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1 ROBERT E. DARBY (BAR NO. 70576)
JULIE CAPELL (BAR NO. 226662)
2 FULBRIGHT & JAWORSKI L.L.P.
555 South Flower Street
3 Forty-First Floor
Los Angeles, CA 90071
4 Telephone: (213) 892-9272
Facsimile: (213) 892-9494
5 jcapell@fulbright.com
rdarby@fulbright.com
6
ROBERT A. BURGOYNE (pro hac vice)
7 CAROLINE M. MEW (pro hac vice)
FULBRIGHT & JAWORSKI L.L.P.
8 801 Pennsylvania Avenue, NW
Washington, DC 20004
9 Telephone: (202) 662-0200
Facsimile: (202) 662-4643
10 rburgoyne@fulbright.com
cmew@fulbright.com
11
Attorneys for Defendant
12 LAW SCHOOL ADMISSION COUNCIL, INC.

13

IN THE UNITED STATES DISTRICT COURT

14

FOR THE NORTHERN DISTRICT OF CALIFORNIA

15 THE DEPARTMENT OF FAIR EMPLOYMENT 16 AND HOUSING,

No. CV 12-1830-EMC

17

Plaintiff,

18

v.

DEFENDANT’S MOTION TO DISMISS AND SUPPORTING POINTS AND AUTHORITIES

19

LAW SCHOOL ADMISSION COUNCIL, INC., ET AL.,

Hearing Date: July 13, 2012 Hearing Time: 1:30 p.m.

20

Defendants.

21 JOHN DOE, JANE DOE, PETER ROE,

22

RAYMOND BANKS, KEVIN COLLINS, RODNEY DECOMO-SCHMITT, ANDREW

23

GROSSMAN, ELIZABETH HENNESSEYSEVERSON, OTILIA IOAN, ALEX JOHNSON,

24

NICHOLAS JONES, CAROLINE LEE, ANDREW QUAN, STEPHEN SEMOS,

25

GAZELLE TALESHPOUR, KEVIN VIELBAUM, AUSTIN WHITNEY, and all other

26 similarly situated individuals,

27

Real Parties in Interest.

28

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TABLE OF CONTENTS Page(s)
POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS................................ 1 STATEMENT OF FACTS ............................................................................................................. 1 PROCEDURAL HISTORY............................................................................................................ 2 STATEMENT OF ISSUES TO BE DECIDED ............................................................................. 5 ARGUMENT .................................................................................................................................. 6 I. LEGAL STANDARD FOR A MOTION TO DISMISS .................................................... 6 II. DFEH LACKS JURISDICTION OVER THE ADMINISTRATION OF
STANDARDIZED ADMISSIONS TESTS........................................................................ 7 A. California’s Disability Statutes ............................................................................... 7 B. The Americans with Disabilities Act ...................................................................... 7 C. The FEHA Does Not Give DFEH The Authority To Investigate Or File
Complaints Involving Accommodation Requests On Admissions Tests ............... 8 III. TO THE EXTENT DFEH HAS JURISDICTION, IT IS LIMITED TO
PURSUING VIOLATIONS ALLEGED IN THE UNDERLYING COMPLAINTS TO THE AGENCY ........................................................................................................... 11 IV. DFEH’S FIRST CAUSE OF ACTION FAILS TO STATE A CLAIM........................... 13 V. DFFH’S SECOND CAUSE OF ACTION FAILS TO STATE A CLAIM ...................... 15 VI. DFEH’S THIRD CAUSE OF ACTION FAILS TO STATE A CLAIM ......................... 16 VII. DFEH’S FOURTH CAUSE OF ACTION FAILS TO STATE A CLAIM TO THE EXTENT IT CHALLENGES LSAC’S DOCUMENTATION POLICES ....................... 17 VIII. DFEH’S FIFTH CAUSE OF ACTION FAILS TO STATE A CLAIM........................... 18 IX. DFEH’S PROPOSED CLASS MUST BE NARROWED EVEN IF A CLASS ACTION IS OTHERWISE VIABLE ............................................................................... 20 X. DFEH CANNOT RECOVER DAMAGES UNDER UNRUH ACT § 52 ....................... 21 XI. THE DOE DEFENDANTS SHOULD BE DISMISSED FROM THE CASE................. 22 A. DFEH Has Not Sufficiently Alleged Claims Against Any Individual
Defendant .............................................................................................................. 22 B. DFEH Cannot Sue Any Individual Defendants Because No Individual Was
Identified In The Complaints To The Agency ...................................................... 24 CONCLUSION ............................................................................................................................. 25
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TABLE OF AUTHORITIES

CASES

Page(s)

Abrahams v. MTA Long Island Bus, 644 F.3d 110 (2d Cir. 2011).................................................................................................... 18

Anderson v. County of Siskiyou, 2010 U.S. Dist. LEXIS 99927 (N.D. Cal. 2010)..................................................................... 10

Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009) ................................................................................. 6, 17

Balisteri v. Pacifica Police Dep’t, 901 F.2d 696 (9th Cir. 1988)..................................................................................................... 6

Bass v. County of Butte, 458 F.3d 978 (9th Cir. 2006)................................................................................................... 10

Bell Atl. v. Twombly, 550 U.S. 544 (2007) ............................................................................................................ 6, 17

Cort v. Ash, 422 U.S. 66 (1975) .................................................................................................................. 13

Cousins v. Lockyear, 568 F.3d 1063 (9th Cir. 2009)................................................................................................... 6

De Los Santos v. Panda Express, Inc., 2010 U.S. Dist. LEXIS 127788 (N.D. Cal. 2010)................................................................... 13

Delgado v. United Facilities, Inc., 2012 U.S. Dist. LEXIS 21527 (N.D. Cal. 2012)..................................................................... 13

Dep’t of Fair Empl. & Housing v. Marion’s Place, 2006 WL 1130912 (Cal. FEHC 2006) .................................................................................... 22

In re Digimarc Corp. Deriv. Litig., 549 F.3d 1223 (9th Cir. 2009)................................................................................................. 14

Doe v. Division of Youth & Fam. Serv., 148 F. Supp. 2d 462 (D.N.J. 2001) ......................................................................................... 23

Doe v. Nat’l Bd. of Medical Examiners, 199 F.3d 146 (3d Cir. 1999).................................................................................................... 16

Dydzak v. George, 2010 U.S. Dist. LEXIS 144336 (C.D. Cal. 2010) ................................................................... 22

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Emerson v. Thiel College, 296 F.3d 184 (3d Cir. 2002).................................................................................................... 23

Hobson v. Raychem Corp., 73 Cal. App. 4th 614 (1999).................................................................................................... 11

Lonberg v. City of Riverside, 571 F.3d 846 (9th Cir. 2009)................................................................................................... 18

Lonberg v. Sanborn Theatres, Inc., 2001 U.S. App. LEXIS 21065 (9th Cir. 2001)........................................................................ 23

Love v. Law School Admission Council, 513 F. Supp. 2d 206 (E.D. Pa. 2007) ........................................................................................ 2

Medix Ambulance Serv., Inc. v. Superior Ct., 97 Cal. App. 4th 109 (2002).................................................................................................... 24

Noel v. City of Oroville, 2007 US. Dist. LEXIS 80704 (E.D. Cal. 2007) ...................................................................... 24

Northstar Financial Advisors, Inc. v. Schwab Investments, 615 F.3d 1106 (9th Cir. 2010)................................................................................................. 13

Powell v. Nat’l Bd. of Med. Examiners, 364 F.3d 79 (2d Cir. 2004)........................................................................................................ 2

Rodriguez v. Airborne Express, 265 F.3d 890 (9th Cir. 2001)................................................................................................... 12

Rojo v. Kliger, 52 Cal. 3d 65 (1990) ............................................................................................................... 10

Spiegel v. Schulmann, 604 F.3d 72 (2d Cir. 2010)...................................................................................................... 24

Turner v. Ass’n of American Medical Colleges, 167 Cal. App. 4th 1401 (2008)........................................................................................ 8, 9, 17

U.S. v. Ritchie, 342 F.3d 903 (9th Cir. 2003)..................................................................................................... 6

Van Hulle v. Pacific Telesis Corp., 124 F. Supp. 2d 642 (N.D. Cal. 2000) .................................................................................... 24

White v. Creighton Univ., 2006 U.S. Dist. LEXIS 85801 (D. Neb. 2006) ....................................................................... 23

Wilkins-Jones v. Cty. of Alameda, 2012 U.S. Dist. LEXIS 34543 (N.D. Cal. 2012)....................................................................... 6

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Wilson-Combs v. Cal. Dep’t of Consumer Affairs, 555 F. Supp. 2d 1110 (E.D. Cal. 2008)............................................................................... 7, 24
Winter v. Corrections Corp. of America, 2009 U.S. Dist. LEXIS 53668 (S.D. Cal. 2009) ..................................................................... 13
Yurick v. Superior Court, 209 Cal. App. 3d 1116 (1989)................................................................................................. 12
FEDERAL STATUTES 42 U.S.C. § 12101 ........................................................................................................................... 7 42 U.S.C. § 12012 ......................................................................................................................... 13 42 U.S.C. § 12182 ......................................................................................................................... 23 42 U.S.C. § 12188 ......................................................................................................................... 23 42 U.S.C. § 12189 ....................................................................................... 8, 13, 14, 15, 18, 19, 23 42 U.S.C. § 12203 ................................................................................................. 16, 18, 19, 23, 24 42 U.S.C. § 2000a-3 ...................................................................................................................... 23 CALIFORNIA STATUTES Civ. Code § 51 ............................................................................................................ 1, 8, 9, 10, 13 Civ. Code § 52 ........................................................................................................................ 21, 22 Gov’t Code § 12930 .................................................................................................................. 7, 20 Gov’t Code § 12940 ........................................................................................................................ 7 Gov’t Code § 12948 .......................................................................................... 1, 2, 8, 9, 10, 13, 22 Gov’t Code § 12955 ........................................................................................................................ 7 Gov’t Code § 12960 ................................................................................................................ 11, 24 Gov’t Code § 12961 ................................................................................................................ 11, 20
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Gov’t Code § 12962 ...................................................................................................................... 11 Gov’t Code § 12963.7 ................................................................................................................... 11 Gov’t Code § 12965 .................................................................................................................. 4, 11 Gov’t Code § 12970 ...................................................................................................................... 21 FEDERAL RULES Fed. R. Civ. P. 8 ............................................................................................................................ 22 Fed. R. Civ. P. 12 ........................................................................................................................ 5, 6 Fed. R. Civ. P. 23 .......................................................................................................................... 21 FEDERAL REGULATIONS 28 C.F.R. § 36.309 .................................................................................................................. 15, 18 28 C.F.R. § 36.501 .......................................................................................................................... 5 28 C.F.R. § 36.502 .......................................................................................................................... 5 28 C.F.R. § 36.503 .......................................................................................................................... 5 OTHER AUTHORITIES 75 Fed. Reg. 56236 (Sept. 15, 2010)............................................................................................. 18
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1

PLEASE TAKE NOTICE that on July 13, 2012, at 1:30 p.m., or as soon thereafter as

2 counsel may be heard, defendant Law School Admission Council, Inc. (“LSAC”) will present
3
argument on its Motion to Dismiss (“Motion”).
4
LSAC seeks dismissal of the entire action on the grounds that plaintiff California
5 6 Department of Fair Employment and Housing (“DFEH”) lacks jurisdiction over the subject
7 matter of this litigation. In the alternative, LSAC seeks dismissal of four of the five claims

8 asserted in DFEH’s complaint, as well as its request for certain damages; and dismissal of any

9 remaining class-based claims relative to individuals who were not part of the class that was

10 defined in the pre-litigation notice of class complaint that DFEH served on LSAC.
11
POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS
12
STATEMENT OF FACTS
13
DFEH’s complaint alleges violations of the Americans with Disabilities Act (“ADA”), 42
14
15 U.S.C. §§ 12101 et seq., as incorporated by reference in the Unruh Civil Rights Act (“Unruh

16 Act”), Cal. Civ. Code § 51(f), as incorporated by reference in the California Fair Employment &

17 Housing Act (“FEHA”), Cal. Gov’t Code § 12948. See Group and Class Action Complaint for

18 Damages and Injunctive Relief ¶ 16 (March 15, 2012)(the “Complaint”). DFEH has sued on
19 behalf of 17 individuals (the “Complainants”) who requested testing accommodations on the Law 20
School Admission Test, or “LSAT.” DFEH also purports to bring this case as a class action on
21
behalf of “all disabled individuals in the State of California who requested accommodations for
22
23 the [LSAT] from January 19, 2009 to February 6, 2012.” Complaint ¶ 8.

24

LSAC is a non-profit membership organization based in Pennsylvania. LSAC provides

25 services for its member schools and individuals who wish to attend law school, including

26 developing and administering the LSAT examination. Law schools across the country rely upon
27
LSAT scores as one factor among many in evaluating admission applications.
28

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The LSAT is a standardized test. With limited exceptions, all examinees take the LSAT under the same testing conditions, including standard testing time. The primary exception is for disabled individuals who need reasonable accommodations.
LSAC conscientiously evaluates each accommodation request. It does so to ensure that “individuals with bona fide disabilities receive accommodations, and that those without disabilities do not receive accommodations that they are not entitled to, and which could provide them with an unfair advantage when taking the ... examination.” Powell v. Nat’l Bd. of Med. Examiners, 364 F.3d 79, 88-89 (2d Cir. 2004); see also Love v. Law School Admission Council, 513 F. Supp. 2d 206, 216 n.7 (E.D. Pa. 2007)(“the research indicates that if you give someone extra time on a timed test like the GMAT or LSAT, their scores will improve whether they have a learning disability or not”). More than a thousand individuals request disability-based accommodations on the LSAT every year, and LSAC grants accommodations to most, but not all, of those individuals.
Each of the Complainants filed administrative complaints with DFEH (two on their own initiative, the others after receiving a Notice of Investigation which asked them if they wanted to participate in DFEH’s investigation). See Complaint ¶¶ 19-39. Each Complainant alleged that LSAC’s denial of his or her accommodation requests (in whole or in part) was a “violation of Government Code, Section 12948” (the FEHA), which “incorporates Section 51 of the Civil Code” (the Unruh Act). See id., Exs. 1-2, 4-18.
PROCEDURAL HISTORY In January and May 2010, three individuals filed complaints with DFEH in which they claimed to have mental or physical impairments that entitled them to extra testing time and other accommodations on the LSAT. Their complaints alleged violations of California’s FEHA and Unruh Act. The complaints did not allege that LSAC had violated the ADA.

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All three complainants had already taken the LSAT, and two were already enrolled in law school. Nevertheless, in a Notice of Class Complaint dated July 22, 2010, DFEH informed LSAC that it intended to investigate the complaints and would do so on a group or class basis. The “group or class” consisted of “all disabled individuals in the State of California who have or will request a reasonable accommodation for the [LSAT], ... and who have or will be unlawfully denied such request from January 19, 2009, to the conclusion of the ... investigation....” Complaint, Ex. 3 at ¶ 3. The Notice asserted that there were “common questions of law and fact,” id., Ex. 3 at ¶ 4, but it did not identify what those common questions were. The Notice did not reference any general LSAC policies as being the subject of the investigation. See id.
DFEH’s July 2010 Notice of Complaint did not assert that DFEH was investigating LSAC’s compliance with the ADA. Consistent with the underlying complaints, it stated that DFEH was investigating whether LSAC had violated the FEHA and the Unruh Act. See id., Ex. 3, at ¶¶ 1, 4.
In August 2010, DFEH served broad discovery requests on LSAC, asking for the identities of all persons in California who submitted requests for disability-related accommodations over a 21-month period of time, and all documents associated with these requests. LSAC objected. Six months later, DFEH filed a petition in superior court to compel compliance with its investigative discovery. The court ordered compliance in substantial part. It required LSAC to produce records for all individuals in California who had requested accommodations on the LSAT during the applicable time period, after removing or redacting personally identifiable information from those records. It also required LSAC to send a Notice of Investigation to all of those individuals, informing them of DFEH’s investigation and asking whether they wanted LSAC to make the recipient’s name and contact information available to DFEH. See Ex. 1 to the Decl. of C. Mew (filed herewith).
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In May 2011, LSAC mailed a Notice of Investigation to 311 individuals. See Mew Decl., Ex. 2 ¶ 2. Eighty-nine of those individuals completely and fully executed consent forms authorizing LSAC to share their names with DFEH. DFEH then worked with 35 of those individuals to prepare and file administrative complaints, bringing the total number of complainants at the agency level to 38.
On February 6, 2012, DFEH filed a “Group and Class Accusation” before the California Fair Employment & Housing Commission (“FEHC”), which it amended on February 17th to remove one complainant and correct another complainant’s name (as amended, the “Accusation”). The Accusation alleged that LSAC had violated the rights of 17 individuals under the FEHA by refusing to grant their accommodations requests.
Thus, after being provided with records for 311 individuals and going through a class notification process in which 89 of those 311 individuals elected to have their names provided to DFEH, DFEH apparently concluded that 17 individuals had viable complaints. Nevertheless, the Accusation was made on behalf of the 17 designated individuals and all “similarly situated individuals,” whom DFEH referred to as “class complainants.”
Because the Accusation requested damages, LSAC had the right to have the matter heard in court instead of proceeding before the FEHC. Gov’t Code § 12965(c)(1). LSAC exercised that right and, on March 15, 2012, DFEH filed its Complaint in the Alameda County Superior Court. See Complaint ¶¶ 42, 43. LSAC removed the case to federal court on April 12, 2012.
DFEH’s Complaint includes claims that were not alleged by any of the Complainants, and it seeks damages that the FEHC has held cannot be recovered by DFEH. In addition, DFEH purports to be proceeding on behalf of a broader class that it identified in its Notice of Class Complaint. The broader class includes individuals who were granted the testing accommodations that they requested.

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It is unclear why DFEH is pursuing this matter, particularly at a time when DFEH and other state agencies are confronting drastic budgetary constraints. The complaints to DFEH did not involve housing or employment, and there is no enforcement vacuum that DFEH needed to fill. The ADA includes a provision that expressly governs the administration of standardized tests such as the LSAT, and Congress has tasked the U.S. Department of Justice (“DOJ”) with investigating disability-based discrimination complaints involving such examinations.1
For the reasons set forth below, some or all of DFEH’s claims should be dismissed. STATEMENT OF ISSUES TO BE DECIDED
1. Whether DFEH has jurisdiction to pursue administrative complaints involving requests for accommodations on standardized admissions tests. Only if the Court answers this question in the affirmative will it need to decide the following additional issues:
2. Whether DFEH can pursue claims in court that were not included in any complaint filed with the agency and which DFEH did not attempt to resolve through conciliation.
3. Whether Counts One, Two, Three and Five of DFEH’s Complaint should be dismissed pursuant to Fed. R. Civ. P. 12(b)(1) and/or Fed. R. Civ. P. 12(b)(6).
4. Whether DFEH can seek up to treble damages, in an amount not less than $4,000, for each alleged Unruh Action violation.
5. Whether DFEH can seek relief on behalf of individuals who do not fall within the class that was indentified in the Notice of Class Complaint that DFEH provided to LSAC.
6. Whether DFEH’s claims against the Doe defendants should be dismissed pursuant to Fed. R. Civ. P. 12(b)(1) and/or Fed. R. Civ. P. 12(b)(6).

1 In addition to investigating complaints, DOJ has the authority to conduct compliance reviews. 28 C.F.R. § 36.502. DOJ can file suit if it believes that a testing organization has violated the ADA’s testing provision, id. at § 36.503, as can private individuals, id. at § 36.501.

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ARGUMENT I. LEGAL STANDARD FOR A MOTION TO DISMISS
Dismissal of a complaint “can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balisteri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988) (citation omitted). In considering a motion to dismiss, “a court must take allegations of materials fact as true and construe them in the light most favorable to the nonmoving party,” but “‘conclusory allegations of law and unwarranted inferences are insufficient to avoid a Rule 12(b)(6) dismissal.’” Wilkins-Jones v. Cty. of Alameda, 2012 U.S. Dist. LEXIS 34543, *6 (N.D. Cal. 2012) (quoting Cousins v. Lockyear, 568 F.3d 1063, 1067 (9th Cir. 2009)). A complaint must contain sufficient factual matter to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949-50 (2009) (citing Bell Atl. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 1949 (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than sheer possibility that a defendant acted unlawfully.” Id.
A court is generally limited to reviewing the contents of the complaint when deciding a motion to dismiss. However, a court may also consider documents attached to a complaint, documents incorporated by reference in the complaint, and matters subject to judicial notice without converting a motion to dismiss to a summary judgment motion. U.S. v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Likewise, “when considering a motion to dismiss for lack of subject matter jurisdiction, the district court may properly review evidence outside the pleadings to resolve factual disputes concerning the existence of jurisdiction.” Wilson-Combs v. Cal. Dep’t of Consumer Affairs, 555 F. Supp. 2d 1110, 1114 (E.D. Cal. 2008).
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II. DFEH LACKS JURISDICTION OVER THE ADMINISTRATION OF STANDARDIZED ADMISSIONS TESTS A. California’s Disability Statutes Various California statutes prohibit disability discrimination. Two such laws are the
FEHA and the Unruh Act. The FEHA makes it unlawful to discriminate against a person in terms
of employment or housing because of a physical or mental disability. Gov’t Code §§ 12940,
12955. The Unruh Act focuses on ensuring that persons with disabilities have equal access to
public businesses, facilities, and other accommodations. Civ. Code §§ 51 et seq.
DFEH is responsible for investigating discrimination complaints related to employment,
housing, and equal access to public accommodations. Gov’t Code §§ 12930(f)(1)-(2). The
present matter does not involve employment, housing, or alleged discrimination by a hotel or other public accommodation. 2 It involves the manner in which standardized tests are
administered to individuals who claim to have a disability.
B. The Americans with Disabilities Act.
Congress enacted the ADA in 1990 to provide a “comprehensive national mandate for the
elimination of discrimination against individuals with disabilities,” as well as “clear” and
“consistent” standards for achieving that goal. 42 U.S.C. § 12101(b). Title I of the ADA applies
to employment practices, Title II to the services provided by state and local governments, and
Title III to public accommodations and certain other private entities.
2 As noted above, DFEH’s investigation began with the filing of complaints by three individuals. When DFEH notified LSAC of the initial complaint, it stated that the complainant “alleges that you have discriminated ... in providing equal access to housing....” Notice of Filing of Discrimination Complaint at 1 (May 19, 2010)(emphasis added). When it notified LSAC of the second two complaints, DFEH asked LSAC to provide, among other things, information regarding sexual harassment training as well as the “[p]ersonnel records of the complainant.” Notices of Filing of Discrimination Complaint at 6-7 (Jan. 20, 2010 and Jan. 27, 2010). The notices from DFEH thus reflected the subject areas that DFEH is actually charged with enforcing – housing and employment.
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Within Title III, the ADA includes a provision that expressly applies to the administration of examinations such as the LSAT. It states, in relevant part, that “examinations ... related to applications ... for secondary or post-secondary education” must be administered to disabled individuals in an “accessible” place and manner. 42 U.S.C. § 12189.
C. The FEHA Does Not Give DFEH The Authority To Investigate Or File Complaints Involving Accommodation Requests On Admissions Tests.
DFEH’s jurisdiction derives exclusively from the FEHA. In this case, DFEH’s claims are grounded in FEHA § 12948. See Complaint ¶¶ 1, 16. Section 12948 states that it is “an unlawful practice … for a person to deny … the rights created by Section 51 … of the Civil Code.” Section 51 creates the following rights:
All persons within the jurisdiction of this state are free and equal, and no matter what their … disability … are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. Civil Code § 51(b). The California Court of Appeal has held that the rights created by this provision do not include a right for examinees taking standardized admissions tests to receive disability-based accommodations. See Turner v. Ass’n of American Medical Colleges, 167 Cal. App. 4th 1401, 1413-14 (2008). Section 12948 thus provides no basis for DFEH to assert the claims that it is asserting in its Complaint. This conclusion is not altered by Section 51(f) of the Civil Code, which states as follows: “A violation of the right of any individual under the federal Americans with Disabilities Act of 1990 (P.L. 101-336) shall also constitute a violation of this section.” Section 51(f) simply provides that the violation of a right created under the ADA is also a violation of the Unruh Act. It does not convert ADA-created rights into rights that are “created by Section 51.”
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In Turner, four individuals with diagnosed learning disabilities and/or attention deficit disorders claimed to be entitled to testing accommodations under California law when they took the Medical College Admission Test (“MCAT”). 167 Cal. App. 4th at 1405. After accommodations were denied, they sued the test administrator, the Association of American Medical Colleges (“AAMC”), alleging violations of the Unruh Act and California’s Disabled Persons Act. The trial court ruled in favor of the plaintiffs, but the appellate court reversed.
The Court of Appeal began its analysis by noting that a policy which is neutral on its face is not actionable under the Unruh Act, even if it has a disparate impact on a protected class. Turner, 167 Cal. App. 4th at 1408. Pointing out that AAMC’s standards for the administration of the MCAT, including a time limit for each section of the test, were neutral and applied to all applicants regardless of their membership in a particular group, the court held that the plaintiffs’ allegations could not form the basis of an Unruh Act claim. Id. at 1409. The court noted that the plaintiffs could seek redress under the Unruh Act only if they had alleged and proven that AAMC violated the ADA, id. at 1410 (citing Civ. Code § 51(f)), but no ADA violations were alleged in that case.
Here, of course, DFEH has alleged violations of the ADA in each of its five claims. However, in order to pursue those claims, DFEH must show that it has the right to do so under Government Code § 12948 (i.e., that it is seeking to enforce rights that are “created by” the Unruh Act). No such showing is required of private plaintiffs who want to pursue an Unruh Act claim under Civil Code § 51(f). Private plaintiffs suing under the Unruh Act can sue for violations of rights created by the Unruh Act, or rights created exclusively by the ADA, without showing the source of the claimed rights. DFEH, on the other hand, can pursue an Unruh Act claim only if it can show that the right was “created by Section 51,” so as to fall within the scope of DFEH’s enforcement authority under the applicable FEHA provision (Section 12948).
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The Ninth Circuit has held that, in drafting Civil Code § 51(f) and incorporating ADA violations as a violation of the Unruh Act, the California legislature intended to incorporate only those provisions of the ADA that are germane to the Unruh Act’s original subject matter. See Bass v. County of Butte, 458 F.3d 978, 983 (9th Cir. 2006); see also Anderson v. County of Siskiyou, 2010 U.S. Dist. LEXIS 99927, **17-18 (N.D. Cal. 2010). A similar conclusion is warranted with respect to the FEHA’s incorporation of Unruh Act violations as violations of the FEHA. DFEH can pursue claims under Government Code § 12948 for alleged violations of the Unruh Act only to the extent that those claims involve the original subject matter of the FEHA. “[T]he FEHA is the product of a legislative amalgamation of two separate acts, the FEPA, which applied exclusively to employment discrimination, and the Rumford Fair Housing Act, ... which banned discrimination in housing.” Rojo v. Kliger, 52 Cal. 3d 65, 77 (1990)(citations omitted). Standardized admissions tests do not fall within the original subject matter of the FEHA.
It is not appropriate for DFEH to attempt to transform itself into a broad-based enforcer of obligations that arise exclusively from the ADA. Congress has assigned that task to the U.S. Department of Justice. To allow a state agency with no substantive expertise to pursue complaints in this area, and to do so on a purported class-wide basis, would place LSAC and other testing organizations in the fundamentally untenable position of responding to different agency perceptions regarding the reach of the federal statute.3 III. TO THE EXTENT DFEH HAS JURISDICTION, IT IS LIMITED TO PURSUING
VIOLATIONS ALLEGED IN THE UNDERLYING COMPLAINTS TO THE AGENCY DFEH has the authority to “receive, investigate, and conciliate complaints” that allege “unlawful practices” within the scope of DFEH’s jurisdiction. Gov’t Code § 12930(f). If a
3 Here, for example, DFEH is challenging LSAC’s policy of flagging test scores that are achieved with extra testing time, see Complaint ¶¶ 199-204, even though DOJ has long been aware of that policy and has never challenged it or asserted that it violates the ADA.
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person claims to be “aggrieved by an alleged unlawful practice,” he may file a verified complaint with DFEH “that shall set forth the particulars thereof....” Id. at § 12960(b)(emphasis added); see also Hobson v. Raychem Corp., 73 Cal. App. 4th 614, 630 (1999)(noting “the requirement that an administrative charge be filed identifying with specificity the discrimination alleged and the facts supporting it”). A copy of the verified complaint must be provided to the individual or entity who is alleged to have committed the unlawful practice. Gov’t Code § 12962(a).
If DFEH concludes that “an unlawful practice alleged in a verified complaint adversely affects, in a similar manner, a group or class of persons of which the aggrieved person filing the complaint is a member, or [that] ... an unlawful practice raises questions of law or fact which are common to such a group or class,” DFEH may investigate the matter and file an accusation on a class or group basis. Id. at § 12961 (emphasis added).
If DFEH “determines ... that the complaint is valid, [it] shall immediately endeavor to eliminate the unlawful ... practice complained of by conference, conciliation, and persuasion.” Id. at § 12963.7(a)(emphasis added). If those efforts fail, the director of the DFEH “in his or her discretion may cause to be issued ... a written accusation.” Id. at § 12965(a).
The FEHA thus imposes the following procedural requirements: (1) if an individual wants to pursue a claimed violation of any FEHA provision administratively, he or she must file a verified complaint that sets forth the “particulars” of the allegedly unlawful conduct; (2) DFEH must give the accused party a copy of the verified complaint so that the accused party knows what it has been accused of doing; (3) DFEH then investigates the conduct “alleged in [the] verified complaint;” (4) if DFEH determines that the complaint is valid, it must attempt to resolve “the unlawful ... practice complained of” through conciliation and persuasion; and (5) if DFEH is unsuccessful, it may file an accusation that challenges the allegedly unlawful conduct that it investigated and attempted to remedy through conciliation.

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Implicit in this statutory scheme is an important limitation. DFEH cannot challenge actions or policies in a post-conciliation accusation that were not identified in a verified complaint to the agency and cannot reasonably be expected to grow out of DFEH’s investigation of the allegedly unlawful conduct, and that were not the subject of good faith conciliation efforts by DFEH. A similar limitation applies to private parties. A private individual cannot pursue claims in court that were not part of his or her complaint to DFEH. In that context, as here, “[t]he scope of the administrative charge defines the permissible scope of the subsequent civil action.” Rodriguez v. Airborne Express, 265 F.3d 890, 897 (9th Cir. 2001). This limitation derives from “vital policy interests embodied in FEHA, i.e., the resolution of disputes and elimination of unlawful employment practices by conciliation.” Yurick v. Superior Court, 209 Cal. App. 3d 1116, 1123 (1989).
In this case: • None of the Complainants alleged any ADA violation; and • None of the Complainants alleged that LSAC’s flagging policy or any of its documentation policies are unlawful.
It was therefore improper for DFEH to include in the Complaint any ADA-based claim. At a minimum, it was improper for DFEH to include claims that challenge the guidance that LSAC provides to professionals who submit evaluations in support of an accommodation request (Count One), LSAC’s policy of flagging accommodated test scores (Counts Two and Three), or LSAC’s documentation requirements for individuals requesting accommodations (Count Five). Whether viewed as a jurisdictional defect or an additional reason why DFEH has failed to state a claim, these four claims should be dismissed.4

4 See, e.g., Delgado v. United Facilities, Inc., 2012 U.S. Dist. LEXIS 21527, **21-24 (E.D. Cal.

2012)(dismissing retaliation claim that was not included in plaintiff’s DFEH complaint); Winter

v. Corrections Corp. of America, 2009 U.S. Dist. LEXIS 53668, **9-12 (S.D. Cal. 2009)(same);

cf. De Los Santos v. Panda Express, Inc., 2010 U.S. Dist. LEXIS 127788, **11-16 (N.D. Cal.

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IV. DFEH’S FIRST CAUSE OF ACTION FAILS TO STATE A CLAIM The ADA applies to individuals with a “disability,” as defined in the ADA. The ADA
defines disability as having “(A) a physical or mental impairment that substantially limits one or more major life activities ...; (B) a record of such an impairment; or (C) being regarded as having such an impairment....” 42 U.S.C. § 12012(1).
The ADA also provides “rules of construction regarding the definition of disability.” Id. at § 12012(4). One of those rules states that “[t]he determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as ... medication....” Id. at § 12012(4)(E)(i)(I).
DFEH’s first cause of action alleges that LSAC has violated this definitional rule of construction by “requiring applicants [for accommodations] to take the medication prescribed for their disabilities while being evaluated for accommodations or explain their failure or refusal to do so....” Complaint ¶ 189. According to DFEH, this purported ADA violation is in turn a violation of the Unruh Act by virtue of Civil Code § 51(f), which is in turn a violation of the FEHA by virtue of Government Code § 12948.
Assuming that DFEH has jurisdiction to pursue any claims against LSAC, this claim fails as a matter of law. The ADA provides no private right of action for alleged “violations” of ADA definitions. See generally Cort v. Ash, 422 U.S. 66, 78-85 (1975); Northstar Financial Advisors,

2010)(dismissing two claims that relied upon a disparate impact theory of liability, because the administrative charge to the EEOC alleged only disparate treatment).

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Inc. v. Schwab Investments, 615 F.3d 1106, 1115-22 (9th Cir. 2010); In re Digimarc Corp. Deriv. Litig., 549 F.3d 1223, 1229-33 (9th Cir. 2009). The only ADA provision that imposes obligations on LSAC as a testing entity is Section 12189. Section 12189 states in relevant part that “[a]ny person that offers examinations ... related to applications for secondary or post-secondary education ... shall offer such examinations ... in a place and manner accessible to persons with disabilities or offer alternative accessible arrangements for such individuals.” 42 U.S.C. § 12189. The ADA provides a right of action as to this provision, see id. at § 12188, but not for purported violations of ADA definitional provisions. The language relied upon by DFEH is simply a rule of construction that courts are to use in determining whether someone is disabled within the meaning of the ADA. If LSAC denies accommodations to an examinee because it does not believe the examinee meets the statutory definition of disabled, it runs the risk of being sued for violating Section 12189. However, it cannot be separately sued for “violating” the ADA’s definition of “disability.”
Second, DFEH’s claim is based upon an incorrect factual premise. LSAC does not “require” individuals who request LSAT accommodations to “take the medication prescribed for their disabilities while being evaluated for accommodations or explain their failure or refusal to do so.” LSAC simply suggests that the professionals who evaluate the applicants do so while the applicant is on his or her standard medication. LSAC makes this suggestion because the individual presumably will be on the same medication when taking the LSAT, and the goal is to get an accurate evaluation of the need for accommodations. If an evaluator chooses not to proceed in this manner, LSAC simply asks the evaluator to provide an explanation.
More specifically, LSAC’s Guidelines for Documentation of Cognitive Impairments state as follows: “Please note that if you are currently taking medication, you should consider being evaluated while on your medication. Any deviation from this practice must be explained by your
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evaluator.” See www.lsac.org/JD/pdfs/GuidelinesCognitive-NON.pdf. In turn, LSAC’s Evaluator Form includes this question: “Did this candidate take his or her prescribed medication during the evaluation? Yes __. No __. If no, provide an explanation.” See www.lsac.org/JD/pdfs/EvaluatorForm-NON.pdf. These questions are entirely proper under the ADA.5 Therefore, even if DFEH could pursue a cause of action for purported violations of an ADA definition, undisputed facts, properly noticed by the Court, show as a matter of law that no such violation occurred here.
V. DFEH’S SECOND CAUSE OF ACTION FAILS TO STATE A CLAIM DFEH’s second cause of action challenges LSAC’s policy of annotating or “flagging” test
scores that are achieved with extended testing time. According to DFEH, by annotating test scores, LSAC is “communicating to law schools that it does not know whether or not the applicant’s exam results accurately reflect aptitude or achievement. Therefore, LSAC is breaching its duty under the FEHA, Unruh Act, and ADA to ensure that the examination results accurately reflect the individual’s aptitude or achievement level.” Complaint ¶ 195. DFEH bases this claim on Section 12189 of the ADA, which requires that exams be administered in an “accessible” place and manner, and on a DOJ implementing regulation (28 C.F.R. § 36.309) that likewise addresses only the manner in which tests are “selected and administered.” Id. at ¶ 194.
Simply stated, Section 12189 of the ADA and DOJ’s implementing regulation do not prohibit the psychometrically sound practice of annotating scores that are achieved with extra testing time. Neither the statute nor the regulation addresses the manner in which accommodated

5 See, e.g., U.S. Equal Employment Opportunity Commission, “Questions and Answers on the Final Rule Implementing the ADA Amendments Act of 2008,” Q&A 16 (“May the positive or negative effects of mitigating measures be considered when assessing whether someone is entitled to reasonable accommodation or poses a direct threat? Yes.... [I]f an individual with a disability uses a mitigating measure that results in no negative effects and eliminates the need for a reasonable accommodation, a covered entity will have no obligation to provide one.”).

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scores are reported. See generally Doe v. Nat’l Bd. of Medical Examiners, 199 F.3d 146, 155-57 (3d Cir. 1999)(noting that the DOJ’s ADA regulations do not “bar the practice of flagging the test scores of examinees who have received testing accommodations,” and that “[t]he annotation simply indicates that Doe’s scores are not psychometrically comparable to the scores of examinees who took the test without accommodations.”). And because the ADA does not prohibit flagging, there can be no derivative violation of the Unruh Act or the FEHA, as alleged by DFEH. DFEH’s second cause of action thus fails to state a claim. VI. DFEH’S THIRD CAUSE OF ACTION FAILS TO STATE A CLAIM
DFEH’s third cause of action challenges LSAC’s flagging policy on a different, but equally insubstantial, ground. According to DFEH, LSAC’s flagging policy constitutes a form of “coercion,” “intimidation” or other “interference with ADA rights,” in violation of 42 U.S.C. § 12203. See Complaint ¶ 201.
This claim fails for the same reasons noted above. There is nothing in the ADA or its implementing regulations that prohibits the psychometrically sound practice of annotating test scores that are not comparable to scores achieved under standard time conditions. DOJ has never stated that the practice of flagging constitutes a form of unlawful intimidation or coercion, nor has any court reached that conclusion. And, as noted above, none of the Complainants alleged in their complaints to DFEH that they had been intimidated or threatened, or had their rights under the ADA interfered with, by virtue of LSAC’s flagging policy.
The ADA language relied upon by DFEH in this claim provides as follows: “It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of ... any right granted or protected by this chapter.” 42 U.S.C. § 12203(b).6 The

6 The ADA also has a provision that prohibits retaliation. See 42 U.S.C. § 12203(a). DFEH has not asserted a violation of this provision.

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1 practice of annotating test scores achieved with extra testing time cannot reasonably be

2 characterized as a violation of this provision. LSAC has long annotated accommodated scores, as
3
have other testing organizations. See, e.g., Turner, 167 Cal. App. 4th at 1405 (“AAMC puts a
4
notation or ‘flag’ on any [MCAT] test taken under nonstandard conditions”). The annotation in
5 6 no way coerces, intimidates, or threatens examinees who request and receive extra testing time on
7 the LSAT, nor does it interfere with their exercising or enjoyment of ADA-protected rights. To

8 the contrary, examinees receive an annotated score only if they have successfully exercised their

9 right to request extra testing time as an accommodation on the LSAT.

10

Finally, even if this claim might otherwise be viable, DFEH has not satisfied the pleading

11
requirements set forth by the Supreme Court in Iqbal and Twombly. DFEH’s Complaint includes
12
only the conclusory assertion that “LSAC’s policy of annotating test scores administered with
13

14 extended time ... discourages applicants from seeking such an accommodation, and punishes

15 those who receive it, in violation of the FEHA, Unruh Act, and ADA.” Complaint ¶ 201. That

16 assertion is not enough to suggest that there is a plausible factual basis for DFEH’s claim.

17 VII. 18 19

DFEH’S FOURTH CAUSE OF ACTION FAILS TO STATE A CLAIM TO THE EXTENT IT CHALLENGES LSAC’S DOCUMENTATION POLICES
DFEH alleges in its fourth cause of action that LSAC violated the rights of the

20 Complainants (but not the rights of other class members) by “requiring excessive amounts of

21 documentation,” and by “denying a reasonable accommodation to each real party in interest.”
22 Complaint ¶ 207. 23
To the extent that DFEH has jurisdiction over complaints involving standardized
24
admissions tests, DFEH has stated a potentially viable cause of action in alleging that the denial
25 26 of accommodations to the 17 Complainants was unlawful. Indeed, this is the only potentially
27 viable claim in DFEH’s Complaint. DFEH’s fourth cause of action fails to state a claim,

28 however, insofar as it is based on LSAC’s documentation requirements. There is nothing in ADA

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1 § 12189 that imposes any limitations regarding the documentation that may be requested in order

2 to determine whether an individual has a covered disability and, if so, what testing
3
accommodations might be needed.
4
Given this statutory void, DFEH attempts to rely upon a DOJ regulation which states that
5 6 documentation requests by testing organizations must be “‘reasonable and limited to the need for
7 the ... accommodation ... requested.’” Complaint ¶ 206 (quoting 28 C.F.R. § 36.309(b)(1)(iv)).

8 This reliance is misplaced.

9

The regulation that DFEH relies upon did not become effective until March 15, 2011. See

10 75 Fed. Reg. 56236, 56237, 56255 (Sept. 15, 2010). It was not in effect when LSAC processed
11
twelve of the Complainants’ requests for accommodations, and thus it cannot be the source of a
12
claimed violation of their rights. Moreover, there is no private right of action to enforce that
13
14 regulation in any event, because it imposes obligations that are not found in the statutory

15 provision that it purports to implement (42 U.S.C. § 12189). “Only those regulations effectuating

16 the statute’s clear prohibitions or requirements are enforceable through the statute’s private of

17 action....” Lonberg v. City of Riverside, 571 F.3d 846, 851-52 (9th Cir. 2009)(ADA Title II
18 regulation not enforceable through a private right of action); see also Abrahams v. MTA Long 19
Island Bus, 644 F.3d 110, 116-20 (2d Cir. 2011)(affirming dismissal of claims that relied on an
20
ADA regulation that imposed obligations not found in the corresponding statutory provision).
21
22 DFEH therefore cannot state an ADA claim that relies upon the referenced DOJ regulation.

23 VIII. DFEH’S FIFTH CAUSE OF ACTION FAILS TO STATE A CLAIM

24

DFEH’s fifth cause of action alleges that LSAC violated the rights of the Complainants

25 (but not the rights of other class members) by “requiring unreasonable types and excessive
26
amounts of documentation to support each accommodation request....” Complaint ¶ 213.
27
28 According to DFEH, LSAC’s documentation requirements violate the ADA “by unlawfully

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coercing, intimidating, threatening, or interfering with real parties’ exercise of their right to reasonable accommodation on the LSAT.” Id. Like DFEH’s third cause of action, this claim is based on 42 U.S.C. § 12203(b).
The fact that LSAC requires examinees to submit documentation in support of an accommodation request, including documentation from qualified professionals, cannot reasonably be characterized as coercive, intimidating, or interfering with the exercise or enjoyment of ADAprotected rights. As DOJ made clear in a recent Settlement Agreement, testing organizations have the right to request reasonable documentation “that establishes (a) the existence of a physical or mental impairment; (b) whether the applicant’s impairment substantially limits one or more major life activities within the meaning of the ADA; and (c) whether and how the impairment limits the applicant’s ability to take the [test] under standard conditions.” Settlement Agreement Between United States of America and National Board of Medical Examiners at ¶ 13 (Feb. 2011)(available at www.ada.gov/nbme.htm). A testing organization also has “a right to make a timely request for supplemental information if the information submitted by an applicant does not establish the nature of the disability or the need for reasonable testing accommodations,” as well as the right to have “the information submitted by or on behalf of an applicant reviewed by one or more qualified professionals of [the testing organization’s] choosing....” Id. at ¶ 17. The testing organization must of course give “careful consideration to the information provided by an examinee’s qualified professional,” id. at ¶ 14, but it is “not required to defer to the conclusions or recommendations of an applicant’s supporting professional” so long as it provides an explanation, id. at ¶ 17.
DFEH might disagree with LSAC regarding whether any given Complainant’s documentation established a substantial limitation in a major life activity, thereby warranting accommodations under ADA § 12189. But such disagreement cannot be converted into a cause
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of action for coercion, intimidation, or interference with ADA-based rights. If an ADA violation occurs in this context, it is for denying accommodations to which the individual was entitled – and that claim is already asserted in DFEH’s fourth cause of action. IX. DFEH’S PROPOSED CLASS MUST BE NARROWED EVEN IF A CLASS
ACTION IS OTHERWISE VIABLE As noted above, DFEH has the authority to seek relief on a class basis if “an unlawful practice alleged in a verified complaint adversely affects, in a similar manner, a group or class of persons of which the aggrieved person filing the complaint is a member, or where such an unlawful practice raises questions of law or fact which are common to such a group or class....” Gov’t Code § 12961 (emphasis added). Thus, if DFEH pursues a class action complaint, the complaint can challenge only those practices that were put in issue by the individual complainant(s), and the class may include only individuals who are similarly situated to “the aggrieved person” who filed a complaint with DFEH. This makes sense, as DFEH is supposed to be a neutral agency whose mission is to “receive, investigate, and conciliate complaints.” Gov’t Code § 12930(f). A class may be warranted if actions challenged by a complainant also affect other individuals, but DFEH must notify the accused entity of any class-based allegations and give the entity an opportunity to address the actions that are purportedly unlawful and an opportunity to participate in conciliation discussions with the agency regarding those actions. Here, DFEH notified LSAC that it had received complaints from three individuals, all of whom challenged a single action by LSAC – the denial of their accommodation requests. DFEH also notified LSAC that DFEH had elected to investigate the matter on a “group or class” basis, consisting of “all disabled individuals in the State of California who have or will request a reasonable accommodation for the [LSAT], ... and who have or will be unlawfully denied such request from January 19, 2009, to the conclusion of the Department’s investigation....” Complaint, Ex. 3 at ¶ 3 (emphasis added). Its Complaint, however, attempts to expand the class
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considerably. DFEH now purports to be proceeding on behalf of “all disabled individuals in the
State of California who requested accommodations for the [LSAT] from January 19, 2009 to
February 6, 2012” – regardless of whether those requests were granted or denied. See Complaint
¶ 8. This is improper.7
Even if DFEH could otherwise show that this case is appropriate for class action treatment
under Fed. R. Civ. P. 23, the class could be no broader than the class that DFEH identified in its
Notice of Class Complaint. Assuming that any of DFEH’s class-based claims are allowed to
proceed (Counts One, Two and Three), the Court should hold that DFEH can seek relief only on
behalf of individuals who fall within the class stated in DFEH’s Notice of Class Complaint
(subject, of course, to DFEH’s showing that class action treatment is warranted as to that
narrower class). DFEH’s request for relief on behalf of individuals whose accommodation
requests were granted should be dismissed.
X. DFEH CANNOT RECOVER DAMAGES UNDER UNRUH ACT § 52
DFEH alleges that the Complainants and other class members have suffered a wide range
of injuries,8 for which DFEH seeks to recover “actual damages ... for each Unruh Act violation up
to a maximum of three times the actual damages but in no case less than $4,000 per violation.”
Complaint ¶ 225. The damages recoverable by DFEH for a claimed violation of the Unruh Act,
7 It is also unnecessary for DFEH to proceed on a class basis. The parties have already gone through what amounts to a class notification process with respect to this expanded class definition (i.e., all individuals in California who requested LSAT accommodations during the applicable time period). As discussed above, a Notice of Investigation was sent to 311 individuals, 89 of whom consented to having their names disclosed to DFEH. DFEH eventually winnowed the list down to 17 individuals on whose behalf it would proceed in the Accusation and its court Complaint. Individuals who might want to participate in this matter have thus been contacted already, and DFEH has already reviewed the applicable records and identified the individuals who it believes have viable claims. 8 DFEH alleges that class members “have incurred out of pocket losses, including test registration fees and medical bills … [and] have suffered emotional distress, anxiety, lost opportunity, frustration, humiliation, and loss of dignity and self-esteem, in an amount to be proven at trial.” See, e.g., Complaint ¶¶ 190, 191.
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however, do not include treble damages, nor can DFEH recover a minimum of $4,000 per claimed violation. “Government Code section 12970, not Civil Code section 52, governs the award of damages by the Commission under Government Code section 12948, incorporating the Unruh Act.” Dep’t of Fair Empl. & Housing v. Marion’s Place, FEHC Precedential Dec. No 0601, 2006 WL 1130912, *12 (Cal. FEHC 2006). Therefore, DFEH’s request for an award of up to “three times the actual damages but in no case less than $4,000 per violation” fails as a matter of law and must be dismissed. XI. THE DOE DEFENDANTS SHOULD BE DISMISSED FROM THE CASE
DFEH asserts its claims against LSAC and ten “Doe” defendants. See Complaint ¶ 5.9 Because DFEH has not adequately pled any claims against any Doe defendant, and cannot, as a matter of law, pursue any claim against any individual defendant, the Doe defendants should be dismissed with prejudice from this action.
A. DFEH Has Not Sufficiently Alleged Claims Against Any Individual Defendant
The only specific allegations regarding the Doe defendants are found in paragraphs 5 and 6 of the Complaint. DFEH alleges that it is ignorant of the true names or capacities of the Doe defendants, and that all Doe defendants are agents or employees of their co-defendants. See Complaint ¶¶ 5-6. It does not plead a single fact regarding the alleged actions or inactions of any individual defendant. DFEH’s claims against the Doe defendants therefore fail to satisfy the basic pleading requirements of Fed. R. Civ. P. 8 and should be dismissed. See Dydzak v. George, 2010 U.S. Dist. LEXIS 144336, at *24 n.4 (C.D. Cal. 2010) (dismissing claims against Doe defendants where “Plaintiff has not identified any factual matter as to these Defendants that
9 LSAC is not aware of any other case in which a private party or an administrative agency has attempted to impose liability on individual defendants in connection with requests for disabilitybased accommodations on a standardized admission test. The fact that DFEH is attempting to do so here makes DFEH’s already heavy-handed Complaint even more remarkable.
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allows this Court to draw the reasonable inference that these Defendants are liable for any alleged misconduct.”).
Individual liability under the relevant ADA provisions does not exist in any event. DFEH’s claims under Section 12189 of the ADA (Counts Two and Four) fail because DFEH does not – and cannot – allege that any of the Doe defendants “offers” the LSAT. Section 12189, by its plain terms, applies only to a “person” that offers a standardized examination. See 42 U.S.C. § 12189. In analogous cases arising under the primary liability provision of Title III, which extends liability to any person “who owns, leases (or leases to) or operates a place of public accommodation,” 42 U.S.C. § 12182(a), courts have dismissed claims against individual defendants who are not alleged to own, lease or operate the public accommodation at issue. See, e.g., Emerson v. Thiel College, 296 F.3d 184, 189 (3d Cir. 2002); White v. Creighton Univ., 2006 U.S. Dist. LEXIS 85801, at *8-9 (D. Neb. 2006); Doe v. Division of Youth & Fam. Serv., 148 F. Supp. 2d 462, 500 (D.N.J. 2001); cf. Lonberg v. Sanborn Theatres, Inc., 2001 U.S. App. LEXIS 21065, **8-20 (9th Cir. 2001). As reflected in DFEH’s allegations, no individual “offers” the LSAT; the test is offered by LSAC. See Complaint ¶¶ 4, 17, 50.
DFEH likewise cannot state a claim against the Doe defendants under Counts Three and Five of its Complaint, which are based upon the ADA’s coercion/intimidation provision, 42 U.S.C. § 12203(b). The remedies available for a violation of this provision relative to rights provided by Title III of the ADA are found in 42 U.S.C. § 12188. See 42 U.S.C. § 12203(c). Section 12188 in turn adopts the remedies set forth in Title II of the Civil Rights Act, 42 U.S.C. § 2000a-3(a). This provision authorizes only injunctive relief and, as a result, there is very little case law addressing the question of individual liability under this provision (presumably because injunctive relief is meaningful only if directed at the entity involved in a given case). However, at least one court of appeals has held that 42 U.S.C. § 12203 does not provide for individual
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liability on a retaliation claim asserted under 42 U.S.C. § 12203(a), relative to rights provided under Title I of the ADA, involving employment. See Spiegel v. Schulmann, 604 F.3d 72, 79-80 (2d Cir. 2010); see also Van Hulle v. Pacific Telesis Corp., 124 F. Supp. 2d 642, 645 (N.D. Cal. 2000)(same). To the best of LSAC’s knowledge, no court has ever imposed individual liability under the ADA’s coercion/intimidation provision.
Finally, because no defendant can be held liable for violating an ADA definitional provision (as discussed supra), DFEH cannot assert a viable claim against any of the Doe defendants under Count One of its Complaint.
B. DFEH Cannot Sue Any Individual Defendants Because No Individual Was Identified In The Complaints To The Agency.
DFEH also cannot pursue claims against any individual defendant because no individual was named as a charged party in the administrative complaints filed by the Complainants. Parties who were not named in an administrative complaint cannot later be sued under the FEHA. See Noel v. City of Oroville, 2007 US. Dist. LEXIS 80704, *15 (E.D. Cal. 2007) (“[U]nder California law, failure to list the individual defendants in the administrative complaint precludes a civil action against those individual defendants.”)(citation omitted); Medix Ambulance Serv., Inc. v. Superior Ct., 97 Cal. App. 4th 109, 116 (2002). “This rule stems from the policy that ‘[f]or a claimant to withhold naming of known or reasonably obtainable defendants at the administrative complaint level is neither fair under [FEHA] in its purpose of advancing speedy resolutions of claims nor fair to known, but unnamed individuals, who at a later date are called upon to ‘personally’ account in a civil lawsuit without having been afforded a right to participate at the administrative level.’” Wilson-Combs v. Cal. Dep’t of Consumer Affairs, 555 F. Supp. 2d 1110, 1117 (E.D. Cal. 2008) (dismissing claims against individual defendants for lack of subject matter jurisdiction)(citation omitted).
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The FEHA requires complainants to include in their verified complaint the name of all persons or entities “alleged to have committed the unlawful practice complained of....” Gov’t Code § 12960(b). Consistent with this statutory requirement, the administrative complaints signed by the Complainants required them to name “the person, business establishment, public accommodation or other entity that discriminated against [them].” See Complaint, Exs. 1-2, 4-18. In all of the complaints, the only person or entity identified as the allegedly discriminating party is LSAC. See id. Thus, DFEH cannot pursue claims against any individual Doe defendant on behalf of any Complainant or other purported class member.
CONCLUSION All of DFEH’s claims should be dismissed based upon a finding that DFEH lacks jurisdiction over accommodations on standardized admissions tests. In the alternative, LSAC’s motion to dismiss should be partially granted on the grounds set forth.

Dated: May 17, 2012

Respectfully submitted, FULBRIGHT & JAWORSKI L.L.P.
By /s/ Robert A. Burgoyne Attorneys for Defendant Law School Admission Council, Inc.

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DFEH v. LSAC, NO. CV 12-1830-EMC DEFENDANT’S MOTION TO DISMISS AND SUPPORTING POINTS AND AUTHORITIES

 
 Case3:12-cv-01830-EMC Document25 Filed06/21/12 Page1 of 30

1 NELSON CHAN (#109272) Chief Counsel
2 SUSAN SAYLOR (#154592) Special Projects Counsel
3 DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING
4 39141 Civic Center Drive, Suite 250 Fremont, CA 94538
5 Telephone: (510) 789-1031 Facsimile: (888) 275-5529
6 Susan.Saylor@dfeh.ca.gov

7 Attorneys for Plaintiff, DFEH

8

9

IN THE UNITED STATES DISTRICT COURT

10

FOR THE NORTHERN DISTRICT OF CALIFORNIA

11

12 DEPARTMENT OF FAIR EMPLOYMENT ) Case No. C 12-01830 EMC

AND HOUSING, an agency of the State of

)

13 California,

)

)

14

Plaintiff,) PLAINTIFF’S OPPOSITION TO

) MOTION TO DISMISS

15

vs.

)

)

16 LAW SCHOOL ADMISSION COUNCIL, INC., ) Date: July 13, 2012

a Delaware tax exempt corporation, and DOES ) Time: 1:30 pm

17 ONE through TEN, inclusive,

) Dept: Courtroom 5 - 17th Floor

) Judge: Hon. Edward M. Chen

18

Defendants.)

)

19

)

JOHN DOE, JANE DOE, PETER ROE,

)

20 RAYMOND BANKS, KEVIN COLLINS,

)

RODNEY DECOMO-SCHMITT, ANDREW )

21 redacted , ELIZABETH HENNESSEY- )

SEVERSON, OTILIA IOAN, ALEX JOHNSON, )

22 NICHOLAS JONES, CAROLINE LEE,

)

ANDREW QUAN, STEPHANIE SEMOS,

)

23 GAZELLE TALESHPOUR, KEVIN

)

VIELBAUM, AUSTIN WHITNEY, and all other )

24 similarly situated individuals,

)

)

25

Real Parties in Interest.)

)

26

27

COURT PAPER State of California Std. 113 Rev. 3-95 FE&H Automated

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1

TABLE OF CONTENTS

2 I. INTRODUCTION ....................................................................................................................... 1

3 II. FACTS ......................................................................................................................................... 1

4 III. ARGUMENT ............................................................................................................................... 3

5 A. LEGAL STANDARD............................................................................................................... 3

6 B. THE DFEH HAS JURISDICTION OVER LSAC AS A PUBLIC ACCOMMODATION

7 UNDER CALIFORNIA LAW ......................................................................................................... 3

8 C. THE DFEH MAY PURSUE LITIGATION OF CLAIMS THAT ARE REASONABLY

9 RELATED TO THE ALLEGATIONS IN THE COMPLAINT ...................................................... 7

10 D. THE DFEH PROPERLY ASSERTS A CLAIM THAT LSAC‘S CONSIDERATION OF

11 MITIGATION MEASURES VIOLATES THE ADA (FIRST CAUSE OF ACTION) .................. 9

12

1. By Requiring Applicants to Take Medication Prescribed for their Disability or Explain

13

their Failure to Do So, LSAC Is Violating the ADA, and Not Just an ADA Definition .............. 9

14

2. LSAC Cannot Raise a Factual Issue in its Motion to Dismiss Because the Court Must

15

Accept the Facts of the Complaint as True ................................................................................. 11

16 E. THE DFEH HAS ADEQUATELY ASSERTED A CLAIM THAT LSAC‘S PRACTICE OF

17 FLAGGING VIOLATES THE ADA (SECOND CAUSE OF ACTION) ..................................... 12

18 F. FLAGGING AS UNLAWFUL COERCION OR INTERFERENCE WITH ADA RIGHTS

19 (THIRD CAUSE OF ACTION) ..................................................................................................... 14

20 G. DFEH ADEQUATELY STATES A CLAIM THAT LSAC‘S EXCESSIVE

21 DOCUMENTATION REQUIREMENTS VIOLATE THE ADA (FOURTH CAUSE OF

22 ACTION) ........................................................................................................................................ 15

23 H. THE COMPLAINT SUFFICIENTLY ALLEGES A CLAIM THAT LSAC‘S

24 REQUIREMENT OF EXCESSIVE DOCUMENTATION DISCOURAGES APPLICANTS

25 FROM ENFORCING THEIR RIGHTS (FIFTH CAUSE OF ACTION) ...................................... 18

26

27

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1 I. THE DFEH IS NOT LIMITED TO THE SPECIFIC UNLAWFUL PRACTICES 2 IDENTIFED IN ITS NOTICE OF CLASS ACTION COMPLAINT AND DIRECTOR‘S 3 COMPLAINT ................................................................................................................................. 19 4 J. GOVERNMENT CODE SECTION 12970 DOES NOT BAR THE DFEH FROM 5 RECOVERING UNRUH DAMAGES IN CIVIL LITIGATION .................................................. 20 6 K. DOE DEFENDANTS SHOULD REMAIN IN THE COMPLAINT AT LEAST UNTIL 7 THE TIME OF INITIAL DISCLOSURES .................................................................................... 21 8 IV. CONCLUSION.......................................................................................................................... 22 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

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1

TABLE OF AUTHORITIES

2 FEDERAL CASES

3 Abraham v. MTA Long Island Bus

4

644 F.3d 110 (2d Cir. 2011).................................................................................................... 18

5 Ashcroft v. Iqbal

6

556 U.S. 662 (2009).................................................................................................................. 3

7 Bass v. County of Butte

8

458 F.3d 978 (9th Cir. 2006). ................................................................................................... 6

9 Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc.

10

911 F.2d 242 (9th Cir. 1990) .................................................................................................. 19

11 Doe v. Nat’l Bd. of Med. Exam’r

12

199 F.3d 146 (3rd Cir. 1999) .................................................................................................. 14

13 E.E.O.C. v. Waffle House, Inc.

14

534 U.S. 279 (2002)................................................................................................................ 20

15 Enyart v. Nat’l Conference of Bar Exam’r, Inc.

16

630 F.3d 1153 (9th Cir. 2011) ................................................................................................ 13

17 Johnson v. State of Cal.

18

207 F.3d 650 (9th Cir. 2000) .............................................................................................. 3, 15

19 Lee v. City of Los Angeles

20

250 F.3d 668 (9th. 2001)......................................................................................................... 12

21 Lonberg v. City of Riverside

22

571 F.3d 846 (9th Cir. 2009) .................................................................................................. 18

23 Manhattan Gen. Equip. Co. v. Comm’r

24

297 U.S. 129, 135 (1936)........................................................................................................ 18

25 Manzarek v. St. Paul Fire & Marine Ins. Co.

26

519 F.3d 1025 (9th Cir. 2008) .................................................................................................. 3

27

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Case3:12-cv-01830-EMC Document25 Filed06/21/12 Page5 of 30

1 Rodriguez v. Airborne Express

2

265 F.3d 890 (9th Cir. 2001) .......................................................................................... 6, 8, 20

3 Rohr v. Salt River Project Agric. Improvement and Power Dist.

4

555 F.3d 850 (9th Cir. 2009) .................................................................................................. 11

5 Sanchez v. Standard Brands, Inc.

6

421 F.2d 455 (C.A. Tex. 1970) ................................................................................................. 8

7 Shroyer v. New Cingular Wireless Services, Inc.

8

622 F.3d 1035 (9th Cir. 2010) .................................................................................................. 3

9 Smiley v. Citibank (S. Dakota), N.A.

10

517 U.S. 735 (1996)................................................................................................................ 18

11 Thompson v. Holy Family Hosp.

12

121 F.3d 537 (9th Cir. 1997). ................................................................................................. 10

13 Vasquez v. Los Angeles County

14

487 F.3d 1246 (9th Cir. 2007) ................................................................................................ 15

15 Wyler Summit P’ship v. Turner Broad. Syst.

16

135 F.3d 658 (9th Cir. 1998) ............................................................................................ 11, 12

17 STATE CASES

18 Anderson v. County of Siskiyou

19

No. C 10–01428 SBA, 2010 WL 3619821 (N.D.Cal. Sept. 13, 2010) ..................................... 6

20 Baker v. Children’s Hosp. Med. Cent.

21

209 Cal.App.3d 1057 (1989) .................................................................................................... 8

22 Breimhorst v. Educational Testing Service

23

2000 WL 34510621 (N.D.Cal.) .............................................................................................. 13

24 Burkes v. Poppy Const. Co.

25

57 Cal. 2d 463 (1962). .............................................................................................................. 4

26 Dep’t Fair Empl. & Hous. v. Marion’s Place

27

No. 06-01-P, FEHC Precedential Decs., 2006 WL 1130912 *12 (Feb. 1, 2006) ................... 21

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Case3:12-cv-01830-EMC Document25 Filed06/21/12 Page6 of 30

1 Dep’t Fair Empl. & Hous. v. Univ. of Cal., Berkeley,

2

No. 93-08, FEHC Precedentail Decs. 1992-93, CEB 3 [1993 WL 726830 (Cal. F.E.H.C.)]

3

(Nov. 18, 1993) ......................................................................................................................... 6

4 Dep’t Fair Empl. & Hous. v. American Med. Int’l., Inc.

5

No. 86-13, FEHC Precedential Decs.1986-87, CEB 4 [1986 WL 74384 (Cal. F.E.H.C.)]

6

(Nov. 20, 1986) ....................................................................................................................... 23

7 Ibister v. Boys’ Club of Santa Cruz, Inc.

8

40 Cal. 3d 72 (1985) ................................................................................................................. 4

9 Jones v. Los Angeles Community College Dist.

10

198 Cal.App.3d. 794 (1988) ..................................................................................................... 8

11 Marshall v. Fair Employment Practice Com.

12

21 Cal.App.3d 680 (1971) ........................................................................................................ 8

13 Munson v. Del Taco, Inc.

14

46 Cal. 4th 661 (2009). ............................................................................................................. 6

15 Rotary Club or Duarte v. Board of Directors

16

178 Cal. App. 3d 1035 (1986) .................................................................................................. 4

17 Sabi v. Sterling

18

183 Cal. App. 4th 916 (2010) ................................................................................................... 6

19 Turner v. Ass’n of American Medical Colleges

20

167 Cal. App. 4th 1401 (2008) ................................................................................................. 5

21 FEDERAL STATUTES

22 42 U.S.C. § 12102 (1)(A)-(C) ............................................................................................................. 10

23 42 U.S.C. § 12102 (4)(E)(1)(i)(I)........................................................................................................ 10

24 42 U.S.C. § 12102(4)(E)(i)(I) ............................................................................................................... 9

25 42 U.S.C. § 12182(a). ......................................................................................................................... 10

26 42 U.S.C. § 12189........................................................................................................................ passim

27 42 U.S.C. § 12203............................................................................................................................... 19

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1 42 U.S.C. § 12989............................................................................................................................... 14 2 42 U.S.C. §§ 12101-12213 ................................................................................................................... 1 3 STATE STATUTES 4 CAL. CIV. CODE § 52 ........................................................................................................................... 21 5 CAL. CIV. CODE § 52 .......................................................................................................................... 22 6 CAL. CIV. CODE § 51 ......................................................................................................................... 5, 7 7 CAL. CIV. CODE § 51(b) ........................................................................................................................ 4 8 CAL. CIV. CODE § 51(f) ............................................................................................................. 1, 5, 6, 7 9 CAL. CODE CIV. PROC. § 474 .............................................................................................................. 22 10 CAL. GOV‘T CODE § 12920 ................................................................................................................... 1 11 CAL. GOV‘T CODE § 12930(f)(2) .......................................................................................................... 4 12 CAL. GOV‘T CODE § 12935 ............................................................................................................... 3, 6 13 CAL. GOV‘T CODE § 12948 ............................................................................................................ 1, 4-7 14 CAL. GOV‘T CODE § 12963.7 .............................................................................................................. 21 15 CAL. GOV‘T CODE § 12965(a)........................................................................................................... 5, 8 16 CAL. GOV‘T CODE § 12965(c)(3) ........................................................................................................ 22 17 CAL. GOV‘T CODE §§ 12960-12965...................................................................................................... 5 18 CAL GOV‘T CODE § 12965 .................................................................................................................... 4 19 RULES 20 FED. R. CIV. P. 12(d) ........................................................................................................................... 12 21 FED. R. CIV. P. 12(b)(6)......................................................................................................................... 3 22 FED. R. CIV. P. 15(a) ........................................................................................................................... 23 23 REGULATIONS 24 28 C.F.R. § 36.309 ........................................................................................................................ 17, 18 25 28 C.F.R. § 36.309(b)(1)(i) ........................................................................................................... 12, 13 26 28 C.F.R. § 36.309(b)(1)(iv) ......................................................................................................... 16, 17 27 56 FED. REG. 35544 ............................................................................................................................ 17

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1

Plaintiff, the California Department of Fair Employment and Housing (DFEH or

2 Department), hereby submits its opposition to the Motion to Dismiss filed by Defendant, Law

3 School Admissions Council (LSAC).

4

I.

INTRODUCTION

5

The DFEH is the California state agency responsible for enforcing the state‘s civil rights

6 laws. CAL. GOV‘T CODE § 12920 (West 2011 & Supp. 2012). The DFEH filed this action seeking a

7 level playing field for disabled individuals who take the Law School Admissions Test (LSAT)

8 administered by LSAC. The Department‘s Complaint is based on its investigation showing that

9 LSAC refused to provide testing accommodations to individuals with physical and/or cognitive or

10 psyhological disabilities In addition, LSAC ―flagged‖ the scores of individuals who were provided

11 the accommodation of extra time, informing law schools that the individuals had taken the test under

12 non-standard conditions. LSAC seeks dismissal of the entire DFEH action, maintaining that the

13 DFEH lacks jurisdiction and fails to adequately plead four out of its five claims for relief. LSAC

14 further contends that the DFEH is limited in its ability to claim damages, and is procedurally limited

15 by the administrative complaints that preceded this action.

16

This Court should deny LSAC‘s Motion to Dismiss in its entirety. The DFEH has jurisdiction

17 over violations of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213 (1990),

18 occurring within California because the ADA is incorporated into the Unruh Civil Rights Act (Unruh

19 Act), CAL. CIV. CODE § 51(f) (West 2012). The DFEH is the state agency responsible for enforcing

20 the Unruh Act. CAL. GOV‘T CODE § 12948 (West 2011 & Supp. 2012). The DFEH Complaint

21 contains sufficient factual allegations to allege plausible claims for relief on the First, Second, Third,

22 Fourth, and Fifth Causes of Action. No authority limits the DFEH‘s ability to recover damages or

23 procedurally limits this suit based on the Department‘s administrative investigation.

24

II. FACTS

25

The facts relevant to LSAC‘s Motion to Dismiss include: class members‘ and Real Parties‘

26 experiences in applying for accommodation on the LSAT; and the DFEH investigative procedures of

27 the Real Parties‘ complaints.

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1

LSAC offers the LSAT regularly at various locations in California, along with other services.

2 (Compl. ¶¶ 50-53.) In determining whether an applicant is disabled, LSAC requires applicants to

3 take medication prescribed for their disabilities while being evaluated for accommodations, or

4 explain their refusal to do so. (Compl. ¶ 55.) LSAC has a policy and practice of annotating or

5 ―flagging‖ exam scores that were earned under non-standard time conditions. When reporting these

6 LSAT scores to the law schools, LSAC advises the schools that these examinees‘ scores ―should be

7 interpreted with great sensitivity and flexibility.‖ (Compl. ¶ 56.) LSAC requires candidates

8 requesting an accommodation for a cognitive or psychological impairment to provide

9 psychoeducational/neuropsychological testing and a full diagnostic report, including comprehensive

10 aptitude and achievement testing. (Compl. ¶ 54.) As to the 17 named real parties in interest, the

11 DFEH pleads specific facts showing the amount of documentation submitted. With respect to many

12 of these Real Parties, the DFEH has pled facts that additionally alleged the initial documentation

13 submitted was not satisfactory to LSAC, and further that the applicants were required to compile

14 further documentation before their requests for accommodation could be considered.1

15

The DFEH first received three individual complaints in 2010 alleging that LSAC had denied

16 accommodation to LSAT applicants. (Compl. ¶¶ 19-20.) After some investigation, the DFEH

17 determined that LSAC‘s practices were affecting a wider group or class. On July 22, 2010, the

18 DFEH issued a Notice of Class Action Complaint and Director‘s Complaint. (Compl. ¶ 22, Ex. 3.)

19 The affected group or class is defined as ―all disabled individuals in the State of California who have

20 or will request an accommodation for the Law School Admission Test (LSAT), administered by the

21 LSAC, and who have or will be unlawfully denied such request from January 19, 2009 to the

22 conclusion of the Department‘s investigation of this complaint.‖ (Compl. ¶¶ 21-22, Ex. 3.) The

23

24

25 1 John Doe, Compl. (¶¶ 62-65); Peter Roe, (¶¶ 78-79); Kevin Collins, (¶ 90); Otilia Ioan, (¶¶
26 116-117); Caroline Lee, (¶¶ 137-140); Andrew Quan,( ¶¶ 147-149); Stephen Semos, (¶¶ 154-155);
Gazelle Taleshpour, (¶ 163-164); Austin Whitney, (¶¶ 182-185.) 27

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1 Notice of Class Action Complaint and Director‘s Complaint further informed LSAC that the DFEH

2 viewed the alleged denial of accommodations issue as affecting a wider class and informed LSAC

3 that the DFEH would ―continue the investigation to determine the merits of these allegations.‖

4 (Compl. Ex. 3, ¶ 4 (last sentence).) The DFEH initially filed an accusation in this case before the

5 California Fair Employment and Housing Commission (FEHC or Commission), the administrative

6 adjudication and rulemaking body under the FEHA, CAL. GOV‘T CODE § 12935 (West 2011 & Supp.

7 2012). (Compl. ¶¶ 40-41.) In accordance with practice in California Superior Court, the DFEH

8 named DOE defendants in its Complaint. (Compl. ¶¶ 5-6.)

9

III. ARGUMENT

10

A. LEGAL STANDARD

11

A motion to dismiss is proper where the complaint fails to state a claim on which relief can

12 be granted, either because the claim fails to state a cognizable legal theory, or fails to allege

13 sufficient facts to support a legal theory. FED. R. CIV. P. 12(b)(6); Shroyer v. New Cingular Wireless

14 Services, Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). For purposes of ruling on a Rule 12(b)(6)

15 motion, the Court ―accept[s] factual allegations in the complaint as true and construe[s] the

16 pleadings in the light most favorable to the non-moving party.‖ Manzarek v. St. Paul Fire & Marine

17 Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). ―[T]he rule of liberal construction is particularly

18 important in civil rights cases.‖ Johnson v. State of Calif., 207 F.3d 650, 653 (9th Cir. 2000). ―A

19 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the

20 reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard

21 is not akin to a ‗probability requirement,‘ but it asks for more than a sheer possibility that a

22 defendant has acted unlawfully.‖ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The DFEH has

23 supported each of its claims with sufficient factual allegations to meet the Iqbal plausibility standard.

24

B. THE DFEH HAS JURISDICTION OVER LSAC AS A PUBLIC

ACCOMMODATION UNDER CALIFORNIA LAW

25

26

LSAC‘s suggestion that the DFEH lacks jurisdiction over the administration of the LSAT

27 within the state is erroneous. The FEHA incorporates ADA violations into California law via the

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1 Unruh Act. CAL. GOV‘T CODE § 12948 (West 2011 & Supp. 2012). The DFEH is the state-mandated

2 agency for enforcing Unruh Act access violations. Id.; CAL. GOV‘T CODE § 12965 (West 2011 &

3 Supp. 2012). Therefore, the DFEH has jurisdiction over whether LSAC has denied access to its

4 testing services within the State of California. The Unruh Act entitles ―all persons within the

5 jurisdiction of this state‖ to the ―full and equal accommodations, advantages, facilities, privileges, or

6 services in all business establishments of every kind whatsoever.‖ CAL. CIV. CODE § 51(b) (West

7 2012). The Unruh Act is intended to be liberally construed,2 and the term ―business establishments‖

8 is interpreted ―in the broadest sense reasonably possible.‖ Burkes v. Poppy Const. Co., 57 Cal. 2d

9 463, 468 (1962). Thus, all types of business establishments, including non-profit community services

10 organizations, are covered by the Unruh Act. Rotary Club or Duarte v. Board of Directors, 178 Cal.

11 App. 3d 1035, 1059 (1986); Ibister v. Boys’ Club of Santa Cruz, Inc., 40 Cal. 3d 72, 85 (1985).

12 LSAC has offered no reason why it is not a public accommodation or ―business establishment‖ as

13 defined by the Unruh Act, nor can it present evidence to do so on its motion to dismiss. Accordingly,

14 this Court has jurisdiction over LSAC as a business establishment within the State of California.

15 (Compl. ¶¶ 50-53.)

16

The FEHA authorizes the DFEH to investigate and prosecute claims of discrimination in

17 places of public accommodation. See CAL. GOV‘T CODE § 12930(f)(2) (West 2011 & Supp. 2012)

18 (authorizing the DFEH to ―receive, investigate, and conciliate complaints alleging a violation of‖ the

19 Unruh Act); CAL. GOV‘T CODE § 12948 (West 2011 & Supp. 2012) (incorporating CAL. CIV. CODE §

20 51 (West 2012) into the FEHA); CAL. GOV‘T CODE §§ 12960-12965 (West 2011 & Supp. 2012)

21 (procedures for accepting, investigating, and prosecuting complaints).

22

The FEHA provides that ―[i]t is an unlawful practice under this part for a person to deny or to

23 aid, incite, or conspire in the denial of the rights created by Section 51, 51.5, 51.7, 54, 54.1, or 54.2

24

25

26
27
COURT PAPER State of California Std. 113 Rev. 3-95 FE&H Automated

2 ―Since the Unruh Act is remedial in nature, it is to be given a liberal construction ―with a view to effect its object and to promote justice.‖ Curran v. Mount Diablo Council of the Boy Scouts,147 Cal. App. 3d 712, 727 (1983), quoting Winchell v. English, 62 Cal. App. 3d 125, 128 (1976).
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1 of the Civil Code.‖ CAL. GOV‘T CODE § 12948 (West 2011 & Supp. 2012), italics added. LSAC

2 presents a tortuous argument that the DFEH cannot enforce ADA rights because these rights were

3 not ―created by‖ the Unruh Act. LSAC offers no support for its argument other than the case of

4 Turner v. Ass’n of American Medical Colleges, 167 Cal. App. 4th 1401 (2008) which did not claim

5 any violation based on the ADA‘s incorporation into the Unruh Act. The Turner case held that the

6 Unruh Act does not apply to policies and practices that apply equally to all people, other than the

7 duty to provide reasonable modification by virtue of ADA incorporation. Id. at 1410. Indeed, the

8 plaintiffs in Turner never asserted a claim for violation of CAL. CIV. CODE § 51(f) (West 2012). In

9 fact, Turner emphasized the availability of an Unruh Act violation under § 51(f) in the appropriate

10 case:

11

In the context of this case, Civil Code section 51, subdivision (c) and the cases

construing it can be readily harmonized with section 51, subdivision (f) and the ADA

12

provisions it incorporates. Simply put, in addressing a claim that a facially neutral

testing policy has a disparate impact on persons with learning and reading-related

13

disabilities, accommodations are required to the extent they are required under the

ADA. Turner v. Ass’n of American Medical Colleges, 167 Cal. App. 4th 1401, 1410

14

(2008)

15

16 The ―created by‖ language of CAL. GOV‘T CODE § 12948 (West 2011 & Supp. 2012) does not

17 exclude the ADA rights incorporated in the Unruh Act by CAL. CIV. CODE § 51(f) (West 2012).

18 Instead, the Legislature intended that those rights be incorporated in the FEHA and subject to its

19 enforcement.

20

The FEHA also authorizes the DFEH to issue accusations to prosecute unlawful practices.

21 CAL. GOV‘T CODE § 12965(a) (West 2011 & Supp. 2012). In 1992, the Legislature amended the

22 Unruh Act to state that ―[a] violation of the right of any individual under the Americans with

23 Disabilities Act of 1990 (Public Law 101–336) shall also constitute a violation of this section.‖ CAL.

24 CIV. CODE § 51(f) (West 2012); see also Munson v. Del Taco, Inc., 46 Cal. 4th 661, 668 (2009). The

25 stated purpose of the amendment was to ―conform state anti-discrimination laws with the provisions

26 of the Americans with Disabilities Act.‖ Assem. Off. of Research, Third Reading Analysis, A.B.

27

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1 1077 (Cal.1992 Reg. Sess.) as amended Jan. 29, 1992; see Bass v. County of Butte, 458 F.3d 978,

2 981 (9th Cir. 2006).

3

The California Fair Employment and Housing Commission (FEHC or Commission), the

4 administrative adjudication and rulemaking body that interprets the FEHA, CAL. GOV‘T CODE §

5 12935 (West 2011 & Supp. 2012), has held that the DFEH‘s jurisdiction is not limited to

6 employment and housing matters, but rather includes Unruh violations. Dep’t Fair Empl. & Hous. v.

7 Univ. of Cal. Berkeley, No. 93-08, FEHC Precedentail Decs. 1992-93, CEB 3 [1993 WL 726830

8 (Cal. F.E.H.C.)] (Nov. 18, 1993); see also Rodriguez v. Airborne Express, 265 F.3d 890, 898 (9th

9 Cir. 2001) (―We accord great respect to the Commission‘s interpretation of its authority and will

10 follow it unless it is clearly erroneous.‖). In Dep’t. Fair Empl. & Hous. v. Univ. of California,

11 Berkeley, 1993 WL 726830, at 2-5, a student at the university alleged a violation of the Unruh Act

12 when a professor sexually harassed her. The FEHC rejected the university‘s claim that the DFEH‘s

13 jurisdiction was limited to employment and housing matters. Id. at 9-11. The FEHC held that the

14 California Legislature did not intend to limit the DFEH‘s authority to just employment and housing

15 matters. Id. The FEHC also noted that the legislature has had numerous opportunities to limit the

16 DFEH‘s authority and has not done so. Id. Indeed, in 1999, after incorporating the ADA into the

17 Unruh Act, the Legislature amended CAL. GOV‘T CODE § 12948 (West 2011 & Supp. 2012) of the

18 FEHA. Sabi v. Sterling, 183 Cal. App. 4th 916, 928, n. 6 (2010). Neither at the time of the 1999

19 amendment nor at any time before or after has the California Legislature limited the DFEH‘s

20 authority to investigate and prosecute ADA violations perpetrated by any ―business establishment [ ]

21 of every kind whatsoever.‖

22

LSAC cites Bass v. County of Butte, 458 F.3d 978, 979 (9th Cir. 2006) and Anderson v.

23 County of Siskiyou, No. C 10–01428 SBA, 2010 WL 3619821 (N.D.Cal. Sept. 13, 2010) for the

24 proposition that the DFEH lacks jurisdiction to prosecute its case because the FEHA is an

25 amalgamation of laws related to employment and housing only and ―[s]tandardized admissions tests

26 do no fall within the original subject matter of the FEHA.‖ (Mot. to Dismiss 10:8-14.) Defendant‘s

27 reliance on these cases is misplaced. In Bass, plaintiffs sought to bring an employment

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1 discrimination claim under the Unruh Act, which incorporates the ADA. Bass, supra, 458 F.3d 978,

2 979. The Bass court held that the Unruh Act did not incorporate the employment provisions of the

3 ADA because the legislature did not intend the Unruh Act to reach employment discrimination

4 cases, and to do so would undermine the administrative procedures of the FEHA. Id. at 981-83. In

5 Anderson, plaintiff brought a wrongful death action based on the death of an inmate who had a

6 disability and needed and was denied medical services. Anderson, supra, 2010 WL 3619821, at 1.

7 The Anderson court held that the Unruh Act did not incorporate the ADA as that law applies to

8 prisons and jails because prisons and jails are not business establishments. Id. at 6. These cases

9 both reject an attempt by plaintiffs to incorporate ADA violations without any legislative intent to do

10 so, in contrast with the present case, where the DFEH relies on the express incorporation of ADA

11 violations into the Unruh Act. CAL. CIV. CODE § 51(f) (West 2012). These cases do not support the

12 proposition that the DFEH may only prosecute claims related to employment and housing matters.

13

Without citing to any authority, LSAC further claims that the DFEH has no ―substantive

14 expertise to pursue claims in this area‖ and the U.S. Department of Justice is the sole enforcer of the

15 ADA. (Mot. to Dismiss 11:15-21.) However, the statutory language is clear that the DFEH has

16 jurisdiction to pursue its case. When the California Legislature incorporated the ADA into the

17 Unruh Act under the FEHA, it did not make ―substantive expertise‖ a basis for the DFEH‘s

18 jurisdiction. See generally CAL. GOV‘T CODE §§ 12948, 12930(f)(2), 12965(a) (West 2011 & Supp.

19 2012); CAL. CIV. CODE § 51 (West 2012). Accordingly, the DFEH has jurisdiction to proceed with

20 this prosecution.

21

C. THE DFEH MAY PURSUE LITIGATION OF CLAIMS THAT ARE

REASONABLY RELATED TO THE ALLEGATIONS IN THE COMPLAINT

22

23

LSAC claims that the ADA allegations in the DFEH‘s Complaint are beyond the scope of the

24 underlying agency complaints, and therefore the DFEH has no authority to bring its claims. To the

25 contrary, the claims asserted by the DFEH are ―like or reasonably related to‖ the allegations in the

26 initial charge such that they are properly at issue in this litigation. As the case cited by LSAC

27 explains, the ―like or reasonably related‖ standard ―is met where the allegations in the civil suit are

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1 within the scope of the administrative investigation which can reasonably be expected to grow out of

2 the charge of discrimination.‖ Rodriguez v. Airborne Express, 265 F.3d 890, 897 (9th Cir. 2001).

3 The court explained in Jones v. Los Angeles Community College Dist., 198 Cal.App.3d. 794, 810

4 (1988), in response to a defendant‘s argument that the facts supporting the plaintiff‘s claims of

5 discrimination were not fairly reflected in his DFEH complaint:

6

allegations in a complaint [before the FEPC, the predecessor agency to the DFEH]

serve no purpose other than to get an investigation in motion.‖ (Marshall v. Fair

7

Employment Practice Com. 21 Cal.App.3d 680, 684 (1971). Significantly, if the

DFEH decides to issue an accusation, the accusation ‗shall set forth the nature of the

8

charges ... and shall require the respondent to answer the charges at a hearing.‘ Cal.

Gov‘t. Code § 12965 (a). Thus, it is erroneous to assume, as respondents do, that

9

because precise actions claiming to constitute racial discrimination may not be

specifically mentioned in a DFEH complaint, the Department cannot investigate them

10

and could not issue an accusation based on the results of its investigation.

11 Jones v. Los Angeles Community College Dist., 198 Cal.App.3d. 794, 810; see also Baker v.

12 Children’s Hosp. Med. Ctr., 209 Cal.App.3d 1057, 1063 (1989); Sanchez v. Standard Brands, Inc.

13 421 F.2d 455, 465 (C.A. Tex. 1970) (―the charge of discrimination need not presage with literary

14 exactitude the judicial pleadings which may follow‖).

15

The Department‘s ADA claims are ―like or reasonably related to‖ the denial of

16 accommodation claims articulated in the underlying DFEH complaints. As stated in the Complaint,

17 the DFEH first notified LSAC in 2010 that two individuals had alleged that defendant had denied

18 them accommodation on the LSAT. (Compl., ¶ 19, Ex. 1; ¶ 20, Ex. 2.) After some investigation, the

19 DFEH determined that LSAC‘s practices were affecting a wider group or class. On July 22, 2010,

20 the DFEH issued a Notice of Class Action Complaint and Director‘s Complaint. (Compl., ¶ 22, Ex.

21 3.) While it is true that none of these complaints specifically referenced the ADA, each complaint

22 did cite the Unruh Civil Rights Act and its incorporation into the FEHA. The Notice of Class Action

23 Complaint and Director‘s Complaint further informed LSAC that the DFEH viewed the alleged

24 denial of accommodations issue as affecting a wider class and informed LSAC that the DFEH ―will

25 continue the investigation to determine the merits of these allegations.‖ (Compl., Ex. 3, ¶ 4 (last

26 sentence).) In the course of its further investigation, the DFEH learned of LSAC‘s practices of

27 flagging, burdensome documentation demands and the other ADA violations alleged in its

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1 complaint. Because LSAC was properly notified of the charges that formed the basis for the DFEH

2 investigation, it is proper for the DFEH to pursue these claims in this lawsuit. LSAC‘s request to

3 dismiss on this basis should be denied.

4

D. THE DFEH PROPERLY ASSERTS A CLAIM THAT LSAC’S

CONSIDERATION OF MITIGATION MEASURES VIOLATES THE ADA

5

(FIRST CAUSE OF ACTION)

6

LSAC contends that the DFEH cannot assert its claim that requiring applicants to disclose

7 mitigation measures violates the ADA; LSAC argues that no private right of action exists to pursue

8 such a violation. LSAC further contends that 42 U.S.C. § 12189 represents the exclusive remedy for

9 alleged violations of the ADA in the testing context. However, the law is not so limited.

10

1. By Requiring Applicants to Take Medication Prescribed for their

Disability or Explain their Failure to Do So, LSAC Is Violating the ADA,

11

and Not Just an ADA Definition

12

LSAC‘s Motion to Dismiss the first cause of action should be denied because LSAC violates

13 the ADA, and not just an ADA definition, by requiring applicants to either take medication

14 prescribed for their disability or explain their failure to do so. LSAC argues that 42 U.S.C. §

15 12102(4)(E)(i)(I) is merely a definitional rule of construction and does not warrant a private right of

16 action. (Mot. to Dismiss 13:11-14:15.) However, LSAC construes the complaint too narrowly. The

17 DFEH‘s Complaint does not plead that LSAC simply violates a definition, but rather that it violates

18 the rights of class members under the ADA. (Compl., ¶¶ 188, 189.)

19

Title III of the ADA, relevant here, states that ―no individual shall be discriminated on the

20 basis of disability in the full and equal enjoyment of goods, services, facilities, advantages, or

21 accommodations of any place of public accommodation.‖ 42 U.S.C. § 12182(a). A plaintiff must

22 prove that he or she has a disability within the meaning of the ADA, meaning a physical or mental

23 impairment that substantially limits one or more major life activities, a record of such an

24 impairment, or being regarded as having such an impairment. 42 U.S.C. § 12102 (1)(A)-(C); see

25 Thompson v. Holy Family Hosp., 121 F.3d 537, 539 (9th Cir. 1997). Section 12102 also states that

26 ―any determination of whether an impairment substantially limits a major life activity shall be made

27 without regard to the ameliorative effects of mitigating measures such as medication.‖ 42 U.S.C. §

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1 12102 (4)(E)(1)(i)(I). Thus, any consideration of mitigation measures here constitutes a violation of

2 the ADA.

3

The ADA was amended in 2008 with the express purpose of broadening the definition of

4 disability which, in the opinion of Congress, had been interpreted too narrowly by the courts.3 See

5 Rohr v. Salt River Project Agric. Improvement and Power Dist., 555 F.3d 850, 862 (9th Cir. 2009)

6 (Congress intended that impairments are to be evaluated in their unmitigated state bolstering the

7 conclusion that insulin-dependent plaintiff had raised a genuine issue as to whether he was disabled

8 under the ADA). LSAC, however, still relies on the pre-amendment definition of disability, which

9

10

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
COURT PAPER State of California Std. 113 Rev. 3-95 FE&H Automated

3 ―(b) Purposes.--The purposes of this Act [citations] are— (1) to carry out the ADA‘s objectives of providing ‗a clear and comprehensive national mandate for the elimination of discrimination‘ and ‗clear, strong, consistent, enforceable standards addressing discrimination‘ by reinstating a broad scope of protection to be available under the ADA; (2) to reject the requirement enunciated by the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures; (3) to reject the Supreme Court's reasoning in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999)with regard to coverage under the third prong of the definition of disability and to reinstate the reasoning of the Supreme Court in School Board of Nassau County v. Arline, 480 U.S. 273 (1987) which set forth a broad view of the third prong of the definition of handicap under the Rehabilitation Act of 1973; (4) to reject the standards enunciated by the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), that the terms ‗substantially‘ and ‗major‘ in the definition of disability under the ADA ‗need to be interpreted strictly to create a demanding standard for qualifying as disabled,‘ and that to be substantially limited in performing a major life activity under the ADA ‗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‘; (5) to convey congressional intent that the standard created by the Supreme Court in the case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) for ‗substantially limits‖, and applied by lower courts in numerous decisions, has created an inappropriately high level of limitation necessary to obtain coverage under the ADA, to convey that it is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual‘s impairment is a disability under the ADA should not demand extensive analysis.‖ 42 U.S.C.A. §12101 (Findings and Purposes) Pub.L. 110-325, § 2, Sept. 25, 2008, 122 Stat. 3553.
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1 allowed consideration of mitigation measures, to make a determination as to whether an applicant

2 deserves an accommodation when taking the LSAT.

3

The Complaint alleges that in determining whether an applicant is disabled, LSAC requires

4 applicants to take medication prescribed for their disabilities while being evaluated for

5 accommodations, or explain their refusal to do so. (Complaint, ¶ 55.) The DFEH‘s first cause of

6 action alleges that, by its consideration of mitigation measures, LSAC discriminates against class

7 members by unlawfully restricting access to accommodations to which they might otherwise be

8 entitled. This Court must take these factual allegations as true and draw all reasonable inferences in

9 favor of the DFEH. Wyler Summit P’ship v. Turner Broad. Syst., 135 F.3d 658, 663 (9th Cir. 1998).

10 This Court could reasonably infer that because LSAC requires applicants to take their prescribed

11 medication, it violates § 12102 of the ADA.

12

2. LSAC Cannot Raise a Factual Issue in its Motion to Dismiss Because the

Court Must Accept the Facts of the Complaint as True

13

LSAC alleges that the first DFEH claim is based on an ―incorrect factual premise,‖ and that

14

LSAC does not actually require applicants to take their prescribed medication while being evaluated.

15

Mot. to Dismiss 14:16-18. According to LSAC, it simply ―suggests‖ that evaluators administer the

16

evaluation while the applicant is on his or her prescribed medication. (Mot. to Dismiss. 14:18-15:8.)

17

This Court must take all well-pleaded factual allegations as true and draw all reasonable inferences

18

in favor of the plaintiff. Wyler Summit P’ship v. Turner Broad. Syst., 135 F.3d 658, 663 (9th Cir.

19

1998). DFEH has supported its first cause of action with well-pleaded factual allegations that LSAC

20

requires applicants to take their prescribed medication while being evaluated for accommodations, or

21

explain their failure to do so. (Compl., ¶ 55.) This Court should decline LSAC‘s offer to delve into

22

the evidentiary facts presented in Defendant‘s motion.

23

LSAC further offers for the Court‘s consideration its ―Guidelines for Cognitive Impairments‖

24

and ―Evaluator Form‖ in its Motion to Dismiss, claiming that the questions in these documents are

25

entirely proper under the ADA. However, these documents are not properly before the Court and

26

therefore should not merit consideration. FED. R. CIV. P. 12(d); Lee v. City of Los Angeles, 250 F.3d

27

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1 668, 688 (9th. 2001). Because the DFEH Complaint contains sufficient factual allegations showing a

2 plausible claim for relief on its first cause of action, LSAC‘s Motion to Dismiss this claim should be

3 denied.

4

E. THE DFEH HAS ADEQUATELY ASSERTED A CLAIM THAT LSAC’S

PRACTICE OF FLAGGING VIOLATES THE ADA (SECOND CAUSE OF

5

ACTION)

6

DFEH‘s Complaint adequately pleads a claim that LSAC‘s policy of annotating, or

7 ―flagging‖ test scores taken under extended time conditions violates the ADA (Second Cause of

8 Action). LSAC asserts that: ―Section 12189 of the ADA and DOJ‘s implementing regulation do not

9 prohibit the psychometrically sound practice of annotating scores.‖ (Mot. to Dismiss 15:21-22.)

10 However, this is a factual question that is subject to dispute and inappropriate for a motion to

11 dismiss.

12

The DFEH‘s second cause of action alleges that LSAC is breaching its legal duty to ensure

13 that the LSAT accurately reflects the class members‘ individual aptitude or achievement levels, as

14 opposed to measuring their disability. (Compl., ¶ 195); 42 U.S.C. § 12189; 28 C.F.R. §

15 36.309(b)(1)(i). The Complaint alleges that LSAC has a policy whereby examinees who complete

16 the LSAT under a disability-related accommodation involving extra time receive a notation on their

17 score report indicating that their exam scores were earned under non-standard time conditions. When

18 reporting these LSAT scores, LSAC advises the law schools that these examinees‘ scores ―should be

19 interpreted with great sensitivity and flexibility.‖ (Compl. ¶ 56.) By annotating the test scores of

20 applicants who take the test with the accommodation of extended time, the Complaint alleges LSAC

21 is communicating to law schools that it does not know whether or not the applicants‘ exam results

22 accurately reflect aptitude or achievement. (Compl., ¶ 195.)

23

In Enyart v. Nat’l Conference of Bar Exam’r., Inc., 630 F.3d 1153 (9th Cir. 2011), the court

24 upheld the district court‘s decision to grant a preliminary injunction ordering the National

25 Conference of Bar Examiners (NCBE) to permit the examinee to use screen-reading and screen-

26 magnification software. Defendant NCBE had argued that the ―best ensure‖ regulation (28 C.F.R. §

27 36.309(b)(1)(i)) was invalid because the ADA required only reasonable accommodation. Enyart, 630

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1 F.3d at 1162. The court rejected this argument, finding that the language of 42 U.S.C. § 12189,

2 requiring that ―entities offering licensing exams ‗shall offer such examinations … in a place and

3 manner accessible to persons with disabilities‖ was different from a reasonable accommodation

4 standard. Enyart, supra, 630 F.3d at 1163.

5

Notably, Congress did not incorporate 45 C.F.R. 84.12‘s ‗reasonable accommodation‘

standard into §12989. Instead, § 12989 states that entities offering licensing exams

6

‗shall offer such examinations … in a place and manner accessible to persons with

disabilities or offer alternative arrangements for such individuals. 42 U.S.C. § 12189.

7

One reasonable reading of § 12189‘s requirement that entities make licensing exams

‗accessible‘ is that such entities must provide disabled people with an equal

8

opportunity to demonstrate their knowledge or abilities to the same degree as

nondisabled people taking the exam—in other words, the entities must administer the

9

exam ‗so as to best ensure‘ that exam results accurately reflect aptitude rather than

disabilities.

10

Id., 630 F.3d at 1162 (emphasis in original). It is a question of fact whether LSAC has met the ―best

11

ensure‖ standard with respect to those applicants requiring extra time to accommodate their

12

disability.

13

Likewise in Breimhorst v. Educational Testing Service, 2000 WL 34510621 (N.D.Cal.),

14

marked ―DO NOT PUBLISH OR INCLUDE IN DATABASE‖ but referenced here pursuant to

15

Local Rules 3-4e and 7-14, the court found that plaintiff made a claim that flagging violated

16

Educational Testing Services‘ (ETS) duty to make its examination accessible under 42 U.S.C. §

17

12989:

18

Section § 36.309(b)(1) imposes a duty on test providers to best ensure that their tests

19

are selected and administered to equally measure the abilities of disabled and

nondisabled test takers. If the test providers meet this burden, then there would be no

20

reason to flag the test results of disabled test takers who receive accommodations.

21 Breimhorst, supra, 2000 WL 34510621 at p. 5.

22

The DFEH‘s second cause of action contains sufficient factual allegations to show a

23 plausible claim that LSAC breached its duty to best ensure that the LSAT accurately reflects the

24 class members‘ individual‘s aptitude or achievement level, as opposed to measuring the disability.

25 The question of whether or not the ADA prohibits the practice of annotating tests scores taken under

26 extended time accommodation cannot be resolved by a motion to dismiss. It is true that in the case of

27 Doe v. National Board of Medical Examers, 199 F.3d 146 (3rd Cir. 1999), the court placed the

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1 burden of proof on the test-taker, rather than the testing entity, requiring the plaintiff to show that

2 ―his scores are comparable to non-accommodated scores, and thus that, by flagging, the [testing

3 company] has imposed an inequality on him by treating the same thing differently.‖ Id., at P. 156.

4 However, there is reason to believe, based on the analysis in Enyart, that in the Ninth Circuit, the

5 burden is on the testing company to ensure that all applicants are treated fairly regardless of their

6 disability. Even Doe v. National Board of Medical Examiners recognized that plaintiff had standing

7 on the basis that the flagging of his test score cause him harm: ―We are persuaded that this injury –

8 being identified as a disabled person against his will – is enough to establish that Doe has suffered a

9 concrete harm as a result of the NBME‘s policy of flagging accommodated scores.‖ Doe v. Nat’l Bd.

10 of Med. Exam’r, supra, 199 F.3d at 153. The DFEH has adequately pled its second cause of action

11 for flagging, and the motion to dismiss this claim should be denied.

12

F. FLAGGING AS UNLAWFUL COERCION OR INTERFERENCE WITH ADA

RIGHTS (THIRD CAUSE OF ACTION)

13

14

LSAC attacks the DFEH‘s Third Cause of Action, which alleges that LSAC‘s policy of

15 annotating tests scores administered under extended time conditions discourages applicants from

16 seeking such an accommodation, and punishes those who receive it, in violation of the FEHA, Unruh

17 Act, and ADA. (Comp. ¶ 201.) The question of whether LSAC‘s practice of flagging violates the law

18 is a factual matter that should not be resolved by a motion to dismiss. Johnson v. State of Cal., 207

19 F.3d 650, 653 (9th Cir. 2000). The DFEH has adequately pled a plausible claim, which should

20 defeat Defendant‘s motion.

21

LSAC argues first that because the practice of flagging is longstanding in the industry, it is

22 not coercive. The DFEH intends to show, at a later date, that LSAC is one of the few testing

23 agencies that continues to flag its test scores, but such an evidentiary presentation in inappropriate in

24 this context. The Court must accept the facts alleged in the Complaint as true. Vasquez v. Los

25 Angeles County, 487 F.3d 1246, 1249 (9th Cir. 2007). LSAC next contends that the DFEH has pled

26 its claim in a conclusory fashion. The DFEH alleges that LSAC‘s policy of annotating tests scores

27 administered under extended time conditions discourages applicants from seeking such an

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1 accommodation, and punishes those who receive it. (Compl., ¶ 201.) The Court has been informed

2 that three of the real parties are sufficiently concerned about retaining their anonymity that they have

3 requested to participate in this action using pseudonyms. (Compl. ¶ 3.) From this request for

4 anonymity, the Court can reasonably infer that applicants have a privacy interest in the details of

5 their disability and need for accommodation that would act as a deterrent to asserting their right to

6 testing accommodations in light of LSAC‘s flagging policy.

7

Accepting those allegations as true for the purposes of this motion, the Court could also

8 reasonably infer that LSAC‘s policy of flagging extended time scores discourages applicants from

9 asserting their right to accommodation because if the accommodation of extra time is granted, these

10 applicants would be involuntarily identified to the law schools as having a disability that required

11 accommodation. In the highly competitive law school admissions process, it would be natural to

12 assume that any indication of difference would negatively affect one‘s chances. In Breimhorst v. Ed.

13 Testing Serv., the court found plaintiffs stated a claim for unlawful intimidation and punishment

14 under very similar facts. Breimhorst v. Ed. Testing Serv., supra, at 6. Because the DFEH has asserted

15 a plausible claim that these applicants are deterred by flagging, LSAC‘s Motion to Dismiss on this

16 basis should be denied.

17

G. DFEH ADEQUATELY STATES A CLAIM THAT LSAC’S EXCESSIVE

DOCUMENTATION REQUIREMENTS VIOLATE THE ADA (FOURTH

18

CAUSE OF ACTION)

19

LSAC contends that the DFEH fails to state a claim because: ―There is nothing in ADA §

20 12989 that imposes any limitations regarding the documentation that may be requested in order to

21 determine whether an individual has a covered disability and, if so, what testing accommodations

22 might be needed.‖ (Mot. to Dismiss., 17:28-18:3.) LSAC‘s assertion that the ADA imposes no

23 limitation on documentation is erroneous. Even without considering the regulation, LSAC is

24 required by 42 U.S.C. § 12189 to offer its examinations ―in a place and manner accessible to persons

25 with disabilities.‖ The DFEH Complaint contains sufficient allegations to state a claim that LSAC

26 breached its duty to make the LSAT accessible to people with disabilities by requiring excessive

27 amounts of documentation of each real party in interest. (Compl. ¶ 207.) As part of this duty to make

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1 an examination accessible, the regulation requires that any documentation requested be ―reasonable

2 and limited to the need for the modification, accommodation, or auxiliary aid or service requested.‖

3 (Compl. ¶ 206), citing 42 U.S.C. § 12189 and 28 C.F.R. § 36.309(b)(1)(iv).

4

The DFEH Complaint alleges that LSAC requires candidates requesting an accommodation

5 for a so-called cognitive or psychological impairment to provide psychoeducational/

6 neuropsychological testing and a full diagnostic report, including comprehensive aptitude and

7 achievement testing. (Compl. ¶ 54.) The DFEH has further alleged that LSAC breached its duty to

8 make the LSAT accessible to people with disabilities by requiring excessive amounts of

9 documentation. (Compl. ¶ 207.) In its recital of the facts as to each of the seventeen named real

10 parties in interest, the DFEH pleads specific facts showing the amount of documentation submitted.4

11 With respect to many of these real parties, the DFEH has additionally alleged that the initial

12 documentation submitted by the real party was not satisfactory to LSAC and that the applicants were

13 required to compile further documentation before their requests for accommodation could be

14 considered.5 From these allegations, the Court could reasonably infer that LSAC‘s documentation

15 requirements are so excessive as to deny access to qualified applicants. On that basis, LSAC‘s

16 motion to dismiss this cause of action should be denied.

17

LSAC‘s assertion that 28 C.F.R. § 36.309(b)(1)(iv) was ―not in effect when it processed

18 twelve of the Complainants‘ requests for accommodations‖ has no substance. (Mot. to Dismiss,

19 18:8-11.) Even before 28 C.F.R. § 36.309 was implemented, the United States Department of Justice

20 (DOJ) had advised that unreasonable or unlimited requests for documentation would be considered a

21

22

23

4 John Doe, (Compl. ¶ 61); Jane Doe, (¶ 70); Peter Roe, (¶ 77); Raymond Banks, (¶ 84);

Kevin Collins, (¶ 89); Rodney Decomo-Schmitt, (¶ 95); Andrew redacted , (¶ 102); Elizabeth

24 Hennessey-Severson, (¶ 108); Otilia Ioan, (¶ 115); Alex Johnson, (¶ 122); Nicholas Jones, (¶ 129);

Caroline Lee, (¶ 136); Andrew Quan, (¶ 146); Stephen Semos, (¶ 153); Gazelle Taleshpour, (¶ 162);

25 Kevin Vielbaum, (¶ 173); Austin Whitney, (¶ 178, 181.)

26

5 John Doe, (Compl. ¶¶ 62-65); Peter Roe, (¶¶ 78-79); Kevin Collins, (¶ 90); Otilia Ioan, (¶¶ 116-117); Caroline Lee, (¶¶ 137-140); Andrew Quan, (¶¶ 147-149); Stephen Semos, (¶¶ 154-155);

27 Gazelle Taleshpour, (¶¶ 163-164); Austin Whitney, (¶¶ 182-185.)

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1 violation of 42 U.S.C. § 12189. In the Federal Register, the DOJ notified the public that ―requests for

2 documentation must be reasonable and must be limited to the need for the modification or aid

3 requested‖ when it first implemented 28 C.F.R. § 36.309. 28 C.F.R. Part 36, App. B, at 603 (1992);

4 56 FED. REG. 35544, 35573 (July 26, 1991). The DOJ added 28 C.F.R. § 36.309(b)(1)(iv) to clarify

5 this earlier guidance because ―[t]hrough its enforcement efforts, the Department has discovered that

6 the requests made by testing entities for documentation regarding the existence of an individual‘s

7 disability and her or his need for a modification or an auxiliary aid or service are often inappropriate

8 or burdensome.‖ 73 FED. REG. 34508, 34539 (June 17, 2008). Thus, 28 C.F.R. § 36.309(b)(1)(iv) did

9 not create additional burdens and merely clarified what was already required under the statute.

10

Because 28 C.F.R. § 36.309(b)(1)(iv) did not alter existing rights or obligations and merely

11 clarified what those existing rights and obligations had always been, it can be applied retroactively.

12 See Manhattan Gen. Equip. Co. v. Comm’r, 297 U.S. 129, 135 (1936) (explaining that agency rule

13 interpreting a statute ―is no more retroactive in its operation than a judicial determination construing

14 and applying a statute to a case in hand‖); see also Smiley v. Citibank (S. Dakota), N.A., 517 U.S.

15 735, 744 n. 3 (1996) (stating where ―a court is addressing transactions that occurred at a time when

16 there was no clear agency guidance, it would be absurd to ignore the agency‘s current authoritative

17 pronouncement of what the statute means.‖). The regulation found at 28 C.F.R. § 36.309(b)(1)(iv)

18 should be enforced retroactively because it clarified what existing rights and obligations had always

19 been.

20

Like LSAC‘s claim that the ADA cannot be violated when an erroneous definition of

21 disability is applied (First Cause of Action), LSAC argues here that no private right of action exists

22 for a violation of the regulation‘s prohibition on excessive documentation. (Mot. to Dismiss 18:12-

23 22.) As before, LSAC‘s argument fails because what the DFEH alleges is that, by making

24 unreasonable documentation demands, LSAC makes its examination inaccessible to people with

25 disabilities in violation of the ADA. (Compl. ¶ 206); 42 U.S.C. § 12189. The regulation merely helps

26 explain why the underlying statute has been violated.

27

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1

This litigation is distinguishable from Lonberg v. City of Riverside, 571 F.3d 846 (9th Cir.

2 2009), cited by LSAC, where the Ninth Circuit held that a regulation promulgated under the ADA

3 was not privately enforceable. The regulation in Lonberg required public entities to create a

4 transition plan to meet the ADA‘s accessibility requirements when the statutory text of the ADA

5 prohibited discrimination on the basis of disability. Compliance with the regulation ―d[id] not

6 directly remedy a denial of the statutory right‖ nor did noncompliance with the regulation violate the

7 statutory right. Id. at 852. In Abraham v. MTA Long Island Bus, 644 F.3d 110 (2d Cir. 2011), the

8 Second Circuit held that a regulation which created an ―ongoing requirement‖ for participating

9 entities could not be enforced in private right of action when the statute only required an initial and

10 annual plan update. In contrast, the regulation in this case, 28 C.F.R. § 36.309(b)(1)(iv), consistent

11 with 42 U.S.C. § 12189, enumerates specific ways that testing entities are prohibited from

12 discriminating on the basis of disability. It does not place additional burdens or obligations on testing

13 entities; it is therefore applicable and enforceable. Because the DFEH has competently alleged facts

14 to support its claim that excessive documentation makes the LSAT inaccessible to the real parties in

15 interest, LSAC‘s motion to dismiss this claim should be denied.

16 //

17

H. THE COMPLAINT SUFFICIENTLY ALLEGES A CLAIM THAT LSAC’S

REQUIREMENT OF EXCESSIVE DOCUMENTATION DISCOURAGES

18

APPLICANTS FROM ENFORCING THEIR RIGHTS (FIFTH CAUSE OF

ACTION)

19

20

LSAC requests to dismiss the DFEH‘s Fifth Cause of Action, which alleges that

21 LSAC‘s policies and patterns of requiring unreasonable types and excessive amounts of

22 documentation unlawfully coerces or interferes with the real parties‘ right to accommodation, in

23 violation of 42 U.S.C. § 12203. (Compl. ¶ 213.) LSAC wrongly asserts that ―[t]he fact that LSAC

24 requires examinees to submit documentation in support of an accommodation request‖ or

25 ―disagreement‖ on whether any given real party‘s documentation warranted accommodations under

26 42 U.S.C. § 12189 cannot be a violation of 42 U.S.C. § 12203(b). (Mot. to Dismiss 19:4-7, 19:22-

27 20:1.) Whether the requests for documentations are so excessive as to deter or interfere with an

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1 applicant‘s right to accommodation is a question of fact to be determined by the trial court and

2 should not be determined through a motion to dismiss. See Cook, Perkiss & Liehe, Inc. v. N.

3 California Collection Serv. Inc., 911 F.2d 242, 245 (9th Cir. 1990)

4

LSAC also wrongly asserts that its conduct is permissible under the Settlement Agreement

5 Between United States of America and National Board of Medical Examiners.6 The Settlement

6 Agreement clearly states that the request for documentation should be ―reasonable‖ and ―limited‖ to

7 the existence of the disability. Settlement Agreement Between United States of America and

8 National Board of Medical Examiners at ¶ 13. Moreover, neither LSAC nor the DFEH is a party to

9 the Settlement Agreement, so it has no binding effect in the instant case. E.E.O.C. v. Waffle House,

10 Inc., 534 U.S. 279, 294 (2002) (―It goes without saying that a contract cannot bind a nonparty‖).

11 LSAC‘s motion to dismiss the DFEH‘s Fifth Cause of Action should be denied, because a plausible

12 claim for unlawful coercion has been alleged.

13

I. THE DFEH IS NOT LIMITED TO THE SPECIFIC UNLAWFUL

PRACTICES IDENTIFED IN ITS NOTICE OF CLASS ACTION

14

COMPLAINT AND DIRECTOR’S COMPLAINT

15

Like its earlier argument that the DFEH must be limited to pursuing only those specific

16 practices identified in the underlying administrative charges, LSAC urges this Court to narrow the

17 DFEH‘s class action to include only those purportedly unlawful actions identified in its Notice of

18 Class Action Complaint and Director‘s Complaint (Notice of Class Action Complaint). (Mot. to

19 Dismiss 20:17-20.) The DFEH‘s Complaint describes this Notice and attaches a copy as Exhibit 3;

20 the affected group or class is defined as ―all disabled individuals in the State of California who have

21 or will request a reasonable accommodation for the LSAT, administered by the LSAC, and who

22 have or will be unlawfully denied such request from January 19, 2009 to the conclusion of the

23 Department‘s investigation of this complaint.‖ (Compl. ¶ 22, Ex. 3.)

24

25

26

27
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6 LSAC has not requested that this Court take judicial notice of the Settlement Agreement.
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1

Defendant claims DFEH must narrow its proposed class so that it is identical to the class

2 defined in the Notice of Class Action Complaint. (Mot. to Dismiss, 21:6-8). As was argued earlier in

3 this Opposition Brief (pp. 7-8), the claims asserted by the DFEH in its Complaint are ―like or

4 reasonably related to‖ the allegations in the Notice of Class Action Complaint such that they are

5 properly in issue in this litigation. The ―like or reasonably related‖ standard ―is met where the

6 allegations in the civil suit are within the scope of the administrative investigation which can

7 reasonably be expected to grow out of the charge of discrimination.‖ Rodriguez v. Airborne Express,

8 265 F.3d 890, 897 (9th Cir. 2001). DFEH‘s proposed class does not have to be narrowed.

9

DFEH‘s definition of the class in its Notice of Class Action Complaint provided sufficient

10 notice to LSAC of the DFEH‘s areas of inquiry and potential claims. LSAC concedes that the DFEH

11 was required to hold a conciliation in this case. See CAL. GOV‘T CODE § 12963.7 (West 2011 &

12 Supp. 2012). LSAC does not deny the DFEH properly engaged in conference, conciliation, and

13 persuasion with LSAC or that LSAC did not receive notice of the class action that the Department

14 intended to pursue at the conciliation. LSAC essentially admits to receiving appropriate notice of the

15 class action claims during conciliation. The DFEH‘s right to pursue class claims is not limited by the

16 specific allegations made in the Notice of Class Action Complaint. Rather, the intent of the notice is

17 to generally indicate that a class investigation is anticipated. LSAC‘s motion to dismiss the class

18 claims on this basis should be denied.

19

J. GOVERNMENT CODE SECTION 12970 DOES NOT BAR THE DFEH FROM

RECOVERING UNRUH DAMAGES IN CIVIL LITIGATION

20

LSAC erroneously claims that the court cannot award treble damages because the FEHC

21

cannot do so. (Mot. to Dismiss 21:16-22:8.) Although the FEHC does not have the authority to

22

award treble damages under the Unruh Civil Rights Act, a Court may do so. CAL. CIV. CODE § 52

23

(West 2012).

24

The DFEH initially filed an accusation in this case before the FEHC. (Compl. ¶¶ 40-41.)

25

Thereafter, LSAC opted to have this matter heard in civil court. (Id. at ¶ 42.) Because LSAC

26

transferred the litigation to civil court under California Government Code section 12965(c)(3) (West

27

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1 2011 & Supp. 2012), LSAC is subject to this Court‘s broad authority to award treble damages under

2 the Unruh Act. LSAC cannot have it both ways by removing this case to civil court and then

3 claiming that the court‘s award authority is similar to that of the FEHC.

4

LSAC does not provide any legal authority for its novel proposition that this Court‘s

5 remedial authority is the same as that of the FEHC. Indeed, the only authority Defendant cited

6 undermines its claims that the DFEH is not entitled to treble damages. Defendant specifically

7 contends that ―Government Code section 12970, not Civil Code section 52, governs the award of

8 damages by the Commission under Government Code section 12948, incorporating the Unruh Act.‖

9 Dep’t Fair Empl. & Hous. v. Marion’s Place, No. 06-01-P, FEHC Precedential Decs.,2006 WL

10 1130912 *12 (Feb. 1, 2006) (Marion’s Place) (emphasis added); see also Mot. to Dismiss 22:2-6.

11 While Marion’s Place limits the FEHC‘s remedial authority, it does not limit this Court‘s authority.

12 To the contrary, the FEHA empowers courts, unlike the FEHC, with broad remedial powers. Indeed,

13 CAL. GOV‘T CODE § 12965(c)(3) (West 2011 & Supp. 2012) states that the ―court may grant relief in

14 any action filed pursuant to this subdivision any relief a court is empowered to grant in a civil action

15 brought pursuant to subdivision (b). . . .‖ CAL. GOV‘T CODE 12965(c) (West 2011 & Supp. 2012)

16 refers to actions filed by the DFEH before the FEHC that are later transferred to civil court by

17 defendants. CAL. GOV‘T CODE 12965(b) (West 2011 & Supp. 2012) refers to civil actions brought

18 by aggrieved persons in which the DFEH does not issue an accusation. Thus, because courts may

19 award aggrieved persons treble damages in their civil actions under CAL. CIV. CODE § 52 (West

20 2012) for violations of the Unruh Act, courts may similarly award treble damages in civil actions

21 brought by the DFEH for violations of the Unruh Act.

22

Accordingly, LSAC‘s Motion to Dismiss the DFEH‘s prayer for treble damages should be

23 denied.

24

K. DOE DEFENDANTS SHOULD REMAIN IN THE COMPLAINT AT LEAST

UNTIL THE TIME OF INITIAL DISCLOSURES

25

LSAC‘s final argument is that the DFEH‘s allegations against the DOE defendants should be

26

dismissed with prejudice because: (1) no specific facts are alleged to support liability against the

27

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1 DOES; (2) no individual ADA liability exists; and, (3) the DFEH failed to identify any DOE

2 defendant in its administrative complaints. The DFEH requests this Court‘s permission to retain its

3 DOE allegations at least through the date of initial disclosures, which by the DFEH‘s calculation,

4 would be November 16, 2012.

5

DOE defendants are primarily a creation of state court, where the DFEH filed its initial

6 complaint. CAL. CODE CIV. PROC. § 474 (West 2012). ―When the plaintiff is ignorant of the name of

7 a defendant, he must state that fact in the complaint … and such defendant may be designated in any

8 pleading or proceeding by any name, and when his true name is discovered, the pleading or

9 proceeding must be amended accordingly.‖ Id. In accordance with state court practice, the DFEH

10 named DOE defendants in its Complaint. (Compl. ¶¶ 5-6.)

11

The DFEH may find, during the initial disclosures, that other entity defendants are

12 responsible for some or all of the alleged ADA violations. Some precedent exists that entities not

13 named in the initial administrative complaints may be later named through a DOE substitution. In

14 Department of Fair Employment and Housing v. American Medical International, Inc., No. 86-13,

15 FEHC Precedential Decs.1986-87, CEB 4 [1986 WL 74384 (Cal. F.E.H.C.)] (Nov. 20, 1986), the

16 DFEH did not name a respondent in the administrative complaint. Nonetheless, the Commission

17 asserted jurisdiction over the respondent, after weighing actual prejudice to the respondent and the

18 complainant‘s and public‘s interest in the enforcement of the remedies in the FEHA. The DFEH asks

19 this Court‘s leave to retain its DOE allegations through the date of initial disclosures. If, at that time,

20 no other entities are named, the DFEH will dismiss the DOE defendants.

21

IV. CONCLUSION

22

This is an important civil rights case. The DFEH seeks simply to ensure a level playing field

23 for those disabled individuals aspiring to a legal career. The Department‘s Complaint properly seeks

24 on behalf of the class members, (1) the opportunity to be provided accommodations to take the

25 LSAT under fair conditions and (2) an end to LSAC‘s stigmatization of those individual test takers

26 who did nothing more than ask for accommodations to which they are entitled to under the law.

27 LSAC‘s contention that the DFEH lacks jurisdiction to pursue ADA violations in this action is

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1 without merit. Nor is the DFEH limited in this litigation by the scope of the underlying

2 administrative charges. The DFEH has supported each of its claims with well-pled facts. This Court

3 should therefore deny LSAC‘s motion to dismiss. In the event this motion is granted even in part, the

4 DFEH requests leave to amend its Complaint. Leave to amend ―shall be freely given when justice so

5 requires.‖ FED. R. CIV. P. 15(a). A proposed order denying defendant‘s motion accompanies this

6 brief.

7

8 Dated: June 21, 2012 9 10 11 12

DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING
NELSON CHAN Chief Counsel
SUSAN SAYLOR Special Projects Counsel

13

14

By: /s/ Susan Saylor

15

Attorneys for the Department

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19

20

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 Case3:12-cv-01830-EMC Document29 Filed06/27/12 Page1 of 21

1 THOMAS E. PEREZ, Assistant Attorney General

EVE L. HILL, Senior Counselor to the Assistant Attorney General 2 GREGORY B. FRIEL, Acting Chief

3

ROBERTA KIRKENDALL, Special Legal Counsel KATHLEEN P. WOLFE, Special Litigation Counsel

4

NABINA SINHA, Trial Attorney MEGAN E. SCHULLER, Trial Attorney, CSBN 281468

5

U.S. Department of Justice 950 Pennsylvania Avenue, N.W. - NYA

6

Washington, D.C. 20530 Telephone: (202) 307-0663

7

Facsimile: (202) 305-9775 Megan.Schuller@usdoj.gov

8

MELINDA HAAG, United States Attorney JOANN M. SWANSON, Assistant United States Attorney, Chief, Civil Division, CSBN 88143

9 MELANIE L. PROCTOR, Assistant United States Attorney, CSBN 228971 450 Golden Gate Avenue, Box 36055

10

San Francisco, California 94102

Telephone: (415) 436-6730

11

Facsimile: (415) 436-6478

12

Melanie.Proctor@usdoj.gov ATTORNEYS FOR UNITED STATES

13 IN THE UNITED STATES DISTRICT COURT

14

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION 15

16 THE DEPARTMENT OF FAIR EMPLOYMENT ) No. CV 12-1830-EMC

AND HOUSING,

)

17

Plaintiff,

) STATEMENT OF INTEREST OF ) THE UNITED STATES OF AMERICA

18

v.

)

) Date: 19 LAW SCHOOL ADMISSION COUNCIL, INC., )

July 13, 2012

20 ET AL., Defendants.

) Time: )

1:30 p.m.

21

) Judge: The Hon. Edward M. Chen

JOHN DOE, JANE DOE, PETER ROE,

)

22 RAYMOND BANKS, KEVIN COLLINS,

)

RODNEY DECOMO-SCHMITT, ANDREW

)

23 GROSSMAN, ELIZABETH HENNESSEY-

)

24 SEVERSON, OTILIA IOAN, ALEX JOHNSON, )

NICHOLAS JONES, CAROLINE LEE,

)

25 ANDREW QUAN, STEPHEN SEMOS,

)

GAZELLE TALESHPOUR, KEVIN

)

26 VIELBAUM, AUSTIN WHITNEY, and all other )

27

similarly situated individuals, Real Parties in Interest.

) )

28

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1

Table of Contents

2 INTRODUCTION ...........................................................................................................................1
3 STATUTORY AND REGULATORY BACKGROUND...............................................................1
4
5 PROCEDURAL HISTORY.............................................................................................................4

6 ARGUMENT ...................................................................................................................................5

7 I. THE DEPARTMENT’S IMPLEMENTING REGULATION IS ENTITLED TO

DEFERENCE AS A REASONABLE CONSTRUCTION OF SECTION 309 OF THE

8

ADA. ...................................................................................................................................5

9 II. REQUIRING UNREASONABLE TYPES AND AMOUNTS OF DOCUMENTATION

10

TO SUPPORT AN APPLICANT’S REQUEST FOR A TESTING ACCOMMODATION VIOLATES SECTION 309 OF THE ADA. ..................................7

11 III. LSAC’S PRACTICE OF FLAGGING TEST SCORES VIOLATES THE ADA. ..........12

12 CONCLUSION ..............................................................................................................................16
13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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1 2 Cases

Table of Authorities

3 Bragdon v. Abbott,

4 524 U.S. 624 (1998) .................................................................................................................... 6 Breimhorst v. Educational Testing Service,

5 No. 99-CV-3387, 2000 WL 34510621 (N.D. Cal. Mar. 27, 2000) (unpublished)............... 13-15

6

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) .................................................................................................................... 6

7 Doe v. National Board of Medical Examiners,

199 F.3d 146 (3d Cir. 1999)...................................................................................................... 12 8 Elder v. National Conference of Bar Examiners,

9 No. C 11-00199 SI, 2011 WL 672662 (N.D. Cal. Feb. 16, 2011) ........................................... 6-7

Enyart v. National Conference of Bar Examiners, 10 630 F.3d 1153, 1162 (9th Cir. 2011),

11 cert. denied, No. 10-1304, 2011 WL 4536525 (Oct. 3, 2011) ................................................. 4-8

12 Statutes

13 28 U.S.C. § 517............................................................................................................................... 1 42 U.S.C. §§ 12101 et seq............................................................................................................... 2
14 42 U.S.C. § 12101 note (b)(5)......................................................................................................... 2
15 42 U.S.C. § 12101(a)(3).................................................................................................................. 2 42 U.S.C. § 12101(a)(7).................................................................................................................. 8
16 42 U.S.C. § 12101(a)(8).................................................................................................................. 2
17 42 U.S.C. § 12101(b)(1) .............................................................................................................. 1-2 42 U.S.C. § 12102(1) ...................................................................................................................... 2
18 42 U.S.C. § 12102(4)(E)(i) ............................................................................................................. 2
19 42 U.S.C. § 12111(9) ...................................................................................................................... 3 42 U.S.C. § 12112(b)(5) ................................................................................................................. 3
20 42 U.S.C. §§ 12181 et seq............................................................................................................ 1-2
21 42 U.S.C. § 12182(a) ...................................................................................................................... 2 42 U.S.C. § 12182(b) ...................................................................................................................... 3
22 42 U.S.C. § 12186(b) .................................................................................................................. 1, 3
23 42 U.S.C. § 12188(b) ...................................................................................................................... 1 42 U.S.C. § 12189.................................................................................................................. passim
24 42 U.S.C. § 12203......................................................................................................................... 15
25 42 U.S.C. § 12203(b) .................................................................................................................... 14
26 Other Authorities
27 ADA Amendments Act of 2008 (P.L. 110-325)............................................................................. 1 H.R. Rep. No. 101-485 (III), at 68-69 (1990)................................................................................. 3
28

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1 Regulations

2 28 C.F.R. § 36.102 .......................................................................................................................... 2

3 28 C.F.R. § 36.201 .......................................................................................................................... 2 28 C.F.R. § 36.309 ................................................................................................................. passim

4 28 C.F.R. § 36.309(b)(1)(i). ...................................................................................................... 4, 13

5 28 C.F.R. § 36.309(b)(1)(ii).......................................................................................................... 11 28 C.F.R. § 36.309(b)(1)(iv) ..................................................................................................... 8, 11

6 28 C.F.R. § 36.309(b)(1)(iv)-(vi)................................................................................................. 4-5

7

28 C.F.R. § 36.309(b)(1)(v) ............................................................................................................ 9 28 C.F.R. § 36.309(b)(1)(vi) ........................................................................................................ 8-9

8 28 C.F.R. § 36.309(b)(1)-(3)........................................................................................................... 3

28 C.F.R. § 36.309(b)(2)................................................................................................................. 3 9 28 C.F.R. pt. 36 ............................................................................................................................... 1

10 28 C.F.R. pt. 36, app. A ............................................................................................................. 8-11

28 C.F.R. pt. 36, app. C ................................................................................................................ 11 11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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1

STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA

2

INTRODUCTION

3

The United States respectfully submits this Statement of Interest, pursuant to 28 U.S.C.

4 § 517, because this litigation implicates the interpretation and application of title III of the

5 Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181 et seq., and its implementing 6 regulation.1 The Department of Justice (“Department”) is the federal agency with primary

7 responsibility for enforcing title III of the ADA and its implementing regulation, including the

8 application of title III of the ADA to private entities offering credentialing examinations for 9 postsecondary education. See 42 U.S.C. § 12188(b) (2011);2 28 C.F.R. pt. 36 (2011).3

10

Section 309 of the ADA requires that credentialing examinations for postsecondary

11 education be offered in a manner “accessible to persons with disabilities.” 42 U.S.C. § 12189.

12 The Attorney General is charged with issuing regulations to carry out the provisions of title III.

13 42 U.S.C. § 12186(b). Pursuant to that authority, the Department promulgated 28 C.F.R.

14 § 36.309, which addresses “[e]xaminations and courses.” Because this case concerns the proper

15 interpretation of Section 309 and the validity of the Department’s regulation, the United States

16 has an interest in presenting its views.

17

Pursuant to this authority, the United States submits this Statement of Interest in support

18 of “Plaintiff’s Opposition to Motion to Dismiss.” See Pl.’s Opp’n to Mot. Dismiss, June 21,

19 2012, ECF No. 25.

20

STATUTORY AND REGULATORY BACKGROUND

21

Congress enacted the ADA in 1990 “to provide a clear and comprehensive national

22 mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C.

23

24 1 Under 28 U.S.C. § 517, “[t]he Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any . . . district in the United States to attend to the

25 interests of the United States in a suit pending in a court of the United States . . . .” 2 All citations to the ADA in this Statement of Interest refer to the current text of the ADA, as
26 published in the United States Code (“U.S.C.”) 2011 edition, including changes made by the

27

ADA Amendments Act of 2008 (P.L. 110-325), which became effective on January 1, 2009. 3 All citations to U.S. regulations in this Statement of Interest refer to the Code of Federal

28 Regulations (“C.F.R.”) revised as of July 1, 2011, unless noted otherwise. - 1 -

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1 § 12101(b)(1). In enacting the ADA, Congress found that “discrimination against individuals

2 with disabilities persists in such critical areas as employment . . . [and] education.” Id.

3 § 12101(a)(3). Congress further found that

4

the continuing existence of unfair and unnecessary discrimination and prejudice

5

denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous, and

6

costs the United States billions of dollars in unnecessary expenses resulting from

dependency and nonproductivity.

7 Id. § 12101(a)(8).

8 The ADA provides federal civil rights protections and guarantees equal opportunity for

9 individuals with disabilities in public accommodations, employment, transportation, state and

10 local government services, and telecommunications. See 42 U.S.C. §§ 12101 et seq. An

11 individual has a “disability” within the meaning of the ADA if he or she has a physical or mental

12 impairment that substantially limits one or more major life activities, has a record of such

13 impairment, or is regarded as having such impairment. Id. § 12102(1). The determination of

14 whether an impairment substantially limits a major life activity shall be made without regard to

15 the ameliorative effects of mitigating measures such as medication. Id. § 12102(4)(E)(i).

16 Indeed, when passing the ADA Amendments Act, Congress stated clearly that the primary focus

17 in cases brought under the ADA should be on whether covered entities have complied with their

18 obligations, and “the question of whether an individual’s impairment is a disability under the

19 ADA should not demand extensive analysis.” Id. § 12101 note (b)(5).

20 Title III of the ADA prohibits discrimination on the basis of disability by public

21 accommodations, commercial facilities, and private entities that offer examinations or courses

22 related to applications, licensing, certification, or credentialing for secondary or postsecondary

23 education, professional, or trade purposes. See 42 U.S.C. §§ 12181 et seq.; 28 C.F.R. §§ 36.102,

24 36.201. It does so in several distinct antidiscrimination provisions. Section 302(a) contains a

25 general prohibition on discrimination. 42 U.S.C. § 12182(a). Section 302(b) contains numerous

26 specific provisions addressing various activities and actions that constitute disability

27

28
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1 discrimination. Id. § 12182(b). And Section 309 addresses licensing, certification, and

2 credentialing examinations in particular. Id. § 12189.

3

Section 309 provides, “[a]ny person that offers examinations or courses related to

4 applications, licensing, certification, or credentialing for secondary or postsecondary education,

5 professional, or trade purposes shall offer such examinations or courses in a place and manner

6 accessible to persons with disabilities or offer alternative accessible arrangements for such

7 individuals.” 42 U.S.C. § 12189. The legislative history of Section 309 explains that “this

8 provision was adopted in order to assure that persons with disabilities are not foreclosed from

9 educational, professional or trade opportunities because an examination or course is conducted in

10 an inaccessible site or without an accommodation.” H.R. Rep. No. 101-485 (III), at 68-69

11 (1990).

12

Congress required the Attorney General and the Department of Justice to issue

13 regulations implementing title III of the ADA. 42 U.S.C. § 12186(b). Following notice and

14 comment rulemaking, in 1991 the Attorney General promulgated 28 C.F.R. § 36.309 to

15 implement Section 309 of the statute. That regulation provides that, to ensure accessibility,

16 entities offering credentialing examinations are required to offer “modifications” to an

17 examination or to provide appropriate “auxiliary aids” if needed so as to “best ensure” that the

18 examination measures an individual’s aptitude and achievement rather than the individual’s

19 disability. See 28 C.F.R. § 36.309(b)(1)-(3). The regulation further states that “[r]equired

20 modifications to an examination may include changes in the length of time permitted for

21 completion of the examination and adaptation of the manner in which the examination is given.”

22 Id. § 36.309(b)(2). These modifications and auxiliary aids are commonly referred to as “testing 23 accommodations,” and will be referred to as such throughout this Statement of Interest.4

24 4 To be clear, the term “reasonable accommodation” is distinct from the “testing

25 accommodations” referred to herein and does not appear in the title III statutory or regulatory

provisions at issue in this case. Indeed, the phrase “reasonable accommodation” is used only in 26 title I—the statute’s employment provisions. See 42 U.S.C. §§ 12111(9), 12112(b)(5). Thus,

27

case law and guidance interpreting the ADA’s “reasonable accommodation” requirement under title I of the ADA are not applicable to the Court’s analysis of testing accommodations under

28 title III. To the contrary, 42 U.S.C.§ 12189 and 28 C.F.R. § 36.309 are the controlling provisions - 3 -

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1

To further ensure accessibility for test takers with disabilities, in 2010 the Department

2 codified longstanding guidance on the processing of requests for testing accommodations and the

3 appropriate bounds of documentation required to support such testing accommodation requests.

4 See 28 C.F.R. § 36.309(b)(1)(iv)-(vi). These additional provisions make clear that testing

5 entities must respond in a “timely manner” to requests for testing accommodations and may only

6 seek reasonable documentation limited to the need for the accommodation requested. See id.

7

PROCEDURAL HISTORY5

8

The Law School Admission Council, Inc. (“LSAC”) is a non-profit organization based in

9 Pennsylvania. Def.’s Mot. Dismiss 1, May 17, 2012, ECF No. 13. LSAC provides services to

10 member schools and applicants to law school, including developing and administering the Law

11 School Admission Test (“LSAT”). Id. The Department of Fair Employment and Housing

12 (“DFEH”) is a California state agency that has authority to enforce the Unruh Civil Rights Act,

13 which incorporates the ADA. See Compl. ¶¶ 1, 16, Mar. 16, 2012, (attached to Notice of

14 Removal of Action Under 28 U.S.C. § 1441, at Ex. A, at 8-83, April 12, 2012, ECF No. 1).

15 Pursuant to that authority, DFEH investigated complaints against LSAC regarding the provision

16 of testing accommodations to test takers with disabilities and issued LSAC a “Notice of Class

17 Action Complaint and Director’s Complaint” on July 22, 2010. See Compl. ¶ 22. On February

18 6, 2012, DFEH filed a “Group and Class Accusation” before the California Fair Employment and

19 Housing Commission (“Commission”). Compl. ¶ 40. LSAC elected to have the dispute heard in

20 civil court rather than before the Commission. Compl. ¶ 42. DFEH then timely filed a

21 Complaint against LSAC in the Alameda County Superior Court. See Compl. ¶ 43; Def.’s Mot.

22 Dismiss 4. The Complaint states five causes of action, all of which are based, at least in part, on

23

24 in this case, and the standard contained therein governs the conduct of entities offering credentialing and other examinations. That standard is not a reasonableness or “reasonable

25 accommodation” standard, but rather the heightened “best ensure” standard under Section 309

that is tailored to the unique context of testing. See 28 C.F.R. § 36.309(b)(1)(i); Enyart v. Nat’l 26 Conference of Bar Exam’rs, 630 F.3d 1153, 1162 (9th Cir. 2011), cert. denied, No. 10-1304,

27

2011 WL 4536525 (Oct. 3, 2011). 5 The United States has not developed an independent factual record in this matter and, for

28 purposes of this Statement of Interest, assumes the facts alleged in the Complaint to be true. - 4 -

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1 the ADA. See Compl. ¶¶ 187-216. LSAC removed the case to federal court on April 12, 2012.

2 Def.’s Mot. Dismiss 4.

3

ARGUMENT

4 I. THE DEPARTMENT’S IMPLEMENTING REGULATION IS ENTITLED TO

5

DEFERENCE AS A REASONABLE CONSTRUCTION OF SECTION 309 OF

THE ADA.

6

Defendant asserts that Section 309’s implementing regulation “imposes obligations that

7 are not found in the statutory provision that it purports to implement (42 U.S.C. § 12189).”

8 Def.’s Mot. Dismiss 18. More specifically, Defendant challenges the regulation’s requirement

9 that testing entities’ documentation requests must be reasonable and limited to the need for the

10 testing accommodation; that such entities must give considerable weight to an applicant’s

11 documentation of past testing accommodations; and that entities must respond in a timely

12 manner to requests for testing accommodations to ensure equal opportunity for individuals with

13 disabilities. See Def.’s Mot. Dismiss 17-18; see also 28 C.F.R. § 36.309(b)(1)(iv)-(vi).

14 Defendant’s contentions are baseless. The regulatory provisions at issue are consistent with and

15 further the statute’s nondiscrimination mandate. Moreover, they are grounded in and derive

16 directly from the Department’s longstanding positions and guidance regarding the permissible

17 scope and treatment of requests for testing accommodations.

18

Both the Ninth Circuit and this Court have previously addressed and rejected similar

19 challenges to the Department’s regulatory implementation of Section 309—in particular, with

20 respect to the “best ensure” standard in 28 C.F.R. § 36.309—and conclusively determined that

21 the regulation is a reasonable interpretation of Section 309. In Enyart v. National Conference of

22 Bar Examiners, the Ninth Circuit unequivocally rejected the defendant testing entity’s argument

23 that 28 C.F.R § 36.309’s “best ensure” standard imposes an obligation beyond the statutory

24 mandate. See Enyart, 630 F.3d 1153, 1162 (9th Cir. 2011), cert. denied, No. 10-1304, 2011 WL

25 4536525 (Oct. 3, 2011). The court held that the statutory requirement that examinations be

26 offered “in a place and manner accessible to persons with disabilities” is sufficiently ambiguous

27 that the court must respect the Department’s interpretive regulations. See id. at 1161-62. The

28
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1 Ninth Circuit further held that the Department’s interpretation of Section 309 contained in its

2 regulation is a permissible construction of the statute and thus deserves deference. See id. at

3 1161-62 (concluding that “28 C.F.R. § 36.309 is entitled to Chevron deference”). And in Elder

4 v. National Conference of Bar Examiners, this Court cited Enyart’s holding regarding Section

5 309 and its implementing regulation, and accorded the Department’s regulation deference. See

6 Elder, No. C 11-00199 SI, 2011 WL 672662, at *6-7 (N.D. Cal. Feb. 16, 2011).

7

The courts’ analyses and conclusions in Enyart and Elder apply equally with respect to

8 the regulatory requirements addressing the types and amount of documentation a testing entity

9 may request from an applicant for testing accommodations. Such requirements reflect a

10 reasonable construction of Section 309’s mandate that examinations must be provided in a

11 manner accessible to people with disabilities, and are therefore authoritative interpretations

12 entitled to deference. See Bragdon v. Abbott, 524 U.S. 624, 646 (1998) (stating that the

13 Department’s views in its title III regulations are entitled to deference); see also Chevron, U.S.A.,

14 Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984) (“Considerable weight should

15 be accorded to an executive department’s construction of a statutory scheme it is entrusted to

16 administer.”).

17

As the Ninth Circuit found in Enyart, and as is equally relevant here, the meaning of

18 “accessible” in Section 309 “is ambiguous” and “[n]owhere in § 12189, in [t]itle III more

19 broadly, or in the entire ADA did Congress define these terms.” Enyart, 630 F.3d at 1161.

20 Moreover, the Court noted that “accessible” has various meanings and possible definitions, and

21 the “definition alone does not provide guidance as to what an entity must do to administer an

22 exam in an ‘accessible’ manner.” Id. at 1161 n.2. The Ninth Circuit thus concluded that Section

23 309 is ambiguous in this respect, and so the Department’s construction of the statute is entitled to

24 deference, “so long as that interpretation is based upon a permissible construction of the statute.”

25 See id. at 1162 (citation omitted).

26

The Enyart Court’s finding of ambiguity in this respect easily defeats Defendant’s

27 challenge to the regulatory provisions at issue in this case. As discussed further below, a testing

28
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1 entity’s unreasonable, untimely, and unduly burdensome documentation demands can effectively

2 exclude individuals with disabilities from receiving testing accommodations and equal access to

3 educational and employment opportunities just as if the entity had adopted a strict ban on such

4 individuals taking the exam. Thus, because the Department’s regulatory provisions related to

5 documentation requests are based upon a permissible construction of Section 309, the

6 Department’s implementing regulation deserves Chevron deference. See Enyart, 630 F.3d at

7 1162; see also Elder, 2011 WL 672662, at *6 (citing Enyart’s holding that 28 C.F.R § 36.309

8 deserves deference). Accordingly, 28 C.F.R. § 36.309 sets out the appropriate legal standard to

9 apply in this case.

10 II. 11

REQUIRING UNREASONABLE TYPES AND AMOUNTS OF DOCUMENTATION TO SUPPORT AN APPLICANT’S REQUEST FOR A TESTING ACCOMMODATION VIOLATES SECTION 309 OF THE ADA.

12

Defendant asserts that “testing organizations have the right to request reasonable

13 documentation” and “to make a timely request for supplemental information if the information

14 submitted by an applicant does not establish the nature of the disability or the need for

15 reasonable testing accommodations.” Def.’s Mot. Dismiss 19. Even if true, these statements are

16 not contrary to Plaintiff’s assertion that “requiring unreasonable types and excessive amounts of

17 documentation to support each accommodation request” violates the ADA. See Compl. ¶ 213

18 (emphases added). Defendant raises this as a point of contention, however, suggesting it

19 misunderstands the provisions of the regulation addressing the proper scope of requests for

20 documentation to support the need for testing accommodations and the process for evaluating

21 test takers’ requests for testing accommodations. Specifically, Defendant seems to misconstrue

22 what is a “reasonable” request for documentation in support of a test taker’s application for

23 testing accommodations, as well as the proper weight that such documentation should be

24 afforded when evaluating a test taker’s need for testing accommodations.6 We thus address these

25 6 Defendant cites one of the Department’s settlement agreements to support its interpretation of
26 what qualifies as a “reasonable” documentation request and the appropriate weight afforded to
27 the documentation provided on behalf of an applicant for testing accommodations. Def.’s Mot. Dismiss 19. However, a settlement agreement is not relevant legal authority, as it is “by
28 definition, a compromise and does not necessarily embrace the maximum reach of the statute.”
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1 provisions to provide further clarification of what constitutes a violation of Section 309 with

2 respect to documentation requests by testing entities.

3

The provisions of 28 C.F.R. § 36.309 addressing documentation requests derive directly

4 from Section 309 and further the purposes of the ADA. A fundamental goal of the ADA is to

5 assure equality of opportunity and full participation for individuals with disabilities. See 42

6 U.S.C. § 12101(a)(7). The requirements of Section 309 are integral to ensuring equal access to

7 licensing, certification, and credentialing exams for test takers with disabilities—and,

8 consequently, the educational and employment opportunities that increasingly hinge on such

9 exams. Moreover, the provisions of the regulation implementing Section 309 are consistent with

10 the Department’s experience and history of enforcement in this area. This includes the

11 provisions addressing the appropriate bounds of documentation requests by testing entities in

12 support of an applicant’s request for testing accommodations.

13

Section 309’s implementing regulation requires that documentation requests by testing

14 entities must be “reasonable and limited to the need for the modification, accommodation, or

15 auxiliary aid or service requested.” 28 C.F.R. § 36.309(b)(1)(iv). The regulation thus makes

16 clear that requiring unreasonable types and excessive amounts of documentation to support an

17 applicant’s request for a testing accommodation violates the ADA. Testing entities also must

18 respond in a “timely manner” to requests for testing accommodations, see id. § 36.309(b)(1)(vi),

19 in order to ensure equal opportunity and equal access for persons with disabilities. See 28 C.F.R.

20 pt. 36, app. A, at 785. As explained in the guidance to the regulation, “[f]ailure by a testing

21 entity to act in a timely manner, coupled with seeking unnecessary documentation, could result

22 in such an extended delay that it constitutes a denial of equal opportunity or equal treatment in an

23

24 Enyart, 630 F.3d at 1164 & n.5. Indeed, a more recent settlement agreement, between the United States and LSAC, includes broader documentation provisions that more closely mirror the reach

25 of the statute and regulations. See Settlement Agreement Between the United States of America

and the Law School Admission Council, Inc., ADA.gov (Sept. 27, 2011), 26 http://www.ada.gov//lsac_2011.htm (quoting extensively from 42 U.S.C. § 12189 and 28 C.F.R.

27

§ 36.309). Ultimately, the ADA and its implementing regulations provide the legal standards applicable to professional examinations, and thus are the appropriate legal source to determine

28 what constitutes a violation of the ADA. - 8 -

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1 examination setting for persons with disabilities.” Id. at 786. The guidance thus explains the

2 direct connection between these provisions addressing the processing of requests for testing

3 accommodations and core goals of the ADA.

4

Indeed, these provisions if implemented properly work in harmony to assure equality of

5 opportunity and full participation for individuals with disabilities. For example, the guidance to

6 the regulation states that, generally, a testing entity should accept, without further inquiry,

7 “documentation provided by a qualified professional who has made an individualized assessment

8 of an applicant that supports the need for the modification, accommodation, or aid requested,”

9 and provide the testing accommodation. See 28 C.F.R. pt. 36, app. A, at 782-84. The guidance

10 further explains that “[r]eports from experts who have personal familiarity with the candidate

11 should take precedence over those from, for example, reviewers for testing agencies, who have

12 never personally met the candidate or conducted the requisite assessments for diagnosis and

13 treatment.” Id. at 784. Similarly, the regulation provides that testing entities must give

14 “considerable weight to documentation of past modifications, accommodations, or auxiliary aids

15 or services received in similar testing situations,” or pursuant to an educational plan. 28 C.F.R.

16 § 36.309(b)(1)(v). Compliance with these requirements should in turn enable testing entities to

17 respond in a “timely manner” to requests for testing accommodations. See id. § 36.309(b)(1)(vi);

18 28 C.F.R. pt. 36, app. A, at 785-86. In contrast, if testing entities make unreasonable demands

19 for documentation, those demands create impediments to receiving testing accommodations in a

20 timely manner and may not provide applicants with a reasonable opportunity to obtain necessary 21 testing accommodations and still be allowed to take the test in the same testing cycle.7 See 28

22 C.F.R. pt. 36, app. A, at 785.

23 7 During the rulemaking process, commenters indicated that complying with the burdensome

24 documentation requirements imposed by testing entities is frequently so difficult, and negotiations over the requests so prolonged, that test applicants forgo taking the test entirely.

25 See 28 C.F.R. pt. 36, app. A, at 783. Further, a recent ABA resolution and accompanying report

on testing accommodations found that, based upon a review of reports and law suits, “the process 26 to apply for and obtain accommodations is often difficult and sometimes legitimate requests are

27

denied.” available

See ABA Comm’n on Disability Rights, Resolution 111, at summary (Feb. 2012), at http://www.americanbar.org/content/dam/aba/administrative/mental_physical_

28 disability/2011nov11_cdr_resolution.pdf. “For example, many applicants are put through a - 9 -

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11

In promulgating the regulation, the Department considered concerns raised by testing

22 entities that the Department’s regulatory language and guidance on documentation requests

33 would require testing entities to accept “a brief note on a doctor’s prescription pad as adequate

44 documentation of a disability and the need for an accommodation,” and would result in

55 “individuals skewing testing results by falsely claiming or feigning disabilities as an improper

66 means of seeking advantage on an examination.” See 28 C.F.R. pt. 36, app. A, at 783. The 77 Department determined that these concerns were unfounded8 and explained its position in detail

88 in the guidance to the regulation. See id. at 783-85. The guidance clarifies that “appropriate

99 documentation may vary depending on the nature of the disability and the specific modification

1100 or aid requested” and that “[n]o one piece of evidence may be dispositive in mak[ing] a testing

1111 accommodation determination.” Id. at 783-84. The proper weight accorded “a letter or other

1122 communication from a doctor or other qualified professional would depend on the professional’s

1133 relationship with the candidate and the specific content of the communication, as well as how the

1144 letter fits in with the totality of the other factors used to determine testing accommodations”

1155 under 28 C.F.R. § 36.309. Id. at 784. The Department’s guidance further clarifies that

1166 documentation submitted on behalf of a testing candidate must be provided by a “qualified

1177 professional”—someone who is “licensed or otherwise properly credentialed” with “expertise in

1188 the disability for which the modifications or accommodations are sought,” and who “has

1199 individually and personally evaluated the candidate as opposed to simply considering scores

2200 from a review of documents.” See id.

2211

It thus follows that applicants who submit appropriate documentation that meets the

2222 standards explained above “should not be subjected to unreasonably burdensome requests for

2233 additional documentation.” See 28 C.F.R. pt. 36, app. A. As explained in the guidance to the

2244

2255 burdensome process or are denied accommodations that they have been receiving in school for

years.” Id. 2266 8 Notably, fewer than 1.5% of LSAT test takers requested testing accommodations during the last

2277

testing year (June 2011 to February 2012). See Letter from Joan E. Van Tol, Gen. Counsel, LSAC, to Cal. State Assembly (Apr. 10, 2012) (on file with the Committee on Higher Education

2288 of the California State Assembly). - 10 -

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1 2010 regulation, these documentation standards “reflect[] the Department’s longstanding

2 position,” id., which dates back more than 20 years. The Department initially set out the

3 parameters of appropriate documentation requests relating to examinations and courses covered

4 by this section in the preamble to the 1991 regulation, stating that “[e]xaminers may require

5 evidence that an applicant is entitled to modifications or aids . . . , but requests for documentation

6 must be reasonable and must be limited to the need for the modification or aid requested.” See

7 28 C.F.R. pt. 36, app. C, at 910; see also 28 C.F.R. pt. 36, app. A, at 782. The preamble

8 explained that “[a]ppropriate documentation might include a letter from a physician or other

9 professional, or evidence of a prior diagnosis or accommodation, such as eligibility for a special

10 education program.” 28 C.F.R. pt. 36, app. C, at 910. This guidance was based upon the

11 requirement in paragraph (b)(1)(ii) of the 1991 regulation that any examination designed for

12 individuals with disabilities be offered as often and in as timely a manner as other examinations.

13 See id.; 28 C.F.R. § 36.309(b)(1)(ii) (1991).

14

Despite this regulatory provision and clearly worded guidance explaining the legal

15 bounds of documentation requests under the 1991 regulation, the Department, through its

16 enforcement work, determined that testing entities were routinely making common errors in

17 reviewing testing accommodation requests, including making documentation requests that were

18 often inappropriate and burdensome in violation of Section 309. See 28 C.F.R. pt. 36, app. A, at

19 782. Thus, new regulatory language in the 2010 regulation sought to address these continuing

20 violations of Section 309 by codifying the 1991 preamble language to eliminate any ambiguity 21 about the bounds of appropriate documentation requests under the ADA. See id. at 782; see also 22 28 C.F.R. § 36.309(b)(1)(iv) (stating that private testing entities must assure that “[a]ny request 23 for documentation, if such documentation is required, is reasonable and limited to the need for

24 the modification, accommodation, or auxiliary aid or service requested”). The new language in

25 the 2010 regulation thus reflects the Department’s longstanding position and enforcement history

26 in this area. Indeed, the new regulatory language merely sought to clarify testing entities’
27 responsibilities under Section 309 and the 1991 regulation in ways that should lead to fewer
28
- 11 -

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Case3:12-cv-01830-EMC Document29 Filed06/27/12 Page16 of 21

1 misinterpretations of the requirements, more compliance with the ADA, and less discrimination

2 in testing.

3

Though seemingly narrow when examined alone, these testing accommodations

4 provisions are, fundamentally, civil rights provisions. They comprise a web of protections that

5 are intertwined and work together in furtherance of the purpose of the ADA—to eradicate

6 discrimination against individuals with disabilities and to ensure equal rights and opportunities

7 for all Americans without regard to their disabilities. And, as the above discussion demonstrates,

8 although Defendant asserts that some of Plaintiff’s claims of impermissible documentation

9 demands are premised on actions and events that occurred before March 15, 2011, the effective

10 date of the revised 2010 regulation, Def.’s Mot. Dismiss 18, such actions would, regardless,

11 support a claim that Defendant is in violation of Section 309 and the 1991 regulation. See, e.g.,

12 Compl. ¶¶ 61-65, 77-78, 89-90, 136-40, 146-49, 153-54, 162-64.

13 III. LSAC’S PRACTICE OF FLAGGING TEST SCORES VIOLATES THE ADA.

14

LSAC has a policy that examinees who receive additional time on the LSAT as a

15 disability-related testing accommodation receive a notation on their score report indicating that

16 their exam scores were earned under nonstandard time conditions. See Compl. ¶ 56. This

17 practice is commonly referred to as “flagging” test scores and will be referred to as such in this

18 Statement of Interest. When reporting these scores to law schools, LSAC advises the schools

19 that these examinees’ scores “should be interpreted with great sensitivity and flexibility.” Id. In

20 addition, scores from tests taken under extended time conditions are not averaged with other

21 scores to produce a percentile ranking, as are the test scores for all other test takers, but instead

22 are reported individually. See Compl. ¶ 57. Defendant urges this Court to dismiss Plaintiff’s

23 claims that LSAC’s flagging policy violates the ADA, arguing that the process is

24 “psychometrically sound” and that “nothing in the ADA or its implementing regulations” 25 prohibits flagging test scores.9 Def.’s Mot. Dismiss 16. To the contrary, LSAC’s practice of

26 9 In support of this sweeping conclusion, Defendant cites a Third Circuit case that, contrary to

27

Defendant’s assertion, does not preclude an ADA claim based on test score flagging, and rather, held only that, on the record before it, the plaintiff failed to meet his evidentiary burdens and

28 could not demonstrate a reasonable likelihood of success on his claim that flagging test scores - 12 -

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1 flagging test scores is the very type of discriminatory policy, based on unfounded stereotypes

2 and prejudices, that Congress sought to eradicate with the ADA. And Defendant’s unjustified

3 practice of singling out persons with disabilities in this way—essentially announcing to law

4 schools that examinees who exercise their civil right to needed testing accommodations may not

5 deserve the scores they received—is discrimination prohibited by the ADA. Indeed, Defendant’s

6 flagging policy, which, at its core, announces an individual’s disability above all else, cannot be

7 reconciled with the ADA’s mandate that testing entities must administer exams so as to best

8 ensure that exam results reflect individuals’ skills and achievement level and not their disability.

9 See 28 C.F.R. § 36.309(b)(1)(i).

10

Section 309 and its implementing regulation require testing agencies to provide testing

11 accommodations for test takers with disabilities and to select and administer the test to best

12 ensure that the test results for test takers with disabilities reflect their actual abilities. See 42

13 U.S.C. § 12189; 28 C.F.R. § 36.309. These provisions further the purpose of the ADA by

14 leveling the playing field in the arena of licensing, certification, and credentialing exams.

15 However, under LSAC’s reporting system, examinees who receive testing accommodations for

16 proven disabilities have their scores cast into doubt as to their validity and accuracy. Given

17 Congress’s recognition, through Section 309, that nondiscriminatory testing practices are critical

18 to ensuring that individuals with disabilities have a full and equal opportunity to educational and

19 employment opportunities, Defendant’s flagging policy can only be seen as an impermissible

20 end-run around its ADA obligations.

21

Flagging test scores also raises issues of stigma, privacy, and discrimination against test

22 takers with disabilities that implicate core tenets of the ADA. Flagging a test score because of

23 testing accommodations received necessarily identifies the test taker as a person with a disability,

24

25 violated the ADA. See Doe v. Nat’l Bd. of Med. Exam’rs, 199 F.3d 146, 156-57 (3d Cir. 1999);

see also Def.’s Mot. Dismiss 16. Notably, this Court, in an unpublished decision, has recognized 26 that flagging test scores may violate the ADA. See Breimhorst v. Educ. Testing Serv., No. C-99-

27

CV-3387, 2000 WL 34510621, at *8 (N.D. Cal. Mar. 27, 2000) (unpublished) (finding that plaintiffs stated a claim against Educational Testing Service for violation of Sections 309 and

28 503(b) of the ADA with regard to its practice of flagging test scores). - 13 -

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1 and does so without his or her consent. Accordingly, flagging may raise justifiable concerns for

2 some individuals about being stigmatized, discriminated against, or prevented from competing

3 on an equal basis in the highly competitive law school application process. The American Bar

4 Association (ABA) recently noted that the practice of flagging “raises unfair questions about the

5 score’s legitimacy.” See ABA Comm’n on Disability Rights, Resolution 111, at summary (Feb.

6 2012), available at http://www.americanbar.org/content/dam/aba/administrative/mental_

7 physical_disability/2011nov11_cdr_resolution.pdf. According to the February 2012 ABA report

8 on testing accommodations, students with disabilities are “substantially underrepresented in law

9 schools across the country,” in part due to the fact that LSAC’s testing process “does not afford

10 the same benefits to applicants with disabilities that it affords to other applicants.” See id. at

11 report 1-2. The report further states that “when an accommodated score is labeled as

12 ‘nonstandard’ or when a testing agency tells the academic program that the score does not

13 conform to the scores of students who were not given accommodations, the student with the

14 accommodated score is placed at a serious disadvantage.” Id. at report 4.

15

Flagging thus interferes with the rights and privacy of test takers with disabilities, and

16 does so because they exercised a right granted and protected by Section 309 of the ADA.

17 Moreover, flagging may discourage test takers with disabilities from exercising their right to

18 testing accommodations, further undermining the purpose of the ADA generally and Section 309

19 in particular. See 42 U.S.C. § 12203(b) (It is a violation of the ADA “to coerce, intimidate,

20 threaten, or interfere with an individual in the exercise or enjoyment of, or on account of his or

21 her having exercised or enjoyed,” any right granted or protected by the ADA.); see also

22 Breimhorst v. Educ. Testing Serv., No. C-99-CV-3387, 2000 WL 34510621, at *7 (N.D. Cal.

23 Mar. 27, 2000) (unpublished) (finding that plaintiffs stated a claim against Educational Testing

24 Service for violation of 42 U.S.C. § 12203(b) by flagging test scores achieved with testing

25 accommodations due to an established disability). Indeed, three of the real parties in interest in

26 this case are using pseudonyms because of “a legitimate fear of negative professional

27 ramifications” should the nature of their disability and need for accommodation be identified

28
- 14 -

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1 through association with this litigation. See Compl. ¶ 3. Plaintiff’s factual allegations on this

2 point, and the concerns and fears they reflect, fall squarely within the broad and explicit

3 protections established by 42 U.S.C. § 12203, and Defendant’s motion to dismiss this claim

4 should be denied.

5

It is notable that flagging policies, such as LSAC’s, have been soundly rejected by the

6 ABA and most major testing entities. Earlier this year, the ABA adopted a resolution urging

7 LSAC, and all testing entities, to stop the “unfair practice of ‘flagging.’” See ABA Comm’n on

8 Disability Rights, Resolution 111, at summary (Feb. 2012), available at

9 http://www.americanbar.org/content/dam/aba/administrative/mental_physical_disability/2011no

10 v11_cdr_resolution.pdf. Indeed, according to the ABA, most testing entities have already

11 removed flagging from the testing process. See id. For example, the Educational Testing

12 Service (ETS), which administers the SAT, the GRE, the GMAT, and some 500 other high 13 stakes screening exams,10 stopped flagging test scores for all of its exams in 2003. See Press

14 Release, Coll. Bd., The College Board and Disabilities Rights Advocates Announce Agreement

15 to Drop Flagging from Standardized Tests (July 17, 2002), available at

16 http://www.collegeboard.com/press/releases/11360.html. This decision was based in part on the 17 recommendations of a national panel of experts who studied the issue of flagging on the SAT I.11

18 See id. Based on scientific, psychometric, and social evidence, a majority of the panel concluded

19 that the SAT scores of accommodated tests had results equivalent to tests with no testing

20

21

22 10 For purposes of this Statement of Interest, the United States assumes the statement of facts in

23

this Court’s unpublished opinion in Breimhorst to be true. at *1 (discussing ETS and the exams it administers).

See Breimhorst, 2000 WL 34510621,

24 11 As part of the Breimhorst settlement, ETS agreed to stop flagging ETS-administered tests not

owned by the College Board, including the GMAT and the GRE, among others. See Press

25 Release, Coll. Bd., The College Board and Disabilities Rights Advocates Announce Agreement

to Drop Flagging from Standardized Tests (July 17, 2002), available at 26 http://www.collegeboard.com/press/releases/11360.html. In addition, based on the blue ribbon

27

panel’s recommendation, in 2003 ETS and the College Board agreed to stop the practice of flagging on all tests the College Board owned, including the SAT, PSAT/NMSQT, and AP. See

28 id. - 15 -

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1 accommodations.12 This runs counter to Defendant’s unilateral assertion that flagging is a 2

2 “psychometrically sound practice” and demonstrates the lack of support for Defendant’s 3

3 sweeping statements about flagging. 4

4

Because LSAC’s flagging policy cannot be reconciled with the ADA’s requirement that

5

5 testing entities administer exams in an accessible manner so as to place individuals with 6

6 disabilities on equal footing with others, and because LSAC’s flagging policy, at a minimum, 7

7 interferes with persons with disabilities’ exercise of their civil rights, this practice should not be 8

8 allowed to continue. 9

9

CONCLUSION

10

10

For the foregoing reasons, we support “Plaintiff’s Opposition to Motion to Dismiss” and

11

11 ask that the Court grant deference to the Department’s interpretation of the ADA and its 12

12 implementing regulations when ruling on this matter. 13

13 14

14 15

15 16

16 17

17 18

18 19

19 20

20 21

21 22

22 23

23 24

24 25

12 In addition to the strong scientific reasons for stopping flagging, the majority of the panel also

25 found that many students were reluctant to request extended time on the SAT I, because the

26 practice of flagging identified them to schools as having a disability. For the full expert report

26 27 27 28

see Noel Gregg et al., The Flagging Test Scores of Individuals with Disabilities Who Are Granted the Accommodation of Extended Time: A Report of the Majority Opinion of the Blue Ribbon Panel on Flagging (2002), available at http://www.dralegal.org/downloads/cases/

28 breimhorst/majority_report.pdf.

- 16 -

DFEH v. LSAC, NO. CV 12-1830-EMC; STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA

Case3:12-cv-01830-EMC Document29 Filed06/27/12 Page21 of 21

DATED: 1

June 27, 2012

Respectfully submitted,

2

3

MELINDA HAAG United States Attorney

4 Northern District of California

5

THOMAS E. PEREZ Assistant Attorney General
EVE L. HILL Senior Counselor to the Assistant Attorney General

6

Civil Rights Division

7

8 /s/ Melanie L. Proctor

/s/ Megan E. Schuller

9 JOANN M. SWANSON, CSBN 88143 GREGORY B. FRIEL

Assistant United States Attorney 10 Chief, Civil Division

Acting Chief ROBERTA KIRKENDALL

11

MELANIE L. PROCTOR, CSBN 228971 Assistant United States Attorney

Special Legal Counsel KATHLEEN P. WOLFE

12 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102

Special Litigation Counsel NABINA SINHA

13 Telephone: (415) 436-6730

Trial Attorney

Facsimile: (415) 436-6478 14 Melanie.Proctor@usdoj.gov

MEGAN E. SCHULLER, CSBN 281468 Trial Attorney

15

Disability Rights Section Civil Rights Division

16

U.S. Department of Justice

950 Pennsylvania Avenue, N.W. - NYA

17

Washington, D.C. 20530

Telephone: (202) 307-0663

18

Facsimile: (202) 305-9775

19

Megan.Schuller@usdoj.gov

20

21

22

23

24

25

26

27

28 - 17 -

DFEH v. LSAC, NO. CV 12-1830-EMC; STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA

 
 Case3:12-cv-01830-EMC Document47 Filed09/05/12 Page1 of 21

1 THOMAS E. PEREZ, Assistant Attorney General

EVE L. HILL, Senior Counselor to the Assistant Attorney General 2 GREGORY B. FRIEL, Acting Chief

3

ROBERTA KIRKENDALL, Special Legal Counsel KATHLEEN P. WOLFE, Special Litigation Counsel

4

NABINA SINHA, Trial Attorney MEGAN E. SCHULLER, Trial Attorney, CSBN 281468

5

U.S. Department of Justice 950 Pennsylvania Avenue, N.W. - NYA

6

Washington, D.C. 20530 Telephone: (202) 307-0663

7

Facsimile: (202) 305-9775 Nabina.Sinha@usdoj.gov

8

MELINDA HAAG, United States Attorney, CSBN 132612 SARA WINSLOW, Acting Chief, Civil Division, DCBN 457643

9 MELANIE L. PROCTOR, Assistant United States Attorney, CSBN 228971 450 Golden Gate Avenue, Box 36055

10

San Francisco, California 94102

Telephone: (415) 436-6730

11

Facsimile: (415) 436-6478

12

Melanie.Proctor@usdoj.gov ATTORNEYS FOR UNITED STATES, PLAINTIFF-INTERVENOR

13 IN THE UNITED STATES DISTRICT COURT

14

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION 15

16 THE DEPARTMENT OF FAIR EMPLOYMENT ) No. CV 12-1830-EMC

AND HOUSING,

)

17

Plaintiff,

)

)

18

v.

)

) NOTICE OF MOTION AND 19 LAW SCHOOL ADMISSION COUNCIL, INC., ) MOTION BY THE UNITED STATES

20 ET AL., Defendants.

) TO INTERVENE AND POINTS AND ) AUTHORITIES IN SUPPORT

21

)

JOHN DOE, JANE DOE, PETER ROE, 22 RAYMOND BANKS, KEVIN COLLINS,

) ) Hearing Date: October 12, 2012

23

RODNEY DECOMO-SCHMITT, ANDREW GROSSMAN, ELIZABETH HENNESSEY-

) Hearing Time: 1:30 p.m. )

24 SEVERSON, OTILIA IOAN, ALEX JOHNSON, )

NICHOLAS JONES, CAROLINE LEE,

)

25 ANDREW QUAN, STEPHEN SEMOS,

)

GAZELLE TALESHPOUR, KEVIN

)

26 VIELBAUM, AUSTIN WHITNEY, and all other )

27

similarly situated individuals, Real Parties in Interest.

) )

28
CASE NO. CV 12-1830-EMC NOTICE OF MOTION AND MOTION BY THE UNITED STATES TO INTERVENE AND POINTS AND AUTHORITIES IN SUPPORT

Case3:12-cv-01830-EMC Document47 Filed09/05/12 Page2 of 21

1

TABLE OF CONTENTS

2 MEMORANDUM OF POINTS AND AUTHORITIES 3 IN SUPPORT OF MOTION TO INTERVENE ............................................................................. 1

4 PROCEDURAL HISTORY ........................................................................................................... 2

5 STATEMENT OF FACTS ............................................................................................................. 3

6 STATUTORY AND REGULATORY BACKGROUND.............................................................. 5

7

A. Section 309 of the ADA...................................................................................................... 5

8

B. Section 302 of the ADA ...................................................................................................... 6

9

C. Section 503(b) of the ADA ................................................................................................. 7

10 STATEMENT OF ISSUES TO BE DECIDED ............................................................................. 8

11 ARGUMENT.................................................................................................................................. 8
12 A. The United States Is Entitled to Intervention as of Right ................................................... 8
13
1. The United States’ Application for Intervention Is Timely............................................ 9 14

2. The United States Has a Significant Protectable Interest in the Litigation .................. 10 15

16

3. The United States’ Interest Would Be Impaired if Intervention Is Not Permitted ....... 12

17

4. The United States’ Interest Is Inadequately Represented by Existing Parties .............. 13

18

B. The United States’ Application for Permissive Intervention Should Be Granted ............ 15

19 CONCLUSION............................................................................................................................. 17

20

21

22

23 24 25

26
27
28
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1

TABLE OF AUTHORITIES

2 FEDERAL CASES

3 Ceres Gulf v. Cooper, 957 F.2d 1199 (5th Cir. 1992) .................................................................. 11

4 Citizens for Balanced Use v. Mont. Wilderness Ass’n, 647 F.3d 893 (9th Cir. 2011).... 8, 9, 10, 12 5
Cnty. of Fresno v. Andrus, 622 F.2d 436 (9th Cir. 1980) ....................................................... 12, 14 6

7 Enyart v. Nat’l Conference of Bar Exam’rs, 630 F.3d 1153 (9th Cir.), cert. denied, 132 S. Ct. 366 (2011) ........................................................................................... 14
8

9 Greene v. United States, 996 F.2d 973 (9th Cir. 1993) ................................................................ 10

10 NAACP v. New York, 413 U.S. 345 (1973)..................................................................................... 9 11
Nw. Forest Res. Council v. Glickman, 82 F.3d 825 (9th Cir. 1996) ............................................... 9 12
13 Nuesse v. Camp, 385 F.2d 694 (D.C. Cir. 1967) .......................................................................... 12

14 Prete v. Bradbury, 438 F.3d 949 (9th Cir. 2006)............................................................................ 9 15
Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525 (9th Cir. 1983)................................................. 14 16
17 San Juan Cnty. v. United States, 503 F.3d 1163 (10th Cir. 2007) (Ebel, J., dissenting) .............. 14

18 Scotts Valley Band of Pomo Indians of the Sugar Bowl Rancheria v. 19 United States, 921 F.2d 924 (9th Cir. 1990) ....................................................................... 14, 15

20 Smith v. Pangilinan, 651 F.2d 1320 (9th Cir. 1981)..................................................................... 11
21 Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810 (9th Cir. 2001) ............................ 9, 10, 14
22
23 United States v. City of Los Angeles, 288 F.3d 391 (9th Cir. 2002) ....................................... 12, 13

24 United States v. Oregon, 913 F.2d 576 (9th Cir. 1990) .................................................................. 9
25 United States v. Oregon, 745 F.2d 550 (9th Cir. 1984) .................................................................. 9
26 FEDERAL STATUTES
27 20 U.S.C. § 1400............................................................................................................................. 6
28
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Case3:12-cv-01830-EMC Document47 Filed09/05/12 Page4 of 21
1 28 U.S.C. § 517............................................................................................................................. 14
2 29 U.S.C. § 794............................................................................................................................... 6
3 42 U.S.C. § 12101....................................................................................................... 1, 4, 5, 10, 11
4 5 42 U.S.C. § 12181....................................................................................................................... 1, 6
6 42 U.S.C. § 12182.................................................................................................................. passim 7
42 U.S.C. § 12186................................................................................................................. 4, 5, 12 8 9 42 U.S.C. § 12188.................................................................................................................. passim
10 42 U.S.C. § 12189................................................................................................................... 2, 3, 5
11 42 U.S.C. § 12203.................................................................................................................. passim
12 FEDERAL RULES
13 Fed. R. Civ. P. 24 ................................................................................................................... passim
14 15 FEDERAL REGULATIONS
16 28 C.F.R. § 36.104 .......................................................................................................................... 6
17 28 C.F.R. § 36.201 .......................................................................................................................... 6 18
28 C.F.R. § 36.202 .......................................................................................................................... 7 19
20 28 C.F.R. § 36.206 ...................................................................................................................... 5, 7
21 28 C.F.R. § 36.302 .......................................................................................................................... 2 22
28 C.F.R. § 36.309 .................................................................................................................. 2, 5, 6 23 24 28 C.F.R. pt. 36 ..................................................................................................................... 4, 5, 12
25 CALIFORNIA STATUTES
26 Civ. Code § 51 ................................................................................................................................ 1
27 Gov’t Code § 12948........................................................................................................................ 1
28
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1

PLEASE TAKE NOTICE that on October 12, 2012, at 1:30 p.m., or as soon thereafter

2 as counsel may be heard, the United States will present argument on its Motion to Intervene.

3

The United States seeks to intervene in this action as of right because it has a significant

4 protectable interest in enforcing the Americans with Disabilities Act (“ADA”), 42 U.S.C.

5 §§ 12101 et seq. Alternatively, the United States seeks permissive intervention because its

6 claims share common questions of law and fact with the main action and because the action

7 involves the interpretation of a statute the Attorney General is charged by Congress to implement

8 and enforce. 9

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO INTERVENE

10

The United States seeks to intervene in this action to remedy alleged violations of titles

11 III and V of the ADA, 42 U.S.C. §§ 12181 et seq. and 12203. Plaintiff, the Department of Fair

12 Employment and Housing (“DFEH”), brings this action to remedy systemic discriminatory

13 practices by the Law School Admission Council, Inc. (“LSAC”) in its administration of the Law

14 School Admission Test (“LSAT”). On behalf of a statewide class, DFEH alleges, inter alia, that

15 LSAC violated the ADA – as incorporated into the California Fair Employment & Housing Act

16 (“FEHA”), Cal. Gov’t Code § 12948, via the Unruh Civil Rights Act (“Unruh Act”), Cal. Civ.

17 Code § 51(f) – when it failed to provide required testing accommodations to individuals with

18 disabilities; when it subjected applicants who requested testing accommodations to excessive and

19 unduly burdensome documentation demands; and when it annotated, or “flagged,” such

20 individuals’ test results prior to sending their scores to member law schools.

21

The United States requests leave to intervene as of right, or, alternatively, to intervene by

22 permission, pursuant to Rule 24 of the Federal Rules of Civil Procedure. Intervention as of right

23 is warranted in this case because the United States has a significant protectable interest in the

24 enforcement of the ADA that is not adequately represented by the existing parties and that may

25 be impaired if intervention is denied. See Fed. R. Civ. P. 24(a)(2). Alternatively, the United

26 States moves for permissive intervention because its claims against LSAC have questions of law

27 and fact in common with the main action and because the main action involves the interpretation

28
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1 of a statute that the Attorney General is entrusted by Congress to administer. See Fed. R. Civ. P.

2 24(b)(1)-(2); see also 42 U.S.C. § 12188(b).

3

PROCEDURAL HISTORY

4

DFEH is a California state agency that has authority under FEHA to enforce the Unruh

5 Act, which incorporates the ADA. See DFEH Compl. ¶¶ 1, 16, Mar. 16, 2012 (attached to

6 Notice of Removal of Action Under 28 U.S.C. § 1441, at Ex. A, at 8-83, Apr. 12, 2012, ECF No.

7 1). Pursuant to that authority, DFEH filed a complaint against LSAC on March 16, 2012, in the

8 Alameda County Superior Court. See DFEH Compl. ¶ 43; Def.’s Mot. Dismiss 4, May 17, 2012,

9 ECF No. 13. The DFEH complaint states five causes of action, all of which are based on the

10 ADA – as incorporated into FEHA via the Unruh Act – and its implementing regulations. See

11 DFEH Compl. ¶¶ 187-216.

12

LSAC removed the case to federal court on April 12, 2012. Def.’s Mot. Dismiss 4.

13 LSAC filed a Motion to Dismiss on May 17, 2012. Id. LSAC’s arguments for dismissal are

14 based in part on the ADA and the permissible scope of its implementing regulations. Id. at 13-

15 20. In response to LSAC’s motion, the United States Department of Justice (“Department”)

16 submitted a statement of interest opposing LSAC’s ADA-based arguments. Statement of

17 Interest, June 27, 2012, ECF No. 29. As the agency charged by Congress to promulgate

18 regulations to implement title III of the ADA, the Department explained its position regarding

19 the proper application of the ADA and implementing regulations at issue in LSAC’s motion. Id.

20 A hearing on LSAC’s motion to dismiss was held on July 13, 2012. ECF No. 38.

21

On July 27, 2012, three of the real parties in interest named in the DFEH complaint –

22 Andrew Quan, Nicholas Jones, and Elizabeth Hennessey-Severson – filed a motion to intervene.

23 Quan et al. Mot. Intervene, ECF No. 42. Their proposed complaint in intervention states four

24 causes of action, two of which allege violations of the ADA and its implementing regulation, 42

25 U.S.C. §§ 12182, 12189; 28 C.F.R. §§ 36.302, 36.309. See Quan et al. Proposed Compl. ¶¶ 48-

26 72, July 27, 2012, ECF. No. 42-3. The hearing on the motion to intervene filed by Quan, Jones,

27 and Hennessey-Severson is scheduled for September 7, 2012.

28
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1

STATEMENT OF FACTS

2

The United States seeks to intervene in this action to allege that LSAC engaged in a

3 pattern or practice of discrimination against individuals with disabilities who took, or sought to

4 take, the LSAT with testing accommodations. Based on many of the same facts underlying the

5 DFEH complaint and the Quan et al. proposed complaint in intervention, the United States’

6 proposed complaint in intervention (attached as Exhibit A) alleges that LSAC has failed to

7 administer the LSAT in a manner accessible to prospective law students with disabilities, in

8 violation of 42 U.S.C. § 12189, by: (1) failing to provide testing accommodations so as to best

9 ensure that test results reflect aptitude rather than disability, (2) making unreasonable requests

10 for documentation in support of requests for testing accommodations, (3) failing to give

11 considerable weight to documentation of past testing accommodations received in similar testing

12 situations, (4) failing to respond in a timely manner to requests for testing accommodations, (5)

13 failing to provide appropriate auxiliary aids, and (6) “flagging” (or annotating) test scores

14 obtained with the testing accommodation of extended time. LSAC’s policies and practices also

15 fail to provide prospective law students with disabilities the full and equal enjoyment of its

16 goods, services, facilities, privileges, advantages, and accommodations, in violation of 42 U.S.C.

17 § 12182, by unnecessarily flagging test scores obtained with accommodations, and by identifying

18 and reporting otherwise confidential disability-related information through the flagging process.

19 LSAC’s flagging policy also interferes with individuals’ exercise of their rights under the ADA,

20 in violation of 42 U.S.C. § 12203.

21

As a result of its discriminatory policies and practices, LSAC has denied prospective law

22 students with disabilities a full and equal opportunity to demonstrate their knowledge and

23 aptitude and to fairly compete for educational and employment opportunities for which the

24 LSAT is a prerequisite. The United States’ proposed complaint in intervention recognizes that

25 Plaintiff DFEH has alleged a statewide class action and identified 17 real parties in interest

26 harmed by LSAC’s discriminatory policies and practices. The United States’ proposed

27 complaint in intervention specifically identifies eight victims of LSAC’s discriminatory policies

28 and practices: Andrew Quan, Nicholas Jones, and Elizabeth Hennessey-Severson are also named
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1 in the DFEH complaint and Quan et al. proposed complaint in intervention; in addition, the

2 United States alleges discrimination against Matthew Kaplan, Rachel Mech, Alexander Tucker,

3 Charles Whitman, and Lauren Wiehle. The United States further alleges that LSAC’s policies

4 and practices have likely resulted in discrimination against other individuals with disabilities,

5 and seeks relief under the ADA for all aggrieved individuals.

6

As credentialing examinations, such as the LSAT, increasingly become the gateway to

7 educational and employment opportunities, the ADA demands that each individual with a

8 disability has the opportunity to fairly compete for and pursue all such opportunities. The United

9 States’ participation in this action is critical to protecting the public interest in the important

10 issues raised in this case.

11

In enacting the ADA, Congress sought “to ensure that the Federal Government plays a

12 central role in enforcing the standards established [in the Act] on behalf of individuals with

13 disabilities . . . .” 42 U.S.C. § 12101(b)(3). To effectuate that purpose, Congress charged the

14 Department with primary responsibility for enforcing the ADA. See id. § 12188(b); 28 C.F.R.

15 pt. 36. That responsibility includes promulgating regulations to implement titles III and V of the

16 ADA. See 42 U.S.C. § 12186(b); 28 C.F.R. pt. 36. The Attorney General is also authorized to

17 investigate allegations of disability discrimination and to file suit where there is reasonable cause

18 to believe that an entity has engaged in a pattern or practice of discrimination or that an entity’s

19 discriminatory actions raise an issue of general public importance. See 42 U.S.C.

20 §§ 12188(b)(1)(A)(i), (b)(1)(B).

21

The United States’ enforcement authority under the ADA is directly implicated by the

22 claims alleged in this action, which reach core principles underlying the ADA. The ADA rests

23 on Congress’ determination that “the Nation’s proper goals” regarding individuals with

24 disabilities include “equality of opportunity” and “full participation” for such individuals, and

25 that “the continuing existence of unfair and unnecessary discrimination and prejudice denies

26 people with disabilities the opportunity to compete on an equal basis and to pursue those

27 opportunities for which our free society is justifiably famous.” 42 U.S.C. §§ 12101(a)(7)-(8).

28 The ADA’s requirement that testing entities administer examinations in an accessible manner is
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11 pivotal to furthering the ADA’s purpose “to provide a clear and comprehensive national mandate

22 for the elimination of discrimination against individuals with disabilities.” Id. § 12101(b)(1).

3 3

STATUTORY AND REGULATORY BACKGROUND

4 4

Title III of the ADA prohibits discrimination on the basis of disability by public

55 accommodations and by entities that offer examinations or courses related to applications,

66 licensing, certification, or credentialing for secondary or postsecondary education, professional,

77 or trade purposes. See 42 U.S.C. §§ 12182, 12189; 28 C.F.R. pt. 36. Title V of the ADA

88 prohibits any entity from coercing, intimidating, threatening, or interfering with an individual’s

99 exercise or enjoyment of a right granted by the ADA. 42 U.S.C. § 12203; 28 C.F.R. § 36.206(b).

1100

A. Section 309 of the ADA

1111

Section 309 of the ADA provides:

1122

Any person that offers examinations or courses related to applications, licensing,

1133

certification, or credentialing for secondary or postsecondary education,

professional, or trade purposes shall offer such examinations or courses in a place

1144

and manner accessible to persons with disabilities or offer alternative accessible

1155

arrangements for such individuals.

1166 42 U.S.C. § 12189. As required by statute, 42 U.S.C. § 12186(b), in 1991, following notice and

1177 comment rulemaking, the Department issued regulations implementing title III, including 28

1188 C.F.R. § 36.309 to implement Section 309 of the statute. That regulation provides that, to ensure

1199 accessibility, entities offering credentialing examinations must ensure that the examination is

2200 administered so as to “best ensure” that the examination results accurately reflect an individual’s

2211 aptitude or achievement rather than the individual’s disability. See 28 C.F.R. § 36.309(b)(1)(i).

2222 The testing entity must provide any modifications, accommodations, or auxiliary aids or services

2233 (commonly referred to as “testing accommodations”) needed to meet the “best ensure” standard.

2244 See id. §§ 36.309(b)(1)-(3).

2255

To ensure accessibility for test takers with disabilities, the Department, in 2010 amended

2266 Section 309’s implementing regulation to add provisions that codify longstanding guidance on

2277 the processing of requests for testing accommodations and the appropriate bounds of

2288 documentation required to support such requests. See 28 C.F.R. §§ 36.309(b)(1)(iv)-(vi). These
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1 added provisions, which were adopted through notice-and-comment rulemaking, make clear that

2 testing entities must respond in a “timely manner” to requests for testing accommodations and

3 seek only reasonable documentation limited to the need for the accommodation requested. See

4 id. §§ 36.309(b)(1)(iv), (vi). Testing entities must also give considerable weight to

5 documentation of past testing accommodations received in similar testing situations, as well as to 6 testing accommodations provided in response to an Individualized Education Program (IEP)1 or 7 Section 504 Plan,2 when considering an applicant’s request for testing accommodations. See id.

8 § 36.309(b)(1)(v).

9 B. Section 302 of the ADA
10

11

In addition to the specific requirements for testing, Section 302 of the ADA prohibits

12 disability-based discrimination by all private entities that own, operate, lease (or lease to) places

13 of public accommodation. 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a). Title III’s general rule

14 provides:

15

No individual shall be discriminated against on the basis of disability in the full

16

and equal enjoyment of the goods, services, facilities, privileges, advantages, or

accommodations of any place of public accommodation by any person who owns,

17

leases (or leases to), or operates a place of public accommodation.

18 42 U.S.C. § 12182(a). Title III defines a “place of public accommodation” as “a facility operated

19 by a private entity whose operations affect commerce and fall within at least one” of twelve

20 categories, including convention centers, lecture halls, and other places of gathering, and

21 secondary, undergraduate, or postgraduate private schools or other places of education. Id.

22 § 12181(7); 28 C.F.R. § 36.104 (definitions).

23

Title III’s general rule prohibits public accommodations from affording an individual or

24 class of individuals, on the basis of disability, an unequal opportunity to participate in or benefit

25 from a good, service, facility, privilege, advantage, or accommodation. 42 U.S.C.

26 1 An IEP is an agreement describing the special education and related aids and services provided under
27 the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. 2 A Section 504 Plan is an agreement describing special or regular education and related aids and services
28 provided pursuant to section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794.
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1 § 12182(b)(1)(A)(ii); 28 C.F.R. § 36.202(b). It is also discriminatory for public accommodations

2 to provide such individuals with a good, service, facility, privilege, advantage, or

3 accommodation that is different or separate from that provided to other individuals, unless such

4 action is necessary to provide the individual or class of individuals with a good, service, facility,

5 privilege, advantage, or accommodation that is as effective as that provided to others. 42 U.S.C.

6 § 12182(b)(1)(A)(iii); 28 C.F.R. § 36.202(c). Public accommodations are also prohibited from

7 utilizing standards or criteria or methods of administration that have the effect of discriminating

8 on the basis of disability. 42 U.S.C. § 12182(b)(1)(D); 28 C.F.R. § 36.202(c). Public

9 accommodations must also provide reasonable modifications to policies, practices and

10 procedures when needed to provide equal access to people with disabilities, 42 U.S.C.

11 § 12182(b)(2)(A)(ii), and to provide auxiliary aids and services when needed to ensure equally

12 effective communication with people with disabilities. 42 U.S.C. § 12182(b)(2)(A)(iii). These

13 general prohibitions, in concert with the ADA’s specific testing discrimination prohibitions,

14 reflect congressional intent to provide broad protection against disability-based discrimination,

15 toward eliminating unnecessary barriers to full and equal opportunity for all persons with

16 disabilities.

17

C. Section 503(b) of the ADA

18

Section 503(b) of the ADA prohibits interference with an individual’s exercise or

19 enjoyment of a right granted by the ADA:

20

It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual

21

in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other

22

individual in the exercise or enjoyment of, any right granted or protected by this

Act.

23

42 U.S.C. § 12203(b); see also 28 C.F.R. § 36.206(b). The implementing regulation for Section 24

503(b) states that all public and private entities are subject to this anti-interference provision. 25

See 28 C.F.R. § 36.206(b) (“No private or public entity shall coerce, intimidate, threaten, or 26

interfere with any individual in the exercise or enjoyment of . . . any right granted or protected by 27

the Act or this part.”). 28

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1

STATEMENT OF ISSUES TO BE DECIDED

2

1. Whether the United States may intervene in this action as of right.

3

a. Is the United States’ application timely?

4

b. Does the United States have a protectable interest in the enforcement of

5

the ADA?

6

c. Is the United States so situated that disposing of the action may as a

practical matter impair or impede the United States’ ability to protect its

7

interest in the enforcement of the ADA?

8

d. Do the existing parties inadequately represent the United States’ interest in

the enforcement of the ADA? 9

10

2. Whether the United States may intervene by permission.

11

a. Is the United States’ application timely?

12

b. Do the United States’ claims share a common question of law or fact with

13

the main action?

14

c. Are any of the parties’ claims or defenses based on a statute administered

by the Attorney General or a regulation issued under such a statute?

15

d. Will delay and prejudice to the parties’ rights be avoided if intervention is

16

permitted?

17

ARGUMENT

18

A. The United States Is Entitled to Intervention as of Right

19

Federal Rule of Civil Procedure 24(a) provides that upon timely application anyone shall

20 be permitted to intervene in an action who:

21

claims an interest relating to the property or transaction that is the subject of the

action, and is so situated that disposing of the action may as a practical matter

22

impair or impede the movant’s ability to protect its interest, unless existing parties

adequately represent that interest. 23

24 Fed. R. Civ. P. 24(a)(2). An applicant for intervention as of right must prove four elements: “(1)

25 the intervention application is timely; (2) the applicant has a significant protectable interest

26 relating to the property or transaction that is the subject of the action; (3) the disposition of the

27 action may, as a practical matter, impair or impede the applicant’s ability to protect its interest;

28 and (4) the existing parties may not adequately represent the applicant’s interest. Citizens for
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1

1 Balanced Use v. Mont. Wilderness Ass’n, 647 F.3d 893, 897 (9th Cir. 2011) (citing Prete v.

2

2 Bradbury, 438 F.3d 949, 954 (9th Cir. 2006) (internal quotation marks and citation omitted)); see

3

3 also Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 817 (9th Cir. 2001). As discussed

4

4 herein, the United States meets the prerequisites for intervention as of right.

5

5

1. The United States’ Application for Intervention Is Timely

6

6

Timeliness is a threshold requirement for intervention as of right and so should be

7

7 considered before all other requirements. See United States v. Oregon, 913 F.2d 576, 588 (9th

8

8 Cir. 1990). When deciding whether an applicant’s motion is timely, the Ninth Circuit considers

9

9 three factors: (1) the stage of the proceeding; (2) whether the parties would be prejudiced; and

10

10 (3) the reason for the delay, if any, in moving to intervene. See id.; Nw. Forest Res. Council v.

11

11 Glickman, 82 F.3d 825, 836-37 (9th Cir. 1996). Delay will weigh against intervention, but the

12

12 mere lapse of time alone does not necessarily preclude intervention. See United States v.

13

13 Oregon, 745 F.2d 550, 552 (9th Cir. 1984). Instead, timeliness should be determined by the

14

14 totality of the circumstances. NAACP v. New York, 413 U.S. 345, 366 (1973).

15

15

Applying these principles in this case, the United States’ motion to intervene is timely

16

16 because the proceedings are at an early stage, intervention now would not cause prejudice to the

17

17 original parties, and there has been no delay by the United States in moving to intervene. DFEH

18

18 filed this suit in March 2012, and the United States learned of the litigation when LSAC removed

19

19 the action to federal court in April 2012. Consistent with the Department’s administrative

20

20 policies, the Department undertook a deliberative evaluation of whether intervention by the

21

21 United States would be appropriate in this case. In the interim, LSAC filed a motion to dismiss,

22

22 and the United States filed a statement of interest opposing that motion. Also in the interim, real

23

23 parties in interest Quan, Jones, and Hennessey-Severson, filed a motion to intervene. LSAC’s

24

24 motion to dismiss and the motion to intervene by Quan, Jones, and Hennessey-Severson are

25

25 pending. Discovery has not yet begun. And while the United States’ proposed complaint in

26

26 intervention identifies additional individuals adversely affected by LSAC’s actions, the United

27

27 States’ claims turn on the same policies, practices, and procedures at issue in the pending action.

28

28 As such, the United States’ intervention would be neither unduly burdensome nor time-

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1 consuming and would not prejudice the existing parties, or the potential intervenors Quan, Jones,

2 and Hennessey-Severson, because there will be no need to reopen or re-litigate any prior

3 proceedings between the parties. In light of these facts, the United States’ application for

4 intervention as of right should be deemed timely. See Citizens for Balanced Use, 647 F.3d at

5 897 (noting that traditional features of a timely application include being made at an early stage

6 and not causing prejudice or delay).

2. The United States Has a Significant Protectable Interest

7

in the Litigation

8

To warrant intervention as of right, an applicant must have a significant protectable

9 interest relating to the property or transaction that is the subject of the action. See Citizens for

10 Balanced Use, 647 F.3d at 897. To demonstrate such an interest, an applicant needs to establish

11 that its interest is protectable under some law and that there is a relationship between the legally

12 protected interest and the claims at issue. Id. at 897. “Whether an applicant for intervention

13 demonstrates sufficient interest in an action is a practical, threshold inquiry.” Sw. Ctr. for

14 Biological Diversity, 268 F.3d at 818 (quoting Greene v. United States, 996 F.2d 973, 976 (9th

15 Cir. 1993) (citation omitted).

16

The United States’ interest in the pending litigation supports intervention as of right. As

17 the federal agency charged with enforcing the ADA, the Department has a significant protectable

18 interest in the subject matter of the pending litigation. Underlying enactment of the ADA was

19 Congress’ intent to “provide a clear and comprehensive national mandate for the elimination of

20 discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). Congress sought

21 “clear, strong, consistent, enforceable standards addressing discrimination against individuals

22 with disabilities,” and explicitly stated that one of the purposes of the ADA was “to ensure that

23 the Federal Government plays a central role in enforcing the standards established [in the Act] on

24 behalf of individuals with disabilities . . . .” Id. §§ 12101(b)(2)-(3). The United States’

25 prominent enforcement role is reflected in the statutory authorization given the Attorney General

26 to commence a legal action when discrimination prohibited by the ADA takes place. Id.

27 § 12188. And only the Attorney General is authorized under title III to seek compensatory

28
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1 damages for aggrieved individuals and civil penalties where appropriate to vindicate the public

2 interest. Id. § 12188.

3

This case directly implicates the United States’ interest in enforcing titles III and V of the

4 ADA to ensure the “clear, strong, consistent, enforceable standards” envisioned by Congress.

5 See 42 U.S.C. § 12101(b)(2). Currently, virtually every person who wants to attend a law school

6 in America must take the LSAT, and, as a practical matter, an applicant’s LSAT score may be

7 dispositive as to whether and where they are admitted, what scholarships they are eligible for,

8 and even what summer jobs or internships they can obtain. LSAC’s pattern and practice of

9 discriminating against individuals with disabilities thus implicates guaranteed rights to equal

10 educational and employment opportunities that are at the heart of the ADA’s protections. And

11 while Plaintiff DFEH represents a proposed statewide class, LSAC’s policies and practices are

12 applicable nationwide and the United States has a significant protectable interest in ensuring that

13 LSAC brings its policies and procedures into compliance with the ADA so that no individual

14 taking the LSAT is subject to discrimination on the basis of disability.

15

Furthermore, LSAC has already challenged, in its pending motion to dismiss, the validity

16 and scope of the ADA implementing regulations promulgated by the Department. The United

17 States has a significant protectable interest in defending the Department’s regulations from such

18 challenges and in ensuring that the Department’s interpretation of the statute and regulation are

19 accurately presented to the Court in the course of this litigation. Accordingly, the United States’

20 significant protectable interest in ensuring that this case results in clear, consistent, enforceable

21 standards, both substantive and remedial, supports intervention as of right. See Smith v.

22 Pangilinan, 651 F.2d 1320, 1324 (9th Cir. 1981) (allowing intervention as of right by the

23 Attorney General in connection with enforcement duties related to the Certificate of Identity Act

24 of 1978 and explaining that “[c]learly, the Attorney General, who is charged with administration

25 and enforcement of the laws relating to immigration and naturalization, has an interest in a case

26 in which people seek to have it determined that they are persons who will be entitled to become

27 United States citizens”); cf. Ceres Gulf v. Cooper, 957 F.2d 1199, 1203-04 (5th Cir. 1992)

28 (holding the interest of the director of Office Workers’ Compensation Programs in the
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11 “consistent application of . . . a statutory scheme he is charged with administering” was sufficient

22 to support intervention as of right); Nuesse v. Camp, 385 F.2d 694, 700-01 (D.C. Cir. 1967)

33 (finding that a state government official charged with administering a banking law had an

44 interest in advocating a particular construction of the law that was sufficient to support

55 intervention as of right).

6 6

Additionally, because the alternative to the United States’ intervention in DFEH’s lawsuit

77 is a separate action including the United States’ ADA claims, the efficiency goals implicit in

88 Rule 24(a) are furthered if intervention is permitted here. See Cnty. of Fresno v. Andrus, 622

99 F.2d 436, 438 (9th Cir. 1980) (the significant protectable interest requirement “is primarily a

1100 practical guide to disposing of lawsuits by involving as many apparently concerned persons as is

1111 compatible with efficiency and due process”); United States v. City of Los Angeles, 288 F.3d

1122 391, 397-98 (9th Cir. 2002) (“A liberal policy in favor of intervention serves both efficient

1133 resolution of issues and broadened access to the courts.”) (internal quotation marks and citation

1144 omitted). As noted previously, the Department wrote the ADA regulations at issue in this case,

1155 and plays the primary role in coordinating the implementation and enforcement of the statute.

1166 See 42 U.S.C. § 12186; 28 C.F.R. pt. 36. Through its regulatory and enforcement work, the

1177 Department has accumulated significant experience in guiding covered entities in amending

1188 policies, practices, and procedures to conform to the mandates of titles III and V. The

1199 Department’s unique experience and familiarity with the statute and regulations at issue will

2200 facilitate the efficient litigation of this dispute and promote a resolution which provides the clear,

2211 consistent, enforceable standards contemplated by Congress.

2222

3. The United States’ Interest Would Be Impaired if Intervention

2233

Is Not Permitted

2244

Under the third intervention factor, an applicant for intervention as of right must

2255 demonstrate that disposition of the action may practically impair an applicant’s ability to protect

2266 its interest in the subject matter of the litigation. See Citizens for Balanced Use, 647 F.3d at 900

2277 (stressing that “intervention of right does not require an absolute certainty that a party’s interests

2288 will be impaired”).
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1

Federal decisions interpreting and applying the provisions of the ADA are an important

2 enforcement tool. This case, in particular, is among the first to involve claims based on the

3 Department’s 2010 revised regulation on examinations and courses, as well as challenges to the

4 validity of those revisions. This Court will also address Plaintiff’s claim that LSAC’s flagging

5 policy violates the ADA – an issue in which the United States has expressed a substantial interest

6 and one that few courts have had the opportunity to address. As such, an unfavorable disposition

7 here may, as a practical matter, impair the United States’ ability to enforce the ADA’s provision

8 requiring that examinations be administered in an accessible manner and that public

9 accommodations provide full and equal enjoyment of all goods, services, privileges, advantages,

10 and accommodations without interference, coercion or intimidation. And the outcome of this

11 case, including the potential for appeals by existing parties, implicates stare decisis concerns that

12 warrant the United States’ intervention. See City of Los Angeles, 288 F.3d at 400 (holding that

13 amicus status may be insufficient to protect the rights of an applicant for intervention “because

14 such status does not allow [the applicant] to raise issues or arguments formally and gives it no

15 right of appeal”). Additionally, title III of the ADA authorizes only the Attorney General to seek

16 damages, where appropriate, for individuals aggrieved by LSAC’s discriminatory actions and to

17 request that the Court assess a civil penalty against LSAC; private plaintiffs have no statutory

18 right to seek either compensatory damages or civil penalties under title III or Section 503(b) of

19 the ADA. 42 U.S.C. §§ 12188(b), 12203(c). The United States has a significant protectable

20 interest in pursuing in appropriate cases, such as this one, all available relief against

21 discriminating private entities. Accordingly, because a holding in favor of LSAC may

22 negatively affect the United States’ title III and V enforcement efforts, both in this case and

23 others, the third factor for intervention as of right is met.

24

4. The United States’ Interest Is Inadequately Represented

25

by Existing Parties

26

The fourth and final element to justify intervention of right is inadequate representation

27 of the United States’ interest by existing parties to the litigation. In determining adequacy of

28 representation, courts consider whether the interest of a present party is such that it will
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1 undoubtedly make all the intervenor’s arguments; whether the present party is capable and

2 willing to make such arguments; and whether the intervenor would offer any necessary elements

3 to the proceedings that other parties would neglect. Sagebrush Rebellion, Inc. v. Watt, 713 F.2d

4 525, 528 (9th Cir. 1983); County of Fresno, 622 F.2d at 438-39.

5

The existing parties to this litigation, and potential intervenors Quan, Jones, and

6 Hennessey-Severson, cannot adequately represent the United States’ interests. Only the

7 Attorney General can attend to the interests of the United States. 28 U.S.C. § 517 (“The

8 Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney

9 General to any State or district in the United States to attend to the interests of the United States

10 in a suit pending in a court of the United States, or in a court of a State, or to attend to any other

11 interest of the United States.”). As the Ninth Circuit recognized in a case allowing private

12 parties to intervene alongside government agency defendants, “[t]he interests of government and

13 the private sector may diverge.” Sw. Ctr. for Biological Diversity, 268 F.3d at 823; cf. Scotts

14 Valley Band of Pomo Indians of the Sugar Bowl Rancharia v. United States, 921 F.2d 924, 926-

15 27 (9th Cir. 1990) (recognizing that city government’s interest could not be adequately

16 represented by another entity); San Juan Cnty. v. United States, 503 F.3d 1163, 1228 (10th Cir.

17 2007) (Ebel, J., dissenting) (distinguishing a local county’s narrow interest from the United

18 States’ broad interests).

19

In this case, the United States’ interest in enforcing the ADA to advance the public

20 interest in ending disability discrimination with regard to examinations is inadequately

21 represented by the existing parties. See Enyart v. Nat’l Conference of Bar Exam’rs, 630 F.3d

22 1153, 1167 (9th Cir.) (discussing the public’s interest in compliance with the ADA), cert. denied,

23 132 S. Ct. 366 (2011). Because the United States represents the public interest on a national

24 scale, its interests differ from those represented by DFEH, whose jurisdiction is confined to

25 California, and, as such, seeks relief only for victims within the state. Similarly, the United

26 States’ interests also differ from those represented by potential intervenors Quan, Jones, and

27 Hennessey-Severson, whose case will be directed primarily at winning individual remedies.

28 Significantly, only the Attorney General has authority under title III of the ADA to seek
- 14 -

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Case3:12-cv-01830-EMC Document47 Filed09/05/12 Page19 of 21

11 compensatory damages for individuals harmed by LSAC’s failure to administer the LSAT in an

22 accessible manner and a civil penalty to vindicate the public interest in eliminating disability

33 discrimination. 42 U.S.C. § 12188(b). Accordingly, DFEH and potential intervenors Quan,

44 Jones, and Hennessey-Severson, cannot and will not make all the United States’ arguments. The

55 United States’ interest in a clear and consistent interpretation and application of relevant titles III

66 and V provisions cannot be adequately represented by the parties in this case. Cf. Scotts Valley

77 Band of Pomo Indians of the Sugar Bowl Rancharia, 921 F.2d at 926-27.

8 8

Furthermore, consistent with its “broader” interest in enforcing titles III and V on behalf

99 of the public nationwide, the Department brings to this action the Civil Rights Division’s

1100 extensive experience in investigating and litigating discrimination complaints relating to the

1111 administration of examinations. And as the entity charged with formulating and issuing

1122 regulations under titles III and V, the Department brings a unique expertise and familiarity with

1133 key issues in this case. Such expertise will be necessary to litigate this case to advance the

1144 United States’ interests on behalf of the public nationwide. These facts demonstrate that the

1155 interests of DFEH and potential intervenors Quan, Jones, and Hennessey-Severson, may not

1166 sufficiently align with those of the United States, and support a finding that Plaintiff’s and

1177 potential Plaintiff-Intervenors’ representation may be inadequate to protect the United States’

1188 interests.

1199

Because the United States can prove each of the requisite elements for Rule 24(a)(2)

2200 intervention, we respectfully request that this Court grant the United States’ application for leave

2211 to intervene as of right.

2222

B. The United States’ Application for Permissive Intervention

2233

Should Be Granted

2244

If the United States is not entitled to intervene as of right, it should be allowed to

2255 intervene by permission because the Department’s involvement in this case would fall

2266 squarely within that contemplated by the language of Rule 24(b):

2277

2288
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Case3:12-cv-01830-EMC Document47 Filed09/05/12 Page20 of 21

1

(2) By a Government Officer or Agency. On timely motion, the court may permit

a federal or state governmental officer or agency to intervene if a party’s claim or

2

defense is based on:

(A) a statute . . . administered by the officer or agency; or

3

(B) any regulation . . . issued or made under the statute or executive

4

order.

Fed. R. Civ. P. 24(b)(2). 5

The Department has the central role in administering and enforcing titles III and V of the 6

ADA. The Department’s extensive regulatory work further evidences the United States’ vital 7

interest in enforcing the statutes and regulations at issue on behalf of the public interest in ending 8

illegal disability discrimination. As discussed above in conjunction with the Rule 24(a) analysis, 9

the United States’ application for intervention is timely. 10

Furthermore, the United States’ claims against LSAC share common questions of law 11

and fact with those in the pending litigation. Rule 24(b) states, in part: 12

13

(1) In General. On timely motion, the court may permit anyone to intervene who:

. . .

14

(B) has a claim or defense that shares with the main action a common

question of law or fact. 15
Fed. R. Civ. P. 24(b)(1).

16 Like DFEH and potential intervenors Quan, Jones, and Hennessey-Severson, the

17 United States would assert, as a common question of law, that LSAC’s conduct violates

18 title III of the ADA and the relevant implementing regulations. As an additional common

19 question of law, both DFEH and the United States assert that LSAC’s conduct violates

20 title V of the ADA.

21 For these reasons, and those addressed in our discussion of intervention as of

22 right, the United States respectfully requests that this Court grant the motion to intervene

23 by permission.

24

25

26

27

28
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1 1

CONCLUSION

2 2

For the reasons set forth above, this Court should grant the United States’ motion to

33 intervene as of right. In the alternative, the Court should grant the United States’ motion for

44 permissive intervention.

5 5

66 DATED: September 5, 2012

Respectfully submitted,

7 7

88 MELINDA HAAG, CSBN 132612 United States Attorney
99 Northern District of California

THOMAS E. PEREZ Assistant Attorney General Civil Rights Division

1100 SARA WINSLOW, DCBN 457643

1111

Assistant United States Attorney Acting Chief, Civil Division

1122

1133

1144

1155

1166

1177

EVE L. HILL Senior Counselor to the Assistant Attorney General Civil Rights Division
GREGORY B. FRIEL Acting Chief ROBERTA KIRKENDALL Special Legal Counsel KATHLEEN P. WOLFE Special Litigation Counsel Disability Rights Section Civil Rights Division

1188

1199

/s/ Melanie L. Proctor MELANIE L. PROCTOR, CSBN 228971

/s/ Nabina Sinha NABINA SINHA

2200 Assistant United States Attorney 450 Golden Gate Avenue, Box 36055
2211 San Francisco, California 94102

Trial Attorney MEGAN E. SCHULLER, CSBN 281468 Trial Attorney

2222

Telephone: (415) 436-6730 Facsimile: (415) 436-6478

Disability Rights Section Civil Rights Division

2233 Melanie.Proctor@usdoj.gov 2244 2255

U.S. Department of Justice 950 Pennsylvania Avenue, N.W. - NYA Washington, D.C. 20530 Telephone: (202) 307-0663 Facsimile: (202) 305-9775

2266

Nabina.Sinha@usdoj.gov

2277

2288

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 Case3:12-cv-01830-EMC Document49 Filed09/18/12 Page1 of 38

United States District Court For the Northern District of California

1

2

3

4

5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7

8 DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING,
9
Plaintiff, 10
v. 11
LAW SCHOOL ADMISSION COUNCIL 12 INC, et al.,

No. C-12-1830 EMC
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS
(Docket No. 13)

13

Defendants.

___________________________________/

14

15

I. INTRODUCTION

16

The California Department of Fair Employment and Housing (DFEH) filed suit against the

17 Law School Admission Council, Inc. (LSAC) seeking damages and injunctive relief over alleged

18 failures of the Defendant to provide disability related accommodations to test-takers of the Law

19 School Admission Test (LSAT) in violation of the Americans with Disabilities Act of 1990, 42

20 U.S.C. §§ 12101, et. seq. DFEH’s Complaint (Docket No. 1, Ex. A) states that it brought this action

21 both on behalf of seventeen named individuals and as a class action. Compl. ¶ 7-8. LSAC thereafter

22 filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) asking this Court to

23 dismiss Plaintiff’s complaint in its entirety, or, alternatively, in substantial part. LSAC’s arguments

24 in support of its motion fall within five broad categories: (1) that DFEH lacks jurisdiction over the

25 subject matter of this litigation, (2) that the claims asserted in DFEH’s complaint fail to state a claim

26 under Fed. R. Civ. P. 12(b)(6), (3) that certain requested money damages are unavailable as a matter

27 of state law, (4) that certain class-based claims cannot be pursued as a matter of law because DFEH

28 failed to follow proper administrative procedure at earlier stages in this litigation, and (5) that Doe

United States District Court For the Northern District of California

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1 defendants must be dismissed from the complaint because DFEH fails to plead any facts regarding

2 their alleged actions or inactions. Having considered the parties’ submissions and oral argument, the

3 Court GRANTS IN PART and DENIES IN PART Defendant’s motion for the reasons set forth

4 below.

5

II. FACTUAL & PROCEDURAL BACKGROUND

6

LSAC is a non-profit membership organization based in Pennsylvania that, among other

7 things, administers the Law School Admissions Test (LSAT) to prospective law students. The

8 LSAT is a standardized test that evaluates potential law school applicants on their acquired reading

9 and verbal reasoning skills. Compl. ¶ 46. The test consists of a battery of five sections labeled as

10 either reading comprehension, analytical reasoning, or logical reasoning. Id. ¶ 49. Each of these

11 five sections consists of multiple-choice type questions, and test-takers are allotted thirty-five

12 minutes to complete each section. Id. ¶ 47. The test also includes an unscored thirty-five minute

13 written component, which LSAC forwards to law schools along with a test-taker’s scores. Id.

14

DFEH’s Complaint focuses on LSAC’s practices in providing testing accommodations to

15 test-takers who claim to be disabled. LSAC claims to conscientiously evaluate requests for testing

16 accommodation to ensure that “individuals with bona fide disabilities receive accommodations, and

17 that those without disabilities do not receive accommodations” which could provide them with an

18 unfair advantage on the exam. Def’s Motion (Docket No. 13) at 2 (quoting Powell v. Nat’l Bd. of

19 Med. Examiners, 364 F.3d 79, 88-89 (2d Cir. 2004)).

20

DFEH claims that LSAC’s accommodations evaluation procedures include, among other

21 things, requirements that testing candidates requesting extra time or other accommodations for a

22 “cognitive or psychological impairment” submit to psychoeducational and neuropsychological

23 testing, and provide a “full diagnostic report” that includes records of the candidates’ aptitude and

24 achievement testing. Compl. ¶ 54. DFEH also claims that LSAC requires applicants to disclose in

25 an accommodations request whether or not they took prescribed medications during medical

26 evaluations of their condition, and if not, to explain their failure to do so. Id. ¶ 55. According to

27 LSAC, “more than a thousand individuals request disability-based accommodations on the LSAT

28

2

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1 every year, and LSAC grants accommodations to most, but not all, of those individuals.” Def’s

2 Motion (Docket No. 13) at 2.

3

DFEH also alleges that LSAC maintains a policy of “flagging” the LSAT exam scores of

4 individuals who receive disability accommodations for extra time. Compl. ¶ 56. LSAC includes a

5 notation on an accommodated individuals’ score report that the score was achieved under non-

6 standard time constraints, and excludes extended-time scores when calculating its LSAT percentile

7 rankings. Id. ¶¶ 56-57. As a consequence, the fact that an individual received extended-time on the

8 LSAT is disclosed to all law schools receiving that individual’s score report. See Id. ¶ 56.

9 However, LSAC does advise schools that extended-time score reports “should be interpreted with

10 great sensitivity and flexibility.” Id. ¶ 56.

11

In 2010, DFEH received multiple written “verified complaints of discrimination” from

12 individuals alleging that LSAC had denied them reasonable accommodations for their disabilities

13 when taking the LSAT. Id. ¶ 19-20. These written complaints alleged that LSAC had unlawfully

14 denied them “full and equal access to the LSAT” in violation of the California Fair Housing and

15 Employment Act (FEHA) (Cal. Gov. Code §§ 12900, et. seq.) and the Unruh Civil Rights Act (Cal.

16 Civ. Code §§ 51, et. seq.). Compl. ¶¶ 19-20. By virtue of its incorporation into the Unruh Act, a

17 violation of the Americans with Disabilities Act of 1990 (42 U.S.C. §§ 12101, et. seq.) also

18 constitutes a violation of the Unruh Act. Compl. ¶ 16; see also Unruh Act, Cal. Civ. Code § 51(f).

19

Upon receiving these complaints, DFEH began an investigation to ascertain whether LSAC’s

20 alleged denial of full and equal access affected a larger class of test-takers. Id. ¶ 21. On July 22,

21 2010, DFEH issued to LSAC a document titled “Notice of Class Action Complaint and Director’s

22 Complaint.” Id. ¶ 22.; See Compl., Ex. 3. The notice defined the potentially affected class as “all

23 disabled individuals in the State of California who have or will request an accommodation for the

24 Law School Admission Test (LSAT), administered by the LSAC, and who have or will be

25 unlawfully denied such request from January 19, 2009 to the conclusion of the Department’s

26 investigation of this complaint.” Id. During its investigation, DFEH sought administrative

27 discovery to determine the identities of other individuals in California who had been denied

28 reasonable accommodations by LSAC during the period mentioned in the notice. Id. ¶ 23. Over

3

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1 LSAC’s objections, DFEH obtained an order from a California Superior Court directing LSAC to

2 respond to DFEH’s discovery requests. Id.

3

As a result of its investigation and discovery, DFEH filed an administrative accusation

4 before the California Fair Employment and Housing Commission on February 6, 2012, which LSAC

5 elected to have transferred to the California Superior Court in Alameda County under Cal. Gov.

6 Code § 12965(c)(1). Compl. ¶¶ 40-42. The administrative accusation, brought on behalf of

7 seventeen individuals as a group, and as a class action on behalf of “all disabled individuals in the

8 State of California who requested a reasonable accommodation for the Law School Admission Test

9 (LSAT) from January 19, 2009 to February 6, 2012,” charged LSAC with violations of the Unruh

10 Act. Id. ¶¶ 7-8, 40. LSAC thereafter removed the matter from the Alameda County Superior Court

11 to this Court on April 12, 2012, pursuant to 28 U.S.C. § 1441 on the basis of federal question

12 jurisdiction and diversity jurisdiction.

13

DFEH’s state court complaint advances the following five causes of action against LSAC for

14 violations of the Americans with Disabilities Act:

15

(1) LSAC unlawfully considered mitigation measures in determining whether an

16

impairment substantially limits a major life activity by requiring applicants for

17

reasonable accommodations to take their prescribed medications while being

18

evaluated, or to provide an explanation for a failure to do so, in violation of 42 U.S.C.

19

§ 12102(4)(E)(1)(i)(I);

20

(2) LSAC’s policy of flagging score reports of individuals receiving additional

21

time failed to ensure that the LSAT measured aptitude, rather than disability, in

22

violation of 42 U.S.C. § 12189 and 28 C.F.R. § 36.309;

23

(3) LSAC’s flagging policy unlawfully coerced and discouraged potential

24

applicants from seeking reasonable accommodations or punished those who received

25

accommodations, in violation of 42 U.S.C. § 12203;

26

(4) LSAC breached its duty to make the LSAT accessible to disabled individuals

27

by requiring excessive documentation and by denying reasonable accommodations, in

28

violation of 42 U.S.C. § 12189 and 28 C.F.R. § 36.309(b)(1)(iv); and

4

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1

(5) LSAC’s policy of requiring excessive documentation to support

2

accommodation requests coerced and discouraged potential applicants from seeking

3

reasonable accommodations, in violation of 42 U.S.C. § 12203.

4 Compl. ¶¶ 187-216. DFEH brought the first three causes of action on behalf of all class members,

5 while the fourth and fifth causes of actions were brought only on behalf of the seventeen named

6 plaintiffs. Id.

7

LSAC filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). LSAC

8 asserts five arguments for dismissal: (1) that DFEH lacks jurisdiction over the subject matter of this

9 litigation, (2) that the claims asserted in DFEH’s complaint fail to state a claim under Fed. R. Civ. P.

10 12(b)(6), (3) that certain requested money damages are unavailable as a matter of state law, (4) that

11 certain class-based claims cannot be pursued as a matter of law because DFEH failed to follow

12 proper administrative procedure at earlier stages in this litigation, and (5) that Doe defendants must

13 be dismissed from the complaint because DFEH fails to plead any facts regarding their alleged

14 actions or inactions.

15

Aside from the Plaintiff’s and Defendant’s briefs on this motion, two additional non-parties

16 to this litigation have filed materials with the Court regarding LSAC’s motion: the Legal Aid

17 Society-Employment Law Center (LAS-ELC) and the United States Department of Justice (DOJ),

18 which filed a Statement of Interest in this matter pursuant to 28 U.S.C. § 517.

19

III. DISCUSSION

20 A. Legal Standard - Motion to Dismiss

21

Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss based on the

22 failure to state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). A motion to

23 dismiss based on Rule 12(b)(6) challenges the legal sufficiency of the claims alleged. See Parks

24 Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). In considering such a motion, a court

25 must take all allegations of material fact as true and construe them in the light most favorable to the

26 nonmoving party, although “conclusory allegations of law and unwarranted inferences are

27 insufficient to avoid a Rule 12(b)(6) dismissal.” Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir.

28 2009). Thus, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires

5

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1 more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will

2 not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

3

At issue in a 12(b)(6) analysis is “not whether a plaintiff will ultimately prevail, but whether

4 the claimant is entitled to offer evidence to support the claims” advanced in his or her complaint.

5 Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). While “a complaint need not contain detailed factual

6 allegations . . . it must plead ‘enough facts to state a claim to relief that is plausible on its face.’”

7 Cousins, 568 F.3d at 1067 (9th Cir. 2009). “A claim has facial plausibility when the plaintiff pleads

8 factual content that allows the court to draw the reasonable inference that the defendant is liable for

9 the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); see also Bell Atl. Corp. v.

10 Twombly, 550 U.S. at 556. “The plausibility standard is not akin to a ‘probability requirement,’ but

11 it asks for more than sheer possibility that a defendant acted unlawfully.” Id.

12

In ruling on a motion to dismiss, a court may look to documents whose contents are

13 specifically alleged as part of a complaint, even though the plaintiff did not append them to the

14 complaint. Although generally “a district court may not consider any material beyond the pleadings

15 in ruling on a Rule 12(b)(6) motion,” “material which is properly submitted as part of the complaint

16 may be considered” on such a motion. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d

17 1542, 1555 n. 19 (9th Cir.1990). A “document is not ‘outside’ the complaint if the complaint

18 specifically refers to the document and if its authenticity is not questioned.” Branch v. Tunnell, 14

19 F.3d 449, 453 (9th Cir. 1994) overruled on other grounds by Galbraith v. County of Santa Clara,

20 307 F.3d 1119 (9th Cir. 2002) (citing Townsend v. Columbia Operations, 667 F.2d 844, 848-49 (9th

21 Cir.1982)). “[D]ocuments whose contents are alleged in a complaint and whose authenticity no

22 party questions, but which are not physically attached to the pleading, may be considered in ruling

23 on a Rule 12(b)(6) motion to dismiss.” Id. at 454.

24

In the context of a motion under Rule 12(b)(1) for lack of jurisdiction, the district court has

25 greater flexibility. “When considering a motion to dismiss for lack of subject matter jurisdiction, the

26 district court may properly review evidence outside the pleadings to resolve factual disputes

27 concerning the existence of jurisdiction.” Wilson-Combs v. California Dept. of Consumer Affairs,

28

6

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1 555 F. Supp. 2d 1110, 1114 (E.D. Cal. 2008) (citing Land v. Dollar, 330 U.S. 731, 735 Fn. 4

2 (1947)).

3 B. Jurisdiction of DFEH

4

DFEH is a California state agency responsible for enforcing the state’s civil rights laws. It

5 derives its enforcement authority from California’s Fair Employment and Housing Act (FEHA), Cal.

6 Gov. Code, § 12900 et seq, wherein DFEH is granted, among other authorities, the power to

7 “receive, investigate, and conciliate complaints” of discrimination not only in employment matters

8 under § 12940 (see § 12930(f)(1)), but also in discrimination cases that fall within the scope of

9 California’s Unruh Civil Rights Act. Cal. Gov’t Code § 12930(f). In addition, FEHA substantively

10 incorporates the Unruh Act, as § 12948 declares it “an unlawful practice under this part for a person

11 to deny or to aid, incite or conspire in the denial of the rights created by Section 51, 51.5, 51.7, 54,

12 54.1, or 54.2 of the Civil Code.” Cal. Gov’t Code § 12948.

13

The Unruh Civil Rights Act, in turn, states that all persons within the State of California are

14 “entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all

15 business establishments of every kind whatsoever.” Cal. Civ. Code § 51(b). In addition, the Unruh

16 Act expressly incorporates the Americans with Disabilities Act by providing that a “violation of the

17 right of any individual under the federal Americans with Disabilities Act of 1990 (P.L. 101-336)

18 (“ADA”) shall also constitute a violation of this section.” Cal. Civ. Code § 51(f).

19

Section 12189 of the ADA contains a specific provision addressing disability access and

20 accommodations in the context of standardized testing. The ADA directs that “any person that

21 offers examinations or courses related to applications, licensing, certification, or credentialing for

22 secondary or post-secondary education, professional, or trade purposes shall offer such examinations

23 or courses in a place and manner accessible to persons with disabilities or offer alternative

24 accessible arrangements for such individuals.” 42 U.S.C. § 12189.

25

Thus under FEHA, DFEH has jurisdiction to investigate ADA violations in the State of

26 California, including § 12189 of the ADA via its enforcement of § 51 of the Unruh Civil Rights Act.

27

LSAC’s motion challenges DFEH’s statutory authority to investigate or file complaints

28 involving accommodation requests on standardized admissions tests, and to pursue claims of

7

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1 disability discrimination that are not first alleged in a verified complaint received by the agency.

2 LSAC argues that (1) DFEH lacks statutory jurisdiction to assert claims for disability discrimination

3 that are not expressly created under § 51 of the California Civil Code, see Def’s Motion at 8-10, and

4 (2) that a proper reading of DFEH’s jurisdiction under California law limits its investigatory and

5 prosecutorial authority solely to claims expressly raised in a verified complaint received by the

6 agency, see Def’s Motion at 10-12. At oral argument, LSAC questioned further whether the Unruh

7 Act’s incorporation of the “Americans with Disabilities Act of 1990 (P.L. 101-336),” see Cal. Civ.

8 Code § 51(f), limits DFEH’s derivative jurisdiction via the Unruh Act to only those provisions of the

9 ADA that existed in 1992 at the time of its incorporation into state law, see 1992 Cal. Legis. Serv.

10 Ch. 913 (A.B. 1077) §§ 1, 3. This last argument challenges, in essence, whether DFEH can enforce

11 amendments to the ADA in its suit against LSAC.

12

1. Rights ‘Created’ Under § 51

13

LSAC argues that DFEH lacks statutory jurisdiction to assert claims for disability

14 discrimination that are not expressly “created” under § 51 of the California Civil Code. In

15 particular, LSAC argues that the FEHA limits DFEH’s scope of authority to “rights created by

16 Section 51 . . . of the Civil Code.” Id. at 8 (citing Cal. Gov’t Code § 12948). Inasmuch as ADA

17 violations are incorporated into § 51 by virtue of subsection (f), which expressly makes a “violation

18 of the right of any individual under the federal Americans with Disabilities Act of 1990” also

19 violative “of this section,” they are not according to LSAC “created” by Section 51 and thus fall

20 outside the scope of DFEH’s enforcement authority. Id. at 9 (emphasis added). LSAC’s reading of

21 FEHA is unpersuasive.

22

First, the rights encompassed by § 51 are in common parlance “created” by that provision.

23 Whether the rights are explicitly enumerated in § 51 or incorporated by reference pursuant to its

24 terms, § 51 accords them legal status, brings them into existence, and thus “creates” them. See

25 American Heritage Dictionary, 3rd Edition, p. 438 (1992) (defining “create” as “To cause to exist;

26 bring into being”); www.meriam-webster.com/dictionary/create (“create” defined as “to bring into

27 existence.” Thus, under the California Constitution, the California Legislature created the rights

28 encompassed by § 51 when it enacted that section into law.

8

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1

Second, it makes no logical or policy sense why the DFEH would be empowered to enforce

2 some rights encompassed by § 51 (i.e., those under 51(b))1 and not others (those under 51(f)).

3 Indeed, it would be contrary to the general legislative intent behind the Unruh Act’s incorporation of

4 the ADA. More than fifteen years before the enactment of the federal ADA, the California

5 Legislature in 1977 amended the Fair Employment Practices Act to include physical handicap as a

6 prohibited basis for discrimination. See former Cal. Labor Code § 1420(a) (repealed by Stats. 1980,

7 c. 992, p. 3166, § 11). That same year, the California Legislature declared that “[i]t is the policy of

8 this state to encourage and enable individuals with a disability to participate fully in the social and

9 economic life of the state.” Cal. Gov’t Code § 19230 (added by Stats. 1977, c. 1196, p. 3977, § 2).

10 Nineteen years later, in response to the passage of the federal ADA, California amended the Unruh

11 Act as part of omnibus legislation designed to “strengthen California law where it is weaker than the

12 ADA and to retain California law when it provides more protection than the ADA.” See Stats. 1992,

13 ch. 913, § 1 (AB 1077) and Assembly Judiciary Committee, AB 1077 (Jan. 22,1992), at 2. In

14 addition, such a narrow interpretation of the Unruh Act contravenes the directive of the California

15 Supreme Court to construe that law liberally. In Munson v. Del Taco, Inc., 46 Cal. 4th 661, 669

16 (2009), the California Supreme Court stated “with regard to the Unruh Civil Rights Act . . . that it

17 must be construed liberally in order to carry out its purpose to create and preserve a

18 nondiscriminatory environment in California business establishments by ‘banishing’ or ‘eradicating’

19 arbitrary, invidious discrimination by such establishments.” Id. at 666 (citing Angelucci v. Century

20 Supper Club, 41 Cal.4th 160, 167 (2007)).

21

Furthermore, the DFEH interprets FEHA as conferring upon it jurisdiction to enforce the

22 ADA as it is incorporated into the Unruh Act; the enforcing agency’s interpretation is entitled to

23 some weight. As observed in Giles v. Horn, 100 Cal. App. 4th 206 (2002):

24

Additionally, “[w]hile the ultimate interpretation of a statute is an

exercise of the judicial power [citation], when an administrative

25

26

1 Section 51(b) of the Unruh Civil Rights Act states that “all persons within the jurisdiction

27

of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation are

28

entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” Cal. Civ. Code § 51(b).

9

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1

agency is charged with enforcing a particular statute, its interpretation

of the statute will be accorded great respect by the courts ‘and will be

2

followed if not clearly erroneous.’” Judson Steel Corp. v. Workers’

Comp. Appeals Bd. (1978) 22 Cal. 3d 658, 668-669, 160 Cal. Rptr.

3

250, 586 P.2d 564 (Judson Steel), quoting Bodinson Mfg. Co. v.

California E.Com. (1941) 17 Cal. 2d 321, 325-326, 109 P.2d 935.

4

Courts find administrative interpretations of a law to be “significant

factors in ascertaining statutory meaning and purpose. [Citations.]”

5

Nipper v. California Auto. Assigned Risk Plan (1977) 19 Cal. 3d 35,

45, 136 Cal. Rptr. 854, 560 P.2d 743.

6

7 Giles, 100 Cal. App. 4th at 220-21. See Rodriguez v. Airborne Express, 265 F.3d 890, 898 (9th Cir.

8 2001) (“We accord great respect to the Commission’s interpretation of its authority and will follow

9 it unless it is clearly erroneous.”).2

10

In support of its narrow reading of FEHA, LSAC relies solely on Turner v. Ass’n of

11 American Medical Colleges, 167 Cal. App. 4th 1401 (2008). LSAC reads the Turner decision as

12 holding that the rights ‘created’ by § 51 of the Unruh Act are limited to the rights enumerated in §

13 51(b), and do not include any ADA-based rights incorporated into the Unruh Act through subsection

14 (f). See Def’s Motion at 8; Def’s Reply (Docket 30) at 2. LSAC’s reading of Turner not only

15 misstates the court’s holding in that case, but also ignores the court’s explicit finding that a violation

16 of the ADA can also constitute a violation of the Unruh Act. In Turner, plaintiffs challenged

17 “certain standards for the administration of the Medical College Admission Test (MCAT), including

18 a time limit for each section of the test,” which were “neutral and extend to all applicants regardless

19 of their membership in a particular group.” 167 Cal. App. 4th at 1409. Importantly, the plaintiffs in

20 Turner claimed that their request for accommodations for more time and/or a private room “should

21 have been considered under [California] state laws, which define disability more broadly than the

22 ADA to include a mental, psychological or physical condition that limits a major life activity, i.e.,

23 that makes the achievement of the major life activity difficult.” Id. (internal citations and quotations

24 omitted). Plaintiffs did not premise their claims on violations of the ADA as incorporated into the

25 Unruh Act through operation of § 51(f), as Plaintiffs in the instant case do. Instead, plaintiffs’ claim

26 in Turner were based solely on rights covered by § 51(b). Turner found that because the limiting

27

28

2 To be sure, the degree of deference to the agency’s interpretation may arguably be lessened where that interpretation is not formally codified in a regulation.

10

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United States District Court For the Northern District of California

1 language in § 51(c) restricts the scope of § 51(b) from applying to “practices and policies that apply

2 equally to all persons,” plaintiffs could not base their complaint over the denial of reasonable

3 accommodation on § 51(b) of the Act.3 Id. at 1408.

4

Since Turner did not base its ruling on a construction of § 51(f) of the Unruh Act, the court

5 stated its holding “does not mean that disabled persons in California may not seek reasonable

6 accommodations for their learning and reading-related disabilities when taking a standardized test.”

7 Id. at 1410. Quite to the contrary, Turner expressly held that “the Unruh Act does indirectly

8 penalize a failure to grant reasonable accommodations in Civil Code section 51, subdivision (f),

9 which incorporates otherwise relevant ADA standards as a floor under state law,” and, thus, “a

10 violation of the right of any individual under the Americans with Disabilities Act of 1990” would

11 “also constitute a violation of this section.” Id. (emphasis in original). In such a case:

12

Civil Code section 51, subdivision (c) and the cases construing it can

be readily harmonized with section 51, subdivision (f) and the ADA

13

provisions it incorporates. Simply put, in addressing a claim that a

facially neutral testing policy has a disparate impact on persons with

14

learning and reading-related disabilities, accommodations are required

to the extent they are required under the ADA.

15

16 Turner, 167 Cal. App. 4th at 1410.

17

Thus, the Turner decision did not conclude that the rights ‘created’ by § 51 are limited to

18 those listed in subsection (b) of the Act. It simply held that § 51(c) restricted the scope of rights

19 under § 51(b) but recognized that § 51(f) – incorporating those rights protected by the ADA –

20 provided an independent source of protection.

21

The LSAC has failed to prove that DFEH lacks jurisdiction under § 51(f) of the Unruh Act to

22 pursue violations of the ADA.

23

2. Unruh Act Violations Limited to Subject Matter of FEHA

24

LSAC further argues that DFEH’s jurisdiction to pursue Unruh Act violations is limited to

25 matters that involve the original subject matter of FEHA. See Def’s Motion at 10. LSAC maintains

26

27

3 Section 51(c) states “this section shall not be construed to confer any right or privilege on a person that is conditioned or limited by law or that is applicable alike to persons of every sex, color,

28

race, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation or to persons regardless of their genetic information.” Cal. Civ. Code § 51(c).

11

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1 that FEHA’s original subject matter is limited to employment and housing discrimination, and

2 neither of these encompasses standardized tests. See id. It argues in the alternative that the

3 California Legislature intended to incorporate into the Unruh Act “only those provisions of the ADA

4 germane to the original scope of those state laws.” See id. (citing Bass v. County of Butte, 458 F.3d

5 978, 982 (9th Cir. 2006)). In support of this latter argument, LSAC cites to Anderson v. County of

6 Siskiyou, 2010 WL 3619821, at *6 (N.D. Cal. Sept. 13, 2010), where a court held that the Unruh Act

7 did not incorporate ADA claims that could be brought against a jail since the jail lacked the

8 attributes of a business and would not qualify as a “business establishment” under the terms of the

9 Act. Under either theory, LSAC argues, DFEH lacks jurisdiction to pursue ADA claims regarding

10 standardized testing. Neither of these arguments stands up to scrutiny.

11

As discussed above, the California legislature amended the Unruh Act in 1992 to explicitly

12 incorporate rights guaranteed under the federal ADA. That incorporation under § 51(f) contains no

13 exclusion of the ADA as it affects public accommodations. The purpose of this amendment was to

14 “conform state anti-discrimination laws with the provisions of the Americans with Disabilities Act.”

15 Bass v. County of Butte, 458 F.3d 978, 981 (9th Cir. 2006) (citing Assem. Off. of Research, 3d

16 reading analysis, A.B. 1077 (Cal.1992 Reg. Sess.)). Indeed, more to the point, the Unruh Act

17 prohibits a range of discriminatory practices with respect to public accommodations. Charged with

18 enforcement of the Unruh Act, the DFEH obviously has jurisdiction to enforce anti-discrimination

19 rights beyond matters of employment and housing. While “California courts have, historically,

20 rejected attempts by plaintiffs to expand the scope of the Unruh Act to include employment claims,”

21 Bass, 458 F.3d at 981, here the rights at issue fall squarely within the historical arena of the Unruh

22 Act and are “germane to the statutes’ original subject matter.” See Id. at 980, 983.

23

Furthermore, the California Fair Employment and Housing Commission (“Commission”) has

24 held in Dep’t Fair Empl. & Hous. v. Univ. Of Cal. Berkeley, 1993 WL 726830, at *11, that neither

25 Government Code § 12930 nor § 12948 contain “any limitation on the kinds of Unruh Act violations

26 that may be addressed administratively under the FEHA, and the obvious conclusion is that no such

27 limitation was intended.” Id. at 10. The statute’s provisions are to be “construed liberally for the

28 accomplishment of [its] purposes,” Cal. Gov’t. Code § 12993, and courts generally “accord great

12

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United States District Court For the Northern District of California

1 respect to the Commission’s interpretation of its authority and will follow it unless it is clearly

2 erroneous,” Rodriguez v. Airborne Express, 265 F.3d 890, 898 (9th Cir. 2001).

3

Accordingly, the DFEH has jurisdiction under the Unruh Act to enforce Title III violations of

4 the ADA, including rights thereunder with respect to standardized testing.4

5

3. ADA Incorporation into the Unruh Act

6

At oral argument, the parties disagreed over whether § 51(f) of the Unruh Act incorporates

7 the ADA as it currently exists in federal law, or only as it existed in 1992 when the Legislature

8 enacted § 51(f). Having reviewed the supplementary briefing materials, the Court concludes that the

9 Unruh Act incorporates the ADA not only as it currently exists, but also as it “may be changed from

10 time to time.” Palermo v. Stockton Theatres, 32 Cal. 2d 53, 59 (1948).

11

Section 51(f) states that a “violation of the right of any individual under the federal

12 Americans with Disabilities Act of 1990 (P.L. 101-336) shall also constitute a violation of this

13 section.” Since its initial passage in 1990, the ADA has been amended at least five times. See Pub.

14 L. 102-166, Nov. 21, 1991, 105 Stat. 1071; Pub. L. 104-1, Jan. 23, 1995, 109 Stat. 8; Pub. L. 104-59,

15 Nov. 28, 1995, 109 Stat. 608; Pub. L. 104-287, Oct. 11, 1996, 110 Stat. 3400; Pub. L. 110-325, Sept.

16 25, 2008, 122 Stat. 3554. The last of these amendments introduced several changes to the ADA,

17 including changes to the definition of the term ‘disability.’ See Rohr v. Salt River Project Agric.

18 Imp. & Power Dist., 555 F.3d 850, 861 (9th Cir. 2009) (the 2008 amendments “explicitly reject[]

19 several Supreme Court decisions that defined ‘disability’ more narrowly than many of the ADA’s

20 original Congressional proponents had intended”). Both parties cite Palermo v. Stockton Theatres

21 as the lead case for determining the scope of the ADA’s incorporation into the Unruh Act, including

22 the applicability of these latter ADA amendments to § 51(f).

23

In Palermo, the California Supreme Court set out a standard for distinguishing among state

24 laws that incorporate other statutes by reference. “[W]here a statute adopts by specific reference the

25

26

4 “Title III of the ADA prohibits discrimination on the basis of disability by public

27

accommodations, commercial facilities, and private entities that offer examinations or courses related to applications, licensing, certification, or credentialing for secondary or postsecondary

28

education, professional, or trade purposes.” Statement of Interests of the United States of America (Docket No. 29) at 2 (citing 42 U.S.C. § 12181, et. seq., and 28 C.F.R. §§ 36.102 and 36.201).

13

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United States District Court For the Northern District of California

1 provisions of another statute, regulation, or ordinance, such provisions are incorporated in the form

2 in which they exist at the time of the reference and not as subsequently modified.” Palermo v.

3 Stockton Theatres, 32 Cal. 2d at 58-59. In contrast, “where the reference is general instead of

4 specific, such as a reference to a system or body of laws or to the general law relating to the subject

5 in hand, the referring statute takes the law or laws referred to not only in their contemporary form,

6 but also as they may be changed from time to time.” Id. at 59. While § 51(f) refers specifically to

7 the original ADA’s public law number, the broad scope of the ADA, even as it existed in 1990,

8 counsels in favor of the broader prong of Palermo.5 See Americans with Disabilities Act of 1990,

9 P.L. 101-336,104 Stat 327, § 2(b)(1) (“It is the purpose of this Act [] to provide a clear and

10 comprehensive national mandate for the elimination of discrimination against individuals with

11 disabilities”) (emphasis added).

12

In any event, subsequent California Supreme Court decisions have clarified that, as here,

13 “when the statutory words themselves do not make clear whether the statute contemplates only a

14 time-specific incorporation, the determining factor will be legislative intent.” People v. Anderson,

15 28 Cal. 4th 767, 779 (2002) (quoting In re Jovan B., 6 Cal. 4th 801, 816 (Cal. 1993)). See also

16 People v. Domagalski, 214 Cal. App. 3d 1380, 1386 (Cal. Ct. App. 1989) (“in cases where it is

17 questionable whether only the original language of a statute is to be incorporated or whether the

18 statutory scheme, along with subsequent modifications, is to be incorporated, the determining factor

19 will be the legislative intent behind the incorporating statute.”); People v. Pecci, 72 Cal. App. 4th

20 1500, 1505 (1999) (“the Palermo rule is not to be applied in a vacuum. The determining factor is

21 legislative intent.”) (citing In re Jovan B., 6 Cal.4th at 816).

22

Here, it is evident that the California Legislature intended to incorporate the ADA as a

23 “system or body of laws,” including evolving changes. The systemic nature of the laws incorporated

24

25

5 It should be noted that under California law a citation to a specific legal provision does not

26

necessarily render that incorporation a “specific reference” under Palermo. See e.g. In re Jovan B., 6 Cal.4th at 816 (citation in Cal. Welf. & Inst. Code § 726 to specific sections of the California

27

Penal Code was an incorporation of a system or body of laws, including subsequent amendments); People v. Van Buren, 93 Cal. App. 4th 875, 878-79 (2001) overruled on other grounds by People v.

28

Mosby, 33 Cal. 4th 353 (2004) (citation to Cal. Penal Code § 667.5 “incorporated the contemporaneous version . . . along with subsequent amendments”).

14

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1 is evidenced by the general principle that animated the Legislature: “It is the intent of the

2 Legislature in enacting this act to strengthen California law in areas where it is weaker than the

3 Americans with Disabilities Act of 1990 (Public Law 101–336) and to retain California law when it

4 provides more protection for individuals with disabilities than the Americans with Disabilities Act of

5 1990.” Munson v. Del Taco, Inc., 46 Cal. 4th 661, 669 (2009) (quoting Stats.1992, ch. 913, § 1, p.

6 4282). See also Cal. Gov’t Code § 12926(1)(a). Indeed, the Ninth Circuit held in Lentini v.

7 California Ctr. for the Arts, Escondido that “the Unruh Act has adopted the full expanse of the

8 ADA.” 370 F.3d 837, 847 (9th Cir. 2004) (citing with approval Presta v. Peninsula Corridor Joint

9 Powers Bd., 16 F. Supp. 2d 1134, 1135 (N.D. Cal. 1998)). Importantly, Lentini was decided after

10 four of the five post-1990 ADA amendments had already been enacted.

11

The Court, therefore, finds that § 51(f) of the Unruh Act incorporates by reference the whole

12 of the federal ADA “not only in [its] contemporary form, but also as [it] may be changed from time

13 to time.” Palermo, 32 Cal. 2d at 59.

14 C. Limits to DFEH’s Authority Based on Underlying Complaints

15

LSAC also challenges DFEH’s ability to bring the specific ADA causes of action advanced

16 in its complaint for essentially failure to exhaust. LSAC argues that a proper reading of DFEH’s

17 jurisdiction under California law limits its investigatory authority solely to those claims that were

18 expressly raised in verified complaints received by the agency. See generally Def’s Motion at 10-

19 12. Implicit within DFEH’s authorizing statutes, argues LSAC, lies an important limitation that

20 “DEFH cannot challenge actions or policies in a post-conciliation accusation” that (1) “were not first

21 identified in a verified complaint to the agency,” (2) “cannot reasonably be expected to grow out of

22 DFEH’s investigation of the allegedly unlawful conduct,” and (3) “were not the subject of good faith

23 conciliation efforts by DFEH.” Def’s Motion at 12. In this case, Defendant argues that “none of the

24 Complainants alleged any ADA violation,” and “none of the Complainants alleged that LSAC’s

25 flagging policy or any of its documentation policies are unlawful.” Id. It contends, because these

26 issues were not specifically raised by the Complainants, “it was therefore improper for DFEH to

27 include in the Complaint any ADA-based claim.” Id. This argument fails to recognize the wide

28

15

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1 investigative latitude afforded DFEH under California law, and the notice of the content of the

2 complaints given to LSAC prior to the initiation of its enforcement action.

3

California’s Fair Employment and Housing Act empowers DFEH “to receive, investigate,

4 and conciliate complaints” that allege violations of law within the scope of its jurisdiction. Cal.

5 Gov’t Code § 12930(f). The Act contains a specific procedure for DFEH to use in investigating a

6 complaint. Broadly speaking, the act allows “any person claiming to be aggrieved by an alleged

7 unlawful practice” to “file with the department a verified complaint” setting “forth the particulars”

8 of “the unlawful practice complained thereof.” Cal. Gov’t Code § 12960(b). In situations where

9 “an unlawful practice alleged in a verified complaint adversely affects, in a similar manner, a group

10 or class of persons . . . the aggrieved person or the director may file the complaint on behalf and as

11 representative of such a group or class.” Cal. Gov’t Code § 12961. Upon receiving “any complaint

12 alleging facts sufficient to constitute a violation of any of the provisions of this part,” DFEH is

13 directed to “make [a] prompt investigation.” Cal. Gov’t Code § 12963. If DFEH determines that the

14 “complaint is valid, the department shall immediately endeavor to eliminate the unlawful . . .

15 practice complained of by conference, conciliation, and persuasion.” Cal. Gov’t Code § 12963.7. If

16 this non-judicial reconciliation process fails to resolve the complaint, DFEH may issue a “written

17 accusation” and require “the respondent to answer the charges at a hearing.” Cal. Gov’t Code §

18 12965. As with all other aspects of the Fair Employment and Housing Act, the investigatory and

19 adjudicatory procedure is to be “construed liberally for the accomplishment of the purposes of [the

20 Act].” Cal. Gov’t Code § 12993(a).

21

Construing DFEH’s statutory scheme broadly, the Ninth Circuit has held that claims not

22 originally brought in verified complaints may nonetheless be brought in subsequently when they are

23 “like or reasonably related to” the initial allegations. Rodriguez v. Airborne Express, supra, 265

24 F.3d at 897. Adopting a ‘relation-back’ theory as articulated by the Fifth Circuit in Sanchez v.

25 Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970), the Ninth Circuit in Rodriguez held that new

26 accusations of wrongdoing could be added later to a DFEH complaint “on the principle that the

27 proper scope of the charge is determined by facts alleged in the original complaint, not the legal

28 theory originally attached to those facts.” Rodriguez, 265 F.3d at 899. In that case, however, the

16

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1 court rejected an argument that a complainant’s new claim of “disability discrimination may

2 properly be related back to his original complaint alleging discrimination on the ground that [he]

3 was Mexican-American.” Id. The court held that while “factual allegations of the original

4 complaint, rather than the legal theory, establish the proper boundaries of the charge,” those initial

5 “factual allegations must be able to bear the weight of the new theory added by amendment.” Id.

6

In the instant case, each of the Complainants’ recitation of the facts in their claims makes

7 quite clear that they wish to challenge LSAC’s conduct on the basis of disability discrimination.

8 That the verified complaints received by DFEH did not explicitly identify the ADA as the legal basis

9 of their theories for recovery is not dispositive since it is the “factual allegations of the original

10 complaint, rather than the legal theory” that controls. Rodriguez, 265 F.3d at 899. Thus, in light of

11 the standard set by the court in Rodriguez, LSAC’s argument that it was improper “for DFEH to

12 include in the Complaint any ADA-based claim” cannot be accepted. See Mot. to Dismiss at 12.

13 Nor can it be maintained that, on the basis of the facts alleged in the verified complaints, “it was

14 improper for DFEH to include claims that challenge the guidance that LSAC provides to

15 professionals who submit evaluations in support of an accommodation request,” or to include claims

16 challenging “LSAC’s documentation requirements for individuals requesting accommodations,”

17 Def’s Motion at 12. The record demonstrates quite clearly that the original verified complaints

18 received by DFEH challenged, at least in part, LSAC’s allegedly discriminatory documentation

19 procedures. See Compl., Ex. 2 (Verified Complaint of Nicholas Jones) (alleging a denial of

20 reasonable accommodations because of disability in connection with LSAC’s documentation

21 requirements); Compl. ¶ 148 (“Mr. Quan contested LSAC’s need for additional documentation,

22 asserting that it was unnecessary, unaffordable, and burdensome.”), ¶¶ 182-183 (challenging

23 relevance of LSAC’s Guidelines for Documentation of Cognitive Impairments).

24

LSAC asserts that a discrimination claim involving someone who has been denied reasonable

25 accommodations on the LSAT is not “like or reasonably related to” a discrimination claim by

26 someone who received accommodations and objects to LSAC’s “flagging” policy. That argument

27 also lacks merit. The relationship between denying individuals accommodations on the LSAT and

28 discriminating against disabled individuals by “flagging” their test scores is not as attenuated as

17

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1 discrimination claims previously held not “reasonably related” by the courts. See e.g. Rodriguez,

2 265 F.3d at 898 (holding that plaintiff’s original complaint with the DFEH alleging race-based

3 discrimination could not be extended to include disability discrimination); Winter v. Correction

4 Corp. of America, 2009 WL 1796309, at *4 (S.D. Cal. Jun. 24, 2009) (holding that plaintiff’s claims

5 about disability were not like or reasonably related to race/color-based discrimination). The ADA

6 claims alleged by DFEH all fall within the general scope of the claim that Defendant failed to

7 provide reasonable accommodations to test-takers of a standardized exam. Flagging an individual’s

8 test results because they received some form of testing accommodations could constitute a de facto

9 denial of accommodations to the extent that flagging results in the LSAT not being offered “in a

10 place and manner accessible to persons with disabilities.” 42 U.S.C. § 12189. Likewise, to the

11 extent that flagging erects a de facto barrier to applicants receiving accommodations because it

12 “intimidate[s] them not to request accommodations” or “punishes them for doing so,” that also

13 amounts to an allegation that LSAC’s practice discriminates against disabled test takers on account

14 of their disability. Breimhorst v. Educ. Testing Serv., 2000 WL 34510621 (N.D. Cal. Mar. 27,

15 2000). Unlike the claims advanced in Rodriguez and Winter, the claims in Plaintiff’s state court

16 complaint have not markedly shifted from one type of discriminatory behavior (e.g. on the basis of

17 race) to another (e.g. on the basis of disability). Rather, all five claims advanced by DFEH involve

18 the same kind of improper conduct – the denial of reasonable accommodations on a standardized test

19 on account of disability. This is enough to satisfy the “like or reasonably related standard” set out in

20 Rodriguez.

21

LSAC’s final challenge to DFEH’s ability to bring the specific ADA causes of action

22 advanced in its complaint flows from FEHA’s “conciliation” provision. Cal. Gov’t Code § 12963.7

23 provides that where DFEH determines that a “complaint is valid, the department shall immediately

24 endeavor to eliminate the unlawful . . . practice complained of by conference, conciliation, and

25 persuasion.” LSAC’s motion argues that DFEH failed engage in good faith conciliation as required

26 by statute, and as a consequence cannot issue a written accusation without first exhausting that

27 requirement. Def’s Motion at 12. This argument is unsupported by the language of FEHA, the

28 cases interpreting it, and the facts of this case.

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1

The use of the permissive word endeavor in § 12963.7, on its face, undercuts any reading of

2 this section that would impose conciliation as a necessary prerequisite to issuing a written

3 accusation. Cal. Gov’t Code § 12965(a), which states that “[i]n the case of failure to eliminate an

4 unlawful practice under this part through conference, conciliation, or persuasion, or in advance

5 thereof if circumstances warrant, the director in his or her discretion may cause to be issued in the

6 name of the department a written accusation,” also indicates that conciliation is not required in every

7 case. Id. (emphasis added).

8

Further, in both Motors Ins. Corp. v. Div. of Fair Employment Practices, and DFEH v. Hoag

9 Memorial Hospital Presbyterian, the California Court of Appeal and the Fair Employment and

10 Housing Commission have confirmed that conciliation under FEHA is not a condition precedent to

11 filing suit. See Motors Ins. Corp. v. Div. of Fair Employment Practices, 118 Cal. App. 3d 209, 224

12 (Cal. Ct. App. 1981) (DFEH is able “to file an accusation within the statutorily prescribed time even

13 if it has not obtained optimum results from its investigation or its efforts at conciliation”); In the

14 Matter of the Accusation of the DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING v.

15 HOAG MEMORIAL HOSPITAL PRESBYTERIAN, Case No. FEP82-83 K9-011se L-30469 85-10,

16 1985 WL 62889 at *8 (Aug. 1, 1985) (“Neither is there any jurisdictional requirement that the

17 Department, in each instance, engage in conciliation efforts, formally or informally, before issuing

18 an accusation.”).

19

Finally, the Court notes that DFEH did in fact engage in a day-long conciliation meeting on

20 February 3, 2012, where it “presented LSAC with a detailed settlement demand which included

21 notice of all the unlawful policies that the DFEH intended to pursue, including the issues of

22 mitigation, annotation or flagging, and excessive documentation.” Declaration of Susan Saylor

23 (Docket No. 40, Ex.1) (“Saylor Decl.”) ¶ 11. The Court, therefore, rejects LSAC’s argument that

24 the “conciliation” provision in § 12963.7 deprives DFEH of jurisdiction to pursue its complaint in

25 this matter.

26 D. First Cause of Action

27

DFEH’s First Cause of Action states that LSAC violated the rights of class members under

28 FEHA, the Unruh Act, and the ADA “by requiring applicants to take the medications prescribed for

19

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United States District Court For the Northern District of California

1 their disabilities while being evaluated for accommodations or explain their failure to do so.”

2 Compl. ¶¶ 187-192. This requirement, they argue, violates the ADA’s directive that

3 “determination[s] of whether an impairment substantially limits a major life activity shall be made

4 without regard to the ameliorative effects of mitigating measures such as . . . medication.”6 42

5 U.S.C. § 12102(4)(E)(1)(i)(I).

6

LSAC, in turn, argues that DFEH’s First Cause of Action fails to state a claim under Rule 12

7 (b)(6) for two reasons. First, LSAC asserts that “the language relied upon by DFEH is simply a rule

8 of construction that courts are to use in determining whether someone is disabled within the meaning

9 of the ADA.” Def’s Motion at 14. Under it, no “private right of action” exists such that the

10 Defendant could “be separately sued for violating the ADA’s definition of disability.” Id. (internal

11 quotation marks omitted). Second, LSAC contends that DFEH’s claim is “based upon an incorrect

12 factual premise.” Id. Contrary to Plaintiffs’ allegations, LSAC asserts that it never “require[d]”

13 individuals who requested accommodations to “take the medications prescribed for their disabilities

14 while being evaluated for accommodations or explain their failure or refusal to do so.” Id. Rather,

15 LSAC “simply suggests” that professional evaluators of these applicants conduct their evaluations

16 while the applicants are taking their medications on the assumption that the applicant would be

17 taking the same medication while sitting for their LSAT exam. Id. If an evaluator chooses not to

18 examine an applicant while they are taking their medications, LSAC “simply asks the evaluator to

19 provide an explanation” of that decision. Id. These two arguments will be addressed in turn.

20

1. No Private Right of Action

21

In support of its assertion that there is no private right of action for “the definition of

22 disability” violation because the text of the statute grants no such remedy, LSAC cites Cort v. Ash,

23 422 U.S. 66, 78-85 (1975) (discussing relevant factors in determining whether a private remedy is

24 implicit in a statute not expressly providing one), Northstar Fin. Advisors, Inc. v. Schwab

25 Investments, 615 F.3d 1106, 1115-22 (9th Cir. 2010) (discussing whether there is a private right to

26 enforce § 13(a) of the Investment Company Act of 1940), and In re Digimarc Corp. Derivative

27

28

6 “A physical or mental impairment that substantially limits one or more major life activities” constitutes a disability under the ADA. 42 U.S.C. § 12102(1)(A).

20

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1 Litig., 549 F.3d 1223, 1229-33 (9th Cir. 2008) (reviewing whether district court erred in determining

2 that provision of the Sarbanes–Oxley Act does not contain a private right of action). These cases

3 generally discuss how to determine whether a statute implicitly provides for a private right of action

4 when the statutory text does not expressly grant such a remedy. LSAC’s argument is meritless for

5 several reasons.

6

First, it is undisputed that FEHA authorizes the DFEH to enforce the Unruh Act. See Cal.

7 Gov. Code § 12930. As noted above, the Unruh Act incorporates the substantive standards of the

8 ADA and creates a private right of action as a matter of state law. Whether the ADA itself provides

9 a private cause of action under federal law does not affect enforcement of the Unruh Act – a state

10 statute governed by its own enforcement mechanism.

11

Second, even if the analysis here were governed by the existence of a right of action directly

12 under the ADA, LSAC’s argument lacks merit. There is no need to imply a private right of action

13 under Cort v. Ash because the ADA explicitly provides for a private right of action under §

14 12188(a)(1). That statute provides “remedies . . . to any person who is being subjected to

15 discrimination on the basis of disability in violation of this subchapter.” LSAC makes no

16 convincing argument why the rights guaranteed under § 12189 are not enforceable under §

17 12188(a)(1).

18

Instead, LSAC seems to argue that § 12102(4)(E)(1)(i)(I) which broadened the definition of

19 “disability” under the ADA is merely definitional and does not provide a basis for a private right of

20 action. LSAC misconstrues the gravamen of DFEH’s complaint.

21

Title III of the ADA states that “any person that offers examinations or courses related to

22 applications, licensing, certification, or credentialing for secondary or post-secondary education,

23 professional, or trade purposes shall offer such examinations or courses in a place and manner

24 accessible to persons with disabilities or offer alternative accessible arrangements for such

25 individuals.” 42 U.S.C. § 12189. “The purpose of this section is to assure that persons with

26 disabilities are not foreclosed from educational, professional, or trade opportunities because an

27 examination or course is conducted in an inaccessible site or without an accommodation.” Enyart v.

28 Nat’l Conference of Bar Examiners, Inc., 630 F.3d 1153, 1160 (9th Cir. 2011) cert. denied, 132 S.

21

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1 Ct. 366 (2011) (quoting H.R.Rep. No. 101–485(III), at 68–69 (1990), reprinted in 1990

2 U.S.C.C.A.N. 445, 491–92.). Proof of a violation of § 12189 and the right to an accommodation

3 thereunder first turns on the threshold question of whether the complainant is a person with a

4 “disability.” See Agranoff v. Law Sch. Admission Council, Inc., 97 F. Supp. 2d 86, 87 (D. Mass.

5 1999) (“The Americans With Disabilities Act (ADA) specifically requires private organizations that

6 offer educational examinations to make them available in a manner accessible to persons with

7 disabilities.”) (internal quotation marks omitted). “Disability” is defined in § 12102 as “a physical

8 or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. §

9 12102(1)(A). In 2008, the United States Congress enacted the ADA Amendments Act of 2008

10 (ADA Amendments), Pub. L. 110-325, and broadened the definition of “disability” by providing

11 that the “determination of whether an impairment substantially limits a major life activity shall be

12 made without regard to the ameliorative effects of mitigating measures such as . . . medication.” §

13 12102(4)(E)(i)(I) (emphasis added). Requiring applicants to take prescribed medication while being

14 evaluated for accommodations does not simply contravene a definition; it can have the legal effect

15 of erroneously and wrongfully denying an applicant the legal status of a person with a disability, and

16 thereby deprive them of the right to accommodations to which he or she would otherwise be entitled

17 under § 12189. Hence, the alleged conduct of LSAC not only contravenes the definition of

18 disability under § 12102(4)(E)(i)(I); it can cause the deprivation of substantive rights under § 12189.

19

2. Incorrect Factual Premise

20

Turning to LSAC’s charge that this First Cause of Action should be dismissed for failure to

21 state a claim under Fed. R. Civ. P. 12(b)(6) because it is “based upon an incorrect factual premise,”

22 the Court finds this argument to be unfounded. See Def’s Motion at 14. As noted above, LSAC

23 denies that it requires individuals seeking testing accommodations to take their prescribed medicines

24 while being evaluated for accommodations or explain their failure to do so. See id. at 14; Def’s

25 Reply at 7. LSAC’s argument reduces to a dispute over evidentiary facts. When considering a

26 motion to dismiss under Rule 12(b)(6), “all allegations of material fact are taken as true and

27 construed in the light most favorable to the nonmoving party.” Silvas v. E*Trade Mortg. Corp., 514

28 F.3d 1001, 1003 (9th Cir. 2008). DFEH supported its First Cause of Action with well-pleaded facts

22

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1 in the complaint. It alleges, among other things, that LSAC requires applicants to disclose in an

2 accommodations request whether or not they took prescribed medications during medical

3 evaluations of their condition, and if not, to explain their failure to do so. See Compl. ¶ 55. LSAC

4 counters this allegation with an invitation to view certain documents on its website; an invitation

5 which the Court declines to take at the 12(b)(6) stage. As a general rule, “a district court may not

6 consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.” Lee v. City of Los

7 Angeles, 250 F.3d 668, 688 (9th Cir. 2001). There are two exceptions to this general rule for

8 materials that the “plaintiff’s complaint necessarily relies on” whose “authenticity ... is not

9 contested,” and materials that are of “public record.” Id. at 688-689. Neither exception applies to

10 LSAC’s website. As such, LSAC’s motion to dismiss DFEH’s First Cause of Action is DENIED.

11 E. Second Cause of Action

12

DFEH’s Second Cause of Action argues that LSAC’s policy of flagging score reports of

13 individuals receiving additional time fails to ensure that the LSAT measures aptitude, rather than

14 disability, in violation of the duties imposed on test providers under Title III of the ADA. Compl. ¶¶

15 193-195. As discussed above, § 12189 requires test providers like LSAC to offer ADA-governed

16 examinations “in a place and manner accessible to persons with disabilities or offer alternative

17 accessible arrangements for such individuals.” 42 U.S.C. § 12189. The Department of Justice,

18 which is charged with issuing regulations to carry out Title III’s provisions, see 42 U.S.C. §

19 12186(b), has interpreted § 12189 as requiring test providers to administer ADA-governed

20 examinations:

21

so as to best ensure that, when the examination is administered to an

individual with a disability that impairs sensory, manual, or speaking

22

skills, the examination results accurately reflect the individual’s

aptitude or achievement level or whatever other factor the examination

23

purports to measure, rather than reflecting the individual’s impaired

sensory, manual, or speaking skills.

24

25 28 C.F.R. § 36.309(b)(1)(I). DFEH argues on the basis of these two provisions that LSAC’s

26 “blanket policy of annotating scores taken under extended time conditions” communicates “to law

27 schools that it does not know whether or not the applicant’s exam results accurately reflect aptitude

28 or achievement, and, as such, run afoul of the ADA.” Compl. ¶ 195. LSAC counters that neither the

23

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1 statute nor the regulation “prohibit the psychometrically sound practice of annotating scores that are

2 achieved with extra testing time” or address “the manner in which scores are reported.” Def’s

3 Motion at 15-16.

4

The question presented under this cause of action is relatively novel in ADA law, as

5 demonstrated by the paucity of cases cited by either party. The sole reported case directly on point

6 is Doe v. Nat’l Bd. of Med. Examiners, 199 F.3d 146 (3d Cir. 1999). Doe involved a challenge

7 brought by a medical student with multiple sclerosis against the National Board of Medical

8 Examiners (NBME), claiming that the NBME’s practice of flagging accommodated scores on the

9 United States Medical Licensing Examination (USMLE) violated Title III of the ADA. On appeal

10 from the district court’s grant of a preliminary injunction, the Third Circuit held that § 12189’s

11 direction that exams be offered “in a place and manner accessible to persons with disabilities” does

12 not “ipso facto” prohibit NBME from flagging test results. Doe v. Nat’l Bd. of Med. Examiners, 199

13 F.3d at 149. The court held that neither the ADA nor its implementing regulations require scores

14 received with testing accommodations to “be declared psychometrically comparable to the scores of

15 examinees who take the test under standard conditions.” Id. at 156. “In the absence of a statutory

16 proscription against annotating the test scores of examinees who receive accommodations,” the court

17 stated, “we do not view the annotation on Doe’s score . . . as itself constituting a denial of access”

18 under Title III. Id. The court noted, however, that the record before it contained “conflicting expert

19 testimony regarding the comparability of time-accommodated scores to scores achieved under

20 standard conditions.” Id. at 151. It posited that had the plaintiff demonstrated “either that his scores

21 are psychometrically comparable to the scores of candidates who take the test under standard time

22 conditions, or that his scores will be ignored by the programs to which they are reported, he might

23 have demonstrated a reasonable likelihood of success on this claim,” and thereby preserved his

24 preliminary injunction against NBME. Id. at 156-157. “On the current record,” however, the court

25 found that Doe failed to meet his evidentiary burden. Id. at 157. The Third Circuit, therefore,

26 placed the burden on the plaintiff to prove the scores were “psychometrically comparable” in order

27 to invalidate flagging.

28

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United States District Court For the Northern District of California

1

In an unreported decision, Judge Orrick in this District took a slightly different view of this

2 question. Breimhorst v. Educ. Testing Serv., 2000 WL 34510621 (N.D. Cal. 2000),7 concerned a

3 challenge brought by plaintiffs’ regarding the Educational Testing Service’s (ETS) practice of

4 “flagging test score reports for test takers who obtained accommodations for their disabilities to

5 indicate that the scores were obtained under special conditions.” Breimhorst v. Educ. Testing Serv.,

6 2000 WL 34510621 at *1. Ruling on ETS’s motion for a judgment on the pleadings, Judge Orrick

7 construed the applicable statutes and regulations as requiring test providers “to take steps to best

8 ensure that the tests equally measure the skills of disabled and nondisabled test takers.” Id. at *5. In

9 light of the ADA’s goal to “assure equality of opportunity for disabled people,” id. at *5 (citing 42

10 U.S.C. § 12101(8)), the court refused to “focus narrowly on the ability of disabled people to take [a]

11 test” and instead declared, “to fulfill the goals of the ADA, the test itself must allow disabled people

12 to demonstrate their true abilities.” Id. at *5. The court found that “§ 36.309(b)(1) [of Title 28 of

13 the C.F.R.] imposes a duty on test providers to best ensure that their tests are selected and

14 administered to equally measure the abilities of disabled and nondisabled test takers.” Id. (emphasis

15 added). Importantly, “if test providers meet this burden, then there would be no reason to flag the

16 test results of disabled test takers who receive accommodations.” Id. (emphasis added). Judge

17 Orrick acknowledged that “it may be that there is no way to ensure that the test results are precisely

18 equivalent,” and in such a case, even though a test provider “may have taken steps to best ensure

19 that the results are equal, the results may still differ so significantly that flagging is appropriate.” Id.

20 However, he declined to render an opinion on the matter, recognizing that it was “an issue of fact . . .

21 and not a matter to be decided on a motion for judgment on the pleadings.” Id. Importantly Judge

22 Orrick placed the burden of proving the “best ensure” standard on the test providers.

23

In the instant case, the Second Cause of Action alleges that LSAC failed to carry its burden.

24 It alleges that LSAC adhered to a blanket policy of flagging without knowing whether the

25 applicant’s exam results accurately reflect aptitude or achievement. Compl. ¶ 195. While the

26

27

7 A copy of this decision appears in Def’s Notice of Authority (Docket No. 21). While not

28

published, the decision does not contain the words “Not for Citation” as specified in Civil Local Rule 7-14 for marking uncitable orders or opinions.

25

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1 complaint does not allege that the scores are in fact “psychometrically equivalent,” a fact Plaintiff

2 would have to plead and prove under Doe, this Court is persuaded that Judge Orrick’s interpretation

3 in Breimhorst of the relevant laws is correct. Under Breimhorst, the test provider has the burden of

4 proving it best ensured that the test equally measured abilities of disabled and non-disabled test

5 takers. That interpretation is consistent with § 12189 which places a general duty on test providers

6 to offer accessible examinations or offer alternative accessible arrangements, and the DOJ’s

7 regulation at 28 C.F.R. § 36.309(b)(1)(I) which likewise requires test providers to “best ensure” that

8 the examination accurately reflects aptitude or achievement levels, not impaired skills. Judge

9 Orrick’s interpretation is also consistent with the Ninth Circuit’s decision in Enyart v. Nat’l

10 Conference of Bar Examiners, Inc., 630 F.3d 1153 (9th Cir. 2011) cert. denied, 132 S. Ct. 366 (U.S.

11 2011), applying § 12189. In Enyart, the Ninth Circuit rejected an argument that the ADA required

12 test providers to provide “reasonable accommodations” under § 12189 instead of adhering to the

13 “best ensure” standard set out in the Justice Department’s regulations at 28 C.F.R. § 36.309(b)(1)(I).

14 The court held that:

15

one reasonable reading of § 12189’s requirement that entities make

licensing exams accessible is that such entities must provide disabled

16

people with an equal opportunity to demonstrate their knowledge or

abilities to the same degree as nondisabled people taking the exam—in

17

other words, the entities must administer the exam so as to best ensure

that exam results accurately reflect aptitude rather than disabilities.

18

19 Enyart, 630 F.3d at 1162. While the precise contours of the “best ensure” standard are not clear, it is

20 more exacting than a “reasonableness” standard. See Enyart, 630 F.3d at 1161. See also Bonnette v.

21 Dist. of Columbia Court of Appeals, 796 F. Supp. 2d 164, 184–85 (D.D.C. July 13, 2011); Elder v.

22 Nat’l Conference of Bar Examiners, 2011 WL 672662, at *6 (N.D. Cal. 2011); Jones v. Nat’l

23 Conference of Bar Examiners, 801 F. Supp. 2d 270, 284 (D. Vt. 2011).

24

Since this question is before the Court on a Rule 12(b)(6) motion, the Court DENIES

25 LSAC’s motion to dismiss this cause of action.

26 F. Third Cause of Action

27

DFEH’s Third Cause of Action argues that LSAC’s flagging policy unlawfully coerced and

28 discouraged potential test-takers from seeking testing accommodations or punished those who

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1 received accommodations in violation of 42 U.S.C. § 12203. See Compl. ¶¶ 200-201. That

2 provision of the ADA makes it unlawful “to coerce, intimidate, threaten, or interfere with any

3 individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed,

4 or on account of his or her having aided or encouraged any other individual in the exercise or

5 enjoyment of, any right granted or protected by [the ADA].” 42 U.S.C. § 12203(b). In support of its

6 motion to dismiss, LSAC repeats the arguments it made earlier that “nothing in the ADA or its

7 implementing regulations . . . prohibit the psychometrically sound practice of annotating test

8 scores,” and therefore LSAC’s flagging practice cannot give rise to a claim that a “right granted or

9 protected by [the ADA]” has been violated. See Def’s Motion ( citing 42 U.S.C. § 12203(b)). This

10 claim, based as it is on the premise that score ‘flagging’ cannot give rise to an ADA violation fails

11 for the reasons discussed above.

12

LSAC also calls into question whether DFEH has adequately pled its claim of coercion and

13 interference with sufficient facts to survive a challenge under Rule 12(b)(6). In the context of a Rule

14 12(b)(6) motion, “a complaint need not contain detailed factual allegations,” but it “must plead

15 ‘enough facts to state a claim to relief that is plausible on its face.’” Cousins, 568 F.3d at 1067 (9th

16 Cir. 2009). Facial plausibility is met when “the plaintiff pleads factual content that allows the court

17 to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

18 Iqbal, 129 S. Ct. 1937, 1949 (2009). As noted above, the complaint states that LSAC’s practice of

19 ‘flagging’ score reports of individuals who received disability related accommodations violates §

20 12189. As to whether that practice also intimidates disabled test-takers from seeking

21 accommodations or punished those who received accommodations, DFEH has also pled sufficient

22 facts to satisfy the standard set in Cousins and Iqbal. Paragraph 201 of the complaint alleges, among

23 other things, that “flagging” score reports discourages applicants from seeking an accommodation

24 and punishes those who do receive accommodations. As in Breimhorst, DFEH states a claim that

25 flagging can “coerce, intimidate, threaten, or interfere with” the enjoyment of an individual’s right’s

26 under Title III of the ADA, 42 U.S.C. § 12203(b). 2000 WL 34410621 at *7. LSAC’s practice of

27 ‘flagging’ necessarily “announces an individual’s disability above all else,” and this practice “cannot

28 be reconciled with the ADA’s mandate that testing entities must administer exams so as to best

27

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1 ensure that exam results reflect individuals’ skills and achievement level and not their disability.”

2 See Statement of Interests of the United States (Docket No. 29) at 13. This result, in itself,

3 “interfere[s] with any individual in the exercise or enjoyment of, or on account of his or her having

4 exercised or enjoyed . . . any right granted or protected by this chapter.” 42 U.S.C. § 12203(b).

5

The Court, therefore, DENIES LSAC’s motion to dismiss DFEH’s Third Cause of Action.

6 G. Fourth Cause of Action

7

DFEH’s Fourth Cause of Action argues that LSAC breached its duty to make the LSAT

8 accessible to disabled individuals by requiring excessive documentation and by denying reasonable

9 accommodations in violation of 42 U.S.C. § 12189 and 28 C.F.R. § 36.309(b)(1)(iv). Section

10 36.309(b)(1)(iv) of the ADA’s implementing regulations state “any private entity offering an

11 examination covered by this section must assure that any request for documentation, if such

12 documentation is required, is reasonable and limited to the need for the modification,

13 accommodation, or auxiliary aid or service requested. Id. LSAC does not challenge this cause of

14 action insofar as it alleges that LSAC denied “a reasonable accommodation to each real party in

15 interest.” Def’s Motion at 17. It does, however, challenge the sufficiency of the first half of

16 DFEH’s claim that it violated rights of the Complainants by “requiring excessive amounts of

17 documentation.” See id.

18

LSAC advances two arguments in support of this component of its motion to dismiss. First,

19 it posits that “the regulation that DFEH relies upon did not become effective” until after “LSAC

20 processed twelve of the Complainants’ requests for accommodations,” and cannot, therefore, “be the

21 source of claimed violation of their rights.” Def’s Motion at 18. Second, LSAC renews its

22 argument that no private right of action exists to enforce the regulatory mandate in a slightly

23 modified form.

24

Taking the second argument first, LSAC argues that DFEH cannot rely on 28 C.F.R. §

25 36.309(b)(1)(iv) as a “source of a claimed violation” of the ADA because “it imposes obligations

26 that are not found in the statutory provision it purports to implement.” Def’s Motion at 18. LSAC

27 cites Lonberg v. City of Riverside, 571 F.3d 846 (9th Cir. 2009) and Abrahams v. MTA Long Island

28 Bus, 644 F.3d 110 (2d Cir. 2011) broadly for the proposition that “[o]nly those regulations

28

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1 effectuating the statute’s clear prohibitions or requirements are enforceable through the statute’s

2 private right of action.” Id. Each of these cases addressed whether plaintiffs could state a cause of

3 action under the ADA for failure to carry out a provision of DOJ’s ADA regulations; Lonberg

4 addressed a public entity’s obligation to create a “transition plan” to achieve program accessibility

5 as required by 28 C.F.R. § 35.150(d), and Abrahams addressed procedural requirements mandated

6 by the Department of Transportation in 49 C.F.R. § 37.137(c) that public entities permit ongoing

7 public participation in developing and assessing paratransit services. In each case, the court held

8 that the regulation at issue could not be enforced in a private right of action because a public entity’s

9 violation of the regulation did not amount to a violation of the ADA. See Lonberg, 571 F.3d at 851

10 (“The existence or non-existence of a transition plan does not, by itself, deny a disabled person

11 access to a public entity’s services, nor does it remedy the denial of access.”); Abrahams, 644 F.3d

12 at 119 (“by its own terms, the ‘ongoing requirement’ of 49 C.F.R. § 37.137(c) has a broader

13 application than the implementation of an initial plan or the submission of annual updates [as

14 required under 42 U.S.C. § 12143] . . . [t]ellingly, a public entity may be in full compliance with §

15 12143’s public participation requirements, while simultaneously violating § 37.137(c)’s ongoing

16 public participation requirement.”).

17

Unlike Lonberg and Abrahams, the regulation at issue in this case does not create an

18 obligation that extends beyond the statutory requirements of the ADA. Section 12189 requires test

19 providers to offer their examinations “in a place and manner accessible to persons with disabilities

20 or offer alternative accessible arrangements for such individuals.” 42 U.S.C. § 12189. Failure to do

21 so gives rise to a private right of action “to any person who is being subjected to discrimination on

22 the basis of disability in violation of this subchapter.” 42 U.S.C. § 12188(a)(1). The Ninth Circuit

23 has previously considered the meaning of § 12189’s language and held that “[b]ecause § 12189 is

24 ambiguous with respect to its requirement that entities administer licencing exams in a manner

25 “accessible” to individuals with disabilities, we defer to DOJ’s interpretation of the statute so long as

26 that interpretation is based upon a permissible construction of the statute.” Enyart v. Nat’l

27 Conference of Bar Examiners, Inc., 630 F.3d 1153, 1162 (9th Cir. 2011) (Enyart rejected a similar

28

29

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1 challenge brought by a testing entity against a DOJ regulation that purportedly imposed an

2 obligation beyond § 12189’s statutory mandate).

3

The regulation at issue here requires “any request for documentation, if such documentation

4 is required,” to be “reasonable and limited to the need for the modification, accommodation, or

5 auxiliary aid or service requested.” 28 C.F.R. § 36.309(b)(1)(iv). LSAC may be correct in asserting

6 that the language of § 12189 does not explicitly address “limitations regarding documentation,” see

7 Def’s Motion at 17:28-18:3, but it does mandate that examinations be offered “in a place and

8 manner accessible to persons with disabilities.” Unlike the regulations at issue in Lonberg and

9 Abrahams which clearly imposed regulatory mandates in excess of statutory text, excessive or

10 unreasonable documentation could deny an applicant’s access to an examination in violation of the

11 ADA. In its Notice of Proposed Rulemaking preceding the agency’s 2010 revisions to 28 C.F.R.

12 Part 36, DOJ noted how “[t]hrough its enforcement efforts, the Department has discovered that the

13 requests made by testing entities for documentation regarding the existence of an individual’s

14 disability and her or his need for a modification or an auxiliary aid or service are often inappropriate

15 or burdensome.” 73 Fed. Reg. 34508, 34539 (June 17, 2008). Thus, 28 C.F.R. § 36.309(b)(1)(iv) is

16 simply an interpretative regulation which clarifies and gives specific meaning to § 12189. It is true

17 that “[l]anguage in a regulation may invoke a private right of action that Congress through statutory

18 text created, but it may not create a right that Congress has not,” Alexander v. Sandoval, 532 U.S.

19 275, 291 (2001); however, § 36.309(b)(1)(iv) does not run afoul of that standard. Section

20 36.309(b)(1)(iv) does not create a new right; it merely delineates a concrete example of what

21 constitutes a denial of access under the ADA with regard to a testing provider’s documentation

22 requirements.

23

LSAC’s argument regarding the effective date of the regulation also fails. LSAC’s argument

24 implies that, absent the Justice Department’s regulation found at 28 C.F.R. § 36.309(b)(1)(iv), it

25 would not otherwise be required to limit its documentation requests to that which is “reasonable and

26 limited to the need for the modification” [testing accommodation in this context]. 28 C.F.R. §

27 36.309(b)(1)(iv). This misstates the law. As noted above, the obligation to refrain from imposing

28 inappropriate or burdensome requests for documentation in support of a testing accommodation

30

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1 request, springs not from the Justice Department’s regulatory scheme, but from the ADA itself.

2 Section 12189 affirmatively requires test providers to offer examinations “in a place and manner

3 accessible to persons with disabilities.” 42 U.S.C. § 12189. As the Justice Department makes clear

4 in its Statement of Interests, for more than 20 years, the Department has interpreted this provision of

5 the ADA as inherently limiting “requests for documentation” made by test providers to that which is

6 “reasonable” and “limited to the need of the modification or aid requested.” See Statement of

7 Interests of the United States of America (Docket No. 29) at 10-11. Indeed, it codified this

8 interpretation in the preamble to its 1991 ADA regulations. See 56 Fed. Reg. 35544, 35573 (July

9 26, 1991). When the Department issued the regulation specifically enumerating this longstanding

10 interpretation of § 12189, it “merely sought to clarify testing entities’ responsibilities under [section

11 12189]” in a way “that should lead to fewer misinterpretations of the requirements, more compliance

12 with the ADA, and less discrimination in testing.” Statement of Interests of the United States of

13 America at 11-12. The codification of this long standing interpretation at 28 C.F.R. §

14 36.309(b)(1)(iv) did not alter any existing rights or obligations; it merely clarified what those rights

15 and obligations under § 12189 are and have been. Contrary to Defendant’s argument, this regulation

16 is not the source of a claimed violation of complaints rights; the ADA is, and the regulation is

17 merely interpretive. See Manhattan Gen. Equip. Co. v. Comm’r, 297 U.S. 129, 135 (1936)

18 (explaining that agency rule interpreting a statute “is no more retroactive in its operation than a

19 judicial determination construing and applying a statute to a case in hand”).

20

For these reasons, the Court DENIES LSAC’s motion to dismiss DFEH’s Fourth Cause of

21 Action.

22 H. Fifth Cause of Action

23

DFEH’s Fifth Cause of Action contends that LSAC’s policy of requiring excessive

24 documentation to support accommodation requests coerced and discouraged the real parties in

25 interest to this suit from seeking disability related accommodations in violation of 42 U.S.C. §

26 12203(b). Much like its Third Cause of Action, DFEH frames this claim on the belief that requiring

27 excessive documentation in violation of § 12189 operated in a manner that “coerce[d], intimidate[d],

28

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1 threaten[d], or interfere[d]” with the plaintiffs’ enjoyment of their rights under the ADA. Compl. ¶

2 213.

3

LSAC’s motion to dismiss argues, in essence, that its actions were not coercive, intimidating,

4 or threatening because (1) it has a “right to request reasonable documentation” in support of an

5 accommodation request, and (2) DFEH merely disagrees with LSAC’s assessment of what

6 documentation was required under the ADA in order to grant plaintiffs’ requested accommodations.

7 See Def’s Motion at 19. DFEH does not dispute LSAC’s right to request reasonable documentation

8 under the ADA. DFEH does allege that LSAC exceeded that right in regard to the documentation

9 requests made of the plaintiffs in this case. See Compl. ¶¶ 211-216. Again, in the context of a

10 motion to dismiss under Rule 12(b)(6), the allegations of the complaint must be taken as true.

11

LSAC’s second argument construes DFEH’s Fifth Cause of Action as, essentially, a

12 “disagreement” over factual issues as to whether Complainants sufficiently documented their need

13 for testing accommodations, and then states that “such disagreement cannot be converted into a

14 cause of action.” Def’s Motion at 19-20. The Court disagrees. This element of the Complaint

15 alleges that LSAC’s documentation policies and practices both coerced and discouraged the real

16 parties, from seeking accommodations on the LSAT, and punished those who did apply for

17 accommodations by subjecting them to excessive and capricious documentation requirements. The

18 complaint states a claim under § 12203(b).

19

As such, LSAC’s motion to dismiss DFEH’s Fifth Cause of Action is DENIED.

20 I. Narrowing of The Class

21

LSAC next challenges DFEH’s authority to seek class relief under California’s Fair

22 Employment and Housing Act. Defendant argues that DFEH only has authority to seek relief on a

23 class basis where “an unlawful practice alleged in a verified complaint adversely affects, in a similar

24 manner, a group or class of persons of which the aggrieved person filing the complaint is a member,

25 or where such an unlawful practice raises questions of law or fact which are common to such a

26 group or class.” Def’s Motion at 20; see also Cal. Gov’t Code § 12961. LSAC contends that a class

27 action complaint may only include “similarly situated” individuals to those originally filing verified

28 complaints and may only address practices at issue in those original verified complaints. See id.

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1 LSAC also asserts that DFEH must properly notify it of any class-based allegations, provide LSAC

2 the opportunity to address any allegedly unlawful actions and participate in conciliation discussions.

3 See id. To that end, LSAC contends that the notice it received was improper and that DFEH

4 insufficiently attempted to resolve the complaints in this matter through conciliation since the

5 conciliation process consisted of only a single meeting where a settlement payment was demanded.

6

LSAC’s narrow reading here of the class relief mechanism presented in the FEHA largely

7 duplicates its earlier argument challenging DFEH’s jurisdiction to pursue claims that emerged

8 during the course of investigating a verified complaint. As noted above, claims asserted by DFEH

9 that are “like or reasonably related to” the allegations set forth in the Notice of Class Action are

10 permissible under Rodriguez v. Airborne Express, supra, 256 F.3d 890. DFEH’s Notice of Class

11 Action clearly stated that the agency was investigating claims that LSAC “engaged in unlawful

12 practices against [verified complainants] which were discriminatory on the basis of disability,” and

13 that its investigation would expand to include “all disabled individuals in the State of California who

14 have or will request a reasonable accommodation for the [LSAT], administered by the LSAC, and

15 who have or will be unlawfully denied such request” within the time period specified. Compl., Ex. 3

16 ¶¶ 1-3. The fact that DFEH’s Notice of Class Action Complaint specifically mentions class

17 members who were denied accommodations does not necessarily preclude potential class members

18 who were granted accommodations on the LSAT from being “similarly situated.” Both groups of

19 individuals may have been impacted by LSAC’s allegedly unlawful practices in regards to

20 discrimination on the basis of a disability. For example, both those who were granted and denied

21 reasonable accommodations on the LSAT faced LSAC’s alleged unlawful practices of requiring

22 individuals to take their medication or submit a justification for failure to do so (first class cause of

23 action), LSAC’s failure to ensure that the exam measures aptitude rather than disability (second

24 class cause of action), and LSAC’s imposition of excessive documentation requirements (fourth

25 class cause of action). See Compl. ¶¶ 187-204. The claims of the class members are thus similar;

26 regardless of whether accommodations were denied or granted, their claims raise common questions

27 of law and fact.

28

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1

On the facts pled in the complaint, the declarations submitted accompanying this motion, and

2 Ninth Circuit precedent in this area of law, the Court concludes the breadth of DFEH’s class claims

3 did not deprive LSAC of proper notice of the claims brought against it in this Complaint. Indeed,

4 one of the first verified complaints in this matter – that of Nicholas Jones – specifically placed

5 LSAC on notice that the scope of DFEH’s investigation would be conducted on a class basis. See

6 Compl., Ex. 2 (Verified Complaint of Nicholas Jones) (“I am making this complaint on behalf of

7 myself and all other disabled individuals, who have been, are now, or will in the future be similarly

8 aggrieved.”). That same verified complaint clearly indicates that LSAC’s documentation practices

9 were being called into question. See Id. Having already concluded that DFEH’s allegations

10 regarding LSAC’s flagging practice is “like or reasonably related to” the allegations originally

11 presented in the verified complaints, the Court rejects LSAC’s argument that it did not receive

12 adequate notice of the scope of allegations that ultimately made their way into the Complaint.

13

LSAC further argues that DFEH has no need to proceed in this matter on a class basis. See

14 Def’s Motion at 21, Fn.7. LSAC states that a Notice of Investigation was sent to 311 individuals, 89

15 of whom consented to disclosure of their names to DFEH. Id. From those 89 names, LSAC decided

16 to seek relief on behalf of only seventeen individuals. Id. Thus, LSAC argues, DFEH has already

17 had a chance to review “applicable records” and identified viable claims. However, LSAC offers no

18 legal support for its assertion that DFEH’s decision to proceed on a class basis is impermissible. It

19 cites no cases or statutes that deprive DFEH of the ability to maintain a class complaint under the

20 facts of this case. Plaintiffs’ claims are all “within the scope of the administrative investigation

21 which can reasonably be expected to grow out of the [initial charges] of discrimination.” Rodriguez

22 v. Airborne Express at 897.

23

The Court therefore rejects LSAC’s arguments that the scope of DFEH’s proposed class

24 ought to be limited.

25 J. Recovery of Damages Under the Unruh Act

26

LSAC asserts that DFEH may not recover the treble damages DFEH seeks under Cal. Civ.

27 Code § 52 for alleged violations of the Unruh Act. Def’s Motion at 21. Rather, LSAC argues that

28 DFEH’s damages claims are governed by Cal. Gov. Code § 12970. Id. at 22 (citing Dep’t of Fair

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1 Empl. & Housing v. Marion’s Place, 2006 WL 1130912, at *12 (Cal. FEHC 2006)). As such, LSAC

2 claims that DFEH’s claims for treble damages and a minimum recovery of $4,000 per Unruh Act

3 violation pursuant to California Civil Code § 52 must fail as a matter of law. Def’s Motion at 22.

4

California Civil Code § 52(a) states that those who discriminate under the Unruh Act are

5 “liable for each and every offense for the actual damages, and any amount that may be determined

6 by a jury, or a court sitting without a jury, up to a maximum of three times the amount of actual

7 damage but in no case less than four thousand dollars ($4,000) . . . suffered by any person denied the

8 rights provided in Section 51, 51.5, or 51.6.” Cal. Civ. Code § 52(a). Notwithstanding this

9 provision, the California Fair Employment and Housing Commission (“FEHC”) has ruled that

10 actions before the Commission are governed not by § 52, but rather by Cal. Gov. Code § 12970,

11 which authorizes the Commission to award damages in an amount different from that available

12 under § 52(a). See Dep’t of Fair Empl. & Housing v. Marion’s Place, 2006 WL 1130912, at *12

13 (Cal. FEHC 2006).

14

Importantly, DFEH’s complaint here is being heard in civil court and not in front of the

15 FEHC. Indeed, as DFEH points out in its papers, LSAC chose to remove the matter to civil court in

16 lieu of an FEHC hearing. Consequently, DFEH contends that LSAC is subject to a civil court’s

17 authority to award damages, and not damages as would be available before FEHC. Pl’s Opp. at 21.

18

LSAC offers two arguments attempting to rebut DFEH’s claim that § 52(a) governs an award

19 of damages in this case, but both are unpersuasive. LSAC contends that nothing in the statutory

20 provision allowing a party to have its claim heard in civil court rather than in front of the FEHC

21 includes a requirement that the parties “forego FEHA damages in favor of damages awarded under

22 the Unruh Act.” Def’s Reply at 15. In support of its argument that a court’s authority to award

23 damages ought to parallel the damages available before FEHC, LSAC cites Cal. Govt. Code §

24 12970(a)(3) which states that FEHC “may award the same damages ‘as may be available in civil

25 actions under this part.’” Id. (citing Cal. Gov’t Code § 12970(a)(3).

26

Despite LSAC’s arguments to the contrary, the amount of damages that can be awarded by

27 FEHC are simply not relevant to this action. While § 12970 and Marion’s Place may impose limits

28 on FEHC’s remedial authority, they do not purport to limit damages awardable in court. In actions

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1 removed from FEHC to court via Cal. Gov. Code § 12965(c)(1), subsection (c)(3) provides that “[a]

2 court may grant as relief in any action filed pursuant to this subdivision any relief a court is

3 empowered to grant in a civil action brought pursuant to subdivision (b),” the provision of FEHA

4 involving suits in court for complaints that are not heard by the agency and for which a right-to-sue

5 notice has issued. That statute does not incorporate any limit on damages applicable under FEHA.

6 Courts may award aggrieved parties treble damages under the Unruh Act, see Cal. Civ. Code § 52.

7 No statutory provision prevents the Court from awarding similar damages in actions brought by

8 DFEH under 12965(b) and (c)(3).

9 K. Dismissal of Doe Defendants

10

DFEH brought all five of its ADA claims against not only LSAC but also ten unnamed Doe

11 Defendants . Compl. ¶ 5. DFEH asserts in the complaint that it is ignorant of the Doe Defendants

12 “true names or capacities,” but that it will amend the Complaint to include that information when it

13 is ascertained through the course of litigation. Id. DEFH states that each Doe Defendant was an

14 employee of LSAC during the time of the alleged unlawful conduct, and that each should be held

15 jointly and severally liable to the real parties in the action for damages. Id. ¶ 6. LSAC makes three

16 main arguments to support its assertion that the Doe Defendants should be dismissed from the

17 complaint. First, LSAC asserts that DFEH failed to plead “a single fact” regarding any alleged

18 misconduct by any of the Doe Defendants and therefore runs afoul of Fed. R. Civ. P. 8. Def’s

19 Motion at 22. Second, LSAC contends that no individual person offers the LSAT, only LSAC the

20 business entity does, and thus there is no possibility that an individual person could be held liable for

21 the ADA violations complained of in this action. Id. at 23. Third, LSAC claims that DFEH is

22 precluded from naming the Doe Defendants because no individuals were specifically named as

23 defendants in the original administrative complaints filed by the Complainants. Id. at 24.

24

LSAC cites Dydzak v. George, 2010 U.S. Dist. Lexis 144336 at *24 (C.D. Cal. 2010). In

25 Dydzak, a plaintiff brought suit against the State Bar of California as well as judges and other

26 attorneys involved in an alleged “conspiracy” which led to the plaintiff’s disbarment. See Id. at *6-

27 7. In addition to suing the State Bar itself, the plaintiff also named ten unnamed state bar

28 defendants, Does 1-10. Id. at *23. Because the complaint failed to allege specific factual matters or

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1 acts that the unidentified individuals committed beyond a general assertion of their complicity in the

2 alleged wrongs, the court found that the claims against the Doe defendants failed to meet the

3 pleading standards set under Fed. R. Civ. P. 8 and dismissed the Doe defendants from the action.

4 See id. at *25.

5

DFEH has not submitted any legal authority or factual claims to rebut LSAC’s argument.

6 Rather, DFEH merely states that it “may find” that other “entity defendants are responsible for some

7 or all of the alleged ADA violations.” Pl’s Opp. at 22. Similar to the plaintiff in Dydzak, DFEH has

8 only named ten Doe Defendants in a cursory manner and has not pled any specific factual

9 allegations beyond the assertions that such defendants worked in some capacity for LSAC and are

10 somehow materially involved in LSAC’s alleged unlawful conduct. See Compl. ¶¶ 5-6. As such,

11 DFEH has failed to meet the standard set forth by Fed. R. Civ. P. 8. Indeed, DFEH comes close to

12 conceding that it has no strong legal basis for retaining the Doe defendants when it “asks this

13 Court’s leave to retain its DOE allegations through the date of initial disclosures.” Pl’s Opp. at 22.

14

LSAC also argues that individual liability is unavailable as a remedy under the ADA claims

15 advanced by DFEH. See Def’s Motion at 23. Focusing on the second and fourth claims in DFEH’s

16 complaint, LSAC contends that claims against individuals are unavailable in this case under 42

17 U.S.C. § 12189, since, by its terms, this section can only apply to a person that “offers” a

18 standardized examination. See id. As the complaint reflects, no individual can offer the LSAT; only

19 LSAC offers the LSAT. Id. Although LSAC does not advance any direct legal support to show that

20 claims against individuals are not available under 42 U.S.C. § 12189, LSAC does support its

21 argument by citing to several cases where courts refused to impose remedies against individual

22 defendants under 42 U.S.C. § 12812(a), Title III’s public accommodation provision. See Def’s

23 Motion at 23. In Emerson v. Thiel College, 296 F.3d 184 (3d Cir. 2002), the Third Circuit held that

24 individual college defendants did not “operate” Thiel College, a place of public accommodation, and

25 thus were not liable under Title III of the ADA. Emerson v. Thiel College, 296 F.3d at 189. See

26 also White v. Creighton Univ., 2006 WL 3419782 (D. Neb. Nov. 27, 2006) (no ADA liability found

27 under Title III because individual defendants do not ‘operate’ the university). In the absence of

28 contrary authority, the Court finds LSAC’s argument persuasive.

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1

DFEH has failed to satisfy the pleading standard set forth by Fed. R. Civ. P. 8 regarding the

2 ten Doe Defendants, and has likewise failed adequately to demonstrate that its causes of action can

3 impose individual liability under the ADA. As such, the Court GRANTS LSAC’s motion to

4 dismiss with prejudice the ten Doe Defendants from the complaint.

5

IV. CONCLUSION

6

For the reasons stated above, the Court hereby GRANTS Defendant’s motion to dismiss the

7 ten Doe Defendants from this action, and DENIES the remainder of Defendant’s motion to dismiss

8 in its entirety.

9

This order disposes of Docket No. 13.

10

11

IT IS SO ORDERED.

12

13 Dated: September 18, 2012

14

_________________________

EDWARD M. CHEN

15

United States District Judge

16

17

18

19

20

21

22

23

24

25

26

27

28

38

 
 Case3:12-cv-01830-EMC Document62 Filed10/19/12 Page1 of 40

1 THOMAS E. PEREZ, Assistant Attorney General

2

EVE L. HILL, Senior Counselor to the Assistant Attorney General GREGORY B. FRIEL, Acting Chief

3

ROBERTA KIRKENDALL, Special Legal Counsel KATHLEEN P. WOLFE, Special Litigation Counsel

4

NABINA SINHA, Trial Attorney MEGAN E. SCHULLER, Trial Attorney, CSBN 281468

5

U.S. Department of Justice 950 Pennsylvania Avenue, N.W. - NYA

6

Washington, D.C. 20530 Telephone: (202) 307-0663

7

Facsimile: (202) 305-9775 Nabina.Sinha@usdoj.gov

8

MELINDA HAAG, United States Attorney, CSBN 132612 ALEX G. TSE, Chief, Civil Division, CSBN 152348

9 MELANIE L. PROCTOR, Assistant United States Attorney, CSBN 228971

450 Golden Gate Avenue, Box 36055

10

San Francisco, California 94102

Telephone: (415) 436-6730

11

Facsimile: (415) 436-6478

12

Melanie.Proctor@usdoj.gov ATTORNEYS FOR UNITED STATES, PLAINTIFF-INTERVENOR

13

IN THE UNITED STATES DISTRICT COURT

14

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION 15

16 THE DEPARTMENT OF FAIR EMPLOYMENT ) Case No. CV 12-1830-EMC

AND HOUSING,

)

17

Plaintiff,

)

)

18

v.

)

19 LAW SCHOOL ADMISSION COUNCIL, INC.,

) ) COMPLAINT IN INTERVENTION

20 ET AL., Defendants.

) PURSUANT TO THE AMERICANS ) WITH DISABILITIES ACT,

21

) 42 U.S.C. §§ 12181 et seq. AND 12203

JOHN DOE et al., and all other similarly

)

22 situated individuals,

)

23

Real Parties in Interest.

) )

24 THE UNITED STATES OF AMERICA,

)

Plaintiff-Intervenor,

)

25

)

v.

)

26

)

27

LAW SCHOOL ADMISSION COUNCIL, INC. Defendant.

) )

28 CASE NO. CV 12-1830-EMC UNITED STATES’ COMPLAINT IN INTERVENTION

Case3:12-cv-01830-EMC Document62 Filed10/19/12 Page2 of 40

1

COMPLAINT IN INTERVENTION

2

THE UNITED STATES OF AMERICA, by its undersigned attorneys, hereby files this

3 Complaint in Intervention and alleges upon information and belief:

4

INTRODUCTION

5

1. This action is brought by the United States to enforce titles III and V of the

6 Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12181 et seq. and 12203, as amended, and

7 the Department of Justice’s implementing regulation, 28 C.F.R. Part 36, against the Law School

8 Admission Council, Inc. (LSAC). LSAC has failed to administer the Law School Admission

9 Test (LSAT) in a manner accessible to prospective law students with disabilities, in violation of

10 42 U.S.C. § 12189, by: (1) failing to provide testing accommodations so as to best ensure that

11 test results reflect aptitude rather than disability, (2) “flagging” (or annotating) accommodated

12 test scores, (3) making unreasonable requests for documentation in support of requests for testing

13 accommodations, (4) failing to give considerable weight to documentation of past testing

14 accommodations received in similar testing situations, (5) failing to respond in a timely manner

15 to requests for testing accommodations, and (6) failing to provide appropriate auxiliary aids.

16 LSAC also has failed to provide prospective law students with disabilities the full and equal

17 enjoyment of its goods, services, facilities, privileges, advantages, and accommodations, in

18 violation of 42 U.S.C. § 12182, by unnecessarily flagging test scores obtained with testing

19 accommodations, and by identifying and reporting otherwise confidential disability-related

20 information. LSAC’s flagging policy also interferes with individuals’ exercise of their rights

21 under the ADA, in violation of 42 U.S.C. § 12203. As a result, LSAC has denied prospective

22 law students with disabilities a full and equal opportunity to demonstrate their knowledge and

23 aptitude and to fairly compete for educational and employment opportunities for which the

24 LSAT is a prerequisite.

25

2. The ADA rests on Congress’ determination that “the Nation’s proper goals”

26 regarding individuals with disabilities include “equality of opportunity” and “full participation”

27 for such individuals, and that “the continuing existence of unfair and unnecessary discrimination

28 and prejudice denies people with disabilities the opportunity to compete on an equal basis and to
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1 pursue those opportunities for which our free society is justifiably famous.” 42 U.S.C.

2 §§ 12101(a)(7)-(8). The ADA’s mandate that testing entities, such as LSAC, offer examinations

3 in an accessible manner is pivotal to furthering the ADA’s purpose “to provide a clear and

4 comprehensive national mandate for the elimination of discrimination against individuals with

5 disabilities.” Id. § 12101(b)(1). As credentialing examinations, such as the LSAT, are the

6 gateway to educational and employment opportunities, the ADA demands that each individual

7 with a disability have the opportunity to fairly compete for and pursue all such opportunities.

8

3.

The Attorney General has commenced this action based on reasonable cause to

9 believe that LSAC is engaged in a pattern or practice of discrimination, and that a person or

10 group of persons has been discriminated against and that such discrimination raises issues of

11 general public importance. 42 U.S.C. § 12188(b)(1)(B). The United States seeks declaratory

12 and injunctive relief, compensatory damages, and a civil penalty against LSAC.

13

JURISDICTION AND VENUE

14

4. This Court has jurisdiction over this action under 42 U.S.C. § 12188(b)(1)(B) and

15 28 U.S.C. §§ 1331 and 1345. This Court has authority to grant a declaratory judgment pursuant

16 to 28 U.S.C. §§ 2201-2202 and authority to grant equitable relief, monetary damages, and civil

17 penalties under 42 U.S.C. § 12188(b)(2).

18

5. Venue is proper in the Northern District of California pursuant to 28 U.S.C.

19 § 1391(b)(2) because a substantial part of the events or omissions giving rise to the claims

20 occurred in this judicial district.

21

PARTIES

22

6. Plaintiff-Intervenor is the United States of America.

23

7. Plaintiff Department of Fair Employment and Housing (DFEH) is a California

24 state agency charged with enforcing the rights of all Californians under the California Unruh

25 Civil Rights Act (Unruh Act), Cal. Civ. Code, §§ 51 et seq., “to the full and equal

26 accommodations, advantages, facilities, privileges, or services in all business establishments of

27 every kind whatsoever.” Id. at subd. (b). The Unruh Act incorporates the ADA. Id. at subd. (f).

28

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1

8. Defendant LSAC is a Delaware non-profit corporation headquartered at 662 Penn

2 Street, Newtown, Pennsylvania 18940. All law schools approved by the American Bar

3 Association (ABA) are LSAC members. LSAC provides a number of services to its member law

4 schools and to persons seeking admission to law school, including the administration of the

5 LSAT, an examination related to applications for post-secondary education purposes within the

6 meaning of 42 U.S.C. § 12189 and the Department of Justice’s implementing regulation, 28

7 C.F.R. § 36.309. Among other things, LSAC administers, manages, and proctors the LSAT

8 multiple times each year at approximately 1,400 law schools, universities, and other venues

9 across the United States, organizes and holds open invitation forums at hotels and universities for

10 prospective law students, and conducts educational conferences at hotels and universities for law

11 school professionals and prelaw advisors, making LSAC a public accommodation within the

12 meaning of 42 U.S.C. § 12182 and the Department of Justice’s implementing regulation, 28

13 C.F.R. pt. 36. In addition, LSAC is a “person” that offers examinations related to applications

14 for postsecondary education within the meaning of 42 U.S.C. § 12189 and a “private entity” that

15 offers examinations related to applications for postsecondary education within the meaning of

16 28 C.F.R. § 36.309, the Department’s implementing regulation.

17

FACTS

18

LSAC and the LSAT

19

9. LSAC administers the LSAT to approximately 150,000 people annually.

20 Applicants to all U.S. ABA-approved law schools are required to take the LSAT in order to be

21 eligible for admission to law school.

22

10. LSAC administers the LSAT four times a year at approximately 650 test centers

23 throughout the United States at a base cost of approximately $160 per applicant. Test centers

24 include, among others, universities and law schools, and many examinees travel across state lines

25 to take the test. The LSAT is a half-day standardized test. The test consists of five 35-minute

26 sections of multiple-choice questions, four of which are scored. A 35-minute writing sample is

27 also administered. The writing sample is not scored but it is sent to law schools along with

28 scores from the other sections.
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1

11. LSAT scores range from 120-180, with 120 being the lowest possible score and

2 180 the highest possible score. LSAC also reports the amount of measurement error associated

3 with each test form, a concept known as the standard error of measurement (SEM). According to

4 LSAC, the SEM is usually about 2.6 points. LSAT score bands are constructed by adding and

5 subtracting the (rounded) SEM to and from an actual LSAT score (e.g., the LSAT score, plus or

6 minus 3 points). According to LSAC documents, score bands constructed in this manner will 7 contain an individual’s true score approximately 68 percent of the time. In addition, according to 8 LSAC, the standard error of score differences is approximately 1.4 times larger than the standard

9 error of measurement for the individual scores. According to LSAC, reliability coefficients for

10 past LSAT forms have ranged from .90 to .95, indicating how likely a student is to obtain a

11 similar score if taking the test again. Because one test may differ from another in terms of

12 difficulty, in order to report all tests on the same score scale, LSAC also applies “equating” to

13 make the scores obtained on different test forms comparable.

14

12. LSAC also offers a “Credential Assembly Service,” in which applicants to law

15 school upload transcripts, letters of recommendation, evaluations, and other application

16 materials. LSAC then disseminates the application materials, along with an applicant’s LSAT

17 score report, to law schools. Nearly all ABA-approved law schools and many other law schools

18 require the use of this service for law school applicants. LSAC charges each of the 84,000

19 annual applicants a base cost of approximately $155 to participate in the Credential Assembly 20 Service. LSAC makes candidates’ law school application credentials available to law schools 21 through its Candidate Referral Service. LSAC also organizes and hosts open invitation forums at

22 hotels and universities nationwide for nearly 10,000 prospective law students annually to meet

23 with representatives of over 200 LSAC-member law schools to learn about LSAC and the LSAT.

24 LSAC also organizes and hosts educational conferences for law school administrators and

25 professionals and for prelaw advisors to learn about LSAC and the law school admissions

26 process. 27

28
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1

13. Applicants with disabilities may seek testing accommodations1 on the LSAT

2 pursuant to LSAC’s policies, procedures, and practices. But those policies, procedures, and

3 practices impose restrictions that are inconsistent with the requirements of the ADA and operate

4 to discriminate against and exclude persons with disabilities.

5

14. Under LSAC’s policies, procedures, and practices, applicants with disabilities

6 seeking testing accommodations must complete and submit an extensive portfolio of current and

7 historical materials including medical and/or psychological documentation by a stated deadline.

8

(a) Each applicant seeking testing accommodations must submit a three-page LSAT

9 candidate application form, a score report from past standardized tests, a verification of testing

10 accommodations received on each of those tests, and a two-page LSAT evaluator form filled out

11 by a qualified/licensed professional. These are LSAC’s standard documentation requirements

12 for testing accommodations.

13

(b) Depending upon the type of disability, applicants are required to submit additional

14 documentation.

15

(c) Applicants with “cognitive and psychological impairments,” a category that

16 LSAC defines to include, among other things, learning disorders, processing deficiencies, and

17 Attention Deficit Hyperactivity Disorder (ADHD), are referred to a three-page, single-spaced

18 document detailing extensive additional requirements, including:

19

•

Full psychoeducational and/or neuropsychological evaluation which addresses

sensory-motor, auditory, attention, and visual-spatial issues; receptive and

20

expressive language; immediate and delayed memory; achievement; and

intelligence; and which includes a comprehensive diagnostic interview; 21

•

Complete aptitude assessment such as Wechsler Adult Intelligence Scale, Fourth

22

Edition (WAIS-IV);

23

•

Comprehensive achievement battery;

24

•

Timed reading comprehension measure;

25

•

Timed writing measures if additional time on the nonscored writing section is

26 1 The Complaint in Intervention substitutes the common term “testing accommodation” for the technical

27

phrase “modification, accommodation, or auxiliary aid or service.” Both terms denote those modifications, accommodations, or auxiliary aids or services that a testing entity must provide in order to

28

make an examination accessible to people with disabilities under the ADA. 42 U.S.C. § 12189; 28 U.S.C. § 36.309.

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1

requested;

2

•

Measures of spelling and grammar skills if a computer with spelling and/or

grammar check is requested;

3

•

Objective data measures (such as the CPT-II or TOVA) and tests measuring

4

information processing (such as WAIS-IV) for applicants with information/attention processing diagnoses (including ADHD); and

5

•

Personality tests (LSAC recommends submitting an objective test such as the

MMPI-II or MCMI-III and a projective testing instrument like the Rorschach) for

6

applicants seeking accommodations based on psychiatric disorders.

7 All tests for cognitive and psychological disabilities must be no older than three years if the

8 applicant is under the age of twenty-one, or no older than five years if the applicant is over

9 twenty-one.

10

(d) Applicants who are blind or who have other visual disabilities must submit, in

11 addition to the standard documentation requirements, a four-page Evaluation Report filled out by

12 their treating practitioner.

13

(e) Applicants with “physical/medical impairments” must submit, in addition to the

14 standard documentation requirements, a two-page Physical Evaluation Report.

15

(f) Applicants with hearing impairments must submit, in addition to the standard

16 documentation requirements, a comprehensive psychoeducational assessment.

17

(g) Applicants seeking testing accommodations based upon more than one type of

18 impairment must comply with the documentation requirements of each type of impairment.

19 A request for accommodations will not be reviewed until LSAC is in receipt of all of the

20 required documentation related to the applicant’s condition.

21

15. After receiving a complete application for testing accommodations, LSAC

22 nevertheless sometimes claims additional (often unspecified) documentation is required.

23

16. LSAC sometimes substitutes its own views for the substantiated opinions of

24 applicants’ physicians and evaluators, and does not give considerable weight to applicants’

25 documentation of past testing accommodations received, without significant basis to do so. As a

26 result, LSAC unilaterally declines, reduces or changes the testing accommodations requested and

27 justified by the applicants’ submissions.

28
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1

17. When LSAC permits an applicant the accommodation of extended time on the

2 LSAT, it “flags” (or annotates) the score reports of those test takers as having been taken under

3 non-standard conditions when it submits them to law schools and does not report a percentile

4 ranking for those test takers.

5

18. LSAC’s documentation requirements for testing accommodations are frequently

6 onerous and unnecessary. For example, some applicants seeking testing accommodations related

7 to a learning disability may have an extensive history of testing accommodations in other

8 contexts and can provide copies of psychoeducational testing and evaluation documents

9 conducted throughout K-12. Yet to comply with LSAC’s rigid documentation requirements,

10 including the specific tests required and the requirement that the testing be less than three or five

11 years old (depending upon the age of the individual), these applicants must often hire

12 psychologists and other medical professionals to administer and compile the battery of required

13 tests and reports. The out-of-pocket costs can total thousands of dollars.

14

19. LSAC’s documentation requirements are frequently unclear. For example,

15 various testing measures are described as “preferred” or “helpful” but the requirements nowhere

16 explain the relative weight or preference given to such instruments, or the risks involved with

17 providing an alternate measure.

18

20. LSAC’s procedures for receiving, evaluating, and reconsidering requests for

19 testing accommodations are vague, ambiguous, and arbitrary.

20

(a) LSAC publications state that requests for testing accommodations must be made

21 by the general registration deadline. Applicants are urged to submit requests for testing

22 accommodations “well in advance” of the deadlines or “there will be little or no opportunity to

23 rectify deficiencies in documentation or seek reconsideration.” No definition is provided for

24 “well in advance.” LSAC states that it will generally respond to testing accommodation requests

25 within 14 days. The deadline for “reconsideration,” which is LSAC’s label for its appeals

26 process, is the same deadline as for registering for the LSAT and for submitting an original

27 request for testing accommodations. Therefore, unless an applicant requests testing

28 accommodations in advance of the general registration deadline, there will be no opportunity for
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11 reconsideration.

22

(b) The standards by which applications are evaluated initially and upon

33 reconsideration are unclear. Denial letters are frequently cursory (e.g., “The documentation you

44 provided does not demonstrate that you have a limitation of a major life activity which affects

55 your ability to take the LSAT under standard conditions.”).

66

(c) As a result, it is difficult for an applicant to determine what is missing from his or

77 her application, obtain that information from a permitted source, and submit the information in

88 time to obtain a testing accommodation prior to a scheduled test date.

99

21. Those applicants who receive the testing accommodation of extended time for any

1100 portion of the examination do not receive an LSAT score in the same format as their peers

1111 without disabilities. Under this policy and practice, known as “flagging,” LSAC reports these

1122 scores to law schools with a statement advising that the scores “should be interpreted with great

1133 sensitivity and flexibility.” Additionally, LSAC does not average such scores with other scores

1144 and does not provide a percentile rank for such scores – unlike all other test scores.

1155

22. According to LSAC’s published “fairness procedures,” LSAC advises law schools

1166 to “[c]arefully evaluate LSAT scores earned under accommodated or nonstandard

1177 conditions.” (Emphasis in original.)

1188

23. As described in more detail below, since January 1, 2009, LSAC:

1199

(a) instituted a policy or practice of discriminating against individuals with

2200 disabilities on the basis of disability by failing to administer the LSAT in an accessible manner,

2211 in violation of 42 U.S.C. § 12189 and 28 C.F.R. § 36.309.

2222

(b) through its flagging policy, discriminated against individuals with disabilities by

2233 denying them full and equal enjoyment of its goods, services, facilities, privileges, advantages, or

2244 accommodations, in violation of 42 U.S.C. § 12182 and 28 C.F.R. §§ 36.201-202, 204.

2255

(c) through its flagging policy, instituted a policy or practice of discriminating against

2266 individuals with disabilities on the basis of disability by interfering with their exercise or

2277 enjoyment of rights guaranteed to them under 42 U.S.C. §§ 12182 and 12189, in violation of 42

2288 U.S.C. § 12203 and 28 C.F.R. § 36.206.
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1

Rachel Mech

24. Rachel Mech is a resident of Cockeysville, Maryland. Ms. Mech graduated from 2

Georgetown University’s McDonough School of Business in May 2007 with a major in 3

Management and Marketing (receiving high honors), a minor in Government, and a cumulative 4

Grade Point Average (GPA) of 3.70 on a 4.00 scale. In May 2009, she earned a Masters of 5

Professional Studies in Corporate Communications and Public Relations from Georgetown 6

University with a GPA of 3.96 on a 4.00 scale. She has worked in sports marketing, served as an 7

adjunct professor at Georgetown University, and run a sports internship program through 8

Georgetown University. She is twenty-seven years old. 9

25. Ms. Mech has Anxiety Disorder (with obsessive-compulsive features), ADHD, 10

Spoken Language Disorder, and Adjustment Disorder (with depressed mood). In addition to 11

these cognitive and psychiatric disabilities, she also has Scoliosis (diagnosed in 2000) with 12

chronic back pain that has worsened through the years because of complications from spinal 13

fusion surgery in 2004 and 2007, as well as physical trauma from a car accident in 2010. As a 14

result of her Scoliosis, Ms. Mech is in a significant amount of pain most of the time and she was 15

diagnosed with a chronic Pain Disorder in April 2011. These impairments substantially limit the 16

major life activities of, inter alia, reading, writing, learning, concentrating, communicating, 17

sitting, bending, and walking, and the operation of the major bodily functions of the brain, 18

neurological system, and musculoskeletal system. She is an individual with a disability within 19

the meaning of 42 U.S.C. § 12102. 20

26. Ms. Mech was evaluated on two different occasions by qualified professionals, 21

first in 2004 and most recently in 2011, and she has received extended time on tests since the 22

results of her first evaluation were reported. When she was first diagnosed with a learning 23

disorder as a freshman at Georgetown, the qualified professional who evaluated her concluded 24

that Ms. Mech was “cognitively gifted with a learning disability.” Her evaluator recommended 25

that she receive “extended time for tests, including any standardized testing,” and specifically 26

recommended that “[t]ime and a half the regular testing time should provide [Ms. Mech] equal 27

opportunity without giving her an unfair advantage.” Beginning in February 2004, Ms. Mech 28

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1 was granted testing accommodations at Georgetown that included time and a half on tests and

2 testing in a distraction-free environment.

3

27. In April 2011, she was evaluated by another qualified professional, a board

4 certified neuropsychologist, who again recommended extended time on standardized tests,

5 including the LSAT, as well as a distraction-free environment, additional breaks every 30

6 minutes, use of a computer for writing, and extra scrap paper. In her 2011 evaluation, her

7 evaluator noted that “[h]er pain and not being on medication made it even more difficult to

8 complete tests within the allotted time.” Accordingly, the amount of extended time she received

9 on examinations at Georgetown was increased to double time. Her deteriorating physical

10 condition also made it difficult to sit for extended periods of time, and thus she received

11 additional breaks during examinations as needed. Ms. Mech reports that she continued to receive

12 double time on examinations through graduate school. Together, these evaluations establish that

13 Ms. Mech is an individual with a disability who needs testing accommodations, including

14 extended time, for standardized tests like the LSAT.

15

28. Consistent with her long history of testing accommodations, and the

16 recommendations of the qualified professionals who evaluated her, Ms. Mech requested testing

17 accommodations for the October and December 2011 administrations of the LSAT. Specifically,

18 Ms. Mech requested the following testing accommodations for each administration of the LSAT:

19 time and a half for each section, extra breaks, extra scrap paper, use of a computer, and testing in

20 a distraction-free setting. These testing accommodations were also recommended by Ms.

21 Mech’s board certified neuropsychologist who evaluated her in 2011.

22

29. Ms. Mech’s first request for testing accommodations on the October 2011 LSAT

23 is dated June 8, 2011. In support of her request, she submitted a full neuropsychological

24 evaluation from a qualified professional completed in April 2011, verified that she received time

25 and a half for the Graduate Record Examination (GRE), and confirmed that she received formal

26 accommodations in college, including double time for examinations and a distraction-free testing

27 environment. Though not requested by LSAC, Ms. Mech also noted on her request form for the

28
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1 October 2011 LSAT that she received informal accommodations in high school and worked with

2 a speech/language pathologist in elementary school.

3

30. LSAC denied her request for testing accommodations by letter dated July 11,

4 2011. The letter acknowledged that Ms. Mech was diagnosed by her evaluator with a

5 “psychological disorder” but stated that the documentation provided did not demonstrate that her

6 disorder substantially limits a major life activity that affects her ability to take the LSAT.

7

31. In response, Ms. Mech requested that LSAC reconsider her request for testing

8 accommodations on the October 2011 LSAT and submitted additional information, including a

9 letter dated August 22, 2011, from her neuropsychological evaluator and a letter dated August

10 25, 2011, from her primary care physician, that responded to LSAC’s denial of testing

11 accommodations and further explained her disabilities, her need for the testing accommodations

12 requested, and her long history of testing accommodations – both formal and informal. She also

13 submitted a statement explaining that she had been able to self-accommodate until high school,

14 where she received informal accommodations. She was not formally diagnosed with Attention

15 Deficit Disorder (ADD)-Inattentive Type until her freshman year in college, in part because Ms.

16 Mech’s predominant health issue was Scoliosis and it had incorrectly been blamed for her

17 inattentiveness. After being diagnosed with ADD, she began receiving testing accommodations

18 of time and a half and a distraction-free testing environment. Following surgery during Ms.

19 Mech’s sophomore year, Georgetown increased her testing accommodation to double time.

20

32. On September 20, 2011, LSAC again denied her request, and again

21 mischaracterized her neuropsychological evaluation results by selectively relying on test scores

22 that were outliers and ignoring her long history of testing accommodations, both formal and

23 informal. The denial letter concludes by simply stating that “there has been no change in our

24 decision.”

25

33. On October 28, 2011, Ms. Mech, through private legal counsel, again requested

26 the same testing accommodations for the December 2011 LSAT and again submitted additional

27 documentation demonstrating the nature and extent of her disabilities and her need for the testing

28 accommodations requested. Ms. Mech’s additional documentation included letters from two
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1 additional qualified professionals – her physical therapist and her orthopedic surgeon of 11 years,

2 who requested that LSAC reconsider its denial of Ms. Mech’s request for testing

3 accommodations.

4

34. On November 9, 2011, LSAC granted Ms. Mech the limited testing

5 accommodations of extra breaks (5 minutes between each section of the test), one 15-minute

6 break (which is provided to all test takers regardless of disability), and a separate testing room.

7 LSAC did not explain why it decided to provide these testing accommodations but not the others

8 Ms. Mech requested. LSAC also stated that its policies allow a candidate to seek reconsideration

9 of its decision but that LSAC’s self-imposed deadline for reconsideration for the December 2011

10 LSAT had already passed.

11

35. By letter dated November 10, 2011, Ms. Mech again appealed LSAC’s denial and

12 requested reconsideration for the December 2011 LSAT, enclosing a recent photo of Ms. Mech’s

13 spine and the screws that hold it together. Despite being informed that taking the LSAT with the

14 limited testing accommodation of extra breaks offered by LSAC would not accommodate Ms.

15 Mech’s disabilities and would cause her physical and emotional harm, she never received a

16 response to this letter.

17

36. Ms. Mech took the December 2011 LSAT with the limited testing

18 accommodations offered by LSAC, because she planned to enter law school in fall 2012 and the

19 December LSAT was the last test date accepted by many law schools. The 5-minute breaks

20 provided were inadequate to make the LSAT accessible to Ms. Mech and subjected Ms. Mech to

21 unnecessary pain and suffering. She was only able to complete approximately 60 percent of the

22 exam because, in addition to her word-retrieval and attention deficits, she also experienced

23 severe pain and anxiety. This is evidenced by a review of her Item Response Form as, when she

24 ran out of time on a section, she marked the same letter for each remaining answer choice.

25

37. Normally, test takers who receive the testing accommodation of extended time are

26 not required to take the extra “experimental,” unscored multiple choice section of the exam,

27 referred to by LSAC as the “non-operational section of the LSAT.” However, Ms. Mech was

28
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1 required to take this experimental section on the December 2011 LSAT, lengthening her painful

2 experience. Ms. Mech believes that this further reduced her score on the final section.

3

38. Through counsel, by letter dated January 10, 2012, Ms. Mech again requested that

4 LSAC reconsider her previous request for testing accommodations, including extended time, for

5 the February 2012 LSAT, based on the supporting documentation previously submitted, as well

6 as a written account submitted by Ms. Mech of her December test-taking experience. In

7 addition, she specifically requested, as a testing accommodation, that she not be required to take

8 the experimental section. In this letter, she informed LSAC that, without the testing

9 accommodations recommended by her neuropsychologists, surgeons, and therapists, she would

10 have to delay her admission into law school for another year, as the February 2012 LSAT was

11 the last test administration that any law school would consider for admission in the fall of 2012.

12

39. On January 12, 2012, LSAC granted only the limited testing accommodations of

13 extra breaks (5 minutes between each section of the test, as well as one 5-minute break during

14 each section if needed for pain), one 15-minute break (which is provided to all test takers

15 regardless of disability), and a separate testing room. LSAC denied all other testing

16 accommodations requested, including extended time and her request to be exempted from taking

17 the experimental section. Again, LSAC did not explain why it decided to provide these testing

18 accommodations but not the others Ms. Mech requested. And again, LSAC stated that its

19 policies allow a candidate to seek reconsideration of its decision but that LSAC’s self-imposed

20 deadline for reconsideration for the February 2012 LSAT had already passed.

21

40. Through counsel, by letter dated January 16, 2012, Ms. Mech appealed LSAC’s

22 decision with respect to the requirement that she take the experimental section of the exam.

23 LSAC again denied this requested testing accommodation by letter dated January 20, 2012.

24

41. Ms. Mech took the LSAT in February 2012 without her requested testing

25 accommodations other than extra five-minute breaks. Her non-accommodated scores on both the

26 December 2011 and February 2012 LSATs did not accurately reflect her aptitude or achievement

27 level. She believes her scores were negatively impacted by the lack of testing accommodations

28 and by the requirement to take the experimental, unscored test section, as she had to spend time
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111 taking a section that was not scored at the expense of her physical well-being. Being forced to

222 take this additional and unnecessary 35-minute section of the exam caused Ms. Mech significant

333 physical pain and suffering, of which LSAC was aware after Ms. Mech took the December 2011

444 administration of the exam.

555

42. Ms. Mech applied to several law schools and was wait-listed at many of them.

666 Ms. Mech has been admitted to Boston College Law School, where she is scheduled to begin in

777 the fall. Ms. Mech believes that her non-accommodated LSAT scores hindered her admission to

888 a higher ranked law school, as well as the availability of financial aid.

999

Lauren Wiehle

111000

43. Lauren Wiehle has a 2008 Bachelor’s degree in Social Work from the University

111111 of Oklahoma and a 2009 Master’s degree in Social Work from the University of Kansas. She

111222 resides in Tulsa, Oklahoma. She is twenty-six years old.

111333

44. Ms. Wiehle has visual impairments – aphakia, pseudophakia, and a nystagmus.

111444 These impairments substantially limit the major life activities of, inter alia, seeing and reading,

111555 and the operation of the major bodily function of the eyes. She is an individual with a disability

111666 within the meaning of 42 U.S.C. § 12102.

111777

45. Consistent with the testing accommodations she had received and relied upon

111888 since kindergarten, Ms. Wiehle requested the following testing accommodations, including

111999 auxiliary aids, for the February, June, and October 2011 administrations of the LSAT: a large

222000 print test book, 20 additional minutes for each section, an alternate non-Scantron answer sheet,

222111 an additional 5 minutes for the standard break, an additional 10 minute break between sections,

222222 the use of colored transparencies, extra scratch paper, and the ability to answer in the test

222333 booklet.

222444

46. Ms. Wiehle’s first application for testing accommodations was dated November 8,

222555 2010. In support of her request, she submitted LSAC’s “Candidate Form,” which she completed.

222666 She also submitted LSAC’s “Evaluator Form” and “Vision Evaluation Report,” which were

222777 completed by her board certified ophthalmologist. She stated that she had received testing

222888 accommodations in elementary school, high school, and college, and that she had an - 14 -

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1 Individualized Education Program (IEP).2 She also stated that she had received special 2 education services in the form of annual assessments at the Oklahoma School for the Blind. In

3 addition, Ms. Wiehle submitted proof that she had received testing accommodations for the GRE

4 (large print, paper based test, time and a half, breaks as needed, use of a computer for essays, 5 permission to bring colored overlays, and ability to write answers in test book). She also

6 submitted copies of her IEPs.

7

47. Despite her consistent history of receiving testing accommodations, including

8 auxiliary aids, in similar testing situations and the recommendations of her qualified

9 professionals, LSAC refused Ms. Wiehle’s request for: a large print test book, 20 extra minutes 10 per section, alternate non-Scantron answer sheet, additional rest time, breaks between sections,

11 and that she be allowed to mark her answers on the test book. LSAC granted Ms. Wiehle only

12 the use of colored overlays (“as a courtesy”) and extra scratch paper.

13

48. Ms. Wiehle appealed LSAC’s decision by e-mail on January 19, 2011. By letter

14 dated January 24, 2011, LSAC informed Ms. Wiehle that she had missed the January 11, 2011

15 deadline for reconsideration.

16

49. Not wanting to delay her law school applications, Ms. Wiehle took the February

17 2011 LSAT without her requested testing accommodations. Ms. Wiehle’s non-accommodated 18 score did not accurately reflect her aptitude or achievement level.

19

50. In April 2011, Ms. Wiehle requested the same testing accommodations for the

20 June 2011 administration of the LSAT that she had previously sought. In support, she re21 submitted all the information she had previously submitted. She also submitted a letter dated

22 April 15, 2011, from her ophthalmologist explaining her condition and endorsing her request for 23 testing accommodations. Records from an eye exam of Ms. Wiehle conducted on December 13, 24 2010, were attached to the letter. By letter dated May 2, 2011, LSAC again refused to give

25 Ms. Wiehle her requested testing accommodations. 26

27

28

2 An IEP is an agreement describing the special education and related aids and services provided under the Individuals with Disabilities Education Act (IDEA).

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11

51. Ms. Wiehle next requested testing accommodations for the October 2011

22 administration of the LSAT. She requested the same testing accommodations she had previously

33 requested. Despite her extensive history of receiving the very same testing accommodations

44 throughout her educational career and on standardized tests, and in disregard of the

55 recommendations of her qualified professional, by letter dated September 16, 2011, LSAC again

66 refused to give her the requested testing accommodations. LSAC wrote, in part, “While the

77 documentation in your file indicates a number of diagnoses all relating to your vision, this

88 documentation does not support a finding that your vision is impaired at a level that constitutes a

99 disability.”

1100

52. Ms. Wiehle intends to register to take the LSAT again at some point over the next

1111 several years. She intends to again request testing accommodations.

1122

Alexandra Tucker

1133

53. Alexandra Tucker is an undergraduate student at Baylor University. She is

1144 twenty-one years old. She resides in Houston, Texas, when not in school.

1155

54. On April 8, 2004, when she was thirteen years old, Ms. Tucker was involved in an

1166 all-terrain vehicle (ATV) accident in which she hit a tree and sustained a right temporal bone

1177 fracture. These injuries left her hospitalized for several days and forced her to miss several

1188 weeks of school while she recovered. When she returned to school, she noticed immediately that

1199 she was having difficulty paying attention in class, which had never been the case before the

2200 accident. Subsequently, she sustained two additional head injuries – one in 2005 while playing

2211 basketball and another in 2007 while playing volleyball.

2222

55. These head injuries have caused Ms. Tucker to have attention deficits, working

2233 memory deficits, slow processing speed, and migraine headaches. Ms. Tucker has been

2244 diagnosed with Learning Disorder Not Otherwise Specified (NOS), Expressive Language

2255 Disorder, ADHD, and Cognitive Disorder NOS (Postconcussional disorder). These impairments

2266 substantially limit the major life activities of, inter alia, reading, learning, and concentrating, and

2277 the operation of the major bodily functions of the brain and neurological system. She is an

2288 individual with a disability within the meaning of 42 U.S.C. § 12102.
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1

56. Ms. Tucker was evaluated on four different occasions by qualified professionals,

2 first in 2004, and most recently in 2011, and has received testing accommodations in high school

3 and college since the results of her first evaluation were reported. The results of a Language-

4 Learning Evaluation conducted in September 2011 by a licensed speech-pathologist and

5 educational diagnostician showed that Ms. Tucker’s impairments were “consistent with post-

6 concussive attention deficit frequently associated with a brain injury, an invisible but very real

7 and debilitating problem” and that “[e]ven on medication, Miss Tucker has to attend to tasks

8 which, in combination with the cognitive fatigue she has suffered as a result of her multiple head

9 injuries, further fatigues her brain.” In line with previously recommended testing

10 accommodations, the qualified professionals who conducted the evaluation recommended that

11 Ms. Tucker receive time and a half, testing in a separate room, extra breaks, and the ability to

12 mark her answers in the test booklet. Ms. Tucker’s most recent evaluation was conducted in

13 December 2011 by a board certified neuropsychologist who addressed the relationship between

14 Ms. Tucker’s repeated head injuries and her permanent working memory and attention

15 weaknesses. He wrote that Ms. Tucker’s “performances on tests of motor dexterity and speed

16 and higher order sensory discrimination were lower than expected and consistent with known

17 sequelae resulting from diffuse brain injury.” He also recommended that for standardized tests,

18 such as the LSAT, Ms. Tucker should receive time and a half, a distraction reduced testing room,

19 non-Scantron answer sheet, and the ability to take breaks as needed.

20

57. Consistent with the testing accommodations she had received since her first brain

21 injury, and the recommendations of the qualified professionals who evaluated her, Ms. Tucker

22 requested testing accommodations for the February 2012 administration of the LSAT.

23 Specifically, she requested the following testing accommodations: 15 minutes extended time for

24 each multiple choice section, non-Scantron answer sheet, 15 minutes additional break time for

25 the standard break between the third and fourth sections, and five-minute breaks between the

26 other sections.

27

58. Ms. Tucker’s application for testing accommodations for the February 2012

28 LSAT is dated October 16, 2011. In support of her request, she submitted extensive
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1 documentation that established her disabilities and confirmed prior testing accommodations

2 received. She submitted LSAC’s Evaluator Form that was completed by her licensed speech

3 pathologist. She also submitted a neuropsychological evaluation dated October 2004 that was

4 conducted by a qualified professional; a January 2008 letter from a licensed speech-pathologist

5 and educational diagnostician to Ms. Tucker’s high school explaining Ms. Tucker’s impairments

6 and recommending testing accommodations; and from the same licensed speech-pathologist and

7 educational diagnostician, a Language-Learning Evaluation conducted in September 2011 that

8 recommended time and a half, a separate testing room, frequent short breaks during long tests,

9 and allowing Ms. Tucker to mark test answers directly in the test booklet. In addition, Ms.

10 Tucker submitted proof that she had received testing accommodations of time and a half, a small

11 group setting, and large block answer sheet for the SAT (a college admission test), and proof that

12 she receives testing accommodations for her classes at Baylor University (alternate test site,

13 breaks as needed, double time, and the option to not use Scantron answer sheets). She also

14 submitted a personal statement describing her impairments and how testing accommodations

15 have helped her demonstrate her knowledge on tests.

16

59. Despite her history of receiving testing accommodations in similar testing

17 situations and the recommendations of her qualified medical professionals, LSAC refused Ms.

18 Tucker’s request for testing accommodations by letter dated October 31, 2011. LSAC

19 acknowledged that Ms. Tucker had been diagnosed with a learning disorder but questioned the

20 diagnosis and stated that the documentation she provided did not demonstrate that her disorder

21 substantially limits a major life activity that affects her ability to take the LSAT. LSAC

22 disregarded the observations, diagnoses, and recommendations of Ms. Tucker’s qualified

23 professionals, and instead based its conclusion on Ms. Tucker’s performance on various subtest

24 scores included in the reports from Ms. Tucker’s qualified professionals.

25

60. By letter dated January 9, 2012 from private counsel, Ms. Tucker renewed her

26 request for testing accommodations for the February 2012 LSAT but this time asked for time and

27 a half (17.5 extra minutes) instead of 15 extra minutes for each multiple choice section. To this

28 request, she attached a full neuropsychological evaluation that was conducted in December 2011
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11 by a board certified neuropsychologist and that recommended the same testing accommodations

22 Ms. Tucker requested. She also attached the results of a neurology physical exam dated

33 December 2007, and a letter from an orthopedic specialist explaining that Ms. Tucker’s attention

44 deficits were caused by long term post concussive syndrome. This qualified professional also

55 recommended that Ms. Tucker receive her requested testing accommodations for the LSAT.

66 Finally, Ms. Tucker also submitted a personal statement explaining how testing accommodations

77 have helped her since her ATV accident and a declaration from her mother describing the

88 changes she saw in her daughter after the ATV accident and each subsequent head injury.

99

61. LSAC refused Ms. Tucker’s renewed request for testing accommodations. Rather

1100 than delay the law school application process any longer, Ms. Tucker took the June 2012 LSAT

1111 without any testing accommodations. Her non-accommodated score did not accurately reflect

1122 her aptitude or achievement level.

1133

62. Ms. Tucker intends to register to take the LSAT again at some point over the next

1144 several years. She intends to again request testing accommodations.

1155

Matthew Kaplan

1166

63. Matthew Kaplan resides in Kensington, Maryland. He graduated from Oberlin

1177 College in 2005 with a degree in politics and a GPA of 3.48 on a 4.00 scale. He currently works

1188 as an aide on Capitol Hill in Washington, DC. He is twenty-nine years old.

1199

64. Mr. Kaplan has Dyslexia (diagnosed at age 7), Handwriting Disorder -

2200 Dysgraphia,3 and Spoken Language Disorder. These impairments substantially limit the major

2211 life activities of, inter alia, reading, writing, communicating, and learning, and the operation of

2222 the major bodily functions of the brain and neurological system. He is an individual with a

2233 disability within the meaning of 42 U.S.C. § 12102.

2244

65. Mr. Kaplan was evaluated on four different occasions by qualified professionals,

2255 first in 1990 and most recently in 2011, and has received extended time on tests since the results

2266

2277 3 Dysgraphia is a learning disability that affects the motor and information processing skills associated

2288

with writing, and can result in spelling errors, “bad” handwriting, difficulty expressing thoughts in writing, and/or difficulty organizing letters, numbers, and words on a line or page.

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1 of his first evaluation were reported. Mr. Kaplan’s most recent evaluation in April 2011 was

2 conducted by a board certified neuropsychologist who concluded, in part, that Mr. Kaplan “has

3 the double deficit that is typical of individuals with more severe dyslexia,” and noted that

4 Mr. Kaplan’s disabilities are lifelong. His evaluator further noted that his “profile is typical of

5 individuals with dyslexia” and his profile is “remarkably consistent with his history.” Indeed,

6 Mr. Kaplan was first identified as having a learning disability in the second grade at age 7 and

7 was given an IEP that included the testing accommodation of extended time. From that time, he

8 has been given testing accommodations including: extended time for all tests, working with a

9 speech/language pathologist in school, and additional informal accommodations. These

10 evaluations establish that Mr. Kaplan is an individual with disabilities who needs testing

11 accommodations for standardized tests, like the LSAT, including extended time.

12

66. Consistent with his long history of testing accommodations, and the

13 recommendations of the qualified professionals who evaluated him, Mr. Kaplan requested testing

14 accommodations for the June and October 2011 administrations of the LSAT. Specifically, he

15 requested the following testing accommodations for each administration of the LSAT: double

16 time (35 extra minutes) for each multiple choice section, approximately time and a half (18 extra

17 minutes) for the writing section, and the use of a computer and printer for the writing section.

18 These testing accommodations were also recommended by Mr. Kaplan’s board certified

19 neuropsychologist who evaluated him in 2011.

20

67. Mr. Kaplan’s first request for testing accommodations for the June 2011 LSAT is

21 dated April 25, 2011. In support of his request, he submitted a full neuropsychological

22 evaluation from a qualified professional completed in April 2011, proof that he received testing

23 accommodations on at least three Advanced Placement (AP) exams in 2000, and proof that he

24 received time and a half for three administrations of the SAT in June 1999, April 2000, and June

25 2000. He also provided proof that he received time and a half in college, as well as note takers

26 and the use of a computer on written assignments, tests, and exams. In addition, he verified that

27 he had an IEP and received testing accommodations in elementary and high school.

28
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1

68. By letter dated May 4, 2011, LSAC acknowledged that Mr. Kaplan has a learning

2 disorder and granted Mr. Kaplan use of a computer and printer on the writing section for the June

3 2011 LSAT, but denied his request for extended time in full without any explanation. On May 5,

4 2011, Mr. Kaplan wrote LSAC and requested an explanation of the limited testing

5 accommodations granted for the June 2011 LSAT and the basis for LSAC’s denial of the rest of

6 his request. In a letter dated May 11, 2011, LSAC again acknowledged that Mr. Kaplan was

7 diagnosed by his evaluator with a learning disorder, but disputed the diagnosis and his history of

8 testing accommodations and used this as the basis for denying his request for extended time.

9 LSAC inaccurately analyzed Mr. Kaplan’s documentation, by selectively relying on test scores

10 that were outliers and ignoring Mr. Kaplan’s long history of testing accommodations, to

11 conclude that “there has been no change in our decision.”

12

69. On May 11, 2011, Mr. Kaplan requested to move his test date to the October 2011

13 administration of the LSAT. By letter dated May 12, 2011, LSAC granted Mr. Kaplan use of a

14 computer and printer for the writing section for the October 2011 LSAT, but again denied his

15 request for extended time in full without any explanation of its decision.

16

70. On August 29, 2011, Mr. Kaplan, through private legal counsel, requested

17 reconsideration of LSAC’s decision with regard to the October 2011 LSAT and submitted

18 additional supporting documentation further demonstrating Mr. Kaplan’s long history of

19 disabilities and his need for the requested testing accommodations, including a description and

20 further documentation of his long history of testing accommodations – both formal and informal

21 – and a letter from the qualified professional who evaluated him in 2011 (a board certified

22 neuropsychologist) explaining why LSAC’s interpretation of his evaluation was incorrect. In

23 this letter, his evaluator further explained the results of Mr. Kaplan’s 2011 neuropsychological

24 evaluation, stating unequivocally that “[t]hese results leave no doubt in my mind that Mr. Kaplan

25 has dyslexia.”

26

71. Despite this clear and comprehensive documentation of Mr. Kaplan’s disabilities

27 and need for the testing accommodations requested, on September 13, 2011, LSAC again refused

28 to provide Mr. Kaplan the needed accommodation of extended time, simply stating: “For the
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1 reasons previously provided, LSAC’s decision remains unchanged.” LSAC provided no further

2 explanation or legal justification for its decision.

3

72. Mr. Kaplan intends to register to take the LSAT again at some point over the next

4 several years. He intends to again request testing accommodations.

5

Charles Whitman

6

73. Charles Whitman attends California Western School of Law in San Diego,

7 California. He graduated from Westmont College in Santa Barbara, California, in May 2010

8 with a Bachelor of Arts degree in History. When not in school, he resides in Baltimore,

9 Maryland. He is twenty-six years old.

10

74. Mr. Whitman has ADHD (Predominately Inattentive Type) and Graphomotor

11 Output disorder. These impairments substantially limit the major life activities of, inter alia,

12 learning, concentrating, and writing, and the operation of the major bodily functions of the brain

13 and neurological system. Mr. Whitman is an individual with a disability within the meaning of

14 42 U.S.C. § 12102.

15

75. Mr. Whitman’s impairment was observed at an early age. Throughout elementary

16 school, he relied on informal accommodations such as supplemental instruction from tutors and

17 additional time from teachers to learn material, complete timed assignments, and meet academic

18 requirements. By the time he reached the fifth grade, these informal accommodations were no

19 longer sufficient, and Mr. Whitman was evaluated by a neurologist in 1997 at age eleven. He

20 was diagnosed with ADHD and testing accommodations were recommended and received from

21 that time forward.

22

76. Mr. Whitman was evaluated on two additional occasions, most recently in

23 September 2010. Mr. Whitman’s evaluation in September 2010 was conducted by a licensed

24 psychologist and educational specialist who confirmed Mr. Whitman’s ADHD diagnosis and

25 also diagnosed him with Graphomotor Output disorder. The evaluators recommended several

26 testing accommodations, including double time, testing in a quiet environment, additional rest

27 time and breaks between sections, additional time on the writing section and use of a computer

28 for the writing section, and use of scratch paper.
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1

77. Consistent with the testing accommodations he had received throughout his

2 educational career, and the recommendations of the qualified professionals who evaluated him,

3 Mr. Whitman requested testing accommodations for the December 2010, February 2011, and

4 December 2011 administrations of the LSAT. For each administration, he requested the

5 following testing accommodations: double time on the multiple choice sections, 20 extra minutes

6 for the writing section, use of a computer, and testing in a distraction reduced setting.

7

78. In support of his requests, he submitted LSAC’s “Evaluator Form,” which had

8 been completed by his licensed psychologist and educational specialist. He also submitted a

9 psychoeducational evaluation report that had been conducted by his licensed psychologist and

10 educational specialist in September 2010. That report recommended that Mr. Whitman receive

11 his requested testing accommodations. He also submitted a previous psychoeducational

12 evaluation report conducted by qualified professionals in December 2007. That report also

13 recommended that Mr. Whitman receive double time, testing in a quiet environment, test breaks

14 as needed, and use of a computer for essay examinations, among other recommendations. In

15 addition, Mr. Whitman submitted proof of testing accommodations for the SAT (double time)

16 and stated that he received testing accommodations in high school and in college (double time).

17

79. By letter dated November 16, 2010, LSAC refused Mr. Whitman’s request for

18 testing accommodations and stated that it needed several pieces of additional information,

19 including: all scores for the Nelson-Denny Reading Test (NDRT), all past psychoeducational/

20 neuropsychological reports, a full printout from the Conner’s Continuous Performance Test-II,

21 all scores for the Wide Range Assessment of Memory and Learning-Second Edition, and testing

22 results from the Beck Depression Inventory. LSAC also informed Mr. Whitman that it was too

23 late to submit the requested information in time to be considered for the December 2010 LSAT.

24

80. As a result, Mr. Whitman took the LSAT in December 2010 without testing

25 accommodations. His non-accommodated score did not accurately reflect his aptitude or

26 achievement level.

27

81. Mr. Whitman renewed his application for testing accommodations for the

28 February 2011 administration of the LSAT. In support of his request, he submitted the items
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1 LSAC had requested by letter dated November 16, 2010, as well the materials he had submitted

2 in support of his previous request.

3

82. Despite Mr. Whitman’s well documented history of receiving testing

4 accommodations in similar testing situations and the recommendation of his qualified

5 professionals, LSAC again refused his request by letter dated January 18, 2011. LSAC

6 acknowledged that he had been diagnosed by his evaluator with ADHD but still refused to

7 provide any testing accommodations, stating that Mr. Whitman’s score on the December 2010

8 LSAT was commensurate with his full scale IQ, which was only three percentile points higher.

9

83. By letter from private counsel dated October 28, 2011, Mr. Whitman appealed

10 LSAC’s decision. Mr. Whitman attached a letter dated August 26, 2011, from his psychologist

11 and educational specialist explaining that LSAC’s comparison of Mr. Whitman’s LSAT score to

12 his full scale IQ is a poor reference point because both scores are based on language-based

13 reading tasks. Instead, they suggested that Mr. Whitman’s LSAT score should be compared to

14 his WAIS-IV (Wechsler Adult Intelligence Scale-Fourth Edition) Verbal Comprehension score,

15 which was 30 percentile points higher. Mr. Whitman also submitted a personal statement

16 describing his lifelong attention impairment and how testing accommodations enabled him to

17 compete on a level playing field with students without disabilities. In addition, he submitted a

18 declaration from his father explaining Mr. Whitman’s childhood difficulties and how his initial

19 diagnosis and subsequent testing accommodations allowed him to complete more of his school

20 work.

21

84. Nevertheless, by letter dated November 10, 2011, LSAC again refused to give Mr.

22 Whitman any testing accommodations.

23

85. Rather than delay his application to law school, Mr. Whitman took the December

24 2011 LSAT without testing accommodations. His non-accommodated score did not accurately

25 reflect his aptitude or achievement level.

26

86. Mr. Whitman applied to approximately nine law schools. He now attends

27 California Western School of Law in San Diego, California. He believes his LSAT score kept

28 him from being admitted to a higher ranked law school.

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1

Elizabeth Hennessey- Severson

2

(Also Named in DFEH Complaint4 and Quan et al. Complaint in Intervention5)

3

87. Elizabeth Hennessey-Severson, a resident of San Francisco (San Francisco

4 County), California, requested testing accommodations for the June 2011 LSAT at University of

5 California Hastings College of the Law.

6

88. Ms. Hennessey-Severson has a Reading Disorder, Disorder of Written

7 Expression, Mathematics Disorder, and ADHD-I (Attention Deficit-Hyperactive Disorder-

8 Inattentive). These impairments substantially limit the major life activities of, inter alia, reading,

9 concentrating, and the operation of the major bodily function of the brain. Her combined

10 learning disabilities cause Ms. Hennessey-Severson to have impaired reading, writing, and math

11 abilities. Her ADHD-I results in (1) difficulty with sustained concentration and processing

12 speed, (2) distractibility, and (3) difficulties with planning and organization. She is an individual

13 with a disability within the meaning of 42 U.S.C. § 12102.

14

89. Ms. Hennessey-Severson was first diagnosed with her disabilities in 2002, while

15 she was in high school, although she began manifesting symptoms years earlier, while in grade

16 school. Ms. Hennessey-Severson received the testing accommodation of extended time as 17 needed through a Section 504 Plan6 in high school. She also received testing accommodations of

18 double time on the quantitative portions and time-and-a-half on the verbal and written portions

19 on all tests as an undergraduate at Dartmouth College, as well as on the SAT. According to her

20 2009 neuropsychological report, Ms. Hennessey-Severson often had trouble finishing tests in

21 college even with the extended time periods.

22

90. Ms. Hennessey-Severson graduated from Dartmouth College in 2009 with a

23 double major in Government and Spanish and a GPA of 3.4 on a 4.0 scale. She wants to be a

24

25

4 “DFEH Complaint” refers to the complaint filed in the main action. It is attached as Exhibit A to

26 LSAC’s Notice of Removal of Action Under 28 U.S.C. § 1441, April 12, 2012, ECF No. 1.

27

5 “Quan et al. Complaint in Intervention” refers to the proposed complaint in intervention filed by three of the individuals named in the DFEH Complaint. ECF No. 42-3.

28

6 A Section 504 Plan is an agreement describing special or regular education and related aids and services provided pursuant to section 504 of the Rehabilitation Act of 1973.

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1 civil rights attorney working on behalf of individuals in the criminal justice system. She worked
2 for two years as a paralegal in San Francisco.
3 91. Ms. Hennessey-Severson applied to take the June 2011 LSAT on April 27, 2011,
4 in advance of the May 3, 2011 application deadline. She paid the applicable registration fee.
5 She requested extended time on both the multiple choice and writing portions of the LSAT (20
6 extra minutes for each 35-minute section), and 10-minute breaks between each section. She
7 submitted extensive documentation to LSAC that established her disabilities and confirmed prior
8 testing accommodations received, including on standardized tests. Ms. Hennessey-Severson
9 submitted LSAC’s required forms, including: a four-page “Candidate Form”; a two-page
10 “Evaluator Form” addressing her learning disabilities filled out by a licensed psychologist with a
11 specialty in pediatric neuropsychology; and a second two-page “Evaluator Form” addressing her
12 ADHD-I filled out by the same licensed psychologist. Ms. Hennessey-Severson also provided a
13 complete psychoeducational assessment dated July 2009; a previous psychoeducational
14 assessment dated October 2002; confirmation that she had received testing accommodations of
15 extended time while a student at Dartmouth; and confirmation that she had received testing
16 accommodations of extended time on the SAT.
17 92. LSAC denied Ms. Hennessey-Severson’s request by letter dated April 29, 2011.
18 In the letter, LSAC “acknowledged” that Ms. Hennessey-Severson had a learning disorder, but
19 stated that her documentation did not demonstrate a “limitation of a major life activity” that
20 affected her ability to take the test under standard (non-accommodated) conditions. To support
21 its decision, LSAC cited Ms. Hennessey-Severson’s high IQ (intelligence quotient) score and her
22 “very superior” and “high average” scores on portions of her psychoeducational assessment. The
23 letter stated that Ms. Hennessey-Severson had until May 3, 2011, to seek reconsideration.
24 93. By May 3, 2011, Ms. Hennessey-Severson requested reconsideration of the
25 denial, and submitted a five-page letter from her psychologist in support of her request. The
26 psychologist explained that the “very superior” and “high average” scores that LSAC cited to
27 support its denial were achieved by Ms. Hennessey-Severson on untimed measures of reading,
28 whereas on other, timed, measures, the results were “poor.” The psychologist inserted three
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1 tables comparing Hennessey-Severson’s performance as measured by various timed versus

2 untimed scores.

3

94. On May 10, 2011, LSAC sent a letter to Ms. Hennessey-Severson stating: “After

4 full consideration of all of the documentation submitted on your behalf, there has been no change

5 in our decision.”

6

95. Ms. Hennessey-Severson did not take the June 2011 LSAT as planned because

7 her testing accommodations were denied.

8

96. Thereafter, Ms. Hennessey-Severson sought legal counsel to obtain testing

9 accommodations on the LSAT. LSAC later granted Ms. Hennessey-Severson some testing

10 accommodations, but not all those she requested, for the June 2012 LSAT.

11

97. Ms. Hennessey-Severson took the June 2012 LSAT with the limited testing

12 accommodations that had been granted. Her score is subject to LSAC’s “flagging” policy.

13

98. Ms. Hennessey-Severson intends to register to take the LSAT again at some point

14 over the next several years. She intends to again request testing accommodations.

15

Nicholas Jones

16

(Also Named in DFEH Complaint and Quan et al. Complaint in Intervention)

99. Nicholas Jones, a resident of Palm Desert (Riverside County), California, 17

registered and requested that LSAC provide him with testing accommodations for the December 18

2009 LSAT offered at the University of Laverne (Ontario, California). 19

100. Mr. Jones has two eye conditions, amblyopia and posterior vitreous detachment, 20

which result in compromised vision. Amblyopia causes Mr. Jones to have impaired visual 21

processing. Posterior vitreous detachment causes persistent “floaters” to appear in Mr. Jones’s 22

field of vision. These impairments substantially limit the major life activities of, inter alia, 23

seeing, reading, and the operation of the major bodily function of the eyes. Mr. Jones must 24

constantly move his eyes from side to side to remove the “floaters” that appear in his field of 25

vision, but as soon as he refocuses, the spots re-appear. Because his reading is interrupted each 26

time he must clear his vision, Mr. Jones often must go back to re-read text in order to orient 27

himself. Mr. Jones’s reading speed, comprehension, and concentration are thus all substantially 28

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1 limited by his disability. Mr. Jones also experiences migraines and fatigue as a result of his

2 visual impairments. Mr. Jones is an individual with a disability within the meaning of 42 U.S.C.

3 § 12102.

4

101. Mr. Jones graduated Salutatorian from high school. He graduated from college

5 with a cumulative GPA of 3.98 on a 4.00 scale.

6

102. Mr. Jones took the September 2009 LSAT without testing accommodations. His

7 non-accommodated score did not accurately reflect his aptitude or achievement level.

8

103. On or about October 20, 2009, after learning about testing accommodations from

9 his ophthalmologist and retinal surgeon, Mr. Jones applied for accommodations on the December

10 2009 LSAT. Mr. Jones requested time-and-a-half on both the multiple choice and written

11 portions of the exam (i.e., an additional 17.5 minutes for each 35-minute section). He also

12 requested a 5-minute break between each section. In support of his request, Mr. Jones submitted

13 a three-page “Candidate Form” and a four-page “Evaluator Form” completed by his treating

14 provider, a board-certified ophthalmologist and retinal surgeon, which listed Mr. Jones’s

15 diagnoses and described the practical effects of Mr. Jones’s visual conditions. Mr. Jones also

16 wrote a two-page letter describing his struggle to complete the LSAT in the allotted time due to

17 his disability, and explaining that he had not sought testing accommodations in the past because

18 he had not known they existed.

19

104. In a letter dated October 27, 2009, LSAC denied Mr. Jones’s request for testing

20 accommodations. LSAC gave no reason for the denial and provided no suggestions as to how

21 Mr. Jones might successfully appeal. The letter stated only that the documentation submitted

22 “did not reflect an impairment related to taking the LSAT” and that if Mr. Jones wished to seek

23 reconsideration, “new information must be provided by your evaluator.” The letter noted that the

24 deadline for reconsideration was November 3, 2009.

25

105. Mr. Jones appealed this decision prior to the November 3 deadline. On short

26 notice, he obtained and provided a supplemental, two-page letter from his treating

27 ophthalmologist and retinal surgeon which detailed the link between Mr. Jones’s conditions and

28 his reading speed and reading ability, as well as the fatigue and headaches that accompany Mr.
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11 Jones’s disability. The ophthalmologist stressed Mr. Jones’s need for accommodations on the

22 LSAT.

33

106. On November 9, 2009, LSAC again denied Mr. Jones’s appeal in a four-sentence

44 letter. The letter stated that a “Vision Rehabilitation Specialist” had reviewed his file and that

55 Mr. Jones had not demonstrated that he had a “significant visual condition.”

66

107. Mr. Jones contacted private counsel. On November 24, 2009, private counsel

77 notified LSAC that Mr. Jones’s visual conditions constitute disabilities affecting his reading

88 speed and stamina, thereby impairing his ability to take the LSAT without testing

99 accommodations. Private counsel explained that Mr. Jones had not previously requested or

1100 received testing accommodations, but had obtained such modifications informally by working

1111 with flexible instructors and accessing on-line courses. Private counsel requested that testing

1122 accommodations be put in place for the December 5, 2009 LSAT.

1133

108. On December 1, 2009, LSAC responded that “Mr. Jones does not demonstrate

1144 that his visual difficulties . . . affect his ability to take the LSAT without accommodations. In

1155 fact, he took the September 2009 LSAT without requesting accommodations and was able to

1166 complete every item on each section” (italics in original). Although Mr. Jones submitted

1177 supplemental material prior to the November 3, 2009 deadline, LSAC stated that “further

1188 reconsideration is not possible as the deadline for seeking reconsideration was November 3,

1199 2009.”

2200

109. On December 3, 2009, private counsel sent a further letter to LSAC requesting

2211 reconsideration of LSAC’s denial and stating that Mr. Jones had met LSAC’s requirements for

2222 testing accommodation requests. LSAC did not change its position and Mr. Jones was not

2233 granted testing accommodations.

2244

110. Mr. Jones again took the LSAT without testing accommodations on December 5,

2255 2009. His score, again, did not accurately reflect his aptitude or achievement level.

2266

111. Mr. Jones took the test again in February 2010 without testing accommodations;

2277 his score did not significantly change, and it, again, did not accurately reflect his aptitude or

2288 achievement level.
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1

112. Mr. Jones applied to law school using results from his non-accommodated LSAT

2 scores. Mr. Jones applied to more than thirty schools, including all of the public law schools in

3 California. He was denied admission to, or was wait-listed at, almost all of the higher-ranked

4 schools to which he applied. Mr. Jones is currently a third-year student at a private law school,

5 where he pays full tuition.

6

Andrew Quan

7

(Also Named in DFEH Complaint and Quan et al. Complaint in Intervention)

8

113. Andrew Quan, a resident of Hayward (Alameda County), California, requested

9 testing accommodations for the October 2011 LSAT offered at the University of California,

10 Santa Cruz.

11

114. Mr. Quan has ADHD, Dysgraphia, Hypotonia, and a visual-motor integration

12 deficit with slow processing speed. Hypotonia refers to decreased muscle tone, which can affect

13 an individual’s mobility, posture, breathing, speech, and reflexes. The diagnosis “visual-motor

14 integration deficit” is correlated with the code for “Learning Disability Not Otherwise Specified”

15 in the DSM (Diagnostic and Statistical Manual of Mental Disorders) IV. These physical and

16 mental impairments substantially limit the major life activities of, inter alia, reading,

17 concentrating, writing, performing manual tasks, and the operation of the major bodily functions

18 of the brain and musculoskeletal system. Mr. Quan is an individual with a disability within the

19 meaning of 42 U.S.C. § 12102.

20

115. Mr. Quan was first diagnosed with disabilities when he was nine years old. Mr.

21 Quan has consistently received testing accommodations in school, beginning in the fourth grade.

22 He received testing accommodations for the ACT (a college admission test). Mr. Quan attended

23 the University of California, Santa Cruz, where he received testing accommodations for his

24 disabilities, such as double time on examinations, a quiet testing environment, use of a scribe,

25 and use of a laptop for essay examinations.

26

116. Mr. Quan graduated from UC Santa Cruz with honors in June 2012.

27

117. Mr. Quan has wanted to become a lawyer since he was a child. He seeks to

28 advocate for the civil rights of persons with disabilities.

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1

118. When he registered for the October 2011 LSAT, Mr. Quan applied for testing

2 accommodations largely equivalent to those he received in college, including: double time, a

3 non-Scantron answer sheet, and the use of a scribe or a laptop. His application included

4 extensive documentation regarding his disabilities and listed the testing accommodations he had

5 received in the past. He submitted LSAC’s required forms (a three-page “Evaluator Form” filled

6 out by licensed psychologist; a three-page “Evaluator Form” filled out by an M.D.; a three-page

7 “Physical Evaluation Report filled out by an M.D.; and a four-page “Candidate Form” that he

8 filled out). He also provided an April 22, 2008 psychoeducational assessment report confirming

9 and analyzing his disabilities based upon a review of his special education history and the results

10 of psychometric testing (WAIS-III, Developmental Test of Visual Motor Integration (VMI), the

11 Beery Developmental Test of Motor Coordination, and Test of Visual-Perceptual Skills – Upper

12 Level (TVPS-UL)), and noting “greatly varying” test results with “significant” gaps between

13 verbal aptitude/ability and visual-motor integration skills. He also provided confirmation that he

14 had received testing accommodations while a student at UC Santa Cruz (double time), and

15 copies of IEP documentation confirming special education services in high school from Fall

16 2004 through Spring 2008, including extra time and other accommodations on tests.

17

119. In a letter dated September 7, 2011, LSAC requested additional documentation,

18 including “testing results and a full diagnostic report from a comprehensive up-to-date

19 psychoeducational/neuropsychological assessment” in compliance with LSAC’s requirement that

20 reports be no more than three years old for people under age 21 (Mr. Quan’s evaluation had been

21 completed three and a half years earlier). Mr. Quan provided additional documentation; he also

22 researched and wrote a letter to LSAC, arguing that under the 2010 ADA regulations, his

23 documentation was sufficient. He noted that obtaining and providing the required testing and

24 report would cost thousands of dollars, and would not be covered by his insurance.

25

120. On September 13, 2011, LSAC denied Mr. Quan’s request for testing

26 accommodations. The denial letter reiterated the need to provide “testing results and a full

27 diagnostic report from a comprehensive up-to-date psychoeducational/neuropsychological

28 assessment,” emphasis in original, in compliance with LSAC’s guidelines. The letter further
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1 stated that any such report would not be considered for the October 2011 LSAT: “Since the

2 receipt deadline for this administration of the LSAT has passed, no further consideration will be

3 given to your request for accommodations until all of the aforementioned documentation is

4 received for a future LSAT only.” LSAC never responded to Mr. Quan’s concurrent request for

5 testing accommodations related to his physical disabilities.

6

121. Mr. Quan took the October 2011 LSAT without testing accommodations.

7

122. Mr. Quan next registered for the December 2011 LSAT. He again applied for

8 testing accommodations and provided documentation to LSAC by the stated deadline. By

9 October 31, 2011, Mr. Quan was again denied testing accommodations.

10

123. On November 11, 2011, private counsel notified LSAC that its handling of Mr.

11 Quan’s request for testing accommodations violated Department of Justice 2010 ADA

12 regulations addressing the “inappropriate or burdensome” standards used by testing agencies,

13 such as LSAC, when evaluating requests for testing accommodations.

14

124. On November 28, 2011, LSAC responded to private counsel as follows: “This

15 will acknowledge receipt of your email and attachment. Your request for reconsideration was

16 not timely and therefore cannot be considered.” LSAC sent a similar letter to Mr. Quan. On

17 November 28, 2011, private counsel reiterated to LSAC that it had been required to comply with

18 the DOJ regulations as of March 15, 2011. On November 28, 2011, LSAC responded with an

19 email stating in its entirety: “LSAC was fully aware of the legal authorities you cited when it

20 reviewed Mr. Quan’s file. Mr. Quan’s file remains incomplete.”

21

125. In an effort to compensate for the denial of needed testing accommodations,

22 Mr. Quan hired an LSAT tutor. Mr. Quan took the December 2011 LSAT without testing

23 accommodations.

24

126. Mr. Quan applied to dozens of law schools, including the public law schools in

25 California. He expended time and resources crafting a personal statement to explain the stark

26 disconnect between his excellent academic record and his poor performance on the LSAT.

27 Initially, Mr. Quan was not accepted to any “top tier” law schools. After months on the waiting

28 list, he was accepted to UC Hastings College of the Law in the Legal Education Opportunity
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CASE NO. CV 12-1830-EMC UNITED STATES’ COMPLAINT IN INTERVENTION

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1 Program (LEOP) program, which is a program that recognizes “that the traditional academic

2 criteria used to determine admissions might not be the best indicators of academic potential for

3 students from nontraditional backgrounds.” Mr. Quan is scheduled to start at UC Hastings

4 College of the Law in the fall.

5

Other Applicants

6

127. Plaintiff DFEH, on behalf of seventeen named individuals,7 and a proposed state-

7 wide class of individuals with disabilities who sought to take the LSAT with testing

8 accommodations, has asserted claims under the ADA – as incorporated into the California Fair

9 Employment & Housing Act (“FEHA”), Cal. Gov’t Code § 12948, via the Unruh Civil Rights

10 Act (“Unruh Act”), Cal. Civ. Code § 51(f) – relying on the same bases for which the United

11 States can initiate an action under 42 U.S.C. §§ 12181 et seq. and 12203. The DFEH Complaint

12 alleges, inter alia, that LSAC has violated the ADA by failing to offer the LSAT in a manner

13 accessible to individuals with disabilities, in violation of 42 U.S.C. § 12189 and 28 C.F.R. §

14 36.309, because of LSAC’s policies and patterns of (1) flagging, (2) requiring excessive amounts

15 of documentation from individuals named in the complaint to support their requests for testing

16 accommodations, and (3) denying testing accommodations for individuals named in the

17 complaint. The DFEH Complaint further alleges that LSAC has violated the ADA by interfering

18 (1) with class members’ exercise or enjoyment of rights guaranteed by the ADA as a result of

19 LSAC’s flagging policy, and (2) with the named individuals’ exercise or enjoyment of rights

20 under the ADA as a result of LSAC’s policy of requiring unreasonable types and excessive

21 amounts of documentation to support testing accommodation requests, in violation of 42 U.S.C.

22 § 12203.

23

128. Upon information and belief, LSAC has (1) failed to offer the LSAT to other

24 individuals with disabilities in an accessible manner, in violation of 42 U.S.C. § 12189 and 28

25 C.F.R. § 36.309, (2) denied other individuals with disabilities the full and equal enjoyment of its

26

27 7 John Doe, Jane Doe, Peter Roe, Raymond Banks, Kevin Collins, Rodney DeComo-Schmitt, Andrew 28 Grossman, Elizabeth Hennessey-Severson, Otilia Ioan, Alex Johnson, Nicholas Jones, Caroline Lee,
Andrew Quan, Stephen Semos, Gazelle Taleshpour, Kevin Vielbaum, and Austin Whitney.
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1 goods, services, facilities, privileges, advantages, or accommodations, in violation of 42 U.S.C. §

2 12182 and 28 C.F.R. §§ 36.201-202, 204, because of LSAC’s flagging policy, and/or (3)

3 interfered with other individuals’ exercise or enjoyment of rights granted or protected under the

4 ADA as a result of LSAC’s flagging policy, in violation of 42 U.S.C. § 12203 and 28 C.F.R.

5 § 36.206. These other applicants with disabilities who have been the victims of LSAC’s

6 discriminatory policies or practices are aggrieved persons within the meaning of 42 U.S.C.

7 § 12188(b)(2)(B).

8 FIRST CAUSE OF ACTION

9 Section 309 of the ADA

10 42 U.S.C. § 12189 and 28 C.F.R. § 36.309
11

12

129. The United States incorporates by reference the allegations set forth in Paragraphs

13 1 through 128, as if fully set forth herein.

14

130. LSAC discriminated against individuals with disabilities on the basis of disability

15 by failing to administer the LSAT “in a place and manner accessible to persons with disabilities”

16 in violation of 42 U.S.C. § 12189 and its implementing regulation, 28 C.F.R. § 36.309.

17 Specifically, LSAC violated 42 U.S.C. § 12189 and 28 C.F.R. § 36.309 by:

18

a. Failing to best ensure that when the LSAT is administered to an individual

19 with a disability, the examination results accurately reflect the individual’s aptitude or

20 achievement level or whatever other factor the examination purports to measure, rather than

21 reflecting the individual’s disability, in violation of 42 U.S.C. § 12189 and 28 C.F.R.

22 § 36.309(b)(1)(i);

23

b. Making unreasonable requests for documentation to support applicants’

24 requests for testing accommodations or auxiliary aids or services, in violation of 42 U.S.C.

25 § 12189 and 28 C.F.R. § 36.309(b)(1)(iv);

26

c. Failing to give considerable weight to applicants’ documentation of past

27 testing accommodations received in similar testing situations, as well as testing accommodations

28
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CASE NO. CV 12-1830-EMC UNITED STATES’ COMPLAINT IN INTERVENTION

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1 provided in response to an IEP or Section 504 Plan, when considering applicants’ requests for

2 testing accommodations, in violation of 42 U.S.C. § 12189 and 28 C.F.R. § 36.309(b)(1)(v);

3

d. Failing to respond in a timely manner to requests for testing

4 accommodations so as to ensure equal opportunity for individuals with disabilities, in violation

5 of 42 U.S.C. § 12189 and 28 C.F.R. § 36.309(b)(1)(vi);

6

e. Failing to provide required modifications or appropriate auxiliary aids and

7 services, in violation of 42 U.S.C. § 12189 and 28 C.F.R. §§ 36.309(b)(2)-(3);

8

f. Maintaining a discriminatory policy of flagging test scores of individuals

9 with disabilities who need the testing accommodation of extended time to make the LSAT

10 accessible to them, and reporting such individuals’ test results in a manner that reflects the test

11 taker’s disability rather than aptitude or achievement level, in violation of 42 U.S.C. § 12189 and

12 28 C.F.R. §§ 36.309(a), (b)(1)(i).

13

131. As a result of LSAC’s unlawful policies or practices, applicants with disabilities

14 have incurred out of pocket losses, including unnecessary LSAT registration fees, preparation

15 courses and study materials, and medical bills.

16

132. Also as a result of LSAC’s unlawful policies or practices, applicants with

17 disabilities have experienced pain and suffering, including: emotional distress, anxiety,

18 frustration, humiliation, stigmatization, loss of dignity and self-esteem, and lost opportunity.

19 Such lost opportunity includes, but is not limited to, chances for scholarship money/financial aid,

20 career opportunities that are available via admission to and graduation from higher-ranking law

21 schools, and delayed entry into a legal career.

22

23

24

25

26

27

28
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CASE NO. CV 12-1830-EMC UNITED STATES’ COMPLAINT IN INTERVENTION

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1

SECOND CAUSE OF ACTION

2

Section 302 of the ADA

3

42 U.S.C. § 12182 and 28 C.F.R. §§ 36.201-202, 204

4

133. The United States incorporates by reference the allegations set forth in Paragraphs

5 1 through 132, as if fully set forth herein.

6

134. LSAC, a public accommodation, discriminates against individuals with

7 disabilities by denying full and equal enjoyment of its goods, services, facilities, privileges,

8 advantages, or accommodations in its operation of places of public accommodation, in violation

9 of 42 U.S.C. § 12182 and 28 C.F.R. §§ 36.201-202, 204, by, among other things:

10

a. Affording individuals with disabilities unequal, separate, or different

11 opportunities to participate in or benefit from LSAC’s goods, services, facilities, privileges,

12 advantages, or accommodations by flagging test scores obtained with certain testing

13 accommodations, and by reporting and identifying the otherwise confidential information of

14 examinees with disabilities that utilize certain testing accommodations to law schools as a

15 requirement to use LSAC’s services, including the Credential Assembly Service, in violation of

16 42 U.S.C. §§ 12182(b)(1)(A)(ii)-(iii) and 28 C.F.R. §§ 36.202(b)-(c).

17

b. Utilizing standards or criteria or methods of administration, directly or

18 through contractual or other arrangements, that have the effect of discriminating on the basis of

19 disability, by flagging test scores obtained with certain testing accommodations, and by reporting

20 and identifying to law schools the otherwise confidential information of examinees with

21 disabilities who utilize certain testing accommodations, in violation of 42 U.S.C.

22 § 12182(b)(1)(D) and 28 C.F.R. § 36.204.

23

135. As a result of LSAC’s unlawful policies or practices, applicants with disabilities

24 have experienced pain and suffering, including: emotional distress, anxiety, frustration,

25 humiliation, stigmatization, loss of dignity and self-esteem, and lost opportunity. Such lost

26 opportunity includes, but is not limited to, chances for scholarship money/financial aid, career

27 opportunities that are available via admission to and graduation from higher-ranking law schools,

28 and delayed entry into a legal career.

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1

THIRD CAUSE OF ACTION

2

Section 503 of the ADA

3

42 U.S.C. § 12203 and 28 C.F.R. § 36.206

4

136. The United States incorporates by reference the allegations set forth in Paragraphs

5 1 through 135, as if fully set forth herein.

6

137. LSAC’s flagging policy interferes with the right of applicants with disabilities to

7 have the LSAT administered in a manner accessible to them pursuant to 42 U.S.C. §§ 12182,

8 12189 and 28 C.F.R. §§ 36.201-202, 204, 309, in violation of 42 U.S.C. § 12203 and 28 C.F.R.

9 § 36.206.

10

138. LSAC’s flagging policy discourages people with disabilities from taking the

11 LSAT or from requesting needed testing accommodations as protected under 42 U.S.C. §§

12 12182, 12189 and 28 C.F.R. §§ 36.201-202, 204, 309, in violation of 42 U.S.C. § 12203 and 28

13 C.F.R. § 36.206.

14

139. As a result of LSAC’s unlawful policies or practices, applicants with disabilities

15 have experienced pain and suffering, including emotional distress, anxiety, frustration,

16 humiliation, stigmatization, loss of dignity and self-esteem, and lost opportunity. Such lost

17 opportunity includes, but is not limited to, chances for scholarship money/financial aid, career

18 opportunities that are available via admission to and graduation from higher-ranking law schools,

19 and delayed entry into a legal career.

20

PRAYER FOR RELIEF

21

WHEREFORE, Plaintiff-Intervenor United States prays that the Court:

22

A. Grant judgment in favor of the United States and declare that LSAC’s

23 discriminatory policies and practices as set forth in this Complaint violate sections 302, 309, and

24 503 of the ADA, 42 U.S.C. §§ 12181 et seq., 12203, and the Department of Justice’s

25 implementing regulation, 28 C.F.R. Part 36;

26

B. Enjoin LSAC, along with its officers, agents, and employees, and all others in

27 concert or participation with them, from engaging in discriminatory policies and practices

28 against individuals with disabilities, and specifically from failing or refusing to ensure that the

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CASE NO. CV 12-1830-EMC UNITED STATES’ COMPLAINT IN INTERVENTION

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1 LSAT is administered in a manner accessible to persons with disabilities within the meaning of

2 title III of the ADA, 42 U.S.C. §§ 12181 et seq., and the Department of Justice’s implementing

3 regulation, 28 C.F.R. Part 36;

4

C. Order LSAC to comply with the requirements of title III of the ADA, 42 U.S.C.

5 §§ 12181 et seq., and the Department of Justice’s implementing regulations, 28 C.F.R. Part 36;

6

D. Order LSAC to approve appropriate testing accommodations pursuant to

7 42 U.S.C. § 12189 for aggrieved persons for the administration of the LSAT of the applicant’s

8 choice;

9

E. Order LSAC to stop the policy and practice of flagging test scores for individuals

10 with disabilities who receive extended time as a testing accommodation;

11

F. Award compensatory damages, including damages for pain and suffering, to

12 aggrieved persons, in an appropriate amount for injuries suffered as the result of LSAC’s failure

13 to comply with the requirements of title III and title V of the ADA, 42 U.S.C. §§ 12181 et seq.,

14 12203;

15

G. Assess a civil penalty against LSAC in an amount authorized by 42 U.S.C.

16 § 12188(b)(2)(C) to vindicate the public interest; and

17

H. Order such other appropriate relief as the interests of justice may require.

18

19

20

21

22

23

24

25

26

27

28
- 38 -
CASE NO. CV 12-1830-EMC UNITED STATES’ COMPLAINT IN INTERVENTION

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DATED: October 19, 2012

Respectfully submitted,

MELINDA HAAG, CSBN 132612 United States Attorney Northern District of California

ALEX G. TSE, CSBN 152348

Assistant United States Attorney

Chief, Civil Division

Civil

ROBE Special KATHLEEN Special Disability Civil

THOMAS E. PEREZ Assistant Attorney General Civil Rights Division
EVE L. HILL Senior Counselor to the Assistant Attorney General
Rights Division
GREGORY B. FRIEL Acting Chief
RTA KIRKENDALL Legal Counsel P. WOLFE Litigation Counsel Rights Section
Rights Division

/s/ Melanie L. Proctor

/s/

Nabina Sinha

MELANIE L. PROCTOR, CSBN 228971 NABINA SINHA

Assistant United States Attorney

Trial Attorney

450 Golden Gate Avenue, Box 36055

MEGAN E. SCHULLER, CSBN 281468

San Francisco, California 94102

Trial Attorney

Telephone: (415) 436-6730

Disability

Rights Section

Facsimile: (415) 436-6478

Civil Rights Division

Melanie.Proctor@usdoj.gov

U.S. Department of Justice

950

Pennsylvania Avenue, N.W. - NYA

Washington,

D.C. 20530

Telephone:

(202) 307-0663

Facsim

ile: (202) 305-9775

Nabina.Sinha@usdoj.gov

CASE NO. CV 12-1830-EMC UNITED STATES’ COMPLAINT IN INTERVENTION

 
 Case3:12-cv-01830-EMC Document63 Filed10/19/12 Page1 of 24

Claudia Center, State Bar No. 158255 1 Gina Gemello, State Bar No. 282964

The LEGAL AID SOCIETY –

2

EMPLOYMENT LAW CENTER

180 Montgomery Street, Suite 600 3 San Francisco, CA 94104

Telephone: (415) 864-8848 4 Facsimile: (415) 593-0096

Emails: ccenter@las-elc.org

5

ggemello@las-elc.org

6 Attorneys for Plaintiff-Intervenors ANDREW QUAN, NICHOLAS JONES and
7 ELIZABETH HENNESSEY-SEVERSON
8 IN THE UNITED STATES DISTRICT COURT
9 FOR THE NORTHERN DISTRICT OF CALIFORNIA
10

11

12

THE DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING,

13

Plaintiff,

14

v.

15 LAW SCHOOL ADMISSION COUNCIL, 16 INC., ET AL.,

17

Defendants.

18 JOHN DOE et al., and all other similarly situated individuals,
19 Real Parties in Interest
20

21 ANDREW QUAN, NICHOLAS JONES, and ELIZABETH HENNESSEY-SEVERSON,

22 Plaintiff-Intervenors,

23

v.

24 LAW SCHOOL ADMISSION COUNCIL, INC.,
25 Defendant.
26

Case No. CV 12-1830-EMC
COMPLAINT IN INTERVENTION FOR DAMAGES, EQUITABLE RELIEF, AND ATTORNEYS’ FEES AND COSTS FOR VIOLATIONS OF THE AMERICANS WITH DISABILITIES ACT OF 1990, 42 U.S.C. § 12101, ET SEQ.; CALIFORNIA’S UNRUH CIVIL RIGHTS ACT, CAL. CIVIL CODE § 51, ET SEQ., AND CALIFORNIA’S UNFAIR BUSINESS PRACTICES ACT, CAL. BUS. & PROF. CODE § 17200, ET SEQ.

27

28

Plaintiff-Intervenors’ Complaint In Intervention for Damages, Equitable Relief, Attorneys’ Fees and

Costs

Case No. CV 12-1830-EMC

1

Case3:12-cv-01830-EMC Document63 Filed10/19/12 Page2 of 24

1

Plaintiff-Intervenors ANDREW QUAN, NICHOLAS JONES, and ELIZABETH

2 HENNESSEY-SEVERSON complain and allege as follows:

3

INTRODUCTION

4

1. This is an action for relief from Defendant’s violation of the civil rights of Plaintiff-

5 Intervenors ANDREW QUAN, NICHOLAS JONES, and ELIZABETH HENNESSEY-

6 SEVERSON. These violations, which are more particularly alleged herein, include disability-

7 based discrimination in violation of the Americans with Disabilities Act (ADA), disability-based

8 discrimination in violation of California’s Unruh Civil Rights Act, and unlawful business

9 practices in violation of California’s Unfair Business Practices Act.

10

2. Plaintiff-Intervenors QUAN, JONES, and HENNESSEY-SEVERSON are individuals

11 with disabilities within the meaning of federal and state disability nondiscrimination laws,

12 including Title III of the ADA and California’s Unruh Civil Rights Act.

13

3. Plaintiff-Intervenors QUAN, JONES, and HENNESSEY-SEVERSON requested

14 accommodations from Defendant LSAC for the Law School Admission test (LSAT). In

15 violation of law, Defendant LSAC imposed upon Plaintiff-Intervenors onerous and unnecessary

16 documentation requirements and subjected them to an arbitrary, ineffective, and unpredictable

17 evaluation and appeals procedure. In violation of law, Defendant LSAC refused to make

18 reasonable modifications to testing conditions for Plaintiff-Intervenors. In violation of law, after

19 finally providing testing accommodations to Plaintiff-Intervenor HENNESSEY-SEVERSON,

20 Defendant LSAC refused to provide her with an LSAT score in the same format as her

21 nondisabled peers.

22

4. Plaintiff-Intervenors seek declaratory and injunctive relief, equitable relief, actual

23 damages, treble damages, restitution, reasonable attorneys’ fees and costs, as well as other

24 appropriate relief as determined by this court.

25

JURISDICTION

26

5. This court has jurisdiction over the subject matter and the parties pursuant to 28 U.S.C. §

27 1331. Plaintiff-Intervenors bring this suit under Title III of the ADA, 42 U.S.C. § 12181, et seq.

28

Plaintiff-Intervenors’ Complaint In Intervention for Damages, Equitable Relief, Attorneys’ Fees and

Costs

Case No. CV 12-1830-EMC

2

Case3:12-cv-01830-EMC Document63 Filed10/19/12 Page3 of 24

1

6. This court has supplemental jurisdiction over the related state law claims pursuant to 28

2 U.S.C. § 1367(a). Plaintiff-Intervenors’ claims pursuant to California’s Unruh Civil Rights Act,

3 Cal. Civil Code § 51, et seq., and California’s Unfair Business Practices Act, Cal. Bus. & Prof.

4 Code § 12700, et seq., are related, as all of Plaintiff-Intervenors’ claims share common operative

5 facts. Resolving all state and federal claims in a single action serves the interests of judicial

6 economy, convenience, and fairness to the parties.

7

VENUE

8

7. Venue is proper in the Northern District of California pursuant to 28 U.S.C. § 1391(b)(2),

9 in that the claims of Plaintiff-Intervenors and Real Parties in Interest QUAN and HENNESSEY-

10 SEVERSON along with the claims of other Real Parties in Interest occurred herein.

11

PARTIES

12

1. Plaintiff-Intervenor ANDREW QUAN is a citizen of the United States and a resident of

13 Hayward (Alameda County, California).

14

2. Plaintiff-Intervenor QUAN has Attention Deficit Hyperactive Disorder (ADHD),

15 dysgraphia, hypotonia, and a visual-motor deficit with slow processing speed. These conditions

16 limit and substantially limit several major life activities. He is an individual with a “disability”

17 within the meaning of federal and state disability nondiscrimination laws, including Title III of

18 the ADA and California’s Unruh Civil Rights Act.

19

3. Plaintiff-Intervenor NICHOLAS JONES is a citizen of the United States and a resident of

20 Palm Desert (Riverside County, California).

21

4. Plaintiff-Intervenor JONES has amblyopia and posterior vitreous detachment, which are

22 visual impairments. These conditions limit and substantially limit several major life activities.

23 He is an individual with a “disability” within the meaning of federal and state disability

24 nondiscrimination laws, including Title III of the ADA and California’s Unruh Civil Rights Act.

25

5. Plaintiff-Intervenor ELIZABETH HENNESSEY-SEVERSON is a citizen of the United

26 States and a resident of San Francisco (San Francisco County, California).

27

6. Plaintiff-Intervenor HENNESSEY-SEVERSON has ADHD-I and learning disabilities.

28

Plaintiff-Intervenors’ Complaint In Intervention for Damages, Equitable Relief, Attorneys’ Fees and

Costs

Case No. CV 12-1830-EMC

3

Case3:12-cv-01830-EMC Document63 Filed10/19/12 Page4 of 24

1 These conditions limit and substantially limit several major life activities. She is an individual

2 with a “disability” within the meaning of federal and state disability nondiscrimination laws,

3 including Title III of the ADA and California’s Unruh Civil Rights Act.

4

7. Defendant LSAC is a Delaware corporation with its headquarters in Newtown,

5 Pennsylvania. The LSAC administers the LSAT throughout the United States, including in this

6 judicial district. The LSAC is a “person that offers examinations or courses related to

7 applications, licensing, certification, or credentialing for secondary or post-secondary education,

8 professional, or trade purposes” within the meaning of Title III of the ADA. The LSAC is also a

9 “public accommodation” within the meaning of Title III of the ADA. The LSAC is a “business

10 establishment” within the meaning of California’s Unruh Civil Rights Act.

11

STATEMENT OF FACTS

12

LSAC and the Law School Admission Test (LSAT)

13

8. Defendant LSAC administers the Law School Admission Test (LSAT), a half-day,

14 standardized test used in the admissions decisions of virtually all ABA-accredited law schools,

15 and many non-accredited law schools. The test consists of five multiple choice sections (35

16 minutes each) and one writing sample (35 minutes). Approximately 150,000 LSATs are

17 administered worldwide each year. Defendant LSAC also offers a “Credential Assembly

18 Service” to law schools, in which applicants to law school upload undergraduate transcripts,

19 evaluations, and application materials. LSAC then disseminates the application materials, along

20 with an applicant’s LSAT score report, to law schools.

21

9. Applicants with disabilities may seek testing accommodations on the LSAT pursuant to

22 the LSAC’s policies, procedures, and practices. As alleged herein, these policies, procedures,

23 and practices are inconsistent with the requirements of state and federal laws and operate to

24 discriminate against and exclude persons with disabilities.

25

10. Under the LSAC’s policies, procedures, and practices, disabled applicants seeking

26 testing accommodations must complete and submit an extensive portfolio of current and 27 historical materials including medical and/or psychological documentation by a stated deadline.

28

Plaintiff-Intervenors’ Complaint In Intervention for Damages, Equitable Relief, Attorneys’ Fees and

Costs

Case No. CV 12-1830-EMC

4

Case3:12-cv-01830-EMC Document63 Filed10/19/12 Page5 of 24

1

(a) Each disabled applicant seeking testing must submit a three-page application

2 form, a score report from past standardized tests, a verification of accommodations received on

3 each of those tests, and one three-page medical form filled out by a qualified professional, as

4 necessary to document the applicant’s condition(s).

5

(b) Depending upon the type of disability, applicants are required to submit additional

6 documentation.

7

(c) Applicants with “cognitive and psychological impairments,” a category which

8 includes learning disorders, processing deficiencies, and ADHD, are referred to a three-page,

9 single-spaced document detailing extensive additional requirements, including:

10

•

Full psychoeducational and/or neuropsychological evaluation which addresses

sensory-motor, auditory, attention, and visual-spatial issues; receptive and

11

expressive language; immediate and delayed memory; achievement; and

intelligence; and which includes a comprehensive diagnostic interview;

12

•

Complete aptitude assessment such as Wechsler Adult Intelligence Scale, Fourth

13

Edition (WAIS-IV);

14

•

Comprehensive achievement battery;

15

•

Timed reading comprehension measure;

16

•

Timed writing measures if additional time on the nonscored writing section is

requested;

17

•

Measures of spelling and grammar skills if a computer with spelling and/or

18

grammar check is requested;

19

•

Objective data measures (such as the CPT-II or TOVA) and tests measuring

information processing (such as WAIS-IV) for applicants with

20

information/attention processing diagnoses (including ADHD); and

21

•

Personality tests (LSAC recommends submitting an objective test such as the

MMPI-II or MCMI-III and a projective testing instrument like the Rorschach) for

22

applicants seeking accommodations based on psychiatric disorders.

23 All tests for cognitive and psychological disabilities must be no older than three years if the

24 applicant is under the age of twenty-one, or five years if the applicant is over twenty-one.

25

(d) Applicants who are blind or who have other visual disabilities must submit, in

26 addition to the standard requirements, a four-page Evaluation Report filled out by their treating

27 practitioner.

28

Plaintiff-Intervenors’ Complaint In Intervention for Damages, Equitable Relief, Attorneys’ Fees and

Costs

Case No. CV 12-1830-EMC

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Case3:12-cv-01830-EMC Document63 Filed10/19/12 Page6 of 24

1

(e) Applicants with “physical/medical impairments” must submit, in addition to the

2 standard requirements, a two-page Physical Evaluation Report.

3

(f) Applicants with hearing impairments must submit, in addition to the standard

4 requirements, a comprehensive psycho-educational assessment.

5

(g) Applicants seeking testing accommodations based upon more than one type of

6 impairment must comply with the documentation requirements of each type of impairment.

7

11. The LSAC’s documentation requirements for testing accommodations are frequently

8 onerous and unnecessary. For example, applicants seeking testing accommodations related to a

9 learning disability typically can demonstrate a history of testing accommodations in other

10 contexts and can provide copies of psycho-educational testing and evaluation documents

11 conducted throughout K-12. Yet to comply with the LSAC’s rigid documentation requirements,

12 including the specific tests required and the requirement that the testing be less than three or five

13 years old (depending upon the age of the individual), these applicants must often hire

14 psychologists and other medical professionals to administer and compile the battery of required

15 tests and reports. The out-of-pocket costs can total thousands of dollars.

16

12. The LSAC’s documentation requirements are frequently unclear. For example, various

17 testing measures are described as “preferred” or “helpful” but the requirements nowhere explain

18 the relative weight or preference given to such instruments, or the risks involved with providing

19 an alternate measure.

20

13. The LSAC’s procedures for receiving, evaluating, and reconsidering requests for testing

21 accommodations are vague, ambiguous, and arbitrary.

22

(a) While LSAC publications set forth specific deadlines for requesting

23 accommodations, applicants are urged to submit requests “well in advance” of the deadlines or

24 “there will be little or no opportunity to rectify deficiencies in documentation or seek 25 reconsideration.” No definition is provided for “well in advance.” Related, the deadline for 26 “reconsideration,” which is Defendant LSAC’s label for its appeals process, is the same deadline 27 as for submitting an original request for testing accommodations. An applicant can thus meet or

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1 exceed the initial deadline, be denied, and not have any time remaining for an appeal.

2

(b) The standards by which applications are evaluated initially and upon

3 reconsideration are opaque. Denial letters are frequently cursory (e.g.,“the documentation you

4 provided did not reflect an impairment related to taking the LSAT.”).

5

(c) As a result, it is extraordinarily difficult for an applicant to determine what is

6 missing from his or her application, obtain that information from a permitted source, and submit

7 the information in time to obtain accommodation prior to a scheduled test date.

8

14. Those applicants who are successful in obtaining testing accommodations from the

9 LSAC do not receive an LSAT score in the same format as their nondisabled peers. Unlike the

10 test scores issued by the College Board or by Educational Testing Service (ETS), such as the

11 SAT, PSAT, and GRE, the scores of persons who take the LSAT with testing accommodations

12 are “flagged” – they are accompanied by a letter disclosing that the test was taken under

13 nonstandard testing conditions.

14

Andrew Quan

15

15. Plaintiff-Intervenor ANDREW QUAN has ADHD, dysgraphia, hypotonia, and a visual-

16 motor integration deficit with slow processing speed. ADHD (Attention Deficit-Hyperactive

17 Disorder) is a neurobehavioral condition with common symptoms of difficulty paying attention,

18 staying on task, and controlling impulses. Dysgraphia, a learning disability that affects the motor

19 and information processing skills associated with writing, can result in spelling errors, “bad” 20 handwriting, difficulty expressing thoughts in writing, and/or difficulty organizing letters, 21 numbers, and words on a line or page. Hypotonia refers to decreased muscle tone, which can 22 affect an individual’s mobility, posture, breathing, speech, and reflexes. The diagnosis “visual-

23 motor integration deficit” is correlated with the code for “Learning Disability Not Otherwise

24 Specified” in the DSM (Diagnostic and Statistical Manual of Mental Disorders) IV. Mr. QUAN 25 also has physical disabilities, in part related to the above-referenced disabilities. These 26 conditions limit and substantially limit several major life activities including reading, 27 concentrating, and the operation of a major bodily function (brain).

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1

16. Mr. QUAN was first diagnosed with disabilities when he was nine years old. Mr. Quan

2 has consistently received accommodations in school, beginning in the fourth grade. He received

3 accommodations for the ACT, a pre-college standardized exam. Mr. QUAN attended the

4 University of California, Santa Cruz, where he received accommodations for his disabilities,

5 such as double time on exams, a quiet testing environment, use of a scribe, and use of a laptop

6 for essay exams. Mr. QUAN graduated from UC Santa Cruz with honors in June 2012.

7

17. Mr. QUAN has wanted to become a lawyer since he was a child. He seeks to advocate

8 for the civil rights of persons with disabilities.

9

18. When he registered for the October 2011 LSAT, Mr. QUAN applied for accommodations

10 largely equivalent to those he received in college: extra time, a private testing space, a non-

11 Scantron answer sheet, and the use of a scribe or a laptop. His application included extensive

12 documentation regarding his disabilities and listed the accommodations he had received in the

13 past. He submitted LSAC’s required forms (a three-page “Evaluator Form” filled out by

14 licensed psychologist; a three-page “Evaluator Form” filled out by an M.D.; a three-page

15 “Physical Evaluation Report filled out by an M.D.; and a four-page “Candidate Form” which he

16 filled out). He also provided an April 22, 2008 psycho-educational assessment report confirming

17 and analyzing his disabilities based upon a review of his special education history and the results

18 of psychometric testing (WAIS-III, Developmental Test of Visual Motor Integration (VMI), the

19 Beery Developmental Test of Motor Coordination, and Test of Visual-Perceptual Skills – Upper

20 Level (TVPS-UL)), and noting “greatly varying” test results with “significant” gaps between

21 verbal aptitude/ability and visual-motor integration skills. He also provided confirmation that he

22 had received testing accommodations while a student at UC Santa Cruz, and copies of IEP

23 documentation confirming special education services in high school from Fall 2004 through

24 Spring 2008, including the granting of extra time and other accommodations on tests.

25

19. In a letter dated September 7, 2011, Defendant LSAC requested additional

26 documentation, including “testing results and a full diagnostic report from a comprehensive up-

27 to-date psychoeducational/neuropsychological assessment” in compliance with the LSAC’s

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1 guidelines. Mr. QUAN provided additional documentation; he also researched and wrote a letter

2 to Defendant LSAC, arguing that under both the ADA and 2010 U.S. Department of Justice

3 (DOJ) regulations, his documentation was sufficient. He noted that obtaining and providing the

4 required testing and report would cost thousands of dollars, and would not be covered by his

5 insurance.

6

20. Thereafter, on September 13, 2011, Defendant LSAC denied Mr. QUAN’s request for

7 testing accommodations. The denial letter reiterated the need to provide “testing results and a

8 full diagnostic report from a comprehensive up-to-date psychoeducational/neuropsychological

9 assessment,” emphasis in original, in compliance with the LSAC’s guidelines. (The

10 psychoeducational assessment provided by Mr. QUAN had been completed three and a half

11 years earlier in March/April 2008.) The letter further stated that any such compliant report

12 would not be considered for the October 2011 LSAT: “Since the receipt deadline for this

13 administration of the LSAT has passed, no further consideration will be given to your request for

14 accommodations until all of the aforementioned documentation is received for a future LSAT

15 only.” The LSAC never responded to Mr. QUAN’s concurrent request for testing

16 accommodations related to his physical disabilities.

17

21. Mr. QUAN took the October 2011 LSAT without accommodations. Mr. QUAN’s non-

18 accommodated score was inconsistent with his academic achievement.

19

22. Mr. QUAN next registered for December 2011 LSAT. He again applied for

20 accommodations, and provided documentation, by LSAC, by the stated deadline. By October

21 31, 2011, Mr. QUAN was again denied accommodations.

22

23. Mr. QUAN contacted the Legal Aid Society – Employment Law Center (LAS-ELC).

23 On November 11, 2011, LAS-ELC counsel notified Defendant LSAC that its handling of Mr.

24 QUAN’s request for testing accommodations violated Department of Justice 2010 regulations

25 designed to address the “inappropriate or burdensome” standards used by testing agencies such

26 as the LSAC when evaluating requests for testing accommodations.

27

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1

24. On November 28, 2011, Defendant LSAC responded to LAS-ELC counsel as follows:

2 “This will acknowledge receipt of your email and attachment. Your request for reconsideration

3 not timely and therefore cannot be considered.” Defendant LSAC sent a similar letter to Mr.

4 QUAN. On November 28, 2011, LAS-ELC reiterated to Defendant LSAC that it had been

5 required to comply with the DOJ regulations as of March 15, 2011. On November 28, 2011,

6 Defendant LSAC responded with an email stating in its entirety: “LSAC was fully aware of the

7 legal authorities you cited when it reviewed Mr. Quan’s file. Mr. Quan’s file remains

8 incomplete.”

9

25. In an effort to mitigate the denial of testing accommodations, Mr. QUAN hired an

10 LSAT tutor. Mr. QUAN took the December 2011 LSAT without accommodations. Again, his

11 non-accommodated score was not commensurate with his academic record.

12

26. Mr. QUAN applied to dozens of law schools, including the public law schools in

13 California. He expended time and resources crafting a personal statement to explain the stark

14 disconnect between his excellent academic record and his poor performance on the LSAT.

15 Initially, Mr. QUAN was not accepted to any “top tier” law schools. After months on the

16 waiting list, he was accepted to UC Hastings, in the Legal Education Opportunity Program

17 (LEOP) program.

18

Nicholas Jones

19

27. Plaintiff-Intervenor NICHOLAS JONES has two eye conditions, amblyopia and

20 posterior vitreous detachment, which result in compromised vision. Amblyopia causes Mr.

21 JONES to have impaired visual processing. Posterior vitreous detachment causes persistent

22 “floaters” to appear in Mr. JONES’s field of vision. These conditions limit and substantially

23 limit several major life activities including seeing, reading, and the operation of a major bodily

24 function (special sense organ). Mr. JONES must constantly move his eyes from side to side to

25 remove the “floaters” that appear in his field of vision, but as soon as he refocuses, the spots re-

26 appear. Because his reading is interrupted each time he must clear his vision, Mr. JONES often

27 must go back to re-read something in order to orient himself. Mr. JONES’s reading speed,

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1 comprehension, and concentration are thus all affected by his disability. Mr. JONES also

2 experiences migraines and fatigue as a result of his visual conditions.

3

28. Mr. JONES took the September 2009 LSAT without accommodations. His non-

4 accommodated score was not commensurate with his academic record, and the score report

5 provided by Defendant LSAC showed that the large majority of incorrect answers occurred at the

6 end of each section, when Mr. JONES was running out of time. Mr. JONES is and historically

7 has been a strong student; Mr. JONES graduated Salutatorian from high school and his

8 cumulative undergraduate LSAC-calculated GPA was 3.98/4.00.

9

29. On or about October 20, 2009, after learning about testing accommodations from his

10 board certified ophthalmologist and retinal surgeon, Mr. JONES applied for accommodations on

11 the December 2009 LSAT. Mr. JONES requested time-and-a-half on both the multiple choice

12 and written portions of the exam (i.e., an additional 17.5 minutes for each 35-minute section).

13 He also requested a 5-minute break between each section. In support of his request, Mr. JONES

14 submitted a three-page “Candidate Form” and a four-page “Evaluator Form” completed by his

15 treating provider, a board-certified ophthalmologist and retinal surgeon, which listed Mr.

16 JONES’s diagnoses and described the practical effects of Mr. JONES’s visual conditions. Mr.

17 JONES also wrote a two-page letter describing his struggle to complete the LSAT in the allotted

18 time due to his disability, and explaining that he had not sought accommodations in the past

19 because he had not known they existed.

20

30. In a letter dated October 27, 2009, Defendant LSAC denied Mr. JONES’s request for

21 accommodations. Defendant gave no reason for the denial and provided no suggestions as to

22 how Mr. JONES might successfully appeal. The letter stated only that the documentation

23 submitted “did not reflect an impairment related to taking the LSAT” and that if Mr. JONES

24 wished to seek reconsideration, “new information must be provided by your evaluator.” The

25 letter noted that the deadline for reconsideration was November 3, 2009 – a week away and the

26 same deadline for an initial request for accommodations.

27

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1

31. Mr. JONES appealed this decision prior to the November 3 deadline. On short notice,

2 he obtained and provided a supplemental, two-page letter from his treating ophthalmologist and

3 retinal surgeon which detailed the link between Mr. JONES’s conditions and his reading speed

4 and reading ability, as well as the fatigue and headaches that accompany Mr. JONES’s disability.

5 The ophthalmologist stressed Mr. JONES’s need for accommodations on the LSAT.

6

32. On November 9, 2009, Defendant LSAC again denied Mr. JONES’s appeal in a three-

7 sentence letter. The letter stated that a “Vision Rehabilitation Specialist” had reviewed his file

8 and that Mr. JONES had not demonstrated that he had a “significant visual condition.”

9

33. Mr. JONES contacted the LAS-ELC. On November 24, 2009, LAS-ELC counsel

10 notified Defendant LSAC that Mr. JONES’s visual conditions constitute disabilities affecting his

11 reading speed and stamina, thereby impairing his ability to sit for the LSAT without

12 accommodations. Counsel explained that Mr. JONES had not previously requested or received

13 accommodations, but had obtained such modifications informally by working with flexible

14 instructors and accessing on-line courses. Counsel requested that accommodations be put in

15 place for the December 5, 2009 LSAT.

16

34. On December 1, 2009, Defendant LSAC responded that “Mr. Jones does not

17 demonstrate that his visual difficulties … affect his ability to take the LSAT without

18 accommodations. In fact, he took the September 2009 LSAT without requesting

19 accommodations and was able to complete every item on each section” (italics in original).

20 Although Mr. JONES submitted supplemental material prior the November 3, 2009 deadline,

21 Defendant LSAC stated that “further reconsideration is not possible as the deadline for seeking

22 reconsideration was November 3, 2009.”

23

35. On December 3, 2009, LAS-ELC counsel sent a further letter to Defendant LSAC.

24 Counsel noted that the content of the prior communications from the LSAC violated a 2002

25 settlement agreement between LSAC and the DOJ, prohibiting LSAC from considering prior

26 performance on standardized testing when evaluating an accommodations request, and requiring

27 that defendant LSAC provide “clear written explanations” in denial letters, and that neither the

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1 initial denial nor the denial of reconsideration had done so. Defendant LSAC did not change its

2 position and Mr. JONES was not granted testing accommodations.

3

36. Mr. JONES again took the LSAT without accommodations on December 5, 2009. His

4 score was, again, not commensurate with his academic record. The score report provided by

5 Defendant LSAC, again, revealed that the large majority of incorrect answers occurred at the end

6 of each section.

7

37. Mr. JONES took the test again in February 2010 without accommodations; his score did

8 not significantly change. As the February 2010 LSAT was an undisclosed test, no detailed score

9 report was provided by Defendant LSAC.

10

38. Mr. JONES applied to law school using results from his non-accommodated LSAT

11 scores. Because he was not satisfied with his score, Mr. JONES applied to more than thirty

12 schools, including all of the public law schools in California. He was denied admission, or was

13 waitlisted, to almost all of the higher-ranked schools to which he applied. Mr. JONES is

14 currently a 3L at a private law school, where he pays full tuition. He is informed and believes,

15 and thereupon alleges, that he would have qualified for scholarship monies with an

16 accommodated LSAT score.

17

Elizabeth Hennessey-Severson

18

39. Plaintiff-Intervenor ELIZABETH HENNESSEY-SEVERSON has Reading Disorder,

19 Disorder of Written Expression, Mathematics Disorder, and ADHD-I (Attention Deficit-

20 Hyperactive Disorder-Inattentive). These conditions limit and substantially limit several major

21 life activities including reading, concentrating, and the operation of a major bodily function

22 (brain). Her combined learning disabilities cause Ms. HENNESSEY-SEVERSON to have

23 impaired reading, writing, and math abilities. Her ADHD-I results in difficulty with sustained

24 concentration, processing speed, distractibility, and difficulties with planning and organization.

25

40. Ms. HENNESSEY-SEVERSON was first diagnosed with her disabilities in 2002, while

26 she was in high school, although she began manifesting symptoms years earlier, while in grade

27 school. Ms. HENNESSEY-SEVERSON received the accommodation of extra time both in high

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1 school and as an undergraduate at Dartmouth College. She also received extra time as an

2 accommodation on the SAT.

3

41. Ms. HENNESSEY-SEVERSON wants to be a civil rights attorney working on behalf of

4 individuals in the criminal justice system. She worked for two years as a paralegal in San

5 Francisco after graduating from college.

6

42. Ms. HENNESSEY-SEVERSON applied to take the LSAT on April 27, 2011, in

7 advance of the May 3, 2011 deadline. She requested extra time on both the multiple choice and

8 reading portions of the LSAT (20 extra minutes for each 35-minute section), and 10-minute

9 breaks between each section. She submitted extensive documentation to Defendant LSAC which

10 established her disabilities and confirmed prior testing accommodations received. Ms.

11 HENNESSEY-SEVERSON submitted LSAC’s required forms, including: a four-page

12 “Candidate Form”; a two-page “Evaluator Form” addressing her learning disabilities filled out

13 by a licensed psychologist with a specialty in pediatric neuropsychology; and a second two-page

14 “Evaluator Form” addressing her ADHD-I filled out by the same licensed psychologist. Ms.

15 HENNESSEY-SEVERSON also provided a complete psycho-educational assessment dated July

16 2009; a previous psycho-educational assessment dated October 2002; confirmation that she had

17 received testing accommodations while a student at Dartmouth; and confirmation that she had

18 received testing accommodations on the SAT.

19

43. Defendant LSAC denied Ms. HENNESSEY-SEVERSON’s request by letter dated April

20 29, 2011. In the letter, Defendant LSAC “acknowledged” that Ms. HENNESSEY-SEVERSON

21 had a learning disorder, but stated that her documentation did not demonstrate a “limitation of a

22 major life activity” which affected her ability to take the test under standard (non-

23 accommodated) conditions. To support its decision, Defendant LSAC cited Ms. HENNESSEY-

24 SEVERSON’s high IQ score and her “very superior” and “high average” scores on portions of

25 her psycho-educational assessment. The letter stated that Ms. HENNESSEY-SEVERSON had

26 until May 3, 2011, to seek reconsideration – four days away and the same deadline for an initial

27 request for accommodations.

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1

44. By May 3, 2011, Ms. HENNESSEY-SEVERSON requested reconsideration of the

2 denial, and submitted a five-page letter from her psychologist in support of her request. The

3 psychologist explained that the “very superior” and “high average” scores that Defendant LSAC

4 cited to support its denial were achieved by Ms. HENNESSEY-SEVERSON on untimed

5 measures of reading, whereas on other, timed, measures, the results were “poor.” The

6 psychologist inserted three tables comparing HENNESSEY-SEVERSON’s performance various

7 timed versus untimed scores.

8

45. On May 10, 2011, Defendant LSAC sent a letter to Ms. HENNESSEY-SEVERSON

9 stating: “After full consideration of all of the documentation submitted on your behalf, there has

10 been no change in our decision.”

11

46. Thereafter, Ms. HENNESSEY-SEVERSON sought legal counsel to obtain testing

12 accommodations on the LSAT. For some months, these efforts were unavailing. Recently,

13 Defendant LSAC granted Ms. HENNESSEY-SEVERSON testing accommodations for the June

14 2012 LSAT. Defendant LSAC did not grant all of the accommodations requested by Ms.

15 HENNESSEY-SEVERSON. As well, Ms. HENNESSEY-SEVERSON’s score is subject to

16 Defendant LSAC’s “flagging” policy.

17

47. Ms. HENNESSEY-SEVERSON intends to register to take the LSAT again at some point

18 over the next several years. She intends to again request testing accommodations.

19

FIRST CLAIM FOR RELIEF

20

Disability-Based Discrimination in Violation of

Title III of the Americans with Disabilities Act

21

42 U.S.C. § 12181 et seq.

22

48. Plaintiff-Intervenors incorporate by reference as if fully set forth herein the allegations

23 contained in paragraphs 1 through 47 above.

24

49. As a privately operated service establishment whose operations affect commerce, the

25 LSAC and the services it provides constitute a public accommodation. See 42 U.S.C. §

26 12181(7), (7)(F); Powell v. Nat'l Bd. of Med. Exam’rs, 364 F.3d 79, 85 (2d Cir. 2004) (defendant

27

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1 National Board of Medical Examiners “concedes that its services constitute a public

2 accommodation covered by Title III.”).

3

50. Title III of the ADA prohibits discrimination against a person with a disability in the full

4 and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations

5 of any place of public accommodation. 41 U.S.C. § 12182(a).

6

51. Such prohibited discrimination includes the use of “eligibility criteria that screen[s] out

7 or tends to screen out” individuals with disabilities from equal enjoyment of the services,

8 privileges, or advantages being offered, as well as the use of “standards or criteria or methods of

9 administration [that] have the effect of discriminating on the basis of disability.” 42 U.S.C. §

10 12182 (b)(2)(A)(i), (b)(1)(D)(i).

11

52. Such prohibited discrimination includes the failure to make to make “reasonable

12 modifications to policies, practices, or procedures, when such modifications are necessary to

13 afford such goods, services, facilities, privileges, advantages, or accommodations to individuals

14 with disabilities.” 42 U.S.C. § 12182 (b)(2)(A)(ii). A public accommodation “shall” make these

15 reasonable modifications. 28 C.F.R. § 36.302 (a).

16

53. Such prohibited discrimination includes providing individuals with disabilities an

17 “unequal benefit” compared to that of individuals without disabilities. 42 U.S.C. §

18 12182(b)(1)(A)(ii).

19

54. At all times relevant herein, and through to the present, Plaintiff-Intervenors QUAN,

20 JONES, and HENNESSEY-SEVERSON were and are individuals with disabilities who required

21 reasonable modifications to participate on a full and equal basis on the LSAT and who are

22 entitled to protection against prohibited disability discrimination.

23

55. By imposing upon Plaintiff-Intervenors QUAN, JONES, and HENNESSEY-

24 SEVERSON onerous and unnecessary documentation requirements to support requests for

25 testing accommodations, and by subjecting them to arbitrary, ineffective, and unpredictable

26 evaluation and appeals procedures, Defendant LSAC violated Title III of the ADA. By refusing

27 to make reasonable modifications to testing conditions for Plaintiff-Intervenors QUAN, JONES,

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1 and HENNESSEY-SEVERSON, Defendant LSAC violated Title III of the ADA. After

2 ultimately granting testing accommodations to Plaintiff-Intervenor HENNESSEY-SEVERSON,

3 but refusing to provide her with an LSAT score in the same format as her nondisabled peers,

4 Defendant LSAC violated Title III of the ADA.

5

56. As a result of Defendant LSAC’s unlawful actions and inactions, Plaintiff-Intervenors

6 QUAN, JONES, and HENNESSEY-SEVERSON were forced to obtain and submit burdensome

7 and unnecessary documentation in support of their requests for testing accommodations. When

8 their requested accommodations were nevertheless denied, Plaintiff-Intervenors QUAN, JONES,

9 and HENNESSEY-SEVERSON were subjected to the stress and aggravation of the LSAC’s

10 capricious appeals process. Denied accommodations even after appealing, Plaintiff-Intervenors

11 QUAN, JONES, and HENNESSEY-SEVERSON were then forced to seek legal counsel.

12 Nevertheless denied accommodations, Plaintiff-Intervenors QUAN and JONES were forced to

13 take the LSAT without the modifications that would have enabled them to earn a score that

14 effectively measured their aptitudes and abilities. After nearly 12 months of being denied

15 accommodations, and then granted some of the testing accommodations she requested, Plaintiff-

16 Intervenor HENNESSEY-SEVERSON was subjected to the Defendant LSAC’s policy and

17 practice of “flagging” accommodated test scores.

18

57. Without an effectively accommodated LSAT score, Plaintiff-Intervenors QUAN and

19 JONES were denied the opportunity to compete for admission to law schools on an equal basis

20 with their nondisabled peers. With an accommodated but “flagged” LSAT score, Plaintiff-

21 Intervenor HENNESSEY-SEVERSON was denied a test score in an equivalent format as her

22 nondisabled peers.

23

58. As a result of the Defendant LSAC’s unlawful testing accommodation policies,

24 procedures, and practices, Plaintiff-Intervenors QUAN, JONES, and HENNESSEY-SEVERSON

25 experienced emotional distress, extensive inconveniences, and financial burdens. The exclusion

26 of disabled test-takers including Plaintiff-Intervenors from equal access to the LSAT is

27 associated with additional outcomes, such as the denial of the experience, scholarship money,

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1 and career opportunities that are available via admission to and graduation from higher-ranking

2 law schools.

3

59. In taking the above-described actions and inactions, Defendant LSAC failed to make

4 any good faith effort or attempt to comply with the ADA.

5

60. As a direct and proximate result of the unlawful acts described herein, Plaintiff-

6 Intervenors QUAN, JONES, and HENNESSEY-SEVERSON have suffered and continue to

7 suffer injuries.

8

61. Plaintiff-Intervenors QUAN, JONES, and HENNESSEY-SEVERSON are entitled to

9 equitable relief, including declaratory and injunctive relief, attorneys’ fees and costs, and such

10 other relief as the court considers to be appropriate.

11

SECOND CLAIM FOR RELIEF

12

Failure to Provide an Accessible Examination in Violation of Title III of the Americans with Disabilities Act

13

42 U.S.C. § 12189

14

62. Plaintiff-Intervenors incorporate by reference the allegations in paragraphs 1 through

15 61, as though fully set forth herein.

16

63. Title III of the ADA specifies that “[a]ny person that offers examinations or courses

17 related to applications, licensing, certification, or credentialing for secondary or post-secondary

18 education, professional, or trade purposes shall offer such examinations or courses in a place and

19 manner accessible to persons with disabilities or offer alternative accessible arrangements for

20 such individuals.” 42 U.S.C. § 12189.

21

64. To ensure that “the key gateways to education and employment are open to individuals

22 with disabilities,” 28 C.F.R. § 36 app. B, examinations, like the LSAT, must be administered to

23 an individual with a disability so that “the examination results accurately reflect the individual’s

24 aptitude or achievement level or whatever other factor the examination purports to measure,

25 rather than reflecting the individual’s impaired sensory, manual, or speaking skills[.]” Id. at §

26 36.309(b)(1)(i). Meeting this standard may require the test administrator to make modifications

27 to the examination for an individual with a disability, including “changes in the length of time

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1 permitted for completion of the examination and adaptation of the manner in which the

2 examination is given.” Id. at § 36.309(b)(2).

3

65. Testing entities such as Defendant LSAC are required to assure that any requests for

4 documentation are “reasonable and limited to the need for the modification, accommodation, or

5 auxiliary aid or service requested.” Id. at § 36.309(b)(1)(iv).

6

66. When considering requests for accommodations, a testing entity such as defendant

7 LSAC must give “considerable weight” to documentation of an individual’s past

8 accommodations on testing given under similar conditions. Id. at § 36.309(b)(1)(v).

9

67. When considering requests for accommodations, a testing entity such as defendant

10 LSAC must “respon[d] in a timely manner to requests for modifications, accommodations or aids

11 to ensure equal opportunity for individuals with disabilities.” Id. at § 36.309(b)(1)(vi).

12

68. At all times relevant herein, and through to the present, Plaintiff-Intervenors QUAN,

13 JONES, and HENNESSEY-SEVERSON were and are individuals with disabilities who required

14 reasonable modifications to participate in a fair, full, and equal basis on the LSAT.

15

69. By imposing upon Plaintiff-Intervenors QUAN, JONES, and HENNESSEY-

16 SEVERSON onerous and unnecessary documentation requirements to support requests for

17 testing accommodations, and by subjecting them to arbitrary, ineffective, and unpredictable

18 evaluation and appeals procedures, Defendant LSAC has violated Title III of the ADA. By

19 refusing to make reasonable modifications to testing conditions for Plaintiff-Intervenors QUAN,

20 JONES, and HENNESSEY-SEVERSON, Defendant LSAC has violated Title III of the ADA.

21 After ultimately granting some of the testing accommodations requested to Plaintiff-Intervenor

22 HENNESSEY-SEVERSON, but refusing to provide her with an LSAT score in the same format

23 as her nondisabled peers, Defendant LSAC violated Title III of the ADA.

24

70. In taking the above-described actions and inactions, Defendant LSAC failed to make

25 any good faith effort or attempt to comply with the ADA.

26

71. As a direct and proximate result of the unlawful acts described herein, Plaintiff-

27 Intervenors QUAN, JONES, and HENNESSEY-SEVERSON have suffered and continue to

28

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Costs

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1 suffer injuries.

2

72. Plaintiff-Intervenors QUAN, JONES, and HENNESSEY-SEVERSON are entitled to

3 equitable relief, including injunctive and declaratory relief, attorneys’ fees and costs, and such

4 other relief as the court considers to be appropriate.

5

THIRD CLAIM FOR RELIEF

6

Disability-Based Discrimination in Violation of California’s Unruh Civil Rights Act

7

Cal. Civ. Code § 51, et seq.

8

73. Plaintiff-Intervenors incorporate by reference the allegations in paragraphs 1 through

9 72, as though fully set forth herein.

10

74. California’s Unruh Act provides that “all persons … no matter what their sex, race,

11 color, religion, ancestry, national origin, or disability are entitled to the full and equal

12 accommodations, advantages, facilities, privileges, or services in all business establishments of

13 every kind whatsoever … .” Cal. Civ. Code § 51(b). Further, “[a] violation of the right of any

14 individual under the federal Americans with Disabilities Act of 1990 (P.L. 101-336) … also

15 constitute[s] a violation of [the Act].” Cal. Civ. Code § 51(f).

16

75. Under the Act, and as required by the ADA, a business establishment must make

17 reasonable modifications in policies, practices, or procedures, when such modifications are

18 necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to

19 individuals with disabilities, and may not engage in discrimination against a person with a

20 disability, as defined. See para. 49 to 53 and 63 to 67, supra.

21

76. At all times relevant herein, and through to the present, Plaintiff-Intervenors QUAN,

22 JONES, and HENNESSEY-SEVERSON were and are individuals with disabilities who required

23 reasonable modifications to participate in a fair, full, and equal basis on the LSAT.

24

77. In violation of their right to be free from disability-based discrimination under Title III

25 of the ADA, Defendant LSAC imposed upon Plaintiff-Intervenors QUAN, JONES, and

26 HENNESSEY-SEVERSON onerous and unnecessary documentation requirements to support

27 requests for testing accommodations, and subjected them to an arbitrary, ineffective, and

28

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1 unpredictable evaluation and appeals procedure. In violation of their right to be free from

2 disability-based discrimination under Title III of the ADA, Defendant LSAC refused to provide

3 Plaintiff-Intervenors QUAN, JONES and HENNESSEY-SEVERSON with the reasonable

4 modifications they needed to take the LSAT on an equal basis with other nondisabled test takers.

5 In violation of her right to be free from disability-based discrimination under Title III of the

6 ADA, Defendant LSAC refused to provide Plaintiff-Intervenor HENNESSEY-SEVERSON –

7 who was ultimately granted some of the testing accommodations she requested after months of

8 delay – with a test score in an equivalent format as her nondisabled peers.

9

78. In taking the above-described actions and inactions, Defendant LSAC failed to make any

10 good faith effort or attempt to comply with state and federal laws.

11

79. Defendant LSAC’s unlawful actions were intentional, willful, malicious and/or done

12 with reckless disregard to Plaintiff-Intervenors’ right to be free from discrimination based on

13 their disabilities.

14

80. As a direct and proximate result of the unlawful acts described herein, Plaintiff-

15 Intervenors QUAN, JONES, and HENNESSEY-SEVERSON have suffered and continue to

16 suffer injuries, including emotional injuries.

17

81. Plaintiff-Intervenors QUAN, JONES, and HENNESSEY-SEVERSON are entitled to

18 actual damages, treble damages, attorneys’ fees and costs, declaratory and injunctive relief, and

19 other appropriate relief as determined by this court.

20

FOURTH CLAIM FOR RELIEF

21

Unlawful Business Practices in Violation of California’s Unfair Business Practices Act

22

Cal. Bus. & Prof. Code § 17200, et seq.

23

82. Plaintiff-Intervenors incorporate by reference as if fully set forth herein the allegations

24 contained in paragraphs 1 through 81, above.

25

83. California’s Unfair Business Practices Act prohibits “any unlawful, unfair or fraudulent

26 business act or practice.” Cal. Bus. & Prof. Code § 17200.

27

84. Defendant LSAC committed unlawful and unfair business practices, including but not

28

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1 limited to: violations of Title III of the ADA; and violations of the Unruh Civil Rights Act.

2

85. As a result of these unfair business practices, Plaintiff-Intervenors QUAN, JONES and

3 HENNESSEY-SEVERSON have suffered injuries in fact, as described herein.

4

86. As a result of these unfair business practices, Plaintiff-Intervenors QUAN, JONES and

5 HENNESSEY-SEVERSON have also lost money or property, such losses incurred due to

6 postage, mileage, telephone, Xeroxing, and faxing associated with the unlawful documentation

7 and appeals process, and additional application fees associated with the effects of receiving an

8 LSAT score that did not effectively measure their aptitude and abilities. Mr. QUAN expended

9 additional monies on two LSAT review courses and for assistance with his applications to ensure

10 that his personal statement explained the disparity between his academic record and his test

11 score. Ms. HENNESSEY-SEVERSON also expended additional monies on two LSAT review

12 courses. Plaintiff-Intervenors QUAN, JONES, and HENNESSEY-SEVERSON have further

13 been denied the benefit of the service which they purchased from defendant LSAC, that is, a

14 professional examination that lawfully and fairly measured their abilities and aptitudes, and that

15 provided a test score in a format equivalent to that granted to nondisabled peers.

16

87. Plaintiff-Intervenors QUAN, JONES and HENNESSEY-SEVERSON are entitled to

17 restitution, injunctive relief, declaratory relief, attorneys’ fees and costs, and other appropriate

18 relief as determined by this court.

19

DECLARATORY AND EQUITABLE RELIEF

20

88. Plaintiff-Intervenors incorporate by reference the allegations in paragraphs 1 through

21 87, as though fully set forth herein.

22

89. Defendant LSAC’s unlawful policies, procedures, and practices, and their impacts upon

23 persons with disabilities, are longstanding. However, because these unlawful actions and

24 inactions affect persons taking an entrance examination for law school, and these persons

25 inevitably move on from taking the LSAT to either entering or not entering law school, the

26 claims of the Plaintiff-Intervenors are capable of repetition, yet evading review.

27

90. A present and actual controversy exists between Plaintiff-Intervenors QUAN, JONES,

28

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1 and HENNESSEY-SEVERSON and Defendant concerning their rights and respective duties.

2 Plaintiff-Intervenors contend that Defendant violated their rights under the ADA and the Unruh

3 Civil Rights Act. Plaintiff-Intervenors are informed and believe, and thereon allege, that

4 defendant LSAC denies these allegations. Declaratory relief is therefore necessary and

5 appropriate.

6

91. Plaintiff-Intervenors QUAN, JONES, and HENNESSEY-SEVERSON seek a judicial

7 declaration of the rights and duties of the respective parties.

8

92. Plaintiff-Intervenor HENNESSEY-SEVERSON seeks injunctive relief.

9

PRAYER FOR RELIEF

10 WHEREFORE, Plaintiff-Intervenors respectfully request that this court order:

11

1. Declaratory and injunctive relief;

12

2. Equitable relief;

13

3. Actual damages;

14

4. Treble damages;

5. Restitution; 15

6. Reasonable attorneys’ fees, reasonable expert witness fees, and other costs of the action, 16
pursuant to 42 U.S.C. § 12205, 29 U.S.C. § 2617(a)(3), Cal. Civil Code §§ 52(a), 54.3(a), 17
55, Cal. Code Civ. Proc. §1021.5, and other laws; 18
7. Interest, including pre- and post-judgment interest and an upward adjustment for

19 inflation; and

20

8. Such other and further relief as this court may deem just and proper.

21

22

23

24

25 / / / / /
26
27 / / / / /

28

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Case No. CV 12-1830-EMC

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Case3:12-cv-01830-EMC Document63 Filed10/19/12 Page24 of 24

1 Dated: October 19, 2012 2 3 4

Respectfully submitted,
Claudia Center The LEGAL AID SOCIETY - EMPLOYMENT LAW CENTER

5

By: ________/s/ Claudia Center_________________

6

Claudia Center

7

Attorney for Plaintiff-Intervenors ANDREW

QUAN, NICHOLAS JONES, and ELIZABETH

8

HENNESSEY-SEVERSON

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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Case No. CV 12-1830-EMC

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 Case3:12-cv-01830-EMC Document137 Filed05/08/13 Page1 of 25

Denise M. Hulett, State Bar No. 121553 1 Claudia Center, State Bar No. 158255
Gina Gemello, State Bar No. 282964 2 The LEGAL AID SOCIETY –
EMPLOYMENT LAW CENTER 3 180 Montgomery Street, Suite 600
San Francisco, CA 94104 4 Telephone: (415) 864-8848
Facsimile: (415) 593-0096 5 Emails: ccenter@las-elc.org
ggemello@las-elc.org 6
Attorneys for Plaintiff-Intervenors 7 ANDREW QUAN, NICHOLAS JONES and
ELIZABETH HENNESSEY-SEVERSON 8

9

IN THE UNITED STATES DISTRICT COURT

10

FOR THE NORTHERN DISTRICT OF CALIFORNIA

11

12 THE DEPARTMENT OF FAIR 13 EMPLOYMENT AND HOUSING,

14

Pl

aintiff,

15

v.

16

LAW SCHOOL ADMISSION COUNCIL, INC., ET AL.,

17 Defendants.

18 JOHN DOE et al., and all other similarly
19 situated individuals,

20

Real Parties in Interest

Case No. CV 12-1830-EMC
FIRST AMENDED COMPLAINT FOR DAMAGES, EQUITABLE RELIEF, AND ATTORNEYS’ FEES AND COSTS FOR VIOLATIONS OF THE AMERICANS WITH DISABILITIES ACT OF 1990, 42 U.S.C. § 12101, ET SEQ.; CALIFORNIA’S UNRUH CIVIL RIGHTS ACT, CAL. CIVIL CODE § 51, ET SEQ., AND CALIFORNIA’S UNFAIR BUSINESS PRACTICES ACT, CAL. BUS. & PROF. CODE § 17200, ET SEQ.

21 ANDREW QUAN, NICHOLAS JONES, and
22 ELIZABETH HENNESSEY-SEVERSON,

23

Plaintiff-Intervenors,

v.

24 LAW SCHOOL ADMISSION COUNCIL,
25 INC.,

26

Defendant.

27

28

Plaintiff-Intervenors’ First Amended Complaint

Case No. CV 12-1830-EMC

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1

Plaintiff-Intervenors ANDREW QUAN, NICHOLAS JONES, and ELIZABETH

2 HENNESSEY-SEVERSON complain and allege as follows:

3

INTRODUCTION

4

1. This is an action for relief from Defendant’s violation of the civil rights of Plaintiff-

5 Intervenors ANDREW QUAN, NICHOLAS JONES, and ELIZABETH HENNESSEY-

6 SEVERSON. These violations, which are more particularly alleged herein, include disability-

7 based discrimination in violation of the Americans with Disabilities Act (ADA), disability-based

8 discrimination in violation of California’s Unruh Civil Rights Act, and unlawful business

9 practices in violation of California’s Unfair Business Practices Act.

10

2. Plaintiff-Intervenors QUAN, JONES, and HENNESSEY-SEVERSON are individuals

11 with disabilities within the meaning of federal and state disability nondiscrimination laws,

12 including Title III of the ADA and California’s Unruh Civil Rights Act.

13

3. Plaintiff-Intervenors QUAN, JONES, and HENNESSEY-SEVERSON requested

14 accommodations from Defendant LSAC for the Law School Admission test (LSAT). In

15 violation of law, Defendant LSAC imposed upon Plaintiff-Intervenors onerous and unnecessary

16 documentation requirements and subjected them to an arbitrary, ineffective, and unpredictable

17 evaluation and appeals procedure. In violation of law, Defendant LSAC refused to make

18 reasonable modifications to testing conditions for Plaintiff-Intervenors. In violation of law, after

19 finally providing testing accommodations to Plaintiff-Intervenor HENNESSEY-SEVERSON,

20 Defendant LSAC refused to provide her with an LSAT score in the same format as her

21 nondisabled peers.

22

4. Plaintiff-Intervenors seek declaratory and injunctive relief, equitable relief, actual

23 damages, treble damages, restitution, reasonable attorneys’ fees and costs, as well as other

24 appropriate relief as determined by this court.

25

JURISDICTION

26

5. This court has jurisdiction over the subject matter and the parties pursuant to 28 U.S.C. §

27 1331. Plaintiff-Intervenors bring this suit under Title III of the ADA, 42 U.S.C. § 12181, et seq.

28

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Case No. CV 12-1830-EMC

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1

6. This court has supplemental jurisdiction over the related state law claims pursuant to 28

2 U.S.C. § 1367(a). Plaintiff-Intervenors’ claims pursuant to California’s Unruh Civil Rights Act,

3 Cal. Civil Code § 51, et seq., and California’s Unfair Business Practices Act, Cal. Bus. & Prof.

4 Code § 12700, et seq., are related, as all of Plaintiff-Intervenors’ claims share common operative

5 facts. Resolving all state and federal claims in a single action serves the interests of judicial

6 economy, convenience, and fairness to the parties.

7

VENUE

8

7. Venue is proper in the Northern District of California pursuant to 28 U.S.C. § 1391(b)(2),

9 in that the claims of Plaintiff-Intervenors and Real Parties in Interest QUAN and HENNESSEY-

10 SEVERSON along with the claims of other Real Parties in Interest occurred herein.

11

PARTIES

12

1. Plaintiff-Intervenor ANDREW QUAN is a citizen of the United States and a resident of

13 Hayward (Alameda County, California).

14

2. Plaintiff-Intervenor QUAN has Attention Deficit Hyperactive Disorder (ADHD),

15 dysgraphia, hypotonia, and a visual-motor deficit with slow processing speed. These conditions

16 limit and substantially limit several major life activities. He is an individual with a “disability”

17 within the meaning of federal and state disability nondiscrimination laws, including Title III of

18 the ADA and California’s Unruh Civil Rights Act.

19

3. Plaintiff-Intervenor NICHOLAS JONES is a citizen of the United States and a resident of

20 Palm Desert (Riverside County, California).

21

4. Plaintiff-Intervenor JONES has amblyopia and posterior vitreous detachment, which are

22 visual impairments. These conditions limit and substantially limit several major life activities.

23 He is an individual with a “disability” within the meaning of federal and state disability

24 nondiscrimination laws, including Title III of the ADA and California’s Unruh Civil Rights Act.

25

5. Plaintiff-Intervenor ELIZABETH HENNESSEY-SEVERSON is a citizen of the United

26 States and a resident of San Francisco (San Francisco County, California).

27

6. Plaintiff-Intervenor HENNESSEY-SEVERSON has ADHD-I and learning disabilities.

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1 These conditions limit and substantially limit several major life activities. She is an individual

2 with a “disability” within the meaning of federal and state disability nondiscrimination laws,

3 including Title III of the ADA and California’s Unruh Civil Rights Act.

4

7. Defendant LSAC is a Delaware corporation with its headquarters in Newtown,

5 Pennsylvania. The LSAC administers the LSAT throughout the United States, including in this

6 judicial district. The LSAC is a “person that offers examinations or courses related to

7 applications, licensing, certification, or credentialing for secondary or post-secondary education,

8 professional, or trade purposes” within the meaning of Title III of the ADA. The LSAC is also a

9 “public accommodation” within the meaning of Title III of the ADA. The LSAC is a “business

10 establishment” within the meaning of California’s Unruh Civil Rights Act.

11

STATEMENT OF FACTS

12

LSAC and the Law School Admission Test (LSAT)

13

8. Defendant LSAC administers the Law School Admission Test (LSAT), a half-day,

14 standardized test used in the admissions decisions of virtually all ABA-accredited law schools,

15 and many non-accredited law schools. The test consists of five multiple choice sections (35

16 minutes each) and one writing sample (35 minutes). Approximately 150,000 LSATs are

17 administered worldwide each year. Defendant LSAC also offers a “Credential Assembly

18 Service” to law schools, in which applicants to law school upload undergraduate transcripts,

19 evaluations, and application materials. LSAC then disseminates the application materials, along

20 with an applicant’s LSAT score report, to law schools.

21

9. Applicants with disabilities may seek testing accommodations on the LSAT pursuant to

22 the LSAC’s policies, procedures, and practices. As alleged herein, these policies, procedures,

23 and practices are inconsistent with the requirements of state and federal laws and operate to

24 discriminate against and exclude persons with disabilities.

25

10. Under the LSAC’s policies, procedures, and practices, disabled applicants seeking

26 testing accommodations must complete and submit an extensive portfolio of current and

27 historical materials including medical and/or psychological documentation by a stated deadline.

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1

(a) Each disabled applicant seeking testing must submit a three-page application

2 form, a score report from past standardized tests, a verification of accommodations received on

3 each of those tests, and one three-page medical form filled out by a qualified professional, as

4 necessary to document the applicant’s condition(s).

5

(b) Depending upon the type of disability, applicants are required to submit additional

6 documentation.

7

(c) Applicants with “cognitive and psychological impairments,” a category which

8 includes learning disorders, processing deficiencies, and ADHD, are referred to a three-page,

9 single-spaced document detailing extensive additional requirements, including:

10

•

Full psychoeducational and/or neuropsychological evaluation which addresses

sensory-motor, auditory, attention, and visual-spatial issues; receptive and

11

expressive language; immediate and delayed memory; achievement; and

intelligence; and which includes a comprehensive diagnostic interview;

12

•

Complete aptitude assessment such as Wechsler Adult Intelligence Scale, Fourth

13

Edition (WAIS-IV);

14

•

Comprehensive achievement battery;

15

•

Timed reading comprehension measure;

16

•

Timed writing measures if additional time on the nonscored writing section is

requested;

17

•

Measures of spelling and grammar skills if a computer with spelling and/or

18

grammar check is requested;

19

•

Objective data measures (such as the CPT-II or TOVA) and tests measuring

information processing (such as WAIS-IV) for applicants with

20

information/attention processing diagnoses (including ADHD); and

21

•

Personality tests (LSAC recommends submitting an objective test such as the

MMPI-II or MCMI-III and a projective testing instrument like the Rorschach) for

22

applicants seeking accommodations based on psychiatric disorders.

23 All tests for cognitive and psychological disabilities must be no older than three years if the

24 applicant is under the age of twenty-one, or five years if the applicant is over twenty-one.

25

(d) Applicants who are blind or who have other visual disabilities must submit, in

26 addition to the standard requirements, a four-page Evaluation Report filled out by their treating

27 practitioner.

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1

(e) Applicants with “physical/medical impairments” must submit, in addition to the

2 standard requirements, a two-page Physical Evaluation Report.

3

(f) Applicants with hearing impairments must submit, in addition to the standard

4 requirements, a comprehensive psycho-educational assessment.

5

(g) Applicants seeking testing accommodations based upon more than one type of

6 impairment must comply with the documentation requirements of each type of impairment.

7

11. The LSAC’s documentation requirements for testing accommodations are frequently

8 onerous and unnecessary. For example, applicants seeking testing accommodations related to a

9 learning disability typically can demonstrate a history of testing accommodations in other

10 contexts and can provide copies of psycho-educational testing and evaluation documents

11 conducted throughout K-12. Yet to comply with the LSAC’s rigid documentation requirements,

12 including the specific tests required and the requirement that the testing be less than three or five

13 years old (depending upon the age of the individual), these applicants must often hire

14 psychologists and other medical professionals to administer and compile the battery of required

15 tests and reports. The out-of-pocket costs can total thousands of dollars.

16

12. The LSAC’s documentation requirements are frequently unclear. For example, various

17 testing measures are described as “preferred” or “helpful” but the requirements nowhere explain

18 the relative weight or preference given to such instruments, or the risks involved with providing

19 an alternate measure.

20

13. The LSAC’s procedures for receiving, evaluating, and reconsidering requests for testing

21 accommodations are vague, ambiguous, and arbitrary.

22

(a) While LSAC publications set forth specific deadlines for requesting

23 accommodations, applicants are urged to submit requests “well in advance” of the deadlines or 24 “there will be little or no opportunity to rectify deficiencies in documentation or seek 25 reconsideration.” No definition is provided for “well in advance.” Related, the deadline for 26 “reconsideration,” which is Defendant LSAC’s label for its appeals process, is the same deadline 27 as for submitting an original request for testing accommodations. An applicant can thus meet or

28

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Case No. CV 12-1830-EMC

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1 exceed the initial deadline, be denied, and not have any time remaining for an appeal.

2

(b) The standards by which applications are evaluated initially and upon

3 reconsideration are opaque. Denial letters are frequently cursory (e.g.,“the documentation you

4 provided did not reflect an impairment related to taking the LSAT.”).

5

(c) As a result, it is extraordinarily difficult for an applicant to determine what is

6 missing from his or her application, obtain that information from a permitted source, and submit

7 the information in time to obtain accommodation prior to a scheduled test date.

8

14. Those applicants who are successful in obtaining testing accommodations from the

9 LSAC do not receive an LSAT score in the same format as their nondisabled peers. Unlike the

10 test scores issued by the College Board or by Educational Testing Service (ETS), such as the

11 SAT, PSAT, and GRE, the scores of persons who take the LSAT with testing accommodations

12 are “flagged” – they are accompanied by a letter disclosing that the test was taken under

13 nonstandard testing conditions.

14

Andrew Quan

15

15. Plaintiff-Intervenor ANDREW QUAN has ADHD, dysgraphia, hypotonia, and a visual-

16 motor integration deficit with slow processing speed. ADHD (Attention Deficit-Hyperactive

17 Disorder) is a neurobehavioral condition with common symptoms of difficulty paying attention,

18 staying on task, and controlling impulses. Dysgraphia, a learning disability that affects the motor

19 and information processing skills associated with writing, can result in spelling errors, “bad”

20 handwriting, difficulty expressing thoughts in writing, and/or difficulty organizing letters,

21 numbers, and words on a line or page. Hypotonia refers to decreased muscle tone, which can

22 affect an individual’s mobility, posture, breathing, speech, and reflexes. The diagnosis “visual23 motor integration deficit” is correlated with the code for “Learning Disability Not Otherwise 24 Specified” in the DSM (Diagnostic and Statistical Manual of Mental Disorders) IV. Mr. QUAN 25 also has physical disabilities, in part related to the above-referenced disabilities. These 26 conditions limit and substantially limit several major life activities including reading, 27 concentrating, and the operation of a major bodily function (brain).

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1

16. Mr. QUAN was first diagnosed with disabilities when he was nine years old. Mr. Quan

2 has consistently received accommodations in school, beginning in the fourth grade. He received

3 accommodations for the ACT, a pre-college standardized exam. Mr. QUAN attended the

4 University of California, Santa Cruz, where he received accommodations for his disabilities,

5 such as double time on exams, a quiet testing environment, use of a scribe, and use of a laptop

6 for essay exams. Mr. QUAN graduated from UC Santa Cruz with honors in June 2012.

7

17. Mr. QUAN has wanted to become a lawyer since he was a child. He seeks to advocate

8 for the civil rights of persons with disabilities.

9

18. When he registered for the October 2011 LSAT, Mr. QUAN applied for accommodations

10 largely equivalent to those he received in college: extra time, a private testing space, a non-

11 Scantron answer sheet, and the use of a scribe or a laptop. His application included extensive

12 documentation regarding his disabilities and listed the accommodations he had received in the

13 past. He submitted LSAC’s required forms (a three-page “Evaluator Form” filled out by

14 licensed psychologist; a three-page “Evaluator Form” filled out by an M.D.; a three-page

15 “Physical Evaluation Report filled out by an M.D.; and a four-page “Candidate Form” which he

16 filled out). He also provided an April 22, 2008 psycho-educational assessment report confirming

17 and analyzing his disabilities based upon a review of his special education history and the results

18 of psychometric testing (WAIS-III, Developmental Test of Visual Motor Integration (VMI), the

19 Beery Developmental Test of Motor Coordination, and Test of Visual-Perceptual Skills – Upper

20 Level (TVPS-UL)), and noting “greatly varying” test results with “significant” gaps between

21 verbal aptitude/ability and visual-motor integration skills. He also provided confirmation that he

22 had received testing accommodations while a student at UC Santa Cruz, and copies of IEP

23 documentation confirming special education services in high school from Fall 2004 through

24 Spring 2008, including the granting of extra time and other accommodations on tests.

25

19. In a letter dated September 7, 2011, Defendant LSAC requested additional

26 documentation, including “testing results and a full diagnostic report from a comprehensive up-

27 to-date psychoeducational/neuropsychological assessment” in compliance with the LSAC’s

28

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1 guidelines. Mr. QUAN provided additional documentation; he also researched and wrote a letter

2 to Defendant LSAC, arguing that under both the ADA and 2010 U.S. Department of Justice

3 (DOJ) regulations, his documentation was sufficient. He noted that obtaining and providing the

4 required testing and report would cost thousands of dollars, and would not be covered by his

5 insurance.

6

20. Thereafter, on September 13, 2011, Defendant LSAC denied Mr. QUAN’s request for

7 testing accommodations. The denial letter reiterated the need to provide “testing results and a

8 full diagnostic report from a comprehensive up-to-date psychoeducational/neuropsychological

9 assessment,” emphasis in original, in compliance with the LSAC’s guidelines. (The

10 psychoeducational assessment provided by Mr. QUAN had been completed three and a half

11 years earlier in March/April 2008.) The letter further stated that any such compliant report

12 would not be considered for the October 2011 LSAT: “Since the receipt deadline for this

13 administration of the LSAT has passed, no further consideration will be given to your request for

14 accommodations until all of the aforementioned documentation is received for a future LSAT

15 only.” The LSAC never responded to Mr. QUAN’s concurrent request for testing

16 accommodations related to his physical disabilities.

17

21. Mr. QUAN took the October 2011 LSAT without accommodations. Mr. QUAN’s non-

18 accommodated score was inconsistent with his academic achievement.

19

22. Mr. QUAN next registered for December 2011 LSAT. He again applied for

20 accommodations, and provided documentation, by LSAC, by the stated deadline. By October

21 31, 2011, Mr. QUAN was again denied accommodations.

22

23. Mr. QUAN contacted the Legal Aid Society – Employment Law Center (LAS-ELC).

23 On November 11, 2011, LAS-ELC counsel notified Defendant LSAC that its handling of Mr.

24 QUAN’s request for testing accommodations violated Department of Justice 2010 regulations

25 designed to address the “inappropriate or burdensome” standards used by testing agencies such

26 as the LSAC when evaluating requests for testing accommodations.

27

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1

24. On November 28, 2011, Defendant LSAC responded to LAS-ELC counsel as follows:

2 “This will acknowledge receipt of your email and attachment. Your request for reconsideration

3 not timely and therefore cannot be considered.” Defendant LSAC sent a similar letter to Mr.

4 QUAN. On November 28, 2011, LAS-ELC reiterated to Defendant LSAC that it had been

5 required to comply with the DOJ regulations as of March 15, 2011. On November 28, 2011,

6 Defendant LSAC responded with an email stating in its entirety: “LSAC was fully aware of the

7 legal authorities you cited when it reviewed Mr. Quan’s file. Mr. Quan’s file remains

8 incomplete.”

9

25. In an effort to mitigate the denial of testing accommodations, Mr. QUAN hired an

10 LSAT tutor. Mr. QUAN took the December 2011 LSAT without accommodations. Again, his

11 non-accommodated score was not commensurate with his academic record.

12

26. Mr. QUAN applied to dozens of law schools, including the public law schools in

13 California. He expended time and resources crafting a personal statement to explain the stark

14 disconnect between his excellent academic record and his poor performance on the LSAT.

15 Initially, Mr. QUAN was not accepted to any “top tier” law schools. After months on the

16 waiting list, he was accepted to UC Hastings, in the Legal Education Opportunity Program

17 (LEOP) program.

18

Nicholas Jones

19

27. Plaintiff-Intervenor NICHOLAS JONES has two eye conditions, amblyopia and

20 posterior vitreous detachment, which result in compromised vision. Amblyopia causes Mr.

21 JONES to have impaired visual processing. Posterior vitreous detachment causes persistent

22 “floaters” to appear in Mr. JONES’s field of vision. These conditions limit and substantially

23 limit several major life activities including seeing, reading, and the operation of a major bodily

24 function (special sense organ). Mr. JONES must constantly move his eyes from side to side to

25 remove the “floaters” that appear in his field of vision, but as soon as he refocuses, the spots re-

26 appear. Because his reading is interrupted each time he must clear his vision, Mr. JONES often

27 must go back to re-read something in order to orient himself. Mr. JONES’s reading speed,

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1 comprehension, and concentration are thus all affected by his disability. Mr. JONES also

2 experiences migraines and fatigue as a result of his visual conditions.

3

28. Mr. JONES took the September 2009 LSAT without accommodations. His non-

4 accommodated score was not commensurate with his academic record, and the score report

5 provided by Defendant LSAC showed that the large majority of incorrect answers occurred at the

6 end of each section, when Mr. JONES was running out of time. Mr. JONES is and historically

7 has been a strong student; Mr. JONES graduated Salutatorian from high school and his

8 cumulative undergraduate LSAC-calculated GPA was 3.98/4.00.

9

29. On or about October 20, 2009, after learning about testing accommodations from his

10 board certified ophthalmologist and retinal surgeon, Mr. JONES applied for accommodations on

11 the December 2009 LSAT. Mr. JONES requested time-and-a-half on both the multiple choice

12 and written portions of the exam (i.e., an additional 17.5 minutes for each 35-minute section).

13 He also requested a 5-minute break between each section. In support of his request, Mr. JONES

14 submitted a three-page “Candidate Form” and a four-page “Evaluator Form” completed by his

15 treating provider, a board-certified ophthalmologist and retinal surgeon, which listed Mr.

16 JONES’s diagnoses and described the practical effects of Mr. JONES’s visual conditions. Mr.

17 JONES also wrote a two-page letter describing his struggle to complete the LSAT in the allotted

18 time due to his disability, and explaining that he had not sought accommodations in the past

19 because he had not known they existed.

20

30. In a letter dated October 27, 2009, Defendant LSAC denied Mr. JONES’s request for

21 accommodations. Defendant gave no reason for the denial and provided no suggestions as to

22 how Mr. JONES might successfully appeal. The letter stated only that the documentation

23 submitted “did not reflect an impairment related to taking the LSAT” and that if Mr. JONES

24 wished to seek reconsideration, “new information must be provided by your evaluator.” The

25 letter noted that the deadline for reconsideration was November 3, 2009 – a week away and the

26 same deadline for an initial request for accommodations.

27

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1

31. Mr. JONES appealed this decision prior to the November 3 deadline. On short notice,

2 he obtained and provided a supplemental, two-page letter from his treating ophthalmologist and

3 retinal surgeon which detailed the link between Mr. JONES’s conditions and his reading speed

4 and reading ability, as well as the fatigue and headaches that accompany Mr. JONES’s disability.

5 The ophthalmologist stressed Mr. JONES’s need for accommodations on the LSAT.

6

32. On November 9, 2009, Defendant LSAC again denied Mr. JONES’s appeal in a three-

7 sentence letter. The letter stated that a “Vision Rehabilitation Specialist” had reviewed his file

8 and that Mr. JONES had not demonstrated that he had a “significant visual condition.”

9

33. Mr. JONES contacted the LAS-ELC. On November 24, 2009, LAS-ELC counsel

10 notified Defendant LSAC that Mr. JONES’s visual conditions constitute disabilities affecting his

11 reading speed and stamina, thereby impairing his ability to sit for the LSAT without

12 accommodations. Counsel explained that Mr. JONES had not previously requested or received

13 accommodations, but had obtained such modifications informally by working with flexible

14 instructors and accessing on-line courses. Counsel requested that accommodations be put in

15 place for the December 5, 2009 LSAT.

16

34. On December 1, 2009, Defendant LSAC responded that “Mr. Jones does not

17 demonstrate that his visual difficulties … affect his ability to take the LSAT without

18 accommodations. In fact, he took the September 2009 LSAT without requesting

19 accommodations and was able to complete every item on each section” (italics in original).

20 Although Mr. JONES submitted supplemental material prior the November 3, 2009 deadline,

21 Defendant LSAC stated that “further reconsideration is not possible as the deadline for seeking

22 reconsideration was November 3, 2009.”

23

35. On December 3, 2009, LAS-ELC counsel sent a further letter to Defendant LSAC.

24 Counsel noted that the content of the prior communications from the LSAC violated a 2002

25 settlement agreement between LSAC and the DOJ, prohibiting LSAC from considering prior

26 performance on standardized testing when evaluating an accommodations request, and requiring

27 that defendant LSAC provide “clear written explanations” in denial letters, and that neither the

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1 initial denial nor the denial of reconsideration had done so. Defendant LSAC did not change its

2 position and Mr. JONES was not granted testing accommodations.

3

36. Mr. JONES again took the LSAT without accommodations on December 5, 2009. His

4 score was, again, not commensurate with his academic record. The score report provided by

5 Defendant LSAC, again, revealed that the large majority of incorrect answers occurred at the end

6 of each section.

7

37. Mr. JONES took the test again in February 2010 without accommodations; his score did

8 not significantly change. As the February 2010 LSAT was an undisclosed test, no detailed score

9 report was provided by Defendant LSAC.

10

38. Mr. JONES applied to law school using results from his non-accommodated LSAT

11 scores. Because he was not satisfied with his score, Mr. JONES applied to more than thirty

12 schools, including all of the public law schools in California. He was denied admission, or was

13 waitlisted, to almost all of the higher-ranked schools to which he applied. Mr. JONES is

14 currently a 3L at a private law school, where he pays full tuition. He is informed and believes,

15 and thereupon alleges, that he would have qualified for scholarship monies with an

16 accommodated LSAT score.

17

Elizabeth Hennessey-Severson

18

39. Plaintiff-Intervenor ELIZABETH HENNESSEY-SEVERSON has Reading Disorder,

19 Disorder of Written Expression, Mathematics Disorder, and ADHD-I (Attention Deficit-

20 Hyperactive Disorder-Inattentive). These conditions limit and substantially limit several major

21 life activities including reading, concentrating, and the operation of a major bodily function

22 (brain). Her combined learning disabilities cause Ms. HENNESSEY-SEVERSON to have

23 impaired reading, writing, and math abilities. Her ADHD-I results in difficulty with sustained

24 concentration, processing speed, distractibility, and difficulties with planning and organization.

25

40. Ms. HENNESSEY-SEVERSON was first diagnosed with her disabilities in 2002, while

26 she was in high school, although she began manifesting symptoms years earlier, while in grade

27 school. Ms. HENNESSEY-SEVERSON received the accommodation of extra time both in high

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1 school and as an undergraduate at Dartmouth College. She also received extra time as an

2 accommodation on the SAT.

3

41. Ms. HENNESSEY-SEVERSON wants to be a civil rights attorney working on behalf of

4 individuals in the criminal justice system. She worked for two years as a paralegal in San

5 Francisco after graduating from college.

6

42. Ms. HENNESSEY-SEVERSON applied to take the LSAT on April 27, 2011, in

7 advance of the May 3, 2011 deadline. She requested extra time on both the multiple choice and

8 reading portions of the LSAT (20 extra minutes for each 35-minute section), and 10-minute

9 breaks between each section. She submitted extensive documentation to Defendant LSAC which

10 established her disabilities and confirmed prior testing accommodations received. Ms.

11 HENNESSEY-SEVERSON submitted LSAC’s required forms, including: a four-page

12 “Candidate Form”; a two-page “Evaluator Form” addressing her learning disabilities filled out

13 by a licensed psychologist with a specialty in pediatric neuropsychology; and a second two-page

14 “Evaluator Form” addressing her ADHD-I filled out by the same licensed psychologist. Ms.

15 HENNESSEY-SEVERSON also provided a complete psycho-educational assessment dated July

16 2009; a previous psycho-educational assessment dated October 2002; confirmation that she had

17 received testing accommodations while a student at Dartmouth; and confirmation that she had

18 received testing accommodations on the SAT.

19

43. Defendant LSAC denied Ms. HENNESSEY-SEVERSON’s request by letter dated April

20 29, 2011. In the letter, Defendant LSAC “acknowledged” that Ms. HENNESSEY-SEVERSON

21 had a learning disorder, but stated that her documentation did not demonstrate a “limitation of a

22 major life activity” which affected her ability to take the test under standard (non-

23 accommodated) conditions. To support its decision, Defendant LSAC cited Ms. HENNESSEY-

24 SEVERSON’s high IQ score and her “very superior” and “high average” scores on portions of

25 her psycho-educational assessment. The letter stated that Ms. HENNESSEY-SEVERSON had

26 until May 3, 2011, to seek reconsideration – four days away and the same deadline for an initial

27 request for accommodations.

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1

44. By May 3, 2011, Ms. HENNESSEY-SEVERSON requested reconsideration of the

2 denial, and submitted a five-page letter from her psychologist in support of her request. The

3 psychologist explained that the “very superior” and “high average” scores that Defendant LSAC

4 cited to support its denial were achieved by Ms. HENNESSEY-SEVERSON on untimed

5 measures of reading, whereas on other, timed, measures, the results were “poor.” The

6 psychologist inserted three tables comparing HENNESSEY-SEVERSON’s performance various

7 timed versus untimed scores.

8

45. On May 10, 2011, Defendant LSAC sent a letter to Ms. HENNESSEY-SEVERSON

9 stating: “After full consideration of all of the documentation submitted on your behalf, there has

10 been no change in our decision.”

11

46. Thereafter, Ms. HENNESSEY-SEVERSON sought legal counsel to obtain testing

12 accommodations on the LSAT. For some months, these efforts were unavailing. Recently,

13 Defendant LSAC granted Ms. HENNESSEY-SEVERSON testing accommodations for the June

14 2012 LSAT. Defendant LSAC did not grant all of the accommodations requested by Ms.

15 HENNESSEY-SEVERSON. As well, Ms. HENNESSEY-SEVERSON’s score is subject to

16 Defendant LSAC’s “flagging” policy.

17

47. Ms. HENNESSEY-SEVERSON intends to register to take the LSAT again at some point

18 over the next several years. She intends to again request testing accommodations. She intends to

19 apply to law schools in California.

20

FIRST CLAIM FOR RELIEF

21

Disability-Based Discrimination in Violation of

Title III of the Americans with Disabilities Act

22

42 U.S.C. § 12181 et seq.

23

48. Plaintiff-Intervenors incorporate by reference as if fully set forth herein the allegations

24 contained in paragraphs 1 through 47 above.

25

49. As a privately operated service establishment whose operations affect commerce, the

26 LSAC and the services it provides constitute a public accommodation. See 42 U.S.C. §

27 12181(7), (7)(F); Powell v. Nat'l Bd. of Med. Exam’rs, 364 F.3d 79, 85 (2d Cir. 2004) (defendant

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1 National Board of Medical Examiners “concedes that its services constitute a public

2 accommodation covered by Title III.”).

3

50. Title III of the ADA prohibits discrimination against a person with a disability in the full

4 and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations

5 of any place of public accommodation. 41 U.S.C. § 12182(a).

6

51. Such prohibited discrimination includes the use of “eligibility criteria that screen[s] out

7 or tends to screen out” individuals with disabilities from equal enjoyment of the services,

8 privileges, or advantages being offered, as well as the use of “standards or criteria or methods of

9 administration [that] have the effect of discriminating on the basis of disability.” 42 U.S.C. §

10 12182 (b)(2)(A)(i), (b)(1)(D)(i).

11

52. Such prohibited discrimination includes the failure to make to make “reasonable

12 modifications to policies, practices, or procedures, when such modifications are necessary to

13 afford such goods, services, facilities, privileges, advantages, or accommodations to individuals

14 with disabilities.” 42 U.S.C. § 12182 (b)(2)(A)(ii). A public accommodation “shall” make these

15 reasonable modifications. 28 C.F.R. § 36.302 (a).

16

53. Such prohibited discrimination includes providing individuals with disabilities an

17 “unequal benefit” compared to that of individuals without disabilities. 42 U.S.C. §

18 12182(b)(1)(A)(ii).

19

54. At all times relevant herein, and through to the present, Plaintiff-Intervenors QUAN,

20 JONES, and HENNESSEY-SEVERSON were and are individuals with disabilities who required

21 reasonable modifications to participate on a full and equal basis on the LSAT and who are

22 entitled to protection against prohibited disability discrimination.

23

55. By imposing upon Plaintiff-Intervenors QUAN, JONES, and HENNESSEY-

24 SEVERSON onerous and unnecessary documentation requirements to support requests for

25 testing accommodations, and by subjecting them to arbitrary, ineffective, and unpredictable

26 evaluation and appeals procedures, Defendant LSAC violated Title III of the ADA. By refusing

27 to make reasonable modifications to testing conditions for Plaintiff-Intervenors QUAN, JONES,

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1 and HENNESSEY-SEVERSON, Defendant LSAC violated Title III of the ADA. After

2 ultimately granting testing accommodations to Plaintiff-Intervenor HENNESSEY-SEVERSON,

3 but refusing to provide her with an LSAT score in the same format as her nondisabled peers,

4 Defendant LSAC violated Title III of the ADA.

5

56. As a result of Defendant LSAC’s unlawful actions and inactions, Plaintiff-Intervenors

6 QUAN, JONES, and HENNESSEY-SEVERSON were forced to obtain and submit burdensome

7 and unnecessary documentation in support of their requests for testing accommodations. When

8 their requested accommodations were nevertheless denied, Plaintiff-Intervenors QUAN, JONES,

9 and HENNESSEY-SEVERSON were subjected to the stress and aggravation of the LSAC’s

10 capricious appeals process. Denied accommodations even after appealing, Plaintiff-Intervenors

11 QUAN, JONES, and HENNESSEY-SEVERSON were then forced to seek legal counsel.

12 Nevertheless denied accommodations, Plaintiff-Intervenors QUAN and JONES were forced to

13 take the LSAT without the modifications that would have enabled them to earn a score that

14 effectively measured their aptitudes and abilities. After nearly 12 months of being denied

15 accommodations, and then granted some of the testing accommodations she requested, Plaintiff-

16 Intervenor HENNESSEY-SEVERSON was subjected to the Defendant LSAC’s policy and

17 practice of “flagging” accommodated test scores.

18

57. Without an effectively accommodated LSAT score, Plaintiff-Intervenors QUAN and

19 JONES were denied the opportunity to compete for admission to law schools on an equal basis

20 with their nondisabled peers. With an accommodated but “flagged” LSAT score, Plaintiff-

21 Intervenor HENNESSEY-SEVERSON was denied a test score in an equivalent format as her

22 nondisabled peers.

23

58. As a result of the Defendant LSAC’s unlawful testing accommodation policies,

24 procedures, and practices, Plaintiff-Intervenors QUAN, JONES, and HENNESSEY-SEVERSON

25 experienced emotional distress, extensive inconveniences, and financial burdens. The exclusion

26 of disabled test-takers including Plaintiff-Intervenors from equal access to the LSAT is

27 associated with additional outcomes, such as the denial of the experience, scholarship money,

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1 and career opportunities that are available via admission to and graduation from higher-ranking

2 law schools.

3

59. In taking the above-described actions and inactions, Defendant LSAC failed to make

4 any good faith effort or attempt to comply with the ADA.

5

60. As a direct and proximate result of the unlawful acts described herein, Plaintiff-

6 Intervenors QUAN, JONES, and HENNESSEY-SEVERSON have suffered and continue to

7 suffer injuries.

8

61. Plaintiff-Intervenors QUAN, JONES, and HENNESSEY-SEVERSON are entitled to

9 equitable relief, including declaratory and injunctive relief, attorneys’ fees and costs, and such

10 other relief as the court considers to be appropriate.

11

SECOND CLAIM FOR RELIEF

12

Failure to Provide an Accessible Examination in Violation of Title III of the Americans with Disabilities Act

13

42 U.S.C. § 12189

14

62. Plaintiff-Intervenors incorporate by reference the allegations in paragraphs 1 through

15 61, as though fully set forth herein.

16

63. Title III of the ADA specifies that “[a]ny person that offers examinations or courses

17 related to applications, licensing, certification, or credentialing for secondary or post-secondary

18 education, professional, or trade purposes shall offer such examinations or courses in a place and

19 manner accessible to persons with disabilities or offer alternative accessible arrangements for

20 such individuals.” 42 U.S.C. § 12189.

21

64. To ensure that “the key gateways to education and employment are open to individuals

22 with disabilities,” 28 C.F.R. § 36 app. B, examinations, like the LSAT, must be administered to

23 an individual with a disability so that “the examination results accurately reflect the individual’s

24 aptitude or achievement level or whatever other factor the examination purports to measure,

25 rather than reflecting the individual’s impaired sensory, manual, or speaking skills[.]” Id. at §

26 36.309(b)(1)(i). Meeting this standard may require the test administrator to make modifications

27 to the examination for an individual with a disability, including “changes in the length of time

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1 permitted for completion of the examination and adaptation of the manner in which the

2 examination is given.” Id. at § 36.309(b)(2).

3

65. Testing entities such as Defendant LSAC are required to assure that any requests for

4 documentation are “reasonable and limited to the need for the modification, accommodation, or

5 auxiliary aid or service requested.” Id. at § 36.309(b)(1)(iv).

6

66. When considering requests for accommodations, a testing entity such as defendant

7 LSAC must give “considerable weight” to documentation of an individual’s past

8 accommodations on testing given under similar conditions. Id. at § 36.309(b)(1)(v).

9

67. When considering requests for accommodations, a testing entity such as defendant

10 LSAC must “respon[d] in a timely manner to requests for modifications, accommodations or aids

11 to ensure equal opportunity for individuals with disabilities.” Id. at § 36.309(b)(1)(vi).

12

68. At all times relevant herein, and through to the present, Plaintiff-Intervenors QUAN,

13 JONES, and HENNESSEY-SEVERSON were and are individuals with disabilities who required

14 reasonable modifications to participate in a fair, full, and equal basis on the LSAT.

15

69. By imposing upon Plaintiff-Intervenors QUAN, JONES, and HENNESSEY-

16 SEVERSON onerous and unnecessary documentation requirements to support requests for

17 testing accommodations, and by subjecting them to arbitrary, ineffective, and unpredictable

18 evaluation and appeals procedures, Defendant LSAC has violated Title III of the ADA. By

19 refusing to make reasonable modifications to testing conditions for Plaintiff-Intervenors QUAN,

20 JONES, and HENNESSEY-SEVERSON, Defendant LSAC has violated Title III of the ADA.

21 After ultimately granting some of the testing accommodations requested to Plaintiff-Intervenor

22 HENNESSEY-SEVERSON, but refusing to provide her with an LSAT score in the same format

23 as her nondisabled peers, Defendant LSAC violated Title III of the ADA.

24

70. In taking the above-described actions and inactions, Defendant LSAC failed to make

25 any good faith effort or attempt to comply with the ADA.

26

71. As a direct and proximate result of the unlawful acts described herein, Plaintiff-

27 Intervenors QUAN, JONES, and HENNESSEY-SEVERSON have suffered and continue to

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1 suffer injuries.

2

72. Plaintiff-Intervenors QUAN, JONES, and HENNESSEY-SEVERSON are entitled to

3 equitable relief, including injunctive and declaratory relief, attorneys’ fees and costs, and such

4 other relief as the court considers to be appropriate.

5

THIRD CLAIM FOR RELIEF

6

Disability-Based Discrimination in Violation of California’s Unruh Civil Rights Act

7

Cal. Civ. Code § 51, et seq.

8

73. Plaintiff-Intervenors incorporate by reference the allegations in paragraphs 1 through

9 72, as though fully set forth herein.

10

74. California’s Unruh Act provides that “all persons … no matter what their sex, race,

11 color, religion, ancestry, national origin, or disability are entitled to the full and equal

12 accommodations, advantages, facilities, privileges, or services in all business establishments of

13 every kind whatsoever … .” Cal. Civ. Code § 51(b). Further, “[a] violation of the right of any

14 individual under the federal Americans with Disabilities Act of 1990 (P.L. 101-336) … also

15 constitute[s] a violation of [the Act].” Cal. Civ. Code § 51(f).

16

75. Under the Act, and as required by the ADA, a business establishment must make

17 reasonable modifications in policies, practices, or procedures, when such modifications are

18 necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to

19 individuals with disabilities, and may not engage in discrimination against a person with a

20 disability, as defined. See para. 49 to 53 and 63 to 67, supra.

21

76. Further, in 2012, the California Legislature adopted California Education Code, section

22 99161.5. The new law describes its provisions as coextensive with the protections of the Unruh

23 Civil Rights Act. See Cal. Educ. Code § 99161.5(e) (“This section shall not provide greater

24 protections to persons with disabilities than those provided by Section 51 of the Civil Code.”).

25

77. Subsection (a)(1) of section 99161.5(e) states: “The test sponsor of the Law School

26 Admission Test shall provide testing accommodations to a test subject with a disability who

27 makes a timely request to ensure that the Law School Admission Test accurately reflects the

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1 aptitude, achievement levels, or other factors that the test purports to measure and does not

2 reflect the test subject's disability. This paragraph does not constitute a change in, but is

3 declaratory of, existing law.”

4

78. Subsection (c) of section 99161.5 states: “(c)(1) The test sponsor of the Law School

5 Admission Test shall not notify a test score recipient that the score of any test subject was

6 obtained by a subject who received an accommodation pursuant to this section. (2) The test

7 sponsor of the Law School Admission Test shall not withhold any information that would lead a

8 test score recipient to deduce that a score was earned by a subject who received an

9 accommodation pursuant to this section. (3) This subdivision does not constitute a change in,

10 but is declaratory of, existing law.”

11

79. California’s Education Code, section 99161.5, further states that, when determining

12 whether to grant an accommodation to the test subject, “the test sponsor of the Law School

13 Admission Test shall, consistent with existing law, give considerable weight to documentation of

14 past modifications, accommodations, or auxiliary aids or services received by the test subject in

15 similar testing situations[.]” Cal. Educ. Code § 99161.5(b).

16

80. California’s Education Code, section 99161.5, further states that the decision of whether

17 or not to approve a request for an accommodation on the LSAT shall be conveyed to the

18 requester within a reasonable amount of time. When an accommodation is denied, the test

19 sponsor shall state the reasons for the denial in writing, and shall provide a timely appeals

20 process. Cal. Educ. Code § 99161.5(a)(2), (3).

21

81. California’s Education Code, section 99161.5, further prohibits the practice of “flagging”

22 LSAT scores, by prohibiting the test sponsor from “notify[ing] a test score recipient that the

23 score of any test subject was obtained by a subject who received an accommodation pursuant to

24 this section,” or from “withhold[ing] any information that would lead a test score recipient to

25 deduce that a score was earned by a subject who received an accommodation[.]” Cal. Educ. Code

26 § 99161.5(c).

27

82. With respect to any acts or inactions of Defendant LSAC occurring prior to January 1,

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1 2013, Plaintiff-Intervenors QUAN, JONES, and HENNESSEY-SEVERSON cite to section

2 99161.5 of the California Education Code as an interpretive tool in construing the Unruh Civil

3 Rights Act as it then existed. Plaintiff-Intervenors do not seek retroactive application of section

4 99161.5 to conduct that occurred prior to its effective date.

5

83. At all times relevant herein, and through to the present, Plaintiff-Intervenors QUAN,

6 JONES, and HENNESSEY-SEVERSON were and are individuals with disabilities who required

7 reasonable modifications to participate in a fair, full, and equal basis on the LSAT.

8

84. In violation of their right to be free from disability-based discrimination under

9 California’s Unruh Civil Rights Act, Defendant LSAC imposed upon Plaintiff-Intervenors

10 QUAN, JONES, and HENNESSEY-SEVERSON onerous and unnecessary documentation

11 requirements to support requests for testing accommodations, and subjected them to an arbitrary,

12 ineffective, and unpredictable evaluation and appeals procedure. In violation of their right to be

13 free from disability-based discrimination under California’s Unruh Civil Rights Act, Defendant

14 LSAC refused to provide Plaintiff-Intervenors QUAN, JONES and HENNESSEY-SEVERSON

15 with the reasonable modifications they needed to take the LSAT on an equal basis with other

16 nondisabled test takers. In violation of her right to be free from disability-based discrimination

17 under California’s Unruh Civil Rights Act, Defendant LSAC refused to provide Plaintiff-

18 Intervenor HENNESSEY-SEVERSON – who was ultimately granted some of the testing

19 accommodations she requested after months of delay – with a test score in an equivalent format

20 as her nondisabled peers.

21

85. Plaintiff-Intervenor HENNESSEY-SEVERSON intends to take the LSAT again, and to

22 again seek reasonable accommodations. Plaintiff-Intervenor HENNESSEY-SEVERSON intends

23 to apply to law schools, including law schools in California.

24

86. In taking the above-described actions and inactions, Defendant LSAC failed to make any

25 good faith effort or attempt to comply with state and federal laws.

26

87. Defendant LSAC’s unlawful actions were intentional, willful, malicious and/or done

27 with reckless disregard to Plaintiff-Intervenors’ right to be free from discrimination based on

28

Plaintiff-Intervenors’ First Amended Complaint

Case No. CV 12-1830-EMC

22

Case3:12-cv-01830-EMC Document137 Filed05/08/13 Page23 of 25

1 their disabilities.

2

88. As a direct and proximate result of the unlawful acts described herein, Plaintiff-

3 Intervenors QUAN, JONES, and HENNESSEY-SEVERSON have suffered and continue to

4 suffer injuries, including emotional injuries.

5

89. Plaintiff-Intervenors QUAN, JONES, and HENNESSEY-SEVERSON are entitled to

6 actual damages, treble damages, attorneys’ fees and costs, declaratory and injunctive relief, and

7 other appropriate relief as determined by this court.

8

FOURTH CLAIM FOR RELIEF

9

Unlawful Business Practices in Violation of California’s Unfair Business Practices Act

10

Cal. Bus. & Prof. Code § 17200, et seq.

11

90. Plaintiff-Intervenors incorporate by reference as if fully set forth herein the allegations

12 contained in paragraphs 1 through 89, above.

13

91. California’s Unfair Business Practices Act prohibits “any unlawful, unfair or fraudulent

14 business act or practice.” Cal. Bus. & Prof. Code § 17200.

15

92. Defendant LSAC committed and is committing unlawful and unfair business practices,

16 including but not limited to: violations of Titles III of the ADA; violations of the Unruh Civil

17 Rights Act; and violations of section 99161.5 of the California Education Code.

18

93. With respect to any acts or inactions of Defendant LSAC occurring prior to January 1,

19 2013, Plaintiff-Intervenors QUAN, JONES, and HENNESSEY-SEVERSON cite to section

20 99161.5 of the California Education Code as an interpretive tool in construing the Unruh Civil

21 Rights Act as it then existed. Plaintiff-Intervenors do not seek retroactive application of section

22 99161.5 to conduct that occurred prior to its effective date.

23

94. As a result of these unfair business practices, Plaintiff-Intervenors QUAN, JONES and

24 HENNESSEY-SEVERSON have suffered injuries in fact, as described herein.

25

95. As a result of these unfair business practices, Plaintiff-Intervenors QUAN, JONES and

26 HENNESSEY-SEVERSON have also lost money or property, such losses incurred due to

27 postage, mileage, telephone, Xeroxing, and faxing associated with the unlawful documentation

28

Plaintiff-Intervenors’ First Amended Complaint

Case No. CV 12-1830-EMC

23

Case3:12-cv-01830-EMC Document137 Filed05/08/13 Page24 of 25

1 and appeals process, and additional application fees associated with the effects of receiving an

2 LSAT score that did not effectively measure their aptitude and abilities. Mr. QUAN expended

3 additional monies on two LSAT review courses and for assistance with his applications to ensure

4 that his personal statement explained the disparity between his academic record and his test

5 score. Ms. HENNESSEY-SEVERSON also expended additional monies on two LSAT review

6 courses, and was required to hire a lawyer. Plaintiff-Intervenors QUAN, JONES, and

7 HENNESSEY-SEVERSON have further been denied the benefit of the service which they

8 purchased from defendant LSAC, that is, a professional examination that lawfully and fairly

9 measured their abilities and aptitudes, and that provided a test score in a format equivalent to that

10 granted to nondisabled peers.

11

96. Plaintiff-Intervenors QUAN, JONES and HENNESSEY-SEVERSON are entitled to

12 restitution, injunctive relief, declaratory relief, attorneys’ fees and costs, and other appropriate

13 relief as determined by this court.

14

DECLARATORY AND EQUITABLE RELIEF

15

97. Plaintiff-Intervenors incorporate by reference the allegations in paragraphs 1 through

16 94, as though fully set forth herein.

17

98. Defendant LSAC’s unlawful policies, procedures, and practices, and their impacts upon

18 persons with disabilities, are longstanding. However, because these unlawful actions and

19 inactions affect persons taking an entrance examination for law school, and these persons

20 inevitably move on from taking the LSAT to either entering or not entering law school, the

21 claims of the Plaintiff-Intervenors are capable of repetition, yet evading review.

22

99. A present and actual controversy exists between Plaintiff-Intervenors QUAN, JONES,

23 and HENNESSEY-SEVERSON and Defendant concerning their rights and respective duties.

24 Plaintiff-Intervenors contend that Defendant violated their rights under the ADA and the Unruh

25 Civil Rights Act. Plaintiff-Intervenors are informed and believe, and thereon allege, that

26 defendant LSAC denies these allegations. Declaratory relief is therefore necessary and

27 appropriate.

28

Plaintiff-Intervenors’ First Amended Complaint

Case No. CV 12-1830-EMC

24

Case3:12-cv-01830-EMC Document137 Filed05/08/13 Page25 of 25

1

100. Plaintiff-Intervenors QUAN, JONES, and HENNESSEY-SEVERSON seek a judicial

2 declaration of the rights and duties of the respective parties.

3

101. Plaintiff-Intervenor HENNESSEY-SEVERSON seeks injunctive relief.

4

PRAYER FOR RELIEF

5 WHEREFORE, Plaintiff-Intervenors respectfully request that this court order:

6

1. Declaratory and injunctive relief;

7

2. Equitable relief;

8

3. Actual damages;

9

4. Treble damages;

5. Restitution; 10
6. Reasonable attorneys’ fees, reasonable expert witness fees, and other costs of the action, 11
pursuant to 42 U.S.C. § 12205, 29 U.S.C. § 2617(a)(3), Cal. Civil Code §§ 52(a), 54.3(a), 55, 12
Cal. Code Civ. Proc. §1021.5, and other laws; 13
7. Interest, including pre- and post-judgment interest and an upward adjustment for
14 inflation; and

15

8. Such other and further relief as this court may deem just and proper.

16

17

18

Respectfully submitted,

19

THE EMPLOYM

20

LEGAL AID SOCIETY ENT LAW CENTER

21 Date: May 7, 2013

By:

22

23

/s/ Claudia Center Attorneys for Plaintiffs

24

25

26

27

28

Plaintiff-Intervenors’ First Amended Complaint

Case No. CV 12-1830-EMC

25

 
 CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee11oof f7766

1 JON M. ICHINAGA (#137290) Chief Counsel
2 R. SYBIL VILLANUEVA (#205399) Associate Chief Counsel
3 Sybil. Villanueva@dfeh.ca.gov PHOEBE P. LIU (#210829)
4 Senior Staff Counsel Phoebe.liu@dfeh.ca.gov
5 MARl MAYEDA (#110947) Senior Staff Counsel
6 Mari.mayeda@dfeh.ca.gov DEPARTMENT OF FAIR EMPLOYMENT
7 AND HOUSING 2218 Kausen Drive, Suite 100
8 Elk Grove, CA 95758 Telephone: (213) 439-6799
9 Fax: (888) 382-5293

10 Attorneys for the DFEH [Filing fee exempt, Gov. Code, § 6103]
11

12

IN THE UNITED STATES DISTRICT COURT

13

FOR THE NORTHERN DISTRICT OF CALIFORNIA

14

15 THE DEPARTMENT OF FAIR EMPLOYMENT) Case No. CV 12-1830-EMC

AND HOUSING, an agency of the State of

)

16 California,

)

) SECOND AMENDED GROUP AND

17

Plaintiff:) CLASS ACTION COMPLAINT FOR

) DAMAGES AND INJUNCTIVE RELIEF

18

vs.

)

19

) LAW SCHOOL ADMISSION COUNCIL, INC.,) [FEHA, Gov. Code, § 12900 et seq. and

20 a Delaware tax exempt corporation,

) Unruh Civil Rights Act, Civ. Code, § 51 et ) seq.]

21

Defendant. )

~~~--------------------- )

22

23

24

25

26

27
*COURT PAPER
State of California Std. 113 Rev. 3-95 FE&H Automated

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--

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Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whitney et al.)

Second Amended Group and Class Action Complaint [or Damages and Injunctive Relief

CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee22oof f7766

1

) Jury Trial Demanded

JOHN DOE, JANE DOE, PETER ROE,

)

2 RAYMOND BANKS, KEVIN COLLINS,

)

RODNEY DECOMO-SCHMITT, ELIZABETH )

3 HENNESSEY-SEVERSON, OTILIA lOAN, )

ALEX JOHNSON, NICHOLAS JONES,

)

4 CAROLINE LEE, ANDREW QUAN, STEPHEN)

SEMOS, GAZELLE TALESHPOUR, KEVIN )

5 VIELBAUM, AUSTIN WHITNEY, and all other)

similarly situated individuals,

)

6

Real Parties in Interest.~

7

)

8

)

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27
*COURT PAPER
Stall! of California Sid. 113 Rev. 3·95 FE&H Automated

-2-
Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whitney et al.) Second Amended Group and Class Action Complaint for Damages and Injunctive Relief

CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee33oof f7766

1

Plaintiff DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING (Department or

2 DFEH) alleges the following against defendant LAW SCHOOL ADMISSION COUNCIL, INC.

3 (LSAC), a Delaware tax exempt Corporation:

4

PARTIES

5

I. DFEH is the state agency charged with enforcing the right of all Californians under

6 the Unruh Civil Rights Act (Unruh Act) (Civ. Code, § 51 et seq.) "to the full and equal

7 accommodations, advantages, facilities, privileges, or services in all business establishments of every

8 kind whatsoever." (Civ. Code, § 51, subd. (a).) Government Code section 12948 makes a violation

9 of the Unruh Act a violation of the Fair Housing and Employment Act (FEHA) (Gov. Code, § 12900

10 et seq.). The FEHA empowers the DFEH to investigate and prosecute Unruh Act claims within the

11 state, including those that adversely affect, in a similar manner, a group or class. (Gov. Code, §§

12 12961, 12965.)

13

2. Each real party in interest, Jolm Doe, Jane Doe, Peter Roe, Raymond Banks, Kevin

14 Collins, Rodney Decomo-Schmitt, Elizabeth Hennessey-Severson, Otilia loan, Alex Johnson,

15 Nicholas Jones, Caroline Lee, Andrew Quan, Stephen Semos, Gazelle Taleshpour, Kevin Vielbaum,

16 and Austin Whitney, applied to LSAC for reasonable accommodations on the Law School

17 Admissions Test (LSAT) between January 19,2009 and the present. Each real party was denied a

18 reasonable accommodation, either in whole or in part, within this same time frame. At the time of

19 applying for reasonable accommodations, each real party resided in California.

20

3. Real parties in interest John Doe, Jane Doc, and Peter Roe wish to participate in this

21 litigation anonymously. Each real party seeks to retain their privacy interest in the details of their

22 disability and need for accommodation. Each of these real parties has expressed a legitimate fear of

23 negative professional ramifications should their true names be associated with this litigation. A

24 motion requesting the court's permission to proceed under fictitious names for these two real parties

25 is filed concurrently with this complaint.

26 II

27 II
*COURT PAPER
State of California Std.113 Rev. 3_115 FE&H Automated

-3-
. . .- . . --~--.~~~~~
Dept. Fair Empl. & Haus. v. Law School Admission Council. Inc. (Whitney et al.) Second Amended Group and Class Action Complaint for Damages and Iniunctive Relief

CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee44oof f7766

1

4. At all times relevant to this complaint, LSAC was a business establishment as defined

2 by Civil Code section 51, subdivision (b). LSAC offers and administers its LSAT at multiple

3 locations in the State of California several times a year.

4

GROUP ACTION ALLEGATIONS

5

5. The DFEH brings this case on behalf of a group of 16 named individuals.

6

CLASS ACTION ALLEGATIONS

7

6. Class Definition: The DFEH also brings this case as a class action, on behalf of: all

8 disabled individuals in the State ofCalifbrnia who requested a reasonable accommodation for the

9 Law School Admission Test (LSAT) from January 19, 2009 to the present. The DFEH alleges that

10 everyone within this class was subjected to LSAC's unlawful policies of discouraging requests for

11 accommodation, requiring excessive documentation, and requesting unlawful information about

12 mitigation measures. Within this class is a subclass of people who took the LSAT with the condition

13 of extended time and were thereafter subjected to discriminatory treatment and retaliation because of

14 this accommodation. These two classes are defined as follows:

15

a. Unlawful Discouragement and Consideration of Mitigation Measures: All

16 disabled individuals in the State of California who requested a reasonable accommodation for the

17 LSAT from January 19,2009 to the present.

18

b. Differential Treatment and Retaliation Against Examinees Granted Extended

19 Time: All disabled individuals in the State of California who took the LSAT with the accommodation

20 of extra time from January 19,2009 to the present.

21

7. Class Representative: The Director of the DFEH, with the assistance of the 16 named

22 real parties in interest, will fairly and adequately represent the class. Government Code section 12961

23 authorizes the Director to pursue this litigation as a class representative. Section 12961 authorizes the

24 DFEH to seek class relief without being certified as the class representative. Nonetheless, this lawsuit

25 meets the criteria for class certification.

26

8. Manageability: Class treatment of this dispute would save time and money by

27
*COURT PAPER
Slate of California 51d.113 Rev, 3-95 FE&H Automated

bringing all like claims before this court. For LSAC policies that affect a large group of applicants in

-4-

~--

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Dept. Fair Empl. & Hous. v. Law School Admission Council, Tnc. (Whitney et a1.)

Second Amended Group and Class Action Complaint for Damages and Iniunctive Relief

CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee55oof f7766

1 a similar fashion, such as subjecting applicants to unlawful inquiries and flagging certain scores,

2 treatment as a class is a superior method of adjudication, as compared to multiple individual suits

3 where each plaintiff would allege an identical harm. Class treatment would neatly aggregate these

4 claims, preventing duplicative litigation and potential inconsistencies in the ultimate findings.

5

9. Numerosity: The class is estimated to include hundreds ofLSAT applicants. It would

6 be impracticable to join each of these applicants who requested reasonable accommodation during th

7 three-year time frame and to bring them individually before the court for adjudication. The members

8 of this class are fully ascertainable and there exists a probability that the individual members will

9 ultimately be available to come forward to prove their separate damage-related claims to a portion of

10 the total class recovery, if any.

11

10. Commonality: There exists for the class a well-defined community of interest such

12 that common questions of both law and fact predominate over individual interests or claims.

13

11. Typicality: The class claims raised by the real parties in interest are typical of those

14 held by other members of the class. Each applicant for reasonable accommodation was subject to an

15 unlawful inquiry about mitigation measures, and each test-taker, who was granted extra time, had his

16 or her test score segregated and flagged.

17

12. Adequacy of Representation: With the assistance of the real parties in interest, the

18 DEFH will fairly and adequately represent the interests of all members of the class in the adjudicatio

19 of their similar legal claims.

20

JURISDICTION AND VENUE

21

13. The DFEH realleges and incorporates by reference each and every allegation

22 contained in paragraphs I through 12, inclusive, as iffully set forth herein.

23

14. This action arises under the FBI-lA, specifically Government Code section 12948,

24 which incorporates the Unruh Act into the enforcement structure of the FEI-IA, giving the DFEH

25 jurisdiction over Unruh Act violations occurring within the state. By virtue of its incorporation into

26 the Unruh Act, a violation of the Americans with Disabilities Act of 1990 (ADA) (42 U.S.c. § 12101

27
*COURT PAPER
State of California Std, 113 Rev. 3_95 FE&H Automated

et seq.) also constitutes a violation of the Unruh Act. (Civ. Code, § 51, subd. (f).)

-5-

- - - - - - - ---.------ ~-------.----~

..

..

.. --~.

Dept. Fair Empl. & Hous. v. Law School Admission Council. Inc. (Whitney et al.)

Second Amended Group and Class Action Complaint for Damages and Iniunctive Relief

CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee66oof f7766

1

15. At all times relevant to this complaint, LSAC was a business establishment as defined

2 by Civil Code section 51, subdivision (b). LSAC offers and administers its LSAT at multiple

3 locations in the State of California several times a year.

4

16. At all times relevant to this complaint, real parties in interest John Doe, Jane Doe,

5 Peter Roe, RaymOJ)d Banks, Kevin Collins, Rodney Decomo-Schmitt, Elizabeth Hennessey-

6 Severson, Otilia loan, Alex Johnson, Nicholas Jones, Caroline Lee, Andrew Quan, Stephen Semos,

7 Gazelle Taleshpour, Kevin Vielbaum, Austin Whitney, and all other similarly situated individuals,

8 were "persons" within the meaning of Government Code section 12925, subdivision (d), and Civil

9 Code section 51, subdivision (b).

10

17. On May 9, 2010, Jane Doe filed a verified complaint of discrimination in writing with

11 the Department pursuant to Government Code section 12960, alleging that LSAC unlawfully denied

12 her full and equal access to the LSAT within the preceding one year, in violation of the FEHA and

13 Unruh Act. A redacted copy of this complaint is attached hereto as Exhibit 1.

14

18. On January 12, 2010, Nicholas Jones filed a verified complaint of discrimination in

15 writing with the Department pursuant to Government Code section 12960, alleging that LSAC

16 unlawfully denied him full and equal access to the LSAT within the preceding one year, in violation

17 of the FEHA and Unruh Act. A true and correct copy of this complaint is attached hereto as Exhibit

18 2.

19

19. After receiving the complaints of Jane Doe and Mr. Jones, and beginning an

20 investigation into their allegations, the Department came to believe that LSAC's policies and

21 practices toward disabled applicants requesting reasonable accommodation were affecting a larger

22 group or class of applicants in a similar manner.

23

20. On July 22, 2010, the Department issued a document entitled "Notice of Class Action

24 Complaint and Director's Complaint" describing the affected group or class as "all disabled

25 individuals in the State of California who have or will request a reasonable accommodation for the

26 Law School Admission Test (LSAT), administered by the LSAC, and who have or will be unlawfnlly

27
*COURT PAPER
St~te of Califomia Std. 113 Rev. 3-95 FE&H Automated

-6-

-~

- ----

Dept. Fair Empl. & Hous. v. Law School Admission Council. Jne. (Whitney et al.)

Second Amended Group and Class Action Complain! for Damages and Iniunctive Relief

CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee77oof f7766

1 denied such request from January 19, 2009 to the conclusion of the Department's investigation of this

2 complaint" A redacted copy of this complaint is attached hereto as Exhibit 3,

3

21. During its investigation of the class action and Director's complaint, the DFEH

4 propounded administrative discovery to determine whether other people had been harmed by LSAC's

5 discriminatory practices within the state, The DFEH's efforts to obtain this information from

6 defendant included the filing of a superior court petition to compel LSAC to respond to its discovery

7 requests, Although Government Code section 12960, subdivision (d), provides that the DFEH has

8 one year from the date of the filing of its complaint until the filing of its accusation, this time is

9 extended by the pendency of a court action to enforce administrative discovery, (Gov, Code, §

10 12963,5, subd, (f),) Therefore, this action is timely filed,

11

22, With the court's assistance, the DFEH was able to discover and notify other persons

12 who were harmed by defendant's discriminatory practices, Some of these people elected to file

13 individual complaints as follows,

14

23, On August 29,2011, Alex Johnson filed a verified complaint of discrimination in

15 writing with the Department pursuant to Government Code section 12960, alleging that LSAC

16 unlawfully denied him full and equal access to the LSAT within the preceding one year, in violation

17 of the FEHA and Unruh Act A true and correct copy of this complaint is attached hereto as Exhibit

18 4,

19

24, On August 31, 2011, John Doe filed a verified complaint of discrimination in writing

20 with the Department pursuant to Government Code section 12960, alleging that LSAC unlawfully

21 denied him full and equal access to the LSAT within thc preceding one year, in violation of the

22 FEHA and Unruh Act A redacted copy of this complaint is attached hereto as Exhibit 5,

23

25, On September 26, 20 11, Elizabeth Hennessey-Severson filed a verified complaint of

24 discrimination in writing with the Department pursuant to Government Code section 12960, alleging

25 that LSAC unlawfully denied her full and equal access to the LSAT within the preceding one year, in

26 violation of the FEHA and Unruh Act A true and correct copy of this complaint is attached hereto as

27
*COURT PAPER
State of California Std. 113 Rev. 3-95 FE&H Automated

Exhibit 6,

-7-
----~~--~-~-------~~---~~___Oc__~~~
Dept_ Fair Empl- & How'_ v_ Law School Admission Council, Inc_ (Whitney et aLl Second Amended Group and Class Action Complaint for Damages and Injunctive Relief

CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee88oof f7766

1

26. On October 3, 2011, Caroline Lee filed a verified complaint of discrimination in

2 writing with the Department pursuant to Government Code section 12960, alleging that LSAC

3 unlawfully denied her full and equal access to the LSAT within the preceding one year, in violation

4 of the FEHA and Unruh Act. A true and correct copy of this complaint is attached hereto as Exhibit

5 7.

6

27. On October 6, 20 II, Raymond Banks filed a verified complaint of discrimination in

7 writing with the Department pursuant to Government Code section 12960, alleging that LSAC

8 unlawfully denied him full and equal access to the LSAT within the preceding one year, in violation

9 of the FEHA and Unruh Act. A true and correct copy of this complaint is attached hereto as Exhibit

10 8.

11

28. On October 7, 2011, Gazelle Taleshpour filed a verified complaint of discrimination i

12 writing with the Department pursuant to Government Code section 12960, alleging that LSAC

13 unlawfully denied her full and equal access to the LSAT within the preceding one year, in violation

14 of the FEHA and Unruh Act. A true and correct copy of this complaint is attached hereto as Exhibit

15 9.

16

29. On October 11, 2011, Peter Roe filed a verified complaint of discrimination in writing

17 with the Department pursuant to section Government Code section 12960, alleging that LSAC

18 unlawfully denied him full and equal access to the LSAT within the preceding one year, in violation

19 of the FEHA and Unruh Act. A redacted copy ofthis complaint is attached hereto as Exhibit 10.

20

30. On October 11, 20 11, Stephen Semos filed a verified complaint of discrimination in

21 writing with the Department pursuant to section Government Code sectionl2960, alleging that LSAC

22 unlawfully denied him full and equal access to the LSAT within the preceding one year, in violation

23 of the FEHA and Unruh Act. A true and correct copy of this complaint is attached hereto as Exhibit

24 11.

25

31. On October 14, 2011, Rodney DeComo-Schmitt tlled a verified complaint of

26 discrimination in writing with the Department pursuant to Government Code section 12960, alleging

27
*COURT PAPER
Statll of Camoro'a Std. 113 RIlV. 3,95 FE&H Automated

that LSAC unlawfully denied him full and equal access to the LSAT within the preceding one year,
-8-
.------.-------.-.---;c-;-~~--__;__:__----
Dept. Fair Empl. & Hous. v. Law School Admission Council. Inc. (Whitney et al.) Second Amended Group and Class Action Complaint for Damages and Iniunctive Relief

CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee99oof f7766

1 in violation of the FEHA and Unruh Act. A true and correct copy of this complaint is attached hereto

2 as Exhibit 12.

3

32. On October 17, 20 II, Andrew redacted filed a verified complaint of discrimination

4 in writing with the Department pursuant to Government Code section 12960, alleging that LSAC

5 unlawfully denied him full and equal access to the LSAT within the preceding one year, in violation

6 of the FEHA and Unruh Act. A true and correct copy of this complaint is attached hereto as Exhibit

7 13. Andrew redacted directly entered into a settlement agreement with LSAC. The DFEH is not a

8 party to the settlement agreement between Andrew redacted and LSAC.

9

33. On October 19, 20 II, Kevin Collins filed a verified complaint of discrimination in

10 writing with the Department pursuant to Government Code section 12960, alleging that LSAC

11 unlawfully denied him full and equal access to the LSAT within the preceding one year, in violation

12 of the FEHA and Unruh Act. A true and correct copy of this complaint is attached hereto as Exhibit

13 14.

14

34. On October 24, 2011, Otilia loan filed a verified complaint of discrimination in

15 writing with the Department pursuant to Government Code section 12960, alleging that LSAC

16 unlawfully denied him full and equal access to the LSAT within the preceding one year, in violation

17 of the FEHA and Unruh Act. A true and correct copy of'this complaint is attached hereto as Exhibit

18 15.

19

35. On October 28,2011, Andrew Quan tiled a verified complaint of discrimination in

20 writing with the Department pursuant to Government Code section 12960, alleging that LSAC

21 unlawfully denied him full and equal access to the LSAT within the preceding one year, in violation

22 of the FEHA and Unruh Act. A true and correct copy of this complaint is attached hereto as Exhibit

23 16.

24

36. On October 28, 20 II, Austin Whitney tiled a verified complaint of discrimination in

25 writing with the Department pursuant to Government Code section 12960, alleging that LSAC

26 unlawfully denied him full and equal access to the LSAT within the preceding one year, in violation

27
*COURT PAPER
State of California Std.113 Rev. 3-95 FE&H Automated

-9-
Dept. Fair Empl. & Hous. v. Law School Admission Council. Inc. (Whitl1ey et al.) Second Amended Group and Class Action Complaint for Damages and Iniunctive Relief

CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee1100oof f7766

1 of the FEHA and Unruh Act. A true and correct copy of this complaint is attached hereto as Exhibit

2 17.

3

37. On November 7, 2011, Kevin Vielbaum filed a verified complaint of discrimination in

4 writing with the Department pursuant to Government Code section 12960, alleging that LSAC

5 unlawfully denied him full and equal access to the LSAT within the preceding one year, in violation

6 of the FEHA and Unruh Act. A true and correct copy of this complaint is attached hereto as Exhibit

7 18.

8

38. On February 6, 2012, the DFEH issued a Group and Class Accusation before the

9 California Fair Employment and Housing Commission (Commission), charging LSAC with

10 violations of the Unruh Act. The Group and Class Accusation was properly served on LSAC by

11 certified mail.

12

39. On February 17, 2012, the DFEH issued a First Amended Group and Class Accusation

13 before the Commission. This accusation was properly served on the LSAC by certified mail.

14

40. Pursuant to Government Code section 12965, subdivision (c)(l), LSAC elected to

15 have this dispute heard in civil court in lieu of a hearing before the Commission, and so notified the

16 Department in writing, on or about February 22,2012. A true and correct copy of "Respondent's

17 Notice of Transfer of Proceedings to Court" is attached hereto as Exhibit 19.

18

41. The Department has withdrawn its accusation and has timely tiled this complaint

19 pursuant to Government Code section 12965, subdivision (c)(2).

20

42. The harm that is the subject of this complaint occurred throughout the State of

21 California. Three of the real parties in interest lived in the County of Alameda at the time that they

22 were denied full and equal accommodations in the testing process.

23

43. The amount of damages sought by this complaint exceeds the minimum jurisdictional

24 limits of this court.

25

FACTUAL ALLEGATIONS

26

The Law School Admissions Test (LSAT)

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44. The LSAT is a half-day, standardized test administered four times each year at

2 designated testing centers throughout the State of California. It purports to provide a standard

3 measure of acquired reading and verbal reasoning skills that law schools use to assess applicants.

4

45. The test consists of five 35-minute sections of multiple-choice questions. A 35-minute

5 writing sample is administered at the end of the test. Defendant does not score the writing sample, but

6 sends it on to the law schools with the scores.

7

46. The LSAT is designed to measure reading and comprehension skills, the ability to

8 organize and manage information, and analytical skills such as evaluation and criticism.

9

47. The three multiple-choice question types in the LSAT are labeled reading

10 comprehension, analytical reasoning, and logical reasoning. All candidates take one additional

11 multiple-choice section, which is experimental.

12

LSAC Business within the State

13

48. LSAC offers and administers its LSAT at multiple locations in the State of California

14 four times a year, typically at law schools and universities. Applicants pay a test registration fee of

15 $139 after creating an online account and filling out the online application form. Additional fees

16 charged by LSAC include $68 for latc registration, $35 to change the tcst date, and so on.

17

49. LSAC pays local proctors to administer the exam on site. LSAC also pays for

18 accommodations at the site, such as readers or scribes.

19

50. LSAC offers a Credential Assembly Service to law schools and law school applicants,

20 which streamlines the law school admission process by allowing transcripts, recommendations and

21 evaluations to be sent one time to LSAC. LSAC, in turn, summarizes and combines a law school

22 applicant's LSAT score, writing samples, transcripts, recommendations, and evaluations into a report

23 to an applicant's prospective law schools. The Credential Assembly Service also includes access

24 through an applicant's LSAC account to electronic applications for all ABA-approved law schools.

25 Applicants are charged $124 to register for the Credential Assembly Service and $16 for law school

26 reports.

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51. LSAC provides a series of LSAT preparatory guides, mauuals and compilations of

2 sample LSATs for purchase via its Web site, which materials range in price from $8 to $39.96. LSAC

3 also sells a guide to ABA-approved law schools for $26 and a skill readiness inventory for $29.95.

4

The LSAC Accommodation Request Process

5

52. LSAC requires candidates requesting a reasonable accommodation to utilize its

6 standard forms and procedures. Applicants making an accommodation request for a so-called

7 cognitive or psychological impairment are required to provide psychoeducationall

8 neuropsychological testing and a full diagnostic report, including comprehensive aptitude and

9 achievement testing.

10

53. LSAC requires each applicant to disclose whether he or she took prescribed

11 medication during the evaluation process and to provide an explanation for auy failure or refusal to

12 take the medication.

13

54. LSAC has a policy whereby examinees who complete the LSAT under a disability-

14 related accommodation involving additional test timc receive a notation on their score report

15 indicating that their exam scores were earned under non-standard time conditions. When reporting

16 these LSAT scores to the law schools, defendant advises the schools that these examinees' scores

17 "should be interpreted with great sensitivity and flexibility."

18

55. In addition, scores from tests taken under extended time conditions are not averaged

19 with other scores to produce a percentile ranking as are other test scores. Instead, extcnded time

20 scores are reported individually.

21

John Doc

22

56. John Doe, a resident of Rancho Santa Fe (San Diego County), requested that

23 defendant make accommodations for the December 20 10 LSAT at Saddleback College.

24

57. Mr. Doe was diagnosed with attention deficit disorder (ADD) at age 13. In addition, in

25 2010 he became extremely ill with a bacterial infection and was hospitalized for approximately two

26 months, spending several weeks in the Intensive Care Unit in a medically-induced coma. During this

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58. Mr. Doe requested time and a half (150 percent) on the multiple choice and writing

2 sections for the December 2010 LSAT.

3

59. In support of his request, Mr. Doe submitted medical documentation verifying his

4 hospitalization, and a complete psychoeducational assessment, which reported multiple diagnoses:

5 ADD, a learning disability (spelling), and a "[r]ecent bacterial infection with sustained induced coma

6 and residual impairments."

7

60. LSAC refused to grant Mr. Doe's requested accommodation and instead asked for "a

8 detailed explanation regarding the nature, severity, treatment, and extent of [his] disorder at the

9 present time and it [sic] impact on your ability to take the LSAT."

10

61. Mr. Doe then submitted additional medical documentation indicating that he had

11 "suffered a serious illness and developed marked weaknesses and encephalopathy. He continues to

12 have fatigability and impaired concentration." His doctor recommended that Mr. Doe be granted

13 increased time to complete the LSAT.

14

62. LSAC then demanded that Mr. Doe's psychologist provide "a current update of [his]

15 cognitive status" before making a decision on his accommodation request.

16

63. Mr. Doe and his doctor disputed the need for an updated psychoeducational

17 assessment just three months after the first report was completed. His doctor responded, "I would

18 reiterate that Mr. Doe's intelligence is much as it was when he was originally seen (10/2611 0) and

19 with IQ scores as noted in that report, all within the average range with the exception of Processing

20 Speed (4th percentile)."

21

64. LSAC granted Mr. Doe nine additional minutes for the multiple choice and writing

22 sample sections (125 percent), with an additional 15 minutes of break time between sections three

23 and four, for the February and June 2011 LSAT.

24

Jane Doe

25

65. Jane Doe, a resident of Oakland (Alameda County), requested that defendant provide

26 her with reasonable accommodations on each oftwo administrations ofthe LSAT examination, one

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66. Ms. Doe has attention deficit disorder (ADD). Her condition makes it difficult to

2 retain attention and focus, and significantly impairs her ability to conceptually organize and sequence

3 abstract ideas.

4

67. Ms. Doe requested that LSAC accommodate her with time and a half (150 percent) on

5 the multiple choice and writing sample sections of the LSAT.

6

68. In support of her request, Ms. Doe submitted medical documentation, verification that

7 she had received the accommodation of time and a half (150 percent) as an undergraduate university

8 student, and proof that she had received extended time (150 percent) on the Graduate Record Exam

9 (GRE).

10

69. On January 15,2010, LSAC denied Ms. Doc's accommodation requests, explaining

11 that her documentation did not demonstrate that she had a disability, which affected her ability to tak

12 the LSAT.

13

70. Ms. Doe reapplied for accommodations on the June 20 I 0 LSAT, requesting the same

14 accommodation of time and a half(150 percent) on the multiple choice atld writing sample sections.

15

71. LSAC also denied this request. When Ms. Doe asked for an explanation for the denial,

16 defendant replied in writing that it was "not obligated to provide accommodations that are not

17 warranted 01' supported by the documentation."

18

Peter Roc

19

72. Peter Roe, a resident of San .lose (Santa Clara County), requested that defendant make

20 accommodations for the September 2009 LSAT at California State University, East Bay.

21

73. Mr. Roe has reading and math disorders, characterized by impaired auditory attention

22 span ffild low visuomotor processing speed. These learning disorders substantially impact his ability

23 to process written material, particularly under timed conditions.

24

74. Mr. Roe requested 20 extra minutes for the multiple choice sections and 30 extra

25 minutes for the writing sample section of the LSAT. He also requested a reader and permission to use

26 a computer dictation program.

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1

75. In support of his request, Mr. Roe submitted a neuropsychological evaluation

2 documenting his learning disabilities.

3

76. LSAC denied Mr. Roe any accommodation, noting that he had neglected to submit a

4 "timed reading comprehension measure" in conformance with LSAC's guidelines, he had no history

5 of educational accommodation, and his test results demonstrated an "average range of functioning."

6

77. Mr. Roe requested reconsideration of LSAC' s denial, submitting the results of an

7 additional reading comprehension test that documented Mr. Roe's reading problems and

8 recommended that he receive an accommodation of time and a half (150 percent).

9

78. After reconsideration, LSAC stood by its previous decision to deny accommodation.

10

Raymond Banks

11

79. Raymond Banks, a resident of San Francisco (County of San Francisco), requested

12 that defendant make accommodations for the February 2011 LSAT at San Francisco State University.

13

80. Mr. Banks had a longstanding and severe injury to his shoulder muscle. As a result of

14 this injury, Banks suffered from nerve damage, carpal tunnel syndrome, and chronic pain, all of

15 which limited his ability to write.

16

81. Mr. Banks requested five additional minutes to complete each multiple-choice test

17 section of the LSAT, 10 additional minutes on the writing sample section, five-minute breaks

18 between each test section, a large table to write on, and permission to wear a splint on his wrist.

19

82. Real party Banks submitted medical documentation in support of his request, as well

20 as proof that he had received accommodation as a student at the University of California, Berkeley

21 for time and a half (150 percent) on all exams and quizzes.

22

83. LSAC denied all ofMr. Banks' requests, other than permitting him to wear a hand

23 splint "as a eourtesy." When Mr. Banks asked LSAC for an explanation of the denial, LSAC

24 responded in writing that "[t]he documentation provided did not support your request for the

25 additional accommodations you requested."

26

Kevin Collins

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1

84. Kevin Collins, a resident of Woodland Hills (Los Angeles County), requested that

2 defendant make accommodations for the February 2011 LSAT at California State University,

3 Northridge.

4

85. Mr. Collins suffers from two learning disorders: disorder of written expression and a

5 reading disorder. He has perceptual-organizational impairments, making it significantly more

6 difficult for him to process simple or routine visual material without making errors, as compared to

7 his peers.

8

86. Collins requested the accommodations of double time on multiple choice and writing

9 sample sections of the LSAT, pennission to use a computer and printer for the writing sample, and an

10 alternative, non-Scantron answer sheet.

11

87. In support of his request, Collins submitted proof that he had received time and a half

12 (150 percent) on the GRE and for exams at Claremont Graduate University. He also submitted a full

13 psychoeducational assessment report as requested by LSAC's guidelines.

14

88. Defendant's tirst response was to ask for additional information and inform Collins

15 that the deadline had passed for the February 2011 LSAT. Later, after Collins had submitted the

16 requested information and requested consideration for the June exam, defendant granted him the

17 accommodations of time and a half (150 percent) for the multiple choice and writing sample sections,

18 rather than the double time that he had requested. The rest of his requested accommodations was

19 granted.

20

89. Collins asked LSAC to reconsider its decision to deny him double time. LSAC stood

21 by its previous decision that time and a half was appropriate.

22

Rodney DeComo-Schmitt

23

90. Rodney DeComo-Schmitt, a resident of Marin County, requested that defendant make

24 accommodations for the October 2010 LSAT offered at Sonoma State University.

25

91. Mr. DeComo-Schmitt suffers from a reading disorder, causing a significant

26 discrepancy between his verbal abilities and his visual-spatial abilities, especially under timed

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92. Mr. DeComo-Schmitt requested time and a half (150 percent) on the multiple-choice

2 sections of the exam, extra rest and break time, and permission to use a computer for the writing

3 sample.

4

93. In support of his request, Mr. DeComo-Schmitt submitted a thorough

5 psychoeducational assessment and proof that he had received time and a half (150 percent) on his

6 SAT exam.

7

94. LSAC at first refused to consider Mr. DeComo-Schmitt's request for reconsideration,

8 asserting that it had been submitted past the deadline for the October 2010 exam. Later, LSAC denied

9 any accommodation to Mr. DeComo-Schmitt for the December 2010 exam, asserting that the

10 documentation he had submitted did not demonstrate a limitation of a major life activity which

11 affected his ability to take the LSAT.

12

95. Mr. DeComo-Schmitt requested reconsideration ofLSAC's decision, submitting a

13 letter from his psychologist contending that LSAC had misinterpreted the psychological testing.

14

ot:
JV.

LSAC stood by its denial of accommodation, informing tv'lr. DeCollo-Schmitt that he

15 was registered for the December 2010 LSAT as a standard test taker.

16

Elizabeth Hennessey-Severson

17

97. Elizabeth Hennessey-Severson, a resident of San Francisco (San Francisco County),

18 requested that defendant make accommodations for the June 2011 LSAT at University of California,

19 Hastings College of the Law.

20

98. Ms. Hennessey-Severson has reading, written expression and mathematics disorders,

21 and ADI-lD. These conditions impair her working memory and her ability to plan, organize, and

22 devote sustained attention to language-based tasks, particularly reading.

23

99. Ms. Hennessey-Severson requested that LSAC accommodate her on the LSAT with a

24 minimum of time and a half(l50 percent) extra testing time, and by allowing her short breaks of 10

25 to 15 minutes between sections of the exam.

26

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Inc. (Whitney et

Second Amended Group and Class Action Complaint for Damages and Iniunctive Relief

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100. In support of her request, Ms. Hennessey-Severson submitted psychoeducational

2 assessment reports from 2002 and 2009. She also submitted proof that she had been accommodated

3 with time and a half (150 percent) on the SAT, and while she was a student at Dartmouth College.

4

101. Defendant denied all of Ms. Hennessey-Severson's requests for accommodation,

5 contending that she scored in the "very superior" and "high average" range in her psychoeducational

6 testing, and that her 2002 evaluation noted that she demonstrated a remarkable ability to compensate

7 for her learning disabilities, such that she was able to take honors courses and play high school sports.

8

102. Ms. Hennessey-Severson and her psychologist requested that LSAC reconsider its

9 decision to deny accommodation. Her psychologist wrote: "It is my professional opinion based on all

10 available evidence including comprehensive history, diagnostic interview, well established history of

11 early diagnosis, remediation, and later accommodations throughout high school and college, that Ms.

12 Hennessey has a standard learning disability that has a substantial impact on a major life function,

13 namely, her ability to read, write, and calculate efficiently, and that extended time for formal testing

14 is a reasonable accommodation for her disability."

15

103. After reconsideration, LSAC stood by its prior decision to deny Ms. Hennessey-

16 Severson any accommodation.

17

Otilia loan

18

104. Otilia loan, a resident of San Jose (Santa Clara County), requested accommodation for

19 the December 2010 LSAT offered at Santa Clara University.

20

105. Ms. loan is quadriplegic. She is paralyzed in all four limbs and is unable to physically

21 write without using a brace.

22

106. Ms. loan requested that LSAC provide her with double time on all sections of the test,

23 an alternate answer sheet, the use of a scribe, and an additional break of 30 minutes between sections

24 3 and 4 of the test.

25

107. In support of her request, Ms. loan submitted verification that she had received the

26 accommodation of double time on tests while a student at De Anza College, and double time when

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108. LSAC asked Ms. loan to submit additional information from her doctor before it could

2 consider her request for accommodation. LSAC wrote: "Your evaluator needs to provide detailed

3 information regarding the nature, extent, severity, and treatmcnt of your disorder and its functional

4 limitation on your ability to take the LSAT," defendant wrote.

5

109. Ms. loan's doctor supplied the additional information that LSAC requested.

6

110. Ms. loan wrote to LSAC requesting reconsideration of its decision to deny her double

7 testing time. LSAC stood by its previous decision.

8

Alex Johnson

9

111. Alex Johnson, a resident of Lake San Marcos (San Diego County), requested

10 accommodations for the October 2010 LSAT offered at the University of Southern California.

11

112. Mr. Johnson is quadriplegic. I-Ie is unable to write or turn pages because his fingers ar

12 paralyzed. He is unable to draw diagrams, underline text, or use a standard Scantron answer sheet.

13

113. Mr. Johnson requested 15 minutes of extra break time between each section of the

14 LSAT, and 120 additional minutes (more than triple time) on the multiple choice and writing sample

15 sections.

16

114. In support of his request, Mr. Johnson submitted medical documentation of his

17 condition and need for accommodation, as well as verification from the University of Southern

18 California that he had received double time on his exams while a student there.

19

115. At first, LSAC refused to consider Mr. Johnson's accommodation request, because he

20 was not registered to take the LSAT. Later, it granted Mr. Johnson time and a half (150 percent) on

21 the multiple choice and writing sample sections, and 10 minutes of break time between each section.

22 It agreed to provide Mr. Johnson with a scribe, and permitted him to use a computer for the writing

23 sample.

24

116. Mr. Johnson requested that LSAC reconsider his request for double time. His doctor

25 wrote, "Double time is the least amount of time I should be allocated. It is also very hard to use a

26 scribe because of time limitations."

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117. LSAC responded that it did not offer an untimed test, and that the documentation

2 submitted did not support Johnson's request.

3

Nicholas Jones

4

118. Nicholas Jones, a resident of Palm Desert (Riverside County), requested that

5 defendant provide him with an accommodation for the December 2009 LSAT offered at the

6 University of Laverne (Ontario).

7

119. Mr. Jones suffers from two distinct eye conditions. First, he has amblyopia or "lazy

8 eye" in his left eye, whieh impairs his visual processing. Second, he has posterior vitreous

9 detachments in his right eye, meaning that he has persistent f10aters or spots, which obstruct his field

10 of vision. These conditions together impair Mr. Jones' reading speed and ability.

11

120. Mr. Jones requested time and a half (150 percent) on the multiple choice and writing

12 sample sections of the exam and five-minute breaks between each section.

13

121. In support of his request, Mr. Jones submitted medical forms filled out by his doctor,

14 an eye specialist.

15

122. LSAC refused to provide any accommodation to Mr. Jones, informing him that "[t]he

16 documentation provided did not ref1ect an impairment related to taking the Law School Admission

17 Test."

18

123. Mr. Jones requested that LSAC reconsider its decision denying him accommodations,

19 and asked it to provide further explanation. Mr. Jones' doctor wrote a letter supporting his request for

20 reconsideration, asserting that Jones' eye condition "substantially limits him in at least one major life

21 activity, reading."

22

124. After reconsideration, defendant stood by its prior decision to deny accommodation.

23

24

25

26

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Caroline Lee

2

125, Caroline Lee, a resident of Oakland (Alameda County), requested that defendant make

3 accommodations for the December 20 I0 LSAT offered in the City of Oakland,

4

126, Ms, Lee suffers from ADHD and a reading disorder, causing her reading to be labored

5 and excessively slow, and impairing her short-term memory.

6

127, Ms, Lee requested time and a half (150 percent) on the LSAT multiple choice and

7 writing sample, as well as extended breaks during the exam, a quiet testing environment, and the use

8 of a laptop to compose all written work.

9

128. In support of her request, Ms, Lee submitted proof that she had received extended

10 testing time of 150 percent while a student at City College of San Francisco (CCSF) and that she had

11 taken the SAT and ACT with accommodations, She also submitted a psychoeducational assessment

12 that had been performed while she was a student at CCSF.

13

129, LSAC replied in writing to Ms, Lee that she needed to submit additional

14 documentation in order for her request to be considered, asking for: "[t]esting results and a full

15 diagnostic report from a comprehensive up-to-date psychoeducational/ncuropsychological assessmen

16 that comply with the Law School Admissions Council, Inc. Guidelines for Documentation of

17 Cognitive Impairments."

18

130, Ms, Lee then obtained and submitted a full psychoeducational evaluation in February

19 20 II, which documented her ADHD and reading disorder. Her psychologist recommended that she

20 receive 150 percent extended time, as well as the other previously requested accommodations,

21

131, LSAC then requested that Ms. Lee submit several additional documents and reports,

22 Ms. Lee did so.

23

132, In April 2011, defendant denied all of Ms. Lee's requested accommodations,

24 informing her that: her performance on academic measures was commensurate with her ability,

25 negating a finding of impairment; her documentation failed to support the diagnosis of an attention

26 disorder; ,md her request for additional time on the writing sample was not considered because her

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133, Ms. Lee requested that LSAC reconsider its denial of accommodation. This request

2 was accompanied by a letter from her psychologist, who contended that LSAC had misinterpreted the

3 psychoeducational assessment.

4

134. After reconsideration, LSAC stood by its initial decision to deny accommodations.

5

Andrew Qllan

6

135, Andrew Quan, a resident of Hayward (Alameda County), requested accommodation

7 for the October 2011 LSAT offered at the University of California, Santa Cruz,

8

136, Mr. Quan has ADHD, a visual-motor integration deficit with slow processing speed,

9 hypotonia, and dysgraphia,

10

137, Mr. Quan requested that LSAC provide him with the accommodations of double time

11 on the multiple choice and writing sample portions of the exam, lO-minute breaks between each

12 section of the test, and the use of a computer for the writing sample.

13

138. In support of his request, Mr. Quan submitted to LSAC proof that he had been

14 accommodated with the use of a computer on his ACT exams. He also submitted a 2008

15 psychoeducational assessment from high school, showing that Mr. Quan suffered from "significant

16 deficits in visual-motor integration and fine motor skills," Included within that assessment was a

17 2008 IEP documenting dysgraphia, attention deficit, visual processing, and sensory motor skills

18 disorders which qualified him for special educational services, the use of a laptop computer, a scribe,

19 and extra examination time,

20

139. LSAC requested that Mr. Quan provide further documentation to support his request,

21 including "testing results and a full diagnostic report from a comprehensive up-to-date

22 psychoeducational/neuropsychological assessment that comply with [LSAC Guidelines]."

23

140, Mr. Quan contested LSAC's need for additional documentation, asserting that it was

24 unnecessary, unaffordable, and burdensome,

25

141. LSAC responded that if Mr. Quan wanted any accommodation in the future, he would

26 need to submit "substantive documentation to support your request for your hypotonia/dysgraphia

27
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State of California Std. 113 Rev. 3-95 FE&H Automated

disorders, "

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1

Stephen Scmos

2

142. Stephen Semos, a resident of Rancho Palos Verdes (Los Angeles County), requested

3 that defendant make accommodations for the December 20 I 0 LSAT at Whittier Law School (Costa

4 Mesa).

5

143. Mr. Semos has ADHD and dsygraphia, which significantly impair his reading, writing,

6 organization, and general academic performance.

7

144. Mr. Semos requested time and a half (150 percent) on both the multiple-choice and

8 writing sample portions of the exam, additional break time of five to eight minutes.

9

145. In support of his request, Mr. Semos submitted proof that he had received:

10 accommodations on the SAT; an IEP from the Palos Verdes Peninsula Unified School District

11 identifying Mr. Semos as learning disabled; a letter verifying that he had received accommodations

12 while a student at the University of California, Irvine, of time and a half (150 percent) on tests; and a

13 complete psyclioeclucational assessment by his doctor, a neuropsychologist.

14

146. LSAC's first response was to ask Mr. Semos to provide additional documentation in

15 order to consider his accommodation request, including a full report of two particular tests for

16 cognitive disabilities, the Nelson-Denny Reading Test (NDRT) and the Conner's Continuous

17 Performance Test-II. LSAC also informed Mr. Semos that thc deadline for the December 2010 LSAT

18 had passed, but that he could request accommodation for future exams.

19

147. Mr. Semos then submitted his documentation for the February 2011 LSAT.

20

148. In response, LSAC denied all ofMr. Semos' requests for accommodation on the basis

21 that his test scores were generally commensurate with his abilities and thus did not demonstrate a

22 learning disability.

23

149. Mr. Semos' neuropsychologist requested that LSAC reconsider its denial. Mr. Semos'

24 doctor wrote: "Your denial letter written to Mr. Semos selectively highlighted the above average

25 scores and thereby masked the patterns of deficits in processing speed and fine Illotor speed noted in

26 my neuropsychological report."

27
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Slate of CaHfomia Std. 113 Rev. J-gS FE&H Automated

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Dept. Fair Emp!. & Hoas. v. Law School Admission Council. Inc. (Whitney et al.)

Second Amended Group and Class Action Complaint for Damages and Injunctive Relief

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1

ISO. LSAC responded that the letter from Mr. Semos' neuropsychologist had arrived too

2 late to be considered for the February 20 II LSAT. LSAC wrote: "You remain registered to test as a

3 standard test taker. No accommodations have been granted."

4

Gazelle Taleshpour

5

151. Gazelle Talcshpour, a resident of San Diego (San Diego County), requested that

6 defendant make accommodations for the October 20 I0 LSAT offered at the University of San Diego.

7

152. Ms. Taleshpour has ADHD. She also suffers !i'om osteopenia (bone loss) and chronic

8 pain in her neck and back as a result of treatment she had received for leukemia, a bone marrow

9 transplant, radiation, and chemotherapy.

10

153. Ms. Taleshpour requested that LSAC accommodate her with 30 extra minutes on the

11 multiple choice and writing sample portions of the exam, breaks of two to five minutes every half

12 hour so that she could stretch and alleviate pain, a high table, and a comfortable chair.

13

154. In support of her request, Ms. Taleshpour submitted documentation from her treating

14 medical doctor, her chiropractor, and her psychologist. She also provided LSAC with verification tha

15 she had received time and a half (150 percent) on all tests and exams while a student at the University

16 of San Diego.

17

155. LSAC requested that Ms. Taleshpour provide additional documentation in support of

18 her accommodation request, including "[tJesting results and a full diagnostic report from a

19 psychoeducational/neuropsychological assessment that comply with Guidelines for Documentation 0

20 Cognitive Impairments."

21

156. Ms. Taleshpour obtained and submitted the additional documentation that LSAC

22 requested. Her psychiatrist performed a full psychoeducational assessment, which diagnosed her with

23 ADHD, a reading disorder, and a learning disability (dyslexia). Her psychiatrist supported Ms.

24 Taleshpour's request for double time and other accommodations.

25

157. LSAC only partially granted Ms. Taleshpour's request for accommodation, allowing

26 her to sit or stand at a podium while taking the exam, and to bring a seat cushion or an adjustable

27
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State of California Std.113 Rev. 3-95 FE&H Automated

chair.

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Second Amended Group and Class Action Complaint for Damages and Injunctive Relief

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1

158. Ms. Taleshpour then resubmitted a request for accommodation for the December 2010

2 LSAT: double time on multiple choice and writing sample; an alternate, non-Scantron answer sheet;

3 use of a reader; an additional 15 minutes of rest time; and IS-minute breaks between sections.

4

159. LSAC denied the request for additional accommodations beyond the two it had

5 already granted, explaining to Ms. Taleshpour that her intelligence test scores were average and

6 commensurate with her ability, meaning that no cognitive disability was apparent.

7

160. Ms. Taleshpour requested that LSAC reconsider its denial of accommodation for extra

8 time. Her psychologist supported the reconsideration request, contending that LSAC failed to

9 recognize significant discrepancies in her reading speed and comprehension. "These significant

10 difficulties provide psychometric evidence of the presence of a Learning Disability as described by

11 the ADA," he wrote.

12

161. LSAC stood by its prior decision to limit the accommodations made for Ms.

13 Taleshpour: permission to sit or stand with a podium and to bring a seat cushion or an adjustable

14 chair.

IS

Kevin Vielbaum

16

162. Kevin Vielbaum, a resident of San Mateo (San Mateo County), requested that

17 defendant make accommodations for him in taking the June 2011 LSAT at the University of

18 California, Hastings College of the Law.

19

163. Mr. Vielbaum has a reading disorder (dyslexia), characterized by a significant

20 difficulties with perceptual reasoning, working memory, and cognitive processing speed.

21

164. Mr. Vielbaum requested that defendant accommodate him with time and a half (150

22 percent) on the multiple choice section of the LSAT, double time on the writing sample, and

23 permission to use a computer for the writing sample.

24

165. In support of his request, Mr. Vielbaum submitted extensive records from his primary

25 education at a special school for students with dyslexia, where he was granted accommodations of

26 extended time and the use of a laptop and calculator.

27
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State of California Std. 113 Rev. 3-95 FE&H Automated

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1

166. LSAC granted Mr. Vielbaum only the accommodation of using a computer, printer

2 and spell check for the writing sample. LSAC denied the accommodation of extra time, noting that

3 Mr. Vielbaum had not requested accommodation on the SAT, and that he had scored well on the tests

4 involved in his psychoeducational assessment. Defendant went on to explain that: "[yJour evaluator

5 notes you have difficulties with logical reasoning. Inasmuch as the Law School Admission Test is

6 designed to measure these skills, the accommodations requested (extended time on all examinations

7 that involve the solving oflogic problems), would not be appropriate."

8

Austin Whitney

9

167. Anstin Whitney, a resident of Contra Costa County, first reqnested accommodations

10 for the September 2009 LSAT offered at San Diego State University.

11

168. Mr. Whitney is paraplegic due to a spinal cord injury in 2007.

12

169. Mr. Whitney requested that defendant accommodate his disability with time and a half

13 (150 percent) on the multiple choice and writing sample sections of the LSAT, and a wheelchair

14 accessible testing location.

15

170. In support of his request, Mr. Whitney submitted medical records pertaining to his

16 2007 injury, verification from the University of California at Berkeley that he had received time and

17 half (150 percent) for all exams and quizzes during his undergraduate studies, and a form filled out

18 by his doctor indicating that, because of his injury and surgeries, he suffered from "severe chronic

] 9 pain and radiating radicular nerve pain" for which Whitney took prescription medication that caused

20 drowsiness.

21

171. LSAC responded that Mr. Whitney's request for accommodation had been submitted

22 too late for the September 2009 test, and therefore he was registered as a standard test taker.

23

172. Mr. Whitney next requested accommodations for the June 2010 LSAT offered in

24 Berkeley at the California Ballroom. This time he requested that LSAC accommodate him with five-

25 minute breaks between sections, in addition to providing time and a half (150 percent) on the multipl

26 choice and writing sample sections and a wheelchair accessible testing site.

27
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State of California Std, 113 Rev. l-9S FE&H Automated

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1

173. In support of this request, Mr. Whitney submitted medical forms from four different

2 doctors, each of whom supported his need for extra testing time. Dr. Larry Snyder explained:

3 "Patient has significant fatigue due to medications taken for previous spinal injury - this will affect

4 his performance in TIMED conditions." Dr. Carol Jessop wrote that, due to Mr. Whitney's spinal

5 cord injury with chronic, nueropathic pain, he needed extra time to compensate for the effects of the

6 pain medication which cause fatigue. Dr. Jessop explained: "This is a significant problem for Austin

7 Whitney as he is taking medications ... that cause him to be sleepy and fatigued. This drowsiness

8 makes him slower in his response to test questions. If an exam has a time limit, he will definitely

9 need extra time to complete it."

10

174. LSAC then granted Mr. Whitney the extra break time that he requested, and agreed to

11 provide a wheelchair accessible testing site, but denied his request for extra testing time. "If you

12 choose to have your cognitive disorder (alluded to by Carol Jessop, MD) considered," defendant

13 wrote, "you must provide a CUITent psychoeducational/neuropsychological assessment or

14 neuropsychological evaluation as per our Guidelines for Documentation of Cognitive Impainnents."

15

175. Mr. Whitney asked defendant to reconsider its decision to deny additional testing time,

16 and three of his doctors wrote to LSAC in support of his request.

17

a. Dr. Snyder wrote, "His pain and spacticity are a constant distraction and put

18 him at a significant disadvantage as a test taker. In addition, the medication he is taking causes

19 significant fatigue and makes it difficult to concentrate. The medication side effects do not impair

20 cognition but can slow processing speed. For these reasons, he should be afforded extra time when

21 taking this standardized test."

22

b. Dr. Jessop wrote, "I would like to emphasize that the nature ofMr. Whitney's

23 condition is physiological (pain issues) and NOT cognitive or due to a learning disorder. Our request

24 for extra time on the exam is based solely on physiological clIccts of chronic, severe neuropathic

25 pain, and the fatiguing side effects of pharmaceutical pain killers. Thus, because he doesn't have a

26 learning disability, I feel strongly that neuropsychological or psychoeducational testing would be

27
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State Qf California 5td.113 Row. 3_95 FE&H Automated

irrelevant in his case."
-27Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whitney et al.) Second Amended Group and Class Action Complain! for Damages and Injunctive Relief

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1

c. Dr. Hedelman wrote, "Patient's significant impacts on concentration, reading,

2 writing, ability to attend class is secondary to his unpredictable, severe ncuropathic pain and the

3 associated pain management medications. Patient does not have an underlying cognitive impairment

4 requiring neuropsych[ological] testing."

5

176. LSAC refused to reconsider its decision, responding: "Wc have no objective evidence

6 to support Dr. Carol Jessop, MD's conclusion that your thought processes are not as fast as they

7 could be without medication."

8

177. In 2011, at LSAC's behest, Mr. Whitney was evaluated by a psychologist, who

9 determined that he required double time on examinations due to the effect that his pain medication

10 was having on his cognitive abilities.

11

178. In response to a second accommodation request by Mr. Whitney with the

12 psychologist's report as supporting documentation, LSAC awarded him 10 additional minutes on

13 each section of the exam. LSAC provided no rationale for denying his request for double time.

14

FIRST CLASS CAUSE OF ACTIOl',j

15

Unlawful Consideration of Mitigation Measures

16

(42 U.S.c. § 12102(4)(E)(1)(i)(I»

17

179. The DFEH realleges and incorporates by reference each and every allegation

18 contained in paragraphs 1 through 184, inclusive, as if fully set forth herein.

19

180. The ADA, 42 U.S.C. § 12102(4)(E)(l)(i)(l), requires that "any determination of

20 whether an impairment substantially limits a major life activity shall be made without regard to the

21 ameliorative effects of mitigating measures such as medication." The ADA is incorporated into the

22 Unruh Act by Civil Code section 51, subdivision (f).

23

181. By requiring applicants to take the medication prescribed for their disabilities while

24 being evaluated for accommodations or explain their failure or refusal to do so, LSAC violates the

25 rights of class members under the FEHA, Unruh Act, and ADA,

26

27
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Dept. Fair Empl. & Hous. v. Law School Admission Council. Inc. (Whitney et al.l

Second Amended Group and Class Action Complaint for Damages and Injunctive Relief

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1

182. As a direct result of the unlawful practices of defendants as alleged herein, class

2 members have incurred out of pocket losses, including tcst registration fees and medical bills, in an

3 amount to be proven at trial.

4

183. As a further and direct resnlt of the unlawful practices of defendants as alleged herein,

5 class members have suffered emotional distress, anxiety, lost opportunity, frustration, humiliation,

6 and loss of dignity and self-esteem, in an amount to be proven at trial.

7

184. Defendants have engaged in, and by their refusal to comply with the law, have

8 demonstrated that they will continue to engage in, the pattern and practice of unlawful discrimination

9 described herein unless and until they aTe enjoined, pursuant to the police power granted by

10 Government Code sections 12920 and 12920.5, and pursuant to section 12974, from failing or

11 refusing to comply with the mandates of the FEI-lA, Unruh Act, and the ADA. Unless and until

12 defendants are enjoined from failing or refusing to comply with the mandates of these laws, class

13 members' right to full and equal access to places of public accommodation will continue to be

14 violated. Plaintiff lacks any plain, speedy, adequate remedy at law (0 prevent such harm, injury and

15 loss, which will continue until the court enjoins the complained of unlawful conduct and grants other

16 affirmative relief as prayed for herein.

17

SECOND CLASS CAUSE OF ACTION

18

Failure to Ensure that Exam Measures Ability Rather than Disability

19

(42 U.S.c. § 12189 and 28 C.F.R. § 36.309)

20

185. The DFEI-l realleges and incorporates by reference each and every allegation

21 contained in paragraphs 1 through 184, inclusive, as iffully set forth herein.

22

186. The ADA requires that any person offering examinations related to post-secondary

23 education or profession "shall offer such examinations or conrses in a place and manner accessible to

24 persons with disabilities." (42 U.S.c. § 12189.) Regulations interpreting this section impose an

25 obligation on the entity offering such an examination that" [t]he examination is selected and

26 administered so as to best ensure that, when the examination is administered to an individual with a

27
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State of California Std. 113 Rev, J-95 FE&H Automated

disability that impairs sensory, manual, or speaking skills, the examination results accurately reflect
-29Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whitney et al.) Second Amended Group and Class Action Complaint for Damages and Injunctive Relief

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1 the individual's aptitude or achievement level or whatever other factor the examination purports to

2 measure, rather than reflecting the individual's impaired sensory, manual, or speaking skills." (28

3 C.P.R. § 36.309.)

4

187. By adhering to a blanket policy of annotating scores taken under extended time

5 conditions, defendant is communicating to law schools that it does not know whether or not the

6 applicants' exam results accurately reflect aptitude or achievement. Therefore, LSAC is breaching its

7 duty under the PEHA, Unruh Act, and ADA to ensure that the examination results accurately reflect

8 the individual's aptitude or achievement level. (28 C.F.R. § 36.309(b)(I)(i).)

9

188. As a direct result of the unlawful practices of defendants as alleged herein, class

10 members have incurred out of pocket losses, including test registration fees and medical bills, in an

11 amount to be proven at trial.

12

189. As a further and direct result of the unlawful practices of defendants as alleged herein,

13 class members have suffered emotional distress, anxiety, lost opportunity, frustration, humiliation,

14 and loss of dignity and self-esteem, in an amount to be proven at trial.

15

190. Defendants have engaged in, and by their refusal to comply with the law, have

16 demonstrated that they will continue to engage in, the pattern and practice of unlawful discrimination

17 described herein unless and until they are enjoined, pursuant to the police power granted by

18 Government Code sections 12920 and 12920.5, and pursuant to section 12974, from failing or

19 refusing to comply with the mandates of the FEHA, Unruh Act, and the ADA. Unless and until

20 defendants are enjoined from failing or refusing to comply with the mandates of these laws, class

21 members' right to full and equal access to places of public accommodation will continue to be

22 violated. Plaintiff lacks any plain, speedy, adequate remedy at law to prevent such harm, injury and

23 loss, which will continue until the court enjoins the complained of unlawful condnct and grants other

24 affirmative relief as prayed for herein.

25

26

27
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1

THIRD CLASS CAUSE OF ACTION

2

Coercion, Intimidation, Threats, or Interference with ADA Rights - Flagging

3

(42 U,S.c. § 12203)

4

191. The DFEH realleges and incorporates by reference each and every allegation

5 contained in paragraphs 1 through 184, inclusive, as iffully set forth herein.

6

192. The ADA makes it unlawful to "coerce, intimidate, threaten, or interfere with any

7 individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed,

8 any right granted or protected by this Act." (42 U.S.C. § 12203.)

9

193. LSAC's policy of annotating tests scores administered under extended time conditions

10 discourages applicants from seeking such an accommodation, and punishes those who receive it, in

11 violation of the FEHA, Unruh Act, and ADA.

12

194. As a direct result of the unlawful practices of defendants as alleged herein, class

13 members have incurred out of pocket losses, including test registration fees and medical bills, in an

14 amount to be proven at trial.

15

195. As a further and direct result of the unlawful practices of defendants as alleged herein,

16 class members have suffered emotional distress, anxiety, lost opportunity, frustration, humiliation,

17 and loss of dignity and self-esteem, in an amount to be proven at trial.

18

196. Defendants have engaged in, and by their refusal to comply with the law, have

19 demonstrated that they will continue to engage in, the pattern and practice of unlawful discrimination

20 described herein unless and until they are enjoined, pursuant to the police power granted by

21 Government Code sections 12920 and 12920.5, and pursuant to section 12974, from failing or

22 refusing to comply with the mandates of the FEHA, Unruh Act, and the ADA. Unless and until

23 defendants are enjoined from failing or refusing to comply with the mandates of these laws, class

24 members' right to full and equal access to places of public accommodation will continue to be

25 violated. Plaintifflacks any plain, speedy, adequate remedy at law to prevent such harm, injury and

26 loss, which will continue until the court enjoins the complained of unlawful conduct and grants other

27
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State of Califomia Std, 113 R",v. 3_95 FE&H Automated

affirmative relief as prayed for herein.

-3 1-

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Dept. Fair Empl. & HOlls. v_ Law School Admission Council, Inc_ (Whitney et al.)

Second Amended Group and Class Action Complaint for Damages and Iniunctive Relief

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1

FOURTH CAUSE OF ACTION - REAL PARTIES IN INTEREST ONLY

2

Denial of Reasonable Accommodation

3

(42 U.S.c. § 12189 and 28 C.F.R. § 36.309(b)(1)(iv»

4

197. The DFEH realleges and incorporates by reference eaeh and every allegation

5 contained in paragraphs 1 through 184, inclusive, as if fully set forth herein.

6

198. The ADA requires that any person offering examinations related to post-secondary

7 education or profession "shall offer such examinations or COurses in a place and manner accessible to

8 persons with disabilities." (42 U.S.C. § 12189.) As part of this duty to make an examination

9 accessible, the regulations require that any documentation requested be "reasonable and limited to the

10 need for the modification, accommodation, or auxiliary aid Of service requested." (28 C.F.R. §

11 36.309(b)(1 )(iv).)

12

199. LSAC breached its duty to make the LSAT accessible to people with disabilities by

13 requiring excessive amounts of documentation and denying a reasonable accommodation to each real

14 party in interest, in violation of the FEHA, Unruh Act, and ADA.

15

200. As a direct result of the unlawful practices of defendants as alleged herein, real parties

16 have incurred out of pocket losses, inclnding test registration fees and medical bills, in an amount to

17 be proven at trial.

18

201. As a further and direct result of the unlawful practices of defendants as alleged herein,

19 real parties have suffered emotional distress, anxiety, lost opportunity, frustration, humiliation, and

20 loss of dignity and self-esteem, in an amount to be proven at trial.

21

202. Defendants have engaged in, and by their refusal to comply with the law, have

22 demonstrated that they will continue to engage in, the pattern and practice of unlawful discrimination

23 described herein unless and until they are enjoined, pursuant to the police power granted by sections

24 12920 and 12920.5, and pursuant to section 12974, from failing or refusing to comply with the

25 mandates of the FEHA, Unruh Act, and the ADA. Unless and until defendants are enjoined from

26 failing or retusing to comply with the mandates of these laws, class members' right to full and equal

27
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State of California Std. 113 Rev. 3-95 FE&H Automated

access to places of public accommodation will continue to be violated. Plaintifflacks any plain,
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1 speedy, adequate remedy at law to prevent such harm, injury and loss, which will continue until the

2 court enjoins the complained of unlawful conduct and grants other affirmative relief as prayed for

3 herein.

4

FIFTH CAUSE OF ACTION REAL PARnES IN INTEREST ONLY

5

Coercion, Intimidation, Threats, or Interference with ADA Rights

6

(42 U.S.c. § 12203)

7

203. The DFEH realleges and incorporates by reference each and every allegation

8 contained in paragraphs 1 through 184, inclusive, as if fully set forth herein.

9

204. The ADA makes it unlawful to "coerce, intimidate, threaten, or interfere with any

10 individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed,

H any right granted or protected by this Act." (42 U.S.c. § 12203.)

12

205. LSAC's policies and patterns of requiring unreasonable types and excessive amounts

13 of documentation to support each accommodation request violate the FEHA, Unruh Act, and the

14 fo..Dft..., by uIl1awftllly coercing, intimidating, threatening, or interfering \vith real parties' exercise or

15 enjoyment of their right to reasonable accommodation on the LSAT.

16

206. As a direct result of the unlawful practices of defendants as alleged herein, real parties

17 have incurred out of pocket losses, including test registration fees and medical bills, in an amount to

18 be proven at trial.

19

207. As a further and direct result of the unlawful practices of defendants as alleged herein,

20 real parties have suffered emotional distress, anxiety, lost opportunity, frustration, humiliation, and

21 loss of dignity and self-esteem, in an amount to be proven at trial.

22

208. Defendants have engaged in, and by their refusal to comply with the law, have

23 demonstrated that they will continue to engage in, the pattern and practice of unlawful discrimination

24 described herein unless and until they are enjoined, pursuant to the police power granted by

2S Govemment Code sections 12920 and 12920.5, and pursuant to section 12974, from failing or

26 refusing to comply with the mandates of the FEHA, Unruh Act, and the ADA. Unless and until

27
*COURT PAPER
State of California Std. 113 Rev. 3·95 fE&H Automat",d

defendants are enjoined from failing or refusing to comply with the mandates of these laws, class
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1 members' right to full and equal access to places of public accommodation will continue to be

2 violated_ Plaintifflacks any plain, speedy, adequate remedy at law to prevent such harm, injury and

3 loss, which will continue until the court enjoins the complained of unlawful conduct and grants other

4 affirmative relief as prayed for herein.

5

PRAYER FOR RELIEF

6

WHEREFORE, the DFEH prays that the court issue a judgment in favor of the DFEH, real

7 parties in interest, and members of the class, and order defendants to provide the following relief:

8

AS TO REAL PARTIES IN INTEREST

9

209. Provide free and accommodated testing at the next available testing date in each real

10 party's area, with accommodations as initially requested by that real party;

11

210. Provide a letter to each real party explaining that their LSAT scores used for their law

12 school applications during the relevant period may not have provided accurate measures of their

13 acquired reading and verbal reasoning skills, because LSAC did not reasonably accommodate their

14 disabilities.

15

AS TO ALL MEMBERS O};' THE CLASS,

INCLUDING THE REAL I'ARTIES IN INTEREST 16

17

211. Cease and desist from consideration of mitigation measures such as medication when

18 making a determination as to whether an applicant needs an accommodation.

19

212. Cease and desist from specially annotating LSAT scores tests scores administered

20 under extended time conditions.

21

213. Include all test scores in the percentile ranking process and provide a ranked percentile

22 to each test taker.

23

214. Immediately undertake a validation study to determine if LSAC scores under

24 accommodation of extra time for cognitive disabilities are an equal measure of aptitude or

25 achievement as compared to non-accommodated scores.

26

215. Reduce to a discrete and reasonable amount the documentation required to verify an

27
@
COURT PAPER State (If California Std. 113 Rev. 3_95 FE&H Automated

applicant's need for an accommodation, especially for so-called cognitive disabilities, consistent with

-34-

- - - - - - - - - - ---~~--~-

--~----

---

------

Dept Fair Empt & Hous_ v_ Law School Admission Council, fnc_ (Whitney et at)

Second Amended Group and Class Action Complaint for Damages and Iniunctive Relief

CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee3355oof f7766

1 the ADA's requirement that such documentation be "reasonable" and Congress' mandate that "the

2 question of whether an individual's impairment is a disability under the ADA should not demand

3 extensive analysis." (28 C.F.R. § 36.309(b)(l)(iv); 42 U.S.c. § 1201 [Pub. L. No. 110-325, § 2(b)(5)

4 (Sept. 25, 2008) 122 Stat. 3553].)

5

216. Create a more streamlined and user-friendly process for considering reasonable

6 accommodation requests, that includes notice to applicants, within a reasonable period of time,

7 whether or not requested accommodations have been granted, and provides a fair process for timely

8 reconsideration of any denial of requested accommodations.

9

217. Pay actual damages according to proof for each Unruh Act violation up to a maximum

10 of three times the actual damages but in no case less than $4,000 per violation.

11

218. Pay the DFEH's attorneys' fees and costs, pursuant to California Government Code

12 § 12965(b) and California Civil Code § 52(a), in an amount according to proof, plus annual interest,

13 as required by law.

14

219. Provide written proof to the Department of the nature and extent ofLSAC's

15 compliance with all requirements of the court's order within 100 days of its effective date; and,

16

220. Provide such other relief as the Court deems to be just and proper.

17 Dated: March 12,2013 18
19
20 21

DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING
Jon M. lchinaga Chief Counsel
R. Sybil Villanueva Associate Chief Counsel

22

Phoebe P. Liu

23

Senior Staff Counsel

24

Mari Mayeda

Senior Staff Counsel

25

26
27
<&)
COURT PAPER State of California Std. 113 Rev. 3-95 FE&H Automated

By:/sl R. Sybil Villanueva R. Sybil Villanueva Attorneys for the Department

-35-

Dept. Fair Empl. & Hous. v. Law School Admission

Inc.

et aL)

Second Amended Group and Class Action Complaint for Damages and Injunctive Relief

CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee3366oof f7766

CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee3377oof f7766
'* .* ii' PUBLIC ACCOMMU '\nOIll!RAlPH/CIVIL CpOE S nO~lS 51.5 & 54 t· * ~.

COMPLAINT OF mSGRIMINATIOi1J UNDER THE I'ROVISlONg OFTHE CAUFORI1J[A FAIR EMPU1YMEI\lT

DFEH # U200910-Q-0003 -00'-~-

AI\JD HOUSING ACT WfHCH

PORATES THE UNRUH CIVIL

fliGHTS ACt, THE'

ACT AlliD CIVil CODE SECTIONS 51

54

ODATIOI\l OR OTHER

NAME(SI

LAW SCHOOL ADMISSIONS CbUNCIL

ADDRESS
p,O, Box 8512
CITY ISTATE(ZIP

COUNTY

TELEPHONE NUMBER (H-JCLUDE AREA CODE)
(215) ~6e"1001

Newtown, PA 18940

CAUSE OF DISCRIMII,ATION BASED ON {CHECK APPROPRIATE BOX[ESIl

o RACE

OSEX

0 DISABILITY

0 RELIGION

0 NATIONAL ORIGIN/ANCESTRY

o COLOR

D AGE

D MARITAL S1'ATUS

0 OTHER {SPECIFYI

o SF.l<UAL ORIENTATION

DATE MOST RECENT OR CONTINUiNG DlSCRIMINAT!ON

TYPE OF COMPLA1NT

TOOK PLACE {month, day, and yearl A.:.'p::.:.l'::.il..::2::..1:c.',_~2::..0::..1.:..0=--~_ _ _ _ _ _ _~_ _ _ _ _ _ _,.::8::-_ _ _-,-

THE PARTICULAliS ARE:

!. On or about April 21, 2010, I was denied my reasonable acCommodation request for 50%',exlratesting time when taking my LSAT exam for the Law School Admissions Council which is located at P,O. Box 8512, Nevvtown, PA 18940,

Ii. 1believe I was denied my reasonable accommodation request for 50% extra testing tin1e when taking
my LSAT exam which is necessary due to my disability (Attention Deficit Disorder) which is a violation Government Code, Section 12948. The Gdvei'nment Code incorporates Section 51 of the Civil Code,"
My belief is based on the fo, llowing:

A

Corporate Council, Joan Vah Tol, was aware of my disability and the granting of my

accommodation request for 50% additional testing time for a prior test date. However, after I

requested an accommodation for 50% additional testing time forthe June 6,2010 exam, my

request was denied.

i

Typed aM mailed for signature on May 4, 2010,

j declare under penalty of perjury under the !aws- of the State of California. that the foregoing is true and correct of my own

knowledge except as to matters stated on my

matters! believe it to be true.

City

DFEH·300·02 (12/99)

Q:DS:bps

OEPARTMENT OF FAIR EMPLOYMENT A'ND HOUSING

DATE FILED:

8TATE OF CALlFC

CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee3388oof f7766

CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee3399oof f7766
* * * PUBLIC ACCOMM ;ATION/lH\lPH!C,!Vll CODE, _CTIOruS 51.5 & 54 * * *

COMPLAINT OF DISCRIMINATION UNDER THE

DFEH II E.. 2009l.0-G-0012-~...__

PBOVISIOruS OF THE CALIFORNIA FAIR EMPLOYMENT

AND HOUS!NG ACT WHICH INCORPORATES THE UNRUH CIVIL

RIGHTS ACT, THE RALPH CIVil RIGHTS ACT AND CIVil CODE SECTIONS 51.5 AND 54

COMPLAINANT'S NAME{S) (indicate Mr. or Ms" jf individual)

Jones, Nicholas E, (Mrc..)_ _ _ _ _._.._..._____.___._____....===~

ADDRL:SS

TELEPHONE NUMBEFl. (INCLUOE: AREA'-C()[;[J-"-~'

73213 Catalina Way CiiV/S':l:AT"E'i"Zjp-

. ·COUNTY--'""'·-

(760) 409·9103
couN"'rv CO"[')E'---

Palm Desert, ca 92260

Riverside

065

Nil."Nifo-fS THE PERSON, BUSINESS ESTABLISHMENT, PUBLIC ACCOM~lODA TlONCJlfOTHIRf.flJTlTYTHAf--

DISCRIMINATED AGAINST ME:

Law School Adm issions ...;:C:.;;o:.;;l:.;.ln;.:;c",il"",..;.In''c;:.,.:....::;1L::...S",_A_C:..:.,I_ _ _ _ _ _ _ _ _.~======="""

ADDRESS

TELEPHONE NUMBER (INCLUDE AREA'CODE)-

Post Office Box 8512
CITY ;STATE/ZlP

co\if\lTY

_ _ _ _ _ _ 215 .. 968-1 001
·-----cotr~I-TYC06~~

Newton, PA 18940-8512

Out-ol·State

'cAusE-oF DISCRIM!NATION BASED ON (CHECK APPROPRIATE BQXiESll ~-,---.~~~--,-"--,-.-----.--..- - - .._._.-_...

000

DRACE
o COLOR

OSEX 0 AGE

rn DiSABILITY
0 MARITAL STATUS

0 RELIGION

0 NATiONAL QRIG1NJ/\NCESTRY

0 OTHER (SPE.C",':.:FY",,'~

0 SEY,Uft.L OHIHlTATION

DATE MOST HE CENT OR CONTINUIN·G DISCRIMiNATION

TYPE OF COMPLAINT

December 2009

THE

I. On or about December 5, 2009 I was denied reasonable accommodation to take the LSAT
test for the Law School Admissions Council.

II. On or about October 27, 2009 and November 9, 2009 I received notification my request for
reasonable accommodation had been denied.

III. I believe I was denied reasonable accommodation because of my disabilities (Amblyopia/Posterior Vitreous Detachment) and because of my membership in a class of
people who are disabled. This is a violation of Section 12948 of the Government Code, The Government Code incorporates Section 51 of the Civil Code. My belief is based on the foUo\oving;

A. On or about October 20, 2009 I requested a reasonable accommodation to take the LSAT
test scheduled for December 5, 2009.

8. On or about October 27, 2009 I received notification the documentation I provided did not
reflect an impairment related to taking the LSAT and I remained registered to test as a standard test taker.

C. On or about November 3, 2009 I requested reconsideration regarding my accommodation request by providing additional information requested by LSAC to justify my need for reasonable accommodation,

Pg, 1 of 2

CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee4400oof f7766
" '* " PUBLIC ACCOMIV, JATIONIRA~PHmIVIL CODE 2CTION 54 * * *

PCROOMVPISLJAOINruTS OOFF DTHlSECRCIAMlIfFNOARTlNOIrAu FUAI\IlDREERMTPHLEOYMEI\lT

"':,,=____ DFEH # U 20091 0 ~ 0012 00

T

-

_____

=._.:::12_

AND HOUSING ACT WmCH INCORPORATES THE UNRUH CIVil

RIGHTS ACT, THE RALPH CiVil RiGHTS ACT AND CIVIL CODE SECTIONS 51.5 AND 54

-~

.. ... ."---.--.-"------,,~.-,~ -------~-~-.--.--

COMPLAINANT'

Nicholas E. (Mr.)

Law School Admissions Counoi[, ino. (LSAC)

D. On or about November 9, 2009 I received notification the additional documentation was reviewed and there was no change in their decision and my request for reasonable accommodation was denied.
IV.! am making this complaint on behalf of myself and all other disabled individuals, who have been, are now, or will in the future be sim[lar[y aggrieved.

Pg. 2 of 2

Typed and mailed for signature on JarJll"r'{.l!"_~Q:l.o,.iM~ :2L2ill1'._~.. _______
i declare under penalty of perjury under the laws of the State of California that the foregomg h;, true and correct of my own knowledge
exceo! as to matters stated on my information and b~~"Sln'i')tte,s I believe ,,'to be','I:;U~'" ,

l;L(h~ Dated -.l/.j.!. I

~~>~ftk."'~~_E.1~S ~_ _

_, COMPLAINANT'S SIGNATURE

At fP4LMQ~7> C4
C11/

~~ - V~OMPLA~~m:::_ S'S_ I-GN.,ATUREIG~ARDIA~;-::'-;-LITEM-

DFEH-300-02 (121991

SJWeo

DATE FILED:J)~N 1:; ]. 2011,j

DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING

STA1'E OF CAUFOHNIA

CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee4411oof f7766

E· ."""'. ·,'i"'··'·."·H·"·:"'1""'B.'i'·l········T'··'" iX' .'",c,,,, 'Jii"

_'_""''''''''',

:

':

,.',,~

c,

"""."",,,,.,,,,,.•,,w,.,,,,y,,/ _c~"">_:~:, ~';"V_'"''''"'' ,_"""",',..X)' o"",",.,~,~,,.-.y .;"", .<C.' .",~""~._"••r"c;.4ii.' '~""""''''';'

-
,.~,.. ___,.,'"_,,,,

3"'··i,;,,-,. : "._"~""".fjlf

CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee4422oof f7766

I SUSAN SAYLOR (#154592)
1 Acting Chief Connsel 2 ' ALEXANDRA SELDIN (#239708)
Staff Connsel 3 DEPARTMENT OF FAIR EMPLUYMENT
AND HOUSING 4 2218 Kausen Drive, Suite 100
Elk Grove, CA 95758 5 Telephone No.: (619) 645-2575
Facsimile: (619) 645-3170
6 Attorneys for the Department
7

BEFORE THE FAIR EMPLOYl\1ENT AND HOUSING COMMISSION

OF THE STATE OF CALIFOR.;"lIA 10

11 In the Matter of the Complaint of

12

THE DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING,

13 vs.

) Case Nos.
~
)
)

U-200910-G-0012-00-p U-200910-G-00l1-00-p U-200910-Q0003-00

14 LA\V SCHOOL ADMISSION COUNCIL. 15 INC.,

) NOTICE OF CLASS ACTION ) COMPLAINT AND DIRECTOR'S ) COMPLAIJ'\'T )

16

Respondent, ) (Gov. Code §§ 12960, 12961 and 12965,
-------------------------)) subd. Cal.)

17 HAMID MICHAEL HEJAZI; NICHOLAS E. »

18 JONES;an~

)

19

Complainants. )

----------------~

20

21
22
23
24
25
26
27
*CO\JI'!, PAPER
St6!" '" Cfllilomio Std. 113 Rev. S-96 FE&H 'Automl>,,,d

TO LAW SCHOOL ADMISSION COUNCIL, INC., 662 Penn Street, Box 40, Newton, Pennsylvania, 18940:
PLEASE TAKE NOTICE that pursuant to Government Code sections 12960 and 12961, the Director of the DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING (hereinafter "the Department") has determined that the cases listed below will be treated and proceed as a group or class complaint for all purposes, and the Director has issued the following Complaint of Discrimination on behalf of the group or class described beiow:
·1· DFEH v. Law School Admission Council, Inc. (Hejazi, et. al.):
Notice of Class Action Complaint

CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee4433oof f7766

1

Case number U-200910-G-OOll-OO-p, filed by Complainant HAMID MICHAEL HEJAZI

2 against Respondent LA W SCHOOL ADMISSION COUNCIL, INC. on January 19, 2010.

3

Case number U-200910-G-0012-00-p, filed by Complainant NICHOLAS E. JONES against

4 Respondent LAW SCHOOL ADMISSION COUNCIL, INC. on January 21, 2010.

5

Case mnnber U-200910-Q0003-00, filed by Complainant

against

6 Respondent LAW SCHOOL ADMISSION COUNCIL, INC. on May 9, 2010.

7

The Director's determination and issuance is based on the following:

8

1.

Complainants HAMID MICHAEL HEJAZI, NICHOLAS E. JONES and

9

(hereinafter "Complainants") filed individual verified complaints in writing "'~th the

10 Department on fhe dates herein indicated alleging that Respondent LAW SCHOOL ADMISSION

11 COUNCIL, INC. (hereinafter "LSAC") engaged in unlawful practices against them which were

12 discriminatory on the basis of disability, in violation of fhe Fair Employment and Housing Act

13 ("FEHA"), Government Code section 12900, et. seq. and fhe Umuh Civil Rights Act, Civil Code

14 section 51.

15

2.

111e Department's investigation revealed that LSAC is a proper respondent for all

16 purposes in fhis matter.

17

3.

The &'TOUp or class of which the Complainru1ts are members is comprised of all

18 disabled individuals in the State of California who have or will request a reasonable

19 accommodation for fhe Law School Admission Test ("LSAT"), administered by fhe LSAC, and

20 who have or will be unlawfully denied such request fi:om January 19, 2009 to the conclusion of fhe

21 Department's investigation offhis complaint.

22

4.

There are common questions of law and fact involved which affect the parties to be

23 represented and those persons similarly situated in fhat during the course of the Department's

24 investigation the Complainrults provided and the Department obtained information, which, if

25 proven, indicates that LSAC unlawfully denied or denies disabled individuals reasonable

26 accommodations for the LSAT. Respondent disputes some of fhese allegations. The Department

27
@
COUIlT ?1.J>FJl Stllte <:>f c..llfomJs
Std. 113 fI,w. 3·$S
F,,&H AlrtO<l,ated

will continue the investigation to detemline the merits of these allegations.
-2-
(Hej azi. et. aJ.): Notice of Class Action CornpJairrt

CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee4444oof f7766

1

5.

The nature of the group or class is such that proof of a single set of facts will

2 establish the right of each member of the group to recover.

3

6. The Director will fairly and accurately represent the interests of the group or class.

4

7.

I5 response to: I
6

7

8

You may, but need not, respond to this notification in writing by submitting your
Alexandra Seldin Special Investigations Unit Administrator Department of Fair Employment and Housing 2218 Kausen Drive, Suite 100 Elk Grove,CA 95758

9 DATED: July2..z. ,2010
10 11 12 13
14
15 16

DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING
PHYLLIS W. CHENG
Director ~-;::;;; .~­ By: '~l~~
Ph}1liSW'eheng

17

18

19

20

21

22

23

24

25

26
27
@
COURT PAf'EIl Stata ~f Cnllf~<ni<l Std. 113 Rev, ;I-Sfi FE'&.j' Ault;om!ltQrl

I

J DFEH v. Law School Ad- miss~ i-o3n- C~ ouncic l, Inc.- (H"j- azi, e- t. a/.)- : ----

Nonce of Class Action Complaint

I

CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee4455oof f7766

E'· ···'1' 4/ .N..... ' ··x~,..~·;.l'.·..·..•·•.H. ·N. .·'.·'.B.'" .·,f' I' '"T".'/ "", '.

",-_,~",\:~,_."'_"_,/, "~,,\,:~:~" "'';-~' ~,-,".".",_~'-.", M':,"

h."", ,,'_'""

,'''''''":,-'-'' '""""'-""~'~#~'l3 ."'~"".,'','

"<"N""":"i/'

~~""", ~.; ,,;

CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee4466oof f7766

" iI iI PUBLIC ACCOMMOIJATION/RAlPHIGIVll COOE SEGTIOIIIS 51.11 &54 * • *

COMPLAINT OF OISCRlMII\JAT!ON UNGER THE

DFEH It U 201112 H-'0007-(jO-p

PROVISIONS OF THE CALIFORiIllAFAIR EMPLOYMENT

I\i\l[) HOUSlmG ACT WHICH INCORPORATES THE UNRUH CIVIL

RIGHTS ACT, THE RALPH CIVil RIGHTS ACT ANO CIVil CODE SECTIOfJS 51.5 ANO 54

COMPLAiNANT'S NAME<S)'(indiciitB Mr, or Ms., if individual)

JOHNSO ALEX (MR.)

1447 La Linda Drive

760-736-0119

S<ln Marcos, CA 92078

San Diego

073

NAMEDISTHE PERsoff1luSINESS ESTAI3L1SHfvlENT, PUBLIGACCOM~tlO[)AT!oN OR OTHER ENTITY THAT-'---

DiSCI~IMINATED AGAINST ME:

Law Aci

School oRES

Admissions S-----·----

C

o

u:n==c.i.l:,.:I.n:=c-.'::(:L:A..S::C:=)---------~T;CEl"'E."PH;:;;'O"'N:;-;E,.,N"U"M"'B"ER;;-,"IIN"C"L'U'D"'r",:r-".R;c,E7/,"C"O,"'DE""-

662 Penn Street CITY 1STATE/ZIP

~'-~-""---~-~-cODNf"y--·-

215·968-1001 CQU"'Nn'Tvyrc"O""o{-

Newtown, PA 18940

Out of State

000

EC 'App'FtO'p"f11 (~'A'~jSioFDiSCR~r(;11NAT10~)8-A-SED-0i~(CH K

ATE BOX[ESTI--·-"-~"-~----·-·~----~----'·---"-··-"""----~·---

C) pr,CE

[]SEX

00J$ABIUTY

0 R-EUG1QN

0 NATIONAL ORIGINIANCESTHY

0 SEXUAL OFiltNTATION

[I COLOR

0 f,GE

0 MARiTAL STATUS

0 OTHER: ~SPECWYI

-i~)A-::i:E-'M'6'ST'Fi'EC ENT OR cONnr::iC!ING"Di SCR-I~MINA'r\ON"-------"-":"""""''''''====''''''''-'''''''-"'''~= -'===--~:rYPE"-of-COM"pttill~T-="=-="---

________, ,~~?_~.:'''::lAC~::::.~:::~~~.~:.~:,.~l Y0m> September ~.? I 29~_~
THE PAF<IICULARS ARE:

"~___~..~L~~_____. _.. _".. _

L On or aboUt 9/17/10 I was denied the reasonable accomrnodaHon needed to take the LSAT (Law School,

Admissions Test).

!L No reason wa's 91ven for partial denia~ of my reasonable accomn'lodatlon and the gra:'!ting of incloequate/lneffective accommodatron s,

111. j believe \ was denied reasonable accorrt!"Ywd-a-tion, which is r.ecessary due to my disability (Quedriplegii','1), vvhid'i is a violation of Government Code, Section 12948. The GCivernment Code incorporates Soction 51 of the Clvil Code, My belief is based on the following:

A. On or about 8/5/'10 I advised the Accol'nmodated Testin~J section of my medical need for acco!l1nlodation in the form of using a computer for all' sections of the tese 120 extra minutes on eaGh section ot the test, alternate to' scantron answer sheet, use of amanuensis (to turn po_ges), additi,onai rest period and breaks, 1 also provided supporting medical documentation to confirm theaccot'nmodations were rnedi-calfy necessary,

8. On or about 9/17/10 I was' notified that part of my requested accommodation was being denied. The accommodations, that were granted were inadequate and ineffective,

iV, \ am making this cornplaint on behalf of myself-and aU other disabled indIviduals who have been, are now,
or will in the -fUture be similarly aggrieved,
Typed <Inti mailed for siqrwtlJff! on Aljg~~ 23, 2Q.::U"--_ _ _...____._~ ___'"__._ _ _ _ _ _'"_____~~._,_~~_._..,___;___ _ _ __ !d~~~-re under penalty of perjury under the laws of the Stato of Ca!lfomfa that the foregoing is twe -and com:(!t 01 my own knowledge except as to matters stated on my information and belie-f, and as'to those matters! believe i1. to be true.

City

oi:EH .. 30Q-02 {'12!99)

B~'PhlD

DEPARTMENT OF FAIR EMPLOYMENT AND HOUSiNG

CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee4477oof f7766

CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee4488oof f7766

....- .. PUBLIC ACGOMMOr 'TiON/RAlPH/CIVll CODE sr-TIONS 51.5 & 54 * * *

COMPLAINT OF OISCRIMINATION UNDER THE

DFEH # U 201112 H-0008-00-p

PROVISIONS OF THE CALIFORNIA FAIR EMPLOYMENT

AND HOUSING ACT WHICH INCORPORATES THE UNRUH CIVil

RIGHTS ACT, THE RALPH CIVIL RIGHTS ACT AND CIIIIL CODE SECTIONS 51.5 AND 54

DISCRIMINATED AGAINST ME:

COUNTY CODE

San

073

ESTABLISHMENT, PUBLIC ACCOMMODATION OR OTHER ENTITY THAT

Law School Admissions Council, Inc. (LASC)

A-OoRESS

- - - - - - - - - - - - - - - - -..-.-.----- . _ - -

TeLEPHONE NUMBER (INCLUDE AHEA CODE)

662 Penn Street
CiTY ISTATE/ZiP

COUNTY

215-968-1001
COUNTY CODE

Newtown, PA 18940

Out of State

000

"CAUSE OF DISCA1MINATION-BASED ON {CHECK APPROPRiATE'''''B-=-OX'''IE''''S''"II'

DRACE

osc:x

&:1 DISABILITY

0 RELIGION

0 NATIONAL OR1GIN/ANCESTRY

o COLOR

0 AGE

0 MARITAL STATUS

0 OTHER [SPE~FYI __. = = = = = = = = =

o SEXUAL ORIENTATION

DATE Mosr'RfcENT OR -CONTINUING DlSCRIMINA'TION

TYPE. OF COMPLAINT,

22__ __________ ____. ._ TOOK PLACE Imonth. dey. and yaml October 31,_ 20

~

~

Unruh

[HE PA""RT1CULARS-AI'iE:
On or about 10/31/2010 I was denied the reasonable accommodation of adequate additional time to

take the LSAT (Law School Admissions Test) and adequate break periods.

Ii. No reason vvas given for partial denial of my reasonable accommodation.

[II. [ believe I was denied reasonable accommodation in the form of additional test taking time and break periods, which is necessary due to nw disabilities (ADD [Attention Deficit Disorder), Lemlerrs's Syndrome with Brain edema resulting in brain processing speed impairment), which is a violation of Government Code, Section 12948. The Government Code incorporates Section 51 of tr18 Civii Code. My belief is based on the following:

A. On or about early 10/2010 I advised the Accommodated Testing section of my medical need for additional test taking tIme and break p8rlods. ! also provided supporting rr.edicnl documentation.

B. On or about 10/31/10 I was notified that my requested accommodation was being denied. I was granted in sufficient additional time to take test sections. [was not granted sufficient break period to administer vital medication.

IV. I am making this complaint on behalf of myself and a[1 other disabled individuals who have been, are

now, or will in the future be similarly aggrieved.

lyped and mailed for signature on August 22., 2011 , __.._ _ _ _ _ _ _ _ _ _ _ _~-_ _-

I declare under penalty of perjury under the laws of the State of !

foregoing is true and correct of mv own

knowledge except as to mattsrs stated on my information and

matters' believe It to b(;:1: true,

..J5? Dated

&J02U"-LI-II-' _

At rYl:y'cLv tfij'& C:",,-'fi,---
City

COMPLAINANT'S

DFEH-300-02 (121991

B:PND

DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING

DATE FILED:

CALIFORNIA

CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee4499oof f7766

CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee5500oof f7766

* * * PUBLIC ACCOMMOI){ ION/RAlPH/CIVll CODE SEC lONS 51.5 & 54" " *

COMPLA!NT OF DISCRIMINATION UNDER HIE

DFEH # U 20 1112 H-OO 13-00-p

PROVISIONS OF THE CALIFORNIA FAIR EMPLOYMENT

AIUD HOUSING ACT WHICH INCORPORATES THE UNRUH CIVil

!l!GHTS ACT, THE RALPH CIVil flIGHTS ACT AND CIVil COllE SECTIONS 51.5 I\I\ID..:.5.:.4_ _ _ _ __

Co COMPLA1NANT'S NAME(S) {indicats Mr. or lvis., if individual)

\

.J?3- .1£ -::r.::: J::1 EN N ~S SEY-S EVERSO~E_~.I~A BE:rJ:.lJ~_~). ___._____ .__._-:..

(0

~-'i S~:=I

ADDRESS

TELEPHONE NUMBER (INCLUDE. t'\REA CODD

1067 Oak Street

xxx-xxx·xxxx

San Francisco, CA 92101

San Francisco

075

NAMEDISTHE PER'SON;-BUSINESS ESTABLISHMENT, PUBLIC ACCDMMOi'iitToN DR OTHER ENTITY THAf--......

DISCRIMINATED AGAINST ME:

=:.:...:..:..c.------------ I..<lw School
ADDFi.ESS

Admiss-io-n.s--C-o~u"n-c-il~, ~Inc.

(LSP,C)

T"'E"'LE"'piToi\fENuM8En (iNCLUDE AnEA CODEI

662 Penn Street

215-968-1001

<':ITY/STATE/ZIP

COUNTY

COUNTY CODE

Newtown, PA 1894-0

Out of State

T[O U:HE-C Cf~~liSEOFDi'scRiMIN'A N BASED ON

I( APPRO PRIATE -BOX[ESJI---~'--~----~'-"

000
,---~--,-----~---~-"'------"-.

DRACE CJ COLOR

OSEX 0 AGE

0 DISABll1TY 0 MARtIAL STATUS

0 RELiGION

0 NATIONAL OR1G1N/ANCESTR'f.

0 OTHER (SPECIFY)

0 SEXUAL ORIENTATION

-ElATE MOST FiEGENT OR CONTINUING DISCRIMINATION

l'"YPE OF COMPLAINT

TOOK .P.':A::EJ~;?~.'i:::. day.:.!.~d va,,) May 10, 2011 ._._....._._________....____._....

Unruil

THE PARTICULARS ARE:

"

'"

.

I. From on or about 4/29/11 I was denied the reaso.nableaccommodation of adequate additional time to

take the LSAT (Law School Admissions Test),

II. No reason was given for denial of my reasonable accommodation,

III. I believe I was denied reasonable accommodation in the form of additional test taking time, which is necessary due to my disabilities (Anxiety, Processing Disorder, Learning Disorder, Attention DeficitHyperactivity Disorder [ADHDII, which is a violation of Government Code, Section 12948, The Government Code incorporates Section 51 of the Civil Code, My belief is based on the following:

A. On or about 4/27/11 I advised the Accommodated Testing section of my medical need for additional test taking tilne as VI/elf additional breaks in betwBen test sections. j aiso provided supporting medical documentation,

B, On or about 4/29/11 and again 5/10111 I was notified that my requested accommodation was being denied,

IV. I al11 making this complaint on behalf of myself and all other disabled individuals who have been, are

now, or will in the future be similarly aggrieved,

lypesL~nd moiled for signature on September 14, 2011.

.---"~--,--"'~--,--.--."-.~---.------~.--~.---------.-

I declare under penalty 01 perjury under the laws of the State of Califomra that the foregoing is true and correct of my own

knowledge except as to matter,s stated on my information and bcliet and as to ttlOS!) matters I believe it to be true.

Dated

At

OFEH-300·02 (12/991

B:PND

DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING

CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee5511oof f7766

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* * * PUBLIC AGCOMIV lJATION/RAlPHICIVIL cm:Jf "'l~TlONS 51.5 & 54 * <. *-

COMPLAINT OF DISCRIMINATION UNDER THE

U 201112 H-OOI8-00-p DFEH #

PHOVISIOIIIS OF THE CAlifORNIA FAIR EMPLOYMENT

AND HOUSING ACT WHICH INCORPORATES THE UNRUH CIVil

fliGHTS ACT. THE RALPH CIVil RIGHTS ACT AND CIVIL CODE SECTIONS 51.5 AND 54

COhllPCAINANT'S NAME{Sl' (indicate Mr. or Ms., if individual)

LEE, CAROLINE FAVROT (MS.)

ADDRESS

.....c._ _ _ _ _ _ _ _ _ _ _~____ .,,~--- TEl~"pi-10NENlTR,1BER-(TN·ClUOE AREA 6JOEI-~--

676 Alcatraz Avenue---"_._-_._._-------
CITY/STATE/ZIP

-

-.-,-,-----~

COUf\lTY

510-655-1758
- - - _ . ---------.-,~"-.-'""".'''---.
COUNTY CODE

Oakland, CA 94609

Alameda

001

NAMED IS THE PERSON, BUSINESS ESYiIBUSRMENT;-PUBLIC-ACCOMMODA Tlml OR OTI-IER ENTITY THAT

DISCHIMINATEO AGAINST ME:

Law School Admissions Council, Inc. (LSAC)

ADDRESS

TeLEPHONE NUMBER (INCLUDE. AREI'~ CODE)

662 Penn Street

215-968-1001

CITY/STATE/ZIP

COUNTY

COUNTY CODE

Newtown, PA 18940

Out of State

000

CAuSE OF DISCRIMINATION BASED -orT(CHECK-APPR'OPRIATE 'E3cxiESll---"----'--"--'"'·--------'---··--~--

DRACE

CJSEX

G1 D(SABILlTY

0 RELIGiON

0 NATION/.I,l ORIGINfAr\lCESTRY

0 SEXUAL ORIENT,.to,TION

o COLOf4

0 AGE

0 MARITAL STATUS

0 OTHER (SPECIFY)

DATE" IviOSTREcENT OR'-COI>JTINU\l«3DISCFi'iM'lNATY5'N'-

-.-"."' -""=""~'''TYPE'OF CQr..t]PlA1NT

TTl·Ol'EO'lP( APRI.TAICCEULImARomS hA,RdEc:y, and..Y:'.:'.'_1_fl:E~~il 2B,_2011

Unruh
- - - - ' " . - -.., - , , - - - - - - - . ' - - - - " - , .

L From on or about 10/20'10 I was denied reasonable accommodation to take the LSAT (Law School Admissions Test),

II. No adequate reason waS given for denial of my reasonable accommodation.

III. I believe I was denied reasonable accommodation, which is necessary due to my disabilities (Learning Disabilities & f'rocessing Disabilities), which is a violation of Government Code, Section 12948, The Government Code incorporates Section 51 of the Civil Code. My belief is based on the following:

A, On or about 10/2010 I advised the Accommodated Testing section of my medical need for
reasonable accommodation. I also provided supporting medical documentation,

B. Most recently on or about 4/28111 I waS notified that my requested accommodation was being denied.

IV, I am making this complaint on behalf of myself and all other disabled individuals who have been, are now, or will in the future be similarly aggrieved,

_:~yped_and mailed for sigl"),§l'::l~'1 Sepr~rr.:~~~~ 2q11 ,

----,~-~-.,

---~."'-.---c----~---~

! declare under penalty of perjury under the laws of the State of Cnllfomr<l that the foregoing is true and correct of my own

knowledge except as to matt,ers stated on my information and belief, and as to those matters [ believe It to be true,

Dated

C,
d2

;p.':\\.

'0)'--..a.1

At oi?,JC~ !em c{_._.__

City

DFEH-300·02 112/991

B:PND

DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING

CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee5533oof f7766

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10/86/2011 05:19

::LAS !::.IJP

* * .. PUBLIC ACCOMMOIJATIONjRALPH/GIVll CODE SECTIONS SUi & 54' .. *

GOMPlAll\lT OF OISCRlMII\lATIflN UNDER THE

DFEH If _L2 o.U) 7~.Ji:-OO 2I -OO-L

PROVISIONS OF nlE CAUfonNIA FAIR EMPLOYMENT

AMD HOUSING ACT WHICH INCORPORATES THE UIilRUH CIVil

RIGHTS ACT, nlE RALPH GlllillllGHTS ACT ANO ~l\lIl GODE SECTIONS 51.5 AND 54

c:o-MPLAINANi'S :IlAM~(S) (ir.d1cai'8 ML or Ms" ll'individul1ll
BANKS, RAYMOND (MR.,c..)_ _ _ _.
ADDRESS

----r~L[p~iONE""!JuM8!!R {iNCLUOEAR~-A CODE)--

P. O. Box 156661

xxx~xxx"xxxx

San Fr$l'!cisco, CA 94.115

San Francisco

075

NAMED IS THE PERSON, BUSINESS ESTABLISHMENT, PUBLICACC'OMMOUATION OR OTHER 8ifITfVnfi\'r'"

DISCRI~I[1l~T_ED.A_G_AI~.S:.::-,-T:;.:.ME::.:_ _ _ __

NAME(S)
Law School Admissions Counoil, Ino. ILSAC)
ADDRESS
662 Penn Street
CITY!STATE/Z[P
Newtown, PA 18940

----'"'~--TE[fp1~NI:lM8Ei~ {[NCUJ DEAREA~ COD~l

215·968·1001

COUNTY

COUI<.lTY CODS

Out of State

000

CAUSE OF D1SCRIMl!\lATION"SASED ON (CHECK APPROPRJATE r;!OX/ES))

Q RACf.

tJ8EX

ii!'lOlSABllITY

LJ RElIGfot~

0 NATiDNAl ORIGINIANct::snw

o SEXUAL ORIENTATiON

Ci COLOR

a AGt:

0 MARll'AL STATU8,=,",O=O",TI","1E,"R-,I",SP",f."-CI"(::Y'-!.I~~=~======",,,,,,==~==~

DATE MOST ReCENT OR~ COw,IN'iJ!NCI b!SCRJMJNATfON

TY?E Of' COMPI.AINT

TOOKPL/I\CE(month,OEYial1dVI><lr~ ":r-HE"-PAl1TtCULAr-lS A1i"s:~---

J

a

n

u

a

r

y

31 ,.:

:1

2011 ..."-

"

-

-

'

-

-

-

-

-

-

Unruh

L On or tlbout January 2011 I was denle.d the reasonable fJcGommodation of adequr1'te additional time to

take the LSAT (Law Schoo! Admissions Test),

II, No reason \iiJas gIven for delilal of my ~e8sonab!e accommodation.

Ill. ! beliE,lv$ I was del"\led reasonable accommodation in the 'form of additionar test taking time. whioh is MCe$SOI'Y due to my disabilities (Nerve and Muscle damage in left shoulder/arm). which Is a violation of Government Code, Sectk'~h '12948. The GovemrnEu'J.i Cdde it'1cr'lt'POl'tltcs Section 51 of the Clvii Code, My belief is based on the following:

A. On or about January 201 'I I adVised the Aocommodated Testing seci:ion of my medical need for additional temt tEking time, I also provided supporting medical documentation.

8. On or about January 2011 1 was notified that my requested accommodation wa.5 being denied.

IV. I am making this complaint on behalf of myself and a[1 other disabled individuals who have been. me

now, or will in the future be Similarly aggrieved.

lY.llitd Iltld m('lHl.ld for si911aturl} on AUgtJRt 26. 2011.

~--:-=--;;;--:--:;- _-:---:---::--;-

1 d~olarG under PSt1<:lJty of perjury under the laws of ~h& Stete of Ctlli{omla that ~ht'1 fOl'ag'bing \$ trua ond correct of my own

kr,owledg:(} eXoflpt as to matters sr;l'l'ted on my !Mar!nn.tlOIl <)f!d befig.L arId as to thosa matters! bG1l0ve it to be true.

Dated ~-tll~llr

At

SeN

--"
-\""''')':01>;(,(">

Cit"

OF<H-300·02 112/991

~,PND

DP.PARiMENT OF FAlA. EM~LOYIVrF.NT ANO HOUSING

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" * * PUBLIC ACGOMMO"'I.\TIONIRAlPHIClVll CODE ~"'I;TIONS 51.5 & 54 * " *

GOMPUUNT 13f mSGRlIIJH\\IATlIlN UNDER THE

DFEH # U 2011 I 2 H-0023-00-

PROViSiONS OF THE CAliFORNIA FAIR EMPlOYMEruT

AND HOUS!NG ACT WHICH iNCORPORATES THE UfIIf\UH CiVIL

RIGHTS ACT, THE RALPH CIVIl.. RIGHTS ACT AIiW CIVIL r;(IlJE SECTIONS 51.5 MUll 54

C'OM'PlAINANT'S NAME{S) (indicate Mr. or Ms., if individu<'lO

TALESHPOUR, GAZELLE (MS.)

ADDRESS
6756 Bestwood Court

TELEPHONE NUMBl:;R (jNCLUDE AF1.EA CODE)
xxx-xxx-xxxx

c?1'l.n Diego, CA 92119 _.

San Diego

.

.073

NAMED IS THE PERSON, BUSINESS EST/.\BUSHMENT, PUBLIC ACCOMMODATION OR OTHER ENTlT;;;;y';::';m';7AT:;;;---

DISCRIMINATED AGAINST ME:

Law School Admissions Council, Inc. (LSAC)

ADDRESS
662 Penn Street
C!TY(STATE/ZIP

COUNTY

TELEPHONE NUMBER (iNCLUDE AREA CODe)
215-968-1001
COUNTY CODE

Newtown, PA 13940

Out of State

"CAUSE-OF DISCRI MlNA TION BASE'''OC:O'''",c"cl'''C'HECK APPROPR!ATEB~OX[ESD

----------------00-0-------

o RACE

OS EX

G?J D!SABJUTY

0 RELIGION

0 NATIONAL ORIGINiANCESTRY

o SEXUAL ORIENTATiON

[J COLOR

[J AGE

Cl MARlTAL STATUS

[J OTHER lSPEClFYLI~~===

·OATE MOST RECENT OR CONTINUING -DISCRIMINATION

TYPE OF COMPLAINT

TOOK PLACE {month, d"y, and year) Decemb_~~~910=-_ _ _ _ _ _ _ _ _ _ _ _._ _ _. Unruh

THE PART!CULARS ARE:
I. Most recently on or about 12/611 0 I was denied the reasonable accommodation to take the LSAT

(Law School Admissions Testl.

II. No adequate reason was given for denial of my reasonable accommodation.

III. I believe I was denied reasonable accommodation in the form of additional test taking time, which is necessary due to my disabilities (Dyslexia, ADHD, Complications due to bOlle marrow transplant), which is a violation of Government Code, Section 12948. The Government Code incorporates Section 51 of the Civil Code. My belief is based on the following:

A. On or about 2008 and again starting in 712010 I advised the Accommodated Testing section of my medical need for reasonable accommodations. I also provided supporting medical documentation.

B. Most recently on or about '1216/10 I was notified that at least part of my requested accommodation was being denied.

IV. I am making this. complaint on behalf of myself and all other disabled indiViduals who have been, are now, or will in the future be similarly aggrieved.
,ILped and mailed for siqnature on September 30, 2011. Corrected and re-mailed October 7, 201-1.
! declare under penalty of perjury under the laws of the State of California that the- foregoing is true ,and correct of my own Imowle-dge except as to matters statod on rny fnformatioo and belief, and as to thosa matters: t b~lieve it to be true.

Dated Oct -..J-rh ,. ''21:) \ \

At Cltv

DFEH·300-02 (12J991

8:PND

DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING

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E·. . ····X,".l"~H·J"'. ·,wN.•"•, '

/( .

'I'····"B":, I '."Tt"'.''."". , , - "J

':'''-~'''''''''

,

---',,,"-_,

"' '~' \'';'~'_''' _._",.;~1~:~ ~:"" ''"'-~-,U,\' '"~,_,,,_~,<, ,"",.''~:'.:!' __

c..,_,,,:> .p'

"",.";',:;,." .,,,, .,_"'".,,,_

. ,,<0. "',A' .,".,,_)..,". ,:,'",,,,,..,.-,,,,t;J-1:f'

1'"". ·0··,'····'.

.'cA,', ,",_,,,:,

:', .' 4f"if

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•. * * PUBLIC ACCOMfvl\:n.lATION/RAlPH/CIVll CODE St:;", nONS 51.5 & 54 * * '"

COMPLAINT OF DISCRIMINATION UlIIDER THE

DFEH #

PROVISiONS OF THE CALIFORNIA FAIR EMPLOYMENT

AND HOUSING ACT WHICH INCORPORATES THE UNRUH CIVil

RIGHTS ACT, THE RALPH CIVIL RIGHTS ACT AND CIVil CODE SECTIONS 5L5 AND 54

i i

NUMBER (INCLUDE AREA CODE)

DISCRIMINATED AGAINST ME:

Law School Admissions Council, Inc. (LSAC)
ADDRESS
662 Penn Street
CITY1ST ATEIZIP
Newtown, PA 18940

COUNTY
Out of State

TELEPHONE NUMBER (lNCLUDE AREA CODE)
215-968-1001
COUNTY CODE
000

CAUSE OF DISCRIMINATION BASED ON (CHECK APPROPRIATE 80X[ESn

CRACE

OSEX

0 D!SABILITY

0 RELIGION

0 NATIONAL OFHGINJANCESTHY

o COLOR

0 AGE

0 MARITAL STATUS

0 OTHER (SPECIFY)

DATE MOST RECENT OR CONTI"r'llUING DISCRIMiNATiON

o SEXUAL ORIENTATION

-

-

TYPE OF COMPLA1NT

TOOK PLACE (month, day, end year) October 211 2010

Unruh

THE PARTICULARS ARE:
L On or about 10121/10 I was denied the reasonable aocommodation to take the LSAT (Law Schoo!

Admissions Test).

II. The reason citd for denying my request for reasonable accommodation was that documentation did not support that my condition limited a major life activity.

III. I believe I was denied reasonable accommodation, which is necessary due to my disabilities (Attention D8ficit~Hyperactivity Disorder [ADHDJ and Learning Disabilities" which is a violation of Government Code, Section 12948. The Government Code incorporates Section 51 of the Civil Code. My belief is
based on the following:

A, On cr about 812010 I advised the Accommodated Testing section of my medical need for reasonable accommodations. I also provided supporting medical documentation,

S, Most recently on or about 10121i10 I was notified that my requested accommodations were being denied.

IV. t am making this complaint on behalf of myself and all other disabled individuals who have been, are now, or will in the future be similarly aggrieved.
Typed a~d mailed fOf signature on September 27, 20'\ 1.
Td-;c!are under penalty of perjury under the laws of the State of California that the foregoIng is true and correct of my own knowledge except as to matters stated on my information and belief, and as to those matters I believe it to be true.

Dated

O;ij 27;)21211

At S.cr' /-Isrld!. liz ) CIty

DFEH-300-02 (12/991

8:PND

DEPARTMENT OF FAin EMPLOYMENT AND HOUSING

COMPLAINANT'S 3IGNilI,lilJREI,(j;Uf(~it DATE FILED:

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' ····'·"······X'·····"·.·.;·l",H······'1· "i··I······T;/.;·'·.", 0'.,,',. :

· · · " .B'.:'" · · . . .'.c""_""""''''.',' ~"'. .

E"''~'':'''-'''-''' ,~, "-"'~:" ".,~-",,~,.,:, ~,~.".",*",,?~$~;;[ ",,':

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-

-T',,''."',''',.'"

,-,. "-""'.",,,-:,

1'"'1"..
••",,,,,,,',:.,,,;.. """,",,,,:,',.;;,:,

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COMPLAINT OF DlSCRllVIll\lATION Ul\lDER THE

U 201112 H-0025-00-p DFEH II

PROVISIONS Of THE CAliFORNIA FAIR EMPLOYMENT

MJD HOUSING ACT WHICH INCORPORATES THE UNRUH CIVil

BIGHTS ACT, THE RALPH CHill RIGHTS ACT AND CIVil CODE SECTIONS 51.5 AND 54

COMPLAINANT'S NAME(S) (indicate Mr. or Ms" if indiviciusi)
STEPHEN (MR.)

6512 Monera Drive

310-544-2993

Rancho Palos Verdes, CA 90275

Los Angeles

037

NAMED IS THE PERS-6N~ BUSINESSESTABLISHMEN'CPUBLIG ACCOMMODATioN OROTHERINTITY THAf-------

DISCRIMINATED AGAINST ME:

Law School Admissions

215-968-1001
COUNTY CODE
000
o SEXUAI_ ORiENTATION

n. No adequate reasons were given for dertiat of my reasonable accommDdation.

III. I believe I was denied reasonable accommodation which is necessary due to my disabilities ((Epilepsy, ADD [Attention Deficit Disorder] and Ger·tsmann Syndrome), which is a violation of Government Code, Section 12948. The Government Code incorporates Section 51 of the Civil Code. My belief is based on the following:

A_ On or about 2008, 11/2010 and 12/21/10 I advised the Accommodated Testing section of my medical need for accornmodation_ I also provided supporting medical documentation.

8, Most recently on or about February 2011 I was notified that my requested accommodation was being denied,

IV. I am making this complaint on behalf of myself and all other disabled individuals who have been, are

now, or will in the future be similarly aggrieved.

Typed flnd mailed tor s!.2.notur~ on Se,pt.ember 30, 2~.__._ _ _~~_~_~_ _",_____"""_ _ _ _ _...."_.

_._" _ _ _ _ _ ,~. _ _

! declare under penalty of perjury t1nd~r the laws of the State of California that the foregoing is true and correct of my own

knowledge except as to matters stated on my information and belief, and as to those matters 1 believe it to be true.

Dated

- - - - _ .. ... -- ----~-------
City

DFEH-3QO-02 112/991

B:PI,D

DEPARTMENT OF FAIR EMPLO'(MENT AND HOUSING

CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee6611oof f7766

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~ • " PUBLIC ACCOMMODATION/RALPH/CIVil. CODE SECTIONS 51.5 Ii 54 i> * «

U 201112 H-0027-00-p

COMPLAINT PROVISIONS

Of Of

ImllSeCRCIAMLIINFOARtlNOINA

UNDER THE FAIR EMPUIYMEIllT

DFEH II

AND HtlUSllIIG ACT WHICH III!COllf'OIltlTES THE UNRUH CIVIL

RIGHTS /lCt, THE RALPH CIVIL IlIUlIlS ACT AND CIVil CODE Sl;ttlONS !itS AND 54

COMPLAINANt'S NAMt;.{SI (Jnuttttli:t.l MI', (jt MlI" i11ndlvldusU
DECOMo-SCHMITT, RODNEY ALI::XANb~R
At)Dt'!tss
'4G57iT9 YPairSadTisme D7riZvefP--------

'~---1'"r,"L;EPHr!NE NUMBER \iNCLUDE MIlA CODEI

coUNty

xxx·xxx-xxxx -----COONr-YCOD-E~

Tiburon, CA 94920

Marin

04 i

NAMED IS THE PERSON, aUSINESS ESTMiUSfiMEN'f, PUBLIC ACCOMMODATION OR OTHER ENTITY THAT

tJlSCRlM!NATW AGAINSi M~:

Law School Admissions Council, 1,,1'1':;.0:...("'L"'S""A"'C:L)_ _ _ _ _ __

AbOS!ESS

-

-

662 Penn Street

ClTYISTATEiZlP

coON.iY

Newtown, PA 18940

Out of State

000

'cAIJSEO"P OISCRtMINATloN BASED oN (CHECK APPROPRIATE aoxtJ::SH

d nACe

OSEX

JZ OlSA(;!lU'tY

n !1ELiGl0N

{j NA"nONAl OR!GIN/ANcr;StrW

t:1 SEXUAL QR.1F.NTAnON

o COLOR 0 AGE

t:I MARITAL STATUs

0 otHER ISPEcIFY)

bArE Most ~ECENi ot:! CONTiNU1NG D1SCA:1MtNAi!ON

~rEOF coWJ;iAWT---=

TOOK "LACE {month. d.y• .,<1 y""'1 October 25, 2010

Unruh

THE AARilctJLA'!isA:iilt;:

I. Most reoently on or about 10/25/10 I was denied rMsonable accommodation to take the LSAT ILaw

Schad! Admissions 'estl.

II. LSAC stated tMt the documentatioh submitted did not support that my condition limited a major life
O:lct'vity.
III. I balieva I was denied reasonable accommodmion ih tho form of add~lonal test taking time, which is necessary d\le to my disabilities (Leaming Disubility-Ii01lding ProceSSing Problem), which is a violatloll oj Government Code,. Section 129413. Tne Government Code incorporates Section 51of the Civil Code. My boliof is based ot! the foliowltlg:

A, On or about 9/2010 I advised tha Accommodated 'esling .eotlon of my ",,,dioal need lot
reastlnable accommodation. I ~Iso ~I'ovid~d suppcH'ting medica! documentation.

13. Most recently on or about 10/25/10 I was notlf;"d thllt my requested accommodation was being denied.

IV. I am making this complaint Oh behalf of myseff and all othel' disabled individuals who have baen, are
now, or willi" the ltltUt~ 00 ~ilt\ilarly aSStiHv"d.
jypsd arid rnn!iod tor Itlptta1'UrG tih Ot';wt.4M 13, 2D11,

DFEH-300-Q2 (12199)

B:~ND

DEPARTMENt o~ FAIR EMPLOYMENT AND I'IOUSING

900/Z00 'd 80LH

CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee6633oof f7766

CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee6644oof f7766

, '" PUBUG ACCOIVIMOOATIONIIUIIPH/CHm COIU SECTIONS lil,E & 5/1" , *
U 201112 H-0028-00-p

COMPUUNT OF 01SCRlMIfilATION UNDER THE

DI'EH II

Pl'mVISIONS OF THE C·AUFOHNIA FAIR EMPlOYMEMT

IU~O IWuSlrlG ACT WHIGH IN·GORPOIlATES THE UI~RU'H CIVIL

RIGHTS ACT, THE RALPH CIVIL RiGhTS ACT AND CIVIL CODE StCTtON;; 51.5 ANn [ilj

----------,----~~

14780 Fnrwell

S~atogar CA 9''507n

Santa Clan:!'

" "

,

,OB.5

i~1\I'llEOIS'TfiCp€RSON: BUSli~ESS 'Esi'JrIjCfs-fiMEWCI'UBliCiccCOMivlOOf510NOlf"OYfitfil'NTl1'Y'ffltit

DISCRIMINATED AGAINST ME:

2"15·968·1 ~O'! 000

I. Most reccntly on or lfbout 11 J201 0 i waS" denied reasonahle a:ccbn"lmodati'on to t8k(~ t'll8 LSAT iU,w School Adrriils-si(')I)::, Test}.

!1. No reason was f]ivc'f1 fr.:;r the pa-tt1:ai denial: of my fe2\'sol1abfe ac~GOITlrn-()d~Hion:.

HI', i beIi8v:~ ! was donied' reasoil8b,le aoco"tnmodatitin which is, rmc8ss8ioY d-tJG to my' dis.sbjli.tl~;s (Ttaufll:at!C Brain l!'1jur'Y and Dcpres-sian/Anx:fety Disorder), whidl is a vi'oll.1:UoP of G'ovcrnmEfnt COGe, Secrior1 '1' 2_::Y48. The Goverhnie-nt Code fncorpnrates S[:;c-t\on 5'1 of tho, Civil Code, r\lly be-lief i's based on- the funowing:';

/\, On Of a,bout "/l20iD or 81L010' I 3e)vis-sd the Accommodated Testing section of my rncdlca\' need for fU''i:l:3-0nabl'e accorntilod-~.rti-on. ! a-I-Go prov[-ded ,suppGicbng rhedJc;c:iI d-oGUniOnwtion,

B. Most re-c.ently on- or about; 11120'lO [. was not-Hie.d that part o'f nly f'(:')Cju8Stod (lccornmodal'ion was
boinq denied.-

iV. 1 am makin9 this c6mp!n-int on behai'f of mysel'f and ali other disabled indi'lkJueJs vvh,o- have been, CiJenoVJ, or will in, the future- bo sltn-il'arfy' aggri'evecL

1, dhchHtl, und&r

01' perjury tJnd(:)r rho Inw's of th:!J; SUl"i:r. ot

t,hat '\hG fOl'"8{j'Oll"1g 15 tr-tl'B and

01 in'l own

\\),l'owi(jdg'l~ n).((~0pt n!1 \0 !l1<llHH"s ~i:,-HfI,(j on- my lnf'orl"l'"1'tnl-oh and h~nnL "no B-S 10 thQSEl mat HiHl ): DGP&Vt) It t'O b:a 'tri.l{L

At

CiF-t:1+30.0-Q2 (1 I.'/S9}

8:PNO:

OEPARTi'!iENT Or FAIR l;.I'APLO'¥'MGl'.J'r- !d\JO HOusrNG

Of CAl.fFOm'iiA

CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee6655oof f7766

CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee6666oof f7766

* *" PUBLIC ACCOMMOf''''TION/RAlPH/CIVIL CODE SF',nm~s !lUi & 54 * * *

COMPLAINT OF DISCRIMINATiON UNDER THE

U 201112 H-0029-00-p DFEH It

PROVISIONS OF TilE CALIfORNIA FAIR EMPLOYMENT AIliO HOUSING ACT WHICH II\JCORPOIlATES THE UIIIRUH CIVil

BIGHTS ACT, THE RALPH CIVil RIGHTS ACT AND CIVil CODE SECTIONS 51.5 (,1110 54

COMPLAINANT'S i4AivlE(S) \indicate Mr. or Ms., if individuaO

COLLINS, I(EVIN M, (MR,)

AD ORE S5

--,------.~.-~--,,-,,-."

-~·-·----···--~--"----TELEPHc5N-ENUMBER (lNCLU D E AR!~:A-E6'I)fT--

23140 Victory Blvd,
-cl"r0s-1~rE7~----"-'-'-'

'"-~-"-"'''-'---~''COUNTY

818,$46-4200
- -"'--'co"ul~lTCOD(-'

Woodlond Hills, CA 91367

Los Anereles

037

[\JAM ED-iS THEPERSON, BUSINESsRTABLISHMENfpUB1Tc7i;c-COMMOOi\TiONOROfHER E[\JTIT(TH A1-----

DiSCRIMINATED AGAtMST ME:

Lew School Admlssions CounCil, Inc. (LSAC)
j~DDR'EsS-"---------·-------
662 Penn Street
c! ry;STATEizTI3------'-----

I ELEPHONE: NU1"'!3ER ((NCLUDE fl.fT'EA CODE)-
-===_ _______--=-2.:.1:::.5-.::.968·1 00 1

COUNTY

.-

COUNTY CODE

Newtown, PA 18940

"Ou-t o-f S-ta-te - ' - - - -

CAUSE OF DISCR!MINATION BASED ON (CHECK APPflOPRlATE BOXIESJ)

CJ 1:t;,<\,CE

OSEX

0" DISABILITY

o COLOR

0 AGE

0 MARITAL STATUS

---,,-"--------------- -

OAT.E MOST RECENT OR CONTINUING DISCRIMINATION

0 RELIGION

0 NATIONAL ORIGIN/ANCESTRY

d OTHER (SPECIFY~

---"=:- - -""".

000
o SEXUAL ORIENT!,TiON TYPE OF COMPLAI'N-T-=--'-

March 14, 2011

Unruh

L On or about 1/18111 and most recently on 3114/11 I was denied reasonable accommodation to toke the LSAT (Law School Admissions Test),

II. The denial on 1118/11 was allegedly due to insufficient documentatiDn, No reason was given for the partial denial of my requested reasonable accommodation on 3/14/1 '1.

!II. ! believe f was denied reasonable accOInmodation which is necessary due to my disabilities (Gifted Learning disability: Reading Disorder and Written Expression Disorder), which is a violation of Government Code, Section 12948, The Government Code incorporates Section 51 of the Civil Code, My belief is based on the following:

A, Beginning on or about '12/1 011 0 I advised the Accommodated Testing section of my medical need for reasonable accommodation. I also provided supporting medical documentation.

B, On or about 1/18/11 I was notified that my requested accommodation was not being granted even
thought I believe that all necessary supporting documentation had been submitted,

C, Most recently on 3/14/11 I was notified that part of my requested accommodation was being
denied.

iV, I am making this complaint on behalf of myself and all other disabled individuals who have been, are

now, or will in the future be similarly aggrieved,

~!.:_y.P€c! 8!:~;.na(\ed for slgnatu~~_2D.g..2~gt.~1~3.2~.._

_

1 deG~are under penalty of perjury under the laws 01 the State of California that the foregoing is true and correct of my own

knowledge except as to matto" stated on my informatwn a ' 2 a s to those matte,s I believe It to be trlle,

_~r d.:3 / Jj____ _~-~~1&fmr~ i~ ~I ~ Oe.ed
IWIII tlile) At

I ~ tc<>0.

~'\t-~ - ~

Cltv

DFEH-300-02112199)

B'PND

! DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING

~ COMPL 'l(d,['S SIITNATUI1E

jllq2'~'1 L1 k,r I _,__ ,_,____ DA12 FILED'

11'"
1....1..1!

f- & -~ I

"'-

~,

,_..J

I I
I

iJrPI Of r"IR diPLOYMENT &i$JOOlme qF CALi'ORI,IA

L""_,~~B5F!f:~.~,,lli.2:I~0~.IS!ffiGE ~,~J

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CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee6688oof f7766

* " " PUBLIC ACCOMMC ... ATION/RALPHfCIVIL CODE ~_~TIONS 51.5 & 54 *' ,

COMPLAINT OF D1SGRlMII1lATIIJN UNDER THE PROVISIONS OF THE CAllFORl1llA FAIR EMPLOYMENT

U 201112 H-0031-00-p DFEH It

AND HOUSING ACT WHICH INCORPORATES THE UNRUH CIVIL BIGHTS ACT, THE RALPH CIVil RIGHTS ACT AND CIVil CODE SECTIONS 51.5 AND 5~

COi\JIPl.A!NANT"S NAME{S) (indicate Mr_ Or Ms., if individuul)

lOAN, OTILIA (MS.)

5305 Harwood Road

xxx-xxx-xxxx

San Jose, CA 95124

Santa Clara

085

NA'MED IsTHE-P-ERS'ON, BUSINESS ESTABLISHMENT, PUBLICACCOMMOOtlTlON OR OTHER ENTITrfl·jAT--

DISCRIMH~ATED AGAINST ME:

Law So hoo I Ad missions._C=--o=--u=--nc:.c:,:i::.!'i..:I.:.:nc;:c.:,.---'.(=-LS.::c...A:..:C'c)_________Tn=======""'===,---

ADDRESS

TElEPHO(-JE NUMBER (if\IClUDE AREA CODE)

662 Penn Sveet C-1T'{fST ATE/Z'"IP;:;.:...::..::.:....----------------,C"'·O'"'UN""T""Y,---

215-968,1001
COUNTY CODE

~A~:t~·t:;~'C:~NA;I~N9~,~ED ON-ICHECK APPROPRIATE BOX[E~:Jt of StatEJ._.___._____________..:O:cO_~_. __..

o I~ACE

(ISEX

{)3 DiSABiLITY

0 RELIGION

II NATIOhlAl ORiGIN/ANCESTRY

---. i.J COLOR

0 AGE

~.---~-.--..

0 MARITAL STATUS

0 OTHER (SPECiFY)

----.---.-----..;:.,.~=""":="-

DATE MOST RECENT Of~ CONTINUING DISCRrMINATION

o SEXUAL OR!ENTATION
TYPE OF corvlPLAINT

November 17, 2010

Unruh

I. On or about 11/'17110 I was denied reasonable accommodmion to take the LSAT (Law School Admissions Testl.

II. No reason was given for denial of my reasonable accommodation.

III. I believe I was denied reasonable accommodation which is necessary due to my disability (Spinal Chord Injury--Quadriplegia), which is a violation of Govemment Code, Section 12948. The Government Code incorporates Section 51 of the Civil Code. My belief is based on the following:

A. On or about 8/2010 I advised the Accommodated Testing section of my medical need for reasonable accommodation. I also provided supporting medicat documentation.

B. On or about 11/17/10 I was notified that part of my requested accommodation was being denied.

IV. I am making this complaint on behalf of myself and all other disabled individuals who have been, are now, or will in tl)e future be similarly aggrieved.

! declare under penalty of perjury under the lows of the State of CaHfonlia that the foregoing is true and corroct of my own knowledge except as to matters stated on my information and belief, and as to those matterS 1 believe ft to be true.

COMbec3'mFd 10/ Dated -

.

2--~ -) -I-i ~-----

(j~
-----~ --~

W~~ ------

:5 ------ At~q I\" -L~___ -------- -'C£:C;;~~~;; S SIG , T' ::~~~6J!4N2~G~~J

DFEH-300-02 (121991

B:PND

DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING

DATE FILED

\ DEPT OF fAIR EMPLOYMENT &HOUSING BAKERSFIELD DISTRIC11li:~ffiIfE OF CAliFORNIA
------~-~--~---.----

CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee6699oof f7766

CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee7700oof f7766
* *' PUBLIC AGCOMMOUATIO~JIHAlPHICIVlt CanE SECTIONS 51,5 & 54 • * *
DFEH # _ U ~ 20_11_12_ _H_ -0_03:..2_-_0_~0__~"'

QUAN, ANDREW IMR.) {INCLUDEAAEA-CODEJ ADiJREs·i;--·------~~---·----~'---·---~--'-·-"'·-'·"·'-··"--·'·---·'--'l"F.CEPHONf.NuMeER

4023 Oak Manor COLlrt

XXX-XXkXXXX

. ClrYjsTATi07.!P----'·~-··--"··--"--·" "'~---"·~"-------··~:;OUNTy------------·,----coTiiffiCOoe---

_f:!!L~ald~A._l,454_2_______._ _ _ _i:;.!arne~_""_____________oo"Ooc1=_ _

NAMED IS THE PERSON, BUSINESS ESTABLISHMENT, PUBUC ACCOMMoDATION 01' OTHER ENTITY THAT

DISCRIMINATED AGAINST ME: ..,,' .. NAMtTs;-------'~"--·-----'·"-"-"--~----'·-··"-----·"'---~--.~-.-"

--,-------,--'"~--,,-'"

~Lasws8-ch,ool

Admissions

Council, Inc, {LSAC}
==-""'-="'-'=---------'T'BfiL'?iEI·"1HONr, NUMf.H:R.(INCI.UDE_'ARSA COOG]

662 Penn Str.eet

21:5·968.,,100.1

CITYI5.TATE1ZIP

COUN, y

SGt:N7Y CODE

NBwtovm r PA 18840
(:~J$I?ORiTScnIMij;iATioN EiASED-5N(cHEGK(;PP~

Out of St,iilt8 rJoxfij,sl-,_" __~_k"~

""~------..

000
"- ••- - - - . - - . -

DRACE

DSf.X

!2f DISAllll.lTY

0 f1El.IGiON

0 Ni\110I\lA'_ or~IGIN!ANc\:S'rrr(

9,.,~g~?5"_,.__SL6.~~_¥",o""c:'..!:::':.~£.I]:~~~§:Y;!~"__ 0 Cl'l:!HI ISP[~~I~L-"==~=-=.."."~",,,"".,,,=",==--=_

DATE' ",",OST RECFNT 01' a\NTl!~UING f)fSCGIMiFIATION

0 SEXUAL ORIFNTA nON
---==, '___=,,=.~
TYPE Of CC"I,pt.Alln

I

!. fAoSl rBoem!yr on or about 9113171 ! was denied {oi'lsoI18biB accommodBti'OI""l' to take the LSAr (Law
School Admbsions Test),

l(, No reeson was given for denial ot my request0d reasonable accomf'nodst\onr"
III. j believe I was denied reason<Jble i3(~r;ornmothtion in 'the form ot 8dditfonal test lakir.g time, which is necessary' due to my disabilities: (Hypotonia, Oyr;graphla, ADHD. Visual Processing Disorder, and bnck injury), which is a violation of GO'/ernrnent C-odc, S0ction 12948. The Govsrnm<'m'1' Cede i'l'lcorpOraies Section 51 of the Civil Code. My belief is b'8sed on the follo\·ving:

A. On or 'about 9/2011 I advis8d the I-\ccommodatcd TClstillg scction of J'ny lYledical nBed for r€rasonable $Gcornmoci2ffIOf1S. ! ':;l!se provided SlJppori'lng 1110(1\:-;81 dot:\Ji'nerrta!;,,!).

e, Most recf:)-ntiV on or aIJOt!! 9/1'3/11 i w;-;s :\otifiod that my requested accornrr1'Odat-'rons vverc be';ng denied.
IV, I am Making this compla'l!)t on b,{)half of myself Bnd all ether disabled individuais who (i8ve been, fire now, or wililn the future be .<;imilarl'l aggrieved.
Typed ~0d,.l)"]~£U2S!:!,e.0(\ture on O(;t{)b..tr_.?L3:9...u~_ _ _ _ _ _ _ _ _~_ _..__.~.~_____._ _ _ _ _ _..,_<"__~_,_..",__._,,_~..._ _ _ _ ,••_.,_ I dechlfa under pen~ty of pe)'jury unUM the taW's of tjt(l State of" California that the fQle90ing is trlJ€- and correct 01 Illy OWl' lwowledge nxr,ept os 10 maUers stated on my Informmi'ort j)nd belief, <Inc as to those mattMs I baUov(;l it to be true,

DefIed tIl".')-v-;"""i"'-

(.'I

City

DfEH·30C·02 {\ 1199)

B;PND

DEPARTMENT Of fAIR EMPLOYMENT AND HOUSiNG

COi'\J\PLAINANT'S SIGNfi:TURE/GUARDfAN, Ao LITEM

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E·""', 'X',' ' ","'1'," I"T'",""" 1'i """",~,.",; _"'~""""''H"",,.'""""~""""""B,,",i,,,,,, "'~ ' ,,',"," ,

, i}"

.:

':~

:~

,/,_,"~,""'"

,_

_',

'" '-ii"
,'_'d",

:. .'o,i,'

,:"

~

t"', ty(,,--
'~" "i'

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* * * PUBLIC ACCOMMm TIONIRAlPHfCIVIL CODE sr 'lIONS 51.5 & 54" * *

COMPlAINT OF DISCRIMINATION UNDER THE

U 201112 H-0035-00-p DFEH #

PROVISIONS OF THE CALIFORNIA fAIR EMPLOYMENT

MuD HOUSING Acr WHICH Jf\JCORPORATES THE Ul\JRUIl CIVil

fliGHTS ACT, THE RALPH CIVil RIGHTS ACT ANO CIVIL CODE SECTIOruS 51.5 AND 54

COMPLAINANT'S NAMc(S) \Indicate Mr, or 11/1S., if' individual)
WHITI'-lEY, AUSTIN (MR,)

1050 Miller Avenue

xxx-xxx-xxxx

Berkeley, CA 94708

Alameda

001

I~A'NiEDTsTHEPERSOr\rBTrsiNESS~ESfABCfsWM ENT, -fUSLlC"ACCOMfv'lODA TlON O'ffOTHEF{ ENTITY THAT~-'-­

DISCRIMINATED AGAINST ME:

CiTYlST ATE/ZIP

COUNTY

Newtown, PA 18940

Out of State

- - - - _ . _ - .0'.0•'0._----_..

CAUSE OF DfSCRllvHNATION BASED ON (CHECK APPROPRIATE BQX[ES]I

[J nAeE:

OSEX

&'I DISABIUTY

0 RELlG!ON

0 NATIONAL ORIGiN/ANCESTHY

o SEXUAL ORiENTA.1'ION

o COLOR

0 AGE

0 MARITAL STATUS

DOH.,EH (SPECiFY)

-."==~'.",,"

DATE MOST RECENT OR CONTINUING DISCFl.IMINATION

TYPE OF COMPLAINT

TOO K PLACE (month, day, and year)
~-,'-"-~-----------,
THE PARTiCULARS ARE:

September 2 'I, ._2_0_1_1_ __

- - . - ".. Unruh -."".----,.-.-~--.-."

I. On or about 9/21/11 I was denied reasonable accommodation to take the LSAT !Law School

Admissions Test}.

11. No reason was given for denial of my reasol'lijb!e accommodation.

III. I believe I was denied reasonable accommodation in which is necessary due to my disabilities (Spinal Chord Injury-·paraplogia, chronic/neuropathic pain)' which is a violation of Government Code, Section 12948. The Government Code incorporates Section 51 of the Civil Code, My belief is based on the following:

A, On or about 8/28/1 'I I advised the Accommodated Testing section of my medical need for
reasonable accommodation. 1 also provided supporting medical documentation.

B. On or about 9/21/11 I was notified that part of my requested accommodation was being denied.

IV, I am making this complaint on behalf of myself and all other disabled individuals who have been, are
now, or will in the future be similarly aggrieved.
Typed and n:!.~i!ed ~""?Ji1nat.\}.r~~~ctober 28..;'E~_.,._._ _ _ _ _ _. _ _._,_,,_._ _,_ _ _ _._~.._"_ _ _ _ _ _ _ _ _ _",_ __ ! declare under ptma!ty of perjury under the laws of the State of CaHforn!a that the foregOIng is true and correct of' my own knowledge except as to matters stated on my information and belief, and as to those matters I believe tt to be true,

Di:l'ted At

DFFH-300-02 (12199)

B:PND

OEPARTMENT OF FAIR EMPLOYMENT AND HOUSING

DATE FILED:

CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee7733oof f7766

·' . X'·",f;""..H.... ·· 'T"-'". ·"I·"B.,., ".I'. w"'•.•...'.

}p'

-,

.,d':

1~_8."J'."

E~".=.~,::"'~, =.,·t:"' ...."'::·'.,,:..,.~ ..•,c. . .if .,•. ,..•• "

••,'.}!:

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* * * P·UBUC ACCOMMOL.•TIONfRAlPHIClVll GOOE Sf ilONS 51.5 & 54 * * •.

COMPLAINT OF DISCRIMINATION UNDER THE

DFEH II U 201I12 fl-0033-00-p

PROVISIONS OF THE CAUFORIUIA FAIR EMPlOYMEIUT

AND HOUSING ACT WHICH INCORPORATES THE UNRUH CIVil

RIGHTS ACT, THE RALPH CIVIL RIGHTS ACT AND CIVil CODE SECTIONS 51.5 AND 54

COMPLAINANT'S NAME(S) (indicate Mr, or Ms" if individual)
VI ELBAUM, KEVIN IMR.)

812 Foothill Drive

xxx·xxx-xxxx

San Mateo, CA 94402

San Mateo

081

~jAM£TlIS THE PER-SON, BUSINESSESTABLISHMEfH,PUSlicIcc'OMMODATION OR OTHER ENTITTfHf\T~'-­

DISCRIMINATED AGAINST ME:

Law School Admissions Council, Inc. (LS-A-C-)-'----

CTi'Y 1ST ATE/ZIP

Newtown, PA 18940 C7\'lJSE-Oi::Dis'CRlMINA TION BASED ON (CHECK APPHOPRIATE- BOX!ES))

000
-"-~'~----"-----.----------------

DRACE

OSEX

0 DISA81L!TY

0 RELIGION

0 NATiOhJAL Of';fGIN/ANCr:.STRY

o COLOR
-I)ATC MOST

CAGE RECENT" OR

C

O

0 MARITAL STATUS NT!NU!NG"61sC'R1MIN

0 OTHER "AT!ON-------

'

(SPEC:!FcY.)..:~~~

o SEXUAL ORIENTATION
TYPE OF COMPLAINT

2.:?_~~~:ACE imonlh, day, and year) _,,_~ay 12~~___",~_".______
THE PART1CULARS ARE~

------Unruh- - - - - - -

I. Most recently on or about 5112111 I was denied reasonable accommodation to take the LSAT (Law

School Admissions Testl.

II. No adequate reason was given for denial of my reasonable accommodation.

III. I believe I was denied reasonable accommodation which is necessary dVe to my disabilities (DyslexiaLearning Disabilities), which is a violation of Government Code, Section 12948. The Government Code incorporates Section 51 of the Civil Code. My belief is based on the following:

A. On or about March 2011 I advised the Accommodated Testing section of my medical n8ed for reasonable accommodation. I also provided supporting medical documentation.

B. On or about 4/28111 my initial request for accommodation was denied in total. Most recently on or about 5112111 I was notified that part of my requested accommodation was being denied.

IV. I am making this complaint on behalf of myself and ali other disabled individuals who have been, are
now, or will in the future be similarly aggrieved. T'IPB~"D.~i~(U"S~~'!!.8~ture_?~r:LtJQv~..PJ:~?011 < I declare under penalty of perjury under the laws of the State oi California that the foregoing is true and correct of my own
knowledge exce-pt as to matters stated on my information and belief, and as to those- matters I believe it to be tru~.

l\J\o~"-.-c---.,-C--A--'"-'---
City

DFEH"300-02 112/99)

B,PND

DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING

CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee7755oof f7766

CCaassee33:1:122-c-cvv-0-011883300-E-EMMCC DDooccuummeennt1t11286-2 FFileiledd0033/2/172/1/133 PPaaggee7766oof f7766

1 CASE NAME: 2
CASE NOS.: 3 4' 5 6

DFEH v. Law School Admission Coun.ciL Inc. (Austin Whitney, et aL, Complainants)
U-201112-H-0021-00-p, U·201112-H-0008·QQ-p, U-201112-H-()029-00-p, V·201112·H-0027-00-p, U-lOOn O-Q·0003-00-p, U-201112-H.0018-00·jl, U-201112-H-0028-00-p, U-201 J12-H-0014-00-p, V-20ll 12-H-0013-00-p, U-2011J2-H-0031-00-p, U-20.1 H2·H-0007·00-)l, U-200910·G-OO n·oo-p, U-20 Il12-H-0032-00-p, U-201112-H-0025-00-p, U-201112-H-0023-00-p, U-201112-H-0033-00-n, and U·201112·H·0035-00-p

7

RESPONDENT'S NOTICE OF 'fRANSFER OF PROCEEDlNGS TO COURT

8

I am a Respondent in this matter. Telect to (nmsfer this proceeding to C0U11 in lieu of a

9 hearing before the Fair Employment and Housing Commission, pursuant to Government Code

10
section 12965, subdivision (0)(1).

11 Dated 62-2lX:.L;;;L
12

~1<le~_d ::)_ __

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~e1ponden '/Representativels Signature J

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Telephone number of Respondent, or if

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represented., telephone number of Representative

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*(;OVRl Pf,Poil
f,'~"'O{C.H!=i. $tJ 1TJ R.v, 3,% r~""'j A"I".~~H,I

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Inc. ---;D"'F"'EihLaw-S~<}100r Ad!nis;r;)~-Cow~i7,

(Whitr;e'y",et;~C ·c__• _ _•_ _•••_ _

Statement to Respondent; Notice ofJmpending Hearing; and Noti<"',e to Transfer Proceedings to Court

 
 Case3:12-cv-01830-EMC Document164-1 Filed09/27/13 Page4 of 85

1 JON M. ICHINAGA (#137290) Chief Counsel
2 R. SYBIL VILLANUEVA (#205399) Associate Chief Counsel
3 Sybil.Villanueva@dfeh.ca.gov PHOEBE P. LIU (#210829)
4 Senior Staff Counsel Phoebe.liu@dfeh.ca.gov
5 MARIMAYEDA(#ll0947)
Associate Chief Counsel 6 Mari.mayeda@dfeh.ca.gov
DEPARTMENT OF FAIR EMPLOYMENT 7 AND HOUSING
2218 Kausen Drive, Suite 100 8 Elk Grove, CA 95758
Telephone: (213) 439-6799
9 Fax: (888) 382-5293

10 Attorneys for the DFEH

11
IN THE UNITED STATES DISTRICT COURT
12
FOR THE NORTHERN DISTRICT OF CALIFORNIA 13

14

THE DEPARTivfENT OF FAIR E~vfPLOY~v1ENT) Case No. CV 12-1830-E~1C

15 AND HOUSING, an agency of the State of

)

California,
16

) ) THIRD AMENDED COMPLAINT

Plaintiff,) SEEKING GROUP OR CLASS RELIEF,

17

) IN THE ALTERNATIVE GROUP AND

18

vs.

) CLASS ACTION COMPLAINT FOR

) DAMAGES AND INJUNCTIVE RELIEF

19

LAW SCHOOL ADMISSION COUNCIL, INC., ) [FEHA, Cal. Gov. Code§ 12900 et seq. and

a Delaware tax exempt corporation,

) Unruh Civil Rights Act, Cal. Civ. Code § 51

20

) et seq.]

21 _______________________D_e_fe_n_d_an_t.))

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COURT PAPER State of Ca!!fornia Std. 113 Rov. 3-95 FE&H Automated

-1-
Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whitney et al.) Third Amended Complaint Seeking Group or Class Relief, In the Alternative Group and Class Action Complaint for
Damages and Injunctive Relief

Case3:12-cv-01830-EMC Document164-1 Filed09/27/13 Page5 of 85

1

) Jury Trial Demanded

JOHN DOE, JANE DOE, PETER ROE,

)

2 RAYMOND BANKS, KEVIN COLLINS,

)

RODNEY DECOMO-SCHMITT, ELIZABETH )

3 HENNESSEY-SEVERSON, OTILIA lOAN, )

ALEX JOHNSON, NICHOLAS JONES,

)

4 CAROLINE LEE, ANDREW QUAN, STEPHEN)

SEMOS, GAZELLE TALESHPOUR, KEVIN )

5 VIELBAUM, AUSTIN WHITNEY, and all other )

similarly situated individuals,

)

6

Real Parties in Interest.~

7 )

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)
___________________________)

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COURT PAPER State of California Std. 113 Rev. 3·95 FE&H Automated

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Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whitney et al.) Third Amended Complaint Seeking Group or Class Relief, In the Alternative Group and Class Action Complaint for
Damages and Injunctive Relief

Case3:12-cv-01830-EMC Document164-1 Filed09/27/13 Page6 of 85

1

Plaintiff DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING (Department or

2 DFEH) alleges the following against defendant LAW SCHOOL ADMISSION COUNCIL, INC.

3 (LSAC), a Delaware tax exempt corporation:

4

PARTIES

5

I. DFEH is the state agency charged with enforcing the right of all Californians under

6 the Unruh Civil Rights Act (Unruh Act) (Cal. Civ. Code§§ 51 et seq.) "to the full and equal

7 accommodations, advantages, facilities, privileges, or services in all business establishments of every

8 kind whatsoever." Cal. Civ. Code§ 51 (a) (West 2013). Government Code section 12948 makes a

9 violation of the Unruh Act a violation of the Fair Housing and Employment Act (FEHA) Cal. Gov't

10 Code§§ 12900 et seq. (West 2013). The FEHA empowers the DFEH to investigate and prosecute

11 Unruh Act claims within the state, including those that adversely affect, in a similar manner, a group

12 or class. Cal. Gov't Code§§ 12961, 12965. The Government Code authotizes DFEH to prosecute

13 actions in state and federal court. Cal. Gov't Code §§ 12930(h), 11180.

14

A. Califomia's public policy against discrimination on the basis of disability is

15

"substantial and fundamental." City ofMoomark v. Super. Ct. of Ventura

16

Cnty., 18 Cal. 4th 1143, 1161 (1998); see also Cal. Civ. Code§ 51 ("All

17

persons within the jurisdiction of this state are free and equal, and no matter

18

their ... disability, medical condition ... are entitled to the full and equal

19

accommodations ... or services in all business establishments of every kind

20

whatsoever"); Cal. Gov't Code § 12920 ("It is hereby declared as the public

21

policy of this state that it is necessary to protect and safeguard the right and

22

opportunity of all persons to seek, obtain, and hold employment without

23

discrimination or abridgement on account of ... physical disability [or] mental

24

disability[.]"); Cal. Gov't Code §12921 9 ("The opportunity to seek, obtain an

25

hold employment without discrimination because of ... physical disability [or]

26

mental disability ... is hereby recognized as and declared to be a civil right.").

27
®
COURT PAPER State of California Std. 113 Rev. 3-95 FE&H Automated

-3-
Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whitney et al.) Third Amended Complaint Seeking Group or Class Relief, In the Alternative Group and Class Action Complaint for
Damages and Inirn1ctive Relief

Case3:12-cv-01830-EMC Document164-1 Filed09/27/13 Page7 of 85

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COURT PAPER State of California Std. 113 Rev. 3·95 FE&H Automated

Similarly, the ADA provides a mandate for "the elimination of bias against individuals with disabilities.") 42 U.S.C. § 12101.
B. DFEH commenced this suit as an exercise of the police power, based on its
determination that defendant, Law School Admission Council (LSAC) engaged in discrimination on tbe basis of disability. C. DFEH acts as a public prosecutor testing a public right. The interest ofDFEH in tbe law school admissions process was articulately summarized by the United States Supreme Court:
In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals .... All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training. As we have recognized, law schools "cannot be effective in isolation from the individuals and institutions with which the law interacts." Access to legal education (and thus the legal profession) must be inclusive of [all] talented and qualified individuals ... so that all members of our heterogeneous society may participate in the educational institutions that provide the training and education necessary to succeed in America. Grutter v. Bollinger, 539 U.S. 306, 333 (citations omitted). D. The LSAT is required for admission to any ABA accredited law school. The State of California, through the DFEH, has an interest in ensuring that gateways to education and employment are open to individuals with disabilities. The State of California also has an interest in eliminating bias and enhancing diversity in the legal profession, and in furtherance of this interest, the testing process for entry into law school should not be an obstacle to the
-4Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whitney eta!.) Third Amended Complaint Seeking Group or Class Relief, In the Alternative Group and Class Action Complaint for
Dan1ages and Injunctive Relief

Case3:12-cv-01830-EMC Document164-1 Filed09/27/13 Page8 of 85

1

full and equal participation of individuals with disabilities in the legal

2

profession. Ensuring that law school admissions reflect the diversity of our

3

society not only affects students with disabilities, but also their would-be

4

classmates who benefit from the presence of those perspectives in the

5

classroom. The legal profession as a whole, and the society which it serves,

6

stands to be negatively affected by practices that result in the unfair exclusion

7

of individuals with disabilities.

8

9

2. Each real party in interest, John Doe, Jane Doe, Peter Roe, Raymond Banks, Kevin

10 Collins, Rodney Decomo-Schmitt, Elizabeth Hennessey-Severson, Otilia Ioan, Alex Johnson,

11 Nicholas Jones, Caroline Lee, Andrew Quan, Stephen Semos, Gazelle Taleshpour, Kevin Vielbaum, 12 and Austin Whitney, applied to LSAC for testing accommodations 1 on the Law School Admissions

13 Test (LSAT) between January 19, 2009 and the present. Each real party was denied a testing

14 accommodation, either in whole or in part, within this same time frame. At the time of applying for

15 testing accommodations, each real party resided in California.

16

3. Real parties in interest John Doe, Jane Doe, and Peter Roe wish to participate in this

17 litigation anonymously. Each real party seeks to retain their privacy interest in the details of their

18 disability and need for testing accommodation. Each of these real parties has expressed a legitimate

19 fear of negative professional ramifications should their true names be associated with this litigation.

20 A motion requesting the court's permission to proceed under fictitious names for these two real

21 parties is filed concurrently with this complaint.

22

23

24

25
26
27
COURT PAPER Stat<~ of California Std. 113 Rev. 3·95 FE&H Automated

1 The Third Amended Complaint substitutes the common term 'testing accommodation' for the technical phrase 'modification, accommodation, or auxiliary aid or service.' Both terms denote those modifications, accommodations, or auxiliary aids or services that a testing entity must provide in order to make an examination accessible to people with disabilities under the ADA. 42 U.S.C. §
12189; 28 u.s.c. § 36.309.
-5-

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Third Amended Complaint Seeking Group or Class Relief, In the Alternative Group and Class Action Complaint for

Damages and Injunctive Relief

Case3:12-cv-01830-EMC Document164-1 Filed09/27/13 Page9 of 85

1

4. At all times relevant to this complaint, LSAC was a business establishment as defined

2 by Civil Code section 51, subdivision (b). LSAC offers and administers its LSAT at multiple

3 locations in the State of California several times a year.

4

GROUP RELIEF ALLEGATIONS

5

5. The DFEH brings this case on behalf of a group of 16 named individuals.

6

CLASS RELIEF AND IN THE ALTERNATIVE CLASS ACTION ALLEGATIONS

7

6. Class Definition: The DFEH may bring a government enforcement action for group

8 or class relief without meeting the requirements for class certification. The DFEH brings this case for

9 class wide relief and in the alternative as a class action, on behalf of: all disabled individuals in the

10 State ofCalifornia who requested a testing accommodation for the Law School Admission Test

11 (LSAT) from January 19, 2009 to the present. The DFEH alleges that everyone within this class was

12 subjected to LSAC's unlawful policies, patterns, or practices of discouraging requests for testing

13 accommodation, requiring excessive documentation, and requesting unlawful information about

14 mitigation measures. Within this class is a subclass of people who took the LSAT with the condition

15 of extended time and were thereafter subjected to unlawful policies or practices of discriminatory

16 treatment and retaliation because of this testing accommodation. These two classes are defined as

17 follows:

18

a. Unlawful Discouragement and Consideration of Mitigation Measures: All

19 disabled individuals in the State of California who requested a testing accommodation for the LSAT

20 from January 19, 2009 to the present.

21

b. Differential Treatment and Retaliation Against Examinees Granted Extended

22 Time: All disabled individuals in the State of California who took the LSAT with the testing

23 accommodation of extra time from January 19, 2009 to the present.

24

7. Class Representative: The DFEH may bring a government enforcement action

25 seeking relief for a group or class of persons without being cetiified as the class representative. In th

26 alternative, this lawsuit meets the criteria for class certification. The Director of the DFEH, with the

27
®
COURT PAPER State of California Std.113 Rev. 3-95 FE&H Automated

assistance of the 16 named real parties in interest, will fairly and adequately represent the class.
-6-
Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whitney et al.) Jhird Amended Complaint Seeking Group or Class Relief, In the Alternative Group and Class Action Complaint for
Damages and Injunctive Relief

Case3:12-cv-01830-EMC Document164-1 Filed09/27/13 Page10 of 85

1

8. Manageability: The DFEH may bring a govemment enforcement action seeking relie

2 for a group or class of persons without meeting the requirements for class certification. In the

3 altemative, class treatment of this dispute would save time and money by bringing all like claims

4 before this court. For LSAC policies that affect a large group of applicants in a similar fashion, such

5 as subjecting applicants to unlawful inquiries and flagging certain scores, treatment as a class is a

6 superior method of adjudication, as compared to multiple individual suits where each plaintiff would

7 allege an identical harm. Class treatment would neatly aggregate these claims, preventing duplicative

8 litigation and potential inconsistencies in the ultimate findings.

9

9. Numerosity: The DFEH may bring a government enforcement action without meeting

10 the requirements for class certification. In the altemative, the class is estimated to include hundreds o

11 LSAT applicants. It would be impracticable to join each of these applicants who requested testing

12 accommodation during the three-year time frame and to bring them individually before the court for

13 adjudication. The members of this class are fully ascertainable and there exists a probability that the

14 individual members will ultimately be available to come forward to prove their separate damage-

15 related claims to a p01iion of the total class recovery, if any.

16

10. Commonality: The DFEH may bring a government enforcement action without

17 meeting the requirements for class certification. In the altemative, there exists for the class a well-

18 defined community of interest such that common questions of both law and fact predominate over

19 individual interests or claims.

20

11. Typicality: The DFEH may bring a government enforcement action without meeting

21 the requirements for class certification. In the alternative, class claims raised by the real parties in

22 interest are typical of those held by other members of the class. Each applicant for testing

23 accommodation was subject to an unlawful inquiry about mitigation measures, and each test-taker,

24 who was granted extra time, had his or her test score segregated and flagged.

25

12. Adequacy of Representation: The DFEH may bring a govemment enforcement

26 action without meeting the requirements for class certification. In the alternative, with the assistance

27
®
COURT PAPER State of California Std. 113 R•w. 3·95 FE&H Automated

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Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whitney et aL) Third Amended Complaint Seeking Group or Class Relief, In the Alternative Group and Class Action Complaint for
Damages and Injunctive Relief

Case3:12-cv-01830-EMC Document164-1 Filed09/27/13 Page11 of 85

1 of the real parties in interest, the DEFH will fairly and adequately represent the interests of all

2 members of the class in the adjudication of their similar legal claims.

3

JURISDICTION AND VENUE

4

13. The DFEH realleges and incorporates by reference each and every allegation

5 contained in paragraphs I through 12, inclusive, as if fully set forth herein.

6

14. This action arises under the FEHA, specifically Government Code section 12948,

7 which incorporates the Unruh Act into the enforcement structure of the FEHA, giving the DFEH

8 jurisdiction over Unruh Act violations occun·ing within the state. By virtue of its incorporation into

9 the Unruh Act, a violation of the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. §§

10 12101 et seq.) also constitutes a violation of the Unruh Act. Cal. Civ. Code§ 51(f).

11

15. At all times relevant to this complaint, LSAC was a business establishment as defined

12 by Civil Code section 51, subdivision (b). LSAC offers and administers its LSAT at multiple

13 locations in the State of California several times a year.

14

16. At all times relevant to this complaint, real parties in interest John Doe, Jane Doe,

15 Peter Roe, Raymond Banks, Kevin Collins, Rodney Decomo-Schmitt, Elizabeth Hennessey-

16 Severson, Otilia loan, Alex Johnson, Nicholas Jones, Caroline Lee, Andrew Quan, Stephen Semos,

17 Gazelle Taleshpour, Kevin Vielbanm, Austin Whitney, and all other similarly situated individuals,

18 were "persons" within the meaning of Government Code section 12925, subdivision (d), and Civil

19 Code section 51, subdivision (b).

20

17. On May 9, 2010, Jane Doe filed a verified complaint of discrimination in writing with

21 the Department pursuant to Government Code section 12960, alleging that LSAC unlawfully denied

22 her full and equal access to the LSAT within the preceding one year, in violation of the FEHA and

23 Unruh Act. A redacted copy of this complaint is attached hereto as Exhibit 1.

24

18. On January 12, 2010, Nicholas Jones filed a verified complaint of discrimination in

25 writing with the Department pursuant to Government Code section 12960, alleging that LSAC

26 unlawfully denied him full and equal access to the LSAT within the preceding one year, in violation

27
@
COURT PAPER State of California Std. 113 Rev. 3-95 fE&H Automated

-8-
Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whitney et al.) Third Amended Complaint Seeking Group or Class Relief, In the Alternative Group and Class Action Complaint for
Damages and Injunctive Relief

Case3:12-cv-01830-EMC Document164-1 Filed09/27/13 Page12 of 85

1 of the FEHA and Unruh Act. A true and con·ect copy of this complaint is attached hereto as Exhibit 2 2.

3

!9. After receiving the complaints of Jane Doe and Mr. Jones, and beginning an

4 investigation into their allegations, the Department came to believe that LSAC's policies and

5 practices toward disabled applicants requesting testing accommodation were affecting a larger group

6 or class of applicants in a similar manner.

7

20. On July 22, 20 I 0, the Department issued a document entitled "Notice of Class Action

8 Complaint and Director's Complaint" describing the affected group or class as "all disabled

9 individuals in the State of California who have or will request a testing accommodation for the Law

10 School Admission Test (LSAT), administered by the LSAC, and who have or will be unlawfully

11 denied such request from January 19,2009 to the conclusion of the Department's investigation of this

12 complaint." A redacted copy of this complaint is attached hereto as Exhibit 3.

13

21. During its investigation of the class action and Director's complaint, the DFEH

14 propounded administrative discovery to determine whether other people had been banned by LSAC' s

15 discriminatory practices within the state. The DFEH's efforts to obtain this information from

16 defendant included the filing of a superior court petition to compel LSAC to respond to its discovery

17 requests. Although Government Code section 12960, subdivision (d), provides that the DFEH has

18 one year from the date of the filing of its complaint until the filing of its accusation, this time is

19 extended by the pendency of a court action to enforce administrative discovery. CaL Gov't Code §

20 12963.5(£). Therefore, this action is timely filed.

21

22. With the court's assistance, the DFEH was able to discover and notify other persons

22 who were hanned by defendant's discriminatory practices, to wit:

23

A. While applicants with disabilities may seek testing accommodations on the LSAT,

24

LSAT's policies, practices or procedures impose restrictions that are inconsistent

25

with the ADA, FEHA and Unruh;

26

27
*COURT PAPER
State of California Std. 113 Rev. 3·95 FE&H Automated

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Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whitney eta!.) Third Amended Complaint Seeking Group or Class Relief, In the Altemative Group and Class Action Complaint for
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Case3:12-cv-01830-EMC Document164-1 Filed09/27/13 Page13 of 85

1

B. Under LSAC's policies, practices or procedures, applicants with disabilities must

2

complete and submit an extensive portfolio of current and historical materials

3

including medical and/or psychological documentation by a stated deadline;

4

C. Depending on the applicant's disability, individuals are also required to complete

5

additional forms and medical reports. Then, even after so doing, LSAC requires

6

even further additional documentation or medical reports.

7

D. LSAC's burdensome documentation requests "may cost [a test taker] over $3,000,

8

a cost that bars low-income individuals from access." Assembly Third Reading,

9

AB 2122 (2011-2012);

10

E. LSAC's policies or practices are so burdensome that some applicants have had to

11

secure legal counsel in pursuit of their testing accommodation request;

12

F. When LSAC grants applicants the testing accommodation of extended time, it

13

specially marks or "flags" the test scores as having been taken under non-standard

14

conditions and advises law schools to "[c]arefully evaluate LSAT scores earned

15

under accommodated or nonstandard conditions." See LSAC's Cautionary Policies

16

Concerning LSAT Scores and Related Services (Rev. 2005). LSAC segregates all

17

such test scores so that when it submits scores to law schools, it does not report a

18

percentile ranking for those applicants.

19 Some of the people harmed by LSAC's policies or practices elected to file individual complaints as

20 follows.

21

23. On August 29, 2011, Alex Johnson filed a verified complaint of discrimination in

22 writing with the Department pursuant to Government Code section 12960, alleging that LSAC

23 unlawfully denied him full and equal access to the LSAT within the preceding one year, in violation

24 of the FEHA and Unruh Act. A true and correct copy of this complaint is attached hereto as Exhibit

25 4.

26

24. On August 31, 2011, John Doe filed a verified complaint of discrimination in writing

27 with the Department pursuant to Government Code section 12960, alleging that LSAC unlawfully

COURT PAPER state of California Std. 113 Rev. 3-95
FE&H Automated

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---------Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whitney eta!.)
Third Amended Complaint Seeking Group or Class Relief, In the Alternative Group and Class Action Complaint for Damages and Injunctive Relief

Case3:12-cv-01830-EMC Document164-1 Filed09/27/13 Page14 of 85

1 denied him full and equal access to the LSAT within the preceding one year, in violation of the

2 FEHA and Unruh Act. A redacted copy of this complaint is attached hereto as Exhibit 5.

3

25. On September 26, 2011, Elizabeth Hennessey-Severson filed a verified complaint of

4 discrimination in writing with the Department pursuant to Government Code section 12960, alleging

5 that LSAC unlawfully denied her full and equal access to the LSAT within the preceding one year, in

6 violation of the FEHA and Unruh Act. A true and correct copy of this complaint is attached hereto as

7 Exhibit 6.

8

26. On October 3, 2011, Caroline Lee filed a verified complaint of discrimination in

9 writing with the Department pursuant to Government Code section 12960, alleging that LSAC

10 unlawfully denied her full and equal access to the LSAT within the preceding one year, in violation

11 of the FEHA and Unruh Act. A true and correct copy of this complaint is attached hereto as Exhibit

12 7.

13

27. On October 6, 2011, Raymond Banks filed a verified complaint of discrimination in

14 writing with the Department pursuant to Government Code section 12960, alleging that LSAC

15 unlawfully denied him full and equal access to the LSAT within the preceding one year, in violation

16 of the FEHA and Unruh Act. A true and correct copy of this complaint is attached hereto as Exhibit

17 8.

18

28. On October 7, 2011, Gazelle Taleshpour filed a verified complaint of discrimination i

19 writing with the Department pursuant to Government Code section 12960, alleging that LSAC

20 unlawfully denied her full and equal access to the LSAT within the preceding one year, in violation

21 of the FEHA and Unruh Act. A true and correct copy of this complaint is attached hereto as Exhibit

22 9.

23

29. On October 11, 2011, Peter Roe filed a verified complaint of discrimination in writing

24 with the Department pursuant to Government Code section 12960, alleging that LSAC unlawfully

25 denied him full and equal access to the LSAT within the preceding one year, in violation of the

26 FEHA and Unruh Act. A redacted copy of this complaint is attached hereto as Exhibit 10.

27
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COURT PAPER State of California Std. 113 Rev. 3·95 FE&H Automated

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Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whitney et aL) Third Amended Complaint Seeking Group or Class Relief, In the Alternative Group and Class Action Complaint for
Damages and Injunctive Relief

Case3:12-cv-01830-EMC Document164-1 Filed09/27/13 Page15 of 85

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30. On October II, 2011, Stephen Semos filed a verified complaint of discrimination in

2 writing with the Department pursuant to Government Code section12960, alleging that LSAC

3 unlawfully denied him full and equal access to the LSAT within the preceding one year, in violation

4 of the FEHA and Unruh Act. A true and correct copy of this complaint is attached hereto as Exhibit

5 11.

6

31. On October 14, 2011, Rodney DeComo-Schmitt filed a verified complaint of

7 discrimination in writing with the Department pursuant to Government Code section 12960, alleging

8 that LSAC unlawfully denied him full and equal access to the LSAT within the preceding one year,

9 in violation of the FEHA and Unruh Act. A true and correct copy of this complaint is attached hereto

10 as Exhibit 12.

11

32. On October 17, 2011, Andrew Grossman filed a verified complaint of discrimination

12 in writing with the Department pursuant to Govemment Code section 12960, alleging that LSAC

13 unlawfully denied him full and equal access to the LSAT within the preceding one year, in violation

14 of the FEHA and Unruh Act. A true and correct copy of this complaint is attached hereto as Exhibit

15 13. Andrew Grossman directly entered into a settlement agreement with LSAC. The DFEH is not a

16 party to the settlement agreement between Andrew Grossman and LSAC.

17

33. On October 19, 2011, Kevin Collins filed a verified complaint of discrimination in

18 writing with the Department pursuant to Government Code section 12960, alleging that LSAC

19 unlawfully denied him full and equal access to the LSAT within the preceding one year, in violation

20 of the FEHA and Unruh Act. A true and correct copy of this complaint is attached hereto as Exhibit

21 14.

22

34. On October 24, 2011, Otilia loan filed a verified complaint of discrimination in

23 writing with the Department pursuant to Government Code section 12960, alleging that LSAC

24 unlawfully denied her full and equal access to the LSAT within the preceding one year, in violation

25 of the FEHA and Unruh Act. A true and conect copy of this complaint is attached hereto as Exhibit

26 15.

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1

35. On October 28, 2011, Andrew Quan filed a verified complaint of discrimination in

2 writing with the Department pursuant to Government Code section 12960, alleging that LSAC

3 unlawfully denied him full and equal access to the LSAT within the preceding one year, in violation

4 of the FEHA and Unruh Act. A true and correct copy of this complaint is attached hereto as Exhibit

5 16.

6

36. On October 28, 2011, Austin Whitney filed a verified complaint of discrimination in

7 writing with the Department pursuant to Government Code section 12960, alleging that LSAC

8 unlawfully denied him full and equal access to the LSAT within the preceding one year, in violation

9 of the FEHA and Unruh Act. A true and correct copy of this complaint is attached hereto as Exhibit

10 17.

11

37. On November 7, 201 I, Kevin Vielbaum filed a verified complaint of discrimination in

12 writing with the Department pursuant to Government Code section 12960, alleging that LSAC

13 unlawfully denied him full and equal access to the LSAT within the preceding one year, in violation

14 of the FEHA and Unruh Act. A true and correct copy of this complaint is attached hereto as Exhibit

15 18.

16

38. On February 6, 2012, the DFEH issued a Group and Class Accusation before the

17 California Fair Employment and Housing Commission (Commission), charging LSAC with

18 violations of the Unruh Act. The Group and Class Accusation was properly served on LSAC by

19 certified mail.

20

39. On February 17, 2012, the DFEH issued a First Amended Group and Class Accusation

21 before the Commission. This accusation was properly served on the LSAC by certified mail.

22

40. Pursuant to Government Code section 12965, subdivision (c)(1), LSAC elected to

23 have this dispute heard in civil court in lieu of a hearing before the Commission, and so notified the

24 Department in writing, on or about February 22,2012. A true and correct copy of"Respondent's

25 Notice of Transfer of Proceedings to Court" is attached hereto as Exhibit 19.

26

41. The Department has withdrawn its accusation and timely filed a civil complaint in

27
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Alameda County Superior Court pursuant to Government Code section 12965, subdivision (c)(2).
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1

A. LSAC removed this case to the United States District Conrt, Northern District of

2

California on April12, 2012 on both federal question and diversity grounds.

3

Docket No. 1.

4

B. DFEH sought and received leave to amend and file a First Amended Complaint,

5

deemed filed February 6, 2013. DFEH sought and received leave to amend to file

6

Second Amended Complaint, filed March 27, 2013.

7

42. The harm that is the subject of this complaint occurred throughout the State of

8 California. Three of the real pmiies in interest lived in the County of Alameda at the time that they

9 were denied full and equal accommodations in the testing process.

10

43. The amount of damages sought by this complaint exceeds the minimum jurisdictional

11 limits of this court, and is estimated to exceed $5 million.

12

FACTUAL ALLEGATIONS

13

The Law School Admissions Test (LSAT)

14

44. The LSATis a half-day, standardized test administered four times each year at

15 designated testing centers throughout the State of California. It purpmis to provide a standard

16 measure of acquired reading and verbal reasoning skills that law schools use to assess applicants.

17 Applicants to all ABA accredited law schools are required to take the LSAT in order to be eligible fo

18 admission to law school.

19

45. The test consists of five 35-minute sections of multiple-choice questions. A 35-minute

20 writing sample is administered at the end of the test. Defendant does not score the writing sample, but

21 sends it on to the law schools with the scores.

22

46. The LSATis designed to measure reading and comprehension skills, the ability to

23 organize and manage information, and analytical skills such as evaluation and criticism.

24

47. The three multiple-choice question types in the LSAT are labeled reading

25 comprehension, analytical reasoning, and logical reasoning. All candidates take one additional

26 multiple-choice section, which is experimental.

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LSAC Business within the State
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1

48. LSAC offers and administers its LSAT at multiple locations in the State of California

2 four times a year, typically at law schools and universities. Applicants pay a test registration fee of

3 $139 after creating an online account and filling out the online application form. Additional fees

4 charged by LSAC include $68 for late registration and $35 to change the test date.

5

49. LSAC pays local proctors to administer the exam on site. LSAC also pays for

6 accommodations at the site, such as readers or scribes.

7

50. LSAC offers a Credential Assembly Service to law schools and law school applicants,

8 which streamlines the law school admission process by allowing transcripts, recommendations and

9 evaluations to be sent one time to LSAC. LSAC, in tum, summarizes and combines a law school

10 applicant's LSAT score, writing samples, transcripts, recommendations, <md evaluations into a report

11 to an applicant's prospective law schools. The Credential Assembly Service also includes access

12 through an applicant's LSAC account to electronic applications for all ABA-approved law schools.

13 Applicants are charged $124 to register for the Credential Assembly Service and $16 for law school

14 reports.

IS

51. LSAC provides a series of LSAT preparatory guides, manuals and compilations of

16 sample LSATs for purchase via its Web site, which materials range in price from $8 to $39.96. LSAC

17 also sells a guide to ABA-approved law schools for $26 and a skill readiness inventory for $29.95.

18

The LSAC Accommodation Request Process

19

52. LSAC requires candidates requesting a testing accommodation to utilize its standard

20 forms and procedures. Applicants making a testing accommodation request for a so-called cognitive

21 or psychological impairment are required to provide psychoeducational/ neuropsychological testing

22 and a full diagnostic report, including comprehensive aptitude and achievement testing.

23

53. LSAC requires each applicant to disclose whether he or she took prescribed

24 medication during the evaluation process and to provide an explanation for any failure or refusal to

25 take the medication.

26

54. LSAC has a policy whereby examinees who complete the LSAT under a disability-

27
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related testing accommodation involving additional test time receive a notation on their score report
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1 indicating that their exam scores were earned under non-standard time conditions. When reporting

2 these LSAT scores to the law schools, defendant advises the schools that these examinees' scores

3 "should be interpreted with great sensitivity and flexibility."

4

55. In addition, scores from tests taken under extended time conditions are not averaged

5 with other scores to produce a percentile ranking as are other test scores. Instead, extended time

6 scores are reported individually.

7

John Doe

8

56. John Doe, a resident of Rancho Santa Fe (San Diego County), requested that

9 defendant make testing accommodations for the December 2010 LSAT at Saddleback College.

10

57. Mr. Doe was diagnosed with attention deficit disorder (ADD) at age 13. In addition, in

11 2010 he became extremely ill with a bacterial infection and was hospitalized for approximately two

12 months, spending several weeks in the Intensive Care Unit in a medically-induced coma. During this

13 illness he suffered a severe brain edema, which left him with residual neurological impairments.

14

58. Mr. Doe requested time and a half (!50 percent) on the multiple choice and writing

15 sections for the December 20 I 0 LSAT.

16

59. In support of his request, Mr. Doe submitted medical documentation verifying his

17 hospitalization, and a complete psychoeducational assessment, which reported multiple diagnoses:

18 ADD, a learning disability (spelling), and a "[r]ecent bacterial infection with sustained induced coma

19 and residual impainnents."

20

60. LSAC refused to grant Mr. Doe's requested accommodation and instead asked for "a

21 detailed explanation regarding the nature, severity, treatment, and extent of [his] disorder at the

22 present time and it [sic] impact on your ability to take the LSAT."

23

61. Mr. Doe then submitted additional medical documentation indicating that he had

24 "suffered a serious illness and developed marked weaknesses and encephalopathy. He continues to

25 have fatigability and impaired concentration." His doctor recommended that Mr. Doe be granted

26 increased time to complete the LSAT.

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1

62. LSAC then demanded that Mr. Doe's psychologist provide "a current update of [his]

2 cognitive status" before making a decision on his testing accommodation request.

3

63. Mr. Doe and his doctor disputed the need for an updated psychoeducational

4 assessment just three months after the first report was completed. His doctor responded, "I would 5 reiterate that Mr. Doe's intelligence is much as it was when he was originally seen (10/26110) and

6 with IQ scores as noted in that report, all within the average range with the exception of Processing

7 Speed (4th percentile)."

8

64. LSAC granted Mr. Doe nine additional minutes for the multiple choice and writing

9 sample sections (125 percent), with an additional 15 minutes of break time between sections three

10 and four, for the February and June 2011 LSAT.

11

JaneDoe

12

65. Jane Doe, a resident of Oakland (Alameda County), requested that defendant provide

13 her with testing accommodations on each of two administrations of the LSAT examination, one in

14 February 2010 and a second in June 2010.

15

66. Ms. Doe has attention deficit disorder (ADD). Her condition makes it difficult to

16 retain attention and focus, and significantly impairs her ability to conceptually organize and sequence

17 abstract ideas.

18

67. Ms. Doe requested that LSAC accommodate her with time and a half (150 percent) on

19 the multiple choice and Wiiting sample sections of the LSAT.

20

68. In support of her request, Ms. Doe submitted medical documentation, verification that

21 she had received the testing accommodation of time and a half (150 percent) as an undergraduate

22 university student, and proof that she had received extended time (150 percent) on the Graduate

23 Record Exam (GRE).

24

69. On January 15,2010, LSAC denied Ms. Doe's testing accommodation requests,

25 explaining that her docnmentation did not demonstrate that she had a disability, which affected her
26 ability to take the LSAT.

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1

70. Ms. Doe reapplied for testing accommodations on the June 2010 LSAT, requesting the

2 same testing accommodation of time and a half (150 percent) on the multiple choice and writing

3 sample sections.

4

71. LSAC also denied this request. When Ms. Doe asked for an explanation for the denial,'

5 defendant replied in writing that it was "not obligated to provide accommodations that are not

6 warranted or supported by the documentation."

7

Peter Roe

8

72. Peter Roe, a resident of San Jose (Santa Clara County), requested that defendant make

9 testing accommodations for the September 2009 LSAT at California State University, East Bay.

10

73. Mr. Roe has reading and math disorders, characterized by impaired auditory attention

11 span and low visuomotor processing speed. These learning disorders substantially impact his ability

12 to process written material, particularly under timed conditions.

13

74. Mr. Roe requested 20 extra minutes for the multiple choice sections and 30 extra

14 minutes for the writing sample section of the LSAT. He also requested a reader and permission to use

15 a computer dictation program.

16

75. In support of his request, Mr. Roe submitted a neuropsychological evaluation

17 documenting his learning disabilities.

18

76. LSAC denied Mr. Roe any testing accommodation, noting that he had neglected to

19 submit a "timed reading comprehension measure" in conformance with LSAC's guidelines, he had

20 no history of educational accommodation, and his test results demonstrated an "average range of

21 functioning."

22

77. Mr. Roe requested reconsideration ofLSAC's denial, submitting the results of an

23 additional reading comprehension test that documented Mr. Roe's reading problems and

24 recommended that he receive a testing accommodation of time and a half (150 percent).

25

78. After reconsideration, LSAC stood by its previous decision to deny testing

26 accommodation.

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Raymond Banks
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1

79. Raymond Banks, a resident of San Francisco (County of San Francisco), requested

2 that defendant make testing accommodations for the February 2011 LSAT at San Francisco State

3 University.

4

80. Mr. Banks had a longstanding and severe injury to his shoulder muscle. As a result of

5 this injury, Banks suffered from nerve damage, carpal tunnel syndrome, and chronic pain, all of

6 which limited his ability to write.

7

81. Mr. Banks requested five additional minutes to complete each multiple-choice test

8 section of the LSAT, I0 additional minutes on the writing sample section, five-minute breaks

9 between each test section, a large table to write on, and permission to wear a splint on his wrist

10

82. Real party Banks submitted medical documentation in support of his request, as well

11 as proof that he had received accommodation as a student at the University of California, Berkeley

12 for time and a half (!50 percent) on all exams and quizzes.

13

83. LSAC denied all of Mr. Banks' requests, other than permitting him to wear a hand

14 splint "as a courtesy." When Mr. Banks asked LSAC for an explanation of the denial, LSAC

IS responded in writing that "[t]he documentation provided did not support your request for the

16 additional accommodations you requested."

17

Kevin Collins

18

84. Kevin Collins, a resident of Woodland Hills (Los Angeles County), requested that

19 defendant make testing accommodations for the February 2011 LSAT at California State University,

20 Northridge.

21

85. Mr. Collins suffers from two learning disorders: disorder of written expression and a

22 reading disorder. He has perceptual-organizational impairments, making it significantly more

23 difficult for him to process simple or routine visual material without making errors, as compared to

24 his peers.

25

86. Collins requested the accommodations of double time on multiple choice and writing

26 sample sections of the LSAT, permission to use a computer and printer for the writing sample, and an

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alternative, non-Scantron answer sheet.
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1

87. In support of his request, Collins submitted proof that he had received time and a half

2 (150 percent) on the GRE and for exams at Claremont Graduate University. He also submitted a full

3 psychoeducational assessment report as requested by LSAC's guidelines.

4

88. Defendant's first response was to ask for additional information and infom1 Collins

5 that the deadline had passed for the February 2011 LSAT. Later, after Collins had submitted the

6 requested information and requested consideration for the June exam, defendant granted him the

7 accommodations of time and a half (!50 percent) for the multiple choice and writing sample sections,

8 rather than the double time that he had requested. The rest of his requested testing accommodations

9 were granted.

10

89. Collins asked LSAC to reconsider its decision to deny him double time. LSAC stood

11 by its previous decision that time and a half was appropriate.

12

Rodney DeComo-Schmitt

13

90. Rodney DeComo-Schmitt, a resident of Marin County, requested that defendant make

14 testing accommodations for the October 2010 LSAT offered at Sonoma State University.

15

91. Mr. DeComo-Schmitt suffers from a reading disorder, causing a significant

16 discrepancy between his verbal abilities and his visual-spatial abilities, especially under timed

17 conditions.

18

92. Mr. DeComo-Schmitt requested time and a half (I 50 percent) on the multiple-choice

19 sections of the exam, extra rest and break time, and permission to use a computer for the writing

20 sample.

21

93. In support of his request, Mr. DeComo-Schmitt submitted a thorough

22 psychoeducational assessment and proof that he had received time and a half (150 percent) on his

23 SATexam.

24

94. LSAC at first refused to consider Mr. DeComo-Schmitt's request for reconsideration,

25 asserting that it had been submitted past the deadline for the October 2010 exam. Later, LSAC denied

26 any testing accommodation to Mr. DeComo-Schmitt for the December 20 I 0 exam, asserting that the

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1 documentation he had submitted did not demonstrate a limitation of a major life activity which

2 affected his ability to take the LSAT.

3

95. Mr. DeComo-Schmitt requested reconsideration ofLSAC's decision, submitting a

4 letter from his psychologist contending that LSAC had misinterpreted the psychological testing.

5

96. LSAC stood by its denial of testing accommodation, informing Mr. DeComo-Schmitt

6 that he was registered for the December 2010 LSAT as a standard test taker.

7

Elizabeth Hennessey-Severson

8

97. Elizabeth Hennessey-Severson, a resident of San Francisco (San Francisco County),

9 requested that defendant make testing accommodations for the June 2011 LSAT at University of

10 California, Hastings College of the Law.

11

98. Ms. Hennessey-Severson has reading, written expression and mathematics disorders,

12 and ADHD. These conditions impair her working memory and her ability to plan, organize, and

13 devote sustained attention to language-based tasks, particularly reading.

14

99. Ms. Hennessey-Severson requested that LSAC accommodate her on the LSAT with a

15 minimum of time and a half (150 percent) extra testing time, and by allowing her short breaks of 10

16 to 15 minutes between sections of the exam.

17

100. In support of her request, Ms. Hennessey-Severson submitted psychoeducational

18 assessment reports from 2002 and 2009. She also submitted proof that she had been accommodated

19 with time and a half (150 percent) on the SAT, and while she was a student at Dartmouth College.

20

101. Defendant denied all of Ms. Hennessey-Severson's requests for accommodation,

21 contending that she scored in the "very superior" and "high average" range in her psychoeducational

22 testing, and that her 2002 evaluation noted that she demonstrated a remarkable ability to compensate

23 for her learning disabilities, such that she was able to take honors courses and play high school sports.

24

l 02. Ms. Hennessey-Severson and her psychologist requested that LSAC reconsider its

25 decision to deny testing accommodation. Her psychologist wrote: "It is my professional opinion

26 based on all available evidence including comprehensive history, diagnostic interview, well

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established history of early diagnosis, remediation, and later accommodations throughout high school

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1 and college, that Ms. Hennessey has a standard learning disability that has a substantial impact on a

2 major life function, namely, her ability to read, write, and calculate efficiently, and that extended time

3 for fonnal testing is a reasonable accommodation for her disability."

4

103. After reconsideration, LSAC stood by its ptior decision to deny Ms. Hennessey-

5 Severson any testing accommodation.

6

Otilia Ioan

7

I04. Otilia loan, a resident of San Jose (Santa Clara County), requested testing

8 accommodation for the December 20 I0 LSAT offered at Santa Clara University.

9

105. Ms. loan is quadriplegic. She is paralyzed in all four limbs and is unable to physically

10 write without using a brace.

11

I06. Ms. loan requested that LSAC provide her with double time on all sections of the test,

12 an alternate answer sheet, the use of a scribe, and an additional break of 30 minutes between sections

13 3 and 4 of the test.

14

107. In support of her request, Ms. loan submitted verification that she had received the

15 testing accommodation of double time on tests while a student at De Anza College, and double time

16 when taking the GRE.

17

108. LSAC asked Ms. loan to submit additional inforn1ation from her doctor before it could

18 consider her request for testing accommodation. LSAC wrote: "Your evaluator needs to provide

19 detailed information regarding the nature, extent, severity, and treatment of your disorder and its 20 functional limitation on your ability to take the LSAT."

21

I09. Ms. loan's doctor supplied the additional infonnation that LSAC requested.

22

110. Ms. loan wrote to LSAC requesting reconsideration of its decision to deny her double

23 testing time. LSAC stood by its previous decision.

24

Alex Johnson

25

Ill. Alex Johnson, a resident of Lake San Marcos (San Diego County), requested testing

26 accommodations for the October 2010 LSAT offered at the University of Southern California.

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1

112. Mr. Johnson is quadriplegic. He is unable to write or turn pages because his fingers ar

2 paralyzed. He is unable to draw diagrams, underline text, or use a standard Scantron answer sheet.

3

!13. Mr. Johnson requested !5 minutes of extra break time between each section of the

4 LSAT, and 120 additional minutes (more than triple time) on the multiple choice and writing sample

5 sections.

6

114. In support of his request, Mr. Johnson submitted medical documentation of his

7 condition and need for testing accommodation, as well as verification from the University of

8 Southern California that he had received double time on his exams while a student there.

9

!15. At first, LSAC refused to consider Mr. Johnson's accommodation request, because he

10 was not registered to take the LSAT. Later, it granted Mr. Johnson time and a half (!50 percent) on

11 the multiple choice and writing sample sections, and I0 minutes of break time between each section.

12 It agreed to provide Mr. Johnson with a scribe, and permitted him to use a computer for the writing

13 sample.

14

116. Mr. Johnson requested that LSAC reconsider his request for double time. His doctor

15 wrote, "Double time is the least amount of time I should be allocated. It is also very hard to use a

16 scribe because of time limitations."

17

117. LSAC responded that it did not offer an untimed test, and that the documentation

18 submitted did not support Johnson's request.

19

Nicholas Jones

20

118. Nicholas Jones, a resident of Palm Desert (Riverside County), requested that

21 defendant provide him with a testing accommodation for the December 2009 LSAT offered at the

22 University of Laverne (Ontario).

23

119. Mr. Jones suffers from two distinct eye conditions. First, he has amblyopia or "lazy

24 eye" in his left eye, which impairs his visual processing. Second, he has posterior vitreous

25 detachments in his right eye, meaning that he has persistent floaters or spots, which obstruct his field

26 of vision. These conditions together impair Mr. Jones' reading speed and ability.

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120. Mr. Jones requested time and a half (150 percent) on the multiple choice and writing

2 sample sections of the exam and five-minute breaks between each section.

3

121. In support of his request, Mr. Jones submitted medical forms filled out by his doctor,

4 an eye specialist.

5

122. LSAC refused to provide any accommodation to Mr. Jones, infonning him that "[t]he

6 documentation provided did not reflect an impairment related to taking the Law School Admission

7 Test."

8

123. Mr. Jones requested that LSAC reconsider its decision denying him testing

9 accommodations, and asked it to provide further explanation. Mr. Jones' doctor wrote a letter

10 supporting his request for reconsideration, asserting that Jones' eye condition "substantially limits

11 him in at least one major life activity, reading."

12

124. After reconsideration, defendant stood by its prior decision to deny testing

13 accommodation.

14

Caroline Lee

15

125. Caroline Lee, a resident of Oakland (Alameda County), requested that defendant make

16 testing accommodations for the December 20 I0 LSAT offered in the City of Oakland.

17

126. Ms. Lee suffers from ADHD and a reading disorder, causing her reading to be labored

18 and excessively slow, and impairing her short-term memory.

19

127. Ms. Lee requested time and a half (150 percent) on the LSAT multiple choice and

20 writing sample, as well as extended breaks during the exam, a quiet testing environment, and the use

21 of a laptop to compose all written work.

22

128. In support of her request, Ms. Lee submitted proof that she had received extended

23 testing time of 150 percent while a student at City College of San Francisco (CCSF) and that she had

24 taken the SAT and ACT with testing accommodations. She also submitted a psychoeducational

25 assessment that had been perfonned while she was a student at CCSF.

26

129. LSAC replied in writing to Ms. Lee that she needed to submit additional

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documentation in order for her request to be considered, asking for: "[t]esting results and a full
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1 diagnostic report from a comprehensive up-to-date psychoeducational/neuropsychological assessmen

2 that comply with the Law School Admissions Council, Inc, Guidelines for Documentation of

3 Cognitive Impairments."

4

130. Ms. Lee then obtained and submitted a full psychoeducational evaluation in February

5 2011, which documented her ADHD and reading disorder. Her psychologist recommended that she

6 receive 150 percent extended time, as well as the other previously requested accommodations.

7

131. LSAC then requested that Ms. Lee submit several additional documents and reports.

8 Ms. Lee did so.

9

132. In April 2011, defendant denied all of Ms. Lee's requested testing accommodations,

10 informing her that: her performance on academic measures was commensurate with her ability,

11 negating a finding of impainnent; her documentation failed to support the diagnosis of an attention

12 disorder; and her request for additional time on the writing sample was not considered because her

13 psychologist had not administered the right tests.

14

133. Ms. Lee requested that LSAC reconsider its denial of accommodation. This request

15 was accompanied by a letter from her psychologist, who contended that LSAC had misinterpreted the

16 psychoeducational assessment.

17

134. After reconsideration, LSAC stood by its initial decision to deny testing

18 accommodations.

19

20

Andrew Quan

21

135. Andrew Quan, a resident of Hayward (Alameda County), requested testing

22 accommodation for the October 2011 LSAT offered at the University of California, Santa Cruz.

23

136. Mr. Quan has ADHD, a visual-motor integration deficit with slow processing speed,

24 hypotonia, and dysgraphia.

25

137. Mr. Quan requested that LSAC provide him with the accommodations of double time

26 on the multiple choice and writing sample portions of the exam, I0-minute breaks between each

27 section of the test, and the use of a computer for the w1iting sample.

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1

138. In support of his request, Mr. Quan submitted to LSAC proof that he had been

2 accommodated with the use of a computer on his ACT exams. He also submitted a 2008

3 psychoeducational assessment from high school, showing that Mr. Quan suffered from "significant 4 deficits in visual-motor integration and fine motor skills." Included within that assessment was a

5 2008 IEP documenting dysgraphia, attention deficit, visual processing, and sensory motor skills

6 disorders which qualified him for special educational services, the use of a laptop computer, a scribe,

7 and extra examination time.

8

139. LSAC requested that Mr. Quan provide further documentation to support his request,

9 including "testing results and a full diagnostic report from a comprehensive up-to-date

10 psychoeducational/neuropsychological assessment that comply with [LSAC Guidelines]."

11

140. Mr. Quan contested LSAC's need for additional documentation, asserting that it was

12 unnecessary, unaffordable, and burdensome.

13

141. LSAC responded that if Mr. Quan wanted any testing accommodation in the future, he

14 would need to submit "substantive documentation to support your request for your

15 hypotonia/dysgraphia disorders."

16

Stephen Semos

17

142. Stephen Semos, a resident of Rancho Palos Verdes (Los Angeles County), requested

18 that defendant make testing accommodations for the December 2010 LSAT at Whittier Law School

19 (Costa Mesa).

20

143. Mr. Semos has ADHD and dsygraphia, which significantly impair his reading, writing,

21 organization, and general academic performance.

22

144. Mr. Semos requested time and a half (150 percent) on both the multiple-choice and

23 writing sample portions of the exam, additional break time of five to eight minutes.

24

145. In support of his request, Mr. Semos submitted proof that he had received: testing

25 accommodations on the SAT; an IEP from the Palos Verdes Peninsula Unified School District

26 identifying Mr. Semos as learning disabled; a letter verifying that he had received accommodations

27
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1 while a student at the University of California, Irvine, of time and a half (150 percent) on tests; and a

2 complete psychoeducational assessment by his doctor, a neuropsychologist.

3

146. LSAC's first response was to ask Mr. Semos to provide additional documentation in

4 order to consider his testing accommodation request, including a full report of two particular tests for

5 cognitive disabilities, the Nelson-Denny Reading Test (NDRT) and the Conner's Continuous

6 Perfmmance Test-II. LSAC also infonned Mr. Semos that the deadline for the December 2010 LSAT

7 had passed, but that he could request accommodation for future exams.

8

147. Mr. Semos then submitted his documentation for the February 2011 LSAT.

9

148. In response, LSAC denied all of Mr. Semos' requests for testing accommodation on

10 the basis that his test scores were generally commensurate with his abilities and thus did not 11 demonstrate a learning disability.

12

149. Mr. Semos' neuropsychologist requested that LSAC reconsider its denial. Mr. Semos'

13 doctor wrote: "Your denial letter written to Mr. Semos selectively highlighted the above average

14 scores and thereby masked the patterns of deficits in processing speed and fine motor speed noted in

15 my neuropsychological report."

16

150. LSAC responded that the letter from Mr. Semos' neuropsychologist had arrived too

17 late to be considered for the February 2011 LSAT. LSAC wrote: "You remain registered to test as a

18 standard test taker. No accommodations have been granted."

19

Gazelle Taleshpour

20

151. Gazelle Taleshpour, a resident of San Diego (San Diego County), requested that

2 I defendant make testing accommodations for the October 2010 LSAT offered at the University of San

22 Diego.

23

152. Ms. Taleshpour has ADHD. She also suffers from osteopenia (bone loss) and chronic

24 pain in her neck and back as a result of treatment she had received for leukemia, a bone manow

25 transplant, radiation, and chemotherapy.

26

27

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1

153. Ms. Taleshpour requested that LSAC accommodate her with 30 extra minutes on the

2 multiple choice and writing sample portions of the exam, breaks of two to five minutes every half

3 hour so that she could stretch and alleviate pain, a high table, and a comfortable chair.

4

154. In support of her request, Ms. Taleshpour submitted documentation from her treating

5 medical doctor, her chiropractor, and her psychologist. She also provided LSAC with verification tha

6 she had received time and a half (150 percent) on all tests and exams while a student at the Universit

7 of San Diego.

8

155. LSAC requested that Ms. Taleshpour provide additional documentation in support of

9 her testing accommodation request, including "[t]esting results and a full diagnostic report from a

10 psychoeducational/neuropsychological assessment that comply with Guidelines for Documentation o

11 Cognitive Impairments."

12

156. Ms. Taleshpour obtained and submitted the additional documentation that LSAC

13 requested. Her psychiatrist perfmmed a full psychoeducational assessment, which diagnosed her with

14 ADHD, a reading disorder, and a learning disability (dyslexia). Her psychiatrist supported Ms.

15 Taleshpour's request for double time and other testing accommodations.

16

157. LSAC only partially granted Ms. Taleshpour's request for testing accommodation,

17 allowing her to sit or stand at a podium while taking the exam, and to bring a seat cushion or an

18 adjustable chair.

19

158. Ms. Taleshpour then resubmitted a request for accommodation for the December 2010

20 LSAT: double time on multiple choice and writing sample; an alternate, non-Scantron answer sheet;

21 use of a reader; an additionall5 minutes of rest time; and 15-minute breaks between sections.

22

159. LSAC denied the request for additional accommodations beyond the two it had

23 already granted, explaining to Ms. Taleshpour that her intelligence test scores were average and

24 commensurate with her ability, meaning that no cognitive disability was apparent.

25

160. Ms. Taleshpour requested that LSAC reconsider its denial of testing accommodation

26 for extra time. Her psychologist supported the reconsideration request, contending that LSAC failed

27
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to recognize significant discrepancies in her reading speed and comprehension. "These significant
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1 difficulties provide psychometric evidence of the presence of a Learning Disability as described by

2 the ADA," he wrote.

3

161. LSAC stood by its prior decision to limit the testing accommodations made for Ms.

4 Taleshpour: permission to sit or stand with a podium and to bring a seat cushion or an adjustable

5 chair.

6

Kevin Vielbaum

7

162. Kevin Vielbaum, a resident of San Mateo (San Mateo County), requested that

8 defendant make testing accommodations for him in taking the June 2011 LSAT at the University of

9 California, Hastings College of the Law.

10

163. Mr. Vielbaum has a reading disorder (dyslexia), characterized by a significant

11 difficulties with perceptual reasoning, working memory, and cognitive processing speed.

12

164. Mr. Vielbaum requested that defendant accommodate him with time and a half(150

13 percent) on the multiple choice section of the LSAT, double time on the writing sample, and

14 pennission to use a computer for the writing sample.

15

165. In support of his request, Mr. Vielbaum submitted extensive records from his primary

16 education at a special school for students with dyslexia, where he was granted accommodations of

17 extended time and the use of a laptop and calculator.

18

166. LSAC granted Mr. Vielbaum only the accommodation of using a computer, printer

19 and spell check for the writing sample. LSAC denied the accommodation of extra time, noting that

20 Mr. Vielbaum had not requested accommodation on the SAT, and that he had scored well on the tests

21 involved in his psychoeducational assessment. Defendant went on to explain that: "[y]our evaluator

22 notes you have difficulties with logical reasoning. Inasmuch as the Law School Admission Test is 23 designed to measure these skills, the testing accommodations requested (extended time on all

24 examinations that involve the solving oflogic problems), would not be appropriate."

25

Austin Whitney

26

167. Austin Whitney, a resident of Contra Costa County, first requested testing

27
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accommodations for the September 2009 LSAT offered at San Diego State University.
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1

168. Mr. Whitney is paraplegic due to a spinal cord injury in 2007.

2

169. Mr. Whitney requested that defendant accommodate his disability with time and a half

3 (150 percent) on the multiple choice and writing sample sections of the LSAT, and a wheelchair

4 accessible testing location.

5

170. In support of his request, Mr. Whitney submitted medical records pertaining to his

6 2007 injury, verification from the University of California at Berkeley that he had received time and

7 half (150 percent) for all exams and quizzes during his undergraduate studies, and a fonn filled out

8 by his doctor indicating that, because of his injury and surgeries, he suffered from "severe chronic

9 pain and radiating radicular nerve pain" for which Whitney took prescription medication that caused

10 drowsiness.

11

171. LSAC responded that Mr. Whitney's request for testing accommodation had been

12 submitted too late for the September 2009 test, and therefore he was registered as a standard test

13 taker.

14

172. Mr. Whitney next requested testing accommodations for the June 2010 LSAT offered

15 in Berkeley at the Califomia Ballroom. This time he requested that LSAC accommodate him with

16 five- minute breaks between sections, in addition to providing time and a half (150 percent) on the

17 multiple choice and writing sample sections and a wheelchair accessible testing site.

18

173. In support of this request, Mr. Whitney submitted medical forms from four different

19 doctors, each of whom supported his need for extra testing time. Dr. Larry Snyder explained:

20 "Patient has significant fatigue due to medications taken for previous spinal injury- this will affect

21 his performance in TIMED conditions." Dr. Carol Jessop wrote that, due to Mr. Whitney's spinal

22 cord injury with chronic, nueropathic pain, he needed extra time to compensate for the effects of the

23 pain medication which cause fatigue. Dr. Jessop explained: "This is a significant problem for Austin

24 Whitney as he is taking medications ... that cause him to be sleepy and fatigued. This drowsiness

25 makes him slower in his response to test questions. If an exam has a time limit, he will definitely

26 need extra time to complete it."

27
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1

174. LSAC then granted Mr. Whitney the extra break time that he requested, and agreed to

2 provide a wheelchair accessible testing site, but denied his request for extra testing time. "If you

3 choose to have your cognitive disorder (alluded to by Carol Jessop, MD) considered," defendant

4 wrote, "you must provide a current psychoeducational/neuropsychological assessment or

5 neuropsychological evaluation as per our Guidelines for Documentation of Cognitive Impairments."

6

175. Mr. Whitney asked defendant to reconsider its decision to deny additional testing time,

7 and three of his doctors wrote to LSAC in supp01i of his request.

8

a. Dr. Snyder wrote, "His pain and spacticity are a constant distraction and put

9 him at a significant disadvantage as a test taker. In addition, the medication he is taking causes 10 significant fatigue and makes it difficult to concentrate. The medication side effects do not impair
11 cognition but can slow processing speed. For these reasons, he should be afforded extra time when
12 taking this standardized test."

13

b. Dr. Jessop v,Tote, "I would like to emphasize that the nature of Mr. Whitney's

14 condition is physiological (pain issues) and NOT cognitive or due to a learning disorder. Our request

15 for extra time on the exam is based solely on physiological effects of chronic, severe neuropathic

16 pain, and the fatiguing side effects ofphannaceutical pain killers. Thus, because he doesn't have a 17 learning disability, I feel strongly that neuropsychological or psychoeducational testing would be

18 irrelevant in his case."

19

c. Dr. Hedelman wrote, "Patient's significant impacts on concentration, reading,

20 writing, ability to attend class is secondary to his unpredictable, severe neuropathic pain and tbe

21 associated pain management medications. Patient does not have an underlying cognitive impairment

22 requiring neuropsych[ological] testing."

23

176. LSAC refused to reconsider its decision, responding: "We have no objective evidence

24 to support Dr. Carol Jessop, MD's conclusion that your thought processes are not as fast as they

25 could be without medication."

26

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1

177. In 2011, at LSAC's behest, Mr. Whitney was evaluated by a psychologist, who

2 determined that he required double time on examinations due to the effect that his pain medication

3 was having on his cognitive abilities.

4

178. In response to a second accommodation request by Mr. Whitney with the

5 psychologist's report as supporting documentation, LSAC awarded him 10 additional minutes on

6 each section of the exam. LSAC provided no rationale for denying his request for double time.

7

FIRST CLASS CAUSE OF ACTION

8

Unlawful Consideration of Mitigation Measures

9

(42 U.S.C. § 12102(4)(E)(l)(i)(I))

10

179. The DFEH realleges and incorporates by reference each and every allegation

11 contained in paragraphs 1 through 178, inclusive, as if fully set forth herein.

12

180. The ADA, 42 U.S.C. § 12102(4)(E)(l)(i)(I), requires that "any determination of

13 whether an impairment substantially limits a major life activity shall be made without regard to the

14 ameliorative effects of mitigating measures such as medication." The ADA is incorporated into the

15 Unruh Act by Civil Code section 51, subdivision (f).

16

181. By requiring applicants to take the medication prescribed for their disabilities while

17 being evaluated for testing accommodations or explain their failure or refusal to do so, LSAC violate

18 the rights of class members under the FEHA, Unruh Act, and ADA,

19

182. As a direct result of the unlawful practices of defendants as alleged herein, class

20 members have incurred out of pocket losses, including test registration fees and medical bills, in an

21 amount to be proven at trial.

22

183. As a further and direct result of the unlawful practices of defendants as alleged herein,

23 class members have suffered emotional distress, anxiety, lost opportunity, frustration, humiliation,

24 and loss of dignity and self-esteem, in an amount to be proven at trial.

25

184. Defendants have engaged in, and by their refusal to comply with the law, have

26 demonstrated that they will continue to engage in, the pattern or practice of unlawful discrimination

27
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described herein unless and until they are enjoined, pursuant to the police power granted by
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1 Government Code sections 12920 and 12920.5, and pursuant to section 12974, from failing or

2 refusing to comply with the mandates of the FEHA, Unruh Act, and the ADA. Unless and until

3 defendants are enjoined from failing or refusing to comply with the mandates of these laws, class

4 members' right to full and equal access to places of public accommodation will continue to be

5 violated. Plaintiff lacks any plain, speedy, adequate remedy at law to prevent such harm, injury and

6 loss, which will continue until the court enjoins the complained of unlawful conduct and grants other

7 affirmative relief as prayed for herein.

8

SECOND CLASS CAUSE OF ACTION

9

Failure to Ensure that Exam Measures Ability Rather than Disability

10

(42 U.S.C. § 12189 and 28 C.F.R. § 36.309)

11

185. The DFEH realleges and incorporates by reference each and every allegation

12 contained in paragraphs l through 178, inclusive, as if fully set forth herein.

13

186. The ADA requires that any person offering examinations related to post-secondary

14 education or profession "shall offer such examinations or courses in a place and manner accessible to

15 persons with disabilities." 42 U.S.C. § 12189. Regulations interpreting this section impose an

16 obligation on the entity offering such an examination that" [t]he examination is selected and

17 administered so as to best ensure that, when the examination is administered to an individual with a

18 disability that impairs sensory, manual, or speaking skills, the examination results accurately ret1ect

19 the individual's aptitude or achievement level or whatever other factor the examination purports to

20 measure, rather than reflecting the individual's impaired sensory, manual, or speaking skills." 28

21 C.P.R. § 36.309.

22

187. By adhe1ing to a blanket policy of annotating scores taken under extended time

23 conditions, defendant is communicating to law schools that it does not know whether or not the

24 applicants' exam results accurately reflect aptitude or achievement. Therefore, LSAC is breaching its

25 duty under the FEHA, Unruh Act, and ADA to ensure that the exan1ination results accurately reflect

26 the individual's aptitude or achievement level. 28 C.F.R. § 36.309(b)(l)(i).

27
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1

188. As a direct result of the unlawful practices of defendants as alleged herein, class

2 members have incurred out of pocket losses, including test registration fees and medical bills, in an

3 amount to be proven at trial.

4

189. As a further and direct result of the unlawful practices of defendants as alleged herein,

5 class members have suffered emotional distress, anxiety, lost opportunity, frustration, humiliation,

6 and loss of dignity and self-esteem, in an amount to be proven at trial.

7

190. Defendants have engaged in, and by their refusal to comply with the law, have

8 demonstrated that they will continue to engage in, the pattem or practice of unlawful discrimination

9 described herein unless and until they are enjoined, pursuant to the police power granted by

10 Government Code sections 12920 and 12920.5, and pursuant to section 12974, from failing or

11 refusing to comply with the mandates of the FEHA, Unruh Act, and the ADA. Unless and until

12 defendants are enjoined from failing or refusing to comply with the mandates of these laws, class

13 members' right to full and equal access to places of public accommodation will continue to be

14 violated. Plaintifflacks any plain, speedy, adequate remedy at law to prevent such harm, injury and

15 loss, which will continue until the court enjoins the complained of unlawful conduct and grants other

16 affirmative relief as prayed for herein.

17

THIRD CLASS CAUSE OF ACTION

18

Coercion, Intimidation, Threats, or Interference with ADA Rights - Flagging

19

(42 u.s.c. § 12203)

20

191. The DFEH realleges and incorporates by reference each and every allegation

21 contained in paragraphs 1 through 178, inclusive, as if fully set forth herein.

22

192. The ADA makes it unlawful to "coerce, intimidate, threaten, or interfere with any

23 individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed,

24 any right granted or protected by this Act." 42 U.S.C. § 12203.

25

193. LSAC's policy of annotating tests scores administered under extended time conditions

26 discourages applicants from seeking such a testing accommodation, and punishes those who receive

27 it, in violation of the FEHA, Umuh Act, and ADA.

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1

194. As a direct result of the unlawful practices of defendants as alleged herein, class

2 members have incmTed out of pocket losses, including test registration fees and medical bills, in an

3 amount to be proven at trial.

4

195. As a further and direct result of the unlawful practices of defendants as alleged herein,

5 class members have suffered emotional distress, anxiety, lost opportunity, frustration, humiliation,

6 and loss of dignity and self-esteem, in an amount to be proven at trial.

7

196. Defendants have engaged in, and by their refusal to comply with the law, have

8 demonstrated that they will continue to engage in, the pattern or practice of unlawful discrimination

9 described herein unless and until they are enjoined, pursuant to the police power granted by

10 Government Code sections 12920 and 12920.5, and pursuant to section 12974, from failing or

11 refusing to comply with the mandates of the FEHA, Unruh Act, and the ADA. Unless and until

12 defendants are enjoined from failing or refusing to comply with the mandates of these laws, class

13 members' right to full and equal access to places of public accommodation will continue to be

14 violated. Plaintiff lacks any plain, speedy, adequate remedy at law to prevent such harm, injury and

15 loss, which will continue until the court enjoins the complained of unlawful conduct and grants other

16 affirmative relief as prayed for herein.

17

FOURTH CAUSE OF ACTION- REAL PARTIES IN INTEREST ONLY

18

Denial of Reasonable Accommodation

19

(42 U.S.C. § 12189 and 28 C.F.R. § 36.309(b)(l)(iv))

20

197. The DFEH realleges and incorporates by reference each and every allegation

21 contained in paragraphs I through 178, inclusive, as if fully set forth herein.

22

198. The ADA requires that any person offering examinations related to post-secondary

23 education or profession "shall offer such exan1inations or courses in a place and manner accessible to

24 persons with disabilities." 42 U.S.C. § 12189. As part of this duty to make an examination accessible,

25 the regulations require that any documentation requested be "reasonable and limited to the need for

26 the modification, accommodation, or auxiliary aid or service requested." 28 C.P.R. §

27
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36.309(b)(I )(iv).

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1

199. LSAC breached its duty to make the LSAT accessible to people with disabilities by

2 requiring excessive amounts of documentation and denying a testing accommodation to each real

3 party in interest, in violation of the FEHA, Unruh Act, and ADA.

4

200. As a direct result of the unlawful practices of defendants as alleged herein, real parties

5 have incurred out of pocket losses, including test registration fees and medical bills, in an amount to

6 be proven at trial.

7

201. As a further and direct result of the unlawful practices of defendants as alleged herein,

8 real parties have suffered emotional distress, anxiety, lost opportunity, frustration, humiliation, and

9 loss of dignity and selt~esteem, in an amount to be proven at trial.

10

202. Defendants have engaged in, and by their refusal to comply with the law, have

11 demonstrated that they will continue to engage in, the pattern or practice of unlawful discrimination

12 described herein unless and until they are enjoined, pursuant to the police power granted by sections

13 12920 and 12920.5, and pursuant to section 12974, from failing or refusing to comply with the

14 mandates of the FEHA, Unruh Act, and the ADA. Unless and until defendants are enjoined from

15 failing or refusing to comply with the mandates of these laws, class members' right to full and equal

16 access to places of public accommodation will continue to be violated. Plaintiff lacks any plain,

17 speedy, adequate remedy at law to prevent such harm, injury and loss, which will continue until the

18 court enjoins the complained of unlawful conduct and grants other affirmative relief as prayed for

19 herein.

20

FIFTH CAUSE OF ACTION REAL PARTIES IN INTEREST ONLY

21

Coercion, Intimidation, Threats, or Interference with ADA Rights

22

(42 u.s.c. § 12203)

23

203. The DFEH realleges and incorporates by reference each and every allegation

24 contained in paragraphs 1 through 178, inclusive, as if fully set forth herein.

25

204. The ADA makes it unlawful to "coerce, intimidate, threaten, or interfere with any

26 individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed,

27
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any right granted or protected by this Act." 42 U.S.C. § 12203.
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I

205. LSAC's policies and patterns of requiring unreasonable types and excessive amounts

2 of documentation to support each testing accommodation request violate the FEHA, Unruh Act, and

3 the ADA, by unlawfully coercing, intimidating, threatening, or interfering with real parties' exercise

4 or enjoyment of their right to reasonable accommodation on the LSAT.

5

206. As a direct result of the unlawful practices of defendants as alleged herein, real parties

6 have incurred out of pocket losses, including test registration fees and medical bills, in an amount to

7 be proven at trial.

8

207. As a further and direct result of the unlawful practices of defendants as alleged herein,

9 real parties have suffered emotional distress, anxiety, lost opportunity, frustration, humiliation, and

10 loss of dignity and self-esteem, in an amount to be proven at trial.

11

208. Defendants have engaged in, and by their refusal to comply with the law, have

12 demonstrated that they will continue to engage in, the pattern or practice of unlawful discrimination

13 described herein unless and until they are enjoined, pursuant to the police power granted by

14 Government Code sections 12920 and 12920.5, and pursuant to section 12974, from failing or

15 refusing to comply with the mandates of the FEHA, Unruh Act, and the ADA. Unless and until

16 defendants are enjoined from failing or refusing to comply with the mandates of these laws, class

17 members' right to full and equal access to places of public accommodation will continue to be

18 violated. Plaintiff lacks any plain, speedy, adequate remedy at law to prevent such harm, injury and

19 loss, which will continue until the court enjoins the complained of unlawful conduct and grants other

20 affirmative relief as prayed for herein.

21

SIXTH CAUSE OF ACTION- GROUP AND CLASS RELIEF

22

Discrimination on the Basis of Disability in Violation of California Education Code

23

(Cal. Educ. Code§ 99161.5)

24

25

209. Plaintiff incorporates by reference paragraphs 1 through 178_as though fully set forth

26 herein.

27
®
COURT PAPER State of California Std, 113 Rav. 3·95 FE&H Automated

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Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whitney eta!.) Third Amended Complaint Seeking Group or Class Relief, In the Alternative Group and Class Action Complaint for
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Case3:12-cv-01830-EMC Document164-1 Filed09/27/13 Page41 of 85

1

210. Government Code, section 12902 expressly makes Government Code, 11150 et seq.

2 applicable to the DFEH. Under Government Code, section 11180, the DFEH is authorized to

3 investigate and prosecute actions "relating to ... subjects under the jurisdiction of the department."

4 The activities prohibited by the Education Code, section 99161.5 relate to subjects under the

5 jurisdiction of the DFEH.

6

211. California's Education Code, section 99161.5(a)(l), states: "The test sponsor of the

7 Law School Admission Test shall provide testing accommodations to a test subject with a disability

8 who makes a timely request to ensure that the Law School Admission Test accurately reflects the

9 aptitude, achievement levels, or other factors that the test purports to measure and does not reflect the

10 test subject's disability. This paragraph does not constitute a change in, but is declaratory of, existing

11 law."

12

212. California's Education Code, section 99161.5, further states that, when determining

13 whether to grant a testing accommodation to the test subject, "the test sponsor of the Law School

14 Admission Test shall, consistent with existing law, give considerable weight to the documentation of

15 past modifications, accommodations, or auxiliary aids or services received by the test subject in

16 similar testing situations[.]" Cal. Educ. Code§ 99161.5(b).

17

213. California's Education Code, section 99161.5, further states that the decision of

18 whether or not to approve a request for a testing accommodation on the LSAT shall be conveyed to

19 the requester within a reasonable amount of time. When a testing accommodation is denied, the test

20 sponsor shall state the reasons for the denial in writing, and shall provide a timely appeals process.

21 Cal. Educ. Code§ 99161.5(a)(2), (3).

22

214. California's Education Code, section 99161.5, further prohibits the practice of

23 "flagging" LSAT scores by prohibiting the test sponsor from "notify[ing] a test score recipient that

24 the score of any test subject was obtained by a subject who received an accommodation pursuant to

25 this section," or from "withhold[ing] any information that would lead a test score recipient to deduce

26 that a score was earned by a subject who received an accommodation[.]" Cal. Educ. Code §

27
®
COURT PAPER Stat~> of California Std. 113 Rev. 3·95 FE&H Automated

99161.5(c).
-38-
Dept. Fair Empl. & Hous. v. Law School AdmL,sion Council, Inc. (Whitney et al.) Third Amended Complaint Seeking Group or Class Relief, In the Alternative Group and Class Action Complaint for
Damages and Injunctive Relief

Case3:12-cv-01830-EMC Document164-1 Filed09/27/13 Page42 of 85

1

215. In violation of their rights under the California Education Code, Defendant LSAC

2 imposed upon Real Parties in Interest, and continues to impose on California test takers, onerous and

3 unnecessary documentation requirements to support requests for testing accommodations, and

4 subjected them to arbitrary, ineffective, and unpredictable evaluation and appeals procedure. In

5 violation of their rights under the California Education Code, Defendant LSAC refused to provide

6 Real Parties in Interest with the testing modifications they needed to take the LSATon an equal basis

7 with other nondisabled test takers. In violation of the rights of Real Parties in Interest and other

8 California test takers under the California Education Code, Defendant LSAC failed to give

9 considerable weight to their documentation of past modifications, accommodations, or auxiliary aids

10 or services received in similar testing situations. In violation of their rights under the California

11 Education Code, Defendant LSAC refused to provide Real Parties in Interest and other California test

12 takers with a test score in an equivalent format as their nondisabled peers.

13

216. In taking the above-described actions and inactions, Defendant LSAC failed to make

14 any good faith effort or attempt to comply with state and federal laws. Defendant LSAC's unlawful

15 actions were intentional, willful, malicious and/or done with reckless disregard to Real Parties in

16 Interests' rights under the California Education Code. As a direct and proximate result of the

17 unlawful acts described herein, Real Parties in Interest have suffered and continue to suffer injuries

18 including emotional injuries.

19

217. PlaintiffDFEH and Real Parties in Interest are entitled to appropriate relief as

20 detetmined by this Court which may include declaratory relief and/or a civil penalty not to exceed

21 seven hundred fifty dollars ($750) for each violation and/or other appropriate relief.

22

23

PRAYER FOR RELIEF

24

WHEREFORE, the DFEH prays that the court issue a judgment in favor of the DFEH, real

25 parties in interest, classwide relief, and order defendants to provide the following relief:

26

27

COURT PAPER State of California Std. 113 Rev. 3-95 FE&H Automated

-39-

------=---:::-:--:=----;"-
Dept Fair Empr &

Hous.

v.

Law School Admission

Council,

Inc.

-·---;-:----~
(Whitney et aL)

Third Amended Complaint Seeking Group or Class Relief, In the Alternative Group and Class Action Complaint for

Damages and Injunctive Relief

Case3:12-cv-01830-EMC Document164-1 Filed09/27/13 Page43 of 85

1

AS TO REAL PARTIES IN INTEREST

2

218. Provide free and accommodated testing at the next available testing date in each real

3 party's area, with accommodations as initially requested by that real party;

4

219. Provide a letter to each real party explaining that their LSAT scores used for their law

5 school applications during the relevant period may not have provided accurate measures of their

6 acquired reading and verbal reasoning skills, because LSAC did not provide testing accommodations.

7

CLASSWIDE RELIEF,

INCLUDING THE REAL PARTIES IN INTEREST 8

9

220. Cease and desist from consideration of mitigation measures such as medication when

10 making a determination as to whether an applicant needs a testing accommodation.

11

221. Cease and desist from specially annotating LSAT scores tests scores administered

12 under extended time conditions.

13

222. Include all test scores in the percentile ranking process and provide a ranked percentile

14 to each test taker.

15

223. Immediately undertake a validation study to determine ifLSAC scores under

16 accommodation of extra time for cognitive disabilities are an equal measure of aptitude or

17 achievement as compared to non-accommodated scores.

18

224. Reduce to a discrete and reasonable amount the documentation required to verify an

19 applicant's need for a testing accommodation, especially for so-called cognitive disabilities,

20 consistent with the ADA's requirement that such documentation be "reasonable" and Congress'

21 mandate that "the question of whether an individual's impairment is a disability under the ADA

22 should not demand extensive analysis." (28 C.F.R. § 36.309(b)(l)(iv); 42 U.S.C. § 1201 [Pub. L. No.

23 110-325 § 2(b)(5) (Sept. 25, 2008) 122 Stat. 3553].)

24

225. Create a more streamlined and user-friendly process for considering testing

25 accommodation requests, that includes notice to applicants, within a reasonable period of time,

26 whether or not requested testing accommodations have been granted, and provides a fair process for

27
®
COURT PAPER State of Caljfomia
Std. 113 Rev. 3·95 FE&H Automated

timely reconsideration of any denial of requested testing accommodations.
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Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whitney et al.) Third Amended Complaint Seeking Group or Class Relief, In the Alternative Group and Class Action Complaint for
Damages and lnlunctive Relief

Case3:12-cv-01830-EMC Document164-1 Filed09/27/13 Page44 of 85

1

226. Pay actual damages according to proof for each Unruh Act violation up to a maximum

2 of three times the actual damages but in no case less than $4,000 per violation.

3

227. Pay the DFEH's attorneys' fees and costs, pursuant to California Government Code

4 § l2965(b) and California Civil Code§ 52(a), in an amount according to proof, plus annual interest,

5 as required by law.

6

228. Provide written proof to the Department of the nature and extent ofLSAC's

7 compliance with all requirements of the court's order within 100 days of its effective date.

8

229. Award penalties pursuant to California Education code, section 99161; and,

9

230. Provide such other relief as the Court deems to be just and proper.

10 Dated: September 27,2013 11 12 13 14

DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING
Jon M. Ichinaga Chief Counsel
R. Sybil Villanueva Associate Chief Counsel

15

Phoebe P. Liu

16

Senior Staff Counsel

17

Mari Mayeda

Associate Chief Counsel

18

19

By:/s/ R. Sybil Villanueva

20

R. Sybil Villanueva

Attorneys for the Department

21

22

23

24

25

26

27
*COURT PAPER
State of California Std. 113 Rev. 3-95 FE&H Automated

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Dept. Fair Empl. & Hous. v. Law School Admission Council. Inc. (Whitney et al.) Third Amended Complaint Seeking Group or Class Relief, In the Alternative Group and Class Action Complaint for
Damages and Injunctive Relief

 
 Case3:12-cv-01830-EMC Document198-1 Filed05/20/14 Page1 of 61

1 1

2 2

3 3

4 4

5 5

6 6

7 7

8 8

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9 9

SAN FRANCISCO DIVISION

1100 THE DEPARTMENT OF FAIR EMPLOYMENT )

1111

AND HOUSING, Plaintiff,

) ) Case No. CV 12-1830-EMC

1122

v.

)

1133

LAW SCHOOL ADMISSION COUNCIL, INC., Defendant.

) )

1144

THE UNITED STATES OF AMERICA, Plaintiff-Intervenor,

) ) [PROPOSED] CONSENT DECREE

1155

v. LAW SCHOOL ADMISSION COUNCIL, INC.,

) )

1166

Defendant.

)

1177

ANDREW QUAN, NICHOLAS JONES, and ELIZABETH HENNESSEY-SEVERSON,

) )

1188

Plaintiff-Intervenors, v.

) )

1199

LAW SCHOOL ADMISSION COUNCIL, INC., Defendant.

) )

2200

2211

2222

2233

2244

2255

2266

2277

2288

CASE NO. CV 12-1830-EMC [PROPOSED] CONSENT DECREE

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1

TABLE OF CONTENTS

2

3 INTRODUCTION .................................................................................................................................1

4 PARTIES ...............................................................................................................................................2

5 1. Plaintiffs ......................................................................................................................................2

6 2. Defendant ....................................................................................................................................2

7 3. LSAC ..........................................................................................................................................2

8 INJUNCTIVE RELIEF..........................................................................................................................3

9 4. General Obligations ....................................................................................................................3

10 5. LSAC Shall Ensure That Documentation Requests Are Reasonable And Limited To

11

The Need For The Testing Accommodation Requested.............................................................3

12 6. LSAC Shall Diversify The Expert Consultants It Uses To Review Requests For

13

Testing Accommodations ...........................................................................................................8

14 7. LSAC Shall Implement Best Practices As Established By A Panel Of Experts To Be

15

Agreed Upon By The Parties To Comply With 28 C.F.R. § 36.309 ..........................................9

16

a. Panel ...................................................................................................................................9

17

b. Duties ...............................................................................................................................10

18

c. Issues To Be Addressed By Panel....................................................................................10

19

i. Diversification ......................................................................................................10

20

ii. Documentation .....................................................................................................10

21

iii. Review of Testing Accommodation Requests .....................................................11

22

iv. Other .....................................................................................................................12

23

d. Process .............................................................................................................................12

24

e. Communications ..............................................................................................................15

25

f. Access ...............................................................................................................................16

26
i

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1

g. Final Report .....................................................................................................................16

2

h. Cost ..................................................................................................................................16

3 8. Tracking and/or Maintenance of Testing Accomodation Data.................................................17

4 PERMANENT INJUNCTION ON SCORE ANNOTATIONS ..........................................................19

5 9. Permanently Discontinue Score Annotating .............................................................................19

6 CIVIL PENALTY................................................................................................................................19

7 10. Civil Penalty ($55,000) ...........................................................................................................19

8 MONETARY RELIEF ........................................................................................................................20

9 11. Payments To Individuals ($7,675,000.00) ..............................................................................20

10

a. Monetary Relief To Individuals Named In The United States' And The DFEH's

11

Complaints ($945,000) ...................................................................................................20

12

b. Compensation Fund For Individuals Who Requested Testing Accommodations For

13

The LSAT Between January 1, 2009 And May 20, 2014 And Who Are Eligible

14

Persons Under This Decree ($6,730,000) .......................................................................21

15

i. Potential Eligible Persons.....................................................................................22

16

ii. Eligible Persons ....................................................................................................22

17

iii. Retention Of Claims Administrator .....................................................................23

18

iv. Duties Of The Claims Administrator ...................................................................23

19

v. Dispute Resolution ...............................................................................................24

20

vi. Potential Eligible Persons List To Administrator.................................................25

21

vii. Notice By LSAC ..................................................................................................25

22

viii. Notice By Administrator ......................................................................................26

23

ix. Locating Potential Eligible Persons .....................................................................26

24

x. Claims Period .......................................................................................................26

25 12. Establishment Of Standards ....................................................................................................27

26
ii

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Case3:12-cv-01830-EMC Document198-1 Filed05/20/14 Page4 of 61

1

13. Claims Reporting ....................................................................................................................27

2

14. Payment...................................................................................................................................28

3

15. No Set-Off...............................................................................................................................28

4

16. Notification Of Final Payment................................................................................................28

5

17. Residual Amount In Compensation Fund...............................................................................29

6

18. Taxes .......................................................................................................................................29

7 OTHER RELIEF..................................................................................................................................29

8

19. Renewed Requests For Testing Accommodations .................................................................29

9

20. Specific Testing Accommodations For Named Individuals ...................................................29

10 ATTORNEY FEES AND COSTS FOR THE DFEH AND INDIVIDUAL PLAINTIFF-

11 INTERVENORS..................................................................................................................................30

12

21. Attorney Fees And Costs ........................................................................................................30

13 ADA MONITOR AND REPORTING ................................................................................................31

14

22. Notice By LSAC .....................................................................................................................31

15

23. Reporting By LSAC................................................................................................................32

16

24. ADA Monitor..........................................................................................................................32

17

25. Audits By ADA Monitor ........................................................................................................33

18

26. Audit Reports By ADA Monitor.............................................................................................34

19

a. Access ..............................................................................................................................34

20

27. Communications .....................................................................................................................35

21

28. Cost .........................................................................................................................................35

22 ADDITIONAL TERMS ......................................................................................................................36

23

29. Notification .............................................................................................................................36

24

30. Term Of This Decree ..............................................................................................................37

25

31. Disputes...................................................................................................................................37

26
iii
27
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Case3:12-cv-01830-EMC Document198-1 Filed05/20/14 Page5 of 61

1 32. Use Of Information .................................................................................................................38

2 33. Scope.......................................................................................................................................38

3 34. Releases...................................................................................................................................38

4 35. Pending Complaints ................................................................................................................39

5 36. Binding....................................................................................................................................39

6 37. Non-Waiver.............................................................................................................................39

7 38. Severability .............................................................................................................................40

8 39. Litigation Holds ......................................................................................................................40

9 40. Authority .................................................................................................................................40

10 SIGNATURES.....................................................................................................................................41

11 ORDER AND PERMANENT INJUNCTION ....................................................................................45

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26
iv

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Case3:12-cv-01830-EMC Document198-1 Filed05/20/14 Page6 of 61

1

INTRODUCTION

2

This matter is before the Court for entry of a consent decree agreed upon by the Parties –

3 Plaintiff California Department of Fair Employment and Housing (“DFEH”); Plaintiff-Intervenor

4 the United States of America (“United States”); individual Plaintiff-Intervenors Andrew Quan,

5 Nicholas Jones, and Elizabeth Hennessey-Severson (“individual Plaintiff-Intervenors”) (each a

6 “Plaintiff” and collectively “Plaintiffs”); and the Law School Admission Council, Inc.

7 (“LSAC”). Plaintiffs allege that LSAC discriminates against individuals with disabilities who

8 take, or seek to take, the Law School Admission Test (“LSAT”) with testing accommodations, in 9 violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq.,1 based on

10 LSAC’s alleged failure to offer the LSAT in a manner accessible to individuals with disabilities

11 and on LSAC’s policy of annotating, or “flagging,” test scores achieved with the testing 12 accommodation of extended time.2 LSAC denies all of Plaintiffs’ allegations.

13

Prior to the commencement of this litigation, the United States and the DFEH had not

14 issued a regulation or technical assistance publication explicitly addressing score annotation by

15 any private entity that offers examinations or courses related to applications, licensing,

16 certification, or credentialing for secondary or post-secondary education, professional or trade

17 purposes. However, the United States and the DFEH maintain that 42 U.S.C. § 12189 and 28

18 C.F.R. § 36.309 prohibit score annotation. LSAC disputes the position of the United States and

19 the DFEH on this issue. The United States and the DFEH further maintain that, under 42 U.S.C.

20

21 1 A violation of the ADA constitutes a violation of the Unruh Act, Cal. Civ. Code section 51(f). All 22 references to the ADA are intended to include alleged ADA violations that by incorporation would violate
California law. Nothing in this Consent Decree is intended to waive California law.
23 2 The DFEH and the individual Plaintiff-Intervenors additionally allege violations of the California Unruh 24 Civil Rights Act (California Civil Code section 51 et seq.) and California Education Code section
99161.5. The individual Plaintiff-Intervenors also allege violations of the Unfair Competition Act 25 (California Business and Professions Code section 17200 et seq.).

26
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Case3:12-cv-01830-EMC Document198-1 Filed05/20/14 Page7 of 61

1 § 12206(e), LSAC is not excused from compliance with the requirements of the ADA because of

2 any failure to receive technical assistance.

3

Plaintiffs and LSAC agree that it is in the Parties’ best interests, the DFEH believes it is

4 in the public interest of California, and the United States believes it is in the public interest, to

5 fully and finally resolve this matter on mutually agreeable terms without trial of any issues of

6 fact or law raised in any of the Plaintiffs’ complaints, and without resort to protracted litigation.

7 Further, the Parties acknowledge and agree that there has been no adjudication as to the merits of

8 any of the claims raised herein, and the fact that LSAC has entered into this Consent Decree

9 should in no way be considered evidence of guilt or liability that it has violated the law in any

10 way. The Parties hereby agree and stipulate to the Court’s entry of this Consent Decree,

11 including the Order and Permanent Injunction, resolving the Plaintiffs’ complaints against

12 LSAC.

13

Now it is hereby ORDERED AND DECREED as follows:

14

PARTIES

15

1. Plaintiffs are: (1) the DFEH, a California state agency charged with enforcing the

16 rights of all Californians under the California Unruh Civil Rights Act (“Unruh Act”), Cal. Civ.

17 Code §§ 51 et seq.; (2) the United States of America; and (3) Andrew Quan, Nicholas Jones, and

18 Elizabeth Hennessey-Severson, individuals with alleged disabilities who claim that they were

19 subjected to discrimination by LSAC.

20

2. Defendant LSAC is a Delaware non-profit corporation headquartered at 662 Penn

21 Street, Newtown, Pennsylvania 18940. LSAC administers the LSAT multiple times each year

22 across the United States.

23

3. LSAC is a “person” that offers examinations related to applications for post-

24 secondary education within the meaning of 42 U.S.C. § 12189 and a “private entity” that offers

25 examinations related to applications for post-secondary education within the meaning of

26
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Case3:12-cv-01830-EMC Document198-1 Filed05/20/14 Page8 of 61

1 28 C.F.R. § 36.309. The LSAT is a secure examination, and LSAC routinely takes steps to

2 protect the security of LSAT examination content.

3

INJUNCTIVE RELIEF

4

4. General Obligations. LSAC shall comply with the requirements of 42 U.S.C.

5 § 12189 of the ADA and its implementing regulation at 28 C.F.R. § 36.309 (and California law

6 where applicable), including, inter alia, the obligation to offer the LSAT in a place and manner

7 accessible to persons with disabilities.

8

a. Pursuant to 28 C.F.R. § 36.309(b)(1)(i), LSAC shall select and administer

9 the LSAT so as to best ensure that, when the LSAT is administered to an individual with a

10 disability that impairs sensory, manual, or speaking skills, the LSAT results accurately reflect the

11 individual’s aptitude or achievement level or whatever other factor the examination purports to

12 measure, rather than reflecting the individual’s impaired sensory, manual, or speaking skills

13 (except where those skills are the factors that the LSAT purports to measure).

14

b. Pursuant to 28 C.F.R. § 36.309(b)(3), LSAC shall provide appropriate

15 auxiliary aids for persons with impaired sensory, manual, or speaking skills, unless LSAC can

16 demonstrate that offering a particular auxiliary aid would fundamentally alter the measurement

17 of the skills or knowledge the examination is intended to test or would result in an undue burden.

18

5. LSAC Shall Ensure That Documentation Requests Are Reasonable And Limited

19 To The Need For The Testing Accommodation3 Requested.

20

a. For those candidates whose documentation establishes that they previously

21 were approved to receive testing accommodations on any standardized examination offered in 22 the United States related to applications for post-secondary admission,4 and with respect to the

23 3 The commonly used term “testing accommodation” refers, collectively, to “modifications,

accommodations, or auxiliary aids or services” as referenced in 28 C.F.R. § 36.309. 24

25

4 For purposes of Paragraph 5(a), these examinations are the LSAT, SAT I and II, ACT, GED, GRE, GMAT, DAT, and MCAT examinations, unless this list is modified by agreement of the Parties.

26
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Case3:12-cv-01830-EMC Document198-1 Filed05/20/14 Page9 of 61

1 testing accommodations for which they were previously approved, LSAC shall require no more

2 documentation than proof of the approval for such testing accommodations, and certification by

3 the candidate through a checkmark box on the candidate form that the candidate is still

4 experiencing the functional limitations caused by the disability(ies) for which testing

5 accommodations were approved. Acceptable proof of prior testing accommodations shall consist

6 of a letter or similar documentation from the other test sponsor confirming that testing

7 accommodations were approved and specifically identifying what those approved testing

8 accommodations were. Upon receipt of such proof in accordance with LSAC’s established

9 deadlines, without further inquiry or request for additional documentation, LSAC shall grant

10 those previously approved testing accommodations, or the equivalent testing accommodation 11 offered on the LSAT,5 with respect to requests for extended time up to double time6 as well as

12 certain other testing accommodations that are listed in Exhibit 1. Testing accommodations will

13 only be provided in accordance with this Paragraph 5(a) if the testing can be administered on one

14 day. If the requested testing accommodations cannot be administered on one day, they will be

15 evaluated in accordance with Paragraphs 5(b)-(d). If the requested testing accommodation is one

16 that is not covered by this Paragraph 5(a) and Exhibit 1, it will be evaluated in accordance with

17 Paragraphs 5(b)-(d).

18

19 5 For example, LSAC shall provide a candidate who submits appropriate documentation that she received
20 double time for the GRE with extended time for both the multiple choice sections and the writing section of the LSAT – despite the fact that the GRE may not specify the sections on which a candidate received
21 extended time. Likewise, a candidate may submit appropriate documentation showing that she previously received the testing accommodation of “large block answer sheet” on the ACT. If that exact testing
22 accommodation is not offered for the LSAT, LSAC shall grant the closest equivalent testing accommodation provided for the LSAT – such as an alternate non-Scantron answer sheet.
23 6 Although candidates who previously received in excess of double time will be granted double time
24 under this provision, LSAC will consider the balance of requested extended time, and any other testing accommodations not previously received on a standardized examination related to applications for post-
25 secondary admission, under the provisions of Paragraphs 5(b)-(d).

26
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Case3:12-cv-01830-EMC Document198-1 Filed05/20/14 Page10 of 61

1

b. For those requests that do not meet the requirements of Paragraph 5(a) in

2 whole or in part, any request from LSAC for documentation with respect to any part of a request

3 not covered by Paragraph 5(a) shall be reasonable and limited to the need for the testing

4 accommodation requested.

5

c. Subject to any further direction from the Panel as set forth in

6 Paragraph 7(c)(ii):

7

i.

Requests by candidates who were previously approved to receive

8 extended time in excess of double time,7 or any testing accommodation not covered by

9 Paragraph 5(a) and Exhibit 1, for any standardized examination related to applications for post-

10 secondary admission, and who seek the same testing accommodations on the LSAT, will be

11 subject to LSAC’s then-applicable documentation requirements, as revised herein.

12

ii.

Requests by candidates who seek more extended test time or break

13 time than they previously were approved to receive as a testing accommodation for any 14 standardized examination related to applications for post-secondary admission8 will be subject to

15 LSAC’s then-applicable documentation requirements, as revised herein.

16

iii.

When reviewing the requests identified in this Paragraph 5(c),

17 LSAC will not re-evaluate whether the candidate has a covered disability within the meaning of

18 the ADA.

19

d. In evaluating testing accommodation requests under Paragraphs 5(b)-(c):

20

i.

LSAC shall consider all facts and explanations offered by the

21 candidate regarding his or her history or the need for the requested testing accommodations,

22

23 7 For such requests, LSAC shall automatically grant double time on the LSAT, consistent with the
provisions of Paragraph 5(a). 24
8 For such requests, LSAC shall automatically grant the amount of extended test time or break time 25 previously approved by the other testing entity, subject to the requirements of Paragraph 5(a).

26
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Case3:12-cv-01830-EMC Document198-1 Filed05/20/14 Page11 of 61

1 including factors such as late-in-life diagnosis of disability, recent onset of a disability,

2 progression of a disability, lack of resources, or having a non-traditional educational background.

3

ii.

LSAC shall give considerable weight to documentation of past

4 testing accommodations received in similar testing situations not covered by Paragraph 5(a), as

5 well as such testing accommodations provided in response to an Individualized Education 6 Program (IEP)9 or a Section 504 Plan.10

7

iii.

LSAC shall consider documentation provided by a qualified

8 professional11 who has made an individualized assessment of the candidate.

9

iv.

LSAC agrees to update the information and forms provided to

10 candidates regarding the recency of testing used in support of a testing accommodation request

11 based on a mental or cognitive impairment to permit such candidates to submit testing conducted

12 within five years of the date of the request for testing accommodations on the LSAT in support

13 of their testing accommodation request, instead of within three years as currently required for

14 certain candidates.

15

v.

LSAC may consider objective evidence relating to the candidate’s

16 diagnosed impairment and its impact on the candidate.

17

vi.

LSAC shall not reject or deny a candidate’s application for a

18 particular testing accommodation based solely on the candidate’s average or above average IQ

19 score and/or high level of academic success.

20

21 9 An IEP describes the special education and related aids and services provided under the Individuals with
Disabilities Education Act (IDEA). 22
10 A Section 504 Plan describes special or regular education and related aids and services provided 23 pursuant to section 504 of the Rehabilitation Act of 1973.

24 11 A “qualified professional,” as that term is used throughout this Decree, is “licensed or otherwise

25

properly credentialed and possess[es] expertise in the disability for which modifications or accommodations are sought.” 28 C.F.R. pt. 36, app. A, at 784.

26
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1

vii.

LSAC shall not reject or deny a candidate’s application for a

2 particular testing accommodation (including a request for a different or additional testing

3 accommodation than previously received) solely because the candidate has no formal history of

4 receiving that testing accommodation.

5

viii.

LSAC may make a timely request for supplemental information if

6 the documentation submitted by a candidate does not clearly establish the nature of the

7 impairment or the need for requested testing accommodations. Any such request for

8 supplemental information must be consistent with the remaining requirements of Paragraphs

9 5(b)-(d). LSAC may also have the documentation that is submitted by or on behalf of a

10 candidate timely reviewed by one or more qualified professionals of LSAC’s choosing at

11 LSAC’s request and expense.

12

e. LSAC shall clearly state, on its website and in its print materials (if any),

13 the documentation it requires to substantiate a request for testing accommodations, consistent

14 with this Decree and the ADA, as well as common reasons why supporting documentation is

15 deemed insufficient by LSAC. Additionally, LSAC shall provide, on its website and in its print

16 materials (if any), a non-exhaustive list of the types of testing accommodations available.

17

f. LSAC shall modify the deadline information stated at various locations on

18 its website and in the LSAC Accommodations Request Packet (currently located at

19 http://www.lsac.org/jd/pdfs/accommodationsformgeninfo.pdf) to include the

20 following: “Persons with disabilities seeking testing accommodations must submit their request

21 for testing accommodations together with all supporting documentation by the stated registration

22 deadline to be considered for testing accommodations. The stated registration deadline is also

23 the deadline for LSAC to receive any supplemental documentation that may be requested by

24 LSAC or submitted by the candidate after the receipt of the original request and for LSAC to

25 receive any request for reconsideration of LSAC’s testing accommodations determinations.

26
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1 Barring unforeseen circumstances, LSAC will respond to each request for testing

2 accommodations within 14 business days of its receipt. Therefore, if a request is received within

3 two weeks of the deadline, you may not have the opportunity to supplement your file if, after

4 review of your request, we determine that additional information is needed to make a decision.

5 Additionally, you may not be able to request reconsideration of our decision.” This language is

6 subject to further direction from the Panel regarding the need for and availability of an appeals

7 process and, if needed, what that process should be, as set forth in Paragraph 7(c)(iii)(7).

8

g. LSAC agrees to revise its Guidelines for Documentation of Cognitive

9 Impairments to eliminate the following language: “Please note that if you are currently taking

10 medication, you should consider being evaluated while on your medication. Any deviation from

11 this practice must be explained by your evaluator.” LSAC further agrees to revise its Evaluator

12 Form to eliminate the request for an “explanation” if a candidate was not on his or her prescribed

13 medication during the evaluation. LSAC may continue to ask evaluators whether a candidate

14 was on his or her prescribed medication during the evaluation, followed by the words, “If

15 relevant and appropriate, please comment.”

16

h. The provisions of Paragraph 5, including any changes to LSAC’s policies

17 or practices required by Paragraph 5, shall be implemented for the next administration of the

18 LSAT following entry of this Decree by the Court (“Effective Date”). However, if the next

19 administration of the LSAT is less than two months away from the Effective Date, LSAC shall

20 implement the changes for the second administration of the LSAT following the Effective Date

21 of this Decree.

22

6. LSAC Shall Diversify The Expert Consultants It Uses To Review Requests For

23 Testing Accommodations. LSAC shall increase the number of expert consultants and diversify

24 the areas of expertise of the expert consultants it uses to review and evaluate requests for testing

25 accommodations.

26
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1

7. LSAC Shall Implement Best Practices As Established By A Panel Of Experts To

2 Be Agreed Upon By The Parties12 To Comply With 28 C.F.R. § 36.309.

3

a. Panel. The Panel shall be comprised of five experts: two selected by

4 LSAC; two selected by the United States and the DFEH; and a fifth selected by those four

5 experts from a list prepared by the United States and the DFEH. For their two selections, the

6 United States/DFEH and LSAC will each select one individual with expertise in the provision of

7 testing accommodations within the context of standardized test administration and one individual

8 with expertise in cognitive disabilities. The Parties will select their experts within ten (10) days

9 of the Effective Date. Within five (5) days of confirmation of service by all the selected experts,

10 the United States and the DFEH will give to the four experts a list of three additional experts,

11 each of whom shall have expertise in ADA compliance. The individuals listed for possible

12 selection as this fifth Panel member shall not have previously assisted or consulted with any

13 Party (including the individual Plaintiff-Intervenors) for purposes of this litigation. No Panel

14 member can be an attorney who has previously personally represented a party adverse to LSAC

15 or the United States in a lawsuit or government agency proceeding involving LSAC; LSAC shall

16 provide a list of all such attorneys to the United States and the DFEH by the Effective Date of

17 the Decree. Within five (5) days, the four selected experts will choose a fifth expert from the list

18 provided by the United States and the DFEH. Within five (5) days of the fifth expert confirming

19 his or her willingness to serve on the Panel, all of the chosen experts will be notified of the final

20 composition of the Panel by joint letter from the Parties. During the period of their service under

21 this Consent Decree and through conclusion of any reconvening of the Panel (or expiration of the

22 time period for reconvening the Panel) pursuant to Paragraph 7(d)(vi), members of the Panel

23

24

25 12 All references to the “Parties” in Paragraph 7 refer solely to the United States, the DFEH, and LSAC.

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1 may not personally represent anyone, or serve as expert witnesses for anyone, who is adverse to

2 LSAC in any pending lawsuit or government agency proceeding.

3

b. Duties. It shall be the Panel’s duty to prepare a written report establishing

4 Best Practices that comport with the requirements of 28 C.F.R. § 36.309, all of which LSAC

5 shall implement to the extent that it is not already following such Best Practices. When

6 establishing the Best Practices, the Panel shall clearly and expressly state in writing whether

7 each Best Practice is already being followed by LSAC or needs to be implemented by LSAC.

8 The Best Practices shall be consistent with the provisions of this Decree and shall not violate the

9 ADA or its implementing regulations, or California law where applicable. The United States

10 and the DFEH agree that, for the four-year term of this Decree, neither the United States nor the

11 DFEH will assert in any forum that LSAC has violated the ADA, its implementing regulations,

12 or any provision of California law by taking actions in compliance with any of the Best

13 Practices that have not been challenged by a Party pursuant to Paragraphs 7(d)(iv)-7(d)(vii)

14 below or, if challenged, have not been invalidated by the Court. The Panel shall determine how

15 many of the five Panel members must agree on each Best Practice in order for it to be imposed

16 as a Best Practice.

17

c. Issues To Be Addressed By Panel.

18

i.

Diversification. The Panel shall provide LSAC with

19 recommendations on how to diversify its expert consultants, in terms of numbers and areas of

20 expertise, which LSAC shall implement.

21

ii.

Documentation. The Panel shall consider and establish the type

22 and scope of appropriate documentation that may be requested from candidates whose requests

23 fall under Paragraphs 5(b)-(d) above. The Panel shall include in its consideration the

24 documentation requirements for candidates who have received some of their requested testing

25 accommodations for a standardized examination related to applications for post-secondary

26
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1 admission but who request additional testing accommodations, or in excess of double time, for 2 the LSAT,13 consistent with the terms of Paragraph 5(b) above.

3

iii.

Review of Testing Accommodation Requests. The Panel shall

4 address the following elements of the process for reviewing and evaluating testing

5 accommodation requests:
6

7

1) Reviewers. The Panel shall consider and establish the appropriate qualifications for persons, such as LSAC staff and/or outside

8

consultants, who make substantive adverse decisions on requests for testing accommodations.

9

2) Qualified Professionals. The Panel shall determine whether more

10

than one qualified professional should review a documented request for testing accommodations before LSAC may deny the

11

request in whole or in part.

12

3) Criteria and guidelines for reviewers. The Panel shall consider and establish criteria and guidelines for use by persons who review or

13

evaluate testing accommodation requests.

14

4) Written recommendations from reviewers. The Panel shall consider whether there should be particular parameters for written

15

recommendations from any outside consultant who reviews or evaluates requests for testing accommodations and, if so, what

16

those parameters should be. The Panel shall also consider whether there should be particular parameters for internally documenting

17

written decisions by LSAC personnel who make substantive decisions on requests for testing accommodations and, if so, what

18

those parameters should be.

19

5) Written explanations for denials of testing accommodation requests. The Panel shall consider whether there should be

20

particular parameters for written explanations provided by LSAC to candidates whose requests for testing accommodations are

21

partially or fully denied and, if so, what those parameters should be.

22

6) Automatic review of partial and full denials. The Panel shall

23

consider whether an automatic review of partial and/or full denials

24 13 For example, a candidate may have received 50% extended time previously (to which he or she is entitled under Paragraph 5(a)) but may request 100% additional time for the LSAT (where the additional
25 extended time is subject to Paragraphs 5(b)-(d)).

26

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1

is warranted and, if warranted, how such a review should be conducted.

2

7) Timely/streamlined appeals process. The Panel shall consider

3

whether there should be a process available, beyond that already provided by LSAC, to candidates who wish to seek review of

4

LSAC’s decision to deny a candidate’s request and, if so, what that process should be relative to LSAC’s existing registration

5

deadlines.

6

8) Training. The Panel shall consider and establish the parameters, such as content and timing of, training for persons (both LSAC

7

staff and outside consultants) who evaluate or review testing accommodation requests.

8

iv.

Other. The Best Practices shall not invalidate or conflict with any

9 other provisions of this Decree.

10

d. Process. The Panel shall complete its written report within six (6) months

11 after the fifth Panel member has been appointed in accordance with Paragraph 7(a). Upon

12 agreement of the Parties, the Panel may be granted additional time if necessary to complete its

13 report. Except as otherwise explicitly stated in this Decree, LSAC is not required by this

14 Decree to implement changes to its policies or forms prior to the Panel’s completion of its

15 written report.

16

i.

At its first meeting, the Panel shall establish a process with

17 measurable benchmarks to effectuate its duties herein and a time frame for achieving those

18 benchmarks.

19

ii.

At the Panel’s first meeting, the Parties shall have the opportunity

20 to present their views on the issues addressed herein to the full Panel.

21

iii.

The Panel shall also give each of the Parties an opportunity to

22 comment in writing on the Panel’s draft Best Practices at least two (2) weeks prior to the

23 issuance of a final report.

24

iv.

Within two (2) months of the issuance of the Panel’s final report,

25 any Party may appeal to the Court for appropriate relief if any of the Panel’s final Best Practices,

26
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1 as written, are believed to violate the ADA or its implementing regulations, or California law

2 where applicable, or to conflict with the provisions of this Decree. If any Party intends to file

3 such an appeal with the Court, the Party must first notify all other Parties of its intent in writing

4 within one (1) month of the issuance of the final report. Such notice must include a list of the

5 Best Practice(s) the Party intends to challenge, as well as the Best Practice(s) for which

6 implementation will, and will not, be stayed during the pendency of the appeal, subject to the

7 dispute-resolution provisions set out in Paragraph 7(d)(v).

8

v.

LSAC shall implement the Best Practices no later than six (6)

9 months following either the expiration of the one (1) month notice period required under

10 Paragraph 7(d)(iv) or LSAC’s receipt of a written agreement by all Parties not to challenge the

11 Best Practices pursuant to Paragraph 7(d)(iv), whichever comes first. If, however, any Party

12 submits notification that it intends to appeal to the Court with respect to any of the Panel’s final

13 Best Practices pursuant to Paragraph 7(d)(iv), LSAC’s implementation of the Best Practice(s)

14 subject to appeal, as well as any other Best Practice(s) identified by the appealing Party as

15 subject to the stay in its notice under Paragraph 7(d)(iv), are stayed pending a final determination

16 by the Court with respect to the appealed Best Practice(s). During the duration of any such stay,

17 LSAC shall continue to implement all other Best Practices. If a dispute arises as to whether

18 implementation of any of the other Best Practices should be stayed pending appeal, the Parties

19 shall meet and confer, and a good faith effort shall be made by the Parties to resolve such

20 differences promptly. If the United States, the DFEH, or LSAC believes that resolution cannot

21 be achieved, it shall promptly notify the other two Parties in writing and shall specify its final

22 position with regard to the dispute. Thereafter, any of these Parties may pursue the issue with 23 the Court.14

24

25 14 The provisions of Paragraph 21(b) do not apply to any pursuit by the DFEH of relief from the Court

under this Paragraph 7(d)(v) or Paragraph 7(d)(vii), and the DFEH will not be entitled to payment of any 26
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1

vi.

Within two (2) months of the United States’ and the DFEH’s

2 receipt, pursuant to Paragraph 23, of LSAC’s first annual report after LSAC’s implementation of

3 the Best Practices for at least one test administration, or at any time prior to that, any of the

4 Parties may request in writing that the Panel be reconvened to consider revising the Best

5 Practices, in which event the Panel shall be reconvened to make recommendations regarding

6 whether revisions are necessary to the applicable Best Practice(s). For purposes of this

7 paragraph, the Panel will only consider “revisions” to the Best Practices that fall within the ten

8 (10) topics for consideration by the Panel defined in Paragraphs 7(c)(i)-7(c)(iii) above. The

9 Panel shall provide its recommendations in a written report to be completed within three (3)

10 months of the Panel being reconvened; provided, however, that with the agreement of all the

11 Parties, the Panel may be granted additional time to issue this report. The Panel shall give the

12 Parties an opportunity to comment in writing on the Panel’s draft revised Best Practices at least

13 two (2) weeks prior to the issuance of the final revised Best Practices.

14

vii.

The Parties shall have two (2) months from the issuance of the

15 final revised Best Practices to appeal to the Court for appropriate relief if any of the Panel’s final

16 revised Best Practices, as written, are believed to violate the ADA or its implementing

17 regulations, or California law where applicable, or to conflict with the provisions of this Decree.

18 If any Party intends to file such an appeal with the Court, the Party must first notify all other

19 Parties of its intent in writing within one (1) month of the issuance of the final revised Best

20 Practices. Such notice must include a list of the Best Practice(s) the Party intends to challenge,

21 as well as the Best Practice(s) for which implementation will, and will not, be stayed during the

22 pendency of the appeal, subject to the dispute-resolution provisions discussed in this paragraph,

23 below. LSAC shall implement any final revised Best Practices no later than four (4) months

24 attorneys’ fees or costs by LSAC if it prevails on any issue brought before the Court under Paragraphs
25 7(d)(v) or 7(d)(vii).

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1 following either the expiration of the one-month notice period required under this paragraph or

2 LSAC’s receipt of a written agreement by all Parties not to challenge the final revised Best

3 Practices pursuant to this paragraph, whichever comes first. If, however, any Party provides

4 notification of its intent to appeal to the Court with respect to any of the Panel’s final revised

5 Best Practices under this paragraph, implementation of the revised Best Practice(s) subject to

6 appeal, as well as any other Best Practice(s) identified by the appealing Party as subject to the

7 stay in its notice under this paragraph, are stayed pending a final determination by the Court with

8 respect to the appealed Best Practice(s). During the duration of any such stay, LSAC shall

9 continue to implement all other Best Practices. If a dispute arises as to whether implementation

10 of any of the other Best Practices should be stayed pending appeal, the Parties shall meet and

11 confer, and a good faith effort shall be made by the Parties to resolve such differences promptly.

12 If the United States, the DFEH, or LSAC believes that resolution cannot be achieved, it shall

13 promptly notify the other two Parties in writing and shall specify its final position with regard to

14 the dispute. Thereafter, any of these Parties may pursue the issue with the Court.

15

e. Communications. The Panel may:

16

i.

Have ex parte communications at any time with the Parties,

17 including counsel for the Parties and employees, agents, contractors, and all others working for

18 or on behalf of the Parties. Any such communications with employees, agents, or contractors of

19 LSAC must be arranged through in-house counsel for LSAC, and counsel for LSAC may be

20 present for such communications if counsel’s presence is requested by the Panel or any LSAC

21 employee, agent, or contractor involved in such communication.

22

ii.

Request meetings with the Parties, individually or in combination.

23 The purpose of these meetings shall include, among other things, prioritizing areas for the Panel

24 to review and discussing areas of concern.

25

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1

iii.

Speak with anyone else the Panel deems necessary for

2 accomplishing its duties under this Decree, including without limitation current or past test-

3 takers. LSAC, however, will be under no obligation to provide the names or contact information

4 of current or past test-takers to the Panel. To the extent the Panel deems it necessary to

5 communicate with any current or past test-takers, LSAC agrees to facilitate such

6 communications upon request.

7

iv.

Individual Panel members shall not engage in any ex parte

8 communications without the knowledge and approval of all other Panel members.

9

v.

The Panel shall disclose to the Parties prior to issuance of its final

10 report all individuals with whom the Panel or any of its members have communicated, the Panel

11 members participating in the communication(s), and the date(s) of such communication(s), but it

12 need not disclose the substance of such communication(s).

13

f.

Access. LSAC shall direct all employees to cooperate fully with the

14 Panel. LSAC will request that its contractors cooperate fully with the Panel. No Party shall

15 interfere with the independent functions of the Panel. Information or documents obtained in

16 performing their duties hereunder may only be used by Panel members for the purposes of

17 considering, establishing, and reporting on the Best Practices pursuant to this Decree. The Panel

18 members shall further be subject to the terms of the protective order entered in this case: ECF

19 No. 123, Parties’ Stipulated Protective Order Respecting Confidential Information (“Protective

20 Order”).

21

g.

Final Report. The Panel’s final report shall be publicly available. If the

22 final report contains confidential information, as defined in the Protective Order, such

23 information shall be redacted from the publicly available final report.

24

h.

Cost. All reasonable fees, costs, and expenses of the Panel shall be borne

25 by LSAC, but the Panel and its members are neither agents nor contractors of the United States,

26

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1 the DFEH, or LSAC. The Panel shall provide sufficiently detailed monthly invoices justifying

2 any fees, costs, and expenses. Panel members shall be paid a standard reasonable rate, to be

3 determined by the Parties following identification of the proposed Panel members. If the Parties

4 cannot reach agreement on the rate to be paid, the issue shall be submitted to Magistrate Judge

5 Joseph Spero for resolution. LSAC shall reimburse all reasonable expenses incurred by the

6 Panel, or any of its members, in the course of the performance of the duties of the Panel in

7 accordance with LSAC’s current applicable policies, practices, and procedures for

8 reimbursement of employee travel and expenses, excluding the approval process applicable to

9 LSAC staff and employees and the requirement that air travel be charged to LSAC’s corporate

10 account or an LSAC corporate credit card. The Court retains the authority to resolve any dispute

11 that may arise regarding the reimbursement of fees and costs charged by the Panel. The Court

12 shall be the final arbiter of what costs and expenses shall be reimbursed by LSAC.

13

8. Tracking and/or Maintenance of Testing Accommodation Data.

14

a. For each candidate who requests testing accommodations subsequent to

15 the Effective Date of this Decree, LSAC shall maintain for the term of the Decree and track in a

16 readily searchable format the following information for each specific request by that candidate:

17 (a) date the candidate requested testing accommodations; (b) candidate’s date of birth; (c) LSAC

18 account number; (d) test date requested; (e) disabilities for which the candidate requested testing

19 accommodations; (f) each testing accommodation requested; (g) each testing accommodation

20 previously received on standardized tests (if documented by the candidate); (h) whether the

21 candidate ever had a Section 504 Plan (if documented by the candidate); (i) whether the

22 candidate ever had an IEP (if documented by the candidate); (j) whether LSAC requested

23 additional documentation from the candidate; (k) for each testing accommodation requested,

24 whether the request was granted in full or denied in full or denied in part; (l) date of LSAC’s

25 decision letter for each requested testing accommodation; (m) the name of any outside

26
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1 consultant(s) who reviewed the request; (n) the name(s) of all other individual(s) who reviewed

2 the request for the purpose of making a substantive decision whether to grant or deny the request;

3 (o) reasons each requested testing accommodation was denied in full or denied in part, if

4 applicable; and (p) fees paid to LSAC by the candidate relating to the LSAT. LSAC shall have

5 eight (8) weeks after the Effective Date of this Decree to have such database(s) in place.

6

b. For any lawsuit or any complaint filed with a government agency alleging

7 that LSAC improperly failed to provide testing accommodations following LSAC’s final

8 determination regarding a test taker’s request for testing accommodations for the LSAT, LSAC

9 shall maintain the complaint and documentation reflecting any response by LSAC and the

10 resolution (if any) for the term of the Decree and track in a readily searchable format the

11 following information: (1) the nature of the complaint, (2) the name of the candidate on whose

12 behalf the complaint was sent, and (3) the outcome of the complaint (if any). LSAC shall have

13 eight (8) weeks after the Effective Date of this Decree to have such database in place. For the

14 term of the Decree, LSAC shall maintain appropriate supporting documentation for the

15 information being tracked pursuant to this paragraph.

16

c. Subject to its standard document retention schedule, but at minimum for

17 the term of the Decree, LSAC agrees to maintain in the candidates’ accommodated testing files

18 copies of correspondence received by LSAC on behalf of candidates whose testing

19 accommodation requests have been denied, in whole or in part, by LSAC.

20

d. LSAC agrees to establish a separate electronic mailbox and corresponding

21 email address dedicated to the receipt of complaints (other than complaints filed with courts or

22 government agencies) alleging that LSAC improperly failed to provide testing accommodations

23 following LSAC’s final determination regarding a test taker’s request for testing

24 accommodations on the LSAT. LSAC shall post this email address on the accommodated testing

25 webpage (currently located at http://lsac.org/jd/lsat/accommodated-testing), to remain posted for

26
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1 the term of this Decree. LSAC will instruct candidates that the subject line of emails sent to this

2 email address should contain the candidate’s LSAC account number and that a copy of any

3 complaints sent by mail or facsimile should also be sent to this email address. LSAC shall have

4 four (4) weeks after the Effective Date of this Decree to have such an electronic mailbox in

5 place. LSAC will maintain any correspondence sent to this email address for the term of this

6 Decree and shall provide such documents and/or information in a timely manner to the United

7 States, and to the DFEH (to the extent that such documents and information pertain to

8 individuals who tested in California), upon reasonable request.

9

e. To the extent that any of the documents, information, and/or data

10 described in Paragraph 8 is provided to the United States pursuant to this Decree (and/or to the

11 DFEH for individuals testing in California), LSAC may redact the names, addresses, and any

12 other personally identifiable information, unless otherwise expressly stated herein, of any current

13 or past test-takers before providing the documents, information, and/or data.

14

PERMANENT INJUNCTION ON SCORE ANNOTATIONS

15

9. Permanently Discontinue Score Annotating. LSAC shall permanently discontinue

16 all forms of the practice of annotating score reports of candidates who receive the testing

17 accommodation of extended test time due to disability. For candidates applying to law school

18 after the Effective Date of this Decree, LSAC shall henceforth provide the same information on

19 test score reports for all candidates for whom score reports are provided.

20

All relief provided for in this Decree with respect to LSAT test score reports and/or score

21 annotations is solely prospective in nature. No monetary relief is being paid by LSAC on the

22 basis of its prior score annotation practices.

23

CIVIL PENALTY

24

10. Civil Penalty ($55,000). The ADA authorizes the Attorney General to seek, and

25 the Court to award, civil penalties of fifty-five thousand dollars ($55,000) for a first violation of

26
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11 Title III of the ADA. 42 U.S.C. §§ 12188(b)(2)(C) & (b)(3); 28 C.F.R. §§ 36.504(a)(3) & (b).

22 The United States believes the imposition of a civil penalty in this case is warranted to vindicate

33 the public interest in eliminating discrimination on the basis of disability. LSAC denies that a

44 civil penalty is warranted in this case, but, in the interest of settling this litigation and without

55 admitting any wrongdoing, LSAC shall pay the amount of fifty-five thousand dollars ($55,000)

66 to the United States as a civil penalty. LSAC shall issue a check in the amount of fifty-five

77 thousand dollars ($55,000), payable to the “United States Treasury,” to be delivered by counsel

88 for LSAC to counsel for the United States identified in Paragraph 29 within five (5) days of the

99 Effective Date of this Decree.

1100

MONETARY RELIEF

1111

11. Payments To Individuals ($7,675,000.00). LSAC agrees to pay seven million, six

1122 hundred and seventy-five thousand dollars ($7,675,000.00) in compensatory damages, to be

1133 apportioned as detailed below. None of the payments provided for in this Decree, other than

1144 those set forth in Paragraph 10, constitute payment of exemplary or punitive damages. LSAC is

1155 making these payments without conceding either liability or entitlement to claimed damages.

1166

a. Monetary Relief To Individuals Named In The United States’ And The

1177 DFEH’s Complaints ($945,000). LSAC agrees to pay a sum of nine hundred and forty-five

1188 thousand dollars ($945,000) to the Plaintiffs for compensation of the individuals named in

1199 Plaintiffs’ complaints, as follows: five hundred and eighty-five thousand dollars ($585,000) to

2200 the DFEH; two hundred and twenty-five thousand dollars ($225,000) to the United States; and

2211 one hundred and thirty-five thousand dollars ($135,000) to be distributed to individual Plaintiff-

2222 Intervenors Andrew Quan, Nicholas Jones, and Elizabeth Hennessey-Severson. Payment of

2233 these sums shall be rendered to respective counsel for the United States, the DFEH, and the

2244 individual Plaintiff-Intervenors within fourteen (14) days after LSAC’s receipt of all signed

2255 releases. For all individuals named in the United States’ and the DFEH’s complaints, other than

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1 the individual Plaintiff-Intervenors, these releases will be in the form of Exhibit 3. The United

2 States and the DFEH shall have thirty (30) days after the Effective Date of this Decree to obtain

3 releases from all of the individuals named in their complaints (other than the individual Plaintiff-

4 Intervenors) and/or to inform LSAC of those individuals who have not provided releases. If any

5 individual named in the United States’ or the DFEH’s complaint does not execute his or her

6 release during this thirty (30) day period, his or her payment amount will be added to the

7 Residual Amount referenced in Paragraph 17 of this Decree. Payment shall be made by LSAC

8 through checks issued in the name of each individual15 named in the Plaintiffs’ complaints who

9 has provided a signed release, to be delivered by LSAC to the applicable counsel identified in

10 Paragraph 29 and footnote 18.16 All individuals entitled to payment under this Paragraph 11(a)

11 will provide completed and executed W-9 Forms to LSAC as a condition precedent to receiving

12 payment under the terms of this Decree.

13

b. Compensation Fund For Individuals Who Requested Testing

14 Accommodations For The LSAT Between January 1, 2009 And May 20, 2014 And Who Are

15 Eligible Persons Under This Decree ($6,730,000). Within forty-five (45) days after the Effective

16 Date of this Decree, LSAC shall deposit the sum of six million, seven hundred and thirty

17 thousand dollars ($6,730,000) in an interest-bearing qualified settlement account for Eligible

18 Persons under this Decree (“Compensation Fund”). This account shall be established within ten

19 (10) days of retention of the Third-Party Claims Administrator (described in Paragraph 11(b)(iii)

20

21 15 The Plaintiffs anticipate that some checks may need to be issued for the benefit of a named individual and, in such instances, LSAC shall issue the check as designated by Plaintiffs’ counsel for one or more
22 particular individuals named in their complaints.

23 16 For those individuals named solely in the DFEH’s complaint, checks will be delivered to counsel for

the DFEH at the address listed in Paragraph 29(b). For those individuals named solely in the United 24 States’ complaint, checks will be delivered to counsel for the United States at the address listed in

25

Paragraph 29(a). For the individual Plaintiff-Intervenors, checks shall be sent to their attorneys at the Legal Aid Society – Employment Law Center at the address listed in footnote 18.

26
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11 below). This account shall be established, maintained, and administered by the Administrator,

22 and shall be identified on payment checks using the short-hand title, “LSAC Consent Decree.”

33 Title to this account shall be in the name of “LSAC for the benefit of aggrieved individuals

44 pursuant to Order of the Court in Civil Action 3:12-cv-01830-EMC.” LSAC shall submit written

55 verification to the United States and the DFEH that the funds have been deposited. The initial

66 deposit, and all interest accrued on that amount, shall make up the Compensation Fund and be

77 available for compensation of Eligible Persons under this Decree. LSAC shall bear all costs of

88 administering the Compensation Fund, including costs associated with establishing the account,

99 maintaining it, and issuing payments. On written request to the Administrator, copies of account

1100 statements shall be provided within seven (7) days to the United States and the DFEH.

111

i. Potential Eligible Persons. “Potential Eligible Persons” are

1122 individuals who requested testing accommodations on the LSAT between January 1, 2009 and

1133 May 20, 2014, provided that they have not entered into a prior written release agreement with

1144 LSAC that applies to the request(s) for testing accommodations for which they would otherwise

1155 be eligible to submit a claim under this Decree. An individual who executed such a prior written

1166 release shall nonetheless be potentially eligible if he or she requested a testing accommodation

1177 for an administration of the LSAT that was not the subject of the release. LSAC agrees to

1188 provide the United States and the DFEH a list of the individuals who both requested testing

1199 accommodations on the LSAT between January 1, 2009 and May 20, 2014 and signed a release

2200 of claims against LSAC, with the dates of the releases, within ten (10) days of the Effective Date

2211 of this Decree.

222

ii. Eligible Persons. “Eligible Persons” are those Potential Eligible

2233 Persons who timely submit completed claims forms and properly executed releases in the form

2244 of Exhibit 3 (“Release”) to the Administrator within the Claims Period. Any Potential Eligible

2255 Person may decline all monetary benefits from this Decree by not returning a signed Release.

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1 The Decree does not limit the legal rights of any Potential Eligible Person who does not return a

2 signed Release within the Claims Period or any individual who is not a Potential Eligible Person

3 under this Decree.

4

iii. Retention Of Claims Administrator. A Third-Party Claims

5 Administrator (“Administrator”) will have access to and control of the Compensation Fund for

6 the purpose of compensating Eligible Persons. Within twenty (20) days of the Effective Date,

7 LSAC, the United States, and the DFEH will agree upon a third-party organization to serve as

8 Administrator. Within thirty (30) days of the Effective Date, LSAC will contract to retain the

9 Administrator to conduct the activities set forth in this Decree (“Retention Date”). LSAC will

10 obtain the United States’ consent to the contract prior to its execution. The United States shall

11 consult with the DFEH regarding any provisions specific to California claimants or processes, if

12 any, prior to consenting to such contract. LSAC will bear all costs associated with the claims

13 administration. LSAC’s contract with the Administrator will require that the Administrator

14 comply with the provisions of this Decree, as applicable to the Administrator, and with all

15 confidentiality and privacy restrictions applicable to the Parties in this matter, including the

16 Protective Order (ECF No. 123). The Administrator’s contract will also require the

17 Administrator to work cooperatively with the United States and the DFEH in the conduct of the

18 Administrator’s activities, including reporting regularly to and providing all requested

19 information to the United States and the DFEH. All information and data provided to the

20 Administrator pursuant to this Decree shall be used by the Parties and the Administrator only for

21 the purposes of implementing this Decree.

22

iv. Duties Of The Claims Administrator. The duties of the

23 Administrator shall include: (1) locating current addresses of Potential Eligible Persons; (2)

24 communicating with Potential Eligible Persons; (3) distributing documents to Potential Eligible

25 Persons; (4) tracking the return of claim forms, releases, and other documents; (5) tracing

26

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1 Potential Eligible Persons whose notices are returned as undeliverable; (6) reviewing documents

2 provided by the Parties and Potential Eligible Persons; (7) compiling a list of Eligible Persons

3 pursuant to the criteria set forth in this Decree and any further reasonable instructions provided

4 by the United States that would not result in significant additional administration costs; (8)

5 distributing payments to Eligible Persons; (9) reporting to the United States, the DFEH, and

6 LSAC on the distribution process; (10) verifying fund balances; (11) filing tax returns as 7 required by law; (12) establishing and maintaining an accessible17 website providing information

8 about the claims process; (13) establishing cost-free means for Potential Eligible Persons to

9 contact it, including both email and a toll-free number (and accompanying TTY text telephone

10 number); and (14) such other duties that are reasonably necessary to carry out the provisions of

11 this Decree as set forth in the contract with the Administrator. In no event shall the

12 Administrator send payment to any Eligible Person for whom the Administrator does not have a

13 properly executed Release.

14

v. Dispute Resolution. In the event the United States or the DFEH

15 has reason to believe that the Administrator is not materially complying with the terms of its

16 contract with LSAC, the United States and LSAC will meet and confer for the purpose of

17 agreeing on a course of action to effect the Administrator’s material compliance with its contract.

18 In the event that the United States and LSAC are unable to so agree, the United States or LSAC

19 may present the matter to the Court. To the extent any dispute involves California claimants or

20

21 17 For the purposes of this Consent Decree, websites will be considered “accessible” if they comply with 22 the Level A and Level AA Success Criteria and Conformance Requirements of the Web Content
Accessibility Guidelines 2.0 (Dec. 11, 2008) (“WCAG 2.0 Level AA”), published by the World Wide
23 Web Consortium (“W3C”), Web Accessibility Initiative (“WAI”), available at www.w3.org/TR/WCAG/. “Websites,” as used herein, includes: (i) all web pages, web applications, resources, and services within
24 the website domain, its subdomains, and related domains; and (ii) all of the information, resources, files, databases, images, graphics, text, audio, video, multimedia, services, code, and any other communications
25 sent by or retrieved from the website to members of the public accessing it.

26
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11 processes, the United States will consult with the DFEH regarding such disputes prior to

22 reaching agreement with LSAC or presenting the matter to the Court.

3 3

vi. Potential Eligible Persons List To Administrator. Within ten (10)

44 days of the Retention Date, LSAC shall deliver to the Administrator a “Potential Eligible Persons

55 List” that includes the following information, if known to LSAC, in electronic format for every

66 individual who requested testing accommodations for the LSAT from January 1, 2009 through

77 May 20, 2014: 8 8 9 9 1100

1) name;
2) LSAC identification number; and
3) contact information, including permanent address, last known addresses, phone numbers, and email addresses.

1111 This information shall be provided in a computerized format. LSAC will provide the

1122 Administrator any additional information reasonably requested by the Administrator in

1133 furtherance of any aspect of the claims process pursuant to this Decree, including social security

1144 numbers for particular individuals if known to LSAC and if provision of such information is

1155 legally permitted.

1166

vii. Notice By LSAC.

1177

1) LSAC Website. Within ten (10) days after the Retention

1188

Date, and through the start of the Claims Period (as defined in Paragraph 11(b)(x)), LSAC will publish the Notice in the

1199

form of Exhibit 2(a). Within ten (10) days of the start of the Claims Period, LSAC will replace the Exhibit 2(a)

2200

Notice with the Notice in the form of Exhibit 2(b), which it

2211

will publish for the remainder of the Claims Period. For purposes of this paragraph, “publish” means to maintain on

2222

LSAC’s website in an accessible and conspicuous location (i.e., directly linked from the primary web portals used by

2233

customers, with the description “Americans with Disabilities Act Claims Fund”). Such Notice (and all

2244

LSAC content linked to the Notice, if any) shall be in an

2255

accessible format to individuals who are blind or have low vision, as described in footnote 17.

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1 1

2) To Law Schools. Within ten (10) days after the start of the

2 2

Claims Period, LSAC shall make a one-time distribution of the Notice, attached hereto as Exhibit 2(b), to every law

3 3

school LSAC has reported LSAT scores to since January 1,

4 4

2009. LSAC shall determine the method for delivery of such Notice.

5 5

viii. Notice By Administrator. Within ten (10) days after the standards

66 are established by the Administrator and approved by the United States pursuant to Paragraph

77 12, the Administrator shall send the Release (attached hereto as Exhibit 3) and an approved claim

88 form and notice (to be prepared by the Administrator in consultation with LSAC and the United

99 States pursuant to Paragraph 12) (collectively, the “Notice Package”), via first-class, postage-

1100 prepaid U.S. mail and via electronic mail if possible, to each individual on the Potential Eligible

1111 Persons List. The claim form will instruct the Potential Eligible Person to provide a permanent

1122 address to which any payment under this Decree can be mailed for a period of up to twelve (12)

1133 months following delivery of the claim form.

1144

ix. Locating Potential Eligible Persons. The Administrator will utilize

1155 all reasonable methods routinely used by companies that administer litigation and government

1166 enforcement compensation funds to locate each Potential Eligible Person. For every individual

1177 on the Potential Eligible Person List whose Notice Package is returned to the Administrator as

1188 undeliverable, the Administrator will conduct a trace and search for additional contact

1199 information using reasonably available methods and technology. Within fifteen (15) days of

2200 receiving a returned Notice Package as undeliverable, the Administrator shall mail the Notice

2211 Package via first class, postage-prepaid U.S. mail to all additional addresses generated for the

2222 individual from the Administrator’s database search, and also attempt to reach the individual by

2233 phone and electronic mail if possible.

2244

x. Claims Period. Potential Eligible Persons shall have one-hundred

2255 eighty days (180) from the date that the Notice Package is sent to all Potential Eligible Persons

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1 (“Claims Period”) within which to submit a claim and all required documentation to the

2 Administrator in connection with this Decree.

3

12. Establishment Of Standards. Subject to the terms of this Decree, the

4 Administrator shall create a notice and claim form in consultation with LSAC and the United

5 States, and propose standards to: (1) distribute and collect claim forms from Potential Eligible

6 Persons; (2) distribute and collect Releases from Potential Eligible Persons; (3) fix deadlines for

7 all required processes; and (4) address any other considerations associated with establishing,

8 maintaining, and distributing payment to Eligible Persons. Within thirty (30) days of the

9 Retention Date, the Administrator shall send the proposed notice, claim form, and standards to

10 LSAC, the DFEH, and the United States. Within fifteen (15) days of receipt of the proposed

11 notice, claim form, and standards, the United States, following consultation with LSAC and the

12 DFEH regarding California claimants and processes, shall communicate its approval of or any

13 changes to the notice, claim form, and standards to the Administrator, who shall accept and

14 implement any such changes. No procedures beyond those in this Decree or approved by the

15 United States pursuant to this paragraph shall be imposed on any Eligible Person.

16

13. Claims Reporting. At regular intervals, but in no event less frequently than every

17 thirty (30) days after the Notice Package is sent to all Potential Eligible Persons, the

18 Administrator shall send the United States and the DFEH a list containing: (1) the names of all

19 Potential Eligible Persons who submitted a claim form and/or Release; (2) identification of all

20 Eligible Persons; and (3) if applicable, a brief description of why any Potential Eligible Person

21 was deemed not eligible. Within thirty (30) days of the close of the Claims Period, the

22 Administrator shall provide the United States, the DFEH, and LSAC with a proposed distribution

23 list that includes the information referenced above in this paragraph plus the proposed amount of

24 compensation to be awarded to each Eligible Person. The proposed compensation per Eligible

25

26

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1 Person shall be determined by dividing the Compensation Fund ($6,730,000) by the total number

2 of Eligible Persons, with each Eligible Person receiving the same payment amount.

3

The United States shall have thirty (30) days after receiving the proposed final list from

4 the Administrator to submit any corrections. Before submitting any such corrections, the United

5 States shall consult with the DFEH regarding any California claimants. The Administrator shall

6 make any changes or corrections submitted by the United States and, no later than ninety (90)

7 days after the close of the Claims Period, the Administrator shall issue to the United States, the

8 DFEH, and LSAC the final list containing the names of Eligible Persons and amounts to be paid

9 (“Final Distribution List”).

10

The determination of Eligible Persons and the amount awarded as contained in the Final

11 Distribution List are final and non-appealable. No individual or Party may request a review by

12 the Court or the Administrator of these determinations.

13

14. Payment. The Administrator’s contract shall require the Administrator to set forth

14 deadlines, subject to approval of the United States in consultation with the DFEH, so that

15 payments are promptly sent within a reasonable amount of time after the date the Administrator

16 issues the Final Distribution List in accordance with Paragraph 13. All such payments shall be

17 void if not cashed or deposited within ninety (90) days after the date of issue. If a check is

18 returned as undeliverable and/or goes uncashed after ninety (90) days from the date of issue, the

19 Administrator shall make reasonable attempts to contact and reissue checks to such individuals

20 for the next thirty (30) days.

21

15. No Set-Off. LSAC will not be entitled to a set-off, or any other reduction, of the

22 amount of payments to Eligible Persons, resulting from unpaid debts or otherwise, except as

23 expressly provided herein.

24

16. Notification Of Final Payment. The Administrator will notify LSAC, the United

25 States, and the DFEH in writing on the day when all payments of monetary relief to Eligible

26

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1 Persons required by this Decree have been sent.

2

17. Residual Amount In Compensation Fund. Within thirty (30) days after the

3 mailing of the last payment to an individual on the Final Distribution List, the Administrator

4 shall notify the United States, the DFEH, and LSAC in writing of the remaining balance of the

5 Compensation Fund (the “Residual Amount”). Any payments made to Eligible Persons that are

6 returned or not cashed or deposited within the applicable ninety (90) day period, subject to the

7 procedures set forth in Paragraph 14 for reissuing checks, will be added to the Residual Amount,

8 as will any remaining interest accrued on the Compensation Fund.

9

The entire Residual Amount shall be distributed in equal amounts to the DFEH Fair

10 Employment and Housing Enforcement and Litigation Fund, and LSAC, to be used by each for

11 purposes of implementing this Decree.

12

18. Taxes. Eligible Persons shall be solely responsible for paying any taxes they owe

13 resulting from payments they receive under this Decree. LSAC shall be solely responsible for

14 paying any applicable federal, state, and/or local taxes owed by the Compensation Fund, if any

15 (i.e., any such tax payments shall not be deducted from the Compensation Fund or from any

16 monetary award to Eligible Persons).

17

OTHER RELIEF

18

19. Renewed Requests For Testing Accommodations. Individuals who requested

19 testing accommodations from LSAC between January 1, 2009 and the Effective Date of the

20 Decree, and who were denied their requested testing accommodations in whole or in part, shall

21 be entitled to reregister to take the LSAT and to reapply for testing accommodations under the

22 revised policies and procedures established by this Decree that are in effect at the time of their

23 renewed testing accommodation request. Standard fees shall apply.

24

20. Specific Testing Accommodations For Named Individuals. The individuals

25 named in Plaintiffs’ complaints shall be entitled to take one (1) free administration of the LSAT

26

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1 with their request for testing accommodations handled in accordance with the revised policies

2 and procedures established under this Decree, as in effect at the time of their renewed request for

3 testing accommodations.

4

ATTORNEY FEES AND COSTS FOR THE DFEH AND

5

INDIVIDUAL PLAINTIFF-INTERVENORS

6

21. The DFEH, individual Plaintiff-Intervenors, and LSAC agree that:

7

a. Within five (5) days of the Effective Date of this Decree, LSAC shall pay

8 to the DFEH nine hundred thousand dollars ($900,000) and to the Legal Aid Society –

9 Employment Law Center, attorneys for individual Plaintiff-Intervenors Quan, Jones, and

10 Hennessey-Severson,18 one hundred thousand dollars ($100,000) in full settlement of any claim

11 by the DFEH and/or the individual Plaintiff-Intervenors or their attorneys for attorney fees and

12 costs for work on or relating to the litigation up through the term of the Decree, subject only to

13 Paragraph 21(b) below.

14

b. The DFEH shall be entitled to reasonable attorney fees and costs for work

15 performed on any prevailing motion to enforce the Consent Decree. If the DFEH is entitled to

16 seek payment of such fees and costs hereunder, the DFEH agrees to send LSAC a statement of

17 its work on any such motion, which shall include a list of hours worked by each DFEH staff

18 person, hourly rate, and any costs incurred. In the event LSAC disagrees with the DFEH’s

19 statement of work or its requested payment amounts or rates, it shall notify the DFEH in writing

20 within five (5) days after receipt of the statement, and LSAC and the DFEH will attempt to

21 informally resolve any dispute over the statement. In the event LSAC and the DFEH cannot

22 reach an informal resolution of any such dispute, they shall submit the matter to this Court for

23

24 18 Payment to these three named individual Plaintiff-Intervenors shall be made to their attorneys, Legal Aid Society – Employment Law Center, attention Jinny Kim, 180 Montgomery Street, Suite 600, San
25 Francisco, CA 94104.

26

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1 binding determination. LSAC shall deliver payment to the DFEH no later than ten (10) days

2 after receiving the DFEH’s statement or five (5) days after the resolution of any dispute.

3

c. Except as expressly provided herein, no Plaintiff shall be entitled to

4 recover attorney fees or costs related to this litigation.

5

ADA MONITOR AND REPORTING

6

22. Notice By LSAC. Within forty-five (45) days of the Effective Date of this

7 Decree, LSAC shall publish and maintain this Decree on its website by providing a link to the

8 Decree, with the following language: “LSAC has entered into a Consent Decree with the

9 California Department of Fair Employment and Housing and the United States regarding testing

10 accommodations for individuals with disabilities nationwide. For further information and to read

11 the text of the Decree, please visit http://www.ada.gov/lsac_consentdecree.htm.” This language

12 and a link to the Decree shall be prominently posted on the main company webpage (currently 13 located at http://lsac.org/) and on the accommodated testing webpage (currently located at

14 http://lsac.org/jd/lsat/accommodated-testing), to remain posted for the term of this Decree. This

15 language, link, and Consent Decree shall be in an accessible format to individuals who are blind 16 or have low vision, as described in footnote 17.

17

LSAC further agrees to revise the information on its website to notify candidates that it

18 does not annotate scores, with the following language: “LSAC does not annotate the score

19 reports of individuals with disabilities who take the LSAT with testing accommodations, 20 including the testing accommodation of extended time. All accommodated scores are reported in

21 the same manner as non-accommodated scores.” This language will be included in the

22 accommodated testing information currently found at http://www.lsac.org/jd/lsat/accommodated23 testing. LSAC will also include the following question and answer on the “Frequently Asked

24 Questions” section of its website (currently found at http://www.lsac.org/docs/default-source/jd-

25 docs/faq-non.pdf): (Question) “How are accommodated scores reported to law schools?”
26
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1 (Answer) “Scores earned with testing accommodations, including the testing accommodation of

2 extended time, are reported in the same manner as non-accommodated scores.” These changes

3 to the website shall be made within thirty (30) days of the Effective Date of this Decree.

4

23. Reporting By LSAC. Within forty-five (45) days after each national

5 administration of the LSAT during the term of this Decree, beginning with the first

6 administration of the LSAT at least two (2) months after the Effective Date of this Decree,

7 LSAC will provide a written report (“Report”) to the ADA Monitor, the United States, and the

8 DFEH. Each Report shall provide the data required to be tracked in Paragraph 8 for the prior

9 administration of the LSAT. Eighteen (18) months after the Effective Date of this Decree, and

10 annually thereafter, LSAC shall also report to the ADA Monitor, the United States, and the

11 DFEH: (a) LSAC’s actions taken to comply with this Decree; (b) any further actions LSAC plans

12 to take to comply with this Decree; (c) if applicable, the timeline for implementation of any

13 further actions LSAC plans to take to comply with this Decree; and (d) if applicable, any

14 difficulties LSAC has had, or anticipates having, in complying with this Decree. If any Report

15 contains confidential information, as defined in the Protective Order, it shall be treated in

16 accordance with the terms of the Protective Order (ECF No. 123).

17

LSAC shall maintain appropriate supporting records for the information contained in the

18 Reports, including, but not limited to, those described in Paragraph 8, and give access to such

19 information to the United States, the DFEH (to the extent that such information pertains to

20 individuals who tested in California), and/or the ADA Monitor, upon reasonable request.

21 “Access” in this paragraph is defined as access to the supporting records in LSAC’s office in

22 Newtown, Pennsylvania, for a period of no longer than five (5) business days and during

23 LSAC’s regular business hours, following at least ten (10) days’ written notice to LSAC.

24

24. ADA Monitor. Within sixty (60) days after the Effective Date of this Decree,

25 LSAC shall retain an independent ADA Monitor, to be mutually agreed upon by the United

26
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1 States, the DFEH, and LSAC. The purpose of the ADA Monitor is to assist the United States,

2 the DFEH, and the Court in evaluating LSAC’s compliance with the Decree. No Party, nor any

3 employee or agent of any Party, shall have any supervisory authority over the ADA Monitor’s

4 activities or interfere with the independent functions of the ADA Monitor (although LSAC shall

5 have authority to supervise the ADA Monitor’s movements and access if the ADA Monitor is on

6 site at LSAC’s offices). The ADA Monitor shall not be an employee or current contractor of any

7 Party. The ADA Monitor shall not be affiliated with any Party and shall not be an individual

8 who has assisted or consulted with any Party for purposes of this litigation. Except upon

9 approval of the other Parties, neither the Disability Rights Section of the Civil Rights Division in

10 the United States Department of Justice, the DFEH, nor LSAC shall offer or guarantee the ADA

11 Monitor employment or future benefits, in any form, including a position as a consultant or

12 independent contractor, during the term of the Consent Decree and for a period of two (2) years

13 following expiration of this Decree. During the term of this Consent Decree, the ADA Monitor

14 may not personally represent anyone, or serve as an expert witness for anyone, who is adverse to

15 LSAC or any of the Plaintiffs in any pending lawsuit or government agency proceeding.

16

25. Audits By ADA Monitor. The ADA Monitor shall conduct audits of LSAC’s

17 compliance with this Decree, by first evaluating LSAC’s Reports described in Paragraph 23, and

18 then by requesting access to additional information, such as LSAC data and personnel, and

19 independently observing LSAC operations, to the extent reasonable and deemed necessary by the

20 ADA Monitor in order to evaluate LSAC’s compliance with those provisions of the Decree

21 subject to the audit, as set out in this paragraph. The ADA Monitor will audit LSAC’s

22 compliance at the following intervals after the Effective Date of this Decree: one (1) year; two

23 (2) years; and four (4) years. The one (1) year audit will address LSAC’s compliance with the

24 reporting requirements contained in Paragraphs 8 and 23. The two (2) year and four (4) year

25 audits will address LSAC’s compliance with the reporting requirements contained in Paragraphs

26

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[PROPOSED] CONSENT DECREE

28

Case3:12-cv-01830-EMC Document198-1 Filed05/20/14 Page39 of 61

1 8 and 23 and LSAC’s implementation of the Best Practices discussed in Paragraph 7. LSAC

2 shall maintain the data described in Paragraph 8 throughout the term of this Consent Decree.

3

26. Audit Reports By ADA Monitor. At the conclusion of each audit, the ADA

4 Monitor will provide a written report (“Audit Report”) to LSAC, the United States, and the

5 DFEH regarding LSAC’s compliance with those provisions of the Decree subject to the audit, as

6 set out in Paragraph 25. Each Audit Report shall provide: (a) the scope of the audit; (b) a

7 detailed list of the data collected and interviews conducted, if any, in the course of the audit; (c)

8 any difficulties with conducting the audit; (d) an itemized assessment as to whether LSAC is

9 complying with those provisions of the Decree subject to the audit; (e) what data the ADA

10 Monitor relied upon in reaching this assessment, and what data contradicts this assessment, if

11 any; and (f) the ADA Monitor’s recommendations for further remediation if he or she determines

12 that compliance is deficient.

13

a. Access. LSAC shall provide the ADA Monitor with reasonable access, as

14 needed, to all LSAC staff, facilities, and documents that are relevant to evaluate compliance with

15 the reporting requirements contained in Paragraphs 8 and 23 and LSAC’s implementation of the

16 Best Practices discussed in Paragraph 7. LSAC shall direct all employees to cooperate fully with

17 the ADA Monitor. LSAC will request that its contractors cooperate fully with the ADA

18 Monitor. All non-public information obtained by the ADA Monitor shall be maintained in a

19 confidential manner, and all information obtained by the ADA Monitor shall be used only for the

20 purposes of implementing this Decree. The ADA Monitor shall also be subject to the terms of

21 the Protective Order (ECF No. 123). Upon request from the United States, or the DFEH (with

22 respect to documents and information pertaining to individuals who tested in California), LSAC

23 will provide the requesting Party with access to the data underlying the ADA Monitor’s Audit

24 Reports and may provide the United States, and the DFEH (to the extent that such documents

25 and information pertain to individuals who tested in California), with access to additional

26
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[PROPOSED] CONSENT DECREE

28

Case3:12-cv-01830-EMC Document198-1 Filed05/20/14 Page40 of 61

1 information as reasonably requested. Such information and data shall be used by the Parties only

2 for the purposes of implementing this Decree. “Access” in this paragraph and Paragraph 25 is

3 defined as access to LSAC’s materials in LSAC’s office in Newtown, Pennsylvania, for a period

4 of no longer than five (5) business days and during LSAC’s regular business hours, following at

5 least ten (10) days’ written notice to LSAC.

6

27. Communications. The ADA Monitor may:

7

a. Have ex parte communications at any time with the Parties, including

8 counsel for the Parties and employees, agents, contractors, and all others working for or on

9 behalf of the Parties. Any such communications with employees, agents, or contractors of LSAC

10 must be arranged through in-house counsel for LSAC, and counsel for LSAC may be present for

11 such communications if counsel’s presence is requested by the ADA Monitor or by any LSAC

12 employee, agent, or contractor involved in such communications.

13

b. Speak with anyone else the ADA Monitor deems necessary for

14 accomplishing its duties under this Decree.

15

28. Cost. All reasonable fees, costs, and expenses of the ADA Monitor shall be

16 borne by LSAC, but the ADA Monitor is not an agent or contractor of the United States, the

17 DFEH, or LSAC. The ADA Monitor shall provide sufficiently detailed monthly invoices

18 justifying any fees, costs, and expenses. The ADA Monitor shall be paid on the basis of a

19 standard reasonable rate to be agreed upon by the United States, the DFEH, and LSAC. If the

20 Parties cannot agree on a reasonable rate, the issue shall be presented to Magistrate Judge Joseph

21 Spero for resolution. LSAC shall reimburse all reasonable expenses incurred by the ADA

22 Monitor in the course of the performance of the duties of the ADA Monitor in accordance with

23 LSAC’s current applicable policies, practices, and procedures for reimbursement of employee

24 travel and expenses, excluding the approval process applicable to LSAC staff and employees and

25 the requirement that air travel be charged to LSAC’s corporate account or an LSAC corporate

26

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27

CASE NO. CV 12-1830-EMC

[PROPOSED] CONSENT DECREE

28

Case3:12-cv-01830-EMC Document198-1 Filed05/20/14 Page41 of 61

1 credit card. The Court retains the authority to resolve any dispute that may arise regarding the

2 reimbursement of fees and costs charged by the ADA Monitor. The Court shall be the final

3 arbiter of what costs and expenses shall be reimbursed by LSAC.

4

ADDITIONAL TERMS

5

29. Notification. All documents and communications required to be sent to one or

6 more Parties under the terms of this Decree shall be sent to the following individuals by

7 overnight courier or, where practicable, by e-mail (at the election of the sending party) to:

8

a. For the United States:

9

Chief

ATTN: US v. LSAC – DJ # 202-62-342

10

Disability Rights Section

Civil Rights Division

11

United States Department of Justice

1425 New York Avenue, NW, 4th Floor

12

Washington, DC 20005

nabina.sinha@usdoj.gov 13

b. For the DFEH: 14

ATTN: DFEH v. LSAC

15

Department of Fair Employment and Housing

2218 Kausen Drive, Suite 100

16

Elk Grove, CA 95758

mari.mayeda@dfeh.ca.gov 17

c. For LSAC: 18

Joan Van Tol

19

General Counsel

Law School Admission Council, Inc.

20

662 Penn Street

Newtown, PA 19640

21

jvantol@lsac.org

22

Bob Burgoyne

Fulbright & Jaworski LLP

23

801 Pennsylvania Avenue, NW

Washington, DC 20004

24

robert.burgoyne@nortonrosefulbright.com

25

26
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27

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[PROPOSED] CONSENT DECREE

28

Case3:12-cv-01830-EMC Document198-1 Filed05/20/14 Page42 of 61

1

30. Term Of This Decree. This Decree shall become effective as of the date that it is

2 entered by the Court and shall remain in effect for four (4) years from that date. However,

3 LSAC’s agreement to discontinue score annotations as stated in Paragraph 9 shall continue in

4 perpetuity beyond the term of this Decree, absent agreement of the United States and the DFEH.

5 The Court shall retain continuing and exclusive jurisdiction for the duration of the Decree to

6 enforce the terms of the Decree. The United States, the DFEH, and/or LSAC may apply to the

7 Court for such further orders as may be necessary for, or consistent with, the enforcement of this

8 Decree.

9

31. Disputes. If a dispute arises with respect to the United States’, the DFEH’s, or

10 LSAC’s compliance with, interpretation of, or implementation of, the terms of this Decree, a

11 good faith effort shall be made by the Parties to the dispute to resolve such differences promptly

12 in accordance with the following procedure.

13

If the United States, the DFEH, or LSAC believes a dispute must be resolved, it shall

14 promptly notify the other two Parties in writing of the issue together with relevant facts and

15 analysis. The Party against whom the complaint is issued shall be given a reasonable period of

16 time (not to exceed thirty (30) days) to provide a response. Within a reasonable time thereafter

17 (not to exceed fifteen (15) days), the Parties to the dispute shall meet and confer by telephone

18 and attempt to resolve the issue informally. If the United States, the DFEH, or LSAC believes

19 that resolution cannot be achieved, it shall promptly notify the other two Parties in writing and

20 shall specify its final position with regard to the dispute. Thereafter, any of these Parties may

21 pursue the issue with the Court.

22

Nothing in this procedure shall prevent the United States, the DFEH, or LSAC from

23 promptly bringing an issue before the Court when, in the moving Party’s view, the facts and

24 circumstances require immediate court attention. The moving Party’s papers shall explain the

25 facts and circumstances that necessitate immediate court action. In any enforcement motion

26
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27

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[PROPOSED] CONSENT DECREE

28

Case3:12-cv-01830-EMC Document198-1 Filed05/20/14 Page43 of 61

1 brought by any Party, no Party will object to the admissibility, on hearsay grounds, of the ADA

2 Monitor’s Audit Reports.

3

32. Use of Information. All Parties agree that any documents or information acquired

4 through performance of this Consent Decree may be used solely for the purpose of implementing

5 and enforcing this Consent Decree, and not for any other purpose. The provisions of the

6 Protective Order (ECF No. 123) remain in effect and applicable to all Parties throughout the term

7 of this Decree.

8

33. Scope. This Decree does not purport to remedy any violations or potential

9 violations of the ADA or the Unruh Act, other than as set forth in Paragraph 34 below. Except

10 as explicitly provided herein, this Decree does not affect LSAC’s continuing responsibility to

11 comply with the ADA.

12

34. Releases. Each Plaintiff hereby releases, acquits, and forever discharges LSAC

13 and its attorneys, agents, administrators, officers, employees, directors, members, and

14 contractors, from any and all claims, demands, and causes of action, if any, under the ADA, the

15 California Unruh Civil Rights Act, the California Education Code (§ 99161.5), and/or the

16 California Unfair Competition Law, as each law is in effect on the Effective Date of the Decree,

17 that are known or reasonably could have been known (whether asserted or unasserted), and that

18 arise out of or relate to any dealings, actions, or events involving LSAC’s review or evaluation of

19 requests for testing accommodations on the LSAT and/or its reporting of accommodated test

20 scores, from January 1, 2009 until the Effective Date of this Consent Decree, specifically

21 including, but not limited to, all causes of action that were or could have been asserted in any of

22 the complaints filed by the Plaintiffs or any other controversy arising from or relating to any

23 individual’s request for testing accommodations on the LSAT and/or LSAT score reports.

24

25

26

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CASE NO. CV 12-1830-EMC

[PROPOSED] CONSENT DECREE

28

Case3:12-cv-01830-EMC Document198-1 Filed05/20/14 Page44 of 61

1 1

If applicable, Plaintiffs waive any rights he/she/it has, or after signing this Decree

22 becomes aware that he/she/it may have had, under California Civil Code section 1542, which

33 provides as follows:

4 4

A general release does not extend to claims which the creditor does not know or

5 5

suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the

6 6

debtor.

7 7

The consideration recited herein is accepted by each Plaintiff in full satisfaction of all

88 claimed and unclaimed damages and losses arising out of or related to any of the complaints filed

99 by the Plaintiffs or any other controversy arising from or relating to any individual’s request for

1100 testing accommodations on the LSAT and/or LSAT score reports during the time referenced

1111 above.

1122

35. Pending Complaints. The United States and the DFEH will close their

1133 investigations of all complaints received by the United States Department of Justice or the

1144 DFEH, respectively, against LSAC that allege disability discrimination in its provision of testing

1155 accommodations and/or its reporting of accommodated test scores under the ADA (or California

1166 law where applicable) for the time period of January 1, 2009 to the Effective Date of the Decree.

1177

36. Binding. This Decree shall be binding on the United States, the DFEH, Andrew

1188 Quan, Nicholas Jones, Elizabeth Hennessey-Severson, and LSAC, including all principals,

1199 agents, executors, administrators, representatives, employees, successors in interest,

2200 beneficiaries, assigns, and legal representatives thereof. LSAC shall have a duty to notify all of

2211 its successors in interest of the existence and terms of this Decree.

2222

37. Non-Waiver. Failure by any Party to seek enforcement of this Decree pursuant to

2233 its terms with respect to any instance or provision will not be construed as a waiver of such

2244 enforcement with regard to other instances or provisions.

2255

2266

27

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27

CASE NO. CV 12-1830-EMC

2288

[PROPOSED] CONSENT DECREE

Case3:12-cv-01830-EMC Document198-1 Filed05/20/14 Page45 of 61

1

38. Severability. If any provision of this Decree is determined by any court to be

2 unenforceable, the other provisions of this Decree shall nonetheless remain in full force and

3 effect, provided, however, that if the severance of any such provision materially alters the rights

4 or obligations of the Parties, the Plaintiffs and LSAC shall engage in good faith negotiations in

5 order to adopt mutually agreeable amendments to this Decree as may be necessary to restore the

6 Parties as closely as possible to the initially agreed upon relative rights and obligations.

7

39. Litigation Holds. The Parties agree that, as of the Effective Date of this Decree,

8 for purposes of the Parties’ preservation obligations pursuant to Federal Rule of Civil Procedure

9 26 and/or common law, litigation is not “reasonably foreseeable” concerning the claims raised in

10 any of the Plaintiffs’ complaints. To the extent that any Party previously implemented a

11 litigation hold to preserve documents and/or electronically stored information related to the

12 claims asserted in any of the Plaintiffs’ complaints, the Party is no longer required to maintain

13 such a litigation hold. Nothing in this paragraph relieves the Parties of their obligations to

14 maintain documents, information, and/or data as imposed by this Decree.

15

40. Authority. The signatories represent that they have the authority to bind the

16 respective Parties identified below to the terms of this Decree.

17

18

19

20

21

22

23

24

25

26
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27

CASE NO. CV 12-1830-EMC

[PROPOSED] CONSENT DECREE

28

Case3:12-cv-01830-EMC Document198-1 Filed05/20/14 Page46 of 61 5-19-14

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1

ORDER AND PERMANENT INJUNCTION

2

IT IS SO ORDERED, and LSAC is accordingly permanently enjoined from all forms of

3 the practice of annotating score reports of candidates who receive the testing accommodation of

4 extended test time due to disability, and, for candidates applying to law school after entry of this

5 Order, LSAC shall henceforth provide the same information on test score reports for all

6 candidates for whom score reports are provided, this ____ day of ___________, 2014.

7

8

9

10

________________________________

11

EDWARD M. CHEN

UNITED STATES DISTRICT COURT JUDGE

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26
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27
CASE NO. CV 12-1830-EMC [PROPOSED] CONSENT DECREE
28

Case3:12-cv-01830-EMC Document198-1 Filed05/20/14 Page54 of 61
EXHIBIT 1

Case3:12-cv-01830-EMC Document198-1 Filed05/20/14 Page55 of 61
TESTING ACCOMMODATIONS AVAILABLE UNDER CONSENT DECREE PARAGRAPH 5(a)
1. Braille version of LSAT 2. Large-print (18 pt.) test book 3. Screen-readable HTML test (including, where applicable, use of screen reader
software (e.g., JAWS)) 4. Extended time up to double time 5. Use of computer and printer for the Writing Sample 6. Use of spell check 7. Alternate non-Scantron answer sheet 8. Use of a reader 9. Use of an amanuensis (scribe) 10. Additional rest time during breaks (standard break is 10-15 minutes between third
and fourth sections) 11. Breaks between sections 12. Sit/stand with a podium 13. Wheelchair accessibility (if table is requested, specify height) 14. Separate room (e.g., small group testing) 15. Private testing room (e.g., low-distraction test setting) 16. Stop-the-clock breaks 17. Scratch paper 18. Voice recognition software (e.g., Dragon) 19. Physical prompts (e.g., for test-takers with hearing impairments) 20. Reserved or assigned seating location (e.g., seating near the exam proctor) 21. Bring and eat food 22. Permission to bring insulin, check blood sugar 23. Permission to bring and take medications 24. Earplugs 25. Use of line marker 26. Use of magnification devices (e.g., magnification reading glasses, handheld video
magnifier, closed circuit television (CCTV), ZoomText) 27. Ability to pace (walk around) 28. Marking answer choices in the test book 29. Book stand

Case3:12-cv-01830-EMC Document198-1 Filed05/20/14 Page56 of 61
EXHIBIT 2(a)

Case3:12-cv-01830-EMC Document198-1 Filed05/20/14 Page57 of 61
NOTICE OF NATIONWIDE SETTLEMENT
IF YOU APPLIED FOR TESTING ACCOMMODATIONS FOR THE LAW SCHOOL ADMISSION TEST (LSAT)
YOU MAY BE ELIGIBLE FOR A MONETARY AWARD
The Law School Admission Council (LSAC) has entered into a Consent Decree with the California Department of Fair Employment and Housing (DFEH) to settle a statewide lawsuit and with the U.S. Department of Justice (DOJ) to settle a nationwide lawsuit. This resolution addresses alleged violations of the Americans with Disabilities Act (ADA) and the California Unruh Civil Rights Act, including LSAC’s alleged failure to offer the LSAT in a manner accessible to individuals with disabilities.
If y ou applied for testin g acco mmodations from LS AC b etween Jan uary 1, 2009 and May 20, 2014, you may be eligible to receive a payment.
TO BE EL IGIBLE FO R CONSIDERATION FOR PA YMENT, Y OU MUST SUBMIT A CLAIM. THE DEADLINE TO SUBMIT A CLAIM HAS YET TO BE DETERMINED AND WILL BE PO STED HERE WITHIN FOUR MONTHS OF [INSERT DATE OF ENTRY OF CONSENT DECREE].
You may obtain information on how to submit a claim by:
1. Sending an e-mail with your name, address, and telephone number to [insert email address to be designated by Claims Administrator], or
2. Calling the Claims Administrator at [insert toll free voice and TTY telephone numbers to be designated by Claims Administrator].
Claimants who receive a payment from this fund must sign a release of any related claims against LSAC.
For more information or for a copy of the Consent Decree, visit www.dfeh.ca.gov or www.ada.gov.

Case3:12-cv-01830-EMC Document198-1 Filed05/20/14 Page58 of 61
EXHIBIT 2(b)

Case3:12-cv-01830-EMC Document198-1 Filed05/20/14 Page59 of 61
NOTICE OF NATIONWIDE SETTLEMENT
IF YOU APPLIED FOR TESTING ACCOMMODATIONS FOR THE LAW SCHOOL ADMISSION TEST (LSAT)
YOU MAY BE ELIGIBLE FOR A MONETARY AWARD
► DEADLINE TO RESPOND IS [INSERT DATE], 2014◄
The Law School Admission Council (LSAC) has entered into a Consent Decree with the California Department of Fair Employment and Housing (DFEH) to settle a statewide lawsuit and with the U.S. Department of Justice (DOJ) to settle a nationwide lawsuit. This resolution addresses alleged violations of the Americans with Disabilities Act (ADA) and the California Unruh Civil Rights Act, including LSAC’s alleged failure to offer the LSAT in a manner accessible to individuals with disabilities.
If y ou applied for testin g acco mmodations from LS AC b etween Jan uary 1, 2009 and May 20, 2014, you may be eligible to receive a payment.
TO BE EL IGIBLE FO R CONSIDERATION FOR PA YMENT, YOU MUS T SUBMIT A CLAI M BY [INSERT DATE WHICH I S 180 DA YS AF TER DATE WHEN A LL NOTICE PACKAGES ARE SENT TO POTENTIAL ELIGIBLE PERSONS].
You may obtain information on how to submit a claim by:
1. Sending an e-mail with your name, address, and telephone number to [insert email address to be designated by Claims Administrator], or
2. Calling the Claims Administrator at [insert toll free voice and TTY telephone numbers to be designated by Claims Administrator].
Claimants who receive a payment from this fund must sign a release of any related claims against LSAC.
For more information or for a copy of the Consent Decree, visit www.dfeh.ca.gov or www.ada.gov.

Case3:12-cv-01830-EMC Document198-1 Filed05/20/14 Page60 of 61
EXHIBIT 3

Case3:12-cv-01830-EMC Document198-1 Filed05/20/14 Page61 of 61
RELEASE OF CLAIMS
For and in consideration of acceptance of the relief offered to me by the Law School Admission Council, Inc. (“LSAC”), pursuant to a Consent Decree between LSAC, the California Department of Fair Employment and Housing (“DFEH”), and the United States of America, arising out of Civil Action 3:12-cv-01830-EMC (the “Consent Decree”):
I, ________________________________ (print name), hereby release and forever discharge LSAC and its current, past, and future officers, directors, shareholders, employees, and agents, of and from any legal and/or equitable claims arising out of the facts identified in the DFEH’s and the United States’ respective Complaints, as amended, filed in the United States District Court for the Northern District of California, Case No. 3:12-cv-01830-EMC, and any other claims, known or unknown, relating to my request(s) for testing accommodations on the Law School Admission Test (“LSAT”) and/or the reporting of my scores on any administration of the LSAT preceding the date of this Release. Excluded from this Release are any rights and claims that cannot be waived by law.
This Release constitutes the entire agreement between myself and LSAC with regard to the claims identified above, without exception or exclusion.
I acknowledge that a copy of the Consent Decree has been made available to me. By signing this Release, I acknowledge that I have been provided the opportunity to review the Consent Decree with an attorney of my choosing, and that I understand that I am solely responsible for paying any applicable federal, state and local taxes I owe as a result of receiving payment under this Consent Decree.
In signing this Release, I hereby waive any rights that I have, or after signing this Release become aware that I may have had, under California Civil Code section 1542, which provides as follows:
A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.
I HAVE READ THIS RELEASE AND UNDERSTAND THE CONTENTS THEREOF, AND I EXECUTE THIS RELEASE OF MY OWN FREE ACT AND DEED.
Date:________________________ _______________________________ Signature
Full Mailing Address:

 
 Case3:12-cv-01830-JCS Document245 Filed08/07/15 Page1 of 44

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

DEPARTMENT OF FAIR EMPLOYMENT

7 AND HOUSING,

Case No. 12-cv-01830-JCS

8

Plaintiff,

9

v.

10 LAW SCHOOL ADMISSION COUNCIL INC,
11 Defendant.
12

ORDER GRANTING IN PART AND DENYING IN PART APPEAL OF BEST PRACTICES PANEL REPORT
Re: Dkt. No. 220

I. 13

INTRODUCTION

This case concerns the procedures used by Defendant Law School Admission Council Inc.

14

(―LSAC‖) to determine whether candidates should receive accommodation for disabilities while

15

taking the Law School Admission Test (―LSAT‖), a standardized test administered by LSAC and

16

widely used in law school admissions. The United States and the California Department of Fair

17 Employment and Housing (―DFEH‖), as Plaintiffs,1 claimed that LSAC‘s procedures violated

18

state and federal law protecting people with disabilities. The Parties reached a settlement,

19

memorialized in a Consent Decree (dkt. 203), requiring certain changes to those procedures. The

20

Consent Decree delegated aspects of those changes to a panel of experts selected by the Parties

21

(the ―Panel‖), but allowed an appeal to the Court if the Panel‘s decisions ―are believed to violate

22

the ADA or its implementing regulations, or California law where applicable, or to conflict with

23

the provisions of [the Consent] Decree.‖ Consent Decree ¶ 7(d)(iv). LSAC now appeals several

24

25

26

1 The case also included a number of individual plaintiffs who are not involved in the present appeal. Those individuals are no longer party to this action, having released their claims by

27

entering the Consent Decree. See Consent Decree ¶ 34. The Consent Decree only allows the United States, DFEH, or LSAC to enforce any violations thereof. See id. ¶¶ 30−31. In this Order,

28

unless otherwise specified, the term ―Plaintiffs‖ refers to DFEH and the United States, and the term ―Parties‖ refers to DFEH, the United States, and LSAC.

Case3:12-cv-01830-JCS Document245 Filed08/07/15 Page2 of 44

United States District Court Northern District of California

1 aspects of the Panel‘s final Report. The Court held a hearing on July 31, 2015. For the reasons

2 stated below, the Court finds portions of the Panel‘s conclusions invalid, but upholds most of the 3 Panel‘s Report.2 A summary of the Court‘s conclusions is included at the end of this Order.

4 II. BACKGROUND

5

A. Procedural History

6

DFEH brought this action against LSAC in state court in March of 2012, alleging that

7 LSAC‘s process of considering requests to accommodate disabilities made by individuals seeking

8 to take the LSAT violated the Americans with Disabilities Act of 1990 (―ADA‖), 42 U.S.C.

9 §§ 12101−213, and in doing so also violated California‘s Unruh Civil Rights Act, Cal. Civ. Code

10 § 51. The Court granted the United States‘ motion to intervene as a plaintiff in October of 2012.

11 See dkt. 60.

12

The Parties reached a settlement and the Court accepted their proposed Consent Decree in

13 May of 2014. See Consent Decree. As discussed in more detail below, the Consent Decree

14 imposed certain obligations on LSAC, but delegated other issues to the Panel, made up of experts

15 to be selected by the Parties. See generally id. The Panel issued its final Report on January 26,

16 2015. See Mew Decl. Ex. A (Final Report of the Best Practices Panel, hereinafter ―Report,‖ dkt.

17 220-2).

18

LSAC now appeals the Panel‘s Report pursuant to paragraph 7(d)(iv) of the Consent

19 Decree, which provides that ―any Party may appeal to the Court for appropriate relief if any of the

20 Panel‘s final Best Practices, as written, are believed to violate the ADA or its implementing

21 regulations, or California law where applicable, or to conflict with the provisions of this Decree.‖

22 Consent Decree ¶ 5(d)(iv). On June 23, 2015, with consent of the Parties, Judge Chen referred the

23 appeal to the undersigned magistrate judge for decision, and the parties have since consented to

24 the jurisdiction of the undersigned magistrate judge for all future proceedings in this case. See

25 dkts. 237, 241, 242. The Court held a hearing on LSAC‘s appeal on July 31, 2015. See dkt. 239.

26

27 2 The remaining Parties consented to the jurisdiction of the undersigned magistrate judge to

28

resolve LSAC‘s appeal, and have since consented to the jurisdiction of the undersigned for all future proceedings pursuant to 28 U.S.C. § 636(c). See dkts. 237, 241, 242.

2

Case3:12-cv-01830-JCS Document245 Filed08/07/15 Page3 of 44

United States District Court Northern District of California

B. Consent Decree 1
The Consent Decree represents a comprehensive settlement of all parties‘ claims in this 2
case, including provisions addressing injunctive relief, monetary damages to individual plaintiffs 3
and other affected individuals, civil penalties, attorneys‘ fees, and ongoing auditing. See generally 4
Consent Decree. LSAC‘s present appeal concerns the portion of the Consent Decree delegating 5
certain issues to the Panel (Paragraph 7), as well as how that delegation is constrained by the 6
portion of the Consent Decree setting standards for what documentation of disability LSAC may 7
request (Paragraph 5).3 8
1. Paragraph 5: Injunctive Relief Regarding Documentation Requests 9
a. Paragraph 5(a): Certain Accommodations Previously Received 10
Paragraph 5 of the Consent Decree classifies requests for accommodations into two 11
groups. The first group consists of applicants seeking certain accommodations that they have 12
previously received on ―any standardized examination offered in the United States related to 13
applications for post-secondary admission.‖ Consent Decree ¶ 5(a). LSAC must grant those 14
accommodations so long as: (1) the applicant provides proof that the sponsor of the earlier test 15
granted the accommodation; (2) the applicant checks a box certifying that he or she continues to 16
experience the functional limitations that required accommodation; (3) the accommodation at 17
issue is either an extension of time, up to double time, or a non-time accommodation listed in 18
Exhibit 1 to the Consent Decree; and (4) the accommodation would not require administering 19
testing on more than one day. Id. The treatment of requests meeting these criteria generally falls 20
outside the scope of the Panel‘s Report and is not the focus of the present appeal. 21
b. Paragraphs 5(b)−(d): All Other Requests 22
All other requests for accommodation are governed by Paragraphs 5(b) through 5(d). 23
LSAC‘s requests for documentation supporting such requests must be ―reasonable and limited to 24
the need for the testing accommodation requested.‖ Id. ¶ 5(b). LSAC must ―consider all facts 25
and explanations offered by the candidate,‖ must ―give considerable weight to documentation of 26

27 3 This Order summarizes certain provisions of the Consent Decree implicated by the present

28

appeal. It does not purport to recount all terms of the Consent Decree, or even all material terms of Paragraphs 5 and 7. The same is true of the discussion of the Panel‘s Report.

3

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1 past testing accommodations received in similar testing situations not covered by Paragraph 5(a)‖

2 or in the context of certain formal special education settings, and must ―consider documentation

3 provided by a qualified professional who has made an individualized assessment of the candidate.‖

4 Id. ¶¶ 5(d)(i)−(iii) (footnote omitted). For requests for accommodation of mental or cognitive

5 impairments, LSAC must allow candidates to submit evidence of ―testing conducted within five

6 years of the date of the request . . . instead of within three years as currently required for certain

7 candidates.‖ Id. ¶ 5(d)(iv).

8

―LSAC may consider objective evidence relating to the candidate‘s diagnosed impairment

9 and its impact on the candidate.‖ Id. ¶ 5(d)(v). It may request supplemental information ―if the

10 documentation submitted by a candidate does not clearly establish the nature of the impairment or

11 the need for requested testing accommodations,‖ and ―may also have the documentation . . .

12 reviewed by one or more qualified professionals.‖ Id. ¶ 5(d)(viii). LSAC may also ―continue to

13 ask evaluators whether a candidate was on his or her prescribed medication during the evaluation,‖

14 and to elaborate if relevant. Id. ¶ 5(g). LSAC ―shall not reject or deny‖ an accommodation solely

15 on the basis of a ―candidate‘s average or above average IQ score and/or high level of academic

16 success,‖ or ―solely because the candidate has no formal history of receiving that testing

17 accommodation.‖ Id. ¶¶ 5(d)(vi)−(vii).

18

LSAC‘s website must advise candidates of the documentation required for accommodation

19 requests, inform them of common reasons for denial of requests, and provide a ―non-exhaustive

20 list of the types of testing accommodations available.‖ Id. ¶ 5(e). LSAC also must advise

21 candidates: (1) that all requests for accommodation, supporting documentation, supplemental

22 documentation as may be requested by LSAC, and any request for reconsideration must be

23 submitted by the stated registration deadline for the LSAT; (2) that requests will generally be

24 considered within fourteen days; and (3) that candidates who submit requests within two weeks of

25 the registration deadline therefore may not have an opportunity to provide supplemental

26 documentation or request reconsideration. Id. ¶ 5(f). The language of that notice is ―subject to

27 further direction from the Panel regarding the need for and availability of an appeals process and,

28 if needed, what that process should be.‖ Id.

4

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2. Paragraph 7: Best Practices Panel 1
The Panel consists of ―five experts: two selected by LSAC; two selected by the United 2
States and the DFEH; and a fifth selected by those four experts from a list prepared by the United 3
States and the DFEH.‖ Consent Decree ¶ 7(a). Each member must have expertise in standardized 4
testing accommodations, cognitive disabilities, or ADA compliance. Id. The Panel is charged 5
with preparing ―a written report establishing Best Practices that comport with the requirements of 6
28 C.F.R. § 36.309, all of which LSAC shall implement to the extent that it is not already 7
following such Best Practices.‖ Id. ¶ 7(b). ―The Best Practices shall be consistent with the 8
provisions of [the Consent] Decree and shall not violate the ADA or its implementing regulations, 9
or California law where applicable.‖ Id. Some aspects of the Panel‘s procedures are set by the 10
Consent Decree, while others, including ―how many of the five Panel members must agree on 11
each Best Practice in order for it to be imposed,‖ are left to the discretion of the Panel. See id. 12
¶¶ 7(b), (d). 13
Paragraph 7(c) sets forth the ―issues to be addressed by [the] Panel.‖ Id. ¶ 7(c) (heading; 14
capitalization altered). This Order follows the practice of the Panel and the Parties in referring to 15
these as ―Issue 1‖ through ―Issue 10,‖ although that numbering is not used in the Consent Decree. 16
The disputed issues are as follows: 17
Issue 2: ―The Panel shall consider and establish the type and scope of documentation that 18
may be requested from candidates whose requests fall under Paragraphs 5(b)−(d) . . . .‖ Id. 19
¶ 7(c)(ii). 20
Issue 4: ―The Panel shall determine whether more than one qualified professional should 21
review a documented request for testing accommodations before LSAC may deny the request in 22
whole or in part.‖ Id. ¶ 7(c)(iii)(2). Issues 4 through 10 are each characterized as ―elements of the 23
process for reviewing and evaluating testing accommodation requests.‖ Id. ¶ 7(c)(iii). 24
Issue 5: ―The Panel shall consider and establish criteria and guidelines for use by persons 25
who review or evaluate testing accommodation requests.‖ Id. ¶ 7(c)(iii)(3). 26
Issue 8: ―The Panel shall consider whether an automatic review of partial and/or full 27
denials is warranted and, if warranted, how such a review should be conducted.‖ Id. ¶ 7(c)(iii)(6). 28
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1

Issue 9: ―The Panel shall consider whether there should be a process available, beyond that

2 already provided by LSAC, to candidates who wish to seek review of LSAC‘s decision to deny a

3 candidate‘s request and, if so, what that process should be relative to LSAC‘s existing registration

4 deadlines.‖ Id. ¶ 7(c)(iii)(7).

5

Issue 10: ―The Panel shall consider and establish the parameters, such as content and

6 timing of, training for persons (both LSAC staff and outside consultants) who evaluate or review

7 testing accommodation requests.‖ Id. ¶ 7(c)(iii)(8).

8

The issues for which LSAC does not directly dispute the Panel‘s conclusions are: Issue 1,

9 recommendations on how to diversify LSAC‘s expert consultants, id. ¶ 7(c)(i); Issue 3,

10 qualifications for internal and external reviewers of accommodation requests, id. ¶ 7(c)(iii)(1);

11 Issue 6, parameters for written recommendations and decisions by internal and external reviewers

12 and consultants, id. ¶ 7(c)(iii)(4); and Issue 7, whether LSAC should provide written explanations

13 to candidates who are denied accommodations, and if so, the parameters for such explanations, id.

14 ¶ 7(c)(iii)(5).

15

Paragraph 7(c) concludes by stating that ―[t]he Best Practices shall not invalidate or

16 conflict with any other provisions of [the Consent] Decree.‖ Id. ¶ 7(c)(iv). Any Party may appeal

17 to the Court if the Panel‘s decisions ―are believed to violate the ADA or its implementing

18 regulations, or California law where applicable, or to conflict with the provisions of [the Consent]

19 Decree.‖ Id. ¶ 7(d)(iv).

20

C. Panel Report

21

In accordance with the Consent Decree, the Panel determined that agreement by at least

22 four of its five members would be sufficient. Report at 2 (citing Consent Decree ¶ 7(b)). Four

23 members joined in the final Report, while the fifth wrote a separate ―Minority Report.‖ See Mew

24 Decl. Ex. B (Shelby Keiser, M.S., ―Best Practices Panel Minority Report,‖ dkt. 220-3). The

25 majority consisted of Dr. Nicole Ofiesh, Ph.D., chosen by Plaintiffs as an expert in testing

26 accommodations, Dr. Charles Golden, Ph.D., chosen by LSAC as an expert in cognitive

27 disabilities, Dr. Nancy Mather, Ph.D., chosen by Plaintiffs as an expert in cognitive disabilities,

28 and Professor Ruth Colker, J.D., nominated by Plaintiffs as an expert in ADA compliance and

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1 chosen by the remainder of the Panel from a list of three nominees. See Report; Appeal (dkt. 220)

2 at 9; Opp‘n (dkt. 221) at 4–5. Shelby Keiser, M.S., chosen by LSAC as an expert in testing 3 accommodations, prepared the Minority Report.4 See Minority Report; Appeal at 9; Opp‘n at 4.

4

The Panel recognizes in its Report that it was charged with addressing the ten issues

5 identified in Paragraph 7(c) of the Consent Decree. Report at 2 (―The Consent Decree specifies

6 ten issues for the Panel to resolve . . . .‖). Although the Panel concluded that certain issues tend to

7 overlap, it organized its Report into ten sections based on those issues. The conclusions

8 challenged by LSAC are discussed below in the analysis portion of this Order.

9

D. Parties’ Arguments

10

LSAC brings this appeal seeking to invalidate substantial portions of the Panel‘s Report.

11 See generally Appeal. It also seeks make comparatively small corrective additions to the Report,

12 most of which mirror language in the Consent Decree. LSAC‘s proposed changes are summarized

13 in a ―redline‖ of the Report, in which proposed deletions are highlighted in yellow and proposed

14 additions are highlighted in blue. Mew Decl. Ex. P (―LSAC Redline,‖ dkt. 220-17).

15

LSAC‘s Appeal opens with discussion of the ―Parties‘ presentation of their views to the

16 Panel,‖ ―the Panel‘s draft report,‖ ―the Minority Report,‖ and ―actions by certain panel members

17 after issuing the final report.‖ Appeal at 6–11 (headings; capitalization altered). LSAC appears to

18 present this background to demonstrate purported bias by the Panel against LSAC or in favor of

19 Plaintiffs. LSAC does not, however, make an argument that any of this history affects the legal

20 validity of the final Report.

21

LSAC‘s substantive argument is directed to the Panel‘s conclusions regarding Issues 2, 4,

22 5, 8, 9, and 10. Id. at 13–32. According to LSAC, the Report exceeds the Panel‘s authority under

23 the ten issues delegated to it and conflicts with portions of the Consent Decree. See id. LSAC

24 contends that certain provisions of the Report that may not directly conflict with the language of

25 the Consent Decree nevertheless constitute conflicts because they upset the Parties‘ ―narrowly-

26 drawn compromise‖—for example, where LSAC argues that the Report requires it to provide

27

28

4 LSAC conceded at the July 31, 2015 hearing that the Minority Report is not legally relevant to the issue before the Court—whether the majority‘s Report conflicts with the Consent Decree.

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1 permissive treatment to a wider class of accommodation requests than specified in the Consent

2 Decree. See id. at 22. LSAC also at times argues that the Panel‘s conclusions are not, in fact, best

3 practices and fail to take into account important considerations regarding the standardization of

4 standardized testing, e.g., id. at 25, or that procedures set by the Panel are ―virtually impossible to

5 operationalize,‖ id. at 31. LSAC‘s opening brief concludes with an argument on the merits of best

6 practices for standardized testing accommodations. Id. at 33–35.

7

Plaintiffs argue in opposition that the Panel complied with its mandate under the Consent

8 Decree and that all provisions of the Report represent proper exercises of the Panel‘s authority.

9 See generally Opp‘n. Plaintiffs contend that the Panel had broad authority under the Consent

10 Decree, including to ―lay[] out the circumstances under which LSAC should grant a request for

11 testing accommodations.‖ See id. at 19. Plaintiffs do not themselves appeal any part of the

12 Report, and do not concede that any portion is invalid. See generally id.

13

The parties‘ arguments regarding each disputed issue are discussed in more detail in the

14 context of the Court‘s analysis below.

15

E. Amicus Letters

16

Seventeen ―professionals with expertise in diagnosing disabilities, evaluating resulting

17 functional limitations, and recommending academic and testing accommodations‖ submitted a

18 letter to the Court as amici curiae dated April 24, 2015. Dkt. 222. The Inter Organizational

19 Practice Committee (IOPC), a coalition of neuropsychological professional associations, filed an

20 amicus letter dated June 3, 2015. Dkt. 232. Both letters dispute certain aspects of the Panel‘s

21 Report on the merits, arguing that they are not, in fact, ―best practices‖ for determining how and

22 when to grant testing accommodations. By order of the Court, LSAC and Plaintiffs each filed a

23 response to each letter. Dkts. 225, 226, 233, 234. As discussed below, the Consent Decree

24 provides a limited right to appeal to the Court, which does not include any right to appeal the

25 merits of the Panel‘s decisions.

26

27

28

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III. ANALYSIS 1

A. Legal Standards 2

1. Interpretation of the Consent Decree 3

―A consent decree, which has attributes of a contract and a judicial act, is construed with

4

reference to ordinary contract principles.‖ Nehmer v. U.S. Dep’t of Veterans Affairs, 494 F.3d

5

846, 861 (9th Cir. 2007) (quoting City of Las Vegas v. Clark County, 755 F.2d 697, 702 (9th Cir.

6

1985)). The Supreme Court set forth the applicable standard as follows:

7

Consent decrees are entered into by parties to a case after careful

8

negotiation has produced agreement on their precise terms. The

parties waive their right to litigate the issues involved in the case

9

and thus save themselves the time, expense, and inevitable risk of

litigation. Naturally, the agreement reached normally embodies a

10

compromise; in exchange for the saving of cost and elimination of

risk, the parties each give up something they might have won had

11

they proceeded with the litigation. Thus the decree itself cannot be

said to have a purpose; rather the parties have purposes, generally

12

opposed to each other, and the resultant decree embodies as much of

those opposing purposes as the respective parties have the

13

bargaining power and skill to achieve. For these reasons, the scope

of a consent decree must be discerned within its four corners, and

14

not by reference to what might satisfy the purposes of one of the

parties to it. Because the defendant has, by the decree, waived his

15

right to litigate the issues raised, a right guaranteed to him by the

Due Process Clause, the conditions upon which he has given that

16

waiver must be respected, and the instrument must be construed as it

is written, and not as it might have been written had the plaintiff

17

established his factual claims and legal theories in litigation.

18 United States v. Armour & Co., 402 U.S. 673, 681–82 (1971). Accordingly, arguments that

19 ―would have great force if addressed to a court that had the responsibility for formulating original

20 relief in this case, after the factual and legal issues raised by the pleadings had been litigated,‖ may

21 nevertheless be ―out of place‖ in ―deal[ing] with the construction of an existing consent decree.‖

22 Id. at 681.

23

2. Review of the Panel’s Report

24

Neither party cites any authority addressing the interpretation of a report prepared by

25 experts who have been delegated authority under a consent decree to set certain standards for the

26 parties. The Court applies basic principles of contract interpretation, relying primarily on the plain

27 language of the Report.

28

In terms of the scope of review, the Consent Decree provides for ―an appeal to the Court

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1 for appropriate relief if any of the Panel‘s final Best Practices, as written, are believed to violate

2 the ADA or its implementing regulations, or California law where applicable, or to conflict with

3 the provisions of this Decree.‖ Consent Decree ¶ 7(d)(iv). Although not separately stated as a

4 basis for appeal, the Consent Decree grants the Panel authority only as to ten enumerated issues.

5 See id. ¶ 7(c). The Court therefore concludes that any directive from the Panel that exceeds that

6 authority ―conflict[s] with the provisions of [the Consent] Decree‖ and is a proper subject of

7 appeal. See id. ¶ 7(d)(iv).

8

Review beyond the scope specified—i.e., for anything other than conflicts with the

9 Consent Decree or violations of the ADA or California law—is not permitted. The Parties elected

10 to delegate certain issues to a panel of experts with experience in relevant fields. That decision is

11 not subject to second-guessing at this stage—the Consent Decree does not permit the Court to

12 substitute its judgment for that of the Panel on the merits of how requests for accommodation

13 should be reviewed and decided. To the extent that the Parties and amici argue merely that the

14 Panel erred in determining how best to resolve those issues actually delegated to it, such

15 arguments are ―out of place.‖ See Armour & Co., 402 U.S. at 681.

16

B. Issue 2: Type and Scope of Documentation

17

1. The Panel’s Report

18

In response to its charge to ―establish the type and scope of documentation that may be

19 requested,‖ the Panel concluded that LSAC‘s existing requirements were ―excessive for most

20 candidates who seek testing accommodations on the LSAT and inconsistent with the

21 documentation guidelines of other national testing entities.‖ Id. at 4. Specifically, the Panel

22 rejected LSAC‘s practice of requiring evidence of specific diagnostic tests rather than leaving the

23 choice of diagnostic technique to the qualified professional who diagnosed the candidate. Id. The

24 Panel instead developed a system of different documentation requirements for three categories of

25 candidates, based on the principle ―that the required level of documentation shall depend upon the

26 nature of the request for testing accommodations.‖ Id. at 5.

27

―Category 1‖ consists of candidates who ―request[] a testing accommodation that does not

28 modify the amount of time permitted to respond to the questions in each test section.‖ Id. The

10

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1 Report lists a number of examples, including ―permission to bring in food,‖ ―stop-the-clock

2 breaks,‖ ―assignment to a wheelchair-accessible room,‖ and provision of a ―sign language

3 interpreter to sign spoken instructions.‖ Id. at 5−6. Candidates requesting such accommodations

4 need only provide ―evidence of a disability from a qualified professional who examined the

5 candidate any time after the candidate reached the age of 13, and a statement that provides a

6 reasonable explanation for why the candidate needs the testing accommodation to best ensure that

7 the LSAT results accurately reflect [his or her] aptitude or achievement level.‖ Id. at 6 (footnotes

8 omitted). The candidate may provide the statement. Id.

9

―Category 2‖ consists of any candidates requesting up to 50% extra time, as well as

10 candidates with visual impairments that require an alternative test format requesting up to 100%

11 extra time. Id. at 7. The requirements are the same as for Category 1 above, except that the

12 statement explaining the need for accommodation ―should be supported with appropriate data or

13 other relevant information in support of the request.‖ Id.

14

―Category 3‖ consists of any candidate requesting more time than allowed for Category

15 2—more than 50% extra without a visual impairment, or more than 100% extra with a qualifying

16 visual impairment. This standard is similar to Category 2, but requires that, in addition to being

17 supported by ―data or other relevant information,‖ the statement ―should explain why more than

18 50% extra time is necessary.‖ Id. at 7−8.

19

The Panel provided additional guidance regarding the substance of accommodation

20 requests under all three categories—as well as special guidance for Category 3 requests—as part

21 of its response to Issue 5, discussed below. See id. at 6 (―The type of acceptable documentation is

22 described in response to Issue 5, Part I.‖); id. at 8 (referencing ―Issue 5, Part II, Standards for

23 Determining More Than Fifty Percent Extra Time‖). If the candidate submits the required

24 documentation for the appropriate category, ―then LSAC shall approve the requested testing

25 accommodations, without requiring the candidate to provide additional information.‖ Id. at 6−8.

26

2. LSAC’s Objections and the Court’s Conclusions

27

LSAC first objects to the Panel‘s documentation standards to the extent that they impose

28 ―mandatory outcomes.‖ Appeal at 13–14. This objection is largely intertwined with Issue 2‘s

11

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1 incorporation of the standards for review set forth in response to Issue 5, and tends to implicate the

2 Panel‘s authority under the latter issue to set ―criteria and guidelines‖ for use by reviewers. It is

3 therefore addressed in this Order under the heading ―Issue 5: Criteria and Guidelines for

4 Reviewers,‖ below.

5

LSAC also objects to this portion of the Report on the basis that the ―Decree does not

6 authorize the Panel to create categories of individuals who will be subject to different treatment

7 depending on the nature of their impairment and the amount of extra time they request.‖ Appeal at

8 14. The Court disagrees. The Consent Decree charges the Panel with ―establish[ing] the type and

9 scope of appropriate documentation that may be requested from candidates whose requests fall

10 under Paragraph 5(b)–(d),‖ i.e., all requests other than those for certain accommodations

11 previously granted on another post-secondary standardized test. Consent Decree ¶ 7(c)(ii).

12 Nothing in the Consent Decree requires that those standards must be identical for all such 13 requests.5

14

LSAC objects to the Panel discussing standards for granting certain accommodations not

15 listed in Exhibit 1 of the Consent Decree. Appeal at 15 (―The last three accommodations

16 identified by the Panel on page 6 of the Final Report are not listed in Exhibit 1 to the Consent

17 Decree and cannot be imposed on LSAC.‖). This argument misconstrues the nature of Exhibit 1,

18 which is titled ―Testing Accommodations Available Under Consent Decree Paragraph 5(a).‖

19 Consent Decree Ex. 1. That paragraph concerns accommodations that will be granted

20 automatically to candidates who have previously received them on other post-secondary

21 standardized tests. Nothing in the Consent Decree indicates that those are the only

22 accommodations that will be available to any candidates under the standard of review discussed in

23 Paragraphs 5(b) through (d) and delegated in part to the Panel. To the contrary, the Consent

24 Decree requires LSAC to provide on its website ―a non-exhaustive list of the types of testing

25 accommodations available,‖ id. ¶ 5(e), which would make little sense if an exhaustive list was

26

27 5 LSAC raises a similar objection to the Panel setting different standards of review for different

28

impairments and accommodations in the context of Issue 5. Appeal at 26. Again, the Court finds no requirement that the Panel set identical standards for all requests for accommodation.

12

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1 available as an exhibit to the Consent Decree. The Court finds that Exhibit 1 has no bearing on

2 the types of accommodation available under Paragraphs 5(b) through (d), and that the Panel

3 therefore did not err by discussing other accommodations in its Report.

4

LSAC objects to the Panel‘s conclusion that candidates should be able to submit

5 ―[e]vidence of a disability from a qualified professional who examined the candidate any time

6 after the candidate reached the age of 13.‖ Appeal at 15 (quoting Report at 6, 7) (emphasis in

7 original). LSAC argues that this conflicts with Paragraph 5(d)(iv) of the Consent Decree, which

8 provides that LSAC will permit candidates seeking accommodation of a mental or cognitive

9 impairment ―to submit testing conducted within five years of the date of the request . . . instead of

10 within three years as currently required for certain candidates.‖ Consent Decree ¶ 5(d)(iv) The

11 Court agrees, but only to a point. Paragraph 5(d)(iv) only concerns mental or cognitive 12 impairments.6 For candidates seeking accommodation of such impairments, that paragraph 13 controls, and LSAC need not accept documentation older than five years.7 For candidates seeking

14 accommodation of other forms of impairment, however, there is no conflict between the Panel‘s

15 conclusion and the Consent Decree, and the requirement that LSAC accept documentation from an

16 examination any time after the candidate turned 13 falls within the Panel‘s authority to ―establish

17 the type and scope of appropriate documentation that may be requested.‖ See Consent Decree

18 ¶ 7(c)(ii). LSAC is therefore bound by this provision of the Report except as to requests for

19 accommodation of mental or cognitive impairments.

20

LSAC finally argues that Paragraph 5(d)(viii) of the Consent Decree, which provides that

21 ―LSAC may make a timely request for supplemental information if the documentation submitted

22

23

6 LSAC asserts that the Consent Decree ―provides that LSAC can require documentation . . . from within the past five years for candidates seeking accommodations based on mental or cognitive

24

impairment, and within three years for all other candidates.‖ Appeal at 15–16 (emphasis added). The last part of that sentence does not accurately reflect the terms of the Consent Decree, which

25

provides only that LSAC‘s existing policy imposes a three-year limitation on documentation for ―certain candidates.‖ Consent Decree ¶ 5(d)(iv). The Consent Decree does not discuss a three-

26

year limitation for ―all other candidates,‖ nor does it provide that the existing three-year policy— whatever its scope—cannot be altered by the Panel under its authority to set standards for

27

documentation pursuant to Issue 2. 7 Despite maintaining that they ―endorse the Panel‘s recommendation as a Best Practice for all

28

candidates,‖ Plaintiffs all but concede that it conflicts with the Consent Decree with respect to requests based on mental and cognitive impairments. See Opp‘n at 13 n.11.

13

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1 by a candidate does not clearly establish the nature of the impairment or the need for requested

2 testing accommodations,‖ Consent Decree ¶ 5(d)(viii), forecloses the Panel‘s conclusions

3 regarding appropriate documentation. Appeal at 16–17. Specifically, LSAC objects to provisions

4 deeming sufficient ―a statement that provides a reasonable explanation for why the candidate

5 needs the testing accommodation,‖ which may be provided by the candidate, and to provisions

6 stating that ―[i]f a candidate meets these documentation requirements, which are not intended to be

7 extensive, and provides a reasonable explanation for why these testing accommodations . . . LSAC

8 shall approve the requested testing accommodations, without requiring the candidate to provide

9 additional information.‖ Appeal at 16–17 (quoting Report at 6–8).

10

The Court finds no conflict between Paragraph 5(d)(viii) and the Panel‘s response to Issue

11 2. Through the documentation requirements discussed in response to this issue and the criteria

12 and guidelines for reviewers discussed in response to Issue 5, the Panel essentially defined what

13 documentation suffices to ―clearly establish the nature of the impairment or the need for . . .

14 accommodations.‖ See Consent Decree ¶ 5(d)(viii). Further, as discussed below in the context of

15 Issue 5, the process envisioned by the Panel still calls upon evaluators to use their professional

16 judgment in applying the criteria established by the Report. A reviewer might determine that a

17 candidate‘s explanation of need for accommodation is not ―reasonable,‖ or that the documentation

18 the candidate submits from a qualified professional is not ―evidence of a disability.‖ See Report at

19 6–8. The process through which a reviewer may reach such a determination is discussed further in

20 the portion of this Order addressing Issue 5, below. If the candidate‘s submission does not meet

21 the documentation required under Issue 2, ―LSAC may make a timely request for supplemental

22 information‖ pursuant to Paragraph 5(d)(viii).

23

Plaintiffs are correct that LSAC‘s proposed revisions to the section of the Report

24 addressing Issue 2 would essentially reduce it to restating Paragraph 5(d)(viii) of the Consent

25 Decree, improperly nullifying Paragraph 7(c)(ii), which provides that the Panel shall set standards

26 for the documentation LSAC may request. See Opp‘n at 12; LSAC Redline at 4–8. The Court

27 finds no basis to invalidate the documentation standards set forth in the Report, except as

28 discussed above in the context of outdated mental or cognitive testing.

14

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C. Issue 4: Multiple Reviewers Before Denial 1
This issue charged the Panel with determining ―whether more than one qualified 2
professional should review a documented request for testing accommodations before LSAC may 3
deny the request in whole or in part.‖ Consent Decree ¶ 7(c)(iii)(2). The Panel determined ―that 4
all accommodations that are not granted in full must be reviewed by one or two outside 5
consultants,‖ as ―discussed [in more detail] in response to Issue 8.‖ Report at 9. LSAC only 6
objects to this response to the extent that it incorporates purportedly improper conclusions from 7
the Panel‘s response to Issue 8. See Appeal at 29. LSAC also challenges ―the Panel‘s 8
recommendations on Issue 6, but only to the extent that they incorporate by reference 9
objectionable recommendations in Issue 8.‖ Id. at 29 n.24. The Court‘s analysis of the Panel‘s 10
response to Issue 8, and of LSAC‘s objections to that response, falls under the heading ―Issue 8: 11
Automatic Review of Denials,‖ below. 12
D. Issue 5: Criteria and Guidelines for Reviewers 13
This issue required that the Panel ―consider and establish criteria and guidelines for use by 14
persons who review or evaluate testing accommodation requests.‖ Consent Decree ¶ 7(c)(iii)(3). 15
The Panel developed a two-step process to determine first ―whether or not a candidate has a 16
disability,‖ and second ―whether LSAC should approve the candidate‘s request for testing 17
accommodations.‖ See Report at 11. 18
1. The Panel’s Report 19
a. Overview and General Principles Regarding Issue 5 20
Before delving into the two steps, the Report sets forth a number of general rules and 21
guidelines for review. According to the Panel, ―[i]t shall be the role of the LSAC reviewer(s) to 22
look for evidence that supports the candidate‘s request for testing accommodations, rather than to 23
look for evidence that denies the candidate‘s request,‖ and ―[a]ll reviewers shall begin the process 24
with the presumption that the testing accommodation is justified.‖ Id. LSAC ―should accept, 25
without further inquiry, ‗documentation provided by a qualified professional8 who has made an 26

27 8 The Panel adopts the definition of ―qualified professional‖ used in the official guidance to the

28

federal ADA implementing regulations: ―a person who is ‗licensed or otherwise properly credentialed and posess[es] expertise in the disability for which modifications or accommodations

15

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1 individualized assessment of a candidate that supports the need for the . . . accommodation . . .

2 requested,‘‖ giving precedence to ―experts who have personal familiarity with the candidate‖ over

3 reviewers who have not met the candidate. Id. at 10 (quoting 28 C.F.R. Part 36 App. A (guidance

4 regarding 28 C.F.R. § 36.309)).

5

The Panel endorsed the Consent Decree‘s requirement that LSAC provide

6 accommodations that candidates previously received on other standardized tests, and further

7 determined that ―an established history of testing accommodations‖ on non-standardized tests,

8 such as university examinations, ―shall presumptively support the request for the provision of

9 similar testing accommodations on the LSAT.‖ Id. at 11. It also determined that ―LSAC shall

10 presumptively grant testing accommodation requests that do not involve requests for extended

11 time,‖ so long as the candidate submits adequate documentation of his or her disability. Id.

12

Finally, the Report states that ―[n]othing in these criteria or standards prevents the

13 reviewer from using his or her professional judgment, but these decisions must be clearly

14 explained in detail.‖ Id. at 12 (emphasis added). A reviewer ―must provide a specific written

15 explanation in support of‖ any denial of a requested accommodation, and must ―provide a clear

16 statement of what documentation is necessary‖ in response to any request that lacks adequate

17 documentation. Id. at 11−12.

18

b. Issue 5 Part 1: Whether a Candidate Has a Disability

19

The Report divides its discussion of this sub-issue further into two sections. First, it

20 discusses what documentation is sufficient if the candidate has ―a record of a disability.‖ Id. at 12,

21 ¶ 1. The Report states that if a candidate presents documentation that he or she has been

22 recognized as having a disability under any of several specified educational programs, the

23 candidate ―will be found to have a disability.‖ Id. at 12−13, ¶¶ 1(a)(i)−(iv). The same is true if

24 the candidate presents documentation of a disability from a medical doctor or other qualified

25 professional who has examined the candidate. Id. at 13, ¶¶ 1(a)(v)−(vi). Under any of these

26 circumstances, the candidate must also ―certif[y] that he or she continues to have a disability.‖ Id.

27

28

are sought.‘‖ Report at 10 (quoting 28 C.F.R. Part 36 App. A (guidance regarding 28 C.F.R. § 36.309)) (alteration in original).

16

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1 at 13, ¶ 1(b).

2

The second subpart addresses candidates who ―do[] not have a record of a disability.‖ Id.

3 at 13, ¶ 2. The Report cautions that someone who receives an average overall score on a test of a

4 specific skill may still warrant accommodation if they have ongoing, verifiable difficulty with that

5 skill due to a disability. Id. at 13, ¶ 2(a). It presents as an example someone who ―receives

6 average scores on a reading test,‖ but whose ―history . . . reveal[s] special education in first grade

7 and several years of individualized tutoring, and who as an adult ―may have trouble reading for

8 long periods of time‖ and find ―the act of reading . . . difficult and effortful . . . as compared to 9 most people.‖9 Id. The Panel recommends that such a person be granted accommodations. Id.

10

In terms of documentation, the distinction between a candidate with a ―record of a

11 disability‖ and one who ―does not have a record of a disability‖ is not entirely clear. As discussed

12 above, documentation from a qualified professional is presented as one way to establish a ―record

13 of a disability.‖ See id. at 13, ¶¶ 1(a)(v)−(vi). The only examples given of evidence sufficient to

14 show a non-record disability are, similarly, where a ―qualified professional has provided

15 documentation that the candidate has a disability, which restricts the candidate‘s ability to

16 demonstrate his or her aptitude or achievement,‖ and where a ―qualified professional has provided

17 documentation that an individual has a temporary disability . . . which restricts the candidate‘s

18 ability to demonstrate his or her aptitude or achievement.‖ Id. at 14, ¶¶ 2(b)(i)−(ii). The Report

19 notes that such evidence is ―not limited to‖ these examples, id. at 14, ¶ 2(b), and concludes this

20 section by cautioning against denying accommodations based on the absence of historical

21 documentation, noting a number of specific factors that ―can delay the identification of a

22 disability,‖ id. at 14, ¶ 2(c).

23

24 9 This example, also discussed elsewhere in the Report, is somewhat unintuitive, and is a subject

25

of criticism in the Minority Report. See Minority Report at 1 (―[D]esignating individuals who have ‗average overall reading abilities‘ as disabled for the purpose of receiving an accommodation

26

. . . does not properly reflect the ADA‘s definition of a disability nor does it reflect the spirit of fairness inherent in the law.‖). The Court understands the Panel‘s position to be that if someone is

27

significantly impaired in reading ability by, for example, dyslexia, but able to compensate for that impairment to the extent that he or she can achieve overall average scores on reading tests by other

28

abilities, such as superior analytical ability, that person should receive accommodations for his or her reading disabilities so that the LSAT accurately reflects his or her other superior abilities.

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c. Issue 5 Part 2: What Accommodations Are Appropriate 1

This section lays out the Report‘s most substantive guidance on how LSAC should

2

determine whether to approve requests for accommodations. It is further divided into two

3

subparts: the first subpart addresses requests for non-time-based accommodations and extra time

4

up to 50% (or up to 100% for visual impairments); the second addresses requests for greater than

5

50% extra time (or greater than 100% for visual impairments).

6

i. Standards for Non-Time-Based Accommodations and Accommodations

7

Not Exceeding 50% Extra Time, or 100% Extra Time for Visual

Impairments 8

Based on the ADA regulations‘ requirement that considerable weight be given to past

9

accommodations, the Report requires that LSAC provide accommodations comparable to those

10

that a candidate has received in virtually any other test setting, including ―K-12 formal [or]

11

informal testing accommodations,‖ so long as the request does not exceed 50% extra time. See id.

12

at 15, ¶¶ 1(a)−(b) (citing 28 C.F.R. § 36.309(b)(1)(v)). The Report notes, however, that a lack of

13

past testing accommodations does not establish a lack of present need for accommodations. Id. at

14

15, ¶ 1(c).

15

If the candidate has not previously received an accommodation, he or she ―should provide

16

documentation to justify each requested testing accommodation but the burden on the candidate

17

shall be no higher than [it would have been] if he or she had sought such testing accommodations

18

earlier in his or her educational career.‖ Id. at 16, ¶ 2(a). The candidate must provide a diagnosis

19

of disability from a qualified professional, and an explanation by the candidate, qualified

20

professional, or a teacher of the ―accommodation as it relates to the candidate‘s disability.‖ Id. at

21

16, ¶¶ 2(b)−(c). So long as the request does not exceed 50% extra time, no further documentation

22

is required. Id. at 16, ¶ 2(d).

23

The Report also ―provide[s] minimum standards that LSAC shall use when determining if

24

a request for a testing accommodation [based on certain specified disabilities] is appropriate.‖ Id.

25

at 16, ¶ 3(a). It identifies a number of disabilities that, if a diagnosis is adequately documented,

26

should justify ―a minimum of 50% extra time,‖ specifically ―learning disabilities,‖ ADHD, ―major

27

psychiatric disorders,‖ and (with a history of receiving extra time or ―a reasonable explanation‖)

28

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1 ―writing disorders.‖ Id. at 16−18, ¶¶ 3(b)(i)−(iii), (vi). Candidates with visual impairments ―shall

2 be allowed to use the testing accommodations that they document they have used in the past,‖ and

3 if they use ―a reader, computer reader (text-to-speech), braille or other similar alternatives [then

4 they] shall be granted 100% extra time.‖ Id. at 17, ¶ 3(b)(iv). This section of the Report also

5 provides for other non-time-based accommodations for certain disabilities, including that, for

6 writing disabilities, ―LSAC shall approve requests for the use of a computer, and spell check, for 7 any individual with the history of using such assistive devices in school or work settings.‖10 Id. at

8 18, ¶ 3(b)(vi).

9

ii. Standards for Requests Exceeding 50% Extra Time, or 100% Extra Time

for Visual Impairments

10

―It is the Panel‘s opinion that 50% additional time is a reasonable amount of time in most

11

cases,‖ presumably—based on the provisions discussed above—excluding cases of visual

12

impairment. Id. at 18. The Report nevertheless discusses a number of conditions under which a

13

candidate should receive more than 50% extra time, including (1) where the candidate received

14

more than 50% extra time ―on any past standardized test,‖ (2) ―where more than 50% extra time

15

can be shown to have been granted as a consistent testing accommodation, and was approved by

16

an appropriate professional,‖ and (3) ―if a postsecondary disability service provider provides a

17

signed statement indicating that a candidate was provided with more than 50% additional time on

18

college examinations.‖ Id. at 18−19, ¶¶ 1, 4.

19

Otherwise, a qualified professional may provide ―documentation with a reasonable

20

explanation that supports the need for more than 50% extra time‖ for either the entire LSAT or

21

certain sections thereof, and the LSAC reviewer must base his or decision on that documentation

22

and ―give substantial weight to the recommendation of the qualified professional.‖ Id. at 19,

23

¶¶ 2−3. As an example of an accommodation for a specific section of the test, the Report states

24

that ―for individuals with visual impairments who are routinely granted 100% extra time, 150%

25

26 10 Read broadly, this is a somewhat odd recommendation, as a vast number of non-disabled

27

students and employees use computers and spell check functions in school and work settings. The Court understands the Report‘s use of the words ―such accommodations‖ to limit this guidance to

28

candidates who have been allowed to use these tools as accommodations for impairments in circumstances where they are not otherwise provided.

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1 extra time shall be allowed on the analytical reasoning section of the LSAT exam because of its

2 reliance on visual-spatial abilities.‖ Id. at 19, ¶ 3. The Report also provides that ―more than 50%

3 extra time shall be given to an individual who, because of health or sensory impairments on

4 psychiatric disorders, warrants such time to demonstrate his or her achievement or aptitude.‖ Id.

5 at 19 ¶ 5. The example given for that provision involves a case of multiple diagnoses, where the

6 additional effect of a second impairment renders inadequate the 50% extra time routinely given for

7 the first impairment. Id.

8

More generally, LSAC should grant more than 50% extra time ―[a]s long as sufficient

9 evidence is presented,‖ LSAC should not suggest a partial accommodation (for example, 75%

10 extra time where 100% has been requested), and reviewers ―may use clinical judgment to support

11 a candidate‘s request for extended time.‖ Id. at 19−20, ¶¶ 6−7. ―In cases where the request is for

12 a 100% time extension or greater and a reasonable explanation is provided, the test shall be

13 administered over two consecutive days, if the candidate requests that testing accommodation.‖

14 Id. at 20, ¶ 9.

15

2. LSAC’s Arguments and the Court’s Conclusions

16

a. Criteria, Guidelines, and Outcomes

17

LSAC argues that the Panel exceeded its authority in a number of instances ―by mandating

18 outcomes rather than establishing ‗criteria and guidelines‘ for reviewing candidate

19 documentation.‖ Appeal at 20; see also id. at 17–18, 20, 21, 23, 24, 25, 26, 27–29 (presenting

20 forms of this objection in the context of Issue 5); id. at 13–17 (making similar arguments in the

21 context of Issue 2). LSAC‘s position turns on an unreasonably limited reading of the word

22 ―criteria.‖ While the word ―guidelines‖ certainly implies something less than a strict rule, the

23 Consent Decree does not limit the Panel‘s role to setting ―guidelines‖ It charges the Panel with

24 establishing ―criteria and guidelines for use by persons who review or evaluate testing

25 accommodation requests.‖ Consent Decree ¶ 7(c)(iii)(3) (emphasis added). Unlike ―guidelines,‖

26 the word ―criteria‖ is commonly used to describe the elements of a rule. If each criterion is met, a

27 certain outcome may be compelled. See, e.g., Alaska Wilderness League v. Jewell, 788 F.3d 1212,

28 1224–25 (9th Cir. 2015) (―The statute at issue there listed nine statutory criteria; if those criteria

20

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1 were satisfied, the agency bore a nondiscretionary duty to perform a specific action . . . . [I]f they

2 have been met, BSEE must approve the plan.‖ (emphasis added)). Accordingly, giving meaning

3 to both aspects of the panel‘s charge under Issue 5—―criteria‖ as well as ―guidelines‖—the Court

4 finds that the Consent Decree grants the Panel authority to establish substantive, outcome-

5 determinative rules governing how LSAC reviews requests for accommodations.

6

For the most part, however, the Report does not establish mandatory criteria of that sort.

7 Only a relatively small number of the Panel‘s recommendations dictate an outcome without

8 providing room for some exercise of judgment by LSAC‘s reviewers. Many of the

9 recommendations that LSAC asserts ―mandat[e] outcomes‖ in fact, by their own terms, require

10 reviewers to exercise professional judgment. For example, the Report provides that a request for

11 no more than 50% extra time ―that is appropriately documented, shall be granted,‖ but the

12 documentation requirement includes ―a reasonable explanation for each testing accommodation as

13 it relates to the candidate‘s disability,‖ and a ―clear explanation of why a specific amount of time

14 is requested.‖ Report at 16; see Appeal at 23−24. Although that guidance dictates that a request

15 ―shall be granted‖ if the documentation criteria are met, a reviewer must exercise judgment in

16 determining whether the documentation reasonably and clearly explains a need for the

17 accommodation. Along the same lines, the guidance that ―LSAC shall presumptively grant testing

18 accommodation requests that do not involve requests for extra time‖ does not dictate outcomes,

19 but merely establishes a default presumption that may be overcome if the reviewer determines in

20 his or her professional judgment that the accommodation is not warranted. See Report at 11;

21 Appeal at 24.

22

Further, the Report provides that ―[n]othing in these criteria or standards prevents the

23 reviewer from using his or her professional judgment, but these decisions must be clearly

24 explained in detail.‖ Report at 12. The Parties appear to have overlooked this provision in their

25 written arguments, but the Court finds that it significantly limits those few portions of the Report

26 which, read in isolation, appear to require the sort of ―mandatory outcome‖ to which LSAC

27 repeatedly objects.

28

For example, in Part II of the response to Issue 5, ―[i]t is the Panel‘s recommendation that

21

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1 individuals with an established diagnosis of major psychiatric disorders shall be given a minimum

2 of 50% additional time, and extra breaks, as requested.‖ Id. at 17, ¶ 3(b)(iii). Read in isolation,

3 this appears to require that all individuals with such a diagnosis will receive at least 50% extra

4 time and additional breaks. Read in the context of the Report as a whole, however, it calls for that

5 outcome unless the reviewer, ―using his or her professional judgment,‖ determines that such

6 accommodations are not warranted and explains that decision ―in detail.‖ See id. at 12. As an

7 additional example, the same is true of the provisions in Part I stating that a ―candidate will be

8 considered to have a disability‖ if he or she produces certain documentation and ―certifies that he

9 or she continues to have a disability.‖ Id. at 13, ¶ 1(b). In the context of the Report as whole,

10 however, a reviewer may determine in his or her professional judgment that such a candidate does

11 not have a disability, so long as the reviewer explains that decision in detail. See id. at 12.

12

Accordingly, in each instance where—without otherwise providing for an exercise of

13 judgment—the Report provides that LSAC ―shall‖ or ―will‖ find a candidate disabled or grant an

14 accommodation, the reviewer must respect the Panel‘s determination that such an outcome is

15 appropriate in most cases meeting the criteria presented in the Report, but may nevertheless reach

16 a different outcome if, in the reviewer‘s professional judgment, exceptional circumstances justify

17 treating the request differently from the normal case anticipated by the Panel, and he or she

18 explains in detail the exceptional circumstances that justify a departure from that presumption.

19

This is significant because even if the Court agreed with LSAC that the Panel lacks

20 authority to impose outcomes, the Report does no such thing. Instead, it sets a series of guidelines

21 for review of requests, some more specific than others, that can be rebutted by a detailed 22 explanation of why, in the reviewer‘s professional judgment, an exception applies.11 The Court

23 therefore finds no basis to invalidate any portion of the Panel‘s responses to Issues 2 and 5 on the

24

25

26

27

11 Plaintiffs also concede that ―[n]othing in the Decree or Best Practices [Report] precludes LSAC from demonstrating that the provision of a particular auxiliary aid or service would result in a

28

fundamental alteration or undue burden, consistent with the regulation implementing the ADA.‖ Opp‘n at 22.

22

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1 grounds that it purportedly imposes an outcome.12

2

b. Consideration of Qualified Professionals and Candidate Statements

3

LSAC objects to a number of provisions stating that reviewers should give deference or

4 special weight to the opinions and recommendations of qualified professionals who have

5 examined the candidate. Appeal 18–19. According to LSAC, these provisions conflict with the

6 Consent Decree, which provides that ―LSAC shall consider documentation provided by a qualified

7 professional who has made an individualized assessment of the candidate.‖ See Consent Decree

8 ¶ 5(d)(iii) (footnote omitted).

9

The Court finds no conflict. ―Considering‖ a form of evidence or authority is not

10 inconsistent with giving deference to it. It is perfectly accurate to state that this Court considers

11 Ninth Circuit and Supreme Court precedent in reaching its decisions—the fact that the Court is

12 also bound by such precedent does not make that use of the word ―consider‖ improper. Paragraph

13 5(d)(iii) requires only that LSAC cannot disregard documentation submitted by a qualified

14 professional. It does not bar the Panel from requiring that LSAC give such documentation greater

15 weight than other evidence. Further, provisions mandating that reviewers give ―precedence,‖

16 ―deference,‖ ―more weight,‖ ―substantial weight,‖ or ―preference‖ to a qualified professional‘s

17 diagnosis or recommendation, see Report at 10, 12, 13, 19, 20, do not require that a reviewer reach

18 the outcome supported by that evidence in all cases. So long as the reviewer acknowledges and

19 applies the appropriate weight to evidence from a qualified professional, he or she may

20 nevertheless determine, applying his or her professional judgment to the request and supporting

21 documentation as a whole, that a different outcome is warranted. The Court finds no basis to

22 invalidate the Report‘s provisions regarding documentation from qualified professionals.

23

Substantially the same rationale applies to LSAC‘s objection to a provision of the Report

24 stating that requests for up to 50% extra time ―shall be granted‖ if the ―candidate, a qualified

25

26 12 The same is true of the related objection that certain portions of the Report conflict with

27

Paragraph 5(d)(v), which provides that ―LSAC may consider objective evidence relating to the candidate‘s diagnosed impairment and its impact on the candidate.‖ Consent Decree ¶ 5(d)(v);

28

see, e.g., Appeal at 17. Reviewers may consider any evidence in the candidate‘s file in the process of exercising their professional judgment.

23

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1 professional, or a teacher . . . provide[s] a reasonable explanation for each testing

2 accommodation,‖ constituting ―a clear explanation of why a specific amount of time is requested.‖

3 Appeal at 23–24 (quoting Report at 16, ¶¶ 2(c)–(d)). LSAC argues that this conflicts with the

4 Consent Decree‘s provision that ―LSAC shall consider all facts and explanations offered by the

5 candidate.‖ See Consent Decree ¶ 5(d)(1). As discussed above, there is no conflict between

6 ―considering‖ a type of evidence and affording it some degree of deference. Moreover, the

7 reviewer in fact must consider the candidate‘s (or professional‘s or teacher‘s) statement—as

8 required by the Consent Decree—to determine whether, in the reviewer‘s professional judgment, it

9 offers a ―reasonable‖ and ―clear explanation‖ of the need for the accommodation—as required by

10 the Report. See Report at 16, ¶¶ 2(c)–(d). The Court finds no conflict and no basis to invalidate

11 these provisions.

12

c. Considerable Weight Given to Education Plans

13

LSAC objects to the provisions of the Report stating that a candidate ―will be found to

14 have a disability‖ if he or she provides documentation of a disability recognized by certain

15 enumerated education programs, such as an Individualized Education Program or a Section 504

16 Plan. Appeal at 20–21; see Report at 12–13, ¶¶ 1(a)(i)–(iv). According to LSAC, these provisions

17 conflict with Paragraph 5(d)(ii) of the Consent Decree, which provides that LSAC will give

18 ―considerable weight‖ to such past accommodations. See Appeal at 20–21; Consent Decree

19 ¶ 5(d)(ii).

20

The fact that the Consent Decree requires ―considerable weight‖ for certain education

21 plans does not remove those plans from the realm of the Panel‘s authority under Issue 5. The

22 Panel remains free to establish criteria and guidelines related to such plans—including defining

23 ―considerable weight‖ as it has done here—so long as that guidance does not conflict with the

24 Consent Decree‘s requirement that LSAC afford them considerable weight. The challenged

25 criteria do not conflict with the Consent Decree. As previously discussed, read in the context of

26 the Report as a whole, the challenged provisions require a finding of disability unless the reviewer

27 determines in his or her professional judgment that such a finding is not warranted, and explains in

28 detail what exceptional circumstances justify a departure from the presumption set forth in the

24

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1 Report. See Report at 12 (―Nothing in these criteria or standards prevents the reviewer from using

2 his or her professional judgment, but these decisions must be clearly explained in detail.‖). The

3 Court finds no conflict between that standard and the ―considerable weight‖ required by the

4 Consent Decree.

5

d. Considerable Weight Given to Past Testing Accommodations

6

LSAC similarly objects to the Report‘s instruction that past accommodation in any of a

7 number of test settings—ranging from ―K-12 informal testing accommodations‖ to ―[s]imilar

8 accommodations on previous standardized . . . examinations‖—is sufficient to warrant providing

9 accommodations so long as the candidate is not requesting more than 50% extra time. See Report

10 at 15, ¶ 1(a)(i)–(vi); Appeal at 21–23. According to LSAC, this improperly invalidates the

11 distinction that the Consent Decree draws between certain standardized tests enumerated in

12 Paragraph 5(a)—which automatically warrant certain equivalent accommodations—and ―similar

13 testing situations not covered by Paragraph 5(a),‖ which warrant ―considerable weight‖ under

14 Paragraph 5(d)(ii). See Consent Decree ¶ 5(a) & n.4; id. ¶ 5(d)(ii).

15

This guideline—that a candidate with past testing accommodations should receive

16 comparable accommodation on the LSAT unless a reviewer explains in detail why, in his or her

17 professional judgment, exceptional circumstances warrant a different outcome—is wholly

18 consistent with the Consent Decree‘s standard of ―considerable weight.‖ The extreme scenario

19 discussed in LSAC‘s Appeal—―an informal accommodation in kindergarten or elementary

20 school,‖ Appeal at 23—is precisely the sort of situation where a reviewer might determine the 21 accommodation sought on the LSAT is not, in fact, ―comparable,‖13 or might exercise professional

22 judgment and explain why that evidence is not sufficient. Where an accommodation is found to

23 be comparable, a reviewer may still ―us[e] his or her professional judgment,‖ see Report at 12, but

24 as discussed above, must acknowledge the Panel‘s determination that such past accommodations

25 are normally sufficient, and explain in detail what exceptional circumstances of the request at

26

27

13 Plaintiffs acknowledged at the July 31, 2015 hearing that LSAC reviewers retain discretion in determining whether a past accommodation is ―comparable‖ to the accommodation requested on

28

the LSAT, and that informal accommodations provided in kindergarten are unlikely to be comparable.

25

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1 issue differ from the normal case anticipated by the Panel and thus justify a departure from that

2 presumption.

3

The Court is not persuaded by LSAC‘s argument that the criteria set by the Panel for

4 requests falling under Paragraphs 5(b)−(d) must differ from the criteria set by the Consent Decree

5 for requests falling under Paragraph 5(a)—i.e., that evidence of past accommodation for another

6 test is sufficient to receive comparable accommodation for the LSAT. LSAC argues that the

7 distinction between Paragraphs 5(a) and 5(b)−(d) represents the Parties‘ ―narrowly-drawn

8 compromise.‖ Appeal at 22. But while the Consent Decree undeniably represents the Parties‘

9 compromise, it is not so ―narrowly-drawn‖ as LSAC now argues. Nothing in the Consent Decree

10 states that Paragraph 5(a) sets forth the only circumstances in which past testing accommodations

11 may be dispositive of a candidate‘s request, and the Court cannot assume that Plaintiffs would

12 have agreed to such a restriction on the Panel‘s authority. See Armour & Co., 402 U.S. at 681–82

13 (―Because [each party] has, by the decree, waived [its] right to litigate the issues raised, . . . the

14 conditions upon which [it] has given that waiver must be respected, and the instrument must be

15 construed as it is written . . . .‖). Acting within its authority to establish criteria for review, the

16 Panel was free to require that other tests and past accommodations besides those listed in

17 Paragraph 5(a) be given dispositive weight.

18

Regardless of whether the Panel had authority to create such rules, it did not do so. Even if

19 the Court were to accept LSAC‘s argument regarding the structure of the Consent Decree, the

20 provisions of the Report addressing past testing accommodations do not nullify the distinction

21 between the Paragraph 5(a) tests and all other tests. As discussed above, the Report provides that

22 ―[n]othing in these criteria or standards prevents the reviewer from using his or her professional

23 judgment,‖ see Report at 12, and a reviewer may determine in exceptional cases that even

24 comparable past testing accommodations should not be granted for the LSAT. In contrast, there is

25 no room for professional judgment under the automatic procedure of Paragraph 5(a). The Court

26 finds no basis to invalidate the Report‘s provisions regarding past testing accommodations.

27

e. Presumptive Approval of Non-Time Accommodations

28

LSAC objects to the Panel‘s instruction that ―LSAC shall presumptively grant testing

26

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1 accommodations that do not involve requests for extended time‖ so long as the candidate

2 documents his or her disability. Appeal at 24–25 (quoting Report at 11). This provision of the

3 Report comes from the introductory portion of Issue 5, and appears to summarize the more

4 detailed requirements discussed later in that section. See Report at 11. The Court does not read it

5 as negating the requirement that a candidate satisfy some portion of Part II to show what

6 accommodation is appropriate by, for example, submitting evidence of past testing

7 accommodations or a ―reasonable explanation for each testing accommodation as it relates to the

8 candidate‘s disability.‖ See id. at 15–16, ¶¶ 1–2.

9

To the extent that LSAC argues that this provision improperly mandates an outcome and

10 conflicts with LSAC‘s right to request supplemental materials, see id., the Court disagrees for the

11 reasons discussed above. LSAC also argues that this standard ―shows a complete disregard for the

12 importance of standardized testing conditions‖ and ―reflects a lack of appreciation for the wide

13 range of non-time accommodations that are requested on standardized tests, many of which may

14 be unreasonable, unnecessary, or otherwise inappropriate.‖ Appeal at 25. Even if that is true, it is

15 not a basis for appeal under the Consent Decree. The Parties reasonably elected to delegate these

16 issues to a panel of experts rather than try them before the Court. There is no basis for the Court

17 to substitute its judgment for that of the Panel. The Court notes, however, that the more extreme

18 examples that LSAC puts forward may be situations where a reviewer would exercise his or her

19 professional judgment to deny a request. Further, as noted above, Plaintiffs concede that LSAC

20 retains the right to ―demonstrat[e] that the provision of a particular auxiliary aid or service would

21 result in a fundamental alteration or undue burden, consistent with the regulation implementing

22 the ADA.‖ Opp‘n at 22.

23

f. Differentiation by Type of Disability or Accommodation Requested

24

LSAC objects to a number of instances where the Report sets forth different standards of

25 review based on the type of disability claimed, the accommodation requested, or some

26 combination of the two. Appeal at 26–28. According to LSAC, ―[s]uch recommendations conflict

27 with Paragraph 5(d) of the Decree, which sets out the standards applicable to all accommodation

28 requests, regardless of the type of accommodation requested or the nature of the underlying

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1 disability.‖ Id. at 26. As with the Issue 2 documentation standards discussed above, however, the

2 Court finds nothing in the Consent Decree to support this argument. The fact that the Consent

3 Decree and the ADA do not themselves differentiate between these kinds of requests does not

4 prohibit the Panel from making such distinctions in fulfilling its charge to ―establish criteria and

5 guidelines for use by persons who review or evaluate testing accommodation requests.‖ See

6 Consent Decree ¶ 7(c)(iii)(3). The Court finds no basis to invalidate these provisions of the

7 Report.

8

E. Issue 8: Automatic Review of Denials

9

This issue broadly tasks the Panel with determining whether full or partial denials of

10 accommodation requests should be subject to ―an automatic review,‖ and if so, ―how such a

11 review should be conducted.‖ Consent Decree ¶ 7(c)(iii)(6). The Panel determined that denials

12 must be automatically reviewed by multiple additional reviewers, and set forth a procedure for

13 such review. Report at 22−24. This section of the Report also includes standards for LSAC‘s

14 first-level review of accommodation requests. See id. at 22.

15

1. First-Level Review

16

In the Consent Decree, Issue 8 concerns only ―automatic review[s] of partial and/or full

17 denials.‖ Consent Decree ¶ 7(c)(iii)(6). It provides the Panel no authority to directly alter

18 LSAC‘s procedure for initially reviewing accommodation requests. See id. In reviewing the

19 Panel‘s recommendations for first-level review, the Court therefore looks to whether other

20 portions of the Consent Decree provide such authority.

21

First, the Report provides that although candidates generally ―must submit all their records

22 in support of a testing accommodation by the applicable registration date,‖ id., see also Consent

23 Decree ¶ 5(f), LSAC should ―waive the regular deadline and make every effort to accommodate

24 [a] candidate‖ who ―unexpectedly acquires a disability after the registration deadline.‖ Report at

25 22. As stated in the Report, ―[t]he Panel understands that this recommendation goes beyond its

26 authority under the Consent Decree but believes it is a Best Practice.‖ Id. The Court construes

27 that statement as a concession that LSAC is not bound by this recommendation regarding late-

28 onset disabilities, and so holds. Although LSAC may adopt this recommendation if it so chooses,

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1 nothing in the Consent Decree requires LSAC to consider requests for accommodation submitted

2 after the LSAT registration deadline.

3

Next, the Report lays out a process for first-level review as follows:

4

The Disabilities Specialist [(an LSAC employee)] shall review each

file and make a recommendation whether to approve the requested

5

accommodations in full, to approve in part, or to deny in full. He or

she will then prepare a written summary based on a checklist of

6

decision-making criteria (as described in response to Issue 5) that

explains the reasoning for that decision, using a holistic approach to

7

the file. This review shall occur within two business days of the

Disability Specialist receiving a completed file.

8

Id. LSAC objects to this paragraph in its entirety, except for the portion requiring the Disabilities

9

Specialist to prepare a written summary based on a checklist of criteria. LSAC Redline at 22.

10

While LSAC is correct that these provisions of the Report are not authorized by Issue 8, the Court

11

finds that they fall within the Panel‘s authority under Issue 5 to establish ―criteria and guidelines

12

for use by persons who review or evaluate testing accommodation requests.‖ See Consent Decree

13

¶¶ 7(c)(iii)(3). That the Disabilities Specialist must recommend whether to approve in full,

14

approve in part, or deny in full are ―criteria.‖ That he or she should ―us[e] a holistic approach to

15

the file‖ is a ―guideline.‖ The Court therefore declines to invalidate these provisions.

16

The two-day deadline goes beyond the Panel‘s authority, and improperly purports to

17

regulate an aspect of the process of first-level review that was not delegated to the Panel under any

18

of its ten issues. The same is true of the provision that if the single Disabilities Specialist that

19

LSAC currently employs cannot meet the two-day deadline, ―then LSAC shall hire additional,

20

qualified staff as Disabilities Specialists to make that deadline feasible,‖ because ―[e]mploying

21

adequate, qualified staff is a Best Practice.‖ Report at 22. Because the Panel could not require

22

LSAC to meet the two-day internal review deadline, it certainly could not require the hiring of

23

staff to meet that deadline. Except as specified in the Consent Decree, it is for LSAC to determine

24

how it will meet its obligations thereunder (including compliance with the binding portions of the

25

Report). The Court therefore holds that these recommendations are not binding on LSAC.

26

As discussed below, however, the Consent Decree grants the Panel explicit authority to

27

determine whether and how LSAC should (1) automatically review decisions to deny requests;

28

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1 and (2) allow candidates to seek further review of its final decision, and the Report provides for

2 such processes. See Consent Decree ¶¶ 7(c)(iii)(6), (7); Report at 23−28. LSAC must therefore

3 complete its internal review—including review by the Manager of Accommodated Testing as

4 discussed below—in sufficient time to allow for the automatic review and appeals process

5 established by the Panel in response to Issues 8 and 9. Because the automatic review by outside

6 consultants takes four business days, Report at 23−24, transmission to the candidate takes one

7 business day, id. at 24, the candidate has four calendar days to submit an appeal, id. at 25, and the

8 appeal must be received at least twelve calendar days before the test, id., LSAC effectively must

9 complete its internal review no later than five business days before the business day that is at least 10 sixteen calendar days before the LSAT test date.14 This timeline only applies to candidates who

11 register and request accommodation by the ―regular‖ deadline; the process for candidates who

12 elect to use LSAC‘s ―late registration‖ deadline is discussed separately in the portion of this Order

13 addressing Issue 9.

14

2. Internal Manager’s Role in Review

15

After the ―first-level review‖ by the Disabilities Specialist, the Report provides that

16 another existing LSAC employee, the Manager of Accommodated Testing (the ―Manager‖), ―shall

17 review the file within two business days‖ and either ―approve the requested testing

18 accommodation in full, or write a clear rationale explaining the decision not to approve a testing

19 accommodation in full.‖ Id. at 22−23. If the Manager approves the request in full, the written

20 summaries prepared by LSAC staff ―shall be retained in LSAC‘s records to be reviewed in the

21 future for consistency or training purposes,‖ and ―the candidate shall receive a communication

22 within one business day stating that his or her . . . request has been approved in full.‖ Id. at 23.

23

LSAC objects to these portions of the Report because they ―relate solely to the internal

24

25 14 The unavoidably awkward structure of this deadline arises from the Report‘s timeline switching

26

from business days in the context of automatic review to calendar days in the context of an appeal. While it is somewhat cumbersome to explain, it is not particularly difficult to calculate for a test

27

that is only administered a handful of times per year. For example, the internal review deadlines for the next three regular LSAT test dates—on October 3, 2015, December 5, 2015, and February

28

6, 2016—are September 10, 2015, November 12, 2015, and January 13, 2016, respectively (assuming that LSAC observes federal holidays).

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1 process leading up to LSAC‘s initial decision to grant or deny a request.‖ Appeal at 29. Again,

2 LSAC is correct that Issue 8 does not relate to the process by which LSAC reaches its initial

3 decision. The Court nevertheless finds that the Panel had authority to require that the Manager

4 review the Disability Specialist‘s ―recommendations‖ to deny requests for accommodation.

5

Issue 4 authorizes the Panel to determine ―whether more than one qualified professional

6 should review a documented request for testing accommodations before LSAC may deny the

7 request in whole or in part.‖ Consent Decree ¶ 7(c)(iii)(2). As LSAC correctly argues, ―[t]his

8 straightforward query contemplated a simple ‗yes‘ or ‗no‘ response.‖ Reply at 7. Although very

9 little about the Panel‘s Report can be characterized as ―simple,‖ the framework set forth in

10 response to Issue 8 unambiguously answers ―yes‖ to Issue 4: more than one person should review

11 a request before LSAC may deny it. See Report at 22−23. Issue 3, which LSAC does not

12 challenge, permits the Panel to ―establish the appropriate qualifications for persons, such as LSAC

13 staff . . . who make substantive adverse decisions on requests.‖ Consent Decree ¶ 7(c)(iii)(1). The

14 Panel is therefore within its authority in requiring that the initial review must be conducted by a

15 Disabilities Specialist, that at least one more professional should review the request before LSAC

16 may deny it, and that the second professional must be the Manager of Accommodated Testing.

17 Because the Manager is among the ―persons who review or evaluate testing accommodation

18 requests,‖ the Panel is authorized by Issue 5 to establish criteria and guidelines for his or her use in

19 reviewing requests, including a requirement to ―write a clear rationale‖ for any denial. Consent

20 Decree ¶ 7(c)(iii)(3); Report at 22–23. The Panel is also authorized to require LSAC to maintain

21 records of its reasons for granting a request, see Report at 23, because Issue 6 charges the Panel to

22 ―consider whether there should be particular parameters for internally documenting written

23 decisions by LSAC personnel . . . and, if so, what those parameters should be.‖ See Consent

24 Decree ¶ 7(c)(iii)(4).

25

On the other hand, the requirement that the Manager complete his or her review within two

26 days is invalid because the Panel had no authority to set internal timelines for LSAC‘s review. As

27 discussed above, the only deadline for such review is that LSAC must reach its decision in time to

28 allow for the automatic outside review of denials and the appeals process set forth in response to

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1 Issues 8 and 9, respectively.

2

Further, the Panel cannot require the Manager to review the Disability Specialist‘s

3 determination that an accommodation should be granted in full. Nothing in the Consent Decree

4 prohibits LSAC from granting an accommodation based on a single reviewer‘s decision, nor does

5 the Consent Decree empower the Panel to establish procedures that require multiple people to

6 review a request before that request can be granted, because Issue 4 is limited to situations where

7 LSAC ―den[ies] the request in whole or in part.‖ See Consent Decree ¶ 7(c)(iii)(2). The

8 requirement that the Manager review a recommendation to grant an accommodation in full is not

9 binding on LSAC.

10

The Report‘s requirement that LSAC notify a candidate within one business day of the

11 decision that his or her request has been granted also does not fall within the scope of any issue

12 delegated to the Panel. Report at 23. As discussed above, the Panel had no authority to set

13 deadlines for LSAC‘s internal review process. Nor is this requirement authorized by Issue 7—

14 ―Written explanations for denials of testing authorizations‖—because it concerns accommodations

15 that are granted, rather than denied. See id. ¶ 7(c)(iii)(5). The one-day notification requirement

16 for approvals is therefore not binding on LSAC.

17

3. External Review

18

If the Manager determines that a request should be denied in full or in part, the Report sets

19 forth a procedure for automatic external review. LSAC must transmit the file to an outside

20 consultant of its choice who has relevant expertise and agrees to review the file within two

21 working days. Report at 23. The outside consultant must then review the file and reach a

22 conclusion to agree with the candidate‘s request in full, agree in full with LSAC‘s full or partial

23 denial, or suggest a partial approval falling between the candidate‘s request and LSAC‘s position.

24 Id. ―The outside consultant will provide a justification of his or her decision in writing.‖ Id. If

25 the consultant agrees with the candidate in full, then the ―consultant‘s determination will become

26 the final determination of LSAC for that candidate‘s request.‖ Id. at 23—24. Otherwise, the file

27 goes to a second consultant selected by the same process, who may either approve the request in

28 full or endorse the position of the first consultant. Id. at 24. The second consultant must also

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1 justify his or her decision in writing. ―Where a second outside consultant is used . . . the decision

2 by the second outside consultant is the final decision on the request for testing accommodation.‖

3 Id.

4

The candidate will be notified of the outcome of this process within one business day of

5 the decision. Id. If the request is not granted in full, LSAC must provide a decision letter

6 explaining the rationale of its decision, including ―[q]uoted statements from the written summaries

7 and checklist indicators.‖ Id. The letter must also ―include clear suggestions, with examples, for

8 any additional information that might be helpful in the appeal process,‖ and an explanation of that

9 process. Id.

10

LSAC objects to this portion of the Panel‘s Report on a number of grounds. First, LSAC

11 argues that Issue 8 only contemplated ―‗an automatic review‘ . . . i.e., one review.‖ Appeal at 30

12 (quoting Consent Decree ¶ 7(c)(iii)(6)) (emphasis added in Appeal). According to LSAC, ―the

13 Panel did not have the authority to impose two external reviews on LSAC.‖ Id. The Court

14 disagrees with the premise that the process described above falls outside the scope of ―an

15 automatic review.‖ A ―review‖ can encompass multiple steps and multiple reviewers. The

16 Panel‘s decision to establish a review process that may include two outside consultants falls within

17 the Panel‘s authority to determine ―how [an automatic] review should be conducted.‖ See Consent

18 Decree ¶ 7(c)(iii)(6).

19

LSAC also argues that the Panel exceeded its authority by:

20

making the decisions of the external reviewers binding on LSAC;

mandating the types of decisions that external reviewers may make

21

(i.e., external reviewers cannot reject any accommodation previously

granted by LSAC, even if the external reviewer concludes that

22

accommodations are unwarranted and even though the external

reviewer‘s decision is supposed to be binding on LSAC); mandating

23

the time within which the external reviewer must provide his or her

opinion; and dictating how and when LSAC‘s decisions must be

24

conveyed to the candidates.

25 Appeal at 30 (citations to the Report omitted); see also Reply at 7–8. LSAC appears to believe it

26 self-evident that such determinations exceed the Panel‘s authority, but fails to explain why any of

27 these issues fall outside of the Panel‘s mandate to determine ―how such a review should be

28 conducted.‖ See Consent Decree ¶ 7(c)(iii)(6). LSAC agreed to that provision in the Consent

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1 Decree, which by its plain language grants the Panel broad authority, and one of LSAC‘s

2 appointees to the Panel joined in establishing the procedure set forth in the Report. The Court

3 finds no basis to invalidate any portion of the Report concerning automatic review by outside 4 consultants.15

5

F. Issue 9: Appeals Process

6

This issue asked the Panel to consider whether LSAC should provide, for candidates

7 denied accommodations, an appeals process ―beyond that already provided by LSAC . . . and, if

8 so, what that process should be relative to LSAC‘s existing registration deadlines.‖ Consent

9 Decree ¶ 7(c)(iii)(7).

10

1. Appeals Process Described in the Panel’s Report

11

The Panel determined that such a process should be available, and ―recommend[ed] that

12 the candidate shall be able to submit an appeal up to twelve days before the actual administration

13 of the exam‖ and perhaps even later, depending on circumstances. Report at 25. After the

14 candidate receives notice that his or her request was not granted in full—as discussed above,

15 within one business day of the decision—―[t]he candidate will have at least 24 hours . . . to

16 indicate if the candidate desires to appeal,‖ or more time if the candidate submitted his or her

17 initial request before the registration deadline. Id. at 25–26 (emphasis added). The Report states

18 that LSAC must give the candidate a total of at least four days from notification of the adverse

19 decision to submit his or her appeal, and that ―[m]ore than four days can be provided to the

20 candidate . . . if that appeal can be received within twelve days before the scheduled test date.‖ Id.

21 ―In [his or her] appeal, the candidate may request a different testing accommodation than

22 requested in his or her original request for testing accommodations.‖ Id. at 28. ―If the candidate

23 desires more than four days to transmit an appeal, and those additional days would cause the file

24

25 15 The Panel‘s authority under Issue 8 to determine ―how [an automatic] review [of denials] should

26

be conducted‖ is significantly broader than its authority regarding LSAC‘s initial review of requests for accommodation. Accordingly, this Order reaches different conclusions as to certain

27

portions of the Report that mandate similar steps at different stages of the review process—e.g., while the Panel lacks authority to mandate that a decision to grant accommodation on initial

28

review be transmitted within one business day, it has authority to require such notice in the context of automatic review of a denial.

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1 to be received less than twelve days before the scheduled test date, then the candidate can request

2 that his or her application for testing accommodations be rolled-over to the next LSAC testing

3 cycle with no additional cost.‖ Id. at 26.

4

Upon receiving notice that the candidate intends to appeal, ―LSAC shall contact two

5 outside appeals consultants [with relevant expertise] (using the process described above [in Issue

6 8]) to ensure their availability in the event the appeals process is invoked.‖ Id. at 26. These are to

7 be different consultants than those who initially reviewed the denial of the candidate‘s request

8 under the Issue 8 automatic review process. See id. at 28 (―LSAC will immediately secure two

9 different outside consultants . . . .‖). Once LSAC receives the actual appeal, it has twenty-four

10 hours to decide whether to grant the request or to proceed with an appeal. Id. at 26. If it does not

11 grant the accommodation, it must transmit the appeal and the candidate‘s file to the first appeals

12 consultant for review under a process similar to that described in Issue 8, but with a twenty-four

13 hour deadline. Id. The first consultant may approve the request in full, approve in part (but not

14 less than LSAC‘s initial determination), or concur with LSAC‘s initial decision. Id. at 28. If the

15 first consultant does not grant the request in full, the appeal goes to the second consultant, who has

16 twenty-four hours to ―choose between the recommendation of the first outside appeals consultant

17 and the candidate‘s request.‖ Id.

18

LSAC must provide the result to the candidate within one week of the candidate

19 submitting the appeal. Id. at 26. ―LSAC will never refuse to provide the results of an appeal (or a

20 full consideration) because there is insufficient time to implement the requested testing

21 accommodation for that examination cycle, unless the candidate indicates that he or she would like

22 to terminate the testing accommodation request.‖ Id.

23

2. Arguments and Analysis

24

LSAC asks the Court to strike nearly all of this section, leaving only the requirements that:

25 (1) a candidate may submit an appeal (with the timeline and deadline for such an appeal not

26 specified); (2) LSAC may choose to grant the request or proceed with the appeal; and (3) the

27 appeals process will involve two outside consultants and follow the procedure described in Issue

28 8—presumably as modified by LSAC‘s objections to that issue, so that there is no deadline for a

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1 response and the result is not binding on LSAC. See LSAC Redline at 25–29; see also id. at 22–

2 24 (proposed revisions to Issue 8). According to LSAC, the Panel‘s response to this issue is ―an

3 effort to circumvent [the] agreed-upon restriction‖ that the Panel would not alter LSAC‘s existing

4 registration deadline by ―devis[ing] an appeals process that is virtually impossible to

5 operationalize, with the fallback that LSAC can just approve requests if the Panel‘s facially

6 unreasonable appeal process and deadlines cannot be met.‖ Appeal at 31; see also Reply at 13

7 (―At the very least, the challenged aspects of the recommended appeal process are not ‗consistent‘

8 with LSAC‘s existing registration deadlines because they are not realistic.‖). Plaintiffs argue that

9 this is not a valid basis for appeal under the Consent Decree, and dispute LSAC‘s assertion that

10 the Report‘s appeals process is not feasible. See Opp‘n at 24 (―[T]he Report explains in great

11 detail how [the appeals process] can feasibly be implemented.‖).

12

As a starting point, it is questionable that the Court has authority to invalidate a provision

13 of the Panel‘s Report because it is ―facially unreasonable,‖ or ―unrealistic.‖ The Consent Decree

14 provides the Parties a limited right to appeal to the Court if a provision of the Report is ―believed

15 to violate the ADA or its implementing regulations, or California law where applicable, or to

16 conflict with the provisions of this Decree.‖ Consent Decree ¶ 7(d)(vii). It includes no provision

17 for an appeal based on the reasonableness of the Panel‘s choices.

18

In any event, even assuming that the Court has such authority, LSAC has provided no

19 evidence whatsoever to support its contention that the prescribed appeals process is not feasible.

20 The Parties selected members of the Panel in part based on ―expertise in the provision of testing

21 accommodations within the context of standardized test administration.‖ Id. ¶ 7(a). Presented

22 only with the Parties‘ unsupported characterizations of the appeals process as, on the one hand,

23 ―virtually impossible to operationalize‖ and, on the other hand, a process that ―can feasibly be

24 implemented‖—see Appeal at 31; Opp‘n at 24; see also Reply at 13—the Court declines to

25 substitute its own judgment for that of the Panel, which the Parties selected specifically to

26 determine ―what that process should be.‖ See Consent Decree ¶ 7(c)(iii)(7). The Court therefore

27 declines to invalidate the Panel‘s decisions regarding the appeals process, except as discussed

28 below in the limited context of ―late registration‖ requests for accommodation.

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1

LSAC‘s only more specific objection to the Panel‘s response to this issue is that ―[t]he

2 Panel also exceeded its authority . . . by regulating examination costs and candidate payment

3 obligations,‖ Appeal at 31 n.26, specifically by providing that a candidate should have the option

4 to ―request that his or her application for testing accommodations be rolled-over to the next LSAC 5 testing cycle with no additional cost‖16 if he or she ―desires more than four days to transmit an

6 appeal,‖ Report at 26. LSAC has not adequately explained why the Consent Decree‘s broadly-

7 written mandate to determine ―what [the appeals] process should be‖ would not allow the Panel to

8 identify circumstances where an appeal should involve continuing the candidate‘s test date to the

9 next regularly scheduled LSAT test in order to allow adequate time to submit and consider an

10 appeal. Nor has LSAC identified any provision of the Consent Decree, the ADA, or California

11 state law that conflicts with this process. In fact, LSAC seems to agree that ―[a]ny decisions on

12 appeals that cannot be made within established deadlines can apply with respect to the next test

13 administration,‖ see Appeal at 31, but apparently would like to reserve the right to charge

14 candidates a second registration fee in such circumstances, see id. at 31 n.26. In the Court‘s view,

15 the fees that apply in those circumstances are a part of the appeals process, and thus fall within the

16 Panel‘s broad authority under Issue 9 to determine ―what that process should be.‖ See Consent

17 Decree ¶ 7(c)(iii)(7). The Court therefore finds no basis to invalidate this provision of the Report.

18

One provision of the Consent Decree could be construed as bearing on the Panel‘s

19 authority to set an appeals process, although neither party addresses it in the context of their

20 arguments on this issue. The Consent Decree requires LSAC to notify candidates that the

21 registration deadline is ―also the deadline for . . . LSAC to receive any request for reconsideration

22 of LSAC‘s testing accommodations determinations.‖ Consent Decree ¶ 5(f). This deadline is

23 inconsistent with the Report‘s deadline allowing an appeal to be filed, at least in some

24 circumstances, until twelve days before the test date. See Report at 25–26. LSAC may have

25 chosen not to rely on this provision, however, because the Consent Decree specifically provides

26

27 16 The Court construes this provision as allowing the candidate to roll over his or request for

28

accommodation and his or her registration to take the test to the next test date. It does not authorize a candidate to take the LSAT twice for a single registration fee.

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1 that the notice ―language is subject to further direction from the Panel regarding the need for and

2 availability of an appeals process and, if needed, what that process should be.‖ Consent Decree

3 ¶ 5(f). The Court therefore finds that the Panel acted within its authority in allowing an appeal to

4 be filed after the registration deadline. The notice provided pursuant to Paragraph 5(f) of the

5 Consent Decree shall conform to the appeals process detailed in the Report.

6

3. Appeals After Late Registration

7

The Report includes a sample timeline for a full review process, including appeal, based on

8 a June 9, 2014 test date. Report at 26−29. That timeline is based on a request for accommodation

9 made on the ―regular registration deadline‖ of May 6, 2014. Id. at 27. Although the Court is

10 satisfied that the process is consistent with LSAC‘s ―regular registration‖ deadlines, the Court

11 takes notice of the fact that LSAC also offers ―late registration‖ deadlines for an extra fee, and

12 appears to allow candidates who register on those dates to request accommodations. See LSAC, 13 Accommodations Request Packet (rev. May 2015).17

14

The process outlined in the Report is not consistent with the late registration deadlines.

15 For LSAC‘s February 6, 2016 test date, the late registration deadline is January 15, 2016, see id.,

16 which—even ignoring any time for internal review by LSAC‘s Disabilities Specialist and

17 Manager—does not leave enough time to complete the automatic review by outside consultants

18 established in response to Issue 8, allow the candidate four days to submit an appeal, and receive

19 that appeal twelve days before the test, as required by the Report. The late registration deadlines

20 for October and December 2015 tests would only leave enough time for the automatic review and

21 appeals processes if LSAC completed both stages of its internal review in a single day, which is

22 far less time than the Panel intended. See Report at 22 (recommending two business days for 23 review by the Disabilities Specialist and a further two business days for review by the Manager18).

24

Neither the Panel nor the Parties raised this issue. The Consent Decree and the Parties‘

25

26 17 http://www.lsac.org/docs/default-source/jd-docs/accommodations-form-gen-info.pdf

27

18 As discussed above in the context of Issue 8, the Court holds that these internal deadlines are not binding on LSAC. They are nevertheless useful in understanding the Panel‘s intent as to how

28

the review would proceed, and support the Court‘s conclusion that the Panel did not foresee or intend that LSAC would make its initial decision based on only a single day of internal review.

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1 statements at the July 31, 2015 hearing make clear that the Parties intended that candidates seeking

2 accommodation would be able to register and request accommodation on the same registration

3 deadlines that apply to non-disabled candidates. See Consent Decree ¶ 5(f) (providing notice

4 language regarding deadlines). It is also clear that the Panel, consistent with its charge under Issue

5 9, intended that an appeals process would be available to candidates whose accommodation

6 requests are denied, that such candidates would be allowed at least one day to decide whether to

7 appeal and four days to submit an appeal, and that such appeals would be reviewed by two outside

8 consultants before they could be denied. See Report at 25−26. The Panel further intended that

9 LSAC would have at least twelve days from the submission of an appeal to allow for its review

10 and, if warranted, implementation of the accommodation. Id. at 25. Finally, the Panel recognized

11 that it lacked authority to alter LSAC‘s existing registration deadlines. See id. at 22 n.13.

12

In the limited context of ―late registration‖ requests, the appeals process in the Report

13 conflicts with the Consent Decree, because—for at least one test date—the process cannot be

14 completed in the time between the ―late registration‖ deadline and the test. The Consent Decree

15 empowers the Court to determine ―appropriate relief‖ in the event of a conflict. See Consent

16 Decree ¶ 7(vii). In order to give effect to the Parties‘ agreement and the Panel‘s determinations,

17 the Court holds that LSAC must allow candidates who register on the ―late registration‖ deadline

18 to submit requests for accommodation on that date and to appeal any denials of such request

19 within four days of receiving LSAC‘s final decision. However, if LSAC cannot feasibly complete

20 the review process for such appeals as outlined in the Report and provide the requested

21 accommodation by the test date, LSAC must defer appellant candidates‘ registrations, requests,

22 and appeals to the next test date at no extra charge. LSAC must also provide clear notice on its

23 website and registration materials that selecting the ―late registration‖ deadline may affect a

24 candidate‘s ability to appeal any denial of accommodation in time for that test date, and must

25 provide similar notice with any denial of a ―late registration‖ accommodation request so that the

26 candidate can make an informed choice whether to proceed on the original test date without

27 accommodation or pursue an appeal of the accommodation request for the next test date.

28

Although the Panel lacks authority to directly establish internal deadlines for LSAC‘s

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United States District Court Northern District of California

1 review, the Court holds—as discussed above in the context of ―regular registration‖

2 accommodation requests—that LSAC must conduct its internal evaluation and review in a manner

3 that leaves sufficient time for the automatic external review and the appeal, if any, established by

4 the Report. This has implications for the timing of the internal review when a candidate submits a

5 request for accommodation by the ―late registration‖ deadline. Under the process described

6 above, the internal process, and the outside review of any whole or partial denial, must be

7 completed in time for the candidate to either appeal (which may result in the candidate being

8 delayed to the next test administration) or make the choice to waive any appeal and proceed with

9 the test as scheduled, with any accommodation that the LSAC internal review and outside

10 automatic review have determined are appropriate. LSAC must provide the candidate with its

11 final decision in time to allow the candidate at least twenty-four hours to make that choice. See

12 Report at 26.

13

G. Issue 10: Training Parameters

14

The final issue delegated to the Panel is to ―consider and establish the parameters, such as

15 content and timing of, training for persons (both LSAC staff and outside consultants) who evaluate

16 or review testing accommodation requests.‖ Consent Decree ¶ 7(c)(iii)(8).

17

1. Annual Training

18

The Panel determined that ―LSAC staff and all outside consultants shall attend an annual

19 two-day training session‖ including presentations by experts with experience in standardized

20 testing accommodations. Report at 29. ―During the Consent Decree, at least one member of the

21 Panel appointed by DOJ and one member of the Panel appointed by LSAC, who has approved all

22 of the recommendations of the Panel, shall participate in this training session.‖ Id. It also

23 discusses subjects to be covered and ―minimum objectives‖ to achieve. Id. at 29–30.

24

LSAC objects to the requirement that training last two days, and to the mandatory

25 participation of Panel members. Appeal at 32; Reply at 14–15. LSAC‘s objection to the two-day

26 duration borders on frivolous. The Consent Decree empowers the Panel to ―establish the

27 parameters, such as content and timing of, training.‖ Consent Decree ¶ 7(c)(iii)(8). LSAC argues

28 that ―[w]here specific words follow general words in a contract, the general words are construed to

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United States District Court Northern District of California

1 embrace only things similar in nature to those enumerated by the specific words.‖ Reply at 14

2 (quoting Nygard, Inc. v. Uusi-Kerttula, 159 Cal. App. 4th 1027, 1045 (2008)). The Court assumes

3 for the sake of argument that this principle applies to the provisions at issue. There is no

4 reasonable basis, however, to conclude that the duration of training is not a parameter ―similar in

5 nature to‖ the timing and content of training. Unless the Panel‘s authority were limited to only the

6 duration and content of training—and by the plain language of the Consent Decree, it is not—it is

7 difficult to imagine what ―parameters‖ would fall within its scope if the implied limitation to 8 ―similar‖ parameters did not include duration.19 The Court finds no basis to invalidate the

9 requirement for a two-day annual training.

10

LSAC also challenges the provision requiring members of the Panel to participate in

11 LSAC‘s annual training sessions. Plaintiffs stipulated to strike that provision at the July 31, 2015

12 hearing. Accordingly, LSAC need not include members of the Panel in its annual trainings.

13

2. Remedial Training

14

The Report also calls for ―additional training‖ for any staff member whose decision is

15 reversed on review more than 25% of the time—i.e., a first-level reviewer reversed by the

16 Manager of Accommodated Testing, or the Manager reversed by an outside consultant. Report at

17 30. LSAC is required to keep data on these reversal rates and implement additional training if the

18 rate exceeds the 25% threshold at the time of any report that LSAC is required to make under

19 Paragraph 23 of the Consent Decree. Id.; see also Consent Decree ¶ 23 (describing reports to be

20 submitted annually and after each administration of the LSAT). ―The nature and timing of that

21 training will be determined by DOJ, in consultation with DFEH, on a case-by-case basis

22 depending on the reasons for the reversals.‖ Report at 23.

23

LSAC objects to the requirement that it maintain data on how often decisions are reversed,

24 arguing that this exceeds the Panel‘s authority under Issue 10 and ―effectively invalidates the

25 parties‘ agreement regarding LSAC‘s record-keeping obligations,‖ because the reversal rate is not

26

27

19 The California Court of Appeal‘s decision in Nygard dealt with the lack of similarity between, on the one hand, a company‘s trade secrets, and on the other, information about one individual‘s

28

working conditions and another individual‘s social life. See Nygard, Inc., 159 Cal. App. 4th at 1045–46. It is not applicable to the case at hand.

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United States District Court Northern District of California

1 among the data LSAC is required to track pursuant to Paragraph 8 of the Consent Decree. Appeal

2 at 32. The Court finds that even if this requirement falls outside the scope of establishing

3 parameters for training, it is within the Panel‘s authority under Issue 6 to set ―parameters for

4 internally documenting written decisions by LSAC personnel who make substantive decisions on

5 requests for testing accommodation.‖ Consent Decree ¶ 7(c)(iii)(4). There is no conflict with

6 Paragraph 8, because nothing in that paragraph limits the Panel‘s authority to require further

7 recordkeeping, and construing Paragraph 8 as an exhaustive and exclusive list would effectively

8 nullify the Panel‘s authority to set parameters for documenting decisions under Issue 6. See id.

9 ¶ 8. Further, the requirement that reviewers receive training when their reversal rate exceeds 25%

10 falls squarely within the Panel‘s Issue 10 authority to establish the ―timing of‖ training. Id.

11 ¶ 7(c)(iii)(8). The Court finds no reason that the timing of training cannot be contingent on

12 conditions that, in the Panel‘s judgment, evince a need for such training.

13

The Panel‘s delegation of the ―nature and timing of that training‖ to the Department of

14 Justice (in consultation with DFEH) is problematic. See Report at 30. The Parties agreed in the

15 Consent Decree that the Panel would establish parameters for training. Here, the Panel failed to

16 do so. Stating that someone else—here, a party to the dispute—will dictate the parameters is not

17 itself a parameter, and nothing in the Consent Decree granted the Panel authority to delegate its

18 duties to one of the Parties. That delegation is therefore invalid. LSAC must provide remedial

19 training as required by the Report, but it may determine appropriate content of such training,

20 guided by the parameters set forth in the Report for annual training.

21 IV. SUMMARY OF THE COURT’S CONCLUSIONS

22

As discussed in more detail above, the following provisions of the Report are modified or

23 invalidated, or otherwise warrant explanation:

24

1. LSAC need not accept evidence of testing for mental or cognitive impairments that

25 took place more than five years before the date of request. See Report at 6−7, ¶¶ 1(b), 2(a), 3(a);

26 Consent Decree ¶ 5(d)(iv).

27

2. Although not a conflict with the Consent Decree, the Report by its own terms states

28 that ―[n]othing in [the Report‘s] criteria or standards prevents the reviewer from using his or her

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United States District Court Northern District of California

1 professional judgment, but these decisions must be clearly explained in detail.‖ Report at 12.

2 Giving meaning to this provision, the Court reads criteria that describe circumstances where

3 LSAC ―shall‖ or ―will‖ reach an outcome without otherwise allowing for an exercise of judgment

4 as presenting a strong presumption that the outcome is appropriate in ordinary circumstances. A

5 reviewer may depart from that presumption only if he or she acknowledges the Panel‘s

6 determination and explains in detail what exceptional circumstances of the request at issue differ

7 from the normal case anticipated by the Panel and thus justify a different outcome.

8

3. LSAC need not waive its regular deadlines to accommodate a candidate who

9 unexpectedly acquires a disability after the registration deadline. See Report at 22 (acknowledging

10 that this recommendation exceeds the Panel‘s authority).

11

4. LSAC‘s internal reviewers—specifically, its Disabilities Specialist and Manager of

12 Accommodated Testing—need not complete their respective reviews of requests for

13 accommodation within two business days. See Report at 22−23. LSAC nevertheless must

14 complete both stages of its internal review in time to allow for automatic review and an appeal as

15 required above. For a request submitted on or before the ―regular‖ registration deadline, LSAC

16 must complete its review at least five business days before the last business day that is sixteen

17 calendar days before the test. For a request submitted based on the ―late registration‖ deadline,

18 LSAC must complete its review in time to allow for automatic outside review of a denial,

19 notification to the candidate, and at least one day for the candidate to decide whether to appeal.

20

5. The Panel cannot directly require LSAC to hire additional staff. See Report at 22.

21 LSAC may determine how it will meet its obligations under the Consent Decree and the Report.

22

6. LSAC need not require that its Manager of Accommodated Testing review a

23 decision by the Disabilities Specialist to grant a request for accommodation. See Report at 22.

24

7. LSAC need not notify a candidate within one business day if his or her request is

25 granted on LSAC‘s initial review. See Report at 23. The Court declines to modify notification

26 deadlines related to outcomes of automatic outside reviews or appeals, based on the Panel‘s

27 broader authority over those processes under Issues 8 and 9.

28

8. LSAC need not complete review of an appeal before the upcoming test date if the

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United States District Court Northern District of California

1 candidate submitted his or her request as part of a ―late registration.‖ If a candidate chooses to

2 appeal a denial under those circumstances, and LSAC cannot complete the appeal and provide the

3 requested accommodation by the test date, LSAC must defer the candidate‘s registration, request,

4 and appeal to the next test date at no additional charge.

5

9. LSAC must modify the notice language set forth in Paragraph 5(f) of the Consent

6 Decree to reflect the appeals process established by the Report and this Order.

7

10. LSAC need not allow members of the Panel to participate in annual training of

8 LSAC‘s reviewers. See Report at 29.

9

11. LSAC need not allow the Department of Justice to determine the parameters of

10 remedial training for LSAC reviewers whose reversal rates exceed 25%. LSAC may determine

11 the content of such training, guided by the parameters set forth in the Report for annual training.

12 See Report at 30.

13 V. CONCLUSION

14

For the reasons stated above, the Court declines to invalidate the challenged provisions of

15 the Panel‘s Report except as specifically discussed.

16

IT IS SO ORDERED.

17 Dated: August 7, 2015

18

______________________________________

JOSEPH C. SPERO

19

Chief Magistrate Judge

20

21

22

23

24

25

26

27

28

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 Case3:12-cv-01830-EMC Document220-2 Filed03/26/15 Page1 of 31
EXHIBIT A

Case3:12-cv-01830-EMC Document220-2 Filed03/26/15 Page2 of 31
Final Report of the "Best Practices" Panel
January 26, 2015
Ruth Colker, J.D. Heck-Faust Memorial Chair in Constitutional Law and Distinguished University
Professor, Moritz College of Law, The Ohio State University
Charles Golden, Ph.D. Professor, Center for Psychological Studies, Nova Southeastern University
Shelby Keiser, M.S.l President, Keiser Consulting, LLC
Nancy Mather, Ph.D. Professor, Department of Disability and Psychoeducational Studies, College of
Education, University ofArizona
Nicole Ofiesh, Ph. D. Nicole Ofiesh, Ph.D., LLC; Sr. Research Associate, Schwab Learning Center, Stanford
University
On May 29, 2014, Judge Edward M. Chen approved the Consent Decree between the California Department of Fair Employment and Housing ("DFEH"), the United States of America and the Law School Admission Council, Inc. ("LSAC"), Case No. CV 12-1830-EMC. The Consent Decree resolves lawsuits filed by DFEH and the United States of America alleging that LSAC discriminated against individuals with disabilities who take, or seek to take, the Law School Admission Test ("LSAT") with testing accommodations, in violation of the Americans with Disabilities Act ("ADA"). Among other requirements, the Consent Decree provides that "LSAC shall implement best practices as established by a panel of
experts to be agreed upon by the parties." (Consent Decree (ECF 203), 1f 7). It charges the
panel with examining LSAC's existing testing accommodation practices and establishing best practices that comport with the requirements of the ADA. (Id. at~ 7(b)-(c)). The Consent Decree also provides that the "Panel shall complete its written report within six (6) months after the fifth Panel member has been appointed" but could seek "additional time if necessary to complete its report." (Id. at~ 7(d)). The fifth Panel member was appointed on June 25, 2014.
As required by the Consent Decree, the Panel provided the Parties with an opportunity to present their views at a meeting held on August 7, 2014. The Panel also set benchmarks at our meeting held on August 11, 2014. In accordance with those benchmarks, the Panel requested, and the parties approved, an extension of the submission of the final written report to January 31, 2015.
1 A Minority Report by Shelby Keiser is attached as a separate document.
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The Consent Decree states that the Panel shall "give each of the Parties an opportunity to comment in writing on the Panel's draft Best Practices at least two (2)
weeks prior to the issuance of a final report." (Consent Decree, 1f 7(d)). The Panel shared a
draft report with the Parties on December 12, 2014 and provided them until January 8, 2015 to provide feedback. The Panel revised the report after reviewing comments from both parties.
The Consent Decree provides: "The Panel shall determine how many of the five Panel members must agree on each Best Practice in order for it to be imposed as a Best
Practice." (Consent Decree, 1f 7(b)) The Panel agreed to try to attain consensus, where
possible, and, if consensus could not be attained, to seek agreement from at least four Panel members. All of the recommendations contained in this report under the heading "Resolution of the Ten Issues by the Best Practices Panel" have been approved by at least four Panel members and are "Best Practices," as defined in the Consent Decree. LSAC must implement each of them.
The Consent Decree specifies ten issues for the Panel to resolve and states: "the Panel shall clearly and expressly state in writing whether each Best Practice is already
being followed by LSAC or needs to be implemented by LSAC." (Consent Decree, 1f 7(b)).
This Report reflects the Panel's recommendations with respect to the ten issues that we were charged to address. For each issue, we first describe LSAC's current practice. These descriptions are based on our review of LSAC's written submission to the Panel, the written material that they provide to candidates on their website, and the Panel's interviews with LSAC staff. In addition, we reviewed information that we gathered from involved parties and other testing entities. Following our description of LSAC's current practices, we make recommendations that, under the terms of the Consent Decree, are binding on LSAC.
During preparation of this Report, the Panel complied with the Consent Decree's requirements regarding ex parte communications. The Consent Decree provides that the Panel may engage in "ex parte communications" but that "Individual Panel members shall not engage in any ex parte communications without the knowledge and approval of all
other Panel members." (Consent Decree, 1f 7(e)). Finally, the Consent decree provides:
"The Panel shall disclose to the Parties prior to the issuance of its final report all individuals with whom the Panel or any of its members have communicated, the Panel members participating in the communication(s), and the date(s) of such communication(s), but it need not disclose the substance of such communication(s)." (Id.) All Panel members approved each ex parte communication. The Panel complied with the ex parte communication recording-keeping requirement. The Panel provided a draft ex parte communication log to the Parties on January 13, 2015 and revised it in light of the Parties' corrections. The final ex parte communication log is attached to this document
The Panel has developed these recommendations with the hope that the implementation of these recommendations will exceed the lifetime of this Consent Decree. The Panel respectfully requests that LSAC allows us to meet with the LSAC Board, or a committee of the Board, to present these Best Practices so that the Board will understand why the Panel believes that LSAC should immediately implement these recommendations,
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why these recommendations should survive the duration of the Consent Decree, and how these recommendations can facilitate a climate change within LSAC to be more supportive of the rights of candidates with disabilities.
Resolution ofthe Ten Issues by the Best Practices Panel
1. Diversification. The Panel shall provide LSAC with recommendations on how to diversify its expert consultants, in terms of numbers and areas of expertise, which LSAC shall implement.
Current Practice
LSAC relies on expert consultants on what it describes as a "periodic" basis. In recent years, it has relied on two outside consultants- one clinical psychologist and one ophthalmologist.
Panel's Recommendation
In response to Issue 3, the Panel has set forth criteria that LSAC shall use to retain reviewers, including outside consultants.
In response to Issue 8, the Panel recommends an automatic review by one or two outside consultants of all applications for testing accommodation requests that are not approved in full by LSAC. Based on the data provided to the Panel by LSAC, we believe that LSAC may need to send approximately 300 files to outside consultants if it continues its current rate of not fully approving testing accommodation requests during each testing cycle. It appears that the following figures reflect the percentage of applications for testing accommodations received for the various disability categories: ADHD (32 %), LD (23 %), neurological (11 o/o), visual (10 %), physical (10 o/o), psychological (7 %), hearing (1 %), and other/medical (6 o/o), with some candidates having more than one of these physical or mental impairments.
In light of the anticipated number of applications for testing accommodations, and the likely rate of denial for these groups, we recommend that LSAC have a list of 25-40 outside consultants. As a whole, these outside reviewers would have expertise in each of these areas and would be available to provide a timely review of testing accommodation requests. In making this recommendation, we reviewed the practices of other testing entities, which have an equivalent list of outside reviewers. These entities maintain the list with a designation by each reviewer of his or her various areas of expertise. It is expected, based on our review of other testing entities' practices, that many of the reviewers retained by other testing entities would be well qualified to review many different types of requests for testing accommodations.
2. Documentation. The Panel shall consider and establish the type and scope of appropriate documentation that may be requested from candidates whose requests fall under Paragraphs S(b)-(d) [of the Consent Decree]. The Panel shall include in its
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consideration the documentation requirements for candidates who have received some of their requested testing accommodations for a standardized examination related to applications for post-secondary admission but who request additional testing accommodations, or in excess of double time, for the LSAT, consistent with the terms of Paragraph S(b) [of the Consent Decree].
Current Practice
LSAC has documentation guidelines for each major disability category on its website. These guidelines seek to establish that an individual has: (1) been diagnosed with a mental or physical impairment; (2) is substantially limited, compared to most people, in a major life activity relevant to taking the LSAT as a result of this physical or mental impairment; and (3) requires testing accommodations to address his or her specific functional limitations (with a rationale and objective basis for the testing accommodations requested).
Panel's Recommendation
The Panel believes that LSAC's documentation requirements are excessive for most candidates who seek testing accommodations on the LSAT and inconsistent with the documentation guidelines of other national testing entities. For example, LSAC has lengthy documentation requirements for candidates who have a learning disability and seek extra time as an accommodation.2 These documentation requirements specify certain diagnostic tests that a professional should administer to support a request for testing accommodations. By contrast, other testing entities, such as ACT, provide general guidelines, which are consistent with professionally recognized criteria, without specifying discrete test instruments.3 It is the expectation of the Panel that qualified professionals who provide documentation consistent with our Best Practices will use such criteria as a basis for their recommendation. There is no need for the Panel to be specific beyond that requirement because the qualified professional is typically the person in the best position to determine which diagnostic instruments are appropriate for a particular individual.
By lessening the documentation requirements and implementing minimum standards for granting testing accommodation requests, as stated in response to Issue 5, LSAC staff can approve requests for testing accommodations on a more streamlined basis. As discussed below, the Panel recommends that close investigation of a testing accommodation request need only take place for those candidates who fall into what the Panel describes as "category 3" (i.e., candidate without a visual impairment who requests more than 50% extra time, or candidate with a visual impairment who requests more than 1OOo/o extra time). This streamlined process is consistent with the ADA's requirement that "the question of whether an individual's impairment is a disability under the ADA should
2 See http:/fwww.lsac.orgfdocsfdefault-sourcefjd-docsfguidelinescognitive-non.pdf. 3 See http:/fwww.act.orgfaapfpdf/ACT-Policy-for-Documentation.pdf.
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not demand extensive analysis."4
Further, the Panel believes that LSAC's use of the "compared to most people" rule has resulted in insufficient attention to the "condition, manner, or duration" under which a candidate completes a major life activity. Assessing the condition, manner, or duration under which a major life activity can be performed may include consideration of the difficulty, effort, or time required to perform a major life activity; pain experienced when performing a major life activity; the length of time a major life activity can be performed; and/or the way an impairment affects the operation of a major bodily function. (See 29 C.F.R. § 1630.20)(4)(i) and (ii)). As discussed in response to Issue 8, the Panel believes that it is important for individuals who have average overall reading abilities to be eligible to receive testing accommodations on the LSAT without excessive documentation requirements if, for example, the manner in which they read is impaired as compared to the general population, thus qualifying them for coverage under the ADA as individuals with a disability.
The Panel recommends that the required level of documentation shall depend upon the nature of the request for testing accommodations from the candidate. The Panel has found that LSAC frequently denies requests for testing accommodations because it considers documentation to be incomplete. The Panel recommends that LSAC shall consider a file to be complete if it meets the documentation requirements of at least one of the categories noted below, although a candidate may seek testing accommodations under more than one of these categories. LSAC will need to revise its documentation forms to comply with these recommendations.
The Panel has divided testing accommodation requests into three categories:s
(1) candidate has a disability and requests a testing accommodation that does not modify the amount of time permitted to respond to the questions in each test section, such as permission to bring in food, take stop-the-clock breaks, have additional breaks between sections, or take the exam in a quiet area;
(2) candidate does not have a visual impairment and requests up to 50% extra time, or candidate has a visual impairment and requests up to 100% extra time;
(3) candidate does not have a visual impairment and requests more than 50% extra time, or candidate has a visual impairment and requests more than 100% extra time.
4 It is also consistent with how other testing entities evaluate requests for testing accommodations. See, e.g., http:/fwww.act.orgjaapfpdf/ACTTestAccommodationsChart.pdf. 5 Dividing requests into these kinds of categories based on the nature of the accommodation requested by the candidate is consistent with the practice of other national testing entities. See, e.g., http://www.actstudent.org/regist/disab/;
https:I fwww.ets.org/disabilities/test_takersjrequest_accommodationsI.
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Category (1): Candidates should comply with these documentation requirements to request testing accommodations other than extra time. These requests may be made in addition to requests for extra time. If the candidate requests extra time then the candidate must comply with the documentation requirements for categories (2) or (3).
(a) Examples include, but are not limited to: • assignment to a wheelchair-accessible room • separate testing room • large type test booklet (18 pt.) • marking responses in the test booklet • permission for food, drink, or medical supplies in the test room • extra breaks between sections • stop-the-clock breaks within a testing section • seating near the front of the room • sign language interpreter to sign spoken instructions • printed copy of spoken instructions with visual notification of start time, remaining, and stop times • special equipment or furniture
(b) Documentation required: • evidence of a disability from a qualified professional6 who examined the candidate any time after the candidate reached the age of 137, and • a statement that provides a reasonable explanation for why the candidate needs the testing accommodation to best ensure that the LSAT results accurately reflect the aptitude or achievement level of the candidate. The candidate may provide this statement. More than one statement may be provided in support of the request for testing accommodation.
The type of acceptable documentation is described in response to Issue 5, Part I.
(c) If a candidate meets these documentation requirements, which are not intended
6 Throughout this report, our reference to evidence from a "qualified professional" means that the professional's report will conform to the standards of his or her profession. 7 The Panel selected age 13 as the cut-off for documentation so that candidates seeking testing accommodations under this rule are treated comparably to candidates who seek testing accommodations under Paragraph S(a) of the Consent Decree. Paragraph S(a) candidates are able to receive testing accommodations comparable to what they received on the ACT or SAT, possibly on the basis of documentation from age 13. This cut-off is also consistent with the awareness of other testing entities that individuals with longstanding disabilities need not have more current documentation to justify testing accommodations. For example, ETS provides that certain basic accommodations, such as time and one-half, can be obtained with documentation that is older than five years. See https://www.ets.org/disabilities/documentation/documenting learning disabilities/#basi ~. This footnote's justification for the age 13 cut-off explains its use throughout this. report.
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to be extensive, and provides a reasonable explanation for why these testing accommodations are necessary to best ensure that the LSAT results accurately reflect the aptitude or achievement level of the candidate, then LSAC shall approve the requested testing accommodations, without requiring the candidate to provide additional information.
Category 2: Candidates should comply with these documentation requirements if they do not have a visual impairment and request up to 50 % extra time, or if they have a visual impairment, which requires taking the test in an alternative format, and request up to 100 % extra time.8
(a) Documentation required: • evidence of a disability from a qualified professional who examined the candidate any time after the candidate reached the age of 13, and • a statement that provides a reasonable explanation for why the candidate needs the testing accommodation to best ensure that the LSAT results accurately reflect the aptitude or achievement level of the candidate. The candidate may provide this statement. More than one statement may be provided in support of the request for testing accommodation. The statement should be supported with appropriate data or other relevant information in support of the request.
The type of acceptable documentation is described in response to Issue 5, Part I.
(b) If a candidate meets these documentation requirements, which are not intended to be extensive, and provides a reasonable explanation for why these testing accommodations are necessary to best ensure that the LSAT results accurately reflect the aptitude or achievement level of the candidate, then LSAC shall approve the requested testing accommodations, without requiring the candidate to provide additional information.
Category 3: Candidates should comply with these documentation requirements if they do not have a visual impairment and request more than 50% extra time, or candidate has a visual impairment, which requires taking the test in an alternative format, and requests more than 100% extra time.
(a) Documentation required: • evidence of a disability from a qualified professional who examined the candidate any time after the candidate reached the age of 13, and • a statement that provides a reasonable explanation for why the candidate needs the testing accommodation to best ensure that the LSAT results accurately reflect the aptitude or achievement level of the candidate. The
8 The expectation that candidates who have a severe visual impairment will need 100 o/o extra time to complete the examination is consistent with the practice of other testing entities. See, e.g., https:/jwww.ets.org/disabilitiesjtest_takers/disability_documentationf.
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candidate may provide this explanation. More than one statement may be provided in support of the request for testing accommodation. The statement should explain why more than 50% extra time is necessary so that the candidate's test results accurately reflect his or her aptitude or achievement levels. The statement should be supported with appropriate data or other relevant information in support of the request.
The type of acceptable documentation is described in response to Issue 5, Part II, Standards for Determining More Than Fifty Percent Extra Time.
(b) If a candidate meets these documentation requirements, which are not intended to be extensive, and provides a reasonable explanation for why these testing accommodations are necessary to best ensure that the LSAT results accurately reflect the aptitude or achievement level of the candidate, then LSAC shall approve the requested testing accommodations, without requiring the candidate to provide additional information.
3. Reviewers. The Panel shall consider and establish the appropriate qualifications for persons, such as LSAC staffand/or outside consultants, who make substantive adverse decisions on requests for testing accommodations.
Current Practice
LSAC currently has one staff person who does the preliminary review of all files, and a second staff person who makes the final determination. The first-level reviewer has a master-level degree in special education; the final reviewer has a Ph.D. in clinical psychology. The outside consultants include an ophthalmologist and a clinical psychologist.
Panel's Recommendation
General Reviewer Qualifications
Reviewers shall have a wide range of disability expertise to address the diverse needs of the test taker population, as described in response to Issue 1. Examples of professions of potential reviewers include: disability service providers, special education faculty members, school psychologists, clinical psychologists, medical doctors, learning disability specialists, and neuropsychologists in private practice. Reviewers should have racial, cultural, and geographic diversity. Each member shall possess a graduate degree in a field related to the impairment that is the basis for the accommodation request that is being reviewed (e.g., clinical psychology, school psychology, special education, speech and language, ophthalmology, physical impairments) and the following:
• Knowledge of the provisions of the Americans with Disabilities Act, as amended (ADA, 2008)
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• At least five years of clinical, teaching, or research experience in (a) diagnosis and treatment of the relevant disability(ies) in his/her areas of expertise and (b) determination of appropriate testing accommodations related to the specific functional limitations associated with the type of disability(ies)
• Knowledge of documentation needed to support a disability in the relevant disability area and experience with different testing accommodations to mitigate typical limitations
• Knowledge of a wide variety of test instruments through graduate level coursework and job experience relevant to the disability specialty area
• Familiarity with professionally recognized diagnostic criteria appropriate to his or her areas of expertise
• Knowledge of how the disability may affect functioning in school, work, testing situations, and home
4. Qualified Professionals. The Panel shall determine whether more than one qualified professional should review a documented request for testing accommodations before LSAC may deny the request in whole or in part.
Current Practice
Currently, one master-level staff person reviews a file, and makes a preliminary recommendation, before a doctoral-level staff person makes a final determination. The doctoral-level staff person has the discretion to seek advice from an outside consultant before making the final determination although such consultation is rare. In some cases, the doctoral-level staff person consults with LSAC's legal counsel before a candidate's testing accommodation request is not approved in full.
Panel's Recommendation
As discussed in response to Issue 8, the Panel recommends that all applications for testing accommodations that are not granted in full must be reviewed by one or two outside consultants.
5. Criteria and guidelines for reviewers. The Panel shall consider and establish criteria and guidelines for use by persons who review or evaluate testing accommodation requests.
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Current Practice
In its submission, LSAC stated: "the criteria and guidelines provided to individuals who substantively evaluate accommodation requests should be kept general and flexible." Review should be "focused on whether the individual seeking accommodations has a functional impairment that causes a substantial limitation in a major life activity relevant to taking the LSAT, and, if so, whether the accommodations the candidate requested, and/or some other accommodations, would be appropriate to address the candidate's functional impairment(s)."
Panel's Recommendation
In its submission to the Panel, the United States Department of Justice ("DOJ") asserted, and the Panel found, that LSAC provides no guidance to its outside consultants who might be hired to assist with a review of a candidate's file. By contrast, the Panel has recommended that LSAC shall have criteria and standards that comply with federal law and are consistent with the professional standards for diagnosing and accommodating various disabilities.
The Panel recommends that the granting of testing accommodations be a step-bystep process. The first step is to establish that the candidate is an individual with a disability under the ADA (2008). Under the relevant ADA Guidance, a testing entity, such as LSAC, should accept, without further inquiry, "documentation provided by a qualified professional who has made an individualized assessment of a candidate that supports the need for the modification, accommodation, or aid requested," and provide the testing accommodation. See 28 C.F.R. pt. 36, app. A, at 795. "Reports from experts who have personal familiarity with the candidate should take precedence over those from, for example, reviewers for testing agencies, who have never personally met the candidate or conducted the requisite assessments for diagnosis and treatment." /d. at 796.
Despite this Guidance, LSAC has rejected requests for testing accommodations even in cases where there is a clear history of the existence of a disability and the provision of prior testing accommodations. The Panel recommends that for individuals with a history of diagnosis of a disability, as well as for those more recently diagnosed with a disability, the existence of a disability shall be accepted if a qualified professional made the diagnosis and the candidate's documentation meets the recommended standards detailed below. A "qualified professional" is a person who is "licensed or otherwise properly credentialed and possess [es] expertise in the disability for which modifications or accommodations are sought." 28 C.F.R. pt. 36, app. A, at 784. Those standards require that a failure to have a prior diagnosis of a disability shall not be used as a reason to conclude that the candidate does not presently have a disability.
The second step involves the determination of what testing accommodation(s) should be provided. Under the relevant ADA regulations, test entities must give
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"considerable weight to documentation of past [testing accommodations] received in similar testing situations." The Consent Decree provides, and the Panel concludes it is a Best Practice, for LSAC to provide the equivalent testing accommodation(s) to an individual who has been previously provided such accommodations on a standardized examination, such as the ACT or SAT, so long as the individual continues to have a disability.
The Panel's review of sample files and interviews with LSAC staff suggests that LSAC staff does not give adequate weight to prior testing accommodations received by a candidate if the candidate was not previously provided testing accommodations on standardized examinations. The Panel recognizes that prior testing accommodations, such as extra time on university examinations, may have been in a somewhat different context or even for a somewhat different purpose. Nonetheless, the Panel concludes that an established history of testing accommodations shall presumptively support the request for the provision of similar testing accommodations on the LSAT. It shall be the role of the LSAC reviewer(s) to look for evidence that supports the candidate's request for testing accommodations, rather than to look for evidence that denies the candidate's request. The Panel found, based on its review of sample files, that LSAC's current practices especially disadvantage candidates who may have a history of testing accommodations at their university but who have not been required to take a nationally standardized examination to attain admission to their university.
Finally, the Panel's review of sample files and interviews with LSAC staff reveals that LSAC sometimes rejects requests for testing accommodations from individuals who do not request additional time, but rather request a testing accommodation to support specific physical or medical needs. The Panel concludes that, once the candidate documents that he or she has a disability and requests a testing accommodation, LSAC shall presumptively grant testing accommodation requests that do not involve requests for extended time. For example, LSAC should rarely, if ever, second-guess a request by an individual with diabetes to have food available while testing; a request by an individual with ADHD for a quiet testing environment, extra breaks or stop-the-clock breaks; a request by an individual with irritable bowel disease to have stop-the-clock breaks to use the restroom; or a request by an individual with a writing impairment or visual impairment to have a large-print test book or record answers directly on the exam instead of using a Scantron answer sheet.
In the materials that follow, the Panel sets forth Best Practices for the two-step process. First, we provide criteria for establishing whether or not a candidate has a disability ("Part I" below). Second, we provide criteria for determining whether LSAC should approve the candidate's request for testing accommodations ("Part II" below). To facilitate this review, we have placed the candidate's request into various, appropriate categories.
All reviewers shall begin the process with the presumption that the testing accommodation request is justified. In cases where a reviewer does not approve all of a candidate's requests for testing accommodations, the reviewer must provide a specific written explanation in support of that determination. In cases where the reviewer concludes there is a lack of documentation, the reviewer shall provide a clear statement of
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what additional documentation is necessary so that the request for testing accommodation could be considered in the future. In addition, reviewers shall use criteria related to specific disabilities when determining testing accommodations. Nothing in these criteria or standards prevents the reviewer from using his or her professional judgment, but these decisions must be clearly explained in detail.
The following is a roadmap for the two-step process that reviewers must use in evaluating requests for testing accommodations.
PART I: Does the candidate have a disability?
1. Does the candidate have a record of a disability?
a. Because deference should be given to the documentation from qualified professionals who have previously examined the candidate, adequate documentation of a disability, any time after the candidate reached the age of 13, shall include, but is not limited, to:
i. Documentation of disability in previous Individualized Education Program (IEP).9 It is the recommendation of the Panel that candidates previously found to have a disability under the IDEA by their school district will be found to have a disability. A failure to use particular technical terms, such as dyslexia or ADHD, is not a reason to conclude there is no documentation of a disability when the documentation reflects the candidate has a history of a disability and the use of testing accommodations.
ii. Documentation of disability in previous Section 504 Plan.1o It is the recommendation of the Panel that candidates found to have a disability under Section 504 by their school district or university will be found to have a disability.
iii. Documentation of disability in previous Summary of Performance. It is the recommendation of the Panel that candidates with a Summary of Performance pursuant to IDEA will be found to have a disability.
iv. Documentation of disability in previous Private School Formal Written Plan. Because the Private School concluded a testing accommodation is appropriate, it is the recommendation of the
9An IEP describes the special education and related aids and services provided under the Individuals with Disabilities Education Act (IDEA). 10 A Section 504 Plan specifies needed classroom accommodations and related aids . provided pursuant to Section 504 of the Rehabilitation Act of 1973.
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Panel that candidates with a Private School Formal Written Plan will be found to have a disability.
v. Documentation of disability in an outside. private evaluation from a Qualified Professional. Because more weight should be given to the views of a qualified professional who has examined the candidate than to the views of the LSAC reviewer, it is the recommendation of the Panel that candidates with such documentation will be found to have a disability.
vi. Documentation of disability from a Medical Doctor Evaluation or Letter from a Qualified Professional. Because more weight should be given to the views of a qualified professional who has examined the candidate than to the views of the LSAC reviewer, it is the recommendation of the Panel that candidates with such documentation will be found to have a disability.
b. If the candidate has a record of a disability, as provided above, then the candidate will be considered to have a disability so long as the candidate certifies that he or she continues to have a disability.
2. Does the candidate have a disability although the candidate does not have a record of a disability?
a. In making this determination, it is appropriate to consider the condition, manner or duration under which an individual performs a major life activity. For example, someone with a learning disability may achieve a high level of academic success, but may, nevertheless, be substantially limited in one or more of the major life activities of reading, writing, speaking, or learning because of the additional time or effort he or she must spend to read, speak, write, or learn compared to most people in the general population. As Congress emphasized in passing the ADA Amendments Act, "[w]hen considering the condition, manner, or duration in which an individual with a specific learning disability performs a major life activity, it is critical to reject the assumption that an individual who has performed well academically cannot be substantially limited in activities such as learning, reading, writing, thinking, or speaking." 154 Cong. Rec. S8842 (daily ed. Sept.16, 2008) (Statement of the Managers). Thus, an individual may receive average scores on a reading test, but his or her history may reveal special education placement in first grade and several years of individualized tutoring. Even as an adult, the individual may have trouble reading for long periods of time and the act of reading may still be difficult and effortful for this person as compared to most people. It is the recommendation of the Panel that such a person be considered to have a disability and be granted testing accommodations on the LSAT.
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b. Evidence of a disability may include, but is not limited to:
i. A qualified professional has provided documentation that the candidate has a disability, which restricts the candidate's ability to demonstrate his or her aptitude or achievement on all or part of the LSAT. Such documentation, when appropriate, may include: standardized test data from appropriate evaluation instruments; a comprehensive evaluation; a relevant history; or a personal statement describing the individual's disability, impairment, areas of limitation, effects on test taking and testing accommodation needs.
ii. A qualified professional has provided documentation that an individual has a temporary disability, such as a broken bone in the candidate's dominant writing hand or herniated disk, which restricts the candidate's ability to demonstrate his or her aptitude or achievement on all or part of the exam.
c. Reviewers shall not presume that a candidate does not have a disability when there is no history of a disability or record of use of testing accommodations. A variety of factors can delay the identification of a disability, such as:
• Attendance in an educational setting with few to no timed tests that lessens the impact and the noticeable signs of the disability
• Receipt of informal testing accommodations provided by teachers • Attendance in a private school with small class size that lessens the
impact and the noticeable signs of the disability • Attendance in a private school that does not provide testing
accommodations or services to individuals with disabilities • Participation in an online school with alternate assessment formats
such as oral tests or take-home exams that ameliorate the impact and lessen the noticeable signs of the disability. • An older student with history of academic difficulty, undiagnosed until later in life • History of home-schooling • History of receiving intensive tutoring outside of an educational setting • Reluctance to disclose evidence of disability for fear of stigma or discrimination • Attendance in a non-United States educational setting where standardized testing did not take place • Attendance in an educational setting where there are no systems in place to help families seek appropriate evaluations
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3. The documentation necessary to demonstrate disability "should not demand extensive analysis." 29 C.F.R. § 1630.2(k)(2). "The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual's impairment substantially limits a major life activity." 29 C.F.R. §1630.20) (1) (iii).
PART 2: What Testing Accommodation(s) are Appropriate?
LSAC staff shall engage in cooperative and interactive communication with candidates concerning any modifications or specific arrangements needed for the provision of testing accommodations.
1. Does the candidate have a record of receiving testing accommodations comparable to those sought for the LSAT?
a. Considerable weight must be given to "past accommodations, modifications or auxiliary aids or services." 28 CFR § 36.309(b)(1)(v). Such evidence may include, but is not limited to, a record of:
i. K-12 formal testing accommodations ii. K-12 informal testing accommodations iii. Postsecondary formal testing accommodations iv. Postsecondary informal testing accommodations v. Attendance at a specialized school that provided such testing
accommodations to all students vi. Similar testing accommodations provided on previous
standardized or other examinations vii. Similar testing accommodations provided through a previous IEP,
Section 504 Plan, Summary of Performance, Private School Formal Written Plan, or any other relevant document
b. If the above evidence exists, then the candidate shall be provided testing accommodations comparable to those provided previously unless the candidate is seeking more than 50% extra time. If the candidate is seeking more than 50% extra time and does not have a visual impairment then the candidate must provide the documentation provided in Issue 5, Part II, Standards for Determining More Than Fifty Percent Extra Time.
c. Even though a candidate does not have a formal history of receiving testing accommodations, this fact alone does not negate the candidate's present need for testing accommodation(s). An individual with a disability may not have a prior history of formal testing accommodations, even though testing accommodations are currently appropriate.
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2. Does the candidate have proper documentation to support a current testing accommodation even if the candidate has not previously received testing accommodations?
a. The candidate should provide documentation to justify each requested testing accommodation but the burden on the candidate shall be no higher than would have been placed on the candidate if he or she had sought such testing accommodations earlier in his or her educational career.
b. Such documentation must include a report from a qualified professional in support of the disability diagnosis.
c. The candidate, a qualified professional, or a teacher must provide a reasonable explanation for each testing accommodation as it relates to the candidate's disability.
d. Where the candidate, qualified professional, or teacher recommends the provision of extra time, there is a clear explanation of why a specific amount of time is requested. The extra time request, that is appropriately documented, shall be granted by the reviewer without additional documentation requirements unless the candidate is seeking more than SO% extra time and does not have a visual impairment.
e. An LSAC reviewer shall not deny a testing accommodation merely because it appears to be redundant, such as a request for both text to speech and a reader, so long as the candidate provides a reasonable explanation for the need for the requested testing accommodations.
3. Minimum Standards for Various Disabilities
a. Although testing accommodations should be determined on an individual basis, it is also appropriate for LSAC to consider fairness to similarlysituated candidates in determining the amount of extra time to provide to individuals with certain, high-incidence disabilities. We have provided minimum standards that LSAC shall use when determining if a request for a testing accommodation is appropriate. Candidates may seek additional time, beyond these minimum standards, by meeting the additional documentation described in Issue 5, Part II, Standards for Determining More Than Fifty Percent Extra Time. A candidate with multiple disabilities need only meet the documentation requirements for one disability in order to qualify for the minimum standards.
b. The minimum standards include:
i. Learning Disabilities. It is the Panel's recommendation that individuals with documented learning disabilities shall be given a
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minimum of 50% additional time. Candidates seeking more than 50% extra time must comply with the documentation requirements specified in Issue 5, Part II, Standards for Determining More Than Fifty Percent Extra Time. Candidates granted 100% or more time shall be granted permission to take the test over two days, if requested.
ii. ADHD. It is the Panel's recommendation that individuals with an established diagnosis of ADHD shall be given a minimum of 50% additional time. Candidates seeking more than 50 % extra time must comply with the documentation requirements specified in Standards for Determining More Than Fifty Percent Extra Time. Candidates granted 100% or more extra time shall be granted permission to take the test over two days, if requested. Additional breaks shall also be recommended based on past testing accommodations. Candidates may request off-the-clock breaks, during which time is stopped and restarted when they are able to proceed, as full or partial alternatives to extra time. One minute shall be added to the overall time for each break to account for the disruptive effects of such breaks.
iii. Psychiatric Disorders. It is the Panel's recommendation that individuals with an established diagnosis of major psychiatric disorders shall be given a minimum of 50% additional time, and extra breaks, as requested. Candidates seeking more than 50% extra time must comply with the documentation requirements specified in Issue 5, Part II, Standards for Determining More Than Fifty Percent Extra Time. Candidates granted 100% or more time shall be granted permission to take the test over two days, if requested. Such individuals may request the use of stop-the-clock breaks during the testing period while time is stopped and restarted when they are able to proceed. One minute shall be added to the overall time for each break to account for the disruptive effects of such breaks.
iv. Visual Impairments. Individuals who are diagnosed as blind or with severe visual impairments, which preclude them from reading standard-sized print, shall be allowed to use the testing accommodations that they document they have used in the past. Candidates using a reader, computer reader (text-to-speech), braille or other similar alternatives shall be granted 100o/o extra time. Candidates requesting more than 100% time must have clear documentation for time above this amount. Individuals granted 100% or more time shall be granted permission to take the test over two days, if requested. Additional breaks shall be granted, upon request, due to the length of each testing session.
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v. Pain-Related Conditions and Chronic Medical Disorders (e.g., diabetes, seizures, fibromyalgia, gastrointestinal disorders, arthritis, back disorders which prevent sitting or standing for long periods). For those individuals with documentation of substantial medical issues that prevent them from focusing on the test for continuous periods of time (for example, an individual with Crohn's Disease may need unscheduled bathroom breaks) such individuals may request the use of stop-the-clock breaks during the testing period in which they request that time be stopped and restarted when they are able to proceed. One minute shall be added to the overall time for each such break to account for the disruptive effects of such breaks. If the disorder also results in cognitive impairment, such as changes to memory or attention when the individual is not having acute issues, the individual shall also be considered for SO% additional time. Candidates requesting more than SO% time must have documentation for time above this amount, as provided in IssueS, Part II, Standards for Determining More Than Fifty Percent Extra Time, but may not use the impact of such factors as going to the bathroom which is already covered by the time-stopping procedure. These individuals may also request permission to use special chairs or devices. LSAC shall grant these types of requests on a routine basis.
vi. Writing Disorders. LSAC shall approve requests for the use of a computer, and spell check, for any individual with the history of using such assistive devices in school or work settings, as well as for any individuals with more recent injuries or impairments where writing would be difficult or slow. Individuals with a history of additional time shall receive SO% additional time, as shall individuals without such a history where a reasonable explanation exists.
Standards for Determining More Than Fifty Percent Extra Time
It is the Panel's opinion that SO% additional time is a reasonable amount of additional time in most cases. However, some individuals have exceptional needs that justify the request for a testing accommodation of more than SO% additional time. In such situations, the qualified professional should provide a rationale based on history and objective evidence for the request for more than SO% extra time. The rationale must be reasonable and understandable to the reviewer(s) with appropriate expertise. Examples of appropriate justifications include, but are not limited to:
1. On any past standardized test, the candidate was provided with more than SO% extra time. For all disorders, where more than SO% extra time can be shown to have been granted as. a consistent testing accommodation, and was approved by
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an appropriate professional, more than 50o/o extra time shall be provided, consistent with prior practice.
2. The qualified professional provides documentation with a reasonable explanation that supports the need for more than 50% extra time. In cases where no history of equivalent extended time on past standardized test scores is available, such as in the cases of individuals from another country, a person with a temporary or recent disability, or a person with a recent diagnosis, judgment of the need for additional time must be made based upon the documentation presented by the professional. The discussion would include the rationale for the need for additional time, and further explanation of the severity of the disorder(s), including relevant information such as co-morbidity with other disorders. In rendering a decision, the reviewer shall give substantial weight to the recommendation of the qualified professional.
3. The qualified professional provides documentation containing a reasonable explanation that supports the need for extra time on certain sections of the test, but not others. For example, for individuals with visual impairments who routinely are granted 100o/o extra time, 150% extra time shall be allowed on the analytical reasoning section of the LSAT exam because of its reliance on visualspatial abilities. Another example would be for individuals with learning disabilities that specifically impact math reasoning or problem solving. These individuals may warrant 50o/o extended time on most parts of the LSAT, but 100o/o time on the analytical reasoning section. If it is impossible because of administration constraints to provide variable time on different sections, LSAC shall grant the individual extended time on all sections of the test, consistent with the recommendation for the longest requested extra time on one section of the test.
4. The provision of more than 50% extra time shall be approved if a postsecondary disability service provider provides a signed statement indicating that a candidate was provided with more than 50% additional time on college examinations. In such instances, the candidate shall then be granted the same amount of additional time provided on college exams.
5. The provision of more than 50o/o extra time shall be given to an individual who, because of documented health or sensory impairments or psychiatric disorders, warrants such time to demonstrate his or her achievement or aptitude. For example, a person with depression or anxiety may have impaired working memory or processing speed that would normally be accommodated with 50o/o extended time. However, that person may also have dysgraphia (fine-motor deficiencies) and/or executive deficits related to a separate psychiatric disorder or ADHD. Given the concurrent diagnoses and functional limitations, more than 50% extra time shall be granted.
6. As long as sufficient evidence is presented, LSAC shall grant the candidate more than 50% extra time. It is further recommended that LSAC does not attempt to alter the request for an extended time testing accommodation, such as Sl;lggesting
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7So/o additional time for an individual who has requested double-time (100% time extension). Because there is no precise or accurate way to determine the exact amount of time needed by an individual, LSAC shall give preference to the recommendation of the qualified professional who provides documentation and a reasonable explanation of the need for the time extension.
7. A reviewer may use clinical judgment to support a candidate's request for extended time. For example, in cases where the candidate's past test scores are inconsistent with his or her cognitive abilities and prior educational achievements, extended time may be warranted.
8. In cases where the request is clearly justified by the qualified professional and previous LSAT test performance, if available, reviewers may recommend triple or quadruple time, although this testing accommodation request would only be granted in rare cases.
9. In cases where the request is for a 100% time extension or greater and a reasonable explanation is provided, the test shall be administered over two consecutive days, if the candidate requests that testing accommodation.
6. Written recommendations from reviewers. The Panel shall consider whether there should be particular parameters for written recommendations from any outside consultant who reviews or evaluates requests for testing accommodations and, if so, what those parameters should be. The Panel shall also consider whether there should be particular parameters for internally documenting written decisions by LSAC personnel who make substantive decisions on requests for testing accommodations and, ifso, what those parameters should be.
Current Practice
At this time, LSAC has no requirements for written recommendations from reviewers.
Panel's Recommendation
As discussed in response to Issue 8, the Panel recommends that both in-house staff and outside consultants shall be required to follow certain guidelines in writing reports to justify their recommendations if they recommend that LSAC not approve in full a testing accommodation request.
7. Written explanations for denials of testing accommodation requests. The Panel shall consider whether there should be particular parameters for written explanations provided by LSAC to candidates whose requests for testing accommodations are partially or fully denied and, if so, what those parameters should be.
Current Practice
LSAC stated in its submission to the panel that its "current practice [is] to provide a descriptive response to individuals whose requests for testing accommodations are denied.
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If it appears that more information could be provided to support the request, LSAC will generally identify to the candidate the type of information that might be helpful."
Panel's Recommendation
As discussed in response to Issue 8, the Panel recommends that in-house staff and outside consultants shall prepare a clear written explanation to support their decision regarding testing accommodations requests. In cases where the candidates' requests for testing accommodations are not approved in full, the candidates shall be informed, in writing, why each of their requests for testing accommodations are not approved in full 11, and what additional information, if any, could lead LSAC to approve their requests in the future. An explanation of the appeals process (described in response to Issue 9) shall be included in all correspondence to candidates whose requests for testing accommodations are not approved in full.
8. Automatic review of partial and full denials. The Panel shall consider whether an automatic review of partial and/or full denials is warranted and, if warranted, how such a review should be conducted.
Current Practice
According to the written submission provided to the Panel by LSAC:
[I]t is LSAC's current practice to have at least its two internal professionals review a request before a request is denied in full. LSAC does not believe that any other "automatic" review should be necessary. Again, interests of efficiency, timeliness, and consistency favor having a smaller, but dedicated, team of individuals reviewing accommodation requests.
In our interview with LSAC staff, we learned that the first-level reviewer, the Disabilities Specialist, reviews each file after the staff prints the received material. Sometimes, she makes a recommendation that she forwards to the second-level reviewer, the Manager of Accommodated Testing. Other times, the Disabilities Specialist speaks with the Manager of Accommodated Testing informally before making a recommendation. There are no required paper records of their interactions although the Disabilities Specialist often writes handwritten notes on a file, or types some comments. LSAC staff typically use these notes or comments to correspond with the candidate about the final decision. In our review of the files, we saw no handwritten or typed notes that were identified as having been written by the Manager of Accommodated Testing. The Manager of Accommodated Testing makes the final decision with respect to requests for testing accommodations and, on rare occasions, consults with outside consultants before making that determination. Such consultation is entirely within the discretion of the Manager of
11 The phrase "not approved in full" is intended to include situations where LSAC denies a testing accommodation request due to a lack of documentation. Such denials will be subject to the outside consultant review rules.
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Accommodated Testing. Further, LSAC counsel reviews each denial letter before it is sent to the candidate and, on occasion, suggests changes to the final decision or language of the denial letter.
Panel's Recommendation
The Panel recommends an automatic review by one or two outside consultants of all applications for testing accommodations that are not approved in full by LSAC. This mandatory use of outside consultants is to be distinguished from the appeals process, which will be described in response to Issue 9. LSAC must meet the guidelines and deadlines specified below.
• Except for situations in which a candidate acquires a temporary or permanent disability after the date for registering for the exam, a candidate must submit all their records in support of a testing accommodation by the applicable registration date. When a candidate unexpectedly acquires a disability after the registration deadline, LSAC should then waive the regular deadlines and make every effort to accommodate the candidate. The Panel understands that this recommendation goes beyond its authority under the Consent Decree but believes it is a Best Practice. That practice is consistent with the practices of many other testing entities such as the College Board.12
• The Disabilities Specialist shall review each file and make a recommendation whether to approve the requested accommodations in full, to approve in part, or to deny in full. He or she will then prepare a written summary based on a checklist of decision-making criteria (as described in response to Issue 5) that explains the reasoning for that decision, using a holistic approach to the file. This review shall occur within two business days of the Disabilities Specialist receiving a completed file.t3
• At this time, LSAC employs one Disabilities Specialist. If LSAC cannot meet this first-level review deadline by relying on one Disabilities Specialist to review all files then LSAC shall hire additional, qualified staff as Disabilities Specialists to make that deadline feasible. Employing adequate, qualified staff is a Best Practice.
• The recommendation of the Disabilities Specialist, along with the file, shall be transmitted to his or her supervisor, the Manager of Accommodated Testing. The Manager of Accommodated Testing shall review the file within two business days, which may include consultation with the first level reviewer. In all cases, the Manager of Accommodated Testing shall approve the requested testing
12 See https:/fwww.collegeboard.org/students-with-disabilitiesjtemporary-conditions. 13 We understand that the review process we have created is completed within two weeks. That constraint was required by LSAC's registration deadlines. Other testing entities, such as ACT and the College Board, have much earlier test registration deadlines for all candidates, allowing for a longer review period. Because we agree that review of denials by outside consultants is a Best Practice, and that an appeals process is also a Best Practice, we were forced to devise a timeline that was consistent with LSAC's.registration deadlines.
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accommodation in full, or write a clear rationale explaining the decision not to approve a testing accommodation request in full. • If the Manager of Accommodated Testing approves the full request for testing accommodations then the written summaries based on the checklist of decisionmaking criteria produced by the LSAC staff shall be retained in LSAC's records to be reviewed in the future for consistency or training purposes. • If the Manager of Accommodated Testing reverses the Disabilities Specialist in more than 25% of requests for testing accommodations in a given testing cycle, then an additional training obligation shall be implemented for the Disabilities Specialist, as discussed in "Best Practice" 10 below. • The Manager of Accommodated Testing shall make a decision to approve or deny requested testing accommodations within 4 working days of LSAC staff designating a file as being "complete." • If the Manager of Accommodated Testing approves a requested testing accommodation in full, then the candidate shall receive a communication within one business day stating that his or her testing accommodation request has been approved in full. • If the Manager of Accommodated Testing does not approve in full each of the candidate's requests for testing accommodations, then the consideration process shall continue with the use of one or two outside consultants. • The file shall be transmitted to one or two outside consultants, selected by LSAC from a list of experts who meet the qualifications stated earlier in this report under Issue 3 and whose expertise is appropriate to the case, depending on the conclusion of the first consultant as discussed below. The file that is transmitted to the outside consultant(s) shall include all the written summaries prepared by LSAC staff to justify their decision. • When a review is scheduled, one outside consultant will be immediately contacted to indicate to him or her that a file is to be reviewed. He or she will be requested to review that file within 2 working days. If the consultant indicates that he or she cannot meet that deadline (or fails to respond within one business day), then LSAC staff will contact the next person on the list until one is found who can review the file within 2 working days. • The outside consultant will have the choices of:
o agreeing with the candidate's request in full (reversing the decision of . LSAC not to approve the request in full),
o agreeing with the LSAC decision not to approve in full the candidate's request for testing accommodations,
o or suggesting a partial approval. Such a partial approval may not include rejection of testing accommodations that the LSAC's Manager of Accommodated Testing has already approved, but it may provide further approval of additional time or longer breaks, as requested by the candidate.
• The outside consultant will provide a justification of his or her decision in writing.
• In cases where the outside consultant agrees in full with the position of the
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candidate, then the candidate's requests will be identified as approved in full. The outside consultant's determination will become the final determination of LSAC for that candidate's request for testing accommodation. The candidate will be notified within one business day that his or her request for testing accommodation has been approved in full. • If the outside consultant does not approve the original request in full, a second reviewer will be selected and proceed as above. The second reviewer will have all the original documentation, LSAC written summaries, and the written summary from the first reviewer. • The second reviewer will have the choices of:
o approving the original request, o accepting the partial approval suggested by the first reviewer, where
applicable, or o supporting LSAC's initial stance where the first reviewer also accepted
LSAC's initial stance • The second outside consultant will provide a justification of his or her decision in
writing. • Where a second outside consultant is used as part of the determination process,
the decision by the second outside consultant is the final decision on the request for testing accommodation. • If the second outside consultant recommends approval of the candidate's testing accommodation request, in full, then that decision shall be transmitted to the candidate within one business day. • If the candidate's request for testing accommodation is not approved in full after review by the two outside consultants, LSAC will transmit a decision letter within one business day to the candidate that explains the rationale for the decision based upon the documentation provided by the candidate. The letter will address those aspects of the documentation and request for testing accommodations that contributed to the decision. Quoted statements from the written summaries and checklist indicators shall form the content of these letters. In this manner, the process will be a transparent and objective one that is communicated to the candidate. The letter shall also include clear suggestions, with examples, for any additional information that might be helpful in the appeal process. Additionally, an explanation of the appeals process (described in response to Issue 9) shall be included in all correspondence to candidates whose requests for testing accommodation were not approved in full.
9. Timely/streamlined appeals process. "The panel shall consider whether there should be a process available, beyond that already provided by LSAC, to candidates who wish to seek review of LSAC's decision to deny a candidate's request and, if so, what that process should be relative to LSAC's existing registration deadlines."
Current Practice
According to the submission provided to the Panel by LSAC:
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On prior occasions, LSAC has considered whether it could add an "appeal" procedure to its accommodation review process. The practical impediment is that many candidates wait until very close to the registration deadline to submit their requests for testing accommodations. There simply is not enough time for LSAC to process these requests in the ordinary course, and then allow a full "appeal" process, prior to test administration. Unfortunately, because of DOJ interpretive guidance, testing entities cannot require testing accommodation requests to be submitted in advance of the standard registration deadlines, so as to provide a separate block of time specifically for handling requests and allowing an appeal process.
Although the relevant title of the ADA (Title III) does not require an appeals process, LSAC has a reconsideration process in place that essentially operates as an appeals process. Candidates can appeal for any reason -including a belief that LSAC simply made the wrong decision. In many instances, LSAC responds to such requests by sending the file out for external review, based upon the facts in a given case. LSAC believes that this approach is reasonable and constitutes a 'best practice."
In our interview with LSAC staff, we learned that LSAC does not have what would traditionally be considered an "appeals process." LSAC uses internal staff, and, on occasion, two outside consultants, to reconsider its decision. A genuine appeals process does not exist whereby a neutral third party reviews LSAC recommendations using a designated, transparent appeals process. In addition, the discretionary practice of using outside consultants of LSAC's own choosing does not constitute an "appeals process."
LSAC's current practice is to inform a candidate who wants further reconsideration after the regular registration period that the time to supplement the file has elapsed, and no decision can be made for that testing cycle.
Panel's Recommendation
• The Panel recommends that the candidate shall be able to submit an appeal up to twelve days before the actual administration of the exam and, depending on the request, could even be continued further. As examples, a request to reverse denial of extended time could be decided within days of the test as could a request from someone with a temporary disability, such as a broken dominant hand, to word process the exam or use a scribe.
• When a candidate is notified that his or her request for testing accommodation has not been approved in full, the candidate shall receive within one business day a comprehensive decision letter explaining the rationale for the denial using language described in the internal and consultant written summaries as described above. The candidate will then be provided at least four days to submit an appeal. More than four days ca~ be provided to the candidate to
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provide an appeal if that appeal can be received within twelve days before the scheduled test date.
• If the candidate desires more than four days to transmit an appeal, and those additional days would cause the file to be received less than twelve days before the scheduled test date, then the candidate can request that his or her application for testing accommodations be rolled-over to the next LSAC testing cycle with no additional cost.
• The candidate will have at least 24 hours after receiving notification of a partial or full denial of a testing accommodation request to indicate if the candidate desires to appeal. (More than 24 hours can be provided in cases where the candidate had filed the original request for testing accommodation before the registration deadline.)
• As soon as the candidate indicates that he or she will be submitting an appeal, LSAC shall contact two outside appeals consultants (using the process described above) to ensure their availability in the event that the appeals process is invoked. These reviewers will be notified that they will have only one day (i.e., 24 hours) to respond to the appeal request once it is received.
• When LSAC receives an appeal from the candidate, then LSAC has 24 hours to decide to grant the candidate's request for testing accommodations without invoking the appeals process. If LSAC chooses to grant the request for testing accommodation after receiving the appeal, then the candidate shall be informed of that decision within one business day.
• If LSAC chooses not to grant the candidate's request in full, then the appeals process will commence within 24 hours through the use of the two outside appeals consultants.
• The appeal submitted by the candidate will then be processed by the outside appeals consultants, as described in Issue 8, but the outside appeals consultants will agree to respond within one day from transmission of the file.
• The result of the appeal shall be provided to the candidate within one week of the submission of the appeal. LSAC will never refuse to provide the results of an appeal (or a full consideration) because there is insufficient time to implement the requested testing accommodation for that examination cycle, unless the candidate indicates that he or she would like to terminate the testing accommodation request.
• An appeal, will be rendered for candidates by the following sample dates, assuming the file was complete by the regular registration deadline:
o Sample June 9, 2014 testing scenario (using consideration and appeal process, as described above):
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• Tuesday, May 6, 2014: regular registration deadline
• Thursday, May 8, 2014: recommendation by first-level reviewer, the Disabilities Specialist.
• Monday, May 12, 2014: review of that decision by the Manager of Accommodated Testing. The Manager of Accommodated Testing will provide an explanation in writing in support of his or her decision not to approve a testing accommodation request in full.
• If the Manager of Accommodated Testing accepts the candidate's request for testing accommodations in full, then the candidate will be notified of that approval on Tuesday, May 13, 2014.
• If the Manager of Accommodated Testing does not approve the candidate's requests for accommoation in full then the consideration process continues.
• Wednesday, May 14, 2014: consideration of denial complete by first outside consultant.
o If that determination is an approval of the testing accommodation, then file is approved. The candidate is notified of approval by Thursday, May 15,2014.
o If that determination is not to approve a candidate's request for testing accommodation in full then the file is reviewed by a second outside consultant who will render a decision by Friday, May 16, 2014.
o If the second outside consultant concludes that the candidate should receive the testing accommodation(s) requested, then the candidate will be notified on Monday, May 19, 2014 that request has been approved in full.
o If the second outside consultant does not approve the candidate's request for an accommodation in full then the candidate will be provided an explanation of that decision by Monday, May 19, 2014, and informed of his or her right to appeal the decision.
o The candidate will be asked to indicate within 24 hours (Tuesday, May 20, 2014) whether he or she intends to appeal the denial. If the candidate states
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that he or she intends to appeat LSAC will immediately secure two different outside consultants with expertise in the disability area to review the appeal.
o The candidate will be provided four days, until Friday, May 23,2014, to transmit an appeal of the decision. In their appeal, the candidate may request a different testing accommodation than requested in his or her original request for testing accommodations.
o Upon receipt of the appeal, LSAC will either approve the requested testing accommodation(s) in full within 24 hours (May 24, 2014) or, within a further 24 hours (by Sunday, May 25, 2014) after review of first appeal outside consultant who had been selected, as described above. That individual will have 24 hours (until Monday, May 26, 2014) to make a determination about the appeal.
o The first outside appeals consultant may:
• Approve the candidate's testing accommodation request, as stated in appeal, in full.
• Grant a partial request of testing accommodations sought by the candidate, not to be less than LSAC's original determination, or
• Concur with LSAC's initial determination.
o If the outside appeals consultant does not approve the candidate's testing accommodation request in full then LSAC will transmit the appeal to a second outside consultant, who was already selected, as described above.
o The second outside appeal consultant will make a determination within 24 hours (Tuesday, May 27, 2014) and will choose between the recommendation of the first outside appeals consultant and the candidate's request.
o LSAC will communicate with the candidate by W~dnesday, May 28,2014 to provide final decision.
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o LSAC will implement the testing accommodation determination by June 9, 2014.
10. Training. The Panel shall consider and establish the parameters, such as content and timing of, training for persons (both LSAC staffand outside consultants) who evaluate or review testing accommodation requests.
Current Practice
According to the submission provided to the Panel by LSAC:
For outside consultants, it is LSAC's position that annual training would be reasonable and a "best practice." The training could cover any changes in LSAC's policies or practices, answer frequently asked questions, and provide a question and answer session among the outside consultants, LSAC's Manager of Accommodated Testing, and LSAC's general counsel.
For LSAC staff, annual in-person training would likewise be reasonable, in terms of a formal, structured training session. No such formal in-house training currently occurs. The training could be conducted by LSAC's general counsel, potentially in conjunction with outside counsel and/or an outside consultant, and could cover any changes in LSAC's policies and practices. This would also allow LSAC staff to raise questions or address frequently occurring issues.
As a practical matter, because of the small size of LSAC's Accommodated Testing staff, ''training" happens informally on an almost-daily basis, through frequent interactions among staff. In addition, LSAC staff routinely attend continuingeducation sessions at external meetings and conferences. In this light, more frequent "formal" training does not appear necessary, beyond adding an annual formal training session as discussed above.
Panel's Recommendation
• LSAC staff and all outside consultants shall attend an annual two-day training session that includes presentations by experts in the field who have knowledge and training in testing accommodation issues and experience conducting training for other testing agencies such as the ACT, ETS, or College Board. During the Consent Decree, at least one member of the Panel appointed by DOJ and one member of the Panel appointed by LSAC, who has approved all of the recommendations of the Panel, shall participate in this training session.
• Training would include how to evaluate requests for testing accommodations based on: a stated presence of disability, history of provision of testing accommodation or rationale for lack of testing accommodation use, rationale for late diagnosis if appropriate, candidate's self statement, and recommendations
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of the evaluator or previous disability service providers or teachers. An opportunity to receive feedback will be provided. Training will include review of mock cases in order to become familiar with the Panel's recommendations for practice. Trainings would also include a summary of the legal landscape by one of the attorneys recognized in the field for litigating cases on testing accommodations on national admissions, professional, and/or licensing exams. • Training shall meet the following minimum objectives:
o to educate reviewers regarding the application of the ADA to testing accommodations analysis generally, and with respect to learning and attention disabilities specifically;
o to provide reviewers with standards for evaluating requests for testing accommodations;
o to instruct reviewers on what information shall be contained in their written recommendations, where applicable.
• LSAC shall keep internal data on: (1) the frequency with which the Manager of Accommodated Testing reverses the recommendations of the first-level reviewer, and (2) the frequency with which the Manager of Accommodated Testing's final decision is reversed by the outside consultants during the consideration or appeals process. If any of the reports required by paragraph 23 of the Consent Decree demonstrate that the rate of reversal exceeds 25% during any testing cycle, then the relevant staff member shall receive additional training. The purpose of this training would be to provide constructive feedback to prospectively lower the reversal rate in the future. The nature and timing of that training will be determined by DOJ, in consultation with DFEH, on a case-by-case basis depending on the reasons for the reversals.
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 Case 3:12-cv-01830-JCS Document 278 Filed 03/05/18 Page 1 of 53

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

DEPARTMENT OF FAIR EMPLOYMENT

7

AND HOUSING,

Case No. 12-cv-01830-JCS

8

Plaintiff,

9

v.

10

LAW SCHOOL ADMISSION COUNCIL

INC, 11

Defendant.

12

ORDER REGARDING MOTION FOR CONTEMPT AND MOTION TO EXCLUDE CONCLUSIONS OF DECREE MONITOR
Re: Dkt. Nos. 250, 254

13 I. 14

INTRODUCTION The present motions arise from a consent decree entered by the Court in 2014 (the

15 “Consent Decree” or “Decree,” dkt. 203) on the joint motion of Defendant Law School Admission

16 Council, Inc. (“LSAC”) and Plaintiffs, the California Department of Fair Employment and

17 Housing (“DFEH”) and the United States, regarding LSAC’s procedures to accommodate

18 individuals with disabilities taking the Law School Admission Test (the “LSAT”). DFEH now

19 moves for an order holding LSAC in contempt, arguing that LSAC has failed to comply with the

20 Consent Decree and with procedures established by a panel of experts pursuant to the Decree.

21 DFEH also brings a motion in limine to exclude the opinions of Arthur Coleman, an independent

22 monitor appointed under the Decree. The Court held a hearing on February 23, 2018. For the

23 reasons discussed below, DFEH’s motion for contempt is GRANTED in part, and DFEH’s motion

24 in limine is DENIED.1

25

26

27

28

1 The parties have consented to the jurisdiction of the undersigned magistrate judge for all purposes pursuant to 28 U.S.C. § 636(c).

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United States District Court Northern District of California

1 II. BACKGROUND

2

A. Overview and Procedural History

3

DFEH brought this action against LSAC in state court in March of 2012, alleging that

4 LSAC’s process for considering requests to accommodate disabilities by individuals seeking to

5 take the LSAT violated the Americans with Disabilities Act of 1990 (the “ADA”), 42 U.S.C.

6 §§ 12101–213, and in doing so also violated California’s Unruh Civil Rights Act, Cal. Civ. Code

7 § 51. LSAC removed to this Court, and the Court granted the United States’ motion to intervene

8 as a plaintiff in October of 2012. See dkt. 60. A number of individual plaintiffs who had

9 requested accommodation on the LSAT also joined the case.

10

The parties reached a settlement, and on May 29, 2014, this Court, the Honorable Edward

11 Chen presiding, issued an order granting the parties’ joint motion to enter a Consent Decree and

12 dismiss the action with prejudice. Dkt. 202. As discussed in more detail below, the Consent

13 Decree called for payment of damages to individual plaintiffs and other individuals who had

14 sought accommodation on the LSAT,2 altered certain aspects of how LSAC treated requests for

15 accommodations and reported scores for tests taken with accommodations, delegated other issues

16 of how to treat such requests to a panel of experts selected by the parties (the “Panel”), imposed

17 recordkeeping and reporting requirements, granted DFEH and the United States limited access to

18 LSAC’s records, and called for the appointment for a monitor (the “Monitor” or “ADA Monitor”)

19 to audit LSAC’s compliance, among other effects. See generally Consent Decree. Except for

20 LSAC’s agreement not to annotate whether tests were taken with accommodations in score reports

21 that LSAC provided to law schools, the Consent Decree limited its effects to a term of four years.

22 Id. ¶ 30.

23

After the Panel established by the Consent Decree issued its report (the “Report” or “Panel

24 Report,” dkt. 220-2) calling for changes to LSAC’s procedures, LSAC appealed to the Court,

25 arguing that the report exceeded the Panel’s authority under the Decree. See generally Appeal

26

27 2 The individual plaintiffs are no longer parties to the case. For the purpose of LSAC’s ongoing

28

obligations under the Consent Decree, the remaining parties are LSAC, DFEH, and the United States.

2

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United States District Court Northern District of California

1 (dkt. 220). On consent of the parties, the case was reassigned for all purposes to the undersigned

2 magistrate judge, who had previously overseen the parties’ settlement discussions. See dkts. 240–

3 44. The Court largely upheld the Panel’s Report in an order dated August 7, 2015. See Order

4 Granting in Part & Denying in Part Appeal of Best Practices Panel Report (“Appeal Order,” dkt.

5 245).3

6

With the scheduled lapse of the Consent Decree on May 29, 2018 approaching, DFEH now

7 moves for an order holding LSAC in contempt for failing to comply with the Consent Decree, the

8 Panel Report, and the Court’s order on LSAC’s appeal from the Report, and asks that this Court:

9 (1) extend the term of the Consent Decree, on a nationwide basis, by two years; (2) replace the

10 ADA Monitor and require quarterly audits; (3) grant DFEH and the United States additional

11 access to LSAC’s records; and (4) award DFEH its attorneys’ fees and costs. See generally

12 Contempt Mot. (dkt. 254). In the alternative, DFEH seeks the same relief based on the Court’s

13 authority to modify the consent decree pursuant to Rule 60(b) of the Federal Rules of Civil

14 Procedure. See id. DFEH also moves to exclude the conclusions and testimony of the Monitor

15 appointed under the Consent Decree, Arthur Coleman. See generally Mot. to Exclude (dkt. 250).

16 LSAC opposes both motions, and the United States has not taken a position on either motion.4

17

B. Consent Decree

18

As noted above, the Consent Decree encompasses a wide range of issues ranging from

19 monetary relief for individual plaintiffs to LSAC’s recordkeeping requirements. This section

20 briefly summarizes the provisions implicated by the present motions.

21

Paragraph 5 of the Consent Decree classifies requests for accommodations into two

22

23

3 Dep’t of Fair Emp’t & Housing v. Law Sch. Admissions Council, Inc., No. 12-cv-01830-JCS, 2015 WL 4719613 (N.D. Cal. Aug. 7, 2015). Citations herein to the Court’s previous order refer

24

to page numbers of the version appearing in the Court’s ECF docket. 4 At the hearing, counsel for the United States—the Chief of the Civil Division of the United

25

States Attorney’s Office for this district—informed the Court that the Civil Rights Division of the Department of Justice did not authorize the United States to take a position. Counsel stated that

26

she believed the United States’ non-position to be a reasoned decision by the Civil Rights Division that would not change if given more time. The Court notes as a point of interest, but does not rely

27

on, the fact that the United States largely joined DFEH’s current position in correspondence sent to LSAC before DFEH filed the present motion. See, e.g., Carrasco Decl. (dkt. 255) Ex. 15 (letter

28

dated May 17, 2017, jointly signed by DFEH and the United States on Civil Rights Division letterhead).

3

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United States District Court Northern District of California

1 groups. The first group consists of applicants seeking certain accommodations that they have

2 previously received on “any standardized examination offered in the United States related to

3 applications for post-secondary admission.” Consent Decree ¶ 5(a). LSAC must grant those

4 accommodations so long as: (1) the applicant provides proof that the sponsor of the earlier test

5 granted the accommodation; (2) the applicant checks a box certifying that the applicant continues

6 to experience the functional limitations that required accommodation; (3) the accommodation at

7 issue is either an extension of time, up to double time, or a non-time accommodation listed in

8 Exhibit 1 to the Consent Decree; and (4) the accommodation would not require administering

9 testing on more than one day. Id.

10

All other requests for accommodation are governed by Paragraphs 5(b) through 5(d).

11 LSAC’s requests for documentation supporting such requests must be “reasonable and limited to

12 the need for the testing accommodation requested.” Id. ¶ 5(b). LSAC must “consider all facts and

13 explanations offered by the candidate,” must “give considerable weight to documentation of past

14 testing accommodations received in similar testing situations not covered by Paragraph 5(a)” or in

15 the context of certain formal special education settings, and must “consider documentation

16 provided by a qualified professional who has made an individualized assessment of the candidate.”

17 Id. ¶¶ 5(d)(i)–(iii) (footnote omitted). Many of the parameters and procedures for such requests

18 were delegated to the Panel.

19

The Panel consisted of “five experts: two selected by LSAC; two selected by the United

20 States and the DFEH; and a fifth selected by those four experts from a list prepared by the United

21 States and the DFEH.” Consent Decree ¶ 7(a). Each member had expertise in standardized

22 testing accommodations, cognitive disabilities, or ADA compliance. Id. The Panel was charged

23 with preparing “a written report establishing Best Practices that comport with the requirements of

24 28 C.F.R. § 36.309, all of which LSAC shall implement to the extent that it is not already

25 following such Best Practices.” Id. ¶ 7(b). Issues delegated to the Panel included how LSAC

26 should diversify its outside consultants, what documentation LSAC may request to support

27 requests for accommodations, the qualifications of LSAC’s staff and outside consultants who

28 review such requests, whether more than one person should review such requests, “criteria and 4

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United States District Court Northern District of California

1 guidelines for use by persons who review” such requests, the parameters for documenting review

2 of and decisions on such requests, the parameters for explaining decisions to applicants, if and

3 how LSAC should automatically review full or partial denials of requests, what if any appeal

4 process should be available to applicants, and the parameters for training LSAC’s staff and outside

5 consultants. Id. ¶ 7(c). The Panel was to provide a report within six month after all of its

6 members were appointed, and the parties had a right to appeal to the Court if the Panel’s

7 recommendations conflicted with the Consent Decree or applicable law. Id. ¶ 7(d). As discussed

8 below, LSAC invoked that right in 2015. Any party could also reconvene the Panel and request

9 changes to its Report after the first administration of the LSAT implementing the Panel’s initial

10 conclusions. Id. ¶ 7(d)(vi). The record does not reflect any party having invoked that provision.

11

The Consent Decree also requires LSAC to appoint an ADA Monitor (as discussed in more

12 detail below in the summary of the Monitor’s activities) and to maintain records tracking, among

13 other information, applicants’ requests for accommodations, whether LSAC requested additional

14 documentation, whether LSAC granted or denied each accommodation requested in full or in part,

15 and reasons for any denials. Id. ¶ 8(a). LSAC must provide that data in reports to the ADA

16 Monitor, DFEH, and the United States after each administration of the LSAT, and must also

17 provide annual reports discussing its efforts to comply with the Decree and any difficulties that it

18 has faced. Id. ¶ 23. LSAC must maintain “appropriate supporting records for the information

19 contained in the Reports,” and must provide DFEH, the United States, and the Monitor access to

20 such records “upon reasonable request.” Id. The Decree also more broadly grants the Monitor

21 access to all of LSAC’s records and staff relevant to evaluating compliance, and states that LSAC

22 “will provide” DFEH and the United States “with access to data underlying the ADA Monitor’s

23 Audit Reports,” and “may provide” DFEH and the United States “with access to additional

24 information as reasonably requested.” Id. ¶ 26(a). Access is limited to reviewing documents at

25 LSAC’s office in Pennsylvania for no longer than five business days, following ten days’ written

26 notice, and DFEH’s access is further restricted to “documents and information pertaining to

27 individuals who tested in California.” Id. ¶¶ 23, 26(a).

28

The Court retained jurisdiction to enforce the Consent Decree. Id. ¶ 30. “The United

5

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United States District Court Northern District of California

1 States, the DFEH, and/or LSAC may apply to the Court for such further orders as may be

2 necessary for, or consistent with, the enforcement of [the] Decree.” Id. If disputes arise regarding

3 “compliance with, interpretation of, or implementation of the terms of [the] Decree,” and a process

4 for resolving such disputes among the parties is unsuccessful, “any of these Parties may pursue the

5 issue with the Court.” Id. ¶ 31. “Failure by any Party to seek enforcement of this Decree pursuant

6 to its terms with respect to any instance or provision will not be construed as a waiver of such

7 enforcement with regard to other instances or provisions.” Id. ¶ 37.

8

C. Best Practices Panel Report and Court Order on Appeal

9

As noted above, the Consent Decree provides that “LSAC shall implement” the best

10 practices established by the Panel, except to the extent that such practices conflict with the

11 Consent Decree or applicable law. See Consent Decree ¶ 7(b). The portions of the Panel’s Report

12 most applicable to the current dispute relate to the procedures LSAC must use when it denies an

13 applicant’s request for accommodations in full or in part.

14

The Report lays out a process for first-level review as follows:

15

The Disabilities Specialist [(an LSAC employee)] shall review each

file and make a recommendation whether to approve the requested

16

accommodations in full, to approve in part, or to deny in full. He or

she will then prepare a written summary based on a checklist of

17

decision-making criteria . . . that explains the reasoning for that

decision, using a holistic approach to the file. 18

19 Report at 22. After the “first-level review” by the Disabilities Specialist, the Report provides that

20 another existing LSAC employee, the Manager of Accommodated Testing (the “Manager”), shall

21 review the file and either “approve the requested testing accommodation in full, or write a clear

22 rationale explaining the decision not to approve a testing accommodation in full.” Id. at 22–23. If

23 the Manager approves the request in full, the written summaries prepared by LSAC staff “shall be

24 retained in LSAC’s records to be reviewed in the future for consistency or training purposes,” and

25 LSAC shall notify the applicant that the request was approved. Id. at 23.

26

If the Manager determines that a request should be denied in full or in part, the Report sets

27 forth a procedure for automatic external review. LSAC must transmit the file to an outside

28 consultant of its choice who has relevant expertise and agrees to review the file within two 6

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United States District Court Northern District of California

1 working days. Id. The outside consultant must then review the file and reach a conclusion to

2 agree with the candidate’s request in full, agree in full with LSAC’s full or partial denial, or

3 suggest a partial approval falling between the candidate’s request and LSAC’s position. Id. “The

4 outside consultant will provide a justification of his or her decision in writing.” Id. If the

5 consultant agrees with the candidate in full, then the “consultant’s determination will become the

6 final determination of LSAC for that candidate’s request.” Id. at 23–24. Otherwise, the file goes

7 to a second consultant selected by the same process, who may either approve the request in full or

8 endorse the position of the first consultant. Id. at 24. The second consultant must also justify his

9 or her decision in writing. Id. “Where a second outside consultant is used . . . the decision by the

10 second outside consultant is the final decision on the request for testing accommodation.” Id.

11

LSAC must notify the candidate of a final decision that denies a request in full or in part,

12 and must provide an opportunity for the candidate to appeal. Id. at 24, 25. If the candidate

13 appeals and LSAC elects not to grant the accommodation in response to the appeal, LSAC must

14 transmit the appeal and the candidate’s file to another outside consultant for review under a

15 process similar to that described above, but with a twenty-four hour deadline. Id. at 28. That

16 consultant may approve the request in full, approve in part (but not less than LSAC’s initial

17 determination), or concur with LSAC’s initial decision. Id. at 28. If the consultant does not grant

18 the request in full, the appeal goes to another consultant—the fourth overall, and the second on the

19 appeal—who has twenty-four hours to “choose between the recommendation of the first outside

20 appeals consultant and the candidate’s request.” Id. LSAC must provide the result to the

21 candidate within one week of the candidate submitting the appeal. Id. at 26. “LSAC will never

22 refuse to provide the results of an appeal (or a full consideration) because there is insufficient time

23 to implement the requested testing accommodation for that examination cycle, unless the

24 candidate indicates that he or she would like to terminate the testing accommodation request.” Id.

25

The Panel repeatedly emphasized that LSAC must provide a clear explanation of any

26 denial regardless of whether the denial was based on a lack of documentation, and that LSAC

27 must inform candidates of the option to appeal:

28 7

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United States District Court Northern District of California

In cases where the candidates’ requests for testing accommodations

1

are not approved in full, the candidates shall be informed, in writing,

why each of their requests for testing accommodations are not

2

approved in full [footnote], and what additional information, if any,

could lead LSAC to approve their requests in the future. An

3

explanation of the appeals process . . . shall be included in all

correspondence to candidates whose requests for testing

4

accommodations are not approved in full.

5 Id. at 21. The footnote in that section reads as follows:

6

The phrase “not approved in full” is intended to include situations

where LSAC denies a testing accommodation request due to a lack of

7

documentation. Such denials will be subject to the outside consultant

review rules. 8

9 Id. at 21 n.11. In an earlier section of the Report, the Panel required that “[i]n cases where the

10 reviewer concludes there is a lack of documentation, the reviewer shall provide a clear statement

11 of what additional documentation is necessary so that the request for testing accommodation could

12 be considered in the future.” Id. at 11–12.

13

The Panel addressed the topic of notice to candidates again after describing the internal

14 review process:

15

The letter will address those aspects of the documentation and request

for testing that contributed to the decision. Quoted statements from

16

the written summaries and checklist indicators [by internal and

external reviewers] shall form the content of these letters. In this

17

manner, the process will be a transparent and objective one that is

communicated to the candidate. The letter shall also include clear

18

suggestions, with examples, for any additional information that might

be helpful in the appeal process. Additionally, an explanation of the

19

appeals process . . . shall be included in all correspondence to

candidates whose requests for testing accommodation were not

20

approved in full.

21 Id. at 24. The Panel further discussed such communications in the section of its Report addressing

22 the appeal process:

23

When a candidate is notified that his or her request for testing

accommodation has not been approved in full, the candidate shall

24

receive within one business day a comprehensive decision letter

explaining the rationale for the denial using language described in the

25

internal and consultant written summaries as described above. The

candidate will then be provided [at least one day to indicate the

26

candidate’s intent to appeal and] at least four days to submit an

appeal. 27

[. . .] 28

8

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1

The result of the appeal shall be provided to the candidate within one

week of the submission of the appeal. LSAC will never refuse to

2

provide the results of an appeal (or a full consideration) because there

is insufficient time to implement the requested testing

3

accommodation for that examination cycle, unless the candidate

indicates that he or she would like to terminate the testing

4

accommodation request.

5 Id. at 25–26.

6

The Panel also required LSAC to keep records of how often decisions to deny requests for

7 accommodation were reversed on further review, so that relevant staff members could receive

8 remedial training if their reversal rates exceeded 25% during a particular test cycle. Id. at 30.

9

When LSAC appealed the Panel’s recommendations to this Court, it did not directly

10 challenge the Panel’s conclusions regarding the issue of if and how LSAC should provide written

11 explanations to candidates who are denied accommodations. See Appeal Order at 6. LSAC

12 challenged much of the procedure set by the Panel for internal review and appeals of denials, but

13 the Court largely declined to alter the Panel’s prescriptions on those topics. Id. at 28–40. The

14 Court’s limited modifications to those topics were as follows: (1) LSAC need not comply with

15 specific time limits for LSAC’s internal staff to complete their reviews, although LSAC must

16 nevertheless complete its review in time to allow for external review and, in the case of

17 applications submitted by the normal registration deadline, in time to allow for appeal; (2) LSAC

18 need not necessarily hire additional staff, but could determine for itself how it would fulfill its

19 obligations; (3) LSAC need not provide second-level review of initial decisions to grant

20 accommodation requests, or notify applicants of such decisions within one business day; and (4) in

21 the case of requests submitted after the initial registration deadline but before the “late

22 registration” deadline, LSAC need not provide time for an appeal before the upcoming test

23 administration, but may instead defer consideration to the next test date if applicants chose to

24 appeal a denial. Id. at 43–44 (summarizing the Court’s modifications to the Panel Report).

25 Although the Report established a number of presumptions about how requests for

26 accommodation should be treated under particular circumstances, the Court interpreted the Report

27 as preserving reviewers’ discretion to depart from those presumptions so long as they explained in

28 detail why, in their professional opinions, a different outcome was warranted. Id. at 21–23, 42–43. 9

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1

D. LSAC’s Handling of Requests for Accommodation

2

The Consent Decree became effective when signed by the Court on May 29, 2014, and

3 after the Court issued its order on LSAC’s appeal of the Panel’s Report, the parties agreed that

4 LSAC would implement the Report beginning with the December 2015 administration of the

5 LSAT. See Carrasco Decl. (dkt. 255) Ex. 9 at 1. In the years since the Consent Decree went into

6 effect, the number of people taking the LSAT has not changed significantly, but the number of

7 requests for accommodations has increased to more than three times the number of pre-Decree

8 requests ranging from 1,474 requests for the 2013–2014 testing year to “at least 5,372” requests

9 for the 2017–2018 testing year. Dempsey Decl. (dkt. 268-1) ¶¶ 7–10. DFEH’s counsel Joni

10 Carrasco states that, based on a review of LSAC’s reports for the December 2015 through

11 December 2017 administrations of the LSAT, LSAC has referred only approximately seventy

12 candidates’ accommodation requests to outside consultants for review, and has processed only

13 eight appeals. Carrasco Reply Decl. (dkt. 271-1) ¶¶ 63–64.

14

LSAC requires certain basic documentation to support requests for accommodation,

15 including a candidate form, evidence of a disability, and an explanation of the candidate’s need for

16 the accommodations requested. Dempsey Decl. ¶¶ 35–39, 43–46. If candidates did not submit

17 that documentation, LSAC did not process their requests for accommodation. Id. ¶¶ 44–48.

18 LSAC initially left the field to indicate the result of such requests blank in its reports, and

19 Plaintiffs objected to that practice on the basis that LSAC was effectively denying those requests.

20 Mew Decl. re Contempt (dkt. 268-2) Exs. A–D. LSAC began to list such requests as “no

21 decision” in its February 2015 report, and Plaintiffs indicated that the issue of blank fields had

22 been resolved. Id. ¶ 18 & Ex. E. LSAC continued to report such requests as “no decision,” with

23 an explanation for why it purportedly did not reach a decision, through the September 2017 LSAT.

24 Id. ¶¶ 18–28. LSAC did not provide multi-level review or an opportunity appeal its

25 determinations that no accommodations would be provided in the cases that it reported as “no

26 decision.” Carrasco Decl. ¶ 33. DFEH objected to that practice in a notice of violation that it

27 provided to LSAC in May of 2017. Carrasco Decl. Ex. 15. DFEH also objects to other aspects of

28 LSAC’s reporting practices as discussed in detail in the Court’s analysis below. 10

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1

Beginning with the February 2016 administration of the LSAT, LSAC began using a

2 procedure it referred to internally as the “50% email,” and continued to do so through mid-October

3 of 2017, at which point LSAC was beginning to process requests for the December 2017 LSAT

4 and had already sent “50% emails” to forty candidates for that test before it made the decision to

5 stop using that practice. Dempsey Decl. ¶¶ 53–54. LSAC sent such emails when it determined

6 that the documentation submitted by a candidate supported some but not all of the candidate’s

7 requested accommodations. Id. ¶ 54. The language of the emails varied somewhat, but typically

8 read in relevant part approximately as follows:

9

Based on a preliminary screening of your request for accommodations

on the [date] LSAT, we are prepared to approve you for: 10

[certain accommodations] 11

However, we are unable to process your request for [other

12

accommodations] because the documentation necessary to support

this request was not submitted. 13

You have two options: 14

1. You can revise your request and accept the accommodations

15

described above for which you are currently eligible.

16

Or

17

2. You can pursue your request for an additional [accommodation] by

submitting [other documents]. 18

19 Id. ¶¶ 60–61 & Ex. R. Some versions of the letter informed candidates that because the deadline

20 to submit requests had passed, choosing the second option would require deferring the request to a

21 subsequent administration of the LSAT, and some stated that candidates would not receive any

22 accommodations if they did not respond to the “50% email” and choose one of the two options

23 presented by a particular deadline, sometimes forty-eight hours or less after LSAC sent its email.

24 See id. ¶ 62 & Ex. R.

25

DFEH submits declarations from three LSAT candidates who received “50% emails.” See

26 generally Harris Decl. (dkt. 249-6); Movaghar Decl. (dkt. 249-5); Kallman Decl. (dkt. 249-4).

27 One candidate, Russell Dean Harris, felt pressured to accept the lesser option offered by LSAC,

28 attempted to appeal LSAC’s decision, was told that LSAC would not provide an appeal process 11

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1 for its determination that his documentation was not sufficient (and that the appeal process was

2 reserved for “final decisions on the merits”), and ultimately reached a stipulation with LSAC after

3 threatening litigation and applying pro se for a temporary restraining order. See generally Harris

4 Decl. & Ex. B; Dempsey Decl. ¶¶ 90–92. Another candidate, Phillip Movaghar, accepted LSAC’s

5 proposal to revise his request and forego a requested accommodation because he felt that he had

6 no other choice, did not understand LSAC’s request for an “appropriately documented statement

7 of need,” and did not understand why LSAC would not provide the accommodations that it had

8 already determined he was eligible for if he did not revise his request. See generally Movaghar

9 Decl.5 A third candidate, Michael Kallman, states that he called LSAC after he received a “50%

10 email” to inquire about his options. Kallman Decl. ¶ 8.6 According to Kallman, an LSAC

11 representative told him there was no way to obtain all of the accommodations he requested on the

12 administration of the LSAT that he was registered for, so Kallman accepted the lesser offer over

13 the phone, and the representative told him that was sufficient. Id. ¶¶ 9–10. When Kallman arrived

14 for the LSAT, he was told that he was registered to take it with no accommodations and there was

15 nothing that could be done at that time. Id. ¶¶ 13–15. He did not take the test, and LSAC

16 representatives later told him by telephone and email that a telephone call was not sufficient to

17 accept the offer presented in LSAC’s “50% email,”7 relying on the statement in the email reading:

18 “If you do not reply by [the deadline] LSAC will be unable to provide ANY accommodations and

19 you will remain registered to test as a standard test taker.” Id. ¶¶ 18–22 & Ex. B. Kallman

20 registered for a later administration of the test, submitted additional documentation, and received

21 all of the accommodations that he requested. Dempsey Decl. ¶ 100. DFEH also submits a

22

23 5 Kim Dempsey, LSAC’s Manager of Accommodated Testing notes that Movaghar has requested

24

accommodations on seventeen administrations of the LSAT and has sat for the test three times. Dempsey Decl. ¶ 101.

25

6 LSAC’s Manager of Accommodated Testing states that LSAC has no record of this call. Dempsey Decl. ¶ 98.

26

7 The representative whom Kallman spoke with after the test told him that he could not have accepted the offer by telephone because there was no way to speak to LSAC’s accommodations

27

department by telephone. Kallman Decl. ¶ 20. Kallman pointed out that LSAC’s automated telephone system included an option to press “4” to speak to the accommodations department, and

28

the representative agreed with him that it did not make sense but told him there was nothing she could do. Id.

12

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1 declaration from another candidate, Aidee Campa Escorza, who is completely blind and was told

2 by LSAC that she would have to take the test without accommodations, and with no opportunity

3 for appeal or reconsideration, after she twice inadvertently failed to include the first page of her

4 candidate form with her request for accommodations. See generally Campa Escorza Decl. (dkt.

5 271-2). LSAC ultimately granted Campa Escorza’s request after DFEH lodged a complaint on her

6 behalf. Id. ¶ 29.

7

DFEH first received copies of “50% emails” no later than December of 2016 when it

8 obtained Movaghar’s file in connection with an administrative complaint that he filed. Mew Decl.

9 re Contempt ¶ 33. DFEH discovered that LSAC used “50% emails” as a standard practice when it

10 reviewed documents at LSAC’s Pennsylvania office in April of 2017 and found that LSAC began

11 using such emails as early as January of 2016, and that by June of 2016 LSAC had added a

12 standard field reading “50% email” to its internal form for tracking correspondence sent to

13 candidates who requested accommodation. Carrasco Decl. ¶ 34. DFEH determined that when a

14 candidate accepted LSAC’s offer of less than all of the accommodations originally requested,

15 LSAC would use white-out to replace the initial request with the modified request on its internal

16 form, and would report the request as “granted in full” on reports required under the Consent

17 Decree. Id. ¶¶ 31, 34. If a candidate did not respond to a “50% email,” LSAC would provide no

18 accommodations and report the request as “no decision.” Id. ¶ 31. LSAC refused to provide

19 DFEH with access to files reported “granted in full” when DFEH visited LSAC’s office, and

20 provided a redacted copy of only one such file afterwards. See id. ¶ 29; Carrasco Reply Decl.

21 ¶ 60. DFEH believes that most instances of “50% emails” would be found in the “granted in full”

22 files to which it was denied access. Carrasco Decl. ¶ 31.

23

Based on the very small number of requests that LSAC reported as “denied,” the United

24 States and DFEH agreed to waive a requirement established by the Panel that LSAC maintain a

25 list of twenty-five to forty outside consultants to review denials, and instead agreed to reduce that

26 number to only eight to ten consultants. Id. ¶ 41. DFEH now contends that its agreement was

27 based on inaccurate reporting by LSAC due to LSAC’s use of “50% emails” and “no decision”

28 reports. Id. ¶¶ 41–42. 13

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1

LSAC presents evidence regarding other candidates’ requests for accommodation that it

2 believes illustrate the efforts it has taken to comply with the Consent Decree and the procedures

3 established by the Panel. For example, a candidate recently diagnosed with Attention Deficit

4 Hyperactivity Disorder and a “Learning Disability Not Otherwise Specified” requested fourteen

5 accommodations for the LSAT. Dempsey Decl. ¶¶ 15, 24–31. LSAC determined that all

6 requested accommodations should be granted except waiver of the “experimental” section of the

7 test—an unscored section that allows LSAC to develop questions or future versions of the

8 LSAT—and two outside consultants agreed with the denial of his request to waive the

9 experimental section, while opining that some of the accommodations LSAC had decided to grant

10 were excessive. Id. ¶ 15 & Exs. E–H. LSAC sent the candidate a letter explaining the decision to

11 deny waiver of the experimental section, the candidate appealed, two additional consultants

12 affirmed the denial, and LSAC informed the candidate of that final decision. Id. ¶¶ 15 & Exs. I–

13 N.8 LSAC also highlights two test takers who, LSAC suggests, abused the Panel’s determination

14 that candidates who receive “stop-the-clock” breaks as accommodation for disabilities (typically

15 for medical conditions requiring frequent bathroom breaks) should receive one minute of extra

16 time per break to account for the disruption of stopping and resuming testing. See id. ¶¶ 18–20;

17 Panel Report at 17–18. One candidate took 150 breaks, which, when added to the extra time that

18 he also received as an accommodation, resulted in over sixteen hours to complete the LSAT,

19 which is normally completed in three hours. Id. ¶ 19 & Ex. C. Another took forty-five breaks,

20 which, when added to extra time separately granted, resulted in his test lasting from 8:30 AM to

21 nearly 10:00 PM, and a suggestion from the test proctor that LSAC reconsider its policy on stop-

22 the-clock breaks to prevent abuse. Id. ¶ 20 & Ex. D.

23

DFEH and the United States sent LSAC a letter in May of 2017 raising a number of

24 purported violations of the Consent Decree, including but not limited to LSAC’s use of “50%

25 emails” and the “no decision” reporting category, LSAC’s failure to include all required

26

27 8 According to DFEH, even though LSAC ultimately denied this candidate’s request to waive the

28

experimental section of the test, LSAC inaccurately reported that all of his requests were granted in full. Carrasco Reply Decl. ¶ 65.

14

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1 information in its reports, and LSAC’s refusal to provide DFEH with access to files reported as

2 “granted in full.” Carrasco Decl. Ex. 15. In August and mid-October of 2017, the parties reached

3 a limited agreement that LSAC would cease using the “no decision” designation where candidates

4 submitted requests late or had not registered for the LSAT and would instead report those requests

5 as denials, but would not be required to refer them to outside consultants or permit appeals. Mew

6 Decl. re Contempt Exs. L, M. The parties were not able to resolve other issues, including LSAC’s

7 use of “no decision” for requests that it concluded lacked sufficient documentation. Id. Ex. M. In

8 late October of 2017, DFEH sent a letter to LSAC and the United States stating its position that

9 most of the issues raised in the May 2017 letter remained outstanding and could not be resolved.

10 Carrasco Decl. Ex. 19.

11

E. Appointment and Activities of the ADA Monitor

12

The Consent Decree calls for LSAC to “retain an independent ADA Monitor, to be

13 mutually agreed upon by the United States, the DFEH, and LSAC” within sixty days of its

14 effective date, in order to “assist the United States, the DFEH, and the Court in evaluating LSAC’s

15 compliance with the Decree.” Consent Decree ¶ 24. “No Party . . . shall have any supervisory

16 authority over the ADA Monitor’s activities or interfere with the independent functions of the

17 ADA Monitor,” except that LSAC retained some authority regarding the ADA Monitor’s activities

18 on LSAC’s premises. Id. The ADA Monitor is charged with auditing LSAC’s compliance with

19 the Consent Decree “by first evaluating LSAC’s Reports” under the Decree “and then by

20 requesting access to additional information, such as LSAC data and personnel, and independently

21 observing LSAC’s operations, to the extent reasonable and deemed necessary by the ADA

22 Monitor in order to evaluate LSAC’s compliance.” Id. ¶ 25. Specifically, the Monitor was to

23 conduct audits one year, two years, and four years after the effective date of the Consent Decree

24 and provide written audit reports to the parties. Id. ¶¶ 25–26. The Consent Decree called for the

25 first audit to address LSAC’s reporting requirements, and the remaining audits to address both

26 reporting requirements “and LSAC’s implementation of the Best Practices” established by the

27 Panel. Id. ¶ 25.

28

On July 28, 2014—exactly sixty days after the effective date of the Consent Decree—

15

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1 LSAC reached out to DFEH and the United States to propose retaining Salome Heyward as the

2 ADA Monitor. Mew Decl. re Mot. to Exclude (dkt. 267-1) Ex. A. The United States and DFEH

3 were not familiar with Heyward and proposed Peter Blanck as an alternative. Id. Ex. B. The

4 parties spent months unsuccessfully trying to persuade each other that their respective nominees

5 were appropriate, and on November 19, 2014, LSAC proposed Arthur Coleman as an alternative.

6 See id. Exs. C, D. Coleman is an attorney who specializes in education policy and previously

7 served as Deputy Assistant Secretary of the U.S. Department of Education’s Office for Civil

8 Rights. Id. Ex. E. By May 4, 2015, the United States and DFEH had met with Coleman but

9 remained concerned that he lacked directly applicable experience as a monitor or working with

10 ADA issues, and continued to propose appointing Blanck. Id. Ex. F. LSAC objected to Blanck’s

11 involvement with an organization that criticized LSAC’s policies for accommodating disabilities.

12 Id. Ex. G. DFEH and the United States ultimately agreed to appoint Coleman as monitor on the

13 condition that LSAC fund additional staff to help him perform his duties, including analyzing

14 voluminous spreadsheet data, and LSAC agreed to do so to the extent Coleman determined such

15 support was necessary. Id. Exs. H, I; Carrasco Decl. ¶¶ 12–13. The United States did not confirm

16 its and DFEH’s agreement to those terms until June 19, 2015, Mew Decl. re Mot. to Exclude Ex.

17 J, and Coleman was not retained as Monitor until October of 2015—well over a year after the

18 sixty-day deadline by which a monitor was supposed to be selected. See Carrasco Decl. ¶ 14 &

19 Ex. 3.

20

Due to the delay in appointing Coleman as ADA Monitor, the parties did not initially ask

21 him to complete the first audit contemplated under the Consent Decree, assessing LSAC’s

22 compliance with its reporting requirements during the first year of the Decree. See Mew Decl. re

23 Mot. to Exclude Ex. L. On April 13, 2016, the parties requested that Coleman complete the first

24 audit and suggested that he prepare a report by May 1, 2016. Id. Coleman responded that he

25 intended to complete the report by the end of May, but did not meet that deadline. Carrasco Decl.

26 ¶ 16 & Ex. 5. On June 8, 2016, Coleman informed the parties that he expected to send the report

27 near the end of June. Id. On July 22, 2016, the United States and DFEH requested a status update

28 from Coleman on the report for the one-year audit, and suggested a deadline of September 30, 16

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1 2016 for Coleman’s two-year report, which was to evaluate LSAC’s compliance through May of

2 that year. Id. Coleman provided a draft report combining the subject matter of the one-year and

3 two-year audits to DFEH and the United States on October 6, 2016. Id. ¶ 17 & Exs. 5, 7.

4 Plaintiffs informed Coleman of concerns that they had with the report by telephone on October 14,

5 2016 and by email on October 28, 2016, including a redline of the draft report with comments and

6 questions from DFEH and the United States. Id. ¶¶ 17–18 & Ex. 5. Coleman acknowledged

7 Plaintiffs’ email on November 2, 2016 and provided a final report on February 16, 2017. Id. ¶ 20

8 & Exs. 5, 9.

9

Coleman’s final report found LSAC to be in substantial compliance with the topics of the

10 Consent Decree and the Panel’s Report that he was called upon to evaluate. Id. Ex. 9. A footnote

11 addressing one of the concerns raised by DFEH and the United States reads as follows:

12

Counsel for plaintiffs complains that the Monitor did not analyze

[LSAC’s] data reports. To the contrary, the Monitor reviewed the

13

reports submitted, and relied on a distillation of fields from the

massive data runs from the LSAC to inform conclusions. Nothing in

14

the Decree requires more. (And, notably, any argument that it did

would seem to call into question the Monitor’s ability even to rely on

15

actual data entries in the report.) With clear evidence of rigorous

protocols and faithful adherence to the Order’s9 requirements, the

16

Monitor made a judgment that [a] nothing more was required by the

Decree; and [b] “going behind the numbers” would be unnecessarily

17

burdensome and unwarranted. In addition, despite a request from the

Monitor that counsel for plaintiffs provide their data analysis

18

(represented as inconsistent with the Monitor’s report, but without

providing detail), no information was forthcoming. If that information

19

and analysis is provided, the Monitor will attempt to reconcile any

discrepancies with a supplemental analysis and report. 20

21 Id. Ex. 9 at 5 n.6 (brackets on “[a]” and “[b]” in original). Coleman addressed other concerns

22 raised by DFEH and the United States in an appendix, generally concluding that Plaintiffs’

23 requests fell outside the scope of his mandate under the Consent Decree. Id. at 13–14. Coleman’s

24 report did not discuss most of the practices at issue in the present motion, including LSAC’s use of

25 “50% emails” and its use of the “no decision” designation for requests lacking sufficient

26

27

28

9 Coleman’s report defines the term “Order” as referring to the Court’s August 2015 order on LSAC’s appeal from the Panel’s Report. See Carrasco Decl. Ex. 9 at 1.

17

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1 documentation. See generally id.10

2

F. The Parties’ Present Arguments

3

1. DFEH’s Motion for Contempt or to Modify the Consent Decree

4

DFEH moves for an order holding LSAC in contempt, generally focusing on LSAC’s use

5 of “50% emails” and “no decision” reports. See generally Contempt Mot. According to DFEH,

6 the “50% emails” violate the Consent Decree’s requirement that LSAC automatically grant

7 accommodations that candidates previously received on certain other tests “without further inquiry

8 or request for additional documentation,” because although LSAC’s emails indicated that it would

9 be willing to grant those accommodations, LSAC required candidates to revise their requests and

10 forego additional accommodations as a condition of receiving the accommodations to which they

11 should have been entitled automatically. Id. at 3–4. Similarly, DFEH argues that LSAC violated

12 the Panel’s requirement that it presumptively grant certain accommodations if supported by

13 specific documentation, again because LSAC conditioned those accommodations on candidates

14 revising their requests. Id. at 4, 6. DFEH also contends that LSAC violated the Panel’s

15 requirements that it provide multiple levels of internal and external review before denying

16 accommodations, and an opportunity to appeal after denial, because LSAC did not provide such

17 review or opportunity when it induced candidates to revise their requests through “50% emails” or

18 where it classified a request as “no decision” for purportedly insufficient documentation. Id. at 4–

19 5, 8–9. According to DFEH, the “50% emails” and “no decision” classifications violated LSAC’s

20 obligations to provide clear explanations of any denials and of any need for additional

21 documentation, and to engage in “cooperative and interactive communication.” Id. at 5–6, 7–8.

22 Finally, DFEH argues that LSAC violated requirements related to reporting, recordkeeping, and

23 access by classifying requests as “no decision” or, after a candidate acquiesced to a “50% email,”

24 “granted in full,” by using white-out to alter internal forms, and by denying DFEH access to files

25

26 10 In a footnote, Coleman explained that the total number of requests he reported as having been

27

denied in full on the merits “does not include denials due to non-registration or late requests following established deadlines.” Carrasco Decl. Ex. 9 at 8 n.8. He did not address a question in

28

Plaintiffs’ redline of the draft report as to whether those categories were “the only types of denials not ‘based on the merits.’” See id. Ex. 8 at 7.

18

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1 that LSAC had reported as “granted in full” even after DFEH limited its request to ten such files,

2 among other conduct. Id. at 9–11.

3

DFEH contends that the Monitor failed to fulfill his duties, arguing that he improperly

4 consolidated the first and second reports called for by the Consent Decree, that his report was

5 conclusory and failed to address concerns that Plaintiffs raised regarding a preliminary draft, that

6 he was wrong to conclude that “going behind the numbers would be unnecessarily burdensome

7 and unwarranted,” and that he failed to discuss LSAC’s use of “50% emails” and the “no

8 decision” category. Id. at 11–13. DFEH also takes issue with the Monitor’s failure to identify

9 what DFEH characterizes as an increased length of the test (i.e., the use of the experimental

10 section) for people with additional time accommodations, as well as the Monitor’s designation of

11 his report as “confidential” and the lack of specificity in his billing records. Id. at 13.

12

According to DFEH, the Consent Decree, the Panel’s Report, and this Court’s previous

13 order on LSAC’s appeal all “constitute clear and definite orders of the Court” subject to

14 enforcement through civil contempt. Id. at 18. DFEH contends that because it has identified

15 violations by LSAC, the burden shifts to LSAC to “prove that it took all reasonable steps within

16 its power to insure compliance,” and LSAC cannot do so Id. at 18, 20–21 (citation and internal

17 quotation marks omitted). As relief, DFEH asks the Court to extend the term of the Consent

18 Decree by two years, replace the ADA Monitor, and grant both DFEH and the United States an

19 additional fifteen days of access to LSAC’s documents—a significant increase over the five days

20 of access originally provided under the Consent Decree. Id. at 21–23. In support of its request to

21 replace the Monitor, DFEH relies on a case where the parties’ settlement agreement had not

22 originally called for a monitor, but the court appointed a monitor as part of its order holding the

23 defendant in contempt for noncompliance with the settlement agreement, which was incorporated

24 by the court’s order of dismissal. Id. at 22 (citing Kelly v. Wengler, 979 F. Supp. 2d 1104, 1116

25 (D. Idaho 2013), aff’d, 822 F.3d 1085 (9th Cir. 2016)).

26

In the alternative, DFEH seeks the same relief under Rule 60(b) of the Federal Rules of

27 Civil Procedure, specifically subdivisions (b)(5) and (b)(6), which permit a court to grant relief

28 from an order or judgment where “‘applying [the judgment] prospectively is no longer equitable’” 19

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1 or “‘any other reason . . . justifies relief,’” respectively. Id. at 23–24 (quoting Fed. R. Civ. P.

2 60(b)) (first alteration in original). DFEH also argues that any relief granted should be applied on

3 a nationwide basis, and that DFEH should recover its attorneys’ fees and costs. Id. at 24–25.

4

2. Amicus Brief

5

A number of interested organizations and individuals filed an amicus brief in support of

6 DFEH’s motion for contempt. See Amicus Br. (dkt. 258-1). Amici argue that LSAC “has a long

7 history of disability discrimination” resulting in a denial of equal access to the LSAT and ongoing

8 adverse effects, including where state bar examiners base decisions regarding accommodations for

9 the bar exam on the accommodations that a candidate received for the LSAT. Id. at 2–5.

10 According to amici, LSAC’s use of “50% emails” represented not only a violation of the Consent

11 Decree, but also “a deliberate ‘end run’ around” the ADA. Id. at 5–8. Amici contend that

12 nationwide relief would serve the public interest. Id. at 8.

13

3. LSAC’s Opposition

14

LSAC asserts that “DFEH’s motion seeks to punish a non-profit entity that has already

15 been punished to a degree that finds no parallel in the history of the U.S. Department of Justice’s

16 enforcement of the ADA or DFEH’s enforcement of the Unruh Act,” arguing that the

17 requirements imposed by the Consent Decree and the Panel “far exceed industry norms,” “are not

18 evidence-based,” and “are unworkable.” Opp’n to Contempt (dkt. 268) at 2, 4. LSAC notes that it

19 has spent millions of dollars settling claims and complying with the Consent Decree, and argues

20 that any “further nationwide obligations . . . should happen only as the result of a notice-and-

21 comment rulemaking that produces reasonable standards that apply to all testing entities.” Id. at 2;

22 see also id. at 25–26 (listing the payments and policy changes that LSAC has made in response to

23 the Decree). LSAC contends that DFEH’s motion should be denied “[b]ecause LSAC has

24 substantially complied with all of its obligations over the years in which the Decree has been in

25 effect and has voluntarily addressed DFEH’s core concerns.” Id. at 2–3. According to LSAC, it

26 “had to establish” the procedures that DFEH now challenges in order to “allow the

27 accommodation process to function in an environment of ever-increasing numbers of requests, in a

28 manner consistent with the Decree and the panel’s recommendations.” Id. at 5. 20

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1

LSAC concedes that it sent “50% emails” beginning with the February 2016

2 administration of the LSAT and ending with the December 2017 test. Id. at 9 & n.9, 11–12.

3 LSAC argues, however, that DFEH’s contention that candidates felt pressured by those emails “is

4 not supported by the broader universe of communications that LSAC received in response to 50%

5 emails,” and that candidates who accepted LSAC’s proposals to revise their requests “often

6 thank[ed] LSAC for its communication.” Id. at 10. LSAC also argues that it did not attempt to

7 hide its use of “50% emails,” but that its “accommodations personnel . . . often use white-out to

8 make changes on the tracking forms,” and that updating forms to show that candidates had revised

9 their requests after receiving “50% emails” was necessary to “ensure[] that the tracking form had

10 updated and accurate information when it was used by staff members to enter data required to be

11 reported under the Decree”—apparently working under the assumption that where a candidate

12 accepted to lesser accommodations offered in a “50% email,” the appropriate data to report was

13 that the request had been granted in full. See id. at 11.

14

LSAC raises a number of arguments why DFEH’s motion for contempt should be denied.

15 Perhaps most broadly, LSAC argues that imposing sanctions here would not serve either of the

16 two purposes of civil contempt—coercing compliance or compensating loss—because LSAC has

17 already ceased using “50% emails” and DFEH has not sustained any cognizable loss. Id. at 16–

18 17. LSAC also contends that because the Panel’s Report was neither itself a court order nor “clear

19 enough . . . to support a finding that LSAC violated any ‘specific and definite’ requirements,” the

20 Report and this Court’s previous order interpreting it provide no basis for contempt, and the Court

21 must look only to the requirements of the Consent Decree itself, although LSAC also argues that

22 even if the Court considers the Report, LSAC has not violated the Panel’s requirements. See id. at

23 17–18 (quoting Gates v Shinn, 98 F.3d 463, 468–69 (9th Cir. 1996), for the proposition that

24 consent must rest on violation of specific directives “‘within the four corners of the consent

25 decree’”).

26

With respect to candidates entitled under Paragraph 5(a) of the Consent Decree to

27 accommodations previously granted on other tests, LSAC argues that although it “did not use the

28 word ‘granted’ in its [50%] emails,” its statements that it was prepared to approve those 21

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1 accommodations complied with the Consent Decree, because LSAC did not request additional

2 documentation or support for the previously-granted accommodations, but instead merely asked

3 whether the candidates wished to submit additional documentation to pursue other requested

4 accommodations not subject to that section of the Decree. Id. at 18–19.

5

As for other candidates who received “50% emails,” LSAC contends that the emails did

6 not violate the Panel’s requirement to presumptively grant certain requests because LSAC only

7 used those emails when candidates did not provide the documentation that the Panel determined

8 was necessary to support such a presumption. Id. at 19. LSAC asserts, without citation to

9 evidence, that the “50% emails” did not violate the Panel’s requirement for multiple levels of

10 review before denials because “the emails make clear that they reflected LSAC’s ‘preliminary’

11 determination, not a final decision by LSAC staff,” and “[w]hen a final decision was subsequently

12 made, candidates retained their appeal rights.” Id. at 20. LSAC also argues that the emails did not

13 violate the requirement to engage in cooperative and interactive communication—according to

14 LSAC, the emails constitute such communication—nor the recommendation that LSAC not

15 attempt to alter requested accommodations, because LSAC merely informed candidates which

16 portions of their requests were sufficiently supported by documentation and which were not. Id.

17

LSAC contends that it appropriately designated certain requests as “no decision” where:

18 “(a) the request was received after the deadline; (b) the candidate had not registered for the test; or

19 (c) the request lacked the necessary baseline documentation.” Id. at 20–21. According to LSAC,

20 the Panel had no authority to (and did not purport to) address LSAC’s reporting requirements, and

21 the Consent Decree provides only that LSAC must “track ‘whether’ a request was ‘granted in full

22 or denied in full or denied in part,’” with no requirement that those are the only possible outcomes

23 for a request. Id. at 21. LSAC argues that “no decision” is accurate where “a request was neither

24 granted [n]or denied.” Id. LSAC asserts that after Plaintiffs objected to LSAC having left fields

25 blank for such candidates on its early reports, LSAC began using the “no decision” designation in

26 subsequent reports, and Plaintiffs “raised no further objection to this practice for almost two

27 years.” Id. at 21–22.

28

LSAC argues that the other reporting practices that DFEH challenges were also proper. Id.

22

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1 at 22–23. It contends that it did not need to report “50% emails” as requests for “additional”

2 documentation under Paragraph 8(a)(j) of the Consent Decree because it permissibly interpreted

3 that requirement as applying only where a candidate “fulfilled his or her threshold documentation

4 requirements under the Decree and [Panel] recommendations” and LSAC nevertheless requested

5 more documentation—not where LSAC determined that a candidate failed to meet the “threshold”

6 requirements. Id. at 22. LSAC also contends that it quickly remedied an “oversight” where it

7 failed to report the names of outside consultants, that it permissibly reported its Manager of

8 Accommodated Testing, Kim Dempsey, as the “individual who made a substantive decision

9 whether to grant or deny each request,” and that it has nevertheless changed its practices to

10 conform to DFEH’s interpretation of the reporting requirements. Id. at 22–23.

11

With respect to DFEH’s access to records, LSAC objects to DFEH’s implication that

12 reviewing files at LSAC’s office was an undue burden or a compromise by DFEH, noting that the

13 Consent Decree specifically calls for files to be made available at LSAC’s office. Id. at 23–24.

14 LSAC also asserts that although it initially declined to provide access to files for requests granted

15 in full, it subsequently “provided DFEH with copies of ‘granted in full’ files that [DFEH]

16 requested following [DFEH’s] visit to LSAC.” Id. at 24 (citing Mew Decl. re Contempt ¶ 31).

17 LSAC notes that it provided one candidate file including a “50% email” to DFEH several months

18 before DFEH visited LSAC’s office, which, LSAC argues, negates DFEH’s accusation that it

19 concealed files in bad faith, and that LSAC has since offered to allow DFEH to review additional

20 candidates’ files at LSAC’s office. Id. at 24–25.

21

LSAC also addresses DFEH’s request to modify the Consent Decree under Rule 60(b),

22 arguing that extension of the Decree would be inequitable in light of LSAC’s view that the Panel’s

23 prescriptions are unworkable and ill-advised, and because LSAC has complied with many of the

24 Decree’s requirements. Id. at 26–28. Finally, LSAC argues that the Monitor should not be

25 removed because he has fulfilled his duties under the Decree and because the Decree provides no

26 mechanism for any party to challenge, remove, or replace the Monitor. Id. at 28–30.

27

4. DFEH’s Reply

28

DFEH argues that the Panel’s Report is enforceable by contempt, citing decisions where a

23

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1 consent decree specifically incorporated a settlement agreement or other plan of action. Reply re

2 Contempt (dkt. 271) at 3. DFEH asserts that it clearly described LSAC’s violations of the Decree

3 and Report in its motion, and argues that even if LSAC had since brought its procedures into

4 compliance (which DFEH disputes), contempt would still be appropriate in light of past violations.

5 Id. at 3–6.

6

According to DFEH, LSAC’s contention that the Panel’s Report is “unworkable” rings

7 hollow in light of the small number of external reviews and appeals that LSAC has actually

8 conducted, as well as LSAC’s report that it encountered “‘no unanticipated difficulties associated

9 with implementation of the Consent Decree that warrant reporting.’” Id. at 6–7 (quoting Carrasco

10 Reply Decl. ¶ 59). DFEH contends that, if LSAC truly believed the requirements unworkable,

11 LSAC could have sought a stipulation from Plaintiffs or reconvened the Panel pursuant to

12 Paragraph 7(d)(vi) of the Consent Decree to request modification of those requirements. Id. at 14.

13 DFEH characterizes the increased number of requests for accommodation as indicating “that test-

14 takers with disabilities are no longer deterred from requesting accommodations.” Id. at 6 n.6.

15

DFEH reiterates its contentions regarding the “50% emails,” arguing that the Consent

16 Decree did not authorize “preliminary” decisions as part of “a two-tiered system for providing

17 candidates with appellate rights,” and that the issues related to those emails “go[] right to the core

18 of the Consent Decree and order” because “LSAC has essentially reestablished the status quo,

19 enabling its staff to impose documentation requirements with no ready means for students to

20 challenge these decisions.” Id. at 8. DFEH asserts that LSAC’s failure to offer an appeal when it

21 sent a “50% email” explains why LSAC has processed a total of only eight appeals in the years

22 since it purported to implement the Panel’s Report. Id. at 9. DFEH also disputes LSAC’s

23 characterization of the “50% emails” as collaborative communication that merely stated which

24 accommodations a candidate had sufficiently justified, arguing that candidates felt pressured by

25 the emails and that the language therein calling for candidates to “revise [their] request[s]”

26 constitutes an impermissible effort to alter candidates’ requests. Id. at 11–12. DFEH contends

27 that LSAC “does not attempt to defend” its practice of reporting requests as “granted in full” when

28 candidates accepted the option of revising their requests in response to “50% emails.” Id. at 12. 24

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1

Contrary to LSAC’s contention that it “provided DFEH with copies of ‘granted in full’

2 files that [DFEH] requested,” see Opp’n to Contempt at 24, DFEH argues that LSAC provided

3 only a single file to DFEH that LSAC had reported as “granted in full.” Reply re Contempt at 13

4 (citing Carrasco Reply Decl. ¶ 60). DFEH also contends that LSAC’s earlier provision of a single

5 candidate file including a “50% email” did not provide any basis for DFEH to discover that LSAC

6 had sent such emails as part of a widespread practice before DFEH inspected LSAC’s files in

7 Pennsylvania. Id.

8

As in its motion, DFEH requests that the Decree be extended for two years, that the

9 Monitor be replaced, and that DFEH be granted fifteen days of access to LSAC’s nationwide

10 records and recover its costs and fees. Id. at 17–19. Although DFEH initially requested

11 reimbursement of airfare for its attorneys who visited LSAC’s headquarters, DFEH withdraws that

12 request in its reply. Id. at 18–19. It is not entirely clear whether DFEH intends to forego recovery

13 of that expense entirely, or whether DFEH merely withdraws its request for the Court to order that

14 specific recovery and intends to include airfare in its discussion of costs and fees with LSAC if the

15 motion is successful. See id.

16

5. LSAC’s Supplemental Brief

17

Following the hearing, LSAC filed an unsolicited and unauthorized supplemental brief

18 asking the Court to deny DFEH’s motion, or in the alternative, to base relief only on Rule 60(b)

19 rather than holding LSAC in contempt. See generally Supp’l Br. (dkt. 275). The brief and

20 supplemental evidence submitted therewith demonstrate that the practices at issue affected a

21 significant number of people: approximately 859 candidates received “50% emails,” and of the

22 subset of requests submitted for the June 2015 through September 2017 LSAT administrations,

23 approximately 1,756 were classified as “no decision,” nearly half of which received that

24 designation because LSAC concluded that they lacked sufficient documentation. Id. at 4–6 & Ex.

25 2 ¶¶ 3, 5. Assuming for the sake of argument that this untimely submission should be taken into

26 account, it does not alter the Court’s conclusions. DFEH’s administrative motion to strike the

27 supplemental brief (dkt. 276) is therefore DENIED as moot.

28 25

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1

6. DFEH’s Motion in Limine and Related Briefing

2

DFEH argues that ADA Monitor Arthur Coleman’s report should be considered only for

3 the purpose of finding him incompetent to continue as monitor and not for the purpose of

4 evaluating LSAC’s compliance, on the basis that Coleman “refused to go ‘beyond the numbers’

5 because it ‘would be unnecessarily burdensome and unwarranted.’” Mot. to Exclude at 1.

6 According to Peter Blanck, an expert witness retained by DFEH (and, incidentally, DFEH’s initial

7 choice to serve as the Monitor), the Monitor’s report “‘lacks basic validity and reliability, and

8 therefore, fails to assist the Court and the Plaintiffs to meaningfully evaluate LSAC’s compliance

9 with the Consent Decree.’” Id. at 4 (quoting Blanck Decl. (dkt. 249-3) ¶ 48). DFEH relies on

10 Blanck’s conclusions that Coleman failed to explain his methodology, relied on data selected and

11 provided by LSAC, and apparently failed to investigate sufficiently whether LSAC complied with

12 certain requirements of the Panel Report. Id. at 6–9. DFEH therefore argues that Coleman’s

13 report fails to meet both the relevance and reliability prongs of the test for expert testimony under

14 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), in part because Coleman’s

15 report does not discuss the purported violations at issue in DFEH’s present motion. Mot. to

16 Exclude at 9–14.

17

LSAC contends that it is “absurd” for DFEH to request that “the Court not . . . consider the

18 analysis and opinions of the very person who DFEH agreed would review LSAC’s compliance

19 with the Decree and then prepare a report for DOJ, DFEH, and the Court.” Opp’n to Mot. to

20 Exclude (dkt. 267) at 1. According to LSAC, the Consent Decree does not require the Monitor to

21 explain his methodology and grants the Monitor discretion as to what materials to review beyond

22 LSAC’s reports, and the Monitor properly reviewed “‘an appropriate cross-section of files’”

23 produced by LSAC. Id. at 5–6 (quoting the Monitor’s report).11 LSAC also argues that the

24

25

11 LSAC takes the opportunity in its brief on this issue to revisit its critique of the Panel’s Report, arguing that “if DFEH had been as concerned about the quality and integrity of the report of the

26

‘best practices’ panel as it purports to be about the Monitor’s report, the parties would likely not be before the Court today because LSAC would not have found itself trying to implement such a

27

poorly drafted and non-evidence based set of procedural requirements.” Opp’n to Mot. to Exclude at 6–7. The merits of the Panel’s decisions have no bearing on the motion to exclude the

28 Monitor’s conclusions.

26

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1 Daubert standard is not applicable here because the Monitor is not an expert witness retained by a

2 party and DFEH has cited no authority applying that standard to an independent monitor

3 appointed with the consent of both parties. Id. at 7–8. Finally, LSAC contends that it would be

4 prejudicial to exclude the Monitor’s conclusions after LSAC devoted substantial resources to

5 appointing and cooperating with the Monitor pursuant to the parties’ settlement agreement as

6 memorialized in the Consent Decree, and LSAC relied on the Monitor’s conclusions that LSAC

7 had substantially complied with the Decree. Id. at 8–9.

8

DFEH renews its arguments in its reply that the Daubert standard is appropriate here and

9 that Coleman did not fulfill his obligation as Monitor to audit LSAC’s compliance because his

10 review lacked methodological rigor, as evidenced by the Monitor’s failure to detect or discuss

11 LSAC’s use of “50% emails” and other purported violations. See generally Reply re Mot. to

12 Exclude (dkt. 272). DFEH’s position remains that the “Monitor’s Report should only be relied

13 upon for the purpose of addressing Mr. Coleman’s removal as ADA Monitor.” Id. at 6.

14 III. ANALYSIS

15

A. Legal Standards

16

1. Interpretation of a Consent Decree

17

“A consent decree, which has attributes of a contract and a judicial act, is construed with

18 reference to ordinary contract principles.” Nehmer v. U.S. Dep’t of Veterans Affairs, 494 F.3d

19 846, 861 (9th Cir. 2007) (quoting City of Las Vegas v. Clark County, 755 F.2d 697, 702 (9th Cir.

20 1985)). The Supreme Court has set forth the applicable standard as follows:

21

Consent decrees are entered into by parties to a case after careful

negotiation has produced agreement on their precise terms. The

22

parties waive their right to litigate the issues involved in the case and

thus save themselves the time, expense, and inevitable risk of

23

litigation. Naturally, the agreement reached normally embodies a

compromise; in exchange for the saving of cost and elimination of

24

risk, the parties each give up something they might have won had they

proceeded with the litigation. Thus the decree itself cannot be said to

25

have a purpose; rather the parties have purposes, generally opposed

to each other, and the resultant decree embodies as much of those

26

opposing purposes as the respective parties have the bargaining power

and skill to achieve. For these reasons, the scope of a consent decree

27

must be discerned within its four comers, and not by reference to what

might satisfy the purposes of one of the parties to it. Because the

28

defendant has, by the decree, waived his right to litigate the issues

27

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1

raised, a right guaranteed to him by the Due Process Clause, the

conditions upon which he has given that waiver must be respected,

2

and the instrument must be construed as it is written, and not as it

might have been written had the plaintiff established his factual

3

claims and legal theories in litigation.

4 United States v. Armour & Co., 402 U.S. 673, 681–82 (1971). Accordingly, arguments that

5 “would have great force if addressed to a court that had the responsibility for formulating original

6 relief in this case, after the factual and legal issues raised by the pleadings had been litigated,” may

7 nevertheless be “out of place” in “deal[ing] with the construction of an existing consent decree.”

8 Id. at 681.

9

2. Civil Contempt

10

“‘Civil contempt . . . consists of a party’s disobedience to a specific and definite court

11 order by failure to take all reasonable steps within the party’s power to comply.’” Inst. of

12 Cetacean Research v. Sea Shepherd Conservation Soc’y, 774 F.3d 935, 945 (9th Cir. 2014)

13 (quoting In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th Cir.

14 1993)). The moving party bears the burden of showing the contemnor’s noncompliance by clear

15 and convincing evidence. FTC v. Affordable Media, 179 F.3d 1228, 1239 (9th Cir. 1999). The

16 court may exercise its civil contempt power for one or both of two purposes: “to coerce the

17 defendant into compliance with the court’s order, and to compensate the complainant for losses

18 sustained.” United States v. United Mine Workers of Am., 330 U.S. 258, 303–304 (1947). “The

19 measure of the court’s power in civil contempt is determined by the requirements of full remedial

20 relief.” McComb v. Jacksonville Paper Co., 336 U.S. 187, 193 (1949).

21

A party may be held in contempt even if its conduct was not willful,12 Reno Air Racing

22 Ass’n v. McCord, 452 F.3d 1156, 1130 (9th Cir. 2006), and “there is no good faith exception to the

23 requirement of obedience to a court order,” Dual-Deck Video, 10 F.3d at 695, but substantial

24 compliance can serve as a defense, Balla v. Idaho State Bd. of Corr., 869 F.2d 461, 466 (9th Cir.

25 1989). The Ninth Circuit has in some cases placed the burden on the movant to “establish ‘(1) that

26

27

12 LSAC’s belated argument that any relief the Court is inclined to grant should be granted under Rule 60(b) rather than as a remedy for contempt because a “finding of civil contempt suggests that

28

LSAC willfully violated a court order” misstates the law. See Supp’l Br. at 7. The Court does not reach the question of whether LSAC’s violations were willful.

28

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1 [the respondent] violated the court order, (2) beyond substantial compliance, (3) not based on a

2 good faith and reasonable interpretation of the order, (4) by clear and convincing evidence.’”

3 Labor/Cmty. Strategy Ctr. v. L.A. Cty. Metro. Transp. Auth., 564 F.3d 1115, 1123 (9th Cir. 2009)

4 (quoting Dual-Deck Video, 10 F.3d at 695); see also id. at 1121 (“BRU must demonstrate that

5 MTA failed to substantially comply with the decree in order to justify its extension.”). In other

6 cases, the Ninth Circuit has placed the burden on the respondent as to at least one issue, stating

7 that “contemnor in violation of a court order may avoid a finding of civil contempt only by

8 showing it took all reasonable steps to comply with the order.” Kelly v. Wengler, 822 F.3d 1085,

9 1096 (9th Cir. 2016) (citing Sea Shepherd, 774 F.3d at 945); see also Hook v. Ariz. Dep’t of Corr.,

10 107 F.3d 1397, 1403 (9th Cir. 1997). While it is tempting to simply separate the issues—placing

11 the burden on the movant to show a lack of substantial compliance, and then on the respondent to

12 justify any such noncompliance by showing that it took all reasonable steps to comply—Ninth

13 Circuit authority suggests that the two issues are more interrelated, and reasonable efforts are in

14 fact a necessary component of substantial compliance. See Dual-Deck Video, 10 F.3d at 695

15 (“‘Substantial compliance’ with the court order is a defense to civil contempt, and is not vitiated

16 by ‘a few technical violations’ where every reasonable effort has been made to comply.” (citations

17 omitted)).

18

“When a party does not appeal an injunction and is later held in contempt for violating that

19 same injunction, [it] may not challenge the merits of the underlying injunction in a contempt

20 proceeding, subject only to the exceptions” permitting a party to challenge an order through

21 noncompliance as recognized “in fairly narrow circumstances, such as when the order was

22 ‘transparently invalid or had only a frivolous pretense to validity,’ . . . or if there has been a

23 judicial declaration of its unconstitutionality in other proceedings.” Irwin v. Mascott, 370 F.3d

24 924, 931 (9th Cir. 2004) (quoting Walker v. City of Birmingham, 388 U.S. 307, 315 (1967)).

25 Because such circumstances are not present here, the Court does not reconsider the validity of the

26 Consent Decree or the merits of its previous decision regarding the Panel’s Report.

27

3. Rule 60(b)

28

In relevant part, Rule 60(b) of the Federal Rules of Civil Procedure permits a court to grant

29

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1 relief from terms of a judgment where “applying it prospectively is no longer equitable” or “any

2 other reason . . . justifies relief.” Fed. R. Civ. P. 60(b)(5), (6). The catch-all provision of Rule

3 60(b)(6) “is to be ‘used sparingly as an equitable remedy to prevent manifest injustice and is to be

4 utilized only where extraordinary circumstances prevented a party from taking timely action to

5 prevent or correct an erroneous judgment.’” Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008)

6 (quoting Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d 1097, 1103 (9th Cir. 2006)). Despite

7 the extraordinary nature of such relief, altering judgment under Rule 60(b) can be appropriate in

8 response to changed circumstances—indeed, although codified in the Rule, such authority falls

9 within a court’s inherent power—and “[u]nder well established law, substantial violation of a

10 court order constitutes a significant change in factual circumstances” that can justify Rule 60(b)

11 relief. Kelly, 822 F.3d at 1098. “[M]odification of a court order is ‘suitably tailored to the

12 changed circumstance’ when it ‘would return both parties as nearly as possible to where they

13 would have been absent’ the changed circumstances,” and extending the term of a consent decree

14 by the amount of time that a party failed to comply with the decree meets that standard. Id. at

15 1097–98 (quoting Pigford v. Veneman, 292 F.3d 918, 927 (D.C. Cir. 2002)); see also

16 Labor/Cmty., 564 F.3d at 1120–21 (“The failure of substantial compliance with the terms of a

17 consent decree can qualify as a significant change in circumstances that would justify the decree’s

18 temporal extension.”).

19

B. DFEH’s Motion to Exclude the Monitor’s Conclusions Is Denied

20

While not relevant to the outcome, the Court agrees with LSAC that the Daubert standard

21 is not applicable to the Monitor’s conclusions. Where a settlement agreement calls for the

22 consideration of particular documents or evidence—here, the Monitor’s reports, which the

23 Consent Decree requires the Monitor to prepare in order to assist the Court and parties in

24 monitoring LSAC’s compliance—that agreement will be respected in evaluating compliance with

25 the agreement regardless of whether the documents at issue would otherwise be admissible under

26 the Federal Rules of Evidence. See CSL, L.L.C. v. Imperial Bldg. Prods., Inc., No. 05-15931,

27 2006 WL 679891, at *1 (9th Cir. Mar. 15, 2006). Applying the Consent Decree, the Court finds

28 no basis to exclude the Monitor’s conclusions as stated in his February 16, 2017 report, and 30

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1 DENIES DFEH’s motion to do so.

2

Nevertheless, the Monitor’s conclusions have no bearing on DFEH’s primary motion for

3 contempt or to alter the Consent Decree. The relevant facts underlying that motion are largely not

4 in dispute, and the Monitor did not address the practices at issue in his report. Although the

5 Monitor’s role under the Consent Decree is in part “to assist . . . the Court in evaluating LSAC’s

6 compliance,” nothing in the Consent Decree requires the Court to defer to the Monitor’s

7 conclusions as to whether LSAC has complied, and the Court finds the Monitor’s conclusions that

8 LSAC substantially complied with its obligations to be unpersuasive as applied to the conduct at

9 issue here, which the Monitor did not address and of which he might not even have been aware.

10

C. The Panel Report Is Enforceable by Contempt

11

LSAC is correct that the Panel’s Report is not a court order. Relying on the Ninth

12 Circuit’s decision in Gates, LSAC argues that the Report is therefore irrelevant to DFEH’s present

13 motion because any enforceable command must be found “‘within the four corners of the

14 decree.’” See Opp’n to Contempt at 17–18 (quoting Gates, 98 F.3d at 468).

15

In Gates, the administrators of a state medical facility for inmates drawn from throughout

16 the California prison system entered a consent decree requiring, in relevant part, “‘appropriate

17 psychiatric evaluation and treatment’ for prisoners.” Gates, 98 F.3d at 464 (quoting the consent

18 decree). “Pursuant to the consent decree, the [district] court had appointed a mediator nominated

19 by the defendants to develop institutional reforms in consultation with the prison officials, lawyers

20 for the plaintiff class, prison psychiatry experts, and others.” Id. at 465. When the prisoners

21 sought to hold the defendants in contempt for failure to provide adequate “outpatient”13

22 psychiatric care, the court directed the defendants to present a revised plan to the mediator, and the

23 mediator “suggested thirteen modifications” and recommended that the defendants be held in

24 contempt if they did not implement those modifications. Id. When the defendants refused to do

25 so, the court held them in contempt, on the basis that failure to adopt the mediator’s suggestions

26

27 13 As the Gates court noted, the term “outpatient” is unintuitive in the context of prisoners

28

incarcerated at a state medical facility. See Gates, 98 F.3d at 465 (“The prisoners are of course not ‘outpatients’ in the usual sense of the word. They do not get out.”).

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1 violated the consent decree’s requirement to provide “appropriate psychiatric evaluation and

2 treatment for all inmates.” Id. The Ninth Circuit reversed, holding that the “consent decree itself,

3 not merely the mediator’s subsequent directives, must command the prison officials to provide the

4 level of psychiatric care at issue,” id. at 468, and that the decree’s standard of “appropriate

5 psychiatric treatment” was not sufficiently specific to compel compliance with the mediator’s

6 more specific directives, id. at 471–72. The Ninth Circuit noted that it had previously affirmed a

7 finding of contempt based on the same operative language, but held that the fact that “reasonable

8 minds can and do differ” as to the mediator’s recommendations distinguished the order at hand

9 from the earlier contempt order, where the “tactic” at issue—shooting incarcerated mental health

10 patients with rubber bullets to extract them from their cells—“was so clearly inappropriate.” Id. at

11 472 (distinguishing Gates v. Gomez, 60 F.3d 525 (9th Cir. 1995)).

12

DFEH argues that Gates is distinguishable because the Ninth Circuit held that the district

13 court could not impose contempt based on “a mediator’s interpretation of an undefined term,” as

14 opposed to the present case, where DFEH contends that “LSAC’s duty to implement the Best

15 Practices pursuant to the Consent Decree is clear beyond dispute.” Reply re Contempt at 3 n.3. In

16 contrast, DFEH cites cases addressing the enforceability of agreements and plans incorporated by

17 reference into consent decrees. Id. at 3 (citing, e.g., Nat’l Presto Indus., Inc. v. Dazey Corp., 107

18 F.3d 1576, 1583 (Fed. Cir. 1997); Emma C. v. Eastin, No. C96-4179 TEH, 2001 WL 1180636, at

19 *3 (N.D. Cal. Oct. 4, 2001)); Contempt Mot. at 18–19 (same).

20

Neither party’s authority is directly on point. As DFEH notes in its reply, there is no

21 indication that the defendants agreed as part of the consent decree in Gates to delegate

22 modification of any aspect of the facility’s procedures to the mediator. The focus by both the

23 district court and the Ninth Circuit in that case on whether the defendants violated their

24 commitment to provide “appropriate” treatment, as opposed to any commitment to comply with

25 the mediator’s determinations, suggests that the latter commitment was not a part of the decree.

26 On the other hand, the cases on which DFEH relies appear to address consent decrees

27 incorporating existing documents, as opposed to this case, where the Panel had not yet been

28 selected, much less issued its Report, at the time the parties entered the Consent Decree. See Nat’l 32

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1 Presto, 107 F.3d at 1582–83 (stating that courts may enforce settlement agreements through

2 contempt when an order or judgment incorporates the agreement and the court retains jurisdiction

3 to enforce it); Emma C., 2001 WL 1180636, at *3.14

4

The Court concludes that a party’s agreement, adopted by the Court as a consent decree, to

5 abide by a third party’s determinations on specified topics can be enforced through contempt.

6 Unlike the requirement to provide “appropriate” treatment in Gates, there is nothing unclear or

7 nonspecific about the Court’s order that “LSAC shall implement the Best Practices” established by

8 the Panel except to the extent that any such practices were successfully challenged as conflicting

9 with the Decree or applicable law. Consent Decree ¶ 7(d)(v). To the extent that enforcing such a

10 commitment might in some circumstances implicate due process concerns—an argument that

11 LSAC has not raised—such concerns are mitigated in this case, where LSAC had a role in

12 selecting the members of the Panel, id. ¶ 7(a), agreed to specific topics for the Panel to address, id.

13 ¶ 7(c), and retained a right to challenge directives that fell outside of the Panel’s authority or

14 conflicted with the parties’ agreement, id. ¶ 7(d)(iv); see generally Appeal Order. To the extent

15 that LSAC has failed to comply with the Panel’s Report (except to the extent invalidated by the

16 Court’s previous order), such failure is enforceable by contempt as a violation of the Consent

17 Decree’s clear order that “LSAC shall implement the Best Practices.” See Consent Decree

18 ¶ 7(d)(v); see also id. ¶ 7(b) (“It shall be the Panel’s duty to prepare a written report establishing

19 Best Practices . . . , all of which LSAC shall implement . . . .”).

20

While the Court concludes that LSAC’s failure to comply with the Panel’s Report, and

21 thus failure to comply with Paragraphs 7(b) and 7(d)(v) of the Consent Decree, can support a

22 finding of contempt, that conclusion is not essential to the outcome of DFEH’s motion. Even if

23 LSAC’s agreement to implement the practices set by the Panel were not enforceable by contempt,

24 violation of that agreement would still support relief under Rule 60(b), and LSAC’s violation of

25

26 14 In a third case cited by DFEH, “the settlement agreement was memorialized by the federal

27

district court in a final Consent Decree.” California v. Randtron, 284 F.3d 969, 972 (9th Cir. 2002). It is not entirely clear that the settlement agreement enforced in that case was a distinct

28

document from the consent decree. Regardless, there is no indication that the case involved enforcement of any requirements drafted after the entry of the decree.

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1 Paragraph 5(a) of the Consent Decree and the Decree’s recordkeeping and reporting requirements,

2 as discussed below, would also warrant both contempt and Rule 60(b) relief. In the interest of

3 reducing uncertainty going forward, based on the unforeseen circumstances of LSAC’s substantial

4 noncompliance with the Decree and the Panel’s Report discussed below, the Court hereby

5 modifies the Consent Decree to explicitly incorporate the Report, as modified by the Court’s

6 previous order.

7

D. LSAC Violated the Consent Decree

8

1. 50% Emails

9

LSAC’s routine use of “50% emails” violated at least one provision of the Consent Decree

10 as well as several provisions of the Panel’s Report, and thus the Consent Decree’s requirement

11 that LSAC implement the practices established therein.

12

Paragraph 5(a) of the Consent Decree requires LSAC to grant certain accommodations

13 previously provided on certain other standardized tests for postsecondary admission so long as a

14 candidate submits proof of approval of such accommodation and certifies that the candidate still

15 experiences the limitations that required such accommodation. Consent Decree ¶ 5(a). “Upon

16 receipt of such proof in accordance with LSAC’s established deadlines, without further inquiry or

17 request for additional documentation, LSAC shall grant those previously approved testing

18 accommodations.” Id. (emphasis added). Despite that clear and specific instruction, LSAC’s

19 Manager of Accommodated Testing concedes that when candidates requested some

20 accommodations that LSAC believed fell within Paragraph 5(a) and others that LSAC believed

21 did not, as was the case for “many” candidates, LSAC used “50% emails” to “reach out to

22 candidates” and give them “the option[s] of revising their requests to match the supporting

23 documentation, or to provide additional documentation or information to support the additional

24 requested accommodations.” Dempsey Decl. ¶¶ 56–58. In at least some cases, choosing the

25 second option would require deferring the request to a subsequent administration of the LSAT.

26 See, e.g., id. Ex. R (emails sent May 4, 2017 to a candidate from Richmond, Virginia and August

27 10, 2017 to a candidate from Greer, South Carolina). LSAC suggests that because it indicated that

28 it was “prepared to approve” candidates’ Paragraph 5(a) accommodations, it is not important that 34

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1 it “did not use the word ‘granted’ in its emails.” Opp’n to Contempt at 18. The distinction is not

2 merely semantic. At least some of the emails that LSAC sent specifically told candidates that they

3 would not receive “ANY accommodations” if they did not choose one of the two options

4 presented. Dempsey Decl. ¶ 62. At least one candidate, Michael Kallman, in fact received no

5 accommodations because he did not respond to LSAC’s inquiry in the manner that LSAC desired,

6 even though LSAC had determined that he was eligible for certain accommodations. Id. ¶¶ 97–99;

7 Kallman Decl. ¶¶ 7, 13 & Exs. A, B.15

8

Sending additional communications requiring candidates to take further substantive

9 action—either withdrawing portions of their requests or submitting additional documentation—in

10 order to receive accommodations falls within any reasonable reading of the phrase “further

11 inquiry” in Paragraph 5(a) of the Consent Decree. By routinely sending such “further inquiries” to

12 candidates eligible for accommodation under Paragraph 5(a), LSAC violated the Consent Decree.

13

LSAC’s use of “50% emails,” and more generally its handling of requests that it deemed to

14 be unsupported by sufficient documentation, also violated several requirements of the Panel’s

15 Report. Most notably, the Panel made clear that the procedures it imposed for denial of requests

16 “include situations where LSAC denies a testing accommodation request due to a lack of

17 documentation,” and that “[s]uch denials will be subject to the outside consultant review rules.”

18 Panel Report at 21 n.11. LSAC’s characterization of the “50% emails” as merely “‘preliminary’

19 determination[s]” and its unsupported assertion that “[w]hen a final decision was subsequently

20 made, candidates retained their appeal rights,” Opp’n to Contempt at 20, do not comport with the

21 record. If a candidate did not accept the options of either revising the request or submitting

22 additional documentation, or in some cases if LSAC otherwise determined that a candidate’s

23 submission lacked necessary documentation, LSAC did not conduct further internal or external

24 review or provide an opportunity to appeal, but instead simply provided no accommodation. See

25

26

15 Kallman does not appear to have been eligible for “automatic” approval under Paragraph 5(a). See Kallman Decl. ¶ 5 (listing the documents Kallman submitted in support of his request, which

27

did not include proof of previous accommodations on standardized tests for postsecondary admissions). His experience nevertheless supports the conclusion that LSAC meant what it said

28

when it told candidates, including those eligible for accommodation under Paragraph 5(a), that they would receive no accommodation if they did not accept one of the options offered.

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1 Kallman Decl. Ex. B; Campa Escorza Decl. Ex. F (indicating that LSAC was “unable to process”

2 a request missing a page of the “Candidate Form,” and that the candidate would therefore “test as

3 a standard test take [sic] for the December 2017 LSAT”). Despite LSAC’s insistence to the

4 contrary, such an outcome is indistinguishable from denying the candidate’s request: the candidate

5 requested certain accommodations, and LSAC declined to provide them.16

6

By effectively denying requests for accommodation without following the procedures set

7 by the Panel for internal review, external review, notification to the candidate of the decision and

8 of the opportunity to appeal, and external review of any appeal, LSAC routinely violated the

9 Consent Decree’s requirement that it “implement the Best Practices” imposed by the Panel.

10 Consent Decree ¶ 7(d)(v). The Court previously upheld the validity of those requirements, see

11 Appeal Order at 30–38, and they are sufficiently clear and specific to support a finding of

12 contempt, particularly in light of the Panel’s explicit statement that its procedures applied to

13 denials for lack of documentation, see Panel Report at 21 n.11. LSAC’s reporting of requests as

14 “granted in full” when candidates chose to “revise” their requests rather submit additional

15 documentation in response to “50% emails” also violated the Consent Decree, because by

16 informing candidates that portions of their requests would not be granted as submitted, and

17 providing no opportunity for further review or appeal of those decisions, LSAC effectively denied

18 those requests in part. See Consent Decree ¶ 8(a)(k) (requiring LSAC to track and report its

19 decisions on requests).17

20

21

22

16 The only applicable definition of “deny” in Merriam-Webster’s online dictionary is “to refuse to grant.” See Deny, Merriam-Webster, https://www.merriam-webster.com/dictionary/deny

23

(accessed February 20, 2018). Black’s Law Dictionary similarly defines “denial” as a “refusal or rejection.” Denial, Black’s Law Dictionary, (9th ed. 2009). Both definitions encompass LSAC’s

24

refusal to provide accommodations under the circumstances at issue. 17 It is perhaps a closer question whether the “50% emails” violated the Panel’s requirements that

25

LSAC presumptively grant certain requests, see Panel Report at 16–17, “engage in cooperative and interactive communication,” id. at 15, refrain from “attempt[ing] to alter [a] request for an

26

extended time testing accommodation,” id. at 19–20, and provide a “clear written explanation” of its decisions, id. at 21, as well as whether such requirements are sufficiently clear and specific to

27

support a finding of contempt on this record. Although the Court has concerns regarding LSAC’s compliance with those requirements, the Court need not and does not reach those questions to

28

grant the relief awarded herein, nor would those violations entitle DFEH to any further relief than granted herein.

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1

2. “No Decision” Reporting

2

The Consent Decree requires LSAC to track and report, “for each accommodation

3 requested, whether the request was granted in full or denied in full or denied in part.” Consent

4 Decree ¶ 8(a)(k). LSAC initially left that field blank for certain requests, and after Plaintiffs

5 objected to that practice, began reporting certain requests as “no decision,” in particular where

6 “(a) the request was received after the deadline; (b) the candidate had not registered for the test; or

7 (c) the request lacked the necessary baseline documentation.” Opp’n to Contempt at 20–21; see

8 Dempsey Decl. ¶¶ 43–47. According to Dempsey, LSAC’s Manager of Accommodated Testing,

9 LSAC’s use of that designation for insufficient documentation is limited to cases where LSAC

10 does not receive “the basic form that allows LSAC to set up a file for [a particular] candidate,”

11 where a candidate submits no evidence of a disability, or where a candidate submits no statement

12 of why the candidate needs a particular accommodation. Dempsey Decl. ¶¶ 44–46. Dempsey

13 states that LSAC “cannot make a substantive decision” or “is not in a position to process or make

14 a decision on” such requests. Id.

15

The Consent Decree’s reporting and recordkeeping requirements make no distinction as to

16 whether a decision is “substantive.” See Consent Decree ¶ 8; cf. Dempsey Decl. ¶¶ 45–46.

17 Regardless of the basis for its decision, if LSAC declines to provide an accommodation that a

18 candidate requested, it has denied the request. Such denials might well be reasonable, but LSAC’s

19 failure to track and report that it denied requests where it based those decisions on non-

20 “substantive” grounds constitutes a violation of Paragraphs 8(a) and 23 of the Consent Decree.18

21

LSAC’s failure to provide outside review and an opportunity to appeal denials for lack of

22 documentation also violates the Consent Decree’s requirement that LSAC implement the practices

23 established by the Panel, for the same reason discussed above in the context of LSAC’s “50%

24 emails.” Although Dempsey might be correct that “there would be almost nothing meaningful for

25

26

18 LSAC notes that DFEH has been aware of this practice since March of 2015 and, until its May 2017 notice of violation, raised no further objection after DFEH began using “no decision” rather

27

than leaving fields blank in its reports. The Consent Decree provides that “[f]ailure by any Party to seek enforcement of this Decree . . . with respect to any instance or provision will not be

28

construed as a waiver of such enforcement with regard to other instances or provisions.” Consent Decree ¶ 37.

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1 the external professional to review” in such cases, Dempsey Decl. ¶ 47, nothing in the Consent

2 Decree or the Panel’s Report grants LSAC the authority to unilaterally determine when the

3 practices established by the Panel would be useful, and the Panel specifically provided that its

4 procedures should apply to denials for lack of documentation, see Panel Report at 21 n.11.19

5

In defense of this and other practices at issue, LSAC argued at the hearing that its conduct

6 was consistent with the Panel’s determination that a file should be considered “complete” when

7 certain documentation requirements are satisfied, see id. at 5, and with the Panel’s deadline for

8 LSAC’s Disabilities Specialist to complete first-level review within two days of “receiving a

9 completed file,” id. at 22. For one thing, the Court previously struck down the two-day deadline,

10 at LSAC’s request, as outside of the Panel’s authority. See Appeal Order at 29. More

11 importantly, nothing in the Panel’s Report indicates that LSAC’s determination that a candidate

12 has not met the documentation requirements for an accommodation request would be a reason to

13 decline to consider the request, as opposed to a reason to deny it. To the extent that such a

14 conclusion might otherwise be consistent with the Report, it is foreclosed by the Panel’s

15 instruction that the “phrase ‘not approved in full’ is intended to include situations where LSAC

16 denies a testing accommodation request due to a lack of documentation,” and that “[s]uch denials

17 will be subject to the outside consultant review rules.” Id. at 21 n.11. Read as a whole, the

18 Panel’s Report does not authorize LSAC to report requests that it declined to grant for lack of

19 documentation as anything other than denials, or to treat such denials any differently than requests

20 denied for other reasons.

21

3. Other Reporting and Recordkeeping Requirements

22

The Consent Decree imposes a number of other recordkeeping and reporting requirements

23 on LSAC. For one, LSAC must track and report “the name of any outside consultant(s) who

24 reviewed [each] request.” Consent Decree ¶ 8(a)(m). LSAC concedes that certain reports to

25

26

19 The Panel’s procedures do not clearly apply to requests for accommodation that LSAC determines should be denied for failure to meet deadlines or register for the test, nor is it clear that

27

such issues fell within the Panel’s authority. The Court therefore concurs with the parties’ agreement that although LSAC must report such denials as denials, it need not follow the

28

procedures set by the Panel for internal and external review and appeal under those circumstances. See Mew Decl. re Contempt Exs. L, M.

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1 Plaintiffs and the Monitor failed to include that information, but states that “the omission was due

2 to an inadvertent programming error” and has since been remedied. Dempsey Decl. ¶ 51. That

3 violation is significant because DFEH relied on LSAC’s reports regarding outside consultants to

4 determine how many requests received external review and how many were appealed, see

5 Carrasco Reply Decl. ¶¶ 63–64, but DFEH does not dispute that it was unintentional and that the

6 issue has been resolved.

7

The Consent Decree also requires LSAC to track and report “the name(s) of all other

8 individual(s) who reviewed the request for the purpose of making a substantive decision whether

9 to grant or deny the request.” Consent Decree ¶ 8(a)(n). LSAC initially reported only the name of

10 Kim Dempsey, its Manager of Accommodated Testing, as the person (other than outside

11 consultants) who reviewed each request, on the basis that she is “the sole individual ultimately

12 responsible for each substantive decision to grant or deny a testing accommodation request,”

13 Dempsey Decl. ¶ 52, even though candidates’ files indicated that other LSAC employees had also

14 reviewed their requests, Carrasco Decl. ¶ 36. Although LSAC has since remedied this issue as

15 well, see Dempsey Decl. ¶ 52, its interpretation of the Consent Decree was not reasonable. The

16 Consent Decree charged the Panel with determining “whether more than one qualified

17 professional should review a . . . request . . . before LSAC may deny the request in whole or in

18 part,” Consent Decree ¶ 7(c)(iii)(2), the Panel answered in the affirmative, Panel Report at 9, and

19 this Court affirmed that determination, Appeal Order at 15, 31. LSAC does not attempt to square

20 its previous position that Dempsey was the only person “who reviewed [each] request for the

21 purpose of making a substantive decision,” see Consent Decree ¶ 8(a)(n), with the procedure

22 requiring more than one person to conduct such a review in the case of requests not granted in full.

23 Moreover, LSAC’s position that only the person with final authority must be reported is not

24 consistent with the language of the Consent Decree, which refers to “all other individual(s)” who

25 reviewed each request for the purpose of making a substantive decision. See id. Although the

26 Court appreciates that LSAC has since reformed its practice on this issue, its earlier approach

27 nevertheless represents a clear violation of the Consent Decree.

28

Paragraph 8(a)(j) of the Consent Decree requires LSAC to report “whether LSAC

39

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1 requested additional documentation from the candidate.” Consent Decree ¶ 8(a)(j). According to

2 DFEH’s counsel Joni Carrasco, “LSAC repeatedly reported that it did not request additional

3 documentation even though candidate files show that LSAC did request additional information,”

4 including requests made in the form of “50% emails.” Carrasco Decl. ¶ 36. LSAC takes the

5 position that “additional” documentation is limited to “documents other than the baseline

6 documents that the Decree and panel report allow LSAC to request,” and that it need not report

7 instances where LSAC determined that “baseline” documentation was lacking and requested that a

8 candidate submit such documentation. Dempsey Decl. ¶ 49. LSAC’s position is not a reasonable

9 reading of the Consent Decree. The provision calling for LSAC to track requests for “additional

10 documentation” appears in a section of the Decree that does not discuss any “baseline”

11 requirements, and draws no implicit distinction between such requirements and the “additional

12 documentation” that triggers recordkeeping obligations. Although the Decree discusses types of

13 documentation that LSAC must consider, Consent Decree ¶ 5(d), other than for previously-granted

14 accommodations under Paragraph 5(a), the Decree does not define any “baseline” documentation,

15 much less documentation that LSAC may request without reporting such a request. Moreover,

16 LSAC’s position—that “baseline” documentation requires a statement of need and evidence of

17 disability adequately supporting each requested accommodation—would likely require subjective

18 interpretation of a candidate’s statements and evidence, as compared to each of the candidate’s

19 requests, that is not necessarily amenable to the sort of bright line distinction that LSAC has

20 sought to apply. When LSAC sent “50% emails” informing candidates that they had submitted

21 sufficient documentation for some accommodations but would need to submit other

22 documentation if they wanted to pursue other accommodations, LSAC requested “additional

23 documentation” within the meaning of the Consent Decree, and was required to track and report

24 such requests.

25

Finally, the Court agrees with DFEH that LSAC’s practice, when candidates accepted its

26 proposed downward revisions of their accommodation request, of using white-out to alter its

27 internal forms summarizing such requests—which LSAC then used to complete its required

28 reports—violates LSAC’s obligation to “maintain appropriate supporting records for information 40

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1 contained in the Reports,” notwithstanding the fact that LSAC also maintained a copy of the

2 candidate’s initial application and other correspondence reflecting the initial request. See Consent

3 Decree ¶ 23; Dempsey Decl. ¶¶ 78–79. The Court takes no issue with LSAC’s use of white-out to

4 correct clerical errors such as “misspellings, incorrect entries, or entries made on the wrong line,”

5 see Dempsey Decl. ¶ 78, but altering a form to appear as if a substantive change was a candidate’s

6 original request—particular where such change was prompted by LSAC informing the candidate

7 that the candidate’s application was not sufficient for all of the accommodations initially sought

8 and that the candidate must accept the revision in order to receive any accommodations at all—is

9 not consistent with the requirement to “maintain appropriate supporting records.” See Consent

10 Decree ¶ 23.

11

Any one of LSAC’s recordkeeping and reporting violations might alone be explained as

12 merely a flawed interpretation of a particular requirement. Taken together, however, LSAC’s

13 approach to its obligations indicates that it “viewed the [Consent Decree] as an intrusion to be

14 avoided rather than a challenge to be embraced.” See Emma C., 2001 WL 1180636, at *10.

15 LSAC is expected to comply with these obligations going forward.

16

4. Access to Records

17

The Consent Decree requires LSAC to maintain records supporting its mandatory reports,

18 and to provide access to such information (to the extent pertaining to California test takers) to

19 DFEH at LSAC’s office in Pennsylvania “upon reasonable request.” Consent Decree ¶ 23.

20 LSAC’s reporting requirements include whether each request for accommodation “was granted in

21 full or denied in full or denied in part.” Id. ¶ 8(a)(k). Accordingly, files for candidates whose

22 requests LSAC reported as having been granted in full fall within the scope of records that LSAC

23 must maintain and allow DFEH to access upon reasonable request. See id. ¶ 23 (specifically

24 providing that LSAC’s recordkeeping and access requirements apply to the information described

25 in Paragraph 8).

26

In preparation for visiting LSAC’s office, DFEH and the United States requested access to

27 files for all candidates whose requests were denied in part or in full or reported as “no decision,”

28 as well as all California requests that were granted in full. Carrasco Decl. Ex. 11 (email dated 41

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1 March 16, 2017). LSAC responded that there “does not appear to be any reasonable basis” to

2 review files granted in full, and denied that request on the grounds that it “would result in

3 unnecessary disruption and expense for LSAC.” Id. (email dated March 21, 2017). DFEH

4 thereafter requested access to ten specific files reported as granted in full, but LSAC twice denied

5 that request, stating that it did not “understand what interest the DFEH has in reviewing the files

6 of candidates whose requests for accommodation were granted in full,” even after DFEH

7 expressed its belief “that we are entitled to review a reasonable sample of these files to ensure

8 ourselves that there are no irregularities in the reporting.” Id. (emails dated from March 30, 2017

9 through April 10, 2017). According to LSAC’s counsel, LSAC provided redacted copies of eight

10 candidates’ files to DFEH after the site visit, “some of which included ‘granted in full’ requests.”

11 Mew Decl. re Contempt ¶ 31. DFEH’s counsel states that only one of those files was reported “as

12 entirely ‘granted in full.’” Carrasco Reply Decl. ¶ 60.

13

DFEH’s request for at least a sample of “granted in full” files was facially reasonable. It is

14 not clear what purpose DFEH’s limited right of access to records underlying LSAC’s reports

15 would serve if DFEH were required simply to trust LSAC’s reporting. See Consent Decree ¶ 23.

16 LSAC’s opposition brief does not explain why it was reasonable to deny the request even after

17 DFEH narrowed the request to ten files, or why providing a single “granted in full” file after

18 DFEH’s visit to Pennsylvania fulfills LSAC’s obligation to provide access upon reasonable

19 request. See Opp’n to Contempt at 23–25. The importance of such review is illustrated by

20 LSAC’s use of the “granted in full” designation after candidates revised their requests in response

21 to “50% emails” informing them that LSAC did not consider their documentation sufficient for all

22 of the accommodations they initially requested. See Carrasco Decl. ¶ 31. Even if LSAC actually

23 believed such a process to comply with the Consent Decree—which is itself an unreasonable

24 interpretation of the Decree—LSAC’s apparent position that DFEH had no reasonable interest in

25 understanding how LSAC used and reported that procedure is difficult to explain except as bad

26 faith.20 LSAC’s repeated refusal to allow DFEH to review “granted in full” files for candidates

27

28

20 LSAC notes that as a result of Movaghar’s administrative claim, DFEH had access before the site visit to one file that included “50% emails.” Opp’n to Contempt at 25–26, Mew Decl. re

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1 who tested in California constitutes another violation of the Consent Decree.

2

E. The Consent Decree’s Dispute Procedures Do Not Shield LSAC from Contempt

3

LSAC contends briefly in its opposition, and argued in more detail at the hearing, that

4 contempt is not warranted because it modified its behavior after DFEH and the United States

5 initiated the dispute resolution process called for by the Consent Decree. See Opp’n to Contempt

6 at 16. Focusing on two of LSAC’s most significant violations, LSAC’s eventual decision to cease

7 sending “50% emails” nearly six months after DFEH and the United States raised that issue in

8 their May 2017 letter does not excuse LSAC’s use of the “50% emails” for approximately two

9 years, particularly where LSAC had effectively concealed that practice—or at least its

10 prevalence—by failing to report that it had requested additional documents and that it had

11 effectively denied portions of candidates’ requests, and imposed a further barrier to DFEH’s

12 understanding of the practice by refusing to provide access to “granted in full” files when DFEH

13 visited LSAC’s office in Pennsylvania. As for LSAC’s use of “no decision” to report requests that

14 it effectively denied for insufficient documentation, although DFEH could have challenged that

15 practice sooner, the Consent Decree specifically provides that failure to seek enforcement after a

16 particular instance of a violation does not constitute waiver of enforcement as to other instances,

17 Consent Decree ¶ 37, and after DFEH and the United States raised the issue in 2017, LSAC

18 refused to change its practice. Mew Decl. re Contempt Exs. L, M; see Dempsey Decl. ¶ 47;

19 Supp’l Br. Ex. 2 ¶ 6. Under these circumstances, the fact that LSAC eventually agreed to cease

20 some but not all of its violations of the Consent Decree is not a sufficient reason to withhold a

21 finding of contempt.

22

F. LSAC Has Not Substantially Complied Such That Contempt Should Be Denied

23

LSAC argues that it has substantially complied with the Consent Decree because it

24 fulfilled several of its obligations under the Decree, including but not limited to paying settlement

25 funds, ceasing annotating scores for tests taken with accommodations, and retaining the Monitor.

26

27

Contempt ¶ 33. DFEH’s explanation is persuasive that it could not know from a single file that LSAC’s use of “50% emails” was a routine practice. See Reply re Contempt at 13. Regardless,

28

DFEH’s awareness that the practice existed would not negate its legitimate interest in reviewing other candidates’ records to better understand the nature and extent of the practice.

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1 Opp’n to Contempt at 25–26. Several of the obligations LSAC claims to have fulfilled, however,

2 are in areas where its compliance was at best imperfect for the reasons discussed above, such as

3 “[t]racking voluminous amounts of data for every candidate and every exam,” “[p]reparing

4 extensive reports after each test administration,” “modif[ying] its accommodation forms and

5 policies,” and processing requests for accommodation “using Decree and panel procedures.” See

6 id.

7

LSAC relies on the Ninth Circuit’s decision in Labor/Community, which affirmed a district

8 court’s denial of a motion to hold the defendant in contempt and extend a consent decree. See

9 Opp’n to Contempt at 27 (citing Labor/Cmty., 564 F.3d 1115, 1122–23). In that case, the plaintiff

10 seeking contempt based its motion on the defendant transit agency’s failure to achieve a target

11 metric for bus passenger congestion set by the consent decree. Labor/Cmty., 564 F.3d at 1121.

12 The district court held that even though the agency did not meet that target based on the standard

13 for measuring it described in the decree—which deemed the agency noncompliant if “a bus line

14 exceed[ed] the load factor just once during a given quarter”—the agency substantially complied

15 with the decree where: (1) a more granular analysis showed that the agency’s bus lines achieved

16 the goal for more than ninety-five percent of the time periods surveyed; and (2) the agency

17 exceeded several other “core” requirements of the decree. See id. at 1121–22. The Ninth Circuit

18 affirmed on the basis that the district court did not abuse its discretion. Id. at 1123.

19

This case is not like Labor/Community, where “aside from the imperfect compliance with

20 the load factor targets,” which “were de minimis in relation to the overall scheme of things,” the

21 defendant “complied fully with its numerous obligations under the decree.” See id. at 1123. Here,

22 as discussed above, LSAC violated numerous provisions of the Consent Decree, including but not

23 limited to the provision requiring implementation of the Panel’s Report. It deprived certain

24 candidates of their automatic right to accommodations previously granted on comparable tests by

25 improperly imposing substantive conditions on the candidates’ ability to accept those

26 accommodations, and denied those candidates and others the right to the procedural safeguards

27 established by the Panel for requests not based on such past accommodations. LSAC also failed to

28 comply with its recordkeeping and reporting obligations under the Decree, and failed to provide 44

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1 DFEH with reasonable access to records as required by the Decree, creating roadblocks to

2 DFEH’s discovery of the substantive violations of accommodations and procedures that should

3 have been provided to test takers.

4

Unlike in Labor/Community, these violations did not relate to target metrics that LSAC

5 tried but barely failed to achieve. LSAC simply did not comply with actions that the Decree

6 directed it to take. Nor is this case like Vertex Distributing, Inc. v. Falcon Foam Plastics, Inc.,

7 689 F.2d 885 (9th Cir. 1982), where a consent judgment provided that the defendants could not

8 use the term “Falcon” in advertising unless they “include[d] a falcon bird perched on the ‘F’ of

9 FALCON wherever possible and practical,” but the defendants failed to prevent two listings not in

10 compliance with that rule from appearing in a telephone book, which they quickly took steps to

11 correct. Vertex, 689 F.2d at 889–90, 892. In contrast, many of LSAC’s violations were

12 implemented systematically and persisted for at least some period of time despite DFEH’s

13 objections.

14

While it is true that LSAC complied with other requirements, allowing such partial

15 compliance to excuse LSAC’s violations would reduce the Consent Decree to merely a set of

16 guidelines from which LSAC could choose which provisions to follow and which to disregard.

17 Nothing in the Consent Decree countenances such a result. See Gen. Signal Corp. v. Donallco,

18 787 F.32d 1376, 1378–79 (9th Cir. 1986) (affirming a finding of contempt where the scope of the

19 defendant’s violations was limited and the defendant had taken steps after the violations to prevent

20 their recurrence). The defense of substantial compliance, which in the context of civil contempt

21 can excuse “‘a few technical violations’ where every reasonable effort has been made to comply,”

22 is not a license for a party to comply with only some of the directives of a court order. See Dual-

23 Deck Video, 10 F.3d at 695 (citation omitted). “[F]ederal courts are not reduced to issuing

24 injunctions . . . and hoping for compliance.” Hutto v. Finley, 437 U.S. 678, 690 (1978). When the

25 Court issued the Consent Decree, LSAC was bound to comply with all of its provisions. The

26 undisputed facts in the record reflect that LSAC did not “to take all reasonable steps within [its]

27 power” to do so, regardless of whether the burden of proof is placed on LSAC or DFEH. See Sea

28 45

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1 Shepherd, 774 F.3d at 945.21 The Court therefore finds LSAC in contempt.

2

G. Relief Warranted

3

1. Extension of the Consent Decree

4

Where a party has failed to comply with a consent decree, extension of the term of the

5 decree can serve as “a compensatory civil [contempt] sanction” because it seeks “to return [the

6 moving parties] as nearly as possible to the position they would have occupied had [the

7 contemnor] not violated the agreement.” Kelly, 822 F.3d at 1097. Having ordered a particular

8 period of compliance and determined that the contemnor failed to provide such compliance, a

9 court gives effect to its previous order by extending the term of the decree to account for the time

10 that the contemnor failed to comply. See id. Such relief is also permitted under Rule 60(b) as “a

11 modification of a court order [that] is ‘suitably tailored to the changed circumstance’” of the

12 contemnor’s noncompliance because “it ‘would return both parties as nearly as possible to where

13 they would have been absent’ the changed circumstances.” See id. at 1098 (quoting Pigford, 292

14 F.3d at 927).

15

a. LSAC’s Violations Warrant Extension of the Consent Decree

16

LSAC argues that modification of a consent decree is disfavored because it “allows a party

17 ‘to escape commitments voluntarily made and solemnized by a court decree.’” Opp’n to

18 Contempt at 16 (quoting NLRB v. Harris Teeter Supermarkets, 215 F.3d 32, 35 (D.C. Cir. 2000)).

19 But LSAC has already taken unilateral action to escape its commitments under the Consent

20 Decree. LSAC voluntarily made an agreement, solemnized by a court decree, to grant requests for

21 certain accommodations previously provided on certain other tests “without further inquiry or

22 request for additional documentation,” Consent Decree ¶ 5(a), but nevertheless engaged in

23 “further inquiry” by routinely stating in its “50% emails” that, as a condition of receiving such

24

25

21 LSAC argues in its unauthorized supplemental brief that DFEH’s motion should be denied because the number of people affected by its noncompliance was, in LSAC’s view, relatively

26

small compared to the number of requests submitted. Regardless of how many requests LSAC received, improperly subjecting approximately 859 people (constituting nearly ten percent of the

27

estimated 9,000 people who requested accommodations) to the “50% email” procedure, and improperly reporting almost 2,000 requests that were effectively denied as “no decision” (or

28

perhaps more, since LSAC bases its count on only a subset of the test administrations at issue), is not de minimis but rather a significant and systematic violation. See Supp’l Br. at 4–6,

46

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1 accommodations, candidates must revise their requests to forego consideration of other

2 accommodations. LSAC similarly agreed to appoint a panel of experts and abide by the panel’s

3 directives with respect to certain aspects of LSAC’s procedures for considering requests for

4 accommodation, but routinely violated that commitment as discussed above. LSAC also violated

5 the commitments it made in the Consent Decree to reporting, recordkeeping, and access. The

6 interest of holding parties to their voluntary, court-endorsed commitments weighs against LSAC

7 in this case.

8

LSAC also argues that DFEH’s request to extend the entire consent decree is not narrowly

9 tailored because that approach would continue to impose requirements that LSAC has not

10 violated. LSAC has not proposed a narrower form of relief, and it is not clear that severing

11 portions of the Decree would be either warranted or useful. The requirements of the Decree in

12 large part support and depend on one another. For example, the procedural safeguards of multiple

13 levels of review and appeal ensure that the more substantive criteria and guidelines of the Decree

14 and the Panel’s Report are properly applied to candidates’ requests for accommodation. By

15 denying candidates that procedure, LSAC failed to provide the intended assurance that the

16 substantive guidelines would be respected. The recordkeeping, reporting, and monitoring

17 requirements, some of which LSAC also violated as discussed above, similarly serve as a

18 safeguard for the Decree’s effective implementation. It would make little since to extend LSAC’s

19 substantive obligations without any means to monitor compliance, or to extend the recordkeeping

20 and reporting requirements without also requiring the substantive compliance that those provisions

21 are intended to monitor. In other words, deferring LSAC’s compliance with the particular

22 provisions that it violated to a later time when other provisions of the Consent Decree were no

23 longer in effect would not provide the same relief to which Plaintiffs were entitled under the

24 Decree.

25

The record reflects violations of the Consent Decree in how LSAC considered, responded

26 to, recorded, and reported requests for accommodation. The practices at issue spanned various

27 periods of time, but the most significant violation—LSAC’s use of “50% emails” to place

28 conditions on accommodations that should have been automatic and to avoid providing multi-level 47

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1 review, offering appeals, and reporting requests as denied—spanned approximately two years.

2 Extending the Decree for an additional two years is an appropriate remedy to approximate the four

3 years of compliance to which LSAC submitted and to which DFEH is entitled. See Kelly, 822

4 F.3d at 1097 (“By extending the settlement agreement for two years, the district court thus ordered

5 the relief to which Plaintiffs were originally entitled under the agreement but that [the defendant]

6 had failed to provide.”). DFEH’s request to modify the Consent Decree accordingly is

7 GRANTED.

8

b. Nationwide Relief is Appropriate

9

LSAC briefly asserts in its opposition brief that “despite its limited jurisdiction, DFEH is

10 seeking relief on a nationwide basis rather than relief that applies only with respect to California

11 examinees.” Opp’n to Contempt at 28. The Consent Decree grants each of the parties, including

12 DFEH, the right to “apply to the Court for such further orders as may be necessary for, or

13 consistent with, the enforcement of this Decree.” Consent Decree ¶ 30. Although DFEH’s access

14 to records is specifically limited to those related to California examinees, id. ¶¶ 23, 26(a), its right

15 to pursue enforcement is not, id. ¶ 30. There is no indication that any violation at issue was

16 limited to candidates requesting accommodations in California, and although the United States has

17 not joined DFEH’s motion, it also has not opposed relief. The Court finds no basis to limit the

18 extension of the Consent Decree to California.

19

c. Practical Considerations Do Not Excuse LSAC’s Noncompliance

20

LSAC argued at the hearing that the Consent Decree should not be extended because

21 LSAC intends to offer the LSAT more often in the coming years than it has in the past, and if the

22 Panel’s procedures are applied to LSAC’s intended schedule, the periods in which LSAC must

23 consider requests for accommodation on different administrations of the LSAT would overlap.

24 LSAC asserted that such circumstances would likely lead to confusion and mistakes. The Court

25 declines to grant LSAC relief from its obligations under the Consent Decree (as extended) based

26 on LSAC’s own decision to change its business model. If LSAC chooses to continue with its plan

27 to administer the LSAT more frequently, it must take all reasonable steps to comply with the

28 48

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1 Consent Decree in doing so.22

2

LSAC also identifies certain circumstances where it believes the Panel’s procedures, as

3 interpreted by DFEH and the Court, call for inappropriate results, such as requiring outside review

4 before denying applications that lack basic documentation and allowing test takers who receive

5 stop-the-clock breaks to accumulate large amounts of additional time as a result of the Panel’s

6 determination that each break should add one minute to the time allowed for the test. As stated in

7 the Court’s previous order, “the Consent Decree does not permit the Court to substitute its

8 judgment for that of the Panel on the merits of how requests for accommodation should be

9 reviewed and decided.” Appeal Order at 10. The parties are strongly encouraged, however, to

10 meet and confer to consider whether the Panel’s procedures have functioned as intended and

11 whether any modifications to those procedures are appropriate, and to stipulate to any such

12 modifications that have the support of all three parties.

13

2. DFEH’s Access to Records

14

DFEH also seeks modification of the Consent Decree to provide it, and the United States,

15 with fifteen additional days of access to LSAC’s records, Contempt Mot. at 22–23, and to grant

16 DFEH “nationwide access” to records, Reply re Contempt at 18. DFEH does not explain why the

17 parties’ agreement that DFEH’s access should be limited to files related to California test

18 candidates, memorialized at Paragraphs 23 and 26(a) of the Consent Decree, should be altered.

19 Nor does it explain why providing it and the United States with fifteen days of access for the

20 remaining two years of the extended Consent Decree, as opposed to the parties’ original

21 agreement of five days over a four-year term, is an appropriate remedy for LSAC having failed to

22 reasonably grant access under the existing terms of the Decree. Instead, the Court finds that

23 reinstating the days that DFEH spent reviewing documents with impaired access is an appropriate

24

25

22 LSAC requests in its unauthorized supplemental brief that if the Court extends the Consent Decree, extension be limited to one year because the increased frequency of test administrations

26

will cause a one-year extension to encompass the same number of tests as LSAC’s approximately two years of noncompliance. See Supp’l Br. at 7. This argument is both untimely and unavailing.

27

LSAC agreed to abide by the Consent Decree for a period of years, not for a specific number of test administrations. Moreover, LSAC submits no evidence that doubling the number of test

28

administrations will result in more people—much less double the number of people—taking the test and requesting accommodations per year

49

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1 remedy to “return both parties as nearly as possible to where they would have been absent”

2 LSAC’s violation of its obligation to provide access. See Kelly, 822 F.3d at 1098. To the extent

3 that LSAC’s violations evince a need for greater monitoring than originally anticipated, DFEH’s

4 five days of review for the remaining two years of the Decree constitute double the amount of time

5 originally provided to review documents per year of the Decree.

6

Because the United States has not joined DFEH’s motion, and because LSAC’s violation

7 of its obligation to provide reasonable access appears to have largely been limited to DFEH’s (and

8 not the United States’) request for access to files reported as “granted in full,” the Court declines

9 to modify the Decree to grant the United States additional access.

10

3. Replacement of the ADA Monitor

11

DFEH also seeks to replace the ADA Monitor and to require quarterly reports. See

12 Contempt Mot. at 21–22, 24; Proposed Order (dkt. 249-1) ¶ D. The Court shares several of

13 DFEH’s concerns regarding the adequacy of the Monitor’s work thus far.

14

In response to Plaintiffs’ early concerns that Monitor had not independently verified the

15 accuracy of LSAC’s data, the Monitor reported that he “reviewed the reports submitted [by

16 LSAC], and relied on a distillation of fields from the massive data runs from the LSAC to inform

17 conclusions.” Carrasco Decl. Ex. 9 at 5 n.6. Based on unspecified “clear evidence of rigorous

18 protocols and faithful adherence to the Order’s requirements, the Monitor made a judgment that

19 [a] nothing more was required by the Decree; and [b] ‘going behind the numbers’ would be

20 unnecessarily burdensome and unwarranted.” Id. at 6 n.6.

21

The Monitor also reported that, from the effective date of the Panel’s Report through the

22 second year of the Consent Decree, “only 3 prospective LSAT test-takers have been denied their

23 requested accommodations based on the merits of the requests in full.” Carrasco Decl. Ex. 9 at 8.

24 In a footnote, he clarified that the total “does not include denials due to non-registration or later

25 requests following established deadlines.” Id. at 8 n.8. The Monitor either was not aware or did

26 not specify that LSAC also elected not to report denials based on insufficient documentation, see

27 Dempsey Decl. ¶¶ 44–46, despite a comment from Plaintiffs on the Monitor’s working draft

28 requesting clarification of whether non-registration or late requests were “the only types of denials 50

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1 not ‘based on the merits.’” Carrasco Decl. Ex. 8 at 7.

2

The Monitor’s efforts were not sufficient to detect LSAC’s violations addressed in this

3 order. Even if the Monitor disagreed with the Court’s conclusions that such practices violated the

4 Consent Decree, the Monitor should at the very least have discussed those issues to allow the

5 Court and the Plaintiffs to reach their own conclusions. The Monitor’s failure to provide a

6 separate report for the first year of LSAC’s compliance, as required by the Consent Decree, also

7 raises concerns, but can be attributed in part to the parties’ lengthy delay in reaching a consensus

8 on whom to appoint as Monitor.

9

Ultimately, however, the Court agrees with LSAC that these circumstances do not warrant

10 replacing the Monitor where the Consent Decree provides no mechanism for doing so. Just as the

11 Court has held LSAC to the requirements set by the Panel that it played a role in appointing, the

12 Court will hold DFEH to its consent to appoint Coleman as the Monitor. Although DFEH is

13 correct that the Court has inherent authority to appoint a special master to enforce compliance

14 under Rule 53 of the Federal Rules of Civil Procedure, the Court is not persuaded that this case

15 presents the sort of exceptional circumstances that justify such appointment without consent of all

16 parties. See Fed. R. Civ. P. 53(a)(1). DFEH also fails to sufficiently explain the need for

17 quarterly reports. Balancing the original structure of the Decree with the need to effectively

18 monitor compliance before the Decree expires, the two-year extension warrants two additional

19 reports by the Monitor beyond those originally contemplated, to occur at the end of the fifth and

20 sixth years of the Decree. The Court has faith that LSAC will be motivated to comply with this

21 order and the Decree in order to avoid further sanctions, and that the present Monitor is capable of

22 carrying out his duties with the benefit of the guidance provided herein.

23

Going forward, in addition to his original charge, the Monitor is expected to review

24 LSAC’s compliance with the specific violations addressed in this order. The Monitor is expected

25 to “go behind the numbers” and review a sufficient sample of candidates’ files to determine

26 whether LSAC’s reporting is accurate, and to select those files in a way that does not permit

27 LSAC to influence the choice of files. The Monitor is also expected to provide some accounting

28 of his and his staff’s time spent on this case to allow all parties and the Court to better understand 51

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1 the scope of his activities. See Consent Decree ¶ 28.

2

Any renegotiation of the Monitor’s compensation agreement with LSAC in light of the

3 extension of the Decree and clarification of the Monitor’s duties must be completed or submitted

4 to the Court no later than thirty days from the date of this order. By the same date, the parties

5 shall either jointly stipulate to deadlines for the Monitor’s remaining reports or submit that issue to

6 the Court. If the current Monitor elects not to continue in his role, the parties shall either jointly

7 stipulate to a new Monitor or submit candidates to the Court no later than sixty days from the date

8 of this order.23

9 IV. CONCLUSION

10

For the reasons discussed above, DFEH’s motion for contempt and to modify the Consent

11 Decree is GRANTED in part. Based on the Court’s authority to enforce its orders through civil

12 contempt, and on the Court’s authority to grant relief from an order under Rule 60(b) of the

13 Federal Rules of Civil Procedure, the Consent Decree is hereby modified as follows:

14

(1) Paragraph 30 of the Consent Decree, governing the term of the Decree, is modified to

15 replace the phrase “four (4) years from that date” at page 37, line 2 with the phrase “six (6) years

16 from that date”;

17

(2) The “Final Report of the ‘Best Practices’ Panel” dated January 26, 2015, as modified

18 by the Court’s order dated August 7, 2015, is incorporated into the Consent Decree as if stated

19 fully therein, and is enforceable by contempt;

20

(3) In addition to the audits called for by Paragraph 25 of the Consent Decree, the ADA

21 Monitor shall also conduct two additional audits, five years and six years after the effective date of

22 the Decree respectively, addressing the same subject matter as the two-year and four-year audits;

23 and

24

(4) No time spent by DFEH reviewing documents at LSAC’s Newtown, Pennsylvania

25 office before the date of this order shall count towards the five days of access allotted to DFEH

26

27 23 Based on his service as an expert witness for DFEH, the Court will not appoint Peter Blanck as

28

Monitor without LSAC’s consent. This is not intended as a comment on Blanck’s qualification for the role.

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1 under Paragraphs 23 and 26(a) of the Consent Decree.

2

DFEH is entitled to its fees and costs pursuant to Paragraph 21(b) of the Consent Decree,

3 and the parties are ordered to engage in the procedures stated therein for determining the amount

4 of such fees and costs.

5

IT IS SO ORDERED.

6 Dated: March 5, 2018

7

______________________________________

JOSEPH C. SPERO

8

Chief Magistrate Judge

9

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15

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17

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28 53

 
 1

2

3

4

5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7

8 THE DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING, et. al.,
9
Plaintiffs, 10
v. 11
LAW SCHOOL ADMISSION COUNCIL, 12 INC.,

No. C-12-1830 EMC
ORDER GRANTING DFEH’S MOTION TO PROCEED FOR GROUP OR CLASS RELIEF
(Docket No. 106)

United States District Court For the Northern District of California

13

Defendant.

___________________________________/

14

15

16

I. INTRODUCTION

17

The California Department of Fair Employment and Housing (“DFEH”) filed suit against the

18 Law School Admission Council, Inc. (“LSAC”), seeking damages and injunctive relief over alleged

19 failures of the Defendant to provide disability-related accommodations to test-takers of the Law

20 School Admission Test (“LSAT”), in violation of the Unruh Civil Rights Act (“Unruh Act”), Cal.

21 Civ. Code §§ 51, et. seq., California’s Fair Employment and Housing Act (“FEHA”), Cal. Gov.

22 Code, § 12900 et seq, and the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§

23 12101, et. seq. DFEH brought its action both on behalf of seventeen named individuals and as a

24 “group or class” complaint on behalf of “all disabled individuals in the State of California who

25 requested a reasonable accommodation for the Law School Admission Test (LSAT) from January

26 19, 2009 to the present.” First Amended Group and Class Action Complaint (Docket No. 104)

27

28

United States District Court For the Northern District of California

1 (“FAC”) ¶ 7.1 DFEH now moves for an order “confirming that [it] may proceed in this enforcement

2 action without filing a motion under Fed. R. Civ. P. 23.” Motion to Proceed for Group or Class

3 Relief (Docket No. 106) (“Pl.’s Mot.”) at 1. LSAC opposes the amendment. See LSAC’s

4 Opposition to DFEH Motion (Docket No. 116) (“Def’s. Opp’n. Br.”). Having considered the

5 parties’ briefs and accompanying submissions, as well as the oral argument of counsel, the Court

6 hereby GRANTS DFEH’s motion for the reasons set forth below.

7

II. FACTUAL & PROCEDURAL BACKGROUND

8

LSAC is a non-profit membership organization based in Pennsylvania that, among other

9 things, administers the Law School Admission Test (LSAT) to prospective law students. The LSAT

10 is a standardized test that evaluates potential law school applicants on their acquired reading, verbal,

11 and reasoning skills. FAC. ¶ 45. In 2010, DFEH received two written “verified complaint[s] of

12 discrimination” from individuals alleging that LSAC had denied them certain testing

13 accommodations for their disabilities when taking the LSAT. Id. ¶ 18-19. These written complaints

14 alleged that LSAC had unlawfully denied test applicants “full and equal access to the LSAT” in

15 violation of FEHA and the Unruh Act. Id. By virtue of its incorporation into the Unruh Act, a

16 violation of the ADA also constitutes a violation of the Unruh Act. Id. ¶ 15; see also Unruh Act,

17 Cal. Civ. Code § 51(f). Through DFEH’s investigation into the merits of these complaints, “the

18 Department came to believe that LSAC’s policies and practices toward disabled applicants

19 requesting reasonable accommodation were affecting a larger group of class of applicants in a

20 similar manner.” FAC ¶ 20.

21

Following its investigation into these complaints, DFEH filed an administrative accusation

22 before the California Fair Employment and Housing Commission on February 6, 2012, which LSAC

23 elected to have transferred to the California Superior Court in Alameda County under Cal. Gov.

24 Code § 12965(c)(1). FAC ¶¶ 39-41. The administrative accusation, styled a “Group and Class

25

26

1 In DFEH’s original complaint, this “group or class” component was limited to “all disabled individuals in the State of California who requested a reasonable accommodation for the Law School

27

Admission Test (LSAT) from January 19, 2009 to February 6, 2012.” See Complaint (“Compl.”) (Docket No. 1, Ex. A) ¶ 8. DFEH was granted leave to expand the “group or class” definition by

28

this Court on February 6, 2013. See Order Granting DFEH’s Motion for Leave to File First Amended Complaint (Docket No. 103).

2

United States District Court For the Northern District of California

1 Accusation,” was brought on behalf of seventeen named individuals and certain “class

2 complainants” consisting of “all disabled individuals in the State of California who requested a

3 reasonable accommodation for the Law School Admission Test (LSAT) from January 19, 2009 to

4 February 6, 2012,” and charged LSAC with violations of the Unruh Act. FAC ¶¶ 6-7, 39. See

5 Declaration of Caroline Mew (Docket No. 116-1), Ex. 1 (Group and Class Accusation). LSAC

6 removed the matter from the Alameda County Superior Court to this Court on April 12, 2012,

7 pursuant to 28 U.S.C. § 1441, on the basis of federal question jurisdiction and diversity jurisdiction.

8 See Notice of Removal of Action Under 28 U.S.C. § 1441 (Docket No. 1) at 2.

9

DFEH’s lawsuit focuses on LSAC’s practices regarding the provision of testing

10 accommodations to test-takers who claim to be disabled. According to LSAC, “more than a

11 thousand individuals request disability-based accommodations on the LSAT every year, and LSAC

12 grants accommodations to most, but not all, of those individuals.” Def.’s Mot. to Dismiss (Docket

13 No. 66) at 2. LSAC claims to conscientiously evaluate requests for testing accommodation to ensure

14 that “individuals with bona fide disabilities receive accommodations, and that those without

15 disabilities do not receive accommodations,” which could provide them with an unfair advantage on

16 the exam. Def.’s Mot. to Dismiss (Docket No. 13) at 2 (quoting Powell v. Nat’l Bd. of Med.

17 Examiners, 364 F.3d 79, 88-89 (2d Cir. 2004)). DFEH claims that LSAC’s accommodations

18 evaluation procedures include, among other things, requirements that testing candidates requesting

19 extra time or other accommodations for a “cognitive or psychological impairment” submit to

20 psychoeducational and neuropsychological testing, and provide a “full diagnostic report” that

21 includes records of the candidates’ aptitude and achievement testing. FAC ¶ 53. DFEH also claims

22 that LSAC requires applicants to disclose in an accommodations request whether or not they took

23 prescribed medications during medical evaluations of their condition, and if not, to explain their

24 failure to do so. Id. ¶ 54.

25

DFEH also alleges that LSAC maintains a policy of “flagging” the LSAT exam scores of

26 individuals who receive disability accommodations for extra time. FAC ¶ 55. LSAC allegedly

27 includes a notation on an accommodated individuals’ score report that the score was achieved under

28 non-standard time constraints, and excludes extended-time scores when calculating its LSAT

3

United States District Court For the Northern District of California

1 percentile rankings. Id. ¶¶ 55-56. As a consequence, the fact that an individual received extended-

2 time on the LSAT is disclosed to all law schools receiving that individual’s score report. See id. ¶

3 55. However, LSAC does advise schools that extended-time score reports “should be interpreted

4 with great sensitivity and flexibility.” Id.

5

Despite styling its administrative accusation and amended complaint as a “Group and Class

6 Action,” DFEH contends that this suit is not a class action within the meaning of Fed. R. Civ. P. 23.

7 As “the State of California’s main civil rights agency,” DFEH argues that “this action -- like similar

8 [enforcement] actions brought by the United States Equal Employment Opportunity Commission

9 (EEOC) -- may proceed on behalf of a group or class of persons without Court approval under [Rule

10 23] . . . because these actions are, by their very nature, not class actions.” Pl.’s Mot. at 1 (emphasis

11 omitted). LSAC, in opposition, contends that the Federal Rules of Civil Procedure apply to this civil

12 action just the same as any other civil action being heard by a U.S. District Court, and that DFEH’s

13 suit cannot properly be characterized as a “government enforcement action” exempt from the

14 requirements of Rule 23. Def.’s Opp’n. Br. at 4, 7. DFEH’s present motion seeks to resolve the

15 question of whether it can pursue its “group or class” claims in federal court without having to

16 comply with the class action provisions of Rule 23.

17

III. DISCUSSION

18 A. Rule 23 and Government Enforcement Actions

19

In the normal course of affairs “a litigant must assert his or her own legal rights and

20 interests, and cannot rest a claim to relief on the legal rights or interests of third parties” when

21 stating a cause of action in federal court. Powers v. Ohio, 499 U.S. 400, 410 (1991). The U.S.

22 Supreme Court recently reaffirmed that “[t]he class action is ‘an exception to the usual rule that

23 litigation is conducted by and on behalf of the individual named parties only.’” Comcast Corp. v.

24 Behrend, 11-864, __U.S. __, 2013 WL 1222646 at *4 (U.S. Mar. 27, 2013) (quoting Califano v.

25 Yamasaki, 442 U.S. 682, 700–701 (1979)). “To come within the exception, a party seeking to

26 maintain a class action ‘must affirmatively demonstrate his compliance’ with Rule 23.” Behrend,

27 11-864, __U.S. __, 2013 WL 1222646 at *4 (quoting Wal–Mart Stores, Inc. v. Dukes, 564 U.S.

28

4

United States District Court For the Northern District of California

1 ––––, –––– (2011) (slip op., at 10)). Rule 23 permits “[o]ne or more members of a class [to] sue or

2 be sued as representative parties on behalf of all members only if:

3

(1) the class is so numerous that joinder of all members is

impracticable;

4

(2) there are questions of law or fact common to the class;

5

(3) the claims or defenses of the representative parties are typical of

6

the claims or defenses of the class; and

7

(4) the representative parties will fairly and adequately protect the

interests of the class.

8

9 Fed. R. Civ. P. 23(a). Rule 23 “does not set forth a mere pleading standard,” but rather requires that

10 a party “‘be prepared to prove that there are in fact sufficiently numerous parties, common questions

11 of law or fact,’ typicality of claims or defenses, and adequacy of representation, as required by Rule

12 23(a)” in order to prosecute a class action. Behrend, 11-864, __U.S. __, 2013 WL 1222646 at *4

13 (quoting Wal–Mart Stores, Inc. v. Dukes, 564 U.S. ––––, –––– (2011) (slip op., at 10)) (emphasis in

14 original). Additionally, the party seeking to maintain a class action “must also satisfy through

15 evidentiary proof at least one of the provisions of Rule 23(b).” Behrend, 11-864, __U.S. __, 2013

16 WL 1222646 at *4. “At an early practicable time after a person sues or is sued as a class

17 representative,” Rule 23 requires “the court [to] determine by order whether to certify the action as a

18 class action,” and in that order to “define the class and the class claims, issues, or defenses, and . . .

19 appoint class counsel.” Fed. R. Civ. P. 23(c)(1).

20

The Supreme Court has also recognized a related exception to the normal rule that litigants

21 “cannot rest a claim to relief on the legal rights or interests of third parties,” for certain kinds of

22 government enforcement actions. Powers, 499 U.S. at 410. In General Telephone Co. of the Nw.,

23 Inc. v. Equal Employment Opportunity Comm’n, 446 U.S. 318 (1980), the Court held that the EEOC

24 could maintain a civil action for the enforcement of a statute under its jurisdiction “and may seek

25 specific relief for a group of aggrieved individuals without first obtaining class certification pursuant

26 to Federal Rule of Civil Procedure 23.” Id., 446 U.S. 318, 333-34. General Telephone involved a

27 suit commenced by the EEOC under Title VII of the Civil Rights Act of 1964 (as amended),

28 stemming from the investigation of four General Telephone employees’ complaints of sex

5

United States District Court For the Northern District of California

1 discrimination. The EEOC’s suit sought broad injunctive relief and backpay for a number of

2 General Telephone employees across several states, but “[t]he complaint did not mention Federal

3 Rule of Civil Procedure 23, and the EEOC did not seek class certification pursuant to that Rule.”

4 General Telephone, 446 U.S. at 321-22. General Telephone objected, citing the EEOC’s failure to

5 comply with Rule 23. The Supreme Court granted certiorari on the question of “whether the

6 [EEOC] may seek classwide relief under § 706(f)(1) of Title VII of the Civil Rights Act of 1964

7 (Title VII) without being certified as the class representative under Rule 23 of the Federal Rules of

8 Civil Procedure.” Id. at 320.

9

Upholding the EEOC’s authority to pursue classwide relief without first obtaining class

10 action certification, the Supreme Court held, “[g]iven the clear purpose of Title VII, the EEOC’s

11 jurisdiction over enforcement, and the remedies available, the EEOC need look no further than § 706

12 for its authority to bring suit in its own name for the purpose, among others, of securing relief for a

13 group of aggrieved individuals. Its authority to bring such actions is in no way dependent upon Rule

14 23, and the Rule has no application to a § 706 suit.” General Telephone, 446 U.S. at 324. The

15 Court held that Title VII “empowers the EEOC to prevent any person from engaging in any

16 unlawful practice as set forth in the Title,” and “specifically authorizes the EEOC to bring a civil

17 action against any respondent not a governmental entity upon failure to secure an acceptable

18 conciliation agreement, the purpose of the action being to terminate unlawful practices and to secure

19 appropriate relief, including reinstatement or hiring, with or without back pay, for the victims of the

20 discrimination.” Id. at 323-24 (internal quotation marks omitted). “Title VII thus itself authorizes

21 the procedure that the EEOC followed in this case,” and the Court found “no basis for imposing the

22 Rule 23 framework in an EEOC enforcement action” when the operative statute “seems to us to

23 authorize the EEOC to sue in its own name to enforce federal law by obtaining appropriate relief for

24 those persons injured by discriminatory practices forbidden by the Act.” Id. at 324-25.

25

General Telephone recognized a longstanding practice of permitting the Attorney General to

26 bring civil enforcement actions seeking classwide relief under Title VII based on “a pattern or

27 practice of discrimination” by an employer without requiring compliance with Rule 23. See General

28 Telephone, 446 U.S. at 327 (“Prior to 1972, the Department of Justice filed numerous . . .

6

United States District Court For the Northern District of California

1 pattern-or-practice suits. In none was it ever suggested that the Attorney General sued in a

2 representative capacity or that his enforcement suit must comply with the requirements of Rule 23.”)

3 (citations omitted). The decision extended that exception to Rule 23 to enforcement actions brought

4 by the EEOC in its own name to secure classwide relief for the victims of unlawful employment

5 practices. In so doing, the Court focused heavily on the statutory enforcement regime under which

6 the EEOC operates. When Congress amended Title VII in 1972 to “secure more effective

7 enforcement” of the statute, it expanded the EEOC’s enforcement powers “by authorizing [it] to

8 bring a civil action in federal district court against private employers reasonably suspected of

9 violating Title VII,” and “[i]n so doing, Congress sought to implement the public interest as well as

10 to bring about more effective enforcement of private rights.” Id. at 325-26. Importantly, the 1972

11 amendments “did not transfer all private enforcement to the EEOC,” but kept in place the private

12 right of action that had been previously available to aggrieved parties. Id. at 326. The Court found

13 that “[t]hese private-action rights suggest that the EEOC is not merely a proxy for the victims of

14 discrimination and that the EEOC’s enforcement suits should not be considered representative

15 actions subject to Rule 23.” Id. Rather, “[w]hen the EEOC acts, albeit at the behest of and for the

16 benefit of specific individuals, it acts also to vindicate the public interest in preventing employment

17 discrimination.” Id. Hence, EEOC’s enforcement rights exist outside of Rule 23.

18

The Court also noted that “forcing EEOC civil actions into the Rule 23 model would in many

19 cases distort the Rule as it is commonly interpreted and in others foreclose enforcement actions not

20 satisfying prevailing Rule 23 standards but seemingly authorized by [Title VII].” General

21 Telephone, 446 U.S. at 329-30. Title VII permits the EEOC to bring enforcement actions against

22 employers with as few as 15 employees. Applying Rule 23 to actions of that size “would require the

23 EEOC to join all aggrieved parties despite its statutory authority to proceed solely in its own name,”

24 since a putative class of 15 “would be too small to meet the numerosity requirement” of the Rule.

25 Id. at 330. Similarly, the typicality requirement of Rule 23 “would limit the EEOC action to claims

26 typified by those of the charging party,” despite the fact that existing law renders actionable “[a]ny

27 violations that the EEOC ascertains in the course of a reasonable investigation of the charging

28 party’s complaint.” Id. at 331. Finally, the adequate representation requirement of Rule 23 may

7

United States District Court For the Northern District of California

1 operate to foreclose an enforcement action “where there is a conflict of interest between the named

2 plaintiff [the EEOC] and the members of the putative class.” Id. The Court reasoned,

3

unlike the Rule 23 class representative, the EEOC is authorized to

proceed in a unified action and to obtain the most satisfactory overall

4

relief even though competing interests are involved and particular

groups may appear to be disadvantaged. The individual victim is

5

given his right to intervene for this very reason. The EEOC exists to

advance the public interest in preventing and remedying employment

6

discrimination, and it does so in part by making the hard choices

where conflicts of interest exist.

7

8 General Telephone, 446 U.S. at 331 (emphasis added). For these reasons, the Court held “that the

9 nature of the EEOC’s enforcement action is such that it is not properly characterized as a ‘class

10 action’ subject to the procedural requirements of Rule 23.” Id. at 334 n.16.

11

Subsequent courts have read General Telephone broadly, finding certain government

12 enforcement actions exempt from Rule 23 beyond the context of the EEOC and its authorizing

13 statute. In N.L.R.B. v. Plumbers & Pipefitters Local Union No. 403, Affiliated with United Ass’n of

14 Journeymen & Apprentices of Plumbing & Pipefitting Indus., AFL-CIO, the Ninth Circuit held that

15 the rationale of General Telephone equally “applies to an action brought by the [National Labor

16 Relations Board] under section 10 of the [National Labor Relations Act], for the action is one to

17 vindicate ‘[t]he public interest in effectuating the policies of federal labor laws;’ it is not a civil

18 proceeding brought by a group of individual claimants to vindicate the wrongs they have suffered.”

19 Id., 710 F.2d 1418, 1420 (9th Cir. 1983) (quoting Vaca v. Sipes, 386 U.S. 171, 182 n.8 (1967)). See

20 also Donovan v. University of Texas at El Paso, 643 F.2d 1201 (5th Cir. 1981) (same).

21

Similarly, several courts have held that government enforcement actions do not constitute

22 “class actions” within the meaning of the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C.

23 §§ 1332(d), 1453, 1711–15, because they are not “civil action[s] filed under rule 23 of the Federal

24 Rules of Civil Procedure or similar State statute or rule of judicial procedure authorizing an action to

25 be brought by 1 or more representative persons as a class action,” 28 U.S.C. § 1332(d)(1)(B)

26 (defining “class action”). See Washington v. Chimei Innolux Corp., 659 F.3d 842, 850 (9th Cir.

27 2011) (parens patriae actions filed by state Attorneys General “lack statutory requirements for

28 numerosity, commonality, typicality, or adequacy of representation that would make them

8

United States District Court For the Northern District of California

1 sufficiently ‘similar’ to actions brought under Rule 23, and that they do not contain certification

2 procedures. Parens patriae suits lack the defining attributes of true class actions. As such, they

3 only ‘resemble’ class actions in the sense that they are representative suits.”); Nevada v. Bank of Am.

4 Corp., 672 F.3d 661 (9th Cir. 2012) (same). See also LG Display Co., Ltd. v. Madigan, 665 F.3d

5 768, 772 (7th Cir. 2011) (parens patriae suit not a “class action” under Rule 23 because the “case

6 was brought by the Attorney General, not by a representative of a class”); West Virginia ex rel.

7 McGraw v. CVS Pharmacy, Inc., 646 F.3d 169, 174–76 (4th Cir. 2011) (State Attorney General’s

8 parens patriae action to enforce consumer protection statute not removable under CAFA because

9 state statute lacked the procedural requirements of Rule 23). Importantly, these decisions have

10 found enforcement actions by state agencies to be outside the strictures of Rule 23.

11

The principle that has emerged is that where a governmental agency is authorized to act in

12 the public’s interest to obtain broad relief, e.g., in the role of parens patriae, and the authorizing

13 statute confers such power without reference to class certification, Rule 23 may not apply. This

14 principle applies to both state and federal law enforcement agencies. Such actions are not “class

15 actions” subject to Rule 23. General Telephone, 446 U.S. at 334, n. 16.

16

Thus, for instance, in People v. Pac. Land Research Co., the California Supreme Court held

17 “that consumer protection actions brought by the People, seeking injunctive relief, civil penalties

18 and restitution,” were not “the equivalent of class actions brought by private parties, requiring the

19 same safeguards to protect a defendant from multiple suits and other harmful consequences.” Id., 20

20 Cal. 3d 10, 17 (1977). Referring specifically to Fed. R. Civ. P. 23, the Court found that “[a]n action

21 filed by the People seeking injunctive relief and civil penalties is fundamentally a law enforcement

22 action designed to protect the public and not to benefit private parties” and “lacks the fundamental

23 attributes of a consumer class action filed by a private party.” Id., 20 Cal. 3d at 17-18. “The

24 Attorney General or other governmental official who files [such a suit] is ordinarily not a member of

25 the class, his role as a protector of the public may be inconsistent with the welfare of the class so that

26 he could not adequately protect their interests . . . , and the claims and defenses are not typical of the

27

28

9

United States District Court For the Northern District of California

1 class.” Id. at 18.2 While Pac. Land Research is a decision of state court, as noted above, federal

2 courts, including the Ninth Circuit, have similarly found state enforcement actions not governed by

3 Rule 23.

4

DFEH argues that its enforcement of the provisions of FEHA, the Unruh Act, and, by

5 extension, the ADA, through civil litigation designed to secure classwide relief on behalf of

6 aggrieved individuals is similarly a government enforcement action that “falls outside the scope of

7 Fed. R. Civ. P. 23.” Pl.’s Mot. at 7. Following General Telephone, this Court must examine “the

8 nature of [DFEH’s] enforcement action” to determine whether or not it is “properly characterized as

9 a ‘class action’ subject to the procedural requirements of Rule 23.” General Telephone, 446 U.S. at

10 334 n.16.

11 B. DFEH Enforcement Authority

12

The legislature of the State of California has vested DFEH with the authority to enforce the

13 civil rights of California citizens as “an exercise of the police power of the state for the protection of

14 the welfare, health, and peace of the people of this state.” Cal. Gov’t. Code § 12920. “[S]ince 1959

15 the DFEH has been actively investigating, prosecuting and conciliating” complaints of

16 discrimination falling within those areas under its jurisdiction. State Pers. Bd. v. Fair Employment

17 & Hous. Com., 39 Cal. 3d 422, 431 (1985). FEHA, the California statute that created DFEH, “was

18 meant to supplement, not supplant or be supplanted by, existing antidiscrimination remedies, in

19 order to give [Californians] the maximum opportunity to vindicate their civil rights against

20 discrimination.” Id. at 431. See Cal. Gov’t. Code § 12993(a) (“Nothing contained in this part shall

21 be deemed to repeal any of the provisions of the Civil Rights Law or of any other law of this state

22 relating to discrimination because of race, religious creed, color, national origin, ancestry, physical

23 disability, mental disability, medical condition, genetic information, marital status, sex, age, or

24 sexual orientation, unless those provisions provide less protection to the enumerated classes of

25

26

2 A State Court of Appeals in Arizona has specifically held that classwide civil rights

27

enforcement actions brought by the Arizona Civil Rights Division, the state agency that enforces the Arizona Civil Rights Act, are not subject to the state equivalent of Rule 23 under the reasoning

28

advanced in General Telephone. See Arizona Civil Rights Div., Dept. of Law v. Hughes Air Corp., 139 Ariz. 309, 314 (Ct. App. 1983).

10

United States District Court For the Northern District of California

1 persons covered under this part”); id. (“The provisions of this part shall be construed liberally for the

2 accomplishment of the purposes of this part.”). FEHA’s declared purpose is “to provide effective

3 remedies that will eliminate these discriminatory practices.” Cal. Gov’t. Code § 12920. See

4 Munson v. Del Taco, Inc., 46 Cal. 4th 661, 666 (2009) (“[t]he Unruh Civil Rights Act,” incorporated

5 into FEHA via Cal. Gov’t. Code § 12948, “must be construed liberally in order to carry out its

6 purpose to create and preserve a nondiscriminatory environment in California business

7 establishments by banishing or eradicating arbitrary, invidious discrimination by such

8 establishments.”) (internal citations and quotation marks omitted).

9

FEHA authorizes the Director of DFEH to file administrative charges and to bring suit in

10 court for group or class relief. See Cal. Gov’t. Code §§ 12930, 12961; see also id. § 11180 (“head of

11 each department may make investigations and prosecute actions”). In particular, § 12961 of FEHA

12 states:

13

Where an unlawful practice alleged in a verified complaint adversely

affects, in a similar manner, a group or class of persons of which the

14

aggrieved person filing the complaint is a member, or where such an

unlawful practice raises questions of law or fact which are common to

15

such a group or class, the aggrieved person or the director may file the

complaint on behalf and as representative of such a group or class.

16

Any complaint so filed may be investigated as a group or class

complaint, and, if in the judgment of the director circumstances

17

warrant, shall be treated as such for purposes of conciliation, dispute

resolution, and civil action.

18

19 Cal. Gov’t. Code § 12961. Remedial civil actions brought by the Director under FEHA are brought

20 “in the name of the department on behalf of the person claiming to be aggrieved.” Cal. Gov’t. Code

21 § 12965(a). The California Supreme Court has recognized that “DFEH is a public prosecutor testing

22 a public right,” when it pursues civil litigation to enforce statutes within its jurisdiction. State Pers.

23 Bd. v. Fair Employment & Hous. Com., 39 Cal. 3d 422, 444 (1985) (citations and internal quotation

24 marks omitted).

25

Thus, like the EEOC, the DFEH has the authority to investigate complaints on behalf of a

26 group or class and to bring an enforcement action seeking group or class type relief. The California

27 legislature has amended FEHA to allow DFEH to secure more effective enforcement of the statutes

28 under its purview. See “Governor’s Message Relative to Reorganization Plan No. 1 of 1979,”

11

United States District Court For the Northern District of California

1 Assembly Journal, Vol. 4, 1979-1980, Regular Session, at 6270 (creation of consolidated DFEH

2 “would have the organizational stature necessary to conduct its activities effectively”); Cal. Gov’t.

3 Code § 12930(h) (effective January 1, 2013) (authorizing DFEH to sue directly in state or federal

4 court). While the director is authorized to file a complaint “on behalf of and as a representative

5 of . . . a group of class,” nothing in § 12961 requires that the complaint be filed as a class action.

6 Also, like the EEOC, aggrieved individuals have the right to participate in DFEH enforcement

7 actions with their own counsel, underscoring the “public interest” focus of a DFEH suit. See Cal.

8 Gov’t. Code § 12965(a); see also DFEH v. Am. Airlines, Inc., No. 91-06, FEHC Precedential Decs.

9 1990-1991, 1991 WL 370086 at *17 (Mar. 7, 1991) (“[T]he Department does not represent the

10 complaining party but rather the interests of the state. Its job is to effectuate the declared public

11 policy of the state ‘to protect and safeguard the right and opportunity of all persons to seek, obtain,

12 and hold employment without discrimination or abridgment on account of ... physical handicap.’”)

13 (quoting Cal. Gov’t. Code § 12920). Courts have recognized the similarities between Title VII and

14 FEHA, see e.g. Price v. Civil Serv. Com., 26 Cal. 3d 257, 271 (1980), superseded on other grounds

15 by constitutional amendment, Strauss v. Horton, 46 Cal. 4th 364 (2009), and have relied on Title VII

16 jurisprudence when interpreting FEHA’s provisions, see e.g. Bradley v. Harcourt, Brace & Co., 104

17 F.3d 267, 270 (9th Cir. 1996).

18

In this action, DFEH alleges that it “filed suit to remedy LSAC’s pattern of denial of the

19 right to reasonable accommodation,” and claims “an interest in ensuring that gateways to education

20 and employment are open to individuals with disabilities.” Pl.’s Mot. at 6 (citations omitted).

21 DFEH states that “California’s public policy against discrimination on the basis of disability is

22 substantial and fundamental.” Id. at 8. See City of Moorpark v. Superior Court, 18 Cal. 4th 1143,

23 1161 (1998) (“we think discrimination based on disability, like sex and age discrimination, violates

24 a substantial and fundamental public policy”) (quotation marks omitted).3 It views the LSAT as

25 playing a “crucial role” in “determining applicants’ admission to law school (and by extension, to

26

27

3 See also Cal. Civ. Code § 51(b) (“All persons within the jurisdiction of this state are free and equal, and no matter what their . . . disability . . . are entitled to the full and equal

28

accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever”).

12

United States District Court For the Northern District of California

1 the legal profession).” Pl.’s Mot. at 8. Consequently, it “filed suit to halt the ongoing harm to

2 persons with disabilities who seek to enter the legal profession.” Id. at 9.

3

The Court finds that, following the analysis presented in General Telephone, DFEH’s suit

4 against LSAC is properly characterized as a government enforcement action seeking relief for a

5 class of aggrieved individuals, and is not a “class action” within the meaning of Rule 23. Just as

6 with an EEOC enforcement action under § 706, provisions of FEHA codified at Cal. Gov’t. Code §

7 12961 and § 12965(a) give DFEH the authority to pursue the remedies sought here. Thus, “[i]ts

8 authority to bring such actions is in no way dependent upon Rule 23.” General Telephone, 446 U.S.

9 at 324. Like Title VII, FEHA empowers DFEH to “prevent any person from engaging in any

10 unlawful practice as set forth in the [statute],” id. at 323, and “specifically authorizes [DFEH] to

11 bring a civil action,” id. at 324, in the role of a “public prosecutor testing a public right,” State Pers.

12 Bd. v. Fair Employment & Hous. Com., 39 Cal. 3d at 444. In bringing enforcement actions, DFEH

13 acts “not merely [as] a proxy for the victims of discrimination,” but also “to vindicate the public

14 interest in preventing [certain forms of] discrimination.” General Telephone, at 326. Indeed, the

15 instant suit began when Phyllis Cheng issued a “Notice of Class Action Complaint and Director’s

16 Complaint” in her official capacity as the Director of DFEH. See FAC, Ex. 3 (Director’s

17 Complaint). The Plaintiff for purposes of evaluating this motion is DFEH and not any specifically

18 identified victim, as is readily apparent by this Court’s earlier order granting permission for some of

19 DFEH’s identified “real parties in interest” to intervene in this suit on their own behalf. See Order

20 Granting in Part Motion to Intervene by Legal Aid Society - Employment Law Center (Docket No.

21 61). Given the procedure employed by DFEH in bringing this suit, and the authority with which it is

22 vested to obtain broad relief for alleged discriminatory conduct under California law, the Court

23 concludes that DFEH’s instant “enforcement suit[] should not be considered [a] representative

24 action[] subject to Rule 23.” General Telephone, at 326.

25

Further, as with EEOC enforcement actions, it is “apparent that forcing” DFEH civil actions

26 such as this one “into the Rule 23 model would in many cases distort the Rule as it is commonly

27 interpreted and in others foreclose enforcement actions not satisfying prevailing Rule 23 standards

28 but seemingly authorized by [FEHA].” General Telephone, 446 U.S. at 329-30. FEHA permits

13

United States District Court For the Northern District of California

1 DFEH to bring enforcement actions against employers with as few as five employees (10 less than

2 required under Title VII). See Cal. Gov’t. Code § 12926(d). Applying Rule 23 to actions of that

3 size “would require [DFEH] to join all aggrieved parties despite its statutory authority to proceed

4 solely in its own name,” since a putative class of five “would be too small to meet the numerosity

5 requirement” of the Rule. General Telephone, at 330. Similarly, the typicality requirement of Rule

6 23 “would limit [DFEH’s] action to claims typified by those of the [original] charging party,” id. at

7 331, despite the fact that existing law renders actionable additional claims that are “like or

8 reasonably related” to the original charge filed with DFEH, see Rodriguez v. Airborne Express, 265

9 F.3d 890, 897 (9th Cir. 2001). See also Dep’t of Fair Employment & Hous. v. Law Sch. Admission

10 Council Inc., C-12-1830 EMC, 2012 WL 4119827 at *12 (N.D. Cal. Sept. 18, 2012) (approving

11 addition of claims “like or reasonably related” to those originally filed with DFEH). Finally, the

12 adequate representation requirement of Rule 23 may operate to foreclose an enforcement action

13 “where there is a conflict of interest between the named plaintiff [DFEH] and the members of the

14 putative class.” General Telephone, at 331. Like the EEOC, DFEH “is authorized to proceed in a

15 unified action and to obtain the most satisfactory overall relief even though competing interests are

16 involved and particular groups may appear to be disadvantaged.” Id. In such cases, DFEH is

17 charged with “advanc[ing] the public interest . . . in part by making the hard choices where conflicts

18 of interest exist.” Id. The distortion that would result by forcing DFEH to pursue broad relief for

19 victims of discrimination through the mechanism of Rule 23 leads this Court to conclude that

20 DFEH’s present enforcement action cannot be “properly characterized as a ‘class action’ subject to

21 the procedural requirements of Rule 23.” Id. at 334 n.16.

22

FEHA “itself authorizes the procedure” that DFEH seeks to follow in this case, and this

23 Court finds “no basis for imposing the Rule 23 framework in [a DFEH] enforcement action” when

24 the operative statute authorizes the agency “to sue in its own name to enforce [state] law by

25 obtaining appropriate relief for those persons injured by discriminatory practices forbidden by the

26 Act.” General Telephone, at 324-25. Like the Supreme Court, this Court is “reluctant . . . [to

27 impose] requirements that might disable [an] enforcement agency from advancing the public interest

28

14

United States District Court For the Northern District of California

1 in the manner and to the extent contemplated by [its organic] statute,” and thereby undermine a

2 public interest enforcement scheme crafted by the State of California. Id. at 331.

3

Finally, there is a significant policy basis for distinguishing the DFEH’s action here and a

4 Rule 23 class action. Unlike a private class action, where typicality requirements ensure that absent

5 class members are not denied due process of law when they are bound without their explicit consent,

6 see Hansberry v. Lee, 311 U.S. 32 (1940), absent victims whose claims would otherwise fall within

7 the scope of a government enforcement action are not bound by the outcome of such an enforcement

8 suit. See Shimkus v. Gersten Companies, 816 F.2d 1318, 1320 (9th Cir. 1987) (“When the

9 government brings a discrimination action against a party resulting in a consent order, private

10 parties, not in privity with the order, are not bound by its terms and may bring their own suit against

11 the defendant.”) (citations omitted). The need for procedural safeguards of Rule 23 are thus

12 obviated to some degree.

13 C. LSAC’s Objections

14

LSAC offers three arguments as to why Rule 23 ought to apply to DFEH’s present suit.

15 First, Defendant asserts that adopting DFEH’s position would create an untenable conflict between

16 FEHA (specifically Cal. Gov’t. Code § 12961) and Rule 23. It is uncontested that the Federal Rules

17 of Civil Procedure apply to the conduct of all civil actions and proceedings in United States district

18 courts, including cases removed from state court such as the instant suit. See Fed. R. Civ. P. 1; Fed.

19 R. Civ. P. 81(c)(1); see also 28 U.S.C. § 2072(a) (providing that the Supreme Court “shall have the

20 power to prescribe general rules of practice and procedure . . . for cases in the United States district

21 courts”). “And like the rest of the Federal Rules of Civil Procedure, Rule 23 automatically applies

22 ‘in all civil actions and proceedings in the United States district courts,’ Fed. Rule Civ. Proc. 1.”

23 Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., 559 U.S. 393, __, 130 S. Ct. 1431,

24 1438 (2010) (citing Califano v. Yamasaki, 442 U.S. 682, 699–700 (1979)). From these two

25 premises, LSAC concludes that “DFEH cannot pursue class claims unless a class is certified in

26 accordance with Rule 23.” Def’s. Opp’n. Br. at 4.

27

The unstated, erroneous premise implicit within LSAC’s argument is, of course, that DFEH’s

28 “class claims” asserted here constitute a “class action” within the meaning of Rule 23. As described

15

United States District Court For the Northern District of California

1 at length above, the Supreme Court’s General Telephone decision recognizes that certain

2 government enforcement actions are not “class actions” under Rule 23 despite the fact that they may

3 seek to obtain classwide relief on behalf of a class of aggrieved parties. LSAC correctly asserts that

4 when there is a conflict between a state statute and a federal procedural rule, the federal procedural

5 rule controls “‘unless it exceeds statutory authorization or Congress’s rulemaking power.’” Jones v.

6 United Parcel Serv., Inc., 674 F.3d 1187, 1203 (10th Cir. 2012) (citing Shady Grove, 130 S. Ct. at

7 1437)). But in this case there is no such conflict. DFEH does not argue, and this Court does not

8 hold, that “California law in any sense trumps Rule 23.” Pl.’s Mot. at 16. Rather, what General

9 Telephone and the cases following it show is that under established federal law, certain government

10 enforcement actions seeking classwide remedies are not “class actions” within the meaning of Rule

11 23 and are thus not governed by the provisions of that rule. Quite simply, Rule 23 does not apply to

12 the present suit. There is, therefore, no conflict between federal and state procedural rules in this

13 case.4

14

Second, LSAC contends “[n]otwithstanding the class certification allegations in its own

15 Complaint, DFEH now seeks to avoid application of Rule 23’s class action certification

16 requirements by arguing that DFEH is not pursuing a class action after all.” Def.’s Opp’n. Br. at 7.

17 The fact that DFEH’s complaint uses the phrase “class action” is of no moment. General Telephone

18 established that the parties’ “characterization” of a suit is not the key issue. Rather “[t]he issue is

19 whether an action, however it is styled, brought by a Government agency to enforce the . . . law with

20 whose enforcement the agency is charged is subject to the requirements of Rule 23.” General

21 Telephone, 446 U.S. at 323 n.5. Further, it is clear from the pleadings that to the extent DFEH

22 sought to establish compliance with the Rule 23 in its complaint, such pleadings were made in the

23 alternative. See FAC ¶ 8 (“Section 12961 authorizes the DFEH to seek class relief without being

24 certified as the class representative. Nonetheless, this lawsuit meets the criteria for class

25

26

4 Because this action is not subject to the provisions of Rule 23, there is no need to consider

27

whether Rule 23 operates to “abridge, enlarge or modify any substantive right” so as to run afoul of the Federal Rules Enabling Act, 28 U.S.C. § 2072(b). Dep’t of Fair Employment & Hous. v. Lucent

28

Technologies, Inc., is similarly inapposite because this case does not raise the question of whether “state law [can] negate the requirement of [a] federal rule.” Id., 642 F.3d 728, 741 (9th Cir. 2011).

16

United States District Court For the Northern District of California

1 certification.”); Grid Sys. Corp. v. Texas Instruments Inc., 771 F. Supp. 1033, 1041 (N.D. Cal. 1991)

2 (“It is well established that a plaintiff may offer conflicting allegations in the alternative in his

3 complaint.”).

4

LSAC also seeks to distinguish Washington v. Chimei Innolux Corp., Nevada v. Bank of Am.

5 Corp, and similar parens patriae suits not subject to Rule 23 on the basis that those suits did not

6 involve claims seeking classwide relief on behalf of specific individuals. “The doctrine of parens

7 patriae allows a sovereign to bring suit on behalf of its citizens when the sovereign alleges injury to

8 a sufficiently substantial segment of its population, articulates an interest apart from the interests of

9 particular private parties, and expresses a quasi-sovereign interest.” Washington v. Chimei Innolux

10 Corp., 659 F.3d at 847 (citing Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 607 (1982))

11 (emphasis added). In this suit, LSAC alleges that “DFEH is not seeking relief for the public at large

12 or civil penalties payable to the State of California, but rather, specific relief on behalf of the real

13 parties in interest and members of the purported class.” Def’s. Opp’n. Br. at 8.

14

General Telephone clearly establishes that seeking remedies solely on behalf of the

15 sovereign or in the general public interest is not the metric by which a government enforcement

16 action falls outside the scope of Rule 23. When a government agency brings an enforcement action,

17 it may have multiple objectives. The Court in General Telephone observed, “[w]hen the EEOC acts,

18 albeit at the behest of and for the benefit of specific individuals, it acts also to vindicate the public

19 interest in preventing employment discrimination.” General Telephone, 446 U.S. at 326 (emphasis

20 added). Here, it is clear that DFEH seeks remedies extending beyond the interests of the identified

21 “real parties in interest.” It seeks, for example, injunctive relief prohibiting Defendant from

22 “specifically annotating LSAT . . . test scores administered under extended time conditions,” and

23 from considering “mitigation measures such as medication when making a determination as to

24 whether an applicant needs an accommodation.” FAC ¶¶ 218-219. These remedies clearly extend

25 beyond the more narrow interest of the specific aggrieved individuals identified by DFEH. They are

26 “designed to protect the public” and seek, via injunctive relief, to prevent what the agency considers

27 “continued violations of the law.” See People v. Pac. Land Research Co., 20 Cal. 3d 10, 17 (1977)

28 (“An action filed by the People seeking injunctive relief . . . is fundamentally a law enforcement

17

United States District Court For the Northern District of California

1 action designed to protect the public and not to benefit private parties. The purpose of injunctive

2 relief is to prevent continued violations of law . . .”). The record before the Court demonstrates

3 quite clearly that DFEH seeks to “vindicate” what it considers to be “the public interest in

4 preventing . . . discrimination” in the administration of the LSAT, and not simply to secure remedies

5 for a discrete group of individuals. General Telephone, 446 U.S. at 326. LSAC’s argument

6 distinguishing parens patriae suits from the instant action is, therefore, inapposite.

7

Finally, LSAC argues in opposition to DFEH’s motion that “[a]t a more fundamental level, it

8 is one thing to conclude that a federal statute allows a federal government enforcement action to be

9 pursued outside the class action requirements of the federal rules, as the Supreme Court did in

10 General Telephone. But this same analysis cannot be extended wholesale to allow a state statute to

11 prescribe the procedure for pursuing purported class claims in federal court.” Def.’s Opp’n. Br. at

12 10 (emphasis in original). LSAC cites as support the Supreme Court’s decision in Hanna v. Plumer,

13 where it reasoned “[t]o hold that a Federal Rule of Civil Procedure must cease to function whenever

14 it alters the mode of enforcing state-created rights would be to disembowel either the Constitution’s

15 grant of power over federal procedure or Congress’ attempt to exercise that power in the Enabling

16 Act.” Id., 380 U.S. 460, 473-74 (1965).

17

Again, Defendant’s argument misses the import of General Telephone. When a government

18 agency pursues classwide relief through a civil enforcement action, it is not prosecuting a “class

19 action” subject to Rule 23. This is so irrespective of whether state or federal law authorizes the

20 agency’s enforcement action. As noted above, General Telephone did not limit its holding to

21 enforcement actions brought solely under the authority of federal law; subsequent cases have applied

22 General Telephone to state agency enforcement actions.

23 ///

24 ///

25 ///

26 ///

27 ///

28 ///

18

United States District Court For the Northern District of California

1

IV. CONCLUSION

2

For the reasons stated above, the Court GRANTS DFEH’s Motion to Proceed for Group or

3 Class Relief and hereby orders that DFEH may proceed in this enforcement action without filing a

4 motion for class certification under Fed. R. Civ. P. 23.

5

This order disposes of Docket No. 106.

6

7

IT IS SO ORDERED.

8

9 Dated: April 22, 2013 10 11

_________________________ EDWARD M. CHEN United States District Judge

12

13

14

15

16

17

18

19

20

21

22

23

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25

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27

28

19

 
 Case: 3:12-cv-1830 As of: 03/20/2018 07:36 PM PDT 1 of 32
CLOSED,PROTO,ProSe,REFDIS,REFSET−JCS,RELATE
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:12−cv−01830−JCS

Department of Fair Employment and Housing v. Law School Admission Council Inc Assigned to: Magistrate Judge Joseph C. Spero Referred to: Magistrate Judge Kandis A. Westmore
Magistrate Judge Joseph C. Spero (Settlement) Relate Case Case: 3:12−cv−05052−JCS
Case in other court: Alameda County Supeior Court, RG 12621479
Cause: 42:12101 Americans w/ Disabilities Act (ADA)
Plaintiff

Date Filed: 04/12/2012 Date Terminated: 05/29/2014 Jury Demand: Both Nature of Suit: 446 American with Disabilities − Other Jurisdiction: Federal Question

Department of Fair Employment and Housing an agency of the State of California

represented by Mari NMN Mayeda Dept. of Fair Employment and Housing Legal 2218 Kausen Drive, Suite 100 Elk Grove, CA 95758 916−585−7106 Fax: 888−382−5293 Email: mari.mayeda@dfeh.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Sybil Villanueva Department of Fair Employment and Housing 2218 Kausen Drive Suite 100 Elk Grove, CA 95758 213−439−6799 Fax: (888) 382−5293 Email: sybil.villanueva@dfeh.ca.gov TERMINATED: 12/10/2013 LEAD ATTORNEY

Denise Marie Hulett Legal Aid Society Employment Law Center 180 Montgomery Street, Suite 600 San Francisco, CA 94104−4244 415−864−8848 Fax: 415−593−0096 Email: dhulett@maldef.org TERMINATED: 01/22/2014 ATTORNEY TO BE NOTICED

Irina Trasovan Dept. of Fair Employment and Housing 320 West Fourth Street 10th Floor Los Angeles, CA 90013 213−337−4487 Email: Irina.Trasovan@dfeh.ca.gov ATTORNEY TO BE NOTICED

Joni Elizabeth Carrasco Dept. of Fair Employment and Housing 320 W. 4th Street, 10th floor Los Angeles, CA 90017

Case: 3:12-cv-1830 As of: 03/20/2018 07:36 PM PDT 2 of 32
213−337−4461 Email: joni.carrasco@dfeh.ca.gov ATTORNEY TO BE NOTICED
Phoebe P. Liu California Department of Fair Employment and Housing Legal Division 1055 West 7th Street Suite 1400 Los Angeles, CA 90017 213−330−2297 Fax: 888−382−5293 Email: phoebe.liu@dfeh.ca.gov ATTORNEY TO BE NOTICED
Sami Hasan Littler Mendelson, P.C. 2050 Main Street, Suite 900 Irvine, CA 92614 949−705−3000 Fax: 949−724−1201 Email: shasan@littler.com ATTORNEY TO BE NOTICED

V. Intervenor Pla Elizabeth Hennessey−Severson

represented by Claudia Center The Legal Aid Society Employment Law Center 180 Montgomery Street Suite 600 San Francisco, CA 94104 415−864−8848 Fax: 415−593−0096 Email: ccenter@las−elc.org TERMINATED: 04/04/2014 LEAD ATTORNEY
Gina Gemello Legal Aid Society − Employment Law Center 180 Montgomery St., Ste. 600 San Francisco, CA 94104−4244 415−864−8848 Email: ggemello@las−elc.org (Inactive) ATTORNEY TO BE NOTICED
Jinny Kim Legal Aid at Work 180 Montgomery Street, Suite 600 San Francisco, CA 94104 415−864−8848 Fax: 415−593−0096 Email: jkim@legalaidatwork.org ATTORNEY TO BE NOTICED
William Clarence McNeill , III The Legal Aid at Work 180 Montgomery Street, Suite 600 San Francisco, CA 94104 415−864−8848 Fax: 415−593−0096

Case: 3:12-cv-1830 As of: 03/20/2018 07:36 PM PDT 3 of 32

Email: WMcNeill@legalaidatwork.org ATTORNEY TO BE NOTICED

Intervenor Pla Nicholas Jones

represented by Claudia Center (See above for address) TERMINATED: 04/04/2014 LEAD ATTORNEY

Gina Gemello (See above for address) ATTORNEY TO BE NOTICED

Jinny Kim (See above for address) ATTORNEY TO BE NOTICED

William Clarence McNeill , III (See above for address) ATTORNEY TO BE NOTICED

Intervenor Pla Andrew Quan

represented by Claudia Center (See above for address) TERMINATED: 04/04/2014 LEAD ATTORNEY

Gina Gemello (See above for address) ATTORNEY TO BE NOTICED

Jinny Kim (See above for address) ATTORNEY TO BE NOTICED

William Clarence McNeill , III (See above for address) ATTORNEY TO BE NOTICED

Intervenor Pla United States of America

represented by Nabina J. Sinha US Department of Justice Disability Rights Section 950 Pennsylvania Avenue, N.W. − NYA Washington, DC 20530 202−616−2730 Email: nabina.sinha@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Megan Elizabeth Schuller U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave. NW − NYA Washington, DC 20530 202−307−0663 Fax: 202−305−9775 Email: megan.schuller@usdoj.gov ATTORNEY TO BE NOTICED

Melanie Lea Proctor United States Attorney's Office Civil Division

Case: 3:12-cv-1830 As of: 03/20/2018 07:36 PM PDT 4 of 32

1301 Clay Street 3rd Floor San Francisco, CA 94612 (510) 788−3507 Fax: (510) 637−3780 Email: Melanie.Proctor@usdoj.gov TERMINATED: 10/30/2017

Sara Winslow United States Attorney's Office Northern District of California 450 Golden Gate Avenue 9th Floor, Box 36055 San Francisco, CA 94102 415/436−6925 Fax: 415/436−6748 Email: sara.winslow@usdoj.gov ATTORNEY TO BE NOTICED

Intervenor Pla
Legal Aid Society − Employment Law Center

represented by Legal Aid Society − Employment Law Center 180 Montgomery St Suite 600 San Francisco, CA 94104 (415) 864−8848 Fax: 415−593−0096 Email: ccenter@las−elc.org PRO SE

Claudia Center (See above for address) TERMINATED: 04/04/2014 LEAD ATTORNEY

V.
Defendant
Law School Admission Council Inc a Delaware tax exempt corporation

represented by Julie Marie Capell Davis Wright Tremaine LLP 865 South Figueroa Street, Suite 2400 Los Angeles, CA 90017 (213) 633−6800 Fax: (213) 633−6899 Email: juliecapell@dwt.com TERMINATED: 03/18/2015 LEAD ATTORNEY
Caroline Mew Perkins Coie 700 13th St. NW Suite 600 Washington, DC 20005 202−654−1767 Fax: 202−624−9551 Email: cmew@perkinscoie.com ATTORNEY TO BE NOTICED
Eric Andrew Herzog Norton Rose Fulbright US LLP 555 S Flower St Fl 41 Los Angeles, CA 90071 213−892−9200

Case: 3:12-cv-1830 As of: 03/20/2018 07:36 PM PDT 5 of 32
Fax: 213−892−9494 Email: eric.herzog@nortonrosefulbright.com ATTORNEY TO BE NOTICED
Robert A Burgoyne Perkins Coie LLP 700 13th Street, NW Suite 600 Washington, DC 20005−3960 202−654−1744 Fax: 202−624−9548 Email: rburgoyne@perkinscoie.com ATTORNEY TO BE NOTICED
Robert Eugene Darby Fulbright Jaworski 555 S. Flower Street 41st Floor Los Angeles, Ca 90071 213−892−9232 Fax: 213−892−9494 Email: rdarby@fulbright.com TERMINATED: 03/18/2015
Interested Party Peter Roe
Interested Party Raymond Banks
Interested Party Kevin Collins
Interested Party Rodney Decomo−Schmitt
Interested Party Andrew Grossman
Interested Party Otillia Ioan
Interested Party Alex Johnson
Interested Party Caroline Lee
Interested Party Stephen Semos
Interested Party Gazelle Taleshpour
Interested Party Kevin Vielbaum
Interested Party

Case: 3:12-cv-1830 As of: 03/20/2018 07:36 PM PDT 6 of 32

Austin Whitney

Amicus American Foundation for the Blind

represented by Bill Lann Lee Civil Rights Education & Enforcement Center 2120 University Avenue Berkeley, CA 94704 510−431−8484 Email: blee@creeclaw.org ATTORNEY TO BE NOTICED

Timothy P. Fox Civil Rights Education & Enforcement Center 104 Broadway, Suite 400 Denver, CO 80203 303−757−7901 Fax: 303−595−9705 Email: tfox@creeclaw.org ATTORNEY TO BE NOTICED

Amicus
Association on Higher Education And Disability

represented by Bill Lann Lee (See above for address) ATTORNEY TO BE NOTICED

Timothy P. Fox (See above for address) ATTORNEY TO BE NOTICED

Amicus
Association of University Centers on Disabilities

represented by Bill Lann Lee (See above for address) ATTORNEY TO BE NOTICED

Timothy P. Fox (See above for address) ATTORNEY TO BE NOTICED

Amicus Center for Public Representation

represented by Bill Lann Lee (See above for address) ATTORNEY TO BE NOTICED

Timothy P. Fox (See above for address) ATTORNEY TO BE NOTICED

Amicus Karen Dahlman

represented by Bill Lann Lee (See above for address) ATTORNEY TO BE NOTICED

Timothy P. Fox (See above for address) ATTORNEY TO BE NOTICED

Amicus Robert Dinerstein

represented by Bill Lann Lee (See above for address)

Case: 3:12-cv-1830 As of: 03/20/2018 07:36 PM PDT 7 of 32

ATTORNEY TO BE NOTICED

Timothy P. Fox (See above for address) ATTORNEY TO BE NOTICED

Amicus Disability Rights Bar Association

represented by Bill Lann Lee (See above for address) ATTORNEY TO BE NOTICED

Timothy P. Fox (See above for address) ATTORNEY TO BE NOTICED

Amicus
Disability Rights Education & Defense Fund

represented by Bill Lann Lee (See above for address) ATTORNEY TO BE NOTICED

Timothy P. Fox (See above for address) ATTORNEY TO BE NOTICED

Amicus Disability Rights New York

represented by Bill Lann Lee (See above for address) ATTORNEY TO BE NOTICED

Timothy P. Fox (See above for address) ATTORNEY TO BE NOTICED

Amicus Everyone Reading, Inc.

represented by Bill Lann Lee (See above for address) ATTORNEY TO BE NOTICED

Timothy P. Fox (See above for address) ATTORNEY TO BE NOTICED

Amicus Paul Grossman

represented by Bill Lann Lee (See above for address) ATTORNEY TO BE NOTICED

Timothy P. Fox (See above for address) ATTORNEY TO BE NOTICED

Amicus Elizabeth Hennessey−Severson

represented by Bill Lann Lee (See above for address) ATTORNEY TO BE NOTICED

Timothy P. Fox (See above for address) ATTORNEY TO BE NOTICED

Amicus

Case: 3:12-cv-1830 As of: 03/20/2018 07:36 PM PDT 8 of 32

Jo Anne Simon P.C.

represented by Bill Lann Lee (See above for address) ATTORNEY TO BE NOTICED

Timothy P. Fox (See above for address) ATTORNEY TO BE NOTICED

Amicus Arlene Kanter

represented by Bill Lann Lee (See above for address) ATTORNEY TO BE NOTICED

Timothy P. Fox (See above for address) ATTORNEY TO BE NOTICED

Amicus Brenda Cheryl Kaplan

represented by Bill Lann Lee (See above for address) ATTORNEY TO BE NOTICED

Timothy P. Fox (See above for address) ATTORNEY TO BE NOTICED

Amicus Lynn J. Antoinette

represented by Bill Lann Lee (See above for address) ATTORNEY TO BE NOTICED

Timothy P. Fox (See above for address) ATTORNEY TO BE NOTICED

Amicus
Learning Disabilities Association of America

represented by Bill Lann Lee (See above for address) ATTORNEY TO BE NOTICED

Timothy P. Fox (See above for address) ATTORNEY TO BE NOTICED

Amicus Amy Margolis

represented by Bill Lann Lee (See above for address) ATTORNEY TO BE NOTICED

Timothy P. Fox (See above for address) ATTORNEY TO BE NOTICED

Amicus
National Association of Law Students with Disabilities

represented by Bill Lann Lee (See above for address) ATTORNEY TO BE NOTICED

Timothy P. Fox (See above for address) ATTORNEY TO BE NOTICED

Case: 3:12-cv-1830 As of: 03/20/2018 07:36 PM PDT 9 of 32

Amicus National Federation of the Blind
Amicus Richard K. Neumann
Amicus Michael A. Schwartz
Amicus The Judge David L. Bazelon Center for Mental Health Law
Amicus Alexandra Tucker
Amicus Jeanette Wasserstein

represented by Bill Lann Lee (See above for address) ATTORNEY TO BE NOTICED
Timothy P. Fox (See above for address) ATTORNEY TO BE NOTICED
represented by Bill Lann Lee (See above for address) ATTORNEY TO BE NOTICED
Timothy P. Fox (See above for address) ATTORNEY TO BE NOTICED
represented by Bill Lann Lee (See above for address) ATTORNEY TO BE NOTICED
Timothy P. Fox (See above for address) ATTORNEY TO BE NOTICED
represented by Bill Lann Lee (See above for address) ATTORNEY TO BE NOTICED
Timothy P. Fox (See above for address) ATTORNEY TO BE NOTICED
represented by Bill Lann Lee (See above for address) ATTORNEY TO BE NOTICED
Timothy P. Fox (See above for address) ATTORNEY TO BE NOTICED
represented by Bill Lann Lee (See above for address) ATTORNEY TO BE NOTICED
Timothy P. Fox (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/12/2012

# Docket Text
1 NOTICE OF REMOVAL (no process) from Alameda County Superior Court. Their case number is RG 12621479. (Filing fee $350; receipt number 34611072914). Filed by Law School Admission Council Inc. (Attachments: # 1 Civil Cover Sheet)(slh, COURT STAFF) (Filed on 4/12/2012) (Entered: 04/13/2012)

Case: 3:12-cv-1830 As of: 03/20/2018 07:36 PM PDT 10 of 32

04/12/2012 04/12/2012 04/13/2012
04/17/2012 04/18/2012 04/19/2012 04/19/2012 04/19/2012 05/01/2012 05/01/2012 05/16/2012
05/17/2012
05/22/2012
05/22/2012 05/22/2012

2 Certificate of Interested Entities or Persons by Law School Admission Council Inc. (slh, COURT STAFF) (Filed on 4/12/2012) (Entered: 04/13/2012)
3 Scheduling Order for Cases Asserting Denial of Right of Access under Americans with Disabilities Act. (Attachments: # 1 Standing Order)(slh, COURT STAFF) (Filed on 4/12/2012) (Entered: 04/13/2012)
4 CLERKS NOTICE Case Management Statement due by 11/30/2012. Case Management Conference set for 12/7/2012 09:00 AM in Courtroom 5, 17th Floor, San Francisco. Plaintiff shall give notice to defendants. This is a text only docket entry, there is no document associated with this notice. (bpf, COURT STAFF) (Filed on 4/13/2012) (Entered: 04/13/2012)
5 DEMAND for Trial by Jury by Department of Fair Employment and Housing. (Saylor, Susan) (Filed on 4/17/2012) (Entered: 04/17/2012)
6 CERTIFICATE OF SERVICE by Law School Admission Council Inc of Initial Documents (Capell, Julie) (Filed on 4/18/2012) (Entered: 04/18/2012)
7 STIPULATION for Extension of Time to Answer or Otherwise Respond to Complaint filed by Law School Admission Council Inc. (Capell, Julie) (Filed on 4/19/2012) (Entered: 04/19/2012)
8 MOTION of Robert A. Burgoyne for leave to appear in Pro Hac Vice (Filing fee $ 305, receipt number 34611073168) filed by Law School Admission Council Inc. (Attachments: # 1 Proposed Order)(slh, COURT STAFF) (Filed on 4/19/2012) (Entered: 04/25/2012)
9 MOTION of Caroline M. Mew for leave to appear in Pro Hac Vice (Filing fee $ 305, receipt number 34611073167) filed by Law School Admission Council Inc. (Attachments: # 1 Proposed Order)(slh, COURT STAFF) (Filed on 4/19/2012) (Entered: 04/25/2012)
10 ORDER by Judge Edward M. Chen granting 8 Motion for Pro Hac Vice (Burgoyne) (bpf, COURT STAFF) (Filed on 5/1/2012) (Entered: 05/01/2012)
11 ORDER by Judge Edward M. Chen granting 9 Motion for Pro Hac Vice (Mew) (bpf, COURT STAFF) (Filed on 5/1/2012) (Entered: 05/01/2012)
12 MOTION Permission to proceed using fictitious names filed by Department of Fair Employment and Housing. Motion Hearing set for 6/22/2012 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Responses due by 5/30/2012. Replies due by 6/6/2012. (Attachments: # 1 Declaration Susan Saylor Dec., # 2 Declaration John Doe Dec., # 3 Declaration Jane Doe Dec., # 4 Declaration Peter Roe Dec.)(Saylor, Susan) (Filed on 5/16/2012) (Entered: 05/16/2012)
13 MOTION to Dismiss filed by Law School Admission Council Inc. Motion Hearing set for 7/13/2012 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Responses due by 5/31/2012. Replies due by 6/7/2012. (Attachments: # 1 Declaration Declaration of Caroline Mew, # 2 Exhibit Mew Decl. Ex. 1, # 3 Exhibit Mew Decl. Ex. 2, # 4 Proposed Order)(Burgoyne, Robert) (Filed on 5/17/2012) (Entered: 05/17/2012)
14 CLERKS NOTICE resetting motion hearing from 6/22/12 to 7/13/12 at 1:30 p.m. as to 12 MOTION Permission to proceed using fictitious names . Responses due by 5/30/2012. Replies due by 6/6/2012. Motion Hearing set for 7/13/2012 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. This is a text only docket entry, there is no document associated with this notice. (bpf, COURT STAFF) (Filed on 5/22/2012) (Entered: 05/22/2012)
15 STIPULATION WITH PROPOSED ORDER re 13 MOTION to Dismiss filed by Department of Fair Employment and Housing. (Attachments: # 1 Declaration Susan Saylor Dec., # 2 Proposed Order Order RE Briefing Schedule)(Saylor, Susan) (Filed on 5/22/2012) (Entered: 05/22/2012)
16 (proposed order) re MOTION Permission to proceed using fictitious names re 12 MOTION Permission to proceed using fictitious names filed by Department of Fair Employment and Housing. Motion Hearing set for 7/13/2012 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Responses due by

Case: 3:12-cv-1830 As of: 03/20/2018 07:36 PM PDT 11 of 32

05/24/2012
05/29/2012 05/30/2012 06/06/2012
06/19/2012 06/21/2012
06/21/2012 06/21/2012 06/21/2012
06/21/2012 06/26/2012 06/26/2012 06/27/2012 06/28/2012 07/03/2012 07/03/2012 07/05/2012

5/30/2012. Replies due by 6/6/2012. (Saylor, Susan) (Filed on 5/22/2012) Modified on 5/24/2012 (bpf, COURT STAFF). (Entered: 05/22/2012)
17 ORDER APPROVING STIPULATION TO MODIFY BRIEFING SCHEDULE AS TO 13 MOTION to Dismiss. Responses due by 6/21/2012. Replies due by 6/28/2012.. Signed by Judge Edward M. Chen on 5/24/12. (bpf, COURT STAFF) (Filed on 5/24/2012) (Entered: 05/24/2012)
18 NOTICE of Change of Address by Susan Marie Saylor (Saylor, Susan) (Filed on 5/29/2012) (Entered: 05/29/2012)
19 RESPONSE (re 12 MOTION Permission to proceed using fictitious names ) filed byLaw School Admission Council Inc. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Burgoyne, Robert) (Filed on 5/30/2012) (Entered: 05/30/2012)
20 RESPONSE (re 12 MOTION Permission to proceed using fictitious names ) Plaintiff's Response In Support of Motion to Proceed Using Fictitious Names filed byDepartment of Fair Employment and Housing. (Saylor, Susan) (Filed on 6/6/2012) (Entered: 06/06/2012)
21 NOTICE OF AUTHORITY by Law School Admission Council Inc re 13 MOTION to Dismiss (Attachments: # 1 Exhibit A)(Burgoyne, Robert) (Filed on 6/19/2012) Modified on 6/20/2012 (slh, COURT STAFF). (Entered: 06/19/2012)
22 MOTION for Administrative Relief filed by Department of Fair Employment and Housing. Motion Hearing set for 7/26/2012 09:00 AM in Courtroom 1, 17th Floor, San Francisco before Hon. Edward M. Chen. Responses due by 7/5/2012. Replies due by 7/12/2012. (Saylor, Susan) (Filed on 6/21/2012) Modified on 6/25/2012 (slh, COURT STAFF). (Entered: 06/21/2012)
23 Proposed Order re 22 MOTION for Administrative Relief by Department of Fair Employment and Housing. (Saylor, Susan) (Filed on 6/21/2012) Modified on 6/25/2012 (slh, COURT STAFF). (Entered: 06/21/2012)
24 STIPULATION re 23 Proposed Order, 22 MOTION for Order of Sale Joint Notice of Motion and Motion for Administrative Relief filed by Department of Fair Employment and Housing. (Saylor, Susan) (Filed on 6/21/2012) (Entered: 06/21/2012)
25 RESPONSE (re 13 MOTION to Dismiss , 22 MOTION for Administrative Relief) Plaintiff's Opposition to Motion to Dismiss filed by Department of Fair Employment and Housing. (Saylor, Susan) (Filed on 6/21/2012) Modified on 6/25/2012 (slh, COURT STAFF). (Entered: 06/21/2012)
26 Proposed Order Denying Defendant's 13 Motion to Dismiss by Department of Fair Employment and Housing. (Saylor, Susan) (Filed on 6/21/2012) Modified on 6/25/2012 (slh, COURT STAFF). (Entered: 06/21/2012)
27 CLERKS NOTICE VACATING 7/26/12 HEARING (Re Motion #22 and #24). Court to rule on papers. This is a text only docket entry, there is no document associated with this notice.(bpf, COURT STAFF) (Filed on 6/26/2012) (Entered: 06/26/2012)
28 NOTICE by Department of Fair Employment and Housing Notice of Case Management Conference (Saylor, Susan) (Filed on 6/26/2012) (Entered: 06/26/2012)
29 RESPONSE (re 13 MOTION to Dismiss ) Statement of Interest of the United States of America filed byUNITED STATES OF AMERICA. (Proctor, Melanie) (Filed on 6/27/2012) (Entered: 06/27/2012)
30 REPLY (re 13 MOTION to Dismiss ) filed byLaw School Admission Council Inc. (Burgoyne, Robert) (Filed on 6/28/2012) (Entered: 06/28/2012)
31 NOTICE of Appearance by Nabina J. Sinha (Sinha, Nabina) (Filed on 7/3/2012) (Entered: 07/03/2012)
32 NOTICE of Appearance by Megan Elizabeth Schuller (Schuller, Megan) (Filed on 7/3/2012) (Entered: 07/03/2012)
33 NOTICE of Appearance by Ruth Sybil Villanueva (Villanueva, Ruth Sybil) (Filed on 7/5/2012) (Entered: 07/05/2012)

Case: 3:12-cv-1830 As of: 03/20/2018 07:36 PM PDT 12 of 32

07/06/2012 07/09/2012 07/11/2012 07/11/2012 07/13/2012
07/20/2012 07/20/2012 07/20/2012 07/27/2012
08/07/2012 08/10/2012 08/17/2012 08/20/2012 09/05/2012
09/07/2012

34 ORDER RE THIRD PARTY LETTER OF JUNE 25, 2012. Signed by Judge Edward M. Chen on 07/06/2012. (Attachments: # 1 Letter)(emclc2, COURT STAFF) (Filed on 7/6/2012) (Entered: 07/06/2012)
35 ORDER by Judge Edward M. Chen granting 22 Motion for order of sale (bpf, COURT STAFF) (Filed on 7/9/2012) (Entered: 07/09/2012)
36 RESPONSE to re 29 Opposition/Response to Motion Response to U.S. Statement of Interest by Law School Admission Council Inc. (Attachments: # 1 Exhibit A)(Burgoyne, Robert) (Filed on 7/11/2012) (Entered: 07/11/2012)
37 RESPONSE to re 34 Order Response to Letter by LAS−ELC by Law School Admission Council Inc. (Burgoyne, Robert) (Filed on 7/11/2012) (Entered: 07/11/2012)
38 Minute Entry: Motion Hearing held on 7/13/2012 before Edward M. Chen (Date Filed: 7/13/2012) re 13 MOTION to Dismiss filed by Law School Admission Council Inc, 12 MOTION Permission to proceed using fictitious names filed by Department of Fair Employment and Housing. Supplemental briefing shall be filed by 7/20/12. Court will then take matter under submission and to issue order. CMC already set for 12/7/12 at 9:00 a.m.(Court Reporter Debra Pas.) (bpf, COURT STAFF) (Date Filed: 7/13/2012) (Entered: 07/13/2012)
39 Brief REQUEST FOR LEAVE TO FILE AMICUS CURIAE BRIEF AND AMICUS CURIAE BRIEF filed byLegal Aid Society − Employment Law Center. (Center, Claudia) (Filed on 7/20/2012) (Entered: 07/20/2012)
40 RESPONSE (re 13 MOTION to Dismiss ) Supplemental Brief on Motion to Dismiss filed byDepartment of Fair Employment and Housing. (Attachments: # 1 Declaration)(Saylor, Susan) (Filed on 7/20/2012) (Entered: 07/20/2012)
41 MEMORANDUM in Support by Law School Admission Council Inc re 13 MOTION to Dismiss Supplemental Brief (Attachments: # 1 Exhibit 1)(Burgoyne, Robert) (Filed on 7/20/2012) Modified on 7/23/2012 (slh, COURT STAFF). (Entered: 07/20/2012)
42 MOTION to Intervene filed by Legal Aid Society − Employment Law Center. Motion Hearing set for 9/7/2012 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Responses due by 8/10/2012. Replies due by 8/17/2012. (Attachments: # 1 Memorandum of Points and Authorities, # 2 Declaration Declaration of Claudia Center, # 3 Exhibit Exhibit A, # 4 Proposed Order)(Center, Claudia) (Filed on 7/27/2012) (Entered: 07/27/2012)
43 ORDER Re 39 Request for Leave to File Amicus Curiae Brief. Signed by Judge Edward M. Chen on 08/07/2012. (emclc3, COURT STAFF) (Filed on 8/7/2012) (Entered: 08/07/2012)
44 RESPONSE (re 42 MOTION to Intervene ) filed byLaw School Admission Council Inc. (Attachments: # 1 Proposed Order Exhibit A, # 2 Proposed Order Exhibit B)(Burgoyne, Robert) (Filed on 8/10/2012) (Entered: 08/10/2012)
45 REPLY (re 42 MOTION to Intervene ) REPLY BRIEF IN SUPPORT OF PLAINTIFF−INTERVENORS' MOTION TO INTERVENE filed byAndrew Quan. (Center, Claudia) (Filed on 8/17/2012) (Entered: 08/17/2012)
46 ORDER by Judge Edward M. Chen Granting 12 Plaintiff's Motion to Proceed Using Fictitious Names. (emcsec, COURT STAFF) (Filed on 8/20/2012) (Entered: 08/20/2012)
47 MOTION to Intervene filed by UNITED STATES OF AMERICA. Motion Hearing set for 10/12/2012 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Responses due by 9/19/2012. Replies due by 9/26/2012. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Proctor, Melanie) (Filed on 9/5/2012) (Entered: 09/05/2012)
48 Minute Entry: Motion Hearing held on 9/7/2012 before Edward M. Chen (Date Filed: 9/7/2012) re 42 MOTION to Intervene filed by Legal Aid Society − Employment Law Center. Court defers ruling on this motion until after the 10/12/12 hearing on USs motion to intervene. Intervenors Quans supplemental reply is due 9/26/12. Defendants sur−reply is due 10/3/12. Court will then issue order. Parties shall be prepared to

Case: 3:12-cv-1830 As of: 03/20/2018 07:36 PM PDT 13 of 32

09/18/2012 09/19/2012 09/25/2012 09/25/2012 09/26/2012 09/26/2012 10/03/2012 10/05/2012 10/12/2012
10/16/2012 10/16/2012
10/18/2012 10/18/2012 10/19/2012 10/19/2012

discuss ADR selection at the 12/7/12 case management conference. (Court Reporter Belle Ball.) (bpf, COURT STAFF) (Date Filed: 9/7/2012) (Entered: 09/07/2012)
49 ORDER by Judge Edward M. Chen Granting in Part and Denying in Part 13 Defendant's Motion to Dismiss. (emcsec, COURT STAFF) (Filed on 9/18/2012) (Entered: 09/18/2012)
50 RESPONSE (re 47 MOTION to Intervene ) filed byLaw School Admission Council Inc. (Attachments: # 1 Proposed Order)(Burgoyne, Robert) (Filed on 9/19/2012) (Entered: 09/19/2012)
51 STIPULATION WITH PROPOSED ORDER for Extension of Time to File Answer to Complaint filed by Law School Admission Council Inc. (Attachments: # 1 Declaration of Caroline Mew)(Mew, Caroline) (Filed on 9/25/2012) (Entered: 09/25/2012)
52 STIPULATION AND ORDER re 51 for Extension of Time to File Answer to Complaint filed by Law School Admission Council Inc. Signed by Judge Edward M. Chen on 9/25/12. (bpf, COURT STAFF) (Filed on 9/25/2012) (Entered: 09/25/2012)
53 REPLY (re 47 MOTION to Intervene ) in Support of Motion by the United States to Intervene filed byUNITED STATES OF AMERICA. (Proctor, Melanie) (Filed on 9/26/2012) (Entered: 09/26/2012)
54 Brief re 42 MOTION to Intervene Supplemental Briefing in Support of Plaintiff−Intervenors' Motion to Intervene filed byAndrew Quan. (Related document(s) 42 ) (Center, Claudia) (Filed on 9/26/2012) (Entered: 09/26/2012)
55 RESPONSE (re 42 MOTION to Intervene ) Sur−Reply to Supplemental Brief on Plaintiff−Intervenors' Motion to Intervene filed byLaw School Admission Council Inc. (Burgoyne, Robert) (Filed on 10/3/2012) (Entered: 10/03/2012)
56 Letter from Plaintiff, Department of Fair Employment and Housing Letter to EMC Requesting Publication. (Saylor, Susan) (Filed on 10/5/2012) (Entered: 10/05/2012)
57 Minute Entry: Motion Hearing held on 10/12/2012 before Edward M. Chen (Date Filed: 10/12/2012) re 42 MOTION to Intervene filed by Legal Aid Society − Employment Law Center, 47 MOTION to Intervene filed by UNITED STATES OF AMERICA. (Court Reporter Joan Columbini.) (wsn, COURT STAFF) (Date Filed: 10/12/2012) (Entered: 10/15/2012)
58 ANSWER to Complaint with Jury Demand byLaw School Admission Council Inc. (Burgoyne, Robert) (Filed on 10/16/2012) (Entered: 10/16/2012)
59 Transcript of Proceedings held on 7−13−2012, before Judge Edward M. Chen. Court Reporter/Transcriber Debra L. Pas, CRR, Telephone number (415) 431−1477. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 1/14/2013. (Pas, Debra) (Filed on 10/16/2012) (Entered: 10/16/2012)
60 ORDER Granting 47 Motion to Intervene by United States of America. Signed by Judge Edward M. Chen on 10/18/2012. (emcsec, COURT STAFF) (Filed on 10/18/2012) (Entered: 10/18/2012)
61 ORDER Granting in Part and Denying in Part 42 Motion to Intervene by Legal Aid Society − Employment Law Center. Signed by Judge Edward M. Chen on 10/18/2012. (emcsec, COURT STAFF) (Filed on 10/18/2012) (Entered: 10/18/2012)
62 First Intervenor COMPLAINT Pursuant to the Americans with Disabilities Act, 42 U.S.C. sec. 12181 et seq. and 122203. Filed byUNITED STATES OF AMERICA. (Proctor, Melanie) (Filed on 10/19/2012) (Entered: 10/19/2012)
63 Intervenor COMPLAINT . Filed byElizabeth Hennessey−Severson, Andrew Quan, Nicholas Jones. (Center, Claudia) (Filed on 10/19/2012) (Entered: 10/19/2012)

Case: 3:12-cv-1830 As of: 03/20/2018 07:36 PM PDT 14 of 32

10/25/2012 10/29/2012
11/09/2012
11/09/2012 11/09/2012 11/26/2012 11/26/2012 11/27/2012
11/30/2012 12/03/2012 12/03/2012 12/06/2012 12/10/2012 12/10/2012 12/11/2012

64 STIPULATION WITH PROPOSED ORDER Joint Motion to Reschedule CMC; [Proposed] Order filed by UNITED STATES OF AMERICA. (Proctor, Melanie) (Filed on 10/25/2012) (Entered: 10/25/2012)
65 STIPULATION AND ORDER re 64 Joint Motion to Reschedule CMC; [Proposed] Order filed by UNITED STATES OF AMERICA Case Management Statement due by 12/7/2012. Case Management Conference set for 12/14/2012 09:00 AM in Courtroom 5, 17th Floor, San Francisco.. Signed by Judge Edward M. Chen on 10/29/12. (bpf, COURT STAFF) (Filed on 10/29/2012) (Entered: 10/29/2012)
66 MOTION to Dismiss Partially Dismiss U.S. DFEH's Complaint filed by Law School Admission Council Inc. Motion Hearing set for 12/14/2012 01:30 PM in Courtroom C, 15th Floor, San Francisco before Hon. Edward M. Chen. Responses due by 11/26/2012. Replies due by 12/3/2012. (Attachments: # 1 Proposed Order Proposed Order Granting Motion to Partially Dismiss Complaint)(Burgoyne, Robert) (Filed on 11/9/2012) (Entered: 11/09/2012)
67 ANSWER to Intervenor Complaint ANSWER TO COMPLAINT IN INTERVENTION BY THE UNITED STATES byLaw School Admission Council Inc. (Burgoyne, Robert) (Filed on 11/9/2012) (Entered: 11/09/2012)
68 ANSWER to Intervenor Complaint ANSWER TO COMPLAINT IN INTERVENTION BY PLAINTIFFS−INTERVENORS ANDREW QUAN, NICHOLAS JONES, AND ELIZABETH HENNESSEY−SEVERSON byLaw School Admission Council Inc. (Burgoyne, Robert) (Filed on 11/9/2012) (Entered: 11/09/2012)
69 MOTION to Relate Case filed by Alexander Stern. (Attachments: # 1 Declaration, # 2 Proposed Order)(Stern, Andrew) (Filed on 11/26/2012) (Entered: 11/26/2012)
70 RESPONSE (re 66 MOTION to Dismiss Partially Dismiss U.S. DFEH's Complaint ) Opposition to Defendant's Motion filed byUNITED STATES OF AMERICA. (Proctor, Melanie) (Filed on 11/26/2012) (Entered: 11/26/2012)
71 CLERKS NOTICE RESETTING MOTION AND CMC FROM 12/14/12 TO 12/17/12 AT 1:30 P.M. as to 66 MOTION to Dismiss Partially Dismiss U.S. DFEH's Complaint. Briefing schedule remains the same (Reply due: 11/30/12). Case Management Statement due by 12/10/2012. Case Management Conference set for 12/17/2012 01:30 PM in Courtroom 5, 17th Floor, San Francisco. Motion Hearing set for 12/17/2012 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. THIS IS A TEXT ONLY DOCKET ENTRY; THERE IS NO DOCUMENT ASSOCIATED WITH THIS NOTICE. (bpf, COURT STAFF) (Filed on 11/27/2012) (Entered: 11/27/2012)
72 RESPONSE (re 69 MOTION to Relate Case ) filed byLaw School Admission Council Inc. (Attachments: # 1 Proposed Order)(Burgoyne, Robert) (Filed on 11/30/2012) (Entered: 11/30/2012)
73 REPLY (re 66 MOTION to Dismiss Partially Dismiss U.S. DFEH's Complaint ) filed byLaw School Admission Council Inc. (Burgoyne, Robert) (Filed on 12/3/2012) (Entered: 12/03/2012)
74 NOTICE of Appearance Department of Fair Employment and Housing (Liu, Phoebe) (Filed on 12/3/2012) (Entered: 12/03/2012)
75 ORDER Re Parties' Letters. Signed by Judge Edward M. Chen on 12/6/2012. (emcsec, COURT STAFF) (Filed on 12/6/2012) (Entered: 12/06/2012)
76 NOTICE of Change In Counsel Department of Fair Employment and Housing (Villanueva, Ruth Sybil) (Filed on 12/10/2012) (Entered: 12/10/2012)
77 CASE MANAGEMENT STATEMENT (JOINT) and PROPOSED ORDER filed by UNITED STATES OF AMERICA. (Proctor, Melanie) (Filed on 12/10/2012) (Entered: 12/10/2012)
78 CLERKS NOTICE RESETTING MOTION TO DISMISS AND CMC FROM 12/17/12 TO TUESDAY 1/29/13 AT 1:30 P.M. as to 66 MOTION to Dismiss Partially Dismiss U.S. DFEH's Complaint. Case Management Statement due by 1/22/2013. Case Management Conference reset for 1/29/2013 01:30 PM in Courtroom 5, 17th Floor, San Francisco. Motion Hearing set for 1/29/2013 01:30 PM in

Case: 3:12-cv-1830 As of: 03/20/2018 07:36 PM PDT 15 of 32

12/13/2012 01/08/2013 01/15/2013 01/15/2013
01/15/2013
01/15/2013 01/15/2013 01/15/2013 01/15/2013

Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. THIS IS A TEXT ONLY DOCKET ENTRY; THERE IS NO DOCUMENT ASSOCIATED WITH THIS NOTICE. (bpf, COURT STAFF) (Filed on 12/11/2012) (Entered: 12/11/2012)
79 ORDER by Judge Edward M. Chen granting 69 Motion to Relate Case (C12−5052 EMC) Stern v. Law School (bpf, COURT STAFF) (Filed on 12/13/2012) (Entered: 12/13/2012)
80 NOTICE of Appearance by Mari NMN Mayeda (Mayeda, Mari) (Filed on 1/8/2013) (Entered: 01/08/2013)
81 MOTION to Amend/Correct 63 Intervenor Complaint NOTICE OF MOTION AND MOTION OF INDIVIDUAL PLAINTIFF−INTERVENORS FOR LEAVE TO FILE AMENDED COMPLAINT filed by Elizabeth Hennessey−Severson, Nicholas Jones, Andrew Quan. Motion Hearing set for 3/14/2013 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Responses due by 1/29/2013. Replies due by 2/5/2013. (Center, Claudia) (Filed on 1/15/2013) (Entered: 01/15/2013)
82 Brief re 81 MOTION to Amend/Correct 63 Intervenor Complaint NOTICE OF MOTION AND MOTION OF INDIVIDUAL PLAINTIFF−INTERVENORS FOR LEAVE TO FILE AMENDED COMPLAINT MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION OF INDIVIDUAL PLAINTIFF−INTERVENORS FOR LEAVE TO FILE AMENDED COMPLAINT filed byElizabeth Hennessey−Severson, Nicholas Jones, Andrew Quan. (Attachments: # 1 Declaration DECLARATION OF CLAUDIA CENTER IN SUPPORT OF MOTION OF INDIVIDUAL PLAINTIFF−INTERVENORS FOR LEAVE TO FILE AMENDED COMPLAINT, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B, # 4 Exhibit Exhibit C)(Related document(s) 81 ) (Center, Claudia) (Filed on 1/15/2013) (Entered: 01/15/2013)
83 Renotice motion hearing re 81 MOTION to Amend/Correct 63 Intervenor Complaint NOTICE OF MOTION AND MOTION OF INDIVIDUAL PLAINTIFF−INTERVENORS FOR LEAVE TO FILE AMENDED COMPLAINT CORRECTED NOTICE OF MOTION AND MOTION filed byElizabeth Hennessey−Severson, Nicholas Jones, Andrew Quan. Motion Hearing set for 3/14/2013 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. (Related document(s) 81 ) (Center, Claudia) (Filed on 1/15/2013) (Entered: 01/15/2013)
84 MOTION to Shorten Time to Hear Motion For Leave to File First Amended Complaint filed by Department of Fair Employment and Housing. (Liu, Phoebe) (Filed on 1/15/2013) (Entered: 01/15/2013)
85 Declaration of Phoebe P. Liu in Support of Plaintiff's 84 MOTION to Shorten Time to Hear Motion for Leave to File First Amended Complaint filed by Department of Fair Employment and Housing. (Attachments: # 1 Exhibit Exhibit 1 of the Declaration of Phoebe P. Liu iso Plaintiff's Motion for Shorten Time to Hear Motion for Leave to File First Amended Complaint)(Liu, Phoebe) (Filed on 1/15/2013) Modified on 1/17/2013 (slhS, COURT STAFF). (Entered: 01/15/2013)
86 (Proposed) Order Granting Plaintiff's 85 Motion to Shorten Time to Hear Motion for Leave to File First Amended Complaint filed by Department of Fair Employment and Housing. (Liu, Phoebe) (Filed on 1/15/2013) Modified on 1/17/2013 (slhS, COURT STAFF). (Entered: 01/15/2013)
87 MOTION to Amend/Correct Complaint filed by Department of Fair Employment and Housing. Responses due by 1/29/2013. Replies due by 2/5/2013. (Attachments: # 1 Declaration Declaration of Phoebe P. Liu iso Motion for Leave to File First Amended Complaint, # 2 Exhibit Exhibit 1 − Declaration of Phoebe P. Liu iso Motion for Leave to File First Amended Complaint, # 3 Exhibit Exhibit 2 − Declaration of Phoebe P. Liu iso Motion for Leave to File First Amended Complaint, # 4 Exhibit Exhibit 3 − Declaration of Phoebe P. Liu iso Motion for Leave to File First Amended Complaint, # 5 Proposed Order Proposed Order Granting Motion for Leave to File First Amended Complaint)(Villanueva, Ruth Sybil) (Filed on 1/15/2013) (Entered: 01/15/2013)

Case: 3:12-cv-1830 As of: 03/20/2018 07:36 PM PDT 16 of 32

01/16/2013 01/16/2013 01/17/2013 01/17/2013 01/18/2013 01/18/2013 01/22/2013 01/25/2013 01/28/2013
01/28/2013
01/29/2013

88 CLERKS NOTICE − PLEASE TAKE NOTICE that effective January 1, 2013, Judge Edward M. Chen's civil calendar will be heard on Thursdays as follows: Case Management Conference at 9:00 a.m.; Status Conference at 10:30 a.m., Law and Motion at 1:30 p.m. Trial will be dark on Thursdays. THIS IS A TEXT ONLY DOCKET ENTRY; THERE IS NO DOCUMENT ASSOCIATED WITH THIS NOTICE. (bpf, COURT STAFF) (Filed on 1/16/2013) (Entered: 01/16/2013)
89 ORDER re 84 MOTION to Shorten Time to Hear Motion For Leave to File First Amended Complaint filed by Department of Fair Employment and Housing. Signed by Judge Edward M. Chen on 1/16/13. (emclc3, COURT STAFF) (Filed on 1/16/2013) (Entered: 01/16/2013)
90 RESPONSE (re 84 MOTION to Shorten Time to Hear Motion For Leave to File First Amended Complaint ) filed byLaw School Admission Council Inc. (Attachments: # 1 Proposed Order)(Burgoyne, Robert) (Filed on 1/17/2013) (Entered: 01/17/2013)
Set/Reset Deadlines as to 66 MOTION to Dismiss Partially Dismiss U.S. DFEH's Complaint., Set/Reset Deadlines:, Set/Reset Hearing Motion Hearing set for 1/29/2013 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Case Management Statement due by 1/22/2013. Case Management Conference set for 1/29/2013 01:30 PM in Courtroom 5, 17th Floor, San Francisco. (bpf, COURT STAFF) (Filed on 1/17/2013) (Entered: 01/17/2013)
91 ORDER by Judge Edward M. Chen granting 84 Motion to Shorten Time; granting 86 Motion to Shorten Time as modified. Opposition to Motion #87 due 1/25/13. Reply due 1/30/13. C ourt will issue on papers. (bpf, COURT STAFF) (Filed on 1/18/2013) (Entered: 01/18/2013)
Set/Reset Deadlines as to 87 MOTION to Amend/Correct Complaint. Responses due by 1/25/2013. Replies due by 1/30/2013. Court to issue order on papers. No hearing set. (bpf, COURT STAFF) (Filed on 1/18/2013) (Entered: 01/18/2013)
92 CASE MANAGEMENT STATEMENT Updated filed by Department of Fair Employment and Housing. (Attachments: # 1 Exhibit Parties Stipulations and Positions Regarding Proposed Order Regarding Discovery, # 2 Exhibit Parties Stipulations and Positions Regarding Proposed Protective Order Respecting Confidential Information)(Villanueva, Ruth Sybil) (Filed on 1/22/2013) (Entered: 01/22/2013)
93 RESPONSE (re 87 MOTION to Amend/Correct Complaint ) filed byLaw School Admission Council Inc. (Attachments: # 1 Proposed Order)(Burgoyne, Robert) (Filed on 1/25/2013) (Entered: 01/25/2013)
94 CLERKS NOTICE RESETTING MOTION AND CMC FROM 1:30 P.M. TO 1:00 P.M. ON 1/29/13. Set/Reset Deadlines as to 66 MOTION to Dismiss Partially Dismiss U.S. DFEH's Complaint. Case Management Conference set for 1/29/2013 01:00 PM in Courtroom 5, 17th Floor, San Francisco. Motion Hearing set for 1/29/2013 01:00 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. THIS IS A TEXT ONLY DOCKET ENTRY; THERE IS NO DOCUMENT ASSOCIATED WITH THIS NOTICE.(bpf, COURT STAFF) (Filed on 1/28/2013) (Entered: 01/28/2013)
95 Transcript of Proceedings held on October 12, 2012, before Judge Edward M. Chen. Court Reporter/Transcriber Joan Marie Columbini, CSR, RPR, Telephone number 415−255−6842, Joan_Columbini@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 2/19/2013. Redacted Transcript Deadline set for 2/28/2013. Release of Transcript Restriction set for 4/29/2013. (Columbini, Joan) (Filed on 1/28/2013) (Entered: 01/28/2013)
96 RESPONSE (re 81 MOTION to Amend/Correct 63 Intervenor Complaint NOTICE OF MOTION AND MOTION OF INDIVIDUAL PLAINTIFF−INTERVENORS FOR LEAVE TO FILE AMENDED COMPLAINT ) filed byLaw School Admission Council Inc. (Attachments: # 1 Proposed Order)(Burgoyne, Robert) (Filed on 1/29/2013) (Entered: 01/29/2013)

Case: 3:12-cv-1830 As of: 03/20/2018 07:36 PM PDT 17 of 32

01/29/2013 01/30/2013
01/30/2013 01/30/2013 01/30/2013 01/31/2013 02/04/2013 02/06/2013 02/06/2013 02/07/2013 02/14/2013
02/21/2013

100 Minute Entry: Status Conference (Date Filed: 1/29/2013). (Court Reporter Kelly Shainline.) DOCUMENT FILED UNDER SEAL (rcsS, COURT STAFF) (Date Filed: 1/29/2013) (Entered: 01/31/2013)
97 Minute Entry: Motion Hearing held on 1/29/2013 before Edward M. Chen (Date Filed: 1/30/2013) re 66 MOTION to Dismiss Partially Dismiss U.S. DFEH's Complaint filed by Law School Admission Council Inc. Defendants motion on (#66) is denied. Case Management Statement due by 3/21/2013. DFEH's motion to proceed due by 2/21/2013. Further Case Management Conference set for 3/28/2013 01:30 PM in Courtroom 5, 17th Floor, San Francisco. DFEH's motion hearing set for 3/28/2013 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. (Court Reporter Kelly Shainline.) (bpf, COURT STAFF) (Date Filed: 1/30/2013) (Entered: 01/30/2013)
Set/Reset Deadlines as to 81 MOTION to Amend/Correct 63 Intervenor Complaint NOTICE OF MOTION AND MOTION OF INDIVIDUAL PLAINTIFF−INTERVENORS FOR LEAVE TO FILE AMENDED COMPLAINT. Motion Hearing set for 3/28/2013 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. (bpf, COURT STAFF) (Filed on 1/30/2013) (Entered: 01/30/2013)
98 REPLY (re 87 MOTION to Amend/Correct Complaint ) filed byDepartment of Fair Employment and Housing. (Attachments: # 1 Declaration of Phoebe Liu iso DFEH's Reply Brief iso Motion for Leave to File First Amended Complaint, # 2 Exhibit 1 (part 1 of 3) of Decl of Phoebe Liu iso DFEH's Reply Brief, # 3 Exhibit 1 (part 2 of 3) of Decl of Phoebe Liu iso DFEH's Reply Brief)(Liu, Phoebe) (Filed on 1/30/2013) (Entered: 01/30/2013)
99 Declaration of Phoebe Liu in Support of Reply (re 87 MOTION to Amend/Correct Complaint ) filed by Department of Fair Employment and Housing. (Attachments: # 1 Exhibit 1 (Part 3 of 3) of Decl of Phoebe Liu iso DFEH's Reply Brief iso Motion for Leave to File First Amended Complaint)(Liu, Phoebe) (Filed on 1/30/2013) Modified on 1/31/2013 (slhS, COURT STAFF). (Entered: 01/30/2013)
CASE REFERRED to Magistrate Judge Kandis A. Westmore for Discovery (rmm2S, COURT STAFF) (Filed on 1/31/2013) (Entered: 01/31/2013)
101 ORDER REGARDING DISCOVERY. Signed by Judge Kandis A. Westmore on February 4, 2013. (kawlc2, COURT STAFF) (Filed on 2/4/2013) (Entered: 02/04/2013)
102 REPLY (re 81 MOTION to Amend/Correct 63 Intervenor Complaint NOTICE OF MOTION AND MOTION OF INDIVIDUAL PLAINTIFF−INTERVENORS FOR LEAVE TO FILE AMENDED COMPLAINT ) filed byElizabeth Hennessey−Severson, Nicholas Jones, Andrew Quan. (Center, Claudia) (Filed on 2/6/2013) (Entered: 02/06/2013)
103 ORDER by Judge Edward M. Chen Granting 87 DFEH's Motion for Leave to File First Amended Complaint; DFEH is required to E−FILE the amended document. (emcsec, COURT STAFF) (Filed on 2/6/2013) (Entered: 02/06/2013)
104 AMENDED COMPLAINT First Amended Complaint against Law School Admission Council Inc. Filed byDepartment of Fair Employment and Housing. (Villanueva, Ruth Sybil) (Filed on 2/7/2013) (Entered: 02/07/2013)
105 Transcript of Proceedings held on 1/29/13, before Judge Edward M. Chen. Court Reporter Kelly L. Shainline, Email Courtreporter232@aol.com, Telephone number (510)828−9404. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 5/15/2013. (Bryce, Kelly) (Filed on 2/14/2013) (Entered: 02/14/2013)
106 MOTION to Proceed for Group or Class Relief filed by Department of Fair Employment and Housing. Motion Hearing set for 3/28/2013 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Responses due by

Case: 3:12-cv-1830 As of: 03/20/2018 07:36 PM PDT 18 of 32

02/21/2013 02/27/2013 02/28/2013 02/28/2013
03/01/2013 03/04/2013 03/05/2013 03/05/2013 03/05/2013 03/05/2013 03/07/2013 03/11/2013 03/12/2013

3/7/2013. Replies due by 3/14/2013. (Attachments: # 1 Declaration Declaration of Mari Mayeda in Support of Plaintiffs Motion to Proceed for Group or Class Relief, # 2 Proposed Order [Proposed] Order Granting Plaintiffs Motion to Proceed for Group or Class Relief)(Mayeda, Mari) (Filed on 2/21/2013) (Entered: 02/21/2013)
107 Answer to Amended Complaint 104 Amended Complaint byLaw School Admission Council Inc. (Burgoyne, Robert) (Filed on 2/21/2013) (Entered: 02/21/2013)
108 STIPULATION WITH PROPOSED ORDER to Reschedule Status Conference and Hearing filed by UNITED STATES OF AMERICA. (Proctor, Melanie) (Filed on 2/27/2013) (Entered: 02/27/2013)
109 MOTION Access to Transcript for Sealed Proceeding filed by Law School Admission Council Inc. Responses due by 3/4/2013. (Attachments: # 1 Declaration Caroline Mew, # 2 Proposed Order)(Burgoyne, Robert) (Filed on 2/28/2013) (Entered: 02/28/2013)
110 STIPULATION AND ORDER re 108 STIPULATION WITH PROPOSED ORDER to Reschedule Status Conference and Hearing filed by UNITED STATES OF AMERICA, Set/Reset Deadlines as to 108 STIPULATION WITH PROPOSED ORDER to Reschedule Status Conference and Hearing, 81 MOTION to Amend/Correct 63 Intervenor Complaint NOTICE OF MOTION AND MOTION OF INDIVIDUAL PLAINTIFF−INTERVENORS FOR LEAVE TO FILE AMENDED COMPLAINT, 106 MOTION Motion to Proceed for Group or Class Relief . Case Management Statement due by 3/28/2013. Further Case Management Conference set for 4/4/2013 01:30 PM in Courtroom 5, 17th Floor, San Francisco. Motion Hearing set for 4/4/2013 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen.. Signed by Judge Edward M. Chen on 2/28/13. (bpf, COURT STAFF) (Filed on 2/28/2013) (Entered: 02/28/2013)
111 Proposed Order Joint Pre−ADR Discovery Plan and Proposed Order by Department of Fair Employment and Housing. (Attachments: # 1 Exhibit Parties Stipulations Regarding Proposed Order Regarding Discovery, # 2 Supplement Parties' Proposed Stipulated Protective Order Respecting Confidential Information, # 3 Supplement Joint Letter Re ADR)(Villanueva, Ruth Sybil) (Filed on 3/1/2013) (Entered: 03/01/2013)
112 ORDER by Judge Edward M. Chen granting 109 Motion for access to transcript on sealed proceeding (as modified) (bpf, COURT STAFF) (Filed on 3/4/2013) (Entered: 03/04/2013)
113 ORDER REFERRING CASE to Magistrate Judge Joseph C. Spero for Settlement. Signed by Judge Edward M. Chen on 3/5/13. (bpf, COURT STAFF) (Filed on 3/5/2013) (Entered: 03/05/2013)
114 STIPULATION AND ORDER re 111 RE JOINT PRE−ADR DISCOVERY PLAN filed by Department of Fair Employment and Housing. Signed by Judge Edward M. Chen on 3/5/13. (bpf, COURT STAFF) (Filed on 3/5/2013) (Entered: 03/05/2013)
115 STIPULATION AND ORDER re [111−1] Stipulations re order re discovery filed by Department of Fair Employment and Housing. Signed by Judge Edward M. Chen on 3/5/13. (bpf, COURT STAFF) (Filed on 3/5/2013) (Entered: 03/05/2013)
CASE REFERRED to Magistrate Judge Joseph C. Spero for Settlement (ahm, COURT STAFF) (Filed on 3/5/2013) (Entered: 03/05/2013)
116 RESPONSE (re 106 MOTION Motion to Proceed for Group or Class Relief ) filed byLaw School Admission Council Inc. (Attachments: # 1 Declaration of Caroline Mew, # 2 Proposed Order)(Burgoyne, Robert) (Filed on 3/7/2013) (Entered: 03/07/2013)
117 Sealed Transcript of Proceedings held on 1/29/13, before Judge Edward M. Chen; Court Reporter/Transcriber Kelly L. Shainline; (filed UNDER SEAL) Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 4/1/2013. Redacted Transcript Deadline set for 4/11/2013. (slhS, COURT STAFF) (Filed on 3/11/2013) (Entered: 03/11/2013)
118 MOTION to Amend/Correct DFEH's Unopposed Motion for Leave to File Second Amended Complaint filed by Department of Fair Employment and Housing. Motion

Case: 3:12-cv-1830 As of: 03/20/2018 07:36 PM PDT 19 of 32

03/14/2013 03/15/2013 03/18/2013 03/22/2013 03/26/2013 03/26/2013 03/27/2013 03/27/2013 03/28/2013 04/05/2013
04/05/2013

Hearing set for 4/18/2013 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Responses due by 3/26/2013. Replies due by 4/2/2013. (Attachments: # 1 Declaration Declaration of R. Sybil Villanueva in support of Motion for Leave to File Second Amended Complaint, # 2 Exhibit Exhibit 1 to Declaration of R. Sybil Villanueva in support of Motion for Leave to File Second Amended Complaint, # 3 Proposed Order [Proposed] Order Granting DFEH's Motion for Leave to File Second Amended Complaint)(Villanueva, Ruth Sybil) (Filed on 3/12/2013) (Entered: 03/12/2013)
119 REPLY (re 106 MOTION Motion to Proceed for Group or Class Relief ) filed byDepartment of Fair Employment and Housing. (Attachments: # 1 Declaration)(Mayeda, Mari) (Filed on 3/14/2013) (Entered: 03/14/2013)
120 ORDER re [111−2] Proposed Order, filed by Department of Fair Employment and Housing. Signed by Judge Kandis A. Westmore on March 15, 2013. (kawlc2, COURT STAFF) (Filed on 3/15/2013) (Entered: 03/15/2013)
121 Notice of Settlement Conference and Order Setting Settlement Conference before Magistrate Judge Joseph C. Spero. Settlement Conference set for 7/9/2013 at 09:30 AM in Courtroom G, 15th Floor, San Francisco. Signed by Judge Joseph C. Spero on 3/18/13. (klhS, COURT STAFF) (Filed on 3/18/2013) (Entered: 03/18/2013)
122 Proposed Order Parties' Proposed Stipulated Protective Order Respecting Confidential Infromation by Department of Fair Employment and Housing. (Villanueva, Ruth Sybil) (Filed on 3/22/2013) (Entered: 03/22/2013)
123 PROTECTIVE ORDER. Signed by Judge Kandis A. Westmore on March 26, 2013. (kawlc2, COURT STAFF) (Filed on 3/26/2013) (Entered: 03/26/2013)
124 STIPULATION re 118 MOTION to Amend/Correct DFEH's Unopposed Motion for Leave to File Second Amended Complaint filed by Department of Fair Employment and Housing. (Villanueva, Ruth Sybil) (Filed on 3/26/2013) (Entered: 03/26/2013)
125 ORDER by Judge Edward M. Chen Granting 118 Plaintiff's Motion to File Second Amended Complaint; Plaintiff DFEH is required to E−FILE the amended document. (emcsec, COURT STAFF) (Filed on 3/27/2013) (Entered: 03/27/2013)
126 AMENDED COMPLAINT DFEH's Second Amended Group and Class Action Complaint for Damages and Injunctive Relief against Law School Admission Council Inc. Filed byDepartment of Fair Employment and Housing. (Villanueva, Ruth Sybil) (Filed on 3/27/2013) (Entered: 03/27/2013)
127 CASE MANAGEMENT STATEMENT Updated Joint CMS filed by UNITED STATES OF AMERICA. (Proctor, Melanie) (Filed on 3/28/2013) (Entered: 03/28/2013)
128 Minute Entry: Motion Hearing held on 4/4/2013 before Edward M. Chen (Date Filed: 4/5/2013) re 106 MOTION Motion to Proceed for Group or Class Relief filed by Department of Fair Employment and Housing, 81 MOTION to Amend/Correct 63 Intervenor Complaint NOTICE OF MOTION AND MOTION OF INDIVIDUAL PLAINTIFF−INTERVENORS FOR LEAVE TO FILE AMENDED COMPLAINT filed by Elizabeth Hennessey−Severson, Andrew Quan, Nicholas Jones. Court took motions under submission and will issue order. Status Report due by 8/1/2013. Status Conference set for 8/8/2013 10:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. (Court Reporter Joan Columbini.) (bpf, COURT STAFF) (Date Filed: 4/5/2013) (Entered: 04/05/2013)
129 CASE MANAGEMENT SCHEDULING ORDER: 16−day jury trial set for 3/30/15. Discovery due by 4/25/2014. Jury Trial set for 3/30/2015 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Motion Hearing set for 1/8/2015 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Motions due by 10/31/2014. Pretrial Conference set for 3/17/2015 02:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Jury Trial set for 3/31/2015 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Jury Trial set for 4/1/2015 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Jury Trial set for 4/2/2015 08:30 AM in Courtroom 5, 17th

Case: 3:12-cv-1830 As of: 03/20/2018 07:36 PM PDT 20 of 32

04/08/2013
04/08/2013
04/10/2013 04/10/2013 04/16/2013 04/19/2013 04/22/2013 05/08/2013

Floor, San Francisco before Hon. Edward M. Chen. Jury Trial set for 4/6/2015 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Jury Trial set for 4/7/2015 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Jury Trial set for 4/8/2015 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Jury Trial set for 4/10/2015 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Jury Trial set for 4/13/2015 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Jury Trial set for 4/14/2015 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Jury Trial set for 4/15/2015 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Jury Trial set for 4/17/2015 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Jury Trial set for 4/20/2015 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Jury Trial set for 4/21/2015 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Jury Trial set for 4/22/2015 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Jury Trial set for 4/24/2015 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Exhibit List due by 2/24/2015. Jury Selection set for 3/30/2015 08:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen.. Signed by Judge Edward M. Chen on 4/5/13. (bpf, COURT STAFF) (Filed on 4/5/2013) (Entered: 04/05/2013)
130 *** FILED IN ERROR. REFER TO DOCUMENT 131 . *** Declaration of Claudia Center Supplemental Declaration in Support of Motion of Individual Plaintiff−Intervenors for Leave to File Amended Complaint filed byElizabeth Hennessey−Severson, Nicholas Jones, Andrew Quan. (Attachments: # 1 Exhibit A)(Center, Claudia) (Filed on 4/8/2013) Modified on 4/8/2013 (fff, COURT STAFF). (Entered: 04/08/2013)
131 *DOCUMENT STRICKEN PURSUANT TO 135 COURT ORDER* Declaration of Claudia Center Supplemental Declaration In Support of Motion of Individual Plaintiff−Intervenors for Leave to File Amended Complaint−CORRECTION OF DOCKET # 130 , #[130−1] filed byElizabeth Hennessey−Severson, Nicholas Jones, Andrew Quan. (Attachments: # 1 Exhibit A)(Center, Claudia) (Filed on 4/8/2013) Modified on 4/25/2013 (slhS, COURT STAFF). (Entered: 04/08/2013)
132 TRANSCRIPT ORDER by Department of Fair Employment and Housing for Court Reporter Joan Columbini. (Villanueva, Ruth Sybil) (Filed on 4/10/2013) (Entered: 04/10/2013)
133 Answer to Amended Complaint 126 Amended Complaint, Answer to DFEH Second Amended Complaint byLaw School Admission Council Inc. (Burgoyne, Robert) (Filed on 4/10/2013) (Entered: 04/10/2013)
134 *DOCUMENT STRICKEN PURSUANT TO 135 COURT ORDER* RESPONSE to re 131 Declaration in Support, by Law School Admission Council Inc. (Burgoyne, Robert) (Filed on 4/16/2013) Modified on 4/25/2013 (slhS, COURT STAFF). (Entered: 04/16/2013)
135 ORDER by Judge Edward M. Chen Granting in Part and Denying in Part 81 Individual Plaintiff−Intervenors' Motion to Amend. (emcsec, COURT STAFF) (Filed on 4/19/2013) (Entered: 04/19/2013)
136 ORDER by Judge Edward M. Chen Granting 106 DFEH's Motion to Proceed for Group or Class Relief. (emcsec, COURT STAFF) (Filed on 4/22/2013) (Entered: 04/22/2013)
137 AMENDED COMPLAINT First Amended Complaint For Damages, Equitable Relief, and Attorneys Fees and Costs For Violations Of The Americans With Disabilities Act Of 1990, 42 U.S.C. § 12101, et seq.; Californias Unruh Civil Rights Act, Cal. Civil Code § 51, et seq., And Californias Unfair Business Practices Act, Cal. Bus. & Prof. Code § 17200, et seq. against Law School Admission Council Inc. Filed byElizabeth Hennessey−Severson, Andrew Quan, Nicholas Jones. (Center, Claudia) (Filed on 5/8/2013) (Entered: 05/08/2013)

Case: 3:12-cv-1830 As of: 03/20/2018 07:36 PM PDT 21 of 32

05/22/2013
05/22/2013 05/24/2013 05/24/2013
05/24/2013 05/24/2013 05/30/2013
05/31/2013 06/05/2013 06/06/2013 06/14/2013 06/26/2013 06/28/2013
06/28/2013

138 Transcript of Proceedings held on April 4, 2013, before Judge Edward M. Chen. Court Reporter/Transcriber Joan Marie Columbini, CSR, RPR, Telephone number 415−255−6842, Joan_Columbini@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 8/20/2013. (Related documents(s) 132 ) (Columbini, Joan) (Filed on 5/22/2013) (Entered: 05/22/2013)
139 Answer to Amended Complaint 137 Amended Complaint,, byLaw School Admission Council Inc. (Burgoyne, Robert) (Filed on 5/22/2013) (Entered: 05/22/2013)
140 STIPULATION WITH PROPOSED ORDER Joint Motion for Administrative Relief (to file letter brief in excess of 10 pages) filed by UNITED STATES OF AMERICA. (Proctor, Melanie) (Filed on 5/24/2013) (Entered: 05/24/2013)
141 *** EXHIBIT 1 REMOVED PURSUANT TO COURT ORDER 147 . REFER TO DOCUMENT 142 . *** Joint Discovery Letter Brief filed by UNITED STATES OF AMERICA. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Proctor, Melanie) (Filed on 5/24/2013) Modified on 5/24/2013 (fff, COURT STAFF). Modified on 6/7/2013 (slhS, COURT STAFF). (Entered: 05/24/2013)
142 EXHIBITS re 141 Joint Discovery Letter Brief Correction: Replaces Docket 141−1 filed byUNITED STATES OF AMERICA. (Attachments: # 1 Exhibit)(Related document(s) 141 ) (Proctor, Melanie) (Filed on 5/24/2013) (Entered: 05/24/2013)
143 NOTICE of Appearance by Sami Hasan (Hasan, Sami) (Filed on 5/24/2013) (Entered: 05/24/2013)
144 MOTION to Remove Incorrectly Filed Document filed by Department of Fair Employment and Housing. (Attachments: # 1 Declaration Declaration of R. Sybil Villanueva iso Motion to Remove Incorrectly Filed Exhibit From Docket, # 2 Supplement Stipulation Re Motion to Remove Incorrectly Filed Exhibit From Docket)(Villanueva, Ruth Sybil) (Filed on 5/30/2013) (Entered: 05/30/2013)
145 Order by Magistrate Judge Kandis A. Westmore granting 140 Stipulation.(kawlc2, COURT STAFF) (Filed on 5/31/2013) (Entered: 05/31/2013)
146 TRANSCRIPT ORDER by Law School Admission Council Inc for Court Reporter Joan Columbini. (Mew, Caroline) (Filed on 6/5/2013) (Entered: 06/05/2013)
147 ORDER by Judge Kandis A. Westmore granting 144 Motion to Remove Incorrectly Filed Document (kawlc2, COURT STAFF) (Filed on 6/6/2013) (Entered: 06/06/2013)
148 ORDER by Judge Kandis A. Westmore granting in part and denying in part 141 Discovery Letter Brief (kawlc2, COURT STAFF) (Filed on 6/14/2013) (Entered: 06/14/2013)
149 Letter from Shana De Caro regarding discovery. This letter is referred to Discovery Magistrate Judge Westmore for resolution. (bpf, COURT STAFF) (Filed on 6/26/2013) (Entered: 06/26/2013)
150 Minute Entry: Telephonic conference held. Parties are to jointly prepare a letter to the applicants whose files are at issue, which is to be sent out no later than close of business on 7/2/13.Discovery Hearing held on 6/28/2013 before Kandis A. Westmore (Date Filed: 6/28/2013). (Court Reporter N/A.) (sisS, COURT STAFF) (Date Filed: 6/28/2013) (Entered: 06/28/2013)
151 OBJECTIONS to re 148 Order on Discovery Letter Brief Motion for Relief from Nondispositive Pretrial order of Magistrate Judge by Law School Admission Council Inc. (Attachments: # 1 Declaration Caroline Mew, # 2 Exhibit A to Mew Decl., # 3 Exhibit B to Mew Decl., # 4 Exhibit C to Mew Decl., # 5 Exhibit D to Mew Decl., # 6 Exhibit E to Mew Decl., # 7 Exhibit F to Mew Decl., # 8 Proposed Order)(Burgoyne, Robert) (Filed on 6/28/2013) (Entered: 06/28/2013)

Case: 3:12-cv-1830 As of: 03/20/2018 07:36 PM PDT 22 of 32

07/01/2013 07/08/2013
07/10/2013 07/11/2013 07/12/2013 07/17/2013
07/23/2013 07/31/2013 08/02/2013 08/02/2013 08/13/2013 08/16/2013

152 ORDER re Briefing Schedule for 151 Defendant's Motion for Relief from Nondispositive Pretrial Order of Magistrate Judge. Signed by Judge Edward M. Chen on 7/1/2013. (emclc1, COURT STAFF) (Filed on 7/1/2013) (Entered: 07/01/2013)
153 Discovery Letter BriefPlaintiff DFEH Opposition to Def LSAC's Motion for Relief from Nondispositive Pretrial Order of Magistrate Judge filed by Department of Fair Employment and Housing. (Attachments: # 1 Declaration Declaration of Phoebe P. Liu in Supp. of Pl. DFEH's Opp. to Def.'s Mot. for Relief, # 2 Exhibit Liu Decl. Ex. 1 − Joint Letter Filed 5−24−13, # 3 Exhibit Liu Decl. Ex. 2 − Magistrate Judge Standing Order dated 5−30−12, # 4 Exhibit Liu Decl. Ex. 3 − State Defs MPA in Supp. Opp. to TRO, # 5 Exhibit Liu Decl. Ex. 4 − State Defs Notice of Related Case, # 6 Exhibit Liu Decl. Ex. 5 − State Defs MPA in Supp. of Mot. to Stay, # 7 Declaration Declaration of Alexandra Seldin in Supp. of Pl. DFEH's Opp. to Def.'s Mot. for Relief, # 8 Exhibit Seldin Decl. Ex. 1 − Redacted First Page of DFEH Progress Memo, # 9 Declaration Declaration of Iva Townsel in Supp. of Pl. DFEH's Opp. to Def.'s Mot. for Relief)(Liu, Phoebe) (Filed on 7/8/2013) (Entered: 07/08/2013)
154 Minute Entry: Settlement Conference held on 7/9/13 before Magistrate Judge Joseph C. Spero. Further settlement conference to be set for mid−August 2013. (Court Reporter Not Reported.) (klhS, COURT STAFF) (Date Filed: 7/10/2013) (Entered: 07/10/2013)
155 Notice andOrder Setting Further Settlement Conference before Magistrate Judge Joseph C. Spero. Further Settlement Conference set for 8/12/2013 09:30 AM in Courtroom G, 15th Floor, San Francisco. Confidential updated settlement conference statements due by Noon on 8/9/13. Signed by Judge Joseph C. Spero on 7/11/13. (klhS, COURT STAFF) (Filed on 7/11/2013) (Entered: 07/11/2013)
156 ORDER re Supplemental Briefing for 151 Defendant's Motion for Relief from Nondispositive Pretrial Order of Magistrate Judge. Signed by Judge Edward M. Chen on 7/12/2013. (emclc1, COURT STAFF) (Filed on 7/12/2013) (Entered: 07/12/2013)
157 REPLY (re 153 Discovery Letter BriefPlaintiff DFEH Opposition to Def LSAC's Motion for Relief from Nondispositive Pretrial Order of Magistrate Judge ) filed byLaw School Admission Council Inc. (Attachments: # 1 Declaration of Joan Van Tol, # 2 Exhibit A to Van Tol Decl., # 3 Exhibit B to Van Tol Decl., # 4 Exhibit C to Van Tol Decl., # 5 Exhibit D to Van Tol Decl., # 6 Exhibit E to Van Tol Decl., # 7 Exhibit F to Van Tol Decl., # 8 Exhibit G to Van Tol Decl., # 9 Declaration of Caroline Mew, # 10 Exhibit A to Mew Decl., # 11 Exhibit B to Mew Decl.)(Burgoyne, Robert) (Filed on 7/17/2013) (Entered: 07/17/2013)
158 ORDER Denying 151 Defendant's Motion for Relief from Nondispositive Pretrial Order of Magistrate Judge. Signed by Judge Edward M. Chen on 7/23/2013. (emcsec, COURT STAFF) (Filed on 7/23/2013) (Entered: 07/23/2013)
159 Joint MOTION to Continue Status Conference filed by UNITED STATES OF AMERICA. (Proctor, Melanie) (Filed on 7/31/2013) (Entered: 07/31/2013)
160 ORDER by Judge Edward M. Chen granting 159 Motion to Continue CMC to 9/26/13 at 10:30 a.m. (bpf, COURT STAFF) (Filed on 8/2/2013) (Entered: 08/02/2013)
Set/Reset Hearing, Set/Reset Deadlines: Status Conference set for 9/26/2013 10:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Status Report due by 9/19/2013. (bpf, COURT STAFF) (Filed on 8/2/2013) (Entered: 08/02/2013)
161 Minute Entry: FurtherSettlement Conference held on 8/12/13 before Magistrate Judge Joseph C. Spero. Further settlement conference to be set for October 2013. Clerk will contact the parties with available dates. (Recording #Not Reported.) (klhS, COURT STAFF) (Date Filed: 8/13/2013) (Entered: 08/13/2013)
162 Notice andOrder Setting Further Settlement Conference before Magistrate Judge Joseph C. Spero. Further Settlement Conference set for 10/10/2013 11:00 AM in Courtroom G, 15th Floor, San Francisco. Signed by Judge Joseph C. Spero on 8/16/13. (klhS, COURT STAFF) (Filed on 8/16/2013) (Entered: 08/16/2013)

Case: 3:12-cv-1830 As of: 03/20/2018 07:36 PM PDT 23 of 32

08/16/2013 09/27/2013
09/30/2013
09/30/2013 10/01/2013 10/02/2013 10/04/2013 10/08/2013 10/15/2013 10/15/2013 10/15/2013 10/21/2013

163 CLERKS NOTICE RESETTING STATUS CONFERENCE FROM 9/26/13 TO 10/31/13 AT 10:30 A.M. Status Report due by 10/24/2013. Status Conference set for 10/31/2013 10:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. THIS IS A TEXT ONLY DOCKET ENTRY; THERE IS NO DOCUMENT ASSOCIATED WITH THIS NOTICE.(bpf, COURT STAFF) (Filed on 8/16/2013) (Entered: 08/16/2013)
164 MOTION to Amend/Correct Plaintiff's DFEH's Notice of Motion and Unopposed Motion for Leave to File Third Amended Complaint; Points and Authorities in Support Thereof filed by Department of Fair Employment and Housing. Motion Hearing set for 10/31/2013 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Responses due by 10/11/2013. Replies due by 10/18/2013. (Attachments: # 1 Declaration Declaration of Mari Mayeda in Support of DFEH's Unopposed Motion for Leave to File Third Amended Complaint, # 2 Signature Page (Declarations/Stipulations) Stipulation re DFEH's Unopposed Motion for Leave to File Third Amended Complaint)(Mayeda, Mari) (Filed on 9/27/2013) (Entered: 09/27/2013)
165 CLERKS NOTICE RESETTING MOTION FROM 10/31/13 to 11/7/13 at 1:30 p.m. (35−day notice not given). Set/Reset Deadlines as to 164 MOTION to Amend/Correct Plaintiff's DFEH's Notice of Motion and Unopposed Motion for Leave to File Third Amended Complaint; Points and Authorities in Support Thereof. Motion Hearing reset for 11/7/2013 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. THIS IS A TEXT ONLY DOCKET ENTRY; THERE IS NO DOCUMENT ASSOCIATED WITH THIS NOTICE.(bpf, COURT STAFF) (Filed on 9/30/2013) (Entered: 09/30/2013)
166 STIPULATION AND ORDER re 164 MOTION to Amend/Correct Plaintiff's DFEH's Notice of Motion and Unopposed Motion for Leave to File Third Amended Complaint; Points and Authorities in Support Thereof filed by Department of Fair Employment and Housing. 11/7/13 motion hearing vacated.. Signed by Judge Edward M. Chen on 9/30/13. (bpf, COURT STAFF) (Filed on 9/30/2013) (Entered: 09/30/2013)
167 Ex Parte MOTION Stay of Court−Ordered Settlement Conference and Related Deadlines filed by UNITED STATES OF AMERICA. Responses due by 10/2/2013. Replies due by 10/2/2013. (Attachments: # 1 Stipulation)(Proctor, Melanie) (Filed on 10/1/2013) (Entered: 10/01/2013)
168 Order, signed 10/1/13, by Magistrate Judge Joseph C. Spero granting 167 Motion Stay of Court−Ordered Settlement Conference and RElated Deadlines in Light of Lapse of Appropriations. The Further Settlement Conference set for 10/10/13 before Judge Spero is VACATED.NOTE: New November dates were provided to AUSA Proctor.(klhS, COURT STAFF) (Filed on 10/2/2013) (Entered: 10/02/2013)
169 CLERKS NOTICE Rescheduling Settlement Conference. Settlement Conference previously set for 10/10/13 at 11:00 AM has been re−set for 11/6/2013 09:30 AM in Courtroom G, 15th Floor, San Francisco. (klhS, COURT STAFF) (Filed on 10/4/2013) (Entered: 10/04/2013)
170 Joint MOTION to Continue Further Status Conference; Proposed Order filed by UNITED STATES OF AMERICA. (Proctor, Melanie) (Filed on 10/8/2013) (Entered: 10/08/2013)
171 ANSWER to Complaint with Jury Demand Answer to DFEH Third Amended Complaint byLaw School Admission Council Inc. (Burgoyne, Robert) (Filed on 10/15/2013) (Entered: 10/15/2013)
172 ORDER by Judge Edward M. Chen granting 170 Motion to Continue CMC to 11/7/13 (bpf, COURT STAFF) (Filed on 10/15/2013) (Entered: 10/15/2013)
Set/Reset Hearing re 172 Order on Motion to Continue, Set/Reset Deadlines: Status Conference set for 11/7/2013 10:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Status Report due by 10/31/2013. (bpf, COURT STAFF) (Filed on 10/15/2013) (Entered: 10/15/2013)
173 CLERKS NOTICE RESETTING STATUS CONFERENCE from 10:30 a.m. to 9:15 a.m. on 11/7/13. Status Report due by 10/31/2013. Status Conference set for 11/7/2013

Case: 3:12-cv-1830 As of: 03/20/2018 07:36 PM PDT 24 of 32

10/28/2013 10/31/2013 11/01/2013 11/07/2013 11/07/2013
11/07/2013
11/15/2013 11/19/2013
12/10/2013 01/22/2014 01/28/2014 01/28/2014
02/05/2014

09:15 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. THIS IS A TEXT ONLY DOCKET ENTRY; THERE IS NO DOCUMENT ASSOCIATED WITH THIS NOTICE(bpf, COURT STAFF) (Filed on 10/21/2013) (Entered: 10/21/2013)
174 MOTION for Extension of Time to Amend ; Proposed Order filed by UNITED STATES OF AMERICA. (Attachments: # 1 Declaration)(Proctor, Melanie) (Filed on 10/28/2013) (Entered: 10/28/2013)
175 JOINT CASE MANAGEMENT STATEMENT Third Updated Joint Case Management Statement filed by Department of Fair Employment and Housing. (Villanueva, Ruth Sybil) (Filed on 10/31/2013) (Entered: 10/31/2013)
176 ORDER by Judge Edward M. Chen granting 174 Motion for Extension of Time to Amend 174 MOTION for Extension of Time to Amend ; Proposed Order (dt, COURT STAFF) (Filed on 11/1/2013) (Entered: 11/01/2013)
177 Minute Entry: Further Settlement Conference held on 11/6/13 before Magistrate Judge Joseph C. Spero. Further settlment conference set for 1/27/14 at 9:30 AM. Court will advise the parties if an earlier date becomes available. (Recording #Not Reported.) (klhS, COURT STAFF) (Date Filed: 11/7/2013) (Entered: 11/07/2013)
178 Notice and Order Setting Further Settlement Conference before Magistrate Judge Joseph C. Spero. Further Settlement Conference set for 1/27/2014 at 09:30 AM in Courtroom G, 15th Floor, San Francisco. Court will advise the parties if an earlier date becomes available. Updated statements due 1/17/14. Signed by Judge Joseph C. Spero on 11/7/13. (klhS, COURT STAFF) (Filed on 11/7/2013) (Entered: 11/07/2013)
179 Minute Entry: Status Conference (Date Filed: 11/7/2013). Further Status Conference set for 1/23/2014 10:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen, joint status conference statement due by 1/16/2014. (Court Reporter Katherine Sullivan.) (tlS, COURT STAFF) (Date Filed: 11/7/2013) (Entered: 11/07/2013)
180 STIPULATION WITH PROPOSED ORDER to Change Status Conference filed by UNITED STATES OF AMERICA. (Proctor, Melanie) (Filed on 11/15/2013) (Entered: 11/15/2013)
181 STIPULATION AND ORDER re 180 to Change Status Conference filed by UNITED STATES OF AMERICA Status Report due by 1/30/2014. Status Conference reset for 2/6/2014 10:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen.. Signed by Judge Edward M. Chen on 11/19/13. (bpfS, COURT STAFF) (Filed on 11/19/2013) (Entered: 11/19/2013)
182 NOTICE of Change In Counsel by Ruth Sybil Villanueva (Villanueva, Ruth Sybil) (Filed on 12/10/2013) (Entered: 12/10/2013)
183 NOTICE by Department of Fair Employment and Housing Notice of Withdrawal (Hulett, Denise) (Filed on 1/22/2014) (Entered: 01/22/2014)
184 Minute Entry: Further Settlement Conference held on 1/27/2014 before Magistrate Judge Joseph C. Spero. Further settlement conference to be set in 60 days. (Recording #Not Reported.) (klhS, COURT STAFF) (Date Filed: 1/28/2014) (Entered: 01/28/2014)
185 CLERKS NOTICE resetting Status from 2/6/14 to 4/10/14 at 10:30 a.m. Status Report due by 4/3/2014. Status Conference set for 4/10/2014 10:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. THIS IS A TEXT ONLY DOCKET ENTRY; THERE IS NO DOCUMENT ASSOCIATED WITH THIS NOTICE.(bpf, COURT STAFF) (Filed on 1/28/2014) (Entered: 01/28/2014)
186 Notice and Order Setting Further Settlement Conference before Magistrate Judge Joseph C. Spero. Further Settlement Conference set for 3/24/2014 09:30 AM in Courtroom G, 15th Floor, San Francisco. Signed by Judge Joseph C. Spero on 2/5/14. (klhS, COURT STAFF) (Filed on 2/5/2014) (Entered: 02/05/2014)

Case: 3:12-cv-1830 As of: 03/20/2018 07:36 PM PDT 25 of 32

02/11/2014
03/14/2014
03/18/2014
03/25/2014 03/25/2014 03/26/2014
04/04/2014 04/10/2014 05/16/2014 05/16/2014 05/16/2014 05/20/2014 05/21/2014
05/23/2014

187 CLERKS NOTICE resetting Status to 4/17/14 at 10:30 a.m. Status Report due by 4/10/2014. Status Conference set for 4/17/2014 10:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. THIS IS A TEXT ONLY DOCKET ENTRY; THERE IS NO DOCUMENT ASSOCIATED WITH THIS NOTICE.(bpf, COURT STAFF) (Filed on 2/11/2014) (Entered: 02/11/2014)
188 CLERKS NOTICE Status Report due by 4/8/2014. Status Conference reset for 4/15/2014 10:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. THIS IS A TEXT ONLY DOCKET ENTRY; THERE IS NO DOCUMENT ASSOCIATED WITH THIS NOTICE.(bpf, COURT STAFF) (Filed on 3/14/2014) (Entered: 03/14/2014)
189 CLERKS NOTICE resetting status to 10:30 a.m. on 4/15/14. Status Conference set for 4/15/2014 10:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. THIS IS A TEXT ONLY DOCKET ENTRY; THERE IS NO DOCUMENT ASSOCIATED WITH THIS NOTICE. (bpf, COURT STAFF) (Filed on 3/18/2014) (Entered: 03/18/2014)
190 Minute Entry: Further Settlement Conference held on 3/24/14 before Magistrate Judge Joseph C. Spero. Further settlement conference set for 4/8/14 at 11 AM. Updated statements due 4/4/14 by Noon. (Recording #Not Reported.) (klhS, COURT STAFF) (Date Filed: 3/25/2014) (Entered: 03/25/2014)
191 Notice and Order Setting Further Settlement Conference before Magistrate Judge Joseph C. Spero. Further Settlement Conference set for 4/8/2014 11:00 AM in Courtroom G, 15th Floor, San Francisco. Signed by Judge Joseph C. Spero on 3/25/14. (klhS, COURT STAFF) (Filed on 3/25/2014) (Entered: 03/25/2014)
192 CLERKS NOTICE resetting Status from 4/15/14 to 5/29/14 at 10:30 a.m. Status Report due by 5/22/2014. Status Conference set for 5/29/2014 10:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. THIS IS A TEXT ONLY DOCKET ENTRY; THERE IS NO DOCUMENT ASSOCIATED WITH THIS NOTICE.(bpf, COURT STAFF) (Filed on 3/26/2014) (Entered: 03/26/2014)
193 NOTICE of Change In Counsel by Claudia Center NOTICE OF WITHDRAWAL AS COUNSEL OF RECORD (Center, Claudia) (Filed on 4/4/2014) (Entered: 04/04/2014)
194 Minute Entry: Further Settlement Conference held on 4/8/14 before Magistrate Judge Joseph C. Spero.(Court Reporter Not Reported.) (klhS, COURT STAFF) (Date Filed: 4/10/2014) (Entered: 04/10/2014)
195 Minute Entry: Telephonic Further Settlement Conference held on 5/12/14 before Magistrate Judge Joseph C. Spero. (Recording #Not Reported.) (klhS, COURT STAFF) (Date Filed: 5/16/2014) (Entered: 05/16/2014)
196 Minute Entry: Further Telephonic Settlement Conference held on 5/13/14 before Magistrate Judge Joseph C. Spero. (Recording #Not Reported.) (klhS, COURT STAFF) (Date Filed: 5/16/2014) (Entered: 05/16/2014)
197 Minute Entry: Telephonic Further Settlement Conference held on 5/14/14 before Magistrate Judge Joseph C. Spero. (Recording #Not Reported.) (klhS, COURT STAFF) (Date Filed: 5/16/2014) (Entered: 05/16/2014)
198 Joint MOTION to Approve Consent Judgment for Entry of Consent Decree, Including Permanent Injunction filed by UNITED STATES OF AMERICA. (Attachments: # 1 Consent Decree)(Proctor, Melanie) (Filed on 5/20/2014) (Entered: 05/20/2014)
199 CLERKS NOTICE resetting status from 5/29/14 to 7/3/14 at 10:30 a.m. Status Report due by 6/26/2014. Status Conference set for 7/3/2014 10:30 AM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. THIS IS A TEXT ONLY DOCKET ENTRY; THERE IS NO DOCUMENT ASSOCIATED WITH THIS NOTICE.(bpf, COURT STAFF) (Filed on 5/21/2014) (Entered: 05/21/2014)
200 AMENDED DOCUMENT by UNITED STATES OF AMERICA. Amendment to 198 Joint MOTION to Approve Consent Judgment for Entry of Consent Decree, Including Permanent Injunction . (Attachments: # 1 Exhibit 2(a), # 2 Exhibit 2(b))(Proctor, Melanie) (Filed on 5/23/2014) (Entered: 05/23/2014)

Case: 3:12-cv-1830 As of: 03/20/2018 07:36 PM PDT 26 of 32

05/27/2014
05/29/2014 05/29/2014 10/06/2014 10/06/2014 10/23/2014 10/23/2014
11/07/2014 02/03/2015 02/04/2015 02/06/2015 03/18/2015 03/18/2015
03/18/2015 03/19/2015 03/19/2015 03/19/2015

201 AMENDED DOCUMENT: Second Amennded Exhibits 2(a) and 2(b) by UNITED STATES OF AMERICA. Amendment to 200 Amended Document, 198 Consent Decree. (Proctor, Melanie) (Filed on 5/27/2014) Modified on 5/30/2014 (slhS, COURT STAFF). (Entered: 05/27/2014)
202 ORDER by Judge Edward M. Chen Granting 198 Joint Motion for Entry of Consent Decree, Including Permanent Injunction. (emcsec, COURT STAFF) (Filed on 5/29/2014) (Entered: 05/29/2014)
203 CONSENT DECREE. Signed by Judge Edward M. Chen on 5/29/2014. (emcsec, COURT STAFF) (Filed on 5/29/2014) (Entered: 05/29/2014)
204 Letter from Roger Pudlin dated 9/26/14. Attachment filed under seal. (bpf, COURT STAFF) (Filed on 10/6/2014) (Additional sealed attachment(s) added on 10/6/2014: # 1 Attachment) (slhS, COURT STAFF). (Entered: 10/06/2014)
205 ORDER RE: ROGER PUDLIN'S LETTER. Signed by Judge Edward M. Chen on 10/6/14. (bpf, COURT STAFF) (Filed on 10/6/2014) (Entered: 10/06/2014)
206 STIPULATION WITH PROPOSED ORDER Joint Motion for Administrative Relief (to file letter brief in excess of 8 pages) filed by Law School Admission Council Inc. (Burgoyne, Robert) (Filed on 10/23/2014) (Entered: 10/23/2014)
207 Letter Brief re 123 Protective Order (Joint Letter Brief) filed byLaw School Admission Council Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 123 ) (Burgoyne, Robert) (Filed on 10/23/2014) Modified on 10/23/2014 (kawlc2S, COURT STAFF). (Entered: 10/23/2014)
208 ORDER by Judge Kandis A. Westmore denying 206 joint motion for administrative relief; terminating 207 Discovery Letter Brief (kawlc2S, COURT STAFF) (Filed on 11/7/2014) (Entered: 11/07/2014)
209 NOTICE by UNITED STATES OF AMERICA re 203 Order of Final Report (Attachments: # 1 Exhibit Final Report)(Proctor, Melanie) (Filed on 2/3/2015) (Entered: 02/03/2015)
210 RESPONSE to re 209 Notice (Other) by Law School Admission Council Inc. (Attachments: # 1 Final Report, # 2 Final Minority Report, # 3 Final Ex Parte Log)(Burgoyne, Robert) (Filed on 2/4/2015) (Entered: 02/04/2015)
211 NOTICE by UNITED STATES OF AMERICA re 209 Notice (Other) Amended (Attachments: # 1 Appendix Final Report)(Proctor, Melanie) (Filed on 2/6/2015) (Entered: 02/06/2015)
212 NOTICE of Substitution of Counsel by Eric Andrew Herzog (Herzog, Eric) (Filed on 3/18/2015) (Entered: 03/18/2015)
213 Consent MOTION for Leave to File Excess Pages in Brief in Support of Appeal from "Best Practices" Panel Report filed by Law School Admission Council Inc. (Attachments: # 1 Declaration of Caroline Mew, # 2 Proposed Order)(Burgoyne, Robert) (Filed on 3/18/2015) (Entered: 03/18/2015)
214 STIPULATION WITH PROPOSED ORDER to Briefing Schedule filed by UNITED STATES OF AMERICA. (Proctor, Melanie) (Filed on 3/18/2015) (Entered: 03/18/2015)
215 STIPULATION WITH PROPOSED ORDER filed by UNITED STATES OF AMERICA. (Sinha, Nabina) (Filed on 3/19/2015) (Entered: 03/19/2015)
216 ORDER by Judge Edward M. Chen granting 213 Motion for Leave to File Excess Pages (35 pages) (bpf, COURT STAFF) (Filed on 3/19/2015) (Entered: 03/19/2015)
217 STIPULATION AND ORDER re 214 STIPULATION WITH PROPOSED ORDER to Briefing Schedule filed by UNITED STATES OF AMERICA Motion Hearing set for 6/4/2015 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen.. Signed by Judge Edward M. Chen on 3/19/15. (bpf, COURT STAFF) (Filed on 3/19/2015) (Entered: 03/19/2015)

Case: 3:12-cv-1830 As of: 03/20/2018 07:36 PM PDT 27 of 32

03/24/2015 03/25/2015 03/26/2015
04/27/2015 04/29/2015 04/29/2015 05/11/2015
05/15/2015 05/15/2015 05/22/2015 05/26/2015 05/26/2015
06/03/2015

218 AFFIDAVIT in Support re 215 STIPULATION WITH PROPOSED ORDER filed byUNITED STATES OF AMERICA. (Related document(s) 215 ) (Proctor, Melanie) (Filed on 3/24/2015) (Entered: 03/24/2015)
219 ORDER by Judge Edward M. Chen granting 215 Stipulation (bpf, COURT STAFF) (Filed on 3/25/2015) (Entered: 03/25/2015)
220 MOTION Appeal from Panel's Recommended "Best Practices" filed by Law School Admission Council Inc. Motion Hearing set for 6/4/2015 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Responses due by 4/27/2015. Replies due by 5/11/2015. (Attachments: # 1 Declaration of C. Mew, # 2 Exhibit A to Mew Decl., # 3 Exhibit B to Mew Decl., # 4 Exhibit C to Mew Decl., # 5 Exhibit D to Mew Decl., # 6 Exhibit E to Mew Decl., # 7 Exhibit F to Mew Decl., # 8 Exhibit G to Mew Decl., # 9 Exhibit H to Mew Decl., # 10 Exhibit I to Mew Decl., # 11 Exhibit J to Mew Decl., # 12 Exhibit K to Mew Decl., # 13 Exhibit L to Mew Decl., # 14 Exhibit M to Mew Decl., # 15 Exhibit N to Mew Decl., # 16 Exhibit O to Mew Decl., # 17 Exhibit P to Mew Decl., # 18 Proposed Order)(Burgoyne, Robert) (Filed on 3/26/2015) (Entered: 03/26/2015)
221 RESPONSE (re 220 MOTION Appeal from Panel's Recommended "Best Practices" ) filed byUNITED STATES OF AMERICA. (Attachments: # 1 Exhibit A (Consent Decree), # 2 Exhibit B (Final Report), # 3 Declaration Nabina Sinha)(Proctor, Melanie) (Filed on 4/27/2015) (Entered: 04/27/2015)
222 Amicus Letter from Benjamin J. Lovett, Ph.D. (bpf, COURT STAFF) (Filed on 4/29/2015) (Entered: 04/29/2015)
223 ORDER re RESPONSIVE BRIEF TO AMICAS CURIAE LETTER 222 . Signed by Judge Edward M. Chen on 4/29/15. (bpf, COURT STAFF) (Filed on 4/29/2015) (Entered: 04/29/2015)
224 REPLY (re 220 MOTION Appeal from Panel's Recommended "Best Practices" ) filed byLaw School Admission Council Inc. (Attachments: # 1 Declaration of Caroline Mew, # 2 Exhibit Q to Mew Decl., # 3 Exhibit R to Mew Decl., # 4 Exhibit S to Mew Decl., # 5 Exhibit T to Mew Decl., # 6 Exhibit U to Mew Decl., # 7 Exhibit V to Mew Decl., # 8 Exhibit W to Mew Decl., # 9 Exhibit X to Mew Decl.)(Burgoyne, Robert) (Filed on 5/11/2015) (Entered: 05/11/2015)
225 RESPONSE to re 222 Letter by 17 professionals by Law School Admission Council Inc. (Burgoyne, Robert) (Filed on 5/15/2015) (Entered: 05/15/2015)
226 RESPONSE to 222 Letter by United States OF America. (Attachments: # 1 Exhibit)(Proctor, Melanie) (Filed on 5/15/2015) (Entered: 05/15/2015)
227 CLERK'S NOTICE RESETTING MOTION FROM 6/4/15 to 6/11/15 at 1:30 p.m. in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. RE: 220 MOTION Appeal from Panel's Recommended "Best Practices". (This is a text−only entry generated by the court. There is no document associated with this entry.)</I (bpf, COURT STAFF) (Filed on 5/22/2015) (Entered: 05/22/2015)
228 STIPULATION WITH PROPOSED ORDER re 227 Clerk's Notice,, Set Motion and Deadlines/Hearings, to Hearing Date filed by United States of America. (Proctor, Melanie) (Filed on 5/26/2015) (Entered: 05/26/2015)
229 STIPULATION AND ORDER re 228 STIPULATION WITH PROPOSED ORDER re 227 Clerk's Notice,, Set Motion and Deadlines/Hearings, to Hearing Date filed by United States of America, Set/Reset Deadlines as to 228 STIPULATION WITH PROPOSED ORDER re 227 Clerk's Notice,, Set Motion and Deadlines/Hearings, to Hearing Date, 220 MOTION Appeal from Panel's Recommended "Best Practices" . Motion Hearing set for 6/23/2015 01:00 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen.. Signed by Judge Edward M. Chen on 5/26/15. (bpf, COURT STAFF) (Filed on 5/26/2015) (Entered: 05/26/2015)
230 Amicus letter from Dr. Mark Mahone, et al. dated 6/1/15. (bpf, COURT STAFF) (Filed on 6/3/2015) (Entered: 06/03/2015)

Case: 3:12-cv-1830 As of: 03/20/2018 07:36 PM PDT 28 of 32

06/03/2015 06/03/2015 06/10/2015 06/10/2015 06/17/2015 06/17/2015 06/23/2015
06/26/2015
07/31/2015
08/04/2015 08/04/2015 08/05/2015 08/05/2015 08/05/2015 08/07/2015 08/19/2015

231 ORDER REGARDING RESPONSIVE BRIEFS TO AMICUS CURIAE LETTER. Signed by Judge Edward M. Chen on 6/3/15. (bpf, COURT STAFF) (Filed on 6/3/2015) (Entered: 06/03/2015)
232 Amended Amicus letter from Dr. Mark Mahone, et al. Response remains due 6/10 as stated in Docket #231 (bpf, COURT STAFF) (Filed on 6/3/2015) (Entered: 06/03/2015)
233 RESPONSE to re 232 Clerk's Notice Amicus Curiae Letter by Dr. Mark Mahone et al. by Law School Admission Council Inc. (Burgoyne, Robert) (Filed on 6/10/2015) (Entered: 06/10/2015)
234 RESPONSE to re 232 Clerk's Notice Amicus Letter From Dr. Mark Mahone, et al. by United States of America. (Proctor, Melanie) (Filed on 6/10/2015) (Entered: 06/10/2015)
235 NOTICE of Appearance by Irina Trasovan (Trasovan, Irina) (Filed on 6/17/2015) (Entered: 06/17/2015)
236 NOTICE of Appearance by Joni Elizabeth Carrasco (Carrasco, Joni) (Filed on 6/17/2015) (Entered: 06/17/2015)
237 Minute Entry for proceedings held before Edward M. Chen: Motion Hearing held on 6/23/2015 re 220 MOTION Appeal from Panel's Recommended "Best Practices" filed by Law School Admission Council Inc. Motion #220 is referred to Magistrate Judge Joseph C. Spero.Court Reporter Name Pam Batalo. (bpf, COURT STAFF) (Date Filed: 6/23/2015) (Entered: 06/23/2015)
238 Notice of Reference and ORDER Setting Hearing on 220 MOTION Appeal from Panel's Recommended "Best Practices" : Motion Hearing set for 7/31/2015 09:30 AM in Courtroom G, 15th Floor, San Francisco before Chief Magistrate Judge Joseph C. Spero.. Signed by Chief Magistrate Judge Joseph C. Spero on 6/26/15. (klhS, COURT STAFF) (Filed on 6/26/2015) (Entered: 06/26/2015)
239 Minute Entry for proceedings held before Magistrate Judge Joseph C. Spero: Motion Hearing held on 7/31/2015. re 220 MOTION Appeal from Panel's Recommended "Best Practices" filed by Law School Admission Council Inc. Motion submitted. Any party may file a Consent to Proceed before the US Magistrate Judge by close of business on Wed., 8/5/15.FTR Time FTR 9:52−9:59 & 10:08−11:18. (klhS, COURT STAFF) (Date Filed: 7/31/2015) (Entered: 07/31/2015)
240 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Law School Admission Council Inc.. (Burgoyne, Robert) (Filed on 8/4/2015) (Entered: 08/04/2015)
241 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by United States of America.. (Proctor, Melanie) (Filed on 8/4/2015) (Entered: 08/04/2015)
242 AMENDED Consent/Declination by Law School Admission Council Inc. Amendment to 240 Consent/Declination to Proceed Before a US Magistrate Judge. (Burgoyne, Robert) (Filed on 8/5/2015) Modified on 8/5/2015 (gbaS, COURT STAFF). (Entered: 08/05/2015)
243 ORDER REASSIGNING CASE TO MAGISTRATE JUDGE JOSEPH C. SPERO. Signed by Judge Edward M. Chen on 8/5/15. (bpf, COURT STAFF) (Filed on 8/5/2015) (Entered: 08/05/2015)
244 ORDER, Case reassigned to Magistrate Judge Joseph C. Spero. Hon. Edward M. Chen no longer assigned to the case.. Signed by Executive Committee on 8/5/15. (ha, COURT STAFF) (Filed on 8/5/2015) (Entered: 08/05/2015)
245 Order by Magistrate Judge Joseph C. Spero granting in part and denying in part 220 Appeal of Panel Report. (jcslc2S, COURT STAFF) (Filed on 8/7/2015) (Entered: 08/07/2015)
246 TRANSCRIPT ORDER by Law School Admission Council Inc for Court Reporter FTR − San Francisco. (Mew, Caroline) (Filed on 8/19/2015) (Entered: 08/19/2015)

Case: 3:12-cv-1830 As of: 03/20/2018 07:36 PM PDT 29 of 32

08/26/2015
10/05/2015 10/27/2017
10/27/2017 10/27/2017 10/30/2017 10/30/2017 10/30/2017
10/30/2017 11/03/2017 11/03/2017 11/03/2017

247 Transcript of Proceedings held on 7/31/15, before Judge Spero. Court Reporter/Transcriber Pamela A. Batalo, telephone number 626−688−7509; pambatalo@sbcglobal.net. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 246 Transcript Order ) Redaction Request due 9/16/2015. Redacted Transcript Deadline set for 9/28/2015. Release of Transcript Restriction set for 11/24/2015. (Related documents(s) 246 ) (Batalo, Pam) (Filed on 8/26/2015) (Entered: 08/26/2015)
248 TRANSCRIPT ORDER by Department of Fair Employment and Housing for Court Reporter Pam Batalo. (Mayeda, Mari) (Filed on 10/5/2015) (Entered: 10/05/2015)
249 First MOTION Order of Contempt filed by Department of Fair Employment and Housing. Motion Hearing set for 12/1/2017 09:30 AM in Courtroom G, 15th Floor, San Francisco before Magistrate Judge Joseph C. Spero. Responses due by 11/10/2017. Replies due by 11/17/2017. (Attachments: # 1 Proposed Order Order for Contempt, # 2 Declaration Joni Carrasco, # 3 Declaration Peter Blanck, # 4 Declaration Michael Kallman, # 5 Declaration Phillip Movaghar, # 6 Declaration Russell Harris)(Mayeda, Mari) (Filed on 10/27/2017) (Entered: 10/27/2017)
250 First MOTION in Limine filed by Department of Fair Employment and Housing. Motion Hearing set for 12/1/2017 09:30 AM in Courtroom G, 15th Floor, San Francisco before Magistrate Judge Joseph C. Spero. Responses due by 11/13/2017. Replies due by 11/17/2017. (Attachments: # 1 Proposed Order Motion in Limine)(Mayeda, Mari) (Filed on 10/27/2017) (Entered: 10/27/2017)
251 NOTICE of Substitution of Counsel by Sara Winslow (Winslow, Sara) (Filed on 10/27/2017) (Entered: 10/27/2017)
252 ORDER regarding unredacted chambers copies. If Plaintiff DFEH would like the Court to consider information not filed in the public record, DFEH must file a motion to file under seal no later than November 6, 2017. Signed by Chief Magistrate Judge Joseph C. Spero on October 30, 2017. (jcslc2S, COURT STAFF) (Filed on 10/30/2017) (Entered: 10/30/2017)
253 NOTICE by Department of Fair Employment and Housing Regarding Redactions (Mayeda, Mari) (Filed on 10/30/2017) (Entered: 10/30/2017)
254 First MOTION Order Holding Defendant in Contempt re 249 First MOTION Order of Contempt (Correction of Dkt 249 without redaction) filed by Department of Fair Employment and Housing. Motion Hearing set for 12/1/2017 09:30 AM in Courtroom G, 15th Floor, San Francisco before Magistrate Judge Joseph C. Spero. Responses due by 11/13/2017. Replies due by 11/17/2017. (Mayeda, Mari) (Filed on 10/30/2017) (Entered: 10/30/2017)
255 AMENDED DOCUMENT by Department of Fair Employment and Housing. Amendment to 249 First MOTION Order of Contempt (Carrasco Declaration Amended without Ex. 13 redaction). (Mayeda, Mari) (Filed on 10/30/2017) (Entered: 10/30/2017)
256 NOTICE of Appearance by Timothy P. Fox (Fox, Timothy) (Filed on 11/3/2017) (Entered: 11/03/2017)
257 NOTICE of Appearance by Bill Lann Lee (Lee, Bill) (Filed on 11/3/2017) (Entered: 11/03/2017)
258 MOTION to File Amicus Curiae Brief filed by American Foundation for the Blind, Lynn J. Antoinette, Association of University Centers on Disabilities, Association on Higher Education And Disability, Center for Public Representation, Karen Dahlman, Robert Dinerstein, Disability Rights Bar Association, Disability Rights Education & Defense Fund, Disability Rights New York, Everyone Reading, Inc., Paul Grossman, Elizabeth Hennessey−Severson, Jo Anne Simon P.C., Arlene Kanter, Brenda Cheryl Kaplan, Learning Disabilities Association of America, Amy Margolis, National Association of Law Students with Disabilities, National Federation of the Blind, Richard K. Neumann, Michael A. Schwartz, The Judge David L. Bazelon Center for

Case: 3:12-cv-1830 As of: 03/20/2018 07:36 PM PDT 30 of 32

11/10/2017 11/13/2017
11/16/2017 11/16/2017 11/17/2017
11/17/2017 11/17/2017 11/17/2017 01/12/2018 01/12/2018 01/12/2018 01/16/2018

Mental Health Law, Alexandra Tucker, Jeanette Wasserstein. Motion Hearing set for 12/1/2017 09:30 AM in Courtroom G, 15th Floor, San Francisco before Magistrate Judge Joseph C. Spero. Responses due by 11/17/2017. Replies due by 11/24/2017. (Attachments: # 1 Exhibit Brief of Amici Curiae, # 2 Proposed Order)(Fox, Timothy) (Filed on 11/3/2017) (Entered: 11/03/2017)
259 MOTION for Extension of Time to File Response/Reply as to 254 First MOTION Order Holding Defendant in Contempt re 249 First MOTION Order of Contempt (Correction of Dkt 249 without redaction), 250 First MOTION in Limine filed by Law School Admission Council Inc. (Attachments: # 1 Declaration of Robert Burgoyne, # 2 Proposed Order)(Burgoyne, Robert) (Filed on 11/10/2017) (Entered: 11/10/2017)
260 OPPOSITION/RESPONSE (re 259 MOTION for Extension of Time to File Response/Reply as to 254 First MOTION Order Holding Defendant in Contempt re 249 First MOTION Order of Contempt (Correction of Dkt 249 without redaction), 250 First MOTION in Limi ) filed byDepartment of Fair Employment and Housing. (Attachments: # 1 Declaration Declaration of Irina Trasovan, # 2 Proposed Order Proposed Order)(Mayeda, Mari) (Filed on 11/13/2017) (Entered: 11/13/2017)
261 REPLY (re 259 MOTION for Extension of Time to File Response/Reply as to 254 First MOTION Order Holding Defendant in Contempt re 249 First MOTION Order of Contempt (Correction of Dkt 249 without redaction), 250 First MOTION in Limi ) filed byLaw School Admission Council Inc. (Attachments: # 1 Declaration of K. Testy)(Burgoyne, Robert) (Filed on 11/16/2017) (Entered: 11/16/2017)
262 Order by Chief Magistrate Judge Joseph C. Spero granting as modified 259 Motion for Extension of Time. Responses due by 1/12/2018. Replies due by 2/2/2018. Hearing set for 2/23/2018 at 9:30 AM.(jcslc2S, COURT STAFF) (Filed on 11/16/2017) (Entered: 11/16/2017)
Set/Reset Deadlines as to 250 First MOTION in Limine , 254 First MOTION Order Holding Defendant in Contempt re 249 First MOTION Order of Contempt (Correction of Dkt 249 without redaction). Responses due by 1/12/2018. Replies due by 2/2/2018. Motion Hearing set for 2/23/2018 09:30 AM in Courtroom G, 15th Floor, San Francisco before Magistrate Judge Joseph C. Spero. (klhS, COURT STAFF) (Filed on 11/17/2017) (Entered: 11/17/2017)
263 OPPOSITION/RESPONSE (re 258 MOTION to File Amicus Curiae Brief ) STATEMENT OF NON−OPPOSITION filed byLaw School Admission Council Inc. (Attachments: # 1 Proposed Order)(Burgoyne, Robert) (Filed on 11/17/2017) (Entered: 11/17/2017)
264 Order by Chief Magistrate Judge Joseph C. Spero granting 258 Motion for Leave to File Amicus Curiae Brief. (jcslc2S, COURT STAFF) (Filed on 11/17/2017) (Entered: 11/17/2017)
265 Brief OF AMICI CURIAE IN SUPPORT OF PLAINTIFF'S MOTION FOR AN ORDER HOLDING DEFENDANT IN CIVIL CONTEMPT filed byAmerican Foundation for the Blind. (klhS, COURT STAFF) (Filed on 11/17/2017) (Entered: 11/20/2017)
266 MOTION for Leave to File Excess Pages (Stipulated on Behalf of Both Parties) filed by Law School Admission Council Inc. (Burgoyne, Robert) (Filed on 1/12/2018) (Entered: 01/12/2018)
267 OPPOSITION/RESPONSE (re 250 First MOTION in Limine ) filed byLaw School Admission Council Inc. (Attachments: # 1 Declaration Mew Decl. and Exs. A−L, # 2 Proposed Order)(Burgoyne, Robert) (Filed on 1/12/2018) (Entered: 01/12/2018)
268 OPPOSITION/RESPONSE (re 254 First MOTION Order Holding Defendant in Contempt re 249 First MOTION Order of Contempt (Correction of Dkt 249 without redaction) ) filed byLaw School Admission Council Inc. (Attachments: # 1 Declaration Depsey Decl. and Exs. A−Z, # 2 Declaration Mew Decl. and Exs. A−R, # 3 Proposed Order)(Burgoyne, Robert) (Filed on 1/12/2018) (Entered: 01/12/2018)
269 Order, signed 1/16/18, by Chief Magistrate Judge Joseph C. Spero granting 266 Stipulated Motion for Leave to File Excess Pages.(klhS, COURT STAFF) (Filed on 1/16/2018) (Entered: 01/16/2018)

Case: 3:12-cv-1830 As of: 03/20/2018 07:36 PM PDT 31 of 32

01/29/2018 02/02/2018
02/02/2018 02/26/2018

270 NOTICE of Appearance by Mari NMN Mayeda Notice of Appearance of Sheila Thomas (Mayeda, Mari) (Filed on 1/29/2018) (Entered: 01/29/2018)
271 REPLY (re 254 First MOTION Order Holding Defendant in Contempt re 249 First MOTION Order of Contempt (Correction of Dkt 249 without redaction) ) filed byDepartment of Fair Employment and Housing. (Attachments: # 1 Declaration Carrasco Declaration ISO Reply re Motion Order of Contempt, # 2 Declaration Campa Declaration ISO Reply re Motion Order of Contempt)(Mayeda, Mari) (Filed on 2/2/2018) (Entered: 02/02/2018)
272 REPLY (re 250 First MOTION in Limine ) filed byDepartment of Fair Employment and Housing. (Mayeda, Mari) (Filed on 2/2/2018) (Entered: 02/02/2018)
273 Minute Entry for proceedings held before Chief Magistrate Judge Joseph C. Spero: Motion Hearing held on 2/23/2018 re 254 First MOTION Order Holding Defendant in Contempt amd re 249 First MOTION Order of Contempt (Correction of Dkt 249 without redaction) filed by Department of Fair Employment and Housing, 250 First MOTION in Limine filed by Department of Fair Employment and Housing. Motions SUBMITTED.

Total Time in Court: 1 H 15 M.

Attorney for Plaintiff: Joni Carrasco, Mari Mayeda, Irina Trasovan

Attorney for Intervenor Plaintiff USA: Sara Winslow

02/26/2018

Attorney for Defendant: Caroline Mew, Robert Burgoyne, Leanne Shank LSAC General Counsel. Court Reporter: Katherine Sullivan. (klhS, COURT STAFF) (Date Filed: 2/26/2018) (Entered: 02/26/2018)
274 AMENDED Minute Entry for proceedings held before Chief Magistrate Judge Joseph C. Spero: Motion Hearing held on 2/23/2018 re 254 First MOTION Order Holding Defendant in Contempt and re 249 First MOTION Order of Contempt (Correction of Dkt 249 without redaction) filed by Department of Fair Employment and Housing, 250 First MOTION in Limine filed by Department of Fair Employment and Housing. Motions SUBMITTED.

FTR Time: 9:44−10:58 Attorney for Plaintiff: Joni Carrasco, Mari Mayeda, Irina Trasovan

Attorney for Intervenor Plaintiff USA: Sara Winslow

Attorney for Defendant: Caroline Mew, Robert Burgoyne, Leanne Shank LSAC General Counsel.

NOTE: Amended to correct court reporter.

03/01/2018 03/02/2018
03/02/2018

( klhS, COURT STAFF) (Date Filed: 2/26/2018) (klhS, COURT STAFF) (Filed on 2/26/2018) Modified on 2/26/2018 (klhS, COURT STAFF). (Entered: 02/26/2018)
275 Supplemental Brief filed byLaw School Admission Council Inc. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Burgoyne, Robert) (Filed on 3/1/2018) (Entered: 03/01/2018)
276 ADMINISTRATIVE MOTION Strike Def LSAC's post−hearing brief or alternatively allow leave to file a response to LSAC's post−hearing brief filed by Department of Fair Employment and Housing. Responses due by 3/6/2018. (Attachments: # 1 Declaration Decl of Mari Mayeda ISO DFEH's Admin Mtn to Strike or Leave to File Resp, # 2 Proposed Order [Proposed] Order Granting DFEH's Admin Mtn to Strike Def's Post−Hearing Brief, # 3 Proposed Order Alternative [Proposed] Order Granting DFEH's Admin. Mtn for Leave to File a Response to Def's Post−Hearing Brief)(Mayeda, Mari) (Filed on 3/2/2018) (Entered: 03/02/2018)
277 ORDER regarding 275 Supplemental Brief. No further briefing on DFEH's motion for contempt or to alter judgment will be considered. Signed by Chief Magistrate Judge Joseph C. Spero on March 2, 2018. (jcslc2S, COURT STAFF) (Filed on 3/2/2018) (Entered: 03/02/2018)

Case: 3:12-cv-1830 As of: 03/20/2018 07:36 PM PDT 32 of 32

03/05/2018

278 ORDER by Chief Magistrate Judge Joseph C. Spero denying 250 Motion in Limine; denying as moot 276 Administrative Motion to Strike; and granting in part 254 Motion for Contempt or to Alter Consent Decree. (jcslc2S, COURT STAFF) (Filed on 3/5/2018) (Entered: 03/05/2018)

 
 ·'.

\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\

'10016057"

.

.1 NELSON CHAN (#109272) Chief Counsel
2 SUSAN SAYLOR (#154592) Special Projects Counsel
3 DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING (DFEH)
4 39141 Civic Center Drive, Suite 410 Fremont, CA 94538
5 Telephone: (510) 622-2941

FilED
ALAMEDA COUNTY

MAR 1 6 2012

By --

4~ ,Exec..off/Clerk .
&1fLuo f1{j,{jfJ) .

6 Attorneys for the DFEH [Filing fee exempt, Gov. Code, § 6103]
7

BY FAX

8

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

9

IN AND FOR THE COUNTY OF ALAMEDA

. 10

caseNWj ~ 11 THE DEPARTMENT OF FAIR EMPLOYMENT)

1262 1 79

AND HOUSING, an agency of the State of

)

12 California,

)

) GROUP AND CLASS ACTION

13

Plaintiff,) COMPLAINT FOR DAMAGES AND

14

) INJUNCTIVE RELIEF

vs.

)

) 15 LAW SCHOOL ADMISSION COUNCIL, INC., ) [FEHA, Gov. Code, § 12900 et seq. and

16 a Delaware tax exempt corporation, and DOES ) Unruh Civil Rights Act, Civ. Code, § 51 et

ONE through TEN, inclusive,

) seq.]

17

)

Defendants. )

18 ----------------------------) Jury Trial Demanded
)

19 JOHN DOE, JANE DOE, PETER ROE,

)

RAYMOND BANKS, KEVIN COLLINS,

)

20 RODNEY DECOMO-SCHMITT, ANDREW ) redacted , ELIZABETH HENNESSEY- )

21 SEVERSON, OTILIA lOAN, ALEX JOHNSON,)

NICHOLAS JONES, CAROLINE LEE,

)

22 ANDREW QUAN, STEPHEN SEMOS,

)

GAZELLE TALESHPOUR, KEVIN

)

23 VIELBAUM, AUSTIN WHITNEY, and all other)

similarly situated individuals,

)

24

Real Parties in Interest.~

25
----------------------------)
26

27
G)
COURT PAPER St~t. of California Std. 113 R.v. 3·95 FE&H Auto mated

-1-
Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whitney et aL) Group and Class Action Complaint for Damages and Injunctive Relief

1

Plaintiff DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING (Department or

2 PFEH) alleges the following against defendant LAW SCHOOL ADMISSION COUNCIL, INC

3 (LSAC), a Delaware tax exempt Corporation, and DOES ONE through TEN, inclusive:

4

PARTmS

5

1. DFEH is the state agency charged with enforcing the right of all Californians under

6 the Unruh Civil Rights Act (Unruh Act) (Civ. Code, § 51 et seq.) ''to the full and equal

7 accommodations, advantages, facilities, privileges, or services in all business establishments of every

8 kind whatsoever." (Civ. Code, § 51, subd. (a).) Government Code section 12948 makes a violation

9 of the Unruh Act a violation of the Fair Housing and Employment Act (FEHA) (Gov. Code, § 12900

10 et seq.). The FEHA empowers the DFEH to investigate and prosecute Unruh Act claims within the

11 .state, including those that adversely affect, in a similar manner, a group or class. (Gov. Code, §§

12 12961, 12965.)

13

2. Each real party in interest, John Doe, Jane Doe, Peter Roe, Raymond Banks, Kevin

14 Collins, Rodney Decemo-Schmitt, Andrew redacted , Elizabeth Hennessey-Severson, Otilia loan,

15 Alex Johnson, Nicholas Jones, Caroline Lee, Andrew Quan, Stephen Semos, Gazelle Taleshpour,

16 Kevin Vielbaum, and Austin Whitney, applied to LSAC for reasonable accommodations on the Law

17 School Admissions Test (LSAT) between January 19,2009 and February 6,2012. Each real party

18 was denied a reasonable ac:commodation, either in whole or in part, within this same time frame. At

19 the time of applYing for reasonable accommodations, each real party resided in California.

20

3. Real parties in interest John Doe, Jane Doe, and Peter Roe wish to participate in this

21 litigation anonymously. Each real party seeks to retain their privacy interest in the details of their

22 disability and need for accommodation. Each of these real parties has expressed a legitimate fear of

23 negative professional ramifications should their true names be associated with this litigation. A

24 motion requesting the court's permission to proceed under fictitious names for these two real parties

25 is filed concurrently with this complaint.

26 II

27 II
*COURT PAPER
Stale of California Std. 11' R.v. 3·95 FE&H Automated

-2-
Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whitney et al.) Group and Class Action Complaint for Damages and Injunctive Relief

1

4. At all times relevant to this complaint, LSAC was a business establishment as defined

2 by Civil Code section 51, subdivision (b). LSAC offers and administers its LSAT at multiple'

3 locations in the State of California several times a year.

4

5. DOES ONE through TEN, inclusive, are sued pursuant to Code of Civil Procedure

5 section 474. The DFEH is ignorant of the true names or capacities of the defendants sued herein

6 under fictitious names DOES ONE through TEN, inclusive, and will amend this complaint to allege

7 their true names and capacities when the information is ascertained.

8

6. The DFEH is infonned and believes and thereon alleges that, at all times mentioned

9 herein, each and every defendant is and was, in doing the things complained of herein, the agent or

10 employee of their co-defendants herein and was acting within the scope of said agency, service,

11 employment, or representation, and that each and every defendant herein is jointly and severally

12 responsible and liable to thl;: real party for the damages hereinafter alleged.

13

GROUP ACTION ALLEGATIONS

14

7. The DFEH brings this case on behalf of a group of 17 named individuals.

15

CLASS ACTION ALLEGATIONS

16

8. Class Definition: The DFEH also brings this case as a class action, on behalf of: all

17 disabled individuals in the State ofCalifornia who requested a reasonable accommodationfor the

18 Law School Admission Test (LSAT)from January 19,2009 to February 6,2012. The DFEH alleges

19 that everyone within this class was subjected to LSAC's unlawful policies of discouraging requests

20 for accommodation, requiring excessive documentation, and requesting unlawful information about

21 mitigation measures. Within this class is a subclass of people who took the LSAT with the condition

22 of extended time and were thereafter subjected to discriminatory treatment and retaliation because of

23 this accommodation. These two classes are defined as follows:

24

a. Unlawful Discouragement and Consideration of Miti gation Measures: All

25 disabled individuals in the State of California who requested a reasonable accommodation for the

26 LSAT from January 19, 2009 to February 6,2012.

27

*COURT PAPER

R.". Stat. of Califomi.

Std. 113

3-9'

fE&H Automated

-3-
Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whimey et al.) Group and Class Action Complaint for Damages and Injunctive Relief

1

b. Differential Treatment and Retaliation Against Examinees Granted Extended

2 Time: All disabled individualS in the State of California who took the .LSAT with the accommodation

3 of extra time from January 19, 2009 to February 6,2012.

4

9. Class Representative: The Director of the DFEH, with the assistance of the 17 named

5 real parties in interest, will fairly and adequately represent the class. Government Code section 12961

6 authorizes the Director to pursue this litigation as a class representative. Section 12961 authorizes the

7 DFEH to seek class relief without being certified as the class representative. Nonetheless, this lawsuit

8 meets the criteria for class certification.

9

10. Manageability: Class treatment ofthis dispute would save time and money by

10 bringing all like claims before this court. For LSAC policies that affect a large group of applicants in

11 a similar fashion, such as subjecting applicants to unlawful inquiries and flagging certain scores,

12 treatment as a class is a superior method of adjudication, as compared to multiple individual suits

13 where each plaintiff would allege an identical harm. Class treatment would neatly aggregate these

14 claims, preventing duplicative litigation and potential inconsistencies in the ultimate findings.

15

11. Numerosity: The class is estimated to include hundreds of LSAT applicants. It would

16 be impracticable to join each of these applicants who requested reasonable accommodation during th

17 three-year time frame and to bring them individually before the court for adjudication. The members

18 of this class are fully ascertainable and there exists a probability that the individual members will

19 ultimately be available to come forward to prove their separate damage-related claims to a portion of

20 the total class recovery, if any.

21

12. Commonality: There exists for the class a well-defined community of interest such

22 that common questions of both law and fact predominate over individual interests or claims.

23

13. Typicality: The class claims raised by the real parties in interest are typical of those

24 held by other members ofthe class. Each applicant for reasonable accommodation was subject to an

25 unlawful inquiry about mitigation measures, and each test-taker, who was granted extra time, had his

26 or her test score segregated and flagged.

27
*COIlRTPAPER
Slat. of Cnllfomia Std. 113 Rev. 3-95 FE&H Automated

-4-
Dept. Fair Empl. & H(JUs. v. Law School Admission Council, Inc. (Whitney et al.) Group and Class Action Complaint for Damages and Injunctive Relief

1

14. Adequacy of Representation: With the assistance of the real parties in interest, the

2 DEFH will fairly and adequately represent the interests of all membersofthe class in the adjudicatio

3 of their similar legal claims.

4

JURISDICTION AND VENUE

5

15. The DFEH realleges and incorporates by reference each and every allegation

6 contained in paragraphs 1 through 14, inclusive, as if fully set forth herein.

7

16. This action arises under the FEHA, specifically Government Code section 12948,

8 which incorporates the Unruh Act'into the enforcement structure ofthe FEHA, giving the DFEH

9 jurisdiction over Unruh Act: violations occurring within the state. By virtue of its incorporation into

10 the Unruh Act, a violation of the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. § 12101

11 et seq.) also constitutes a violation of the Unruh Act. (Civ. Code, § 51, subd. (f).)

12

17. At all times relevant to this complaint, LSAC was a business establishment as defined

13 by Civil Code section 51, subdivision (b). LSAC offers and administers its LSAT at multiple

14 locations in the State of California several times a year.

15

18. At all times relevant to this complaint, real parties in interest John Doe, Jane Doe,

16 Peter Roe, Raymond Banks, Kevin Collins, Rodney Decomo-Schmitt, Andrew redacted , Elizabeth

17 Hennessey-Severson, Otilia loan, Alex Johnson, Nicholas Jones, Caroline Lee, Andrew Quan,

18 Stephen Semos, Gazelle Taleshpour, Kevin Vielbaum, Austin Whitney, and all other similarly

19 situated individuals, were "persons" within the meaning of Government Code section 12925,

20 subdivision (d), and Civil Code section 51, subdivision (b).

21

19. On May 9, 2010, Jane Doe filed a verified complaint of discrimination in writing with

22 the Department pursuant to Government Code section 12960, alleging that LSAC unlawfully denied

23 her full and equal access to the LSAT within the preceding one year, in violation of the FEHA and

24 Unruh Act. A redacted copy of this complaint is attached hereto as Exhibit 1.

25

20. On January 12,2010, Nicholas Jones filed a verified complaint of discrimination in

26 writing with the Department pursuant to Government Code section 12960, alleging that LSAC

27
*COURT PAPER
State of CaUfornla S1d. 113 Rev. 3-95 FE&H At.rtOm4t.d

unlawfully denied him fuB and equal access to the LSAT within the preceding one year, in violation
-5Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whitney et aI.)
Group and Class Action Complaint for Damages and Injunctive Relief

1 of the FEHA and Unruh Act A true and correct copy ofthis complaint is attached hereto as Exhibit 2 2.·

3

21. After receiving the complaints of Jane Doe and Mr. Jones, and beginning an

4 investigation into their allegations, the Department came to believe that LSAC's policies and

5 practices toward disabled applicants requesting reasonable accommodation were affecting a larger

6 group or class of applicants in a similar manner.

7

22. On July 22, 2010, the Department issued a document entitled ''Notice of Class Action

8 Complaint and Director's Complaint" describing the affected group or class as "all disabled

9 individuals in the State of California who have or will request a reasonable accommodation for the

10 Law School Admission Test (LSAT), administered by the LSAC, and who have or will be unlawfull

11 denied such request from January 19,2009 to the conclusion of the Department's investigation of this

12 complaint." A redacted copy of this complaint is attached hereto as Exhibit 3.

13

23. During its investigation of the class action and Director's complaint, the DFEH

14 propounded administrative discovery to determine whether other people had been harrnedby LSAC's

15 discriminatory practices within the state. The DFEH's efforts to obtain this information from

16 defendant included the filing of a superior court petition to compel LSAC to respond to its discovery

17 requests. Although Government Code section 12960, subdivision (d), provides that the DFEH has

18 one year from the date of the filing of its complaint until the filing of its accusation, this time is

19 extended by the pendency of a court action to enforce administrative discovery. (Gov. Code, §

20 12963.5, subd. (f).) Therefore, this action is timely filed.

21

24. With the court's assistance, the DFEH was able to discover and notify other persons

. -''''

22 who were hanned by defendant's discriminatory practices. Som~ of these people elected to file

23 individual complaints as follows.

24

25. On August 29,2011, Alex Johnson filed a verified complaint of discrimination in

25 writing with the Department pursuant to Government Code section 12960, alleging that LSAC

26 unlawfully denied him full and equal access to the LSAT within the preceding one year, in violation

27
*couRT PAPER
Stat. of California Stet 113 Roy. 3-96 FE&H Automated

-6-
Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whitney et al.) Group and Class Action Complaint for Damages and Injunctive Relief

1 of the FEHA and Unruh Act. A true and correct copy of this complaint is attached hereto as Exhibit

2 4.

3

26. On August 31,2011, John Doe filed a verified complaint of discrimination in writing

4 with the Department pursuant to Government Code section 12960, alleging that LSAC unlawfully

5 denied him full and equal access to the LSAT within the preceding one year, in violation of the

6 FEHA and Unruh Act. A redacted copy of this complaint is attached hereto as Exhibit 5.

7

27. On September 26, 2011, Elizabeth Hennessey-Severson filed a verified complaint of

8 discrimination in writing with the Department pursuant to Government Code section 12960, alleging

9 that LSAC unlawfully denied her full and equal access to the LSAT within the preceding one year, in

10 violation of the FEHA and Unruh Act. A true and correct copy of this complaint is attached hereto as

11 Exhibit 6.

12

28. On October 3, 2011, Caroline Lee filed a verified complaint of discrimination in

13 writing with the Department pursuant to Government Code section 12960, alleging that LSAC

14 unlawfully denied her full and equal access to the LSAT within the preceding one year, in violation

15 of the FEHA and Unruh Act. A true and correct copy of this complaint is attached'hereto as Exhibit

16 7.

17

29. On October 6, 2011, Raymond Banks filed a verified complaint of discrimination in

18 writing with the Department pursuant to Government Code section 12960, alleging that LSAC

19 unlawfully denied him full and equal access to the LSAT within the preceding one year, in violation

20 of the FEHA and Unruh Act. A true and correct copy of this complaint is attached hereto as Exhibit

21 8.

22

30. On October 7, 2011, Gazelle Taleshpour filed a verified complaint of discrimination .

23 writing with the Department pursuant to Government Code section 12960, alleging that LSAC

24 unlawfully denied her full and equal access to the LSAT within the preceding one year, in violation

25 of the FEHA and Unruh Act. A true and correct copy of this complaint is attached hereto as Exhibit

26 9.

27
*COURT PAPER
State of California Std . 113 Rev. 3-95 FE&H Automated

-7-
Dept. Fair Emp/. & Hous. v. Law School Admission Council, Inc. (Whitney et al.) Group and Class Action Complaint for Damages and Injunctive Relief

1

31. On October 11, 2011, Peter Roe filed a verified complaint of discrimination in writing

. 2. with the Department pursuant to section Government Code section 12960, alleging that LSAC

3 unlawfully denied him full and equal access to the LSAT within the preceding one year, in violation

4 ofthe FEHA and Unruh Act. A redacted copy of this complaint is attached hereto as Exhibit 10.

5

32. On October 11,2011, Stephen Semos filed a verified complaint of discrimination in

6 writing with the Department pursuant to section Government Code sectionl2960, alleging that LSAC

7 unlawfully denied him full and equal access to the LSAT within the preceding one year, in violation

8 of the FEHA and Unruh Act. A true and correct copy of this complaintis attached hereto as Exhibit

9 II.

10

33. On October 14,2011, Rodney DeComo-Schmitt filed a verified complaint of

11 discrimination in writing with the Department pursuant to Government Code section 12960, alleging

12 that LSAC unlawfully denied him full and equal access to the LSAT within the preceding one year,

13 in violation of the FEHA and Unruh Act. A true and Correct copy of this complaint is attached hereto

14 as Exhibit 12.

15

34. On October 17,2011, Andrew redacted filed a verified complaint of discrimination

16 in writing with the Department pursuant to Government Code section 12960, alleging that LSAC

17 unlawfully denied him full and equal access to the LSAT within the preceding one year, in violation

18 of the FEHA and Unruh Act. A true and correct copy of this complaint is attached hereto as Exhibit

19 13.

20

35. On October 19, 2011, Kevin Collins filed a verified complaint of discrimination in

21 writing with the Department pursuant to Government Code section 12960, alleging that LSAC

22 unlawfully denied him full and equal access to the LSAT within the preceding one year, in violation

23 of the FEHA and Unruh Act. A true and correct copy ofthis complaint is attached hereto as Exhibit

24 14.

25

36. On October 24, 2011, Otilia loan filed a verified complaint of discrimination in

26 writing with the Department pursuant to Government Code section 12960, alleging that LSAC

27
*COURT PAPER
St:lltlt of California Std. 113 Rev. 3-95 FE&H Automated

unlawfully denied him full and equal access to the LSAT within the preceding one year, in violation
-8Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whitney et al.)
Group and Class Action Complaint for Damages and In,iunctive Relief

1 of the FEHA and Unruh Act. A true and correct copy of this complaint is attached hereto as Exhibit

2 15.

3

37. On October 28, 2011, Andrew Quan filed a verified complaint of discrimination in

4 writing with the Department pursuant to Government Code section 12960, alleging that LSAC

5 unlawfully denied him full and equal access to the LSAT within the preceding one year, in violation

6 of the FEHA and Unruh Act. A true and correct copy of this complaint is attached hereto as Exhibit

7 16.

8

38. On October 28, 2011, Austin Whitney filed a verified complaint of discrimination in

9 writing with the Department pursuant to Government Code section 12960, alleging that LSAC

10 unlawfully denied him full and equal access to the LSAT within the preceding one year, in violation

11 of the FEHA and Unruh Act. A true and correct copy of this complaint is attached hereto as Exhibit

12 17.

13

39. On November 7, 2011, Kevin Vielbaum filed a verified complaint of discrimination in

14 writing with the Department pursuant to Government Code section 12960, alleging that LSAC

15 unlawfully denied him full and equal access to the LSAT within the preceding one year, in violation

16 of the FEHA and Unruh Act. A true and correct copy of this complaint is attached hereto as Exhibit

17 18.

18

40. On February 6,2012, the DFEH issued a Group and Class Accusation before the

19 California Fair Employment and Housing Commission (Commission), charging LSAC with

20 violations of the Unruh Act. The Group and Class Accusation was properly served on LSAC by

21 certified mail.

22

41. On February 17,2012, the DFEH issued a First Amended Group and Class Accusation

23 before the Commission. This accusation was properly served on the LSAC by certified mail.

24

42. Pursuant to Government Code section 12965, subdivision (c)(1), LSAC elected to

25 have this dispute heard in civil court in lieu of a hearing before the Commission, and so notified the

26 Department in writing, on or about February 22,2012. A true and correct copy of "Respondent's

27
CD
COURT PAPER State of CDllfe>mla std. 1131toY. 3-95 FE&H Automated

Notice of Transfer of Proceedings to Court" is attached hereto as Exhibit 19.
-9Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whitney et al.)
Group and Class Action Complaint for Damages and Injunctive Relief

1

43. The Department has withdrawn its accusation and has timely filed this complaint

2· pursuant to Government Code section 12965,subdivision(c)(2).

3

44. The hann that is the subject of this complaint occurred throughout the State of

4 California. Three of the real parties in interest lived in the County of Alameda at the time that they

5 were denied full and equal accommodations in the testing process.

6

45. The amount of damages sought by this complaint exceeds the minimum jurisdictional

7 limits of this court.

8

FACTUAL ALLEGATIONS

9

The Law School Admissions Test (LSAT)

10

46. The LSAT is a half-day, standardized test administered four times each year at

11 designated testing centers throughout the State of California. It purports to provide a standard

12 measure of acquired reading and verbal reasoning skills that law schools use to assess applicants.

13

47. The test consists of five 35-minute sections of multiple-choice questions. A 35-minute

14 writing sample is administered at the end of the test. Defendant does not score the writing sample, bu

15 sends it on to the law schools with the scores.

16

48 . The LSAT is designed to measure reading and comprehension skills, the ability to

17 organize and manage information, and analytical skills such as evaluation and criticism.

18

49. The three multjple-choice question types in the LSAT are labeled reading

19 comprehension, analytical reasoning, and logical reasoning. All candidates take one additional

20 multiple-choice section, which is experimental.

21

LSAC Business within the State

22

50. LSAC offers and administers its LSAT at multiple locations in the State of Califomi a

23 four times a year, typically at law schools and universities. Applicants pay a test registration fee of

24 $139 after creating an online account and filling out the online application form. Additional fees

25 charged by LSAC include $68 for late registration, $35 to change the test date, and so on.

26

51. LSAC pays local proctors to administer the exam on site. LSAC also pays for

27
*COURT PAPER
Stat. of Cfliifomia Std. 113 Rev. 3-95 FE&H Automated

accommodations at the site, stich as readers or scribes.
-10Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whitneyet al.)
Group and Class Action Complaint for Damages and Injunctive Relief

1

52. . LSAC offers a Credential Assembly Service to law schools and law school applicants,

2 which streamlines the law school admission process by allowing transcripts, recommendations and

3 evaluations to be sent one time to LSAC. LSAC, in turn, summarizes and combines a law school

4 applicant's LSAT score, writing samples, transcripts, recommendations, and evaluations into a report

5 to an applicant's prospective law schools. The Credential Assembly Service also includes access

6 through an applicant's LSAC account to electronic applications for all ABA-approved law schools.

7 Applicants are charged $124 to register for the Credential Assembly Service and $16 for law school

8 reports.

9

53. LSAC provides a series ofLSAT preparatory guides, manuals and compilations of

10 sample LSATs for purchase via its Web site, which materials range in price from $8 to $39.96. LSAC

11 also sells a guide to ABA-approved law schools for $26 and a skill readiness inventory for $29.95.

12

The LSAC Accommodation Request Process

13

54. LSAC requires candidates requesting a reasonable accommodation to utilize its

14 standard forms and procedures. Applicants making an accommodation request for a so-called

15 cognitive or psychological impairment are required to provide psychoeducationall

16 neuropsychological testing and a full diagnostic report, including comprehensive aptitude and

17 achievement testing.

18

55. · LSAC requires each applicant to disclose whether he or she took prescribed

19 medication during the evaluation process and to provide an explanation for any failure or refusal to

; 20 take the medication.

21

56. LSAC has a policy whereby examinees who complete the LSAT under a disability-

22 related accommodation involving additional test time receive a notation on their score report

23 indicating that their exam scores were earned under non-standard time conditions. When reporting

24 these LSAT scores to the law schools, defendant advises the schools that these examinees' scores

25 "should be interpreted with great sensitivity and flexibility."

26

27
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$tate of California Sid. 113 Rw. 3.95 FE&H Automated

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1

57. In addition, scores from tests taken under extended time conditions are not averaged

2 with other scores to produce a percentile ranking as are other testscores; Instead, extended time

3 scores are reported individually.

5

58. John Doe, a resident of Rancho Santa Fe (San Diego County), requested that

6 defendant make accommodations for the December 2010 LSAT at Saddleback College.

7

59. Mr. Doe was diagnosed with attention deficit disorder (ADD) at age 13. In addition, in

8 2010 he became extremely ill with a bacterial infection and was hospitalized for approximately two

9 months, spending several weeks in the Intensive Care Unit in a medically-induced coma. During this

10 illness he suffered a severe brain edema, which left him with residual neurological impairments.

11

60. Mr. Doe requested time and a half (150 percent) on the multiple choice and writing

12 sections for the December 2010 LSAT.

13

61. In support of his request, Mr. Doe submitted medical documentation verifying his

14 hospitalization, and a complete psychoeducational assessment, which reported multiple diagnoses:

15 ADD, a learning disability (spelling), and a "[r]ecent bacterial infection vlith sustained induced coma

16 and residual impairments."

17

62. LSAC refused·to grant Mr. Doe's requested accommodation and instead asked for "a

18 detailed explanation regarding the nature, severity, treatment, and extent of [his] disorder at the

19 present time and it [sic) impact on your ability to take the LSAT."

20

63. Mr. Doe then submitted additional medical documentation indicating that he had

21 "suffered a serious illness and developed marked weaknesses and encephalopathy. He continues to

22 have fatigability and impaired concentration." Bis doctor recommended that Mr. Doe be granted

23 increased time to complete the LSAT.

24

64. LSAC then demanded that Mr. Doe's psychologist provide "a current update of [his]

25 cognitive status" before making a decision on his accommodation request.

26

65. Mr. Doe and his doctor disputed the need for an updated psychoeducational

27
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Stat. of California Std. 113 Rov. 3-95 FE&H Automated

assessment just three months after the first report was completed. His doctor responded, "I would
-12Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whitney et al.)
Group and Class Action Complaint for Damages and Injunctive Relief

1 reiterate that Mr. Doe's intelligence is much as it was when he was originally seen (10/26110) and

2 with.IQ scores as noted in that report, all within the average range with the exception of Processing

3 Speed (4th percentile)."

4

66. LSAC granted Mr. Doe nine additional minutes for the multiple choice and writing

5 sample sections (125 percent), with an additional 15 minutes of break time between sections three

6 and four, for the February and June 2011 LSAT.

7

Jane Doe

8

67 . Jane Doe, a resident of Oakland (Alameda County), requested that defendant provide

9 her with reasonable accommodations on each of two administrations of the LSAT examination, one

lOin February 2010 and a second in June 2010.

11

68. Ms. Doe has attention deficit disorder (ADD). Her condition makes it difficult to

12 retain attention and focus, and significantly impairs her ability to conceptually organize and sequence

13 abstract ideas.

14

69. Ms. Doe requested that LSAC accommodate her with time and a half(150 percent) on

15 the multiple choice and writing sample sections of the LSAT.

16

70. In support of her request, Ms. Doe submitted medical documentation, verification that

17 she had received the accommodation of time and a half (150 percent) as an undergraduate university

18 student, and proof that she had received extended time (150 percent) on the 'Graduate Record Exam

19 (ORE).

20

71. On January 1.5, 2010, LSAC denied Ms. Doe's accommodation requests, explaining

21 that her documentation did not demonstrate that she had a disability, which affected her ability to tak

22 the LSAT.

23

72. Ms. Doe reapplied for accommodations on the June 2010 LSAT, requesting the same

24 accommodation oftime and a half (150 percent) on the multiple choice and writing sample sections.

25

73. LSAC also denied tillS request. WhenMs. Doe asked for an explanation for the denial,

26 defendant replied in writing that it was "not obligated to provide accommodations that are not

27
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COURT PAPER State of Califo~ Std . 113 Rev. 3-95 FE&H AUlomalad

warranted or supported by the documentation."
-13Dept. Fair Emp/. & Hous. v. Law School Admission Council, Inc. (Whitney et al.)
Group and Class Action Complaint for Damages and Injunctive Relief

1

Peter Roe

2

74. Peter Roe, a resident ofSan Jose (Santa Clara County),requested that defendant make

3 accommodations for the September 2009 LSAT at California State University, East Bay.

4

75. Mr. Roe has reading and math disorders, characterized by impaired auditory attention

5 span and low visuomotor processing speed. These learning disorders substantially impact his ability

6 to process written material, particularly under timed conditions.

7

76. Mr. Roe requested 20 extra minutes for the multiple choice sections and 30 extra

8 minutes for the writing sanlple section of the LSAT. He also requested a reader and permission to use

9' a computer dictation program.

10

77. In support of his request, Mr. Roe submitted a neuropsychological evaluation

11 documenting his learning disabilities.

12

78. LSAC denied Mr. Roe any accommodation, noting that he had neglected to submit a

13 "timed reading comprehension measure" in conformance with LSAC's guidelines, he had no history

14 of educational accommodation, and his test results demonstrated an "average range of functioning."

15

79. Mr. Roe requested reconsideration of LSAC's denial, submitting the results of an

16 additional reading comprehension test that documented Mr. Roe's reading problems and

17 recommended that he receive an accommodation of time and a half(150 perce~t).

18

80. After reconsideration, LSAC stood by its previous decision to deny accommodation.

1.9

Raymond Banks

20

81. Raymond Banks, a resident of San Francisco (County of San Francisco), requested

21 that defendant make accommodations for the February 2011 LSAT at San Francisco State University.

22

82. Mr. Banks had a longstanding and severe injury to his shoulder muscle. As a result of

23 this injUlY, Banks suffered from nerve damage, carpal tunnel syndrome, and chronic pain, all of

24 which limited his ability to write.

25

83. Mr. Banks requested five additional minutes to complete each multiple-choice test

26 section of the LSAT, 10 additional minutes on the writing sample section, five-minute breaks

27
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COURT PAPER Stat. of California Std. 113 Rov. 3-95 FE&H Automated

between each test section, a large table to wlite on, and permission to wear a splint on his wrist.
-14Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whitney et al.)
Group and Class Action Complaint for Damages and Iniunctive Relief

1

84. Real party Banks submitted medical documentation in support of his request, as well

2 as proofthat he had received accommodation as a studentat the University of California, Berkeley

3 for time and a half (150 percent) on all exams and quizzes.

4

85. LSAC denied all of Mr. Banks' requests, other than permitting him to wear a hand

5 splint "as a courtesy." When Mr. Banks asked LSAC for an explanation of the denial, LSAC

6 responded in writing that "[t]be documentation provided did not support your request for the

7 additional accommodations you requested."

8

Kevin Collins

9

86. Kevin Collins, a resident of Woodland Hills (Los Angeles County), requested that

10 defendant make accommodations for the February 2011 LSAT at California State University,

11 Northridge.

12

87. Mr. Coilins suffers from two learning disorders: disorder of written expression and a

13 reading disorder. He has perceptual-organizational impairments, making it significantly more

14 difficult for him to process simple or routine visual material without making errors, as compared to

15 his peers.

16

88. Collins requested the accommodations of double time on multiple choice and writing

17 sample sections of the LSAT, permission to use a computer and printer for the writing sample, and an

18 alternative, non-Scantron answer sheet.

19

89. In support of his request, Collins submitted proof that he had received time and a half

20 (150 percent) on the GRE and for exams at Claremont Graduate University. He also submitted a full

21 psychoeducational assessment report as requested by LSAC's guidelines.

22

90. Defendant's first response was to ask for additional information and inform Collins

23 that the deadline had passed for tbe February 2011 LSAT. Later, after Collins had submitted the

24 requested information and requested consideration for the June exam, defendant granted him the

25 accommodations of time and a half (150 percent) for the multiple choice and writing sample sections,

26 rather than the double time that he had requested. The rest of his requested accommodations was

27
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State of California Std. 113 Rev. 3-95 FE&H Automlltod

granted.

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1

91. Collins asked LSAC to reconsider its decision to deny him double time. LSAC stood

2 by its previous decision that time and a half was appropriate.

3

Rodney DeComo-Schmitt

4

92. Rodney DeComo-Schmitt, a resident of Marin County, requested that defendant make

5 accommodations for the October 2010 LSAT offered at Sonoma State University.

6

93. Mr. DeComo-Schmitt suffers from a reading disorder, causing a significant

7 discrepancy between his verbal abilities and his visual-spatial abilities, especially under timed

8 conditions.

9

94. Mr. DeComo-Schmitt requested time and a half (150 percent) on the multiple-choice

10 sections of the exam, extra rest and break time, and permission to use a computer for the writing

11 sample.

12

95 . In support ofhis request, Mr. DeComo-Schmitt submitted a thorough

13 psychoeducational assessment and proof that he had received time and a half (150 percent) on his

14 SAT exam.

15

96. LSAC at first refused to consider Mr. DeComo-Schmitt's request for reconsideration,

16 asserting that it had been submitted past the deadline for the October 2010 exam. Later, LSAC denied

17 any accommodation to Mr. DeComo-Schmitt for the December 2010 exam, asserting that the

18 documentation he had submitted did not demonstrate a limitation of a major life activity which

19 affected his ability to take the LSAT.

20

97. Mr. DeComo-Schmitt requested reconsideration ofLSAC's decision, submitting a

21 letter from his psychologist contending that LSAC had misinterpreted the psychological testing.

22

98. LSAC stood by its denial of accommodation, informing Mr. DeComo-Schmitt that he

23 was registered for the December 2010 LSAT as a standard test taker.

24

Andrew redacted

25

99. Andrew redacted , a Saratoga resident (Santa Clara County), requested that defendant

26 make accommodations for the December 2010 LSAT offered at Santa Clara University.

27
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1

100. As a child, Andrew redacted was in a car accident and suffered a traumatic brain.

2 injury, which significantly impacted his cognitive abilities, memory, and attention. At the time that h

3 applied for the LSAT, Andrew redacted had been diagnosed with a reading disorder and a learning

4 disorder (weak short-tenn auditory memory).

5

101. Andrew redacted requested that defendant accommodate him by granting double

6 time on the multiple choice and writing sample sections of the LSAT, and additional break and rest

7 time.

8

102. In support ofhis request, Andrew redacted submitted a complete psychoeducational

9 assessment documenting his disability and need for accommodation, copies of an Individualized

10 Educational Plan (IEP) from his high school showing that he had received extended time on tests, and

11 proof that he had received accommodation for the SAT.

12

103. On October 18,2012, LSAC notified Andrew redacted that it would provide him

13 with time and a half (150 percent) for the multiple choice and writing sample sections of the LSAT,

14 instead of the double time that he had requested. LSAC did approve the extra rest and break time,

15 explaining that it had fully considered the materials that Andrew redacted had submitted, but "it is

16 our judgment that the alternative accommodations you have been granted are appropriate and

17 reasonable for your docum<~nted disability."

18

104. With the assistance of his psychologist, Andrew redacted asked LSAC to reconsider

19 its decision to deny him double time. LSAC replied that it was too late to reconsider any decision

20 related to the December 2010 test

21

Elizabeth Hennessey-Severson

22

105. Elizabeth Hennessey-Severson, a resident of San Francisco (San Francisco County),

23 requested that defendant make accommodations for the June 2011 LSAT at University of California,

24 Hastings College of the Law.

25

106. Ms. Hennessey-Severson has reading, written expression and mathematics disorders,

26 and ADHD. These conditions impair her working memory and her ability to plan, organize, and

27
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devote sustained attention to language-based tasks, particularly reading.
-17Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whitneyet al.)
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1

107. Ms. Hennessey-Severson requested that LSAC accommodate her on the LSAT with a

.'

.

.

2 minimum oftime and a half (150 percent) extra testing time, and by all()wingher short breaks of 10

.

.

3 to15 minutes between sections of the exam.

4

108. In support of her request, Ms . Hennessey-Severson submitted psychoeducational .

5 assessment reports from 2002 and 2009. She also submitted proof that she had been accommodated

6 with time and a half (150 percent) on the SAT, and while she was a student at Dartmouth College.

7

109. Defendant denied all of Ms. Hennessey-Severson' s requests for accommodation,

8 contending that she scored in the "very superior" and "high average" range in her psychoeducational

9 testing, and that her 2002 evaluation noted that she demonstrated a remarkable ability to compensate

10 for her learning disabilities, such that she was able to take honors courses and play high school sports

11

110. Ms. Hennessey-Severson and her psychologist requested that LSAC reconsider its

12 decision to deny accommodation. Her psychologist wrote: "It is my professional opinion based on all

13 available eVidence including comprehensive history, diagnostic interview, well established history of

14 early diagnosis, remediation, and later accommodations throughout high school and college, that Ms.

15 Hennessey has a standard learning disability that has a substantial impact on a major life function,

16 namely, her ability to read, write, and calculate efficiently, and that extended time for formal testing

17 is a reasonable accommodation for her disability."

18

Ill. After reconsideration, LSAC stood by its prior decision to deny Ms. Hennessey-

19 Severson any accommodation.

20

Otilia loan

21

112. Otilia loan, a resident of San Jose (Santa Clara County), requested accommodation for

22 the December 2010 LSAT offered at Santa Clara University.

23

113. Ms. loan is quadriplegic. She is paralyzed in all four limbs and is unable to physically

24 write without using a brace.

25

114. Ms. loan requested that LSAC provide her with double time on all sections of the test,

26 an alternate answer sheet, the use of a scribe, and an additional break of 30 minutes between sections

27
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COVRT PAPER Sta'. of CBlifornte Sid. 113 R.v. l-95 fE&l1AUlomabd

3 and 4 of the test.
-18Dept. Fair Empl. & Hous. v. Law School Admission Council, inc. (Whitney et al.)
Group and Class Action Complaint for Damages and Injunctive Relief

1

115. In support ofher request, Ms. loan submitted verification that she had received the

2 accommodation of double time on tests while a student at De Anza College, and double time when

3 taking the ORE.

4

116. LSAC asked Ms. loan to submit additional information from her doctor before it could

5 consider her request for accommodation. LSAC wrote: "Your evaluator needs to provide detailed

6 information regarding the nature, extent, severity, and treatment of your disorder and its functional

7 limitation on your ability to take the LSAT," defendant wrote.

8 .

117. Ms. loan's doctor supplied the additional information that LSAC requested.

9

118. Ms. loan wrote to LSAC requesting reconsideration of its decision to deny her double

10 testing time. LSAC stood by its previous decision.

11

Alex Johnson

12

119. Alex Johnson, a resident of Lake San Marcos (San Diego County), requested

13 accommodations for the October 2010 LSAT offered at the University of Southem California.

14

120. Mr. Johnson is quadriplegic. He is unable to write or turn pages because his fingers ar

15 paralyzed. He is unable to draw diagrams, underline text, or use a standard Scantron answer sheet.

16

121. Mr. Johnson requested 15 minutes of extra break time between each section of the

17 LSAT, and 120 additional minutes (more than triple time) on the multiple choice and writing sample

18 sections.

19

122. In support of his request, Mr. Johnson submitted medical documentation of his

20 condition and need for accommodation, as well as verification from the University of Southern

21 Califomia that he had received double time on his exams while a student there.

22

123. At first, LSAC refused to consider Mr. Jolmson's accommodation request, because he

23 was not registered to take the LSAT. Later, it granted Mr. Johnson time and a half (150 percent) on

24 the multiple choice and writing sample sections, and 10 minutes of break time between each section.

25 It agreed to provide Mr. Johnson with a scribe, and permitted him to use a computer for the writing

26 sample.

27
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Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whitney et aL) Group and Class Action Complaint for Damages and Injunctive Relief

1

124. Mr. Johnson requested that LSAC reconsider his request for double time. His doctor

2 .wrote, "Double time is the least amount of time I should be allocated. It is .also very hard to use a

3 scribe becaUse of time limitations."

4

125. LSAC responded that it did not offer an untimed test, and that the documentation

5 submitted did not support Johnson's request.

6

Nicholas Jones

7

126. Nicholas Jones, a resident of Palm Desert (Riverside County), requested that

8 defendant provide him with an accommodation for the December 2009 LSAT offered at the

9 University of Laveme (Ontario).

10

127. Mr. Jones suffers from two distinct eye conditions. First, he has amblyopia or "lazy

11 eye" in his left eye, which impairs his visual processing. Second, he has posterior vitreous

12 detachments in his right eye, meaning that he has persistent floaters or spots, which obstruct his field

13 of vision. These conditions together impair Mr. Jones' reading speed and ability.

14

128. Mr. Jones requested time and a half (150 percent) on the multiple choice and writing

15 sample sections ofthe exam and five-minute breaks between each section.

16

129. In support of his request, Mr. Jones submitted medical forms filled out by his doctor,

17 an eye specialist.

18

i30. LSAC refused to provide any accommodation to Mr. Jones, informing him that "[t]he

19 documentation provided did not reflect an impainnent related to taking the Law School Admission

20 Test."

21

131. Mr. Jones requested that LSAC reconsider its decision denying him accommodations,

22 and asked it to provide further explanation. Mr. Jones' doctor wrote a letter supporting his request for

23 reconsideration, asserting that Jones' eye condition "substantially limits him in at least one major life

24 activity, reading."

25

132. After reconsideration, defendant stood by its prior decision to deny accommodation.

26

27
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St.at. of C,f1fomla Std. 113 Rev. )-9S FE&H AU'lomat,d

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Dept. Fair Empl. & Hous. v. Law School Admission Council. Inc. (Whitney et a1.) Group and Class Action Complaint for Damages and h~iunctive Relief

1

Caroline Lee

2

. 133. Caroline Lee, a resident of Oakland (Alameda County), requested that defendant make

3 accommodations for the December 2010 LSAT offered in the City of Oakland.

4

134. Ms. Lee suffers from ADHD and a reading disorder, causing her reading to be labored

5 and excessively slow, and impairing her short-term memory.

6

135. Ms. Lee requested time and a half (150 percent) on the LSAT multiple choice and

7 writing sample, as well as extended breaks during the exam, a quiet testing environment, and the use

8 of a laptop to compose all written work.

9

136. In support of her request, Ms. Lee submitted prooftbat she had received extended

10 testing time of 150 percent while a student at City College of San Francisco (CCSF) and that she had

11 taken the SAT and ACT with accommodations. She also submitted a psychoeducational assessment

12 that had been performed while she was a student at CCSF.

13

137. LSAC replied in writing to Ms. Lee that she needed to submit additional

14 documentation in order for her request to be considered, asking for: "[t]esting results and a full

15 diagnostic report from a comprehensive up-to-date psychoeducational/neuropsychological assessmen

16 that comply with the Law School Admissions Council, Inc. Guidelines for Documentation of

17 Cognitive Impairments."

18

138. Ms: Lee then obtained and submitted a full psychoeducational evaluation in February

19 2011, which documented her ADHD and reading disorder. Her psychologist recommended that she

20 receive 150 percent extended time, as well as the other previously requested accommodations.

21

139. LSAC then requested that Ms. Lee submit several additional documents and reports.

22 Ms. Lee did so.

23

140. In April 2011, defendant denied all of Ms. Lee's requested accommodations,

24 informing her that: her performance on acadenlic measures was commensurate with her ability,

25 negating a finding of impairment; her documentation failed to support the diagnosis of an attention

26 disorder; and her request for additional time on the writing sample was not considered because her

27
*COURT PAPER
State of California S1d. 113 Rev. 3-95 FE&H Automated

psychologist had not administered the right tests.
-21Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whitney et al.)
Group and Class Action Complaint for Damages and Injunctive Relief

1

141. Ms. Lee requested that LSAC reconsider its denial of accommodation. This request

2 was accompanied by a letter from her psychologist, who contended that LSAC had misinterpreted the

3 psychoeducational assessment.

4

142. After reconsideration, LSAC stood by its initial decision to deny accommodations.

5

Andrew Quan

6

143. Andrew Quan, a resident of Hayward (Alameda County), requested accommodation

7 for the October 2011 LSAT offered at the University of California, Santa Cruz.

8

144. Mr.. Quan has ADHD, a visual-motor integration deficit with slow processing speed,

9 hypotonia, and dysgraphia.

10

145. Mr. Quan requested that LSAC provide him with the accommodations of double time

11 on the multiple choice and writing sample portions of the exam, 1O-minute breaks between each

12 section of the test, and the use of a computer for the writing sample.

13

146. In support ofhis request, Mr. Quan submitted to LSAC proof that he had been

14 accommodated with t~e use of a computer on his ACT exams. He also submitted a 2008

15 psychoeducational assessment from high school, showing that Mr. Quan suffered from "significant

16 deficits in visual-motor integration and fine motor skills." Included within that assessment was a

17 2008 IEP documenting dysgraphia, attention deficit, visual processing, and sensory motor skills

18 disorders which qualified him for special educational services, the use of a laptop computer, a scribe,

19 and extra examination time.

20

147. LSAC requested that Mr. Quan provide further documentation tosupport his request,

21 including "testing results and a full diagnostic report from a comprehensive up-to-date

22 psychoeducational/neuropsychological assessment that comply with [LSAC Guidelines)."

23

148. Mr. Quan contested LSAC's need for additional documentation, asserting that it was

24 unnecessary, unaffordable, and burdenso~e.

25

149. LSAC responded that ifMr. Quan wanted any accommodation in the future, he would

26 need to submit "substantive documentation to support your request for your hypotonia/dysgraphia

27
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Siale of Cal Ifornia Sid. t13RI'V. )-95 FE&H Automated

disorders."

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Dept. Fair Emp/. & Hous. v. Law School Admission Council. Inc. (Whitneyet aJ.) Group and Class Action Complaint for Damages and Injunctive Relief

1

Stephen Semos

2

150. ' Stephen Semos, a resident of Rancho Palos Verdes (Los Angeles County), requested

3 that defendant make accommodations for the December 2010 LSAT at Whittier Law School (Costa

4 Mesa).

5

151. Mr. Semos has ADHD and dsygraphia, which significantly impair his reading, writing

6 organization, and general academic perfonnance.

7

152. - Mr. Semos requested time and a half (150 percent) on both the multiple-choice and

8 writing sample portions of the exam, additional break time offive to eight minutes.

9

153. In support of his request, Mr. Semos submitted proofthat he had received:

10 accommodations on the SAT; an IEP from the Palos Verdes Peninsula Unified School District

11 identifying Mr. Semos as learning disabled; a letter verifying that he had received accommodations

12 while a student at the University of California, Irvine, oftime and a half (150 percent) on tests; and a

13 complete psychoeducational assessment by his doctor, a neuropsychologist.

14

154. LSAC's first response was to ask Mr. Semos to provide additional documentation in

15 order to consider his accommodation request, including a full report of two particular tests for

16 cognitive disabilities, the Nelson-Denny Reading Test (NDRT) and the Conner's Continuous

17 Perfonnance Test-II. LSAC also infonned Mr. Semos that the deadline for the December 2010 LSAT

18 had passed, but that he could request accommodation for future exams.

19

155. Mr. Semos then submitted his documentation for the February 20i I LSAT.

2 0 1 5 6 . In response, LSAC denied all of Mr. Seinos' requests for accommodation on the basis

21 that his test scores were generally commensurate with his abilities and thus did not demonstrate a

22 learning disability.

23

157. Mr. Semos' neuropsychologist requested that LSAC reconsider its denial. Mr. Semos'

24 doctor wrote: "Your denial letter written to Mr. Semos selectively highlighted the above average

25 scores and thereby masked the patterns of deficits in processing speed and fine motor speed noted in

26 my neuropsychological report."

27
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Stab) of California Std. 113 Rev. 3-g5 FEa.H Au10m~8d

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1

158. LSAC responded that the letter from Mr. Semos' neuropsychologist had arrived too

2 late to be considere.d for the February 2011 LSAT. LSAC wrote: "You remain registered to test as a

3 standard test taker. No accommodations have. been granted."

4

Gazelle Taleshpour

5

159. Gazelle Taleshpour, a resident of San Diego (San Diego County), requested that

6 defendant make accommodations for the October 2010 LSAT offered at the University of San Diego.

J

7

160. Ms. Taleshpour has ADHD. She also suffers from osteopenia (bone loss) and chronic

8 pain in her neck and back as a result of treatment she had received for leukemia, a bone marrow

9 transplant, radiation, and chemotherapy.

10

161. Ms. Taleshpour requested that LSAC accommodate her with 30 extra minutes on the

11 multiple choice and writing sample portions of the exam, breaks of two to five minutes every half

12 hour so that she could stretch and alleviate pain, a high table, and a comfortable chair.

13

162. In support ofher request, Ms. Taleshpour submitted documentation from her treating

14 medical doctor, her chiropractor, and her psychologist. She also provided LSAC with verification tha

15 she had received time and a half (150 percent) on all tests and exams while a student at the Universit

16 of San Diego.

17

163~ LSAC requested that Ms. Taleshpour provide additional documentation in support of

18 her accommodation request, including "[t]esting results and a full diagnostic report from a

19 psychoeducational/neuropsychological assessment that comply with Guidelines for Documentation 0

20 Cognitive Impairments."

21

164. Ms. Taleshpour obtained and submitted the additional documentation that LSAC

22 requested. Her psychiatrist performed a full psychoeducational assessment, which diagnosed her with

23 ADHD, a reading disorder, and a learning disability (dyslexia). Her psychiatrist supported Ms.

24 Taleshpour's request for double time and other accommodations.

25

165. LSAC only partially granted Ms. Taleshpour's request for accommodation, allowing

26 her to sit or stand at a podium while taking the exam, and to bring a seat cushion or an adjustable

27
*COll~TPAPER
State of Cntifomia SId. 113 fhv. 3-95 FE&H Auto.mated

chair.

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Dept. Fair Ernpl. & Hous. v. Law School Admission Council, Inc. (Whitneyet al.) Group and Class Action Complaint for Damages and Injunctive Relief

1

166. Ms. Taleshpour then resubmitted a request for accommodation for the December 2010

2 LSAT:. double time on multiple choice and writing sample; an alternate, non-Scantron. answer sheet;

3 use of a reader; an additional 15 minutes of rest time; and 15-minute breaks between sections.

4

167. LSAC denied the request for additional accommodations beyond the two it had

5 already granted, explaining to Ms. Taleshpour that her intelligence test scores were average and

6 commensurate with her ability, meaning that no cognitive disability was apparent.

7

168.· Ms. Taleshpour requested that LSAC reconsider its denial of accommodation for extra

8 time. Her psychologist supported the reconsideration request, contending that LSAC failed to

9 recognize significant discrepancies in herreading speed and comprehension. "These significant

10 difficulties provide psychometric evidence of the presence of a Learning Disability as described by

11 the ADA," he wrote.

12

169. LSAC stood by its prior decision to limit the accommodations made for Ms.

13 Taleshpour: permission to sit or stand with a podium and to bring a seat cushion or an adjustable

14 chair.

15

. Kevin Vielbaum

16

170. Kevin Vielbaum, a resident of San Mateo (San Mateo County), requested that

17 defendant make accommodations for him in taking the June 2011 LSAT at the University of

18 California, Hastings College of the Law.

19

171. Mr. Vielbaum has a reading disorder (dyslexia), characterized by a significant

20 difficulties with perceptual reasoning, working memory, and cognitive processing speed.

21

172. Mr. Vielbaum requested that defendant accommodate him with time and a half (150

22 percent) on the multiple choice section of the LSAT, double time on the writing sample, and

23 permission to use a computer for the writing sample.

24

173. In support of his request, Mr. Vielbaum submitted extensive records from his primary

25 education at a special school for students with dyslexia, where he was granted accommodations of

26 extended time and the use of a laptop and calculator.

27
*COIJRTPAPER
St.ate of C~lifornia Std. 113 Rev. 3·9,5 FE&H Automatvd

-25-
Dept. Fair Emp!. & Hous. v. Law School Admission Council, Inc. (Whitney et at.) Group and Class Action Complaint for Damages and In,iunctive Relief

1

174. LSAC granted Mr. Vielbaum only the accommodation of using a computer, printer

. 2 and spell check for the writing sample. LSACdenied the accommodation of extra time, noting that

3 Mr. VieIbaum had not requested accommodation on the SAT, and that he had scored well on the tests

4 involved in his psychoeducational assessment. Defendant went on to explain that: "[y]our evaluator

5 notes you have difficulties with logical reasoning. Inasmuch as the Law School Admission Test is

6 designed to measure these skills, the accommodations requested (extended time on all examinations

7 that involve the solving of logic problems), would not be appropriate."

8

Austin Whitney

9

175. Austin Whitney, a resident of Contra Costa County, first requested accommodations

10 for the September 2009 LSAT offered at San Diego State University.

11

176. Mr. Whitney is paraplegic due to a spinal cord injury in 2007.

12

177. Mr. Whitney requested that defendant accommodate his disability with time and a hal

13 (150 percent) on the multiple choice and writing sample sections of the LSAT, and a wheelchair

14 accessible testing location.

15

178. In support of his request, Mr. Whitney submitted medical records pertaining to his

16 2007 injury, verification from the University of Califomi a at Berkeley that he had received time and

17 half (150 percent) for all exams and quizzes during his undergraduate studies, and a form filled out

18 by his doctor indicating that, because ofms injury and surgeries, he suffered from "severe chronic

19 pain and radiating radicular nerve pain" for which Whitney took prescription medication that caused

20 drowsiness.

21

179. LSAC responded that Mr. Whitney's request for accommodation had been submitted

22 too late for the September 2009 test, and therefore he was registered as a standard test taker.

23

180. Mr. Whitney next requested accommodations for the June 2010 LSAT offered in

24 Berkeley at the California Ballroom. This time he requested that LSAC accommodate him with five-

25 minute breaks between sections, in addition to providing time and a half (150 percent) on the multipl

26 choice and writing sample sections and a wheelchair accessible testing site.

27
CD
COURT PAPER State of California Std.. 113 Rev. 3-95 FE&H Automated

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Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whitney et at.) Group and Class Action Complaint for Damages and Injunctive Relief

1

181. In support of this request, Mr. Whitney submitted medical forms from four different

2 doctors, each ofwhom supported his need for extra testing time. Dr. Larry Snyder explained: .

3 "Patient has significant fatigue due to medications taken for previous spinal injury - this will affect

4 his performance in TIMED conditions." Dr. Carol Jessop wrote that, due to Mr. Whitney's spinal

5 cord injury with chronic, nueropathic pain, he needed extra time to compensate for the effects of the

6 pain medication which cause fatigue. Dr. Jessop explained: "This is a significant problem for Austin

7 Whitney as he is taking medications ... that cause him to be sleepy and fatigued. This drowsiness

8 makes him slower in his response to test questions. If an exam has a time limit, he will definitely

9 need extra time to complete it."

10

182. LSAC then granted Mr. Whitney the extra break time that he requested, and agreed to

11 provide a wheelchair accessible testing site, but denied his request for extra testing time. "If you

12 choose to have your cognitive disorder (alluded to by Carol Jessop, MD) considered," defendant

13 wrote, "you must provide a current psychoeducational/neuropsychological assessment or

14 neuropsychological evaluation as per our Guidelines for Documentation of Cognitive Impairments."

15

183. Mr. Whitney asked defendant to reconsider its decision to deny additional testing time,

16 and three of his doctors wrote to LSAC in support of his request.

17

a. Dr. Snyder wrote, "His pain and spacticity are a constant distraction and put

18 him at a significant disadvantage as a test taker. In addition, the medicatIon he is taking causes

19 significant fatigue and makes it difficult to concentrate. The medication side effects do not impair

20 cognition but can slow processing speed. For these reasons, he should be afforded extra time when

21 taking this standardized test."

22

b. Dr. Jessop wrote, "I would like to emphasize that the nature ofMr. Whitney'S

23 condition is physiological (pain issues) and NOT cognitive or due to a learning disorder. OUf request

24 for extra time on the exam is based solely on physiological effects of chronic, severe neuropathic

25 pain, and the fatiguing side effects ofpharmaceutical pain killers. Thus, because he doesn't have a

26 learning disability, I feel strongly that neuropsychological or psychoeducational testing would be

27
*COURT PAPER
Stale of CaHfoml. Std. 113 Ro'V. 3-95 FE&H Automated

irrelevant in his case."
-27Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whitney et al.)
Group and Class Action Complaint for Damages and Injunctive Relief

1

c. Dr. Hedelman wrote, "Patient's significant impacts on concentration, reading,

2 writing, ability to attend class is secondaryto.his unpredictable, severe neuropathic pain and the

3 associated pain management medications. Patient does not have an underlying cognitive impairment

4 requiring neuropsych[ological] testing."

5

184. LSAC refused to reconsider its decision, responding: "We have no objective evidence

6 to support Dr. Carol Jessop, MD's conclusion that your thought processes are not as fast as they

7 could be without medication."

8

185. In 2011, at LSAC's behest, Mr. Whitney was evaluated by a psychologist, who

9 detennined that he required double time on examinations due to the effect that his pain medication

10 was having on his cognitive abilities.

11

186. In response to a second accommodation request by Mr. Whitney with the

12 psychologist's report as supporting documentation, LSAC awarded him 10 additional minutes on

13 each section of the exam. LSAC provided no rationale for denying his request for double time.

14

FIRST CLASS CAUSE OF ACTION

15

Unlawful Consideration of Mitigation Measures

16

(42 U.s.c. § 12102(4)(E)(1)(i)(I»

17

187. The DFEH realleges and incorporates by reference each and every allegation

18 contained in paragraphs 1 through 186, inclusive, as if fully set forth herein.

19

188.. The ADA, 42 U.S.C. § 12102(4)(E)(1)(i)(I), requires that "any determination of

20 whether an impairment substantially limits a major life activity shall be made without regard to the

21 ameliorative effects of mitigating measures such as medication." The ADA is incorporated into the

22 Unruh Act by Civil Code section 51, subdivision (t).

23

189. By requiring applicants to take the medication prescribed for their disabilities while

24 being evaluated for accommodations or explain their failure or refusal to do so, LSAC violates the

25 rights of class members under the FEHA, Unruh Act, and ADA,

26

27
*COURT PAPER
Staie of Clllifonria Std. 113 Rnv. 3095 FEaH Automated

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Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whitney et aJ.) Group and Class Action Complaint for Damages and Injunctive Relief

1

190. As a direct result of ~e unlawful practices of defendants as alleged herein, class

2 •members have incurred out of pocket losses, including test registration fees and medical bills, in an

3' amount to be proven at trial.

4

191. As a further and direct result of the unlawful practices of defendants as alleged herein,

5 class members have suffered emotional distress, anxiety, lost opportunity, frustration, humiliation,

6 and loss of dignity and self-esteem, in an amount to be proven at trial.

7

192. Defendants have engaged in, and by their refusal to comply with' the law, have

8 demonstrated that they will continue to engage in, the pattern and practice of unlawful discrimination

9 described herein unless and until they are enjoined, pursuant to the police power granted by

10 Government Code sections 12920 and 12920.5} and pursuant to section 12974, from failing or

11 refusing to comply with the mandates of the FEHA, Unruh Act, and the ADA. Unless and until

12 defendants are enjoined from failing or refusing to comply with the mandates of these laws, class '

13 members' right to full and equal access to places ofpublic accommodation will continue to be

14 violated. Plaintiff lacks any plain, speedy, adequate remedy at law to prevent such harm, injury and

15 loss, which will continue until the court enjoins the complained ofunlawful conduct and grants other

16 affirmative relief as prayed for herein.

17

SECOND CLASS CAUSE OF ACTION

18

Failure to Ensure that Exam Measures Ability Rather than Disability

19

(42 U.S.c. § 12189 and 28 C.F.R. § 36.309)

20

193. The DFEH realleges and incorporates by reference each and every allegation

21 contained in paragraphs 1 through 186, inclusive, as if fully set forth herein.

22

194. The ADA requires that any person offering examinations related to post-secondary

23 education or profession "shall offer such examinations or courses in a place and manner accessible to

24 persons with disabilities." (42 U.S.C. § 12189.) Regulations interpreting this section impose an

25 obligation on the entity offering such an examination that" [t]he examination is selected and

26 administered so as to best ensure that, when the examination is administered to an individual with a

27
*COURT PAPER
Stat. of California Std . 113 Re'l. 3-95 FE&H Automa1.ad

disability that impairs sensory, manual, or speaking skills, the examination results accurately reflect
·29Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whitney et aJ.)
Group and Class Action Complain.t for Damages and Injunctive Relief

1 the individual's aptitude or achievement level or whatever other factor the examination purports to

2 measure, rather than reflecting theindividual's impaired sensory, manual, or speaking skills."(28

3 C.F.R. § 36.309.)

4

195. By adhering to a blanket policy of annotating scores taken under extended time

5 conditions, defendant is communicating to law schools that it does not know whether or not the

6 applicants' exam results accurately reflect aptitude or achievement. Therefore, LSAC is breaching its

7 duty under the FEHA, Unruh Act, and ADA to ensure that the examination results accurately reflect

8 the individual's aptitude or achievement level. (28 C.F.R. § 36.309(b)(1)(i).)

9

196. As a direct result of the unlawful practices of defendants as alleged herein, class

10 members have incurred out of pocket losses, including test registration fees and medical bills, in an

11 amount to be proven at trial.

12

197. As afurther and direct result of the unlawful practices of defendants as alleged herein,

13 class members have suffered emotional distress, anxiety, lost opportunity, frustration, humiliation,

14 and loss of dignity and self-esteem, in an amount to be proven at trial.

15

198. Defendants have engaged in, and by their refusal to comply with the law, have

16 · demonstrated that they will continue to engage in, the pattern and practice of unlawful discrimination

17 described herein unless and until they are enjoined, pursuant to the poHce power granted by

18 Government Code sections 12920 and 12920.5, and pursuant to section 12974, from failing or

19 refusing to comply with the mandates of the FEHA, Unruh Act, and the ADA. Unless and until

20 defendants are enjoined from failing or refusing to comply with the mandates of these laws, class

21 members' right to full and equal access to places of public accommodation will continue to be

22 violated. Plaintiff lacks any plain, speedy, adequate remedy at law to prevent such hann, injury and

23 loss, which will continue until the court enjoins the complained of unlawful conduct and grants other

24 affinnative relief as prayed for herein.

25

26

27
*COURT PAPER
Shit. of California Std. 113 Roy. 3-06 f'E&H Automatad

-30-
Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whitney et al.) Group and Class Action Complaint for Damages and Injunctive Relief

1

TIDRD CLASS CAUSE OF ACTION

2

Coercion, Intimidation, Threats, or Interference with ADA Rights -:- Flagging .

3

(42 U.S.c. § 12203)

4

199. The DFEH realleges and incorporates by reference each and every allegation

5 contained in paragraphs 1 through 186, inclusive, as if fully set forth herein.

6

200. The ADA makes it unlawful to "coerce, intimidate, threaten, or interfere with any

7 individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed,

8 any right granted or protected by this Act." (42 U.S.C. § 12203.)

9

201. LSACs policy of annotating tests scores administered under extended time conditions

10 discourages applicants from seeking such an accommodation, and punishes those who receive it, in

11 violation of the FERA, Unruh Act, and ADA.

12

202. As a direct result of the unlawful practices of defendants as alleged herein, class

13 members have incurred out of pocket losses, including test registration fees and medical bills, in an

14 amount to be proven at trial.

15

203. As a further and direct result of the unlawful practices of defendants as alleged herein,

16 class members have suffered emotional distress, anxiety, lost opportunity, frustration, humiliation,

17 and loss of dignity and self-esteem, in an amount to be proven at trial.

18

204. Defendants have engaged in, and by their refusal to comply with the law, have

19 demonstrated that they will continue to engage in, the pattern and practice ofunlawful discrimination

20 described herein unless and until they are enjoined, pursuant to the police power granted by

21 Govermhent Code sections 12920 and 12920.5, and pursuant to section 12974, from failing or

22 refusing to comply with the mandates of the FERA, Unruh Act, and the ADA. Unless and until

23 defendants are enjoined from failing or refusing to comply with the mandates of these laws, class

24 members' right to full and equal access to places of public accommodation will continue to be

25 violated. Plaintiff lacks any plain, speedy, adequate remedy at law to prevent such hann, injury and

26 loss, which will continue until the court enjoins the complained of unlawful conduct and grants other

27
*COURT PAPER
Sial. of C.lifomla Std. 113 Rev. :)..95 FE&H Aulomat.d

affirmative relief as prayed for herein.
-31Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whitney et al.)
Group and Class Action Complaint for Damages and Iniunctive Relief

1

FOURTH CAUSE OF ACTION -REAL PARTIES IN I~TTEREST ONLY

2

Denial of Reasonable Accommodati.on

3

(42 U.S.c. § 12189 and 28 C.F.R. § 36.309(b)(I)(iv))

4

205. The DFEH realleges and incorporates by reference each and every allegation

5 contained in paragraphs 1 through 186, inclusive, as if fully set forth herein.

6

206. The ADA requires that any person offering examinations related to post-secondary

7 education or profession "shall offer such examinations or courses in a place and mrumer accessible to

8 persons with disabilities." (42 U.S .c. § 12189.) As part of this duty to make an examination

9 accessible, the regulations require that any documentation requested be "reasonable and limited to the

10 need for the modification, accommodation, or auxiliary aid or service requested." (28 C.F.R. §

11 36.309(b)(I)(iv).)

12

207. LSAC breached its duty to make the LSAT accessible to people with disabilities by

13 requiring excessive amounts of documentation and denying a reasonable accommodation to each real

14 party in interest, in violation of the FEHA, Unruh Act, and ADA.

15

208. As a direct result of the unlawful practices of defendants as alleged herein, real parties

16 have incurred out of pocket losses, including test registration fees and medical bills, in an amount to

17 be proven at trial.

18

209. As a further and direct result of the unlawful practices of defendants as alleged herein,

19 real parties have suffered emotional distress, anxiety, lost opportunity, frustration, humiliation, and

20 loss of dignity and self-esteem, in an amount to be proven at trial.

21

210. Defendants have engaged in, and by their refusal to comply with the law, have

22 demonstrated that they will continue to engage in, the pattern and practice ofunlawful discrimination

23 described herein unless and until they are enjoined, pursuant to the police power granted by sections

24 12920 and 12920.5, and pursuant to section 12974, from failing or refusing to comply with the

25 mandates of the FEHA, Unruh Act, and the ADA. Unless and until defendants are enjoined from

26 failing or refusing to comply with the mandates of these laws, class members' right to full and equal

27
*COURT PAPER
St~te of CalHortria. Std. 113 Rev. 3-95 fE&H Autom.1t.ed

access to places of public accommodation will continue to be violated. Plaintifflacks any plain,
-32Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whitney et al.)
Group and Class Action Complaint for Damages and I~iunctive Relief

1 speedy, adequate remedy at law to prevent such hann, injury and loss, which will continue until the

2 courtenjoinsthe complained of unlawful conduct and grants other affinnativerelief as prayed for

3 herein.

4

FIFTH CAUSE OF ACTION - REAL PARTIES IN INTEREST ONLY

S

Coercion, Intimidation, Threats, or Interference with ADA Rights

6

(42 U.S.C. § 12203)

7

211. The DFEH realleges and incorporates by reference each and every allegation

8 contained in paragraphs 1 through 186, inclusive, as if fully set forth herein.

9

212. The ADA makes it unlawful to "coerce, intimidate, threaten, or interfere with any

10 individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed,

11 any right granted or protected by this Act." (42 U.S.C. § 12203.)

12

213. LSAC's policies and patterns ofrequiring unreasonable types and excessive amounts

13 of documentation to support each accommodation request violate the FEHA, Unruh Act, and the

14 ADA, by unlawfully coercing, intimidating, threatening, or interfering with real parties' exercise or

15 enjoyment of their right to reasonable accommodation on the LSAT.

16

214. As a direct result of the unlawful practices of defendants as alleged herein, real parties

17 have incurred out of pocket losses, including test registration fees and medical bills, in an amount to

18 be proven at trial.

19

215. As a further and direct result of the unlawful practices of defendants as alleged herein,

20 real parties have suffered emotional distress, anxiety, lost opportunity, frustration, humiliation, and

21 loss of dignity and self-esteem, in an amount to be proven at trial.

22

216. Defendants have engaged in, and by their refusal to comply with the law, have

23 demonstrated that they will continue to engage in, the pattern and practice of unlawful discrimination

24 described herein unless and until they are enjoined, pursuant to the police power granted by

2S Government Code sections 12920 and 12920.5, and pursuant to section 12974, from failing or

26 refusing to comply with the mandates of the FEHA, Unruh Act, and the ADA. Unless and until

27
*COURT PAPER
State of C~Ufornia Std. 113 Rov. 3-95 FE&H Automated

defendants are enjoined from failing or refusing to comply with the mandates of these laws, class
-33Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whitney et al.)
Group and Class Action Complaint for Damages and Injunctive Relief

1 members' right to full and equal access to places of public accommodation will continue to be

2 violated. Plaintiff lacks any plain, speedy,adequate remedy at law to prevent such harm, injury and

3 loss, which will continue until the court enjoins the complained ofunlawful conduct and grants other

4 affinnative relief as prayed for herein.

5

PRAYER FOR RELIEF

6

WHEREFORE, the DFEH prays that the court issue ajudgment in favor of the DFEH, real

7 parties in interest, and members of the class, and order defendants to provide the following relief:

8

AS TO REAL PARTIES IN INTEREST

9

217. Provide free and accommodated testing at the next available testing date in each real

10 party's area, with accommodations as initially requested by that real party;

11

218. Provide a letter to each real party explaining that their LSAT scores used for their law

12 school applications during the relevant period may not have provided accurate measures of their

13 acquired reading and verbal reasoning skills, because LSAC did not reasonably accommodate their

14 disabilities.

15

AS TO ALL MEMBERS OF THE CLASS,

INCLUDING THE REAL PARTIES IN INTEREST

16

17

219. Cease and desist from consideration of mitigation measures such as medication when

18 making a determination as to whether an applicant needs an accommodation.

19

220. Cease and desist from specially annotating LSAT scores tests scores administered

20 under extended time conditions.

21

221. Include all test scores in the percentile ranking process and provide a' ranked percentile

22 to each test taker.

23

222. . Immediately undertake a validation study to determine if LSAC scores under

24 accommodation of extra time for cognitive disabilities are an equal measure of aptitude or

25 achievement as compared to non-accommodated scores.

26

223. Reduce to a discrete and reasonable amount the documentation required to verify an

27
*COURT PAPER
State of Cillifornia Std. 113 Rll'l. 3-95 FE&H Automated

applicant's need for an accommodation, especially for so-called cognitive disabilities, consistent with
- -34Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whitney et at.)
Group and Class Action Complaint for Damages and Iniunctive Relief

1 the ADA's requirement that such documentation be "reasonable" and Congress' mandate that "the

2 question of whether an individual's impairment is' a disability under the ADA should not demand

3 extensive analysis." (28 C.F.R. § 36.309(b)(1)(iv); 42 U.S.C. § 1201 [Pub. L. No. 110-325, § 2(b)(5)

4 (Sept. 25, 2008) 122 Stat. 3553].)

5

224. Create a more streamlined and user-friendly process for considering reasonable

6 accommodation requests, that includes notice to applicants, within a reasonable period of time,

7 whether or not requested accommodations have been granted, and provides a fair process for timely

8 reconsideration of any denial of requested accommodations.

9

225. Pay actual damages according to proof for each Unruh Act violation up to a maximum

10 of three times the actual damages but in no case less than $4,000 per violation.

11

226. Provide written proof to the Department of the nature and extent ofLSAC's

12 compliance with all requirements of the court's order within 100 days of its effective date; and,

13

227. Provide such other relief as the Court deems to be just and proper.

14 15 . Dated: March 15,2012 16 17 18 19 20 21 22

DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING
NELSON CHAN Chief Counsel
SUSAN SAYLOR Special Projects Counsel
BY:~~ susansa;rIOT Attorneys for the Department

23

24

25

26

27
*COURT PAPER
State of Catifornia Std. 113 Rov. 3·95 fE&H Automatod

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Dept. Fair Empl. & Hous. v. Law School Admission Council, Inc. (Whitney et al.) Group and Class Action Complaint for Damages and Injunctive Relief