the extent that defendant can accurately predict the
aptitude of a candidate for law school by means of its test results, it performs a highly
valuable service not only to the law schools but to the public as well. Moreover, the
accuracy of its predictions is defendant's sole stock in trade. The less accurate as a
forecaster its tests are, the less value they have to the law schools. Thus, if defendant
reasonably believed that the test scores of plaintiff as scored on the April, 1974 test,
did not accurately reflect his aptitude for law school, it acted within its right to
protect its own image as well as its obligation to the schools who are its clients in
canceling plaintiff's scores and requiring him to take a retest. . . .
In the instant case, the evidence that plaintiff did not achieve his
scores on the April, 1974 LSAT unaided was sufficient to justify the action contemplated
by defendant. Moreover, its offer of a free retest under normal testing conditions with
the understanding that it would forward plaintiff's April, 1974 scores if the retest score
came within 50 points of the earlier scores was eminently fair and reasonable under the
circumstances. . . .
For all the foregoing reasons, the motion to dismiss so much of the
complaint as seeks to enjoin defendant from canceling plaintiff's April, 1974 test scores,
and to compel it to forward those scores to the law schools is granted.
[If interested, look at the current policies of ETS on the issue of test irregularities.]