Rutgers Law Journal
Tort law offers an appropriate vehicle for handling the increased prevalence of standardized testing in the wake of the No Child Left Behind Act and the potential miss-scoring problems that arise with standardized tests. This incentivizes the use of reasonable care in scoring standardized tests and justly compensates for miss-scoring harms when doing so does not unduly burden testing agencies. Neither contract law nor the existing Truth-in-Testing law adequately affords the sort of remedies and protections the issue of standardized testing and miss-scoring pose.
The ability for tort liability to adequately hold testing agencies accountable for miss-scoring errors and afford relief to test-takers will vary based on the actions or inactions of the testing agencies. The culpability of the testing agency and other considerations potentially give rise to actions for negligence and infliction of emotional distress, misrepresentation, defamation and false-light invasion of privacy, tortious interference with prospective advantage, or injurious falsehood—also known as disparagement. While some theories will rarely offer viable avenues for recovery, others, given particular facts, may provide a basis for relief.
Given the great, new weight placed on standardized tests in modern times, tort law possesses the ability to best afford remedies to parties injured by miss-scorings on the part of testing agencies. However, relief should only be attained after a painstaking review of the facts of each case in light of principles of tort liability, seeking to incentivize the use of reasonable care in scoring standardized tests and compensating harm in meritorious cases.
Vincent R. Johnson, Standardized Tests, Erroneous Scores, and Tort Liability, 38 Rutgers L.J. 655 (2007).