Doe 1 v. The College Board

Background

The plaintiffs sued The College Board after it canceled scores from the May 4, 2019, SAT exam. The claims included breach of contract, breach of the implied promise of good faith and fair dealing, breach of fiduciary duty, common-law fraud, due process, negligent infliction of emotional distress, and other tort-based claims. The plaintiffs also sought a declaration that the arbitration agreement was invalid.

John Doe #1 was a parent filing on behalf of a high-school-age child who took the exam at an unspecified location. Jane Doe #2 took the exam in Cairo, Egypt. John and Jane Doe #3 through #100 were Egyptian citizens who took the exam in Egypt and other Middle Eastern countries. The opinion said the complaint did not give particularized information about the plaintiffs’ ages.

Students registering for the SAT had to agree to The College Board’s Terms and Conditions by signing or clicking. The Terms and Conditions included an arbitration provision requiring most disputes related to registering for or taking the SAT to be resolved through individual, binding arbitration administered by the American Arbitration Association. The provision also barred class arbitration unless The College Board gave written consent.

The Terms and Conditions separately described grounds for canceling scores, including testing irregularities, misconduct, suspicious testing history, and other reasons. The subsection concerning invalid scores generally required The College Board to notify the student, allow the student to submit information, and consider that information. It also stated that arbitration for certain invalid-score disputes was available only for tests administered in the United States and its territories. The subsection allowed The College Board to treat conduct as misconduct instead.

The College Board’s analysis identified a geographically proximate cluster of several hundred test takers in the Middle East whose answers showed statistically unlikely similarities. The College Board also found online discussions about misconduct and confiscated answer keys and cheat sheets. It determined that the plaintiffs’ conduct fell under the misconduct subsection rather than the invalid-score subsection, and the plaintiffs’ scores were canceled.

The plaintiffs previously sought an order requiring The College Board to release the canceled scores. The court denied those requests and directed the plaintiffs either to agree to arbitration or propose a schedule for the motion to compel arbitration. The plaintiffs did not file a response to the motion, although they had addressed arbitration in a letter and in the complaint.

Court’s analysis

The court applied the Federal Arbitration Act and considered whether the parties agreed to arbitrate and whether the agreement covered the claims. It also applied New York contract law, under which an arbitration agreement may be invalidated for defenses such as fraud, duress, or unconscionability. Unconscionability means that a contract is procedurally or substantively so unfair that it cannot be enforced.

The court held that the arbitration provision was valid. The plaintiffs argued that it was procedurally unconscionable because they were minors when they registered for the SAT and registered on their own behalf. The court reasoned that the plaintiffs could not rely on the Terms and Conditions to seek relief while repudiating the arbitration provision when it operated against them. The court also found no facts showing high-pressure tactics, duress, or that the plaintiffs lacked an opportunity to read and understand the agreement.

The court rejected the argument that requiring students to accept the Terms and Conditions to take the SAT made the agreement unfairly one-sided. It also concluded that the arbitration terms were not substantively unconscionable because they applied equally to both sides. The provisions requiring each party to pay its own arbitration expenses and waiving class arbitration did not change that conclusion.

The court next held that the arbitration provision covered the plaintiffs’ claims. Although the plaintiffs characterized the dispute as involving invalid scores, the Terms and Conditions gave The College Board discretion to treat suspected test misconduct under the misconduct subsection. The court found that The College Board acted within that discretion after reviewing the answer patterns, regional conduct, prior misconduct involving some test takers, and confiscated answer keys. Because the dispute was treated as misconduct, it was subject to the arbitration provision and did not receive the invalid-score subsection’s additional-information process.

Disposition

Judge Lorna G. Schofield granted The College Board’s motion to compel arbitration and stay the case. The court’s conclusion required the plaintiffs to arbitrate the litigation and paused the federal case pending arbitration. The opinion did not decide the underlying claims about whether the score cancellations themselves violated the plaintiffs’ rights or agreements. The Clerk of Court was directed to close the motion at Docket No. 15.