Law Sch. Admission Council, Inc. v. State

• Decision Date: 13 January 2014
• Docket Number: C073187
• Court: California Court of Appeals Court of Appeals
• Parties: LAW SCHOOL ADMISSION COUNCIL, INC., Plaintiff and Respondent, v. STATE OF CALIFORNIA et al., Defendants and Appellants.

LAW SCHOOL ADMISSION COUNCIL, INC., Plaintiff and Respondent, v. STATE OF CALIFORNIA et al., Defendants and Appellants.

C073187

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)

Filed: January 13, 2014

CERTIFIED FOR PUBLICATION

(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.

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 CaliforniaConstitution (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 withaccuracy 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 bandwithin 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 theLSAT 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...