As a general rule, no one enters an accredited three-year law school without submitting scores from the Law School Admission Test.  This rite of passage is administered by the Law School Admission Committee, a non-profit that administers the LSAT and reports results to subscribing law schools.  The scope of LSAC’s administration of accommodations for physical and mental disabilities was decided on January 13 by the Third District Court of Appeal in LSAC v. State of California, No. C073187.

In 2012, section 99161.5 was added to the Education Code.  This section required LSAC to accommodate test-takers with physical or mental disabilities in specific ways.  First, LSAC was required to publicly address an accommodation request denial with specific reasons for the denial.  (Section 99161.5(a)(2))

In making the accommodation decision, LSAC was required to give considerable weight to prior accommodation documentation or auxiliary aids or services previously received by the test-taker.  (Section 99161.5 (b))

Finally, LSAC was barred from “flagging” the test results to show accommodation.  (Section 99161.5(c))

The new legislation was explicitly deemed to be declaratory of existing law, primarily the Americans with Disabilities Act (42 U.S.C. section 12189) and its California analogue, Civil Code section 51.  If this were correct as a matter of law, LSAC would be out of luck.

LSAC disagreed and sought a preliminary injunction against the operation of section 99161.5.  Its chances of success were not good as LSAC bore the burden of showing that it had a likelihood of prevailing at trial on the unconstitutionality of the statute under the California Constitution and that the balance of harm created by a halting of the section’s operation tipped towards itself.  (Common Cause v. Bd. of Supervisors, 49 Cal.3d 432 (1989))

The stringent criteria for granting a preliminary injunction insure that a cautious trial judge, ever mindful of the state’s right to appeal an order stopping the operation of a state law, will err on the side of denial.  On the other hand, the record is likely shaped by the parties with low cost and maximum speed.  Unlike a summary judgment motion, an injunction motion will not be based on carefully discovered testimony and chain-of-custody evidence.  Instead, as in this case, the record consists of declarations untrammeled by cross-examination.

Therefore, in a case where imminent operation of a questionable law presents policy or financial issues, and the evidence can be groomed without too much discord on the basic facts, and a number of competing legal theories can be winnowed for the trial court, a preliminary injunction motion may work.

LSAC hit a grand slam, as the trial court granted a preliminary injunction against section 99161.5.  The result is all the more amazing in that LSAC prevailed on theories as varied as denial of equal protection, and liberty of speech and that the section was an unconstitutional special statute and bill of attainder.

The Court of Appeal had little trouble in reversing the trial court.  It gave short shrift to the tenuous special statute and bill of attainder arguments, referring to policy concerns discussed in its extended discussion of equal protection and free speech.  The legislative findings concomitant with the creation of the section were sufficient for the Legislature to have acted.

The Legislature had found that LSAC’s accommodation application process presented a significantly higher barrier than that of comparable high-stakes examinations such as the Graduate Record Examination.  Instead of accepting a prior accommodation by an educational institution, LSAC often required a vetting process which cost the applicant $3,000.

In addition, LSAC “flagged” accommodation test results by notifying the law schools that an accommodation had been made.  In short, the nature of the legislative record was that LSAC required more of accommodation requestions than any other postgraduate tests.  This conclusion was bolstered by a resolution by the American Bar Association Committee Rights which declared, in effect, that the LSAC practices were discriminatory.

The Court of Appeal found no impediment in LSAC’s free speech argument once it found that its “flagging” practices were mere commercial speech.  The practices were commentary on the quality of the test results sent to a business partner, the law school on behalf of the test-taker.

Consequently, the flagged test results were simply discussion of private matters, subject, like credit reports, and required no more than intermediate Constitutional scrutiny.  (U.D. Registry, Inc. v. State of California, 144 Cal.App.4th 405 (2006))  The Court of Appeal pointedly noted that nothing in the record showed that the flagging content was false, and to make that showing the record had to contain evidence that all LSAT scores earned with additional testing time were psychometrically comparable to non-accommodated test-takers or that all law schools disregarded the flagging and paid no attention to LSAC’s concern that test results for accommodated test-takers were different.

However, the State’s interest in having the section in operation overwhelmed the lack of proof of flagging effects.  Moreover, it was an abuse of discretion for the trial court to concluded that the State could not submit sufficient evidence of the harm caused by flagging.

As to the equal protection argument, the Court of Appeal concluded that LSAC was the only provider of law school testing and therefore was not similarly situated as other test providers such as the creators of the GRE.

And even discounting this parsing of categories, the legislative findings clearly tended to show that LSAC was a bad actor on the application and flagging issues and a creator of barriers to the representation of individuals with disabilities in the legal profession, which tends to show that LSAC was a specific, off-the-charts discriminator in this particular field.

At this point, LSAC has obviously lost a major litigation advantage as the law will continue in operation.  However, it has, in a way, received a kind of advisory opinion about the underlying merits of the case and the nature and quality of the evidence which should be adduced at trial.  Seldom has counsel the advantage of a full critique of the case by the appeals court overseeing the trial process.

The way has been made clear for LSAC.  Forget abstruse constitutional arguments such as the special statute or bill of attainder theses.  Concentrate on the central evidentiary problem, the flat conclusionary statements in the legislative history which make it seem that LSAC is a capital offender in the field of accommodation.

Address the two central Constitutional issues outlined by the Court, accommodation criteria and, secondarily, process, and the effect of flagging test results.  LSAC might have a deeper pocket than the State and, equally important, better access to education expertise in proving the harm resulting from flagging.

LSAC, if it goes to trial, should bear in mind the public significance of law school testing and specifically address in detail its view of the public function of flagging.  In the end, LSAC, in light of the concerns expressed by the Court of Appeal, should stop focusing on its enterprise concerns and establish that its assumptions about its role in maintaining the integrity of the testing process, its societal function, are clearly before the Court.