Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—S.D.Tex.: Teacher’s DTPA claims against testing service fail, (Dec 16, 2014)

By Linda O’Brien, J.D., LL.M.

A teacher was unable to state a claim against a private testing service for allegedly engaging in deceptive practices by failing to report a valid test score or provide an appropriate test environment for her teacher certification exam, the federal district court in Houston, Texas has ruled (Devine v. Educational Testing Service, December 12, 2014, Harmon, M.).

Educational Testing Service (ETS) is a private testing service that provides standardized testing to the Texas Education Agency (TEA) for school districts. One of the tests it provides is the Texas Examination of Educator Standards (TexEs), which has three scored sections – a multiple choice section and two constructed response questions. Catherine Devine took the test as one of the requirements for certain TEA teacher certifications.

Devine received low scores on the two constructed response questions, which when combined with her score on the multiple choice section, were insufficient to pass the exam. Devine filed suit against ETS, alleging in part violations of the Texas Deceptive Trade Practices Act (DTPA). Specifically, Devine asserted that the company failed to properly score her exam and a problematic testing environment during her test taking invalidated her scores. ETS moved for dismissal.

The court found that Devine failed to state a claim under the DTPA. According to the court, an allegation of a mere breach of contract, without more, did not constitute a false, misleading, or deceptive act. Moreover, the plaintiff’s evidence of the TEA registration bulletin and ETS test preparation manual did not provide a basis to reasonably infer any “false, misleading, or deceptive act or practice” or “unconscionable action” either (1) by ETS in scoring her exam in accordance with published procedures or (2) when her computer froze during the exam and Devine chose not to cancel her scores. Finally, Devine did not qualify as a consumer under the DTPA because she was seeking to obtain an intangible – an educator’s certification – and did not seek to acquire any goods or services by purchase or lease.

The case is No. H-14-1782.

Attorneys: Catherine F. Devine, pro se. Alan E. Schoenfeld (Wilmer Cutler Pickering Hale Dorr LLP) for Educational Testing Service.

Companies: Educational Testing Service

Cases: StateUnfairTradePractices TexasNews