Petition for Writ of Certiorari — Johnson v. Educational Testing Service

wNNCE - Supreme Court, WS.

94-1727 0 PORTED

MAY 1 1985,

No. : ALEXANDER L.

CLERK

STEVAS,

PE

In the

‘Supreme Court of the United States

OcTOBER TERM. 1984

SUSAN E. JOHNSON,

PETITIONER,

U.

EDUCATIONAL TESTING SERVICE.

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Jack R. Pirozzo.o *

Mary JEANNE TUFANO

Wiitcox, PrrozzoLo & McCartHy

PROFESSIONAL CORPORATION

50 Federal Street

Boston, Massachusetts 02110

* Attorney of Recor] (617) 482-5470

Blanchard Press. Inc.. Boston. Mass. — Law Printers [617] 426-669)

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR

HARD COPY AT THE TIME OF FILMING.

IF AND WHEN A BETTER COPY CAN BE

OBTAINED, A NEW FICHE WILL BE

ISSUED.

I

Questions Presented

1. Whether Educational Testing Service is entitled to a rul-

ing as a matter of law that its actions are in good faith when

the validity of its LSAT test to a black female candidate and its

procedures in invalidating test scores are called into issue by

the candidate?

2. Whether Educational Testing Service is entitled to a rul-

ing as a matter of law, when the score received by a black

female candidate on its LSAT exam increased from 317 and 323

to 623, that the 317 and 323 scores were true and accurate in-

dicators of the candidate's ability so as to permit it to draw the

inference that the 623 score was the result of impersonation?

3. Whether Educational Testing Service, as the primary

selector of lawyers and having state involvement at every level

of its structure, is subject to the provisions of 42 U.S.C. § 1983

with respect to its test procedures and procedures regarding

invalidation of test scores as they pertain to the LSAT exam?

4. Whether a black female candidate for the LSAT exam

given by ETS may be deprived of her right to trial by jury

when she raises the issue of ETS’s good faith in administering

and properly scoring the LSAT exam and its good faith in pro-

ceeding to invalidate her score where she submitted facts to

support a finding that such invalidation proceedings were

pretextual and that the intent was to maintain the iliusion that

the LSAT is a reliable predictor of law school performance?

5. Whether a litigant may be denied the right of access to

the court, where a motion for summary judgment which had

been briefed ten years earlier was still pending, by an order

prohibiting the filing of anything other than a twenty page

memorandum?

6. Whether a candidate who has sworn under oath that

she took the alleged questioned LSAT exam should be depriv-

ed of an opportunity to have a jury of her peers judge her

credibility over that of Educational Testing Service? —

7. Whether the court as a matter of law may rule that the

Educational Testing Service program is a good faith predictor

of success in law school?

8. Whether a candidate should be deprived of presenting

to a jury of her peers the fact that she graduated from the

University of California Law School at Berkeley, “Boalt Hall”,

a fact that is more consistent with a score in the range of 600

on the LSAT test than with a score of 300 which ETS main-

tains she scored? (The fact that the candidate's graduation

from Boalt Hall is not in the recerd is because she was not

given an opportunity to make further filings. However, both

the Trial Court and the Court of Appeals were advised orally

that she had graduated from law school at the University of

California at Berkeley.)

9. Whether a pl<ir*’“f was entitled to present to a jury of

her peers the fact, ansong others, that her graduating from the

University of California at Berkeley was inconsistent with the

scores of 317 and 323 and therefore ETS’s administration of

the examination and subsequent action to invalidate her scores

were not in good faith?

TABLE OF CONTENTS

Page

I MI ie 5a wks bes ch dds ohn ocoue nate I

REE Rapes ener ee neha erat nee ae eae ent l

iis ie SG baie g PO ga EU Ee 2

Constitutional and Statutory Provisions and Rules In-

id hs Sis Sub ul ak hie eal 2

ee MOTE IETS SEU: PAA 3

Reasons for Granting the Writ....................... 7

IER iV caved eis cso ceo ck sw eek oss 7

II. The Decision of the First Circuit To Affirm the

District Court’s Termination of Petitioner's

Action Through Summary Judgment Is in Con-

flict With Decisions of This Court........... g

A. The First Circuit’s Decision to Affirm

Summary Judgment on Petitioner's State

Law Claims Is in Conflict With Decisions

eS i ee. ae vive i)

B. The First Circuit’s Decision To Affirm

Summary Judgment on Petitioner's Con-

stitutional Claim Is in Conflict With Deci-

sions of This Court and Other Circuits... 1]

EE CTR TERRE EE Os GRO ee Pe 14

MS 36 cs ka aes Goce eyo ieee A-1

A a pan S RRO Se ST RTS EI Te Wt tT B-1

IT ako 45 he ae reader ee C-1

IV

Tant&® or AuTHOnrTiES

Cases

Page

Anderson v. City of Bessemer City, 53 U.S.L..W. 4314

REE Fy UN G-0% 7. bach beek bh ca liebe chs aaaeks 12

Blum v . Yaretsky, 457 U.S. 991 (1982)... 2.200000 0 2... 13

Board of Education, Island Trees Union Free School

District v. Pico, 457 U.S. 853 (1982)... 2... oe. )

Burton v. Wilmington Parking — 365 U.S. 715

SRI bse ki Se 4a b da 5h 0 Beda ed sys buckan tes 12

Foman v. Davis, 371 U.S. 178 (1962)... 2... 2... 2... §

Gilmore v. Salt Lake Community Action Program, 710

Pe CET TG II, oo cae vk bai vecccseaees 12,13

Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922 (1982) 12

McVarish v. Mid-Nebraska Community Mental Health

Center, 696 F.2d 69 (8th Cir. 1982)................ 13

Milonas v. Williams, 691 F.2d 931 (10th Cir. 1982),

cert. denied, 460 U.S. 1069 (1983)... .. 22... 13

Poller v. Columbia Broadcasting System, 368 U.S. 464

RE i ee ee 9, 11

Rendell-Baker v. Kohn, 457 U.S. 830 (1982)... 2... .. 13

Constitutional and Statutory Provisions

U.S. Constitution, Amendment XIV... .. 2.02.0... 12

U.S. Constitution, Amendment VII.................. 1]

ee ee Is oc ees oa k4 dod wks bie 12

Rules

Federal Rules of Civil Procedure,

PE lc CaN bwon conn thick asics cues Ss

Rule 56... .. big -w-0 deel ekid bet Wk Cot awd eee 3)

In the |

Supreme Court of the United States

Ocronen Term, 1984

No.

SUSAN E. JOHNSON,

PETITIONER,

v.

EDUCATIONAL TESTING SERVICE,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

To THe Honorasce Tue Cuter Justice AND AssociaTE JUSTICES

or THE SupreMeE Court or THE UNtrep StaTeEs:

Susan E. Johnson, your petitioner, prays that this Court

issue a writ of certiorari to review the judgment cf the United

States Court of Appeals for the First Circuit in the case of

Susan E. Johnson v. Educational Testing Service, No.

84-1597.

Opinions Below

The opinion of the United States Court of Appeals for the

First Circuit, dated January 31, 1985, not yet reported, is set

forth in Appendix A. The unreported Judgment and Memo-

randum of Decision of the United States District Court for

einen

the District of Massachusetts, dated June 8, 1984, is set forth in

Appendix B. The judgment entered by the United States Court

of Appeals for the First Circuit on January 31, 1985 is set forth

in Appendix C.

Jurisdiction

The judgment which petitioner seeks to have reviewed was

entered by the United States Court of Appeals for the First

Circuit on January 31, 1985. Petitioner invokes the jurisdiction

of this Court pursuant to the provisions of 28 U.S.C.

§ 1254(1).

Constitutional and Statutory Provisions

and Rules Involved

Unrtep States CONSTITUTION

AMENDMENT XIV, SectTION 1

“All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the state wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.”

AMENDMENT VII

“In suits at common law, where the value in contro-

versy shall exceed twenty dollars, the right of trial by jury

shall be preserved, and no fact tried by a jury, shall be

otherwise re-examined in any Court of the United States,

than according to the rules of the common law.”

42 U.S.C.A. § 1983 (1981)

Crvit ACTION FOR DEPRIVATION OF RIGHTS

» “Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or causes

to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured

in an action at law, suit in equity, or other proper pro-

ceeding for redress. For the purposes of this section, any

Act of Congress applicable exclusively to the District of

Columbia shall be considered to be a statute of the

District of Columbia.”

Rue 56(c), Feperar Ruwes or Civit Procepure

“The motion [for summary judgment] shall be served at

least 10 days before the time fixed for the hearing. The

adverse party prior to the day of hearing may serve

opposing affidavits. The judgment sought shall be

rendered forthwith if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue

as to any material fact and that the moving party is en-

titled to a judgment as a matter of law. A summary judg-

ment, interlocutory in character, may be rendered on the

issue of liability alone although there is a genuine issue as

to the amount of damages.”

Statement of the Case

This petition arises out of the decision of the United States

Court of Appeals for the First Circuit to affirm the decision of

the United States District Court for the District of Massachu-

setts to terminate petitioner's case against Educational Testing

Service by entering summary judgment against her.

4

Petitioner, Susan Johnson, commenced a diversity action

against respondent, Educational Testing Service (“ETS”) in

June of 1972. Petitioner alleged that ETS, in its administra-

tion, scoring and reporting of her Law School Admission Test

(“LSAT”), acted in breach of its warranty that the LSAT was

a reliable indicator of performance in law school, and that

ETS, in its summary, arbitrary and improper invalidation of

her LSAT score, acted in breach of its contractual obligations,

violated her rights of due process under the Fourteenth

Amendment and committed various torts against her.

The following facts were before the courts below:

Respondent ETS, a non-profit corporation created by the

American Council on Education, the College Entrance

Examination Board and the Carnegie Foundation for the Ad-

vancement of Teaching, administers the LSAT, a requirement

for admission to most law schools. (App. B at B-3);

Defendant’s Answer to Complaint, {[ 4.) At the time at issue in

this case, ETS stated in its Bulletin of Information concerning

LSAT scores: “They are a dependable measure of certain men-

tal abilities found to be important in the study of law.” (ETS,

LSAT Bulletin of Information 1970-1971 at 18.) However,

publications which are part of the record in this case have

called into question the ability of Educational Testing Service

to meet its warranties and have criticized ETS for the cultural

and racial bias inherent in its standardized tests. E.g., Robert-

son, Examining the Examiners: The Trend Toward Truth in

Testing, 9 J.L. Educ. 167 (1980).

ETS also stated in its Bulletin of Information:

If doubts are raised about a candidate’s scores after

they have been reported, ETS will investigate the cir-

cumstances of the testing. Educational Testing Service

reserves the right to cancel any test score, if in the opinion

of ETS there is adequate reason to question its validity.

Before exercising this right, ETS will offer the candidate

a retest at no additional fee.

5

(ETS, LSAT 1970-1971 Bulletin of Information at 17.) Docu-

ments which are part of the record in this case show that ETS

officials routinely would call into question a score difference of

300 points over a previous score. (E.g., October 15, 197]

Letter from Robert E. Smith of ETS to Robert E. Sullivan,

petitioner’s then attorney at 4.)

Petitioner, a black female, registered for and took the LSAT

on three occasions. On the first two occasions of her taking the

LSAT, in October and December 1970, despite her fine

academic record as a student at Radcliffe College, Ms.

Johnson received scores of 317 and 323, respectively. (App. B

at B-2.)

Ms. Johnson registered for and took the LSAT on a third

occasion, in April 1971. At that time, she had been tutored in

preparation for taking the LSAT over a period of ten weeks

and was under medication to reduce her anxiety. (App. A at

A-3.) In early May of 1971, ETS reported Ms. Johnson’s April

test score as 623 to several law schools, including the Univer-

sity of California at Berkeley. The University of California at

Berkeley accepted Ms. Johnson for its fall class soon thereafter.

(App. B at B-2.)

ETS then invalidated Ms. Johnson’s 623 LSAT score. By

letter dated June 10, 1971, ETS informed Ms. Johnson that

“serious doubts” had been raised concerning the validity of her

April score and gave her the alternatives of (1) retaking an

LSAT, (2) cancelling it, (3) submitting further information, or

(4) doing nothing. (App. B at B-7 - B-8.)

Ms. Johnson chose to prove that she had taken the April

LSAT. Ms. Johnson’s counsel forwarded to ETS various

documents to prove that she had taken the April test, in-

cluding an affidavit by Ms. Johnson affirming that she had

taken the April test and describing in detail the circumstances

surrounding her taking of the test, an affidavit of plaintiff's

tutor, and letters by various educators attesting to Ms.

Johnson’s high academic ability and qualities of personal

6

integrity. (App. B at B-8.) In addition, Ms. Johnson submitted

a detailed opinion by an independent handwriting specialist

whom she retained which stated that Ms. Johnson’s October,

December and April LSAT papers and other writing samples

were written by the same person (App. B at B-9.) During the

series of communications between petitioner and respondent

ETS had obtained three handwriting opinions which con-

cluded that a different person had written the April 1971 test

papers. (App. B at B-7 - B-9.)

Ms. Johnson’s efforts to prove she took the questioned LSAT

were met with a continuous pattern of resistance from ETS

officials. ETS officials told Ms. Johnson that they suspected

her of impersonation and told her “we know what you did and

you know what you did so you just better take that retest.”

(Transcript of deposition of Susan E. Johnson, Jan. 24, 1973 at

196.) Later, ETS officials told petitioner’s counsel that they

would not be swayed by “pressure from the prestigious Har-

vard professors,” and that the affidavit submitted by Ms.

Johnson was “self-serving” and would be accorded no weight

as evidence in her favor. (Affidavit of Kent J. Neumeister,

dated February 25, 1974 at 3-4.) ETS refused to provide the

names of proctors at the April test site or of students sitting

near Ms. Johnson who would still have been able to identify

her. (Id. at 6) ETS took the position that even if Ms. Johnson

were identified by an eyewitness, this would not prove that she

“was not guilty of some wrongdoing.” (Id.)

ETS invalidated Ms. Johnson’s 623 LSAT score on

September 3, 1971 and immediately informed all of the law

schools concerned, including the University of California at

Berkeley (“Berkeley”). Berkeley revoked Ms. Johnson’s accept-

ance to its law school by letter that same day. (App. B at B-2.)

At the request of Ms. Johnson, and following review of the

handwriting opinions obtained by ETS, however, the Dean of

the Berkeley Law School commissioned a fifth handwriting

analyst in California to review her handwriting, including

7

all of the test samples, the submitted documents, and her

signature given to him in his presence. Only after this analyst

stated that all of the documents were written by the same per-

son, did Berkeley admit Ms. Johnson unconditionally to its

school (App. A at A-3.)

Despite petitioner’s contentions and the facts she submitted

in support of her contentions, summary judgment was granted

to ETS, nearly twelve years after Ms. Johnson commenced her

action and more than ten years after ETS filed its motion for

summary judgment (App. B.) Just prior to the district court’s

grant of summary judgment to ETS, the parties were allowed

to submit only supplemental memoranda of no more than

twenty pages in order to reflect developments in the law since

1974 when the motion was originally briefed (App. A at A-4.)

At that time, Ms. Johnson moved for leave to file a motion to

amend her complaint to reflect developments in the law in the

twelve years since she filed her complaint which were appli-

cable to her fact situation. The district court denied Ms.

Johnson’s motion when it granted ETS’s motion for summary

judgment (App. A at A-4.) The district court’s denial of Ms.

Johnson’s motion for leave to file a motion to amend her com-

plaint and its entry of summary judgment in favor of ETS was

affirmed by the court of appeals (App. A.)

Reason for Granting the Writ

I. Tis CAseE PRESENTS QUESTIONS OF GREAT PUBLIC IMPORTANCE

At the heart of this case is the control exercised by the

Educational Testing Service over access to law schools through

standardized tests which have been found to be culturally and

racially biased. Petitioner suffered damage from ETS’s failure

to reliably predict, through the LSAT, her performance in law

school and from its invalidation of her one LSAT score which

was consistent with her academic performance and the more

likely predictor of her success. The termination of her case

8

through summary judgment by the courts below denied peti-

tioner the opportunity to have a jury of her peers examine the

motives and intentions of ETS and determine whether, in fact,

petitioner was a victim of an ETS policy to protect its image as

a reliable predictor of performance and selector of persons to

be allowed access to law schools such that ETS acted in breach

of its warranty and contractual obligations, denied her due

process and committed torts against her.

The failure to properly adjudicate petitioner's claim, as set

forth, infra, is not only a wrong to petitioner but also a wrong

to all others who have been denied access to law schools and

the legal profession as a result of ETS’s actions in furthering its

image as a reliable predictor of performance.

Moreover, the district court's delay of nearly ten years in

ruling on ETS’s motion for summary judgment, coupled with

its refusal to consider Ms. Johnson’s motion for leave to amend

her complaint to reflect developments in the law, effectively

denied petitioner access to the courts. This Court has made

clear that the mandate of Rule 15(a), Fed. R. Civ. P., that

leave to amend “shall be freely given when justice so requires”

is to be heeded. E.g., Foman v. Davis, 371 U.S. 178, 182

(1962). The passage of time since Ms. Johnson initiated this

case is no fault of Ms. Johnson and she should not be penalized

for it. The district court’s denial of access to Ms. Johnson by its

delay and refusal to consider amended claims to reflect devel-

opments in the law which took place during the delay, sanc-

tioned by the court of appeals, is that type of departure from

the accepted and usual course of judicial proceedings which

calls for the exercise of this Court’s power of supervision.

9

II. Tue Decision oF THE First Circurr To AFFIRM THE

District Court’s TERMINATION OF PETITIONER’S ACTION

THROUGH SUMMARY JUDGMENT Is In Coneuict WitH Dec!-

SIONS OF THIs Court.

A. The First Circuit's Decision To Affirm Summary

Judgment on Petitioner's State Law Claims Is in

Conflict With Decisions of This Court.

Petitioner claimed before the district court and the court of

appeals that summary judgment was inappropriate because

there existed genuine issues of fact material to her claims that

ETS acted in breach of its warranties and contractual obliga-

tions and committed torts against her. As this Court has made

clear, Rule 56 of the Federal Rules of Civil Procedure:

{a]uthorizes summary judgment ‘only where the moving

party is entitled to judgment as a matter of law, where it

is quite clear what the truth is,...[and where] no

genuine issue remains for trial. . .[for] the purpose of the

rule is not to cut litigants off from their right of trial by

jury if they really have issues to try.’ Sartor v. Arkansas

Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 728,

88 L.Ed. 967 (1944).

Poller v. Columbia Broadcasting System, 368 U.S. 464, 467

(1962).

On a motion for summary judgment, decisions of this Court

required that the district court and the court of appeals view

the record in the light most favorable to Ms. Johnson, the

party opposing the motion. E.g., Board of Education, Island

Trees Union Free School District v. Pico, 457 U.S. 853 (1982);

Poller, 368 U.S. at 473. For each of Ms. Johnson’s breach of

warranty, breach of contract, defamation, and intentional

interference with contractual relations claims, the court

would have been precluded from granting summary judgment

had it properly construed the record.

ted §

10

When reviewing for purposes of summary judgment Ms.

Johnson’s claim that ETS acted in breach of its warranty that

the LSAT was a reliable predictor of performance in law

school, the court, had it properly drawn all inferences

favorable to Ms. Johnson, would have accepted that she took

all three tests, that her ability was in the 623 score range, that

there is a cultural and racial bias to ETS tests, and that ETS

had an interest in maintaining its image as a reliable predictor

of law school performance. Ms. Johnson had submitted suffi-

cient facts to require the court to so draw these inferences, in-

cluding affidavits concerning her taking of the October test

and dealings with ETS, her academic record, statements from

her teachers and publications in the record concerning the

racial and cultural bias of ETS’s standardized tests.

Similarly, the court was required to accept the above

statements as true when ruling on Ms. Johnson’s claim that

ETS was in breach of its contract to administer a reliable test

correctly predicting her performance in law school, to investi-

gate the circumstances of her testing if questions were raised

concerning her score and to cancel her score only where there

was adequate reason to question its validity. Furthermore,

based on the affidavits and other statements submitted by Ms.

Johnson, the court was required, in drawing all inferences

favorable to Ms. Johnson, to accept that ETS did not in-

vestigate the circumstances of her testing but instead held

stubbornly to the view that the score differential was the

reason for invalidating her score. The court clearly did not

draw all inferences favorable to Ms. Johnson, either on her

claims for breach of warranty and contract or on her claims

for defamation and intentional interference with contractual

relations, summary judgment on which required a finding

that ETS did not act in bad faith. —

The refusal by the district court and the court of appeals to

draw all inferences in favor of the petitioner on a motion for

summary judgment is in conflict with the rulings of this Court.

ll

E.g. Poller, 368 U.S. at 473. Furthermore, the concern which

this Court has expressed regarding the use of summary judg-

ment in actions where the motives and intentions of the parties

are at issue applies in this case as well:

We look at the record on summary judgment in the light

most favorable to Poller, the party opposing the motion,

and conclude here that it should not have been granted.

We believe that summary procedures should be used

sparingly in complex antitrust litigation where motive

and intent play leading roles, the proof is largely in the

hands of the alleged conspirators, and hostile witnesses

thicken the plot. It is only when the witnesses are present

and subject to cross-examination that their credibility

and the weight to be given their testimony can be ap-

praised. Trial by affidavit is no substitute for trial by jury

which so long has been the hallmark of ‘even-handed

justice.’

Poller, 368 U.S. at 473. Whatever evidence was presented by

ETS concerning its own actions in dealing with Ms. Johnson

was simply insufficient to foreclose the possibility, supported

by facts, that ETS acted in bad faith. “Even-handed justice”

as defined by this Court requires that a jury decide the issue.

In effect, petitioner was denied her right to a trial by jury

guaranteed by the Seventh Amendment to the United States

Constitution. The affirmance by the First Circuit of the

district court’s egregious departure from the proper standard

for summary judgment mandates the exercise of this Court’s

supervision.

B. The First Circuit's Decision To Affirm Summary

Judgment On Petitioner's Constitutional Claim Is In

Conflict With Decisions Of This Court And Other

Circuits

As it did with petitioner’s state law claims, the court of

appeals acted contrary to decisions of this Court in affirming

12

the district court’s grant of summary judgment on petitioner's

due process claim on the ground that the state action necessary

to make ETS subject to the requirements of due process and

liable under 42 U.S.C. §1983 was lacking. ETS failed to sub-

mit sufficient evidence to establish the absence of an issue of

fact as to the influence of state officials on the questioned ETS

policies and as to the role of the LSAT as the primary vehicle

for the selection of law students and lawyers. Had the court

properly construed all inferences in favor of Ms. Johnson, as a

jury would be entitled to do, see Anderson v. City of Bessemer

City, 53 U.S.L.W. 4314 (March 19, 1985) (findings of fact, in-

cluding those based in inferences from other facts may not be

set aside unless clearly erroneous), decisions of this Court

would have precluded summary judgment on Ms. Johnson’s

constitutional claim.

In the past, this Court has looked to the indicia of state

involvement to determine whether state action is present

under certain circumstances. See e.g., Lugar v. Edmondson

Oil Co., Inc., 457 U.S. 922, 937 (1982), citing Burton v.

Wilmington Parking Authority, 365 U.S. 715, 722 (1961)

(“‘Only by sifting facts and weighing circumstances can the

nonobvious involvement of the State in private conduct be

attributed its true significance.’”) Petitioner submitted

evidence to show that ETS exercised a veto power over accep-

tance decisions of state law schools, including that the Univer-

sity of California at Berkeley revoked its acceptance of peti-

tioner to its law school immediately upon ETS’s cancellation

of her LSAT score, and that there was state involvement at

every level of ETS’s structure, including public officials serv-

ing on its Board of Trustees.

The decision of the First Circuit to foreclose petitioner from

asking a jury to draw an inference of state control over ETS

from, among other things, the public officials on ETS’s gover-

ning board conflicts with decisions of other Circuits. Other

Circuit Courts of Appeals have implicated the state in private

13

action where public officials served on governing boards. See,

e.g., Gilmore v. Salt Lake Community Action Program, 710

F.2d 632, 637-638 (10th Cir. 1983)(court found private, non-

profit corporation could be fairly considered a state actor,

where one third of the members of its governing board were

public officials); McVarish v. Mid-Nebraska Community

Mental Health Center, 696 F.2d 69, 71 (8th Cir. 1982) (court

found state action where 12 of the 17 members of the Center's

governing board were governmental officials or their appoin-

tees.)

Furthermore, in Gilmore, the Tenth Circuit made clear the

significance of public officials on an organization’s Board,

regardless of their number: “The potential for government

influence cannot be directly calibrated to the number of offi-

cials on the board; the officials, by virtue of the requirement of

their presence and the power of their positions, can exercise

influence far in excess of their proportional representation.”

710 F.2d at 638, n.12. Petitioner contends and submitted facts

supporting that founding organizations of ETS ensured that

the interests of their members, many public institutions,

would dictate the policies and actions of ETS through their

control of the Board of Trustees. See also, Milonas v.

Williams, 691 F.2d 931, 940 (10th Cir. 1982), cert. denied,

460 U.S. 1069 (1983) (state had so insinuated itself with private

school as to be considered a joint participant in offending

actions, where plaintiffs had been involuntarily placed in

school by state officials who were aware of and approved of

offending practices).

Given the inference which a jury could reasonably draw

concerning state control over ETS based on the indicia of state

involvement enumerated by petitioner, the First Circuit erred

in relying on this Court’s recent decisions of Rendell-Baker v.

Kohn, 457 U.S. 830 (1982) and Blum v. Yaretsky, 457 U.S. 991

(1982) as precluding the existence of state action in this case.

In both Blum and Rendell-Baker, the relationship between the

14

private party and the state was in some critical aspect less than

that of ETS and the state in this case. A fact finder’s

reasonable conclusion that the state did exert control over ETS

would certainly preclude a finding as a matter of law that no

state action exists so as to require ETS to comply with the due

process requirements of the Fourteenth Amendment. The con-

flict of the First Circuit's decision with the decisions of this

Court and other Circuits calls for further appellate review by

this Court.

Conclusion

For the foregoing reasons, it is in the public interest that this

Court grant the application of Susan Johnson for further

appellate review.

Respectfully submitted,

Jack R. Pirozzo._o

Mary JEANNE TUFANO

Wi.icox, Pirozzoco & McCartrny

PROFESSIONAL CORPORATION

50 Federal Street

Boston, Massachusetts 02110

(617) 482-5470

A-l

United States Court of A peals

uy For the First Circuit P

No. 84-1597

SUSAN E. JOHNSON,

PLAINTIFF, APPELLANT,

v.

EDUCATIONAL TESTING SERVICE,

DEFENDANT, APPELLEE.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zoser, U.S. District Judge)

Before

CampsBeEL_, Chief Judge,

Bownes, Circuit Judge, and

Ma .etz,* Senior Judge.

Jack R. Pirozzolo with whom Mary Jeanne Tufano and Willcox, Pirozzolo

& McCarthy were on brief for appellant.

George C. Caner, Jr. with whom Wayne H. Scott and Ropes & Gray were

on brief for appellee.

January 31, 1985

Matetz, Senior Judge. Plaintiff-appellant Susan Johnson

appeals from the district court's entry of summary judgment in

favor of defendant-appellee Educational Testing Service, Inc.

(ETS) and the court's denial of leave to amend her complaint.

We affirm.

* Of the United States Court of International Trade, sitting by designation.

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I. Background

ETS is a non-profit corporation that prepares and ad-

ministers the Law School Admission Test (LSAT). Susan

Johnson, who was then a college senior, took the LSAT three

times and achieved the following scores, on a scale of 200 to

800:

October 1970...... 317

December 1970... .323

PE Be inks c Jen 623

After ETS reported the 623 score to various law schools, the

School of Law of the University of California at Berkeley

(Berkeley) accepted Johnson for its fall class. On May 11,

1971, the University of Pennsylvania Law School, which had

accepted Ms. Johnson in March, telephoned ETS to question

the validity of the 623 score. ETS’s Test Security Office then

commenced an investigation, which included submission of

the answer sheets and registration forms for all three tests to

Jan Beck, a handwriting expert. Mr. Beck concluded that the

April 1971 answer sheets and registration form were not writ-

ten by the same person who wrote the first two answer sheets.

After reviewing the documents and Beck's opinion, ETS’s

Board of Review concluded that there was serious doubt about

the validity of the 623 score and that Johnson should be so

advised. Accordingly, on June 10, 1971, Louis Fowler,

Secretary of the Board of Review and a member of the Test

Security Office, wrote to Johnson advising her of the Board's

doubts and offering her the following alternatives: (1) retaking

the LSAT at no charge; (2) cancelling the 623 score; (3) sub-

mitting further information; or (4) doing nothing. Fowler said

that ETS would cancel the 623 score if Johnson did nothing, or

requested cancellation, or took the examination again but

failed to “confirm” the score.

During the following weeks, ETS received further queries

about the discrepancies in Johnson's LSAT scores from

Berkeley and Columbia Law School. Ultimately, ETS con-

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sulted with two other handwriting experts, Ordway Hilton

and Paul Osborn, who agreed with Beck's earlier conclusion

that the April 1971 examination was not written by the same

person who took the first two examinations. For her part,

Johnson submitted her own affidavit and affidavits and letters

by others to substantiate her claim that she was a person of

good character; that she had taken all three examinations; and

that the improvement in her score was made possible by,

among other things, her receiving tutoring for the LSAT and

taking medication to reduce anxiety.

ETS officials met with Johnson and her then attorney on

August 5, 1971, and advised that ETS would require a retest to

confirm her highest score. ETS proposed to give Johnson the

same test that resulted in the 623 score and represented that

the score would be confirmed if she came within fifty—or,

depending on the circumstances, up to one hundred—points

of 623. Johnson declined to take a retest on the ground that

ETS could not duplicate her April 1971 “state of non-

anxiousness.” Later, Johnson presented a report by another

handwriting expert, Elizabeth McCarthy, who concluded that

Johnson had written all the answer sheets.

On September 3, 1971, ETS’s Board of Review decided to

cancel the 623 score. Berkeley responded by revoking its

acceptance of Johnson, but later admitted her on a provisional

basis. On October 11, 1971, Berkeley informed ETS that in

reliance on the opinion of yet another handwriting expert,

Sherwood Morrill—who concluded that all three examinations

were written by the same person—it would admit Johnson un-

conditionally.

Johnson commenced this diversity action in June 1972 and

asserted five claims; one federal constitutional claim and four

state law claims. She alleged that ETS: (1) arbitrarily in-

validated the 623 score, thus denying her due process; (2)

breached certain warranties; (3) breached its contract with

her; (4) “wrongfully interfered with the advantageous con-

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tractual relationship” she had with Berkeley; and (5) defamed

her. In January 1974, ETS moved for dismissal and summary

judgment on all five counts of the complaint. In February

1974, Johnson filed opposition papers. The district court

stayed discovery and, in May 1975, ordered the parties to sub-

mit statements of the material facts that, they contended,

were or were not at issue. The parties filed such statements

within the next several weeks. Thereafter, a period of almost

nine years elapsed, during which the district court failed to

rule on the pending motions.

Finally, in 1984, the action was reassigned to another

district judge, who permitted each party to submit a sup-

plemental memorandum of no more than twenty pages to

reflect developments in the law since 1974. On June 8, 1984,

the court, in an unpublished memorandum of decision,

entered summary judgment for ETS on all counts and denied

Johnson’s “motion for leave to file a motion to amend the com-

plaint.” This appeal followed.

II. The Due Process Claim

To succeed on her first claim, alleging a deprivation of due

process, Johnson must show that ETS is a state actor and that its

conduct was state action. This is because the Fourteenth

Amendment “erects no shield against merely private conduct,

however discriminatory or wrongful.” Shelley v. Kraemer, 334

U.S. 1, 13 (1948). Accord, e.g., Blum v. Yaretsky, 457 U.S.

991, 1002 (1982). In other words, the Fourteenth Amendment

“applies to acts of the states, not to acts of private persons or en-

tities.” Rendell-Baker v. Kohn, 457 U.S. 830, 837 (1982).

Therefore, in reviewing constitutional claims, the Supreme

Court has “insisted that the conduct allegedly causing the

deprivation of a federal right be fairly attributable to the

State.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982).

The state action inquiry is two-fold: (1) whether “the

deprivation [was] caused by the exercise of some right or

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privilege created by the State or by a rule of conduct imposed

by the State or by a person for whom the State is responsible,”

id., and (2) whether “the party charged with the deprivation

[ was] a person who may fairly be said to be a state actor.” Id.

Since the test has two components, “not all actions by state

actors are state action.” Gilmore v. Salt Lake Community

Action Program, 710 F.2d 632, 638 (10th Cir. 1983). See

Lugar, 457 U.S. at 935-36 n.18 (discussing Polk County v.

Dodson, 454 U.S. 312 (1981) ).

Johnson contends that ETS is a state actor because the

LSAT, which it administers, is a prerequisite to admission to

nearly all law schools, many of which, including Berkeley, are

state schools. Therefore, she argues, ETS exercises a virtual

veto power over admission to law schools. She also points to

ETS’s contract with the Law School Admission Council,

which provides that the Council (1) has ultimate responsibility

for carrying out testing programs used for admission to law

school and for the content of the tests and (2) determines

general policy concerning conduct of the program in consulta-

tion with ETS. Johnson further notes that approximately 45 %

of the Council’s members, including Berkeley, are state

schools. Moreover, she alleges that the ETS Board of Trustees

included public officials and representatives of bodies that in-

cluded public institutions.

Although Johnson’s conception of state action was arguably

tenable when her complaint was filed, the recent decisions in

Blum and Rendell-Baker are fatal to her theory. Cf. Cohen v.

President of Harvard College, 729 F.2d 59, 60 (Ist Cir.) (per

curiam) (commenting on devitalization of argument that Har-

vard, by accepting federal funds, became liable for violations

of First and Fifth Amendments), cert. denied, __ U.S. __, 105

S. Ct. 233 (1984).

In Blum, the Court held that private nursing homes did not

engage in state action when they discharged or transferred

Medicaid patients, even though the state subsidized the

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operating and capital costs of the facilities, paid medical ex-

penses of more than 90% of the patients, and licensed the

facilities. 457 U.S. at 1011. The Court reasoned:

That the State responds to such [private discharge and

transfer] actions by adjusting benefits does not render it

responsible for those actions. The decisions about which

respondents complain are made by physicians and nurs-

ing home administrators, all of whom are concededly

private parties. There is no suggestion that those decisions

were influenced in any degree by the State’s obligation to

adjust benefits in conformity with changes in the cost of

medically necessary care.

Id. at 1005 (emphasis in original).

Similarly, in Rendell-Baker, the Court declined to find state

action in the decision by a private school to discharge certain

employees, notwithstanding that “virtually all of the school’s

income was derived from government funding.” 457 U.S. at

840. The Court held that the significant presence of public

funds was insufficient to comprise state action:

The school, like the nursing homes [in Blum], is not

fundamentally different from many private corporations

whose business depends primarily on contracts to build

roads, bridges, dams, ships, or submarines for the gov-

ernment. Acts of such private contractors do not become

acts of the government by reason of their significant or

even total engagement in performing public contracts.

Id. at 840-41. Accord Polk County v. Dodson, 454 U.S. 312,

318-19 (1981) (although state paid public defender, her rela-

tionship with her client was identical to that between any

lawyer and client).

The principles of Blum and Rendell-Baker have been ap-

plied to the National Collegiate Athletic Association (NCAA),

which “is a voluntary, unincorporated association of nearly

one thousand four-year colleges and universities. Approxi-

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mately one-half of its members are public institutions, state

and federal.” Arlosoroff v. NCAA, 746 F.2d 1019, 1020 (4th

Cir. 1984). Distinguishing earlier cases that had held the

NCAA to be a state actor, the Fourth Circuit observed:

These earlier cases rested upon the notion that indirect

involvement of state governments could convert what

otherwise would be considered private conduct into state

action. That notion has now been rejected by the

Supreme Court, however, and its decisions require a dif-

ferent conclusion.

Id. at 1021 (citing Rendell-Baker and Blum).

If anything, ETS is less a state actor than the NCAA.

Whereas the NCAA is capable of disqualifying an athlete from

intercollegiate competition, id. at 1020, ETS merely reports

test scores and lacks authority to decide who shall be admitted

and who shall be rejected. What is more, just as the regulation

of college athletics is “not a function ‘traditionally exclusively

reserved to the state,” id. at 1021 (quoting Jackson v.

Metropolitan Edison Co., 419 U.S. 345, 352 (1974) ), the for-

mulation, grading, and reporting of standardized tests is not

an exclusive public function. See Rendell-Baker, 457 U.S. at

842 (education of maladjusted high school students, although

a public function, is not exclusive prerogative of the state, even

where private entity provides such education at public

expense).

In Arlosoroff, there was no suggestion that public institu-

tions belonging to the NCAA, as opposed to private institu-

tions that were members, “caused or procured the adoption of

the [disputed] Bylaw.” 746 F.2d at 1021. Here, too, Johnson

has not offered any proof that public institutions belonging to

ETS took the lead in instigating the conduct she challenges. '

' Cf. Rivas Tenorio v. Liga Atletica Interuniversitaria, 554 F.2d 492,

495-96 (Ist Cir. 1977) (Commonwealth action found where Puerto Rican

athletic association was dominated by Commonwealth instrumentalities and

Commonwealth relinquished portion of governmental power to association).

A-8

In short, Johnson’s due process claim cannot withstand the

tests of Blum and Rendell-Baker and the district court cor-

rectly entered summary judgment for ETS on the claim.?

III. State Law Claims

The last four of Johnson's claims are predicated on state con-

tract and tort law. Although “the court must indulge all infer-

ences favorable to the party opposing” a motion for summary

judgment, Hahn v. Sargent, 523 F.2d 461, 464 (Ist Cir. 1975),

cert. denied, 425 U.S. 904 (1976), and must “look at the

record. ..in the light most favorable to. . .the party opposing

the motion,” Poller v. Columbia Broadcasting Sys., 368 U.S.

464, 473 (1962), “[t]he purpose of summary judgment is to go

behind the pleadings and determine whether any further ex-

ploration of the facts is really necessary.” Packish v. McMur-

trie, 697 F.2d 23, 27 (ist Cir. 1983).

It is not enough for Johnson to rely on the allegations of her

complaint, id., in the absence of issues of fact that are “both

‘genuine’ and ‘material.’ ” Hahn, 523 F.2d at 464. The prin-

ciple was summarized in Hahn:

A material issue is one which affects the outcome of the

litigation. To be considered “genuine” for Rule 56 pur-

poses a material issue must be established by “sufficient

evidence supporting the claimed factual dispute. . . to re-

quire a jury or judge to resolve the parties’ differing ver-

sions of the truth at trial.” First National Bank of Arizona

v. Cities Service Co., Inc., 391 U.S. 253, 289, 88 S.Ct.

2 This is not to say that ETS can never be a state actor engaging in state

action. Cf. Martin v. Educational Testing Serv., 179 N.J. Super. 317, 324

n.7, 431 A.2d 868, 871 n.7 (Ch. Div. 1981) (ETS concededly acted as agent

of Commonwealth of Pennsylvania in administration of real estate license

examination); Golden Rule Life Ins. Co. v. Mathias, 86 Ill. App. 3d 323, 408

N.E.2d 310 (4th Dist. 1980) (dismissal of complaint inappropriate where

plaintiffs alleged that ETS designed examinations for licensure of insurance

agents and brokers, graded examinations, determined who passed, and

printed state licenses).

A-9

1575, 1592, 20 L.Ed.2d 569 (1968). The evidence mani-

festing the dispute must be “substantial”, Fireman's Mut.

Ins. Co. v. Aponaug Mfg. Co., Inc., 149 F.2d 359, 362

(5th Cir. 1945), going beyond the allegations of the com-

plaint. Beal v. Lindsay, 468 F.2d 287, 291 (2d Cir. 1972).

Id. Given these considerations, we find that the record

discloses no genuine issues of material fact on Johnson’s con-

tract and tort claims and hence that those claims are resolvable

by way of summary judgment.

A. Claims for Breach of Warranty and Breach of Contract

Johnson alleges that ETS breached its warranties to her,

because the LSAT was not what it purported to be—an accu-

rate indicator of law school performance that could not be

skewed by training or preparation. However, rather than

alleging damage#from the variation in her scores, Johnson

asserted instead that her 623 score was cancelled in bad faith.

This is the essence of her breach of contract claim. Therefore,

the district court correctly concluded that her breach of war-

ranty claim stated no claim independent of her breach of con-

tract claim.

Johnson’s breach of contract claim must be viewed against

the background of the information bulletin distributed by ETS

to all LSAT candidates, which stated in part:

If doubts are raised about a candidate’s scores after they

have been reported, ETS will investigate the circum-

stances of the testing. Educational Testing Service

reserves the right to cancel any test score, if in the opinion

of ETS there is adequate reason to question its validity.

Before exercising this right, ETS will offer the candidate

a retest at no additional fee.

Accepting Johnson’s contention that Massachusetts

law—which the parties agree applies to the breach of contract

claim—requires ETS to exercise its contractual rights

reasonably and in good faith, see Salem Glass Co. v. Joseph

A-10

Rugo, Inc., 343 Mass. 103, 176 N.E.2d 30 (1961), summary

judgment is still appropriate. As this court observed in a

similar context, a plaintiff cannot force a trial by pointing to

smoke but not fire, and “[h]ere we do not even see any smoke.”

Packish, 697 F.2d at 27.

It is not necessary to recount all the indicia of ETS’s

reasonableness and good faith. We think it sufficient to note

that ETS sought the services of three separate handwriting ex-

perts after the University of Pennsylvania questioned the

300-point discrepancy in Johnson’s scores; that ETS provided

Johnson with an opportunity to be heard and to be represented

by counsel; and that ETS offered Johnson, without charge, the

option of a retest in which she would take the same April 1971

examination that resulted in the 623 score. These and other

factors indicate that ETS went beyond the letter of its contrac-

tual promise. While Johnson “is entitled to all favorable infer-

ences, [s]he is not entitled to build a case on the gossamer

threads of whimsy, speculation and conjecture.” Manganaro

v. Delaval Separator Co., 309 F.2d 389, 393 (Ist Cir. 1962).

B. Interference With Contractual Relationship Claim

The parties disagree over the choice of law on Johnson’s

claim that ETS intentionally interfered with her contractual

rights by notifying Berkeley that the 623 score was in-

validated. Johnson concedes, however, that the claim requires

proof that ETS acted intentionally and without justification.

See Imperial Ice Co. v. Rossier, 18 Cal. 2d 33, 112 P.2d 631

(1941); Bledsoe v. Watson, 30 Cal. App. 3d Supp. 105, 106

Cal. Rptr. 197 (1973). In light of our holding that summary

judgment was appropriate on the breach of contract claim,

there can be no doubt that ETS was entitled to summary judg-

ment on the intentional interference claim, too. Since ETS

acted in good faith, its actions can hardly be characterized as

“without justification.”

C. Defamation Claim

For similar reasons, the district court was correct in grant-

ing ETS summary judgment on Johnson’s defamation claim,

which alleged damages by reason of “various oral and written

communications [informing] persons and institutions, in-

cluding the California School of Law [Berkeley], that the

plaintiff's LSAT score of April 17, 1971 was invalid...” This

being a diversity action, we must apply the substantive law of

the states—California, Massachusetts, New York, and Penn-

sylvania—in which the allegedly defamatory material was

published. See Harkaway v. Boston Herald Traveler Corp.,

418 F.2d 56, 58 (Ist Cir. 1969).

In the absence of bad faith, each of these states grants a

qualified privilege to communications between those having a

common interest in the substance of the communications, such

as those between ETS and the law schools to which the scores

were reported. See Bollow v. Federal Reserve Bank of San

Francisco, 650 F.2d 1093, 1102 (9th Cir. 1981), cert. denied,

455 U.S. 948 (1982); Williams v. Taylor, 129 Cal. App. 3d

Supp. 745, 181 Cal. Rptr. 423 (1982); Cal. Civ. Code § 47(3)

(West 1982); Sheehan v. Tobin, 326 Mass. 185, 93 N.E.2d 524

(1950); Buckley v. Litman, 57 N.Y.2d 516, 443 N.E.2d 469,

457 N.Y.S.2d 221 (1982); Toker v. Pollack, 44 N.Y.2d 211, 376

N.E.2d 163, 405 N.Y.S.2d 1 (1978); Baird v. Dun &

Bradstreet, 446 Pa. 266, 285 A.2d 166 (1971); Beckman v.

Dunn, 276 Pa. Super. 527, 419 A.2d 583 (1980).

Here, as the district court pointed out, cancellation of the

623 score was not undertaken in bad faith. Therefore, ETS’s

communications to the law schools noticing the cancellation

were protected by the qualified privilege. And other com-

munications, since they were directed by ETS to Johnson and

her agents, were not actionable. See Burns v. Barry, 353 Mass.

115, 228 N.E.2d 728 (1967). In these circumstances, summary

judgment on the defamation claim was appropriate.

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D. Intentional Infliction of Emotional Distress Claim

The district court rejected Johnson’s assertion, first made in

1984, that her complaint implicitly stated a claim for inten-

tional infliction of emotional distress. To justify her delay in

asserting the claim, Johnson points out that the Supreme

Judicial Court of Massachusetts did not approve a claim for

intentional infliction of emotional distress, in the absence of

resulting bodily injury, until 1976, long after this action

began. See Agis v. Howard Johnson Co., 371 Mass. 140, 355

N.E.2d 315 (1976). But the possibility that such a claim would

be approved was expressly acknowledged before this action

was commenced, in George v. Jordan Marsh Co., 359 Mass.

244, 255, 268 N.E.2d 915, 921 (1971), where the court ap-

proved a claim for intentional infliction of emotional distress

when bodily injury was present.

Johnson’s unwillingness to take a path left open by George

or, for more than seven years, to seek leave to amend her com-

plaint in light of Agis, provide ample justification for the

district court’s finding that the complaint did not state a claim

for intentional infliction of emotional distress. Moreover,

against the background of our holding that ETS did not act in

bad faith, the claim would have lacked merit even if season-

ably and explicitly asserted. See Agis, 371 Mass. at 145, 355

N.E.2d at 319 (to succeed on claim for intentional infliction of

emotional distress, plaintiff must show defendant's conduct to

be “extreme and outrageous,” “beyond all possible bounds of

decency,” and “utterly intolerable in a civilized community”).

IV. Leave To Amend the Complaint

Johnson’s final argument is that the district court erred in

denying leave to amend the complaint so that she might ad-

vance claims based on contemporary legal precedents.

Although leave to amend a pleading “shall be freely given

when justice so requires,” Fed. R. Civ. P. 15(a), the district

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court has discretion to deny leave to amend in the face of

“extraordinarily long and essentially unexplained delay.”

Carter v. Supermarkets Gen. Corp., 684 F.2d 187, 192 (Ist

Cir. 1982). Cf. Chitimacha Tribe of Louisiana v. Harry L.

Laws Co., 690 F.2d 1157, 1163 (5th Cir. 1982) (“Mere passage

of time need not result in denial of leave to amend, but delay

becomes fatal at some period of time.”), cert. denied, __ U.S.

_, 104 S. Ct. 69 (1983).

Although ETS’s motion for summary judgment was left

pending by the district court for a long period of time, and

discovery was suspended, Johnson was always free to move for

leave to amend her complaint. The district court acted

reasonably in denying leave to amend the complaint after

more than a dozen years had passed. Nor, despite Johnson’s

contention to the contrary, did the court abuse its discretion

when, in 1984, it limited the parties to memoranda of twenty

pages in supplementation of their 1974 memoranda on the

motion for summary judgment.

V. Conclusion

We have fully considered appellant's other arguments and

find them to be without merit. The judgment of the district

court is affirmed.

Affirmed.

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Unrrep States District Courr

District OF MASSACHUSETTS

Civu. Action No. 72-1837-Z

Susan E. Jonson

v.

EpucaTIONAL TESTING Service, INC.

JUDGMENT

Zone, D.J.

In accordance with the Memorandum of Decision, dated

June 8, 1984, it is

Onpverep, that judgment be and it hereby is entered for

defendant.

(s) Rva W. Zonet.

District Judge

June 8, 1984

Date

B-2

U nrrep States Distucr Courr

Disrrict or MASSACHUSETTS

Civu. Action No. 72-1837-Z

Susan E. Jonson

v.

FE pucaTIONAL TestinG Servick, INC.

MEMORANDUM OF DECISION

Zone. D.J.

Defendant Educational Testing Service, Inc. (“ETS”) is a

non-profit corporation which prepares and administers

various educational tests, including the Law School Admission

Test (“LSAT”). Plaintiff Susan Johnson, then a college senior,

took the LSAT in October and December 1970 and received

score reports of 317 and 323, respectively. After the April 17,

1971 LSAT test date, ETS reported a score of 623 for Johnson,

an unusual increase. She was soon thereafter offered admission

to the University of California Law School at Berkeley

(“Berkeley”), which she accepted. In June 1971, however,

ETS notified plaintiff that it had serious doubts concerning the

validity of the score reported for her on the April 17 LSAT.

After a series of communications between the parties and

actions by both, discussed below, ETS on September 3, 1971

cancelled the score. It also orally informed Berkeley of the

cancellation and sent written notice to Berkeley and other law

schools to which plaintiff had requested her scores be

reported. Berkeley by letter that same day informed plaintiff

that its offer of admission had been withdrawn.'

' By September 2!, 1971] Berkeley provisionally admitted plaintiff to

classes; she was fully reinstated by October 11, 1971.

B-3

Plaintiff brought this diversity action against ETS alleging

that its invalidation of the score was arbitrary, depriving her

of her right to due process under the Fifth and Fourteenth

Amendments to the United States Constitution; that ETS

breached certain warranties it made to plaintiff concerning

the LSAT; that its actions in reaching the determination to in-

validate the April score breached its contract with plaintiff;

that it interfered with the advantageous contractual relation-

ship between plaintiff and Berkeley; and that it defamed

plaintiff. ETS has moved for summary judgment on all five

counts of the complaint.

The following fac’s relating to plaintiff s due process claim

are undisputed.? ETS is a non-profit corporation created by

the American Council on Education (“ACE”), the College En-

trance Examination Board (“CEEB”) and the Carnegie Foun-

dation for the Advancement of Teaching, to carry on educa-

tional testing activities. In 1971 it was managed by a

16-member Board of Trustees. The Presidents of ACE and

CEEB were trustees ex officio; and other trustees were chosen

by the Board from candidates nomineted by ACE, CEEB, and

the Board itself. Two of the trustees were officers of state

universities.

* Contrary to plaintiff's assertion, there remains no genuine issue of fact

material to resolution of her claim under Count I; the question of law

presented can be resolved accepting plaintiff's statement of facts.

? According to material submitted by plaintiff, the ACE is a council of

approximately 200 educational associations and 1500 institutions of higher

education, (with some 60 affiliated institutions), founded as a center of

cooperation for the improvement of education. It is governed by a

29-member Board of Directors. The CEEB is a non-profit corporation com-

prised of educational institutions and organizations, with the purpose of

assisting in and coordinating activities connected with the transition of

students from secondary schools to colleges, such as admissions procedures

and testing. It is governed by a 25-member Board of Trustees. Some

members of both ACF. and CEEB are publicly supported institutions and

officials of state educational institutions have served on the Boards of ACE

and of CEEB.

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ETS designs and administers the LSAT under an agreement

with the Law School Admission Council (“LSAC”),* which

determines the general policy concerning conduct of the LSAT

program. Under the agreement, ETS receives its costs plus a

fee, equal to 13% of the costs.

Plaintiff contends first that state schools’ membership in

ACE, CEEB and LSAC, together with the fee paymen‘s

allowed under LSAC’s contract with ETS, amount to state

control of ETS or such state involvement that ETS actions

must be deemed those of the state; and second, that ETS exer-

cised a public function in that state law schools delegated to

ETS in its administration of the LSAT “virtual veto power”

over what candidates would be selected for admission.

The latter argument can be readily dismissed. Plaintiff does

not suggest that administration of standardized tests for law

school admission is a function “ ‘traditionally the exclusive

prerogative of the state,’ ” Blum v. Yaretsky, 457 U.S. 991,

1005 (1982) (quoting Jackson v. Metropolitan Edison Co., 419

U.S. 345, 353 (1974) ), as it must be to support a finding of

state action. Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982).

Nor has she adduced any facts to contradict defendant's

evidence that law schools make their own independent admis-

sions decisions.°®

* The Law School Admission Council is a non-profit corporation com-

posed of approximately 141 law schools; 63 members are state-supported. Its

functions are analogous to those of the CEEB in that it provides services to

law schools relating to admissions, and has ultimate responsibility for carry-

ing on testing programs used for admission to law schools. By agreement

with ETS, the council has delegated responsibility for design and administra-

tion of the LSAT to ETS.

5 The situation is thus clearly different from that in the cases upon which

plaintiff relies. Martin v. Educational Testing Service, Inc., 179 N.J. Super.

317, 431 A.2d 858 (N.J. Super. 1981) and Golden Rule Life Insurance Co. v.

Mathias, 86 Ill. App. 3d 323, 408 N.E.2d 310 (1980), involved examinations

administered by ETS for state licensing authorities which were the sole re-

quirement for and the sole method of obtaining a real estate and insurance

broker's license, respectively, for practice in the state. (In Martin ETS agreed

B-5

Plaintiff's funding argument likewise fails in light of

Rendell-Baker v. Kohn. There, the Supreme Court concluded

that near-total government funding of a school did not con-

stitute a sufficient nexus to make the school’s personnel actions

those of the funding state. Id. at 840. The amount of public

funds, if any, coming to ETS from state members of LSAC is

far less than the support held insufficient to constitute govern-

ment action in Rendell-Baker.

Plaintiff has made no showing of any direct state regulation

of ETS testing activities, including the decision to invalidate a

score. She would, however, hold the state responsible for

defendant’s invalidation of the score by finding a substantial

degree of public participation in ETS’s action and entangle-

ment between the state and ETS which amounts to a sym-

biotic relationship, Burton v. Wilmington Parking Authority,

365 U.S. 715 (1961). She reises upon Rivas Tenorio v. Liga

Atletica Interuniversitaria, 554 F.2d 492 (lst Cir. 1977),

where the First Circuit held the action of an association of

seven Puerto Rican colleges, including four state-supported

ones, to be state action. The continuing validity of Rivas

Tenorio is questionable-ig the light of Blum and Rendell-

Baker, as the First Circuit has recognized, Spath v. National

Collegiate Athletic Association, 728 F.2d 25, 28 (ist Cir.

1984). Even if Rivas Tenorio remains good law, however,

most of the factors the court there found to indicate a state

nexus are lacking here. While ETS does provide a valuable ser-

vice to members of the LSAC, less than one-half of those

members are public institutions; there is no indication that

public institutions provide the “vast majority” of ETS’s capital

that it was acting as the agent of the state, and in Golden Rule the state

licensing commission worked closely with ETS in developing the test, having

final review power over the form and content of the questions.) Here, ETS's

role more closely resembles that in Stewart v. Hannon, 469 F, Supp. 1142,

1147 (N.D. Ill. 1979), where satisfactory performance in the ETS-

administered test was only one requirement of several for those seeking to be

high school principals, an oral examination and experience being necessary

as well, The court there held that ETS was not engaged in state action.

B-6

or that state instrumentalities are a dominant force in deter-

mining its policy and dictating its actions. Indeed, the un-

disputed facts concerning its funding and governance are to

the contrary. ETS is controlled not by member schools but by

a self-perpetuating Board of Trustees, only some of whose

members are nominated by organizations partially composed

of state universities. Such a tenuous connection is far from the

symbiosis required to make ETS actions attributable to the

state.

As a matter of law, therefore, I find that ETS action was not

“state action” under the Fourteenth Amendment.® Because its

actions were not subject to the requirements of the due process

clause, defendant is entitled to summary judgment on Count I

of the complaint.

There remain plaintiff's further claims that defendant's

actions violated state contract and tort law.

Count II of the complaint alleges that plaintiff was induced

to contract with ETS teetake the LSAT by certain express and

implied warranties made by ETS concerning the nature and

purpose of the test, that ETS breached its warranties causing

plaintiff to receive varying scores, and then concealed its

breach by invalidating her high score. Plaintiff alleges no

damage from the variation of scores in itself, and Count II

thus amounts to an assertion that the cancellation was done in

bad faith. As such, it states no claim independent of that in

Count III, and I consider it in conjunction with Count III.

In Count III plaintiff alleges that defendant breached its

contractual obligation to her to report her scores, to inves-

tigate the circumstances of the testing if doubts were raised

about her score, to cancel the score only if there was adequate

reason to question its validity, and to make that determination

in good faith. The terms of the contract are contained in the

1970-71 LSAT Bulletin of Information. The relevant portion

© Other courts have reached the same conclusion. See Brown v. Educa-

tional Testing Service, No, C-71-2029-AJZ (N.D. Cal. Jan. 31, 1972), K.D.

v. Educational Testing Service, 87 Misc. 2d 657, 386 N.Y.S. 2d 747 (1976).

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B-7

provides: “If doubts are raised about a candidate’s scores after

they have been reported, ETS will investigate the cir-

cumstances of the testing. Educational Testing Service reserves

the right to cancel any test score, if in the opinion of ETS there

is adequate reason to question its validity. Before exercising

this right, ETS will offer the candidate a retest at no addi-

tional fee.” Accepting plaintiff's contention that Massachusetts

law’ requires such a unilateral decision by a party to a con-

' tract to be reasonable,*® and her contention that defendant

had an obligation to make its decision in good faith, the facts

appearing from the parties’ submissions, even viewed most

favorably to plaintiff, here compel the conclusion that ETS’s

conduct complied with both requirements and in no way con-

stituted a breach of its contract with plaintiff.

The validity of the April score was originally questioned by

the Admissions Office of the University of Pennsylvania in a

call to ETS on May 11, 1971. After that call, three members of

the ETS Test Security Office (“TSO”) individually reviewed

the answer sheet and registration form for that administration

and those in October and December and concluded that the

April forms were not written by the person who wrote the

October and December forms. The documents were sent to

Jan Beck, a handwriting expert, who reached the same

conclusion.

The ETS Board of Review was an internal ETS committee

with responsibility for reviewing information on questioned

test scores and deciding what action should be taken. On June

8, Susan Johnson's case was presented to the Board as one of

several instances of suspected irregularities. Based on the

documents from the TSO and the opinion of Beck, the Board

concluded that serious doubt existed about the validity of

plaintiff's April score and sent a letter to plaintiff so informing

her. The letter, signed by Louis Fowler as Secretary of the

7’ The parties agree that Massachusetts law governs the contract claim.

" See Salem Glass Co. v. Joseph Rugo, 343 Mass. 103, 176 N.E.2d 30

(1961).

B-8

Board of Review, stated that before taking any further steps,

the Board would appreciate receiving from her any additional

information she wished to provide. It offered plaintiff the fur-

ther options of taking a free retest under special supervision, or

requesting that the score be cancelled, noting that it would

give recipients of the cancellation notice no reason for the

cancellation.

By July 1, plaintiff had retained counsel and requested that

ETS consider additional information. During the same period,

Columbia and Berkeley had called ETS to request information

about the April score. At its meeting of July 13, 1971, the

Board had before it letters from two Harvard faculty

members, the President and the Dean of Connecticut College,

supporting plaintiff's ability and integrity, as well as a letter

from the Associate Dean of Radcliffe College speaking highly

of plaintiff's integrity and noting her recommendation that

plaintiff take a retest. The Board decided to consult a second

handwriting expert, Ordway Hilton.

At a further meeting on July 22, 1971, the Board had,

besides the materials above, a six-page letter from plaintiff's

counsel setting forth plaintiff's view of the facts, supporting

materials, and requests for information from ETS; plaintiff's

college transcript;- medical records concerning her stress-

related problem; plaintiffs affidavit describing the cir-

cumstances of the April test; the affidavit of Kay Sternfeld,

who described tutoring plaintiff in the techniques of standard-

ized test-taking; and handwriting samples provided by plain-

tiff. A TSO member reported that Hilton had in a telephone

call stated his conclusion that a different person had written

the April test from the one who had written the two earlier

tests. The Board deferred action until receipt of a written

report to that effect from Hilton.

On August 5, plaintiff and her attorney met with John

Kramer, general counsel to ETS, Fowler, and Thomas Robin-

son, Associate Program Director of the LSAT Program. Plain-

B-9

tiff refused to take a retest and it was agreed that she would

retain a handwriting expert, Elizabeth McCarthy. At the end

of August, McCarthy orally informed Fowler of her conclusion

that plaintiff had written all of the documents in question.

ETS decided to seek the opinion of a fourth expert and sent the

documents to Paul Osborn.

On September 3, the Board met again about plaintiff's case.

During the meeting Fowler spoke to Osborn and reported that

Osborn believed the April test had been written by a different

person. The Board voted unanimously to cancel the score,

called Berkeley to inform it of the cancellation, and sent a

written notice of cancellation to the other schools plaintiff had

designated as recipients of score reports.

The Board of Review’s decision to cancel the score thus was

made after a lengthy process, including four meetings of the

Board. The Board had requested (in its letter of June 11, 1971)

and accepted extensive documentation submitted on behalf of

plaintiff. It considered plaintiff's submissions, as well as those

of its own Test Security Office personnel, the scores

themselves, and the opinions of four handwriting experts,

three unfavorable to plaintiff. Its conclusion that there was

adequate reason to question the validity of plaintiff's score

was a reasonable one, reached with deliberation in good

faith.” ETS’s cancellation of the April score was in accordance

® Plaintiff's claim that additional discovery is needed on the issue of bad

faith is without merit. In contrast to the situation in Parrish v. Board of

Commissioners of the Alabama State Bar, 533 F.2d 942 (5th Cir. 1976) on

which she relies, defendant here has not simply denied misconduct. The

record here contains not only the affidavits of the Board members asserting

their reasons for reaching the decision, but also the documents before the

Board at each stage of the proceedings. Regardless of whether the result was

right or wrong, the record makes clear that the decision had good faith

grounds. See Swencki v. Educational Testing Service, No. C81-0689 L(A)

(W.D. Ky. May 26, 1983); K.D. v. Educational Testing Service, 87 Misc. 2d

656, 386 N.Y.S.2d 747 (1976). Plaintiff has offered nothing to controvert

defendant's position. Given this lack of any factual dispute, summary judg-

ment is appropriate on the issue of good faith. See Packish v. McMurtrie, 697

I*.2d 23 (Ist Cir. 1983).

B-10

with the terms of its unambiguous contract with plaintiff, and

it is therefore entitled to summary judgment on Count III of

the complaint.

There remain plaintiffs two tort counts. In one she alleges

that ETS defamed her by informing “through various oral and

written Communications persons and institutions” that the

April score was invalid. In the other she alleges an interference

with her contractual relationship with Berkeley. The parties

agree that ETS notified Berkeley, the only recipient specified

in the complaint, both orally and in writing of the invalida-

tion.'® Identical notices were sent to the other institutions to

which plaintiff had requested that her scores be reported.

Even accepting plaintiff's contention that the notice of

cancellation was defamatory, carrying the innuendo that it

was caused by dishonest conduct on plaintiff's part, the un-

disputed facts support defendant’s claim that the communica-

tion was privileged. ETS’s interest in ensuring the validity of

the scores it reports is undisputed; the law schools involved

had an interest in receiving accurate score information as part

of their admissions process. Under the law of all the states in

question,'' communications between those having such a com-

' The notice was as follows:

“Notick OF CANCELLATION OF TEST SCORES

This is an official notice from Educational Testing Service that the

scores for the candidate and the administration as indicated have been

cancelled and are no longer retained in our records.

Susan E. Johnson

1D22 Adam[sic} House Harvard

Cambridge, Massachusetts

April 1971 LSAT

In our considered opinion, these scores should not be used as a basis

for judgments concerning the candidate.”

'! In this diversity action Massachusetts choice of law rules determine the

applicable substantive law, which under those rules would be that of each

place of publication. Harkaway v. Boston Herald-Traveler Corp., 418 F.2d

56 (Ist Cir. 1969); Brewster v. Boston Herald-Traveler Corp., 188 F. Supp.

565 (D. Mass. 1960). See also Pevoski v. Pevoski, 371 Mass. 358, 358 N.E.2d

416 (1976); Restatement (Second) of Conflict of Laws § 149 (1971). The insti-

tutions in question are located in California, Massachusetts, New York and

Pennsylvania.

C-]

United States Court of Appeals

For the First Circuit

No. 84-1597

SUSAN E. JOHNSON,

PLAINTIFF, APPELLANT,

v.

EDUCATIONAL TESTING SERVICE,

DEFENDANT, APPELLEE.

JUDGMENT

Entered: January 31, 1985

This cause came on to be heard on appeal from the United

States District Court for the District of Massachusetts, and was

argued by counsel.

Upon consideration whereof, It is now here ordered, ad-

judged and decreed as follows: The judgment of the district

court is affirmed.

By the Court:

Francis F. SciGuiANo,Clerk.

By (s) (ILLEGIBLE)

Chief Deputy Clerk.

[cc: Messrs. Pirozzolo and Caner}