Florida Atlantic U. Student Sues Kaplan for Refusing to Provide Sign-Language Interpreter for LSAT Course

See this piece on Matt Dietz's latest case.

Law School Admissions Council Sues California to Challenge Test-Flagging Law

See this article, which begins:

The Law School Admission Council has sued the state of California over a new law that bars the organization from alerting law schools when applicants get extra time to complete the Law School Admission Test.

The California Legislature approved the legislation in September, with supporters arguing that the practice—also known as "flagging"—discriminates against disabled test takers who need the extra time. The law took effect on January 1 and will apply to scores earned during the February 9 LSAT sitting.

The council filed suit on January 4 in Sacramento County, Calif., Superior Court, seeking to block its enforcement. The council contends that the law is unconstitutional because it violates its freedom of speech and does not apply to other testing entities. Attorneys for the parties are due in court for a hearing on January 9.

N.D. Cal. Grants DOJ Intervention in Challenge to LSAC Denials of Testing Accommodations

See this press release from yesterday.  It begins:

A federal judge issued an order today allowing the Justice Department to intervene in a disability discrimination lawsuit against the Law School Admission Council (LSAC). The department’s intervention expands the case from a statewide class action limited to California residents to a nationwide pattern or practice lawsuit.

The lawsuit, The Department of Fair Employment and Housing v. LSAC Inc. et al., charges LSAC with widespread and systemic deficiencies in the way it processes requests by people with disabilities for testing accommodations for the Law School Admission Test (LSAT). As a result, the lawsuit alleges, LSAC fails to provide testing accommodations where needed to best ensure that those test takers can demonstrate their aptitude and achievement level rather than their disability.

The department’s complaint identifies additional victims of LSAC’s discriminatory policies and details LSAC’s routine denial of testing accommodation requests, even in cases where applicants have submitted thorough supporting documentation from qualified professionals and demonstrated a history of testing accommodations since elementary school.

The department further alleges that LSAC discriminates against prospective law students with disabilities by unnecessarily “flagging” test scores obtained with certain testing accommodations in a way that identifies the test taker as a person with a disability, disclosing otherwise confidential disability-related information to law schools during the admissions process. LSAC’s practice of singling out persons with disabilities by flagging their scores –– is discrimination prohibited by the Americans with Disabilities Act (ADA). The department’s proposed complaint seeks declaratory and injunctive relief, compensatory damages and a civil penalty against LSAC.

DOJ Moves to Intervene in Testing Accommodations Lawsuit Against LSAC

See this press release, which begins:

The Justice Department announced today that it seeks to intervene in a class action lawsuit against the Law School Admission Council (LSAC) in federal court in San Francisco to remedy violations of theAmericans with Disabilities Act (ADA). The lawsuit, The Department of Fair Employment and Housing v. LSAC, Inc., et al., charges LSAC with widespread and systemic deficiencies in the way it processes requests by people with disabilities for testing accommodations for the Law School Admission Test (LSAT). As a result, the lawsuit alleges, LSAC fails to provide accommodations where needed to best ensure that those test takers can demonstrate their aptitude and achievement level rather than their disability.

The department’s proposed complaint identifies additional victims of LSAC’s discriminatory policies and details LSAC’s routine denial of accommodation requests, even in cases where applicants have submitted thorough supporting documentation from qualified professionals and demonstrated a history of testing accommodations.

The department further alleges that LSAC discriminates against prospective law students with disabilities by unnecessarily “flagging” test scores obtained with certain testing accommodations in a way that identifies the test taker as a person with a disability and discloses otherwise confidential disability-related information to law schools during the admissions process. LSAC’s practice of singling out persons with disabilities by flagging their scores – essentially announcing to law schools that examinees who exercise their civil right to the testing accommodation of extended time may not deserve the scores they received – is discrimination prohibited by the ADA. The department’s proposed complaint seeks declaratory and injunctive relief, compensatory damages and a civil penalty against LSAC.

“Credentialing examinations, such as the LSAT, are increasingly the gateway to educational and employment opportunities, and the ADA demands that each individual with a disability have the opportunity to fairly demonstrate their abilities so they can pursue their dreams,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division. “The Justice Department’s participation in this action is critical to protecting the public interest in the important issues raised in this case.”

One of the victims identified in the complaint, for example, has severe visual impairments and previously received special education services at a school for people who are blind. Even though she provided LSAC with extensive medical documentation of her conditions, as well as proof that she had received testing accommodations since kindergarten, LSAC denied nearly all her requested accommodations, and even refused to provide her a large print test book. When she tried to appeal the denial, LSAC informed her that she had missed the deadline for reconsideration. She then reapplied two more times for testing accommodations, resubmitting all the information previously provided to LSAC, as well as additional medical documentation. Despite her extensive history of receiving the very same testing accommodations throughout her educational career and on standardized tests, and in disregard of the recommendations of a qualified professional, LSAC refused her requested testing accommodations on three separate occasions.

You can find DOJ's complaint in intervention here.

SLU is Sued by Ex-Med Student with Learning Disability

See this article by that title in the St. Louis Post-Dispatch.  It begins:

St. Louis University's medical school is being sued by a former student with a learning disability who says he wasn't given enough time to complete tests. 

The lawsuit, claiming violations of the Americans with Disabilities Act, was filed last week in federal court in St. Louis on behalf of the student, who was identified as John Doe. The lawsuit says the student was kicked out of the SLU medical school after failing multiple timed tests required to progress through school.

Guest Prawfs Post on Timed Exams and Testing Accommodations

I have a somewhat lengthy guest post over at Prawfs on timed exams and testing accommodations.  It may interest one or the other of the readers of this blog.

Kentucky to Avoid Testing Lawsuit for Now?

See this update from On Special Education on the Kentucky story from last week.  The state has apparently decided to delay its no-readers rule until next school year.

ABA Joins Disability Advocates in Pressuring LSAC

See this article by that title in the National Law Journal.  It begins:

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.

Kentucky Invites a Lawsuit

See this post from On Special Education.  It begins:

This week, the Kentucky Board of Education banned the use of readers on state tests, whether that means people or computer software that read text aloud, an accommodation used by some students with disabilities, who also use this kind of help in class every day. The switch affects end-of-year state exams, as well as the National Assessment of Educational Progress or NAEP. 

The shift has some people alarmed, especially about the effect on students whose education plans (IEPs) require the use of a reader. Apparently, the switch was driven in part by the goal of reducing how many students' scores are eliminated when calculating NAEP scores. State exclusion rates on NAEP, often called the nation's report card, have dropped recently, but some state exclusion rates remain high. When students are excluded, there are obvious questions about whether a state's scores actually reflect all of the state's students. 

Special education advocates opposed the move, including hundreds of Kentucky teachers. The Kentucky Department of Education wanted to delay the elimination of readers, but the state board didn't agree.

If the blog post is describing this policy accurately, I don't see how the policy can possibly be consistent with the ADA.  It's not just people with learning disabilities but also, for example, blind people who use readers (and equivalent software).  A blanket rule against readers and equivalent software would be very difficult to justify, even granting that the state has a clear interest in encouraging reading among (some? many?) who get these accommodations now.

Yingling on Testing Accommodations Under the ADAAA

Just out: M. Patrick Yingling, Learning Disabilities and the ADA: Licensing Exam Accommodations in the Wake of the ADA Amendments Act of 2008, 59 Clev. St. L. Rev. 291 (2001).  The introduction:

“That's the real problem with kids who struggle with learning . . . Some kids feel like they're stupid. I want them to know that they're not. They just learn differently. Once they understand that and have the tools to learn in their individual way, then they can feel good about themselves.”  This quote from Charles Schwab, the financial pioneer who discovered that he had dyslexia at the age of 40, embodies the importance of having federal statutes, such as the Individuals with Disabilities Education Act and Section 504 the Rehabilitation Act, that guarantee special education programs and reasonable accommodations to eligible students with learning disabilities. However, learning disabilities are not exclusive to the formal education process. In fact, learning disabilities often remain with individuals long after their experiences as students. Unfortunately, until the enactment of the Americans with Disabilities Act of 1990 (“ADA”), individuals with learning disabilities often faced a roadblock when seeking to make the transition from student to professional. The roadblock came in the form of a state licensing exam. 

The ADA was the first piece of federal legislation to guarantee accommodations on state licensing exams for individuals with learning disabilities.  The ADA had the purpose of assuring “equality of opportunity” and the “elimination of discrimination” in regard to all individuals with disabilities.  However, over the course of two decades, the courts steadily narrowed the ADA's scope of protection.  Individuals with learning disabilities who sought accommodations on licensing exams experienced the negative effects of such judicial interpretations. As a result, Congress took action to restore a “broad scope of protection” under the ADA by enacting the ADA Amendments Act of 2008 (“ADAAA”).  

This Article argues that the courts must be cognizant of Congress' intention to broaden the scope of the ADA, especially in regard to reading impaired individuals who request reasonable accommodations on licensing exams. Part I examines the ADA's protections for individuals with learning disabilities. Part II discusses the applicability of the ADA to licensing exams, including state bar exams. Part III examines case law over the past twenty years pertaining to learning impaired individuals who have requested accommodations on licensing exams. Part IV analyzes the ADAAA and focuses on its potential to change the status quo for learning impaired individuals who request accommodations on licensing exams. Finally, Part V puts forth recommendations for the courts to provide appropriate standards for individuals requesting accommodations on licensing exams under the amended ADA. Specifically, this Article suggests that: (1) courts should no longer foreclose the finding of a substantially limiting impairment in regard to the major life activity of reading due to an individual's academic success; (2) “working” should be recognized as an appropriate major life activity under which to evaluate claims for accommodations on the bar exam (and possibly other licensing exams), with such evaluations involving a comparison to most people having comparable training, skills, and abilities; and (3) reading disabilities should be recognized not only by psychometric tests that show a substantial limitation in comparison to most people, but also by test scores that indicate a significant discrepancy between an individual's intellectual capacity and actual reading ability. By following these recommendations, the courts will be able to evaluate future claims for accommodations on licensing exams with standards that reflect Congress' intention to provide a broad scope of protection under the ADA.

GAO Report on Enforcement of ADA Testing Accommodations Requirements

While I was away, the Government Accountability Office release this report on the federal government's enforcement of the ADA's testing accommodations requirements.  The report is quite critical of what it sees as the lack of coordinated and strategic enforcement by the Justice Department.  I think the report makes some very good points, but I also think it inappropriately downplays the significance of the DOJ's new ADA regulations, which strengthen the testing accommodations provisions, and the DOJ's participation in a number of significant recent testing cases.  Still, a very important read.

National Law Journal on Accommodations for the LSAT

See this article, which begins:

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."

Brain Surgery Survivor Sues to Obtain Access to LSAT

Disability law and testing guru Jo Anne Simon passes along this press release, issued yesterday:

Long Island resident Lisa Rousso woke up one morning in January 2005 feeling like her world had suddenly shifted on its axis. She was diagnosed with a brain lesion and underwent major surgery for its removal a month later, leaving her with a permanent disability. After years of rehabilitation to learn compensatory techniques, she was diagnosed with a disorder called Cognitive Disorder-NOS, which causes slow reading and writing and extraordinary fatigue.

Under the Americans with Disabilities Act (ADA), prospective students with disabilities are entitled to testing modifications that best ensure that the test results assess their abilities, not their disabilities. When she applied for accommodations for the December 3, 2011 LSAT -- and satisfied the organization’s requirements for documenting a cognitive disability -- instead of extended time and extra breaks, she got the runaround. “First they told me the file never arrived, so I re-sent it – twice – but I was only told my application was deficient. But they never told me how,” said a frustrated Rousso.

Rousso finally hired attorney Jo Anne Simon to submit her application yet again in hopes that the Law School Admissions Council (LSAC) would respond and confirm receipt of her documents. But after 10 days, and too late to submit new information for the December exam, Simon received a letter saying that Rousso’s neuropsychological evaluation was no good. The LSAC asserted that her condition was likely to improve. However, it never stated why it believed a permanent condition would improve. 

Today, Rousso filed suit in the federal district court in Brooklyn, NY alleging the LSAC violated her rights under ADA. The LSAC is no stranger to lawsuits of this type. “The LSAC can’t continue to send cryptically worded messages to applicants with disabilities expecting that they will be either clairvoyant or cured,” said Simon who regularly represents people with disabilities in similar circumstances. “Nothing in Ms. Rousso’s evaluation suggested her condition would improve so as to take her out of the protections of the law.” Simon noted that while the ADA was recently amended to ensure the law’s original intent to protect a broad class of individuals, she notes that even under the more restrictive Supreme Court rulings rejected by Congress in 2008, Rousso would have been protected.

DOJ Files Amicus Brief in Second Circuit Supporting "Best Ensure" Standard for Testing Cases

Yesterday, the Civil Rights Division of the US Department of Justice filed an amicus brief in Jones v. National Conference of Bar Examiners, No. 11-3355 (2d Cir., pending).  The case involves the proper standard for assessing a request for an accommodation on a professional examination.  The DOJ brief argues:

Plaintiff seeks to take the bar examination on a computer using assistive software to accommodate her vision and learning disabilities. Defendant asserts that it is required only to provide accommodations that are, in a general sense, reasonable. Section 309, however, specifically addresses professional examinations, and provides that they must be offered in a manner that is “accessible to persons with disabilities.” The implementing regulation provides that the examination must be administered so as to “best ensure” that the examination results accurately reflect the applicant’s aptitude or achievement level, rather than reflect the individual’s disability. The district court correctly concluded that the regulation is a reasonable construction of the statute and is entitled to deference under Chevron. Therefore, the “best ensure” standard in the regulation is an authoritative interpretation of the statute and applies in this case. The more generalized reasonableness standard, used in other provisions of the ADA, does not override the more specific regulation directed at disability-based discrimination in testing.

Michigan AG Files Amicus Brief in Support of Claim that LSAT Discriminates Against Blind Test-Takers

See this report, which includes a copy of the brief.

Enyart Wins Summary Judgment Against National Council on Bar Examiners

See this press release:

Berkeley, California (October 26, 2011): On Monday, October 24, the Honorable Judge Charles R. Breyer ended a two-year legal battle between a blind law school graduate and a national testing corporation over the graduate’s right to use a computer equipped with assistive technology to take the California Bar Exam.  Granting Stephanie Enyart’s motion for summary judgment, Judge Breyer found that Ms. Enyart is entitled to take the bar exam on a computer equipped with text-to-speech screen reading and visual screen magnification software, as the method that will best ensure that she is tested on her aptitude rather than her disability. Stephanie Enyart, who graduated from UCLA School of Law in 2009 and first sought to take the bar exam that same year, was forced into court by the refusal of the National Conference of Bar Examiners (NCBE) to allow her to take the bar exam using her primary reading method, a computer equipped with screen reading and screen magnifying software.  Ms. Enyart, who became blind in her early adulthood as a result of macular degeneration, has relied on screen reading and screen magnifying technology to read since college, through law school, and in her professional career. Although Ms. Enyart won a preliminary injunction in early 2010, ordering NCBE to provide her requested accommodations, the case has remained in court for almost two years, as NCBE unsuccessfully challenged the district court’s preliminary injunction order first to theCourt of Appeals for the Ninth Circuit, and then to the United States Supreme Court. NCBE argued that it fulfilled its legal obligations to Ms. Enyart by offering accommodations such as Braille or a human reader—notwithstanding evidence that these alternatives do not work well for Ms. Enyart. The courts resoundingly rejected that argument, holding that licensing examinations must be administered to exam takers with sensory impairments in a manner that “best ensures” that they are tested on what the examination purports to measure, rather than on the exam takers’ impairments. Dr. Marc Maurer, President of the National Federation of the Blind, said: “Although blind people have practiced law successfully throughout history, we still face unreasonable and unwarranted barriers to entering and achieving success in the profession.  Judge Breyer’s decision is a tremendous step forward in granting blind Americans seeking to enter the practice of law full and equal access to the process of acquiring their credentials.  We applaud this common-sense ruling and expect full compliance going forward from the National Conference of Bar Examiners.” Anna Levine of Disability Rights Advocates, an attorney representing the plaintiff, said, “Judge Breyer’s decision vindicates Stephanie Enyart’s request to take the bar exam on a computer, so that she can be tested on what other examinees are tested on, rather than on how well she uses an unfamiliar reading method.  We only wish that NCBE had not fought this simple, justified request so aggressively over the past two years.”           The suit was filed on November 3, 2009, and charged that the NCBE violated the Americans with Disabilities Act (ADA) and California’s Unruh Civil Rights Act by denying accommodations on the Multistate Bar Examination and the Multistate Professional Responsibility Examination, two components of the California Bar Exam controlled by NCBE.  The State Bar granted Ms. Enyart’s request to use a computer on the essay portions of the bar exam, but was unable to grant her request on the portions controlled by NCBE.  Ms. Enyart was represented with the support of the National Federation of the Blind (NFB) by Brown, Goldstein & Levy, LLP, in Baltimore, Maryland, and the LaBarre Law Offices, P.C., in Denver, Colorado.  The plaintiff was further represented by Disability Rights Advocates (DRA), a national nonprofit law center that specializes in civil rights cases on behalf of persons with disabilities, with offices in Berkeley, California, and New York City.