What's Wrong With This Picture?

Michigan Bar Journal

By: Francine Cullari
March 2012

Imagine being Angelo Binno, a blind college graduate. You speak three languages fluently. You graduated from high school in three years. After graduating from college, you obtain employment with the U.S. Department of Homeland Security and a high-level security clearance. You hope to become a lawyer. You are ready to take the Law School Admission Test (LSAT), but . . . the LSAT is not ready for you.

About one-third of the LSAT questions require spatial reasoning and diagramming of visual concepts for successful completion. As a blind person, you know that even if you receive an accommodation, whether computer, reader, or braille, you will not be able to use spatial reasoning and diagramming to answer the questions. The test itself puts a blind applicant at a competitive disadvantage to a sighted person.

You petition law schools to waive the LSAT for consideration of your application. You want to be treated the same as Richard Bernstein, a blind Michigan attorney. Northwestern University Law School waived the LSAT for Bernstein in 1996. The law schools you contact indicate the American Bar Association (ABA) adopted a rule that same year requiring standardized test scores for law school entry. Waiving or exempting an applicant from the test puts a school at risk of “appropriate” remedial action, sanctions, probation, or loss of accreditation.

The ABA’s position is that it does not require the LSAT itself, only a valid and reliable test—but there is no other standardized law school admission test that meets the standard. Perhaps the National Council of Bar Examiners could suggest a solution, as it is presented with a similar problem on bar exams. The council’s approach is reflected in the comment of its attorney: “The kids who take the [bar] exam who aren’t disabled have a right to compete with everyone else on a level playing field.” Yes, you read that correctly.

You take the exam, and the results are poor. Three Michigan law schools deny your admission.

Your next stop? Enter Richard Bernstein again. Bernstein has hoped for the right plaintiff to present himself or herself to challenge the disadvantage for blind law school applicants since he became an attorney 11 years ago.

His plaintiff arrived last year in the form of, yes, Angelo Binno. Angelo Binno v The American Bar Association, alleging violation of the Americans with Disabilities Act, is now pending in the U.S. District Court of Judge Denise Page Hood. The Michigan attorney general has joined the plaintiff, alleging a violation of the Michigan Civil Rights Act.

The Americans with Disabilities Act states:

Any person that offers examinations or courses related to applications, licensing, certification, or credentialing for secondary or post-secondary education, professional, or trade purposes shall offer such examinations or courses in a place and manner accessible to persons with disabilities or offer alternative accessible arrangements for such individuals.

The ABA has filed a motion for summary disposition, primarily on the basis that it does not administer the test. It points a finger at the Law School Admission Council (LSAC), arguing that the ABA does not require the LSAT—any approved standardized test is sufficient. It further states that law schools are free to assign whatever weight they choose to the test scores. The plaintiff claims the ABA accreditation standard itself violates the Disabilities Act per se by de facto requiring the LSAT. In response, the ABA alleges that a variance from the standard can be granted and points a second finger at law schools who do not apply for a variance. But the plaintiff maintains that it is nearly impossible for a school to request and be granted a variance within the admissions time frame. A school would have to create its own exam, have it verified and certified, and administer it—all within the admissions time frame.

Take a minute to remind yourselves why the LSAT is so important for applicants. LSAT scores are a prime determinant of acceptance, of the possibility of a career in a college senior’s chosen field. Why is it so important for law schools? Along with law school reputation (not grade point averages), the LSAT is the prime determinant of law school rankings, issued annually by U.S. News and World Report. Law schools can protest all they want about U.S. News rankings, but they are ever cognizant of their standings because students, attorneys, and other schools pay attention to the rankings.

This lawsuit is not the first time the LSAT has been challenged. In 2002, the LSAC settled a suit by the U.S. Department of Justice to allow persons with cerebral palsy to have extra time to take the LSAT and to pay the victims monetary compensation. Bar exams have been similarly challenged, with California, the District of Columbia, and Vermont ordered by courts to provide special software for visually impaired bar applicants; a Maryland judge declined to order assistance.

Why are law schools, the LSAC, and the ABA making it so difficult for blind people to enter law school? There is no doubt that a blind person can practice law. Richard Bernstein practices daily and would amaze any attorney. He prepares with an assistant, memorizes courtroom logistics, argues his owns cases, knows exhibits intimately and presents them to witnesses faultlessly, and is articulate and often eloquent. His courtroom demeanor is so seamless, viewers are surprised he is completely blind.

Consider contacting the ABA (particularly if you are a member), the LSAC, and your law school to encourage them to allow schools to waive the standardized test for admission for the visually disabled so blind applicants to law school “have a right to compete with everyone else on a level playing field.”

Francine Cullari practices real estate, estate planning, and business law in Grand Blanc. She has served on the State Bar of Michigan Board of Commissioners and is chairperson of the SBM Publications and Website Advisory Committee. She teaches business law and international business law at the University of Michigan–Flint.