COURTSIDE

COURTSIDE

Reading Guarantees

BY PERRY A. ZIRKEL

ERRAIN Drew's children, who were in the second and fourth grades,

Twere failing in the New York City public schools. In an effort to resolve this major problem, Mrs. Drew enrolled both of them in the Sylvan Learning Center, based on the following statement in the company's brochure: "The Sylvan Guarantee. Your child will improve at least one full grade level equivalent in reading or math within 36 hours of instruction or we'll provide 12 additional hours of instruction at no further cost to you."1 Relying on this guarantee, which was confirmed by the center's representatives, Mrs. Drew secured a loan for $11,339 to pay for Sylvan's services. In return, her children received three one-hour tutoring sessions weekly for eight months.

Sylvan's periodic assessments with the California Achievement Tests indicated that the Drew children were improving, which encouraged Mrs. Drew to believe that they would meet the board of education's standards. However, the school's April/May assessments revealed that neither child met the district's standards. For example, although Mrs. Drew's daughter's grade in reading improved from "N" (not satisfactory) to "S" (satisfactory), her daughter was retained in second grade based on the district's objective testing.

Disappointed with the results, Mrs. Drew declined the additional 12 hours of Sylvan tutoring and, instead, filed suit pro se (i.e., without an attorney) in New York City's civil court.2 At the trial, the director of the Sylvan Center that the children attended testified that Sylvan does not have 100% success. She admitted that it is possible to improve at Sylvan and not at school because of many variables, including that "some of the areas of education that we're teaching at Sylvan doesn't [sic] necessarily correlate [with the district's assessments]." In support, she pointed to the caveat in the periodic diagnostic and progress assessment reports stating that "results reported as grade equivalent are not expected to equal

I PERRY A. ZIRKEL is University Professor of Education and Law, Lehigh University, Bethlehem, Pa.

the classroom grade level." Mrs. Drew testified that no one from Sylvan warned about the possible problem of transferability of skills.

On 12 June 2007, Trial Judge Genine Edwards issued the decision in this case, concluding that Sylvan had engaged in fraudulent misrepresentation.3 This tort requires 1) misrepresentation, concealment, or nondisclosure of a material fact; 2) intent to deceive; 3) justifiable reliance; and 4) resulting injury.

Judge Edwards found sufficient evidence of the first element in Sylvan's exhibit and testimony. She suggested Sylvan's belated caveat was too little and too late:

This Court can deduce that Sylvan's written disclaimer creates a significant doubt as to its ability to measure and/ or improve achievement levels through its methods and the use of its assessments. . . . Postponing the disclosure of its disclaimer is deliberate and intentional, and by no means a process flaw. This deferral allows Sylvan to more effectively meet its goal [of maximizing enrollments].

Second, rather than accepting Sylvan's reliance on the California Achievement Tests as substantiated standards, the judge regarded it as a "half-hearted attempt to mislead this Court to believe that such a test is skillbased and of value" and faulted its witness for failing to provide "one scintilla of evidence regarding Sylvan's standards." Third, the judge considered the explanation the witness gave about other variables as "beg[ging] the question of why those variables did not impact the children's performance at Sylvan."

For the second element needed to establish fraudulent misrepresentation, Judge Edwards took judicial notice of a parent's innate need to provide for the best interests of her children, coupled with the dire straits of the New York City schools, and found the requisite intent to deceive "this vulnerable plaintiff into enrolling her children . . . under the illusion that it would assist them in acquiring higher grade level standards in accord with local school standards."

The final elements were evident in Mrs. Drew's reasonable reliance on the implicit message of Sylvan's guarantee and her expenditure of a significant amount of money on her children's behalf. Judge Edwards concluded that Sylvan had violated the prohibition in New York's business law against duping consumers.

Finally, the judge concluded that Sylvan's actions rose to the level of unconscionability. Referring more specifically to the case law applicable to warranties, the judge concluded: "The terms of the transaction unreasonably favored the defendant since there was no true offering of a benefit to the plaintiff." She cited the reasonable expectation that "Sylvan's strategies are time-

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tested, research-based and validated." Finally, the judge dismissed Sylvan's promise of 12 additional sessions as inconsequential and pointless.

As a result, Judge Edwards returned a verdict for Mrs. Drew for 1) $11,339 in actual damages, 2) $105 as a penalty for the violation of New York's business law, 3) interest on both items from 4 February 2002, and 4) court costs.

YLVAN'S attorney, Daniel Perlman, initial-

Sly made the decision sound like only the first round: "Now we appeal. None of this was brought up by the plaintiff." In addition, a Sylvan spokeswoman disclaimed the suit in two ways -- first, that it was against an independent franchisee, neither owned nor operated by the parent company, and second, that: "in the six years that I've been with Sylvan, I'm unaware of a single case of this nature."4

However, both Mrs. Drew, who now lives with her family in Florida, and Attorney Perlman were strangely silent in response to queries as to the status of the case almost a year later. Adding to the mystery, court records cryptically indicate that on 29 June 2007 Mrs. Drew made a motion to amend the judgment and that another judge granted the motion on default. The record does not reveal what the amendment was, and the parties are mum. Perhaps they settled the matter.

If, instead, the case remains on appeal, whether Mrs. Drew will prevail is an open question, especially if she continues on a pro se basis. Judge Edwards obviously reflected the moral outrage at a local community level, but sometimes the more remote and law-bound view of an appellate court is different. For example, as reported previously in this column,5 New York's intermediate, appellate court overturned a trial court's decision that had held a college liable for breach of contract, deceptive business practices, and breach of fiduciary duty when its professor's teaching of a course did not match the catalog description and advisor's clarification.6 Would the appeals court in this case similarly conclude that the suit boiled down to educational malpractice, which is not judicially recognized as a matter of public policy? Alternatively, would an appellate analysis focus on Sylvan's express guarantee of a oneyear grade-level gain or its purported implied guarantee of what could be termed translatability?

Moreover, beyond the legal perspective, the court's decision raises questions from an educator's perspective. For example, Sylvan's guarantee of a one-year grade-

level gain after 36 hours of tutoring certainly seems illusory, but it is unclear what were the Drew children's specific gains on the California Achievement Test after their 96 hours of Sylvan tutoring (if indeed they attended all or nearly all of these sessions). Similarly, the meager facts in the case do not tell us how far each child was from grade level, what the district's standard was for promotion, what New York used to measure the children's performance against these standards, and why there was a discrepancy between its grading and testing systems, at least for the two Drew children. Educators will also raise problems of using grade-level equivalents rather than standard scores; issues of the reliability and validity of standardized tests and the intercorrelation between them; the alternative value of curriculum-based assessments and real-world performancebased generalization; and the need for information about the previous interventions that the children received and their demographic characteristics, including the possibilities of specific learning disabilities.

Regardless of the legal and factual limitations of this decision, it is inescapably ironic that a major private provider -- reportedly the largest private tutoring business in North America, with its recent expansion coinciding with the requirement of No Child Left Behind that failing public schools offer supplemental tutoring7 -- in this case faces the same music as those schools for leaving the Drew children behind.

1. The online version follows this statement with these additional words: "Based upon the results of the initial and follow up Sylvan Skills Assessment?." Moreover, it prefaces the statement with these sentences: "Following tutoring from Sylvan Learning, the positive change you'll see in your child will be obvious and remarkable. We're so confident in our ability to help your child improve academically that Sylvan Learning Center guarantees it" (). The website also adds this information, which is relevant to but not included in the court's opinion: "As part of reaching each child's tutoring goal, Sylvan forms a unique partnership with his classroom teacher to ensure the progress achieved at Sylvan is also seen at school. Students' teachers are regularly consulted so that the Sylvan curriculum can work in conjunction with classroom material" ().

2. This court "decides lawsuits involving claims of up to $25,000 . . . [and] includes a small claims part for the informal resolution of cases involving amounts of up to $5,000, and a housing part for landlordtenant and housing violation proceedings." The New York State Courts: An Introductory Guide (reports/ctstrct99.pdf ).

3. Drew v. Sylvan Learning Ctr., 842 N.Y.S.2d 270 (N.Y. City Civ. Ct. 2007). Both Mrs. Drew and the defendant's attorney, Daniel S. Perlman, declined to cooperate with repeated requests for further information.

4. Mark Fass, "Sylvan Center Told to Refund Tutoring Costs," New York Law Journal, 18 June 2007 (Gale document no. 165565043).

5. Perry A. Zirkel, "What Ever Happened in the Appeal of . . . ?: Part II," Phi Delta Kappan, October 2002, pp. 104-5, 108.

6. Andre v. Pace Univ., 655 N.Y.S.2d 771 (Sup. Ct. App. Div. 1996).

7. Fass, op. cit.

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k0806zir.pdf Perry A. Zirkel, COURTSIDE: Reading Guarantees, Phi Delta Kappan, Vol. 89, No. 10, June 2008, pp. 783-784.

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