good morning good morning your honor is in may it please the court judge griffin i would respectfully request two minutes for rebuttal runners represent the plaintiff appellant angelo been no harm proud to have in the courtroom today in a case that is very much about basic fairness and equality of opportunity and job you know as a blind man who had his dreams of attending law school and engaging in the practice of law stifled by the conduct of the american bar association hussein sions an examination the law school admissions test which you legally test mr benaud on his inability to see rather than on his aptitude for the study of law there is no doubt that we've sued the correct party your honour's what shows that best is the fact that the american bar association was first to draw the causal connection between their conduct in the discrimination not mr bennett it was the american bar association's rules up until one thousand nine hundred seventy for decades that recognized that it was universally understood as unacceptable to force an examination that asks a blind individual to draw a picture the your course of action here rises as i understand it under section three zero nine of the americans with disabilities act correct yes no the problem i have here is the way that statutory tort reads it is any person that offers examination  courses related to applications licensing and so on the problem i'm having here is the word offers and the group that was offering the test or constructing the test is the l s a t council so why did you not sue them the group that actually formulated the test conducted the test because the a b a did not quote offer the test in the normal sense of the word offer so why not sue the people who did offer the test your honor i appreciate the question because it's an important point mr been assumed the american bar association because they caused his injury his injury was in his inability to get accommodations on the law school admissions test i think this is the cause of action yes we're confined and or you're confined because you're suing under a federal statute and we are required to apply that statute not some general common law tort concept of everybody who may have been of some proximate cause claimed discrimination it is a particular type of discrimination apparently in the statute that we are to enforce that's my question yes your honor and i believe it's important to note that offer is an undefined undefined term within the context of that remedial statute within title three of the of the americans with disabilities act and it's not entirely clear from that statute that it should be interpreted as narrowly as the defendants  implementing regulations for title three speak to a party who selects the examination and says that an examination should be selected so as to accurately reflect the applicant's ability to do what the test purports to measure not people who construct the dest and ministered the test as well is there a particular reason that you did not want to in and join them in the lawsuit but the reason goes to to stand in your hon school admissions council can grant accommodations which we've all had are inadequate in this case but they can't grant the rip they're not in a position to offer redress ability in the form of saying that it's unacceptable to have a blind person taking an examination which is my counsel but they can read draft the test they can take that whole first analysis section out that seems to me that that's the direct route in that's the but you did not claim that they had any part or any authority to draft parts of the tests that we claim that they offer the examination now i'm asking you if you if you claim that they had anything to do with constructing the test to answer your question directly what we claimed simply was that they actually sized ultimate control as the governing body so the answer is no correct but your honor i would also like to move it doesn't hurt your position to go on and admit that the answer is no your honor title three that was not the only claim in this complaint there is also a claim under title five of the americans with disabilities act which makes it illegal to interfere with a person exercising rights guaranteed to them under the act now the defendant in the district court the district court failed to analyze this claim in its opinion and the defendant has misstated the law an a plaintiff in order to sustain a cause of action for interference and there can be no doubt that using your power to force discrimination drawing pictures is interference in order to sustain that claim mr benaud does not have to or claim under title three against this particular defendant if that was the case title five would be purely superfluous and there's no indication in the statute that that's what congress intended if it was intended to be a separate cause of action rather association through their own conduct to rap or recognize the harsh discrimination of the six am a nation when you change your rule knowing that the result of that change is going to force a person who is blind to draw a picture that is discriminatory animus they didn't stumble into interfering with mr bennett his rights to take a nondiscriminatory examination they recognize themselves that the law school admissions test couldn't be a comedy didn't all instances they recognized that there were group of people who you could give them any sort of accommodations you could put mr benaud in a room for four years to take this examination he's still not going to be able to draw a picture so when the american bar association purposefully changes their rule and removes that safe harbor for a blind person they do so purposefully and knowingly and knowing the discrimination that they're causing to mr bow you have no direct evidence of  discriminatory animists but you're saying the circumstances lead to an inference based on the facts as it is that it that is plausibly inferred from the complaint in iraq all right i see your time's up any of the last point you want make real quickly  your honor what i would just like to make is that because this case is very much a case about standing the a b a motivates the conduct of the law schools they regulate they don't have accreditation authority from the us department of education for no reason they have it because they wield the authority to set the rules of the game and they chose to set the rules of the game in a way that forced a point person to show his worth by drawing a picture respectfully reserve some time for the right michigan attorney general get five minutes to understand it ok morning good morning your honor smith please the court assistant solicitor general and sherman here on behalf of amicus michigan attorney general bill shooty in support of angelo bynum only to brief points about the one addressing the issue of offer and to brief points on the standing issue the attorney general urges this court to allow this case to go forward into discovery on the all for point  that judge merit asked about because this is a remedial statute the language of title three should be read broadly and it's also important to look at the implementing regulations that council that preceded me talked about the use of the word the examination is selected it administered the d o j recognized that it wasn't just the administration the everything to do with its construction it required there as i understand it might be in there or it required that there be some kind of test or recommended that there be some kind of test in order for the law school to be acceptable under a p a stand but they didn't have anything to do with how the test was constructed or how it was administered so normally when you say someone offers a test i think they had something to do with the construction of it or monitoring of it or something that's the problem respect or your honor i do disagree with  your proposition because first of all i don't think we look at offer in the normal sense of the word i think we look at it in a broad sense based on the remedial nature of the statute in what it's meant to achieve and secondly i think when you look at the fact that the definition of it in the dictionary you don't want to use that definition what definition do you want to use what i would look at the context if you look at forty two u s c one to one a one the findings in the purpose of the title of title three and it says under a subsection five it talks about individuals with disabilities who encounter various forms of discrimination and it specifically says failure to make modifications to existing facilities and practices it doesn't just say the way you would minister a test it's much broader than that and when we read the language of title three and the specific provision about offer we have to keep in mind that very basic language and i  journals now that there are not only other tests that the law schools are using but some law schools asking to be relieved of the obligation to even give the l s a t so it's not a with is not a completely universal situation yes your honor but respectfully i would say that although there are some alternatives in a real practical sense these are not ok but that's what you presumption it's not a yes i stand corrected there is a presumption of illiteracy and since one nine hundred forty seven there's never been a test that's had that presumptive realty and there's a reason for that because in a practical real world sense neither the  primary motivator that motivates the park to conduct a third party is that that that is a redress ability and causation are met there so you think the a b a can just call up the head of the l s a see and say take that whole first section and put something else and is that your point if standard five or three were deemed to be unlawful the l sack most likely would change the content of this test and the law schools most likely would not require that a blind person take the ella says and it makes sense to go to the l s a see first before you start all this litigation and say there's a problem here they have no incentive to change the test because it is presumptively valid and reliable they might if they were about to be against that that consent decree is not directly against this case first of all that consent decree had some language about the visually impaired it used some experts who said that visually impaired could be accommodated by one hundred fifty percent increase in the time frame it's not observable because there is absolutely no accommodation that could be given to a completely blind person such as m mean they're saying the proper party should be the law school missions council in this case in the northern district brought by the department of their employment holding i mean there you have the proper party you've got the issue a isn't that more of the alignment that ought to be resolved i believe it's different your honor especially in that case because an accommodation could be made the l sack perhaps was not the only proper party but a proper party because it was within the direct control of the l sat to be able to say we'll give you more time here there is no accommodation that can be made for mr been no and the l sack has a tremendous risk morning good morning may it please the court and ready for the american bar association as the court now that mr bennett was suing under a federal statute title three in title five of the americans with disabilities act that's that you provide that a party who offers an examination under title three must do so in an accessible way the a b a does not offer the law school admission tire or human to the contrary is that the word offer should be defined and i very broad way to protect the blind and other disabled people under the act and it's as they say a remedial statute for that purpose and there is no to no penalty of damages in this statute that is to say the only relief that can be given as i understand it you greg me that i'm wrong is equitable relief which is prospect of only so they are not maybe you wouldn't get punished in damages for retroactively it might be subject then to injunctive relief and why shouldn't what's wrong with injunctive relief here that simply says be sure that you require are he tester and that you are who is following your directions and making out a test does not discriminate against the bot so that would be that that would be the relief granted what's wrong with that kind of injunction i think your honor it goes back to the point that was made earlier which is the statute here is title three and title three only reaches entities that offer examinations and i understand that term is not defined but there is no definition that would encompass  a b a your honor referenced a moment ago to you know under the direction of the a b a we don't direct anything regarding that test we don't design it we don't write it we don't administer it we don't accommodate it we have makes in respect to testing the whole ball of wax comes back at least as one proximate cause to the a b a requirement that's what i mean and reaches a score on the test can complete and again this is a statistical determined we don't make it by the way it's made by the law school admission council and law schools who have gotten together they compare the grades they compare the test scores and they figure out is this a statistical predictor of completion of the first year of law school we don't have anything to do with it they've done five thousand valente studies we were involved in all we do at the a b a is acknowledge that five thousand studies are out there that say that statistically which doesn't include everyone as your honor when i understand the test predicts you know performance in the first year of law school we don't endorse it we don't support it we simply require a valid and reliable tell  could have demonstrated that that he was unable to succeed with this test because twenty five and i would put him in a disadvantage and as i understand it they back his men changed and now a school can get a waiver of early americans with disabilities act was passed the a b a standards and if you were physically incapable of taking a valid and reliable test you could get individual waiver right and of course the teaching of the emir has a disability accommodations on the point about individual versus school a school has the right for on an individual basis to determine how much weight to give that car and they can give it no weighted all i can they do not discriminate against the blind and as a law school in the type of test that you accept or if you are constructor of test for the law school the kind of tests you construct just simply say in there we don't want you to discriminate what that seemed perfectly fair to me why not say that in your honor we say something almost identical t hat in standard to all five which is referenced in our brief resave law schools shall not discriminate against individuals based on disability we don't allow them to do that and to that and the standard five zero three that your honor referenced allows a law school to give no weight to a test score if it doesn't reflect the ability of the individual the individual for example is blind or if you're already saying that why do you object to injunction equitable relief future oriented that says what you already say your honor i guess two reasons number one we are ready are same i think something that is very similar to what your honor wants and the second is on behalf of the bar association the idea that any time a student has an issue instead of suing the law school admission council which is the right defendant instead of suing perhaps a law school if they discriminate in their admission they come and tell us to rewrite our rules and ask a court to tell us to rewrite our rules especially when we are already  blind and we aren't doing that your honor we have nothing to do with this test we let a law school make the determination whether to give it any well that's what i want to clear up this business about giving it no wait at all it is possible for a law school to say we're giving the l s a t and mr bennett has showed us that he has difficulty with a certain part of the test so we're going to grade him on the remainder of that test or we're going to supply something instead but we're going to make everybody else take the test as it is yes your honor absolutely so but that is in effect in the individual waiver exactly i claim result just with different that's what i didn't understand was that the possibility of getting an individual waiver still exists but it comes from the law school and not from the a b a yes and even under the old days the waiver had to come from the law school it's just called something not it is it is in the midst of history as far as i can tell but i don't remember having to draw a picture what i think i if i took it i could at number fifty in the in the record and so it's nice because you really need a visual spatial relations problem and or kind of a my off problem is that right the allegation is that it's overseeing and nationwide consent decree against the law school admission comes from the party that actually writes this test the department of justice the california state and nationwide class the plaintiffs and five disability experts right now are fixing that testing process to make it nondiscriminatory and is it specifically those that cover this logic circuit as it does your honor in our twenty eight j submission we attach the opinion just issued in august by th california court they looked at the logic section they looked at people with visual impairments they said here is an accommodation that we believe and the implementing regulations were clear that you best ensure that you are testing the individual's ability has imposed a rule or an injunction so to speak and what is the what's to be done exactly with respect to what he's complaining about there was an app like mr bennett taking the test instead of the thirty five minutes that is provided to other test takers were now get almost ninety minutes and if he believes that it's not a sufficient accommodation for him he can go to the l s a see the law school mission council he can go to the court and seek a further accommodation five disability experts determined that that was a reasonable not just reasonable but the accommodation that would best ensure are scary but the point that was that the court made is that there is an accommodation even if you take everything he says as true why couldn't the law school admission council reformulate those questions so they don't require spatial reasoning yeah i can and they enter an order that says he only has to take three quarters of the test the part that he admits is not discriminatory the position the only way mr benaud can come at the a b a is to say he has a right to take no test at all but the the americans with disabilities act title three does not give you a right to take no tested all it gives you a right to take an accessible test and the only place that the test can be made accessible is what that court in california is doing right now we can't change the test we can't make it assessable and we certainly aren't interfering under title five as your honor noted animist is required under the identically worded fair housing act provision and i just heard council concede that animists is required we don't have an m s animists as a specific intent to discriminate we would have had to adopt that standard for the purpose of hurting blind people one that will not discriminate against the blow that's what you're saying basically i'm saying they have to because we don't control any aspect of that we could talk till the cows come home and they would still put out whatever test they think is right these folks have sued the wrong party and there's a proceeding in california right now they don't even have to file a new lawsuit to get relief it is available it is being implemented now we can't do anything and we certainly haven't interfered he has no right under title three to take no test at all and we haven't interfered under title five because we haven't interfered with his ability to obtain that accommodation in the proceeding in california or otherwise we just have a standard that says take a valid and reliable test and let schools weigh it as much or as little or not at all if they want we simply aren't the right defendant here there is no standing and independently because we don't offer and we have an interview here job got to go somewhere else to get we absolutely cannot get the job done and he hasn't stated a claim under title three or title five if there are no further questions your honor met again please the court i understand why it's advantageous to downplay your role in forcing this examination to win a lawsuit but it's simply not the true of the american bar association could have taken notice of that action in the state of california that also involve the united states department of justice since it was the third time the united states department of justice has had to take action against the law school admission council and during all of this talking case after case this organisation continues to  test so let's don't overstate this you're honor and i want to be careful not to overstate it i would like to respectfully say i don't believe that's completely fair in our twenty a j submission we noted that the legal education committee within the final approval by the house of delegates but it's the legal education committee that's recognized by the department of education as having this authority so yes there are other tasks but yet there are none that they like quite as much as the all set because that's the one that they routinely call valid and reliable your honor council says there's no definition of offer that encompasses the a b s conduct of course there is it's the commonsense definition of offer to accept their definition of offer same that for instance a prospective employer could say to an applicant we're going to force you to take a discriminatory examination and even though you may believe it's discriminatory you can't sue us for it because we're going to send you down the block to somebody up to take that examination we're just going to require it but we're going to contract our way around liability that does not speak to the remedial intent of the eighteen year honors title five makes it illegal to interfere in their brief they say interfere  is much more narrow meaning the congress of the united states should have defined it in some way that indicates that it should be very very broadly defined that's the problem we get this word and it's the standard that we have to go back and offer the a b a is not offering this test under the normal way of defining the word over it seems to be i mean i'm sympathetic with what you're trying to do i hope they will enforce require our best they can nondiscrimination but when it comes down to what the statutory authority is you've got a problem with this word respon yes your honor the congressional intent behind that word was clearly recognized by the drafters of the implementing regulation the talked about an entity that selects the examination actions by the department of justice decades of lack of accommodation on the allisat and yet they still selected as the task that's the only test that's presumptively valid and reliable and they continue to with a big stack about a way any other examination for decades people who are blind sought refuge in the a b s rules that they not be forced to draw pictures and it's only an action against the a b a that can prevent mr benaud from being blocked the entrance of his chosen profession