such tests was not considered in fashioning the form of the preliminary injunctive relief granted to plaintiffs in this case.
First of all, although low-volume administrations were discussed by the parties at the time plaintiffs moved for a preliminary injunction, the focus of their arguments and the court's subsequent discussion was the high-volume administrations of such tests. Moreover, when read as a whole, the pertinent section of the court's MDO makes clear that its requirement that a certain number of test forms be disclosed in any particular test year relates to test forms administered in that same test year.
Otherwise, it would not have been necessary for the court to provide for situations in which CEEB might choose to offer less than or more than four test administrations in any given test year.
Notwithstanding what it considers to be the only plausible interpretation of its MDO, the court finds that CEEB's construction, although erroneous, was made in good faith. Therefore, in reliance upon this good faith and because CEEB has already published its 1995-1996 SAT test schedule, the court holds that during the 1995-1996 test year CEEB may comply with the court's MDO in the manner outlined in its Statement. However, during any subsequent test year until such time as the court reaches the merits of this case, CEEB shall disclose up to four SAT test forms administered in New York in that particular test year in accordance with the requirements of § 342 of the STA. The remainder of the court's MDO with respect to CEEB's disclosure remains in tact.
II. Motion by GRE, TOEFL, and ETS for Reconsideration
GRE, TOEFL, and ETS request that the court modify the form of the injunctive relief which the court granted to them. In particular, they assert that "because of the specific way in which the conditions are worded, . . ., the Memorandum and Order will have the effect of preventing the GRE program from offering at least one of its national administrations in New York State during 1996-97, and very likely in later years as well." See Plaintiffs' Memorandum of Law at 1. Therefore, they ask the court either to grant them an unconditional injunction or, in the alternative, to modify its MDO to solve what they perceive to be an "unintended problem" for the GRE program. In addition, plaintiffs request that the court add a provision to its MDO that would provide a safety valve in the event of changed circumstances in the future. See id. at 2.
The State has no objection to plaintiffs' request that the court add a safety valve provision to its MDO, although it notes that either plaintiffs or defendants could seek such relief even if it were not set out in the order. See State's Memorandum of Law at 5. On the other hand, the State opposes plaintiffs' request for a modification of the court's MDO which would alter the disclosure required of GRE.
Plaintiffs' primary argument in support of their motion is directed at the court's definition of the status quo in terms of the specific numerical level of disclosure in the 1994-95 stipulation which the parties entered into and filed with the court. Plaintiffs offer three reasons why this definition is incorrect. First, they argue that "to the extent the Court wishes to preserve the status quo as defined in the 1994-95 stipulation, the relevant feature of the stipulation is this: it enabled plaintiffs to restore to New York State all of the nondisclosed administrations they planned to offer in other states." See Plaintiffs' Memorandum of Law at 4. Moreover, they argue that the court's numerical definition does not take into account the changes in factual circumstances between the current testing year and future years. See id. at 4-5.
Secondly, plaintiffs argue that when a court issues an injunction in a case involving copyright infringement, "'the status quo . . . sought to be preserved is the state of non-infringement.'" See id. at 5 (quoting Uneeda Doll Co. v. Regent Baby Prods. Corp., 355 F. Supp. 438, 445 (E.D.N.Y. 1972)). According to plaintiffs, this "principle counsels entry of an injunction that protects plaintiffs' secure test forms from involuntary publication." See id. Finally, plaintiffs contend that "the Court's overall objective in granting equitable relief should be to fashion a practical remedy that prevents irreparable injury, whether to plaintiffs or to third parties, such as students." See id. Thus, plaintiffs argue that "if preserving the 'status quo' in the numerical sense will result in the very harm plaintiffs filed their motion to prevent -- the withdrawal of test administrations from New York -- that objective should give way to the larger goal of a fair result that avoids irreparable injury." See id.
As a solution to the problems they perceive to be inherent in the court's MDO, plaintiffs propose that the court modify its MDO to provide that
the GRE Board shall disclose two copyrighted GRE General Test forms during the 1995-96 testing year, and one copyrighted GRE General Test form during the 1996-97 testing year. During subsequent years until such time as the court reaches the merits of this case, the GRE Board shall disclose at least one half of its paper-and-pencil GRE General Test administrations offered in New York, for any year in which the Board offers at least two such administrations. Provided that it has complied with these undertakings, the GRE Board shall not be subject to the requirements of Section 342 of the Standardized Testing Act.
See Plaintiffs' Proposed Order at 2.
In fashioning the preliminary injunctive relief it awarded to plaintiffs, the court not only sought to maintain the status quo but also took into account the competing public interests served by each of the parties to this action. In doing so, the court noted that it was "in full agreement with the State that the STA serves laudable goals which address important public concerns about standardized testing." See MDO at 51-52. The court also noted, however, that
the moving plaintiffs' ability to provide reliable and valid test forms and test questions to the test-taking public and the institutions which rely upon these materials as one factor to be considered in the admissions process is best served, at least at this stage of the litigation, by maintaining the current level of disclosure.