Kaplan illegally obtained test questions, suit says

Call it a test case.

A dispute over computerized testing of graduate school applicants has led to a legal battle in Baltimore's U.S. District Court.


The suit was filed Friday by the nonprofit Educational Testing Service (ETS) and two other plaintiffs to stop a test preparation firm -- which sent 20 test-takers to memorize questions from a national computerized graduate admissions test -- from using or reproducing the material.

Kaplan Educational Centers was accused in the suit of unlawfully obtaining questions from the Graduate Record Examinations General Test (GRE) administered by ETS through the Columbia-based Sylvan Learning Centers. Kaplan violated copyright, fraud and electronic communications laws, breach of contract, as well as violating a secrecy agreement signed by test-takers, according to the 12-page lawsuit.


ETS, based in Princeton, N.J., was joined in the suit by the GRE board and Sylvan, which administers the test at more than 200 sites in the nation.

According to the suit, Kaplan sent 20 of its employees to register for and take the computerized test for "the express and understood purposes of memorizing and reproducing as many test questions as possible . . . to undermine public confidence" in the GRE and computer-based testing methods.

A copy of about 150 test questions was then sent to ETS headquarters Dec. 10. Kaplan executives said they were trying to prove that the computerized test could easily be memorized and used to help other students cheat, said ETS Vice President Bob Altman.

"This is a concerted and organized high-cost effort by intelligent thieves," Mr. Altman said. "They're simply trying to steal the questions."

Mr. Altman said he believes that Kaplan -- which provides tutoring for GRE test-takers -- is threatened financially by the computerized version of the GRE.

Until recently, the GRE was only available five times a year in a paper-and-pencil test form. But in November 1993, ETS made the test available virtually any day by computer testing.

The computerized version of the GRE has become popular with test-takers because it provides immediate scores, and enables them to study on their own with the flexibility of having the exam on any day, Mr. Altman said.

ETS expects more than 100,000 people will take the computerized version of the test this year.


"It's much more difficult to coach for a test that's given every day instead of for a test that's given once every few months," Mr. Altman said. "[Kaplan is] afraid their coaching business will dry up."

But Jonathan Grayer, Kaplan's president and chief executive officer, was quoted by the Associated Press as saying his firm has wholeheartedly embraced computer testing and that ETS is using the lawsuit as a smoke screen for its true problem -- compromised tests.

"We showed them that the tests could be reproduced and could lead to altered test scores," Mr. Grayer said. "We took the problem to ETS and said, 'Here's evidence that a problem exists.'

"They're not seeing the issue as the security of the exam," Mr. Grayer said. "If someone says you have a problem, you think you would want to fix it."

Mr. Grayer said ETS needs to expand the database that is used to give the computerized tests so students taking it at the same location are not given the same questions.

That is precisely the move made by ETS when Kaplan presented its findings, said Stanford von Mayrhauser, general counsel for ETS.


On Dec. 15, the GRE board and ETS announced a suspension of the computerized GRE. Testing will resume Tuesday, after a new set of questions has been put into the computer system.

Mr. von Mayrhauser said the plaintiffs "don't think any other entity or individual would engage in such a large scale, systematic, organized breach" of law by memorizing copyright test questions. "Test preparation firms have a vested interest in attacking computer-based testing.

"It's an intentional breach of security that amounts to an attack on the credibility of the GRE computerized testing system," Mr. von Mayrhauser said. "We think there was a great deal of harm done by Kaplan to us, and it was a deliberate and flagrant disregard of clearly protected legal rights."