California Court of Appeals, Third District, Sacramento
APPEAL from a judgment of the Superior Court of Sacramento County, No. 34201300135574CUMCGDS Raymond M. Cadei, Judge.
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).) 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. The trial court ruled LSAC demonstrated a likelihood of prevailing on its claim that section 99161.5 violates the equal protection clause of the California Constitution (Cal. Const., art. I, § 7, subd. (a)) 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.
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 with accuracy 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.” 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 band within 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 the LSAT 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 request, it informs the applicant why the request was denied.” Upon denial of an accommodation request, the applicant may submit a request for reconsideration, which is reviewed after all initial accommodation requests have been processed.
When an accommodation request seeking additional testing time is granted, the score report LSAC sends to law schools does not include the percentile ranking, score band, average LSAT score, or predictive index because, as Vaseleck explains, “scores achieved with extra testing time.... [¶]... [¶]... have been shown by LSAC’s research not to be comparable to scores achieved with standard testing time.” According to LSAC’s research, “scores achieved with extra testing time tend to over-predict how the examinee will perform in the first year of law school.” In addition to omitting the foregoing information from the score report, LSAC provides a letter to law schools receiving such a score report explaining the applicant took the LSAT “under nonstandard time conditions, ” that “LSAC research indicates that scores earned under nonstandard time conditions do not have the same meaning as scores earned under standard time conditions, ” and the “applicant’s score should be interpreted with great sensitivity and flexibility.”
Enactment of Section 99161.5
In September 2012, the Governor signed into law Assembly Bill No. 2122, which added section 99161.5 to the Education Code. (Stats. 2012, ch. 583, § 1.) This section, effective January 1, 2013, provides:
“(a)(1) The test sponsor of the [LSAT] shall 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. This paragraph does not constitute a change in, but is declaratory of, existing law.
“(2) The process for determining whether to grant an accommodation under paragraph (1) shall be made public, and the decision whether or not to approve a request for an accommodation shall be conveyed to the requester within a reasonable amount of time. If the test sponsor of the [LSAT] does not approve a request for accommodation, the test sponsor shall state the reasons for the denial of the request to the requester in writing.
“(3) The test sponsor of the [LSAT] shall establish a timely appeals process for a test subject who is denied an accommodation request. The test sponsor of the [LSAT] shall clearly post on the [LSAT] Internet Web site information regarding refund policies for individuals whose requests for accommodation are denied.
“(b) Whenever a test subject has received formal testing accommodations from a postsecondary educational institution for a disability as defined in subdivision (j), (l), or (m) of Section 12926 of the Government Code, the test sponsor of the [LSAT] shall, consistent with existing law, 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.
“(c)(1) The test sponsor of the [LSAT] shall not notify a test score recipient that the score of any test subject was obtained by a subject who received an accommodation pursuant to this section.
“(2) The test sponsor of the [LSAT] shall not withhold any information that would lead a test score recipient to deduce that a score was earned by a subject who received an accommodation pursuant to this section.
“(3) This subdivision does not constitute a change in, but is declaratory of, existing law.
“(d) This section shall not be construed to limit or replace any other right or remedy that exists under state or federal law.
“(e) This section shall not provide greater protections to persons with disabilities than those provided by Section 51 of the Civil Code.” (§ 99161.5.)
The legislative history of Assembly Bill No. 2122 reveals section 99161.5 was directed exclusively toward the LSAT’s test sponsor, rather than made to apply generally to the numerous test sponsors conducting testing services in California, because the Legislature viewed LSAC’s testing accommodations procedures as more onerous than those of other test sponsors. The Assembly Committee on Higher Education’s bill analysis notes that, according to the bill’s author, former Assembly Member (now State Senator) Ricardo Lara, the bill “targets LSAC” rather than other test sponsors because “the process for test subjects to request and obtain accommodations when taking the LSAT creates significant barriers for persons with disabilities.” (Assem. Com. on Higher Education, Analysis of Assem. Bill No. 2122 (2011-2012 Reg. Sess.) as amended Mar. 21, 2012, pp. 1-3.) The Senate Rules Committee, Office of Senate Floor Analyses, third reading analysis notes: “According to the author, ‘[u]nlike the [LSAT], students requesting accommodations for high stakes exams such as the Graduate Records Examinations [(GRE)], which is sponsored by the Educational Testing Service, can easily submit a completed Certification of Eligibility in lieu of disability documentation. Clearly, the [LSAC’s] stringent documentation policies create a gap between individuals who can afford the expensive assessment and those who cannot. Additionally, under LSAC’s policies, when a student obtains extra time based on a cognitive or physical disability, his or her score is identified and a letter is sent to law schools notifying that an accommodation was granted and advising that the score should be interpreted with great sensitivity. This practice is referred to as “flagging” and it creates a chilling effect that discourages individuals from requesting testing accommodations.’ ” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 2122 (2011-2012 Reg. Sess.) as amended Aug. 29, 2012, p. 6.)
We provide a more detailed account of the legislative history in the discussion portion of this opinion.
The Present Lawsuit
On January 10, 2013, LSAC filed a complaint for declaratory and injunctive relief challenging the constitutionality of section 99161.5 under the California Constitution. The complaint alleged the newly-enacted statute: (1) violated LSAC’s right to “equal protection of the laws” (art. I, § 7, subd. (a)); (2) abridged its “liberty of speech” (art. I, § 2, subd. (a)); (3) constituted an invalid “special statute” (art. IV, § 16, subd. (b)); and also (4) amounted to a prohibited “bill of attainder” (art. I, § 9). The same day, LSAC applied for a temporary restraining order and for an order to show cause regarding issuance of a preliminary injunction. On January 15, 2013, the trial court ...