Scott LaBarre

Scott LaBarre

NFB Passes the Test:
Victory in the LSAC Dispute
by Scott LaBarre

In the December, 1997, issue of the Braille Monitor we reported that the National Federation of the Blind had sued the Law School Admission Council (LSAC) on behalf of three blind students: Ross Kaplan, Latonya Phipps, and Shannon Dillon. The suit alleged that the Council violated the Americans with Disabilities Act by refusing to allow blind students to use their own readers on the Law School Admission Test (LSAT), by flagging the test scores of blind and visually impaired individuals as "non-standard," and by refusing to allow one applicant to use her Braille writer and scratch paper on the exam.

On Thursday, November 20, 1997, the three would-be law students (represented by the Federation) and the LSAC struck a negotiated settlement which is a great victory for blind and visually impaired students. Before discussing the particulars of the settlement agreement itself, it is helpful to understand the history of this case.

In the fall of 1996 Ross Kaplan and Latonya Phipps contacted the National Federation of the Blind regarding problems they were having with the LSAT, and our staff recommended that Mr. Kaplan and Ms. Phipps discuss the matter with me. Both individuals told me that the Law School Admission Council had informed them that they could not use their own well-trained readers to take the LSAT. The Council further informed them that they would have to use readers selected by LSAC. In addition, neither Ms. Phipps nor Mr. Kaplan would be permitted to screen their readers ahead of time or practice with them. According to LSAC, allowing a blind student to use his or her own reader or permitting any contact between reader and blind student in advance of the examination would breach examination security. Mr. Kaplan and Ms. Phipps both took the test under protest, and because of the arbitrary and discriminatory reader policy, their scores suffered accordingly.

Shannon Dillon applied to take the December, 1996, administration of the LSAT. She submitted her original application requesting that the test be administered in Braille. A few weeks later she phoned LSAC and informed officials that she needed to bring her Braille writer and paper with which to take notes. LSAC denied her request, stating that it was untimely. We argued with LSAC that it should allow the request, but it held firm on its position. Ms. Dillon took the LSAT on December 7, 1996, without the capacity to take notes though her sighted colleagues in the next room were permitted to take as many notes as they desired. In February Ms. Dillon took the exam again, and this time she was permitted to use her Braille writer. Significantly, she achieved a much better score.

After the examination all three students received copies of letters informing the law schools to which they had applied that the test had been administered under nonstandard timing conditions. Therefore LSAC could not predict the meaning of the score. This practice is called "flagging," and it is a common practice throughout the standardized testing industry. Here is the text of the LSAC flagging letter:

Dear Colleague:

This candidate took a 6/96 LSAT under nonstandard timing conditions in order to accommodate his or her disability. The nonstandard test this candidate received was administered on or about the same test date as the corresponding standard administration.

Because this candidate's score was earned under nonstandard timing conditions, it is important to note that the degree of comparability of this score to scores earned under standard conditions cannot be determined. The LSAC's Cautionary Policies Concerning LSAT Scores and Related Services explain:

LSAC has no data to demonstrate that scores earned under accommodated conditions have the same meaning as scores earned under standard conditions. Because the LSAT has not been validated in its various accommodated forms, accommodated tests are identified as nonstandard, and an individual's scores from accommodated tests are not averaged with scores from tests taken under standard conditions. The fact that accommodations were granted for the LSAT should not be dispositive evidence that accommodations should be granted once a test taker becomes a student. The accommodation needed for a one-day multiple choice test may be different from those needed for law school course work and examinations.

If this applicant has consented to the release of

information related to his/her request for accommodations, information, including, but not limited to the following: the type of accommodations provided, the LSAT Accommodation Form, the LSAT Accommodations Request Verification Form, the Report of Assessment (if applicable), Accommodations Granted/Testing/Time Tracking Form, and all statements or documentation submitted by physicians or other licensed professionals will accompany the Law School Report.

Test Administration

Law Services

That was the letter. On a number of occasions we attempted to resolve all of these issues with LSAC. It is generally prudent to negotiate in an attempt to resolve issues before they become full-blown lawsuits. Unfortunately, LSAC officials refused to negotiate on any of the points raised with them. We told them that they could not easily dismiss our concerns. When attempts to negotiate met with no response, we felt that we had no choice but to file a lawsuit against LSAC. As the December Monitor spells out in some detail, we filed a lawsuit on April 4, 1997, in the United States District Court for the Eastern District of Pennsylvania. Many news agencies contacted us and thereafter ran stories on radio and in newspapers regarding the suit. We made no attempt to publicize the suit. Reporters who routinely cover the Philadelphia Federal Court noticed that the lawsuit had been filed, and after that the calls came in steadily.

Many of the reporters asked the question: if LSAC provides a reader, why should the blind test-taker care who that reader is? The relationship between a reader and a blind person is highly individual. Like sighted persons blind people develop particular methodologies for reading certain items. Multiple choice examinations require different reading methods from essay examinations. Timed tests call for much different strategies than reading a series of letters in untimed situations. In other words each blind person must train a reader to serve as his or her eyes. When preparing for the LSAT, each sighted student develops a range of techniques for dealing with the examination. Similarly a blind person must train his or her reader to read the examination in a way that will be most efficient. This is particularly true with the LSAT because it is a timed and high-stakes examination.

Put another way, it is crucial that the blind person have control over and familiarity with the reader. If the test-taker cannot establish an effective relationship, the results are likely to be disastrous. Ross Kaplan and Latonya Phipps were not permitted to meet with their readers ahead of time. They were thrown into a high-pressure examination in which they could not concentrate on the test but rather had to spend a considerable amount of energy and attention training a reader whom they had never met. In addition, in some cases LSAC officials have found readers who had never before read to a blind person. The problem has been further compounded by the fact that at times LSAC has not secured a reader until a few hours before the scheduled administration of the test.

Shannon Dillon faced an entirely different problem. She was provided the examination in Braille, but she was not permitted to use her Braille skills to take notes. Her sighted counterparts were permitted to do so. Obviously this put Shannon Dillon at a great disadvantage.

These problems are at least clear-cut, but the flagging issue is a very difficult one. On one hand, the LSAC letter seems blatantly discriminatory. The letter in effect says that, because we as blind people take the examination under accommodated circumstances, our scores mean nothing. When I received my licenses to practice law, they were not sent with an accompanying letter stating that I had earned my law license under non-standard conditions and that the Board of Bar Examiners could not predict my ability and competence to practice law.

On the other hand, LSAC is technically correct. Council officials have conducted internal studies showing that accommodated tests taken by blind and visually impaired students do not predict their future ability to perform in law school, whereas tests taken under non-accommodated conditions do predict the ability of sighted students in law school. In fact, the blind and visually impaired students do better in law school than their test scores would indicate. So, in other words, the LSAT is not a fair and accurate test for blind and visually impaired students.

The problem is that with very few exceptions law schools require that blind students take the examination. Probably many law schools labor under the misguided belief that, since the advent of the ADA, the LSAT is required to administer a fair test, and therefore scores achieved by the blind must be accurate.

The issues raised in this case are not the traditional ones present in most lawsuits. It is easy to understand testimony about whether the light was green or red when the defendant ran through the intersection, but it is far more difficult for a judge or jury to consider particular accommodations and academic issues pertaining to the blind. After all, blind candidates average only about 100 of the 155,000 individuals who take the LSAT each year. Because the issues surrounding blindness are so little understood in the community and by the courts, a judge or jury would have a difficult time understanding the nuances of an LSAC-mandated reader as opposed to a reader brought by the blind student. For these reasons we have always believed that the issues surrounding the lawsuit would best be addressed through negotiation and discussion. Ultimately, however, we had to sue to get LSAC's attention and to demonstrate that we were serious about these issues. In the end it was a negotiated settlement that resolved the issues in this case.

First, LSAC has agreed to modify its reader policy. It still has the obligation to provide the reader, but it must do so under some very specific conditions. The problem with LSAC's reader policy in the past was that blind students had absolutely no control over the accommodation they would use to take the exam. Now, when a blind applicant requests the use of a reader, LSAC must provide the name of a reader in the student's area within two weeks of the application. Subsequently the blind student may screen and interview the proposed reader to determine whether he or she is in fact qualified. Once the reader is agreed upon, the blind student may practice and prepare for the exam with the reader for a minimum of five hours, all at LSAC's expense. The reader and the blind student may practice more than five hours, but the blind student is responsible for making such arrangements. At any time before five days in advance of the exam, the blind student has the right to reject any LSAC-designated reader, and LSAC has the obligation to find another reader.

In negotiating the settlement, we pointed out to LSAC that it would be far easier for officials simply to allow blind students to bring their own readers. If that were the case, LSAC would not have to bear additional costs and establish a new layer of bureaucracy. LSAC acknowledged this point but still insisted that it must have some control over the process to maintain the integrity of the examination.

Incidentally, no other large testing organization currently requires that the blind candidate use the entity's reader. All other major testing organizations, as far as we know, permit the blind student to use his or her own reader. Apparently these organizations do not believe that allowing blind individuals to use their readers of choice violates the security and integrity of their examinations.

The agreement also calls for the Federation and LSAC to work together to identify pools of qualified readers throughout the country. In other words, we can have a direct influence upon the quality and ability of the readers available to us.

Overall I believe the settlement is a good one. It puts a great deal of control back into the hands of blind students. Now a blind applicant who wishes to use a reader can hand-pick the person. In addition the LSAC will allow the reader and the blind applicant to practice and prepare for the examination ahead of time. In other words, the blind student can instruct and train the reader on how to read the examination.

The settlement also makes it clear that blind and visually impaired candidates may bring a Braille writer and scratch paper as long as the LSAC is informed of this plan ahead of time. The Shannon Dillon incident was a mistake, and in fact LSAC corrected that mistake only a few months later. However, it is now clear that LSAC must allow blind people to use Braille devices to access the examination effectively.

Finally, the agreement states that the Federation and LSAC will continue discussing the flagging letter. We intend to urge LSAC to gather the data that will allow the Council to issue a more accurate letter reflecting the blind individual's ability. It is not fair to any student to say that he or she has worked hard to take the examination but that the score means nothing. If we are required to take standardized examinations, we should have the right to expect that our scores mean something.

The whole area of validating standardized examinations is in flux. Many researchers and experts are spending considerable energy and resources on determining how to validate scores achieved under non-standard conditions. We will continue advocating for a fairer and more nearly equal system.

The fact that LSAC has agreed to a continuing dialogue with us is a major victory. When we first began this long and arduous process, LSAC exhibited no willingness to consider the topic at all. As happened when we originally filed the suit, this settlement has attracted a good deal of attention in newspapers and journals across the country. Here is the article which appeared in the November 25, 1997, edition of the Chronicle of Higher Education.

Lawsuit Charging LSAT Sponsor with Bias

Against Blind Test-Takers Is Settled

by Karla Haworth

The sponsor of the Law School Admissions Test last week agreed to allow blind and visually impaired students to meet test readers and practice with them before taking the test. The agreement settles a discrimination lawsuit filed in April by the National Federation of the Blind.

The lawsuit charged that three blind students had been prevented from using their own readers and note-taking equipment while taking the Law School Admissions Test, which is administered by the Law School Admission Council.

The students said they had scored poorly on the LSAT because they had not been able to use their own readers and sought a court order prohibiting the Council from discriminating against blind test-takers.

The council refuses to allow blind students to take the test with their own readers to guard against cheating. But like sighted people, blind students develop strategies for taking tests, and their readers must be familiar with those strategies to avoid wasting test time, said Scott LaBarre, a lawyer for the Federation.

Mr. LaBarre said that before the agreement, blind students "had no control" over their tests. Test-takers would not know who their readers would be until the day of the examination. Mr. LaBarre said that in some cases students had been assigned readers who had never worked with a blind person before.

"It's a high-pressure test, so trying to train somebody to read for the first time was a horrible distraction," he said.

Joan Van Tol, a lawyer for the Council, said that, before the lawsuit was filed, the Council had never received complaints from blind people about their readers. The Council does not, however, require its readers to undergo any special training, she said, and in any event readers are rarely requested.

Under the agreement reached Thursday, the Council will establish a new policy on blind test-takers. Under that policy blind people who take the test will be able to meet beforehand with the readers to discuss test-taking strategies and to take a practice test. The readers will continue to be appointed by the Council. The test-takers may also bounce readers who they feel are unqualified, Mr. LaBarre said.

"The people who are most expert about readers for the blind are blind people themselves," Mr. LaBarre said. "This policy recognizes the fact that we're the ones with the expertise in this area."

The Council and the Federation also agreed to discuss the Council's "nonstandard" test-administration policy, which the Federation believes is discriminatory. Under that policy the Council alerts recipients of scores that the test was given under nonstandard conditions—including the use of a reader. Letters that accompany the scores should be interpreted with "great flexibility and sensitivity," said Ed Haggerty, a spokesman for the Council.

Philip D. Shelton, the Council's president, said he was pleased with the agreement.

"Our goal has always been to make certain that the scores we report reflect the abilities of the individual test taker and not the person assisting him or her," he said. "I believe that today's agreement meets everyone's goals."

Because this settlement has very real implications for every blind or visually impaired person hoping to attend law school, we are also reprinting here the text of the settlement agreement's pertinent sections so that blind students and other interested people can read the precise language.

ORDER

AND NOW, this 20th day of November, 1997, upon consideration

of the Settlement Agreement and Stipulation for Dismissal entered

by the parties and appearing of record,

IT IS ORDERED that the above-captioned action is dismissed pursuant to Local Rules of Civil Procedure 41.1(b) under the condition stated in the Settlement Agreement.

BY THE COURT:

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROSS KAPLAN, LATONYA PHIPPS,

AND SHANNON DILLON, Plaintiffs, NO.: 97-CV-2350

LAW SCHOOL ADMISSION COUNCIL, a Delaware Corporation doing

business in the Eastern District of Pennsylvania, Defendant

SETTLEMENT AGREEMENT

The parties to the above-captioned action, being Ross Kaplan, Latonya Phipps, and Shannon Dillon, plaintiffs, and the Law School Admission Council, defendant, hereby enter the following Settlement Agreement:

1. LSAC READER POLICY As referred to herein, the term "LSAC" shall refer to the

Defendant Law School Admission Council; the term "LSAT" shall refer to the Law School Admission Test; and the term "Applicant" shall refer to persons who apply to LSAC to take the LSAT.

Subject to the provisions contained herein, only persons supplied by the LSAC may serve as Readers of the LSAT to blind and severely visually impaired applicants. Defendant hereby agrees to modify its policies and practices with respect to providing reasonable accommodations to blind and severely visually impaired applicants who take the Law School Admission Test, with respect to LSAC's provision of readers. Within fourteen (14) days following receipt of a written request from any blind or severely visually impaired applicant for the Reader accommodation, LSAC shall provide the name, address, and telephone number of a LSAC-provided Reader to the applicant. It thereafter shall be the responsibility of the applicant to screen the Reader to determine whether he or she is acceptable as a Reader for the applicant. The applicant may reject use of the proposed reader provided by LSAC, upon written notification to LSAC, whereupon LSAC shall provide the name, address, and telephone number of a substitute Reader.

Prior to five (5) days before the scheduled administration of the LSAT, the applicant may reject Readers proposed by LSAC. Should the applicant reject a proposed LSAC Reader five (5) or less days before the scheduled administration of the LSAT, LSAC shall make all reasonable efforts to provide a substitute Reader to the applicant.

Blind and severely visually impaired applicants may arrange to meet with their assigned Reader to become acquainted with the Reader, familiarize themselves with these guidelines, review the procedures to be followed during the administration of the LSAT, and schedule practice sessions as hereinafter described.

LSAC agrees to engage in a coordinated effort with the National Federation of the Blind to identify readers and pools of readers in various geographical locations and LSAT sites within the United States of America.

2. PRE-LSAT PRACTICE LSAC agrees that Readers provided under this Reader policy shall be made available to prepare for the LSAT with the applicant, for a minimum of five (5) hours. Nothing in this agreement shall prohibit the applicant and Reader from arranging for additional practice sessions at the applicant's expense, if any. It is understood and agreed between the parties that the unavailability of the Reader to meet with the applicant beyond the five (5) hours set forth above shall not be grounds for the rejection of a Reader by the applicant. The practice sessions between the applicant and the Reader may be utilized for taking practice tests or, at the applicant's discretion, in any other reasonable way to prepare with the Reader for the LSAT.

3. ADMINISTRATION OF THE TEST Readers supplied to blind and severely visually impaired applicants shall be instructed to read the test verbatim and will not be permitted to paraphrase, interpret, modify, or otherwise vary from the text, except as set forth herein. The Reader shall not define words; however, Readers may, at the request of the applicant, spell words and re-read all or part of the text or questions within the section that is being performed. While all portions of the test must be read verbatim by the Reader, the applicant will be permitted to direct the Reader to specific portions of the test to be read or re-read, including the order in which the text is to be read, and also will be permitted to direct the Reader to scan for particular words or phrases as specifically identified by the applicant to be read or re-read verbatim, as well as to identify the type and location of punctuation marks contained in the text.

4. ADDITIONAL ACCOMMODATIONS Nothing contained in this Agreement shall limit the availability of other reasonable accommodations to be supplied by LSAC under the Americans with Disabilities Act, as requested and supported by documentation supplied by the applicant. LSAC will allow applicants to utilize audiocassette, Braille, or large print versions of the test and applicant-provided Braille scratch paper and Braille writers in taking the LSAT, as requested and supported by documentation supplied by the applicant. LSAC will encourage all blind and severely visually impaired applicants requesting any accommodation to submit their request for accommodations as early in the registration process as possible. LSAC shall provide a copy of its Reader policy upon request.

5. LSAC NONSTANDARD ADMINISTRATION LETTER LSAC agrees that, at the request of the National Federation of the Blind (NFB), it will meet with and consider NFB's views regarding the language that accompanies the flagged test scores of blind and severely visually impaired persons.

Respectfully submitted,

Attorneys for Plaintiffs

Scott C. LaBarre, Esquire

Martin J. King, Esquire

Attorneys for Defendant

EASTBURN & GRAY, P.C.

Joanne D. Sommer, Esquire

Joan Van Tol, Esquire

In 1940, when the National Federation of the Blind came into being, it created only a ripple in the blindness field. Today we send tidal waves of change throughout the blindness community. The LSAC settlement represents another milestone on our journey. We forced an organization that refused to give the blind any control or self-determination to allow a significant measure of control. With LSAC's renewed commitment to provide quality, equal treatment to the blind, I am confident that we will forge new agreements in the future that will insure even better treatment of the blind in the standardized testing arena.

In the past, the future of the blind rested almost exclusively in the hands of others. Today we control our own destiny. The victory we have achieved in the LSAC case reflects our increasing strength in the blindness field. Because of our work people realize that the blind truly speak for themselves. When matters arise concerning the blind, it is best to consult the blind before taking any action. Without the National Federation of the Blind, LSAC would still have the power to dictate to Ross Kaplan, Latonya Phipps, Shannon Dillon, and every other blind student exactly how the LSAT would be taken. Because of the National Federation of the Blind, the trend has been reversed, and we have assumed control over our own futures.

As Dr. Jernigan has said, we change what it means to be blind by individual actions collectively focused. Through the single action of suing LSAC, we have expanded the rights of blind students in our continuing effort to achieve equal access. When we help one segment of our community reach new heights of independence and equality, all of us climb one step closer to true equality and freedom in the world. That is why we have formed the National Federation of the Blind.