Disability rights groups have lined up to defend a California law that prohibits the Law School Admission Council from “flagging” LSAT scores—that is, alerting law schools when test takers received extra time as an accommodation for a disability.
Thirteen state and national advocacy organizations, including the Association on Higher Education and Disability and the National Association of Law Students with Disabilities, on Tuesday filed an amicus brief in a lawsuit filed by the council that is pending before California’s Third District Court of Appeal.
The amici, along with the state of California, want the appellate court to uphold the anti-flagging law and reverse a preliminary injunction against its enforcement.
According to the amicus brief, the law imposes “no irreparable harm to the LSAC. Rather, the ongoing harm is to Californians with disabilities who seek to enter the legal profession, but face unnecessary hurdles in obtaining testing accommodations, followed by the unwarranted disclosure of their testing accommodations, due to LSAC’s policies.”
Council representatives declined to comment, but in court filings have cited research showing that LSAT scores earned when takers had extra time were not comparable to scores earned under the standard time limit. Disability advocates have disputed this finding. Still, the council maintains that failing to disclose when takers received extra time undermines the LSAT’s usefulness in predicting how successful applicants are likely to be during their first year of law school.
“Damage to the integrity of the test score information goes to the heart of what LSAC does as a testing organization,” the council argued in a brief filed in July. “Such harm would be irreparable, because once scores are reported by the LSAC and relied upon by score recipients, there is no realistic way to undo the outcomes.”
Claudia Center, a senior staff attorney at the Legal Aid Society’s Employment Law Center who helped draft the amicus brief, predicted the case would go all the way to the California Supreme Court and that the state will prevail.
The council is simultaneously fighting a separate federal class action brought in 2012 by the California Department of Fair Employment and Housing on behalf of disabled test takers. The U.S. Department of Justice intervened in the suit, which alleges that the council’s handing of disability accommodations violates the Americans With Disabilities Act. The parties have held several settlement talks and are scheduled to hold another settlement conference in October.
At issue in the state trial court is Assembly Bill 2122, approved by the California Legislature in September 2012, which bans the council from flagging the LSAT scores of Californians who received extra time and requires the testing organization to explain any decision to deny requested accommodations in a timely manner.
The law went into effect on January 1 and the council filed suit three days later to stop its enforcement. The council argued that the law violates the organization’s freedom of speech and equal-protection rights because it does not apply to other standardized testing groups.
Sacramento County, Calif., Superior Court Judge Raymond Cadei on February 1 issued a preliminary injunction blocking enforcement of the law. That ruling came just days before the February administration of the LSAT, which would have produced the first test scores subject to the ban on flagging.
Cadei did not take up the council’s free-speech claims, but agreed that the law’s singular focus on law school admissions was a problem. “Legislation that seeks to further this interest must not single out one particular entity for regulation without a rational basis for doing so,” he wrote.
The state filed an appeal, and in early March the appeals court issued a stay preventing the council from flagging any test scores earned by Californians until he matter is resolved.
The state argued in its opening appellate brief that the trial court had erred in finding that the council was likely to succeed on the merits of its equal-protection claim. While the law, now known as Educational Code section 99161.5, is specific to the council, that organization is not similarly situated to the other testing groups because it’s the only provider of testing specifically for law admissions, the state argued.
Moreover, there is a rational basis to classify the council separately because its testing policies set it apart from other testing organizations, according to the state’s brief.
The council refuted those arguments in its response brief. That other test providers do not flag scores and maintain less burdensome accommodations procedures for the disabled is “incorrect,” it argued. Moreover, it said, California’s other laws pertaining to educational testing organizations apply broadly and do not single out a specific group.
The disability-rights consortium’s amicus brief argues that the state has long enacted laws specific to the legal profession, and that the statute falls squarely within the boundaries of the law.
“Contrary to the LSAC’s position, the Legislature may choose, as it did in the early 1980s, to adopt certain generic provisions that apply to all standardized post-secondary admissions tests, but it also has the authority to subsequently adopt specific provisions in response to particular matters of interest to the legal profession, including disability diversity,” the brief reads. “Where, as here, the statute’s classification is supported by rational basis, the Legislature’s judgment is entitled to deference.”