On May 20, 2014, U.S. Department of Justice (USDOJ), the California Department of Fair Employment and Housing (DFEH) and the Legal Aid Society-Employment Law Center filed a joint Consent Decree “Department of Fair Employment and Housing v. Law School Admission Council, Inc (LSAC).” The case was begun by the State of California, but the U.S. Department of Justice was granted permission to intervene, and alleged that the LSAC engaged in a pattern and practice of discrimination against test takers with disabilities in violation of the Americans with Disabilities Act. Thus this case is one of truly national significance and is a resounding victory for all individuals with disabilities who seek a level playing field on which to qualify for entrance into the legal profession.
In the main complaint brought in California, 17 courageous individuals came forward to stand up for their rights. When the Department of Justice intervened, 8 courageous people were named as complainants. Their victory was hard fought and is sweet indeed.
The consent decree is structured to bring a sorely needed measure of fairness to prospective law students. The Law School Admission Council (LSAC) has long required burdensome documentation from individuals with disabilities before allowing them the testing accommodations on the Law School Admission Test (LSAT) to which they are entitled under federal and state laws. The LSAC’s approach erected illegal barriers and led to their scattered, ad hoc decision-making that was inconsistent with the medical reports and recommendations of the test takers’ healthcare providers. And to make matters worse, even if one were lucky enough to secure accommodations, the LSAC’s policy was to report that individual’s LSAT score with a scarlet letter – a score notation that not only illegally disclosed to law schools that the applicant had a disability but that also asserted that the score was less valid. This practice led many students who were fearful of its stigmatizing effect to forego seeking their rights.
Now, the LSAC’s discriminatory policy of flagging LSAT scores will no longer have a chilling effect on law school applicants with disabilities. Now they can seek the accommodations to which they are legally entitled without fear that their disability status will be disclosed to prospective law schools.
It is equally important to recognize that this case was brought on behalf of individuals with physical, learning and psychological disabilities, and protects individuals with disabilities equally.
Besides the prohibition on flagging, the consent decree requires the LSAC to provide at least the same accommodations to LSAC takers that they have been provided on other standardized tests.
The LSAC also agreed to pay a $7.73 million penalty to the US Government.
According to the USDOJ, under the consent decree, LSAC has agreed to:
- put a permanent end to the practice of flagging the LSAT score reports of individuals with disabilities who take the LSAT with the common testing accommodation of extended time;
- pay $7.73 million to be allocated for a civil penalty, compensation to individuals named in the United States’ and other plaintiffs’ complaints, and a nationwide victims’ compensation fund;
- streamline its evaluation of requests for testing accommodations by automatically granting most testing accommodations that a candidate can show s/he has previously received for a standardized exam related to post-secondary admissions (such as the SAT, ACT or GED, among others); and
- implement additional best practices for reviewing and evaluating testing accommodation requests as recommended by a panel of experts (to be created by the parties).
Individuals not named in the complaints but who would qualify under the agreement and were denied accommodations, in whole or in part, between January 1, 2009 and May 20, 2014 may apply to the compensation fund. The compensation fund has not yet been set up, but will be managed by a claims administrator who has yet to be engaged.
You can read more about this here or read the Department of Justice press release here, or the Consent Decree here. The Consent Decree will be effective when Judge Chen enters the order, which is expected soon.
Jo Anne Simon, P.C., is a law firm in Brooklyn, NY, concentrating on disability civil rights in higher education and standardized testing. Ms. Simon is a member of the LDA of America Public Policy Committee.