In March 2012, the California Department of Fair Employment and Housing (DFEH) filed a complaint in the Alameda County Superior Court (San Francisco, CA) alleging that the Law School Admissions Council (LSAC) discriminated against and routinely failed to grant appropriate accommodations for test takers with disabilities on the Law School Admissions Test (LSAT). DFEH claimed that LSAC violated the federal Americans with Disabilities Act (ADA), and the California Unruh Civil Rights Act, which incorporated by reference all ADA violations. DFEH brought this claim on behalf of 17 California-based LSAT test takers. In April 2012, because the case involved alleged violations of a federal statute, LSAC removed the case to the U.S. District Court for the Northern District of California.

DFEH claimed that LSAC violated the ADA in several ways. First, DFEH alleged that LSAC counted "mitigation measures" (steps taken to reduce the effects of a disability) as undermining a claim by test takers that they had a disability, even though that approach was explicitly prohibited by the ADA under the ADA Amendments Act of 2008. Second, DFEH alleged that LSAC's disability policy failed to "best ensure" that the test measure what it intended to rather than the test taker's disability in violation of the testing provision of Title III of the ADA (42 U.S.C. 12189) and its accompanying regulation (28 C.F.R. 36.309). Third, DFEH alleged that LSAC's policy of "flagging" (annotating the score reports to indicate when a test taker has received an accommodation) violated the ADA, including its prohibition against intimidation or threats against the exercise of ADA rights. Finally, DFEH alleged that LSAC had a pattern of denying reasonable accommodations to test takers, again in violation of the ADA.

On May 17, 2012, LSAC filed a motion to dismiss. It argued that 1) DFEH did not have subject matter jurisdiction; and 2) that even if DFEH was within its power under California law, it failed to state a federal claim upon which relief could be granted. On June 27, 2012, the United States Department of Justice filed a statement of interest supporting DFEH's interpretation of the ADA. DOJ then moved to intervene as a plaintiff in the case on September 5, 2012. In its motion, DOJ cited eight more complainants who were denied accommodations on the LSAT. The Legal Aid Society - Employment Law Center also filed a motion to intervene as plaintiffs on July 27, 2012.

On September 18, 2012, Judge Edward M. Chen issued an order granting in part and denying in part LSAC's motion to dismiss. Judge Chen denied LSAC's motion with respect to each of the substantive claims in the complaint. The Judge granted LSAC's motion to dismiss the case with respect to the defendants whose names were unknown to DFEH at the time of filing. 896 F.Supp.2d 849 (N.D. Cal. 2012).

On October 12, 2012, Judge Chen granted the United States' motion to intervene. The court also allowed the Legal Aid Society - Employment Law Center to intervene, but only to the extent that it represented its three individual complainants. 2012 WL 5077126 (N.D. Cal. Oct. 18, 2012).

On November 9, 2012, LSAC filed a motion to partially dismiss on the basis of improper venue with respect to non-California residents added in the amended complaint. The defendant alleged that that unreasonable expansion of litigation beyond the scope of California residents would impose undue costs and burden. On January 29, 2013, the motion was denied.

DFEH filed a First Amended Group and Class Action Complaint on February 7, 2013 seeking damages and injunctive relief. DFEH moved to proceed for class or group relief on February 21. On March 27, it filed a Second Amended Group and Class Action Complaint. The motion to proceed as a group or class was granted on April 22, 2013.

On September 27, 2013, Judge Chen granted DFEH's motion to file a third amended complaint. The complaint added allegations that LSAC violated California Education Code 99161.5 by: [1] requiring excessive and unnecessary documentation before it would give accommodations; [2] providing an arbitrary and unreliable system of appeals from its accommodations decisions; and [3] by flagging tests that received accommodations in clear violation of the text of the statute. These charges were added after a California Court of Appeals Decision reversed a trial court injunction prohibiting California from enforcing 99161.5 of the Education Code as it violated LSAC's rights under the California Constitution. See LSAC v. California DR-CA-0047.

Meanwhile, the case was referred to Judge Joseph C. Spero for settlement conferences in March 2013. Conferences throughout 2013 and 2014 resulted in a settlement: on May 20, 2014, the parties entered into a proposed consent decree, which included injunctive relief.

Set to last for 4 years, it required the LSAC to comply with the ADA, its implementing regulations and relevant California Law and cease from score flagging. The agreement requires:

• LSAC must permanently discontinue practice of "flagging" scores of individuals who received accommodations.
  
• LSAC must provide the same or similar accommodations to individuals who have previously received them on tests for admission to any post-secondary educational institutions so long as the individuals provide documentation indicating that they were approved for such accommodations and the individual indicates that he or she is still experiencing the disability (there is an exception for testing accommodations that cannot be administered in one day)
  
• LSAC's request for documentation shall be reasonable and limited to the testing accommodation requested.
  
• LSAC must give "considerable weight to accomodations previously received under 504 or IEP plan.
  
• LSAC may not refuse accommodations based solely on the fact that the applicant has not previously received accommodations.
  
• LSAC must remove its requirement for an explanation on a request for accommodation form from an evaluator why an individual with a mental impairment was not evaluated while on medication.
  
• LSAC is required to appoint an independent monitor.
  
• LSAC is required to diversify the variety of expert consultants it uses to evaluate requests for accommodations.
  
• LSAC, the United States, and DFEH appointed members to a panel of experts in ADA compliance that will create best practices that LSAC will be required to follow in regard to among other things, the appropriate documentation LSAC can request, whether more than one qualified profession should review applications for accommodations.


• Any party could appeal the panel's report to the District Court if it believed that the recommendations violated the ADA or its implementing regulations, or California law where applicable, or conflicted with provisions of the Decree.
  
• For the length of the decree the LSAC will keep records of all individuals requesting accommodations on the LSAT and make report of those records to the monitor, the United States, and the DFEH.
  
• LSAC paid a total of about $8,730,000. This included a civil penalty of $55,000 for violating the ADA (though LSAC denied that it violated the ADA); $7,675,000 in compensatory damages to individual complainants and a fund to compensate those who took the test under the accommodations policies in place from January 2009 to May 2014; and $1 million in attorneys' fees to DFEH and the Legal Aid Society Employment Law Center.

On January 26, 2015, the panel issued its report, which recommended many additional policy changes. Examples included automatic review by an outside expert when the council denies requests; submission of medical documentation dating to when the test taker was 13 years old, in certain cases; and different levels of supporting documentation depending on the accommodations sought.

LSAC appealed the bulk of the report in court on March 26, 2015, arguing that the recommendations conflicted with the decree. The matter was referred to Magistrate Judge Joseph Spero, who on August 7, 2015, granted in part and denied in part the defendant's appeal, holding that the panel had substantially stayed within its mandate. The ruling did invalidate several minor recommendations. For instance, he said, the council did not have to accept evidence that was more than five years old in support of a claim of mental or cognitive impairment; council staff who review accommodations didn't have to complete their reviews within two business days; and the council didn't have to allow at least one panel member to help train the staff who reviewed accommodation requests. 2015 WL 4719613 (N.D. Cal. Aug 7, 2015).

On October 27, 2017, DFEH filed motions of contempt and in limine, claiming that the defendant had violated court orders and deficiencies in the monitor's reports. With the consent decree scheduled to lapse in May 2018, DFEH requested that the court extend the term of the consent decree by two years, replace the ADA monitor and require quarterly audits, grant the DFEH and DOJ access to LSAC's records, and award attorney's fees and costs. DFEH also sought to exclude any findings and reports found by the appointed Monitor. A number of organizations filed amicus curie briefs to support the plaintiffs' motion of contempt, alleging LSAC's history of disability discrimination in its accommodations practices.

On March 5, 2018, Judge Spero granted the motion for a contempt finding and denied the motion in limine. Concluding that the Monitor's conclusions held no bearing on LSAC's contempt of the consent decree, the court found that LSAC's use of "50% emails" to respond to requests for accommodations was in violation of the court's order of compliance because it was an effective denial of disability accommodations in some instances and acted as a "further inquiry" into candidates' eligibility for accommodation. Additionally, "no decision reports" and LSAC's repeated refusal to grant DFEH access to certain files and records for candidates in California also violated the consent decree. LSAC did not substantially comply with the consent decree enough to shield it from an order of contempt. The court granted an extension of two years of the term of the consent decree, incorporation of the Best Practices report into the decree, additional audits by the Monitor, and fees and costs. 2018 WL 1156605. The consent decree will run until six years of the original court filing date, ending on May 20, 2020.

While expressing concerns for the Monitor's performance, the court did not order replacement. Instead, it laid out concrete expectations for his duties moving forward with the decree, including two additional annual audits of LSAC for the remainder of the term.

This case is ongoing.

Beth Kurtz - 10/02/2012
Brian Kempfer - 05/25/2014
Jessica Kincaid - 04/08/2016
Chelsea Rinnig - 03/11/2018


compress summary