Report and Recommendation on Law School Admission Tests and Access to the Legal Profession

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1 AMERICAN BAR ASSOCIATION 2 3 COMMISSION ON DISABILITY RIGHTS 4 CRIMINAL JUSTICE SECTION 5 GENERAL PRACTICE, SOLO AND SMALL FIRM DIVISION 6 SECTION OF INDIVIDUAL RIGHTS AND RESPONSIBILITIES 7 COMMISSION ON SEXUAL ORIENTATION AND GENDER IDENTITY 8 COUNCIL FOR RACIAL AND ETHNIC DIVERSITY IN THE 9 EDUCATIONAL PIPELINE 10 STANDING COMMITTEE ON THE DELIVERY OF LEGAL SERVICES 11 UTAH STATE BAR 12 BAR ASSOCIATION OF BALTIMORE CITY 13 NATIONAL NATIVE AMERICAN BAR ASSOCIATION 14 COMMISSION ON LAWYER ASSISTANCE PROGRAMS 15 STATE BAR OF WISCONSIN 16 COMMISSION ON WOMEN IN THE PROFESSION 17 SECTION OF REAL PROPERTY, TRUST AND ESTATE LAW 18 SENIOR LAWYERS DIVISION 19 MULTNOMAH BAR ASSOCIATION 20 OREGON STATE BAR 21 PHILADELPHIA BAR ASSOCIATION 22 NATIONAL CONFERENCE OF WOMEN’S BAR ASSOCIATIONS 23 SECTION OF INTELLECTUAL PROPERTY LAW 24 25 REPORT TO HOUSE OF DELEGATES 26 27 RESOLUTION 28

30RESOLVED, That the American Bar Association urges all entities that administer a law school 31admission test to provide appropriate accommodations for a test taker with a disability to best 32ensure that the exam results reflect what the exam is designed to measure, and not the test taker’s 33disability. 34 35FURTHER RESOLVED, That the American Bar Association urges all entities that administer, 36score, or report the results of a law school admission test to establish procedures to ensure that 37the application process, the scoring of the test, and the reporting of test scores is consistent for all 38applicants and does not differentiate on the basis that an applicant received an accommodation 39for a disability. 40

3 1 41FURTHER RESOLVED, That the American Bar Association urges all entities that administer a 42law school admission test to: 43 1. Make readily accessible to applicants the policies, guidelines, and administrative 44 procedures used for granting accommodations requested by those with disabilities; 45 2. Give notice to applicants, within a reasonable period of time, whether or not requested 46 accommodations have been granted; and 47 3. Provide a fair process for timely reconsideration of the denial of requested 48 accommodations. 49

4 2 5 111 50 REPORT 51 52Introduction 53 54The ABA’s Goal III calls on the legal profession to eliminate bias and to enhance diversity, 55including for persons with disabilities. In spite of these assurances, the testing process for law 56school admission remains an obstacle to the full and equal participation of individuals with 57disabilities in the legal profession. Students with disabilities are substantially underrepresented in 58law schools across the country.1 In part, this is due to the fact that the testing process relied upon 59by most law schools in the United States does not afford the same benefits to applicants with 60disabilities that it affords to other applicants. 61 62The proposed resolution urges any entity that administers a law school admission test to ensure 63that law school applicants with disabilities are given no less than the accommodations that 64federal law requires, including, where appropriate, removal of architectural and communication 65barriers, modification of rules, practices and procedures, and provision of auxiliary aids and 66services. 67 68The Americans with Disabilities Act (ADA), enacted in 1990, introduced a new way of looking 69at what it means to discriminate. For people with disabilities, affording identical treatment to all 70does not confer equal access to proceedings, programs, and activities. The person with deafness, 71the person with blindness, the person who uses a wheelchair, or the person with dyslexia might 72be excluded unless accommodations are made for his or her unique needs. 73 74The proposed resolution also urges any entity that administers, scores, or reports a law school 75admission test to take steps to ensure that the application process, the scoring of the test, and the 76reporting of test scores do not discriminate based on disability, in particular that scores not be 77differentiated on the basis of whether an individual received any type of accommodation for a 78disability. It further urges any entity that administers a law school admission test to make public 79the policies, guidelines, and administrative procedures used for granting accommodations 80requested by those with disabilities; to give notice to applicants within a reasonable period of 81time whether requested accommodations have been granted; and to provide a fair process for 82timely reconsideration of the denial of requested accommodations. 83 84For many years, the ABA has been committed to going beyond what the law requires in 85providing accommodations to lawyers, judges and law students with disabilities. In 1989, the 86ABA adopted policy supporting in principle proposed legislation that became the ADA. In 871997, the ABA approved a policy calling upon all courts to provide qualified language 88interpreters, including sign language interpreters, for persons who are deaf or hard of hearing. 89Policy adopted in 1998 urges that any nominating or evaluating entity, when making character 90and fitness determinations of state judicial candidates, narrowly tailor its questions concerning 91physical and mental disabilities or physical and mental health treatment in order to focus its

61 While persons with disabilities represent nearly 20% of the population, a much smaller percentage are found in our 7law schools. While there is no accurate count, because tracking based on disability lags well behind such statistics 8for race, ethnicity and gender, we do know that only 3.4% of law students requested accommodations for the 2009- 92010 school year. E-mail from Kenneth R. Williams, Data Specialist, ABA Section of Legal Education and 10Admissions to the Bar (Jan. 18, 2011, 17:29 EST) (on file with author).

11 3 12111 92inquiries on information relevant to a candidate’s current fitness to serve as a judge, with such 93reasonable modifications as might be required. In 2002, the ABA adopted policy urging all 94federal, state and municipal courts to make courthouses and court proceedings accessible to 95individuals with disabilities, including lawyers, judges, jurors, litigants, witnesses, and observers, 96in order to ensure equal access to justice and compliance with the ADA. The policy also 97recommended that each courthouse appoint a disability accommodations coordinator to develop 98procedures for receiving requests for accommodations from individuals with disabilities and for 99responding creatively with reasonable accommodations that meet the needs of the individual, 100including removal of architectural barriers, modification of rules and practices, and provision of 101auxiliary aids and services. 102 103The proposed resolution builds upon these existing policies by urging entities that administer law 104school admission tests to take specific steps to ensure that applicants with disabilities have equal 105access to legal education. The resolution is necessary because existing resolutions are 106incomplete in their application to the law school admission process and because developments in 107the 20 years since passage of the ADA have resulted in a wealth of experience that entities can 108draw upon to implement more effective programs. 109 110 Background 111 112An individual who wishes to attend an ABA-accredited law school must take an admission test 113before entry. In order for a law school to become one of the over 195 ABA-approved law 114schools, an academic institution must adhere to standards promulgated by the Council of the 115ABA’s Section of Legal Education & Admissions to the Bar (Council). The Council is identified 116by the U.S. Department of Education as the national accrediting agency for professional law 117schools. Although there is a process for consultation with the ABA House of Delegates on 118accreditation matters, decisions of the Council are final.2 According to the Council’s ABA 119Standards and Rules of Procedure for Approval of Law Schools (Standards), a law school must 120have an admission test which is “a valid and reliable admission test to assist the school and the 121applicant in assessing the applicant’s capability of satisfactorily completing the school’s 122educational program.”3 123 124Standard 503 of the Standards requires that, “In making admission decisions, a law school shall 125use the test results in a manner that is consistent with the current guidelines regarding proper use 126of the test results provided by the agency that developed the test.”4 127 128Presently, the only nationally-administered test available for such a purpose is the Law School 129Admission Test (LSAT). In its current state, the LSAT is a timed test with four scored and one 130unscored multiple choice sections. Each section is thirty-five minutes long. There is one reading 131comprehension section, one analytical reasoning section, and two logical reasoning/games 132sections. The LSAT is administered by the Law School Admissions Council (LSAC), a non- 133profit organization. Although the Section Council does not endorse a particular admission test

132 2007-2008 ABA Standards for Approval of Law Schools, Preface, at vi-vii. 143 2007-2008 ABA Standards for Approval of Law Schools, Standard 503. 154 Id.

16 4 17 111 134nor does it have official ties with the LSAC, it does acknowledge the LSAT in the Standard’s 135Interpretation 503-1 which states: 136 137 A law school that uses an admission test other than the Law School Admission Test 138 sponsored by the Law School Admission Council shall establish that such other test is a 139 valid and reliable test to assist the school in assessing an applicant’s capability to 140 satisfactorily complete the school’s educational program. 141 142The proposed resolution is not intended to apply only to the LSAC, but is meant to cover any and 143all entities that administer a law school admission test. 144 145Flagging 146 147The Standards append the guidelines developed by the LSAC regarding proper use of the test 148results as “Appendix 2: LSAC Cautionary Policies Concerning LSAT Scores.” The cautionary 149policies single out LSAT scores earned under accommodated or nonstandard conditions. The 150policy states: 151 152 Carefully evaluate LSAT scores earned under accommodated or nonstandard 153 conditions. 154 LSAC has no data to demonstrate that scores earned under accommodated conditions 155 have the same meaning as scores earned under standard conditions. Because the LSAT 156 has not been validated in its various accommodated forms, accommodated tests are 157 identified as nonstandard and an individual’s scores from accommodated tests are not 158 averaged with scores from tests taken under standard conditions. 159 160According to the LSAC’s website, an applicant registered to take the LSAT must complete a 161packet. The packet contains forms to be filled out by the applicant and an evaluator describing 162and documenting the applicant’s disability as well as the accommodation(s) requested by the 163applicant.5 The LSAC has reported that, on average, 1,960 applicants requested an 164accommodation per testing year between 2002 and 2007.6 Furthermore, during that timeframe, 165the majority of accommodations given, 67%, were for extra testing time, extra rest time, or a 166separate testing room.7 An applicant who is granted extra time as an accommodation typically 167received up to time-and-a-half for the test.8 When extra time is given as an accommodation, the 168score is reported individually and the person does not receive a percentile rating. The LSAC 169sends a letter to the law school notifying the institution of this practice and that the score attained 170with the extra time is “nonstandard.” This procedure is commonly called “flagging” a score. 171 172A consensus within the testing and academic communities recognizes that extra time for those 173with learning disabilities and some other disabilities is an acceptable accommodation for an 174entrance examination, although there continues to be disagreement about the amount of extra

185 See LSAC – The LSAT - Accommodated Testing, http://lsac.org/JD/LSAT/accommodated-testing.asp. 196 Thorton, Andrea, Marcus, Laura & Reese, Lynda, LSAC Report Research Series: Accommodated Test-Taker 20Trends and Performance for the June 2002 through February2007 LSAT Administrations (2008), at 4, available at: 21http://lsac.org/LsacResources/Research/TR/TR-08-02.pdf. 227 Id. at 6. 238 Id. at 7.

24 5 25111 175time that should be granted. For example, the LSAC typically grants at most time-and-a-half, 176while the College Board (which administers the SAT, PSAT, and Advanced Placement tests) 177gives up to double the amount of time. Yet when an accommodated score is labeled as 178“nonstandard” or when a testing agency tells the academic program that the score does not 179conform to the scores of students who were not given accommodations, the student with the 180accommodated score is placed at a serious disadvantage. There are serious policy, ethical, and 181social problems involved with flagged scores, including disregard for an applicant’s desire not to 182have his or her disability revealed and the potential attachment of a stigma during the admission 183process. If scores are to be flagged, it should be done with the consent of the applicant. 184 185Pursuant to a federal court case dealing with flagged SAT scores,9 a Blue Ribbon Panel of 186experts was convened to study whether flagged/accommodated SAT scores were comparable, 187and as valid as, non-accommodated SAT scores. The Panel’s majority concluded that the SAT 188scores of accommodated tests had results equivalent to tests with no accommodations.10 189Educational Testing Service (ETS), the entity which oversees administration of the SAT, has 190found there is a positive correlation between tests with extra time given and achievement in 191college; in other words, SAT scores of those with extra time as an accommodation “were fairly 192accurate predictors of [first year grade point averages] for students with learning disabilities.”11 193Therefore, in 2003, the College Board abandoned the flagging of test scores that had extra time 194as an accommodation. Following the College Board’s lead, American College Testing, Inc., 195halted flagging of the ACT test shortly thereafter. 196 197There is a growing body of case law dealing with the granting of accommodations for and the 198flagging of law school admission tests. Additionally, there are numerous lawsuits involving the 199LSAC and other graduate school-related testing agencies that have been settled out of court. 200Most agreements are with individual plaintiffs and involve making accommodations for one 201applicant which expire after the applicant takes the test. In recent years, two larger settlement 202agreements were reached between the LSAC and both the U.S. Department of Justice (DOJ) and 203the National Federation of the Blind (NFB). The agreement with DOJ dealt primarily with the 204review process of accommodation requests. The agreement with the NFB is tailored towards 205accommodations for those with visual impairments. 206 207Accommodations 208 209Judge David S. Tatel, who is blind, described how accommodations made it possible for him to 210serve as Judge on the U. S. Court of Appeals for the D.C. Circuit in an address to the National 211Conference on the Employment of Lawyers with Disabilities, co-sponsored by the ABA 212Commission on Mental & Physical Disability Law, the ABA Office of the President and the U.S. 213Equal Employment Opportunity Commission in 2006. Judge Tatel described how the use of a 214reader, Braille Speak for note-taking, and other accommodations eliminated the impact of his 215disability on his work. He added:

269 Breimhorst v. ETS, 2000 WL 34510621 (N.D. Cal, Mar. 27 2000). 2710 NOEL GREGG, ET AL., THE FLAGGING TEST SCORES OF INDIVIDUALS WITH DISABILITIES WHO ARE GRANTED THE 28ACCOMMODATION OF EXTRA TIME: A REPORT OF THE MAJORITY OPINION ON THE BLUE RIBBON PANEL ON FLAGGING 29(2002). 3011 THE COLLEGE BOARD, PREDICTIVE VALIDITY OF SAT I: REASONING TEST FOR TEST-TAKERS WITH LEARNING 31DISABILITIES AND EXTENDED TIME ACCOMMODATIONS, RESEARCH REPORT NO. 2002-5, at 9 (2002).

32 6 33 111 216 217 One of the most interesting things I noticed in my law firm, and I now notice on my 218 court, is the extent to which the institution subconsciously accommodates to the needs of 219 people with disabilities. When I first started people had never worked with a blind 220 lawyer, and there were awkward moments. There were periods of time I would go to a 221 meeting and people were talking about a document that I might not have seen ahead of 222 time. People would be silently reading it, and I would clear my throat until finally one 223 person would get the point and start reading aloud. Well, after a couple of years, people 224 began to read things out loud just on their own. It became second nature. The same thing 225 happened on the D.C. Circuit.12 226 227In the landmark case of Tennessee v. Lane, the Supreme Court highlighted the importance of 228providing accommodations so as to prevent exclusion: 229 230 The unequal treatment of disabled persons in the administration of judicial services has 231 a long history, and has persisted despite several legislative efforts to remedy the 232 problem of disability discrimination. Faced with considerable evidence of the 233 shortcomings of previous legislative responses, Congress was justified in concluding 234 that this “difficult and intractable proble[m]” warranted “added prophylactic measures 235 in response.” . . . Recognizing that failure to accommodate persons with disabilities 236 will often have the same practical effect as outright exclusion, Congress required the 237 States to take reasonable measures to remove architectural and other barriers to 238 accessibility. 239 240Accommodations, when needed, are essential to prevent discrimination against individuals with 241disabilities. Congress recognized this in the context of high stakes testing when it enacted the 242ADA. Title III of the ADA codifies the concept that it is discriminatory not to “offer such 243examinations or courses in a place and manner accessible to persons with disabilities or offer 244alternative accessible arrangements for such individuals.”13 Moreover, DOJ regulations 245implementing ADA Title III state that a test-administering entity shall make sure that: 246 247 [t]he examination is selected and administered so as to best ensure that, when 248 the examination is administered to an individual with a disability that impairs 249 sensory, manual, or speaking skills, the examination results accurately reflect 250 the individual’s aptitude or achievement level or whatever other factor the 251 examination purports to measure, rather than reflecting the individual’s 252 [disability.]14 253 254Furthermore, private entities that offer admission testing are required to: 255 256 provide appropriate auxiliary aids for persons with impaired sensory, manual, or speaking 257 skills, unless that entity can demonstrate that offering a particular auxiliary aid would

3412 THE NATIONAL CONFERENCE ON THE EMPLOYMENT OF LAWYERS WITH DISABILITIES: A REPORT FROM THE AMERICAN 35BAR ASSOCIATION FOR THE LEGAL PROFESSION, at 30-31 (2006) 3613 See 42 USC §12189. 3714 28 C.F.R. § 36.309(b)(1)(1).

38 7 39111 258 fundamentally alter the measurement of the skills or knowledge the examination is 259 intended to test or would result in an undue burden.15 260 261 262Because ending discrimination requires accommodation of individual needs, determining what 263accommodations ”best ensure” equality in a given instance requires a fact-specific, 264individualized analysis of the test taker’s circumstances.16 Regulations regarding testing and 265accommodations under the ADA, recently released by the DOJ, underscore the importance of 266this process and stress the importance of having the testing agency: request documentation of an 267impairment in a reasonable manner; give considerable weight to documentation of previously 268used accommodations; and work with the applicant in a timely manner.17 269 270Law school entrance examinations are high stakes tests. The Attorney General, in issuing the 271regulations on testing accommodations, recognized this fact noting “the importance of ensuring 272that the key gateways to education and employment are open to individuals with disabilities.”18 273An “accessible” exam must provide a qualified individual with a disability an opportunity to 274demonstrate his or her knowledge and ability equal to that which it extends to other test takers.19 275 276Moreover, law school entrance examinations will continue to be relied on by most law schools 277even if the ABA decides no longer to make them a mandatory requirement in order to receive 278ABA-accreditation. They not only help to determine whether an applicant is admitted to law 279school, but whether an applicant will receive financial support and has access to the nation’s 280leading law schools. Admission to a prestigious law school is more than an economic benefit for 281a student. Attending a prestigious law school opens up opportunities in government and public 282life, prestigious private law firms, judicial clerkships in higher courts, and access to judicial 283appointments at the highest levels later in life. The U.S. Supreme Court recognized the 284significance of gaining admission to the leading law schools in Grutter v. Bollinger: 285 286 Individuals with law degrees occupy roughly half the state governorships, more than half 287 the seats in the United States Senate, and more than a third of the seats in the United 288 States House of Representatives. The pattern is even more striking when it comes to 289 highly selective law schools. A handful of these schools accounts for 25 of the 100 290 United States Senators, 74 United States Courts of Appeals judges, and nearly 200 of the 291 more than 600 United States District Court judges. 292 293 In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is 294 necessary that the path to leadership be visibly open to talented and qualified individuals 295 of every race and ethnicity. All members of our heterogeneous society must have 296 confidence in the openness and integrity of the educational institutions that provide this 297 training. As we have recognized, law schools “cannot be effective in isolation from the

4015 28 C.F.R. § 36.309(b)(3). 4116 See 28 C.F.R. app. §35.160; 28 C.F.R. §35.160(b)(2); See also Enyart v. NCBE, 630 F.3d 1153, 1164-65 (9th Cir. 422011), cert. denied, 80 U.S.L.W. 3191 (U.S. Oct. 3, 2011); Wong v. Regents of Univ. of Cal., 192 F.3d 807, 818 (9th 43Cir. 1999); D’Amico v. N.Y.S. Bd. of Law Examinerrs, 813 F. Supp. 217, 221 (W.D.N.Y. 1993). 4417 See 75 Fed. Reg. 56,236 (Sept. 15, 2010) (codified at 28 C.F.R. §36.309(b)(iv-vi)) 4518 56 Fed. Reg. 35,544, 35,572 (July 26, 1991). 4619 Id.

47 8 48 111 298 individuals and institutions with which the law interacts.” Access to legal education (and 299 thus the legal profession) must be inclusive of talented and qualified individuals of every 300 race and ethnicity, so that all members of our heterogeneous society may participate in 301 the educational institutions that provide the training and education necessary to succeed 302 in America.20 303 304Although the Grutter case concerned a program to promote diversity by race and ethnicity at the 305University of Michigan Law School, the Court’s observation that all members of our 306heterogeneous society should have an equal opportunity to participate in the educational 307institutions that train our leaders also applies to individuals with disabilities. 308 309Conclusion 310 311Making law schools accessible to individuals with disabilities can help ensure that the legal 312profession is more open to persons with disabilities than it is now. The Association should 313encourage entities that administer law school admission testing and the law schools that rely on 314such testing to implement the ADA and to look for creative ways to make legal education and 315the legal profession more accessible to students with disabilities. 316 317 318Respectfully submitted, 319Katherine H. O’Neil, Chair 320Commission on Disability Rights 321February 2012

4920 Grutter v. Bollinger, 539 U.S. 306, 332-33 (2003) (citations omitted). 50

51 9 52111 322 323 GENERAL INFORMATION FORM 324 325Submitting Entity: Commission on Disability Rights 326 327Submitted By: Katherine H. O’Neil, Chair 328 3291. Briefly summarize the resolution. 330 331 Since 2007, the Commission has noted and compiled various problems 332 individuals with disabilities have identified with regard to law school admissions 333 tests. Reports and law suits brought to the Commission’s attention have shown 334 that the process to apply for and obtain accommodations is often difficult and 335 sometimes legitimate requests are denied. For example, many applicants are put 336 through a burdensome process or are denied accommodations that they have 337 been receiving in school for years. If an applicant is granted extra time as 338 accommodation, his or her score is then "flagged" as achieved under special 339 circumstances, which raises unfair questions about the score’s legitimacy. 340 341 Under the Commission's resolution the ABA would urge entities that administer 342 law school admissions tests to provide accommodations that best ensure that the 343 skills of the test-takers are measured, and not their disabilities. It would further 344 urge that the process for determining whether to grant an accommodation be 345 made public; a decision on approving an accommodation be conveyed to the 346 applicant within a reasonable amount of time; and that there be a fair appeals 347 process for a denied accommodation. The resolution also urges testing entities to 348 not flag scores that have received a disability-based accommodation. 349 3502. Indicate when the resolution was approved or will be considered by the 351 governing body of the submitting entity. If the vote was taken other than at a 352 regularly scheduled meeting of the governing body, describe the procedure. 353 354 The Commission approved the resolution unanimously on September 23, 2011. 355 The vote was done over e-mail and a majority of support was reached on 356 September 23. 357 3583. If this or a similar resolution has been submitted previously to the House of 359 Delegates or the Board of Governors, please include all relevant information – a 360 summary of the resolution, when and before what group the resolution was 361 considered, and what action or position was taken on the matter. Has this or a 362 similar resolution been submitted to the House or Board previously? 363 364 No. 365 366 367

53 10 54 111 3684. Are there any existing Association policies which are relevant to this resolution, 369 and if so, how would they be affected by the adoption of this resolution? 370 371 n/a 372 3735. Explain what urgency exists which requires that action on this matter be taken at 374 this meeting. If deferral is acceptable, note the time by which action is necessary. 375 What urgency exists which requires action at this meeting of the House. If 376 deferral is acceptable, note the time by which action is necessary? 377 378 Since the Commission began tracking this issue in 2007, test applicants with 379 disabilities have continued to encounter problems in receiving accommodations 380 and test scores that receive extra time as an accommodation continue to be 381 unfairly flagged. After consulting many sources on this matter—ranging from 382 affected applicants to practitioners—the Commission has developed a resolution 383 that is ripe for approval. 384 3856. If the resolution is a legislative resolve, indicate the current status in the 386 Congress. 387 388 n/a 389 3907. Briefly explain plans for implementation of the policy, if adopted by the House of 391 Delegates. 392 393 Send a copy of the report and resolution to all law school admission testing 394 agencies, specifically the Law School Admissions Council (LSAC), and ABA- 395 accredited law schools. The Commission will work with the Section of Legal 396 Education and Admission to the Bar, LSAC, and law schools to help ensure 397 applicants with disabilities receive proper accommodations and the policy of 398 flagging accommodated scores is discontinued 399 4008. If adoption of the resolution would result in expenditures, estimate the funds 401 necessary, suggest the anticipated source for funding, and list proposed direct 402 and indirect costs. Indirect costs include those such as staff time or 403 administrative overhead. 404 405 n/a 406 4079. Review the background of the proponents of the resolution to determine if there 408 are potential conflicts of interest. If such potential is found, list by name those 409 proponents who have a material interest in the subject matter of the resolution 410 due to specific employment or representation of clients. Note all individuals who 411 abstained from voting on the resolution due to a conflict of interest. 412 413 n/a

55 11 56111 414 41510. List the sections, committees, bar associations, or affiliated entities to which the 416 resolution has been referred, the date of the referral, and the response of each 417 group, if known. 418 419 ABA Commission on Racial and Ethnic Diversity, 10/12/2011 420 ABA Commission on Sexual Orientation and Gender Identity, 10/7/2011, co- 421 sponsor 422 ABA Commission on Youth at Risk, 11/4/2011 423 ABA Council for Racial and Ethnic Diversity in the Educational Pipeline, 424 10/12/2011, co-sponsor 425 ABA Council for Racial and Ethnic Diversity in the Profession, 10/7/2011 426 ABA Criminal Justice Section, 10/25/2011, co-sponsor 427 ABA General Practice, Solo and Small Firm Division, 10/12/2011, co-sponsor 428 ABA Law Student Division, 10/3/2011 429 ABA Section of Business Law, 9/29/2011 430 ABA Section of Individual Rights and Responsibilities, 9/29/2011, co-sponsor 431 ABA Section of Labor and Employment Law, 10/22/2011 432 ABA Section of Legal Education and Admission to the Bar, 9/29/2011 433 ABA Section of Real Property Trusts and Estates, 10/3/2011 434 ABA Section of Science and Technology Law, 10/3/2011 435 ABA Standing Committee on Delivery of Legal Services, 10/17/2011 436 ABA Standing Committee on Group and Prepaid Legal Services, 10/12/2011 437 ABA Tort Trial and Insurance Practice Section, 9/29/2011 438 ABA Young Lawyers Division, 9/29/2011 439 Association of American Law Schools, 10/12/2011 440 Bar Association of Baltimore City, 10/19/2011, co-sponsor 441 District of Columbia Bar Association, 11/8/2011 442 Missouri Bar Association, 10/3/2011 443 Multnomah County Bar Association, 11/4/2011 444 National LGBT Bar Association, 11/7/2011 445 National Native American Bar Association, 10/3/2011, co-sponsor 446 Oregon State Bar, 11/3/2011 447 Pennsylvania Bar Association, 10/3/2011 448 Philadelphia Bar Association, 11/7/2011 449 State Bar of California, 10/12/2011 450 Utah State Bar, 10/28/2011, co-sponsor 451 Wisconsin State Bar, 11/3/2011

453 454 455 456 457 458 459 46011. Indicate the name, address, and telephone number of the person who should be

57 12 58 111 461 contacted prior to the meeting concerning questions about the report. 462 463 William Phelan, Special Projects and Technology Coordinator 464 Commission on Disability Rights 465 American Bar Association 466 740 15th Street, NW, 9th Fl. 467 Washington, DC 20005 468 202-662-1576 469 [email protected] 470 47112. Indicate the name of the person who will present the resolution to the House and 472 who should be contacted at the meeting when questions arise concerning its 473 presentation and debate. Please be sure to include email addresses and cell 474 phone numbers for your on-site contacts. 475 476 Katherine H. O’Neil 477 Graff & O’Neil 478 One SW Columbia, Suite 440 479 Portland, OR 97258 480 p: 503-222-4545 481 cell: 503-516-1502 482 [email protected]

59 13 60111 483 EXECUTIVE SUMMARY 484 4851. Summary of the Resolution 486 487Under the Commission on Disability Right’s (CDR) resolution the ABA would urge 488entities that administer law school admissions tests to provide accommodations that 489best ensure that the skills of the test-takers are measured, and not their disabilities. It 490would further urge that the process for determining whether to grant an accommodation 491be made public; a decision on approving an accommodation be conveyed to the 492applicant within a reasonable amount of time; and that there be a fair appeals process 493for a denied accommodation. The resolution also urges testing entities to not flag scores 494that have received a disability-based accommodation. 495 4962. Summary of the Issue that the Resolution Addresses 497 498Since 2007, CDR has noted and compiled various problems individuals with disabilities 499have identified with regard to law school admissions tests. Reports and law suits 500brought to CDR’s attention have shown that the process to apply for and obtain 501accommodations is often difficult and sometimes legitimate requests are denied. For 502example, many applicants are put through a burdensome process or are denied 503accommodations that they have been receiving in school for years. If an applicant is 504granted extra time as accommodation, his or her score is then "flagged" as achieved 505under special circumstances, which raises unfair questions about the score’s legitimacy. 506 5073. Please Explain How the Proposed Policy Position will address the issue 508 509This position takes note of regulations issued by the Department of Justice regarding 510the examination and testing provision of the Americans with Disabilities Act. The intent 511is to ensure that deserving applicants are given accommodations that only test aptitude 512and do not test or highlight the person’s disability. The resolution addresses portions of 513the accommodations process—i.e., administrative procedures, timeliness, and appeals 514—that have been noted by many in the disability community as problematic areas of the 515process. Finally, the position directly addresses the unfair practice of “flagging” by 516urging for its removal in the law school admissions testing process, a position already 517taken by most entities who administer admissions tests in other fields. 518 5194. Summary of Minority Views 520 521The Law School Admissions Council (LSAC), has consistently expressed positions and 522views that its accommodations process is adequate. LSAC has declined to follow other 523testing agencies—such as Educational Testing Service—in abandoning flagging 524asserting that it cannot demonstrate that scores earned under accommodated 525conditions have the same meaning as scores earned under standard conditions. 526