New Guidance on Testing Accommodations

Standardized exams -- SAT, ACT, GRE, MCAT, LSAT, and others -- are  "gateways to educational and employment opportunities" and the entities that offer these tests are to required by the Americans with Disabilities Act (ADA) to offer these exams in a manner accessible to persons with disabilities.

The ADA came into being in 1990 and was amended in 2008 in an effort by Congress to overturn the impact of several judicial decisions that narrowed its intended scope. New Regulations implementing the revised ADA were adopted in 2010.

Despite the revised regulations, there has continued to be resistance on the part of testing agencies, especially the Law School Admissions Council, which oversees the LSAT, to  extending accommodations to students with disabilities. Even where there has been no pattern of resistance to offering accommodations, confusion about what should be offered and to whom has raised questions for schools, testing agencies, and students.

 The Disability Rights Section of the U.S. Department of Justice Civil Rights Division has noted that they continue "to receive questions and complaints relating to excessive and burdensome documentation demands, failures to provide needed testing accommodations, and failures to respond to requests for testing accommodations in a timely manner."

In response to these questions and complaints, the Department of Justice has just released new guidelines for testing accommodations.  Among the highlights of this document are the following:

• A person with a history of academic success may still be a person with a disability who is entitled to testing accommodations under the ADA
• Any documentation if required by a testing entity in support of a request for testing accommodations must be reasonable and limited to the need for the requested testing accommodations
• Proof of past testing accommodations in similar test settings is generally sufficient to support a request for the same testing accommodations for a current standardized exam or other high-stakes test
• An absence of previous formal testing accommodations does not preclude a candidate from receiving testing accommodations
• Testing entities should defer to documentation from a qualified professional who has made an individualized assessment of the candidate that supports the need for the requested testing accommodations. A testing entity should generally accept such documentation and provide the recommended testing accommodation without further inquiry

Every student who anticipates taking a standardized test, every educator and administrator who works with such students, and every testing service that administers such tests should take the time to carefully review these guidelines. They are clear, concise, and very specific about what they do -- and do not -- require. 

Changes to LSAT Accommodations

Back in May 2014, we wrote about a Consent Decree from the United States District Court for the Northern District of California, which changed the rules for individuals with disabilities seeking accommodations to take the Law School Admission Test (LSAT). The Consent Decree provided for the  Law School Admission Council (LSAC) to pay $7.73 million in penalties and damages to compensate over 6,000 individuals nationwide who applied for testing accommodations on the LSAT over the preceding five years. The decree also required comprehensive reforms to LSAC’s policies and ended its practice of “flagging” LSAT score reports for test takers with disabilities who receive extended time as an accommodation. The Consent Decree provided that a panel of experts selected by the parties to the lawsuit which resulted in the Consent Decree would determine how to change procedures for accommodations under the LSAT to comply with state and federal law.

The Consent Decree gave the parties the right to appeal to the District Court if the decisions of the panel of experts "are believed to violate the ADA or its implementing regulations, or California law where applicable, or to conflict with the provisions of [the Consent] Decree."

The LSAC did appeal to the Court, which upheld a few of its objections but, in a 44 page decision, rejected most of them and upheld almost all the changes to LSAC's testing accommodation procedures recommended in the experts' report.

Of crucial importance to anyone seeking accommodations to take the LSAT, the Justice Department notes that  LSAC will implement the upheld recommendations starting immediately for testing accommodation requests related to the December 2015 LSAT administration and later administrations. Anyone even considering taking the LSAT and applying for accommodations needs to read the full decision and the other documents linked above regarding this important change in policy.

Thanks to our colleague Jonathan Corchnoy, Esq. for bringing this decision to our attention.

photo credit: Tracie Hall via Flickr

Lawsuit Results in Fairer LSAT Accommodations

Thanks to our colleague, Jo Anne Simon, Esq., whose legal practice focuses on disability civil rights in high-stakes standardized testing and higher education, we have just learned of a Consent Decree from the United States District Court for the Northern District of California, which changes the rules for individuals with disabilities who seek accommodations to take the Law School Admission Test (LSAT).

We have written before about the Law School Admission Council (LSAC) and their refusal to comply with a survey of accommodation practices by the United States Government Accountability Office, as well as how the American Bar Association was urging the LSAC to end their practice of "flagging" scores of students who took the LSAT with disability accommodations. Flagging is the practice of annotating score reports of individuals who receive extended test time due to disability, something which the College Board (SAT, AP, and other exams) and the ACT folks have not used in the last ten years.

The Consent Decree is the result of a lawsuit brought by the California Department of Fair Employment and Housing, several individual students (represented by The Legal Aid Society - Employment Law Center), and the U.S. Department of Justice against the LSAC. Its terms are sweeping and include:

• An end to flagging of LSAT scores

• Creation of a panel of experts to establish "best practices" in handling accommodations, which the LSAC shall be required to implement
• Creation of a fund of almost seven million dollars to compensate individuals who were turned down for LSAT accommodations because of inappropriate requirements by the LSAC.

• Permitting many candidates to submit testing conducted within five years of the date of the request for testing accommodations, instead of within three years as currently required.

These changes are long overdue and should bring fundamental fairness to an exam that is a required by virtually every law school in the country. Anyone even thinking of applying to law school should read this decree in its entirety.

Photo credit: www.stockmonkeys.com via flickr

"Flagging" on Law School Admission Tests

In a recent blog, we wrote about a report from the Government Accountability Office that looked at how testing companies were complying with the provisions of the Americans with Disabilities Act (ADA). At that time, we noted that the one testing organization that did not participate in the interviews or provide written information for the report was the Law School Admissions Council (LSAC), which administers the LSAT, the test which accredited law schools use in their admissions process.

Now, the American Bar Association (ABA), with almost 400,000 members, has called for the LSAC to change its policies on dealing with individuals with disabilities and to bring its test into line with such other high stakes tests as the SAT, ACT, and GRE. What makes this American Bar Association resolution so important is that it comes from the organization that accredits law schools and that requires law schools to use an admissions test. Although the ABA does not control the LSAT, it tacitly endorses its use. Pressure for change from the ABA may prove the best hope for change in how the LSAT functions and may move the LSAC to comply with the ABA resolution that the LSAC ensure that, "the reporting of test scores is consistent for all applicants and does not differentiate on the basis that an applicant received an accommodation for a disability."

The ADA requires that all testing organizations provide individuals with documented disabilities with accommodations such as extended time, extra breaks, or auxiliary aids, which aids should "best ensure" that the test reflects the test taker's abilities and not his or her disabilities. But most of the high stakes testing organizations go further and report the scores of individuals taking their test with accommodations in the same manner as those who take it without accommodations; they do not "flag" a score as having been earned through "non-standard administration." That was not always the case, and only happened after settlement of a federal lawsuit in 2000 and subsequent action by testing companies. The SATs continued to flag scores for students who received test accommodations until 2003.

What has the American Bar Association and others concerned is that the LSAT -- along with the MCAT, the Medical College Admissions Test -- continues to flag scores of students who take their tests with accommodations, in contrast to every other major high stakes test. The LSAC has stated that they continue to flag because, "it would be misleading to report scores earned with additional test time without some indication of the non standard administration." They further note, that "scores earned with additional time are not comparable to standard scores," even though the other testing organizations have concluded that this is not the case with their tests.

As might be expected, there have been lawsuits against the LSAC and even agreements with the Justice Department, but no case has resulted in changes to the flagging policy. We hope that this welcome action by the American Bar Association will be key to changing the flagging policy for the LSAT.

Photo used under Creative Commons