United States District Court, N.D. California
THE DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING, et. al., Plaintiffs,
LAW SCHOOL ADMISSION COUNCIL, INC., Defendant
For Department of Fair Employment and Housing, an agency of the State of California, Plaintiff: Susan Marie Saylor, LEAD ATTORNEY, Department of Fair Employment & Housing, Legal Division, Fremont, CA; Ruth Sybil Villanueva, Department of Fair Employment and Housing, Elk Grove, CA.
For Law School Admission Council Inc, a Delaware tax exempt corporation, Defendant: Julie Marie Capell, LEAD ATTORNEY, Fulbright and Jaworski LLP, Los Angeles, CA; Caroline Mew, PRO HAC VICE, Fulbright and Jaworski L.L.P., Washington, DC; Robert A Burgoyne, PRO HAC VICE, Fulbright Jaworski LLP, Washington, DC; Robert Eugene Darby, Fulbright Jaworski, Los Angeles, Ca.
For Andrew Quan, Legal Aid Society - Employment Law Center, Interested Parties: Claudia Center, LEAD ATTORNEY, The Legal Aid Society, San Francisco, CA.
For UNITED STATES OF AMERICA, Interested Party: Melanie Lea Proctor, LEAD ATTORNEY, United States Attorney's Office, Civil Division, San Francisco, CA; Nabina J. Sinha, LEAD ATTORNEY, Megan Elizabeth Schuller, U.S. Department of Justice, Civil Rights Division, Washington, DC.
ORDER GRANTING DFEH'S MOTION TO PROCEED FOR GROUP OR CLASS RELIEF
(Docket No. 106)
EDWARD M. CHEN, United States District Judge.
The California Department of Fair Employment and Housing (" DFEH" ) filed suit against the Law School Admission Council, Inc. (" LSAC" ), seeking damages and injunctive relief over alleged failures of the Defendant to provide disability-related accommodations to test-takers of the Law School Admission Test (" LSAT" ), in violation of the Unruh Civil Rights Act (" Unruh Act" ), Cal. Civ. Code § § 51, et. seq., California's
Fair Employment and Housing Act (" FEHA" ), Cal. Gov. Code, § 12900 et seq, and the Americans with Disabilities Act of 1990 (" ADA" ), 42 U.S.C. § § 12101, et. seq. DFEH brought its action both on behalf of seventeen named individuals and as a " group or class" complaint on behalf of " all disabled individuals in the State of California who requested a reasonable accommodation for the Law School Admission Test (LSAT) from January 19, 2009 to the present." First Amended Group and Class Action Complaint (Docket No. 104) (" FAC" ) ¶ 7.  DFEH now moves for an order " confirming that [it] may proceed in this enforcement action without filing a motion under Fed.R.Civ.P. 23." Motion to Proceed for Group or Class Relief (Docket No. 106) (" Pl.'s Mot." ) at 1. LSAC opposes the amendment. See LSAC's Opposition to DFEH Motion (Docket No. 116) (" Def's. Opp'n. Br." ). Having considered the parties' briefs and accompanying submissions, as well as the oral argument of counsel, the Court hereby GRANTS DFEH's motion for the reasons set forth below.
II. FACTUAL & PROCEDURAL BACKGROUND
LSAC is a non-profit membership organization based in Pennsylvania that, among other things, administers the Law School Admission Test (LSAT) to prospective law students. The LSAT is a standardized test that evaluates potential law school applicants on their acquired reading, verbal, and reasoning skills. FAC. ¶ 45. In 2010, DFEH received two written " verified complaint[s] of discrimination" from individuals alleging that LSAC had denied them certain testing accommodations for their disabilities when taking the LSAT. Id. ¶ 18-19. These written complaints alleged that LSAC had unlawfully denied test applicants " full and equal access to the LSAT" in violation of FEHA and the Unruh Act. Id. By virtue of its incorporation into the Unruh Act, a violation of the ADA also constitutes a violation of the Unruh Act. Id. ¶ 15; see also Unruh Act, Cal. Civ. Code § 51(f). Through DFEH's investigation into the merits of these complaints, " the Department came to believe that LSAC's policies and practices toward disabled applicants requesting reasonable accommodation were affecting a larger group of class of applicants in a similar manner." FAC ¶ 20.
Following its investigation into these complaints, DFEH filed an administrative accusation before the California Fair Employment and Housing Commission on February 6, 2012, which LSAC elected to have transferred to the California Superior Court in Alameda County under Cal. Gov. Code § 12965(c)(1). FAC ¶ ¶ 39-41. The administrative accusation, styled a " Group and Class Accusation," was brought on behalf of seventeen named individuals and certain " class complainants" consisting of " all disabled individuals in the State of California who requested a reasonable accommodation for the Law School Admission Test (LSAT) from January 19, 2009 to February 6, 2012," and charged LSAC with violations of the Unruh Act. FAC ¶ ¶ 6-7, 39. See Declaration of Caroline Mew (Docket No. 116-1), Ex. 1 (Group and Class Accusation). LSAC removed the matter from the Alameda County Superior Court to this Court on April 12, 2012,
pursuant to 28 U.S.C. § 1441, on the basis of federal question jurisdiction and diversity jurisdiction. See Notice of Removal of Action Under 28 U.S.C. § 1441 (Docket No. 1) at 2.
DFEH's lawsuit focuses on LSAC's practices regarding the provision of testing accommodations to test-takers who claim to be disabled. According to LSAC, " more than a thousand individuals request disability-based accommodations on the LSAT every year, and LSAC grants accommodations to most, but not all, of those individuals." Def.'s Mot. to Dismiss (Docket No. 66) at 2. LSAC claims to conscientiously evaluate requests for testing accommodation to ensure that " individuals with bona fide disabilities receive accommodations, and that those without disabilities do not receive accommodations," which could provide them with an unfair advantage on the exam. Def.'s Mot. to Dismiss (Docket No. 13) at 2 (quoting Powell v. Nat'l Bd. of Med. Examiners, 364 F.3d 79, 88-89 (2d Cir. 2004)). DFEH claims that LSAC's accommodations evaluation procedures include, among other things, requirements that testing candidates requesting extra time or other accommodations for a " cognitive or psychological impairment" submit to psychoeducational and neuropsychological testing, and provide a " full diagnostic report" that includes records of the candidates' aptitude and achievement testing. FAC ¶ 53. DFEH also claims that LSAC requires applicants to disclose in an accommodations request whether or not they took prescribed medications during medical evaluations of their condition, and if not, to explain their failure to do so. Id. ¶ 54.
DFEH also alleges that LSAC maintains a policy of " flagging" the LSAT exam scores of individuals who receive disability accommodations for extra time. FAC ¶ 55. LSAC allegedly includes a notation on an accommodated individuals' score report that the score was achieved under non-standard time constraints, and excludes extended-time scores when calculating its LSAT percentile rankings. Id. ¶ ¶ 55-56. As a consequence, the fact that an individual received extended-time on the LSAT is disclosed to all law schools receiving that individual's score report. See id. ¶ 55. However, LSAC does advise schools that extended-time score reports " should be interpreted with great sensitivity and flexibility." Id.
Despite styling its administrative accusation and amended complaint as a " Group and Class Action," DFEH contends that this suit is not a class action within the meaning of Fed.R.Civ.P. 23. As " the State of California's main civil rights agency," DFEH argues that " this action -- like similar [enforcement] actions brought by the United States Equal Employment Opportunity Commission (EEOC) -- may proceed on behalf of a group or class of persons without Court approval under [Rule 23] . . . because these actions are, by their very nature, not class actions." Pl.'s Mot. at 1 (emphasis omitted). LSAC, in opposition, contends that the Federal Rules of Civil Procedure apply to this civil action just the same as any other civil action being heard by a U.S. District Court, and that DFEH's suit cannot properly be characterized as a " government enforcement action" exempt from the requirements of Rule 23. Def.'s Opp'n. Br. at 4, 7. DFEH's present motion seeks to resolve the question of whether it can pursue its " group or class" claims in federal court without having to comply with the class action provisions of Rule 23.
A. Rule 23 and Government Enforcement Actions
In the normal course of affairs " a litigant must assert his or ...