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

  • /Reviewed by: Matt Riley
  • BPPshinners-lsat-blog-lsac-and-the-ada
    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.

    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.

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