LSAC and the ADA: A Harvard Law Grad Looks at the Facts

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One of the most controversial issues surrounding the LSAT is special accommodations given to disabled test takers. Head to any law school-related message board and ask a question about how to apply for accommodations during an LSAT, and you’re guaranteed to start a flame war.

For quite some time, it’s been nearly impossible to get accommodated LSAT testing. Even students with a long history of accommodations (through other schooling and standardized testing) have been denied it by the LSAC. It was almost necessary to take them to court to have any chance of getting accommodations, claiming the policy violates the ADA.

So does the LSAC’s policy violate the ADA? While researching this article, I found plenty of people claiming it does, but without any reference to the legislation itself. Most arguments just asserted it as an accepted fact. Same with those arguing it doesn’t violate the ADA. So let’s take a look at the relevant language.

The ADA in relevant part states that:

Sec. 12189. Examinations and courses

Any person that offers examinations or courses related to applications, licensing, certification, or credentialing for secondary or postsecondary education, professional, or trade purposes shall offer such examinations or courses in a place and manner accessible to persons with disabilities or offer alternative accessible arrangements for such individuals.

The LSAC concedes that its actions (and the LSAT) are governed by this section and they therefore have to provide accommodations for anyone considered disabled.

The next question, then, is what is considered ‘disabled’ under the act? It is ‘a physical or mental impairment that substantially limits one or more major life activities of such an individual.’

Answer the question? Not really. What does it mean to be substantially limited? And what is a major life activity?

Let’s look at the latter question first, as it’s less important. The ADA defines a major life activity by example, saying they ‘include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working’ (emphasis added). Personally, I believe it’s clear that the LSAT includes major life activities.

So we know that the LSAC falls under the Examinations/Courses section of the ADA and that the LSAT definitely involves major life activities. So how can they argue against most testing accommodations?

It comes down to the last definition – that of substantially limited. The CFR states that ‘substantially limited’ means that an individual is:

(i) Unable to perform a major life activity that the average person
in the general population can perform; or

(ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.

Furthermore, the Supreme Court held in Toyota Motor MFG. v. Williams (534 U.S. 184 (2002)) that:

We therefore hold that to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives. The impairment’s impact must also be permanent or long term.

Finally, the ADA places the burden on the person bringing the claim to submit proof that they are substantially limited in their major life activities (Albertson’s, Inc. v. Kirkinburg, 527 U.S. 555 (1999)).

The best (and, really, only) line of attack that the LSAC can use against those asking for accommodations is that, while they may be limited by that disability, they aren’t substantially limited. To prove substantial limitation in court, a plaintiff generally has to show a long history of impairment that they were unable to cope with through means other than accommodation; that they viewed themselves as being substantially limited in the relevant activities (thinking, concentrating); and that the substantial limitation must be reflected in nearly all aspects of their academic history.

Recently, the ABA called on the LSAC to adjust their policy and provide these LSAT test takers with accommodations (extra time, quiet rooms, scrap paper, etc.). However, I wouldn’t expect much of a change to their policy based on this ‘request’ from the ABA. Here are LSAC Director of Communications Wendy Margolis’s thoughts:

“LSAC 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.”

Rather, challenges coming from the DoJ that result in settlements agreeing to accommodations for specific students (as seen here) provide a much more likely outlet for an eventual change in the LSAC’s policy, if there is to be one.

So did I completely avoid the issue as to whether the LSAC is violating the ADA? You bet I did – I’m not stepping into that quagmire. Hopefully, though, everyone out there (no matter which side of the issue they fall on) is a little better informed on the legislation and case law surrounding the issue and can approach the topic knowing what the law actually is.

Sources
Americans with Disabilities Act
Code of Federal Regulations
Toyota Motor Manufacturing, Kentucky, Inc. v. Williams (534 U.S. 184 (2002))
Albertson’s, Inc. v. Kirkinburg (527 U.S. 555 (1999))
Jonathan Love v. Law School Admission Council, Inc.

3 Responses

  1. Angelica says:

    This is a great article. I became a c4 quadriplegic in 2009 after discovering a large tumor in my spinal cord. I require central nervous system depressants that affect fatigue, thinking and concentration, as well as a manual wheelchair with deficits in my upper and lower extremities AKA HANDS, making it hard to write or hold a pencil. LSAC only granted me the use of scratch paper and an alternative Scantron for Oct 2011. Anyway, details aside, while I did get into my first choice law school, I have to wonder if things would’ve ended up differently for me if full accommodations were granted. I just figured it was more important to spend time studying for the exam at that point. Sigh. Anyway, great read!

  2. AJ says:

    Interesting read. Before submitting my post I took the time to familiarize myself with the case law surrounding this issue. I do not disagree with the ruling in favor of LSAC; however, I feel more attention needs to be paid towards the criteria defining reasons for accommodation. Clearly, someone who has a chronic learning disability should be allowed to test under accommodations if and only if they have provided compelling evidence that warrants such reasons for accommodation. Since, the plaintiff scored within the median range on the LSAT his argument for accommodation is unfounded even though he provided the results from a battery of tests that determined he was disabled. In order for the ruling to have been in the favor of the plaintiff what would the ruling have looked like? He performed like an average student, took a series of standardized tests that resulted in average test scores, and didnt show any signs of social disabilities. Would it be safe to say that if he had not performed on an average level on these standardized tests and had the necessary disability scores that reflected a disability then he would be entitled to testing accommodations? It’s a tough one to call. But, being that the definition of having a disability is that which prevents one from performing on the same level as that of the average person, it becomes clear that the plaintiff does not fall under that definition. However, I do not agree that the definition of disability should be weighed solely on its impact with extreme cases. If one has documentation that reflects his disability being below average then he should be accommodated if and only if he has not shown instances of being average or above average in other areas, like standardized tests. I have taken the LSAT 3 times. The first time I scored 141. The second time I scored 143. And, the third time I scored 145. Now, the third time I took the test the testing environment was not conducive for test taking. There was construction noise that could be heard from the adjacent room for almost the entire test. I submitted a formal complaint to LSAC, and was given the option to report score with an explanation or cancel my score with an explanation. It wasn’t until recently that I learned about the testing accommodations, and have begun the process to submit all the necessary tests and evaluations to secure a test under accommodations. I have the history of learning disabilities (not quite as documented like the plaintiff), but documentation, nevertheless. In preparing for the test I would take untimed diagnostic exams, and scored very well (168). But, under timed conditions, well you can just look at my actual scores to determine I didn’t do too well. Not sure if I will have a fighting chance, but obviously there is a disability present, and one that hasn’t caused me to pay attention to it until recently. If LSAC bases the need for accommodation on being below average on standardized tests and documentation from having a disability then I guess I qualify for accommodated testing. The ruling seemed to have hinged on the plaintiffs unsuccessful argument of being below average. What will my outcome be? We shall see.

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