author: ZOBEL, District Judge.

text:
    MOBIL OIL CORPORATION v. AUTO-BRITE CAR WASH, INC., et al.
    Civ. A. No. 81-2106-Z.
    United States District Court, D. Massachusetts.
    Feb. 13, 1984.
    Robert M. Gault, Mintz, Levin, Cohn, Glovsky & Popeo, Boston, Mass., Jeffrey Conciatori, Kenneth E. Newman, Donovan, Leisure, Newton & Irvine, New York City, for plaintiff.
    Robert Bush, Harvey B. Heafitz, Newton, Mass., for defendant.
   MEMORANDUM OF DECISION

ZOBEL, District Judge.

This is an action for trademark infringement, unfair competition, and unfair and deceptive trade practices, as well as for breach of the agreements between plaintiff Mobil Oil Corporation (“Mobil”) and defendant Auto-Brite Car Wash, Inc. (“AutoBrite”). It is based upon Auto Brite’s actions in selling non-Mobil gasoline allegedly under the Mobil trademark without Mobil's consent. Auto-Brite denies liability and in its counterclaims I and VI alleges that Mobil breached agreements between the parties. Mobil has moved for summary judgment on all the remaining counts of its complaint and those two counts of defendant’s counterclaim.

The following facts are not in dispute. On June 1, 1978, Mobil and Auto-Brite entered into a Retail Dealer Contract under which Mobil agreed to supply and AutoBrite to buy certain quantities of gasoline and other products.

Paragraph 6 of the contract provided that:

Buyer shall use Seller’s trademarks and brand names to identify and advertise Seller’s products and shall not use such trademarks and brand names for any other purpose. Buyer shall ... not use Seller’s trademarks or brand names in connection with the storage, handling, dispensing or sale of any adulterated, mixed or substituted products____ Any violation of the provisions of this paragraph by Buyer shall give Seller the right to immediately terminate this Contract. On any termination of this Contract, Buyer shall cause all references to Seller and all use of Seller’s color schemes, trademarks, brand names, slogans and advertising to be discontinued____

Under a “Sign and Equipment Rent Rider” to the contract, Mobil leased two signs (together with other equipment) to AutoBrite. The rider provided that the lessee should “use it [the equipment] solely for Lessor’s products on the premises,” and that “[o]n termination of the Retail Dealer Contract ... Lessor may remove the equipment ... or Lessor may abandon said equipment.”

Mobil and Auto-Brite also entered into an “Equipment Loan Agreement” on June 1, 1978 under which Mobil lent ten Mobil round pumps (and two light units) to AutoBrite. Paragraph 1 of the agreement provides that “Borrower shall, with respect to the equipment ... (c) make no additions thereto or alterations therein without Company’s prior written consent, (d) keep legible and visible all trademarks and signs of Company ... and (h) use it solely for Company’s products.” Under Paragraph 3 Auto-Brite was obligated “[o]n the termination of this contract for any reason, ... promptly [to] return the equipment to Company. If not so returned, Company may remove it without liability ... or Company may abandon all or any part thereof.”

On September 19, 1980, Mobil sold AutoBrite two Mobil round pumps for $420. A Round Pump Repurchase Agreement of the same date provided that “upon final termination of all product contracts between CUSTOMER and MOBIL, CUSTOMER shall forthwith sell to Mobil all ‘Mobil Round Pumps’ owned by CUSTOMER,” and set a formula for the repurchase price.

In a letter dated May 3, 1978, Mobil granted Auto-Brite a competitive allowance of 1.5 cents for each gallon of gasoline it purchased pursuant to the Retail Dealer Contract. The letter stated that “You [Auto-Brite] have acknowledged that this allowance may be decreased or withdrawn by Mobil at any time upon not less than thirty (30) days prior written notice to you.” In a letter dated July 19, 1979, Mobil notified Auto-Brite that the competitive allowance would be withdrawn as of August 31, 1979. Auto-Brite had the right to cancel the Retail Dealer Contract if the competitive allowance was withdrawn, but it did not do so.

Auto-Brite concedes the existence and validity of Mobil’s registered trademarks. Mobil concedes that at the time of the events at issue, the round pump was not registered as a trademark, although the Mobil pump is in a distinctive shape associated with Mobil.

Auto-Brite admits that around April 4, 1981, it began to buy gasoline from suppliers other than Mobil, that it sold this gasoline through the round pumps supplied by Mobil, and that it continued to accept Mobil credit cards as payment for this gasoline. It further concedes that it received from Mobil a notice, dated July 23, 1981, that Mobil was immediately terminating the parties’ franchise relationship, including the Retail Dealer Contract with its riders, and the Equipment Loan Agreement. The parties agree that upon receipt of the notice Auto-Brite covered the word “Mobil” on the pumps with masking tape and stopped accepting Mobil credit cards in payment. However, it did not remove the two large “Mobil” signs until about August 13, 1981, nor did it cease to sell other Mobil products in containers clearly marked Mobil.

I. Mobil’s Claims

Counts I and II of the complaint allege violations of sections 32 and 43(a) of the Lanham Act, 15 U.S.C. §§ 1114 and 1125(a), respectively. Count III alleges common law unfair competition and trademark infringement; and Count VII, violation of Mass.Gen.Laws ch. 93A, § 11. Count VIII alleges breach of the agreements between Mobil and Auto-Brite. At oral argument defendant agreed that as to the first four of those counts, there was no dispute of fact precluding summary judgment for Mobil with respect to the time prior to the termination of the contract. Defendant has, however, sought to raise the defense of laches with respect to that period claiming that Mobil was notified of the alleged violation in mid-April but took no action until July. The Court previously denied Auto-Brite’s motion to amend its answer by adding laches as an affirmative defense. In any event, Auto-Brite has not made the required showing of unreasonable or prejudicial delay. See Toys “R” Us, Inc. v. Canarsie Kiddie Shop, Inc., 559 F.Supp. 1189 (E.D.N.Y.1983) (prejudice a necessary element of laches); Jordan K. Rand, Ltd. v. Lazoff Bros., Inc., 537 F.Supp. 587 (D.P.R.1982) (filing of complaint three months after becoming aware of defendant’s act not unreasonable delay). Mobil is therefore clearly entitled to summary judgment on Counts I—III and VII insofar as they are based on defendant’s actions through July 23, 1981.

Mobil raises no claim of trademark infringement after August 13, 1981 when defendant Auto-Brite removed all signs. As a result, the parties’ dispute as to the appropriateness of summary judgment for Mobil on its Counts I—III and VII concerns only the three-week period from July 23 to August 13. Auto-Brite contends that after it received notice of the contract termination, it took steps to insure that its sale of gasoline could not be construed as an attempt to sell non-Mobil gasoline as Mobil gasoline and that the facts pertaining to its alleged infringement of Mobil’s mark are therefore in dispute.

Summary judgment is often inappropriate in infringement cases because they present a complicated array of factual issues requiring substantial development. Where, however, the facts have been fully developed through pleadings, affidavits, depositions and exhibits, and the legal issues are squarely presented, summary judgment is appropriate. See, e.g., Pignons S.A. de Mecanique de Precision v. Polaroid Corporation, 498 F.Supp. 805 (D.Mass.1980), aff’d, 657 F.2d 482 (1st Cir. 1981); Beef/Eater Restaurants, Inc. v. James Burroughs Ltd., 398 F.2d 637 (5th Cir.1968); Community of Roquefort v. William Faehndrich, Inc., 303 F.2d 494 (2d Cir.1962).

While the causes of action asserted in Counts I—III and VII vary, the essential element of each is that defendant’s use of plaintiff’s mark be likely to cause confusion among customers as to the source of its product. Purolator, Inc. v. EFRA Distributors, Inc., 687 F.2d 554 (1st Cir.1982). The test is whether an appreciable number of ordinarily prudent purchasers was likely to be misled or confused as to the source of the goods in question. McGregor-Doniger, Inc. v. Drizzle, Inc., 599 F.2d 1126 (2d Cir.1979). In this Circuit, likelihood of confusion is considered a question of fact. Coca-Cola Co. v. Snow Crest Beverages, Inc., 162 F.2d 280, 283 (1st Cir.), cert. denied, 332 U.S. 809, 68 S.Ct. 110, 92 L.Ed. 386 (1947); see also Purolator, Inc. v. EFRA Distributors, Inc. 687 F.2d 554 (1st Cir.1982). However it is characterized, where there is no genuine issue as to the existence of a substantial likelihood of confusion, the court may grant summary judgment.

There is no dispute between the parties as to what Auto-Brite did between July 23 and August 13, 1981: in a station displaying Mobil signs and selling Mobil oil and other products in containers with the Mobil mark, it sold non-Mobil gasoline from Mobil’s distinctive round pumps on which the name "Mobil” had been covered with masking tape. It no longer accepted Mobil credit cards, but took no other steps to inform customers that the gasoline was not Mobil. The undisputed facts establish the requisite likelihood of confusion during the period from July 23 to August 13,1981.

Defendant clearly used Mobil’s registered trademark without its consent in connection with the sale or offering for sale of goods. Given that such use was likely to cause confusion or mistake, or to deceive, plaintiff has established defendant’s liability under § 32(1) of the Lanham Act, 15 U.S.C. § 1114(1). Franchised Stores of New York, Inc. v. Winter, 394 F.2d 664 (2d Cir.1968).

The essence of a common law unfair competition claim under Massachusetts law is the appropriation of a competitor’s business to his injury. Quabaug Rubber Co. v. Fabiano Shoe Co., 567 F.2d 154 (1st Cir. 1977). Auto-Brite sold non-Mobil gasoline from Mobil-supplied round pumps to customers who drove into the station where Mobil signs were displayed and Mobil products other than gasoline were sold. Its admitted conduct constitutes an appropriation of business from Mobil. Because Auto-Brite’s conduct constitutes unfair competition as defined in case law, it also entitles Mobil to recovery under Mass.Gen. Laws ch. 93A, § 11 as a person engaged in commerce who suffered a loss from the use of an unfair method of competition or an unfair trade practice. See Levings v. Forbes & Wallace, Inc., 8 Mass.App. 498, 396 N.E.2d 149 (1979).

Finally, Auto-Brite’s actions constituted a violation of § 43(a) of the Lanham Act, which makes liable any person who falsely designates the origin of goods. See Purolator, Inc. v. EFRA Distributors, Inc., 687 F.2d 554 (1st Cir.1982) (§ 43(a) imposes liability for the appropriation of goodwill associated with a competitor’s trademark by means of confusingly similar marking which would create the impression that the products of the defendant were those of plaintiff); Keebler Co. v. Rovira Biscuit Corp., 624 F.2d 366 (1st Cir.1980) (§ 43(a) prohibits a competitor from “palming off” his goods as those of another by means of confusing or misleading labeling of his product).

Mobil in Count VIII of its complaint alleges that Auto-Brite breached the franchise agreement between the parties. The term of the contracts constituting this agreement are unambiguous and the facts concerning the alleged breaches are not in dispute, making summary judgment appropriate, Tokio Marine Fire Ins. Co. v. McDonnell Douglas Corp., 617 F.2d 936 (2d Cir.1980). The Equipment Loan Agreement expressly provided that Auto-Brite could use the leased pumps solely for Company’s products. Auto-Brite does not dispute that it sold non-Mobil gasoline from the pumps. Likewise, Auto-Brite in selling non-Mobil gasoline under Mobil signs clearly used Mobil’s trademarks to identify products which were not Seller’s, in breach of the Retail Dealer Contract.

Mobil is therefore entitled to summary judgment on all remaining counts of its complaint.

II. Defendant’s Counterclaims

In Count I of its counterclaim, defendant alleges that Mobil breached the Retail Dealer Contract by delivering to Auto-Brite gasoline it had not in fact manufactured. It contends that the references to “Seller’s products” in the paragraph relating to trademarks mean that Mobil was required by the contract to deliver only “its own” products to Auto-Brite. However, the paragraph specifically relating to products to be delivered provides that they “shall be those marketed and used by Seller at times of deliveries for similar dealers in Buyer’s area, all as determined by Seller.” There is no ambiguity about this provision, nor does Auto-Brite allege any breach thereof. Defendant’s interpretation of the reference to “Seller’s products” simply does not amount to the showing of ambiguity necessary to withstand summary judgment.

Count VI of defendant’s counterclaim alleges an unfair and deceptive practice in violation of Mass.Gen.Laws ch. 93A, § 11. The president of Auto-Brite, Mr. Kanieff, alleges that during negotiations over the competitive allowance agreement a Mobil representative told him that Mobil would not cancel the allowance so long as Auto-Brite remained a good dealer. Defendant contends that this alleged misstatement, inducing him to enter the contract, violated ch. 93A.

Mobil denies that such a statement was ever made, and points to the provision in the written contract stating that the allowance could be withdrawn at any time upon thirty days notice. It contends that the parol evidence rule bars any evidence of such an alleged oral promise contradicting the unambiguous language of the written agreement; and that even assuming the statement was made, the statement does not constitute an act within the scope of 93A’s prohibition.

An action under ch. 93A is independent of traditional tort or contract concepts, Linthicum v. Archambault, 379 Mass. 381, 398 N.E.2d 482 (1979); and the First Circuit has suggested that the parol evidence rule, part of the law of contracts, does not apply in actions under 93A. See Capp Homes v. Duarte, 617 F.2d 900, 902 n. 1 (1st Cir.1980).

Because there is conflicting admissible evidence as to whether the statement was made, Mobil is entitled to summary judgment only if the statement did not as a matter of law constitute an unfair or deceptive act or practice in violation of ch. 93A. In defining the “unfair and deceptive” practices made unlawful by the act, the Supreme Judicial Court of Massachusetts has used the standard of unfairness approved by the United States Supreme Court in FTC v. Sperry and Hutchinson Co., 405 U.S. 233, 92 S.Ct. 898, 31 L.Ed.2d 170 (1972). Under this standard, the three factors to be weighed in determining whether a particular practice is unfair are:

“1. Whether the practice, without necessarily having been previously considered unlawful, offends public policy ... or whether in other words it is within at least the penumbra of some common-law, statutory or other established concept of unfairness;
2. Whether it is immoral, unethical, oppressive or unscrupulous;
3. Whether it causes substantial injury to consumers (or competitors or other businessmen).”

As Judge Kass put it in a case under § 11: “The objectionable conduct must obtain a level of rascality that would raise an eyebrow of someone inured to the rough and tumble of the world of commerce.” Levings v. Forbes & Wallace, Inc., 8 Mass. App. 498, 396 N.E.2d 149, 153. The existence of an unfair or deceptive act or practice is to be determined in the light of the policy of the statute and from the circumstances of each case. Heller v. Silverbranch Const. Corp., 376 Mass. 621, 382 N.E.2d 1065 (1978).

In the circumstances present here, Mobil’s act in making the statement (assuming it did) simply does not rise to the level of objectionable conduct the statute prohibits. Mr. Kanieff agreed in his deposition that he is an experienced businessman used to negotiating contracts, and described his experience with procedures for granting competitive allowances. He stated that he negotiated with Mobil over the franchise relationship for several months at between 6 and 12 meetings and that at his request some changes were made in the contracts after they had been drafted. He discussed his concern about the termination clause with the Mobil representative before signing the allowance letter. Presumably any oral statement that termination would be only for good cause could have been added to the written contract during that session. Kanieff does not allege that he requested such a change.

While Mobil’s alleged misstatement indeed could have caused injury to AutoBrite and perhaps have fallen within the penumbra of some concept of misrepresentation, in the circumstances here it does not amount to the sort of “immoral” or “oppressive” conduct (or the “level of rascality”) 93A was designed to prevent; it does not as a matter of law amount to a violation of Mass.Gen.Laws ch. 93A.

Accordingly, Mobil’s motion for summary judgment on Counts I, II, III, VII and VIII of its complaint and Counts I and VI of defendant’s counterclaim is allowed.

      . The Court dismissed the four other counts of defendant’s original counterclaim on September 14, 1982. Defendants’ motion to amend was allowed only insofar as it added counts designated XII and XIII, alleging Mobil’s failure to pay certain credit card charges. The parties agreed at oral argument, however, that these are not addressed by Mobil’s current motion for summary judgment. Nor is the question of damages now before me.

      . On the same date, Mobil sold Auto-Brite an oil carousel for $1.05, under a similar bill of sale and "Mobil Designed Equipment Repurchase Agreement.”
      The language of the contracts establishes Mobil’s right to possession of both the ten leased and two "sold" pumps; and Auto-Brite’s right to payment for the two which were "repurchased" by Mobil under the formula set forth. That question of payment is part of the issue of damages not now before me.

      . The plaintiff during oral argument conceded for purposes of this motion that the taping occurred.

      . The Court allowed defendant's motion to dismiss as to Counts IV-VI (raising various state law claims) in its Order of December 7, 1981.

      . Auto-Brite contends that Mobil had the obligation to remove the signs and pumps upon termination of the contract and cannot complain of injury resulting from its failure to do so. The terms of the parties’ agreements place no such obligation on Mobil. Under the Equipment Loan Agreement covering ten of the pumps, Auto-Brite was required to return them promptly to Mobil upon termination of the contract. The Pump Repurchase Agreement relating to the other two pumps provided that AutoBrite should sell the pumps "forthwith" to Mobil upon termination. The Sign and Equipment Rider provided that Mobil could remove or abandon the signs at its option.

      . In its brief, defendant claims that the withdrawal of the allowance also violated 93A. At oral argument defendant described the Count only as encompassing the misstatement, and I accept that characterization.


source: Caselaw Access Project

license: Public Domain

text:
    Susan E. JOHNSON v. EDUCATIONAL TESTING SERVICE, INC.
    Civ. A. No. 72-1837-Z.
    United States District Court, D. Massachusetts.
    June 8, 1984.

      Jack R. Pirozzolo, Mary Jeanne Tufano, Willcox, Pirozzolo & McCarthy, Boston, Mass., for plaintiff.
    George C. Caner, Jr., Ropes & Gray, Boston, Mass., for defendant.
   MEMORANDUM OF DECISION

ZOBEL, District Judge.

Defendant Educational Testing Service, Inc. (“ETS”) is a non-profit corporation which prepares and administers various educational tests, including the Law School Admission Test (“LSAT”). Plaintiff Susan Johnson, then a college senior, took the LSAT in October and December 1970 and received score reports of 317 and 323, respectively. After the April 17, 1971 LSAT test date, ETS reported a score of 623 for Johnson, an unusual increase. She was soon thereafter offered admission to the University of California Law School at Berkeley (“Berkeley”), which she accepted. In June 1971, however, ETS notified plaintiff that it had serious doubts concerning the validity of the score reported for her on the April 17 LSAT. After a series of communications between the parties and actions by both, discussed below, ETS on September 3, 1971 cancelled the score. It also orally informed Berkeley of the cancellation and sent written notice to Berkeley and the other law schools to which plaintiff had requested her scores be reported. Berkeley by letter that same day informed plaintiff that its offer of admission had been withdrawn.

Plaintiff brought this diversity action against ETS alleging that its invalidation of the score was arbitrary, depriving her of her right to due process under the Fifth and Fourteenth Amendments to the United States Constitution; that ETS breached certain warranties it made to plaintiff concerning the LSAT; that its actions in reaching the determination to invalidate the April score breached its contract with plaintiff; that it interfered with the advantageous contractual relationship between plaintiff and Berkeley; and that it defamed plaintiff. ETS has moved for summary judgment on all five counts of the complaint.

The following facts relating to plaintiffs due process claim are undisputed. ETS is a non-profit corporation created by the American Council on Education (“ACE”), the College Entrance Examination Board (“CEEB”) and the Carnegie Foundation for the Advancement of Teaching, to carry on educational testing activities. In 1971 it was managed by a 16-member Board of Trustees. The Presidents of ACE and of CEEB were trustees ex officio; and other trustees were chosen by the Board from candidates nominated by ACE, CEEB, and the Board itself. Two of the trustees were officers of state universities.

ETS designs and administers the LSAT under an agreement with the Law School Admission Council (“LSAC”), which determines the general policy concerning conduct of the LSAT program. Under the agreement, ETS receives its costs plus a fee, equal to 13% of the costs.

Plaintiff contends first that state schools’ membership in ACE, CEEB and LSAC, together with the fee payments allowed under LSAC’s contract with ETS, amount to state control of ETS or such state involvement that ETS actions must be deemed those of the state; and second, that ETS exercised a public function in that state law schools delegated to ETS in its administration of the LSAT “virtual veto power” over what candidates would be selected for admission.

The latter argument can be readily dismissed. Plaintiff does not suggest that administration of standardized tests for law school admission is a function “ ‘traditionally the exclusive prerogative of the state,’ ” Blum v. Yaretsky, 457 U.S. 991, 1005, 102 S.Ct. 2777, 2786, 73 L.Ed.2d 534 (1982) (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 353, 95 S.Ct. 449, 455, 42 L.Ed.2d 477 (1974)), as it must be to support a finding of state action. Rendell-Baker v. Kohn, 457 U.S. 830, 842, 102 S.Ct. 2764, 2771, 73 L.Ed.2d 418 (1982). Nor has she adduced any facts to contradict defendant’s evidence that law schools make their own independent admissions decisions.

Plaintiffs funding argument likewise fails in light of Rendell-Baker v. Kohn. There, the Supreme Court concluded that near-total government funding of a school did not constitute a sufficient nexus to make the school’s personnel actions those of the funding state. Id. at 840, 102 S.Ct. at 2770. The amount of public funds, if any, coming to ETS from state members of LSAC is far less than the support held insufficient to constitute government action in Rendell-Baker.

Plaintiff has made no showing of any direct state regulation of ETS testing activities, including the decision to invalidate a score. She would, however, hold the state responsible for defendant’s invalidation of the score by finding a substantial degree of public participation in ETS’s action and entanglement between the state and ETS which amounts to a symbiotic relationship, Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). She relies upon Rivas Tenorio v. Liga Atletica Interuniversitaria, 554 F.2d 492 (1st Cir.1977), where the First Circuit held the action of an association of seven Puerto Rican colleges, including four state supported ones, to be state action. The continuing validity of Rivas Tenorio is questionable in the light of Blum and Rendell-Baker, as the First Circuit has recognized, Spath v. National Collegiate Athletic Association, 728 F.2d 25, 28 (1st Cir. 1984). Even if Rivas Tenorio remains good law, however, most of the factors the court there found to indicate a state nexus are lacking here. While ETS does provide a valuable service to members of the LSAC, less than one-half of those members are public institutions; there is no indication that public institutions provide the “vast majority” of ETS’s capital or that state instrumentalities are a dominant force in determining its policy and dictating its actions. Indeed, the undisputed facts concerning its funding and governance are to the contrary. ETS is controlled not by member schools but by a self-perpetuating Board of Trustees, only some of whose members are nominated by organizations partially composed of state universities. Such a tenuous connection is far from the symbiosis required to make ETS actions attributable to the state.

As a matter of law, therefore, I find that ETS action was not “state action” under the Fourteenth Amendment. Because its actions were no subject to the requirements of the due process clause, defendant is entitled to summary judgment on Count I of the complaint.

There remain plaintiff’s further claims that defendant’s actions violated state contract and tort law.

Count II of the complaint alleges that plaintiff was induced to contract with ETS to take the LSAT by certain express and implied warranties made by ETS concerning the nature and purpose of the test, that ETS breached its warranties causing plaintiff to receive varying scores, and then concealed its breach by invalidating her high score. Plaintiff alleges no damage from the variation of scores in itself, and Count II thus amounts to an assertion that the cancellation was done in bad faith. As such, it states no claim independent of that in Count III, and I consider it in conjunction with Count III.

In Count III plaintiff alleges that defendant breached its contractual obligation to her to report her scores, to investigate the circumstances of the testing if doubts were raised about her score, to cancel the score only if there was adequate reason to question its validity, and to make that determination in good faith. The terms of the contract are contained in the 1970-71 LSAT Bulletin of Information. The relevant portion provides: “If doubts are raised about a candidate's scores after they have been reported, ETS will investigate the circumstances of the testing. Educational Testing Service reserves the right to cancel any test score, if in the opinion of ETS there is adequate reason to question its validity. Before exercising this right, ETS will offer the candidate a retest at no additional fee.” Accepting plaintiffs contention that Massachusetts law requires such a unilateral decision by a party to a contract to be reasonable, and her contention that defendant had an obligation to make its decision in good faith, the facts appearing from the parties’ submissions, even viewed most favorably to plaintiff, here compel the conclusion that ETS’s conduct complied with both requirements and in no way constituted a breach of its contract with plaintiff.

The validity of the April score was originally questioned by the Admissions Office of the University of Pennsylvania in a call to ETS on May 11, 1971. After that call, three members of the ETS Test Security Office (“TSO”) individually reviewed the answer sheet and registration form for that administration and those in October and December and concluded that the April forms were not written by the person who wrote the October and December forms. The documents were sent to Jan Beck, a handwriting expert, who reached the same conclusion.

The ETS Board of Review was an internal ETS committee with responsibility for reviewing information on questioned test scores and deciding what action should be taken. On June 8, Susan Johnson’s case was presented to the Board as one of several instances of suspected irregularities. Based on the documents from the TSO and the opinion of Beck, the Board concluded that serious doubt existed about the validity of plaintiff’s April score and sent a letter to plaintiff so informing her. The letter, signed by Louis Fowler as Secretary of the Board of Review, stated that before taking any further steps, the Board would appreciate receiving from her any additional information she wished to provide. It offered plaintiff the further options of taking a free retest under special supervision, or requesting that the score be cancelled, noting that it would give recipients of the cancellation notice no reason for the cancellation.

By July 1, plaintiff had retained counsel and requested that ETS consider additional information. During that same period, Columbia and Berkeley had called ETS to request information about the April score. At its meeting of July 13, 1971, the Board had before it letters from two Harvard faculty members, the President and the Dean of Connecticut College, supporting plaintiff’s ability and integrity, as well as a letter from the Associate Dean of Radcliffe College speaking highly of plaintiff’s integrity and noting her recommendation that plaintiff take a retest. The Board decided to consult a second handwriting expert, Ordway Hilton.

At a further meeting on July 22, 1971, the Board had, besides the materials above, a six-page letter from plaintiff’s counsel setting forth plaintiff’s view of the facts, supporting materials, and requests for information from ETS; plaintiff’s college transcript; medical records concerning her stress-related problem; plaintiff’s affidavit describing the circumstances of the April test; the affidavit of Kay Sternfeld, who described tutoring plaintiff in the techniques of standardized test-taking; and handwriting samples provided by plaintiff. A TSO member reported that Hilton had in a telephone call stated his conclusion that a different person had written the April test from the one who had written the two earlier tests. The Board deferred action until receipt of a written report to that effect from Hilton.

On August 5, plaintiff and her attorney met with John Kramer, general counsel to ETS, Fowler, and Thomas Robinson, Associate Program Director of the LSAT Program. Plaintiff refused to take a retest and it was agreed that she would retain a handwriting expert, Elizabeth McCarthy. At the end of August, McCarthy orally informed Fowler of her conclusion that plaintiff had written all the documents in question. ETS decided to seek the opinion of a fourth expert and sent the documents to Paul Osborn.

On September 3, the Board met again about plaintiff’s case. During the meeting Fowler spoke to Osborn and reported that Osborn believed the April test had been written by a different person. The Board voted unanimously to cancel the score, called Berkeley to inform it of the cancellation, and sent a written notice of cancellation to the other schools plaintiff had designated as recipients of score reports.

The Board of Review’s decision to cancel the score thus was made after a lengthy process, including four meetings of the Board. The Board had requested (in its letter of June 11, 1971) and accepted extensive documentation submitted on behalf of plaintiff. It considered plaintiff’s submissions, as well as those of its own Test Security Office personnel, the scores themselves, and the opinions of four handwriting experts, three unfavorable to plaintiff. Its conclusion that there was adequate reason to question the validity of plaintiff’s score was a reasonable one, reached with deliberation in good faith. ETS’s cancellation of the April score was in accordance with the terms of its unambiguous contract with plaintiff, and it is therefore entitled to summary judgment on Count III of the complaint.

There remain plaintiff’s two tort counts. In one she alleges that ETS defamed her by informing “through various oral and written communications persons and institutions” that the April score was invalid. In the other she alleges an interference with her contractual relationship with Berkeley. The parties agree that ETS notified Berkeley, the only recipient specified in the complaint, both orally and in writing of the invalidation. Identical notices were sent to the other institutions to which plaintiff had requested that her scores be reported.

Even accepting plaintiff’s contention that the notice of cancellation was defamatory, carrying the innuendo that it was caused by dishonest conduct on plaintiff’s part, the undisputed facts support defendant’s claim that the communication was privileged. ETS’s interest in ensuring the validity of the scores it reports is undisputed; the law schools involved had an interest in receiving accurate score information as part of their admissions process. Under the law of all the states in question, communications between those having such a common interest are privileged unless improperly motivated or unsupported by reasonable cause. Cal.Civ.Code § 47(3) (1982), Bollow v. Federal Reserve Bank of San Francisco, 650 F.2d 1093 (9th Cir.1981), cert. denied, 455 U.S. 948, 102 S.Ct. 1449, 71 L.Ed.2d 662 (1982); Williams v. Taylor, 129 Cal.App.3d 745, 181 Cal.Rptr. 423, 426 (1982); Sheehan v. Tobin, 326 Mass. 185, 93 N.E.2d 524 (1950); Buckley v. Litman, 57 N.Y.2d 516, 443 N.E.2d 469, 457 N.Y.S.2d 221 (1982); Toker v. Poliak, 44 N.Y.2d 211, 376 N.E.2d 163, 405 N.Y.S.2d 1 (1978); Baird v. Dun & Bradstreet, 446 Pa. 266, 285 A.2d 166 (1971); Beckman v. Dunn, 276 Pa.Super. 527, 419 A.2d 583 (1980). Plaintiff has adduced no evidence that ETS’s conduct in cancelling the score was unreasonable and undertaken in bad faith. Its communication of the cancellation to institutions that had received the score was therefore privileged, and defendant is entitled to summary judgment on Count V.

For the same reason, plaintiff’s claim that ETS interfered with her advantageous contractual relationship with Berkeley fails. Such interference to be actionable must be intentional and without justification. ETS was justified in communicating its decision to cancel plaintiff’s score to the schools that had received the score. Imperial Ice Co. v. Rossier, 18 Cal.2d 33, 112 P.2d 631 (1941); Bledsoe v. Watson, 30 Cal.App.3d 105, 110, 106 Cal.Rptr. 197, 199 (1973). See also Swencki v. Educational Testing Service, No. C 81-0689 L(A) (W.D.Ky. May 26, 1983).

Accordingly, defendant’s motion for summary judgment on all counts of the complaint is allowed. Judgment may be entered for defendant.

      . By September 21, 1971 Berkeley provisionally admitted plaintiff to classes; she was fully reinstated by October 11, 1971.

      . Contrary to plaintiff's assertion, there remains no genuine issue of fact material to resolution of her claim under Count I; the question of law presented can be resolved accepting plaintiff’s statement of facts.

      . According to material submitted by plaintiff, the ACE is a council of approximately 200 educational associations and 1500 institutions of higher education, (with some 60 affiliated institutions), founded as a center of cooperation for the improvement of education. It is governed by a 29-member Board of Directors. The CEEB is a non-profit corporation comprised of educational institutions and organizations, with the purpose of assisting in and coordinating activities connected with the transition of students from secondary schools to colleges, such as admissions procedures and testing. It is governed by a 25-member Board of Trustees. Some members of both ACE and CEEB are publicly supported institutions and officials of state educational institutions have served on the Boards of ACE and of CEEB.

      . The Law School Admission Council is a nonprofit corporation composed of approximately 141 law schools; 63 members are state-supported. Its functions are analogous to those of the CEEB in that it provides services to law schools relating to admissions, and has ultimate responsibility for carrying on testing programs used for admission to law schools. By agreement with ETS, the council has delegated responsibility for design and administration of the LSAT to ETS.

      . The situation is thus clearly different from that in the cases upon which plaintiff relies. Martin v. Educational Testing Service, Inc., 179 N.J.Super. 317, 431 A.2d 868 (N.J.Super.1981) and Golden Rule Life Insurance Co. v. Mathias, 86 Ill.App.3d 323, 41 Ill.Dec. 888, 408 N.E.2d 310 (1980), involved examinations administered by ETS for state licensing authorities which were the sole requirement for and the sole method of obtaining a real estate and insurance broker’s license, respectively, for practice in the state. (In Martin ETS agreed that ii was acting as the agent of the state, and in Golden Rule the state licensing commission worked closely with ETS in developing the test, having final review power over, the form and content of the questions.) Here, ETS’s role more closely resembles that in Stewart v. Hannon, 469 F.Supp. 1142, 1147 (N.D.Ill.1979), where satisfactory performance in the ETS-administered test was only one requirement of several for those seeking to be high school principals, an oral examination and experience being necessary as well. The court there held that ETS was not engaged in state action.

      . Other courts have reached the same conclusion. See Brown v. Educational Testing Service, No. C-71-2029-AJZ (N.D.Cal. Jan. 31, 1972), K.D. v. Educational Testing Service, 87 Misc.2d 657, 386 N.Y.S.2d 747 (1976).

      . The parties agree that Massachusetts law governs the contract claim.

      . See Salem Glass Co. v. Joseph Rugo, 343 Mass. 103, 176 N.E.2d 30 (1961).

      . Plaintiffs claim that additional discovery is needed on the issue of bad faith is without merit. In contrast to the situation in Parrish v. Board of Commissioners of the Alabama State Bar, 533 F.2d 942 (5th Cir.1976) on which she relies, defendant here has not simply denied misconduct. The record here contains not only the affidavits of the Board members asserting their reasons for reaching the decision, but also the documents before the Board at each stage of the proceedings. Regardless of whether the result was right or wrong, the record makes clear that the decision had good faith grounds. See Swencki v. Educational Testing Service, No. C81-0689 L(A) (W.D.Ky. May 26, 1983); K.D. v. Educational Testing Service, 87 Misc.2d 657, 386 N.Y.S.2d 747 (1976). Plaintiff has offered nothing to controvert defendant’s position. Given this lack of any factual dispute, summary judgment is appropriate on the issue of good faith. See Packish v. McMurtrie, 697 F.2d 23 (1st Cir. 1983).

      . The notice was as follows:
      "NOTICE OF CANCELLATION OF TEST SCORES
      This is an official notice from Educational Testing Service that the scores for the candidate and the administration as indicated have been cancelled and are no longer retained in our records.
      Susan E. Johnson
      D22 Adam [sic] House Harvard
      Cambridge, Massachusetts
      April 1971 LSAT
      In our considered opinion, these scores should not be used as a basis for judgments concerning the candidate.”

      . In this diversity action Massachusetts choice of law rules determine the applicable substantive law, which under those rules would be that of each place of publication. Harkaway v. Boston Herald Traveler Corp., 418 F.2d 56 (1st Cir. 1969); Brewster v. Boston Herald-Traveler Corp., 188 F.Supp. 565 (D.Mass.1960). See also Pevoski v. Pevoski, 371 Mass. 358, 358 N.E.2d 416 (1976); Restatement (Second) of Conflict of Laws § 149 (1971). The institutions in question are located in California, Massachusetts, New York and Pennsylvania.

      . In memoranda filed in connection with this motion, plaintiff asserts a claim for defamation in various communications to "persons" identifled only by that term in her complaint. Under applicable Massachusetts law, one of the specified communications, the copy of a letter from ETS to Berkeley sent to Walter Leonard, Special Assistant to the President of Harvard, is clearly within the bounds of the privilege above. The remaining communications are not actionable because they were made only to plaintiff or her agents. Burns v. Barry, 353 Mass. 115, 228 N.E.2d 728 (1967).

      . Plaintiffs assertion that her complaint states a cause of action for intentional infliction of emotional distress, made for the first time in her most recent brief, is without merit.


text:
    DAVID D. v. DARTMOUTH SCHOOL COMMITTEE, et al.
    Civ. A. No. 83-1753-Z.
    United States District Court, D. Massachusetts.
    Sept. 11, 1984.

      Richard F. Howard, Developmental Disabilities Law Center, Boston, Mass., for plaintiff.
    Kim E. Murdock, Ass’t Atty. Gen., Government Bureau, Boston, Mass., for defendants.
   MEMORANDUM OF DECISION

ZOBEL, District Judge.

David D. is a 17-year old adolescent with Downs Syndrome who lives with his parents in Dartmouth, Massachusetts and has received special education services from the Dartmouth Public Schools. He commenced this seven-count action pursuant to the Education for All Handicapped Children Act of 1975, 20 U.S.C. §§ 1401-20 (EAHCA) following a decision by the defendant Massachusetts Department of Education’s Bureau of Special Education Appeals (“BSEA”) that the Individual Education Program (“IEP”) offered by defendant Dartmouth School Committee (“Dartmouth”) for the 1982-83 school year was appropriate for his special education needs, rejecting plaintiff’s contention that those needs required a residential setting. Plaintiff seeks judicial review of the BSEA decision and appropriate declaratory and injunctive relief, with costs and attorneys’ fees.

20 U.S.C. § 1415(e)(2) directs that in reviewing an administrative decision under the EAHCA “the court shall receive the records of the administrative proceeding, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.”

I. The Administrative Findings

The evidence presented at the BSEA hearing included the testimony of David’s mother concerning his sexual and aggressive behavior directed at animals and persons in the community, which had led her to believe the nonresidential Dartmouth program to be inadequate to meet his needs. In addition, Mr. Bowman and Dr. Rogoff, a psychologist and psychiatrist who examined David at the Developmental Evaluation Clinic of Children’s Hospital Medical Center opined that elimination of this behavior would require a 24-hour a day training program, and Mr. Asztalos, Program Director at the Learning Center for the Multiply Handicapped, described the resident program the Center offered David. On the other hand, David’s teacher in the Dartmouth special education program testified to his satisfactory progress and lack of significant behavior problems during the school day, an account corroborated by David’s physical education teacher.

The hearing officer, in a careful and thorough opinion, found that plaintiff had shown the ability to control his sexual and aggressive drives within the school setting, and was achieving effective educational progress toward the goals contained in the 1982-83 IEP. She concluded that his breaches of acceptable social behavior outside the structured school situation were isolated, and that he had demonstrated the capacity to generalize his ADL (“activities of daily living”) skills at home and in the community. She noted that plaintiff’s educational program should be directed towards maximizing his potential for eventual placement in a community-based program or private employment. Because she felt that plaintiff’s sexual preoccupation could be a deterrent to his acceptance in such placements, she found that therapy to assist plaintiff in dealing with his sexual feelings was a necessary supportive service. She accepted Dartmouth’s proposed amendment to the IEP providing for individual therapy for plaintiff and family counseling for his parents and sister with a licensed clinical social worker, and found that the IEP as amended was adequate and appropriate to meet plaintiff’s special educational needs in the least restrictive prototype mandated by the governing statutes. Plaintiff filed this action on July 1, 1983.

II. Evidence Presented at Trial

In addition to the administrative hearing record, the parties offered several witnesses to supplement that record. In accordance with the First Circuit’s directive that such evidence must not change the character of the hearing from one of review to a trial de novo, Town of Burlington v. Department of Education, 736 F.2d 773, 790-91 (1st Cir.1984) (“Burlington II ”) the additional evidence concerned only the time subsequent to the hearing or was offered by witnesses who did not appear at the hearing and was noncumulative.

Dr. Andrea Spencer is Director of Programs at the Doctor Franklin Perkins School (“FPS”) in Lancaster, Massachusetts, which serves moderately and severely retarded children, most with behavioral problems. She initially observed plaintiff at Samoset House, a weekend respite placement, in May 1984, and further observed him when he visited FPS on May 23, 1984. His behavior during evaluations of his academic, pre-vocational and speech skills was adequate, but deteriorated during a tour of the school. He refused to follow directions, ran uncontrollably up and down a fire escape and into offices, and leapt repeatedly over a safe in the residential area. He also exhibited sexually provocative behavior, kissing a secretary and touching another staff member’s buttocks. Dr. Spencer testified that his behavior was extreme even when compared with that of students with similar cognitive functioning. She stated that his refusal to follow directions and his sexual behavior, if continued, would significantly restrict his future options, since placement in a community residence or workshop requires some internal control.

In her opinion, the overall goal of any special education program is to assist the student to maximize his ability for independence as an adult. She stated that because plaintiff's behavior problems impede his progress toward that goal, even if they occur only outside the classroom, they constitute needs which a special education program must address. Such an educational program should address plaintiffs social and behavioral needs in a consistent way throughout his waking hours. She described the behavior modification technique FPS would use to eliminate plaintiffs unacceptable behavior, by systematically rewarding finite periods of good conduct. In order to be successful, such a program must be carried on every day and throughout the day by trained staff. At FPS plaintiff would receive training in functional academics, speech, art, and music therapy, and adaptive physical education, as well as prevocational training designed to enable him to meet the standards of a sheltered workshop, during the six-hour school day; and engage in activities structured by staff from the close of the school day until his bedtime.

Dr. Spencer opined that the Dartmouth IEP was not sufficient to overcome plaintiffs behavioral problems because it did not provide for a consistently administered program training plaintiff to generalize the social skills he learned in the classroom to situations encountered in all his waking hours. She believed that after a one to two year stay at FPS such an IEP might be adequate for plaintiffs needs, but that at this time those needs require residential placement at an institution such as FPS.

Richard Asztalos, a behavioral specialist at the Learning Center for the Multiply Handicapped (“LC”) in Belmont, agreed with Dr. Spencer’s assessment of plaintiff’s need for a residential placement. At the BSEA hearing he had offered the LC as an appropriate residential program for plaintiff. He testified at the trial that the LC would now not be able to accept plaintiff, since LC’s community setting made it impossible adequately to control plaintiff’s behavior without devoting an unacceptably high amount of the LC’s resources to him. In assessing plaintiff’s behavior he relied on his observations of plaintiff during a three-hour evaluative visit to the LC on January 4, 1984. Although plaintiff responded fairly well during his academic evaluation, during later pre-vocational tasks and meetings with other students he refused to respond to directions, hugged several students and grabbed their genitals. While being driven to the residence area of the LC he jumped between the front and back seats of the car and similarly hugged and touched both Mr. Asztalos and the driver. His behavior caused Mr. Asztalos to cancel the rest of the evaluation.

Mr. Asztalos testified that plaintiff’s behavior would bar him from acceptance in community programs. He further opined that the Dartmouth IEP was inadequate to enable plaintiff to generalize behavior learned in the classroom to unstructured settings, and that such generalization was a necessary element of any special education program for plaintiff.

Dr. John Paul, a staff psychiatrist at the Children’s Hospital Developmental Evaluation Clinic (“DEC”) and member of an evaluation team met plaintiff on December 2, 1983 and observed him during his day at the clinic. He testified that during his session with him plaintiff exhibited a continuous preoccupation with sexual themes. On the way to Dr. Paul’s office, plaintiff hugged a girl on crutches; only Dr. Paul’s prompt action kept her from falling. Plaintiff also made advances toward persons in the waiting room and touched females in an inappropriate manner.

The DEC team concluded that plaintiff needed further diagnostic evaluation and residence in a 24-hour highly structured facility because of his inability to conform to norms of social behavior even for those at his cognitive level. In Dr. Paul’s opinion, the Dartmouth IEP would not be sufficient to address plaintiff’s need for consistent continuous training, given the frequency and intensity of his unacceptable actions. Even accepting the hearing officer’s finding that such incidents were isolated events, Dr. Paul believed that the nature and intensity of plaintiff’s actions made residential placement necessary in order for him successfully to learn to control them.

Benjamin Handen, a clinical psychologist, evaluated plaintiff during his eight-week stay at Bradley Hospital beginning in January 1984. He twice met with plaintiff in forty-five minute evaluation sessions, and consulted with staff working with plaintiff during all of his time at Bradley. During the evaluation sessions plaintiff again engaged in sexual play with dolls and directed sexual behavior at Mr. Handen. He was able to stop this behavior when given organized tasks to perform. In the evening hours, during less structured time, his deviant behavior was more frequent, with an average of six incidents per evening.

In Mr. Handen’s opinion a 24-hour residential program is necessary to give plaintiff consistent and intensive training in appropriate behavior and an increased opportunity to be with his peers and learn to relate in an acceptable way to them. Even conduct such as touching and staring needed to be eliminated because such conduct together with more clearly unacceptable behavior was likely to prevent plaintiff’s eventual placement in a community setting where he could be as independent as possible. Mr. Handen noted that given plaintiff’s age (17 years) and the type and intensity of his deviant conduct he is now also in danger of conflicts with the law. Mr. Han-den believed that one to two years of a residential program would enable plaintiff to return to the community and function successfully. He opined that the Dartmouth IEP was not sufficient to train plaintiff in the continuous and consistent way necessary, since it left him too much unsupervised time.

Two neighbors of plaintiff also gave testimony concerning his behavior. Both recounted several incidents of plaintiff’s socially inappropriate activities and his aberrant behavior with girls (one very young) and with dogs.

Gina Barbero, a 1983 graduate of Dartmouth High School, testified concerning her observations of plaintiff during time she spent as an aide in his classroom during the 1982-83 school year. In that capacity she spent three forty-minute periods per week with plaintiff and his classmates during the later part of the school day, when activities were relatively unstructured. The regular class teacher, Mrs. Thomson, was almost always present in the room during that time, along with at least one other high school aide. Ms. Barbero on a few occasions saw plaintiff lie on the floor and try to look up girls’ skirts. He also would move his chair very close to a female student’s or aide’s and touch her knee or arm or hug her. Ms. Barbero did not remember whether or not Mrs. Thomson was in the classroom when plaintiff engaged in this particular behavior. She stated that when Mrs. Thomson observed plaintiff engaged in any unacceptable touching she disciplined him by having him sit removed from the group; Ms. Barbero saw plaintiff so disciplined about once a week. She stated that plaintiff behaved badly when a substitute teacher was in charge of the classroom. She believed plaintiff’s unacceptable touching of females in the school outside his classroom was encouraged by other students.

Defendant offered the testimony of Mrs. Thomson, plaintiff’s special needs teacher at Dartmouth during the 1983-84 school year, to supplement her testimony at the BSEA hearing relating to his performance in prior years. Plaintiff attended her class from September 1983 to January 1984 and returned to it from mid-May 1984 through the end of the school year. Mrs. Thomson testified that his behavior was generally appropriate during the school day. He responded well to verbal reinforcement and to his peer tutors. She believed that he had gained in self control, requiring less frequent verbal reminders as to expected behavior. He was able to go to and from the gymnasium alone, and was mainstreamed for two gym classes each week and lunch in the cafeteria each day. She noted that plaintiff had re-adapted to the school program without difficulty when he returned in May after a four-month absence. A few weeks before the trial plaintiff had gone to a local restaurant for lunch with his class. He sat in a booth with a classmate and two high school aides and his behavior was completely appropriate throughout the meal. Mrs. Thomson stated that the class goes on such outings to the community twice a week. She noted that plaintiff’s IEP addresses social skills, sex education and behavior needs, which are part of plaintiff's special education needs. She felt that increasing the ability to generalize training is an important element of a program for plaintiff, and that at present he needs either instruction in appropriate behavior before encountering any new situation, such as attendance at a high school football game, or external structure (supervision) in that setting. She believed that the Dartmouth IEP provided for the kind of training and structure plaintiff needed. Because plaintiff responds readily to verbal reinforcement (he always ceased touching others when reminded) she felt that a complex behavior management program for him was not necessary. She believed that plaintiff needed to work on resolving his problems in sexuality, but noted that sex education was part of the IEP, and that the counseling offered by Mr. Messmer was adequate.

III. The Standard the IEP Must Meet

The EAHCA provides a federal minimum standard or “basic floor” of beneficial education, which the First Circuit has defined as “demonstrable improvement in the educational and personal skills identified as special needs—as a consequence of implementing the proposed IEP.” Burlington II at 788. Where the district court determines that state law mandates a higher standard of educational service than the federal minimum, “the state standard will operate to determine what an appropriate education requires for a particular child in a given state.” Id. at 789.

The Massachusetts statutes relating to special education programs provide in relevant part:

“The department [of Education] shall promulgate, in cooperation with the departments of mental health, public health and social services, regulations regarding programs for children with special needs including but not limited to a definition of special needs; provided, however, that such definition shall emphasize a thorough narrative description of each child’s developmental potential so as to minimize the possibility of stigmatization and to assure the maximum possible development of a child with special needs, and, provided further, that such definition shall be sufficiently flexible to include children with multiple special needs....
No child shall be assigned to a special education class unless it is first determined by an evaluation of the child’s needs and the particular special education program that the child is likely to benefit from such program; periodically thereafter, and in no event less often than annually the child and his program shall be reevaluated to determine whether said child is benefiting from said program in accordance with the procedures set forth in section three. In the event that said program is not benefiting the child and that another program may benefit the child more, or said program has benefited the child sufficiently to permit reassignment, the child shall be reassigned, and in the event of consistent failure of a program to benefit children there assigned, the program shall be abolished or altered.” Mass.Gen.Laws ch. 71B, § 2.
“Within ten months after placement of any child in a special education program, and at least annually thereafter the child’s educational progress shall be evaluated as set forth above. If such evaluation suggests that the initial evaluation was in error or that a different program or medical treatment would now benefit the child more, appropriate reassignment or alteration in treatment shall be recommended to the parents, guardians or persons having custody of the child. If the evaluation of the special education program shows that said program does not benefit the child to the maximum extent feasible, then such child shall be reassigned.” Mass.Gen.Laws ch. 71B, § 3

The parties agree that the statutory language should be interpreted in light of the whole statute’s clear preference for keeping the child wherever possible in a regular education program or the least restrictive alternative placement, Commonwealth v. School Committee of Springfield, 382 Mass. 665, 669, 417 N.E.2d 408, 410 (1981); Isgur v. School Committee of Newton, 9 Mass.App. 290, 299, 400 N.E.2d 1292, 1298 (1980); and that private school placement is mandated only where the public schools cannot meet the child’s special needs and the private school program is the least restrictive way to meet those needs. Commonwealth v. School Committee of Springfield, 382 Mass. 665, 669, 417 N.E.2d 408, 410 (1981); School Committee of Franklin v. Commissioner of Education, 17 Mass.App. 683, 697, 462 N.E.2d 338, 347 (1984). State law is thus congruent with the federal right to an education in the least restrictive environment.

The parties disagree, however, as to the overall standard by which to judge whether a program is meeting the child’s educational needs satisfactorily. Defendants, relying upon language in the cases cited above, argue that if a child is “benefiting” from his current program he cannot be transferred to a more restrictive program even though it might benefit him more. They point to the First Circuit’s footnote statement in Burlington II that: “[a] state standard ... which provides a substantive level of benefits exceeding the federal floor of opportunity may not be applied such that the federal right to an education in the least restrictive environment will be diminished.” Id. at 789 n. 19. Plaintiff counters with the next sentence in that footnote: “... [T]he least restrictive environment guarantee ... cannot be applied to cure an otherwise inappropriate placement____” He notes that the court in the Isgur case cited by defendants recognized “maximum extent feasible” as the standard to be applied, Isgur 9 Mass.App. at 299, 400 N.E.2d 1292, and that the case was cited for that proposition in Burlington II, at 789. Moreover, the Supreme Judicial Court in a recent decision interpreted the first paragraph of Mass.Gen.Laws ch. 71B, § 2 (reproduced above) as requiring the Department of Education to administer special education programs “ ‘to assure the maximum possible development of a child with special needs.’ ” Stock v. Massachusetts Hospital School, 392 Mass. 205, 211, 467 N.E.2d 448 (1984).

The weight of authority thus supports plaintiff’s position that the Massachusetts standard requires more from an educational program than the “demonstrable improvement in the educational and personal skills identified as special needs” mandated by the federal Act, and therefore the state standard must be used in determining what an appropriate education requires for plaintiff. Burlington II at 789. The issue to be determined therefore is whether Dartmouth’s IEP addresses plaintiff’s special educational needs so as to assure his maximum possible development in the least restrictive environment consistent with that goal.

IV. The 1982-83 IEP

The parties agree that social skills including sex education are part of this plaintiff’s special education needs and progress in social skills and personal development is among the objectives set forth in the 1982-83 IEP for plaintiff. To meet these objectives Mrs. Thomson taught one weekly-class in sex education during 1982-83 and another in social skills. She also inculcated social skills “as an ongoing thing;” the class participated in weekly trips into the community to promote generalization of learned social skills to settings outside the classroom.

After the BSEA hearing, Dartmouth amended the IEP to include individual therapy for plaintiff and family counseling for his parents and sister with Ernest Messmer, a licensed clinical social worker and primary therapist at the Retarded Program of the Center for Human Services, Inc. After an initial evaluation of plaintiff, Mr. Messmer proposed that his treatment consist of a “behavioral specialist” providing 5-10 hours of training a week to plaintiff in order to try to decrease his unacceptable behavior, and a weekly “consultation and training” session for his parents.

V. Findings of Fact and Conclusions of Law

The hearing officer found that the IEP as amended met plaintiff’s needs. The First Circuit has made it clear that judicial review of the decision below should not amount to a trial de novo. Colin K. by John K. v. Schmidt, 715 F.2d 1, 5 (1st Cir.1983). Rather, the district court is to make “bounded, independent decisions— bounded by the administrative record and additional evidence, and independent by virtue of being based on a preponderance of the evidence before the court.” Burlington II at 791. The question of the weight due the administrative findings of fact is left to the discretion of the trial court. Id. at 792. “The court, in recognition of the expertise of the administrative agency, must consider the findings carefully and endeavor to respond to the hearing officer’s resolution of each material issue. After such consideration, the court is free to accept or reject the findings in part or in whole.” Id.

Based on a preponderance of all the evidence before me, I make the following findings. I accept the hearing officer’s finding that plaintiff functions intellectually at the lower end of the moderately retarded range (with functional academic development at the kindergarten to first grade level) and that he exhibits socially unacceptable sexual and aggressive behavior. The hearing officer found that this included cruelty and sexual aggression directed at animals and inappropriate touching of females. Evidence at trial concerning plaintiff’s behavior since the hearing supports these conclusions and establishes that such behavior has continued without interruption.

I also accept the hearing officer’s finding that plaintiff has demonstrated the ability to exercise internal controls over his sexual and aggressive drives within the school environment. The testimony at trial of Mr. Handen and Dr. Paul reinforced Mrs. Thomson’s testimony that he was able to comply with acceptable behavioral standards in a structured setting.

The hearing officer further found that plaintiff was achieving effective educational progress, that his breaches of acceptable social standards outside the school situation were isolated, and that he had thus demonstrated a capacity to generalize his training in daily living. After careful consideration of the evidence upon which her finding was based and of the evidence presented at trial concerning plaintiff’s behavior in unstructured situations, I reject these conclusions.

The preponderance of all evidence compels a finding that plaintiff cannot adhere to acceptable standards of behavior when not under supervision or in a carefully controlled setting. I am mindful that much of the more extreme sexual and other disruptive behavior occurred in evaluative settings unfamiliar to plaintiff; two of these were residential schools, and at FPS he understood he might be placed there. However, I credit Dr. Spencer’s testimony that plaintiff’s behavior was not attributable to the evaluative setting; that in her experience prospective students were generally more hesitant and well behaved than usual when coming to the school for evaluation. Moreover, plaintiff behaved inappropriately not only in every evaluative setting where plaintiff was seen, but in his own neighborhood around home and school. Plaintiff on numerous occasions attempted to engage in sexual play with dogs. He has repeatedly entered a neighbor’s house without permission and refused to leave, and refused to leave automobiles. During his eight-week evaluative stay at Bradley Hospital, plaintiff engaged in inappropriate touching and other improprieties several times each day when left alone. Even Mrs. Thomson described an incident when plaintiff disrupted a high school football game which he attended without supervision; she did not believe he could behave acceptably at such events unless supervised. The additional evidence received at trial made it clear that plaintiff’s unacceptable actions do not occur merely as isolated instances but rather are a continuing and consistent problem.

All witnesses agreed and I find that the ability to generalize social and behavioral skills learned in the classroom is an appropriate part of a special educational program for mentally retarded persons such as plaintiff. David’s need for training to enable him to generalize behavioral control learned in school is therefore one that should be addressed by his IEP.

I accept the conclusion of plaintiff’s experts that the Dartmouth IEP as amended was not adequate to meet plaintiff’s need to learn to generalize social skills because it did not provide for consistent response to his behavior and training in control of them throughout his waking hours. A residential program is necessary in order to teach plaintiff to behave appropriately in situations lacking external controls. I find that without such a program plaintiff’s behavior is likely to continue and agree with the hearing officer’s finding that such behavior would prevent him from being accepted in a community-based residence or workshop for which he is otherwise well suited.

The state standard mandates that an IEP assure plaintiff’s maximum possible development. I find persuasive the unanimous opinion of plaintiff’s experts that plaintiff requires a residential training program in order to achieve the maximum progress in development in his ability to function as independently as possible and that a residential setting is the least restrictive environment in which plaintiffs educational needs could currently be met. Therefore, I conclude that plaintiff has met the burden of proving that the Dartmouth IEP for 1982-83 (as amended) is inadequate; and I find that placement in a residential school providing a program such as that offered by FPS is the educational placement appropriate for plaintiff.

No later than September 28,1984 counsel shall file an agreed form of judgment in accordance herewith, or, if they cannot agree, each shall file a proposed judgment.

      . The first count of his complaint alleges substantive error in the BSEA finding and a consequent violation of the EAHCA. Counts II and III allege violations of the procedural requirements of the EAHCA in that the hearing officer was not impartial; and that plaintiffs parents were not given adequate notice of or assured full participation in the development of the challenged IEP. Count IV alleges that these actions constituted discrimination in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and Count V that such discrimination also violated plaintiff's right to equal protection under the Fourteenth Amendment to the United States Constitution. Count VII raises the pendent claim of violation of the relevant state statute, Mass.Gen.Laws ch. 71B, and ch. 15, § 1M. Plaintiff voluntarily dismissed Count VI, based on the Massachusetts Constitution.

      . The state argues that Eleventh Amendment considerations embodied in the holding of Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) bar a federal court from ordering a state agency to comply with state standards. However, the First Circuit, writing after the Pennhurst decision, expressly held that the state standard was incorporated by reference in the federal EAH-CA, Burlington II at 789 thus the case here presents a question of compliance with federal law. The state’s further Eleventh Amendment argument is unpersuasive.

      . None deals directly with the issue of what constitutes the substantive standard under state law.

      . The hearing officer listed the following four findings in support of her conclusion that plaintiff could generalize appropriate behavior most of the time at home and in the community: (1) plaintiff always calls his mother to report that he has arrived at a neighbor’s house; (2) he completes chores at his father's butcher shop acceptably; (3) he behaves appropriately when he goes with his father to a restaurant for breakfast on Saturdays; and (4) the DMH respite worker who provided weekend trips for plaintiff about seven times during 1982-83 has not reported any aberrant behavior. These findings show that plaintiff can act appropriately in situations with a parent or surrogate present, but I do not see in them indications of any ability to behave acceptably when not so supervised.

      . I further accept the hearing officer’s finding that plaintiff’s IEP "should be directed towards maximizing his potential for eventual placement in a community-based program or private employment.” It concurs with plaintiffs’ experts’ opinion that the goal of any special education program is to assist the student to maximize the ability to be independent as an adult. In light of this unanimity, defendants' contention that plaintiff’s social behavior problems are unrelated to his educational needs must be dismissed.

      . In light of Burlington II, the cases cited by defendants for the proposition that the federal minimum standard requires less are inapposite.

      . Defendants have not met their burden of persuading the court of circumstances rendering the determination as to 1982-83 inappropriate for subsequent years. Burlington II at 795. The 1983-84 IEP developed by defendants was never the subject of any administrative hearing and is not before me.

      . In view of this disposition, I do not address plaintiff's procedural claims, raised in Counts II, III and VII of the complaint. Counts IV and V must be dismissed in light of Smith v. Robinson, — U.S. —, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984), which also makes clear that attorney’s fees are not available to plaintiff in this action.