CLE: 2007: Standardized Tests Erroneous Scores and Tort Liability

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CLE: 2007: Standardized Tests Erroneous Scores and Tort Liability


Vincent R. Johnson


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Standardized Tests, Erroneous Scores
and Tort Liability
Vincent R. Johnson,

Professor of Law

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II School of Law at St. Mary's University

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School of Law at St. Mary's University

Vincent R. Johnson
(210) 431-2131
Professor of Law
B.A., 1975; LL.D., 1991, St. Vincent College (Pa.)
J.D., 1978, University ofNotre Dame
LL.M., 1979, Yale University
Before St. Mary's

After completing his studies at Yale Law School, Professor Johnson served as a Law
Clerk to the Hon. BernardS. Meyer of the New York Court of Appeals and the Hon.
Thomas E. Fairchild, Chief Judge of the United States Court of Appeals for the
Seventh Circuit.

Recipient, Administration of Justice Award, presented at the Supreme Court of the
United States in 2006, by the Supreme Court Fellows Alumni Association "in
recognition of many contributions to the understanding of the American legal system
through a distinguished career teaching law."
• Visiting Professor of Law, University ofNotre Dame, 2005-2006
• Honoree, San Antonio's Top Professors, 2006 (Scene in SA Monthly magazine)
• International Scholar, National University ofKyiv-Mohyla Academy, Ukraine ,
2006-2007 (Open Society Institute, Non-Resident Academic Fellowship
• Lecturer on Legal Ethics and Government Ethics, Republic of Moldova, ABA
Central European and Eurasian Law Initiative (CEELI), June 2005
• Fulbright Senior Scholar, University of Bucharest, Romania, Spring 2005
• Lecturer on Legal and Judicial Ethics, American Bar Association Asia Law
Initiative, Mongolia Legal Reform Program, 2004-present [Materials]
• Associate Dean for Academic and Student Affairs, St. Mary's University
School of Law, 2002-2005
• Associate Dean for Administration, St. Mary's University School of Law,
• Visiting Professor, Shandong University, China, May to June 2001
• Reporter, Standards on State Judicial Retirement (adopted by the American B ar
Association House of Delegates), 1999-2001
• Visiting Professor, St. Petersburg State University, Russia, November to
December 1999
• Fulbright Senior Scholar, Renmin (People 's) University , Beijing, China,
February to June 1998
• Judicial Fellow at the Supreme Court of the United States, 1988-89


~ -t


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Professor Johnson joined the St. Mary's faculty in 1982. He teaches and writes
principally in the areas of:

Tort Law
Legal Ethics
Legal Malpractice

Professor Johnson has published three books that are now in their third edition:
• Studies in American Tort Law (Carolina Academic Press, 1994, 1999, 2005).
• Teaching Torts (Carolina Academic Press, 1995, 1999, 2005).
• Mastering Torts (Carolina Academic Press, 1994, 1999, 2005). Masting Torts
was published in Beijing by China Renmin University Press under the title
American Tort Law (2004) in two versions, one in Chinese and the other in
English with Chinese keywords. [Preface] (A third translation of the 2005
edition was published in Taipei by Wu-Nan Books Inc. in 2006)
Recent articles include:
• Regulating Lobbyists: Law, Ethics, and Public Policy, 16 Cornell Journal of
Law and Public Policy no. 1 (forthcoming 2007)
• Standardized Tests, Erroneous Scores, and Tort Liability, 38 Rutgers Law
Journal (forthcoming 2007)
• Rehnquist, Innsbruck, and St. Mary's University, 38 St. Mary's Law Journal 145 (2006)
• Americans Abroad: International Education Programs and Tort Liability, 32
Journal of College and University Law 309-59 (2006) (peer-reviewed)
• The Tort Duty o[Parents to Protect Minor Children, 51 Villanova Law Review
311-36 (2006) (with Claire G. Hargrove)
• Ethics in Government at the Local Level, 3 6 Seton Hall Law Review 715-779
• Book Review: Chinese Law on SARS by Chenglin Liu, 7 Asian-Pacific Law &
Policy Journal 32-36 (2006)
• Cybersecurity. Identity Theft. and the Limits o[Tort Liability, 57 South
Carolina Law Review 255-311 (2005) (lead article)
• Fighting Epidemics with Information and Laws: The Case o[SARS in China,
24 Pem1 State International Law Review 157-176 (2005) (with BrianT.
• Justice Tom C. Clark 's Legacy in the Field o[Legal Ethics, 29 Journal of the
Legal Profession 33-70 (2005) (University of Alabama)
• Misrepresentation by Lawvers about Credentials or Experience, 57 Oklahoma
Law Review 529 (2004) (with Shawn Lovorn)
• Transferred Intent in American Tort Law, 87 Marquette Law Review 903 -38
• "Absolute and Perfect Candor" to Clients, 34 St. Mary's Law Journal 737-93
• Preface, 1 Chinese Review of Common Law 1-2 (2003) (invited publication;


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inaugural volume).
The Ethical Foundations o[American Judicial Independence, 29 Fordham
Urban Law Review 1007-28 (2002).
Tort La:w in America at the Beginning ofthe 21st Centurv, 1 Renmin
University of China Law Review 23 7-64 (2000) (invited publication)
The Virtues and Limits o[Codes in Legal Ethics, 14 Notre Dame Journal of
Law, Ethics, and Public Policy 25-4 7 (2000)
Chinese Law and American Legal Education, 31 St. Mary's L.J. 1-5 (1999)
(symposium preface)
America's Preoccupation with Ethics in Government, 30 St. Mary's L.J. 71758 (1999).
The Ethics of Communicating with Putative Class Members, 17 Review of
Litigation 497-524 (1998).
Ethical Campaigning for the Judiciary, 29 Texas Tech Law Review 811-49
(1998) (University ofTexas).

Organizations, Activities, and Listings:

• Member, American Law Institute
• Member, Aegean/Black Sea Peer Review Committee, Council for the
International Exchange of Scholars, 2005-present
• Member, Advisory Board, Chinese Review of Common Law (edited in the UK
and published in the PRC) (2002-present)
• Member, Editorial Advisory Board, Carolina Academic Press (1995-present)
• Commissioner, Judicial Fellows Commission (1993-99)
• 1997-1999, Chair, Mayor of San Antonio Taskforce on Ethics in Govemment
(the work of which led to the adoption of a new ethics code goveming the
city's 11,000 officials and employees)
• 1989-2001, Director of the St. Mary's University Institute on World Legal
Problems, a summer program on intemational and comparative law conducted
annually at the University of Innsbruck in Austria. Participants included five
Justices of the United States Supreme Court, students from 90 American law
schools and more than 40 visiting professors from Austria, China, Germany,
Italy, Hungary, Russia and the United States.
• San Antonio Bar Foundation
• Texas Bar Foundation
• Who's Who in America (58th ed. 2004, 61st ed. 2007)
• Who's Who in American Law (12th ed. 2002-03,13th ed. 2003-04, 14th ed.
• Who's Who in American Education (7th ed. 2006-2007)
• State Bar of Texas
• San Antonio Bar Association
• American Bar Association
• Fulbright Association
• Association of Professional Responsibility Lawyers
Recent Presentations:

• "How the Sarbanes-Oxley Act Changes the Duties of United States and
Foreign Lawyers," Conference on the Liabilities of Lawyers in Crossborder
Transactions and Disputes, Kitzbuhel, Austria, January 2005, sponsored by the
Center for International Legal Studies. [synopsis]

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School of Law at St. Mary's University
School of Law, St. Mary's University, One Camino Santa Maria, San Antonio , Texas

http://www php?go=fac jolmsonv&id=&print= 1


Vincent R. Johnson·
This article will be published in volume 38, issue 3, of the Rutgers Law Journal (Spring 2007)




Scores are Wrong . .... ..... . . . .................... . .. . ....... Page 2
High Stakes . . .... .. .. . . . .. . .......... . ... .. .... ..... ........ Page 2
Common Ground in Controversial Territory ................... . . Page 3
Vast Expansion of Standardized Testing ....................... .. Page 5
Spectacular Mis-scoring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 9
Litigation Follows Innovation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 15
Viability of Tort Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 20


Preliminary Considerations .............. . ..................... ... .
Damages in Erroneous Scoring Cases ................... . .. ... .
Truth-in-Testing Laws .......... . ..................... . ... . .
Contract Law . . .............. . ... . . . .. . ................ . .. .
The Economic-Loss Rule in Tort Law ......................... .

Page 22
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Page 25
Page 26
Page 28


Tort Theories of Recovery .......... . .... . ...................... . .. .
Negligence and Infliction of Emotional Distress .. . . ... .. .. ...... .
M isrepresentation ..... .. ...................... . ..... . .. .. . .
Fraud ......................................... . .... .
Negligent Misrepresentation ....... . .............. . .... .
Duty to Non-Paying Test-takers ........................ .
Defamation and False-Light Invasion of Privacy ........... . .... .
Tortious Interference with Prospective Advantage .. . . . ...... . .. .
Injurious Falsehood .............. . . . .. . ... . ... . ............ .

Page 32
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Page 43
Page 45
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Page 58
Page 64


Guarding, But Not Closing, the Courtho use Doors . . . . . . . . . . . . . . . . . . . . . Page 67

• Professor of Law, St. Mary's University School of Law, San Antonio, Texas.
International Scholar, National University ofKyiv-Mohyla Academy, Ukraine (2006-07) (Open
Society Institute, Non-Resident Academic Fellowship Program). B.A., LL.D., St. Vincent
College (Latrobe, Pa.); J.D., University ofNotre Dame; LL.M., Yale University. Warren D .
Rees, Research Librarian at the Notre Dan1e Kresge Law Library provided help in locating
material dealing with pending cases. Research and editorial assistance were provided by six law
students at St. Mary' s University: Graham D. Baker, Brenna Nava, Mack T. HaiTison, Stephen
A. Aguilar, MatthewS. Compton, and Jack K. Reid.




When Scores are Wrong

High Stakes

Hopes and dreams often hinge on the accuracy of standardized test scores. Results
frequently determine, or greatly influence, whether a student progresses to the next grade level , 1
attains a diploma/ gains admi ssion to a college or university, 3 or can practice a profession after
graduation. Prudent expenditure of public and private resources also depends upon the accuracy
of standardized test scores. Unless test results are correct, elementary and secondary schools may
Jose state or federal funding, 4 such as cash bonuses for superior performance, 5 or may incur
added costs of providing required remedial programs. 6 If scores are understated, teachers may be


Perspective, High Stakes, ST. PETERSBURG TIMES, Apr. 2, 2006, at 2P, 2006 WLNR
5546251 (stating that wrong standardized scores in Florida can deny "third-grade students the
right to advance to fourth grade").

See Blakely Latham Fernandez, Comment, TAAS and GJ Forum v. Texas Education
Agency: A Critical Analysis and Proposal for Redressing Problems with the Standardized
Testing in Texas, 33 ST. MARY'S L.J. 143, 198 (2002) (indicating that in Texas "over a hundred
thousand students, primarily minorities, otherwise qualified to graduate have been denied
diplomas and other opportunities for economic and social success because they failed to pass" a
required standardized test).

See, e.g., CAL. Eouc. CODE§ 99150 et seq. (2006) (stating the legislature's finding that
"[s]tandardized tests are a major factor in the admission and ·placement of students in
postsecondary education").

See Sam Dillon, Most States Fail Demands in Education Law, N.Y. TIMES, July 25,
2006 (discussing the potential loss of federal funds under a law which emphasizes performance
measured by standardized testing).

See Assoc. Press, Additional Schools Identified as Possible Cheaters on TAKS, SAN
ANTONIO EXPRESS-NEWS, July 24, 2006, at 6B (discussing standardized tests in Texas).

See Tiffany Lankes, Once, Only Teachers Examined Student Test Results. Today,
Everybody's Watching, SARASOTA HERALD-TRIB. (FL)., June 18,2006, at Al, 2006 WLNR
10557105 (stating that under the federal No Child Left Behind law, which requires standardized
testing in elementary and secondary education, "schools that receive federal funding because they
have a high number of poor students have to pay for mandatory remedial programs if they don't
meet the goals"); Jenny La Coste-Caputo, Feds See Things Looking Up at Schools in the SA.
Area, SAN ANTONIO EXPRESS-NEWS, Aug. 18, 2006, at 1 (discussing how schools with bad
standardized test results under the federal No Child Left Behind Jaw can be obliged to pay for



paid less7 or even lose their jobs.8 Just as importantly, if test scores are inaccurate, scholarship
dollars may be awarded to the "wrong" applicants, frustrating oft-painstaking efforts to allocate
limited resources wisely and denying students opportunities they otherwise would merit.
Because standardized tests are relied upon in professional credentialing, such as teaching
certification9 and admission to the bar, 10 erroneous scores pose a further risk that the public will
not be protected from deficient practitioners and that qualified aspirants will be barred from their


Common Ground in Controversial Territory

There are endless disputes over the merits of standardized testing. 11 Critics often argue

tutoring or transporting students to better-performing schools).

Stuart Silverstein, Standardized Tests Don't Always Make the Grade, L.A. TIMES, Mar.
19,2006, at 32,2006 WLNR 6958920 (stating that in K-12 education, standardized tests "help
make such determinations as school rankings, teacher licensing and pay").

See LaCoste-Caputo, supra note 6 (discussing "reconstitution" of a school with bad test
result under a process where teachers are fired and forced to reapply for their jobs).
Cf Daniel Austin Ortiz, Comment, Innocent Until Proven Guilty? Not If You're
Teaching Me: A Texas Teacher's Right to Procedural Due Process, 8 SCHOLAR 95, 104 (stating
that, under an examination administered to current Texas educators, "teachers forfeit their
certification if they fail to achieve a satisfactory score on the standardized test").



See note 37.

The value of standardized testing is, to some extent, a matter of context.
"Corruption, in the form of bribes to gain university entrance or pass exams, was endemic in
higher education in the Soviet Union and persists in virtually all post-Soviet states." Vera Rich,
Law Sh~ft Could Trap Dissenting Lecturers, 8/4106 TIMES HIGHER EDUC. SUPP. 10, 2006 WLNR
13533026. Today, reformers in those countries promote the use of anonymous standardized
testing to fight corruption in admissions decisions. See Renata Kosc-Harmatiy, Fulbright
Ukraine Discusses the Idea and Relevance of the University, in FULBRIGHT UKRAINE 2004, at
102 (Myroslava Antonovych ed.) (discussing a conference in Ukraine). See also F for Fairness:
Prosecutor's Report Card Finds Universities Failing to Fight Corruption, 8/3/06 TIMES CENT.
ASIA (Kyrg.), 2006 WLNR 133 78109 (reporting that "an anonymous testing system, whereby
every entrant is given a separate number, and tests are run in parallel on the same day nationwide
... is widely applied in Turkey, Uzbekistan, Kazakhstan, Ukraine, and some other countries,"
although "Tajikistan hasn't tried it so far").



that such evaluation instruments test the wrong skills or knowledge. 12 Civil rights advocates
contend that standardized examinations are biased against minority test-takers 13 and members of
other disadvantaged groups. 14 Critics also plausibly assert that the widespread availability of
costly test preparation courses skews results in favor of those who can afford them and thereby


See, e.g., Richard Delgado, Official Elitism or Institutional Self Interest? 10 Reasons
Why UC-Davis Should Abandon the LSAT (And Why Other Good Law Schools Should Follow
Suit) , 34 U.C. DAVIS L. REV. 593, 598 (2002) (stating that many standardized tests "do not test
all relevant skills. The LSAT, for example, only requires verbal and reasoning fluency, not the
ability to command probability, scientific reasoning, humanistic thought, historical thought, or
knowledge of human motivation and psychology-all skills important for lawyers"); Leigh Jones,
Bar Examiners Craft Key to Lawyers' Fate, NAT'L L.J., July 28, 2006, sfb/lawArticleSFB.jsp?id=l153991134010 (indicating that the
Multistate Bar Exam has been criticized on the ground that it "bears little relationship to the
practice of law"). See also Michael Winerip, Standardized Tests Face a Crisis Over Standards,
N.Y. TIMES, Mar. 22, 2006 (discussing concerns over whether requirements under federal law
"pressure ... states to dumb down their tests").

See, e.g., Steven A. Ramirez, A General Theory of Cultural Diversity, 7 MICH. J. RACE

& L. 33, 56 (2002) (arguing that it is "clear that much of the divergence in the 'qualifications' of
minority group members versus 'Caucasians' is directly attributable to standardized tests");
David J. Trevino, Comment, The Currency of Reparations: Affirmative Action in College
Admissions, 4 SCHOLAR 439, 454 (2002) (asserting that "in general minorities do not perfom1 as
well as non-minorities on standardized exams" and, therefore, "one may argue that these scores
serve as a proxy for race"); Student Sues Over SAT Scoring Snafu, 5/1106 WOMEN HIGHER EDUC.
4, 2006 WLNR 8977903 (quoting a representative ofFairTest, a nonprofit group that advocates
de-emphasizing the importance of standardized tests, who claims that colleges that do not require
the SAT "report getting more applicants and an increase in those from minority and low-income
students, without a decrease in academic performance") . See also NICHOLAS LEMANN, THE BIG
"Negro problem" in the development of the Scholastic Aptitude Test); Fernandez, supra note 2,
at 150-67 (discussing equal protection, due process, and federal civil rights act challenges to
" high-stakes testing").

Cf Scott Weiss, Contemplating Greatness: Learning Disabilities and the Practice of

Law, 6 SCHOLAR 219, 242-50 (2004) (discussing standardized testing ofbar applicants with
dyslexia and other disabilities). See also LEMANN, supra note 13, at 227 (stating that Allan
Nairn's 1980 report accused the Educational Testing Service of using standardized testing as "an
official way for people with money to pass on their status to their children"); Karen Mellencamp
Davis, Note, Reading, Writing, and Sexual Harassment: Finding a Constitutional Rem.edy When
Schools Fail to Address Peer Abuse, 69 IND. L.J. 1123, 1159-60 (1994) (asserting that most
standardized tests are biased against females).



undermines the value of standardized testing. 15
Despite these concerns, everyone agrees that if standardized tests are given they should be
scored consistently and accurately. If answer "C" is the "right" choice for a question, then "C"
must be the right choice for every student who answers that question. 16 If a hundred students all
select identical answers on the same standardized test, they should all receive the same scores.
Anything else would violate deeply held American ideals of equal treatment, 17 consumer
protection, 18 and fair opportunity 19-not to mention intellectual honesty.


Vast Expansion of Standardized Testing


See LEMANN, supra note 13, at 222 (discussing complaints about the Scholastic
Aptitude Test in the 1970's: "[k]ids with rich parents would take Stanley Kaplan's course and
their scores would go up"). See also Association of Am. Med. Colleges v. Princeton Review,
Inc., 332 F. Supp. 2d 11 (D. D.C. 2004) (reviewing claims by the provider of medical school
aptitude test against a test preparation service).

As the illustration suggests, this article is mainly concerned with the mis-scoring of
objective-style standardized questions, which offer alternative answers to a question. However,
some standardized tests include an essay component, and, in some instances, mis-scoring
complaints relate to that section of the test. See, e.g., note 76 and accompanying text.

"The search for social equality ... [was] a dominant theme in twentieth century
America." Vincent R. Johnson, America's Preoccupation with Ethics in Government, 30 ST.
MARY'S L.J. 717, 745 (1999) (hereinafter "America's Preoccupation"). See generally Vincent
R. Johnson, The Virtues and Limits of Codes in Legal Ethics, 14 NOTRE DAME J. L. ETHICS &
PUB. PoL'Y 25, 32 & n.33 (2000) (asserting that "[i]n contemporary America, equal treatment is
highly prized, as is reflected by the ubiquitous invocations of 'equal protection,' 'equal justice
under law' and 'equal opportunity"' and citing case law statistics). Today, "in the public sector,
anything which gives one person a competitive advantage over anotber in pursuing the benefits
and resources that government can provide is ethically suspect." ld. at 32. "[T]he essence of
American greatness was a quality that Alexis de Tocqueville had remarked upon early in the
nineteenth century: social equality, of a kind that would be unthinkable in any other country."
LEMANN , supra note 13, at 7.

See America's Preoccupation, supra note 17, at 749-50 (1999) (discussing the rise of
consumer protection in America during the twentieth century).

"Opportunity is the great onrushing force in American society, the thing that every
single person is supposed to have as a fundamental right and whose denial is morally
unacceptable." LEMANN, supra note 13, at 155.



Standardized testing is today widely employed in the United States20 and abroad.2 1
Although standardized tests have been used in America since at least the 1920s, 22 the fi eld of
standardized test preparation, administration, and scoring grew "enormously"23 after President
George W . Bush signed the No Child Left Behind Act24 in 2002, catalyzing the demand for such
evaluative instruments at the state level. This federal law requires that a very wide range of
public school students "be annually tested in math and reading." 25 Forty-five million such tests


See, e.g., Mark Johnson, N. Y Senator Subpoenas Execs Over SATs, AUSTIN
AMERICAN-STATESMAN, July 11 ,2006, available at
http://www.statesman. com/news/corzte nt/shared-genlap/National/SAT_Scoring_Error. htm1 (last
visited July 12, 2006) (stating that the "College Board administered 9 million college entrance
exams last year, collecting $500 million in revenue"). Cf Editorial, The School Testing Dodge,
N.Y. TIMES, July 2, 2006 (discussing how state and federal standardized tests are used to
measure achievement in math and science).

See Joseph L. Pratt, The Two Gates ofNational Taiwan University School of Law, 19
UCLA PAC. BASIN L.J. 131, 150- 158 (200 1) (discussing the series of exams that students take
from middle school on to determine what field of study they will pursue); Sang-Hyun Song,
Legal Education in Korea and the Asian Region, 51 J. LEGAL Eo. 398 (2001) (referring to a
qualifying exam administered by the Korean national government which is roughly comparable
to the SAT in the United States); Barry Sautman, Affirmative Action, Ethnic Minorities and
China 's Universities, 7 PAC. RIM L. & PoL ' y J. 77, 86 ( 1998) ("stating that " (i]n 1996, the
national entrance examination had a total of 750 points, but because competition for university
places in China is fierce, a single point can make a difference in seeking admi ssion to high er
education in general or to a student's university of choice") ; Jin-Ah Yoo, A Race to Educate
Earning Mixed Grades: S. Korean Moms' Aggressiveness Doesn't Score High With Critics,
STAR-LEDGER (Newark, N.J.), Nov. 25, 2005, at 59, available at 2005 WLNR 19039743
(referring to the Korean college entrance examination's ramifications on social status and marital
and job prospects).

The SAT was introduced into American life on June 23, 1926. See LEMANN, supra
note 13, at 32. "The Law School Aptitude Test was first offered in February 1948, two months
into the ... [Educational Testing Service's] existence, and a few months later ETS was given a
contract to develop the Medical Aptitude Test." ld. at 70. " (T] he University of Califomia began
requiring all applicants to take the SAT" in 1967. ld. at 17 1.

Karen W. Arenson & Diana B. Henriques, Company's Errors on SAT Scores Raise
New Qualms About Testing, N.Y. TIMES, Mar. 10,2006,2006 WLNR 4023422.

20 U.S.C.S. § 630 1 (2004).


CBS Evening News, Apr. 3, 2006, 2006 WLNR 568365 1.



will be given this year alone. 26 According to some sources, standardized testing is today a "$2
billion industry,"27 and "[n]ever has the nation's education system been so reliant on standardized
tests and the companies that make them."28 Students and educators focused on access to or
performance in higher education are well acquainted with the acronyms which denote a barrage
of standardized tests, including the SAT/9 PSAT/NMSQT,30 ACT, 31 GRE,32 GMAT, 33 MCAT,34






Winerip, supra note 12.


Scholastic Aptitude Test. See (last visited July 19, 2006) (stating
that "more than two million students take the SAT every year") .

Preliminary Scholastic Aptitude Test/National Merit Scholarship Qualifying Test. See (last visited July 19, 2006).

See (last visited July 19, 2006) (claiming that"(t]he ACT is
America's most widely accepted college entrance exam").

Graduate Record Examinations. See 1645al de9b3a0779fl751509/?vgnextoid=b
195e3b5f64f4010VgnVCM10000022f95190RCRD (last visited July 19, 2006).

Graduate Management Admission Test. See (last visited July 19, 2006) (noting that " [p]eople from
all over the world and from all different backgrounds have taken the test").

Medical College Admission Test. See (last
visited July 19, 2006) (indicating that "(a]lmost all U.S. medical schools require applicants to
submit MCAT scores").



DATP ,35 LSAT,36 MPRE, 37 and MBE. 38 "Nearly two million students now take ACT's 8th- and
1Oth-grade assessment tests, and a growing number of states are giving the ACT test to all 11th
graders. " 39
The Educational Testing Service annually administers more than 12 million tests
worldwide. 40 But there are other major players. Pearson Educational Management, "a subsidiary
of ... [a] giant publishing company ... scored more than 300 million pages of answers last year
and about 40 million individual tests. " 41


Dental Admission Testing Program. See (last visited July 19, 2006) (noting
that "[t]he Dental Admission Test is admini stered on computer on almost any day of the year").

Law School Admission Test. See (last visited July 19, 2006) (stating
that the LSA T "is a half-day standardized test required for admission to all ABA-approved law
schools, most Canadian law schools, and many non-ABA-approved law schools").

Multistate Professional Responsibility Examination. See (last visited July 19, 2006) (indicating that the vast majority of
American jurisdictions require applicants for admission to the bar to pass the MPRE). See
generally Vincent R. Johnson, Justice Tom C. Clark 's Legacy in the Field ofLegal Ethics, 29 J.
LEGAL PROF. 33, 56-58 (discussing the history of the MPRE and opining that "[n]othing was
more natural than that calls for increased attention to ethics education in law schools, such as
Justice Clark's, would be followed by a plan to test whether the changes in legal education were
producing measurable results").

Multistate Bar Exan1ination. See (last visited Sept. 5, 2006) (indicating
that all American states, except Louisiana and Washington, require new laVvyers to pass the

Karen W. Arenson, For SAT Maker, A Broader Pushfor the Classroom, N.Y. TIMES,
Aug. 17, 2006.

In re: Educational Testing Service Praxis Principles of Learning and Teaching
Grades 7-12 Litigation, MDL-01643, (E.D. La. April4, 2005), First Amended Class Action
Complaint for Dan1ages, 2005 WL 3729540 (alleging that "ETS is the world ' s largest private
educational testing organization) (hereinafter "Praxis Complaint").

Arenson & Henriques, supra note 23.




Spectacular Mis-scoring

Given the volume of standardized testing, it is not surprising that errors occur, either in
scoring tests or reporting results (collectively referred to hereinafter as "scoring errors" or "misscoring"). Yet, when those failings are publicized by the media, they are not dismissed as
inevitable glitches in an otherwise sound system. Rather, because the magnitude of the interests
at stake, news of scoring errors evokes loud and frequent protests, and calls the very enterprise of
standardized testing into question. 42 Sometimes the revelation ofmis-scoring precipitates law
suits, such as recent cases arising from mis-scoring of the SAT 43 and the teacher test PRAXIS.44
Occasionally, there are even legislative investigations.45
Regardless of the original purposes of standardized testing,46 America has in fact built a
society which allocates certain valuable goods (e.g., diplomas, degrees, scholarships, educational
funding, and professional opportunities) based to a large extent on standardized test scores. Such
examinations act as a sorting mechanism that provides information for determining how those
goods should be distributed. Because the stakes are so high, the test scores simply must be


See, e. g. , Editorial, SAT Credibility: Scoring Errors on the College Entrance Exam
Should Result in Better Safeguards and Notification, GRAND RAPIDS PRESS, Apr. 27, 2006, at
AlO, 2006 WLNR 7172757 (asserting that mis-scoring affected thousands of students, "as well
as the credibility of the entire SAT program").

See Karen W. Arenson, Class-Action Lawsuit to be Filed Over SAT Scoring Errors,
N.Y. Times, Apr. 9, 2006 (discussing a class action against the College Board and one of its
contractors, quoting a source as remarking that "half a dozen law firms were working on similar
suits," and noting that an earlier case about the mis-scoring of a state test, which kept some
students from graduating, was settled for $12 million in 2002).

In re Educational Testing Service Praxis Principles of Learning and Teaching:
Grades 7-12 Litigation, 429 F. Supp. 2d 752 (E.D. La. 2005) (discussing monopolization claims
brought against a testing services provider in the wake of widespread scoring errors). See also
Karen W. Arenson, Case Involving Teacher Test is Settled, N.Y. TIMES, Mar. 15, 2006, at A20,
2006 WLNR 4293736 (describing an $11.1 million class-action settlement).

See Johnson, supra note 20 (indicating that a "New York state senator has subpoenaed
executives of the College Board over their refusal to release a report on scoring errors in the SAT
college entrance exam").

See LEMANN, supra note 13 , at 50 (observing that today the SAT is "almost universally
taken to be .. . a means of deciding who would reap America' s rich material rewards," although
it was originally intended to be a meritocratic device for selecting a "new elite . .. governing



Yet in recent years, there have been spectacular instances of standardized test scoring
errors. One recent failure involved the National Conference of Bar Examiners' (NCBE)
distribution of results from the Multistate Bar Examination (MBE). The scoring error involved
only one of200 questions on the exam, but affected the scores of"nearly 7,700 of20,000 law
school graduates who took the bar exam nationwide." 47 "No credit was given for a correct
answer on one multiple-choice question because of .. . a 'keying error' during the scoring
process."48 Based on the scores initially reported, some applicants for admission to the practice
of law were told they had passed the bar examination and others were told they had
failed-although in some states applicants had not yet been notified when the error became
known. 49 After some successful test-takers had already been sworn in as new lawyers, the NCBE
acknowledged that some of the test scores were wrong. For days, the magnitude of the problem
was unclear, and the consequences for the bar applicants was uncertain. 5° For example, in
Illinois, "(f]or three weeks, a statement on ... (a] Web site notified applicants of the error and
said scores were being recalculated but provided no further information."51 Test-takers, who had
been told that they had passed, worried that they might have failed. 52 Others, who had been told
they had failed, hoped they had passed. Friends and families worried about the consequences for
loved ones. 53 In the end, the magnitude of the bar passage problem was relatively small. 54 "For

Michael Higgins, Mistake Gives 19 Break on Bar Exam: Passing Score is Lowered by
1, CHICAGO TRIB., May 30,2003, at 1, 2003 WLNR 15330655.

Alan Fisk, Error Discovered in February Bar Exam Scoring, MIAMI DAILY Bus. REV.,
May 15, 2006, at 9; Jones, supra note 12 (stating that a "question that should have accepted
answers 'A' and 'C' was keyed to accept answers 'A' and 'D'").

See Higgins, supra note 47 (discussing California and New York).


See Regional Headlines, Error May Change Bar Results, DAYTON DAILY NEWS, May
17,2003, at B2, 2003 WLNR 2156359 (reporting that although bar passage results had been
released, a recalculation was underway that "could change whether a small percentage of
applicants-5 percent or fewer than 30 people-passed or failed").

See Higgins, supra note 47.


See T.C. Brown, Newest Attorneys Already Put to Test Bar Exam Mistake Kept Many
in Limbo, PLAIN DEALER (Cleve.), May 9, 2003, at B 1, 2003 WLNR 457608 (quoting a law
graduate as bemoaning that "[t]he last 48 hours have been the most miserable of my life"); Kellie
A. Wagner, Law Students May Not Be Lawyers after All: Clerical Error Forces Re-Grading of
All Multistate Tests, CONN. L. TRIB., May 19,2003, at 6 (discussing the uncertain fate ofthe testtakers); Jones, supra note 12 (quoting one graduate as recounting that she remembered where she
was when the eiTor was publicized: "It was like the day Kennedy was shot").

See Fisk, supra note 48 (quoting an associate dean at Ohio State University as saying
that "[s]tudents are scared about taking the bar exam anyway, so it's terrible to be thrown into



the vast majority oftest-takers, the error made no difference."55 However, at least one state
"uncertified" a new lawyer that it had already sworn in. 56 It reasoned that regardless of what
applicants for admission to the bar had been told, if they had not really passed the bar
examination, they were not qualified to practice law. Other states took an opposite course and
allowed applicants who had erroneously been told that they had passed to keep their licenses. 57
In Illinois that meant that, because persons with the same score were treated similarly, nineteen
additional law school graduates, who were originally told they had failed the exam, were also
allowed to be licensed. 58
More recently, the College Board59 mis-scored "more than 5,000" 60 of the 495 ,000
exams 61 from the October 2005 Scholastic Aptitude Test (SAT). "The erroneous scoring was
uncovered when two alert Minnesota students protested their scores and asked that they be


See, e.g., Region in Brief; Error Won't Affect Bar Exam Passes, BOSTON HERALD,
May 17, 2003, at 14,2003 WLNR 646292 (stating that "400 would-be lawyers from
Massachusetts who were told that their passing grade on the state bar exam was in question
because of a scoring error were told yesterday that their passing grades stand"); Bar Exam
Results Unchanged, COM. APPEAL (Mem. TN). May 10, 2003, at 10, 2003 WLNR 8891213
(discussing Mississippi).

See Higgins, supra note 4 7.


See id. (indicating that "the Ohio Supreme Court decided to rescind ... [one] person' s
passing score").

See id. (discussing three test-takers).


See id. (discussing actions by the state Supreme Court).


"The College Board is the nonprofit association of colleges and high schools that
oversees and administers the exam [Scholastic Aptitude Test] that is a key factor in the
consideration of college admissions officers in determining those who will be admitted to their
institutions." Murray Light, Viewpoints, SAT Errors Should Not be Tolerated, BUFF. NEWS,
Mar. 26,2006, at H3 , 2006 WLNR 5152369.

See Karen W. Arenson, SAT Group Can Do Better, Says Report It Commissioned,
N .Y. TIMES, July 2 1,2006.

See Press Release, College Board Announces Changes to a Fraction of October SAT
Test Scores, Mar. 8, 2006 (updated Mar. 14, 2006) at 19.html (last visited July 19, 2006) (proffering



recalculated by hand. " 62 "The score difference for the vast majority of students was less than 100
points across all three sections of the test," 63 but some students received scores that were "too
low . . . by as much as 450 points of a maximum possible 2,400 points." 64 In addition, about 600
of the students received scores "too high, by as much as 50 points."65 The problem with the test
results was discovered by the College Board in January 2005 66 after the College Board asked the
Pearson Measurement Company, which originally scored the examinations, "to hand-score some
tests" 67 from the October administration. However, the error was not made public until March
2006. 68 Ultimately, the College Board decided that it would report to colleges and universities
higher scores for students whose exams had been scored too low, but that it would not lower the
scores of students whose tests had been scored too high. 69 This solution did not please
everyone. 70 Students whose initial scores were erroneously low feared that during the interim
they had been denied admissions opportunities and scholarships to which they were rightfully
entitled. Students whose exams had been scored accurately worried that they had been
disadvantaged by being forced to compete with some applicants whose scores were erroneously
too high and never corrected. 71 Colleges and universities were forced to address a myriad of


Light, supra note 59.


Press Release, supra note 61.


Arenson, supra note 43.




Additional Detail about October 2005 SAT Scores, at (last visited Aug. 29,
2006) (acknowledging that "hand score requests were received from students in December"
which took three to five weeks to complete).

Minnesota Roundup, GRAND FORKS HERALD (N.D.), Apr. 9, 2006, 2006 WLNR

59645 33.

See Karen W. Arenson, Technical Problems Cause Errors in SAT Test Scores, N.Y.
TIMES, Mar. 8, 2006 (providing chronology).

Arenson, supra note 43.

° Cf Russo v. NCS Pearson, Inc. , 2006 WL 3247143, *1 (D. Minn. 2006) (rejecting the
plaintiffs' request for an injunction that "the reported [SAT] scores of 613 students be reduced


See Karen W. Arenson. Class-Action Forms Over SAT Blunder, Hous. CHRON., Apr.
9, 2006, at A6, 2006 Vv"LNR 5989629 (hereinafter SAT Blunder) (quoting a lawyer with a firm
that fil ed a class action as stating, "[i]t is unfair that regular students have to compete against



inquiries and, in many instances, review applicant files yet another time72 as the truth played out
in the critical winter-spring time period of the admission season. 73 Because many offers of
admission or scholarship assistance had been made and accepted between December and
March,74 it is likely that the erroneous information had an impact on some ofthose decisions. A
class action arising from the errors in scoring the SAT is now pending. 75
In yet another recent case, the Educational Testing Service acknowledged that it had
graded some essay answers on PRAXIS, a teacher test, "too stringently." 76 "About 27,000 people
who took the exam received lower scores than they should have, and 4,100 of them were wrongly

those students with inflated scores for admission, scholarships and financial aid").

See Karen W. Arenson, Officials Say Scoring Errors For SAT Were Understated, N.Y.
TIMES, Mar. 9, 2006, 2006 WLNR 3936243 (quoting the dean of admissions at the University of
Pennsylvania as lamenting, when the SAT scoring errors were disclosed, "[w]e've been through
half the admitted class already, and now we have to stop everything and review those students
who were affected").

See Johnson, supra note 20 (reporting that "[t)he scoring problem forced many
colleges to reopen admissions files just as they were trying to make final decisions"); Arenson,
supra note 68 (stating that college admissions officials said that errors in scoring the SAT
"would force them to review the admissions and financial aid decisions for all of the affected

See Arenson, supra note 68 (asserting that "[t)he disclosure came at the height of the
college admissions season, at a time when many colleges have already made many of their
decisions about which students to accept, reject or defer").

See Russo v . NCS Pearson, Inc., 2006 WL 3247143 (D. Minn. 2006) (holding that the
plaintiffs were not entitled to a preliminary injunction on their breach of contract claim against
the College Board and a national testing service (collectively "defendants"); that dismissal of
negligence claims against the defendants was premature; that the defendants were entitled to
dismissal of plaintiffs' strict liability claims; that the College Board did not defame the plaintiffs;
that plaintiffs stated a defan1ation claim against the testing service; that defendants did not violate
implied warranties of merchantability and fitness for a particular purpose, or an express warranty,
or the Magnuson-Moss Warranty Act, or the New York Consumer Protection Act; that for
purposes of breach of a contract claim against the testing service, the plaintiffs could not be
considered third-party beneficiaries of a services agreement between testing service and CEEB;
and that false advertising and consumer fraud claims against the testing service under Minnesota
statutes were not pled with sufficient particularity).

See Arenson, supra note 44.



told they had failed. " 77 The resulting class action was eventually settled by creation of an $11.1
million fund to provide cash payments to plaintiffs for "lost wages, decreased earning capacity,
and other damages." 78
There are other reports of standardized test scoring errors. Such problems have occurred
in "state after state,"79 including mis-scoring in California, Minnesota, New Jersey, New York,
Virginia, and Washington,80 as well as lost answer sheets in Florida.81 The Minnesota problems
resulted in the settlement of "a multimillion-dollar lawsuit regarding scoring errors ... that
affected more than 8,000 students."82
. A CBS report suggested that the mis-scoring of the October 2005 SAT was part of "a
much bigger problem ... with scoring accuracy [that goes] right down to the grade school
level." 83 The report quoted the "principal author for more than two decades of the highly
regarded Iowa basic skills test" as describing the state of standardized testing in this country as

See id. But see In re Educational Testing Service PRAXIS Principles of Learning and
Teaching: Grades 7-12 Litigation, 429 F. Supp. 2d 752, 754 (E.D. La. 2005) (disclosing that test
scores were "too low for about 40,000 test takers").

See Arenson, supra note 44.


CBS Evening News, supra note 27 (claiming that "in the years since No Child Left
Behind took effect, scoring blunders have been discovered in state after state").

See Arenson & Henriques, supra note 23 (discussing the Minnesota litigation and
referring to "substantial" scoring errors in Virginia and Washington); Silverstein, supra note 7
(indicating that in California, a company now known as Harcourt Assessment Inc. miscalculated
the results of 19,000 students and 22 schools on a Stanford 9 achievement test" in 2000); Jerry
Gray, I 3 Told They Didn't Pass Bar Exam After All, N .Y TIMES, May 19, 1999, at 85 , 1999
WLNR 3022406 (describing a "mix-up [that] occurred when the scores from essay questions on
property law in the national section of the examination were mistakenly applied to questions on
New Jersey's property law when the results were being typed into a computer"); Press Release, (announcing that on the July 2001 New York bar
examination, "due to a computer program error, the results of the two readings of the written
portion of the examinations of applicants who fell within the reread range .. . were not averaged"
and therefore the Board, "for this examination only, .. . will pass all applicants who achieved a
passing score on either the initial grading or the regrading, thus demonstrating minimum
competence on one reading of the examination").

High Stakes, supra note 1 (discussing Florida, Minnesota, Virginia, and Washington).


Editorial, supra note 42.


CBS Evening News, supra note 27.



"overburdened. " 84 According to one count, there were at least " 13 7 publicly disclosed cases of
large-scale testing errors by educational testing companies from 1976 through early 2004, with
most of them occurring since 1997." 85

Litigation Follows Innovation

It is not surprising, or necessarily undesirable, that erroneous standardized test scores are
beginning to generate tort litigation. This is the natural course of development in America.
Ilmovation is frequently followed by litigation because new or expanded practices often cause
harm. When losses occur as a result of such developments, lawsuits offer a public mechanism
for compensating injured persons, 86 forcing innovators to internalize the costs of their
endeavors, 87 and creating incentives for measures that minimize future harm by reducing activity




Silverstein, supra note 7. See also James P. Durling, Testing the Tests: The Due
Process Implications ofMinimum Competency Testing, 59 N.Y.U. L. REV. 577,616 (1984)
(indicating that "a high school administering a minimum competency test in Tattnall County,
Georgia, reported scoring errors on over half of the examinations").

2005) (noting that it frequently has been argued that " [t]here is a strong public interest in
insuring that accident victims obtain the financial resources needed to overcome the injuries they
have sustained").

See Vincent R. Johnson, Economic Analysis of Injury to Persons, Property, and
Relations, in ENCYCLOPEDIA OF LAW AND SOCIETY (DavidS. Clark ed.) (2006) (stating that
"[t]ort rules may be used to ... create a legal incentive for the actor to detern1ine whether the
activity is worthwhile-whether the costs outweigh the benefits. . . . Forcing actors to internalize
the costs of their endeavors helps to promote responsible decision making about what types of
activities and safety precautions should be undertaken").





levels or increasing precautions.89 Within proper limits, litigation can, and frequently does,
provide a healthy check on market excesses by forcing persons who benefit from selling goods or
services to bear the burden of incidentallosses90 or at least spread those losses broadly among
those who enjoy the goods or services. 9 1


See Turner v. New Orleans Public Service Inc., 476 So.2d 800, 807 (La.. l985)
(Dennis, J., assigning additional reasons) (citing G. CALABRES~, THE COSTS OF ACCIDENTS, pp.
24-33 (Yale University (1979)) (asserting that "[a]ccident law generally should pursue four
primary goals: (1) reduction of the total cost of accidents by deterrence of activity causing
accidents; (2) reduction of societal cost of accidents by spreading the loss among large numbers;
(3) reducing the cost of administering the accident system; and (4) doing all ofthese by methods
consistent with our sense of justice"). Johnson, supra note 87, a t _ (opining that if it is "costly
for a person to engage in an activity because liability will be assessed for resulting losses .. .
some persons who might otherwise participate in the activity may elect not to do so").

See JOHNSON & GUNN, supra note 86, at 7 (stating that the"[ d]eterrence principle
recognizes that tort law is concemed not only with fairly allocating past losses, but also with
minimizing the costs of future accidents. According to this principle, tort rules should
discourage persons from engaging in those forms of conduct which pose an excessive risk of
personal injury or prope11y damage").

See id., at 8 (arguing that American tort law has been shaped in part by the idea that
those who enjoy the benefit from injury-producing activities, rather than innocent third persons,
should bear the losses resulting from those activities).

Loss-spreading is a concept that runs throughout tort law, influencing causes of action,
such as products liability (see, e.g, Habecker v. Clark Equipment Co., 36 F.3d 278, 285 n . 14 (3d
Cir. 1994) (stating that court recognized strict liability for manufacturing defects because
"[m]anufacturers were deemed to be in the best position to provide 'insurance' against accidents
by spreading the cost of accidents among all consumers of the product"); Beshada v.
Johns-Manville Products Corp., 447 A.2d 539, 547 (N.J. 1982) (discussing risk-spreading in
products liability)), as well as general tort principles, such as respondeat superior (see, e.g. ,
Nelson on BehalfofHirschfeld v. Corporation of Presiding Bishop, 935 P.2d 512, 513
(Utahl997) (stating that an "employer' s liability under respondeat superior 'arises not as a result
of any actual negligence by the employer~ ' but because the employer reaps the benefits of the
employee' s acts and may more easily spread the cost of accidents"). "The idea underlying the
'spreading' rationale is that the financial burden of accidents may be diminished by spreading
losses broadly so that no person is forced to bear a large share of the damages." JOHNSON &
GUNN, supra note 86, at 7. "Risk-spreading is often desirable- that is why people buy
insurance." Id at 703. However, the concept has limits. Even "the most expansive possible
system of tort liability could not make the private purchase of insurance (or a public equivalent,
such as Social Security disability insurance) unnecessary- most people die from causes like
sickness, old age, or accidents that are entirely their own fault, causes for which no potential



In the early and mid-twentieth century, mass production of automobiles was soon
followed by car-accident lawsuits,92 and mass-marketing of consumer goods gave rise of
products-liability litigation.93 More recently, the widespread use of computerized databases has
produced lawsuits related to data security and identity theft,94 and the expansion of international
education programs is now generating claims by students injured while studying in foreign
countries. 95 It is entirely natural, from the perspective of more than a century of American legal
history, for the recent vast expansion of standardized testing96 to be followed by lawsuits seeking

defendant could be found." Id. See also Carley v. Wheeled Coach, 991 F.2d 1117, 1135 (3d Cir.
1993) (Becker, J., concurring and dissenting) (recognizing that the government contractor
defense thwarts "both the policy of compensating injured persons and the policy of

" [I]n 1905 all of American automobile case law could be contained within a four-page
law review article, but three decades later, a 'comprehensive, detailed treatment [of automobile
law] would call for an encyclopedia."' Michael L. Rustad & Thomas H. Koenig, Cybertorts and
Legal Lag: An Empirical Analysis, 13 S. CAL. lNTERDISC. L.J. 77, 77 (2003), citing Richard M.
Nixon, Changing Rules of Liability in Automobile Accident Litigation, 3 LAw & CONTEMP.
PROBS. 476 (1936).

See Donald G. Gifford, Public Nuisance as a Mass Products Liability Tort, 71 U. ClN.
L. REV. 741,744 (2003) (asse1iing that "it was the dramatic development ofthe mass-marketing
of consumer goods in the twentieth century that spawned modern products liability law").

See Vincent R. Johnson, Cybersecurity, Identity Theft, and the Limits ofTort Liability,
57 S.C. L. REv. 255,261 (2005) (discussing database security cases).

Vincent R. Johnson, Americans Abroad: International Educational Programs and Tort
Liability, 32 J. COLL. & U.L. 309, 359 (2006) (stating that "[l]ike many laudable activities that
were once conducted with little thought of civil liability, international education programs must
now be operated with due regard for the legal principles that impose a general duty of reasonable
care, that punish misrepresentation, and that award compensation for injuries attributable to
blamewmihy conduct. This is a good development, for it discourages irresponsible practices and
creates incentives for safety").

See note 22 and the accompanying text.



to balance the sometimes conflicting97 goals of compensating victims98 and deterring bad
practices with the need to craft liability rules that facilitate the types of innovative practices and
products that promote growth and progress 100 and assist societal achievement and personal
Tort litigation, like litigation generally, often serves useful purposes. 101 To begin with, it
forces companies and other enterprises to examine harmful practices that might otherwise receive
inadequate attention. For example, the College Board's president dismissively said that it "did
not really matter" why SAT exams became wet before they were mis-scored." 102 But preventing
losses in the future often depends on determining precisely why a certain type of problem
occurred in the first instance.
Tort litigation also plays a vital role in addressing the problems that are left unaddressed


See JOHNSON & GUNN, supra note 86, at 9 (discussing the "sometimes antagonistic
policies underlying modern tort law). Cf Robert F. Blomquist, Re-Enchanting Torts, 56 S.C. L.
REV. 481 , 499 (2005) (analogizing the "competing and sometimes complementary policies of
modern tort law ... [to] orreries-the clockwork, astronomical apparatuses of eighteenth century
natural philosophers").

See id., at 9 (asserting that " [t]here is a strong public interest in insuring that accident
victims obtain the financial resources needed to overcome the injuries they have sustained").

See Vincent R. Johnson & Claire G. Hargrove, The Tort Duty of Parents to Protect
Minor Children, 51 VILLANOVA L. REv. 311, 319-25 & n.33 (2006) (discussing deterrence and
the policy of preventing future harm).

See JOHNSON & GUNN, supra note 86, at 8 (stating that "there is continuing concern
that tort liability not be so readily imposed that industrial creativity is stifled, that
entrepreneurship is chilled, that professionals are unwilling to render important services, or that
American businesses become globally uncompetitive").

Cf Zauderer v. Office of Discip. Counsel of Sup. Ct. of Ohio, 471 U.S. 626, 643
(1985) (stating "we cannot endorse the proposition that a lawsuit, as such, is an evil. Over the
course of centuries, our society has settled upon civil litigation as a means for redressing
grievances, resolving disputes, and vindicating rights when other means fail. There is no cause
for consternation when a person who believes in good faith and on the basis of accurate
information regarding his legal rights that he has suffered a legally cognizable injury turns to the
courts for a remedy").

Karen W. Arenson, What Organizations Don't Want to Know Can Hurt, N.Y. TIMES,
Aug. 22, 2006, at Cl, 2006 WLNR 14497398 (hereinafter "Don't Want to Know") ..



by legislatures, too factionalized or subject to pernicious lobbying practices, 103 and administrative
agencies, too underfunded, politi cally manipulated, or "captive" to the interests they are supposed
to regulate., 104 Indeed, without a fair forum in which to litigate disputes about conduct that
causes harm, or other governmental avenues for redress, victims of intentional or accidental
injuries might resort to violence and other undesirable practices, as they sometimes do in other
countries. For example, in China, students who had been defrauded by a university recently
rioted 105 because China presently has no tort system or other mechanism offering a realistic


See generally Vincent R. Johnson, Regulating Lobbyists: Law, Ethics, and Public
Policy, 16 CORNELL J. L. & PUB. POL'Y _ , _ _ ( 2006) (discussing pernicious lobbying

See Vincent R. Johnson, Liberating Progress and the Free Marketfi'om the Specter of
Tort Liability, 83 Nw. U. L. REV. 1026, 1048-53 (1989) (discussing how administrative agencies
are subject to budgetary limitations, political manipulation, and pressure from special interests).
"Administrative capture" occurs when an administrative agency is dominated by those it is
supposed to regulate and thereby made less effective. See Ian Ayres & F. Clayton Miller, "I'll
Sell It to You at Cost": Legal Methods to Promote Retail Markup Disclosure, 84 Nw. U.L. REv.
1047, 1070 n.87 (1990) (asserting that "[c]aptured agencies have been the source ofmany
ineffici ent regulations"); Christopher Wyeth Kirkham, Note, Busting the Administrative Trust:
An Experimentalist Approach to Universal Service Administration in Telecommunications
Policy, 98 COLUM. L. REv. 620, 623 (1998) (stating that"[ a]dministrative capture by special
interests leads to policy approaches that often fail to account for the interests of the less
influential public").

Joseph Kahn, Rioting in China Over Label on College Diplomas, N.Y. TIMES, June
22, 2006, at Al, 2006 WLNR 10749995 (discussing demonstrations on can1pus at Shengda
College in central China). The students, if their story is true, had been defrauded. They had
been told that their diplomas would bear the name of a prestigious university. The promise
seemed plausible because Chinese schools were being reorganized. Relying upon the
representation, the students paid top-dollar tuition. When graduation came, the students'
diplomas bore the name of a different, Jess prestigious school. As professional credentials, the
degrees were not worth what the students had paid. In simple tern1s, the students allegedly had
been lied to and cheated. If these events had occuned in the United States, there would not have
been riots. The students would have hired a lawyer on a contingent-fee basis and sued the
university for fraud. If their claim had merit, they would have recovered damages. If it didn' t,
the suit would have been dismissed. See also Clifford Coonan, Students Riot Over Fake
Diploma Claim, 10/26/06 IR. TrMEs 13,2006 WLNR 18540433 (reporting that students at a
university in eastern China rioted and "ransacked" the campus because college authorities,
among other things, were "issuing fake diplomas").



opportunity for resolving such disputes. 106
The American tort system is not perfect-but neither is any other legal system. "[O]ne
should not lose sight ofthe fact that in America at the beginning of the twenty-first century life is
relatively safe from risks of accidental harm, and that the victims of the accidents that do occur
have a reasonably fair chance of obtaining redress." 107 This is due in large part to the relief
afforded by common-law and statutory tort principles.
Standard-test mis-scoring lawsuits can provide redress to injured parties in circumstances
where justice demands such relief. In one recent case, a test-taker who had emoneously been
told that he had failed an exam used to determine eligibility for teacher licensing in many states,
had difficulty finding a job because the failure "was a real albatross hanging around ... [his]
neck." 108 However, after the error was corrected "he quickly landed" a high school teaching
position. 109 Not surprisingly, he "applauded" the class-action settlement in the standardized test
mis-scoring lawsuit in which he was a named plaintiff. 110


The absence of a viable tort system in China is the legacy of old-style communism.
When China was really communist (1949 to roughly1980), there was no need for tort law. The
work unit provided everything. A job, education, medical care, a place to live, retirement.
Everyone was equally poor. No one had anything to lose either as a result of a tort or as the
result of a tort lawsuit. See Vincent R. Johnson & BrianT. Bagley, Fighting Epidemics with
li?formation and Law: The Case ofSARS in China, 24 PENN STATE lNT'L L. REV. 157, 173
(2005) (explaining why, in China, "there was traditionally little need for a tort system"). China is
now experiencing vast changes. See Vincent R. Johnson, Book Review, Chinese Law on SARS
by Chenglin Liu, 7 ASIAN-PAC. L. & PoL' Y J. 32, (2006) (discussing the pace of physical
changes to the physical and legal environment in China). New-style Chinese communism is
essentially capitalism with amounts calculated in yuan, the Chinese currency. While there is still
much poverty in China, there is plenty of new wealth, too. Many Chinese now have something
to lose, like the students who paid tuition five times the going rate because they were promised a
prestigious degree. The Chinese students had no real opportunity to take their dispute to com1.
Not only is there is no tort law in China, but contingent-fee representation is uncommon.

Vincent R. Johnson, Tort Lavv in America at the Beginning of the 21st Century, 1
RENMIN U. L. REv. (China) 237, 264 (2000).

Arenson, supra note 44.








Viability of Tort Remedies

This article explores whether American tort law offers viable remedies for persons
harmed by erroneous scoring of standardized tests. The focus here is narrow. The article does
not address the merits of standardized testing, the coherence and reliability oftest questions, or
even the correctness of "correct" answers. 111 Rather the discussion focuses on two things: first,
cases involving questions that were scored inconsistently or according to the wrong scale; and
second, cases where correct and incorrect answers were totaled inaccurately or were otherwise
reported erroneously to those who received the results.
Part II begins by briefly discussing several important preliminary matters. Part II-A
considers the many types of damages which may be at issue in standardized test score tort
litigation for the purpose of clarifying just what is at stake. Part li-B addresses the "truth-intesting" Jaws that have been passed in some jurisdictions, and concludes that they offer no real
recourse for test-takers and institutions harmed by erroneous standardized test scores. Part II-C
argues that while contract remedies are sometimes (but not always) available to incorrect-testscore victims, such relief should not bar redress under tort theories. Part II-D considers the
economic-loss rule in tort law, which generally holds that negligence is not actionable if it causes
only economic harm, unaccompanied by personal injury or property damage. The discussion
concludes that the economic-loss rule is only a partial obstacle to suits based on erroneous
standardized test scoring because many potential causes of action are not based on mere
negligence, and other causes of action (such as negligent misrepresentation) fall within
exceptions to the rule.
Part III next examines an array of tort claims that might arise from erroneous scoring of
standardized tests, including negligent infliction of emotional distress (Part III-A),
misrepresentation (Part III-B), defamation and false-light invasion of privacy (Part III-C), tortious
interference with prospective advantage (Part III-D), and injurious falsehood (Part III-E). The
analysis finds that while some of these theories will rarely offer a viable avenue for recovery,
other theories, on pariicular facts, may provide a basis for relief.
Part IV concludes by arguing that although courts should be cautious in entertaining tort
claims based on erroneous scoring of standardized tests, the courthouse doors should not be
closed. Suits relating to erroneous scoring of standardized tests will sometimes have merit. Tort
law offers a useful mechanism for compensating the harm caused by certain types of erroneousscoring claims. It can also create incentives for good practices in standardized testing.

Cf Lewin v. Medical Coll. ofHampton Roads, 931 F. 443,445-46 (E.D. Va. 1996)
(holding that the Family Educational Rights and Privacy Act did not permit a former medical
student to challenge the correctness of answers on a pharmacology exan1). See also Delgado,
supra note 12, at 598 (asserting that on "one administration of the SAT, four out of forty five
verbal test answers turned out to be wrong, and many other wrong answers were as plausibly
correct as the ones ETS keyed correct").




Preliminary Considerations

Damages in Erroneous Scoring Cases

Standardized test scoring errors cause many types of losses, not all of which will be
equally compensable under tort law. The key variables in determining whether a particular
element of damages will be awarded are the strength of the causal link between the mis-scoring
and the alleged harm, and whether the amount of the loss can be quantified with reasonable
certainty. If there is serious doubt as to either causation or amount, recovery of an element of
damages may be denied.
The fact and magnitude of some mis-scoring losses can be established with a high degree
of certainty if the losses are the direct result of foreseeable out-of-pocket expenditures. For
example, a test-taker who receives an erroneously low score may quite predictably spend readily
ascertainable amounts of money on: securing a re-scoring of the initial exam; 112 registering to
take the test again; 113 enrolling in a test preparation course; 114 purchasing study aids; 115 securing
professional tutoring or diagnostic assistance; 116 traveling to the repeat test site; 117 or perhaps
even enrolling in test-related academic offerings. 118
Certain other types of losses, involving reduced income rather than expenditures, may be
so likely to result from an erroneously low score that their legitimacy cannot readily be doubted.
The only uncertainty in such cases will reside in fixing the amount, but even then the jury may
find guidance in what many would regard as reliable evidence, such as average earnings figures

Praxis Complaint, supra note 40, at para. 31 (seeking compensation for test- re-

11 3

See id., at para 31 (seeking compensation for costs related to "taking the tests on
multiple occasions" and "paying late registration fees").

Cf Arenson, Tests Escaped Check, supra note 128 (indicating that some families pay
"thousands of dollars to raise their children's scores by 50 or 100 points").

See Praxis Complaint, supra note 40, at para. 3 1 (seeking compensation for
"purchasing study guides to assist in future tests").

See id., at para. 31 (seeking compensation for "diagnostic evaluations to understand
why" test-takers failed).

See id., at para. 31 (seeking compensation for "travel related expenses to take the tests
out of town").

!d., at para. 30 (alleging that mis-scoring of a teacher test caused "additional tuition
expenses"); id. at para. 31 (seeking compensation for "performing additional course work").



for new employees in a particular field. Reduced income for a test-taker who is the victim of
erroneous scoring may result in a variety of ways, including: time away from work to sit for the
repeat test or to take related courses; 119 denial of necessary professional certification or
licensing; 120 and otherwise delayed entry into the job market. 121
Reduced income resulting from lost scholarships will often be easy to quantify. Several
states employ merit scholarship programs that "use specific SAT scores to determine awards." 122
Also, at many colleges and universities, scholarships are awarded based simply on a matrix
formula, where the variables are grade point average (GPA) and test score. 123 At a particular
school, an admitted law student with an LSAT score of 160 and an undergraduate GPA of3.5,
might be routinely awarded a $10,000 scholarship, since that is the amount awarded to every
student in the matrix category. However, a student with the same undergraduate GPA and a test
score of 155 might be normally awarded $5,000, according to the matrix. If a law student who is
the victim of erroneous standardized test scoring can point to such evidence, it may be possible
for the student to quantify the student's economic loss with sufficient persuasiveness to permit
recovery of that element of damages. 124 Of course, if a college or university is the plaintiff, it
should be able to use similar evidence to show that but for the test score error, it would have
offered a student a lower scholarship.


See id., at para. 31 (seeking compensation for wages lost as a resulting from time
away from work).

I d. , at para. 29 (alleging that mis-scoring of a teacher-test "prevented some Plaintiffs
and Class members from receiving or timely receiving their professional credentials, and thus,
have prevented them from retaining or obtaining employment as certified teachers [and] ...
caused ... a loss of income, benefits, seniority, [and) tenure").

Jd. , at para. 30 (alleging that mis-scoring of a teacher test "delayed the graduation
from Bachelor's or Master's degree programs for some Plaintiffs and Class members, and ...
[a]s a result, some Plaintiffs and Class members ... lost wages and job benefits as a result of
their delay in enteri11g the job market"). See also id. at para. 33 (alleging that "some Plaintiffs
and Class members who were given a passing, yet incorrect score" were potentially "barred from
certification as a teacher in a state" to which they wish to move that required a higher passing
score, with the necessity of having "to re-take the Praxis test and pay all associated fees").

Karen W. Arenson, Colleges Say SAT Mistakes May Affect Scholarships, N.Y. TIMES,
Mar. 26, 2006 (stating that a recent survey found that 7 out of 14 states followed the practice).


Id. (describing a similar state program in New Jersey)

Id. (indicating that an erroneous SAT score-later corrected-would have dropped one
student at a Pennsylvania college from a $12,500 scholarship to a $5,000 one).



There may be other cases of compelling evidence that the plaintiff suffered economic
harm. A student might be able to show, for example, that but for a test score error, the student
would have fallen into the "presumptive admit" category at the state university, and that by
enrolling there the student would have saved a certain amount of money each year by qualifying
for in-state tuition. If the student in fact applied to the state university, this type of argument may
be quite reasonable and sufficient to support a jury award.
Some of the losses that undoubtedly result from standardized test scoring errors may be
so difficult to quantify that the law will be reluctant to permit recovery. Into this category may
fall compensation for the value of: missing a graduation ceremony; 125 suffering embarrassment
and other forms of emotional distress; 126 and (depending on the precise facts) losing the
opportunity to attend an educational program to which the test-taker either applied and was
rejected 127 or decided not to apply because the erroneous score appeared not to be competitive. 128
Finally, some asserted losses may be so dubiously linked to standardized test scoring
errors that it will be difficult or impossible for a court to find, by a preponderance of the
evidence, that but for the mis-scoring, the loss would not have occurred. This may be true, for
example, where a test-taker argues that because of an erroneous score a job offer was not
extended. 129 Similarly, a student who contends that, but for the defendant's misrepresentation,
the student would have been admitted to a better school, gotten a better job, and made higher
lifetime earnings will be hard pressed to establish the requisite level of certainty to sustain an


Editorial, supra note 42 (discussing harm caused by mis-scoring of a Minnesota state
text, which resulted in a multi-million dollar settlement).

See Praxis Complaint, supra note 40, at para. 34 (alleging that test-takers who
received erroneous scores suffered "devastating effects on their careers" and "experienced
personal injuries, including serious and severe emotional distress ... and have sought medical
and psychological assistance").

Cf Arenson, supra note 72 (discussing reject of early admissions applications).


See Arenson, 1,600 SAT Tests Escaped Check for Scoring Errors, N.Y. TIMES, Mar.
14, 2006, at A 21, 2006 WLNR 4230255 (hereinafter "Tests Escaped Check") (describing one
student who "slashed Harvard and Yale off her list of college applications" after her SAT total
"plunged 180 points, to 1,890 out of a possible 2,400" as a result of a scoring error). See also
Arenson, supra note 72 (indicating that when SAT scoring errors were armounced months after
scores had been distributed to students and colleges, "a vice president and dean of admissions at
Pomona College in California ... questioned how many students had altered the lists of colleges
they were applying to because their scores had been repmied as lower than they really were").

Cf Praxis Complaint, supra note 40, at para. 32 (alleging that mis-scoring may have
caused employers to use erroneous scores "to differentiate between or rank job applicants").



award of those damages. 130


Truth-in-Testing Laws

In response to complaints about the "arbitrariness and exaggerated importance" 131 of
standardized test scores and the impact of professional coaching on test-taker performance, 132
Califomia 133 and New York 134 passed truth-in-testing laws in 1978 and 1979, respectively.
Today, such legislation also exists in other states. 135 The chief impact of truth-in-testing laws is
to require certain (typically large) test agencies to: (1) disclose, with respect to certain exams, 136
statistical research 137 and previously used test questions; 138 (2) make individual performance data
available to test subjects; 139 and (3) collect demographic performance information relating to


But see DeJesus v. U.S. Dept. ofVeterans Affairs, 2005 WL 2175174, *2-*6 (E.D.
Pa. 2005) (taking standardized test scores into account in wrongful death calculations).

LEMANN, supra note 13, at 224.


Jd., at 223.


CAL. Eouc. CODE§ 99150 et seq (Westlaw 2006).


N .Y Eouc. L. §340 et seq. (Westlaw 2006). See LEMANN, supra note 13, at 225-26
(discussing the chaotic path to adoption in New York).

See, e.g., ARIZ. REV . STAT.§§ 15-741 & 15-747 (2006) (requiring the state board of
education to adopt procedures "to allow parents of pupils and the general public to view the
nationally standardized norm-referenced achievement test" required by state law).

See N.Y Eouc. L. §342(5)-(5)(b) (Westlaw 2006) (stating exceptions relating to GRE

Advanced Tests, MCAT, and SAT II).

See id., at §341 (Westlaw 2006) (requiring disclosure by a test agency of "any

unpublished study, evaluation or statistical report cited in memoranda of support or opposition to
legislation or proposed rules and regulations relating to standardized testing written or published
by the test agency").

See id., at §342(1) (Westlaw 2006) (stating that "[w]ithin thirty days after the results
of any standardized test are released, the test agency shall file or cause to be filed with the
commissioner: a. a copy of all test questions used in calculating the test subject's raw score; b.
the corresponding acceptable answers to those questions; and c. all rules for converting raw
scores into those scores reported to the test subject together with an explanation of such rules").

See id., at §342(2) (Westlaw 2006) (mandating that each test agency, for a nominal

fee, "provide to the test subject the opportunity to secure: a. a copy of the test questions used to



such groups as women and minorities. 140
Following passage of the New York legislation, the Educational Testing Service (ETS)
"decided to treat the New York truth-in-testing law as if it were federal legislation, since it would
be too difficult to make up one set of tests for New Yorkers that would be made public later and
another set for everyone else that wouldn't." 141 The New York law contains no provisions
offering compensation to victims of standardized test scoring errors. Rather, the law merely
provides that a violation of its various regulatory provisions may result in "a civil penalty of not
more than five hundred dollars for each violation." 142 Thus, the New York law, like its
counterparts in other states, does not obviate the need for tort law remedies.

Contract Law

If a test-taker whose score is reported incorrectly paid a fee to take the test, the misscoring could be treated as a breach of an express or implied contractual promise to correctly
grade the exam, and the test-taker could then sue for contract damages. 143 However, in many
instances, the test-taker does not pay a fee, as when students in a public school system are
required to pass a state-mandated achievement test. In that case, no breach-of-contract claim is
feasible. Similarly, test-score recipients, such as colleges and universities, typically have no
contract with testing agencies. Except perhaps on a third-party-beneficiary theory, 144 contract law

calculate the test subject's raw score; b. a copy of the test subject's answer sheet, or answer
record where there is no answer sheet, together with a copy of the correct answer sheet to the
same test with questions used to calculate the test subject's raw score so marked; and c. a
statement of the raw score used to calculate the scores reported to the test subject").

See id., at § 341-a(2)( (Westlaw 2006) (requiring collection of data relating to race or
ethnicity, gender, and household language); id. at§ 341-a(4) (requiring reporting "by race or
ethnicity, linguistic background and gender" of "the mean-scaled scores of test subjects, the
standard deviation of scaled scores, and the distribution of scaled scores").

LERMANN. supra note 13, at 227.


N.Y EDUC. L. § 347 (Westlaw 2006).


C.f Murray v. Educational Testing Service, 170 F .3d 514, 516-17 (5th Cir. 1999)
(holding that a standardized test administrator did not breach its contract with a student who took
test by refusing to release suspicious test scores because the contract clearly and explicitly
reserved the right to withhold suspect scores, and the administrator fulfilled its sole contractual
duty by conducting a good faith investigation).

See generally RESTATEMENT (SECOND) OF CONTRACTS§ 302 (1981) (discussing
intended and incidental beneficiaries). But see Russo v. NCS Pearson, Inc., 2006 WL 324 7143,



offers those institutions no relief for losses they sustain as a result of incorrect scores.
Even if a contract claim is available to persons harmed by erroneous standardized test
results, that does not foreclose a tort-law analysis (except, possibly, under the economic-loss rule,
discussed below). 145 In many areas of the law, such as products liability, a plaintiff has the option
of asserting a breach-of-contract claim, or tort claims based on negligence or strict liability, or all
of those theories. 146 Similarly, a client harmed by the conduct of a lawyer, ordinarily may sue for
breach of contract, as well as for the torts of negligence, fraud, or breach of fiduciary duty. 147
The categorization of the claim will have many important consequences. It will determine, for
example, the applicable statute of limitations, pertinent defenses, dischargeability of a judgment
in bankruptcy, insurance coverage, and the appropriate standards for calculating damages. 148
However, American law has often recognized that relief afforded by contract law (expectation 149
or reliance 150 damages) is sometimes inadequate in comparison to tort principles, 151 and there is
certainly no general rule that, merely because a contract claim can be stated, tort law remedies are

*14 (D. Minn. 2006) (holding that "[b]ecause the Services Agreement [between the College
Board and the entity that mis-scored SAT exminations] explicitly provides that '[n)o provision of
this Agreement shall in any way inure to the benefit of any third person,' Plaintiffs cannot be
considered third party beneficiaries of the Services Agreement").

See Part II-D.


(d iscussing theories of recovery for harm caused by product defects).

See Vincent R. Johnson, "Absolute and Pe1ject Candor" to Clients, 34 ST. MARY 'S
L.J. 737,742-51 (2003) (discussing theories of attorney liability, including breach offiduciary
duty, negligence, fraud, and breach of contract).

C.f JOHNSON & GUNN, supra note 86, at 26-30 (discussing the consequences of
classifying a tort action as intentional, negligent, or strict liability).

See RESTATEMENT (SECOND) OF CONTRACTS§ 347 (1981) (discussing expectation



See id. at § 349 ( 1981) (discussing reliance dan1ages ).

When the College Board mis-graded nearly 5000 SAT tests and revised upward the
scores of students whose exams it had graded too low, it said that it "regretted any further worry
or inconvenience that this problem caused students and families" and that it was "refunding those
students' test registration fees as well as any other fees associated with sending scores" to
educational institutions. Press Release, supra note 61.



unavailable. Thus, it is not surprising that in the Praxis teacher-test mis-scoring litigation, 152 the
plaintiffs alleged multiple claims for breach of contract, negligence, and negligent
misrepresentation. 153


The Economic-Loss Rule in Tort Law

In some respects, providing remedies for economic losses (as opposed to personal injuries
and property damages) is more properly the concern of contract law than tort law. Reflecting this
view, courts often hold (at least in the products-liability context) that negligence which causes
economic losses unaccompanied by personal injuries or property damages is not actionable under
tort principles. 154 These rulings are sometimes summed up as the "economic-loss rule." 155
However, the full contours of the "rule" are far from clear, 156 and there exist so many exceptions
and limitations 157 that some scholars doubt whether there is a "rule" at all.
The economic-loss rule was not commonly discussed until "the last quaJier of the 20th
century." 158 Presumably, some ofthe uncertainties relating to the rule will be resolved, or at least

See the text beginning at note 76.


Praxis Complaint, supra note 40, at para. 36-63.


See, e.g., East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858,
866 (1986) (discussing the risk that "contract law would drown in a sea of tort").

2005) (discussing the economic-loss rule). See generally Johnson, supra note 94, at 296-303
(discussing the economic-loss rule). Minnesota cases sometimes arrive at the same conclusion
under that state's "independent duty rule," which provides that when a contract defines a
relationship between two patiies, a plaintiff is not entitled to recover tort damages save for
exceptional cases in which a breach of contract "constitutes or is accompanied by an independent
tort." Russo v. NCS Pearson, Inc., 2006 WL 3247143, *8 (D. Minn. 2006). Minnesota law
"recognizes an exception for providers of professional services ... such as "[a]rchitects, doctors,
engineers, attorneys, and others." !d. at *8.
See generally John J. Laubmeier, Comment, Demyst~fying Wisconsin's Economic
Loss Doctrine, 2005 Wrs. L. REV. 225, 225-26 (describing the economic-Joss rule as "a
constantly developing area of law, which may not be fully understood by judges, lawyers, or the
public at large").


See Johnson, supra note 94, at 302-03 (discussing exceptions and limitations to the
economic-loss rule).

No, 1 2005). See also In re General Motors Corp., 2005 WL 1924331, *3 (W.D. Okla. 2005)



illuminated, during the drafting of the Restatement (Third) ofTorts: Liability for Economic
Loss, 159 which is now underway in the American Law Institute. At present, it seems
possible- perhaps likely-that the economic-loss rule will be deemed to bar recovery for purely
economic losses caused by standardized test mis-scoring, if the case is litigated on a simple
negligence theory. That is the heart of the economic-loss rule: negligence which causes solely
economic losses is not actionable. However, it may nevertheless be possible to argue cogently
that the rule should not apply to such cases. As explained by the Florida Supreme Court:
The prohibition against tort actions to recover solely economic damages
for those in contractual privity is designed to prevent parties to a contract from
circumventing the allocation of losses set forth in the contract by bringing an
action for economic loss in tort.... Underlying this rule is the assumption that
the parties to a contract have allocated the economic risks of nonperformance
through the bargaining process. A party to a contract who attempts to circumvent
the contractual agreement by making a claim for economic loss in tort is, in effect,
seeking to obtain a better bargain than originally made. Thus, when the parties are
in privity, contract principles are generally more appropriate for detem1ining
remedies for consequential damages that the parties have, or could have,
addressed through their contractual agreement. 160
Standardized test-takers often have no realistic opportunity to bargain over the
compensation for harm that might be caused by mis-scoring. The terms of the test contract are
typically offered on a take-it-or-leave-it basis, and in many instances the test is an essential step
in obtaining an education or building a career-a step which the test-taker cannot forego or
circumvent. Many agreements between test-takers and testing agencies can be fairly viewed as
adhesion contracts, 161 and therefore some courts may decline to hold that injured test-takers are
relegated to recovery under the terms of the take-it-or-leave-it standardized test contract. 162

(stating that "the economic loss doctrine, which was created by the California Supreme Court in
Seely v. White Motor Co.," 403 P.2d 145 (Cal.l965)).



Indemnity Ins. Co. ofNorth America v. American Aviation, Inc., 891 So.2d 532, 53637 (Fla. 2004).
16 1


See Johnson, supra note 104, at 1044-45 (discussing adhesion contracts).

An adhesion contract may be unconscionable and to that extent unenforceable. See
Susan Rabin & Christopher Q. Pham, Contracts ofAdhesion, L.A. LAV.'YER, Feb. 2006, at 11,
28-FEB L.A. Law. 11 (discussing Cal. Civil Code § 1670.5).



Moreover, courts sometimes hold that the economic-Joss rule does not bar a negligence
claim against a person not in privity of contract. 163 That interpretation of the rule might be
extended to the standardized testing context, for, as noted above, 164 some test-takers are in privity
(e.g., students who pay to take the SAT) and other are not (e.g., high school students who are
required to take a state-mandated standardized test in order to graduate). Of course, it makes
little sense to say that a negligence claim by a test-taker who was in privity with the testing
agency, but without power to bargain over the terms of the contract, is barred from suing for
negligence by the economic-loss rule, if negligence claims are allowed by persons not in privity
with the testing agency who were therefore also not able to bargain. The better course is for
courts to recognize that neither category of plaintiff has any real opportunity to negotiate
protection from economic harm caused by mis-scoring, and that tort remedies should therefore
not be foreclosed.
However, even if the economic-loss rule applies to a mis-scoring case, it is possible to
escape the force of the rule by framing a claim as one not for mere negligence, but for negligent
misrepresentation, 165 which is an important and well-established exception to the economic-loss
rule. 166 In addition, emotional distress is not simply a form of economic loss (even if the distress
results in out-of-pocket expenditures), but rather a type of personal injury. Therefore, the rule
does not bar claims for negligent infliction of emotional distress, 167 although those claims may
fail for other reasons. 16 8 Actions for defamation, which are sometimes based on negligence as to
the falsity of a defamatory statement (and other tim es based on more culpable conduct),


Indemnity Ins. Co. ofNorth America v. American Aviation, Inc., 891 So.2d 532, 541
(Fla. 2004) (holding that the rule did not bar action against a company, which was neither a
manufacturer nor distributor of a product, because the parties were not in privity). See also
Russo v. NCS Pearson, Inc., 2006 WL 3247143, *15 (D. Minn. 2006) (holding that Minnesota's
independent duty rule did not as a matter of Jaw bar a claim by a non-party; " it strikes the Court
as unfair to hold ... that Plaintiffs lack a tort remedy because the alleged tort arose in the context
of the performance of a contract to which they were strangers").

See Part II-C.


See Part III-B-2.


1 2005) (discussing liability for negligent misstatements); RESTATEMENT (SECOND) OF TORTS §
552B cmt. a (1977) (permitting recovery of out-of-pocket losses caused by negligent

See id. at§ 8 cmt. 8 (P.D. No, 1 2005).


See Part III-A.


See Pati III-C


PAGE 3 1

routinely allow recovery for economic losses, 170 and such recoveries are obviously not barred by
the economic-loss rule. 171 Various other theories discussed below, such as false- light invasion of
privacy, 172 tortious interference, 173 and injurious falsehood, 174 are usually not based on
negligence, and therefore are not affected by the economic-loss rule. Likewise, in fraud
actions, 175 which are founded on intentional or reckless misrepresentation, economic losses are
recoverable in most states. 176


See Michigan Microtech, Inc. v. Federated Publications, Inc., 187 Mich. App. 178,

466 N.W.2d 717, 722 (Mich. App. 1991) (recognizing that losses of"economic or pecuniary
value" are recoverable in a defamation action). But see Russo v. NCS Pearson, Inc. , 2006 WL
3247143, * 11 (D. Minn. 2006) (holding in a case based on mis-scoring of the SAT that "in cases
where defamation is asserted along with a claim for breach of contract, 'the defamation must be
independent of the alleged breach of contract and not a part of the malicious conduct associated
with the breach'").

See Latino Food Marketers, LLC v. Ole Mexican Foods, Inc., 2004 WL 632869, * 17
(W.D. Wis. 2004) (stating that although the plaintiff made "a half-hearted attempt to argue that
defendant's defamation counterclaim should be barred by the economic loss doctrine," it
conceded that it had "found no authority directly supporting this point," and noting that in "one
case the Court of Appeals for the Seventh Circuit assumed that injuries caused by defamati on are
not included in the meaning of 'economic loss"'). As Chief Judge Barbara B. Crabb explained:
[T]here is littl e danger of eroding the distinction between tort and contract law by
allowing a party in a commercial relationship to maintain a cause of action for
defamation. Dan1ages caused by defamatory remarks are not the sort of Joss that
parties to a contract contemplate when they sit down at the bargaining table ... .
Because defamation is almost always extrinsic to a contract, it is unlikely that
permining a defamation claim will allow pruiies to do an "end run around contract
law," ... or obtain double recovery for the same injmy.
!d. at* 17. See also Facchina v. Mutual Benefits Corp., 735 So.2d 499, 503 (Fla. Dist. Ct. App.
1999) (finding that an action for defamation, which "protects economic interests as well as
[against] humiliation and embarrassment," was not barred by the economic-loss rule).


See Part III-C.


See Part III-D.


See Part III-E.


See Part III-B-1.


("[D]ozens of cases are decided every year awarding economic loss damages for fraud."); id. at
24-26 (discussing cases finding the economic-loss rule inapplicable to misrepresentation claims);




Tort Theories of Recovery

When standardized tests are mis-scored, there may be more than one potential defendant.
For example, an entity that administers a test may sub-contract the scoring of the results to a
separate independent entity, and then rely upon those scores in reporting results to various
recipients. Tm1liability frequently turns upon facts relating to what a defendant did or did not
do, and the culpability associated with that action or omission (e.g., intent, recklessness, or
negligence), and other related considerations. It is important to remember that not all defendants
will be similarly situated. On a particular theory, one defendant may be subject to liability and
another may not. 177

Negligence and Infliction of Emotional Distress

In many cases, it may be possible to prove that the mis-scoring of a standardized test was
the result of negligence. 178 For example, erroneous results for approximately 5,000 takers of the
Scholastic Aptitude Test were said to have been caused by the fact that "some answer sheets had
swelled because of moisture. " 179 If the exposure to moisture was the result of a potential
defendant's carelessly allowing answer sheets to be exposed to rain 180 or spilled drinks, or stored
in a damp basement or a leaky trailer, there would be evidence of negligence sufficient to take
the case to a jury.
The duty of reasonable care imposed by the law of negligence means that "an actor m ust
employ cost-effective measures" 181 to prevent foreseeable harm. As Chief Judge Benjamin N .
Cardozo famously said in a different context, "the risk reasonably to be perceived defines the
duty to be obeyed." 182 Standardized test scoring errors are foreseeable for many reasons, and thus


Russo v. NCS Pearson, Inc., 2006 WL 3247143, *11-1 6 (D. Minn. 2006) (holding
that the plaintiffs in the SAT litigation stated a claim for defamation against the entity that scored
the tests, but not against the College Board).

Russo v. NCS Pearson, Inc. , 2006 WL 3247143, *10, *15 (D. Minn. 2006)
(concluding in the SAT litigation that it would be premature to dismiss negligence claims against
the College Board and the entity that scored the examinations).

See Arenson, supra note 60.


See Arenson, Don 't Want to Know, supra note 102 (stating that "the dampness may
have come from heavy rains in the Northeast on the day of the test").

Johnson, supra note 95, at 339 & n.152 (discussing the Learned Hand balancing test).


Palsgrafv. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99, 100 (1928).



there may be a duty to take precautions. As noted earlier, 183 many testing agencies have
experienced scoring problems in the past. For example, when the College Board discovered that
thousands of SAT tests had been mis-scored, a representative acknowledged that there had been
"things like this before, but not of this magnitude." 184 Indeed, during the prior six months, "there
had been other scanning problems, including one with a separately administered chemistry
test." 185 In the PRAXIS teacher-test litigation, 186 which was subsequently settled, the plaintiffs
alleged that the "ETS ha[d] publicly admitted that it ... incorrectly scored short essay questions
on at least nine PRAXIS test administrations." 187
A finding of negligence might be premised on facts showing that, in the light of the risks
and the costs of precautions, a testing agency should have "acquire[ d] better scanning software,
increase[ d) training for test center personnel and ... [made] other improvements in its
procedures." 188 Equipment can be used "to screen out humidity-tainted answer sheets." 189 Critics
argue that standardized testing regimes are plagued by a combination of insufficient resources,
tight deadlines, and "lack of meaningful oversight" 190-which may be another way of saying that
too few resources are being devoted to the prevention of foreseeable harm.
In some cases, a plaintiff may argue that a defendant is liabl e essentially on a negligent


See note 84 and accompanying text.


See Arenson, supra note 68.


See id.


See the text beginning at note 76.


Praxis Complaint, supra note 40, at para. 19.


See Arenson, supra note 60 (describing findings of a repmi commissioned by the
College Board to recornn1 end steps to prevent errors in scoring the SAT). Presumably, such a
report could not be introduced into evidence under the subsequent-remedial-measures rule. See,
e.g., FED. R. Evm. 407 (2006) (stating rule). However, similar testimony might be introduced
by an expert witness on testing. See also Arenson & Henriques, supra note 23 (quoting the dean
of admissions at the Massachusetts Institute of Technology as stating, with reference to misscoring of SAT exams, that "[t]he story here is not that they made a mistake in the scanning and
scoring but that they seem to have no fai l-safe to alert them directly and immediately of a

Silverstein, supra note 7.


Winerip, supra note 12 (discussing testing pursuant to the No Child Left Behind law).



19 1

hiring theory. Such contentions may resonate with merit if the scoring of standardized tests, as
in the SAT case, is entrusted to an enterprise that is "no stranger to botching test scores." 192 The
same may also be true if inexperienced, low-paid, temporary workers are hired to grade the essay
portion of a standardized exam. 193
In some cases, aggrieved plaintiffs suing for negligence may seek to invoke a res ipsa
loquitur analysis. 194 They might argue that erroneous scoring of standardized examinations is the
type of harm that does not occur in the absence of negligence, and that the negligent conduct
more likely than not was caused by the party that exercised physical control 195 over the test
instruments. 196 This is a good argument even if the evidence shows that the plaintiff contributed


Reporters' Note (P.F.D. 2005) (citing cases on negligent hiring).

See Arenson, SAT Blunder, supra note 71 (discussing reliance by the College Board
on Pearson, a company which, in 2002, had paid a "multimillion-dollar settlement ... for scoring
errors in Minnesota that affected more than 8,000 students").

C.f High Stakes, supra note 1 (stating that "after a newspaper disclosed ... that Kelly
Services was adve11ising for $1 0-an-hour temporary workers to score the writing portion of ... [a
Florida standardized test], the agency insisted the workers had colleges degrees and half were

2005) (stating that "[t]he factfinder may infer that the defendant has been negligent when the
accident causing the plaintiffs physical harm is a type of accident that ordinarily happens as a
result of the negligence of a class of actors of which the defendant is the relevant member").

See JOHNSON & GUNN, supra note 86, at 348 (discussing the "key question" of


This type of claim is distinguishable from some education-related decisions that have
rejected res ipsa loquitur arguments. For example, in Campaign for Fiscal Equity, Inc. v. State,
744 N.Y.S.2d 130, 143 (App. Div. 2002), the court found that "[a]lthough plaintiffs would most
likely disagree with the characterization, their position is essentially a form of res ipsa loquitur:
the fact that 30% of City students drop out and an additional 10% obtain only a OED must mean
that the City schools fail to offer the opportunity of a sound basic education, which is ultimately
the State's responsibility (pursuant to the Education Article), and therefore the State's funding
mechanism must be the cause of the problem." Whether a student obtains a high school degree is
a matter not within the exclusive control of the school, but depends upon other factors, including
whether students attend classes and work hard.



to mis-scoring in some way, such as by making pencil marks that were too light 197 or bad
erasures. Under modern comparative principles, negligence on the part of the plaintiff does not
preclude reliance on res ipsa loquitur. 198
However, even if negligence can be shown, it is unlikely that an aggrieved test-taker or
any other plaintiff could succeed on a claim for negligent infliction of emotional distress
resulting from standardized test mis-scoring. The law on negligent infliction is very unfriendly
to plaintiffs. They are likely to succeed only where they suffer actual or threatened physical
harm 199 or observe the death or grievous injury of a loved one,200 or where there are other similar
dramatic facts. 201 Dissemination of incorrect test scores-sometimes to third parties, rather than to


See Arenson & Henriques, supra note 23 (discussing errors in scoring the SAT where
"scanners did not pick up some lightly marked answers").

See Montgomery Elevator Co. v. Gordon, 619 P.2d 66 (Colo. 1980) (holding that
under comparative negligence a res ipsa loquitur plaintiff is required to show only that the
"defendant's inferred negligence was, more probably than not, a cause [not the cause] of the
injury, ... even though plaintiffs negligent acts or omissions may also have contributed to the
injury"); Cyr v. Green Mountain Power Corp., 485 A.2d 1265, 1268 (Vt. 1984) (holding that
"contributory negligence no longer bars recovery in a case brought under a res ipsa loquitur
theory"). See also Giles v. City ofNew Haven, 636 A.2d 1335 (Conn. 1994) (holding that an
elevator operator was not barred from invoking res ipsa loquitur by virtue of the fact that she had
some control over elevator's movement, and the doctrine could be applied even if operator's
negligence may also have contributed to her injury). See generally JOHNSON & GUNN, supra note
86, at 3 51-52 (discussing the relationship of res ipsa loquitur to the plaintiffs conduct).

See, e.g, Jalowy v. Friendly Home, Inc., 818 A.2d 698, 710 (R.I. 2003) (stating that
"[o]nly two classes of persons may bring claims for negligent infliction of emotional distress:
those within the "zone-of-danger" who are physically endangered by the acts of a negligent
defendant, and bystanders related to a victim whom they witness being injured").

See, e.g, Robinson v. May Dept. Stores Co., 246 F. Supp. 2d 440,444 (E. D. Pa.
2003) (stating that "[t]o establish a claim of negligent infliction of emotional distress under
Pennsylvania law, a plaintiff must prove that: ( 1) he or she was near the scene of an accident or
negligent act; (2) shock or distress resulted from a direct emotional impact caused by the sensory
or contemporaneous observance of the accident, as opposed to learning of the accident from
others after its occurrence; and (3) he or she is closely related to the injured victim"); Cox Texas
Newspapers, L.P. v. Wootten, 59 S.W.3d 717, 723 (Tex. App.-Austin 2001) (recognizing an
exception to a general rule of non-recovery for negligent infliction of emotional distress that "is
allowed for a bystander who witnesses a serious or fatal accident").

See, e.g, Jolmson v. State, 37 N.Y.2d 378, 334 N.E.2d 590,372 N.Y.S.2d 638 (1975)
(allowing recovery based on negligently erroneous death message and shipment of body).



the test-taker-comes nowhere close to the usual threshold for recovery damages in an action for
negligent infliction.
It is fair to say that "[n]o area of tort law is more unsettled than compensation for
negligent infliction of emotional distress ... [and] there are often substantial differences in the
requirements, or in their interpretation, from one jurisdiction to the next."202 Yet, in virtually all
states, it is exceedingly difficult for a plaintiff to prevail. In some states, the tort of negligentinfliction is very narrowly defined. 203 However, even where that is not true, a negligent-infliction
plaintiff must establish severe emotional distress. 204 In cases involving intentiona/205 rather than
negligent infliction of emotional distress, many states hold that recovery is available only for
intolerably severe distress 206-distress so great that it is "debilitating"207 and "a reasonable person,


JOHNSON & GUNN, supra note 86, at 577.


See, e.g., Boyles v. Kerr, 855 S.W.2d 593, 594 (Tex. 1993) (stating that "there is no
general duty in Texas not to negligently inflict emotional distress. A claimant may recover
mental anguish damages only in connection with defendant's breach of some other legal duty").
But see Charles E. Cantu, An Essay on the Tort ofNegligent Infliction of Emotional Distress in
Texas: Stop Saying It Does Not Exist, 33 ST. MARY'S L.J. 455, 465 (2002) (discussing the Texas
Supreme Court's construction of the t01i).

See, e.g., Basnight v. Diamond Developers, Inc., 146 F. Supp. 2d 754 (M.D. N.C.
2001) (stating that"[ a]lthough an allegation of ordinary negligence will suffice, a plaintiff must
also allege that severe emotional distress was the foreseeable and proximate result of such

See RESTATEMENT (SECOND) OF TORTS §46 (1965) (stating elements of intentional
infliction of emotional distress).

See Kalantar v. Lufthansa German Airlines, 402 F. Supp. 2d 130, 146 (D. D.C. 2005)
(holding that the failure of an airline passenger to corroborate, through medical bills or other
sources, claims that he suffered severe emotional distress as result of being arrested precluded a
claim for intentionally inflicted emotional distress under Virginia law); Harris v. Jones, 380 A.2d
611 (Md. 1977) (holding that the "tort requires the plaintiff to show that he suffered a severely
disabling emotional response to the defendant's conduct"); Russo v. White, 400 S.E.2d 160, 163
(V a. 1991) (quoting comment j to section 46 of the Restatement (Second) of Torts, which
provides that "liability arises only when the emotional distress is extreme, and only where the
distress is so severe that no reasonable person could be expected to endure it" and applying that
standard to the facts of the case); Williams v. First Tenn. Nat. Corp., 97 S.W.3d 798 (Tex.
App.-Dallas 2003) (holding a former employee, who "was emotionally reeling" at the time he
was fired, "lost his appetite," and became "cranky," failed to prove that he suffered unendurable
distress, because "within a few weeks, he was able to 'bounce back"'); Villasenor v. Villasenor,
911 S.W.2d 411 (Tex. App.- San Antonio 1995) (finding that a former husband, who alleged that



normally constituted, would be unable to cope." 208 Thus, courts have written that:
Liability for intentional infliction of emotional distress requires conduct that is so
extreme and outrageous that it goes beyond all possible bounds of decency, is
regarded as atrocious, is utterly intolerable in a civilized society, and is of a nature
that is especially calculated to cause, and does cause, mental distress of a very
serious kind. 209
Many intentional-infliction claims founder because of the inability of the facts to meet
this exceedingly demanding damages threshold. For example, one recent case determined that
the children of parents who were wrongly incarcerated failed to state a claim for intentional
infliction of emotional distress because the "children's drop in grades and attitude problems ...
[were] not evidence of the type of severe distress, unendurable by a reasonable person," that the
tort requires. 210 It goes without saying that if severe damage is required in cases of intentionally
tortious conduct- which some courts say must be so extreme and outrageous as to "strike to the
very core of one's being, threatening to shatter the frame upon which one's emotional fabric is
hung"211 -at Jeast the same showing of severe damage should be necessary in cases of mere
In addition, "most courts hold that negligent harm to property, by itself, is an insufficient
predicate for an award of mental-distress damages, at least if the harm occurs outside of the

he was the victim of his former wife's manipulation of their children, did not prove unendurable

Cochran v. City ofNorton, 2001 WL 866276, *6 (Ohio Ct. App. 2001), citing
Cherney v. Amherst, 584 N.E.2d 84, 86 (Ohio Ct. App. 1991).

Paugh v. Hanks, 45 1 N.E.2d 759,765 (Ohio 1983).


Myslow v. New Milford School Dist., 2006 WL 4737 35, *16 (D. Conn. 2006)
(quoting Miner v. Town of Cheshire, 126 F. Supp. 2d 184, 194 (D. Conn. 2000)) (emphasis
added) .

21 1

Somberger v. City ofK.noxville, Ill., 434 F.3d 1006 (7th Cir. 2006) (Ripple. J.).

Hamilton v. Ford Motor Credit Co., 502 A.2d 1057, 1064 (Md. Ct. Spec. App. 1986).
See also McKenzie v. Comcast Cable Communications, Inc., 393 F. Supp. 2d 362, 379 (D. Md.
2005) (finding that the plaintiff had failed to satisfy the "shatter-the-frame" standard).



plaintiffs presence." 212 The latter rule might cover cases where answer sheets are lost213 or
destroyed, and logically might be extended to cases where defendants negligently interfere with
plaintiffs' intellectual, rather than physical, property interests (if anyl 14 in test results, such as the
scores reported based on an exam. In cases involving the intentional tort of conversion, there is a
tendency for courts to treat intellectual and physical property similarly. 215 If that same judicial
approach carries over to negligence actions, it is likely that neither negligent interference with
physical property, nor negligent interference with intellectual property, will support an action for
negligent causation of emotional distress. There is no reason to hold that emotional distress
based on negligent interference with intellectual property is more readily actionable than
negligent interference with physical property. The law on compensation for emotional distress
has long been concerned with the genuineness of claims,216 and it has often seized upon some
shred of physical impact or physical consequences as a basis for allowing recovery that would
have been refused absent such physical corroboration. 217
There may be other obstacles to recovering for negligently caused psychic suffering in
particular situations. For example, if a negligence claim based on erroneous standardized test


See JOHNSON & GUNN, supra note 86, at 583 (citing cases).


Cf Kubistal v. Hirsch, 1999 WL 90625, *7 (N.D. Ill. 1999) (dismissing, in a suit
based in part on lost standardized test results, pendent state claims for negligent supervision and
intentional infliction of emotional distress, because federal claims were barred by failure to
exhaust administrative remedies).

A discussion of the scope of intellectual property rights in test resu lts is beyond the
scope of this article. Merely because the information relates to a person does not mean that the
person has a legally protected interest in that information. Cf Dwyer v. American Express Co.,
652 N.E.2d 135 1 (Ill. Ct. App. 1995) (rejecting a privacy claim relating to the defendants'
practice of renting information regarding cardholder spending habits).

Cf Kremen v. Cohen, 33 7 F.3d 1024, 1030 (9th Cir. 2003) (holding that an Internet
domain name was a form of intangible property which could serve as the basis for a conversion


See JOHNSON & GUNN, supra note 86, at 581-2 (discussing how genuineness is
establi shed in negligent infliction cases).

(discussing the reluctance of comt to allow recovery for negligently inflicted mental disturbance
alone and their greater willingness to permit dan1ages in cases of physical injury or impact). See
also Robinson v. May Dept. Stores Co., 246 F. Supp. 2d 440, 445 (E.D. Pa. 2003) (stating that
" [m]anifestation of physical injury is necessary to sustain a claim for negligent infliction of
emotional distress").



scoring is brought against a public entity, the defendant may be immune from suit under the
discretionary-function doctrine. 218
For all of these reasons, there is little reason to think that erroneous scoring of
standardized tests will generate meritorious suits for negligent infliction of emotional distress, no
matter how real that distress may be.219 However, the same type of damages may be available
under some other legal theory. For example, emotional distress damages are frequently available
in actions for defamation220 and can occasionally be recovered in a suit for fraud. 221 If those
theories apply, the unavailability ofthe same damages under a negligent-infliction claim may be
largely irrelevant. Of course, the theory of liability may affect such matters as whether the losses
are covered by insurance, which in many cases is a pivotal consideration. Many insurance
policies exclude coverage for hann caused by intentional 222 or fraudulent conduct, 223 but cover


See Myslow v. New Milford Sch. Dist., 2006 WL 473735, *17 (D. Conn. 2006)

(finding that a claim of negli gent infliction of emotional distress against school defendants,
relating to accommodation of a student with learning disabilities, was precluded by common law
and statutory immunity for discretionary governmental acts) .

To be sure, the processing oftest results can cause emotional distress. A few years
ago, I gave final grades to about 85 first-semester Torts students based in part on an objectivequestion examination that had been scored by the university test center. At the beginning of the
second semester, a student came into my office to revi ew her exam. As we inspected the printout
of scores from the test center, I spotted a problem and immediately suspected that the test results
were wrong. I excused myself, and raced to the test center. After a frantic hour, I determined
that all of the test scores were correct, but that only the printout was erroneous- having
substituted for the answer key the answers of a student who had failed to fill-in his or her secret
exam number. I was relieved and the students were not harmed, but there was plenty of
emotional distress in the interim.

See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974) (recognizing that

among the forms of harm inflicted by defamatory falsehood that are routinely recoverable are
"personal humiliation" and "mental anguish and suffering").

See, e.g., Kilduff v. Adams, Inc., 219 Cmm. 31 4, 593 A.2d 4 78, 484 (Conn.l991)
Uoining "jurisdictions that allow the recovery of emotional damages that are the natural and
proximate result of intentional misrepresentation); Osbourne v. Capital City Mortg. Corp.
667 A.2d 1321 , 1328 (D.C.1995) (similar). But see Zeigler v. Fisher-Price, Inc., 261 F. Supp. 2d
104 7, 1052 (N.D. Iowa 2003) (determining that Iowa will not allow emotional distress damages
in a fraud action).

(Supp. 2003) (stating that "[i]ntentional injuries, generally, are not covered" ). Cf Vincent R .
Johnson, Transferred Intent in American Tort Law, 87 MARQ. L. REV. 903, 923 (2004) (noting



harm caused by negligence, including negligently inflicted emotional distress?24



In a limited range of cases, erroneous standardized test results might support claims for
misrepresentation. In thinking about this subject, it is useful to differentiate two distinct
misrepresentation theories (fraud225 and negligent misrepresentation226) and two potential groups
of plaintiffs (test-takers and other test-score recipients).



The chief obstacle to a fraud claim will be proving scienter. 227 Presumably, it will be
nearly impossible for a plaintiff to prove that a testing agency knowingly distributed erroneous
results. However, establishing scienter based on recklessness will be easier, and sometimes
possible. When the maker of a statement knowingly lacks confidence in the truth that a
statement implies, the statement, if false, is fraudulently made. 228 Thus, if a testing agency has

that "insurance companies seeking to avoid coverage have raised transferred-intent arguments" to
avoid having accidental harm characterized as negligence).

See 11 LEER. RUSS, COUCH ON INSURANCE § 161.19 (3d ed. 2004) (discussing
exclusion of coverage for fraud); id. at § 131:21 (stating that"[ a]ttorney's professional liability
insurance policies frequently exclude from coverage any dishonest, fraudulent, criminal or
malicious act or omission") .

Cf Boyles v. Kerr, 855 S.W.2d 593, 604 (Tex.l993) (Gonzalez, J., concurring)
(explaining how a plaintiff tried to frame a case involving intentional videotaping of sexual
conduct as one for negligent infliction of emotion distress in order to reach insurance coverage).

See RESTATEMENT (SECOND) OF TORTS§§ 525-551(1977) (discussing liability for
fraudulent misrepresentation).

See id. at§ 552 (discussing negligent misrepresentation, which provides a remedy for
physical harm or economic losses resulting from carelessly false or misleading statements).

(5th ed. 2000) (indicating that scienter is established by evidence showing that the defendant
acted with knowledge of falsity or reckless disregard for the truth).

See RESTATEMENT (SECOND) OF TORTS§ 526 (1977) (providing that a
misrepresentation is "fraudulent" if the speaker "(a) knows or believes that the matter is not as he
represents it to be, (b) does not have the confidence in the accuracy of his representation that he
states or implies, or (c) knows that he does not have the basis for his representation that he states
or implies").



doubts about the correctness of test results but nevertheless distributes those results without
disclosing its concerns, the agency acts with scienter and could be sued for fraud, if the test
results are erroneous and cause harm by inducing reliance.
There is a well-recognized tort duty to correct false statements which, although believed
to have been true when made, are later discovered to be false. 229 The duty to correct continues
until the recipient of the information is no longer able to protect his or her own interests by
avoiding reliance upon the utterance that the speaker has discovered to be erroneous. 230 This
theory of liability would be applicable to cases where a testing agency discovers errors in
previously distributed test results, but neglects to disclose those errors in timely fashion.
Suppose that test results distributed in November are discovered in December to contain
errors, but the problem is not disclosed to test-takers or other score recipients until March. Is the
nondisclosure of the errors between December and March the basis for a lawsuit? Presumably, a
testing agency would have a conditional privilege to delay revelation of the suspected errors long
enough to conduct an investigation ofthe facts. 231 The investigation might take weeks or
months. For example, when the College Board was alerted to possible problems with the
October 2005 SAT, it launched an investigation of not merely the October test, but the


See id. at§ 551 cmt. h (stating that " [o]ne who, having made a representation which
when made was true or believed to be so, remains silent after he has learned that it is untrue and
that the person to whom it is made is relying upon it in a transaction with him, is morally and
legally in the same position as if he knew that his statement was false when made"); Johnson,
supra note 94, at 291 n.242 (collecting citations). A similar ethical obligation is imposed on
attorneys with respect to statements to courts. See MODEL RULES OF PROF'L CONDUCT R. 3.3
(1983) (stating that a "lawyer shall not knowingly .. . fail to correct a false statement of material
fact or law previously made to a tribunal by the lawyer").

See Jolmson, supra note 94, at 291-92 (indicating that "purpose ofthe rule is to avoid
deception that causes harm"). See also McGrath v. Zenith Radio Corp., 651 F.2d 458,468 (7th
Cir. 1981) (finding, in a corporate context, that "[t]he making ofthe original statements [that the
plaintiff would be named president], the discovery of their falsehood, and the failure to correct
them before plaintiff relied on them were 'elements in a continuing course of conduct' capable of
establishing fraud").

Cf RESTATEMENT (SECOND) OF TORTS§§ 594-96 (1977) (discussing conditional
privilege in defamation law). Similarly principles have been applied in other areas of the law.
See id. at § 6520 (applying conditional privileges from defamation law to a false-light invasion
of privacy action). See also Arenson, Tests Escaped Check, supra note 128 (quoting a College
Board official as stating that the "board had worked as fast as it could, including on nights and
weekends, to assess and correct the errors" in scoring the SAT).



subsequent exams in November, December, and January, total of 1.5 million exams in all.232 A
privilege to delay revelation of information about possible scoring errors long enough to
investigate the facts would help held to prevent the type of harm that could be caused by
erroneous reports about suspect results, and would also be consistent with the testing agency's
own legitimate interest in taking reasonable steps to protect its reputation. 233 However, once the
error has been or should have been verified, it is incumbent on the testing agency to promptly
disclose the information234-provided that the reliance on the erroneous information could still be
On the posited facts concerning failure to correct, is there anything a test-taker or other
score recipient could do to prevent erroneous test results from causing harm? In many cases,
"yes." A test-taker who has applied for admission to a college or university could advise that
institution of the unreliability of the results. A student who eschewed application to another
educational program because the erroneous results appeared uncompetitive might still apply there
for admission. And a student might forebear incurring the costs of preparing for and retaking the
standardized test until correct results are available. In addition, an educational institution
informed of documented or potential errors might be able to delay admissions decisions or
scholarship offers, or might re-consider the files of students who were previously rejected. It
seems possible that in some cases liability may be imposed under the duty-to-correct theory.
This is particularly true if there is evidence not merely of non-disclosure of the errors, but that the
testing agency hid that information or unreasonably hoped that the problem would not be


See Additional Detail, supra note 66 (detailing scope of investigation).


Cf Scott v. Educational Testing Service, 252 N.J. Super. 610, 600 A.2d 500, 504

(N.J. Sup. Ct. App. Div.l991) (stating that a testing agency "has an interest in assuring the
accuracy of the test results it repmis and the predictions it thereby makes"); K. D. v. Educational
Testing Service, 87 Misc.2d 657, 386 N.Y.S.2d 747, 752 (N.Y. Sup. Ct. 1976.)752 ("[T]he
accuracy of its predictions is defendant's sole stock in trade. The less accurate as a forecaster its
tests are, the less value they have to the ... schools. Thus, if defendant reasonably believed that
the tests scores ... did not accurately reflect [the plaintiffs] aptitude ... , it acted within its right to
protect its own image ... in canceling plaintiffs scores and requiring him to take a retest.").

Similar privileges to delay notification for purposes of investigation are recognized
throughout the law. For example, a statutory duty to notify data subjects that the security of their
personal information has been breached may be suspended pending investigation. See, e.g., GA.
CODE ANN. § 10-l-912(a) (Westlaw 2006) (providing that "notice shall be made in the most
expedient time possible and without unreasonable delay, consistent with the legitimate needs of
law enforcement ... or with any measures necessary to determine the scope of the breach and
restore the reasonable integrity, security, and confidentiality of the data system"); Il. Comp. Stat.
Ann. Art. 530110 (Westlaw 2006), 815 ILCS 530110 (similar). See also Interagency Guidance on
Response Progran1s for Unauthorized Access to Customer Information and Customer Notice, 70
Fed. Reg. 15,736, 15,732 (Mar. 29, 2005) (discussing what constitutes prompt notification).



discovered. 235


Negligent Misrepresentation

Actions for negligent misrepresentation (as opposed to fraud) would likely follow a
similar analysis in cases against commercial providers of testing services, since liability for
negligent misrepresentation extends to persons who fail to exercise care in statements made in
the course of business operations. 236 The scope of liability for negligent misrepresentati on is
often more tightly limited than for deceit. 237 However, those limitations would not affect
aggrieved paying test-takers or most other score-recipients. Cases that limit the scope of
negligent-misrepresentation liability more strictly than by a rule of foreseeable reliance generally
do either of two things. The cases either follow the Restatement approach or they impose a
requirement of privity or "near-privity." 238 Under the Restatement (Second) of Torts, liability
extends only to a "person or ... [a member] of a limited group of persons for whose benefit and
guidance ... [the defendant] intends to supply the infom1ation or knows that the recipient intends


Cf Karen W. Arenson, SAT Problems Even Larger Than Expected, N.Y. TIMES, Mar.
23, 2006 (quoting a college vice president as stating, with respect to revelations of SAT scoring
errors, that"[ e]verybody appears to be telling half-truths").

See RESTATEMENT(SECOND)OFTORTS § 552 (1977) (stating that the rule on
negligent misrepresentation applies to "[ o]ne who, in the course of his business, profession or
employment, or in any other transaction in which he has a pecuniary interest, supplies false
information") (emphasis added). See also RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR
ECONOMIC Loss§ 10 (P.D. No, 1 2005) (stating that " [a]n actor who in a business undertaking
negligently supplies false information to guide another in a business transaction is subject to
liability for pecuniary hann resulting from the other's justifiable reliance upon the information if
the actor supplies the information in an advisory capacity or other circumstances justify imposing
a duty of care upon the actor").

See Vincent R. Johnson & Shawn M. Lovom, Misrepresentation by Lawyers About
Credentials or Experience, 57 OKLA. L. REv. 529, 565-66 & n.l72 (2004) (citing RESTATEMENT
OF TORTS § 552 cmt. a and discussing competing views on the scope of liability for negligent

See, e.g., Hedges v. Durrance, 834 A.2d 1, 5 (Vt. 2003) (stating that "in order to
sustain a cause of action against an attorney for negligent misrepresentation, a third party must
demonstrate a relationship so close as to approach that of privity"). See also BERNARD S. MEYER
ET AL., THE HISTORY OF THE NEW YORK COURT OF APPEALS, 1932-2003, p. 475-77 (2006)
(discussing the "amorphous" nature of privity, and the importance, under New York law, of
conduct linking the defendant to the plaintiff in negligent misrepresentation cases).



to supply it,"239 and only with respect to "reliance ... in a transaction that .. . [the defendant]
intends the information to influence or knows that the recipient so intends or in a substantially
similar transaction."240
The educational institutions that receive standardized test results related to admissions
application would readily qualify as plaintiffs under the Restatement test, since in such cases it
would be clear both that they might rely and what type of reliance might occur. 241 In addition,
such direct recipients of erroneous test-scores would probably also satisfy a privity/near-privity
test. In cases involving the direct transmission of an erroneous document, there is the kind of


RESTATEMENT (SECOND) OF TORTS§ 552(2)(a) (1977).


!d. at§ 552(2)(b) (1977). See also RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR
ECONOMIC Loss§ 10 (P.D. No, 1 2005) (discussing liability for negligent misstatement).

Cf N.Y EDUC. L. § 344 (Westlaw 2006) (providing that the "score of any test subject
shall not be released or disclosed by the test agency to any person, organization, corporation,
association, college, university, or governmental agency or subdivision unless specifically
authorized by the test subject").
The precise details of the reliance need not be foreseen, so long as the defendant had
reason to foresee the general nature and magnitude of reliance. Thus, it would presumably make
no difference whether the reliance by an educational institution that received the erroneous score
resulted in the awarding or denial of a full scholarship versus a partial scholarship. As the
Restatement explains:
There may be many minor differences that do not affect the essential character of
the transaction. The question may be one of the extent of the departure that the
maker of the representation understands is to be expected. If he is told that the
information that he supplies is to be used in applying to a particular bank for a
loan of $10,000, the fact that the loan is made by that bank for $15,000 will not
necessarily mean that the transaction is a different one. But if the loan is for
$500,000, the very difference in amount would lead the ordinary borrower or
lender to regard it as a different kind of transaction.
RESTATEMENT (SECOND) OF TORTS § 552 cmt. j (1977). However, it is easy to posit a case of
reliance that might be beyond the scope of the Restatement rule. Suppose, for example, that an
aunt promises to give her nephew a condominium where he can live while pursuing his legal
studies, if he scores more than 160 on the LSA T. Upon receiving his erroneous test results
overstating his performance, he shows a copy to his aunt, who in reliance thereon transfers title to
the condominium to her nephew. It might well be argued that it would be unfair to hold the
negligent testing agency liable for the loss incurred by the aunt in reliance on the erroneous score.
The agency neither knew that the aunt would rely on the report, nor could have foreseen the
nature of the transaction in which that reliance might occur. Without such infom1ation, the
agency had no reason to know how much to spend on precautions to avoid mis-scoring.



one-to-one dealing that substitutes for privity. 242
A test-taker who pays a fee to take an exam would also have no trouble satisfying a
scope-of-liability requirement. The payment would place the test-taker in privity with the testing
agency and would thus satisfy any type of standing requirement for negligent
misrepresentation- foreseeability of reliance, intended reliance under the Restatement rule by a
member of a limited group in a known or similar transaction, or privity/near-privity.

Duty to Non-Paying Test-takers

A different analysis would be required in cases of non-paying test-takers, such as
elementary students who take state-required standardized examinations. First, those test-takers
might only be able to establish foreseeable reliance, not intended reliance (under the Restatement
rule) or privity/near privity. Second, there would also be an important issue relating to duty.
Some cases-such as suits dealing with drug testing and other medical examinations-have held
that the party administering the test owes no duty of care to the test subject, but only to the party
paying for the test. 243 Without a duty to exercise care on the part of the defendant, a plaintiff
would be unable to sue for negligent misrepresentation, since duty is an essential element of any
negligence-based claim.
However, a number of cases are to the contrary and hold that a testing agency, even if
employed by a third-party, owes a duty of care to the test-taker. 244 One lawsuit with apparent


See Credit Alliance Corp. v. Arthur Andersen & Co., 493 N.Y.S.2d 435, 445 (N.Y.
1985) (holding that direct communications between a borrower's accountant and a lender
sufficiently approached privity to allow an action for negligent misrepresentation). Cf LaSalle
Nat. Bank v. Ernst & Young LLP, 285 A.D.2d 101 , 729 N.Y.S.2d 671 , 675 (2001) (finding no
linkage that would support a claim for negligent misrepresentation where it was not alleged that
an accounting finn ever acknowledged a letter or otherwise acted to confirm the letter's receipt) .

See, e.g., Hall v. United Labs, Inc., 31 F. Supp. 2d 1039, 1043 (N.D. Ohio 1998)
(finding that a doctor and laboratory which analyzed random drug test results did not have a duty
to employee that would support a negligence claim). See also Mission Petroleum Carriers, Inc.
v. Solomon, 106 S.W.3d 705,7 15 (Tex. 2003) (holding that employers who conduct in-house
urine specimen collection under the Department of Transportation regulations for random
drug-testing of employees owe no duty of care to employees to conduct the drug test with
reasonable care); Smithkline Beecham Corp. v. Doe, 903 S.W.2d 347 (Tex. 1995) (holding, in a
case where a prospective employee sued a laboratory that was under contract with the prospective
employer to perform a drug test, that the laboratory owed no duty to warn either the employee or
the employer of possible causes of positive results other than using drugs).

See, e.g., Webb v. T.D. , D.C., 95 1 P.2d 1008 (Mont. 1997) (finding that a physician
who performed an independent examination of a worker at the request of her employer's



relevance to tort liability for erroneous scoring of standardized tests is Merrick v. Thomas. 245
There, the Supreme Court ofNebraska held that a merit commission owed a duty to a job
applicant to score a test accurately. The plaintiff, after receiving an offer of employment from
the sheriff's department, resigned her full-time job at her former place of employment. However,
she was subsequently terminated by the sheriff's department following discovery that her hiring
was the result of incorrect test score. The court wrote:
The merit commission could foresee that Merrick, by the act of applying, desired
the job and would rely on the results of a prerequisite test for that job. It is
reasonably foreseeable that an inaccurate passing score could result in Merrick's
name being given to the sheriff as a qualified applicant and that, approximately 6
months after taking the test, Merrick would be offered a job that she was not
qualified for. Last, it is reasonably foreseeable that acceptance of the offer would,
with a high degree of certainty, cause injury when officials discovered the true test
score. The defendants argue that the only duty owed is to the sheriff who receives
the test score ... [However, the] duty owed Merrick is rooted in common law. 246
Of course, even if a duty of reasonable care is owed to a test-taker, there is another
obstacle to recovery. If the claim is framed as negligent misrepresentation, it is essential to prove
the plaintiff relied upon the negligently false statement. 247 Sometimes that will be difficult or
impossible to establish such reliance by a preponderance of the evidence.

Defamation and False-Light Invasion of Privacy

workers' compensation carrier owed a duty to the worker to exercise ordinary care to discover
conditions posing imminent danger to worker's physical or mental well-being and to take
reasonable steps to communicate such conditions to the worker); Sharpe v. St. Luke's Hosp., 821
A.2d 1215 (Pa. 2003) (holding that a hospital which contracted with an employer to perform drug
testing owed an employee a·duty of reasonable care with regard to collection and handling of her
urine specimen); Duncan v. Afton, Inc., 991 P.2d 739 (Wyo. 1999) (similar). See generally Amy
Newman and Jay M. Feinman, Liability of a Laboratory for Negligent Employment or
Pre-employm.ent Drug Testing, 30 RUTGERS L.J. 4 73, 48 8 ( 1999) (recognizing a split of authority
and arguing that a "laboratory has a duty to inform the employer of the relevant considerations
surrounding drug testing and ... to act reasonably during the course of performing the test").

522 N.W.2d 402 (Neb. 1994).


552 N.W.2d at 406-07.


See Hall v. United Labs, Inc., 31 F. Supp. 2d 1039, 1043 (N.D. Ohio 1998) (finding,
in an action based on incorrect drug-test results, that the plaintiff had not pled sufficient facts to
establish reliance on the representation).


PAGE 4 7

A statement is not defamatory248 unless it carries with it the sting of disgrace.249 To be
actionable as libel or slander, an utterance must adversely reflect on the personal character of the
plaintiff,250 such as by subjecting the plaintiff to "hatred, ridicule or contempt."251 A defamatory
statement must so tend252 to "harm the reputation of another as to lower him in the estimation of
the community or to deter third persons from associating or dealing with him."253


See RESTATEMENT (SECOND) OF TORTS§ 559 (1977) (stating that "(a] communication
is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of
the community or to deter third persons from associating or dealing with him").

See McCulley v. Home Indem. Co., 1987 WL 19727 (Del. Super. 1987) (stating that
"the element of disgrace is key to a determination of libel" and noting that "traffic offenses ...
may not give rise to . .. social disgrace"); Shallenberger v. Scoggins-Tomlinson, Inc., 439
N.E.2d 699, 705 (Ind. App.1 982) (holding that a statement regarding a practice of the real estate
industry could not be reasonably interpreted as disgracing a realtor, and thus was not
defamatory); Chastain v. Kansas City Star, 50 S.W.3d 286,289 (Mo. App. 2001) (stating that
defamatory words "must be of such a nature that the court can presume, as a matter of law, that
they will tend to disgrace and degrade the person ... [and] to expose him to public hatred,
contempt or disgrace"); McConkey v. Flathead Electric Co-op., 330 Mont. 48 , 125 P.3d 11 2 1,
1130 n.2 (Mont. 2005) (finding that the plaintiff failed to prove defamation where he neglected to
show how a statement "would tend to degrade or disgrace him"); Vitteck v. Washington
Broadcasting Co., Inc., 256 Pa. Super. 427, 389 A.2d 1197, 1200 (1978) (citing Prosser for the
proposition that defamation "necessarily ... involves the idea of disgrace); McCmm v. Shell Oil
Co., 551 A.2d 696, 697 (R.I. 1988) (stating that to be actionable a statement must be "defamatory
... in the sense that the material imputes disgrace"); Kassowitz v. Sentinel Co., 226 Wis. 468,
277 N.W. 177, 180 (1938), criticized on other grounds, Martin v. Outboard Marine Corp., 15
Wis.2d at 460-61, 113 N.W.2d 135 (1962) (finding that it was not libelous to call someone an
"arrested case of tuberculosis" because while "[i]t may be unfortunate, . .. it is no disgrace to be
tubercular. Contracting the disease is not due, as in some cases of disease, to any immorality").

° Cf Fitzgerald v. Tucker, 737 So.2d 706,715 (La. 1999) (stating that "[d]efamation
involves the invasion of a person's interest in his or her reputation and good name").


RESTATEMENT (SECOND) OF TORTS§ 559 cmt. b (1977).


"[I]t is not necessary that the communication actually cause harm to another's
reputation or deter third persons from associating or dealing with him. Its [defamatory] character
depends upon its general tendency to have such an effect." RESTATEMENT (SECOND) OF TORTS §
559 cmt. d (1977).




Communications falling short of this standard will not support a libel or slander claim. 254
Many standardized test score errors are of a minor magnitude. A report understating a
test-taker's performance by twenty-five, or perhaps even fifty, points on the 2400 point SAT,
probably is so unlikely to subject the test-taker to the opprobrium of the community that a court
should not entertain a resulting defamation claim. De minimis non curat lex. 255 Defamation
actions seeking to redress a minor scoring error may be dismissed under the substantial-truth
rule, which bars recovery based on statements which, through literally false, are substantially
correct. 256
A scoring error of greater magnitude will warrant more extensive judicial consideration,
such as test results on the 2400-point SAT that are understated by, say, 200, 300, or 400 points.
At some juncture, the magnitude of the error will be so great as to disgrace the test-taker and
cause others to think less of him or her. Statements that impute incompetence in business, trade,


See Agnant v. Shakur, 30 F. Supp. 2d 420, 424 (S.D.N.Y. 1998) (holding that an
allegedly false accusation that plaintiff had worked as federal undercover informant was not

"The law does not concern itself with trifles." BLACK'S LAW DICTIONARY (8th ed.


See, e.g., Swindall v. Cox Enterprises, Inc., 558 S.E.2d 788 (Ga. Ct. App. 2002)
(finding that statements that a former Congressman had "lied about drug-money laundering"
were substantially true, even though the former Congressman had not been charged with any
substantive offenses, because he had been convicted of pe1jury for giving false testimony to a
grand jury to conceal his involvement in discussions about money laundering); Steele v.
Spokesman-Review, 61 P.3d 606 (Idaho 2002) (finding that an article's statement that an
attorney had relocated from California to Idaho at about the same time as members of a white
supremacist group was substantially true even though two years separated their moves); UTV of
San Antonio, Inc. v. Ardmore, Inc., 82 S.W.3d 609 (Tex. App. 2002) (finding that a statement
that an inspector had found roaches at a daycare center was not actionable because it was no
more damaging than a more accurate statement that the inspector had noted allegations by staff
members about roaches); Provencio v. Paradigm Media, Inc., 44 S.W.3d 677 (Tex. App. 2001)
(holding that a postcard identifying the plaintiff as a registered sex offender was substantially
true, even though the card bore a misleading return address that implied that it had been sent by
the government rather than by a news organization). See also JOHNSON & GUNN, supra note 86,
at 971 (stating that a "trivial inaccuracy in a largely correct account will not give rise to liability .
. . : ' Jones murdered his wife at 9:15 last night' is not actionable if in fact Jones murdered his
wife at 9:30, or even last week").



or profession are readily actionable as libel and slander.257 Mis-scoring plaintiffs may be able to
invoke successfully this type of precedent to mount defamation claims in cases involving
sizeable scoring errors. This line of reasoning will be particularly appealing where an erroneous
score precipitates clear harm, such as by causing a student to be denied a diploma, degree, or
essential professional credential. 258 In such cases, a defendant testing agency publishes to those
to whom it disseminates test scores false facts purporting to show that the test-taker is not
The "publication" requirement for libel and slander is satisfied by intentional or negl igent
communication of the false statement to a third person who understands the defamatory
utterance. 259 This standard is satisfied where a testing agency provides test results directly to a
person other than the test-taker. It is even possible that a testing agency may be held liable for
republication of an erroneous score by the test-taker. While the originator of a defamatory
statement is generally not responsible for its re-publication by the subject of the false and
defamatory statement, that is because the subject is normally aware of the defamatory content,
and has a duty to avoid or mitigate damages .260 However, re-transmission by the plaintiff of a
known falsehood should be distinguished from cases of unwittingly transmission of a defamatory
message whose falsehood is w1known. "If the defamed person's transmission ofthe
communication to the third person was made . . . without an awareness of the [false and]
defamatory nature of the matter and if the circumstances indicated that communication to a third
party would be likely, a publication may properly be held to have occurred." 261
Unlike defamation, an action for false-light invasion of privacy may be based on a


See RESTATEMENT (SECOND) OF TORTS § 573 ( 1977) (discussing slanderous
allegations of incompetence in business, trade, or profession). See also Costello v. Hardy, 864
So.2d 129, 141 (La. 2004) (holding that allegations calling into question an attorney's skill were

See id. at § 573 illus. 4 (indicating there may be liability for defamation where "A,
says to B that C, a lawyer, is ignorant and unqualified to practice law").

See Economopoulos v. A. G. Pollard Co., 105 N.E. 896, 896 (Mass. 1914) (holding
that no cause of action was stated due to lack of publication where one clerk accused the plaintiff
in Engli sh of stealing a handkerchief, and no one was present, and a second clerk made a similar
accusation in Greek, but the persons present (other than the plaintiff) did not understand the
language). See also RESTATEMENT (SECOND) OF TORTS§ 577(1) (1977) (recognizing liability for
intentional and negligent publication).

See RESTATEMENT (SECOND) OF TORTS§ 577 cmt. m (1977); see also note 266, infra
and accompanying text (discussing compelled self-publication).

RESTATEMENT (SECOND) OF TORTS§ 577 cmt. m (1977).



statement that is highly offensive, but not so bad as to be disgraceful.262 In that regard, it may be
easier for a small scoring error to be actionable as false light rather than as libel or slander.
However, falsity-light suits based on standardized test mis-scoring are likely to fail for two
reasons. The first concerns the degree to which the statement is disseminated, and second relates
to culpability.
While defamation is actionable if a false statement is communicated to just one person,263
false light requires "publicity,"264 meaning that the utterance must be so widely disbursed that it
is substantially certain to become a matter of community knowledge. 265 In many cases,
standardized test results are communicated only to a small group of recipients. Courts have
generally rejected the theory of compelled self-publication in defamation law/ 66 and it is likely


Cf id. at § 652E ill us. 3 (1977) (offering this example: "A is a renowned poet. B
publishes in his magazine a spurious inferior poem, signed with A's name. Regardless of whether
the poem is so bad as to subject B to liability for libel, B is subject to liability to A for invasion
of privacy").

See id. at§ 577(1) (discussing "[p]ublication of defamatory matter ... to one other
than the person defamed").

See id. at § 652E (requiring "publicity"); id. § 652E cmt. a (erroneously crossreferencing comment a of§ 652C, rather than § 652D). See also Andrews v. Stallings, 892 P.2d
611, 626 (N.M. Ct. App. 1995) (holding that a report to the IRS did not qualify as publicity).

RESTATEMENT (SECOND) OF TORTS§ 652D (1977) (discussing publicity given to
private life). The Restatement explains:
" Publicity," ... [in privacy actions], differs from "publication," ... [in]
defamation. "Publication," .. . is a word of art, which includes any
communication by the defendant to a third person. "Publicity," on the other hand,
means that the matter is made public, by communicating it to the public at large,
or to so many persons that the matter must be regarded as substantially certain to
become one of public knowledge. The difference is not one of the means of
communication, which may be oral, written or by any other means. It is one of a
communication that reaches, or is sure to reach, the public.
!d. at cmt. a.

See COLO. REV. STAT. ANN., §13-25-125.5 (Westlaw 2006) (providing that
"[s]elf-publication ... shall not give rise to a claim for libel or slander against the person who
originally communicated the defamatory statement"); Gonsalves v. Nissan Motor Corp., 58 P.3d
1196 (Haw. 2002) (rejecting self-publication); White v. Blue Cross and Blue Shield of
Massachusetts, Inc. 809 N.E.2d 1034, 1037 (Mass. 2004) (same). But see Kuechle v. Life's
Companion P.C.A., Inc., 653 N.W.2d 214, 219-20 (Minn. App. 2002) (holding that where the
defendant had reported the plaintiffs alleged misconduct to the Nurse's Board, the plaintiff had



that they will follow the same path in false-light cases, which require a wider degree of
dissemination. 267 Thus, the plaintiffs own knowing repetition of the falsity cannot serve as the
predicate for establishing the wide-spread awareness of the falsity within the community that is at
the heart of the false-light "publicity" requirement. 268
In addition, false-light invasion of privacy normally269 requires proof of "actual
mali ce,'mo meaning that the defendant must have acted with a high degree of awareness of the
probable falsity of statement. 271 This kind of proof will not commonly be available in erroneous
scoring cases, but may be adduced in suits where the facts also establish scienter for a

no reasonable means to avoid self-publishing the statement to a new employer).

Cf Olivieri v. Rodriguez, 122 F.3d 406, 408 (7th Cir. 1997) (referring to the "largely
discredited doctrine of ' compelled republi cation' or (more vividly) 'self-defamati on,' which ...
[m]ost states . . . rej ect ... as a basis for a tort claim,'' and refusing to extend the principle into
federal constitutional law).

A few cases have substantially departed from the "publicity" requirement in the
parallel privacy action for disclosure of private fact (rather than false li ght). The case hold that
" [w]hen a special relationship exists, the public can include one person or small groups such as
fellow employees, club members, church members, family or neighbors." See Pachowitz v. Le
Doux, 666 N.W.2d 88, 96 & n. 9 (Wis. Ct. App. 2003) (citing cases and affinning in part a
judgment based on disclosure to one person whom the defendant knew had " loose lips"). But see
Swinton Creek Nursery v. Edisto Farm Cr., 514 S.E.2d 126 (S.C. 1999) (rejecting the argument
that if infonnation eventually became public, a party who disclosed the information to only one
person could be held liable for "sparking the flame").

But see American Nat. Gen. Ins. Co. v. L.T. Jackson, 203 F. Supp.2d 674, 685 (S.D.
Miss. 200 1) (recognizing fal se light invasion of privacy under negligence theory); West v. Media
General Convergence, Inc., 53 S.W.3d 640, 647-48 (Tenn. 2001) (holding that in a false-light
action asserted by a private plaintiff regarding a matter of private concern, the plaintiff need only
prove that the defendant publisher was negligent).

RESTATEMENT (SECOND) OF TORTS§ 652E(b) (1977) (stating that, for liability to be
imposed, the plaintiff must prove that the "actor had knowledge of or acted in reckless disregard
as to the falsity of the publicized matter and the fal se light in which the .. . [plaintiffj would be
placed"). See also Cantrell v. Forest City Pub. Co., 419 U.S. 245,250-51 (1974) (finding no
occasion to re-examine the actual malice requirement in false-light cases).

Cf St. Amant v. Thompson, 390 U.S. 727,731 (1968) (discussing the "actual m alice"

requirement in defamation and concluding that there must be "sufficient evidence to permit the
conclusion that the defendant in fact entertained serious doubts as to the truth of his



misrepresentation claim. 272
The actual-malice culpability requirement in false-light cases is likely to be more
demanding than the corresponding fault requirement in defamation actions. At one time, strict
liability was imposed for defamatory false statements. 273 Today, however, proof that the
defendant was at fault with respect to the falsity of a defamatory utterance is required in a wide
range of cases. Public officials and public figures, suing with respect to their conduct, fitness, or
role in their public capacity, must prove actual malice. 274 Of course, it is unlikely that this rule
will apply tomany standardized testing errors since the persons who take such tests are typically
neither public officials nor public figures who have achieved notoriety in the community. 275
More probably, the mis-scoring plaintiff will be a "private person" suing with respect to a matter
of public concern (e.g., a student taking a test required by state law), or a person suing with
respect to a matter of private concern (e.g., perhaps a student taking a standardized test for which
the results will be reported only to a small number of private colleges or universities). In the
former case (private person/matter of public concern-for which the standards are set by Gertz v.
Robert Welch, lnc. 276 ), Supreme Court precedent mandates that States not permit recovery of
damages unless there is evidence that the defendant was at least negligent as to the falsity of the
defamatory statement. 277 As to cases in the latter group (a person suing with respect to a matter


See Part III-B-1.


See RESTATEMENT (SECOND) OF TORTS§§ 623A cmt. d (1977) (acknowledging that
"strict liability as to the issue of falsity [was] imposed by the common law of defamation"). For
example, in Cassidy v. Daily Mirror Newspapers, Ltd., 2 K.B. 331 (1929), a newspaper article
said that Mr. Cassidy was engaged to a woman, which is what both Cassidy and the woman told
the newspaper. In fact, unknown to the newspaper, Cassidy was already married. The court held
the newspaper liable to Cassidy's wife for defamation because her acquaintances believed, as a
result of the article, that she was living with a man (Cassidy) to whom she was not married.

See id. at§ 580A (stating that "[o]ne who publishes a false and defamatory
communication concerning a public official or public figure in regard to his conduct, fitness or
role in that capacity is subject to liability, if, but only if, he (a) knows that the statement is false
and that it defames the other person, or (b) acts in reckless disregard of these matters").

See Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974) (explaining that " [t]hose
who, by reason of the notoriety of their achievements or the vigor and success with which they
seek the public's attention, are properly classed as public figures").


418 U.S. 323 (1974).

418 U.S. at 347 (stating that "so long as they do not impose liability without fault, the
States may define for themselves the appropriate standard of liability for a publisher or
broadcaster of defamatory falsehood injurious to a private individual"). But see Journal-Gazette



of private concern-where Dun & Bradsteet, Inc. v. Greenmoss Builders, Inc. 278 is a key
precedent), the Supreme Court has not definitively ruled on whether strict liability is permissible
or negligence must be shown.279 Many states now require negligence. 280 Negligence as to falsity
is considerably easier to prove than actual malice.281
Whether a defamation suit by a test-taker whose score is seriously understated is treated
as involving a private person suing with respect to a matter of public concern (a Gert~82 case), or
simply a person suing with respect to a matter of private concern (a Dun & Bradstreef83 case),
has important implications not only with respect to culpability, but whether damages must be

Co., Inc. v. Bandido's, Inc., 712 N.E.2d 446, 452 (Ind.l999) (holding that even private persons
suing with respect to matters of public or general concern must prove actual malice).

472 U.S. 749 (1985).


Compare Dun & Bradsteet. Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 774
(1985) (White, J. concurring) (arguing that "it must be that the Gertz requirement of some kind
of fault on the part of the defendant is ... inapplicable in cases such as this); with id., 4 72 U.S. at
781 (Brennan, J. dissenting) (stating that "the parties [do not] question the requirement of Gertz
that respondent must show fault to obtain a judgment and actual damages."). See also Andersen
v. Diorio, 349 F.3d 8, 17 n.4 (1st Cir. 2003) (indicating that whether a negligence requirement
applies to "statements against non-public figures in matters of private concern is still formally

See, e.g., Costello v. Hardy, 864 So.2d 129, 143 (La. 2004) (requiring "lack of
reasonable beli ef in the truth of the statement giving rise to the defamation," which is "akin to
negligence"). See also Zaidi v. United Bank Ltd., 747 N. Y.S.2d 268,273 (Sup. Ct. 2002)
(stating that the "New York Court of Appeals has yet to establish what degree of fault, if any,
plaintiff is required to prove in cases involving a purely private plaintiff and speech implicating
purely private concerns," but that the Appellate Division has required negligence).

Cf JOHNSON & GUNN, supra note 86, at 991-92 (discussing the great difficulty of
proving actual malice in reporting).

Gertz v. Robert Welch, Inc, 418 U.S. 323 (1974).


Dun & Bradsteet. Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985).



proved. At common law, all libel (generally written defamation284) was actionable per se,285 as
were four categories of slander286 (generally oral defamation287), including statements imputing
incompetence in business, trade, or profession. 288 This meant that a jury could award "presumed
damages," without proof of actuallosses. 289 Under the rule of presumed damages-which was a
great departure from the usual standards of tort liability-the jury could look to the nastiness of
the statement and the degree of its dissemination and presume an amount of damages that would
fairly compensate the plaintiff. Thus, many sizeable awards were made without any precise
proof of what losses actually occurred. 290 During the process of reconciling the ancient law of
libel and slander 91 with the demands of the First Amendment,292 which began with New York


See RESTATEMENT (SECOND) OF TORTS § 568(1) (1977) (stating that " [l]ibel consists
of the publication of defamatory matter by written or printed words, by its embodiment in
physical form or by any other form of communication that has the potentially harmful qualities
characteristic of written or printed words").

See id. at § 568(2) (providing that "[o ]ne who falsely publishes matter defamatory of
another in such a manner as to make the publication a libel is subject to liability to the other
although no special harm results from the publication").

See id. at§ 570 (providing that "[o]ne who publishes matter defamatory to another in
such a manner as to make the publication a slander is subject to liability to the other although no
special harm results ifthe publication imputes to the other (a) a criminal offense, ... or (b) a
loathsome disease, ... or (c) matter incompatible with his business, trade, profession, or office, .
. . or (d) serious sexual misconduct").

See id. at § 569 (stating that"[ s]lander consists of the publication of defamatory
matter by spoken words, transitory gestures or by any form of communication other than

See id. at § 573 (indicating that"[ o]ne who publishes a slander that ascribes to another
conduct, characteristics or a condition that would adversely affect his fitness for the proper
conduct of his lawful business, trade or profession, or of his public or private office, whether
honorary or for profit, is subject to liability without proof of special harm").

See, e.g., Schlegel v. Ottumwa Courier, a Div. of Lee Enterprises, Inc., 585 N.W.2d
2 17,222 (Iowa 1998) (stating that "[w]hen statements are libelous per se, they are actionable in
and of themselves without proof of malice, falsity, or damage").

See Gertz v. Robert Welch, Inc. , 418 U.S. 323, 349 (1974) (discussing the traditional
rules pertaining to libel).

See Kay L. Reamey, Note, Torts-Defamation- Private Figure Plaintiff Must Show Not
Only Fault as to Falsity but Also Falsity ltselfto Recover Damages for Defamatory Statements
Made by Media Defendant on Matters ofPublic Concern, 18 ST. MARY'S L.J. 581, 584 (1986)



Times v. Sullivan ,293 the Supreme Court "roughly bisected the sphere of social commentary
between matters of public concern, which are those that can be 'fairly considered as relating to
any matter of political, social, or other concern to the community,' and matters of private
concern, which are those that address ' matters of only personal interest. "'294 The Supreme Court
held that a Gertz-type plaintiff295 (a private person suing with regard to a matter of public
concern) could not recover presumed damages without proof of actual malice.296 In contrast, a
Dun & Bradstreet-type plaintif:f2 97 (a person suing with respect to a matter of purely private
concern) was still allowed to recover presumed damages under the traditional rules, even in the
absence of actual malice. 298 Consequently, damages issues relating to a defamation claim in
standardized test mis-scoring cases may be greatly affected depending upon whether the false
statement is viewed as a matter of purely private concern, rather than a matter of public concern.
In that situation, proof of actual losses will not be not required.

What qualifies as a matter of private concern is often unclear,299 and many persons doubt

(indicating that "[i]n response to the violence that accompanied the transition from a feudal order
to a capitalist nation-state during the sixteenth century, the law of the Court of Star Chamber
proscribed both seditious and nonpolitical libel. .. . During this time, common law tribunals
obtained jurisdiction of civil actions for slanderous attacks on reputation and awarded money
damages for secular losses").

See U.S. CONST. amend. I (stating that "Congress shall make no law .. . abridging the
freedom of speech, or of the press").

376 U.S . 254 (1964).


Veilleux v. National Broadcasting Co., Inc., 8 F. Supp. 2d 23, 34 (D. Me. 1998),
quoting Levinsky's, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 131 (1st Cir. 1997).

See Gertz v. Robert Welch, Inc, 418 U.S. 323 (1974).


See id. at 349 (stating rule).


See Dun & Bradsteet. Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985).


See id. at 761 (finding that "[i]n light of the reduced constitutional value of speech
involving no matters of public concern, ... the state interest [in compensating defamatory harm]
adequately supports awards of presumed and punitive damages-even absent a showing of 'actual

See Journal-Gazette Co., Inc. v. Bandido's, Inc., 712 N.E.2d 446, 4 71 (Ind. 1999)
(Boehm, J., concurring) (recognizing that "drawing a line between matters of public and private
concern may prove to be problematic," but opining that "[o]ver time .. . guidelines will
emerge"); Duracraft Corp. v. Holmes Products Corp., 691 N.E.2d 935,941 n.14 (Mass. 1998)



whether courts can or should attempt to define what matters are legitimately of concern to the
public. 300 In Dun & Bradstreet, 301 the Supreme Court re-embraced the public concern/private
concern dichotomy that it had rejected just a few years earlier,302 and surprisingly303 held that an
erroneous statement about whether a major employer in the community was going bankrupt was
a matter of private concern because the statement was contained in a credit report that was
distributed to a very limited number of subscribers. 304 In light of that ruling, standardized test
results reported confidentially to a small number of private schools-in contrast to standardized

(observing that "distinguishing matters of public from matters of private concern is not always

See Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 79 (1971) (Marshall, J.,
dissenting) (opining that if "courts are not simply to take a poll to determine whether a
substantial portion of the population is interested or concerned in a subject, courts will be
required to somehow pass on the legitimacy of interest in a particular event or subject," even
though courts "are not anointed with any extraordinary prescience"); Gertz v. Robert Welch, Inc.,
418 U.S. 323,346 (1974) (stating "[w]e doubt the wisdom of committing this task [of
differentiating public concern from private concern] to the conscience of judges").
30 1

472 U.S. 749 (1985).


See Gertz v. Robert Welch, Inc., 418 U.S. 323, 346 (1974) (finding that "[t]he 'public
or general interest' test for determining the applicability of the New York Times [actual malice]
standard to private defamation actions inadequately serves both of the competing values at


See JOHNSON & GUNN, supra note 86, at 1006. The text states:
Dun & Bradstreet provides little guidance for distinguishing matters of private
concern from matters of public concern. Indeed, the Court's application ofthe law
to the facts before it seems somewhat counter-intuitive. The credit report had
erroneously said that the plaintiff had declared voluntary bankruptcy. Isn 't it a
matter of public concern whether a business which employs numerous workers
and pays taxes is failing? The Court appeared to place weight on the fact that the
erroneous credit report was given limited dissemination and that the five
subscribers who received the report were contractually precluded from further
disseminating its contents. The Court also suggested that the reporting of
"objectively verifiable information" deserved less constitutional protection than
other kinds of speech, and that market forces gave credit-reporting agencies an
incentive to be accurate, "since false credit reporting is of no use to creditors."

See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 4 72 U.S. 749, 761 (1985)
(noting that " [w ]hether ... speech addresses a matter of public concern must be determined by
[the expression's] content, fonn, and context ... as revealed by the whole record").



testing results in the public education, which are often publicly available-might fall within that
"private concern" category. 305 In defamation cases generally, courts are far more likely to label a
statement as a "matter of public concern" or a "matter of private concern," than to explain their
reasoning behind that conclusion or identify relevant variables. 306
As yet, there is little guidance from courts directly addressing defamation or false-light
claims based on standardized test scoring errors, although a recent case declined to hold as a
matter of law that "misreported test scores can never give rise to a claim for defamation. " 307 One
of the unresolved question is whether a claim for libel or slander against a testing agency can be
defeated by a qualified privilege. 308 Regardless of the attacks on standardized testing,309 many
would argue that such evaluative instruments serve a useful purpose, and therefore a testing
ageny's good faith communication of test scores-even if erroneous-should be qualifiedly
privileged. A qualified privilege is lost when the privilege is abused. 310 One form of abuse is
dissemination of a statement with knowledge of its falsity or with reckless disregard for its
truth. 3 11 This means that qualified privileges will play no role in cases alleging defamation or
false light against testing agencies, if the plaintiff must prove actual malice. That is, proof of the
plaintiffs prima facie case would by necessity destroy a qualified privilege. However, as

Some types of evaluations, or at least the protests related thereto, qualify as matters of
private concern. See Alaniz v. City of Sullivan City, Tex., 2005 WL 1651021,*7 n.3 (S.D. Tex.
2005) (stating that "public employees raise matters of public concern if they criticize the special
attention paid by the police to a wealthy neighborhood, or the implementation of a federally
funded reading program.... [T]he quality of nursing care given to a group of people, including
inmates, is a matter of public concern, as is the adequacy of a fire department's level of
manpower. However, public employees raise matters of"private concern" if they criticize the
morale problems or transfer policies of the district attorney's office; or criticize the performance
of co-employees and supervisors; or protest an employer's unfavorable job evaluation")
(emphasis added).

But see Levinsky's, Inc. v. Wal-Mart Stores, Inc., 999 F. Supp. 137, 140-43 (D.
Me.l998) (extensively analyzing why a retail store manger's statement to the author of a
magazine article about a competitor was a matter of public concern).

Russo v. NCS Pearson, Inc., 2006 WL 3247143, *17 (D. Minn. 2006).


See note 231, supra.


See Part I-B.


See RESTATEMENT (SECOND) OF TORTS§§ 599-605A (1977) (discussing abuse of

31 1

See id. at§ 600 (stating rule). See also Taranto v. North Slope Borough, 992 P.2d
1111 , 1114 (Alaska 1999) (stating rule).



explained above, it is likely that in many libel or slander mis-scoring suits the plaintiff will
qualify as a "private" person, and will therefore only need to prove that the defendant testing
agency acted with negligence as to the falsity of the report. In such cases, it may be possible for a
qualified privilege to defeat the plaintiff's proof of a prima facie case. 312


Tortious Interference with Prospective Advantage

The twin torts of interference with contract313 and interference with prospective
advantage safeguard contractual and other valuable expectations "and thereby ... nurture, if
not ensure, the stability and predictability that are necessary ... [for] commercial life" and
personal achievement. 315 It is reasonable to ask whether standardized test scoring errors are
actionable under either of these theories of liability.
An erroneous standardized test score will seldom disrupt an existing contractual


Cf Rogozinski v. Airstream by Angell, 377 A.2d 807, 820 (N.J. Super. Ct. 1977)
(holding that a report to the Unemployment Compensation Commission concerning the
plaintiffs' discharge, though false and defamatory, was qualifiedly privileged because, although
the defendant may have been negligent as to the falsity of the statements, the statements were not
made with knowledge of their inaccuracy or reckless indifference as to whether they were

Interference with contract has two branches, complete disruption of the plaintiff's or
a third person's performance and burdening the plaintiffs performance. See RESTATEMENT
(SECOND) OF TORTS § 766 (1979) (providing that"[o ]ne who intentionally and improperly
interferes with the performance of a contract ... between another and a third person by inducing
or otherwise causing the third person not to perform the contract, is subject to liability to the
other for the pecuniary loss resulting to the other from the failure of the third person to perform
the contract"); id. at § 766A (indicating that"[o ]ne who intentionally and improperly interferes
with the performance of a contract . .. between another and a third person, by preventing the
other from performing the contract or causing his performance to be more expensive or
burdensome, is subject to liability to the other for the pecuniary loss resulting to him").

See RESTATEMENT (SECOND) OF TORTS§ 766B (1979) (stating that " [o]ne who
intentionally and improperly interferes with another's prospective contractual relation ... is
subject to liability to the other for the pecuniary harm resulting from loss of the benefits of the
relation, whether the interference consists of (a) inducing or otherwise causing a third person not
to enter into or continue the prospective relation or (b) preventing the other from acquiring or
continuing the prospective relation").

Vincent Robe1i Johnson, Solicitation ofLaw Firm Clients by Departing Partners and
Associates: Tort, Fiduciary, and Disciplinary Liability, 50 U. PITT. L. REv. 1, 75 (1988)
(extensively discussing tortious interference with law firm client relationships).



relationship.316 People typically do not administer tests to determine whether to maintain the
status quo. Rather, tests are more commonly used to determine whether a person will cross a
threshold leading to a new status or arrangement. Thus, mis-scoring most often will interfere by
causing the loss of future advantages, such as admission to a school, receipt of a scholarship, or
attainment of a degree or license. Obviously, understated test scores can cause damage because
when scores are too low, benefits are often not conferred. In the types of educational and
professional evaluations where standardized test scores play a role, the offer of a valuable
opportunity, such as admission or employment, many times goes to the more highly scoring
The first obstacle for a mis-scoring plaintiff is that the interference actions are exclusively
intentional torts. 317 Merely negligent interference is not actionable,318 except in the rarest of
cases. 319 To recover for interference, the plaintiff must prove that the defendant intended to
disrupt an existing or future relationship between the plaintiff and a third party. Intent
encompasses purpose and knowledge. 320 It is exceedingly unlikely that a test-taker or other
aggrieved party will be able to show that an erroneous standardized test score was disseminated
with the purpose- the goal, objective, or desired consequence-of interfering with an existing or
prospective relation between the plaintiff and ·some third person. Thus, a critical question will
often be whether the other variety of intent-knowledge- will be applicable. This requires asking
whether the defendant knew with substantial certainty that its conduct would induce or otherwise
cause disruption.
If a testing agency provides a very low test score directly to a col lege or university where

3 16

But see Merrick v. Thomas, 522 N.W.2d 402 (Neb. 1994), discussed supra in the text
at note 245.

See generally RESTATEMENT (SECOND) OF TORTS§ 766 cmt. j, § 766A cmt. e, and§
767 cmt. d (1979) (discussing intent and purpose).

See id. at§ 766C (indicating that "[o]ne is not liable to another for pecuniary harm not
deriving from physical harm to the other, if that harm results from the actor's negligently (a)
causing a third person not to perform a contract with the other, or (b) interfering with the other' s
performance ofhis contract or making the performance more expensive or burdensome, or (c)
interfering with the other's acquiring a contractual relation with a third person").
3 19

See, e.g., J' Aire Corp. v. Gregory,l 57 Cal. Rptr. 407 (Cal. 1979) (allowing an action
against a contractor who failed to complete a structural renovation in a timely fashion).

2005) (stating that "[a] person acts with the intent to produce a consequence if: (a) the person
acts with the purpose of producing that consequence; or (b) the person acts knowing that the
consequence is substantially cet1ain to result") .



a test-taker seeks admission, it may be possible for a court to find that the testing agency knew
with substantial certainty that the student would not be admitted. The same is true where the
testing agency is aware that a particular score is too low for a student to pass a governmentmandated examination, such as those administered pursuant to the federal No Child Left Behind
Act. 321 In such cases, if the testing agency is to be saved from liability, it will be on some ground
other than lack of intent-perhaps lack of a legally protectable interest on the part of the plaintiff,
lack of impropriety, 322 or some kind of privilege (all of which are discussed below).
Of course, an erroneous test score may not be so bad that the test agency "knows" what
will happen when the score is received. For example, it may be wholly unclear whether an
applicant for admission to the bar will be admitted in a particular jurisdiction when an erroneous
Multistate Bar Examination score is disseminated. That score may have to be combined with an
unknown score on an essay graded by law examiners to arrive at a scaled total score which then
determines whether the aspirant will be allowed to practice law. By mis-scoring the MBE, the
testing agency may have created an unreasonable risk that the bar applicant will not be admitted,
but there is an important difference between unreasonableness (negligence or recklessness) and
intent. 323 Anything less than intent as to the result that the law forbids-that is, intent as to
resulting interference with a contract or prospective advantage-will not do.
According to the Restatement, there is liability both for disrupting an existing contract,
and for burdening the performance of the contract, such as by making fulfilment of contractual
obligations more di fficult or expensive.324 Some courts have endorsed the "burdening rationale,"

32 1

20 U.S.C.S. § 6301 (2004).


Cf RESTATEMENT (SECOND) OF TORTS§ 766 cmt. j (1979) (indicating that " [t]he fact
that ... interference with the other's contract was not desired and was purely incidental in
character is ... a factor to be considered in determining whether the interference is improper" ).
See also id. at§ 767 (discussing the many factors bearing upon impropriety).

See, e.g., Anderson v. Regents ofUniv. of Calif. , 554 N.W.2d 509 (Wis. Ct. App.
1996) (finding that no viable claim was stated where a complaint alleged that a state university
was directly responsible for placing tickets in hands of scalpers, but failed to charge that the state
university took those actions for the purpose of interfering with contracts between tourists and
tour operators"). See also Vincent R. Johnson, The Ethics ojC01nmunicating with Putative Class
Members, 17 REv. LITJG. 497, 521 (1998) (opining that "[t]he law of tortious interference
safeguards interests in a relationship from unprivileged purposeful or knowing disruption by a
person outside the relationship").

See note 313, supra.



but others have not. 325 Importantly, some courts have extended the burdening theory of liability
to cases involving interference with prospective advantage. 326 Thus, even though the
Restatement does not recognize liability for burdening absent an existing contract,327 that theory
might be argued in a mis-scoring case. An aggrieved test-taker might contend that even if a
testing agency did not know that admission to a grade level or an educational program, or
conferral of a scholarship, degree, or license, would be denied, it did know that the score would
burden the performance or acquisition of that advantageous relation. Testing agencies should
expect to encounter this type of argument.

It might be possible to ask again, as with fraud, 328 whether the conduct that forms the
basis for the allegedly tortious interference could be viewed not as the initial dissemination of
erroneous results, but the failure to correct those misstatements once their falsity is known. In


See Price v. Sorrell, 784 P.2d 614, 615 (Wyo. 1989) (refusing to adopt Restatement

(Second) of Torts§ 766A). In Price, a debtor's attorney allegedly interfered with the contractual
relationship between the creditor (a hospital) and its attorney (Price) by sending a letter to the
hospital questioning its wisdom in hiring Price. The hospital did not discharge Price, but Price
alleged that he was forced to incur expenses to restore good relations with the hospital. The
court wrote:
§ 766A requires ... not a breach or non-performance, but only that performance became
more expensive and burdensome.. . . [S]uch an element of proof is too speculative and
subj ect to abuse to provide a meaningful basis for a cause of action. The breach or
non-performance of a contract, or the loss of a prospective contractual relation, is a
reasonably bright line that reduces the potential for abuse of the causes of action defined
by §§ 766 and 766B.
ld. at 616. See also Windsor Securities, Inc. v. Hartford Life Ins. Co., 986 F.2d 655, 659-63 (3d
Cir. 1993) (declining to decide whether Pennsylvania would recognize tortious interference based
on "burdening" or "hinderance," but containing and extensive discussion casting doubt on that
theory of liability).

See, e.g., LaRouche v. National Broadcasting Co., Inc., 780 F.2d 1134, 1139 (4th Cir.

1986) (holding the defendant liable for expenses entailed by unsuccessful interference with an
television interview, which ultimately took place).

See note 314, supra.


See Part III-B-1.



tort law, acts and omission are sometimes, 329 but not always,330 equivalent. Thus, it is fair to ask
whether failure to retract an erroneous score could be a form of interference, even if the original
publication of the statement was not. In defamation law, failure to remove defamatory postings
by another is sometimes treated as being the same as affirmative publication of the damaging
material. 331 Nevertheless, the failure-to-retract argument lacks appeal. Most interference cases
involve some active form of intervention, 332 such as changing contract bidding rules,333 cancelling
a score, 334 or extending an offer of employment. 335 The interference is an act which, in a real
sense, intrudes and disrupts some existing or prospective relation. Passivity may be tortious on
some other theory, but at least in the absence of a request to retract, it is dubious whether passive
failure to correct should constitute "interference."
A "prospective contractual relationship" is "something less than a right" but "more than


See, e.g., UNI.F. COMPARATIVE FAULT ACT§ 1(b), 12 U.L.A. 127 (1996) (defining
"fault" as "acts or omissions that are in any measure negligent or reckless").

See JOHNSON & GUNN, supra note 86, at 443-469 (explaining that with respect to
intervening causes, acts are more likely than omissions to break the chain of proximate
causation); Johnson, supra note 95, at 348 (asserting that "[t]he law continues to draw an
important distinction between doing something badly (misfeasance) and not doing it at all
(nonfeasance). The former often gives rise to liability because one who acts must act reasonably,
but the latter may go unpunished on the ground that the defendant had no duty to act to protect
the interests of the plaintiff').

See RESTATEMENT (SECOND) OF TORTS§ 577(2) (1977) (proving that " [o)ne who

intentionally and unreasonably fails to remove defamatory matter that he knows to be exhibited
on land or chattels in his possession or under his control is subject to liability for its continued

Cf Johnson, supra note 323, at 521 (opining that "[t]he law of tortious interference
safeguards interests in a relationship from unprivileged purposeful or knowing disruption by a
person outside the relationship").


See Printing Mart-Morristown v. Sharp Electronics Corp., 563 A.2d 31,40 (N.J.

1989) (finding that a claim was stated for tortious interference with prospective advantage).

See Johnson v. Educational Testing Service, 754 F.2d 20,26 (1st Cir.1985) (holding
that a testing agency's cancellation of a suspectedly fraudulent test score was justified and
therefore not actionable as tOiiious interference).

See Lumley v. Gye, 2 El. & Bl. 216 (1853) (involving an opera star who was induced
to breach her exclusive-engagement contract).



hope." 336 An action for tortious interference with prospective advantage will lie only if there is a
reasonable probability that a benefit or opportunity would have been conferred but-for the
interference. 337 It will be difficult to establish this level of certainty in many cases. 338 In one suit,
where the plaintiff sued for tortious interference with her application to medical schools, the
court denied recovery because although the applicant "had a 'satisfactory academic record and
background,' she had 'not demonstrated more than a mere hope in securing a prospective
relationship with a medical school. "'339 "If it is a matter of speculation whether a relationship
will come to fruition, there is no cause of action for tortious interference with prospective


Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466,471 (Pa. 1979).


See Printing Mart-Morristown v. Sharp Electronics Corp., 563 A.2d 31,41 (N.J.
1989) (holding that there was a "reasonable probability" that, but for defendants' conduct, the
plaintiffs would have been awarded the printing component of a contract because they submitted
lowest bid for the entire job, the lowest bid for the printing component, and had "enjoyed a
nine-year working relationship" with the party in question). See also Nathanson v. Medical
College ofPa., 926 F.2d 1368, 1392 (3d Cir. 1991) (explaining that a medical school applicant
failed to demonstrate "reasonable probability" of acceptance).

See, e.g., Anderson v. Vanden Dorpel, 667 N.E.2d 1296, 1299-1300 (Ill. 1996)
(finding that the plaintiffs allegation that she was the "leading candidate" for new job was
insufficient to support claim of intentional interference with prospective economic advantage);
Strickland v. University of Scranton, 700 A.2d 979 (Pa. Super. Ct. 1997) (finding that the
plaintiff had "not demonstrated a genuine issue of material fact on whether it was reasonably
probable that his contract with the University would have been renewed in the absence" of
alleged interference). But see Tarleton State Univ. v. Rosiere, 867 S.W.2d 948, 952 (Tex.
App.-Eastland 1993) (holding that a professor showed a reasonable probability of entering into
future business relationship with a state university to support his claim for tortious interference
with future business relationships resulting from the denial of tenure).

Nathanson v. Medical College ofPa., 926 F.2d 1368, 1392 (3d Cir. 199 1). As the
court explained:
[I]t was difficult to determine whether or not Nathanson would have been accepted by a
medical school. In 1985, she applied to ten medical schools and was accepted only by ...
[one]. In 1986, she applied to six medical schools and was accepted only by Georgetown
which had rejected her when she had applied there the year before. Based upon this
history, it is too speculative to conclude that she would have been accepted by any
medical school in 1987 or 1989. Admissions policies vary considerably from
school-to-school and from year-to-year. Other information is simply not known.
Jd. at 1392.



advantage. " 340
Interference is not actionable unless it is improper. The general test for impropriety is
essentially a "totality of the circumstances" inquiry which takes into account, among other things,
"the nature of the actor' s conduct, . .. the actor's motive, ... the interests sought to be advanced
by the actor, ... the social interests in protecting the freedom of action of the actor ... , and ...
the relations between the parties." 341 "Fraudulent misrepresentations are ... ordinarily a
wrongful means of interference and make an interference improper." 342 However, the same may
not be true of negligent misrepresentation, and there may be serious doubts as to whether
dissemination of negligently false standardized test results will qualify as improper. In addition,
the privileges that may defeat defamation and privacy actions also apply to interference cases. 343

Injurious Falsehood

Injurious falsehood, sometimes called "disparagement," is a theory of tort liability that is
neither much discussed nor well understood, despite its having being part of American law for so
long that its principles were embodied in both the first and second Restatements ofTorts344 and
continue to be applied by courts today. 345 More familiar to American lawyers than the


Johnson, supra note 323, at 523 (arguing that "[c]ounsel for an uncertified class has
no more than a hope that a relationship will be consummated with unnamed putative class
members, for it is entirely speculative whether the court (after considering the requirements of
numerosity, typicality, commonality, and representativeness) will ce1tify the class and whether
those putative members (after being apprised of the [class] action and available opportunities)
will elect to opt out of the class," and therefore the relation would not be protected by the law of
to1tious interference).



Jd. at § 767 cmt. c.


"To1tious employee conduct which is otherwise actionable may be privileged on
public policy grounds if the conduct is in fmiherance of some interest of societal importance."
Wolfv. F & M Banks, 534 N.W.2d 877, 885-86 (Wis. Ct. App. 1995) (relying on the commoninterest conditional privilege to dispose of a tortious interference claim).

See RESTATEMENT (SECOND) OF TORTS §§ 623A -652 (1977) (discussing liability for
injurious falsehood, including slander of title and trade libel); RESTATEMENT OF TORTS§§ 624652 (1937) (discussing liability for disparagement, including slander of title and trade libel).

See, e.g., Mayflower Transit, LLC v. Prince, 314 F. Supp. 2d 362,378 (D. N.J. 2004)
(finding there was a question of fact as to whether statements posted on the Internet by a
disgruntled customer constituted trade libel); 'Wharton v. Tri-State Drilling & Boring, 824 A.2d



overarching theory of injurious falsehood are its two principal subcategories, "trade libel" and
"slander of title," which are similar in many respects to defamation. An action for trade libel
provides relief for pecuniary harm caused by false statements about the "quality of' the plaintiff's
"land, chattels or intangible things."346 Slander oftitle, in contrast, offers a remedy for
disparaging statements about plaintiff's "property rights" in the same array of interests- land,
chattels, and intangible things. 347
It is not necessary to force the facts of a case involving erroneous standardized test scores
into the theories of relief offered by trade libel or slander of title, for the law of injurious
falsehood is broader. 348 According to the second Restatement,
One who publishes a false statement harmful to the interests of another is
subject to liability for pecuniary loss resulting to the other if
(a) he intends for publication of the statement to result in harm to interests
of the other having a pecuniary value, or either recognizes or should recognize
that it is likely to do so, and
(b) he knows that the statement is false or acts in reckless disregard of its
truth or falsity. 349
Undoubtedly, the dissemination of an erroneous standardized test score is a false
statement that may be harmful to the pecuniary interests of the test-taker. In addition, a testing

531, 53 7 (Vt. 2003) (finding that landowners established slander of title where a company
falsely and maliciously published a mechanics' lien regarding the title to their home).



Jd. at § 624 (1977).


RESTATEMENT (S ECOND) OF TORTS § 623A cmt. a (1977) (stating that while the
theory of injurious falsehood is "applied chiefly in cases of the disparagement of property in land,
chattels or intangible things or of their quality ... [i]t is equally applicable to other publications
of false statements that do harm to interests of another having pecuniary value"). One of the
illustrations offered by the Restatement involves the reporting of test results, albeit in a medical
A, a physician employed by B Company, examines C, a workman employed by
the Company after an accident. Knowing that his statement is false, A reports to
B Company that C is not seriously injured, as a result of which C is compelled to
bring suit to recover his workmen's compensation and suffers pecuniary loss
through the expenses of suit. A is subj ect to liability to C.
Id. at § 623A ill us. 5.




agency "should recognize" that an erroneous test-score report is likely to cause just that type of
harm. The only difficulty with suing on the theory of injurious falsehood would seem to be the
final requirement concerning culpability, which imposes an obstacle equivalene 50 to scienter in
fraud351 and actual malice in defamation352 and false-light invasion ofprivacy353-namely,
knowledge of the statement' s falsity or reckless disregard for the truth. 354 It seems likely that
only the rare scoring-error case will offer this type of evidence. If such proof is available, does
an action for injurious falsehood offer any advantage over suing for fraud or defamation?
Unlike fraud, injurious falsehood imposes no requirements of intending to induce or
actually causing reliance by the plaintiff. All that needs to be proved is that the false statement in
fact caused harm as a result of actions by a third party. 355 This simplifi es the litigation process
and increases the likelihood of recovery by removing one issue from consideration by the judge
and jury.

It is less clear that injurious falsehood is more favorable to test score plaintiffs than
defamation.356 Many of the same privileges that apply to libel and slander apply to injurious


See RESTATEMENT (SECOND) OF TORTS§ 623A cmt. d (1977) (indicating the
equivalence of scienter, actual malice, and the culpability requirement in injurious falsehood).

See note 226 and the accompanying text.


See note 273 and the accompanying text.


See note 2 70 and the accompanying text.


Cf Dairy Stores, Inc. v. Sentinel Pub. Co., Inc., 191 N.J. Super. 202, 465 A.2d 953 , 960-62 ,judgment affirmed 198 N.J. Super. 19, 486 A.2d 344 (1985) ,judgment affirmed 104 N.J.
125, 516 A.2d 220 ( 1986) (holding that while a lab had a duty not to communicate false
information about the plaintiffs product and could be liable for defamation or product
disparagement, there was no clear and convincing evidence that it in fact entertained any serious
doubts as to the accuracy of the te ·t results).

See RESTATEMENT (SECOND) OF TORTS§§ 623A cmt. b (1977) (stating that "it is not
necessary that his statement be published for the purpose of influencing the conduct of some
third person or with knowledge that it is certain or substantially certain to do so. The publi sher
must, however, know enough of the circumstances so that he should as a reasonable man
recognize the likelihood that some third person will act in reliance upon his statement, or that it
will otherwise cause ham1 to the pecuniary interests of the other because of the reliance").

See generally id. at § 623A cmt. g (discussing the relationship of injurious falsehood
to defamation) .



falsehood. 357 The chief advantage of suing for injurious falsehood would seem to be the
elimination of the issue of whether the mis-scoring was of such magnitude as to disgrace the
plaintiff. 358 This may be useful to some plaintiffs. A student performing at the top range of test
results (e.g., one who earned 2200 on the SAT, but was erroneously reported to have achieved
only 21 00) might have difficulty arguing that the error in imputed incompetence to the student or
otherwise subjected the student to the type of ridicule and humiliation that is defamatory. Yet on
the same facts it might be possible to produce evidence showing that the understated result
caused pecuniary harm, for example, by dropping the plaintiff into a less-generous scholarship
However, the biggest difference between injurious falsehood and defamation is the
culpability requirement, and in that regard a defamation claim may have a decided advantage. As
noted above,359 most test-takers will be treated as private persons who are not required to prove
actual malice, but only negligence, in a suit for libel and slander. In addition, emotional distress
damages are available for libel or slander, 360 but not for injurious falsehood, where compensatory
damages have "consistently been limited to harm to interests of the plaintiff having pecuniary
value, and to proved pecuniary loss."361
False-light invasion of privacy and injurious falsehood would seem to be roughly
comparable theories. In each the plaintiff would face the great hurdle of proving actual malice or
the equivalent, and in neither would it be necessary to prove that the erroneous statement was
disgraceful. Essentially the same privileges that apply to false-light invasion of privacy apply to
injurious falsehood.

Guarding, But Not Closing, the Courthouse Doors

Courts have recognized that there are a number of competing interests at stake when the
validity of standardized test scores are at issue. Thus, one court, in the context of a teacher
certification test, wrote:


See generally id. at § 646A (1977) (indicating which rules on conditional privilege to
publish defamation are applicable to injurious falsehood).

See note 248 and accompanying text.


See note 2 75 and accompanying text.


See Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974) (stating that recovery for
"actual injury is not limited to out-of-pocket loss ... [and includes] impairment of reputation and
standing in the community, personal humiliation, and mental anguish and suffering").
36 1




[The test-taker] has a legitimate interest in assuring that she is not stripped of a
valid test score.... [The testing agency] has an interest in assuring the accuracy
of the test results it reports and the predictions it thereby makes. The other
test-takers are entitled to assurance that no examinee enjoys an unfair advantage in
scoring. The school officials to whom test results are certified need to be assured
that all reported test results are reliable. Finally, the public at large has an interest
in assuring that all persons certified as teachers have in fact fulfilled the
requirements of that certification. 362
Tort law offers an appropriate vehicle for balancing these types of competing interests. It
is important for courts to consider carefully cases seeking compensation for the harm that results
from mis-scoring errors, for the stakes are high. Some tort claims, supported by proper facts, will
have merit, and other claims will not. If liability is imposed too readily, important testing
institutions may be harmed or driven out of business, and those who rely on their services may be
seriously disadvantaged. On the other hand, if liability is never assessed, blameworthy conduct
may go undeterred and innocent victims of mis-scoring may be denied all recourse.
The answer to minimizing and distributing the losses that result from the mis-scoring
problems associated with standardized testing lies neither in barring the cou1thouse door, nor in
throwing it open indiscriminately. Rather, there must be a painstaking review of the facts of each
case in light of the principles tort liability that have emerged from the Common Law. American
tort law, in its multiple theories of liability, reflects not only current public sentiment, but often
the wi sdom of centuries of development. Tort law has the potential to provide valuable
incentives for the exercise of care in standardized test scoring and to compensate harm in
meritorious cases, while at the same time rejecting claims that are undeserving or that would
impose undue burdens on testing agencies.


Scott v. Educational Testing Service, 252 N.J. Super. 610, 600 A.2d 500, 504 (N .J.
Sup. Ct. App. Div.l991).




Vincent R. Johnson, “CLE: 2007: Standardized Tests Erroneous Scores and Tort Liability,” St. Mary's Law Digital Repository, accessed February 21, 2019,

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