Dalton v. Educational Testing Service

Court and Date: N.Y.S.2d (1995)

Parties: Brian Dalton/test-taker

Peter Dalton/Plaintiff, Brian’s father

Educational Testing Service/Defendant

Relief Requested: Release of Brian’s SAT Score

Legal Theory: Implied Covenant of Good Faith

Facts:

5/91 Brian Dalton(B)took the SAT, administered by ETS

11/91 Brian retook the SAT scoring 410 points higher than he did on the May exam.

B’s score fell within ETS’s large score difference category

Members of the ETS Test Security Board reviewed the May and November answer sheets and found disparate handwriting

The sheets were then submitted to a document examiner who felt separate individuals completed them

Board of Review cancelled B’s 11/91 score

ETS reserved the right to cancel any score

ETS notified B that his score would be cancelled because of disparate handwriting

B presented additional information to the Board including: verification that he had mono during the May exam, diagnostic test results from a preparatory course taken prior to the 11/91 exam that were consistent with his performance on that exam, a statement from an ETS proctor who remembered B being at the 11/91 test, and statements from two students that he was at the test

B provided a document examiner who said the two answer sheets were both authored by B

ETS then got a second document examiner who agreed with the first that the two sheet were filled out by different people

Procedural History:

Peter Dalton brought suit to prohibit ETS from canceling B’s score

The trial court found that ETS failed to make even rudimentary efforts to evaluate or investigate the information furnished by B and that ETS failed to act in good faith in determining the legitimacy of B’s score. ETS thereby breeched in contract. The trial court ordered the release of B’s 11/91 score. The appellate division affirmed.

Issue:

Whether ETS complied with procedures specified in its contract in refusing to release B’s SAT score? More specifically, whether the Board of Review made any effort to consider the relevant information submitted by B?

Rules:

Implicit in all contracts is a covenant of good faith and fair dealing. Where the contract contemplates the exercise of discretion, this pledge includes a promise not act arbitrarily or irrationally.

Reasons:

The contract required ETS to consider any relevant material that B supplied to the Board; however, ETS maintains that B’s information was irrelevant because the issue was the disparate handwriting.

Holding:

B is entitled to ETS giving good faith consideration to the material that he submitted, but the court cannot force the release of his score. The Appellate Division order is modified in accordance with this opinion.