1

Filed 2/11/14 (unmodified opinion attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

LAW SCHOOL ADMISSION COUNCIL, INC.,

Plaintiff and Respondent,

v.

STATE OF CALIFORNIA et al.,

Defendants and Appellants.

C073187

(Super. Ct. No. 

34201300135574CUMCGDS)

ORDER MODIFYING OPINION

[NO CHANGE IN JUDGMENT]

THE COURT:

The opinion filed January 13, 2014, in the above cause is modified in the 

following respects:

Change the last line of the editorial information to read: Fulbright & Jaworski, 

Robert E. Darby and Robert A. Burgoyne for Plaintiff and Respondent.

On page 30, change the third sentence in the first full paragraph to read: 

We therefore consider it forfeited for purposes of this appeal.

The paragraph’s remaining text is deleted following the citation: (Americas 

Propane, LP v. Landstar Ranger, Inc. (2010) 184 Cal.App.4th 981, 1001, fn. 4; People v. 

Stanley (1995) 10 Cal.4th 764, 793.)

This modification does not change the judgment.
2

 ROBIE , Acting P.J.

 BUTZ , J.

 HOCH , J.
1

Filed 1/13/14 (unmodified version)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

LAW SCHOOL ADMISSION COUNCIL, INC.,

Plaintiff and Respondent,

v.

STATE OF CALIFORNIA et al.,

Defendants and Appellants.

C073187

(Super. Ct. No. 

34201300135574CUMCGDS)

APPEAL from a judgment of the Superior Court of Sacramento County, 

Raymond M. Cadei, Judge. Reversed with directions.

Kamala D. Harris, Attorney General, Julie Weng-Gutierrez, Assistant Attorney 

General, Ismael A. Castro, Christine M. Murphy and R. Matthew Wise, Deputy 

Attorneys General, for Defendants and Appellants.

Legal Aid Society - Employment Law Center and Claudia Center for Association 

on Higher Education and Disability, California Association for Postsecondary Education 

and Disability, Civil Rights Education and Enforcement Center, Council of Parent 

Attorneys and Advocates, Disability Rights Advocates, Disability Rights California, 

Disability Rights Education & Defense Fund, Disability Rights Legal Center, Edge 

Foundation, Everyone Reading, Inc., Legal Aid Society - Employment Law Center, 

National Association of Law Students with Disabilities, National Federation of the Blind, 

and Marilyn J. Bartlett and Richard K. Neumann, Jr., as Amici Curiae on behalf of 

Defendants and Appellants.

Fulbright & Jaworski and Robert E. Darby for Plaintiff and Respondent.
2

This case involves a constitutional challenge to Education Code section 99161.5, 

which requires Law School Admission Council, Inc. (LSAC), the test sponsor of the Law 

School Admission Test (LSAT), to “provide testing accommodations to a test subject 

with a disability who makes a timely request to ensure that the [LSAT] accurately reflects 

the aptitude, achievement levels, or other factors that the test purports to measure and 

does not reflect the test subject’s disability.” (Ed. Code, § 99161.5, subd. (a)(1).)1 The 

section also requires LSAC to “give considerable weight to documentation of past 

modifications, accommodations, or auxiliary aids or services received by the test subject 

in similar testing situations when determining whether to grant an accommodation to the 

test subject” (§ 99161.5, subd. (b)), and prohibits the organization from either 

“notify[ing] a test score recipient that the score of any test subject was obtained by a 

subject who received an accommodation” or “withhold[ing] any information that would 

lead a test score recipient to deduce that a score was earned by a subject who received an 

accommodation.” (§ 99161.5, subd. (c)(1) & (2).) 

The State of California (the State) appeals from the issuance of a preliminary 

injunction ordering the State to refrain from enforcing section 99161.5 against LSAC 

pending trial.2 The trial court ruled LSAC demonstrated a likelihood of prevailing on its 

claim that section 99161.5 violates the equal protection clause of the California 

 

1 Undesignated statutory references are to the Education Code. 

2

In support of the State, the following amici curiae joined to file a brief: 

Association on Higher Education and Disability, California Association for 

Postsecondary Education and Disability, Civil Rights Education and Enforcement Center, 

Council of Parent Attorneys and Advocates, Disability Rights Advocates, Disability 

Rights California, Disability Rights Education & Defense Fund, Disability Rights Legal 

Center, Edge Foundation, Everyone Reading, Inc., Legal Aid Society - Employment Law 

Center, National Association of Law Students with Disabilities, National Federation of 

the Blind, and Marilyn J. Bartlett and Richard K. Neumann, Jr.
3

Constitution (Cal. Const., art. I, § 7, subd. (a))3 because it “lacks a rational basis for 

directing its prohibitions to LSAC exclusively, and not to other testing entities.” The trial 

court also found “the risk of infringement of [LSAC’s] constitutional rights is sufficient 

harm to warrant injunctive relief.” We issued a limited stay of the trial court’s 

preliminary injunction order pending resolution of this appeal, specifically directing 

LSAC to comply with section 99161.5, subdivision (c). We now reverse the preliminary 

injunction order. As we explain, section 99161.5 does not violate LSAC’s right to equal 

protection under the law because LSAC is not similarly situated to other testing entities 

for purposes of the law. Nor has LSAC demonstrated a likelihood of prevailing on its 

additional claims, i.e., that section 99161.5 violates its right to liberty of speech, 

constitutes invalid special legislation, or amounts to a prohibited bill of attainder. The 

only claim that cannot be determined against LSAC as a matter of law is the liberty of 

speech claim. But even as to that claim, the balance of interim harm does not tip in 

LSAC’s favor. Accordingly, it was an abuse of the trial court’s discretion to issue the 

preliminary injunction. 

BACKGROUND

LSAC is a non-profit corporation, the primary purpose of which is to assist its 

members―over 200 law schools in the United States, Canada, and Australia―in their 

admissions process. In accordance with this purpose, LSAC prepares and administers the 

LSAT, a standardized test that is administered four times a year in California and other 

jurisdictions both inside and outside the United States. 

According to James M. Vaseleck, Jr., Senior Director of Public Affairs and 

Deputy General Counsel of LSAC, the LSAT “provides a standard measure of acquired 

reading and verbal reasoning skills, and measures skills that are considered essential for 

success in law school, including: the reading and comprehension of complex texts with 

 

3 Undesignated constitutional references are to the California Constitution. 
4

accuracy and insight; the organization and management of information and the ability to 

draw reasonable inferences from that information; and the analysis and evaluation of the 

reasoning and arguments of others.” The declaration submitted by Vaseleck in support of 

the preliminary injunction continues: “As shown in numerous validity studies performed 

by LSAC, the LSAT is a strong predictor of first-year law school grades, and a 

combination of students’ LSAT scores and undergraduate grade point averages (GPAs) 

gives a better prediction of law school performance than either LSAT scores or GPAs 

alone.”4 Generally, after a prospective law student takes the LSAT, LSAC provides to its 

member law schools a “score report,” including “a percentile ranking and the score band 

 

4

In Shultz and Zedeck, Predicting Lawyer Effectiveness: Broadening the Basis for 

Law School Admission Decisions (2011) 36 Law & Soc. Inquiry 620, the authors 

acknowledge LSAT scores and undergraduate GPAs “have proven to be valuable 

predictors of first-year law school grades,” but point out “they do not account for success 

in the legal profession or for law school outcomes other than first-year grades.” (Id. at p. 

621.) The authors note this to be “unsurprising” since first-year courses are “often 

graded using a similar methodology [to the LSAT],” i.e., by “exams that require students 

to read fact patterns, identify and analyze legal issues, assemble evidence and arguments, 

and sometimes to assess implications.” (Id. at p. 622.) Additionally, “test-taking speed 

can predict performance on both the LSAT and eventual law school exams--a finding that 

increases the predictive validity of the LSAT. However, test-taking speed diminished the 

predictive value of the LSAT significantly when first-year grades were based on takehome exams or papers instead of exams.” (Ibid.) Thus, “the LSAT may be measuring 

cognitive test-taking skills that are rewarded in first-year courses,” but less predictive of 

success in subsequent years and professional practice. (Id. at p. 623.) The authors also 

point out that “[r]esearch consistently shows that affluent White students perform better 

on standardized tests, including the LSAT, than their less advantaged or minority peers 

[citations]. As a result, a heavy emphasis on LSAT scores in admission decisions 

substantially reduces the presence of African American and Latino students in law school 

and the profession as well as diminishing prospects from most non-elite families 

[citation].” (Id. at p. 621.) The authors advocate for the employment of new tests 

designed to assess factors important to effectiveness as a lawyer―including, among 

others, creativity, practical judgment, writing, speaking, listening, strategic planning, 

negotiation skills, passion, diligence, and honesty―to be used in conjunction with LSAT 

scores and undergraduate GPAs in order to “strengthen the connections between legal 

education and the profession” and “significantly increase diversity over what will likely 

be achieved when academic indicators dominate the process.” (Id. at pp. 630, 656-657.) 
5

within which each examinee’s score fell for that test administration, relative to other 

examinees,” the “average LSAT score” for that test administration, and “predictive index 

values (a statistical combination of undergraduate GPA and LSAT scores).” 

The Americans with Disabilities Act (ADA)

The ADA (42 U.S.C. § 12101 et seq.) requires entities that offer examinations 

related to applications for postsecondary education, such as LSAC, to “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.) 

Department of Justice regulations interpret this section to require the testing entity to 

ensure that “[t]he examination is selected and administered so as to best ensure that, 

when the examination is administered to an individual with a disability that impairs 

sensory, manual, or speaking skills, the examination results accurately reflect the 

individual’s aptitude or achievement level or whatever other factor the examination 

purports to measure, rather than reflecting the individual’s impaired sensory, manual, or 

speaking skills (except where those skills are the factors that the examination purports to 

measure).” (28 C.F.R. § 36.309(b)(1)(i).) The testing entity must also ensure, among 

other things, that “[a]ny request for documentation, if such documentation is required, is 

reasonable and limited to the need for the modification, accommodation, or auxiliary aid 

or service requested,” and that “the entity gives considerable weight to documentation of 

past modifications, accommodations, or auxiliary aids or services received in similar 

testing situations.” (28 C.F.R. § 36.309(b)(1)(iv), (v).) The regulations also provide: 

“Required modifications to an examination may include changes in the length of time 

permitted for completion of the examination and adaptation of the manner in which the 

examination is given.” (28 C.F.R. § 36.309(b)(2).) 

LSAC’s Accommodations Procedures

Acknowledging LSAC is required to comply with federal law, Vaseleck states in 

his declaration: “LSAC makes reasonable testing accommodations available on the 
6

LSAT for individuals with documented disabilities who are unable to take the test under 

standard testing conditions, in accordance with the [ADA]. Accommodations have been 

requested based on a variety of impairments, including: hearing impairments; learning 

disorders; attention deficit disorders; neurological impairments; physical disabilities; 

psychological disabilities; visual impairments; and medical disabilities. In reviewing 

requests for testing accommodations, LSAC gives considerable weight to an applicant’s 

receipt of testing accommodations in prior, similar testing situations. [¶] . . . The types 

of accommodation(s) provided vary depending on the nature of a test taker’s disability. 

Possible testing accommodations include changes to the format of the test (such as large 

print or Braille tests), or changes to the standard test administration (such as use of a 

reader, a wheelchair-accessible testing center, an amanuensis, additional rest time 

between sections of the test, and additional testing time). Additional testing time is the 

most commonly requested LSAT accommodation.” 

LSAT applicants seeking an accommodation for a disability must submit a request 

to LSAC with supporting documentation. This request, which cannot be reviewed until 

the applicant is registered for the LSAT, must include the following: “(1) an LSAT 

Candidate Form, (2) an LSAT Evaluator Form completed by a qualified/licensed 

professional who is familiar with the impact of [the applicant’s] disorder/condition on a 

major life activity that affects [the applicant’s] ability to perform on the LSAT or other 

similar, timed, standardized admission tests, and (3) the relevant Cognitive, 

Psychological, Vision, or Physical Evaluation Report(s) and results of past standardized 

tests such as the SAT/ACT [Scholastic Assessment Test/formerly American College 

Test].” Vaseleck’s declaration states LSAC “makes accommodation decisions within a 

reasonable amount of time after receiving completed applications and the requisite 

supporting documentation. Decisions are generally made within 14 days of LSAC’s 

receipt of a complete application request, often sooner. When LSAC denies a request, it 

informs the applicant why the request was denied.” Upon denial of an accommodation 
7

request, the applicant may submit a request for reconsideration, which is reviewed after 

all initial accommodation requests have been processed. 

When an accommodation request seeking additional testing time is granted, the 

score report LSAC sends to law schools does not include the percentile ranking, score 

band, average LSAT score, or predictive index because, as Vaseleck explains, “scores 

achieved with extra testing time . . . . [¶] . . . [¶] . . . have been shown by LSAC’s 

research not to be comparable to scores achieved with standard testing time.” According 

to LSAC’s research, “scores achieved with extra testing time tend to over-predict how the 

examinee will perform in the first year of law school.” In addition to omitting the 

foregoing information from the score report, LSAC provides a letter to law schools 

receiving such a score report explaining the applicant took the LSAT “under nonstandard 

time conditions,” that “LSAC research indicates that scores earned under nonstandard 

time conditions do not have the same meaning as scores earned under standard time 

conditions,” and the “applicant’s score should be interpreted with great sensitivity and 

flexibility.” 

Enactment of Section 99161.5

In September 2012, the Governor signed into law Assembly Bill No. 2122, which 

added section 99161.5 to the Education Code. (Stats. 2012, ch. 583, § 1.) This section, 

effective January 1, 2013, provides: 

“(a)(1) The test sponsor of the [LSAT] shall provide testing accommodations to a 

test subject with a disability who makes a timely request to ensure that the [LSAT] 

accurately reflects the aptitude, achievement levels, or other factors that the test purports 

to measure and does not reflect the test subject’s disability. This paragraph does not 

constitute a change in, but is declaratory of, existing law.

“(2) The process for determining whether to grant an accommodation under 

paragraph (1) shall be made public, and the decision whether or not to approve a request 

for an accommodation shall be conveyed to the requester within a reasonable amount of 
8

time. If the test sponsor of the [LSAT] does not approve a request for accommodation, 

the test sponsor shall state the reasons for the denial of the request to the requester in 

writing.

“(3) The test sponsor of the [LSAT] shall establish a timely appeals process for a 

test subject who is denied an accommodation request. The test sponsor of the [LSAT] 

shall clearly post on the [LSAT] Internet Web site information regarding refund policies 

for individuals whose requests for accommodation are denied.

“(b) Whenever a test subject has received formal testing accommodations from a 

postsecondary educational institution for a disability as defined in subdivision (j), (l), or 

(m) of Section 12926 of the Government Code, the test sponsor of the [LSAT] shall, 

consistent with existing law, give considerable weight to documentation of past 

modifications, accommodations, or auxiliary aids or services received by the test subject 

in similar testing situations when determining whether to grant an accommodation to the 

test subject.

“(c)(1) The test sponsor of the [LSAT] shall not notify a test score recipient that 

the score of any test subject was obtained by a subject who received an accommodation 

pursuant to this section.

“(2) The test sponsor of the [LSAT] shall not withhold any information that would 

lead a test score recipient to deduce that a score was earned by a subject who received an 

accommodation pursuant to this section.

“(3) This subdivision does not constitute a change in, but is declaratory of, 

existing law.

“(d) This section shall not be construed to limit or replace any other right or 

remedy that exists under state or federal law.

“(e) This section shall not provide greater protections to persons with disabilities 

than those provided by Section 51 of the Civil Code.” (§ 99161.5.) 
9

The legislative history of Assembly Bill No. 2122 reveals section 99161.5 was 

directed exclusively toward the LSAT’s test sponsor, rather than made to apply generally 

to the numerous test sponsors conducting testing services in California, because the 

Legislature viewed LSAC’s testing accommodations procedures as more onerous than 

those of other test sponsors. The Assembly Committee on Higher Education’s bill 

analysis notes that, according to the bill’s author, former Assembly Member (now State 

Senator) Ricardo Lara, the bill “targets LSAC” rather than other test sponsors because 

“the process for test subjects to request and obtain accommodations when taking the 

LSAT creates significant barriers for persons with disabilities.” (Assem. Com. on Higher 

Education, Analysis of Assem. Bill No. 2122 (2011-2012 Reg. Sess.) as amended Mar. 

21, 2012, pp. 1-3.) The Senate Rules Committee, Office of Senate Floor Analyses, third 

reading analysis notes: “According to the author, ‘[u]nlike the [LSAT], students 

requesting accommodations for high stakes exams such as the Graduate Records 

Examinations [(GRE)], which is sponsored by the Educational Testing Service, can easily 

submit a completed Certification of Eligibility in lieu of disability documentation. 

Clearly, the [LSAC’s] stringent documentation policies create a gap between individuals 

who can afford the expensive assessment and those who cannot. Additionally, under 

LSAC’s policies, when a student obtains extra time based on a cognitive or physical 

disability, his or her score is identified and a letter is sent to law schools notifying that an 

accommodation was granted and advising that the score should be interpreted with great 

sensitivity. This practice is referred to as “flagging” and it creates a chilling effect that 

discourages individuals from requesting testing accommodations.’ ” (Sen. Rules Com., 

Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 2122 (2011-2012 

Reg. Sess.) as amended Aug. 29, 2012, p. 6.) 

We provide a more detailed account of the legislative history in the discussion 

portion of this opinion. 
10

The Present Lawsuit

On January 10, 2013, LSAC filed a complaint for declaratory and injunctive relief 

challenging the constitutionality of section 99161.5 under the California Constitution. 

The complaint alleged the newly-enacted statute: (1) violated LSAC’s right to “equal 

protection of the laws” (art. I, § 7, subd. (a)); (2) abridged its “liberty of speech” (art. I, § 

2, subd. (a)); (3) constituted an invalid “special statute” (art. IV, § 16, subd. (b)); and also 

(4) amounted to a prohibited “bill of attainder” (art. I, § 9). The same day, LSAC applied 

for a temporary restraining order and for an order to show cause regarding issuance of a 

preliminary injunction. On January 15, 2013, the trial court denied the request for a 

temporary restraining order, granted the request for an order to show cause, and set the 

matter for a hearing on the preliminary injunction to be held on February 1, 2013. 

On January 17, 2013, LSAC filed a motion for a preliminary injunction, arguing in 

support of the motion that LSAC was likely to succeed on the merits of its claims and it 

would suffer irreparable harm if “forced to send out score reports with incomplete and 

inaccurate information for scores obtained with extra time.” The bulk of the merits 

argument was directed toward the equal protection claim. LSAC argued it is similarly 

situated to other testing entities, such as Educational Testing Service (ETS), College 

Board, the Association of American Medical Colleges (AAMC), the American 

Osteopathic Board of Emergency Medicine (Osteopathic Board), and the North American 

Board of Naturopathic Examiners (Naturopathic Board), and the Legislature had no 

rational basis for treating it differently by enacting a statute directed exclusively at 

LSAC. LSAC submitted evidence regarding the accommodations policies of these 

testing entities. For example, AAMC, which administers the Medical College Admission 

Test (MCAT), notes on its website: “For tests that are administered under non-standard 

conditions, primarily those that involve a change in the timing of the test, we do not know 

if the scores obtained will be comparable to scores obtained under standard testing 

conditions. Therefore, tests that are administered under non-standard conditions will be 
11

noted as non-standard on score reports. Score reports do not indicate the reason for the 

administration of a non-standard MCAT exam or the specific type of accommodation that 

was provided.” Similarly, Naturopathic Board, which administers the Naturopathic 

Physicians Licensing Examination (NPLEX), includes in the “report/transcript” sent to 

regulatory authorities a notation that the examination was administered “under nonstandard testing conditions.” 

In opposition, the State argued, “LSAC is not similarly situated to other testing 

entities in California, such as ETS or College Board, . . . because it ‘creates significant 

barriers for people with disabilities while other test sponsors no longer flag scores and 

have less burdensome requirements for requesting accommodations.’ ” The State also 

argued the Legislature had “a rational basis for focusing its attention on LSAC’s 

accommodation practices” due to the fact “LSAC has distinguished itself among testing 

entities for its burdensome requirements for requesting accommodations and its policy of 

flagging scores under accommodated extended time conditions.” The State pointed to 

LSAC’s own evidence in support of the preliminary injunction, specifically the 

accommodations policies of ETS and College Board, which administer the GRE and 

SAT, respectively. For example, as noted in the legislative history of section 99161.5, 

ETS grants basic accommodations, including “time and one-half and/or additional rest 

breaks,” to applicants with long-standing learning disabilities without requiring the costly 

diagnostic reevaluation required by LSAC. Instead, such an applicant need only submit a 

certification of eligibility, which does not require extensive documentation. Similarly, 

College Board has a “school verification process” that allows the applicant’s school to 

verify he or she meets College Board’s criteria for requesting an accommodation; “in 

most cases, the student does not need to submit additional documentation of a disability.” 

Neither ETS nor College Board has a policy of flagging non-standard test scores. 

On February 1, 2013, the trial court heard argument on the motion and issued the 

requested preliminary injunction. The trial court ruled LSAC demonstrated a likelihood 
12

of prevailing on its claim that section 99161.5 violated its right to equal protection 

because the statute “lacks a rational basis for directing its prohibitions to LSAC 

exclusively, and not to other testing entities.” The trial court explained: “The 

Legislature’s legitimate interest in prohibiting discrimination is not in dispute. However, 

legislation that seeks to further this interest must not single out one particular entity for 

regulation without a rational basis for doing so. The reasons presented for limiting 

application of section 99161.5 to LSAC only, specifically, that LSAC engages in flagging 

while other testing entities do not, are simply not plausibly related to the stated goals of 

the statute. First, as noted above, other testing entities may change their practices to 

engage in flagging, and would be permitted to do so under section 99161.5, while LSAC 

would not. Second, LSAC presents evidence that other testing entities do report scores 

earned with extra time differently than standard scores. . . . Given that other testing 

entities would be permitted to engage in flagging under the statute, and that some other 

testing entities actually do engage in flagging, the anti-discrimination purposes of the

statute are not rationally served by exclusively targeting LSAC for regulation.” The trial 

court also concluded that “the risk of infringement of [LSAC’s] constitutional rights is 

sufficient harm to warrant injunctive relief.” 

We issued a limited stay of the preliminary injunction order pending resolution of 

this appeal, specifically directing LSAC to comply with section 99161.5, subdivision (c). 

We now reverse. 

DISCUSSION

I

The Grant and Review of Preliminary Injunctive Relief

“The general purpose of a preliminary injunction is to preserve the status quo 

pending a determination on the merits of the action. [Citation.] ‘ “The granting or denial 

of a preliminary injunction does not amount to an adjudication of the ultimate rights in 

controversy. It merely determines that the court, balancing the respective equities of the 
13

parties, concludes that, pending a trial on the merits, the defendant should or . . . should 

not be restrained from exercising the right claimed by him [or her].” ’ [Citation.]” (SB 

Liberty, LLC v. Isla Verde Assn., Inc. (2013) 217 Cal.App.4th 272, 280.) 

“In deciding whether to issue a preliminary injunction, a trial court must evaluate 

two interrelated factors: (i) the likelihood that the party seeking the injunction will 

ultimately prevail on the merits of his [or her] claim, and (ii) the balance of harm 

presented, i.e., the comparative consequences of the issuance and nonissuance of the 

injunction. [Citations.]” (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 

441-442.) “The trial court’s determination must be guided by a ‘mix’ of the potentialmerit and interim-harm factors; the greater the plaintiff’s showing on one, the less must 

be shown on the other to support an injunction. [Citation.]” (Butt v. State of California

(1992) 4 Cal.4th 668, 678.) However, “[a] trial court may not grant a preliminary 

injunction, regardless of the balance of interim harm, unless there is some possibility that 

the plaintiff would ultimately prevail on the merits of the claim.” (Ibid.) 

Ordinarily, appellate review is limited to whether the trial court abused its 

discretion in evaluating the foregoing factors. (Citizens to Save California v. California 

Fair Political Practices Com. (2006) 145 Cal.App.4th 736.) “Occasionally, however, the 

likelihood of prevailing on the merits depends upon a question of pure law rather than 

upon the evidence to be introduced at a subsequent full trial. This issue can arise, for 

example, when it is contended that an ordinance or statute is unconstitutional on its face 

and that no factual controversy remains to be tried. If such a question of pure law is 

presented, it can sometimes be determinative over the other factor, for example, when the 

defendant shows that the plaintiff’s interpretation is wrong as a matter of law and thus the 

plaintiff has no possibility of success on the merits. [Citations.]” (Hunter v. City of 

Whittier (1989) 209 Cal.App.3d 588, 595-596; see, e.g., King v. Meese (1987) 43 Cal.3d 

1217, 1235.) Of course, such questions of law are subject to de novo review. (Sahlolbei 

v. Providence Healthcare, Inc. (2003) 112 Cal.App.4th 1137, 1145-1146.) 
14

II

Likelihood of Prevailing on the Merits

As mentioned, the trial court ruled LSAC demonstrated a likelihood of prevailing 

on its claim that section 99161.5 violates the equal protection clause of the California 

Constitution because it “lacks a rational basis for directing its prohibitions to LSAC 

exclusively, and not to other testing entities.” We disagree. As a matter of law, section 

99161.5 does not violate LSAC’s right to equal protection because LSAC is not similarly 

situated to other testing entities for purposes of the law. However, because “we review 

the correctness of the trial court’s ruling, not its reasoning,” a principle that is 

“particularly applicable to rulings granting or denying preliminary injunctions” (Oiye v. 

Fox (2012) 211 Cal.App.4th 1036, 1049), we must also determine whether it would have 

been an abuse of discretion for the trial court to have ruled LSAC demonstrated a 

likelihood of prevailing on its additional claims, i.e., section 99161.5 violates LSAC’s 

right to freedom of speech, constitutes special legislation, or amounts to a bill of 

attainder. We address each ground of purported unconstitutionality below. 

A.

Equal Protection

The California Constitution prohibits the denial of “equal protection of the laws.” 

(Art. I, § 7, subd. (a).) “The concept of equal protection recognizes that persons who are 

similarly situated with respect to a law’s legitimate purposes must be treated equally.” 

(People v. Brown (2012) 54 Cal.4th 314, 328; In re J. (1979) 25 Cal.3d 522, 530.) As a 

corporation, LSAC “is considered a ‘person’ entitled to the constitutional guarantee of 

equal protection.” (Walgreen Co. v. City and County of San Francisco (2010) 185 

Cal.App.4th 424, 434 (Walgreen).) 

“ ‘The first prerequisite to a meritorious claim under the equal protection clause is 

a showing that the state has adopted a classification that affects two or more similarly 

situated groups in an unequal manner.’ [Citations.] This initial inquiry is not whether 
15

persons are similarly situated for all purposes, but ‘whether they are similarly situated for 

purposes of the law challenged. [Citation.]’ ” (Cooley v. Superior Court (2002) 29 

Cal.4th 228, 253.) “ ‘If persons are not similarly situated for purposes of the law, an 

equal protection claim fails at the threshold. [Citation.]’ ” (Walgreen, supra, 185 

Cal.App.4th at p. 434, quoting People v. Buffington (1999) 74 Cal.App.4th 1149, 1155.) 

Thus, in order to determine whether LSAC and other test sponsors, such as ETS 

and College Board, are similarly situated, we must first determine the purposes of section 

99161.5. For this, we turn to the legislative history. 

The Senate Rules Committee, Office of Senate Floor Analyses, third reading 

analysis of Assembly Bill No. 2122 notes: “[T]he requirements for verifying disabilities 

and granting accommodations varies significantly among test sponsors, including: [¶] 

1. [ETS], which administers the [GRE], requires test subjects to submit requests for 

accommodations, including current documentation from a qualified professional 

supporting each testing accommodation requested, by the specified registration deadline. 

Recognizing the costs associated with obtaining current documentation, ETS grants basic 

accommodations to applicants with long-standing learning disabilities, such as time-anda-half and rest breaks, without requiring diagnostic reevaluation. [¶] 2. College Board, 

which administers the [SAT], requires accommodation requests to be approved by 

College Board’s Services for Students with Disabilities. Documentation must be 

provided showing that the student has a disability, that the disability causes a functional 

limitation that affects participation in tests, and that the requested accommodations are 

appropriate. Students generally work through their high school disability services office 

to receive accommodations from College Board. [¶] 3. LSAC, which administers the 

LSAT, requires applicants seeking accommodations to first register to take the 

examination and then to complete and submit for review an extensive Accommodations 

Request Packet. The Accommodations Request Packet requires, among other items, 

copies of accommodations provided for prior related testing and coursework and an 
16

Evaluator Form completed by a qualified professional verifying the disability and need 

for accommodations. LSAC indicates initial responses to requests for accommodations 

occur within 14 days of receipt. However, depending on the nature of the request and 

documentation submitted, LSAC indicates the process for approval may take 

‘substantially longer.’ ” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading 

analysis of Assem. Bill No. 2122 (2011-2012 Reg. Sess.) as amended Aug. 9, 

2012, pp. 4-5.) 

This bill analysis notes the version of the bill passed in the Assembly would have 

“require[d] the LSAT test sponsor to provide accommodations to people who received 

formal testing accommodations from a postsecondary educational institution,” 

explaining: “According to the author’s office, an individual may have a welldocumented history of accommodations, yet LSAC will only consider prior 

postsecondary testing accommodations, among other factors. The LSAC argues that no 

single factor should be used in determining the need for an accommodation and that other 

objective and credible evidence, in addition to prior academic use of accommodations, 

should be evaluated. [¶] While this bill does not specify what type of documentation a 

person who received accommodations from a postsecondary educational institution must 

provide to the LSAC, registration procedures for [other standardized tests] indicate that a 

person requesting accommodations that were provided by a postsecondary educational 

institution may submit a Certification of Eligibility that appears to be less extensive than 

the documentation required by LSAC.”5 (Sen. Rules Com., Off. of Sen. Floor Analyses, 

3d reading analysis of Assem. Bill No. 2122 (2011-2012 Reg. Sess.) as amended Aug. 

29, 2012, p. 5.) However, the Senate amended the bill to require only that LSAC, 

 

5 As amended in the Assembly on March 21, 2012, section 99161.5, subdivision (b), 

would have provided: “Whenever a test subject has received formal testing 

accommodations from a postsecondary educational institution, the test sponsor of the 

[LSAT] shall provide accommodations to that test subject.” (Assem. Bill No. 2122 

(2011-2012 Reg. Sess.) as amended Mar. 21, 2012.) 
17

“consistent with existing law, give considerable weight to documentation of past 

modifications, accommodations, or auxiliary aids or services received by the test subject 

in similar testing situations when determining whether to grant an accommodation to the 

test subject.” (Assem. Bill No. 2122 (2011-2012 Reg. Sess.) as amended Aug. 24, 2012, 

italics added.) This amendment mirrors language used in federal regulations interpreting 

the ADA. (See 28 C.F.R. § 36.309(b)(1)(v).) 

The bill analysis also notes: “This bill prohibits the LSAC from notifying test 

score recipients (law schools) if a person received testing accommodations, a practice 

commonly referred to as ‘flagging’ a score. The author’s office contends that there is no 

way to determine the comparability of the scores earned under non-standard conditions 

(when extra time is given) and standard conditions. However, the LSAC indicates that 

test scores are only flagged if extra time is provided as an accommodation and that 

evidence demonstrates that standard and nonstandard-time scores are not comparable. 

Further, LSAC maintains that it has an obligation to provide accurate score-interpretation 

information to law schools. [¶] ETS and College Board apparently no longer flag scores 

of people who took exams with accommodation due to litigation.” (Sen. Rules Com., 

Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 2122 (2011-2012 

Reg. Sess.) as amended Aug. 29, 2012, p. 5.) 

In support of the bill, its author, former Assembly Member Lara explained: 

“ ‘Unlike the [LSAT], students requesting accommodations for high stakes exams such as 

the [GRE], which is sponsored by [ETS], can easily submit a completed Certification of 

Eligibility in lieu of disability documentation. Clearly, [LSAC’s] stringent 

documentation policies create a gap between individuals who can afford the expensive 

assessment and those who cannot. Additionally, under LSAC’s policies, when a student 

obtains extra time based on a cognitive or physical disability, his or her score is identified 

and a letter is sent to law schools notifying that an accommodation was granted and 

advising that the score should be interpreted with great sensitivity. This practice is 
18

referred to as “flagging” and it creates a chilling effect that discourages individuals from 

requesting testing accommodations.’ ” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d 

reading analysis of Assem. Bill No. 2122 (2011-2012 Reg. Sess.) as amended Aug. 29, 

2012, p. 6.) Former Assembly Member Lara also explained the bill “targets LSAC” 

rather than other test sponsors because “the process for test subjects to request and obtain 

accommodations when taking the LSAT creates significant barriers for persons with 

disabilities.” (Assem. Com. on Higher Education, Analysis of Assem. Bill No. 2122 

(2011-2012 Reg. Sess.) as amended Mar. 21, 2012, pp. 1-3.) 

Thus, the Legislature appears to have been concerned that LSAC’s policies 

regarding accommodations, unlike those of other test sponsors, placed undue burdens on 

applicants with disabilities. Stated broadly, the purpose is to prevent discrimination. 

However, the Legislature also appears to have had a more narrow purpose, the prevention 

of discrimination in the law school admissions process. Throughout the legislative 

history, the support of the American Bar Association (ABA) is noted. A “Fact Sheet” 

prepared by former Assembly Member Lara explains: “In response to the small number 

of individuals with disabilities represented in the legal profession, the [ABA] 

Commission on Disability Rights recently passed a unanimous resolution urging entities 

who administer the LSAT to improve the way it handles accommodation requests from 

test-takers with disabilities. . . . [¶] A major contributing factor to the lack of 

representation of individuals with disabilities in the legal profession can be attributed to 

the barriers individuals face when taking the [LSAT].” The fact sheet then describes 

LSAC’s objectionable policies, i.e., the “comprehensive assessment report” that “can cost 

an individual over $3,000” and the practice of “ ‘flagging’ ” nonstandard test scores, and 

urges passage of Assembly Bill No. 2122 as a “Solution” to the problem. The ABA 

resolution6 and a report submitted by the chairperson of the ABA’s Commission on 

 

6 The ABA resolution provided: “RESOLVED, That the [ABA] urges all entities 

that administer a law school admission test to provide appropriate accommodations for a 
19

Disability Rights concluded: “Making law schools accessible to individuals with 

disabilities can help ensure that the legal profession is more open to persons with 

disabilities than it is now. The [ABA] should encourage entities that administer law 

school admission testing and the law schools that rely on such testing to implement the 

ADA and to look for creative ways to make legal education and the legal profession more 

accessible to students with disabilities.” 

For purposes of preventing discrimination in the law school admissions process, 

LSAC is not similarly situated to ETS, College Board, AAMC, or any other standardized 

testing entity. The reason is simple. No other standardized testing entity sponsors a law 

school admissions test. We find this case to be analogous to the situation in which the 

Legislature chooses to “resolve identical problems with respect to different professions” 

in a different manner. (Kenneally v. Medical Bd. (1994) 27 Cal.App.4th 489, 499; see 

also Griffiths v. Superior Court (2002) 96 Cal.App.4th 757, 776.) For example, in 

Naismith Dental Corp. v. Bd. of Dental Examiners (1977) 68 Cal.App.3d 253, Naismith 

challenged the constitutionality of a provision in the Business and Professions Code 

prohibiting a dentist from having an additional place of practice unless “ ‘he [or she] is in 

personal attendance at each place of practice at least 50 percent of the time’ ” on the 

ground that no similar statute applied to the practice of medicine. (Id. at pp. 258, 262.) 

The Court of Appeal rejected the challenge, explaining: “The contention is squarely 

 

test taker with a disability to best ensure that the exam results reflect what the exam is 

designed to measure, and not the test taker’s disability. [¶] FURTHER RESOLVED, 

That the [ABA] urges all entities that administer, score, or report the results of a law 

school admission test to establish procedures to ensure that the application process, the 

scoring of the test, and the reporting of test scores is consistent for all applicants and does 

not differentiate on the basis that an applicant received an accommodation for a 

disability. [¶] FURTHER RESOLVED, That the [ABA] urges all entities that administer 

a law school admission test to: [¶] 1. Make readily accessible to applicants the policies, 

guidelines, and administrative procedure used for granting accommodations requested by 

those with disabilities; [¶] 2. Give notice to applicants, within a reasonable period of 

time, whether or not requested accommodations have been granted; and [¶] 3. Provide a 

fair process for timely reconsideration of the denial of requested accommodations.” 
20

rejected by [Semler v. Oregon State Bd. of Dental Examiners (1935) 294 U.S. 608, 610 

[79 L.Ed. 1086, 1089]], where the court found that Semler, also a dentist, had no ‘ground 

for objection because the particular regulation is limited to dentists and is not extended to 

other professional classes. The State was not bound to deal alike with all these classes, or 

to strike at all evils at the same time or in the same way. It could deal with the different 

professions according to the needs of the public in relation to each.’ It has also been said 

by the high court that ‘[a] statute is not invalid under the Constitution because it might 

have gone farther than it did’ [citation]; and that ‘reform may take one step at a time, 

addressing itself to the phase of the problem which seems most acute to the legislative 

mind’ [citation]. California’s courts are in agreement: . . . ‘ “The Legislature is not 

bound, in order to adopt a constitutionally valid statute, to extend it to all cases which 

might possibly be reached, but is free to recognize degrees of harm and to confine its 

regulation to those classes of cases in which the need is deemed to be the most 

evident.” ’ ” (Naismith Dental Corp. v. Bd. of Dental Examiners, supra, 68 Cal.App.3d 

at p. 262, quoting In re Ricky H. (1970) 2 Cal.3d 513, 520-521.) 

Here, based in part on the concern that “the lack of representation of individuals 

with disabilities in the legal profession can be attributed to the barriers individuals face 

when taking the [LSAT],” the Legislature decided to regulate the LSAT’s 

accommodations procedures differently than those of other admissions tests. Just as the 

Legislature “may regulate different professions differently” (Kenneally v. Medical Bd., 

supra, 27 Cal.App.4th at p. 499), we conclude the Legislature may regulate differently 

the various admissions tests that operate as gatekeepers to the study of the professional 

disciplines. 

Nevertheless, LSAC asserts this case is more akin to Walgreen, supra, 185 

Cal.App.4th 424, with respect to the similarly situated requirement than it is to the 

professional regulation cases cited above. We disagree. There, Walgreens challenged a 

San Francisco (City) ordinance that “prohibited a Walgreens that contains a licensed 
21

pharmacy from selling tobacco products but imposed no such limitation on a Safeway 

supermarket or a Costco big box store that contains a licensed pharmacy.” (Id. at p. 429.) 

The Court of Appeal accepted the City’s concession that, “for purposes of the challenged 

ordinance, all retail establishments containing licensed pharmacies are similarly 

situated,” and moved on to determine whether the City had a rational basis for treating 

Walgreens differently than Safeway or Costco with respect to tobacco sales. (Id. at pp. 

434-435.) Thus, the concession made it unnecessary for the court to address the similarly 

situated requirement. However, the ordinance was “premised on the notion that a retail 

store conveys tacit approval of tobacco use when it sells prescription drugs as well as 

tobacco products.” (Id. at p. 428.) For purposes of preventing the conveyance of such 

approval, we agree all retail establishments containing licensed pharmacies are similarly 

situated. Here, as we have explained, the purpose of section 99161.5 is to prevent 

disability discrimination in the law school admissions process. No other testing entity 

has anything to do with the law school admissions process. If, at some later point in time, 

there are multiple test sponsors for the LSAT, these sponsors would be similarly situated 

for purposes of section 99161.5. But because the statute applies to the “test sponsor of 

the [LSAT],” rather than LSAC specifically, by its very terms, the statute would apply to 

each such sponsor. 

As a matter of law, LSAC’s equal protection claim fails at the threshold because it 

and other testing entities (such as ETS, College Board, and AAMC) are not similarly 

situated for purposes of preventing disability discrimination in the law school admissions 

process. 

B.

Liberty of Speech

Article I, section 2 of the California Constitution provides: “Every person may 

freely speak, write and publish his or her sentiments on all subjects, being responsible for 

the abuse of this right. A law may not restrain or abridge liberty of speech or press.” 
22

(Art. I, § 2, subd. (a).) This provision “enjoys existence and force independent of the 

First Amendment to the federal Constitution” and “is at least as broad, and in some ways 

broader,” than its federal counterpart. (ARP Pharmacy Services, Inc. v. Gallagher 

Bassett Services, Inc. (2006) 138 Cal.App.4th 1307, 1314; Kasky v. Nike, Inc. (2002) 27 

Cal.4th 939, 958-959 (Kasky).) As a corporation, LSAC is entitled to constitutional free 

speech protection because “[t]he inherent worth of . . . speech in terms of its capacity for 

informing the public does not depend upon the identity of its source, whether corporation, 

association, union, or individual.” (First National Bank v. Bellotti (1978) 435 U.S. 765, 

777 [55 L.Ed.2d 707].) 

1. Type of Speech

We must first determine the type of speech at issue in this case. Section 99161.5 

prohibits LSAC from either “notify[ing] a test score recipient that the score of any test 

subject was obtained by a subject who received an accommodation” or “withhold[ing] 

any information that would lead a test score recipient to deduce that a score was earned 

by a subject who received an accommodation.” (§ 99161.5, subd. (c)(1) & (2).) LSAC 

argues these provisions amount to “content-based restrictions on speech, which are 

particularly disfavored,” and are therefore subject to “strict scrutiny review.” The State 

argues the statute is “subject to intermediate scrutiny, rather than strict scrutiny,” because 

it involves a “content-neutral” restriction on speech, relates to “ ‘matters of purely private 

concern,’ ” and regulates “commercial speech.” We conclude section 99161.5 is subject 

to the same level of scrutiny applicable to the regulation of commercial speech. 

We note at the outset there is no “separate test for determining what constitutes 

commercial speech under the state Constitution,” but instead, our Supreme Court has 

“used the tests fashioned by the United States Supreme Court.” (Kasky, supra, 27 Cal.4th 

at p. 969.) We do the same. 

The United States Supreme Court has “long recognized that not all speech is of 

equal First Amendment importance. It is speech on ‘ “matters of public concern” ’ that is 
23

‘at the heart of the First Amendment’s protection.’ . . . [¶] ‘The First Amendment “was 

fashioned to assure unfettered interchange of ideas for the bringing about of political and 

social changes desired by the people.” [Citations.] “[S]peech concerning public affairs is 

more than self-expression; it is the essence of self-government.” [Citation.] 

Accordingly, the Court has frequently reaffirmed that speech on public issues occupies 

the “ ‘highest rung of the hierarchy of First Amendment values,’ ” and is entitled to 

special protection. [Citations.]’ ” ’ ” (Dun & Bradstreet, Inc. v. Greenmoss Builders, 

Inc. (1985) 472 U.S. 749, 758-759 [86 L.Ed.2d 593] (Greenmoss) (plur. opn. of Powell, 

J.), fn. omitted.) At the lowest rung of the hierarchy are forms of expression that are 

accorded no First Amendment protection, such as obscenity (Miller v. California (1973) 

413 U.S. 15 [37 L.Ed.2d 419]) and speech calculated to provoke a fight (Chaplinsky v. 

New Hampshire (1942) 315 U.S. 568 [86 L.Ed. 1031]). In the middle, among other 

forms of expression, lies “commercial speech, that is, expression related solely to the 

economic interests of the speaker and its audience.” (Central Hudson Gas & Electric 

Corp. v. Public Service Com. of New York (1980) 447 U.S. 557, 561 [65 L.Ed.2d 341] 

(Central Hudson).) The First Amendment “protects commercial speech from 

unwarranted governmental regulation” because “[c]ommercial expression not only serves 

the economic interest of the speaker, but also assists consumers and furthers the societal 

interest in the fullest possible dissemination of information.” (Id. at p. 562.) However, 

the federal Constitution “accords a lesser protection to commercial speech than to other 

constitutionally guaranteed expression.” (Id. at p. 563.) 

Where speech is entitled to the full protection of the First Amendment, a contentbased regulation “must be narrowly tailored to promote a compelling Government 

interest. [Citation.] If a less restrictive alternative would serve the Government’s 

purpose, the legislature must use that alternative. [Citations.] To do otherwise would be 

to restrict speech without an adequate justification, a course the First Amendment does 

not permit.” (United States v. Playboy Entertainment Group, Inc. (2000) 529 U.S. 803, 
24

813 [146 L.Ed.2d 865].) “By contrast, regulation of commercial speech based on content 

is less problematic.” (Bolger v. Youngs Drug Products Corp. (1983) 463 U.S. 60, 65 [77 

L.Ed.2d 469].) Because the protection given to commercial speech is based on the 

“informational function” of this speech, “there can be no constitutional objection to the 

suppression of commercial messages that do not accurately inform the public about 

lawful activity. . . . [¶] If the communication is neither misleading nor related to 

unlawful activity, the government’s power is more circumscribed. The State must assert 

a substantial interest to be achieved by restrictions on commercial speech. Moreover, the 

regulatory technique must be in proportion to that interest. The limitation on expression 

must be designed carefully to achieve the State’s goal. Compliance with this requirement 

may be measured by two criteria. First, the restriction must directly advance the state 

interest involved; the regulation may not be sustained if it provides only ineffective or 

remote support for the government’s purpose. Second, if the governmental interest could 

be served as well by a more limited restriction on commercial speech, the excessive 

restrictions cannot survive.” (Central Hudson, supra, 447 U.S. at pp. 563-564, fn. 

omitted.) 

The speech regulated by section 99161.5 does not fall within the “core segment” 

of commercial speech. (Kasky, supra, 27 Cal.4th at p. 956.) “The United States Supreme 

Court has stated that the category of commercial speech consists at its core of ‘ “speech 

proposing a commercial transaction.” ’ [Citations.]” (Ibid.) Section 99161.5 prohibits 

LSAC from informing law schools that a particular applicant’s LSAT score was earned 

with additional testing time and further prohibits LSAC from omitting from the score 

report the percentile ranking, score band, average LSAT score, or predictive index, as the 

withholding of this information would lead the law school to deduce the score was earned 

with additional testing time. (§ 99161.5, subd. (c)(1) & (2).) Obviously, the “flagging” 

of an LSAT score does not propose a commercial transaction. However, the United 

States Supreme Court “has indicated that the category of commercial speech is not 
25

limited to this core segment. For example, the court has accepted as commercial speech a 

statement of alcohol content on the label of a beer bottle [citation], as well as statements 

on an attorney’s letterhead and business cards identifying the attorney as a CPA (certified 

public accountant) and CFP (certified financial planner) [citation].” (Kasky, supra, 27 

Cal.4th at p. 956.) The court has also “acknowledged that ‘ambiguities may exist at the 

margins of the category of commercial speech.’ ” (Id. at p. 958, quoting Edenfield v. 

Fane (1993) 507 U.S. 761, 765 [123 L.Ed.2d 543]; see also Zauderer v. Office of 

Disciplinary Counsel (1985) 471 U.S. 626, 637 [85 L.Ed.2d 652] [“subject to doubt, 

perhaps, are the precise bounds of the category of expression that may be termed 

commercial speech”].) 

In Kasky, supra, 27 Cal.4th 939, after reviewing the United States Supreme 

Court’s commercial speech decisions, our Supreme Court considered three factors, “the 

speaker, the intended audience, and the content of the message,” in determining whether 

the speech at issue in that case was commercial speech. (Id. at p. 960.) The court 

explained: “In typical commercial speech cases, the speaker is likely to be someone 

engaged in commerce―that is, generally, the production, distribution, or sale of goods or 

services―or someone acting on behalf of a person so engaged, and the intended audience

is likely to be actual or potential buyers or customers of the speaker’s goods or services, 

or persons acting for actual or potential buyers or customers, or persons (such as reporters 

or reviewers) likely to repeat the message to or otherwise influence actual or potential 

buyers or customers.” (Ibid.) Our Supreme Court also explained that “the factual content 

of the message should be commercial in character,” which “typically means that the 

speech consists of representations of fact about the business operations, products, or 

services of the speaker (or the individual or company that the speaker represents), made 

for the purpose of promoting sales of, or other commercial transactions in, the speaker’s 

products or services. This is consistent with, and implicit in, the United States Supreme 

Court’s commercial speech decisions, each of which has involved statements about a 
26

product or service, or about the operations or qualifications of the person offering the 

product or service.” (Id. at p. 961, citing Rubin v. Coors Brewing Co. (1995) 514 U.S. 

476 [131 L.Ed.2d 532] [statement of alcohol content on beer bottle label]; Ibanez v. 

Florida Dept. of Business and Professional Regulation, Bd. of Accountancy (1994) 512 

U.S. 136 [129 L.Ed.2d 118] [statements on an attorney’s letterhead and business cards 

describing attorney’s qualifications].) 

The foregoing factors lead us to conclude the practice of flagging an LSAT score 

that was earned with additional testing time amounts to commercial speech. First, the 

speaker is LSAC. While LSAC is a non-profit corporation, it nevertheless engages in 

commerce. Black’s Law Dictionary defines “commerce” to mean: “The exchange of 

goods and services, esp. on a large scale involving transportation between cities, states, 

and nations.” (Black’s Law Dict. (8th ed. 2004) p. 285, col. 1.) Citing United States 

Supreme Court and Ninth Circuit Court of Appeals decisions, our Supreme Court has 

explained that “the term ‘commercial’ embraces all phases of commercial activity, and 

need not be undertaken or motivated for profit.” (People v. Cochran (2002) 28 Cal.4th 

396, 405, citing Jordan v. Tashiro (1928) 278 U.S. 123, 128 [73 L.Ed. 214] [“commerce” 

as used in treaty court “embraces every phase of commercial and business activity and 

intercourse”]; Sun v. Taiwan (9th Cir. 2000) 201 F.3d 1105, 1107-1108 [profit motive 

irrelevant to determination of whether Taiwan’s activities were commercial]; Siderman 

de Blake v. Republic of Argentina (9th Cir. 1992) 965 F.2d 699, 708 [“activity need not 

be motivated by profit to be commercial”].) LSAC provides products and services for 

over 200 law schools and their applicants, including administration of the LSAT. 

Applicants seeking to gain entry into an ABA-approved law school must pay LSAC to 

take the LSAT, unless granted a fee waiver. LSAC administers about 100,000 tests 

annually. The fact LSAC does not make a profit at the end of the year does not render its 

activities non-commercial in nature. Moreover, with respect to reporting an applicant’s 

LSAT score to law schools, LSAC can be said to act on behalf of the applicant, who is 
27

seeking to engage in a commercial transaction with one of the law schools to which he 

or she applied. 

Second, the intended audience is each law school receiving the LSAT score of an 

applicant who received additional testing time as an accommodation. These law schools 

are actual customers of LSAC’s services and potential providers of the legal education 

the applicants wish to purchase. While each of the United States Supreme Court’s 

decisions involving commercial speech “concerned a speaker engaged in the sale or hire 

of products or services conveying a message to a person or persons likely to want, and be 

willing to pay for, that product or service” (Kasky, supra, 27 Cal.4th at p. 960), here, we 

have a speaker engaged in providing admissions services, including the administration of 

the LSAT and provision of LSAT scores to law schools, conveying a message to these 

law schools concerning the scores of certain applicants, who are themselves seeking to 

purchase a legal education from those very law schools. 

Third, the content of the message, i.e., that a particular LSAT score was earned 

with additional testing time and therefore not comparable to scores earned under standard 

time conditions, also supports the conclusion the speech is commercial in nature. As 

LSAC acknowledges, an applicant’s LSAT score is an important factor law schools use 

to determine whether to enter into a commercial transaction with the prospective student. 

Moreover, flagging can be viewed as a statement about LSAC’s services since LSAC is 

the entity that granted the applicant additional testing time on the LSAT, administered 

and scored the test, and conducted the research indicating scores earned with additional 

time are not comparable to scores earned under standard time conditions. 

Thus, we conclude section 99161.5 is subject to intermediate scrutiny under 

Central Hudson, supra, 447 U.S. 557. This conclusion is bolstered by federal and 

California decisions relating to consumer credit reports. In Greenmoss, supra, 472 U.S. 

749, a defamation case, the United States Supreme Court held a consumer reporting 

agency’s credit report “was speech solely in the individual interest of the speaker and its 
28

specific business audience,” citing Central Hudson’s description of commercial speech. 

(Greenmoss, supra, at p. 762.) The court explained the particular credit report at issue in 

the case, which was “wholly false and clearly damaging to the victim’s business 

reputation,” warranted no First Amendment protection. (Ibid.; see also In re R.M.J.

(1982) 455 U.S. 191, 203 [71 L.Ed.2d 64] [false or misleading commercial speech is not 

entitled to First Amendment protection and “may be prohibited entirely”].) While the 

court was careful to point out it did not hold “that the report was subject to reduced 

constitutional protection because it constitutes economic or commercial speech,” and its 

decision was based on the fact that the report’s “ ‘content, form, and context’ ” indicated 

it was speech on a matter of purely private concern, the court also stated that “many of 

the same concerns that argue in favor of reduced constitutional protection” for 

commercial speech also applied to the credit report. (Greenmoss, supra, 472 U.S. at 

p. 762, fn. 8; see also Hood v. Dun & Bradstreet, Inc. (5th Cir. 1973) 486 F.2d 25, 30 

[reduced constitutional protection for a consumer credit report “coincides with the 

doctrine of commercial speech”].) Outside the defamation context, lower federal courts 

have treated consumer credit reports and related forms of expression either as commercial 

speech (see Millstone v. O’Hanlon Reports, Inc. (8th Cir. 1976) 528 F.2d 829, 833) or as 

being subject to the same level of protection as commercial speech (see Trans Union 

Corp. v. Federal Trade Com. (D.C. Cir. 2001) 245 F.3d 809, 818; Individual Reference 

Servs. Group, Inc. v. Federal Trade Com. (D.D.C. 2001) 145 F.Supp.2d 6, 40-41). 

Noting these decisions, our colleagues in the Second District Court of Appeal 

assumed for purposes of discussion that a consumer credit report was commercial speech 

and applied the Central Hudson test to assess the constitutionality of a statute allowing 

California consumers to “freeze” their credit reports. (U.D. Registry, Inc. v. State of 

California (2006) 144 Cal.App.4th 405, 422.) There, the plaintiff sold credit reports to 

its members, “landowners, property managers, and others,” who “consider[ed] the reports 

in deciding whether to lease real property to prospective tenants.” (Id. at p. 410.) The 
29

Court of Appeal explained these reports “benefit consumers by facilitating the extension 

of credit” and “benefit lessors by identifying potential lessees who are bad credit risks.” 

(Id. at p. 423.) Like a credit report, the LSAT score reports at issue in this case benefit 

applicants with high scores by facilitating the extension of an offer of acceptance, which 

ultimately leads to an economic transaction between the applicant and the law school. 

And like a bad credit score identifies credit risk, a lower LSAT score identifies applicants 

who are less likely to do well in their first-year courses, information law schools use in 

deciding whether to offer admission to, and thereafter enter into a commercial transaction 

with, prospective law students. 

Finally, like a credit report, an LSAT score report “does not involve any matter of 

public concern, but consists of information of interest solely to the speaker and the client 

audience.” (Individual Reference Servs. Group, Inc. v. Federal Trade Com., supra, 145 

F.Supp.2d at p. 41.) Thus, even if the information LSAC provides to law schools in 

connection with these score reports “is not commercial speech per se, it is entitled to the 

same level of protection.” (Ibid.) 

2. Commercial Speech Analysis

“For commercial speech to come within [the First Amendment’s protection], it at 

least must concern lawful activity and not be misleading. Next, we ask whether the 

asserted governmental interest is substantial. If both inquiries yield positive answers, we 

must determine whether the regulation directly advances the governmental interest 

asserted, and whether it is not more extensive than is necessary to serve that interest.” 

(Central Hudson, supra, 447 U.S. at p. 566.) However, “[t]he court has clarified that the 

last part of the test―determining whether the regulation is not more extensive than 

‘necessary’―does not require the government to adopt the least restrictive means, but 

instead requires only a ‘reasonable fit’ between the government’s purpose and the means 

chosen to achieve it. [Citation.]” (Kasky, supra, 27 Cal.4th at p. 952.) The State bears 
30

the burden of justifying section 99161.5’s restriction on LSAC’s speech. (See Board of 

Trustees v. Fox (1989) 492 U.S. 469, 480 [106 L.Ed.2d 388].) 

The State asserts LSAC’s practice of flagging the LSAT scores of applicants who 

were given additional time as an accommodation fails the first stage of the analysis 

because it “violates the ADA, in particular 42 U.S.C. §§ 12189 and 12203, and the Unruh 

[Civil Rights] Act, pursuant to Civil Code section 51, subdivision (f).”7 The State offers 

no argument in support of this assertion. We therefore consider it forfeited. (Americas 

Propane, LP v. Landstar Ranger, Inc. (2010) 184 Cal.App.4th 981, 1001, fn. 4; People v. 

Stanley (1995) 10 Cal.4th 764, 793.) In any event, the United States Court of Appeals for 

the Third Circuit has held that “flagging does not constitute an ipso facto violation of 

Title III of the ADA.” (Doe v. National Bd. of Med. Exam’rs (3d. Cir. 1999) 199 F.3d 

146, 149.) However, the court also explained flagging a particular test score could 

violate the law if the applicant “were to establish either that his [or her] scores are 

psychometrically comparable to the scores of candidates who take the test under standard

time conditions, or that his [or her] scores will be ignored by the programs to which they 

are reported.” (Id. at pp. 156-157.) Section 99161.5, subdivision (c), prohibits LSAC 

from flagging any LSAT score that was earned with additional testing time. Thus, in 

order to establish all such flagging violates the ADA, and is therefore entitled to no

commercial speech protection, the State would have to show all LSAT scores earned with 

additional testing time are psychometrically comparable to the scores of candidates who 

take the LSAT under standard time conditions or that all of LSAC’s member law schools 

ignore flagged scores. The State has made no such showing in opposition to LSAC’s 

preliminary injunction motion. We express no opinion on whether it will be able to do 

so at trial. 

 

7 Civil Code section 51, subdivision (f), states: “A violation of the right of any 

individual under the [ADA] shall also constitute a violation of this section.” 
31

The second stage of the Central Hudson analysis requires us to consider whether 

the State’s asserted interest in enacting section 99161.5 is substantial. (Central Hudson, 

supra, 447 U.S. at p. 566.) We conclude it is. As mentioned, the Legislature’s purpose 

in enacting section 99161.5, including the anti-flagging provisions of subdivision (c), was 

to prevent disability discrimination in the law school admissions process. The State has a 

compelling interest in ensuring prospective law students have a full and equal opportunity 

to compete for admission to the law schools of their choice irrespective of the applicant’s 

physical or mental disability. (See North Coast Women’s Care Medical Group, Inc. v. 

Superior Court (2008) 44 Cal.4th 1145, 1158 [Unruh Civil Rights Act’s prohibition 

against sexual orientation discrimination “furthers California’s compelling interest in 

ensuring full and equal access to medical treatment irrespective of sexual orientation”].) 

In the third stage of the analysis, we consider whether section 99161.5 directly and 

materially advances the State’s interest in preventing disability discrimination in the law 

school admissions process. (Central Hudson, supra, 447 U.S. at p. 566.) The United 

States Supreme Court has stated: “The third part of the Central Hudson test asks whether 

the speech restriction directly and materially advances the asserted governmental interest. 

‘This burden is not satisfied by mere speculation or conjecture; rather, a governmental 

body seeking to sustain a restriction on commercial speech must demonstrate that the 

harms it recites are real and that its restriction will in fact alleviate them to a material 

degree.’ [Citation.] Consequently, ‘the regulation may not be sustained if it provides 

only ineffective or remote support for the government’s purpose.’ [Citation.]” (Greater 

New Orleans Broad. Assn. v. United States (1999) 527 U.S. 173, 188 [144 L.Ed.2d 161].) 

We first note the obvious: if flagging an LSAT score that was earned with additional 

time contributes to disability discrimination in the law school admissions process, then 

prohibiting the practice will materially alleviate this harm. The question, then, is whether 

such discrimination is real or speculative. Again, the State bears the burden of showing 

the harm is real. 
32

Based on the record developed on the preliminary injunction motion, we cannot 

conclude the State has carried this burden. However, nor can we conclude the State will 

be unable to do so at trial. As mentioned, in opposition to LSAC’s preliminary injunction 

motion, the State submitted the report of the ABA’s Commission on Disability Rights. 

With respect to flagging, the report concluded: “[W]hen an accommodated score is 

labeled as ‘nonstandard’ or when a testing agency tells the academic program that the 

score does not conform to the scores of students who were not given accommodations, 

the student with the accommodated score is placed at a serious disadvantage. There are 

serious policy, ethical, and social problems involved with flagged scores, including 

disregard for an applicant’s desire not to have his or her disability revealed and the 

potential attachment of a stigma during the admission process.” The report then reviewed 

the findings of a blue ribbon panel of experts that was convened as part of a settlement 

agreement reached in a federal case challenging ETS’s prior practice of flagging SAT 

scores, Breimhorst v. Educational Testing Services ((N.D.Cal. 2000) Case No. C-99-3387

[WL34510621]). 

Based on scientific, psychometric, and social evidence submitted by the parties, 

the blue ribbon panel concluded flagging SAT scores should be discontinued as 

discriminatory. (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), p. 2.) With respect to the 

scientific evidence, the panel found that “in order to be treated fairly and equally, and to 

have opportunities to pursue higher education, students with reading disabilities must 

have the accommodation of extra time. As there is strong scientific evidence that 

[reading] fluency is the core of the disability for the majority of students with learning 

disabilities, to require flagging of this needed accommodation and no other 

accommodation, discriminates against a specific group of individuals.” (Id. at pp. 3-4.) 

At the same time, based on the psychometric evidence, the panel found “no evidence to 
33

suggest that the magnitude of the overall difference in predictive validity between 

standard and extended time administration warrants a cautionary flag to be attached to the 

scores of students who took the test under the condition of extended time.” (Id. at p. 8.) 

Finally, with respect to the social evidence submitted by the parties, the panel concluded: 

“Many students are reluctant to request extended time on the [SAT] because the presence 

of the flag forces them to reveal a disability. Since the overwhelming majority of 

students who request extended time demonstrate learning disabilities, the presence of a 

flag denotes a specific characteristic of the examinee ― a learning disability. The 

detrimental effect of such a designation is further supported by findings that students with 

learning disabilities with flagged scores are under admitted to colleges. Thus, flagging 

appears to single out and treat the group with learning disabilities unequally, to diminish 

fair chances for college admission, and to discourage the use of a mandated ADA 

accommodation; together, these scientific and ethical factors speak to the necessity of 

removing the flag.” (Id. at p. 10.) 

Here, the State did not submit similar evidence showing the flagging of LSAT 

scores earned with additional testing time causes similar harm to prospective law students 

with disabilities, e.g., by discouraging such students from applying for additional testing 

time and depriving them of equal access to law school admission and future entry into the 

legal profession. However, while the State bears the burden of proving the harm caused 

by flagging at trial, on appeal from the grant of a preliminary injunction, the State need 

only show the trial court abused its discretion in granting the preliminary injunction. 

Based on the evidence the State did submit regarding the harm caused by flagging on the 

SAT, we conclude it would have been an abuse of discretion for the trial court to have 

found the State would not likely be able to submit sufficient evidence that flagging LSAT 

scores earned with additional time causes similar harm to prospective law students with 

disabilities. 
34

Finally, there must be a “reasonable fit” between the State’s interest and the means 

chosen to achieve it. (Board of Trustees v. Fox, supra, 492 U.S. at p. 480.) Stated 

differently, the fit must be “one whose scope is in proportion to the interest served.” 

(Greater New Orleans Broad. Assn. v. United States, supra, 527 U.S. at p. 188.) 

Assuming the State is able to demonstrate the harm caused by flagging is real, we 

conclude prohibiting LSAC from flagging LSAT scores earned with additional time is 

proportionate to the State’s compelling interest in preventing disability discrimination in 

the law school admissions process. 

LSAC disagrees, relying on Lorillard Tobacco Co. v. Reilly (2001) 533 U.S. 525 

[150 L.Ed.2d 532] (Lorillard). There, the United States Supreme Court held the “broad 

sweep” of Massachusetts regulations prohibiting the outdoor advertising of cigars and 

smokeless tobacco within a 1,000-foot radius of a school or playground indicated the 

Massachusetts Attorney General “did not ‘carefully calculate the costs and benefits 

associated with the burden on speech imposed’ by the regulations.” (Id. at p. 561.) The 

court explained the regulations would “prohibit advertising in a substantial portion of the 

major metropolitan areas of Massachusetts,” and in some areas “would constitute nearly a 

complete ban on the communication of truthful information about smokeless tobacco and 

cigars to adult consumers.” (Id. at p. 562.) The court concluded: “The State’s interest in 

preventing underage tobacco use is substantial, and even compelling, but it is no less true 

that the sale and use of tobacco products by adults is a legal activity. We must consider 

that tobacco retailers and manufacturers have an interest in conveying truthful 

information about their products to adults, and adults have a corresponding interest in 

receiving truthful information about tobacco products. In a case involving indecent 

speech on the Internet we explained that ‘the governmental interest in protecting children 

from harmful materials . . . does not justify an unnecessarily broad suppression of speech 

addressed to adults.’ [Citations.] As the State protects children from tobacco 
35

advertisements, tobacco manufacturers and retailers and their adult consumers still have a 

protected interest in communication.” (Id. at p. 564.) 

LSAC argues that, like the tobacco retailers and manufacturers in Lorillard, supra, 

533 U.S. 525, it has an interest in conveying truthful information about the LSAT scores 

it reports to law schools, and these law schools, like the adult tobacco consumers in 

Lorillard, have a corresponding interest in receiving truthful score information. We are 

not persuaded by this analogy. As stated, the regulation at issue in Lorillard was 

designed to protect children from exposure to tobacco advertising, but swept so broadly it 

prevented adults from receiving such advertising messages in a substantial portion of 

Massachusetts. Here, section 99161.5 is designed to protect law school applicants with 

disabilities from being discriminated against in the law school admissions process. 

Assuming the State is able to carry its burden in the third stage of the Central Hudson

analysis (supra, 447 U.S. 557) by showing that flagging LSAT scores causes real 

discriminatory harm to prospective law students with disabilities, section 99161.5 sweeps 

no more broadly than necessary to alleviate this harm. 

Based on the current record, we cannot hold as a matter of law that section 

99161.5 survives LSAC’s free speech challenge. However, based on the evidence that is 

before us, we conclude LSAC has not demonstrated a sufficient likelihood of prevailing 

on this claim to warrant the trial court’s issuance of the preliminary injunction. In so 

concluding, we note again that a “trial court’s determination [to grant a preliminary 

injunction] must be guided by a ‘mix’ of the potential-merit and interim-harm factors; the 

greater the plaintiff’s showing on one, the less must be shown on the other to support an 

injunction. [Citation.]” (Butt v. State of California, supra, 4 Cal.4th at p. 678.) Because 

LSAC’s likelihood of prevailing on its free speech claim is uncertain, in order for us to 

conclude the trial court did not abuse its discretion in issuing the injunction, LSAC’s 

showing on the interim-harm factor must be strong. As we explain later in this opinion, 

the balance of interim harm does not favor LSAC. 
36

C.

Special Legislation

Article IV, section 16, provides that “[a] local or special statute is invalid in any 

case if a general statute can be made applicable.” (Art. IV, § 16, subd. (b).) Like the 

equal protection clause discussed above, this provision of the California Constitution 

“embod[ies] the principle of equality before the law.” (Whittaker v. Superior Court

(1968) 68 Cal.2d 357, 368.) Accordingly, the test for determining whether a statutory 

classification violates this provision is “substantially the same” as that used to determine 

constitutionality under the equal protection clause. (County of Los Angeles v. Southern 

California Tel. Co. (1948) 32 Cal.2d 378, 389.) 

“[A] law is a general one when it applies equally to all persons embraced in a class 

founded upon some natural, intrinsic, or constitutional distinction; on the other hand, it is 

special legislation if it confers particular privileges, or imposes peculiar disabilities or 

burdensome conditions, in the exercise of a common right, upon a class of persons 

arbitrarily selected from the general body of those who stand in precisely the same 

relation to the subject of the law. [Citations.] Under this rule, it is apparent that the 

constitutional prohibition of special legislation does not preclude legislative classification 

but only requires that the classification be reasonable. [Citations.]” (People v. Western 

Fruit Growers (1943) 22 Cal.2d 494, 506.) Thus, “the mere production of inequality 

which necessarily results to some degree in every selection of persons for regulation does 

not place the classification within the constitutional prohibition. The discrimination or 

inequality produced, in order to conflict with [either the special statute or equal protection 

clauses] must be ‘actually and palpably unreasonable and arbitrary,’ or the legislative 

determination as to what is a sufficient distinction to warrant the classification will not be 

overthrown. [Citations.] When a legislative classification is questioned, if any state of 

facts reasonably can be conceived that would sustain it, there is a presumption of 
37

existence of that state of facts, and the burden of showing arbitrary action rests upon the 

one who assails the classification. [Citations.]” (Id. at pp. 506-507.) 

For the reasons expressed in the portion of this opinion addressing LSAC’s claim 

that section 99161.5 violates the equal protection clause, we also conclude as a matter of 

law that this section does not constitute an invalid special statute. Simply put, the 

Legislature did not “arbitrarily select[] [LSAC] from the general body of [test sponsors] 

who stand in precisely the same relation to the subject of the law.” (People v. Western 

Fruit Growers, supra, 22 Cal.2d at p. 506.) As we have explained, LSAC is not similarly 

situated to these other test sponsors. 

D.

Bill of Attainder

“A bill of attainder is a legislative act that inflicts punishment without a judicial 

trial.” (7 Witkin, Summary of Cal. Law (10th ed. 2005) Constitutional Law, § 205, 

p. 343.) Such a law is prohibited by article I, section 9 of the California Constitution. 

“[L]egislative acts, no matter what their form, that apply either to named 

individuals or to easily ascertainable members of a group in such a way as to inflict 

punishment on them without a judicial trial are bills of attainder prohibited by the 

Constitution.” (United States v. Lovett (1946) 328 U.S. 303, 316 [90 L.Ed. 1252].) “In 

deciding whether a statute inflicts forbidden punishment, [the United States Supreme 

Court has] recognized three necessary inquiries: (1) whether the challenged statute falls 

within the historical meaning of legislative punishment; (2) whether the statute, ‘viewed 

in terms of the type and severity of burdens imposed, reasonably can be said to further 

nonpunitive legislative purposes’; and (3) whether the legislative record ‘evinces a 

congressional intent to punish.’ [Citation.]” (Selective Service System v. Minnesota 

Public Interest Research Group (1984) 468 U.S. 841, 852 [82 L.Ed.2d 632].) 

LSAC argues section 99161.5 “applies with specificity only to LSAC” and 

“punishes LSAC by making LSAC the only test sponsor subject to its requirements and 
38

limitations, on pain of incurring civil penalties for non-compliance.” Not so. Section 

99161.5 applies to “[t]he test sponsor of the [LSAT].” (§ 99161.5, subd. (a).) At present, 

the only such sponsor is LSAC. However, as previously explained, should additional 

companies become test sponsors for the LSAT, section 99161.5 would also apply to these 

sponsors. In any event, even if the specificity element were deemed satisfied, the 

requirements of section 99161.5 can in no way be considered punishment. 

III

Balance of Interim Harm

As mentioned, a trial court’s decision to grant a preliminary injunction “must be 

guided by a ‘mix’ of the potential-merit and interim-harm factors; the greater the 

plaintiff’s showing on one, the less must be shown on the other to support an injunction. 

[Citation.]” (Butt v. State of California, supra, 4 Cal.4th at p. 678.) However, “[a] trial 

court may not grant a preliminary injunction, regardless of the balance of interim harm, 

unless there is some possibility that the plaintiff would ultimately prevail on the merits of 

the claim.” (Ibid.) Having concluded, as a matter of law, that section 99161.5 does not 

violate LSAC’s right to equal protection, constitute an invalid special statute, or amount 

to a prohibited bill of attainder, the only claim on which LSAC has a possibility of 

prevailing is the free speech claim. Even with respect to this claim, we concluded 

LSAC’s prospects are uncertain. We now conclude LSAC has not demonstrated 

sufficient interim harm to justify the trial court’s decision to issue the preliminary 

injunction. 

LSAC argues the trial court correctly determined “the risk of infringement of 

[LSAC’s] constitutional rights is sufficient harm to warrant injunctive relief.” As 

mentioned, this determination was based on the erroneous view that LSAC would likely 

prevail on its equal protection claim. But because “we review the correctness of the trial 

court’s ruling, not its reasoning” (Oiye v. Fox, supra, 211 Cal.App.4th at p. 1049), we 

must determine whether the possibility of LSAC prevailing on its free speech claim, and 
39

the concomitant smaller risk of infringement of LSAC’s constitutional rights, is sufficient 

harm to sustain the preliminary injunction. We first note we cannot conclude “simply 

because [section 99161.5] affects the right of free speech, its enforcement results 

invariably in such a deprivation of rights that no consideration need be given to the 

degree of deprivation caused or the effect of enjoining the enforcement of the [statute].” 

(Sundance Saloon, Inc. v. City of San Diego (1989) 213 Cal.App.3d 807, 817.) 

We also note the dependent nature of the interim-harm analysis, particularly in this 

case, where the question of whether section 99161.5 survives intermediate scrutiny as a 

restriction on commercial speech turns on the State’s ability to prove LSAC’s policy of 

flagging causes real discriminatory harm to prospective law students with disabilities. If 

the State ultimately carries this burden, but is enjoined in the meantime from enforcing a 

constitutional statute that protects law school applicants with disabilities, these applicants 

will suffer tremendous irreparable harm. They will be faced with the concrete and 

immediate choice of either having the fact of their disability disclosed to law schools or 

foregoing the opportunity to have a needed accommodation on the LSAT. If they choose 

the latter, they risk earning a score that reflects their disability rather than their aptitude to 

study the law. If they choose the former, they risk having law schools discount their 

LSAT scores as “not hav[ing] the same meaning as scores earned under standard time 

conditions.” Once the score report is sent to law schools, the consequences are 

irrevocable. Conversely, if the State does not carry its burden at trial, and LSAC is 

prevented in the meantime from releasing truthful information to law schools regarding 

LSAT test scores, then commercial expression serving the economic interest of LSAC 

and assisting law schools in their admissions decisions will have been suppressed. The 

free flow of commercial information is important. Nevertheless, the interim harm to law 

school applicants with disabilities that will result if the State carries its burden outweighs 

that of LSAC if the State fails in this regard. 
40

Because LSAC’s likelihood of prevailing on the merits of its free speech claim is, 

at best, an uncertain proposition, and because the balance of interim harm favors law 

school applicants with disabilities, we conclude it was an abuse of the trial court’s 

discretion to issue the preliminary injunction. 

DISPOSITION

The order granting the preliminary injunction is reversed with directions to enter a 

new order denying the injunction. The stay granted by writ of supersedeas is dissolved. 

Each party shall bear its own costs on appeal. 

 HOCH , J.

We concur:

 ROBIE , Acting P. J.

 BUTZ , J.