Since Dean Z wrote this post, litigation against the LSAC has resulted in the cessation of their practice of flagging accommodated LSAT scores; here’s an article about the litigation and subsequent settlement.
I’ve been following with great interest a story that has been in the news in Southeast Michigan for several days, and that recently broke through to national coverage on NPR: a lawsuit challenging the ABA’s interpretation of the accreditation standard that mandates law schools “shall require each applicant . . . to take a valid and reliable admissions test” to mean, more or less, only the LSAT. Now, the ABA does allow schools to use other tests, but requires a fairly rigorous process to “establish that such other test is a valid and reliable test to assist the school in assessing an applicant’s capability to satisfactorily complete the school’s educational program.” Given the rigor of the exception process—as illustrated by the paucity of accredited schools relying heavily on any other test—I am not inclined to quibble too much about the validity of the characterization that “test” practically denotes the LSAT. (On the other hand, the process is not completely out-of-hand. We are in the midst of it ourselves, in connection with our Wolverine Scholars program.)
In any event, the burden of the lawsuit is that because the LSAT contains a component—the analytical reasoning, or “logic games” section—that is heavily visual in nature, it is discriminatory to require that blind applicants take it. Blind applicants will necessarily get a lower score on the LSAT because of that section, the argument goes, thus putting them at a competitive disadvantage, and so the ABA should not require schools to require the LSAT.
I know that over the last decade, Michigan Law has matriculated a fairly large number of students with some degree of serious vision impairment (and we’ve admitted others who did not enroll—inconceivable, of course, as that may be), be it complete congenital blindness , or blindness in one eye, or legal blindness, or something falling somewhere else on the spectrum. (While I can only speak with any authority about the period I’ve been in admissions, I know that two of the lawyers profiled in the ABA’s recently released Lawyers, Lead On are Michigan Law grads who are blind—suggesting that the last 10 years aren’t historically anomalous.) So I’m not inclined to agree that the ABA requirement creates an insuperable barrier to entry, even though I am willing to accept arguendo that the LSAT in fact fails to do a good job of assessing the capabilities of candidates who are congenitally blind for precisely the reason put forward in the lawsuit. I’m hardly an expert in psychometrics, but the argument carries some intuitive appeal. Because the ABA does not require a school to assign any particular weight to an LSAT score, though, it is within an admissions office’s purview to place no significant weight on the low score and look instead at the considerable other materials in the application file to better assess a candidate’s ability. The whole reason to have a non-mechanical, holistic process is to allow for precisely this sort of evaluative flexibility, and requiring the LSAT therefore does not, to my mind, strike a death blow to a blind applicant’s chances.
But in discussing the case with an alum who is himself legally blind, we came to focus on an issue that is not, in fact, at direct issue in the litigation: the Law School Admission Council’s (LSAC’s) practice of “flagging” accommodated scores. An “accommodated” score is one that adheres when a test is taken under non-standard conditions. Examples of non-standard conditions: If you have medical documentation showing a learning disability, you may be entitled to additional time to take the test; if you have a vision impairment, you may be entitled to have a Braille test, or to a reader; and so on. When I say such scores are “flagged,” I mean this: It is obvious from an LSAC score report if a candidate has taken the test under accommodated conditions because, while regular scores show a percentile distribution next to them (e.g., a 169 falls roughly in the 97th percentile), accommodated scores do not. (A few other similar indicia appear on a score report, but that’s the one that always leaps out at me.) The LSAC treats accommodated scores differently because it does not have adequate psychometric data to establish the validity and predictiveness of accommodated scores—thus, it cannot state with assurance that a 169 received under accommodated conditions is the equivalent of a 169 received under standard conditions, and it therefore does not lump the accommodated score in with the standard scores in order to calculate the percentile ranks.
To the lawyer I spoke with, that is a bad practice, leading to discriminatory behavior. He fears that law schools who are loathe to spend the money required to accommodate a disability as required by the federal Americans with Disabilities Act, and possibly by state law as well, will use this readily discernible signal to deny candidates who might be more expensive to have in the student body.
From my point of view, though, the practice actually benefits candidates with accommodated scores. Mind you, I’m not some pie-eyed Pollyanna. I find it plausible that some institutions would like to avoid spending money for accommodations. I likewise find it plausible that there are admissions officers who are simply biased, even without any financial consideration at stake. But the argument that is being made in the lawsuit is not either of those points: It is that blindness makes certain visual sections of the LSAT virtually impossible for a blind candidate to do well on, and that blind candidates therefore are likely to get lower scores—and that because, concomitantly, law school rankings place a premium on high median LSAT scores, law schools consistently avoid admitting anyone with a lower score.
Accommodated scores, though, are not included in the calculations of the medians that are used for rankings purposes—for the same reason that a percentile rank is not assigned, accommodated scores are excluded from the median count. The ABA instructs that “f a matriculant took the LSAT under nonstandard conditions you should exclude this matriculant from your calculation of 75th, median and 25th percentile calculations,” and specifically explains that “ou can tell on the face of the report when a test was administered to an applicant under nonstandard conditions because there will be. . . no percent rank . . . associated with that score.” In other words, because an accommodated score is “flagged,” an admissions office can be quickly assured that no matter how low the score, it’s no harm, no foul from a rankings point of view. Flagging allows admissions offices to respond to the incentive to view the score from a completely rational standpoint, rather than being corrupted by external rankings considerations. (Of course, I suppose you also could argue that it should be up to the accommodated test-taker to self-identify to the admissions office only if he or she wishes, after assessing the risk calculus that an admissions office would behave discriminatorily. But that puts a perhaps unreasonable burden on the test-taker to have a high degree of understanding about how admissions offices use scores.)
Beyond the simple lack of rankings damage, there are all sorts of pedagogical reasons that admissions offices should look to admit qualified blind candidates. Here’s one illustrative email I got several months ago from an evidence professor:
So last term I’m teaching my evidence class and we get to the hearsay exceptions that relate to “excited utterance” and “present sense impression.” To tease out some of the subtleties, we talk about a (true) case where a woman placed a 911 call because she could hear dogs attacking someone in the hallway of her apartment building. I asked the students if there were any issues with applying these exceptions to the 911 call and several hands went up. All of the students said basically the same thing: these exceptions require that the person making the statement have personal knowledge of what they’re describing and, in this case, the woman couldn’t have such knowledge because she was inside her apartment when she placed the call.
And then the hand went up of another one of my students. But this student is blind.
“I disagree,” he said. “You can tell all kinds of things without seeing what’s happening. You can tell where the sound is coming from. You can tell if there’s a struggle. You can tell how violent the struggle is. You can hear screams and cries. You can tell how big the dogs are. You can probably even recognize the growls and barks of the dogs if you’ve heard them before.”
Of course, we all realized that he was exactly right, and that he was not just exactly right about his own capacities but about all of our capacities.
And that, folks, is just one example of why we believe a diverse student body makes an immense difference in the quality of the educational experience.
-Dean Z. Assistant Dean for Admissions and Special Counsel for Professional Strategies