Dalton v. Educational Testing Service
Court of Appeals of New York, 1995.
Author: Jim

Facts:  Plaintiff (P) took the SAT in May and then again in November.  His score improved by 410 points and the Educational Testing Service (D) did a handwriting comparison and it turned out that the handwriting on the two tests didn’t match.  When P took the test, he signed a document that gave him 5 options in such a situation: P could provide additional information, P can retake a free test, P can authorize D to cancel score and receive refund, P can ask for third party review, and lastly, P can ask for arbitration.  P chose to provide extra evidence showing his presence at the test center in the November test.  D did not consider this extra evidence and withheld P’s score.

Procedure: The lower courts ruled that D had failed to act in good faith as required by the K when it failed to consider the evidence provided by P.

Issue: Did the K require the D to act in good faith?

Holding: Yes

Rationale:  The K required that the D consider any relevant material that P supplied to the Board of Review.  P held of covenant of good faith .  But this doesn’t mean that the court should order the release of his score.  The goal of specific performance is to produce as nearly as practicable, the same effect as if the K had been performed.  Therefore, P is entitled to have his material considered by the D, but the final decision still rests with the D.