IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-30425

Summary Calendar

KERRY JOSEPH MURRAY,

Plaintiff-Appellant,

versus

EDUCATIONAL TESTING SERVICE,

Defendant-Appellee.

Appeal from the United States District Court for the

Middle District of Louisiana

April 6, 1999

Before GARWOOD, JONES and BARKSDALE, Circuit Judges.

GARWOOD, Circuit Judge:

This case involves a contractual dispute between plaintiffappellant Kerry Murray (Murray) and defendant-appellee Educational

Testing Service (ETS), the administrator of the Scholastic Aptitude

Test (SAT). Based on the undisputed facts, the district court

granted summary judgment in favor of ETS. We affirm.

Facts and Proceedings Below

ETS is a non-profit educational organization that administers

the SAT I: Reasoning Test (SAT I). The SAT I is a multiple-choice1

“The College Board is obligated t o report scores

that acc u rately reflect your performance. For this

reason, ETS maintains, on behalf of the Col lege Board,

test administration and test security standards designed

to assure that all test takers are given the same

opportunity to demonstrate their abilities and to prevent

any student from gaining an unfair advantage over others

2 test designed to provide stud ents and colleges with a uniform

measure of verbal and mathematical reasoning abilities. Many

colleges and universities require students to take the SAT I, and

use the students’ SAT I scores as a factor in determining college

admissions.

The SAT I is divided into seven sections. Scores are reported

on six sections , three verbal and three math. These scores are

calculated to achieve separate verbal and math scores, which are

then added together to create a combined, or total, score. The

seventh “variable” section contains new que stions that require

pretesting before they can officially be used. Scores on the

variable section are not reported. The variable sections vary

among test books.

The ETS maintains procedures to ensure that t est score are

accurate and not the result of “testing irregularities or

misconduct.” The SAT I registration bulletin (bulletin), which all

stud ents must sign before taking the test, clearly states ETS’s

policy of reviewing irregular scores and explicitly reserves ETS’s

right to withhold any score which it has reason to believe was the

result of misconduct. 1 The bulletin also outlines procedures whichbecause of testing i rregularities or misconduct. ETS

routinely reviews irregularities and test scores believed

to be earned under unusual or questionable circumstances.

ETS reserves the right to cancel any test score if

there is an apparent discrepancy in photo identification,

if the student engages in misconduct, if ther e is a

testing irregularity, of if ETS believes there is a

reason to question the score’s validity.”

2

“When the vali dity of a test score is questioned

because it may have been obtained unfairly, ETS notifies

the test taker of the reasons for questioning the score

and gives the student an opportunity t o provide

additional information, to confirm the questioned score

by taking the test again . . ., or to authorize ETS to

cancel the score and receive a refund of all test fees.

In addition, the test taker can request third-party

review of the matter by asking any score recipient to

review the information and make its own decision about

accepting a score that may be invalid or by asking that

a member of the American Arbitration Association

arbitrate ETS’s action in accordance with ETS procedures

established for this purpose . . . .”

3 The highest possible combined score is 1600. In 1995, ETS

conducted a statistical analysis of students who took the SAT as

juniors in the spring of 1995 and again as seniors in the fall of

1995. On average, those students increased their scores by 14

points in both the verbal and math sections—for a total increase of

3 ETS follows in the case of a questionable score. 2

ETS regularly reviews test takers’ scores and compares those

to any scores that test taker received on a previous SAT I test.

When ETS finds a large score increase, it further examines the

student’s score sheet to determine whether misconduct may have

occurred. ETS defines a large score increase as a 250-point

increase in either the verbal or math section, or a 350-point total

score increase. 328 points. Only 0.4% of those students improved their scores by

150 points on ei ther section. Of the 1,772 students scoring 700

(combined) on the spring 1995 test, only six received combined

scores over 1,000 on the fall 1995 test. The highest of those

scores was 1130.

4 Murray was a student at McKinley Senior High School in Baton

Rouge, Louisiana, who had been promised a basketball scholarship by

the University of Texas-El Paso. In order to receive the

scholarship, Murray was req uired to achieve a minimum combined

score of 820 (on a scale of 200 to 1600) on the SAT I. Murray took

the SAT I on March 26, 1996, and achieved a combined score of 700.

Because he fail ed to achieve the required score of 820, Murray

enrolled in “Testbusters,” a four-week course designed to raise SAT

I scores. On June 1, 1996, Murray retook the SAT I. This time,

Murray achieved a combined score of 1300.

The large score difference between Murray’s March 26 and June

1 exam caused ETS to closely examine Murray’s scores. Following

standard review procedure, ETS conducted a computer analysis

comparing Murray’s June 1, 1996, answer sheets to those of other

students who took the SAT I at the same time and location. The

analysis revealed an unusual correspondence between Murray’s answer

sheet and that of another test-taker (test-taker B). According to

statistical analysis, t he number of Murray’s incorrect answers

match ing test-taker B’s incorrect answers could be expected to

occur only three times in comparing one hundred million pairs of

answer sheets. ETS also conducted an “erasure analysis,” which5

showed a substantial number of erasure marks on Murray’s answer

sheet where answers apparently had been changed to match answers on

test-taker B’s answer sheet. Further, ETS compared Murray’s

answers on the variable section of the test to test-taker B’s

answers on the variable section. Although the respective variable

sections of the two tests were diff erent, Murray’s responses to

thirteen of the fifteen questions on that section matched testtaker B’s responses. While test-taker B answered all fifteen

questions correctly on the variable section, only three of Murray’s

responses were correct. Based on this information, ETS referred

Murray’s scores to a Board of Review for investigation. The Board

of Review determined that ETS should continue to withhold Murray’s

scores. Upon further investigation, the Board of Review learned

that test-taker B was seated diagonally in front of Murray during

the test.

On August 22, 1996, ETS informed Murray that an investigation

of his June 1996 scores reveale d substantial evidence supporting

cancellation of his scores. ETS informed Murray that, as described

in the bulletin, Murray could provide ETS with inform ation

supporting the validity of his scores, retake the test, ask ETS to

cancel the sco res and obtain a refund, or request third-party

review.

Murray provided ETS w ith a letter from his mother, academic

records, and a letter stating that he had enrolled in the

Testbusters course between the March 26 and June 1 test dates. On4 Murray also alleged a purported claim under 42 U.S.C. § 1983

for deprivation of his civil rights without due process of law.

The district court dismissed that claim for lack of state action.

Murray does not challenge that ruling on appeal.

6 September 20, 1996, ETS informed Murray that despite the additional

evidence, the Board of Review still believed it had substantial

evidence to warrant canceling Murray’s scores. ETS informed Murray

of his right to retake the test, cancel the scores and obtain a

refund, or seek third party review.

Murray requested information about arbitration, but ultimately

decided to take the test again. Murray took the SAT I again on

November 8, 1996. His combined score was 800 (420 verbal and 380

math). On November 21, 1996, ETS informed Murray that the retest

did not confirm the validity of his June 1, 1996, scores, and those

scores would be canceled if Murray did nothing further.

ETS notified Murray of his remaining rights, including

canceling the scores and obtaining a refund, asking any college,

university, or agency to independently review his file, or

arbitration. ETS also informed Murray of his right to seek

judicial review. Murray filed suit in federal court, alleging that

ETS breached its contract with Murray by failing to release the

June 1, 1996, scores. 4

Discussion

This Co urt reviews a summary judgment d e novo

, applying the

same standards as the district court. M erritt-Campbell, Inc. v.7

RXP Products , Inc

. , 164 F.3d 957, 961 (5th Cir. 1999). Summary

judgment is proper where the moving party demonstrates “that there

is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” C elotex Corp.

v. Catrett

, 106 S.Ct. 2548, 2552 (1986), quoting Fed. R. Civ. P.

56(c). Once the moving party has identified material facts not in

genuine dispute, the nonmovant must come forward with or identify

in the record summary judgment evidence sufficient to sustain a

finding in its favor respecting such of those facts as to which it

bears the trial burden of proof. S mith v. Brenoettsy , 158 F.3d

908, 911 (5th Cir. 1998).

No genuine issue of material fact exists as to whether ETS

breached its contract with Murray. ETS’s contract with Murray

clearly and explicitly reserved to ETS the right to withhold any

s c ores ETS had reason to believe were not valid. The only

contractual duty ETS owed to Murray was to investigate the validity

of Murray’s scores in good faith. See Pogo Producing Co. v. Shell

Offshore Oil, Inc.

, 898 F.2d 1064, 1067 (5th Cir. 1990) (“Louisiana

law imposes upon contracting parties the obligation to perform

contracts in good faith.”) (citing La. Civ. Code arts. 1759,

1983.). See also Johnson v. Educational Testing Service

, 754 F.2d

20, 26 (1st Cir. 1985) (Massachusetts law requires ETS to

investigate scores in good faith).

ETS fulfilled that duty by allowing Murray to present evidence8

supporting his scores, informing Murray of his right to seek

independent review, and ultimately allowi ng Murray to retake the

test. S ee Langston v. ACT

, 890 F.2d 380 (11th Cir. 1989) (testing

agency fulfilled contractual duty by faithfully investigating

questionable test score, allowing plaintiff to retake test, and

offering to submit to arbitration); Johnson

, 754 F.2d at 26

(consulting handwriting expert, providing plaintiff opportunity to

be heard, and offering retest were evidence of good faith).

Several courts , including this one, have recognized the

importance of allowing ETS to assure itself of the validity of

students’ scores through internal review procedures. ETS provides

a valuable service to colleges and universities by providing a

standardized measure of students’ ability. S ee, e.g., Crow v.

Educational Testing Service

, Civ. No. 80-1865, 1982 U. S. Dist.

LEXIS 18191 (W.D. La. 1982) (recognizin g “the valuable service

performed by ETS and its obligations and duties to the [schools] to

accurately predict the aptitude of candidates.”), aff’d, 703 F.2d

556 (5th Cir. 1983) (table); K.D. v. Educational Testing Service

,

386 N.Y.2d 747, 752 (N.Y. Sup. Ct. 1976) (“To the extent that [ETS]

can accurately predict the aptitude of a candidate . . . by means

of its test results, it performs a highly valuable service not only

to the [schools] but to the public as well.”). Accordingly, ETS

has an obligation to provide, or use its best efforts to provide,

only valid scores to the colleges and universities that rely on9

ET S’s services. I d. Moreover, ETS has the right to protect its

own reputation by assuring the reliability of t he information it

provides. S ee, e.g., Scott v. Educationa l Testing Service , 600

A.2d 500, 504 (N.J. Sup. Ct. App. Div. 1991) (“ETS has an interest

in a ssuring the accuracy of the test results it reports and the

predictions it thereby makes.”); K.D. , 386 N.Y.2d at 752 (“[T]he

accuracy of its predictions is de fendant’s sole stock in trade.

The less accu rate 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 plaintiff’s] aptitude

. . ., it acted within its right to

protect its own image

. . . in cancelling plaintiff’s scores and

requiring him to take a retest.”). Finally, “[t]he other testtakers are entitled to assurance that no examinee enjoys an unfair

advantage in scoring.” Scott , 600 A.2d at 504. In this

case, ETS dutifully fulfilled its contract with Murray by following

established procedures for determining the validity of questionable

scores. ETS provided the district court with substantial evidence

regarding its reasons for questioning Murray’s scores and the

procedures it followed to determine whether Murray’s score should

be withheld. Moreover, ETS provided the district court with copies

of its policies and procedures, as well as the testing agreement

which every student must sign before taking the SAT I.

On appeal, Murray raise s only mistaken claims of district5 Murray accuses the lower court of “confusing the issues”

and applying an improper standard of review by ruling on ETS’s

alternative motion to dismiss or for summary judgment . However,

the district court explicitly stated that it was granting the

motion on summary judgment grounds.

Murray also claims that the district court improperly

considered the merits of the claim by noting that ETS had

substantial reason to question Murray’s scores. Here, the district

court was merely noting that ETS had fulfilled its obligation under

the contract. The court was not, as Murray suggests, offering an

opinion as to whether Murray had actually cheated on the test. S ee

Crow v. Educational Test ing Service , Civ. No. 80-1865, 1982 U.S.

Dist. LEXIS 18191 (W.D. La. 1982) (“The issue before this court is

no t whether or not [plaintiff] cheated on the test; the issue is

whether or not ETS could refuse to release the score.”), aff’d 703

F.2d 556 (5th Cir. 1983) (table).

10 court confusion 5 and conclusory accusations of breach of contract.

Murray has presented no summary judgment evidence disputing that

ETS had grounds to doubt Murray’s scores or t hat ETS failed to

pursue Murray’s case in good faith and, indeed, reasonably. As all

of the aforementioned facts remain uncontested, there is no genuine

dispute as to material facts. Summary judgment was properly

granted and the judgment of the district court is

AFFIRMED.