My usual practice is to put up a blog entry on Mondays. However, Monday is Memorial Day, and so I thought I would put up a blog entry today, especially since there has been some big news this week. In particular, the Department of Fair Employment and Housing of the State of California, United States of America, individual plaintiffs, and the LSAC have entered into a consent decree. The terms of the consent decree, while no liability is admitted, are such that if you are a purveyor of standardized testing, the world as you used to know it has now ended and you are entering a completely new world. To see why, see below.

In a previous blog entry, I have been discussing the litigation against the LSAC regarding their administration of the law school admission test with respect to persons with disabilities. As mentioned in that blog entry, there is now a consent decree.

This consent decree actually run 78 pages, and what I plan to do is highlight many of the provisions of that consent decree, all of which go to show how the standardized testing world is in for radical change. The highlights appear below:

1. LSAC admits no liability. That said, considering what follows LSAC clearly believed there was a substantial risk of liability if it took it to trial.

2. The LSAC must administer the LSAT so as to best ensure that when an individual with a disability takes the test, the LSAT results accurately reflect the individual’s aptitude or achievement level or whatever other factor the examination purports to measure rather than reflects the individual’s disability.

The best ensure language is a critical point as that means the law school admission Council has to be sure to work with the individual to ensure that the individual with a disability is getting to the same starting line as a person without a disability.

3. The LSAC has to provide appropriate auxiliary aids for persons with impaired sensory, manual, or speaking skills, unless the LSAC can demonstrate that doing so would fundamentally alter the measurement of the skills or knowledge the examination is intended to test or would result in undue burden.

This is really nothing more than a restatement of the law.

4. The LSAC shall ensure the document requests are reasonable and limited to the need for assessing the accommodation requested.

This is huge. Many standardized testers require a tremendous amount of documentation before they will grant an accommodation. This particular part of the settlement means that any documentation requests has to be reasonable and limited to the need for assessing the accommodation.

5. The consent decree further explains the parameters the LSAC has to use with respect to documentation requests. In particular, candidates seeking to take the LSAT whose documentation showed that they were previously approved to receive testing accommodations on any standardized examination offered in the United States related to application for postsecondary admissions for which they were previously approved do not have to give the LSAT any documentation other than: proof of the approval for such testing accommodations; and certification by the candidate by checking a box on the candidate form that said the candidate is still experiencing the functional limitation caused by the disabilities for which the requested accommodation was approved. Also, the consent decree details the acceptable proof, which consists of a letter or similar documentation from the other test sponsor confirming that the testing accommodations were approved and specifically identifying what those approved testing accommodations were. In such a case, the LSAC has no choice under the consent decree but to grant those previously approved testing accommodations. The list of accommodations that fall under this automatic approval includes extended time, up to double time, and many other testing accommodations listed in an exhibit to the consent decree. This particular paragraph only applies if the testing can be administered on one day. If testing cannot administered on one day, then other provisions of the consent decree come into effect.

The double time piece is huge. Time and a half is typical, but double time isn’t necessarily so. Also, the list of accommodations that must be granted automatically by the LSAC is quite extensive (29 different accommodations fall into this category).

6. If the request for reasonable modification does not fall into paragraph 5 above, any request by the LSAC for documentation has to be reasonable and limited to the need for assessing the accommodation requested.

As mentioned above, this is huge. It means that the expansive documentation requests that are fairly typical are no longer in play.

7. The LSAC when reviewing accommodation requests is not allowed to reevaluate whether the candidate has a covered disability within the meaning of the ADA.

This is also big. It isn’t unusual for standardized testers to not only ask for extensive documentation but also question whether that documentation establishes a disability. That approach is severely curtailed by this provision.

8. With respect to a testing accommodation not subject to automatic approval, the LSAC has to consider all facts and explanations offered by the candidate regarding his or her history or the need for the requested testing accommodations, including factors such as late in life diagnosis of disability, recent onset of a disability, progression of the disability, lack of resources, or having a nontraditional educational background.

Another big thing here. It hasn’t been unusual for standardized testers to insist on a childhood diagnosis of a disability before they will accommodate. This particular provision eliminates that practice.

9. The LSAC has to give considerable weight to documentation related to prior testing accommodations received in similar situations not covered by the paragraph dealing with automatic approval of accommodations as well as to testing accommodations provided in response to an IEP or § 504 plan.

This is also big. This means that students who entered college having had an IEP or § 504 plan can now, which has not been true in the past based on my experience anyway, use that information to document the disability and to show what accommodations are needed.

10. The LSAC has to consider documentation provided by a qualified professional who has made an individualized assessment of the candidate.

This is also significant because this means that the LSAC is going to have to be flexible with respect to the documentation it considers from an applicant. That is, if the documentation is not in a format that they are used to seeing, this provision mean they cannot dismiss that documentation out of hand and insist on documentation in their preferred format.

11. The LSAC has to reach back five years instead of the three years with respect to the recency of testing to support testing accommodation based on a mental or cognitive impairment.

Reaching back five years instead of three years is incredibly significant.

12. LSAC cannot reject a request for particular testing accommodation based solely on the candidate’s average or above-average IQ score and/or high level of academic success.

This particular provision is nothing more than what we have already seen in the Department of Justice regulations implementing the amendment to the Americans with Disabilities Act. In particular, the Department of Justice took the position there and here that just because a person with a disability is smart or has achieved academically does not mean that disability doesn’t still exist.

13. The LSAC is prohibited from rejecting or denying a candidate’s application for a particular testing accommodation solely because the candidate has no formal history of receiving that testing accommodation.

Another provision with significant impact. This means that the LSAC cannot lock themselves into prior testing history to say that they don’t need to start something new because it has never been done before.

14. The LSAC website needs to be updated to reflect the terms of the consent decree.

15. The LSAC has to modify the deadline information on its website and in its accommodations request packet to make clear that students seeking accommodations must submit the request for testing accommodation together with all supporting documentation by the registration deadline in order to be considered for testing accommodations. That registration deadline is also the cutoff for the LSAC to receive any supplemental documentation requested by the LSAC or submitted by the candidate after the original request for accommodations were made. The LSAC, barring unforeseen circumstances, has to respond to each request for testing accommodation within 14 business days of its receipt.

Obviously, the big thing here is that the LSAC unless unforeseen circumstances exist, has 14 business days to respond to the request for accommodation.

16. LSAC will eliminate the language that insisted if a person was taking medication and was not evaluated while on medication, that deviation had to be explained by the evaluator. That said, the LSAC does have the right to continue to ask evaluators whether a candidate was on his or her prescribed medication during the evaluation and to ask the evaluator to comment if such commenting is relevant and appropriate.

This is a big change from prior practice.

17. Paragraphs 5-16 above, will go into effect at the very next administration of the LSAT following entry of the consent decree by the court unless the next administration of the LSAT is less than two months away from the effective date of the consent decree. In that case, the paragraph will go into effect for the second administration of the LSAT following the effective date of the consent decree.

18. The LSAC has to increase the number of expert consultants and diversify the areas of expertise of the expert consultants that it uses to review and evaluate request for testing accommodations.

Another significant provision because it means that the people evaluating requests for accommodations arguably will have to have specific and possibly high level training to evaluate those requests (see also discussion of the Panel below).

19. The LSAC has to implement best practices as established by a panel of experts. In particular:

A. The panel is going to consist of five people 2 selected by the LSAC and 2 selected by the United States and the Department of Fair Employment and Housing of California as well as a fifth person selected by those 4 experts prepared from a list prepared by the United States and the Department of Fair Employment and Housing of California. With respect to the experts, one of those experts must have expertise in the provision of testing accommodations within the context of standardized test administration and the other must have expertise in cognitive disabilities. The fifth panel member is a person with expertise in ADA compliance. That particular person is chosen by the four experts from a list of three people given to them by United States and the Department of Fair Employment and Housing of California. The fifth person cannot have assisted or consulted with any party involved in the litigation.

B. None of the panelists can be an attorney that has previously represented a party adverse to the LSAC or to United States in a lawsuit or government agency proceeding involving the LSAC.

C. Any members of the panel are prohibited from personally representing anyone or serving as an expert witness for anyone who is adverse to the LSAC in any pending lawsuit or government agency proceeding. This prohibition lasts through the period of service under the consent decree (the consent decree is for four years), as well as if the panel is reconvened pursuant to the consent decree.

D. The purpose of the panel will be to prepare a written report establishing best practices comporting with the best ensure requirements of the regulations. Once the panel decides that something is a best practice, that best practice becomes a safe harbor for the LSAC. The panel will determine how many of the five panel members have to agree in order for something to be imposed as a best practice.

E. The consent decree tells the panel that they have to address several issues including:

1)diversification of expert consultants, in terms of numbers and areas of expertise;

2)the type and scope of appropriate documentation that may be requested from candidates asking for an accommodation that might not fall within the automatic approval provisions;

3) reviewing of testing accommodation requests. In particular: considering and establishing the appropriate qualification for persons, such as LSAC staff and/or outside consultants, who make the substantive adverse decision on request for testing accommodations; determining whether more than one qualified professional needs to review a document of request for testing accommodations before the LSAC can deny the request in whole or in part;

4) establishing criteria and guidelines for use by persons who review and evaluate testing accommodation requests as well as considering whether there should be particular parameters for written recommendations from any outside consultant who reviews or evaluates requests for testing accommodations and what those parameters should be;

5) considering whether there should be particular parameters for internal documentation with respect to written decision by LSAC personnel who make substantive decisions on testing accommodations requests and what those parameters should be;

6) considering whether there should be particular parameters for written explanations provided by the LSAC to candidates whose testing accommodation requests are partially or fully denied and what those parameters should be;

7) considering whether there should be automatic review of partial and/or full denials and if so, how such reviews should be conducted;

8) considering whether there should be an appeals process beyond what is already provided by the LSAC with respect to candidates wanting to seek review of LSAC decisions denying their request for an accommodation and what that process should be relative to the LSAC’s existing registration deadline;

9) considering and establishing parameters, such as content and timing of, training for people who evaluate or review testing accommodation requests (both with respect to LSAC staff and to outside consultants).

Obviously, paragraph E will have a fundamental impact on how the LSAC goes about operating with respect to handling reasonable accommodation requests from applicants.

F. The panel has six months to complete the report, though additional time may be requested.

This panel for lack of a better word is essentially analogous to an administrative agency with respect to the regulatory process. That is, essentially what this panel is doing is writing regulations for the LSAC to follow (proposing the regulation). Once it does that, it sends out the regulation for commenting. That is, all the parties to the litigation will have at least two weeks to comment on the panel’s draft of the best practices. If the best practice somehow violates the ADA, it’s implementing regulations or California law, a party can take that up with the court.

G. Once the best practices are online, the LSAC has to implement them no later than six months following the expiration of the notice required for challenging the best practice or a written agreement by the parties not to challenge the best practices, whichever comes first.

H. The LSAC has to make annual reports with respect to how it is implementing the best practices established by the panel. The parties to the litigation have the ability to request that the panel be reconvened to make recommendations regarding whether revisions are necessary to a particular best practice and a timeframe is given for appealing to the court if the parties believe the best practices are not in compliance with the relevant laws.

I. The panel is given broad powers to accomplish its goals, including having ex parte communications with the parties (subject to certain limitations), requesting meeting with the parties, and speaking to anyone the panel deems necessary. If ex parte communications occur, all other panel members must be aware and approve those communications. Further, there has to be a log kept by the panel members as to who they communicated with and the date of those communications.

J. The report of the panel will be made publicly available. If there is any confidential information in the final report, a protective order can be sought.

K. Who bears the cost of this panel? How does a person serving on this panel get paid? Certainly, they don’t do it for free. The answer is that all reasonable fees, costs and expenses of the panel are the responsibility of the LSAC. How much do they get paid? Unclear. Panel members are to be paid a, “standard reasonable rate” to be determined by the parties following identification of the proposed panel members. If the party can’t reach agreement on the rate to be paid, the issue will be decided by the magistrate judge on this case. It is the responsibility of the LSAC to reimburse all reasonable expenses incurred by the panel or any of its members in the course of the performance of their duties as panel members. Any travel of the panel members is charged to the LSAC’s corporate account. The court is the final decider of what costs and expenses are reimbursed by the LSAC.

20. The LSAC has to establish a tracking and/or maintenance of testing accommodation database. What goes into that database is very specifically discussed in the consent decree and the LSAC has eight weeks after the effective date of the consent decree to have the database in place. The database also has to be put in place with regards to lawsuits or complaints filed with a governmental agency alleging that the LSAC improperly failed to provide testing accommodations.

21. A separate electronic mailbox must be set up and dedicated for the receipt of complaints alleging that the LSAC improperly failed to provide testing accommodations following the LSAC’s final determination of a test taker’s request for testing accommodations on the LSAT.

22. The LSAC has to permanently discontinue all forms of the practice of annotating score reports of candidates who received the testing accommodation of extended test time due to disability.

It is impossible to overstate the importance of this particular provision. As is well known, the LSAC has had a practice of flagging the scores of people who take testing with accommodations. The result of such flagging meant that the law schools knew that a person had a disability and also were given reason to believe that their test score was distorted. Such a practice goes against the very underpinnings of the ADA, which demands that a person with a disability be placed at the same starting line as a person without a disability. If the person with a disability is at the same starting line as a person without a disability, there should be no need to annotate the scores as the score should mean the same thing.

23. Damages and fees to be paid by the LSAC

A. The LSAC agreed to pay $55,000 as a civil penalty. The LSAC while paying the money did not admit to liability.

B. LSAC to pay $7,675,000 in compensatory damages. In particular: the Department of Fair Employment and Housing of California gets $585,000; the United States get $225,000; and the individual plaintiffs get $135,000.

C. A compensation fund for individuals who requested testing accommodation for the LSAT between January 1, 2009 and May 20, 2014 is established and that compensation fund to contain $6,730,000. The compensation fund to go about its business in a manner that compensation funds are run when massive claims are involved.

D. LSAC to pay $900,000 in attorneys fees to the Department of Fair Employment and Housing of California and $100,000 to the attorneys for the individual plaintiffs. Also, the Department of Fair Employment and Housing of California is entitled to reasonable attorney fees and costs for work performed on any prevailing motion with respect to enforcing the consent decree.

24. Individuals that requested testing accommodation from the LSAC between January 1, 2009 and the date of the decree who were denied accommodations are entitled to reregister and take the LSAT and to reapply for testing accommodations pursuant to the terms of the consent decree. Standard fees apply. With respect to the named plaintiffs, they get one free administration of the LSAT with their request for testing accommodation handled pursuant to the terms of the consent decree.

25. The consent decree has to be posted on the LSAC’s website.

26. The LSAC’s website must contain specific language specified in the consent decree stating that they do not annotate scores and that any scores earned as a result of testing accommodations are reported in the same manner as scores not involving accommodations.

27. In addition to the panel, an ADA monitor is set up.

A. The purpose of the ADA monitor is to assist United States, the Department of Fair Employment and Housing of California and the court in evaluating the LSAC’s compliance with the decree.

B. None of the parties have supervisory authority over the ADA monitor’s activities nor can they interfere with any of the functions of that person.

C. The ADA monitor cannot be an employee or current contractor of any party to the litigation. Person cannot be affiliated with any party and cannot be a person who has assisted or consulted with any party with respect to the litigation.

3. The person who is the ADA monitor unless the parties approved, cannot be offered or guaranteed employment or future benefits in any form, including a position as a consultant or independent contractor, during the term of the consent decree and for a period of two years following expiration of this decree. Further, during the term of the consent decree, the ADA monitor cannot personally represent anyone, or serve as an expert witness for anyone, who is adverse to the LSAC or of any of the plaintiffs in any pending lawsuit or government agency proceeding.

This particular provision is huge as it is going to restrict the pool of people that may be the ADA monitor. In particular, the ADA monitor cannot have dealings with any of the parties to the litigation during the consent decree and for a period of two years afterwards. Further, the “future benefits in any form,” language is extremely broad. For example, this language is so broad that it would seem to prohibit the ADA monitor from serving as a mediator during the course of the consent decree AND for two years after the consent decree is over if any of these parties are involved in regardless of what their particular suit might be about.

4. The ADA monitor is responsible for auditing the LSAC operations and must provide a written report of the audit.

5. The cost of the ADA monitor is the responsibility of the LSAC. The fee that the ADA monitor gets paid is the same process as how panel members would get paid. The ADA monitor does have to provide sufficiently detailed monthly of the invoices justifying any fees, costs, and expenses.

28. The court retains continuing exclusive jurisdiction to enforce the decree. There is also a procedure set up to deal with any disputes arising from the carrying out of the decree.

29. The LSAC’s website has to comply with the level A and level AA success criteria and conformance requirements of the web content accessibility guidelines 2.0 published by the World Wide Web Consortium. By website that includes all webpages, web applications, resources, and services within the website domain, its subdomain, and related domains as well as all the information, resources, files, databases, images, graphics, text, audio, video, multimedia services, cold, and any other communication sent by or retrieved from the website to the member to members of the public accessing it (i.e. everything).

Takeaways:
1) If you are a standardized test taker, your world has turned upside down. This consent decree is an excellent roadmap as to good preventive steps that can be taken. It is also an excellent idea of the risks involved if those steps are not taken.

2) The panel report is publicly available and so one wonders whether other testing agencies could not adopt the panel’s report best practices for themselves and then try to claim a safe harbor. Such an argument is interesting, but since this panel is not an administrative agency doing rulemaking, it arguably would not carry the day. Nevertheless, while it might not be a safe harbor, it could very well be strong evidence of ADA compliance for that other testing entity.

4 Responses to If you do standardized testing, your world as you know it has ended

The LSAT consent decree and the subsequent case confirming it, with a few minor exceptions, is now having ramifications beyond the LSAT. In particular, Disability Compliance for Higher Education reports that the college board (which administers the SAT, the PSAT, SAT subject tests, and AP exam), that the vast majority of students already requiring accommodation protesting will receive automatic approval for those same accommodations. See here
https://www.collegeboard.org/students-with-disabilities/whats-new-2015-16 and here: https://www.collegeboard.org/students-with-disabilities/documentation-guidelines .

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