National Law Journal: $8.7M Settlement Ends 'Flagging' of Disabled LSAT Takers

By Karen Sloan

The Law School Admission Council will stop "flagging" the Law School Admission Test scores earned by candidates who receive disability accommodations under a settlement reached Tuesday with the U.S. Department of Justice and the state of California.

The council has long alerted law schools when test takers with disabilities or impairments received extra time to complete the LSAT, a policy known as flagging. The council does not flag scores earned with other types of accommodations, such as extra break times between test sections or specialized software that enables disabled takers to use computers.

The practice is one of several that prompted the California Department of Fair Employment and Housing to file suit in 2012, alleging the council was denying reasonable accommodations to disabled test takers and subjecting them to an onerous documentation process. The U.S. Department of Justice joined the suit in fall 2012, alleging violations of the Americans With Disabilities Act.

In addition to ending its flagging policy, the council will pay $8.73 million--$7.73 million for the 6,300 people who applied for accommodations between January 2009 and May 2014. The rest will cover attorney fees and the state's administrative costs.

"This settlement ensures fairness and levels the playing field for persons with disabilities to enter the legal profession," Anna Caballero, secretary of California's Business, Consumer Services and Housing Agency, said in a written statement.

The council released a statement alleging that the Department of Justice had changed its tune on flagging since 2002, when it helped the council draft language explaining its policy. DOJ has known about the policy since at least 1986, the council said.

"It was only in 2012, when it joined this lawsuit, that the DOJ attempted to establish new rules by way of this enforcement action," the council said. "The [council] believes it would have been more appropriate, and more productive for all concerned, for the DOJ to change its views through a traditional notice-and-comment rulemaking that involved all parties who are affected by the DOJ's testing accommodation regulations."

Still, the council felt it best to avoid years of expensive litigation, it said. "We decided to resolve this case not because we believe that we were wrong in our position, but because we do not think that continued litigation is in the best interests of our members schools or prospective law students."

The settlement was welcomed by Jo Anne Simon, a disability rights attorney in New York who has represented many plaintiffs in accommodation cases against the council. Five of the eight LSAT takers mentioned in the Justice Department's complaint were her clients.

"I think this is a groundbreaking settlement," she said. "It has broad, national implications for the disabled community."

The council's accommodation procedures have been the subject of a number of Justice Department actions, but earlier settlements focused on individual cases or segments of the disabled community, Simon said. For instance, the Justice Department helped the council and the National Federation of the Blind reach a settlement in 2011 that made the council's law school application website accessible to the visually impaired.

But the elimination of flagging will affect many more disabled test takers, she said. "The agreement to cease flagging is so important," she said. "[The council] did it in a much more aggressive manner than other testing organizations. They would send a letter to the law school saying, for all intents and purposes, 'Be careful of these scores.' "

Moreover, none of the previous settlements included this level of monetary compensation for those who have been denied accommodations, Simon said.

Council leaders have long maintained that flagging is appropriate because LSAT scores earned with additional time do not predict success in law school as well as scores earned under standard conditions. And accommodation requests deserve scrutiny because LSAT scores play such an outsized role in law school admission, they have argued. The council on average receives about 2,000 requests for accommodation each year and approves approximately half.

Disability advocates have countered that the council's process for granting accommodations has functioned as a barrier into the legal profession for those with disabilities.

The consent decree calls for the council to change the way it handles accommodation requests. For example, if a test taker has been approved for accommodations on another standardized test, the council will no longer require additional evaluation. Plaintiffs have alleged the council's documentation process is lengthier and more detailed than those of other standardized testing organizations.

The council agreed to diversify the expert consultants it uses to evaluate accommodation requests. Both parties will select a panel of experts to draft new best practices.

"This landmark agreement compels systemic reforms to [the council's] treatment of test takers with disabilities and brings an end to [the council's] stigmatizing practice of flagging the score reports of individuals with disabilities who require certain testing accommodations,"Jocelyn Samuels, acting assistant attorney general the DOJ's Civil Rights Division.