Anybody that wants to go to law school must take the LSAT, law school admission test sponsored by the law school admission Council (LSAC) . The LSAT is a standardized test consisting of 100 multiple-choice questions ( Binno v. American Bar Association, 2012 WL 4513617, *1 (E.D. Mich. September 30, 2012)), divided into five sections labeled as either reading comprehension, analytical reasoning, or logical reasoning ( Department of Fair Employment and Housing v. Law School Admission Council Inc., 2012 WL 4119827, *1 (N.D. Cal. September 18, 2012)). Approximately 1/4 of those questions are analytical reading questions or logic game questions. Binno v. American Bar Association, 2012 WL 4513617, *1 (E.D. Mich. September 30, 2012). Those questions, in particular, require spatial reasoning and diagramming the visual concept for successful completion by most applicants). Id. This creates two issues. First, does the Law School Admission Council set up the accommodation process for taking the test in a discriminatory manner? Second, if the LSAT itself is a test that is discriminatory, would it be a reasonable accommodation to waive the test? If waiving the test would mean that the school would be subject to sanction from the American Bar Association, does that mean that the American Bar Association itself can be sued?
The two cases mentioned above answer both of the questions posed. In the California Department of Fair Employment and Housing case, they filed suit against the Law School Admission Council seeking damages and injunctive relief over the failures of the LSAT to provide accommodation for persons with disabilities who were to take the test (LSAT). Department of Fair Employment and Housing 2012 WL 4119827, at *1. In particular, the LSAC required that candidates requesting extra time or other accommodation for a cognitive or psychological impairment submit to psychoeducational and neuropsychological testing and provide a full diagnostic report that included records of the candidates aptitude and achievement testing. Id. They claimed also that the LSAC required applicant to disclose in an accommodation request whether or not they took prescribed medication during the medical evaluation of their condition and if they did not take their medication to explain to the failure to do so. Id. Also, it was alleged that the LSAC has a policy of flagging the LSAT exam scores of individuals who receive disability accommodation for extra time. Id. at*2. That is, the LSAC includes a notation on the accommodated individual’s score report that the score was achieved under nonstandard time constraints and further, excluded extended-time scores when calculating LSAT percentile rankings. Id. The consequence of that practice is that an individual receiving extended time on the LSAT has that fact disclosed to all law schools receiving that individual’s score report. Id. The Department of Fair Employment and Housing of California filed suit in state court alleging violations of the Unruh Act, which provides that violation of the ADA is also a violation of that act and allows for monetary damages. Id. at *5 The LSAC removed the case to federal court, and the United States Department of Justice then got involved and filed a statement of interest. Id. at *2.
The first argument that the LSAC made was that the Department of Fair Employment and Housing of California did not have jurisdiction to investigate the ADA claims. The court was having none of that argument as the Unruh Act, as mentioned above, is explicitly tied into the Americans with Disabilities Act.
The second argument that the LSAC made was that the Department of Fair Employment and Housing only had the authority to investigate claims violating the Americans with Disabilities Act under the rules as they existed prior to the amendments act. The court was having none of this argument either. In particular, the court noted that as early as 1977 when the California legislature amended the fair employment practices act to include physical handicap as a prohibited basis for discrimination, the legislature declared that it was the policy of California to encourage and enable individuals with a disability to participate fully in the social and economic life of the state. Id. at *6. Nineteen years after that, in response to the passage of the Americans with Disabilities Act, they amended the Unruh Act to state that California law would be strengthened where it was weaker than the ADA and retained when it provided more protection than the ADA. Id. The court also cited to another case that said that the Americans With Disabilities Act is a floor under state law. Id. at *7. Finally, the court looked to the legislative history and determined that it was the intent of the California legislature to incorporate the ADA into the Unruh Act as a system or body of laws. Id. at *9-10. Accordingly, the court held that a Department of Fair Employment And Housing had the authority to investigate claims arising out of other matters besides employment and to do so using the Americans with Disabilities Act post-amendments.Id.
With the procedural stuff out of the way, Judge Chen of the northern district of California turned to the merits of the plaintiff’s claim with respect to seeing whether they could survive a motion to dismiss. The first cause of action alleged that the LSAC violated the rights of the class members under the Fair Employment and Housing Act of California by requiring applicants to take the medication prescribed for their disabilities while being evaluated for accommodations or explain their failure to do so. Id. at *13. In saying that this particular allegation could survive a motion to dismiss, Judge Chen said that requiring applicants to take prescribed medication while being evaluated for accommodationss not only contravened the the definition under the Americans with Disabilities Act as amended (which as we have discussed elsewhere in this blog, specifically says that mitigating measures are not to be included when it comes to assessing whether a person has a disability unless you are dealing with ordinary eyeglasses), but also had the legal effect of erroneously and wrongfully denying an applicant the legal status of a person with a disability , thereby depriving him or her of the right to accommodations that he or she would otherwise be entitled to. Id. at *15.
With respect to the flagging of scores, Judge Chen said that this allegation could go forward as well. In particular, the system of flagging ensures that the examination does not accurately reflect the individual’s aptitude or achievement level. Id. at*17. In particular, Judge Chen, relying on a decision that was not published but was not configured as such so as to be problematic with citing to, said that the test must be set up in such a way so as to allow persons with disabilities to demonstrate their true ability. Id. That is, test providers had a duty to ensure that their tests are selected and administered the equally measure the ability of persons with and without disabilities and if tests providers met that burden, then there was no reason to flag the tests of test takers with disabilities receiving accommodation. Id.
The third cause of action alleged that the flagging policy unlawfully coerced and discouraged potential test takers from seeking accommodations or punished those who received accommodations in violation of the Americans with Disabilities Act. Id. at *18. Once again, this cause of action was allowed to go forward as the court believed that the flagging policy necessarily announced an individual’s disability above all else and that such a policy could not be reconciled with the Americans with Disabilities Act’s mandate that testing entities administer exams in order to best ensure that the exam results reflect individual skills and achievement levels and not their disability. Id. at *18.
The fourth cause of action claimed that the law school admission Council (LSAC) violated the Americans with Disabilities Act by requiring excessive documentation. Judge Chen also allowed this cause of action the go forward as well. In particular, he noted that the Americans with Disabilities Act implementing regulations state that a private entity offering the examination covered by the Americans with Disabilities Act has to show that any requests for documentation be reasonable and limited to the need for the modification, accommodation, or auxiliary aid or service requested. Id. at *20. In particular, Judge Chen noted that excessive or unreasonable documentation could deny an applicant’s access to an examination in violation of the ADA. Id. He also referenced the Department of Justice’s 2010 revisions to the federal regulation where they stated that they discovered that requests made by testing entities for documentation regarding the existence of an individual disability and his or her needs or modification/auxiliary aid or service was often inappropriate or burdensome. Id. Finally, Judge Chen said that the obligation to refrain from inappropriate or burdensome request for documentation came from the law itself and not from any regulations. Id. at *21. Accordingly, he denied the motion to dismiss this particular cause of action and also held that a private cause of action existed. For the same reasons, he allowed the fifth cause of action, which alleged that excessive documentation requirements coerced and discouraged the plaintiffs from seeking disability related accommodations, because by allowing the fourth cause of action you clearly reached the conclusion that requiring excessive documentation is a way of coercing and discouraging people with disabilities from seeking disability related accommodations. Id. at *22.
Preventive law tips: Some things to keep in mind. First, every state has their own antidiscrimination law with respect to persons with disabilities. Depending on how those laws are tied into the Americans with Disabilities Act, the entities enforcing those laws may have wide-ranging authority to investigate claims arising from the Americans with Disabilities Act. Second, depending upon how those state laws are configured, it is also quite possible that those state laws adjust as the Americans with Disabilities Act is amended over time. Third, an entity needs to review its requirements for having a person with a disability request an accommodation or a modification to a program or activity with respect to the documentation it wants before deciding to make the accommodation/modification (the big impact here is likely to be on the employment side and on the title II side-example colleges and universities requesting elaborate documentation in order to accommodate a student with a disability). Excessive or unreasonable documentation requests are likely to be problematic. Finally, if a standardized test is flagging scores, this particular case gives a lot of ammunition to those seeking to challenge that practice.
But what if the accommodation for the test taking is not the problem, but rather the test itself is the problem. That is, if a person with a particular kind of disability simply cannot answer the test as configured, does that mean that the test itself should be waived? What if the school were to waive the test and by doing so would subject itself to sanction from the accrediting body, in this case the American Bar Association. Would you then be able to sue the accrediting body for violations of the Americans with Disabilities Act? This was precisely the case in the Binno case mentioned above. In this case, a blind person who spoke three different languages fluently, completed high school education in three years, graduated from a four-year college, and obtained a high security clearance and employment with United States Department of Homeland Security, was unable to get into law school because his disability made it impossible to answer 25% of the test effectively. Id. at *1-2. The American Bar Association regulations demand that a valid and effective test be used by law schools in selecting their entering class. Id. at *5. Furthermore, if a law school waves the test, they can be subject to sanction from the American Bar Association. Id. at *4. In particular the plaintiff in this case alleged that he was unable to obtain admission to a law school because of the fear of sanctions, and therefore, the American Bar Association should be held liable for that. The court granted the American Bar Association motion to dismiss for two reasons. First, the American Bar Association did not administer, develop or control the format of the LSAT. Id. at *6. Second, nothing in the plaintiff’s complaint alleged that any of the law schools to which he applied to made a request to the American Bar Association for a variance. Id. at *5. Accordingly, the court held that the plaintiff lacked standing to bring this action against the American Bar Association for the reasons discussed.
Tips: If the person with a disability is truly prevented from demonstrating his or her abilities on the LSAT due to the nature of the test, then it would behoove that person to get in writing from one of the law schools that the reason they did not seek a waiver was the fear of sanctions. Alternatively, such a person would want to ask the law school to seek a waiver from the American Bar Association. Second, nothing in this case suggests that the regulations of the American Bar Association itself with respect to how they are set up for persons with disabilities in terms of accrediting law schools would not be subject to a challenge if those regulations were discriminatory (full disclosure: this author is is aware, through his participation in a committee, that the American Bar Association is revising their accreditation standards and that persons with an interest in the rights of persons with disabilities had a chance to give their input into that process, though I am not sure what the final result was). Third, if the regulations are discriminatory, the best approach for the plaintiff may be to sue the law school itself. If it is the regulations that are the problem, the law school been could then plead in the American Bar Association into that dispute.