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. Next, 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, arguing first that DFEH did not have jurisdiction to bring this sort of claim, and second 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 28, 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 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.

The case then settled: on May 20, 2014, the parties entered into a proposed consent decree resolving the matter. 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, including: 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; different levels of supporting documentation depending on the accommodations sought.

The council appealed the bulk of the report in court in March, arguing that the recommendations conflicted with the decree. The matter was referred to Magistrate Judge Joseph Spero, who on August 7, 2015, ruled that the panel for the most part had stayed within its mandate. Magistrate Judge Spero 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 review accommodation requests. 2015 WL 4719613 (N.D. Cal. Aug 7, 2015).

As of April 8, 2016, the parties are still implementing the terms of the consent decree.

Beth Kurtz - 10/02/2012
Brian Kempfer - 05/25/2014
Jessica Kincaid - 04/08/2016


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