There are lessons to be learned about documentation standards and procedures requests in the latest legal battle between the federal government and a testing entity.

On October 18, 2012, a federal judge permitted the Department of Justice (DOJ) to intervene in a lawsuit filed against the Law School Admissions Council (LSAC). It is alleged that the Council’s policies, practices and procedures regarding the administration of the Law School Admissions Test (LSAT) discriminates against applicants with disabilities. (See The Department of Fair Employment and Housing v. Law School Admission Council, No. CV 12-1830-EMC).The alleged violations of Title III include:

• failing to provide test accommodations so as to best ensure that test results reflect aptitude rather than disability;
• “flagging” accommodated test scores;
• making unreasonable requests for documentation in support of requests for testing accommodations;
• failing to give considerable weight to documentation of past testing accommodations received in similar testing situations;
• failing to respond in a timely manner to requests for testing accommodations; and
• failing to provide appropriate auxiliary aids.

With respect to documentation, DOJ takes exception to the following practices and procedures used by the Council:

• despite receipt of documentation materials in compliance with the Council’s detailed written documentation requirements and a complete application for testing accommodations, demanding additional “often unspecified” documentation;
• substitution of its own views for the substantiated opinions of the applicants’ physicians and evaluators;
• failing to give “considerable weight to applicants’ documentation of past testing and accommodation received, without significant basis to do so”;
• changing,  modifying, reducing and/or declining to provide test accommodations requested and “justified” by the applicants’ submissions;
• enforcing and/or implementing documentation standards that are “frequently onerous and unnecessary”;
• enforcing and/or implementing documentation standards that are unclear; and 
• implementing reconsideration procedures for test accommodations that are “vague, ambiguous, and arbitrary”.

DOJ specifically noted that applicants with extensive histories regarding both the diagnosis of a disability, as well as, the provision of accommodations in similar circumstances were frequently denied accommodations.  It was also noted that, in addition to using evaluation standards for reviewing documentation submissions that are unclear, the Council’s denial letters are “cursory” and fail to give applicants a clear understanding of what is missing or what needs to be done to correct deficiencies in order to obtain test accommodations. DOJ also remarked upon the enormous expense incurred by applicants in order to meet the Council’s three – five year ago of documentation requirement. DOJ argues that the LSAT through its policies, practices and procedures discriminates against individuals with disabilities by “failing to administer the LSAT in an accessible manner” and utilizing a “flagging policy”. 

DOJ’s brief includes detailed descriptions of the experiences of eight applicants. The complete brief can be founded on the Department of Justice’s ADA site, www.ada.gov.