Time Trials
California Lawyer

Time Trials

by Mike Rosen

March 2013

illustration by James Steinberg

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Editor's Note January 2012




In 2011 Elizabeth Hennessey-Severson applied to take the Law School Admission Test in San Francisco. Diagnosed with dyslexia and attention deficit/hyperactivity disorder while in high school, she requested extra time to complete the test. She submitted copious material to the Law School Admission Council (LSAC) - including full neurological tests, psychologists' letters, and evidence of prior accommodations with other tests. Her request was denied.

"It's disheartening," says Hennessey-Severson, 26, who currently works as a paralegal in New York. "It's always been clear to me how my brain works, and I'd hoped that 97 pages of documentation would show compelling evidence of that."

Hennessey-Severson is one of 16 plaintiffs in a case brought against the admission council by the California Department of Fair Employment and Housing (DFEH) alleging discrimination against test takers with disabilities. Although the case originated in Alameda County, LSAC removed the litigation to federal court. (DFEH v. Law School Admissions Council, No. 12-CV-1830 (N.D. Cal.).)

The suit accuses the council of violating Titles III and V of the Americans with Disabilities Act by failing to provide legally required special accommodations, demanding excessive and burdensome documentation from test takers seeking accommodations, and when accommodations were provided, notifying law schools.

But the LSAC contends that giving some applicants extra time for the test skews the results and makes it less useful to law schools.

Last October, Judge Edward M. Chen allowed the U.S. Department of Justice to intervene in the case to try to establish a nationwide violation and seek nationwide remedies. A further pretrial conference is set for later this month.

Approximately 150,000 people take the LSAT every year. According to an LSAC report, the council received some 2,000 requests for special accommodations each year between 2000 and 2007, and it denied nearly half of them.

"The Law School Admission Test is the gateway to law school," says Phyllis W. Cheng, director of the DFEH. "Existing law entitles applicants with disabilities to testing accommodations so that they can compete on a level playing field to obtain a legal education."

An LSAC spokesperson declined to comment on the case, and defense lawyers did not respond to multiple requests for comment.

Test takers identified in the complaints had petitioned the LSAC for special accommodations on the basis of disabilities that include attention deficit disorder, nerve damage, learning disabilities, and carpal tunnel syndrome.

The DOJ complaint describes the council's documentation requirements as "frequently onerous and unnecessary" and alleges that LSAC sometimes arbitrarily denies petitions or demands additional unspecified documentation. In addition, petitioners object to LSAC's notification of law schools as to whether a test taker sought special accommodations - a practice, called "flagging."

California recently banned flagging, and the LSAC sued to stop the law (AB 2122). "Multiple studies have shown that LSAT scores earned under accommodated testing conditions that include extra testing time are not comparable to LSAT scores earned under standard time conditions," the council maintained in its complaint. "Scores achieved with extra testing time tend to over-predict how the examinee will perform in the first year of law school." (Law School Admission Council v. State of Calif., No. 2013-00135030 (Sacramento Super. Ct.).)

That contention is "disputed by the ABA and by many scholars and experts," according to an amicus brief by the Legal Aid Society's Employment Law Center, which represents three named test takers who joined the disabilities lawsuit.

"For civil rights," says Claudia Center, senior staff attorney for the Legal Aid Society in San Francisco, "it's important that all groups be represented at all levels in the legal system."

Reader Comments

William D. Goren, J.D., LL.M. - May 29, 2013
http://www.williamgoren.com/blog/2012/10/08/lsat-and-title-iii-discrimination-excessive-unreasonalbe-documentation-lsat-waiver/ the above will take you to a blog entry of mine that talks about this case.

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