Friday, March 31, 2006


Squirrels are cute.
"A dangling penis is a happy penis."

I'm sure most of you have heard that many SATs last year were scored incorrectly. For my overseas readers, the SAT is a test used my many colleges to evaluate applicants for admissions as well as scholarships. The errors in scoring were not caught in time for most scholarship decisions and even probably application decisions. This morning I saw a feature on a young man whose score went up 140 points after re-scoring. That could be the difference between being denied admission and getting a significant scholarship!

So naturally this left me wondering what kinds of legal claims one could have against Kaplan, the company that administers the SAT program. It would probably have to fit into a contract mold, and it certainly seems that there may be a breach of the contract by Kaplan. But the measure of damages is problematic. An obvious remedy would be to refund the cost of taking the test, but for many people that may not be enough. At the same time, however, I can't imagine bringing a case and trying to prove that
1. The client would have been accepted to a better college
2. The client would have gotten a scholarship (the price of the scholarship should be paid by Kaplan)
3. And the better college would have gotten the client a better standard of living (just imagine the cost of the difference in wages over a lifetime)

This doesn't seem to be the right method for correcting the situation, because of the multitude of problems with the suit. But something needs to be done! I'm sure Kaplan will be more careful in the future, or they may lose their position as owning the premier college entrance exam. There is already an alternative, the ACT, which I don't believe is owned by them. But it looks to me like they screwed up big time, and they should have to pay something to the students who were hurt by their mistake.


  1. I would imagine they have a tiny print disclaimer when you sign up to take the test. I'm sure us crafty type persons could have forseen computer and or human error may cause a huge problem.

    I predict there will be no legitimate claims on this issue. The damages are too vague (How much more do Business majors at Pepperdine make than Business majors at University of Michigan?) and if the claim is in tort the causation and damages element also brings in some problems.

    But maybe I'm wrong (which I probably am) an there will be a gigantic class action in federal court making millions of dollars for people. Some people may put away the legal issues and see it as punishing them for making such a stupid (although forseeable) mistake.

    Love the Squirrels!

  2. Ah, yes, disclaimers. I seem to remember talking about the enforceability of disclaimers in contracts one day. I assume there's perhaps a liquidated damages clause which limits it to only the cost of the test, just like the liquidated damages when you get film developed (the damages are cost of film, not the loss of your important memories).

  3. Wow, sucks to be them. Of course, there might be some people that got much higher scores than they deserved, too. I'd just like to say congratulations on unintentionally beating the system to those people.

  4. THANK YOU for using "SAT" correctly. It's my pet peeve when people say "SAT test" or "SAT exam" (as in my own newspaper this morning. Hello, the T already stands for Test. It's not the Scholastic Aptitude Test Exam.

  5. Actually, g, the former acronym SAT does not stand for anything anymore:

    "First of all, SAT no longer stands for Scholastic Aptitude Test, the original name of the test when it was introduced in 1941. Although you may still see that name occasionally, the College Board, the not-for-profit educational association that sponsors the SATs, decided to let the acronym stand on its own as a way of addressing controversy about the meaning of the word "aptitude." The College Board also rejected the alternative "Scholastic Assessment Test." (English teachers probably pointed out that this name was redundant, since assessment means test.)"


  6. Hmmmmm. Interesting question. In addition to a contract theory, I think a tort theory would also be viable. If the mis-scoring was due to negligence, or the failure to exercise ordinary care, then the damage claim isn't as hard to prove as you might think. Once negligence is established, many states, including Michigan, recognize that proving what may have but didn't happen because of the negligence can be extremely difficult. So long as the damages logically flow from the negligence and there is any evidence in support of them, the fact finder is given some room to decide them.

    As to a class action, I doubt one could get off the ground, due to the significant disparaties in damages. People with small scoring errors or larger ones in ranges that would not affect the outcome of an offer from a school would suffer minor or no damages, while those sitting on the edge of a criterion could potentially suffer significantly. My guess is that this would require individualized inquiries that would not fit the commonality requirements of a class action.

    As to moise's concern, it would be easy to subpoena a school's offers of both acceptance and scholarship and statistically evaluate them to figure out where the lines would be. Also, most schools keep stats on how their graduates do in the job market, which would provide ample data to project earnings and losses (if any) attributable to the scoring problems.

    My guess is, however, that the litigation costs associated with these types of claims would preclude all but the most disadvantaged from pursing a claim.

  7. By the way, Kelly, how long have you had that random quote generator? I like it.

  8. He's been using the script since February 8th.

  9. You should use one on your site. Feel free to lift it out of my source code if you can, or else I could e-mail it to you.

    I think it's a real nice way to surprise someone every time they come here. But I haven't added anything new in a while, so maybe I need to think of more.