A 29-year-old congressional aide claims his dyslexia impairs his ability to read and write. A San Jose, Calif., woman who is paralyzed in all four limbs says she cannot write without a brace. A sports marketer from Maryland alleges that pain from her scoliosis and attention deficit hyperactivity disorder make it difficult to concentrate.

The three reside in different parts of the country and have different physical or cognitive disabilities, but they have one thing in common: Each claims that the Law School Admission Council violated their rights by denying them extended time on the Law School Admission Test. They are among the 22 would-be LSAT takers on behalf of whom the California Department of Fair Employment and Housing and the U.S. Department of Justice have filed suit, alleging that the council’s accommodations process violates the Americans With Disabilities Act.

The council has been sued countless times since the 1990 passage of the ADA by individuals whose accommodation requests it denied. It is a frequent target for disability rights advocates who charge that its accommodations policy is burdensome and illegal.

The Justice Department’s proposed class action, filed this spring in U.S. District Court for the Northern District of California, escalated the battle. If successful, it could force widespread changes to the way the council handles the approximately 2,000 accommodation requests it receives annually. (The council typically approves about half.)

Also lining up against the council are California lawmakers, who recently passed legislation barring it from “flagging” — that is, alerting law schools to LSAT takers who got extra time. And the American Bar Association’s House of Delegates in February unanimously urged the council to end flagging and to make its accommodation decisions timelier and more transparent. “This is something that has been percolating for a long time,” said disability rights attorney Jo Anne Simon, who has represented LSAT takers who were denied accommodations. “But now they’re coming under fire from a lot of different quarters. I hope we’re at a turning point.”

POLICY DEFENDED

Council administrators acknowledge that they are under more pressure than ever over accommodations, and that their screening procedures are more rigorous than nearly all other standardized test givers. However, they deny that their process — aimed, they insist, at protecting their test’s integrity and making it fair to all — violates anyone’s rights. Moreover, accommodation requests deserve scrutiny because the LSAT plays an such an outsized role in law school admissions, said general counsel Joan Van Tol. “As the stakes get higher, the degree of rigor in review gets higher as well,” she said.

Other standardized testing companies rely on the recommendations by an applicant’s doctor or psychologist rather than conduct their own reviews of the test taker’s documentation, said James Vaseleck, the council’s senior director for public affairs. By contrast, LSAT takers must provide extensive disclosure of any previous accommodations they received on standardized tests or in academic environments, plus evaluations by doctors or psychologists of their impairments and recommended accommodations.

The applications are evaluated by the council’s two in-house psychologists and by outside experts if needed, Van Tol said. The evaluators want to establish whether the applicant really has a disability; whether it hampers his or her ability to take the LSAT under standard conditions; and whether any accommodation sought is appropriate. Extra time is the most frequent request, but bids for additional break time between sections, a distraction-free testing environment and use of a computer are also common. Applicants are more likely to prevail if they have a proven track record of receiving accommodations, but about half of those who ask received no accommodations on either the SAT or ACT, which raises questions, according to Van Tol. Simon and other disability rights lawyers charge that the council’s hard line is motivated by fear that accommodations erode the LSAT’s value. “I think the biggest problem is their suspicion that everyone who is asking for extended time is trying to game the system,” she said. “The reality is, in this world there will always be someone doing something they shouldn’t. I don’t think that’s most people.”

The lengthy paperwork and medical evaluations the council demands, and its refusal to explain denials in some cases, are points of contention and litigation, with critics and plaintiffs charging that the process is confusing and time-consuming. The National Association of Law Students With Disabilities publishes a guide containing advice from students who have navigated the process.

It urges test takers to be realistic. “If you are thinking that you’re a shoe-in for LSAT accommodations since you had accommodations in undergrad, think again,” the guide reads. “In fact, it is well known that receiving accommodations on the LSAT is very difficult. Why? Well no one but the evaluating panel knows the truth.”

Disability advocates have also taken issue with the cost of extensive medical or neuropsychological evaluations that the council requires, which can run into the thousands of dollars. “It does require the expenditure of money to get tested, but that’s the way Congress sorted it out when they passed the ADA,” Van Tol said. “If you are requesting accommodation in the post-secondary world, you are responsible for paying for the testing, and we, the testing organization, are responsible for providing the accommodation at our cost. That’s the balance.”

The council is not the only testing agency struggling with when and how to accommodate people who claim disabilities. The U.S. Government Accountability Office in 2011 audited eight testing organizations (the council was the only one that declined to participate in the audit, citing uncertainty about the survey’s goals). It found that test administrators were having a difficult time ensuring fairness for takers while also maintaining the reliability of their tests. The report, released just five months before California filed its suit against the council, recommended that the Justice Department develop a strategic approach to ensuring that test companies comply with the ADA.

California Assemblyman Ricardo Lara wasn’t willing to wait around. The Democrat proposed legislation earlier this year that would prevent the council from flagging LSAT scores when California test takers received extra time. The law requires “the process for determining whether to grant an accommodation to be made public” in a timely manner.

The administrators of the SAT and ACT gave up score-flagging about a decade ago. The Law School Admissions Council, along with the body that administers the Medical College Admission Test, are the only testing agencies that still flag scores when takers receive extra time.

The council opposed Lara’s bill, pointing to its own research findings that students who received extra time on the LSAT did not fare as well during their first year of law school did as students who scored the same on the test without additional time. The council is a membership organization comprising law schools, and those schools want to know when applicants received extra time because the LSAT is the only apples-to-apples comparison they have among applicants, Van Tol said.

‘LESS LEGITIMATE’

On the other hand, flagging scores discourages disabled people from seeking accommodations, according to the California lawsuit. “It makes you feel less legitimate as an applicant because it identifies you as different,” said Elizabeth Hennessey-Severson, a plaintiff in the California class action who suffers from ADHD and additional learning disorders. She initially was denied extra time on the LSAT, but received that accommodation a year later with the help of an attorney. “If the idea of accommodations is to level the playing field, why do they need to alert schools that the playing field has been leveled?”

California Governor Jerry Brown signed Lara’s bill into law on September 26. The flagging ban goes into effect on January 1. “It is my hope that with [the legislation] the test sponsors of the LSAT will adjust their policies and end discriminatory practices once and for all for individuals with disabilities, not just in California, but across the nation,” Lara said when the bill passed.

Council administrators declined to discuss how they plan to respond to the California law, but called the measure “vague, internally inconsistent and legally vulnerable” in an August letter urging Brown to veto it.

The proposed class action in California survived an early motion to dismiss in September, and on October 12, U.S. Dis­trict Judge Edward Chen approved the Justice Department’s bid to join the suit.

This is not the first time the Justice Department has objected to the council’s operations. It sued in 1999 on behalf of four physically disabled test takers who sought accommodations. That case was settled in 2002 after the council agreed to give “considerable weight” to the opinions of doctors and other evaluators and swear off unnecessary diagnostic or functional testing.

The Justice Department also helped the council reach an agreement last year with the National Federation of the Blind to make its law school application website accessible to blind users without their having to rely on assistance from someone over the telephone.

Hennessey-Severson hopes the new lawsuit will prevent other disabled test takers from suffering the lengthy and disheartening process she endured. “Ultimately, I would like to see [the council] change their policy in a way that is consistent with the Americans With Disabilities Act,” she said. “There are already enough hurdles, be it physical or mental, that people don’t need another one to overcome.”

ACCOMMODATIONS TO THE LSAT
• 1,827 people requested accommodations during the 2011-12 testing cycle.
• 50 percent of those people received some form of accommodation.
• Extra time on the test is the most frequently granted accommodation, accounting for nearly 40 percent of those granted during the past five years.
• Test takers who received extra time tended to have slightly higher scores than those who took the test under standard conditions, while those who received accommodations other than extra time had lower scores.
• 33 percent of test takers who received accommodations during the past five years had learning disorders. The next most common classification was attention deficit hyperactivity disorder, at 17 percent.
Source: The Law School Admission Council

Karen Sloan can be contacted at ksloan@alm.com.