Tuesday, January 14, 2014
C.A. Tosses Injunction Against Law on Disabled LSAT Examinees
By KENNETH OFGANG, Staff Writer
The Third District Court of Appeal yesterday overturned a preliminary injunction against enforcement of a state law barring the administrator of the Law School Admissions Test from notifying schools that an applicant received a disability accommodation.
Sacramento Superior Court Judge Raymond Caddei had granted the injunction to Law School Admission Council, Inc.. Caddei had barred the state from enforcing Education Code §99161.5 pending a trial on the council’s constitutional challenges to the statute.
The section, which was enacted two years ago by AB 2122 and took effect last January, requires the council 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.”
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” 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.”
Caddei granted the injunction on the ground that the council was likely to prevail on its claim that the law deprives it of equal protection. He reasoned that it was irrational to distinguish between the council and other educational testing services.
The judge rejected the argument that the council is distinguishable from other testing services because it engages in a practice known as “flagging,” meaning that schools to whom an applicant’s score is supplied are notified if the applicant has been granted a disability accommodation.
Stay of Injunction
In reversing, the panel—which had earlier granted a partial stay of the injunction—said the council is not similarly situated to other testing bodies. It also concluded that two of the other arguments raised by the council—that the law is a bill of attainder and a special law proscribed under the state Constitution—fail as a matter of law.
The council does have an arguable claim that the law violates its rights under the state Constitution’s “liberty of speech” clause, Justice Andrea Hoch wrote for the Court of Appeal. But the balance of harms still tips in favor of the state, so the injunction was an abuse of discretion, the justice said.
Citing legislative history, Hoch said the law is reasonably related to the Legislature’s legitimate desire to eliminate discrimination against the disabled with specific regard to law school admissions.
“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 jurist wrote. “The reason is simple. No other standardized testing entity sponsors a law school admissions test.”
She cited cases holding that the Legislature may regulate different professions in a different manner, even with respect to similar issues. The Ninth Circuit, for example, has upheld a regulation prohibiting dentists from having more than one office unless they divide their time equally between two offices, even though other healthcare professionals are not similarly restricted, Hoch noted.
Bill of Attainder
The bill of attainder and special-law arguments, the jurist said, fail for similar reasons—LSAC was not singled out arbitrarily, but because it is the only body that administers a law school admissions test.
Turning to the balance-of-harms analysis, Hoch said the state had presented significant evidence that flagging causes serious injury to disabled applicants, and that those who take the test while the case is being litigated will suffer “tremendous irreparable harm” if the law is not enforced. This is a greater harm than any damage the council will suffer to its economic interests while it presses the speech claim, as to which its possibility of prevailing is “at best, an uncertain proposition,” the justice said.
The case is Law School Admission Council, Inc. v. State of California, 13 S.O.S. 164.
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