Sunday, November 18, 2018

The LSAC's Contempt for LSAT Takers with Disabilities (and How It's Harming the Legal Profession)

by Diane Klein

It was not so long ago in American history that a blind or deaf student, or one who was mobility-impaired, would be left outside the schoolhouse doors - rejected by an educational system that had no obligation to accommodate them, and by a larger society that regarded them as not worth educating.  If they were not born into well-to-do families, their prospects were bleak. Today, thanks to laws like the Individuals with Disabilities Education Act (IDEA) and the Americans with Disabilities Act (ADA), we look back with anger and heartbreak on behalf of those who never had a chance to develop their potential and contribute as they might have done, simply because no accommodation was made for them.

Lawyers (like Thomas Gilhool) have played a crucial role in enacting and enforcing these major civil rights laws, and one could be forgiven for assuming that a profession whose reason for existence is access to justice would be a leader in providing equal opportunity for law students and lawyers with disabilities.  At the very least, one would hope that at that crucial intersection of educational opportunity and access to the legal profession - the LSAT - test-takers with disabilities could be confident they would be appropriately accommodated, as the law requires. The truth, unfortunately, is otherwise.

Persons with disabilities comprise a larger and larger fraction of the population, with some estimating it at nearly 20% (though other statistics suggest it is closer to 13%, which is also the percentage of public school students ages 3-21 who receive special education services of any kind).  Current thinking about disabilities encompasses a very wide array of conditions. The examples with which I began - blindness/visual impairment; deafness/hearing impairment; and orthopedic impairment - today each comprise less than 1% of all covered disabilities in the educational context.  Much more common, and perhaps more controversial when it comes to standardized testing, are the conditions now sometimes classed under the rubric "neurodiversity": learning disabilities (primarily dyslexia/dysgraphia), ADD/ADHD, autism spectrum disorders.

However calculated, and whatever the reasons for the rise in the number and percentage of persons with covered disabilities - whether certain disabilities have become more common, or are being more frequently and accurately diagnosed - the fact remains that more and more of our students, as well as our future clients, will be persons with disabilities.  The profession that serves them should also include them.  The Law School Admission Council, which administers the LSAT, claims to agree: its mission statement says that the LSAC is "devoted to promoting quality, access, and equity in law and education worldwide by supporting individuals' enrollment journeys."  The LSAC says it "is committed to the idea that the legal profession should reflect the ever-increasing diversity of our society" and "seeks to insure that the justice system reflects all who interact with it."

Yet persons with disabilities (of all kinds) continue to be significantly underrepresented in our law schools and in the legal profession, and continue to face employment barriers.  In 2011, the ABA published an important document, the "ABA Disability Statistics Report," which presented a "compilation of statistics on individuals and lawyers with disabilities, their employment, and the legal profession."  What it found was sobering:  in addition to links between disability, poverty, and low educational attainment, it reported that fewer than 7% of respondents to an ABA survey of lawyers identified themselves as persons with disabilities. Other data showed that just 3% of those employed in the legal profession were persons with disabilities.  In 2010-2011, between 3-4% of law students requested disability accommodations of any kind.  The employment rate of law graduates with disabilities lags behind that of their non-disabled classmates; salaries were also significantly lower.  From early "pipeline" to later retention/promotion issues, persons with disabilities face numerous barriers in the legal profession.

A common accommodation recommended for neurodiverse students is an extension of time for test-taking. But for years up to and including 2009, the process for obtaining accommodations on the LSAT was difficult, potentially expensive (because of required documentation), and opaque.  In addition, for those granted extended time, the LSAC "flagged" the LSAT scores of students who were accommodated in this way, involuntarily "outing" them to law schools and impliedly casting doubt on the validity of the scores they received.

In response to these practices, California's Department of Fair Employment and Housing (DFEH), which enforces California's Unruh Civil Rights Act, sued the LSAC in the Northern District of California federal court in March, 2012. The Obama Department of Justice intervened in October of that year. To settle this now-nationwide disability discrimination suit, the LSAC agreed in May, 2014, to implement "systemic reforms" to their processes, and to pay damages of $7.73 million to more than 6000 LSAT-takers over the prior five years who had been damaged by the LSAC's conduct.

The steps set out by the consent decree suggest that the LSAC was behaving as begrudgingly as many entities do when confronted by the legal requirement to accommodate persons with disabilities: with skepticism about their reality, and with scorn towards those who present themselves as entitled to be accommodated.

The consent decree provides both a road map for appropriate disability accommodations and a history lesson about the LSAC's prior misconduct. The LSAC had formerly, it appears, refused to accept documentation even recently accepted as a basis for accommodation in another educational setting, like an IEP, forcing applicants to undergo expensive and time-consuming re-evaluation whose outcome was a foregone conclusion. The LSAC refused to accommodate those with high IQs, or prior academic success, or without a history of accommodation, as if someone who had found a way to be academically successful, or was intellectually gifted, could not at the same time need accommodation on this test. The LSAC website provided no clear information on its website or in print about what kinds of documentation were required to obtain accommodations, and the types of accommodations that are available.  Displaying unwarranted suspicion about either the reality of a disability or the need for accommodation, the LSAC required evaluators not simply to disclose whether an applicant who takes medication was medicated when evaluated, but why. The consent decree also required the LSAC to use a more broadly-trained expert panel in evaluating requests for accommodation, including especially experts in cognitive impairment. Finally, the LSAC agreed permanently to cease annotating the scores of those who received extended time as an accommodation.

Surely, the LSAC should not have needed to be sued by both the state and federal governments to insure that they would comply with disability accommodations law. It is an organization serving law schools, after all. But having agreed to do all of these things, each carefully crafted to insure that LSAT takers received the accommodations to which they are entitled, one might hope the LSAC would at least live up to the decree.

But sure enough, almost four years later, in March, 2018, the court held the LSAC in contempt, after finding that it "routinely violated the terms of the consent decree in how [it] considered, responded to, recorded, and reported requests for accommodation."  The conduct was egregious: for example, the LSAC would customarily offer partial accommodations, and demand further documentation subject to short deadlines, forcing the applicant to accept partial accommodations (which the LSAC reported as having been granted in full), or delay taking the test in order to provide further material, at significant cost and inconvenience. As a result, the consent decree was extended an additional two years, to May 29, 2020, and on November 5, 2018, a federal judge awarded the lawyers who brought the successful contempt action over $480,000 in fees.

Its noncompliance has been expensive.  But the real costs of the LSAC and the legal profession's collective failure to accommodate these disabilities are suffered not only by those individual would-be lawyers and law students. Many of the disabilities sought to be accommodated - especially "hidden" cognitive disabilities - remain so stigmatized that lawyers and law professors who have them will not publicly identify themselves, and cannot be confident they will be appropriately accommodated by their employers. This prevents them from functioning as effectively as they might in their own professional lives, and also from being as effective as they can be as role-models for students and junior lawyers with similar disabilities.  The persons with these disabilities are our teachers, our students, our colleagues - and we are all the poorer when they cannot contribute fully and openly to our shared profession.  We would also do well to remember that those of us not currently dealing with a disability are, in the provocative although somewhat controversial phrase, simply among the "temporarily able-bodied." We are all ill-served by these longstanding patterns of stereotyping, stigma, and discrimination.

The legal academy and profession face many challenges, from macroenomic and demographic factors that impact those who enter it, to technological and financial changes that jeopardize its sustainability.  The importance of creating a genuinely diverse legal profession, able to understand and meet the needs of all Americans, has never been greater.  Those who believe the legal profession must better reflect the diversity of the populations we serve with respect to race and ethnicity, with respect to gender, sexual orientation, and gender identity, must find ways to accommodate and support persons with disabilities, including neurodiversity, in legal education, in law practice, and in the legal profession more broadly.  We must remake law school and law practice environments that are inhospitable to those whose forms of embodiment, and ways of thinking and being, deviate from those our existing instruments fit and reward.

Law schools are gatekeepers to the profession; the LSAC is the "gatekeeper to the gatekeeper," the entity that administers the test that is the primary factor currently determining law school admission.  That it has contumaciously perpetuated and contributed to those barriers, rather than helped to tear them down, is a shame and a scandal.  The LSAC must do better.

1 comment:

David Ricardo said...

Thank you for bringing this to our attention.

As the father of a disabled young adult we are only too aware of the arrogance of organizations like the LSAC. They consider themselves a law unto themselves (pun not intende) and detest any judicial or regulatory body that dares to interject themselves into their operations.

One would think these people would be horribly ashamed that they even have to be called to account for lack of accomodation of the disabled, but experience has shown us that their self rightousfeeling of entitlement overrides everything.