On appeal from the Superior Court, Chancery Division - General Equity Part, Bergen County
Gaulkin, Muir, Jr. and Landau. The opinion of the court was delivered by Gaulkin, P.J.A.D.
Plaintiff, a temporary teacher in the New York City public schools, obtained passing scores on all three parts of the National Teachers Examination (NTE), administered by defendant Educational Testing Service (ETS). ETS conducted a review of the scores and concluded that, as to two of the three parts of the test, "copying or communication with another test taker may have occurred and . . . the questioned scores may be invalid." ETS offered plaintiff various options to resolve the question, including arbitration. Plaintiff chose arbitration and the arbitrator ruled that ETS could cancel plaintiff's scores.
Plaintiff then filed this action to vacate that award and for other relief. Finding that ETS had violated plaintiff's rights to procedural due process, the trial judge vacated the award and ordered that a "new in-person oral arbitration" be conducted in which ETS would have the burden of establishing that plaintiff had in fact cheated. We reverse.
Plaintiff had taken all three parts of the examination -- Communication Skills, Professional Knowledge and General Knowledge -- in March 1989, but passed only Communication Skills. She retook the other two parts in June 1989, this time passing Professional Knowledge but failing General Knowledge. She again failed the General Knowledge test in October 1989. After receiving some tutoring, she took the General Knowledge test for a fourth time in March 1990 and passed with a score of 679, 42 points higher than her October 1989 score. That difference prompted ETS to investigate the validity of the most recent score.
As described by ETS, its review took into consideration the fact that only three test takers out of a sample of over 7,000 recorded gains of more than 42 points in the General Knowledge test; that plaintiff's March 1990 General Knowledge answer sheet "revealed unusual agreement of correct and incorrect responses linking [her] answer sheet with that of another test taker, who will be called B"; that plaintiff's March 1989 Communication Skills answer sheet also revealed an "unusual agreement of correct and incorrect responses linking [her] answer sheet with that of another test taker, who will be called C"; and that her June 1989 Professional Knowledge answer sheet revealed no such agreement with that of any other test taker. In its analysis of the answer sheets, ETS found that
[plaintiff's] agreement with 18 or more of B's 19 incorrect responses is expected less than once in comparing B's answer sheet with 100,000,000 answer sheets completed independently by test takers performing at [plaintiff's] score level. . . . [Plaintiff's] agreement with 10 or more of C's 12 incorrect responses is expected slightly more than four times in comparing C's answer sheet with 10,000,000 answer sheets completed independently by test takers performing at [plaintiff's] score level.
ETS thus concluded that it had "substantial evidence supporting cancelation" of plaintiff's March 1990 General Knowledge and the March 1989 Communication Skills scores. ETS invited plaintiff to "provide us with any additional information that will help explain" its findings and offered these "other options for resolving this matter":
-- take the tests again at a specially arranged administration, at our expense, to confirm the validity of your scores.
-- ask ETS to cancel the scores and ETS will refund all test fees involved.
In addition, you can request third-party review of this matter by:
-- canceling the questioned scores and asking any college, university or agency to which you are applying to review the information considered by ETS and make an independent decision about accepting the scores; or
-- asking that a member of the American Arbitration Association be appointed to arbitrate the matter independently.
In its letter, ETS noted that it was enclosing a pamphlet explaining those options and "acknowledg[ing] your right to seek judicial review"; it also stated that "[i]f this matter is not
cleared up by further information or if you do not choose one of the available options, ETS will ...