IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30425
Summary Calendar
KERRY JOSEPH MURRAY,
Plaintiff-Appellant,
versus
EDUCATIONAL TESTING SERVICE,
Defendant-Appellee.
Appeal from the United States District Court for the
Middle District of Louisiana
April 6, 1999
Before GARWOOD, JONES and BARKSDALE, Circuit Judges.
GARWOOD, Circuit Judge:
This case involves a contractual dispute between plaintiff-
appellant Kerry Murray (Murray) and defendant-appellee Educational
Testing Service (ETS), the administrator of the Scholastic Aptitude
Test (SAT). Based on the undisputed facts, the district court
granted summary judgment in favor of ETS. We affirm.
Facts and Proceedings Below
ETS is a non-profit educational organization that administers
the SAT I: Reasoning Test (SAT I). The SAT I is a multiple-choice
test designed to provide students and colleges with a uniform
measure of verbal and mathematical reasoning abilities. Many
colleges and universities require students to take the SAT I, and
use the students’ SAT I scores as a factor in determining college
admissions.
The SAT I is divided into seven sections. Scores are reported
on six sections, three verbal and three math. These scores are
calculated to achieve separate verbal and math scores, which are
then added together to create a combined, or total, score. The
seventh “variable” section contains new questions that require
pretesting before they can officially be used. Scores on the
variable section are not reported. The variable sections vary
among test books.
The ETS maintains procedures to ensure that test score are
accurate and not the result of “testing irregularities or
misconduct.” The SAT I registration bulletin (bulletin), which all
students must sign before taking the test, clearly states ETS’s
policy of reviewing irregular scores and explicitly reserves ETS’s
right to withhold any score which it has reason to believe was the
result of misconduct.1 The bulletin also outlines procedures which
1
“The College Board is obligated to report scores
that accurately reflect your performance. For this
reason, ETS maintains, on behalf of the College Board,
test administration and test security standards designed
to assure that all test takers are given the same
opportunity to demonstrate their abilities and to prevent
any student from gaining an unfair advantage over others
2
ETS follows in the case of a questionable score.2
ETS regularly reviews test takers’ scores and compares those
to any scores that test taker received on a previous SAT I test.
When ETS finds a large score increase, it further examines the
student’s score sheet to determine whether misconduct may have
occurred. ETS defines a large score increase as a 250-point
increase in either the verbal or math section, or a 350-point total
score increase.3
because of testing irregularities or misconduct. ETS
routinely reviews irregularities and test scores believed
to be earned under unusual or questionable circumstances.
ETS reserves the right to cancel any test score if
there is an apparent discrepancy in photo identification,
if the student engages in misconduct, if there is a
testing irregularity, of if ETS believes there is a
reason to question the score’s validity.”
2
“When the validity of a test score is questioned
because it may have been obtained unfairly, ETS notifies
the test taker of the reasons for questioning the score
and gives the student an opportunity to provide
additional information, to confirm the questioned score
by taking the test again . . ., or to authorize ETS to
cancel the score and receive a refund of all test fees.
In addition, the test taker can request third-party
review of the matter by asking any score recipient to
review the information and make its own decision about
accepting a score that may be invalid or by asking that
a member of the American Arbitration Association
arbitrate ETS’s action in accordance with ETS procedures
established for this purpose . . . .”
3
The highest possible combined score is 1600. In 1995, ETS
conducted a statistical analysis of students who took the SAT as
juniors in the spring of 1995 and again as seniors in the fall of
1995. On average, those students increased their scores by 14
points in both the verbal and math sections—for a total increase of
3
Murray was a student at McKinley Senior High School in Baton
Rouge, Louisiana, who had been promised a basketball scholarship by
the University of Texas-El Paso. In order to receive the
scholarship, Murray was required to achieve a minimum combined
score of 820 (on a scale of 200 to 1600) on the SAT I. Murray took
the SAT I on March 26, 1996, and achieved a combined score of 700.
Because he failed to achieve the required score of 820, Murray
enrolled in “Testbusters,” a four-week course designed to raise SAT
I scores. On June 1, 1996, Murray retook the SAT I. This time,
Murray achieved a combined score of 1300.
The large score difference between Murray’s March 26 and June
1 exam caused ETS to closely examine Murray’s scores. Following
standard review procedure, ETS conducted a computer analysis
comparing Murray’s June 1, 1996, answer sheets to those of other
students who took the SAT I at the same time and location. The
analysis revealed an unusual correspondence between Murray’s answer
sheet and that of another test-taker (test-taker B). According to
statistical analysis, the number of Murray’s incorrect answers
matching test-taker B’s incorrect answers could be expected to
occur only three times in comparing one hundred million pairs of
answer sheets. ETS also conducted an “erasure analysis,” which
28 points. Only 0.4% of those students improved their scores by
150 points on either section. Of the 1,772 students scoring 700
(combined) on the spring 1995 test, only six received combined
scores over 1,000 on the fall 1995 test. The highest of those
scores was 1130.
4
showed a substantial number of erasure marks on Murray’s answer
sheet where answers apparently had been changed to match answers on
test-taker B’s answer sheet. Further, ETS compared Murray’s
answers on the variable section of the test to test-taker B’s
answers on the variable section. Although the respective variable
sections of the two tests were different, Murray’s responses to
thirteen of the fifteen questions on that section matched test-
taker B’s responses. While test-taker B answered all fifteen
questions correctly on the variable section, only three of Murray’s
responses were correct. Based on this information, ETS referred
Murray’s scores to a Board of Review for investigation. The Board
of Review determined that ETS should continue to withhold Murray’s
scores. Upon further investigation, the Board of Review learned
that test-taker B was seated diagonally in front of Murray during
the test.
On August 22, 1996, ETS informed Murray that an investigation
of his June 1996 scores revealed substantial evidence supporting
cancellation of his scores. ETS informed Murray that, as described
in the bulletin, Murray could provide ETS with information
supporting the validity of his scores, retake the test, ask ETS to
cancel the scores and obtain a refund, or request third-party
review.
Murray provided ETS with a letter from his mother, academic
records, and a letter stating that he had enrolled in the
Testbusters course between the March 26 and June 1 test dates. On
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September 20, 1996, ETS informed Murray that despite the additional
evidence, the Board of Review still believed it had substantial
evidence to warrant canceling Murray’s scores. ETS informed Murray
of his right to retake the test, cancel the scores and obtain a
refund, or seek third party review.
Murray requested information about arbitration, but ultimately
decided to take the test again. Murray took the SAT I again on
November 8, 1996. His combined score was 800 (420 verbal and 380
math). On November 21, 1996, ETS informed Murray that the retest
did not confirm the validity of his June 1, 1996, scores, and those
scores would be canceled if Murray did nothing further.
ETS notified Murray of his remaining rights, including
canceling the scores and obtaining a refund, asking any college,
university, or agency to independently review his file, or
arbitration. ETS also informed Murray of his right to seek
judicial review. Murray filed suit in federal court, alleging that
ETS breached its contract with Murray by failing to release the
June 1, 1996, scores.4
Discussion
This Court reviews a summary judgment de novo, applying the
same standards as the district court. Merritt-Campbell, Inc. v.
4
Murray also alleged a purported claim under 42 U.S.C. § 1983
for deprivation of his civil rights without due process of law.
The district court dismissed that claim for lack of state action.
Murray does not challenge that ruling on appeal.
6
RXP Products, Inc., 164 F.3d 957, 961 (5th Cir. 1999). Summary
judgment is proper where the moving party demonstrates “that there
is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Celotex Corp.
v. Catrett, 106 S.Ct. 2548, 2552 (1986), quoting Fed. R. Civ. P.
56(c). Once the moving party has identified material facts not in
genuine dispute, the nonmovant must come forward with or identify
in the record summary judgment evidence sufficient to sustain a
finding in its favor respecting such of those facts as to which it
bears the trial burden of proof. Smith v. Brenoettsy, 158 F.3d
908, 911 (5th Cir. 1998).
No genuine issue of material fact exists as to whether ETS
breached its contract with Murray. ETS’s contract with Murray
clearly and explicitly reserved to ETS the right to withhold any
scores ETS had reason to believe were not valid. The only
contractual duty ETS owed to Murray was to investigate the validity
of Murray’s scores in good faith. See Pogo Producing Co. v. Shell
Offshore Oil, Inc., 898 F.2d 1064, 1067 (5th Cir. 1990) (“Louisiana
law imposes upon contracting parties the obligation to perform
contracts in good faith.”) (citing La. Civ. Code arts. 1759,
1983.). See also Johnson v. Educational Testing Service, 754 F.2d
20, 26 (1st Cir. 1985) (Massachusetts law requires ETS to
investigate scores in good faith).
ETS fulfilled that duty by allowing Murray to present evidence
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supporting his scores, informing Murray of his right to seek
independent review, and ultimately allowing Murray to retake the
test. See Langston v. ACT, 890 F.2d 380 (11th Cir. 1989) (testing
agency fulfilled contractual duty by faithfully investigating
questionable test score, allowing plaintiff to retake test, and
offering to submit to arbitration); Johnson, 754 F.2d at 26
(consulting handwriting expert, providing plaintiff opportunity to
be heard, and offering retest were evidence of good faith).
Several courts, including this one, have recognized the
importance of allowing ETS to assure itself of the validity of
students’ scores through internal review procedures. ETS provides
a valuable service to colleges and universities by providing a
standardized measure of students’ ability. See, e.g., Crow v.
Educational Testing Service, Civ. No. 80-1865, 1982 U.S. Dist.
LEXIS 18191 (W.D. La. 1982) (recognizing “the valuable service
performed by ETS and its obligations and duties to the [schools] to
accurately predict the aptitude of candidates.”), aff’d, 703 F.2d
556 (5th Cir. 1983) (table); K.D. v. Educational Testing Service,
386 N.Y.2d 747, 752 (N.Y. Sup. Ct. 1976) (“To the extent that [ETS]
can accurately predict the aptitude of a candidate . . . by means
of its test results, it performs a highly valuable service not only
to the [schools] but to the public as well.”). Accordingly, ETS
has an obligation to provide, or use its best efforts to provide,
only valid scores to the colleges and universities that rely on
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ETS’s services. Id. Moreover, ETS has the right to protect its
own reputation by assuring the reliability of the information it
provides. See, e.g., Scott v. Educational Testing Service, 600
A.2d 500, 504 (N.J. Sup. Ct. App. Div. 1991) (“ETS has an interest
in assuring the accuracy of the test results it reports and the
predictions it thereby makes.”); K.D., 386 N.Y.2d at 752 (“[T]he
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 . . . schools. Thus, if defendant reasonably
believed that the tests scores . . . did not accurately reflect
[the plaintiff’s] aptitude . . ., it acted within its right to
protect its own image . . . in cancelling plaintiff’s scores and
requiring him to take a retest.”). Finally, “[t]he other test-
takers are entitled to assurance that no examinee enjoys an unfair
advantage in scoring.” Scott, 600 A.2d at 504. In this
case, ETS dutifully fulfilled its contract with Murray by following
established procedures for determining the validity of questionable
scores. ETS provided the district court with substantial evidence
regarding its reasons for questioning Murray’s scores and the
procedures it followed to determine whether Murray’s score should
be withheld. Moreover, ETS provided the district court with copies
of its policies and procedures, as well as the testing agreement
which every student must sign before taking the SAT I.
On appeal, Murray raises only mistaken claims of district
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court confusion5 and conclusory accusations of breach of contract.
Murray has presented no summary judgment evidence disputing that
ETS had grounds to doubt Murray’s scores or that ETS failed to
pursue Murray’s case in good faith and, indeed, reasonably. As all
of the aforementioned facts remain uncontested, there is no genuine
dispute as to material facts. Summary judgment was properly
granted and the judgment of the district court is
AFFIRMED.
5
Murray accuses the lower court of “confusing the issues”
and applying an improper standard of review by ruling on ETS’s
alternative motion to dismiss or for summary judgment. However,
the district court explicitly stated that it was granting the
motion on summary judgment grounds.
Murray also claims that the district court improperly
considered the merits of the claim by noting that ETS had
substantial reason to question Murray’s scores. Here, the district
court was merely noting that ETS had fulfilled its obligation under
the contract. The court was not, as Murray suggests, offering an
opinion as to whether Murray had actually cheated on the test. See
Crow v. Educational Testing Service, Civ. No. 80-1865, 1982 U.S.
Dist. LEXIS 18191 (W.D. La. 1982) (“The issue before this court is
not whether or not [plaintiff] cheated on the test; the issue is
whether or not ETS could refuse to release the score.”), aff’d 703
F.2d 556 (5th Cir. 1983) (table).
10