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Wednesday, December 14, 2011

The American Bar Association Calls Out the LSAC for Its Disability Discrimination

Now, I should start by saying I have personal experience with all of this, which I will share some about in a moment.  But let me provide some background first.

The ABA sets standards for accreditation of law schools.  As of this moment, they require every single school to consider scores on the Law School Admission Test a.k.a. the LSAT.  The organization that administers it is the Law School Admissions Council, a.k.a. the LSAC.

And they are out and out bigots, at least toward people who have disabilities.  As I have shared at this blog, I have three learning disabilities.  I have faced severe discrimination because of those disabilities, so extreme that I ended up dropping out of high school.  It was what you would call hostile environment discrimination—that is making a person’s life hell until they walk away.  This was, of course, before the ADA existed.  Then a few years afterward, I decided to make a second go at obtaining an education.  I received accommodations on the GED exam, the SAT, the ACT and throughout my entire undergraduate education.  And indeed, I received the same accommodations throughout law school and on the bar exam.

In each case, the accommodations granted were identical and were tailored to my specific disabilities.  I will avoid the long discussion of each disability and the justification for the specific accommodation, but I will note that all of these institutions agreed that I should receive the same accommodations: double time, isolation, use of earplugs, and if the test had a significant written portion, access to a computer.  But when I made the same request to the LSAC they sent me back a letter denying the request for extra time.  That is right, they literally didn’t even address my full request and every effort to get them to even address it failed.  Later I verified that the letter they sent me was in fact a form letter—and a poorly-worded one at that—suggesting that as a practice they automatically rejected an entire class of requests for accommodations.

So I took them to court seeking a preliminary injunction against them forcing them to administer the test with accommodations.  After the test occurred, there would be a full trial on whether those accommodations were justified, and therefore whether they were required to score the exam and release those scores.

At the preliminary injunction hearing, their attorney made an outright bigoted argument, asserting that I was just faking these disabilities.  Anyone who actually deals with me would realize how ludicrous it was—it was almost as ridiculous as accusing a man in wheelchair with clearly underdeveloped legs of faking paralysis.  For instance, one of my three disabilities is dysgraphia.  That term describes a number of disorders, but in my case, it is an impairment in my fine motor skills that makes it so that it is very hard to write by hand; however, if you put me before a computer, I am pretty much normal.  It doesn’t affect my ability to form content, just to actually put it down on paper, by hand.  Because of this disability, my handwriting was frozen, developmentally speaking, at the eighth grade level.  And this idiot lawyer for the LSAC was claiming that I was faking that—indeed that I could fake that.

I am happy to say that I won the preliminary injunction and after that, they settled the remainder of the case.  They agreed to score my exam and release that score.  But at the same time, they refused to pay my court costs, as the ADA normally demands.  A few years before I had told my stunned parents that my GPA and my score on practice LSATs was higher than the median scores for every law school in America.  On that date my parents began to save every penny they could for what might be a very expensive law school experience for me.  They raised around 20K.  The lawsuit cost us about $18K.

And in the years since, I have regularly heard stories about their mistreatment of other disabled persons, especially if they have physical disabilities.  So I was gratified when I read this (registration might be required):

The Law School Admission Council is no stranger to litigation over its testing policies. The organization has been sued numerous times by would-be takers of the Law School Admission Test who were denied accommodations for what they claimed were disabilities.

Now the American Bar Association's Commission on Disability Rights has asked the council to change the way it handles requests for testing accommodations, to "ensure that the exam reflects what the exam is designed to measure, and not the test taker's disability."

That language came from a resolution the commission has drafted for a vote by the ABA's House of Delegates during its midyear meeting in February. The document urges the council to remove communication barriers with accommodation seekers, change its rules regarding accommodations, and offer auxiliary aids and services to disabled test takers.

The resolution also calls upon the council to make its policies clear to those with disabilities, to give applicants decisions in a timely manner, and to provide adequate time for appeals of denials of accommodations.

"The testing process for law school admission remains an obstacle to the full and equal participation of individuals with disabilities in the legal profession," the commission said in a report accompanying the resolution. "Students with disabilities are substantially underrepresented at law schools across the country."

But here is the kicker:

Even if the ABA adopts the resolution, it would be largely symbolic. The ABA has no authority to compel the council to act. However, the ABA's Standards Review Committee — which is evaluating the ABA's law school accreditation standards — is considering whether to drop a requirement that law schools consult the LSAT for admissions decisions.

That’s hitting the LSAC where it hurts—their pocketbooks and their livelihoods.  And good for the ABA, but I think it is frankly time for the courts to get tough with the LSAC.  If the LSAC was openly and deliberately engaging in discrimination against a racial minority or against women, then the courts would forbid any school subject to anti-discrimination law from using the LSAT in admissions standards, at least until significant changes were made.  But for some reason that principle has not yet been applied to the LSAC’s disability discrimination.  I think it is high time that it has.

I think the dead giveaway here of their bigotry is what sounds like an ancillary issue: flagging.

One practice the commission hopes to see eliminated is that of "flagging" — noting to admissions officials when a test taker receives an accommodation. The administrators of the SAT and ACT eliminated flagging in 2003, concluding that accommodated test scores were comparable to non-accommodated scores, the commission's report noted.

However, the LSAC's research has shown that the scores of test takers who received accommodations are not comparable to scores of those who did not, Margolis said. Additionally, the council flags the scores only of people who receive extra time on the test, not of other forms of accommodation.

That is, they put an asterisk or similar mark on your score indicating that you had received accommodations.  But to explain how clearly this indicates their bigotry, I have to explain where the “accommodations” concept comes from.

Believe it or not, it predated the ADA or even Section 504 of the Federal Rehabilitation Act of 1973 (which is nearly identical to the ADA, except it is limited to entities that receive federal funding).  It was originally found in the Civil Rights Act of 1964.

You see this act included a prohibition of religious discrimination.  But the problem is that it was easy for facially neutral policies to have the effect of excluding people of a particular faith.  For instance, if an employer didn’t like Jews, they don’t have to hang up a sign that says “Jews need not apply.”  They can simply require that all employees work on Saturday, and forbid the wearing of hats.  So the Civil Rights Act of 1964 not only outlawed discrimination against people based on faith, but defines discrimination as a failure to provide reasonable accommodation to their religious practices.

The Federal Rehabilitation Act and later the ADA incorporated that concept into its definition of disability.  For instance, the general rule for employers is that

No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

Then the term “qualified individual” is defined as

an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this subchapter, consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.

So like with religious discrimination the law itself defines the failure to accommodate as discrimination.  In other words, the entire idea behind reasonable accommodations is to eliminate a discriminatory condition.

So imagine if the LSAC started flagging the scores of all black applicants without their consent.  Imagine further that when civil rights groups rightly complained, the LSAC stated that they did so, so that everyone would know that they were not discriminated against, despite their color.  Would that explanation fly?

Take a second hypothetical.  Imagine a Jew asked for the LSAC to exempt him from Saturday testing.  Suppose further that the LSAC agreed, but on the condition that an asterisk be placed on his score, indicating that this student was exempt from Saturday testing.  I don’t think it is a violation of Godwin’s Law to say that gratuitously labeling a person as a Jew is a classic example of discrimination.

So what they are saying, by putting that asterisk on people who receive extra time is that in fact the accommodation is not equal—that these disabled persons receive an unfair advantage.  It is in direct contradiction of what the ADA states, which is that such accommodations are necessary to avoid disability-based discrimination and is almost certainly a violation of the ADA’s anti-retaliation provision.

I will add that I have a theory about why they behave like this, to a certain extent.  In college it was a somewhat predictable pattern.  When I first met a professor I would explain to him or her about my disabilities and they would very often have a bit of skepticism.  But as the semester went on, the skepticism melted away.  I had to convince them that I knew enough about my subject to deserve the grade that I was earning on their tests with accommodations.  I am proud to say that I graduated with a perfect 4.0 average, and I can say with confidence that all of my professors believed I fully deserved the grade I received.

But for the LSAC, a disabled person is just a name on a piece of paper, making demands of them.  They develop no relationship with these persons, so there is more room for distrust and suspicion that these people are getting some kind of unfair advantage.

Of course the flaw in this theory is explaining why those who administer the SAT, the ACT and the GED exam I took had taken a different attitude.  So consider that theory a work in progress.

Still, whatever the psychology involved, the courts need to stop treating them with kit gloves.  Bluntly the LSAT is a somewhat ridiculous test anyway; few practicing lawyers feel that it tests the aptitudes lawyers must have.  And the Department of Justice needs to start taking this at least as seriously as they take fashionable issues like the failure to accommodate Islamic religious practices and bullying.  I feel like that this is one of the great civil rights issues of our time, but the Department of Justice treats disabled people like the redheaded stepchild of our anti-discrimination laws.


By the way, I have written a lot more about the philosophical underpinnings of ADA law, here.


Follow me at Twitter @aaronworthing, mostly for snark and site updates.


  1. Hey, any chance you could eliminate the full justification in your posts? It really looks awful on mobile devices. The justification leaves huge spaces between some words. Also, when viewed in Google Reader, my preferred viewer, some words are scrunched together.

    For example, your second paragraph looks like this.

    The ABA sets standards for accreditation of lawschools. As of this moment, they requireevery single school to consider scores on the Law School Admission Test a.k.a. theLSAT.

  2. I agree with the justification issue. I enjoy reading your posts, but it's painful in Google reader.

  3. Okay, when I get home I will remove the justification and stop using it. Personally I find it to be easier on my eyes the way I read it, but it sound downright awful on google reader.

    Thanks for the tip (said the mohel).

  4. Keep the tip (said the leper to the prostitute).

  5. I like the article and it is only the tip of the disability discrimination iceberg sinking the legal profession. The comments sound like a bunch of disability haters, like the same types who are involved in Judicial Selection of new Judges in the Eighth Judicial Circuit of Florida where the Florida Bar Board of Governors member, Carl Schwait, sent a publication saying there would be "racial, gender, and ethnic diversity" but intentionally omitting "disability" as required by Title II of the ADA. That's right - you can't have a disabled person apply to be a Judge in Florida because it would upset the bigots and bullies.