Justice as Fairness

I’m wondering what readers think of this case:

A judge has sided with a New Jersey teenager accused of cheating on the ACT exams, saying a clause test-takers must sign giving up their rights to sue the testing company is “unconscionable” and “void as against public policy.”

The ruling from Somerset County Judge Michael Rogers means Readington Township teenager Brendan Clare can seek damages from ACT Inc., the company that runs the test and threatened to invalidate his scores. It also opens the door for teenagers across the country to attempt to sue the testing company citing Rogers’ ruling.

A somewhat more informative article from Inside Higher Ed.

The contract in question strikes me as substantively unfair, but I wonder about the use of unconscionability to void it. For purposes of this post, set aside the possibility of fraud, and focus just on the issue of unconscionability. It seems to me that the use of unconscionability here raises the following problem.

(1) If every substantively unfair contract is unconscionable, then unconscionability just becomes a synonym for substantive unfairness. A huge number of contracts probably satisfy that description, in which case the doctrine of unconscionability seems indefinitely capable of expansion, and also seems self-subverting; it preserves the fairness of contracts by gutting the sense of predictability and reliance that contracts are supposed to ensure.

(2) If unconscionability refers to a proper subset of substantively unfair contracts, we need criteria for unconscionability that are not just different but discernibly different from those of ordinary unfairness. The difference between an unconscionable contract and a merely unfair one can’t be a tricky or hairsplitting one. It has to be the kind of thing that dissuades people from habitually invoking unconscionability in lawsuits to contest unfair contracts that fall short of genuine unconscionability.

Ideally, what distinguishes mere garden-variety unfairness from unconscionability should be qualitative rather than quantitative, or else quantitative in a way that amounts to qualitative. In other words, it can’t just be that unconscionability is a worse-than-average form of unfairness, though that may be true. Unconscionability has to be a worse-than-average form of unfairness that differs from the usual sorts of worse-than-average forms of unfairness in more ways than the typical sorts of worse-than-average forms of unfairness differ from one another. In other words, it has to be the kind of worse-than-average unfairness that belongs in a special class of its own. But that’s a tall order, and it’s not clear what, if anything, fits the bill, at least as a matter of general criteria.

(3) One option, of course, would be to junk the doctrine of unconscionability altogether, a view that’s certainly been defended, but that seems to me to throw the baby out with the bathwater. There are clear cases of unconscionable contracts–songs have been written about them–and it’d be a mistake to insist on enforcing them as written, or in some cases, enforcing them at all. The question is what they all have in common besides being unconscionable.

I’m inclined to think that our best bet is option (2). But until we have a good account of (2) in hand, we’re still left with the problem of how to react to cases like the one above. Should we react with dismay that the doctrine of unconscionability is being misused? Or with gratification that substantive justice has trumped procedural formalism? Or with puzzlement about which of the two is the case?

Though I find the case a little puzzling, I lean toward the sense that the doctrine of unconscionability is being misused here. The invocation of unconscionability in this context seems to presuppose that a remedy was absolutely imperative in this case, and that binding arbitration was so outrageously inadequate or unreliable a remedy as to amount to the absence of one.

I don’t see that either thing is the case. For one thing, though unfair, it’s not clear to me that a false accusation of cheating is a terrible enough outcome (assuming it is false) to entail the invalidation of a duly signed contract that explicitly commits the signatory to arbitration in exactly this sort of case.

Second, it’s not clear to me that binding arbitration really is inadequate or unreliable in cases like this, or even generally so. I’ve been in arbitration once myself, and though I was reluctantly ordered into it by a court decision, I was ultimately glad I was; it has its limits, but within certain limits, in many ways it seems preferable to court-based litigation.  The assumption behind Rogers’s decision seems to be that if there was even a chance that binding arbitration might favor ACT, that possibility had to be quashed via appeal to unconscionability. But it’s hard to see how any binding arbitration clause could survive a test of that sort: if binding arbitration was ruled out every time it was possible that one side (the “wrong” side)  in a dispute might get a favorable outcome, arbitration could more or less be ruled out at will. That approach is to binding arbitration what hypothetical consent is to consent.

It seems to me that instead of invalidating contracts on grounds of unconscionability in cases like this, we ought to be pressing for informal changes or choices that would render both unconscionability and arbitration unnecessary. And there are more choices available to the parties than the court’s decision would seem to imply.

ACT argued, the decision noted, that Clare could have opted not to take the ACT. But Judge Rogers disagreed. “The harsh reality facing plaintiff and millions of other students each year who desire to gain admittance to college is that they must submit to either the ACT or the SAT standardized test,” the ruling said. “As mentioned earlier, the SAT contract contains waivers similar to those of ACT. There is nowhere else for a student to turn beyond these two testing services. This is a form of de facto economic compulsion.”

In inferring “de facto economic compulsion,” Rogers writes as though everyone in the relevant decision-chain was somehow robotically frozen into compliance by ACT’s verdict on Clare’s test results. But they weren’t. Why couldn’t the relevant decision-makers on the college admissions side simply be induced to take a harder look at the facts concerning ACT’s accusation, and be persuaded to make a fact-sensitive decision on what they found?

Though it’s hard to tell from journalistic accounts, the evidence used against Clare seems pretty weak. I’d like to think that a college admissions committee should either be able to offer an independent evaluation of the evidence ACT adduced against Clare, or if denied access to it, should in effect dismiss the charge against Clare for lack of evidence (which may well be what it did). If a candidate’s ACT scores are clouded by uncertainty, the committee should be able to make its admissions decision by focusing on other parts of his application. Alternatively, the candidate can take the test again (as he did), and the committee can focus on the re-test (as they did). In a world where athletes, legacy students, EOF students, ADA 504 students, and affirmative action candidates get special consideration, it defies credulity to believe that exceptions can’t be made in exceptional cases like this one.

In any case, there has to be a limit on our tendency to farm the responsibilities of individual judgment out to the judicial system. It defies plausibility to think that every time ACT or the SAT makes an odd decision with adverse consequences on a candidate’s chances for admission, the matter has to be litigated in court. That reasoning is just a few steps away from the thought that every contestable plagiarism charge or grade ought to be a subject for litigation.

We’re getting there. In my twin roles as college instructor and academic advisor, I’ve already had one student escape a plagiarism charge by lawyering up (with a fake lawyer, by the way), and one student try to escape an F in English by mommy-lawyering up (since his mom was a lawyer).

In the first case, the student not only confessed to having plagiarized her “work” in my class, but to having done so for her entire college career. No matter; by retaining a (fake) lawyer whose credentials the Dean never bothered to check, the student got away with four years’ worth of plagiarism, graduating summa cum laude with a degree in Criminal JusticeShe later became a successful real estate broker in Manhattan’s luxury residential market, with a lucrative side business in tax preparation (yes, I keep tabs on my students).*

The second case involved a student about as belligerent generally as he was hostile to the academic enterprise–one who habitually abused both students and faculty (freely referring to his classmates as “niggers” and “bitches”), did no classwork, duly failed his classes, and then complained bitterly about the outcome–with Lawyer Mom in tow, threatening litigation for our many failures to accommodate Junior’s sociopathy. I don’t exactly know what happened to this student; he either dropped out or failed out of the institution. Explanation for the difference in these outcomes? Sheer luck. Change a few variables, and the second student might well be working for the same real estate company as the first.

And then, of course, there are the hushed rumors about this or that faculty member or administrator abruptly fired because he or she mishandled this or that litigious student in this or that context…In short, if you think “political correctness” is a threat to academic freedom, try plaintiff’s attorneys on for size.**

Simultaneously plausible and puzzling is the claim that “teenage students cannot be expected to knowingly and willingly waive their constitutional right to a jury trial without parental input or supervision.”

“What is troublesome is that ACT contracts primarily with minors, as here, without parental approval,” the ruling said. “Minors are unsophisticated and inexperienced in the world of contracts and contract choices … Public policy demands that minors receive protection that is in their best interests. Minors cannot be expected to knowingly and voluntarily waive their constitutional right to a jury trial and any possible claims for damages of any kind without parental input, supervision, and approval.”

Well, nothing stopped Clare from getting parental input or supervision when he signed the contract with ACT–not that getting it would have changed all that much.  There’s no escaping the following dynamic: if Clare really was compelled to sign the contract, the compulsion would have operated regardless of any input his parents might have given him. But had they advised him not to sign the contract, and he hadn’t,  it makes no sense to say that he was compelled to sign it. It seems to me that Judge Rogers is trying to have it both ways in claiming that the decision to sign was rendered involuntary by lack of parental input, but would also have been a case of de facto compulsion had parental input been involved.

Not that I blame Judge Rogers for any of this, but I couldn’t help reflecting on some ironies here. If 17-year-olds can’t sign contracts requiring binding arbitration when it comes to a standardized exam, how is it that 18-year-olds can sign their lives away to fight for the military in faraway countries? Apparently, 17-year-olds are inexperienced in the world of contracts involving standardized tests; a year later, they’ve acquired the experience needed to put their lives at the mercy of the U.S. Marine Corps. What did the trick? The prom?

And if it’s de facto compulsion to make a 17-year-old boy sign a binding arbitration agreement, why isn’t it de facto compulsion to force a 17-year-old girl to ask a parent for permission to get an abortion? Because that’s the requirement–in progressive New Jersey, no less. If both parents refuse to allow their daughter to get an abortion, as they can, why isn’t it de facto compulsion to force her to give birth to the child? I mean, if being forced to re-take the ACT is bad, imagine being forced to go through labor. All of these supposed acts of compulsion are fully consistent with the demands of “public policy” in the State of New Jersey, and elsewhere.

Anyway, the complaint about Clare’s being deprived of his “right to a jury trial” seems to me either misleading or equivocal. The idea of an inalienableright to a jury trial” applies most clearly to serious criminal charges, or to civil suits involving federal law in federal courts. My understanding is that legally speaking, there is no inalienable right to a jury trial over and above that; in other words, legally speaking, one can sign away one’s right to a jury trial in all cases but the two I just mentioned. So the “right to a jury trial” can’t as a legal matter be construed as a right to bypass binding arbitration involving non-criminal charges made by private actors in non-criminal cases in non-federal court. Yes, Clare was in a sense deprived of his right to a jury trial, but that’s because he himself signed that right away. Maybe there is a moral argument to be made that no one can ever sign that right away, but I don’t see what the legal argument would be. That said, I haven’t read the decision itself, so I don’t know what Rogers said in defense of his claims.

Also puzzling is the case for damages here. I see the rationale for wanting to collect damages for the apparent loss of reputation involved in the false accusation, but it’s worth bearing in mind that an apparent loss of reputation is not necessarily an actual one.

This is a little freaky, but while writing this post, I went to the local gym and encountered Brendan Clare’s father (whom I don’t personally know, and have never previously encountered), telling Brendan’s story to the membership services lady at the front desk. Though powerfully tempted to tell him all about the awesome blog post I was writing about his son’s case, I suppressed the urge.

What I did instead was stand around and eavesdrop long enough to hear him tell Brendan’s story. Predictably, by the end of it, the membership services lady had professed to find the whole thing “scary,” and had come to regard young Brendan as a hero. I suspect that most people who hear Brendan’s story end up with the same view. (I so far haven’t read a press account unsympathetic to him. Think about how easy it would be for an unsympathetic journalist to paint Brendan as a privileged cheating white boy using daddy’s legal connections to extract damage payments from a deep-pocketed corporation.) So it’s far from clear that Brendan has suffered any genuine reputational loss from ACT’s decision. Just the reverse, I’d think. It’s ACT that’s suffered the reputational loss, not Brendan Clare.

It’s also not clear to me that a delay in being informed that your scores are being contested is an injury. It depends on why they were delayed. Unless the score results were maliciously being delayed, I don’t see the grounds to claim injury here. But it’s not clear the delay was malicious.

As for the error itself, assuming it is one, that certainly is an injury of sorts. Under ordinary circumstances, I’d say that Clare is entitled to damages for it. But then, he signed an agreement saying he wasn’t entitled. And though his ordeal was unfair and was probably based on an unfair accusation, the outcome was hardly catastrophic: the worst-case scenario of not getting into Penn State was based on the surmise that it might rescind its offer, an outcome that ended up not taking place.

Anyway, all this suggests that I need to go back and re-think unconscionability, along with the million other things I need to re-think before I expire. Reading suggestions welcome. At some point, having digested some part of this unconscionably large literature, I may return to revisit the issue–assuming that Brendan Clare’s father doesn’t read this post, collar me on my next visit to the gym, and kick the crap out of me for pouring cold water on his son’s case.

*I just discovered that the student in question was, just this past year, the subject of a multi-agency federal sting operation: she was eventually convicted in federal court of a complex fraud scheme, given three years’ probation, and ordered to pay $230,000 in restitution to the IRS. The funny thing is that one of the readings assigned in the course was James Rachels’s critique of ethical egoism, which features a Ring of Gyges-type thought experiment involving a complex fraud scheme. And I thought she hadn’t done the readings!

**Though it changes the subject a bit, I can’t resist mentioning the shy, awkward student of mine who, exploiting loopholes in the ADA’s accommodations requirements, used them to cheat his way through every exam I gave (and, I gather, that others had given), deftly maneuvering his way past every accusation–until I got Campus Security to force its way into his dorm and catch him in the act. I was gratified when he was finally suspended from the university–not for lying or cheating on an exam, but for arson: he was accused of trying to burn down one lecture hall, and suspected of burning down another. I’m the first to admit that it was hard to avoid legal proceedings in this case….

4 thoughts on “Justice as Fairness

    • Yeah, though to be fair to the institutions in question, my post doesn’t capture how seriously each institution took each infraction (three different ones were involved).

      In the case of the serial plagiarist, the institution in question failed miserably, flubbing a case that a ham sandwich could successfully have brought to a conclusion. I hugely understated the delinquency of the institution in the post; it’s really a story of its own. In the case of the belligerent F student, the institution did an OK job, though I would have been less tolerant of Lawyer Mom. In the case of the ADA 504 abuser who tried to burn the school down, I don’t have any complaints about how the institution handled things: I was pleased, as a mere academic, to have initiated a dynamic entry by Campus Security. Anything to liven things up.

      The issue of how to enforce quasi-legal norms at an academic institution is an interesting one, and under-discussed. The only aspect of it that anyone ever wants to discuss is the handling of sexual misconduct under Title IX proceedings. But that’s just the tip of a very large and under-explored moral iceberg.


  1. So here are a few more news items that add a bit to the ones I linked to above.



    Here are the court documents themselves, but behind a paywall:


    Well, sort of a paywall; you get two weeks’ free access for signing up.

    The news items raise some legitimate issues I didn’t bring up in the post. They were too nitpicky to discuss in the post, but I guess I should at least mention some of them.

    One claim made in the suit against ACT is that their terms and conditions were illegal because they were unclear and/or inconsistent. I didn’t comment on that because I don’t think it bears specifically on unconscionability.

    One apparent inconsistency is that the terms say that the arbitrator may find against ACT, but ACT would in no event be held liable. I’d have to see the language, but that doesn’t strike me as obviously inconsistent. It depends on what, exactly, is meant by “liability.” ACT could be held to the terms of the arbitration without admitting fault.

    There are other legal details, but I don’t think they bear on unconscionability, so I didn’t take the post to be commenting on them either way.

    Though I am inclined to think that ACT’s case against Clare was weak, contrary to Clare, I don’t think it’s conclusive that the person ACT claimed that Clare was cheating with was in another room. ACT might legitimately have supposed that Clare and the other person were cheating electronically. Yes, the proctor should have caught that, but “should have” doesn’t entail “would have”: ACT might sincerely have wondered whether the proctor was doing his or her due diligence against the possibility of electronic communication. Cheaters can be ingenious and highly skilled at what they do, and ACT had to cover that contingency. That said, all things considered, ACT’s case against Clare sounds ill-conceived and ill-informed.

    Part of the problem, however, is that when corporations and individuals operate in a litigious environment, they lose any incentive to be candid or transparent about their actions. Candor and transparency are penalized by litigation, which uses any statement against the speaker in discovery in just the way cops use anything you say against you during what they like to call their “consenting interview with the subject.” The predictable result is inscrutability, even about relatively clear-cut matters.

    I don’t think that people who initiate lawsuits like Clare’s really have standing to complain about that result when it’s precisely litigation like theirs that’s chilling the environment for transparency and candor within higher education, and no doubt elsewhere. The single most conspicuous infringement on academic freedom I face on a daily basis comes from litigation or the threat of it. I can’t even discuss the details because in one way or another, the threat or existence of litigation puts a gag order on everyone involved. Who knew, during grad school, that our lives would be so trammeled by the plaintiff’s bar?

    One of the articles quotes a testing fairness activist:

    “From our perspective, the whole system is rigged,” Schaeffer said. “In effect, the testing industry serves as its own police force, the prosecuting attorney, the jury the appeals court and the executioner.”

    It’s rigged in more ways than he imagines. What’s the difference between a testing industry that serves as its own police force, and plaintiff’s attorneys whose litigation triggers discovery motions? What’s the difference between not having access to an appeals court, and not having the money to pay for a defense attorney in a civil suit frivolously initiated by some deep pocketed plaintiff? What’s the difference between a testing company that is its own appeals court, and lawyers accountable only to other lawyers? There are more sides to this story than have been dreamt of by attorneys and anti-testing activists. I don’t dispute the legitimacy of much of what they have to say. The question is whether they’re capable of acknowledging the legitimacy of any perspective but their own.


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