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COLLEGE ENTRANCE EXAMINATION BD. v. PATAKI

July 26, 1995

COLLEGE ENTRANCE EXAMINATION BOARD; GRADUATE RECORD EXAMINATIONS BOARD; GRADUATE MANAGEMENT ADMISSIONS COUNCIL, INC.; TEST OF ENGLISH AS A FOREIGN LANGUAGE POLICY COUNCIL; and EDUCATIONAL TESTING SERVICE, Plaintiffs,
v.
GEORGE E. PATAKI, as Governor of the State of New York; THOMAS SOBOL, as Commissioner of Education of the State of New York; REGENTS OF THE UNIVERSITY OF THE STATE OF NEW YORK; MARTIN C. BARELL, as Chancellor, Board of Regents of the University of the State of New York; R. CARLOS CARBALLADA, as Vice Chancellor, Board of Regents of the University of the State of New York; JORGE L. BATISTA, SHIRLEY C. BROWN, LAURA BRADLEY CHODOS, WALTER COOPER, WILLARD A. GENRICH, NORMA GLUCK, EMLYN I. GRIFFITH, CARL T. HAYDEN, MIMI LEVIN LIEBER, FLOYD S. LINTON, GERALD J. LUSTIG, LOUISE P. MATTEONI, J. EDWARD MEYER and ADELAIDE L. SANFORD, as Members of the Board of Regents of the University of the State of New York; and DENNIS C. VACCO, as Attorney General of the State of New York, Defendants.



The opinion of the court was delivered by: NEAL P. MCCURN

 INTRODUCTION

 In a Memorandum-Decision and Order ("MDO") filed June 9, 1995, this court granted plaintiffs' motion for a preliminary injunction after finding that plaintiffs had demonstrated a likelihood of success on the merits of their copyright infringement claim and that they were entitled to the presumption of irreparable injury which normally flows from a showing of a prima facie case of such infringement. *fn1" Rather than grant plaintiffs the broad injunction they sought; i.e., one which would have precluded the State from enforcing §§ 341 and 342 of the Standardized Testing Act ("STA") against them pending the outcome of this litigation, however, the court fashioned a conditional injunction intended to maintain the status quo as well as to account for the competing public interests served by each of the parties to this action. The Graduate Record Examinations Board ("GRE"), Test of English as a Foreign Language Policy Council ("TOEFL"), and the Educational Testing Service ("ETS") now move for partial reconsideration of the court's MDO, specifically the form of the preliminary relief which the court granted to them. In this regard, GRE, TOEFL and ETS request that the court either issue an injunction completely barring the enforcement of § 342 against them or, in the alternative, that the court modify its MDO in the manner set forth in their memorandum of law.

 Submitted in conjunction with plaintiffs' motion was the College Entrance Examination Board's ("CEEB") "Statement of the College Board Concerning Compliance with the Court's June 9, 1995 Memorandum and Order ("Statement")." *fn2" Pursuant to this Statement, CEEB proposes that, in compliance with the court's MDO, during the 1995-1996 test year, CEEB would disclose three SAT I forms administered in New York during the 1995-1996 test year and one traditional SAT form which had been administered in New York at low-volume administrations in the past. See Statement at 2. CEEB explains that

 
although this test form [the traditional SAT form] will not be administered in New York in 1995-96, § 342(4) of the Testing Act does permit test forms administered at low-volume administrations to be filed with the New York Commissioner of Education on a delayed basis. Disclosure of this form, therefore, will be disclosure of a form "used to administer the SAT in New York in accordance with § 342 of the Act" and will comply with the terms of this Court's Memorandum and Order.

 See id.

 Defendants ("the State") oppose plaintiffs' motion and object to CEEB's Statement which, the State argues, does not comport with this court's MDO. The court will discuss each of these issues seriatim.

 DISCUSSION

 I. CEEB's Statement

 Although CEEB does not join in the other plaintiffs' motion for reconsideration, it filed its Statement with that motion. At the time that the court received this Statement, it was not readily apparent why CEEB had filed the same. The court's MDO did not require such action; nor did CEEB submit any explanation with its Statement. It was only after the State submitted its memorandum in opposition to plaintiffs' motion for reconsideration, in which it stated that in its view CEEB's Statement did not constitute compliance with the court's MDO, that CEEB filed a memorandum in which it provided the court with an explanation for its actions.

 According to CEEB, it filed its Statement so "that any objection by the State could be resolved before the June 30 deadline for printing the 1995-96 SAT schedule announcements." See CEEB's Memorandum at 1. Moreover, CEEB asserts that because the State took no action until it filed its papers in opposition to plaintiffs' motion for reconsideration on July 13, 1995, the State's "argument [in opposition to the Statement] comes too late and should be barred under principles of laches. The Board now has published its 1995-96 test schedule, relying on the State's apparent lack of opposition." See id. at 3. In response to this laches argument, the State contends that it orally notified CEEB's counsel on or about June 27, 1995, of its opposition to CEEB's Statement. See State's Letter to the Court dated July 17, 1995, at 1. *fn3"

 The court notes that given the form of CEEB's Statement and the manner in which it was filed, there was no obligation on anyone's part, either the State or the Court, to respond to its submission. As stated above, it was not readily apparent why CEEB filed this Statement. If CEEB had accompanied its Statement with even a cover letter indicating that if the State had an objection it should notify CEEB immediately so that the court would have an opportunity to rule on the proposal contained therein prior to the June 30, 1995, deadline, then arguably the State would have been under some obligation to respond within a reasonable time. In the absence of such an explanation, however, the State cannot be faulted for its inaction. Moreover, given the fact that the Statement was filed with plaintiffs' motion for reconsideration, it was reasonable for the State to address the issues raised therein at the same time it responded to plaintiffs' motion for reconsideration. Accordingly, the court holds that the principle of laches does not bar the State from raising objections to CEEB's proposal for compliance with this court's MDO.

 To support its contention that its Statement complies with the court's requirement that "the College Entrance Examination Board shall disclose up to four SAT test forms used to administer the SAT in New York in accordance with the requirements of § 342 of the SAT," CEEB relies upon § 342(4) of the STA which permits test forms administered at low-volume administrations to be filed with the Commissioner of Education on a delayed basis. There is no question that § 342(4) allows for delayed disclosure of test forms used in low-volume administrations. Nevertheless, it is clear from the context of the court's MDO that disclosure of 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. *fn4" Otherwise, it would not have been ...


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