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ACT Testing Wrongly Accusing Cheating 2017

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Replies to: ACT Testing Wrongly Accusing Cheating 2017

  • BobSchaeffBobSchaeff Registered User Posts: 15 Junior Member
    In several cases we recently dealt with, ACT ignored claims that a student "did not try hard" or even "blew off" an initial test administration, thus generating a low baseline score. How did you frame that argument to get their attention, and what did ACT say in response
  • GdittyGditty Registered User Posts: 18 Junior Member
    We argued that we did not prep and lacked sleep(on 1 week mission trip building homes on reservation 12 hours away) and returned the night before the test at 1:30A...had to be awake at 6:30A to make it to the test sight. They argued that adding those reasons together still does not validate a 6 point jump in score. They literally ignored the "did not try"/"Blew off" reason?
  • GdittyGditty Registered User Posts: 18 Junior Member
    I am trying to dig out information from our case and edit to stay within our agreement with ACT.
    Below is the Amended agreement I referred to in earlier post that we submitted and ACT rejected. I apologize if this is too much information. Just want to put it out there if it helps even just a little bit.

    AMENDED SUBMISSION AGREEMENT
    We, the undersigned Parties, hereby agree to submit our dispute to binding arbitration under the auspices of the American Arbitration Association (AAA) in accordance with their Consumer Due Process Protocol. The issue in dispute is:
    Whether ACT acted reasonably and in good faith in deciding to cancel "Students Name" September 2016 ACT Assessment scores.
    The dispute is submitted under the terms of the ACT’s agreement with examinees, which states that, for Individual Score Reviews, the final and exclusive remedy available to examinees to appeal or otherwise challenge a decision by ACT to cancel their test scores is binding arbitration through written submissions to the AAA.
    We, the undersigned Parties, further agree to abide by the following:
    1. At the time the ACT entered into the agreement with the examinee, the examinee was a minor. Both parties agree that the contractual obligations of either side shall be resolved according to 'State" Law related to contracts entered into with Minors.

    2. The dispute shall be fully and finally resolved exclusively through written submissions to the AAA (unless the arbitrator decides that a hearing is necessary). To the extent permitted by the applicable AAA Rules, the arbitrator’s decision shall be maintained as confidential and shall not be published by AAA, regardless of whether the names of parties or witnesses have been removed or redacted.

    3. The AAA will select the arbitrator who will preside in the case.

    4. AAA deadlines shall be honored by ACT and the examinee. Any request for an extension of a deadline will be granted by the AAA only when the request is received prior to the expiration of the deadline and when unusual circumstances have been shown by the party requesting the extension. The AAA’s decision on any request shall be binding. Any submission postmarked later than the AAA deadline will not be considered by the arbitrator.

    5. The examinee shall pay to the AAA a $200 filing fee within fourteen days of the date of AAA’s initial correspondence to the parties. After the examinee makes the required payment within the required timeframe, ACT shall pay the AAA $1,700 filing fee and the $750 deposit for the arbitrator fees for a desk arbitration. If the examinee does not pay the AAA the $200 filing fee within fourteen days of the date of AAA’s initial correspondence to the parties, the examinee consents to the cancellation of his September 2016 ACT Assessment Scores, consents to ACT sending notice to official score recipients of the cancellation, and releases ACT from any and all claims arising from this score review. Except as otherwise provided herein, the Parties shall pay their own expenses, fees, and costs, including attorneys fees.

    6. The examinee represents that his contact information below is correct and agrees to immediately notify all parties of any change to it. The examinee also agrees that official notices from ACT and AAA may be delivered through email, U.S. Mail, or common carrier to the addresses below.

    7. Both parties agree to be bound by the reciprocal discovery laws for the State of "*****. As such, both sides agree to comply with reasonable discovery requests from the other side. Whether a discovery request is reasonable shall be determined by the Arbitrator.

    8. By agreeing to binding arbitration on the issue of whether the ACT acted reasonable and in good faith in cancelling the examinees’ test score, the examinee in no way waives any claim for the negligent infliction of emotional distress or any other tort claim actionable under the laws of the State of *********.
    We further agree that we shall observe this Agreement faithfully, that we shall abide by any decision rendered by the arbitrator.
  • LindagafLindagaf Registered User Posts: 8,735 Senior Member
    Wow. I’m a test prep tutor and I work with kids who have huge score increases all the time. I’m working with a kid right now who got 15 on the PreACT in the English section and is now up to 28. I worked with another kid who went from 18 to 35. It is not unusual at all for intelligent and hardworking kids to have big score jumps, especially when they have a tutor to help them prep.

    I wonder how many tests ACT actually flags? Everyone on this thread knows of at least one person. I’m sure there are thousands more who are affected by this. This seems almost like a case of ACT using scare tactics on a few unlucky people in order to spread the message that they won’t tolerate cheating.

  • BobSchaeffBobSchaeff Registered User Posts: 15 Junior Member
    Media reports often cite a figure of "approximately 2,000 cases each year" but we've never found a firm citation for that number. Years ago, a College Board leader speaking on a conference panel with me did say that about 2,000 SAT scores were questioned annually -- of course, no one knows how many of these cases were resolved by successful appeals to the Board of review, confirming scores on retakes, cancellations or arbitration. The processes used by ACT and SAT are far from transparent.
  • GdittyGditty Registered User Posts: 18 Junior Member
    I am in the process of redacting names and locations along with anything that would violate our agreement with ACTT. Even though we signed the submission agreement under duress we are making every attempt to follow the guidelines set forth. Any reference to cases ACT presents as president will be omitted. Bear with me as this might be spread out over several days.

    Our Brief:

    TO: THE HONORABLE, ****************, ARBITRATOR FOR THE AMERICAN ARBITRATION ASSOCIATION, AND **********************, ATTORNEY FOR ACT,INC.
    The Respondent respectfully submits the following brief in opposition to Claimant's (ACT, Inc.) decision to cancel Respondent's September 2016 ACT score. ACT acted unreasonably and in bad faith in deciding to cancel Respondent's exam score:
    (1) The ACT's conclusory assessment that Respondent's score should be cancelled because of "Unusual Response Similarities with an Examinee Seated Near You" is vague, lacks sufficient evidentiary value, and is otherwise an unreasonable basis upon which to cancel an otherwise valid test score.
    (2) ACT's decision, in part, to cancel Respondent's score due to an "Unusual Score Increase" is unreasonable and in bad faith in light of Respondent's explanation for the score increase.
    (3) ACT's conclusion that Respondent's high school grade point average (GPA) does not support the score achieved on the ACT is the subject of significant scholarly debate. It is unreasonable to base a decision, even in part, on the achievement of a test score higher than what one might expect based on GP A.
    (4) In deciding to cancel Respondent's test score, ACT failed to adequately consider the circumstances between the time Respondent took the first exam and the time Respondent took the second exam. Significantly, ACT failed to consider that the Respondent underperformed when taking the first exam in light of the presented circumstances. Additionally, ACT failed to consider the character of the Respondent as a factor in the determination.
    (5) ACT failed to conduct a reasonable investigation into the validity of Respondent's score in light of the potential effect that the canceling of Respondent's score would have on the college admission process.
    For the reasons to be explained infra, Respondent respectfully requests the Arbitrator find that ACT abused its discretion and acted unreasonably and in bad faith in deciding to cancel the Respondent's exam score.
  • JBStillFlyingJBStillFlying Registered User Posts: 6,007 Senior Member
    edited March 8
    Maybe I missed something but while I can understand a NDA with ACT if there is a settlement of some sort - those are pretty common. Not sure how any disclosure can undo the results of a binding arbitration decision by a third party. ACT is just playing hardball again - in reality I doubt they can legally cancel scores or come after you on any matter pertaining to this issue given the decision. They've already agreed to abide by it.
  • GdittyGditty Registered User Posts: 18 Junior Member
    I. INTRODUCTION:
    ACT, Inc. (ACT) is a private organization with yearly gross profits of $23,000,000. (See Americans for Educational Testing Reform @ aetr.org) Its primary source of income is generated through fees paid by high school students to take its standardized exam, (the ACT) which is a primary component along with grade point average used to determine admission to college.
    In 2015, ACT paid its top executive $845,333 in salary plus benefits. (See The
    Washington Post December 13, 2017: Tennessee to Investigate ACT Inc. after controversy over student test score) ACT paid its "Chief Measurement Officer $671,951 in salary. (Id.) In 2007 the Des Moines register reported ACT board members received "more than $40,000 annually to attend four meetings, review documents and participate in conference calls." (Id.) ACT pays individuals to lobby congressional legislatures to support their agenda. (See Americans for Educational Testing [email protected]))
    ACT operates as a duopoly along with its only real competition the Scholastic Aptitude Test (SAT). (ACT has recently surpassed SAT as the leading standardized test taking agency.) Nonetheless, ACT uses its position in the education market to claim nonprofit status and avoid taxes it would otherwise be required to pay. (See above: Tennessee to Investigate ACT, Inc.)
    Critical to ACT's ability to maintain its lucrative revenue, is the perceived reliability of the ACT exam as a measure of predictability of a student's success in college. In order for the ACT exam to be reliable, a student, in theory, should not be able to increase his or her score within a short period of time. Significant increases in score over a short period of time might suggest that the exam can be "beaten" either through test taking strategies or other techniques inconsistent with a student's actual aptitude. Wide variations in score over a short period of time would cause colleges to question the exams reliability and potentially either no longer require the exam for admission or prefer another standardized test such as the SAT.
    In order to combat this dilemma, ACT imposes a check that allows ACT to cancel an otherwise valid score. The check, which the ACT does not disclose, publicize or otherwise notify test takers about, subjects all test takers who demonstrate a six (6) point increase in score to a second level of scrutiny. ACT does not disclose this out of fear that students may only take the exam one time. (ACT derives a substantial amount of its revenue from second time test takers.) ACT compares the test of any student who obtains a score six (6) points higher than his or her previous test to students sitting nearby. ACT uses a complicated algorithm that compares the scores of the exams, and if there is enough similarity it automatically flags the exam and starts protocols to cancel the score of the repeat test taker. ACT engages in this process automatically and without any regard to whether there was any actual wrongdoing. (Emphasis added) As outlined above, ACT has a substantial financial interest in canceling the higher score regardless of the impact that cancelling the score has on the student and the student's family. Not only is ACT unable to show any wrongdoing on the part of the test taker they actually avoid doing any investigation or undertake any measures to verify that the test taker legitimately earned the higher score. ACT does this because they do not want to discover that a student was able to significantly increase their score over a short period of time. Such a conclusion would undermine the reliability of the exam.
    ACT, as they will undoubtedly do in this case, hides behind vague language in the arbitration clause, which states in part that, "the only issue for arbitration will be whether the ACT acted reasonably and in good faith in deciding to cancel the scores." ACT does not describe what reasonable actions it will take or how it will demonstrate good faith in investigating the score. ACT also states it may conduct a score review if there are "unusual similarities between your score and that of another test taker." ACT says that "proof of misconduct" is not required to cancel scores. The issue with the language is that it fails to put on notice to the consumer (generally high school students) the circumstances under which ACT can cancel his or her score. It is void for vagueness. A reasonable consumer would understand that if he or she copies off another test taker, or uses a fake name that their score would be invalid. In other words, everyone knows that if you cheat your score will not count. However, it is unreasonable for a high school student to understand from the test agreement that if they take the ACT exam a second time (which most students do) and their score increases six ( 6) points, ( students take the exam repeatedly with the hope that their score will in fact increase) and their test just happens to be similar to someone sitting next to them, ACT can cancel their score even if they did nothing wrong. This is the position in which Respondent finds himself.
  • GdittyGditty Registered User Posts: 18 Junior Member
    II. STATEMENT OF FACTS
    In April 2016, I signed up and paid to take the ACT exam. The exam was scheduled for June 2016. One month later in May 2016, the dates for our church youth group mission trip to ************ were released. The return date of the mission trip conflicted with the date set for the ACT exam. I was concerned that spending the week before the ACT in ************ might negatively impact my performance on the ACT due to a lack of sleep and an inability to prepare for the exam. Nonetheless, after discussing the conflict with my parents, I decided that using the June exam as essentially a "practice test" would still be worthwhile. Nowhere in the pages and pages of rules and regulations provided by ACT for the exam is there anything that would indicate a significant increase in score could result in further scrutiny of the exam. Let alone a cancelation of my score if by some chance my exam was similar to a student sitting near me. So in June 2016 I spent a week on Native American Indian Reservation helping to build/refurbish houses for less fortunate families. I slept on the floor with other members of my church group.
    On June 10, 2016, my father met me half way in ************ and drove me home arriving there sometime after 1:30 AM the day of the ACT exam. I woke up at 6:30 AM and traveled 30 minutes to *************** to arrive for the ACT by the required check in time of 8:00 AM. A few weeks later I received a score of 22. I was disappointed as I felt I could have scored higher, but under the circumstances I was not particularly surprised.
    Subsequently, I signed up and started ACT test prep classes. I studied both on-line and in person. These courses helped in all facets of taking the ACT including strategies for taking the exam. One such strategy was because there is no punishment for guessing, the instructors advised narrowing down answers and guessing between two (2) more likely correct answers instead of just guessing blindly or leaving answers blank. I also learned the exam often challenges students to select between two similar answers. Often the correct answer is between these two similar answers. The exam is timed, so learning to manage my time by skipping questions I did not know the answers to and then coming back to those later significantly helped me complete the exam more accurately and efficiently. These were key strategies I learned during my test prep classes.
    In July 2016 I signed up and paid for ACT test dates in September and October.
    In September 2016 I sat for the ACT exam. This time I was able to get a full night of sleep. Additionally, the exam was a mere ten (10) minutes from my house. I arrived significantly more energized and prepared to take the exam. In September 2016, I received a score of 29 which I felt was more consistent with my abilities. A score of 29 was the median score for my college of choice and along with my GP A I felt I would be accepted. I decided not to take the exam a third time in October. I began the application process, which involved sending out multiple applications to colleges and universities across the country.
    In December 2016, I received an acceptance letter from the "University of ***". This was my first choice of schools mainly because my family is from "The State" and my older brother was already attending school there. My family and I were overjoyed. I accepted the offer from the University of ********* and matriculated in the Fall of 2017.
    On New Year's Eve 2016, a full four (4) months after I took the ACT exam, and after the application deadline for most colleges and universities had passed, I received a form letter from ACT alerting me that my second score had improved significantly and that they detected "irregularities" in my exam as compared to another student. They did not specifically accuse me of cheating, but it was clear from the letter that ACT was accusing me of copying off
    another student's exam. ACT asked for an explanation as to why my score improved so much. ACT also said I could retake the test. (See Exhibit A) I knew that I had earned the score I achieved on the exam, and I knew that I had a good reason that would explain my improvement. On January 3, 2017, I sent ACT the score review option sheet, a letter of explanation, my high school transcripts, reference letters and National Honor Society certificate. (See Exhibit B) Only a few weeks after sending in my explanation, I received a response from ACT indicating my explanation was insufficient to explain the increase in my score. In this new letter ACT included statistics that were at best confusing and at worst completely unintelligible. (See Exhibit C)
    On February 12, 2017, I returned the score review option sheet choosing to litigate the validity of my exam score through a neutral arbitrator. (See Exhibit D)
    On March 2, 2017, I received another letter from ACT. ACT provided more
    statistics which were no less confusing as well as a seating chart the point of which was unclear. Despite the fact that I had chosen arbitration, ACT again encouraged me to send in more information. At this point I was hopeful that ACT actually wanted to hear my side of the
    story. I was encouraged that perhaps I could convince them I was telling the truth and I had not cheated on the exam. (See Exhibit E)
    On March 15, 2017, I sent a third letter along with my score review option sheet. I was able to visit the test site (********) High School - Room 811) and speak with the proctor who was in the classroom during the test. She helped us recreate the room so that it reflected the configuration on the day of the test. It was clear to everyone in the room, including the proctor, that it would have been impossible to copy off the student in front of me without the proctor noticing. I also included two (2) additional character references from my pastor, who has known and advised me my entire life, and my high school guidance counselor, who has witnessed my work habits and ethics throughout my four (4) years in high school. (Exhibit F)
  • GdittyGditty Registered User Posts: 18 Junior Member
    STATEMENT OF FACTS CONTINUED:
    On April 11, 2017, I received another letter from ACT reflecting their decision to cancel my score. ACT provided case authority for their position which I will refute infra. ACT again gave the same options as they had from the start: cancel the score myself, re-test or binding arbitration. I again chose binding arbitration. (Exhibit G)
    On April 24, 2017, I sent my score review sheet and signed "amended" submission agreement to ACT. ACT was attempting to change the terms of the consumer agreement. They added terms and language which were not contained in the original agreement I signed to sit for the exam. (See Exhibit H)
    On May 22, 2017, I received a letter from ACT. ACT confirmed receipt of my score review sheet and amended submission agreement. However, ACT refused to accept the amended submission agreement. Instead ACT threatened to cancel my score if did not agree to their terms. At this point I felt that I should contact an attorney and seek legal advice. ACT was using duress to force me to enter into an agreement that I had not bargained for when I signed up to take the test. I requested an extension to explore my options. (Exhibit I)
    On May 31, 201 7, I received a letter extending the deadline for receipt of the submission agreement to June 19, 2017. On June 16, 2017, in response to an additional request by me for more time, ACT extended the deadline to June 30, 2017. On June 30, 2017, with no other option I signed the submission agreement indicating that I was doing so under duress. (Exhibit J) On July 26, 2017, for inexplicable reasons, the ACT wanted a signed "updated" submission agreement. (Exhibit K) On August 14, 2017, I again signed the document indicating I was doing so only because they threatened to cancel my score if I did not sign their agreement. (Exhibit L)
    In September 2017, a full one year after I first took the exam, and after I had enrolled in college, I received a letter that informed me that the ACT had received the signed submission agreement and that I would be contacted by the AAA regarding payment for arbitration.
    In October 2017, I received a letter from AAA informing me of the need to send them a payment of $200. On October 15, 2017, I submitted payment of $200. In November I received a letter regarding potential conflicts and then in December was told the name of the Arbitrator. I also received my first semester grades, which reflected above average performance.
    In January 2018, I received a letter stating the deadline for the submission of briefs to the arbitrator. I requested an extension. Despite the fact I was beginning my second semester in college, ACT objected. The AAA graciously gave me additional time to properly prepare and file briefs in support of my position in light of my busy college class schedule.
  • GdittyGditty Registered User Posts: 18 Junior Member
    III. THE STANDARD OF REVIEW AND BURDEN OF PROOF
    ACT's decision to exercise its discretion to cancel the Respondent's test score created this cause of action. Therefore, the Respondent asserts that the burden of proof falls on the Claimant ACT to establish by a preponderance of the evidence that ACT acted reasonably and in good faith when it decided to cancel Respondent's score. In the 2016-2017 Terms and Conditions: Testing Rules and Policies for the ACT Test (Rules), Respondent agreed that "ACT reserves the right to cancel test scores when there is reason to believe the scores are invalid. Proof of misconduct is not required to cancel scores." However, Respondent asserts that while ACT may have the right to cancel a test score absent proof of misconduct, in order for that decision to be deemed reasonable and in good faith by this Arbitrator, there must be some evidence of misconduct on the part of the Respondent apart from an unsubstantiated statistical analysis. Respondent agrees that it is a violation of the rules to "[l]ook at another person's test booklet or answer document." However, ACT has failed to provide any evidence that Respondent looked at another person's booklet. Additionally, based on the information provided to the Respondent by ACT, ACT was negligent in its investigation resulting in an unreasonable decision to cancel respondent's score.
  • GdittyGditty Registered User Posts: 18 Junior Member
    IV. ARGUMENT(pt 1)
    In summary, ACT alleges in its letter to Respondent dated January 30, 2017, that
    Respondent copied answers off another student seated near Respondent in violation of the rules.
    ACT makes this claim without any direct evidence to support its decision and despite
    numerous safeguards established to prevent this type of misconduct. ACT maintains, for
    obvious reasons, a lack of transparency when it comes to information regarding measures in
    place to prevent one student from copying answers from another student. The presence of not
    one but at times two, paid, trained, proctors whose sole responsibility is to monitor for violations
    of the rules would make it extremely difficult, if not impossible, for a student to engage in any
    kind of meaningful copying without being discovered. This is not to say that an individual exam
    taker could not observe an answer or two, but to copy an entire section, as ACT seems to claim,
    without being noticed is inconceivable in this case. The Respondent presumecj ACT has spoken
    with the proctors and determined that the proctors did not observe anything out of the ordinary.
    This does not appear to be the case. As noted above, the Respondent was easily able to locate
    the proctor and confirm that there were in fact no irregularities during the test involving the
    Respondent or anyone else for that matter. If ACT has failed to confer with the proctors,
    Respondent argues that this failure in and of itself would make their decision unreasonable. It is
    not clear whether ACT reviewed scratch paper submitted by the Respondent with the testing
    materials. This information could be used to corroborate Respondent's contention that the
    answers were the product of his own work. Again, failure to review this material readily
    available to ACT would be negligent. ACT may claim that proctors cannot monitor all the test takers at all times. Thus, the proctors are not an absolute impediment to cheating. This is of course true. However, in this ase the proximity of the proctor to the Respondent and subject test taker would make copying off the subject test taker's exam to the extent claimed by the ACT impossible provided the proc­tor was doing her job. ACT must acknowledge that if in fact the Respondent did not copy answers (right or wrong) off another test taker then his score is valid. The Respondent argues the arbitrator should follow the reasoning established in Cortale v. Educational Testing Serv., 251 A.D.2d 528 (1998). In that case the plaintiff took the Graduate Record Examination (GRE), which was a prerequisite for admission to graduate school. (Cortale @ 528) The plaintiff was dissatisfied with her score the frrst time, "having earned higher scores in a review course." ([email protected] 528) She took the test again and in one area did "substantially better". (Cortale @ 528). The testing center claimed that she had copied her answers from another student possibly sitting nearby. The evidence consisted of a statistical analysis and a pattern of erasures on her exam and that of the other student. The court held:

    The testing service did not have the right ... to invalidate the test taker's score ... given the circumstantial evidence. The testing service did not meet its evidentiary burden of showing that it had acted in1 good faith. Because there were remaining issues as to credibility, the denial of summary judgement was proper. (Id. @528)



  • GdittyGditty Registered User Posts: 18 Junior Member
    ARGUMENT (pt 2)
    The testing center, (like ACT in this case), allowed the plaintiff to provide an explanation to her increase in scores from October to December. (Id. @ 528) The plaintiff explained that she had an injury to her hand and had been taking prescription pain medication. (Id. @528-29) She also submitted academic information to show that her higher score was more consistent with her academic abilities. (Id. @ 529) Nonetheless, the GRE (like the ACT) was not persuaded and decided to invalidate her score. (Id. @ 529) In ruling in favor of the plaintiff test taker the court said:

    In the instant case, ETS, in reliance upon purely circumstantial evidence, determined that the plaintiff was guilty of cheating.
    This determination was based largely upon a statistical analysis of the pattern of erasures and incorrect answers ( emphasis added) appearing on the plaintiffs answer sheet as compared to that of Candidate B. ETS submitted numerous affidavits and other evidence tending to substantiate its methodology. However, in opposing the motion
    for summary judgement, the plaintiff adduced expert evidence which attacked those statistical analytical methods as unreliable. Moreover,
    ETS itself submitted an article from The Princeton Review Foundation, ostensibly in support of its motion, which was critical of its own investigative policies. The article charged that ETS had a tendency to ignore most evidence submitted by test takers because of an institutional bias.
    (emphasis added [email protected] 530) B. ETS submitted numerous affidavits and other evidence tending to substantiate its methodology. However, in opposing the motion
    for summary judgement, the plaintiff adduced expert evidence which attacked those statistical analytical methods as unreliable. Moreover,
    ETS itself submitted an article from The Princeton Review Foundation, ostensibly in support of its motion, which was critical of its own investigative policies. The article charged that ETS had a tendency to ignore most evidence submitted by test takers because of an institutional bias.
    (emphasis added [email protected] 530) impossible for the consumer to have copied off the exam without her noticing.
    (See Exhibits Nl-Nl0)
  • GdittyGditty Registered User Posts: 18 Junior Member
    edited March 9
    ARGUMENT (pt 3)
    Also, ACT failed to review scratch paper used during the exam to see if the Respondent's
    work was consistent with his answers. ACT did not contact any of the references provided. In fact, ACT did absolutely nothing other than rely on its statistical analysis (similar to ETS in Cortale) the reliability of which was called into question. (See Cortale Infra)
    It appears ACT has attempted to circumvent the line of cases cited herein (including the cases cited by ACT), by removing the requirement that they show any evidence of
    misconduct other than a statistical analysis. (emphasis added) This is inconsistent with what a reasonable consumer would understand when reading the contract and in violation of the doctrine of fair dealing. A reasonable consumer (test taker) would understand that if they were to cheat on the exam their score would be void. However, it is not reasonable for the consumer to believe from reading the contract to take the ACT that if their score increases significantly ACT can cancel their score without any proof of wrongdoing based solely on a statistical analysis. Especially where the Respondent provides a rational explanation for the increase in score. Furthermore, ACT's conduct amounts to bad faith where, ACT, which surely has the resources, does absolutely nothing to investigate the information provided by the Respondent.
    To summarize, by failing to adequately inform the Respondent regarding1the circumstances that could prompt scrutiny of the test taker's exam, ACT has not acted reasonably in cancelling the Respondents score. Additionally, the use of an unreliable statistical analysis, with nothing more, to cancel the Respondents score is also umeasonable. Finally, ACT's failure to conduct any investigation into the Respondent's explanation for his score increase is bad faith.
    ACT, in letters provided to Respondent, has attempted to rebut Respondent's explanation with more statistical analysis. For example, Respondent explained that he took a test prep course which assisted him when retaking the ACT exam. The ACT responds with a statistical analysis arguing that test prep courses would only account for a score increase of approximately 1. 7. However, ACT uses its own biased statistics to come up with this number. Mark Twain
    (attributing the quote to British Prime Minister Benjamin Disraeli) eloquently stated: "There are three kinds of lies: lies, damned lies and statistics." According to Sexton Test Prep & Tutoring, "a standard package of 12-16 tutoring hours usually yields 3-5 points of improvement on the ACT .... If the number tutoring hours is increased and the process is extended across several months, then a student may expect 4-6 points of ACT improvement." PrepScholar claims to be able to help raise your score from 25 to 32 in 10 days. Although they do recommend, "spending at least five weeks studying for the ACT. It's easier to guarantee a score boost of 25 to 32 if you give yourself more time to practice." Such vast discrepancies in statistical data or claims to be able to increase your score on exam exist because of biases in the source. ACT's existence depends on the exam being a reliable p􀀐dictor of success in college. Test prep agencies existence depends on their being able to significantly increase a test takers score. Therefore, neither is truly reliable. For ACT to cancel Respondent's score based on biased statistical data is unconscionable. ACT is well aware of the importance their exam plays not just in acceptance to college, which has lifelong effects, but scholarship awards and financial aid. The fact that Respondent has achieved academic success at an institution where 29 is the average ACT score should cause ACT to admit 29 is more likely the accurate score. Unless, of course, they are willing to admit their test is just a money making device and not truly a measure of academic promise. The ACT responds identically (i.e. with more statistics) when Respondent explains that he was not well rested. Sleep deprivation has long been recognized ( except apparently by the ACT) as a factor in lower performance in a wide variety of activities. The internet is replete with articles touting the importance of a good night's sleep before taking standardized tests. (For example see huffpost.com: Scientists Link A Good Night's Sleep To Higher Test Scores) (See also doorwaytocollege.com, Want to Improve Your ACT and SAT Test Score? Get Better Sleep) Nonetheless, ACT, despite scientific research to the contrary, cites biased statistics to support their point.
    Post edited by vonlost on
  • GdittyGditty Registered User Posts: 18 Junior Member
    ARGUMENT (pt 4)
    ACT quickly dismisses Respondent's character references as an insufficient basis to explain the similarities between Respondent's score and that of a nearby test taker. Nothing could be further from the truth. There is an axiom in criminal law formalized in an instruction to the jury that states in part: "Good character. .. may be sufficient by itself to raise a reasonable doubt ... It may be reasoned that a person of good character. .. would not be likely to commit the crime(s) of which the defendant is charged. (See CALJIC 2.40) Copying off of another student's exam is indicative of poor moral character. This deficient moral character is magnified when talking about standardized tests. Obtaining a higher score by cheating and thereby possibly depriving another deserving student of his or her place in the college of his or her choice is deplorable. The Respondent simply is not of that character as evidenced by his references. Interestingly, this is the one area ACT does not provide any statistics.
    ACT does provide two cases which are easily distinguishable from the case at bar. The first is ***************************************). As in the case at bar the plaintiff took a standardized test twice. She scored higher in one section prompting the ETS to investigate. The ETS noted similarities between correct and incorrect answers. At first glance the case appears analogous to the instant case. However, a closer inspection reveals that the court was deciding a different issue than the issue in this case. In the "Case Name"case the plaintiff was arguing that due process mandated that the ETS prove at an evidentiary hearing that she cheated. The court simply held that due process did not so require. Interestingly, the court noted that one of the procedural safeguards afforded the test taker ( of which she apparently did not avail herself) was the opportunity to "validate the subject scores by providing relevant information .... " (Id. @ Page #) Thus, clearly the court considered the ability to provide relevant information paramount to safeguarding the due process rights of the test taker. However, if the testing agency completely ignores relevant information provided by the test taker then this safeguard is meaningless. In this case ACT ignored relevant information. They did not follow up with their own proctor who would have confirmed there were no irregularities during the test. They did not conduct any investigation to confirm or refute any of the information provided by the test taker to explain the increase in scores. They did not ask for information regarding the test prep course. They did not contact any of the character references. ACT completely disregarded all information provided by the test taker and thereby denied the test taker his due process rights.
    The second case cited was "**********" v. ACT, ************(1989) This case involved a University of********* football player, who, after he did not achieve a score high enough to qualify him to play Division 1 football retook the test six (6) months later. This time plaintiff received a score double what he achieved on his first test. The new score made him eligible to play Division 1 football. ACT's computers automatically flag any score that increases by (six) 6 points or more in a twenty (20) month period . .([email protected] ##) Again, ACT noted similarities between correct and incorrect answers between the plaintiff and a student seated nearby. In
    "Name" the plaintiff sent letters and other references supporting the character of the examinee. ([email protected] ##) However, in that case ACT requested a copy of the plaintiffs high school grades. The plaintiff refused, and rejected all options provided by ACT including retest and arbitration. Instead plaintiff demanded ACT certify plaintiffs test score. ([email protected] ##) The appellate court in ruling against the plaintiff held:
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