SAN FRANCISCO — Everyone knows federal judges are giving more scrutiny to motions for class certification under recent case law from the U.S. Supreme Court.

But the same strict criteria generally don’t apply to government suits brought to uphold the rights of citizens.

That’s a bad break for the Law School Admission Council, administrator of the LSAT exam, as it tries to beat back state and federal agencies alleging discrimination against disabled test takers.

U.S. District Judge Edward Chen gave the green light on Monday for a suit brought by California’s Department of Fair Employment and Housing and joined by the U.S. Department of Justice to proceed against the council without first clearing the usual hurdles for class certification.

Over objections from the council’s lawyers at Fulbright & Jaworski, Chen classified the suit as a government enforcement action exempt from class certification requirements under the Federal Rules of Civil Procedure. Forcing the department to seek formal class certification would interfere with the state’s ability to pursue relief for victims of discrimination, Chen wrote in a 19-page order.

"When a government agency pursues classwide relief though a civil enforcement action, it is not prosecuting a ‘class action’ subject to Rule 23," Chen wrote.

Though the legal principle is settled, it has not previously been applied to an action seeking to enforce California’s Fair Employment and Housing Act. Chen’s ruling tracked closely to the U.S. Supreme Court’s 1980 decision in General Telephone v EEOC, 446 U.S. 318, which upheld the Equal Employment Opportunity Commission’s authority to seek legal remedies under Title VII without first obtaining class certification pursuant to Rule 23.

The complaint in Department of Fair Employment and Housing v. Law School Admission Council, 12-1830, accuses the council of discriminating against test takers who requested accommodation for disabilities when sitting for the Law School Admission Test. In most cases, individuals requested extra time to complete the exam.

Named plaintiffs suffer from a variety of disabilities, including attention deficit disorder, learning disabilities, physical injuries, traumatic head injury, impaired vision and paralysis. The council required candidates seeking accommodation to submit extensive medical records and unlawfully flagged the scores of students who received extra time to complete their exams so that it was apparent to law schools, the suit alleges.

Chen denied a motion last year to dismiss several causes of action in the lawsuit and permitted the U.S. Department of Justice to intervene, meaning the class of affected individuals will include disabled test takers across the nation, not just in California.

The Law School Admissions Council, or LSAC, is a nonprofit organization based in Pennsylvania that administers the LSAT. Fulbright & Jaworski lawyers representing the council could not immediately be reached for comment.

According to LSAC, more than 1,000 individuals request disability-based accommodations on the LSAT each year and most requests are granted.

The council argued the court should apply Rule 23 of federal civil procedure which governs class actions. Under the rule, a class action can proceed when four criteria are met: The class is so numerous that individual litigation is impractical; there are common questions of law or fact; the claims and defenses of the class representatives are typical; and representatives can fairly and adequately protect the interest of the class.

Holding the state agency to class certification requirements would only regulate procedure and would not impact the substance of the agency’s litigation, LSAC’s lawyers stated in their brief.

"It is one thing to conclude that a federal statute allows a federal government enforcement action to be pursued outside the class action requirements of the federal rules, as the Supreme Court did in General Telephone," wrote Fulbright D.C. partner Robert Burgoyne. "But this same analysis cannot be extended wholesale to allow a state statute to prescribe the procedure for pursuing purported class claims in federal court."

Chen rejected the distinction.

"Quite simply, Rule 23 does not apply to the present suit," he wrote. "There is, therefore, no conflict between federal and state procedural rules in this case."

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