The National Law Journal – December 6, 2011 – by Karen Sloan
The Law School Admission Council is no stranger to litigation over its testing policies. The organization has been sued numerous times by would-be takers of the Law School Admission Test who were denied accommodations for what they claimed were disabilities.
Now the American Bar Association’s Commission on Disability Rights has asked the council to change the way it handles requests for testing accommodations, to “ensure that the exam reflects what the exam is designed to measure, and not the test taker’s disability.”
That language came from a resolution the commission has drafted for a vote by the ABA’s House of Delegates during its midyear meeting in February. The document urges the council to remove communication barriers with accommodation seekers, change its rules regarding accommodations, and offer auxiliary aids and services to disabled test takers.
The resolution also calls upon the council to make its policies clear to those with disabilities, to give applicants decisions in a timely manner, and to provide adequate time for appeals of denials of accommodations.
“The testing process for law school admission remains an obstacle to the full and equal participation of individuals with disabilities in the legal profession,” the commission said in a report accompanying the resolution. “Students with disabilities are substantially underrepresented at law schools across the country.”
A number of other ABA sections, state bars and affinity bar groups support the resolution, including the Oregon State Bar, the State Bar of Wisconsin and the Utah State Bar.
The LSAC has taken no formal position on the resolution, but spokeswoman Wendy Margolis said it “appears to be based on misinformation or incomplete information.” No one from the commission contacted the council during the drafting process, Margolis said.
Even if the ABA adopts the resolution, it would be largely symbolic. The ABA has no authority to compel the council to act. However, the ABA’s Standards Review Committee — which is evaluating the ABA’s law school accreditation standards — is considering whether to drop a requirement that law schools consult the LSAT for admissions decisions.
Commission chair Katherine O’Neil said that members of the panel have had informal contact with LSAC administrators in hopes of persuading them to modify the process. Those efforts went nowhere, she said.
“As the chair of the Commission on Disability Rights, I can’t formally approach the board of the LSAC without this resolution in my hand,” O’Neil said. “This is just a way to have a pointed dialogue.”
One practice the commission hopes to see eliminated is that of “flagging” — noting to admissions officials when a test taker receives an accommodation. The administrators of the SAT and ACT eliminated flagging in 2003, concluding that accommodated test scores were comparable to non-accommodated scores, the commission’s report noted.
However, the LSAC’s research has shown that the scores of test takers who received accommodations are not comparable to scores of those who did not, Margolis said. Additionally, the council flags the scores only of people who receive extra time on the test, not of other forms of accommodation.
According to LSAC research, approximately 2,000 people apply for accommodations each year, and about 50 percent of those requests are granted in some form. The most common accommodations are a separate testing room, extra time to take the test and extra rest time between sections of the test. People with learning disorders account for the single largest group of accommodation seekers.
Better communication and more transparency are badly needed, said disability rights attorney Jo Anne Simon. She has assisted LSAT takers seeking accommodations for years, and now represents a New York state woman who was denied accommodations in a lawsuit against the LSAC. The client, Lisa Rousso, requested accommodations for what she claims is a cognitive disorder that resulted from a brain lesion doctors removed in 2005. She sought extra time and rest breaks because she reads and writes more slowly as a result of her condition, according to her complaint.
The council denied her request, saying that the documents she submitted to support her disability claim did not meet requirements, Simon said.
“There’s an issue with timeliness and also an issue with what they communicate and whether that is clear,” Simon said. “Sometimes, their rationale for believing you don’t have a disability can be lengthy. Other times, they give you no rationale. That seems inconsistent.”
Sometimes those explanations come after the deadline for the test sitting people are seeking accommodations for, and sometimes applicants are simply referred back to the guidelines posted on the LSAC’s Web site — even though they believe they have already met those guidelines, Simon said.
“There is almost a Kafkaesque circuitry here,” she said. “I don’t think it should be a mystery how to get accommodations. It shouldn’t be confusing.”
The LSAC responds to the requests for accommodation received by the published deadline within two weeks, Margolis said.
O’Neil said that she knows of no opposition to the commission’s resolution and expects it to pass.