## Facts

- K.D., a 37-year-old college graduate applying to law school, took the LSAT twice within about four months.
- Educational Testing Service (ETS) administers the LSAT and uses score-security procedures to ensure reported scores reflect a test-taker’s own work.
- ETS’s policies provided that large score increases (over 150 points on an 800-point scale) would trigger review before the score was reported.
- When K.D.’s second score rose 238 points, ETS investigated and found his multiple-choice answers were statistically similar to those of the adjacent test-taker.
- Under the registration agreement and related materials, ETS reserved the right to question and cancel scores of questionable validity and offered a free re-test to validate the questioned score.
- K.D. refused the free re-test and sued to prevent ETS from canceling the score or notifying schools of the cancellation, and to compel ETS to report the higher score, arguing the terms were an unenforceable contract of adhesion.

## Issues

1. Whether ETS’s LSAT registration terms, including score-investigation and score-cancellation provisions, were unenforceable as a contract of adhesion or unconscionable.
2. Whether ETS could, consistent with the parties’ contract and public policy, refuse to report or cancel a score whose validity was reasonably in doubt and instead offer a free re-test.

## Decision

- The court granted ETS’s motion to dismiss for failure to state a cause of action and based on documentary evidence of the parties’ agreement.
- The court held the registration agreement was enforceable and not invalid as a contract of adhesion on these facts.
- The court held ETS acted within its contractual discretion by investigating the large score increase, treating the score as questionable, and offering a free re-test as the contractual remedy.
- The court denied K.D.’s requested equitable relief because there was no basis to compel reporting of a score ETS reasonably questioned or to bar ETS from canceling the score under the agreed terms.

## Legal Principles

- Standardized testing registration materials and signed acknowledgments may form an enforceable contract governing score reporting and validity procedures.
- A standard-form contract is not unenforceable as an adhesion contract merely because it is nonnegotiable; unconscionability depends on the circumstances and the reasonableness of the terms.
- Where a testing organization contractually reserves discretion to investigate and cancel scores of questionable validity and offers a reasonable validation method (such as a free re-test), courts may uphold the exercise of that discretion when undertaken in good faith.
- Injunctive relief and specific performance are unavailable absent a cognizable legal basis; a test-taker generally cannot compel reporting of a score that the testing organization reasonably concludes is unreliable under the parties’ agreement.

## Conclusion

The court dismissed K.D.’s complaint, holding that ETS could enforce LSAT score-security and cancellation provisions in the registration agreement and could decline to report a questioned score while offering a free re-test to validate the result.


K.D. v. Educ. Testing Serv., 386 N.Y.S.2d 747 (Sup. Ct. N.Y. Cnty. 1976)