I took the Law School Admission Test (LSAT) on Oct. 6, 2001, along with 10 other blind people throughout the nation that year. It all began in March 2001 when I requested from the Law School Admission Council (LSAC) accommodations in the form of the test in braille and the usual extra time necessary for tactile reading of the braille code. On page 7 of the LSAT & LSDAS Registration Book, 2002-2003 Edition, there is a special section where LSAC cautions candidates that "If you receive additional time as an accommodation for your disability, LSAC will send a statement with your LSDAS Law Reports [to the law schools] advising that your score should be interpreted with great sensitivity and flexibility."
And on page 122, under the heading "Carefully evaluate LSAT scores earned under accommodated or non-standard conditions:" "LSAC has no data to demonstrate that scores earned under accommodated conditions have the same meaning as scores earned under standard conditions." The first observation is that LSAC has, since the test inception in 1974, an enormous data bank from which many evaluations can be made. In light of the enormous data base, it is difficult to believe that there is "no data" for comparative evaluations. I was disturbed by these statements. On May 17, 2002, with the assistance of Sen. Tom Harkin, I filed a civil rights complaint with the Department of Justice, citing LSAC with "systemic disparate treatment discrimination," a violation of the U.S. Constitution's Fourteenth Amendment equal protection clause as well as the Americans with Disabilities Act. The DOJ Civil Rights Division accepted my complaint on Aug. 28, 2002 in a letter from former Assistant Attorney General Ralph F. Boyd Jr. to Harkin. Discrimination in the LSAT Test
Any request for an accommodated test results in the LSAC label of "non-standard" and "accommodated" attached to the reports of disabled test- takers. This occurs when a test-taker requests the LSAT in braille, audiocassette format, extra test time, accessible technology or a reader. As a result of these accommodations, these test-takers will be "flagged" as non-standard. By requesting a change of test date, as happens with "Saturday Sabbath administrations," the label "non-standard administration" is also attached to the records of these individuals. My initial reaction in response to these policies was to document my complaints in a letter to LSAC on Nov. 30, 2001. The discriminatory policies I identified were as follows:
Accommodations: Needless and expensive procedures are required of blind applicants in order to obtain the necessary accommodations to take the LSAT. I claimed that the documentation LSAC required of me to prove blindness was excessive and costly in time and money. I submitted numerous documents, but LSAC informed me by telephone that the first submission of documents was unacceptable and that they required a doctor's report, which involved submission of a new set of documents.
Drawing Diagrams: The LSAT Analytical Reasoning section, involving 24 logic questions, permits drawing of diagrams to help sighted test-takers analyze many variables and constraints stated in the complex problems. Page 69 of the instructions reads: "In answering some of the questions, it may be useful to draw a rough diagram." Being blind and unable to make use of such aids, a handicap was imposed upon me and my score suffered relative to those who are sighted. If sighted people were constrained to answer these complex questions without the use of diagrams, they too may have lost points on their scores. Title III of the ADA requires examinations to be offered "in a place and manner accessible to persons with disabilities or offer alternative accessible arrangements." Drawing of diagrams is not accessible to the blind, nor are there any alternatives.
Flagging: Once test-takers are labeled as "non-standard," they are, by written LSAC policy (page 13 of the instructions), deprived of a breakdown of their correct and incorrect responses to the 101 questions. Any LSAT test taken under accommodated conditions is labeled as a "non-disclosed administration." This "non-disclosure" policy serves to benefit the "standard" test-taker compared to the "non-standard" test-taker, considering the learning available should a repeat test be elected. Flagging of subgroups by LSAC as "accommodated" and "non-standard" is a discriminatory policy which must be discontinued, as has been done recently in many college entrance tests following the settlement of the Breimhorst vs. ETS (N.D. Cal, March 27, 2001) case. Finally, all test-takers should automatically receive a breakdown of their correct and incorrect responses along with their LSAT score without the necessity of requesting that information.
The labeling policy often called "flagging," described above, can be separated into two distinct complaints. The first one is that certain test- takers are labeled as "accommodated" or "non-standard." The second one is that once a test-taker is so labeled, the test is flagged again as a "non- disclosed administration" and these test-takers, by written policy, will not receive a breakdown of their right and wrong answers as is the custom for standard test-takers.
Receiving no response from LSAC to my direct appeal for reforms in a letter dated Nov. 30, 2001, I filed on May 17, 2002, a complaint against LSAC with the Department of Justice, Civil Rights Division, Disability Section, stating that four allegations of discrimination amount to "systemic disparate treatment discrimination" and are a violation of both the United States Constitution equal protection doctrines and the Americans with Disabilities Act (ADA), 42 U.S.C. 12111 et seq. I was supported in my ADA- based action by Sen. Tom Harkin, an author of the ADA legislation, for whom I worked as an intern while studying at the Stanford University program in Washington, D.C. in 2001. My case was accepted by Boyd and assigned number DJ#202-62-120. The action was taken up by Disability Section Chief John L. Wodatch, who assigned trial attorney Laura F. Einstein to my case.
Thirteen months later, Einstein closed my case, dropping three of the four allegations without explanation, without test-validation fact-finding and without communicating or sharing any decisions with me. On June 10, 2003, I received a case closing letter from her describing a partial, unofficial agreement between the LSAC attorney and the DOJ attorney. The agreement was unofficial in that it was not processed as a formal "settlement" as occurred in a recent, similar DOJ case involving five blind applicants (DJ#202-62-34 et al dated Feb. 22, 2002). The informal agreement was not signed by Department of Justice supervisors and it was not made public in any form. The agreement, documented by Einstein with the LSAC attorney, was to end "non-disclosure of test results" and provide a breakdown of test results to braille test-takers, beginning in October 2003.
It was a victory, but a small one. It was a victory for blind people who will, in the future, take the test in braille and audiocassettes. Unfortunately, the limited agreement fell far short of correcting the civil rights violations incorporated in my systemic disparate treatment discrimination complaint. The agreement to end non-disclosure for braille test-takers did not cover any other disabled groups nor the Sabbath observers, who also are flagged as "non-disclosed." My original May 17, 2002 complaint, which was accepted by the assistant attorney general, did not limit the complaint to blind people. My specific all-inclusive allegation was worded as follows: "LSAC should be required to discontinue all non-standard and all non-disclosure policies."
If the civil rights allegation was meritorious for the sub-group, it should be meritorious for all. Einstein, as a civil rights attorney, responsible for redressing civil rights grievances, was obligated to cover all people in the non-disclosed class. Furthermore, by agreeing to the discontinuance of non-disclosure for the blind, a precedent was set, which should have been applied to all groups. This was a classic case wherein the issues presented and relief sought were identical for all members of the class.
It is my understanding that the rationale for the selective agreement proceeded from information obtained from LSAC. The nature of the LSAC information, presented to the DOJ attorney, was that there were only 11 blind test-takers of the 2001 LSAT test. Only six blind people took the test in braille, myself included; the other five took the test by means of audiocassettes. This information was conveyed to me in a telephone conversation with the DOJ attorney at the end of May 2003. I gathered from this conversation that the number of blind test-takers was so small that it would be an "undue burden" to change the LSAT test to meet the needs of a few blind people. However, the department undertook my complaint on behalf of the disabled class and my complaint extended beyond the discrimination against the blind. It involved discrimination against others including "Saturday Sabbath" people among many others.
Thus the "non-disclosed" flagging continued. I did not accept the minor agreement put together by the two attorneys. I rejected the agreement in certified letters to former Attorney General John Ashcroft, to Boyd and Wodatch. I requested that these superiors vacate the faulty agreement with LSAC and renew all allegations of my original complaint, to no avail. Following is how the DOJ treated my case on each specific allegation.
Flagging Allegation: In addition to the flagging of the LSAT test as a "non-disclosed administration" is the flagging of test-takers as "accommodated" or "non-standard." As I indicated in my complaint letter of May 17, 2002, these flagging policies must be discontinued. However, this allegation was dropped without any explanation.
Drawing Diagrams Allegation: This major allegation of my complaint was dropped by the DOJ attorney without any explanation. If the "undue burden" clause in the ADA statutes was cited to disregard this allegation, then the DOJ attorney had the responsibility to engage in fact-finding to ascertain any hardships by changing the LSAT test to disallow the drawing of diagrams. As for the monitoring of the test to insure there is no violation of a new policy, whereby no drawing of diagrams would be permitted, there are already test monitors engaged during the administration of the test at every test center; thus, there would be no added cost involved.
Accommodations Allegation: This allegation was dropped without any explanation. In my complaint, I cited that an "accommodations" case filed by five blind LSAT test applicants was in progress during the period of March to October 2001 when I sought permission to take the test in braille. Excessive requirements were imposed upon me at a time when the five blind students had entered their similar complaints. On that case DJ#202-62-34, - 55, -56, -62, and -79, damages of $20,000 were awarded and changes to the LSAC accommodations policy resulted on Feb. 22, 2002. Throughout the 13 months of deliberations between the DOJ and the LSAC attorneys, I was not permitted to receive any information or to engage in any of the decisions. All but one of my complaints were dropped without any explanation. I was told by the trial attorney that the DOJ's client-attorney procedure is different from that which I am being taught in law school. With the unofficial decision closing my case on June 10, 2003, I was told by Einstein that I could "file a private ADA action in a federal district court." In two certified letters dated June 26, 2003 and Aug. 1, 2003, I informed Wodatch that the DOJ conduct of my case was unsatisfactory, involving numerous violations of the ABA Model Rules of Professional Conduct and that the DOJ should vacate the informal agreement with LSAC and reactivate all the allegations of my original complaint. My request was denied.
Despite my efforts, the systemic discrimination violations by the Law School Admission Council have not been brought to an end. In March 2004, LSAC released its latest 2004-2005 Edition of LSAT & LSDAS Registration and Information Book. It is almost word for word, page for page, identical to the 2003-2004 and the 2002-2003 Editions. There are no changes to the flagging policies. There is no change to the drawing diagrams policy. There is, however, a change which is not in compliance with the June 10, 2003 DOJ/LSAC agreement. The major agreement I obtained, eliminating non- disclosure for braille test-takers, was not fully honored. Page 13 of the LSAT Registration Book 2004-2005 Edition now reads "some braille" test- takers continue to be "non-disclosed." In a certified letter dated March 30, 2004 to Ashcroft, I informed him that the Law School Admission Council was not in compliance with the DOJ/LSAC June 10, 2003 agreement.
If in the future, the Law School Admission Council does not willingly discontinue the questionable policies I have challenged, then it remains for an individual or group to institute a class action suit in a federal district court, as the Department of Justice advised.