Opposition Brief — Johnson v. Educational Testing Service

No. 84-1727

IN THE

Supreme Court of the Gnited States

OcToBER TERM, 1984

SUSAN E. JOHNSON,

Petitioner

Vv.

EDUCATIONAL TESTING SERVICE,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

RESPONDENT?’S BRIEF IN OPPOSITION

GEORGE C. CANER, JR.

Ropes & Gray

225 Franklin Street

Boston, Mass. 02110

(617) 423-6100

Attorney for Respondent

May 31, 1985

QUESTIONS PRESENTED

Without suggesting that any genuine or disputable question is in

fact presented by the petition to this Court, the only questions on

which the course of proceedings below and the facts of record would

permit a determination by this Court are:

1. Whether the evidence presented any genuine issue of material

fact precluding entry of summary judgment against the petitioner on

the issues raised by her state law claims and asse: d due process

claim, namely, |

(a) whether the respondent was entitled under the circum-

stances to cancel the April 1971 LSAT score and so notify law

schools, and |

(b) whether its cancellation was impermissible ‘‘state action.’’

2. Whether the district court’s denial of petitioner’s anomalous

‘*Motion for Leave To File a Motion To Amend the Complaint’

submitted twelve years after the filing of the complaint was an abuse

of discretion.

~

TABLE OF CONTENTS

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REASONS FOR DENYING THE WRIT ...............

I. THE DECISION OF THE FIRST CIRCUIT HEREIN

IS NOT IN CONFLICT WITH DECISIONS OF

OTHER CIRCUITS OR OF THIS COURT ........

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Il. THIS CASE PRESENTS NO ISSUES OF GREAT

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TABLE OF AUTHORITIES

Cases

Blum v. Yaretsky, 457 U.S. 991 (1982) ..........6.. eee eee

Brewer v. Wegmann, 691 F.2d 216 (Sth Cir. 1982), cert. denied,

SEE TE: Fe Ce aa hs C08 Ged aks CORK CEN EP On KOREA

Brown v. Educational Testing Service, No. C-71 2029 AJZ (N.D.

oe ES Serr ee ere

Crow v. Educational Testing Service, 703 F.2d 556 (Sth Cir. 1983),

aff g mem. No. 80-1865 (W.D. La., April 28, 1982) .......

Foman ¥; Date, STi Wes BOOP) 6 oe ed ieee.

Gilmore v. Salt Lake Community Action Program, 710 F.2d 632

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Jones v. Board of Commissioners of Alabama State Bar, 737 F.2d

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K.D. v. Educational Testing Service, 87 Misc. 2d 657, 386 N.Y.S.2d

pg PEPE POSS Pe RT ree ee rn) eae ee ee

Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982) ........

Lucero v. Ogden, 718 F.2d 355 (10th Cir. 1983), vert. denied, 104

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McVarish v. Mid-Nebraska Community Mental Health Center, 696

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Poats v. Givan, 651 F.2d 495 (7th Cir. 1981) ...............

Poller v. Columbia Broadcasting System, 368 U.S. 464 (1962) .

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

Richardson v. McFadden, 540 F.2d 744 (4th Cir. 1976), cert. de-

i er UE Sine vcs chap civecakannddseesss

Swencki v. Educational Testing Service, 740 F.2d 969 (6th Cir.

1984), aff g mem. No. C. 81-0689 L(A) (W.D. Ky., May 26,

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Tyler v. Vickery, 517 F.2d 1089 (Sth Cir. 1975), cert. denied, 426

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6-7n.

No. 84-1727

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1984

SUSAN E. JOHNSON,

Petitioner

Vv.

EDUCATIONAL TESTING SERVICE,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

Statement of the Case

Because the issues raised by this case are essentially factual, it

is unfortunate that the Statement of the Case in the petition omits or

misstates many of the critical facts established in the course of pro-

ceedings below. Rather than lengthen this opposition by cataloging

individual omissions and misstatements, however, the respondent,

Educational Testing Service (‘‘ETS’’), relies upon the opinions be-

low for a fuller, and fairer, overall presentation of the facts of the

case. See B. B-2-4, B-6-9; A. A-2-4, A-9-10, A-13.!

' Reference abbreviations are used herein as fol’ ~ws: ‘‘R.’’ refers to the

record appendix in the Court of Appeals; ‘‘P.’’ to the petition for a writ of

certiorari; and ‘‘A.’’ and ‘‘B.’’ to Appendices A and B respectively — the

Court of Appeals and District Court opinions — to the petition.

REASONS FOR DENYING THE WRIT

Contrary to the claims made in the petition, the decision of the

First Circuit does not conflict with decisions of this Court or any

other court, the issues raised in the case are peculiarly factual, and

the case presents no issues of great public importance. Accordingly,

the case does not merit Supreme Court review.

I. THE DECISION OF THE FIRST CIRCUIT HEREIN IS NOT

IN CONFLICT WITH DECISIONS OF OTHER CIRCUITS

OR OF THIS COURT.

The petition claims that the decision of the First Circuit conflicts

with other decisions as to the proper standard for granting summary

judgment (P. 9-11) and as to the law for determining whether action

by a private party is ‘‘state action’’ governed by the due process

Clause (P. 11-14). These claimed conflicts are fictional.

A. State Law Claims.

In passing on the propriety of summary judgment against the pe-

titioner on her state law claims, the First Circuit reviewed the record

to determine whether, indulging all legitimate inferences favorable

to the petitioner, she had shown the presence in the case of any

genuine issue of material fact requiring a trial of her claims. See A.

A-8-9. This staadard of review does not conflict with, but is instead

identical to, the standards for summary judgment embodied in Fed.

R. Civ. P. 56 and uniformly appli: »y this and other courts, e.g.,

Poller v. Columbia Broadcasting System, 368 U.S. 464, 473 (1962).

As the petition makes clear, moreover, the petitioner’s dissatis-

faction with the First Circuit’s affirmance of summary judgment on

her state law claims lies not in the standard applied but rather in the

conclusion reached upon its application — the court’s asserted failure

“*properly [to] construe[ ] the record.’’ P. 9. Examination of the

record of a stale dispute to assess the existence of triable factual issues

is rarely an appropriate function of this Court, and it would be par-

ticularly inappropriate in this case. Of the supposed errors in how

the Court of Appeals ‘‘construed the record’’ (P. 10), none goes to

the factual determinations governed by state law that led to the sum-

mary judgment. The resolution of the motion for summary judgment

turned on the factual question whether ETS’s finding of adequate

reason to question the validity of the Apri! 1971 LSAT score and

consequent cancellation of the score were in good faith. As to that

question, however, the facts were undisputed, and the petitioner’s

charges proved to be speculations unsupported by any evidence. The

opinions below relied upon the following facts: After a question about

the April 1971 score reported for the petitioner, Miss Johnson, was

raised by the University of Pennsylvania Law School, ETS inves-

tigated the matter over a period of more than three months, during

which it obtained information from its own files and staff, including

members of its Test Security Office who individually compared the

test sheets of October and December 1970 with those of April 1971

and concluded that the latter were not written by the same hand as

the earlier papers (see the Appendix to this opposition), from Miss

Johnson, her counsel and those who submitted information on her

behalf, and from four independent handwriting analysts. This infor-

mation was submitted to the ETS Board of Review, an internal body

of senior ETS personnel experienced in passing on questioned test

scores with exclusive authority within ETS to make findings of rea-

son to doubt questioned scores and to cancel such scores.? Through

the members of the Board of Review, who were unanimous in their

conclusion, ETS reached the opinion that there was adequate reason

to question the validity of the April 1971 LSAT score. In reaching

this decision, the board was influenced by the evidence of hand-

writing differences on the test sheets and registration forms them-

selves, the opinions of the four independent handwriting analysts,

? Thus, the alleged statements, ascribed in the petition to ‘‘ETS officials”

(P. 6), of members of the ETS Test Security Office who did not serve on

the Board of Review (R. 120-21; see R. 396-99, 500-02) offer nothing

material to support the petitioner’s claim of bad faith.

4

three of whom concluded without reservation that the April 1971 test

sheets were not authentic, and the statistically improbable leap in the

April test score of 623 following two consistent scores in the low

300’s obtained not long before in October and December of the prior

year.? ETS offered Miss Johnson a retest, using the same test on

which the questioned score was computed, at no additional fee, and

advised her that it would confirm the questioned score if Miss John-

son came within 50, and possibly if she came within 100, points of

the previously computed score of 623. Miss Johnson declined the

offered retest option. Thereafter, ETS cancelled the April score. See

B. B-6-9; A. A-2-3, A-9-10. These facts are fully supported in the

record and are not disputed by the petition. Thus, as to the controlling

question of adequate reason to doubt — good faith, the petitioner

remains unable to point to any genuine issue of material fact ren-

dering summary judgment inappropriate, and the First Circuit’s de-

cision is in complete harmony with decisions of other Courts of Ap-

peals. See Crow v. Educational Testing Service ,703 F.2d 556 (Sth

Cir. 1983), aff g mem. No. 80-1865 (W.D. La., April 28, 1982)

(ETS had right to withhold score based on question as to validity

whether or not plaintiff in fact took test); Swencki v. Educational

Testing Service, 740 F.2d 969 (6th Cir. 1984), aff g mem. No. C.

81-0689 L(A) (W.D. Ky., May 26, 1983) (statistical improbability

3 The alleged statement that Miss Johnson’s affidavit should be given

**no weight’’ (P. 6) is not evidence of bad faith. The affidavit was considered

by all Board members (R. 130; 143; 145), and the claimed determination

by one of their number that the affidavit, with its wealth of detail as to every

matter except the actual taking of the LSAT (R. 238-41), was entitled to

no weight in dispelling doubt about the validity of the April score was well

within the range of good faith evaluations of the affidavit. Similarly, the

claimed refusals to provide Miss Johnson with identities of other persons

at the test center in no way shows bad faith. Evidence of Miss Johnson’s

presence on the scene would not have removed doubt as to the score since

she could have been at the test center and still have been impersonated. See

R. 503. See also R. 470.

of standardized graduate school admissions test score’s validity gave

ETS good faith reason to cancel score as a matter of law).‘

B. Due Process Claim.

The claimed conflict between the law applied by the First Circuit

in disposing of the petitioner’s due process claim and that cf other

decisions is equally insubstantial. The petition acknowledges (P. 13),

albeit in a backhanded fashion, that the First Circuit’s decision in

this case followed this Court’s decisions in Bluin v. Yaretsky, 457

U.S. 991 (1982) and Rendell-Baker v. Kohn, 457 U.S. 830 (1982).

See A. A-4-8. The petition, however, suggests that this case is dis-

tinguishable because of ETS’s alleged ‘‘veto power’’ over law school

admissions and the presence of ‘‘public officials’ on the ETS gov-

erning board. P. 12. The alleged ETS ‘‘veto power’’ (less stridently

characterized by the petitioner as ‘‘virtual veto power’’ in the courts

below, see B. B-4; A. A-5) would, if it existed, be no different in

kind from the private ‘‘veto power’’ over the payment of Medicaid

benefits held not to constitute state action in Blum (457 U.S. at 1005);

in fact, however, there was no evidence that any such ‘‘veto power’’

exists, while the University of Pennsylvania Law School’s admission

of Miss Johnson prior to the April 1971 LSAT at a time when her

LSAT scores were 317 and 323 (R. 380) was clear evidence to the

contrary. With respect to the presence of ‘‘public officials’’ on the

ETS governing board, the petition fails to disclose that the petitioner

was able to identify only one ETS board member whose regular

employment was by a publicly supported institution (compare R. 6-

7 with R. 15, R. 566). More important, it is undisputed that ETS

Board members were chosen for their individual personal attributes

and did not serve on the ETS Board in any official state capacities

(R. 133-34; 313-15). There is thus presented here no conflict what-

* Copies of the unreported district court decisions in these cases were

submitted as part of the record in the proceedings below to the district court

and by leave to the First Circuit.

6

soever with the two cases relied on by the petition (P. 13), Gilmore

v. Salt Lake Community Action Program, 710 F.2d 632, 634 (10th

Cir. 1983) (federal statute dictated one-third board membership of

public officials, acting in official capacities, for sponsored com-

munity action agencies), and McVarish v. Mid-Nebraska Community

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

required appointment to board of one official for each affected public

body to represent interests of governmental units). To the contrary,

the First Circuit’s decision is fully in accord with prior decisions of

other courts passing on claims of state action in ETS’s standardized

admissions testing activities. Brown v. Educational Testing Service,

No. C-71 2029 AJZ (N.D. Cal., January 31, 1972) (no state action

in ETS’s standardized graduate school admissions test administra-

tion);> K.D. v. Educational Testing Service, 87 Misc. 2d 657, 386

N.Y.S.2d 747 (1976) (no state action in ETS cancellation of ques-

tioned LSAT score). The claimed state action issue in this case would,

moreover, be particularly inappropriate for review by this Court,

given the ample demonstration in the record that the petitioner re-

ceived all process which might have been due her had constitutional

standards been applicable, see, e.g., Logan v. Zimmerman Brush

Co., 455 U.S. 422, 434 (1982); Parham v. J.R., 442 U.S. 584, 608

(1979),° and the absence from the record of any showing that the

petitioner was deprived of any right of constitutional dimension, see,

e.g., Paul v. Davis, 424 U.S. 693 (1976).

* Copies of this unreported decision were submitted as part of the record

in the proceedings below to the district court and by leave to the First Circuit.

® The ample procedural protections accorded Miss Johnson by ETS were

summarized by the courts below. A. A-2-3, A-10; B. B-6-10. There is,

moreover, a substantial body of law in the bar examination context holding

that the opportunity of a retest (as afforded to Miss Johnson), standing

alone, provides adequate procedural protection against erroneous or arbi-

trary test result evaluation and reporting. See, e.g., Jones v. Board of Com-

missioners of Alabama State Bar, 737 F.2d 996, 1002-03 (11th Cir. 1984)

(limited number of retest opportunities provides sufficient due process to

protect against erroneous or arbitrary examiner action); Lucero v. Ogden,

718 F.2d 355 (10th Cir. 1983) (absolute, unqualified right to retake ex-

ee

7

Il. THIS CASE PRESENTS NO ISSUES OF

GREAT PUBLIC IMPORTANCE.

The fact-specific issues raised by the petitioner’s attack on the

disposition of her state law claims can have little importance to any-

one other than the parties to this case. The facts raising questions

about the validity of the April 1971 LSAT score and the specific

actions of ETS in connection therewith are unique to the petitioner’s

case, and the propriety of summary judgment on those facts would

be of minimal direct interest to others than the parties. On the other

hand, the supposed state law issue of importance urged by the petition

— whether the LSAT complied with ETS’s alleged ‘‘warranty’”’

therefor’ (see P. II (Question Presented 7.), 7) — is simply not present

in this case, because the petitioner never pled nor otherw mse advanced

below a claim of damage from any alleged breach of warranty, and

thus failed to present any concrete controversy as to this supposed

issue.* See R. 10 (Complaint, 1920-21); A. A-9; B. B-6.

amination satisfies due process), cert. denied, 104 S. Ct. 1308 (1984); Brewer

v. Wegmann, 691 F.2d 216 (Sth Cir. 1982) (retest satisfies due process need

to protect against reporting of incorrect score), cert. denied, 461 U.S. 908

(1983); Poats v. Givan, 651 F.2d 495, 497 (7th Cir. 1981) (‘‘the possibility

of re-examination satisfied due process’’); Tyler v. Vickery, 517 F.2d 1089,

1103-05 (Sth Cir. 1975) (due process not offended by lack of review pro-

cedures ‘‘primarily because an unqualified right to retake the examination

. . . both satisfies the purposes of a hearing and affords its protection’’),

cert. denied, 426 U.S. 940 (1976). Contra, Richardson v. McFadden, 540

F.2d 744, 752 (4th Cir. 1976), cert. denied, 435 U.S. 968 (1978).

’ ETS disclaimed that the test was in any way an infallible or perfect

predictor. R. 345-47. It cautioned that the LSAT was not an intelligence

test (R. 345), that while the correlation between test scores and law school

grades was not perfect, the test did predict which students are most likely

to do well (R. 346), and that law schools are aware that the test does not

measure all the factors that are instrumental in determining a successful

student (id.).

® Indeed, the relief sought by the petitioner from the outset was an order

that the April score be declared valid, relief flatly inconsistent with any

claim that the score was somehow defective because in breach of a supposed

warranty as to reliability. See R. 13.

8

Equally without significance to others is the disposition of the

petitioner’s due process claim. In the fourteen years that have passed

since the events at issue in this case, responsibility for LSAT ad-

ministration and test security has passed from ETS to an unrelated

entity, Law School Admission Services, Inc., in whose affairs ETS

plays no role and to whose actions in questioned score cases a de-

cision by this Court concerning possible state action in ETS’s doings

in 1971 would have no relevance. See R. 793-95.

Similarly inconsequential is the trial court’s denial of the peti-

tioner’s eleventh hour ‘‘Motion for Leave To File a Motion To Amend

the Complaint.’’ This anomalous motion was submitted to the district

court without any proposed amended pleading disclosing what, if

any, claims the petitioner would seek to assert, without any showing

of merit in those supposed new claims, and without any explanation

for her delay of over a decade in seeking to advance new claims. R.

895-96. Whether as a matter of law or as a matter of discretion,

denial of this untimely, open-ended and unsupported motion was

wholly proper. E.g., Foman v. Davis, 371 U.S. 178 (1962).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

GeorGeE C. CANER, JR.

Ropes & Gray

225 Franklin Street

Boston, Mass. 02110

(617) 423-6100

May 31, 1985

A-1l

APPENDIX

COMPARISON OF 1970 (OCTOBER AND DECEMBER)

TEST SHEETS WITH 1971 (APRIL) SHEETS

Among differences that can be observed between the original' 1970

and 1971 test sheets are the following:

1970 — The printing in the 1970 sheets has a vertical cast and the

script is close to vertical;

1971 — the handwriting and printing in the 1971 sheets both have

a decided slant to the right.

1970 — All the i’s are dotted;

1971 — None of the i’s are dotted.

In the 1971 sheet, the writer appears to have misspelled Ethelyn

in the signature on the first try.

1970 — The n in Haven is a smaller version of the capital N in

New;

1971 — The n in Haven has the standard configuration of a small

n topped by a horizontal line.

1970 — The capital A’s are all rendered by a triangle;

1971 — The capital A’s are rendered with a curved to a flat top.

1970 — The small printed v is made by two straight lines, with

the right-hand line finishing the higher of the two;

1971 — the lines of the v’s are concave and the right-hand line

generally finishes the lower of the two.

' These differences most clearly appear in the original test sheets sub-

mitted by leave to the Court of Appeals and made part of the record in the

possession of the clerk of that court. The copies in the record appendix in

the Court of Appeals are too indistinct to enable a proper comparison.

A-2

1970 — As in the case of the v’s, the small w is made by straight

lines, the last line being the highest;

1971 — the w has curved bottoms and is uniform in height.

1970 — The small u finishes with a straight vertical leg;

1971 — the u has no finish leg and looks like one-half of the 1971

Ww.

1970 — The small r is closed, with relatively straight lines and

the right side tends to be higher than the left;

1971 — the r is open with concave lines (like the 1971 v’s) and

the right side is lower than the left.

1970 — On the upper left and side margin, only the first letter, J,

of the four letters in the abbreviated name John is capitalized;

1971 — all four letters of JOHN are capitalized.

1970 — The d in the printing appears to be made by separate

strokes — a vertical stroke with a bottom loop separately made;

1971 — the d in the printing appears to be made conventionally

with a continuous stroke.

1970 — The second leg of the script n diverges radically from the

first leg;

1971 — the second leg of the n is conventional.

7 or | *

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