16:57, January 31 94 0 abajournal.com

2018-01-31 16:57:07
Plaintiff asks for consent decree extension in LSAT ADA accommodation action

Allegations in the contempt motion include take-it-or-leave-it offers with less time to take the test than requested, along with a short response period; wrongfully reporting those offers as requests “granted in full”; and altering internal documents to replace requested time with time that the LSAC counteroffered.

Also, the organization allegedly characterized extra-time requests denied for lack of documentation as “no decision,” according to the October 2017 motion filed by the California Department of Fair Employment and Housing. A hearing is scheduled for Feb. 23 in the U.S. District Court for the Northern District of California.

The lawsuit was brought by the CDFEH and the U.S. Department of Justice. The consent decree, entered with the U.S. District Court for the Northern District of California in May 2014, called for the LSAC to end its practice of flagging LSAT score reports for test-takers who received extra time and to pay $7.73 million in damages and penalties to compensate more than 6,000 people who had sought testing accommodations in the prior five years, according to a DOJ press release.

Some attorneys who represent individuals seeking Americans with Disabilities Act accommodations for entrance exams say they’ve had fewer LSAT cases since the consent decree was entered. However, they are not surprised by the contempt motion’s allegations.

“There’s a very puzzling sense in the [entrance exam] industry, certainly with the LSAT, that everybody is trying to pull a fast one, and people don’t have these disabilities,” says Jo Anne Simon, an education lawyer who represents people seeking test accommodations, and a New York state assembly member. “I think the LSAT seems to be the primary offender, and there was a level of hostility in the interaction that was not as apparent or present in the other organizations.”

The contempt motion seeks to extend the consent decree for two years, replace the monitor and allow the CDFEH access to all extra-time requests submitted. CDFEH director Kevin Kish says he doesn’t know how many times the LSAC has granted in full someone’s request for extra time on the LSAT, because they won’t provide access to those files.

The LSAC, which filed a response motion Jan. 12, told the ABA Journal that a neutral evaluator selected by both parties has found the organization is in compliance with the decree.

The “LSAC remains in compliance with the consent decree and will continue post-decree to seek to advance disability rights in educational testing, both through its own practices and through its advocacy for equity in education,” the organization told the ABA Journal in a statement.

In its response, the LSAC argued that the contempt allegations were based on “grossly inaccurate characterizations” from only three examinees. The response also argues that the requirements imposed “far exceed” industry norms and are unworkable.

Additionally, extra-time accommodations tend to result in an LSAT score that overpredicts someone’s first-year law school performance, according to the response. A report released by the LSAC in 2017 details a study the organization did about the predictive validity for LSAT scores earned with testing condition accommodations. It reported that the ranked standing of extra-time test takers, in regards to first-year performance, tended to be “substantially” lower than their LSAT score ranked standing.

Many experts hired by the LSAC are predisposed to denying accommodations, says Charles Weiner, a Pennsylvania lawyer who focuses his practice on education law and testing accommodations.

“The LSAC has been putting out this narrative that giving extra time gives one an unfair advantage. It doesn’t surprise me that they continue to put out that narrative, and they use their own resources to support this narrative, ignoring research that shows otherwise,” says Weiner, a onetime member of the American Bar Association’s Commission on Disability Rights.

“I’ve had depositions with the [LSAC], and they would laugh about a person’s disability. They would say that the person’s score was not reflective of reality, and that the person was deliberately throwing test assessments,” he adds.

Weiner has found Education Testing Services, which administers the GRE, to be more responsive. In the past year, many law schools announced they will accept the GRE in addition to the LSAT, when considering admissions.

“I had a client who had a unique bunch of disabilities that required some physical accommodations. The decision maker [at ETS] was very available to take my calls and engage in an interactive process, where we worked out what type of accommodation should apply to my client. That is the way it should work,” Weiner says. “What doesn’t work is when you have an organization that just views the requests with a knee-jerk reaction.”

Another ADA lawsuit brought against the LSAC involving a Michigan man who is legally blind, is pending. Angelo Binno seeks a permanent injunction to exempt him—and other test-takers with similar vision issues—from the LSAT’s analytical reasoning section, and report their raw scores and percentile ranks on other portions of the exam.

Drawing a diagram helps LSAT-takers with analytical reasoning questions, known as logic games, but using that method is particularly hard if you can’t see, says Jason Turkish, Binno’s lawyer. Turkish is also legally blind, and he sued the LSAC for LSAT accommodations.

“After decades of private litigation, multiple suits brought by the DOJ, and the California action at issue in the motion, it is not at all surprising that LSAC continues to harass applicants with disabilities seeking basic and fair accommodations,” Turkish wrote in an email to the ABA Journal.

Until 1997, the ABA’s law school accreditation standards allowed schools to waive the LSAT for applicants who were physically incapable of taking the test, according to an earlier lawsuit Binno brought against the ABA, which was dismissed due to lack of standing.

Existing rules on the matter appear to be in flux. Currently, law schools must require that each applicant—with a few exceptions—take a “valid and reliable” admissions test that assesses his or her ability to finish law school. There’s not a requirement to use the LSAT, but if other tests are used, it must be demonstrated that they are valid and reliable.

The council of the Section of Legal Education and Admissions to the bar is considering a proposal to cut the rule, known as Standard 503, and rewrite another admissions rule, Standard 501, to make the presence of a valid admissions test a factor, rather than a requirement, for determining whether a law school is in compliance.