But I'll say it anyway. This is a very interesting case.
For those outside the law school setting, here's the basic scoop. Candidates for admission to law school almost invariably take the LSAT, which is sponsored by the Law School Admission Council (LSAC). Back in the old days, pretty much everyone took the same test and under the same basic conditions. But, in the modern era, with the rise of ADHD, ADD, and a plethora of other disability diagnoses, a large -- and ever-increasing -- number of LSAT test-takers get "accommodations" when they take the LSAT. By far the largest accommodation requested is extra time.
Which should not be surprising. Test-takers with disabilities may well require more time in order to situate them similarly to other test-takers. Take, for example, a blind test-taker. S/he may well need more time to read the relevant questions (perhaps in Braille), and it wouldn't be at all fair to deny such an accommodation. Otherwise s/he might obtain an overly low score that's not representative of his or her real abilities.
The problem, of course, is that extra time is a benefit -- and a potentially big one -- for every test taker. Including but not limited to those with disabilities. As a result, you've got the potential problem of test-takers getting "diagnosed" with disabilities for instrumental reasons. Something that's especially a problem with somewhat "fuzzy" disabilities. Because everyone -- everyone -- wants extra time if they can get it.
As a result, we've got to separate the "true" disability claims from the "false" ones. Which is no easy task. Plus, there's legal liability if the LSAC potentially gets it wrong.
But the LSAC nonetheless takes a pretty strong approach to the topic. More than a lot of other entities, it's concerned that just granting exceptions to pretty much everyone might compromise the value of its test.
For good reason. Scores on LSATs are pretty decent predictors of first-year grades in law school, and combining LSAT scores with undergraduate GPAs predicts success in law school even better. But that strong correlation only really holds for unaccommodated tests. Once you start giving candidates extra time, LSAT scores become much less predictive.
So one way the LSAC responded to this reality was to make full disclosure. If the LSAT was taken in a "regular" setting, the LSAC said so. That way the relevant admissions officials could know that it had its "normal" predictive power. But if the LSAT was taken in an accommodated setting, the LSAC said so as well. In some subtle but -- for admissions officials, anyway -- unmistakable ways (e.g., by not providing a "score band" for that particular candidate). The test-taker still got a score like everyone else, and on the same range. But admissions officials could tell that s/he was accommodated. That might help the candidate; for example, perhaps a low LSAT might (despite high undergraduate grades) might be given less weight, since it has less predictive power. But, in other settings, that same fact might hurt a candidate; for example, perhaps a high LSAT (despite low undergraduate grades) might be given less weight in the admissions process. Either way, whether a benefit or burden, the LSAC would tell the law school admissions officers the truth. But in doing so, it'd necessarily reveal an asserted disability.
Things went down this way for a while. Which required admissions officers in law schools to engage in a careful balance. You can't discriminate against the disabled. At the same time, you want to try to predict success based upon everything you know. So admissions officers took a holistic approach to all the information they were given.
But then California got into the act.
In September 2012, California enacted a new law -- effective January 1, 2013 -- that essentially made it illegal for LSAC to tell admissions officers at law schools whether someone who took the LSAT was accommodated (e.g., got extra time). At which point the LSAC sued, claiming that this statute violated its right to equal protection (since other test-giving entities were not covered) as well as its right to free speech. The LSAC moved for a preliminary injunction against enforcement of the statute, and the trial court granted this request.
The Court of Appeal reverses.
I think that Justice Hoch's opinion gets at least half of the case right. I'm persuaded that the statute does not impermissibly single out the LSAT, and hence doesn't violate equal protection (or implicate related rights, like bills of attainder, etc.). The LSAT, as well as the LSAC, are somewhat unique. It's permissible for California to single out those entities and subject them to special rules. I can see that.
The free speech claim is a little different.
The LSAC says that it's being prevented from telling admissions officers the truth. That's a pretty powerful claim, in my view. The Court of Appeal holds that the statute in question only regulates commercial speech. That's a conclusion that seems plausible to me (albeit hardly entirely self-evident). But there's nonetheless a serious issue about whether even commercial providers can be prevented from telling people the truth about the predictive power of their own scores.
The Court of Appeal's opinion commendably reflects a keen understanding of the values at stake. In the end, Justice Hoch ends up vacating the preliminary injunction but remanding the case back for a trial on the merits. California's statute is permissible, Justice Hoch says, if LSAC's policy of "flagging" test scores that result from accommodations "causes real discriminatory harm to prospective law students with disabilities." But if the state can't prove that fact, then the statute does indeed violate the free speech rights of the LSAC. That's for the trial court to figure out, as a factual matter, on remand.
But in the meantime, no flagging. Accommodated test-takers get to obtain an accommodated score without revealing this fact to the law schools to which they apply.
Important for anyone out there who's thinking about taking the LSAT. Similarly important to people at law schools in the admissions office. Or -- and I'm speaking as one such person -- to faculty members who've chaired the Admissions Committee at their law school for the past decade or so. No longer do they get to evaluate the predictive power of an individual applicant's LSAT score when assessing the capabilities of a particular applicant.
Let me just say one thing about the merits of the underlying dispute. Something that the Court of Appeal doesn't mention, but which nonetheless may well deserve some serious consideration.
As I said earlier, "flagging" accommodated LSATs can either benefit or harm a particular candidate. It all depends upon whether the candidate has an "abnormally" high or low score. It hurts the former but helps the latter. At least in general.
Mind you, telling the truth often does that. Some people it helps. Some people it hurts. I'm not sure that what we're really trying to get at in analyzing the propriety of free speech is whether "on balance" speech generally helps or hurts a given class.
Overall, though, if the question really is what practical effects "flagging" has, I'd urge the trial court on remand to carefully consider the contemporary admissions environment. And by "contemporary" I do not by any means limit myself to the last three or four years, a period during which admissions to law school have been substantially declining. I instead mean the past two or three decades. Because it's during that period that LSATs and rankings and their associated metrics have really become critical.
Law schools already have substantial incentives to accept even those LSATs that they know may well be inflated and/or not serve as particularly effective predictors of success. Why? Simple answer: The rankings in U.S. News and World Reports.
Law schools care a lot about maximizing the LSATs of their entering class because that counts for a lot in how U.S. News ranks law schools. Which in turn counts a lot in whether (and/or how many) students decide to enroll in your school. That's true regardless of whether the LSAT is an accurate predictor of success/intellect, an inaccurate predictor, or simply a random number generated by three hamsters walking on a keyboard. Who cares? Law schools want high LSATs because it helps them recruit others. Ditto, by the way, for undergraduate GPAs. The fact that these scores also may not be perfectly (or even at all) predictive doesn't matter. Because they are predictive in one critical aspect: They accurately predict how the school will be ranked in U.S. News. Which explains why a candidate with a 3.3 in engineering at MIT may well be viewed as "worse" than a candidate who has a 3.6 in basketweaving at an online college. Notwithstanding the fact that everyone would recognize that the former will likely do better in law school than the latter. Because the former hurts in U.S. News while the latter helps.
The substantive point is that there are already substantial incentives for law schools not to discriminate against accommodated students who receive "abnormally" high LSAT scores. Not only -- or even, if truth be told, primarily -- because it's illegal. But rather because ignoring the fact that such scores might not be especially predictive affirmatively helps lots of law schools. It enables them to "goose" their LSAT scores and resulting rankings. Regardless of whether those scores are predictive.
Admittedly, one doesn't want to go overboard here. There are some schools that surely care more about predictive success than rankings. My alma mater, for example. Surely plenty of others. Law school admissions aren't entirely "numbers" games. At least in lots of places.
But when the trial court needs to figure out if telling the truth about LSAT scores hurts accommodated students, it might be worthwhile to consider the overall admissions environment. Including but not limited to how those scores are actually used. Because the reality of the process actually matters a lot.
Regardless, in the meantime, an LSAT score is an LSAT score. Even if we know that the predictive power of one may not, in fact, be equal to another.
Fascinating case. Important for lots of people. Worth reading (and caring about) at least a bit.