The National Law Journal: ABA joins disability advocates in pressuring Law School Admission Council

by Karen Sloan – The National Law Journal, February 7, 2012

The American Bar Association has sent a message to the Law School Admission Council that it’s not happy with that group’s handling of requests for special accommodations by takers of the Law School Admission Test.

The ABA’s House of Delegates voted unanimously on Feb. 6 to adopt a resolution urging the council to “ensure that the exam reflects what the exam is designed to measure, and not the test taker’s disability.” The vote came during the ABA’s midyear meeting in New Orleans.

The resolution called upon the council to make its policies clear to people with disabilities; to inform applicants of decisions in a timely manner; and to provide adequate time for appeals of denials of accommodations.

The delegates also took issue with a practice known as “flagging,” by which the council alerts law schools to applicants who have received extra time to complete the LSAT. The resolution was largely symbolic, as the ABA lacks power to compel the council to act.

The council responded that the resolution reflected an “oversimplification” of the factors that determine whether it grants “appropriate accommodations” to disabled test takers.

“In addition, [the council] believes that the ABA’s Commission and House of Delegates based their report and resolution on outdated, incomplete information that does not accurately reflect current practices and does not take into account the actual experiences of disabled test takers,” said council spokeswoman Wendy Margolis.

University of Louisville Louis D. Brandeis School of Law professor Laura Rothstein, who previously has served on the council’s task force on disabilities, responded in writing to the resolution and urged caution. Some undergraduate institutions “overaccommodate” students, she wrote.

She defended “flagging,” saying the council’s analysts have concluded that “it is not psychometrically sound to report test scores of accommodated tests (extra time) as being comparable to those taken under standard conditions.”

Rothstein suggested that the ABA launch a joint task force with the council, the Association of American Law Schools and the National Conference of Bar Examiners to address the way the legal profession treats people with disabilities.

The council has been sued many times by test takers who were denied accommodations including extra time or a separate testing room. Disability advocates have criticized the council for policies that they say create barriers to the legal profession.

The latest such suit was filed on Feb. 3 by a 22-year-old University of Pennsylvania student who requested twice the standard time to take the LSAT. According to the complaint, filed in U.S. District Court for the District of Massachusetts, plaintiff Scott Schlager has been diagnosed with a learning disorder and attention deficit hyperactivity disorder, and has received accommodations throughout his academic career including extra time on tests, the use of a note-taker and a “reduced distraction test environment.”

According to his complaint, Schlager requested time-and-half — or the usual time plus 50 percent — to complete the Oct. 1, 2011, administration of the LSAT. Although his request was approved, Schlager was unable to complete even half the questions on some portions of the test and scored poorly.

He than asked for twice as much time to take the test on Dec. 3, 2011, but was informed that he had missed the deadline for such request. He again requested twice as much time for the Feb. 11 sitting, but was refused for all but one section of the test. He was granted the earlier accommodation of time-and-a-half to complete the other four sections.

His suit claimed discrimination under the Americans With Disabilities Act and asked the court to compel the council to provide the requested accommodation.

In December, the council was sued by New York state resident Lisa Rousso, who requested accommodations for what she claimed was 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 claim did not meet requirements, said her attorney, JoAnne Simon.

On Feb. 7, Rousso finalized a settlement with the council that will provide her with double the standard time for the Feb. 11 sitting, Simon said. While it was a good result for her client, she said, the settlement came only after Rousso underwent an additional neuropsychological assessment to confirm her disability.

“The fact is, not everyone can do that,” Simon said. “These assessments are expensive.”

The council has reported that it receives requests for accommodations from about 2,000 people each year and makes decision on a case-by-case basis. 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.

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