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Sylvan Center Told to Refund Tutoring Costs
New York Law Journal
June 19, 2007
A Brooklyn judge has ordered the Sylvan Learning Center to refund more than $11,000 to a mother who claimed that the tutoring company failed to live up to its guarantee that her two children would "improve at least one full grade level."
Civil Court Judge Genine D. Edwards awarded pro se plaintiff Terrain Drew the $11,338 she paid Sylvan to tutor her second-grade daughter and fourth-grade son and $105 for Sylvan's violation of the General Business Law, as well as costs and interest.
"By taking advantage of a consumer who was vested in her children's academic success and who was desperate to have her children beat the odds, Sylvan presented itself as a viable recourse," Edwards held in Drew v. Sylvan Learning Center Corp., 35448/2003.
"There is absolutely no reason why a consumer interested in improving her children's academic status should not be made aware, prior to engaging Sylvan's services, that these services cannot, with any reasonable probability, guarantee academic success."
Sylvan maintains 10 branches in New York City and more than 1,100 in the United States and Canada. Founded in 1979, the company ranks as the largest private tutoring business in North America. Its expansion in recent years has coincided with the No Child Left Behind Act's requirement that "failing" schools offer supplemental tutoring.
Drew brought her two children to Sylvan for tutoring in 2002. In her pro se case against the center, she cited a brochure promoting "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."
Drew borrowed $11,000 and enrolled her son and daughter.
After eight months of thrice-weekly lessons, both children failed to meet the Board of Education's grade-level requirements, according to Edwards' decision. Drew's daughter was required to repeat the second grade.
Drew subsequently filed suit, claiming that the tutoring company failed to live up to its guarantee.
At trial, Sylvan countered that Drew's daughter's reading score rose from "not satisfactory" to "satisfactory" and that her son had improved according to Sylvan's own assessments using the California Achievement Test.
"We did do our best with what we have to offer," testified Donna Waters, a center director at Sylvan's Sheepshead Bay, N.Y., branch.
Using a fraudulent-misrepresentation framework, such purported improvements would not satisfy the "Sylvan Guarantee" that its pupils would improve one grade level, Edwards ruled. The decision also cited a disclaimer in the company's Summary of Diagnostic Assessment and Progress Assessment Report -- which Drew did not receive prior to enrollment -- that "results reported as grade equivalent are not expected to equal the classroom grade level."
The guarantee "implies, since defendant is not a school, that the term 'grade level' refers to achievement based upon a local or national school standard," Edwards wrote. On the other hand, the "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. Additionally, the defendant failed to disclose to the plaintiff whether the standards it uses to measure grade-level improvement were aligned with the standards of the Board of Education of the City of New York ... These facts amount to a misrepresentation of a material fact."
The judge ordered the company to refund Drew's $11,338 with interest dating back to February 2002.
ACCOUNTABILITY
"Sylvan must be held accountable for its claims of success," Edwards wrote. "Sylvan needs to prove that its services and its process for measuring success are aligned with the school standards of the state in which it operates. Anything less is unconscionable. Why would a parent be interested in a standard if that standard does not meet or exceed the standard by which her children are measured?
"Sylvan needs to re-examine its strategy and give strong consideration to its marketing and service delivery practices. Its current practices not only prey on desperate parents eager for their children to succeed in school, it capitalizes on the vulnerability of our children, and that is intolerable."
Drew could not be reached for comment.
Solo practitioner Daniel S. Perlman represented Sylvan.
"Now we appeal," Perlman said. "None of this was brought up by the plaintiff."
A spokeswoman for Sylvan said that the lawsuit was against an independent franchisee, neither owned nor operated by the parent company.
"In the six years that I've been with Sylvan, I'm unaware of a single case of this nature," spokeswoman Wendy Magus said. "Sylvan holds our centers to high standards and has a proven track record of achieving results for students and families. We take the allegations ... very seriously."
