Guaranteeing accommodations: Pitfalls of the ADA in protecting LSAT accommodations
Written by Madison Wood
The process of becoming an attorney in the United States follows the journey of American Bar Association (ABA) accreditation. Accredited law schools across the country serve aspiring attorneys by fulfilling the legal educational requirement for bar admission. To gain access to this education, applicants must complete a graduate admission test titled the Law School Admission Test, more commonly referred to as the LSAT, which is administered by the Law School Admissions Council (LSAC). While standardized tests produce difficulties for all test takers, the specific barriers to entry that the LSAT produces for students with disabilities directly violate the protections supposedly afforded by the Americans with Disabilities Act (ADA).
The ABA is a voluntary organization of lawyers, law students, and judges that serves to regulate the legal profession in the United States. Besides the promotion of the highest quality legal education and competence through ethical conduct and professionalism, the ABA’s mission statement highlights the elimination of bias and the enhancement of diversity by promoting full and equal participation in the association, the profession, and the justice system by all persons. Legal enforcement of this mission can be found in the Department of Justice’s (DOJ) use of regulations outlined in the Americans with Disabilities Act (ADA). Relevant to the discrimination of access to test accommodations is Title III. Under the ADA, "disability" is defined with respect to an individual's physical or mental impairment that substantially limits one or more of the major life activities of such an individual. Historically, this broad definition has barred many individuals from protection under the act.
Furthermore, the term “substantial limitation” is not explicitly defined in the act but instead used vaguely to quantify the definition of major life activities inclusively. These major life activities include functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. The meaning of substantial limitation was set forth through the precedent of Sutton v. United Air Lines, (1999), meaning "'considerable' or 'specified to a large degree'...of ample or considerable amount, quantity or dimensions." Unfortunately, an exclusive and limited interpretation of this precedent has led to various decisions for the Law School Admissions Council which discriminated against individuals based on their history of educational success and lack of specific documentation, consequentially violating the ADA subsections (b)(iv) and (v) of § 36.309 Examinations and Courses.
Most notably, these violations can be seen in the case of Love v. Law School Admission Council, Inc., (E.D. Pa. 2007). In this case, Plaintiff Jonathan Love was denied a request for injunctive and other relief through trial by a judge sitting without a jury. His suit followed after a series of applications for LSAT accommodations were denied by the LSAC, despite documentation consisting of a psychological report, a neuropsychological/psychoeducational evaluation, the Plaintiff's standardized test score and academic history, as well as letters from the Plaintiff's academic advisor and professors. The order by District Judge Barclay Surrick highlighted Love’s historic success in academic and social life without the use of formal accommodations. The decision seemed to disregard the Plaintiff's use of informal accommodations through a narrow scope of the impacts of ADHD.
Testing accommodations typically fall under four categories: presentation, response, setting, and schedule. Presentation modifications allow for the translation of the information presented. Response modifications welcome various forms of submissions. The final two categories refer to changes in the test-taking environment and the scheduled time allotted. The broadness of these categories welcomes a more inclusive and personalized set of accommodations when creating various education plans. Accommodations include but are not limited to the use of braille, screen reading technology, scribes, and word processors. In Love v. LSAC, the accommodations sought by the Plaintiff included ‘time and a half,’ a common scheduling accommodation used for individuals with attention disorders like ADHD. The plaintiff’s history of informal accommodations refers to the allocation of extra time and/or a separate testing environment without submitting an official request with allotted documentation.
With this case being ordered in 2007, the Department of Justice has continued to reform the enforcement of the ADA. Unfortunately, suits instigated by the Department of Fair and Equal Housing (DFEH) continue to show the challenges in implementing substantial systemic reform. In 2014, the DFEH attempted to expand a case on behalf of California test-takers in the U.S. District Court for the Northern District of California to ensure comprehensive and nationwide relief under Title III of the ADA for individuals with disabilities seeking LSAT accommodations. The lawsuit brought to light the process of the council “flagging” accommodated scores to law schools, thereby identifying the score as a person with a disability. This 2014 case led to the enactment of a consent decree where the LSAC agreed to end flagging practices, allocate $7.73 million to victims named in the complaint, streamline acceptance of renewed standardized test accommodations, and improve the process of reviewing accommodation requests. However, an investigation almost four years later by the DFEH found the LSAC continued its discrimination following the consent decree. The consent decree ran until six years of its original court filing date. Due to the ineffectiveness of the decree, no replacement order was placed. Continued violations of the ADA by the LSAC recently led to a complete restructure of the test itself. Local to Michigan, Binno v. LSAC produced a paramount decision in 2019 effectively removing the Analytical Reasoning Questions, commonly known as ‘logic games’, for all future examinations starting in August 2024.
This legal history of noncompliance shows the importance of acknowledging the need for effective reforms in ADA regulations. Specifically, how the regulations are ignored by private nonprofit organizations like the LSAC and their administration of graduate admission tests.
For a future that ensures diversity and inclusion in the legal field, a mission statement addressing how the ABA looks to promote the elimination of biases and the enhancement of diversity is no longer adequate. Precedents set forth by the Department of Justice must continue to rewrite past decisions to relate to the new classifications of learning disabilities and disorders. The ADA in itself has not been amended since 2010. The American Psychiatric Association published the 5th version of The Diagnostic and Statistical Manual of Mental Disorders (DSM-5) in 2013, including new inclusive criteria for diagnosing learning disorders. Almost a decade and a half later, the ADA has not been updated to ensure the protection of individuals who fall under the new criteria. In order to truly ensure that the legal field is open to all persons, it is necessary to break down the barriers of entries in place that discriminate against individuals who require equitable test-taking accommodations.
