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K.D. v. Education Testing Service

Citation. 87 Misc.2d 657, 386 N.Y.S.2d 747 (Supreme Court, New York County, 1976)
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Brief Fact Summary.

All students who take the Law School Admission Test ("LSAT") agree to the possibility that their scores will be cancelled if certain improprieties are apparent.  A student took the LSAT twice and markedly approved the second time.  The administrator of the LSAT attempted to cancel the students' second score.

Synopsis of Rule of Law.

In the context of contracts of adhesion, courts will make an effort to " to protect the weaker party from the agreement's harsher terms by a variety of pretexts, while still keeping the elementary rules of the law of contracts intact."


The Plaintiff, K.D. (the "Plaintiff"), is a thirty-seven year old college graduate.  In a four month period between 1973 and 1974, the Plaintiff took the LSAT twice.  The Defendant, Educational Testing Services (the "Defendant"), is a non-profit corporation in charge of preparing and administering the LSAT.  The application for the LSAT requires candidates, like the Plaintiff, to "write out in longhand" a statement that they accept the conditions in a certain Bulletin concerning the administration of the test.  One provision of the Bulletin allowed the Defendant to cancel a candidates LSAT score if there is a reason to question the scores validity.  The Plaintiff took the test for the first time in December 1973, and received a 399.  In April 1974, the Plaintiff scored a 637, or 238 points higher then the first score.  An investigation ensued, and the Defendant noticed that the Plaintiff's answers were very similar to K.L., a candidate sitting next to the Plaintiff.  The Plaintiff was given the opportunity to provide the Defendant with an explanation about how his score increased, or to take the test a third time for free.  If the third test score was within 50 points of the second test score, the second test score would have been reported to law schools.  The Plaintiff refused to take a re-test, but provided a sworn statement to the Defendant that he did not cheat.  The Plaintiff then filed this suit seeking a declaratory judgment and an injunction restraining the Defendant from (i) canceling the April 1974 score, (ii) informing law schools about the "score's doubtful authenticity", and (iii) compelling the Defendant to report the April, 1974 score to law schools.


Whether "the clause reserving to defendant itself the right to cancel plaintiff's test score if there is a question about its validity, and requiring him to take a retest in such event, is so unfair and unreasonable that the court, having found it a part of a contract of adhesion, will disregard it"?


The court observed that the Defendant expressly reserved in the bulletin "the right to cancel any test score if in its opinion there was adequate reason to question its validity."  Additionally, "the Plaintiff accepted [the score cancellation condition] as well as all other conditions set forth in the bulletin when he completed his registration form."  The court observed that a contract of adhesion is one that is agreed to by parties with unequal bargaining power.  "They are typically standard contracts which are offered by the party with strong bargaining power to the weaker party on a take it or leave it basis."  The court observed that the contract signed by the Plaintiff was a contract of adhesion because every accredited law school in the United States requires applicants to have taken the LSAT, and as such, the Plaintiff, and all other test takers have to accept the Defendant's standard conditions. 
•    However, just because the contract is a contract of adhesion, the contract is not necessarily void.  The court will make an effort to "to protect the weaker party from the agreement's harsher terms by a variety of pretexts, while still keeping the elementary rules of the law of contracts intact."  For example the court may " find the obnoxious clause 'ambiguous', even where no ambiguity exists, and then construe it against its author; or it may find the clause to be against public policy and declare it unenforceable; or finally, the court may hold that although the offending clause prohibits a recovery by plaintiff ex contractu, it does not prohibit a recovery in tort."  Here, the court refused to disregard the clause.  It observed " if defendant reasonably believed that the test scores of plaintiff as scored on the April, 1974 test, did not accurately reflect his aptitude for law school, it acted within its right to protect its own image as well as its obligation to the schools who are its clients in canceling plaintiff's scores and requiring him to take a retest."  The court found that the Defendant, by giving the Plaintiff the option to retake the test a third time, and if the score was within 50 points of the second test, report the second test score to law schools, was fair and reasonable.


This case offers an interesting discussion about contracts of adhesion and how they are remedied.

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