Law School Admisson Council in Newtown, Pennsylvania.

 

A federal judge has ordered the Law School Admission Council to pay nearly half a million dollars in attorney fees to the California Department of Fair Employment and Housing in connection to litigation over its accommodation of Law School Admission Test takers with disabilities.

The California agency sought more than $567,000 in attorney fees after it successfully petitioned the court to hold the council in civil contempt for violating a 2014 agreement on how it would handle requests for accommodation on the LSAT. The parties met for a court hearing on Friday. U.S. Magistrate Judge Joseph Spero of the U.S. District Court for the Northern District of California on Monday largely sided with the agency in finding that the council must pay $480,000.

“As a public prosecutor, DFEH is entitled to recover attorney’s fees for successful civil rights litigation,” said Kevin Kish, director of the California agency. “Because fees can only be used to offset costs of the department, seeking fees in appropriate cases directly supports DFEH’s mission of protecting all Californians from unlawful discrimination.”

Council President Kellye Testy said Tuesday that Friday’s hearing largely focused on past disagreements, and that the LSAT maker is committed to working with regulators and upholding the consent decree.

Kellye Testy.

“While we had hoped for a different outcome on some issues, we see last week’s hearing as a very constructive step forward,” she said. “We would much rather work together with [the California agency] and other groups to provide access and accommodation, instead of spending resources in litigation. We have taken significant steps to expand access, and we intend to follow the judge’s instruction to all parties to work even more closely together to fulfill our common goal of ensuring access for all test-takers.”

The California agency’s legal team was headed by associate chief counsel Mari Mayeda, while the council was represented by lawyers from Perkins Coie and Norton Rose Fulbright.

The council and the California agency have been locked in a legal battle since 2012, when the agency and the U.S. Department of Justice sued the LSAT maker for violating the rights of those seeking disability accommodations on the exam. The plaintiffs argued that the council made accommodation seekers jump through too many hoops and denied too many requests, in violation of the Americans with Disabilities Act. (The council maintained that it needed to be vigilant to protect the integrity of its exam and be fair to all takers.)

The initial portion of the litigation wrapped up in 2014 with a consent decree under which the council stopped alerting law schools of LSAT scores earned under extra time and paid $8.7 million to people who had applied for accommodations between 2009 and 2014. Later, the parties jointly developed an extensive set of rules about how the council would evaluate accommodation requests. But the California agency in 2017 asked the court to find the council in contempt for violating the agreed-on procedures. Most notably, it said the council was essentially pressuring test takers to accept lesser accommodations than those they requested.

Spero agreed and in March held the council in civil contempt. The next round of litigation centered on the attorney fees the California agency incurred while investigating the council’s compliance with the accommodation procedures and bringing its contempt motion. It filed its initial fee request in July, which the council called “unreasonable.”

The council’s August motion in opposition to the California agency’s fee request does not stipulate the amount it believed was appropriate, but it asked the court to reduce the hourly billing rate agency lawyers requested and restrict the billable hours eligible for recovery to only those that involved the preparation of the contempt motion, not the hours spent investigating whether the council had abided by the accommodation rules.

More specifically, the council asked the court to use an hourly rate of $170 instead of rates of $850, $425 and $290 for the agency’s trio of lawyers, based on their seniority and level of experience. The council cited statements by the agency’s former director in 2012 and 2013 that it would seek to recover fees at that hourly billing rate rather than at market rates. Spero was not swayed, however, noting in his opinion that those statements were not made in connection with the LSAT litigation.

However, Spero sided with the council in finding that the California agency is not entitled to recover fees and costs it incurred while investigating test takers files at the council’s Pennsylvania headquarters in order to determining whether it was complying with the rules. Agency lawyers would have had to preform that investigation regardless of whether the council was violating the consent decree, he reasoned.

Still, the council’s decision to pursue several “dubious arguments” that it, in fact, was following the accommodation rules served to run up the California agency’s costs, Spero found, thus increasing the fee amount it will now have to pay.

“[The council] was, of course, entitled to defend itself against [the California agency’s] motion, but in light of the fee-shifting provision in the consent decree, the consequence of such tactics is that [the council] faces significantly greater liability for [the California agency’s] fees than it might have incurred if [the council] had chosen to concede issues on which it had little chance of prevailing,” Spero wrote.

Testy said that she hopes the litigation over disability accommodations is over.

“As our recent actions have demonstrated, we are committed to working with the government and advocacy groups to ensure that the LSAT is accessible to all candidates, and we are 100 percent dedicated to fulfilling all of our obligations under the consent decree,” she said.