The Law School Admission Council, the Law School Admission Test, and Barriers for Individuals with Disabilities; Oh My! Leaving the Legal Profession before Admission?

The Law School Admission Council, the Law School..., 2015 Can. Legal Educ....

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2015 Can. Legal Educ. Ann. Rev. 73

Canadian Legal Education Annual Review

2015

The Law School Admission Council, the Law School Admission Test, and Barriers for Individuals with Disabilities; Oh My! Leaving the Legal Profession before Admission?

Maria Nuneza1

Copyright © 2015 by Thomson Reuters Canada Limited; Maria Nunez

Abstract

In 2012, the United States Justice Department intervened in a lawsuit against the Law School Admission Council (LSAC) on

behalf of individuals with disabilities nationwide, alleging widespread concerns with the way that it administers

accommodations for the law school admission test (LSAT). The author finds that similar concerns affect access to legal

education in Canada, where various universities require applicants to take the LSAT, and LSAT disability accommodations

are also administered by LSAC, a corporation in the United States. The author argues that the current LSAT accommodation

process raises a contemporary human rights concern of systemic discrimination towards individuals with disabilities. The

author explores three issues with the accommodation process--the definition of disability, documentation requirements, and

appeal procedure--and two issues with the LSAT itself--the format and predictive accuracy--that may create barriers for

individuals with disabilities. The author offers recommendations for how LSAC and law schools in Canada can better

address the needs of Canadians with disabilities.

Résumé

En 2012, le ministère de la justice américain est intervenu dans le cadre d’une poursuite déposée contre l’organisme

responsable des admissions aux facultés de droit, le Law School Admission Council (LSAC), au nom de tous les Américains

souffrant d’une déficience, invoquant des inquiétudes très répandues concernant la *74 façon dont le LSAC accommode les

candidats aux tests d’admission aux facultés de droit. Dans cet article, l’auteur conclut à l’existence d’inquiétudes du même

ordre concernant l’accés à l’éducation au Canada, où plusieurs universités exigent des candidats qu’ils passent ce test et où

les demandes d’accommodement des personnes souffrant d’une déficience sont également administrées par le LSAC, une

société américaine. L’auteur plaide que la procédure actuelle d’accommodement soulève une préoccupation

d’actualitérelative aux droits de la personne à propos de l’existence d’une discrimination systémique à l’égard des individus

ayant une déficience. L’auteur explore trois questions concernant le processus d’accommodement, soit la définition de

déficience, les exigences documentaires et la procédure d’appel, et deux questions ayant trait au test lui-même, son format et

sa précision d’appréciation, susceptibles de créer des limites aux personnes souffrant d’une déficience. L’auteur propose des

recommandations visant à améliorer la manière dont le LSAC et les facultés de droit canadiennes répondent aux besoins des

canadiens ayant une déficience.

INTRODUCTION

In 2012, the United States Justice Department intervened in a lawsuit against the Law School Admission Council (LSAC) on

behalf of individuals with disabilities nationwide, alleging “widespread and systemic deficiencies in the way it processes

requests by people with disabilities for testing accommodations,” contrary to the Americans with Disabilities Act (ADA).1 In

2014, a settlement agreement was reached requiring LSAC to reform its accommodation practices and to pay $7.73 million in

penalties and damages to compensate 6,000 individuals who applied for LSAT accommodations.2 While the settlement

agreement impacts tens of thousands of Americans with disabilities, it remains to be seen if the reforms address the human



rights concerns of Canadians with disabilities. An American corporation and the sole administrator of the LSAT, LSAC may

not submit to the human rights laws present in Canada. The same cannot be said for Canadian law schools.3 Part 1 of this

article explains the LSAT and its disability accommodation process. Part 2 highlights issues with the LSAT accommodation

process that may create barriers for individuals with *75 disabilities in Canada. Part 3 considers whether the LSAT itself may

be discriminatory. Part 4 proposes recommendations on how Canadian law schools can address these issues.

1. THE LAW SCHOOL ADMISSION TEST AND ITS DISABILITY ACCOMODATION PROCESS

(a) The Law School Admission Test

The LSAT is a half-day high-stakes standardized test administered four times annually at testing centres throughout the

world, including in Canada, the United States, Australia, India, and China.4 The standard LSAT format consists of five

35-minute multiple-choice sections: two scored logical reasoning sections that measure the ability to analyze, critique, and

complete arguments; one scored reading comprehension section that measures the ability to read complex material; one

scored analytical reasoning section that measures the ability to draw logical conclusions about relationship structures; and

one unscored experimental section to test future exam questions. A 15-minute break is given after Section 3. The LSAT

concludes with a 35-minute unscored writing section.

LSAC asserts “LSAT scores help to predict which students will do well in law school”5 and that “[t]he LSAT is a strong

predictor of first-year law school grades [FYGs].”6 Generally, for law schools that participate in LSAT validity studies,

LSAT scores correlate with FYGs to a slightly higher degree than a candidate’s undergraduate grade-point average (UGPA),

while the LSAT score and UGPA combined correlate with FYGs to an even higher degree than either the LSAT or UGPA.7

Because the LSAT score can be the deciding factor for *76 whether a student will be admitted to law school, the LSAT must

be administered equitably.8 For persons with disabilities, whether applying as a regular or a Special Access student,

inadequate LSAT accommodations can make the prospect of law school admission difficult, if not impossible.9

(b) The Disability Accommodation Process

McIntyre J. states that “accommodation of differences ... is the essence of true equality.”10 Since 2014, LSAC offers

candidates a simplified accommodation process for requesting accommodations identical to those received on the SAT I,

SAT II, ACT, GED, GRE, GMAT, DAT, MCAT, or on a prior administration of the LSAT, provided that the

accommodations qualify. For example, applicants previously approved for and requesting more than double time as an

accommodation are disqualified from the simplified process.11

Candidates eligible for the simplified process must submit the following:

(1) Candidate Form, described below.

(2) Documentation from the test agency indicating that the candidate was approved to receive testing accommodations in the

past, identifying what those accommodations were.

(3) Certification from the applicant that he or she is “currently experiencing functional limitations caused by the

disability(ies) for which testing accommodations were previously approved.”12

Candidates ineligible for the simplified process must submit the following:13

*77 (1) Candidate Form, completed by the applicant, containing:

(a) A specific diagnosis and explanation of accommodations sought (how the condition impacts the applicant’s ability to take

the LSAT, and why each requested accommodation is needed).

(b) Detailed information of history of accommodations.

(2) Evaluator Form, completed by a qualified/licensed evaluator who diagnosed the condition and is familiar with its impact,

explaining the diagnosis and recommending accommodations.

(3) Verification from test agency of past accommodations, if applicable.



(4) Impairment-specific documentation, as follows:

(a) A Vision Evaluation Report for a visual impairment.

(b) A Physical Evaluation Report for a physical/medical impairment.

(i) Candidates requesting additional time due to a hearing impairment must also submit a comprehensive psychoeducational

assessment.

(c) The following for a cognitive/psychological impairment:

(i) A comprehensive psychoeducational and/or neuropsychological evaluation that includes:

1. a full diagnostic report that supports the diagnosis, addresses the severity and impact of the condition, and provides

information on an applicant’s history (developmental, family, academic, psychosocial, medical, treatment, etc.);

2. aptitude testing measure;

3. achievement testing;

4. a timed reading comprehension test; and

5. information / attention processing data.

(ii) For candidates seeking accommodations due to a diagnosis of ADHD, a computer prinout of objective data.

(iii) For candidates seeking accommodations due to a psychological/psychiatric disorder, personality testing. Those

candidates requesting accommodations other than additional time due to a psychological/psychiatric disorder must also

submit a full psychological report.

Cognitive/psychological impairment assessments must be no more than five years old and be conducted by a qualified

professional with training and experience working with adults. All standard scores must be provided, based on age.

*78 Once the documentation is received, LSAC reviews requests on a case-by-case basis.

2. ISSUES WITH THE LSAT DISABILITY ACCOMMODATION PROCESS

The lived reality of persons with disabilities does not always match the protections that they should receive.14 Canadians who

have gone through the LSAT disabilty accommodation request process have found it to be “unfair and intimidating.”15

Despite the 2014 reforms, persons with disabilities in Canada may continue to experience barriers receiving reasonable

LSAT accommodations because of the following three factors: the ADA definition of disability, LSAC’s documentation

requirements, and the LSAT accommodation appeal procedure.

(a) The Definition of Disability

According to LSAC, the ADA defines “disability” as “an impairment that substantially limits a major life activity.”16 In

effect, LSAC sets four criteria to qualify for disability accommodations. Applicants must have i) an impairment, that is ii)

current, iii) limits a major life activity, and is iv) substantial. The ADA definition of disability creates three issues for

Canadians seeking LSAT disability accommodations.

First, the ADA definition is seemingly inconsistent with Canadian disability definitions. Canada does not have one exclusive

definition of disability,17 and unlike the ADA, few laws in Canada include the terms “major life activity” or “substantial” in

their definitions of disability.18 For example, Ontario and Northwest Territories human rights legislation define disability as

*79 any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or

illness ... [or] a condition of mental impairment or a developmental disability, ... a learning disability, or a dysfunction in one

or more of the processes involved in understanding or using symbols or spoken language, ... [or] a mental disorder.19

The Saskatchewan Human Rights Code defines disability as “any degree of physical disability, infirmity, malformation or

disfigurement ... [or] an intellectual disability or impairment ... a learning disability or a dysfunction in one or more of the



processes involved in the comprehension or use of symbols or spoken language ... [or] a mental disorder.”20 The Alberta and

Yukon Human Rights Acts define physical disability as “any degree of physical disability, infirmity, malformation or

disfigurement that is caused by bodily injury, birth defect or illness.”21 While Alberta defines mental disability as “any

mental disorder, developmental disorder or learning disorder, regardless of the cause or duration of the disorder,” Yukon

defines mental disability as “any mental or psychological disorder.”22 Finally, the Newfoundland and Labrador Human

Rights Act, 2010 defines disability as “(i) a degree of physical disability, (ii) a condition of mental impairment or a

developmental disability, (iii) a learning disability, or a dysfunction in one or more of the processes involved in

understanding or using symbols or language, and (iv) a mental disorder.”23 The *80 ADA disability standard may be

detrimental to individuals with a legal disability status in Canada before, during, and after law school who are nevertheless

not considered disabled for the sake of receiving LSAT accommodations. Denying individuals with non-evident disabilities

the disability title is harmful and amplifies damaging psychological tension.24

The Canadian Charter of Rights and Freedoms (Charter) prohibits unjustifiable discrimination on the grounds of mental or

physical disability; however, it does not define disability.25 The Supreme Court of Canada has not defined disability either.

Rather, it has adopted interpretation guidelines: interpretations of disability must be broad, liberal, and consistent with the

Charter’s objective “to protect the dignity and equality rights of all human beings and, by logical extension, to eliminate

discrimination.”26 L’Heureux-DubéJ. notes that “an overly narrow definition would not necessarily serve the purpose of the

Charter [ ... ] [E]mphasis is on obstacles to full participation in society rather than on the condition or state of the [ ... ]

ailments.”27 The ADA states that *81 “disability” must “be construed in favor of broad coverage.”28 However, under the

ADA, risk exists that individuals may be denied LSAT accommodations despite a current impairment that limits a major life

activity, a history of accommodations, and supporting documentation from numerous qualified evaluators, if the limitation is

not deemed “substantial”.29

Second, what qualifies as a “substantial” limitation is ambiguous.30 For example, the ADA states that “significantly

restricted” is “too high a standard” for defining the term “substantially limits”;31 however, it is unclear why “substantially

limits” is not as high a standard. Also, the ADA rejects the standard that to qualify as disabled, individuals “must have an

impairment that [ ... ] severely restricts [the ability to do] activities that are of central importance to most people’s daily

lives”;32 however, it does not explain why it rejects the standard. Is the rejection because of the term “severely restricts”, the

comparison to “most people” rather than to “the average person in the general population”,33 or perhaps both? Katharina

Burns and Gary Gordon state that “[a]lthough the intentions of the ADA are well founded [ ... ] the law has not been clearly

interpreted in the same way by all parties, which has resulted in frustration, lawsuits, and the disenfranchising of some people

with disabilities.”34 Some studies suggest that, in practice, the ADA has had limited success in improving the situation for

individuals with disabilities.35

The Ontario Human Rights Commission (OHRC) defines “ableism” as conscious or unconscious “attitudes in society that

devalue and limit the *82 potential of persons with disabilities.”36 Ambiguity in the ADA definition of disability risks

decisions of what is considered to be a “major life activity” or a “substantial” limitation being prejudiced by ableism. For

example, service providers may discriminate against individuals in a fashion that appears unbiased by simply alleging that

impairments are not substantial enough to warrant accommodations.37 Ableism may explain the history of narrow

interpretations of the ADA, which caused it to be amended in 2008 to “restore the intent and protections.”38 The ADA states

that “individuals with disabilities continually encounter various forms of discrimination, including [ ... ] overprotective rules

and policies [and] exclusionary qualification standards and criteria.”39 Accordingly, ableism may lead decision-makers to

deny an individual necessary accommodations by simply deeming the impairment not “substantial” enough, with limited

accountability. The Law Commission of Ontario (LCO) asserts that “definitions of disability must recognize the diversity of

experience that results from the interaction of an individual with his or her environment [such as how] stereotyping affects

the perception of an impairment.”40

Third, relying on the ADA definition, individuals may be lawfully discriminated against for their health condition or

impairment, so long as the impairment is deemed not “substantial” enough to bring an individual under ADA disability

status. Facilitating discrimination based on health and impairment seemingly goes against the purpose of Canadian human

rights legislation.41

Katharina Burns and Gary Gordon acknowledge that the lives of individuals with disabilities are influenced by legislation

and policies: “What policies are seen to work in one country may or may not work in another.”42

(b) Recommendations Related to the Definition of Disability



Canada has human rights legislation; however, it does not have federal disability legislation specifically for individuals with

disabilities, and few provinces have disability specific legislation.43 Responses to the idea of *83 Canada adopting a federal

disability act, like the United States, have been mixed, ranging from enthusiasm to serious concern that such an act would be

used to politically sidestep the guaranteed human rights that currently exist.44

Emphasis on the syntax of one definition of disability, like the ADA’s, risks allowing service providers to avoid a

discrimination analysis and draw attention away from what efforts, if any, were taken to avoid a negative impact on an

individual by simply denying that an impairment was significant.45 Abella J. states that service providers must show that they

“could not have done anything else reasonable or practical to avoid the negative impact on the individual [with a

disability].”46 Once a prima facie case of discrimination is established, the legal burden shifts to service providers to justify

the discrimination.47

Perhaps Canada is best suited to not have one definition of disability and, instead, continue to follow the interpretation

guidelines of disability. The LCO states that “[n]o single definition of ‘disability’ can capture the full range of the

experiences of persons with disabilities [ .... ] [A] definition that is of assistance in considering one aspect of the experience

of disability may not be illuminating in another.”48 However, if Canada were to adopt one definition of disability, I submit

that it should be broader than the ADA definition. A broader definition of disability does not automatically entitle individuals

to accommodations because undue hardship and reasonableness of the accommodation request must still be considered.49 As

Shakespeare wrote, “What’s in a name? [A] rose [b]y any other name would smell as sweet.”50 A person with a need for

accommodation in order to have meaningful access to a service will continue to have that need *84 whether labelled

“disabled” or “not disabled ... enough”.51 In this case, the service is the LSAT.

(c) Accommodation Documentation Requirements

The ADA requires private entities to offer examinations in a manner accessible to persons with disabilities and to assure that

any request for documentation is “reasonable and limited to the need for the [accommodations] requested.”52 In Canada,

service providers have a similar burden to offer services in an equitable, meaningfully accessible manner.53 Excessive and

rigid documentation requirements that prevent persons with disabilities from receiving reasonable LSAT accommodations,

and meaningful access to the LSAT, may contravene Canadian human rights requirements.

(i) Excessive Documentation Requests

To request LSAT disability accommodations, individuals must provide LSAC with documentation that substantiates “the

current functional impact of [their] impairment that limits a major life activity.”54 Current documentation is a reasonable

request where the severity of a disability may change over time.55 Accordingly, a history of accommodations will not

automatically qualify someone for LSAT accommodations.56 However, LSAC seemingly contradicts its own documentation

requirements by requesting outdated information. For instance, the Candidate Form requests that applicants submit detailed

accommodation history from as early as elementary school.57 In Rothberg v. Law School Admission Council Inc., Daniel J.

states:

*85 Ms. Dempsey [LSAC’s Disabilities Specialist and Manager of Accommodated Testing] relied on

testing performed of Ms. Rothberg in high school [ ... ] in justifying LSAC’s decision that it was not

required to accommodate [the] Plaintiff. I find reliance on such testing to be disingenuous in light of

LSAC’s own guidelines which state that LSAC looks only at the current condition of an applicant in

making a decision.58

Applicants, particularly mature applicants, may experience difficulties accessing potentially costly, lost, damaged, vague, or

out-dated information; past accommodators may be retired, relocated, deceased, or incapacitated. Admittedly, LSAC requests

past documentation “if available”, suggesting that the information is not required; however, applicants may believe that the

validity of their disability will be called into question if the out-dated documentation is not provided, and feel the need to

overcome a presumption that they are seeking an unfair advantage.

Many factors affect if and when individuals will be assessed for a disability and, as a result, have a history of formal

accommodations. These factors include, but are not limited to:59

(a) Lack of resources to afford requisite disability assessment;60



(b) Cultural and social issues: individuals from lower socio-economic status households and racial-ethnic minorities may be

underrepresented in disability assessment programs;61

(c) Disability education: rather than suspect a disability, parents and teachers may perceive an individual as “lazy”;62

(d) Intrapersonal misunderstandings: individuals may not suspect a disability, and instead perceive themselves negatively.

Conversely, individuals may suspect a disability but resist being assessed, labelled, or formally accommodated because of

low social acceptance;63

*86 (e) Focus on test outcomes and grades, rather than on how individuals learn: self-accommodating students who are

incredibly hard working, sometimes to the point of exhaustion or physical illness, may not be identified until later in life.64

Courts have expressed that it would be unjust to punish self-accommodating individuals;65 and

(f) Nature of the disability: some disabilities are episodic, temporary, or occur later in life.66

LSAC states that accommodations will not automatically be denied because of a limited history of accommodations, and

respective documentation.67 However, little transparency exists in LSAC’s accommodation decision-making process to

ensure that decisions are justified.68 In 2012, the Department of Justice stated that LSAC denied a candidate’s

accommodation request without any explanation. Even after submissions from a certified neuropsy-chologist “explaining

why LSAC’s interpretation of his evaluation was incorrect [ ... ] LSAC again refused to provide the needed accommodation

without any further explanation.”69 In 2013, Claudia Center, Director of the Disability Rights Program at the Legal Aid

Society - Employment Law Center stated that “many persons with disabilities who seek testing accommodations on the

LSAT report that their requests are denied in whole or in part without a legitimate basis.”70

From 2007 to 2012, LSAC denied approximately 50% of the annual accommodation requests.71

*87 The 2014 settlement reforms provide increased transparency and accountability in the accommodation process:72

• LSAC must establish a database to track testing accommodation data, including information about each candidate’s

requested accommodations, the results of the request, reasons for the decision, and the names of all individuals who reviewed

the request. The collected database information is reviewable by an independent ADA Monitor, the United States, and the

Department of Fair Employment and Housing (DFEH). No mention of Canada or information access for Canadian parties is

made in the settlement Consent Decree.

• LSAC must implement best practices as established by a panel of five experts that will determine the type and scope of

appropriate documentation that LSAC may request.73 Since its establishment, the LSAC Reform Panel has reported a belief

“that LSAC’s documentation requirements are excessive for most candidates who seek testing accommodations on the LSAT

and inconsistent with the documentation guidelines of other national testing entities.”74

• LSAC must not reject a candidate’s accommodation request solely because he or she has no formal history of receiving that

testing accommodation or solely because a candidate has a high IQ score and/or high level of academic success.

• LSAC must diversify the expert consultants that it uses to review accommodation requests. The LSAC Reform Panel

recommends that requests not granted in full be reviewed by an outside consultant. Also, LSAC staff and outside consultants

should have a minimal degree of relevant qualifications. This helps to address a concern that, without comparable expertise,

LSAC staff retain the power to overrule recommendations of licensed clinical experts.75

• It remains to be seen what the ultimate documentation requirements will be and whether the reforms will have a lasting

positive impact. After all, this is the second settlement that the United States government has made with LSAC since 2002

regarding complaints that LSAC had failed to *88 grant reasonable disability accommodations.76 LSAC has a history of

handling testing accommodations differently than it should.77 Still, the reforms, recommendations, and increased attention are

a positive step in the right direction, which could benefit both Canadian and American LSAT writers.

(ii) Rigid Documentation Requirements

Accessing disability-related documentation requires resources--time, energy, access to qualified professionals, and finances;

therefore, excessive and rigid documentation requirements may disproportionately burden less affluent individuals with

disabilities, and those in the greatest need of support. Individuals with disabilities may experience barriers in employment

that could result in a lower income; barriers which may be amplified by intersecting features such as gender, race, ethnicity,

citizenship, and age.78 Notably, most individuals accommodated on the LSAT identify as male or Caucasian.79

Rigid LSAT documentation requirements may prevent individuals from being considered for LSAT accommodations and,



ultimately, from accessing law school. For example, in Ruffolo v. York University, a complainant with an acquired brain

injury sought LSAT accommodations.80 LSAC informed the complainant that he could not qualify without a

neuropsychological report. Because the report would cost around $5000, the complainant elected to not take the LSAT.

Although some individuals may argue that the financial costs associated with disability documentation result in wealthy

applicants being able to pay for “fake” documentation, one cannot assume that better access to health care and qualified

professionals means that and diagnoses and assessments incurred are fraudulent.81 This logic further marginalizes individuals

with *89 disabilities. Even if individuals do provide supporting documentation, it may not be taken seriously and they may be

asked to provide more proof. Resources spent meeting rigid documentation requirements result in fewer resources for other

things, such as tuition or helpful--yet costly--LSAT prep courses.82

Rigid documentation requirements fail to account for an individual’s unique circumstances and documentation that may

already sufficiently demonstrate a disability. For instance, in Rothberg v. Law School Admission Council Inc., LSAC denied

the applicant LSAT accommodations three times despite a history of accommodations and supporting neuropsychological

evaluation by a clinical psychologist who diagnosed a learning disability and recommended accommodations. LSAC deemed

her file to be imcomplete because it was missing the Nelson-Denny Reading Test (NDRT). The evaluating psychologist sent

LSAC two emails requesting reconsideration, explaining that the evaluation results provided “clear and convincing evidence

of Ms. Rothberg’s learning disability even without the NDRT ... [T]he evidence from the Woodcock-Johnson was so strong

that an additional measure of reading comprehension would have added little to the results.83 Although LSAC did not dispute

the evaluator’s qualifications, it denied the request nonetheless. Notably, LSAC still denied accommodations after the NDRT

was conducted by another psychologist, and the results obtained supported the complainant’s accommodations request.

In Cohen v. Law School Admission Council, Ruth Carey states that a more flexible LSAT accommodation request process

“would be better [however] perfection in accommodation processes is not the standard required.”84 Also, individuals seeking

accommodations must cooperate in securing relevant documentation to permit service providers to determine appropriate

accommodation.85 While perfection is not the accommodation standard, rigid documentation requirements that unnecessarily

burden and prevent individuals from accessing accommodations are intolerable.86

Failure to provide all documentation requested by LSAC should not be considered a failure to cooperate if fewer documents

sufficiently demonstrate *90 that a disability warrants reasonable accommodation. Teri Hibbs and Dianne Pothier state,

“[a]lthough fraudulent claims are a legitimate concern [ ... ] policy should not be based on a presumption of fraud that needs

to be rebutted. Rigid and onerous documentation requirements risk defeating the very purpose [of making] education

accessible.”87

While other service providers also attempt to facilitate accommodation requests, their current processes are not as demanding

as LSAC’s. For example, College Board, the organization that administers the SAT, has a streamlined school verification

process for students to request disability accommodations. School verification confirms that a student meets the

accommodation eligibility criteria and that the school has relevant documentation on file.88 Also, Educational Testing

Service, the organization that administers the GRE, permits some individuals to request disability accommodations using a

Certification of Eligibility: Accommodations History (COE), in place of full disability documentation. The COE process is

available for qualified applicants who are currently using, or have used within the past three years, disability

accommodations in their post-secondary, vocational rehabilitation, or employment setting.89 Ironically, individuals

accommodated in post-secondary may have an easier time requesting accommodations for the GRE or SAT first, and then

requesting LSAC accommodations, than applying to LSAC directly.

Even the Law Society of Upper Canada (LSUC), which administers the Ontario Lawyer Licensing Exam, has a less onerous

accommodation request process than LSAC. LSUC requires “suitable verifiable information about the need for

accommodation as requested,” including supporting documents, and may request additional information as required;

however, LSUC does not request out-dated documentation or require an extensive list of questions and mandatory

assessments to be completed, some of which may be irrelevant or unnecessary to a candidate’s request.90 LSUC truly reviews

accommodations requests on a case-by-case basis, acknowledging “a responsibility to only require information from the

candidate that is reasonably necessary to the provision of accommodation.”91 Even though LSAC states that provides

“services to ease the *91 admission process for law schools and their applicants,” it may not be meeting this purpose for

applicants with disabilities.92

(d) Recommendations Related to Accommodation Documentation



Four recommendations for LSAC with respect to disability accommodation documentation are as follows.

First, LSAC should accept disability accommodations requests with a presumption of good faith, unless legitimate reasons

exist for believing otherwise. This is done by LSUC and large corporations such as CIBC.93 A presumption of good faith

respects the dignity of applicants, and is tantamount to the presumption of innocence in Section 11(d) of the Charter

applicable to criminal and penal matters.94 LSAC’s current simplified process for individuals who have received

accommodations on past standardized tests is a move towards a good faith presumption because less documentation is

required to verify the validity of a request and applicants can self-certify that current functional limitations exist. However,

the simplified process primarily benefits United States individuals. Unlike in the United States, Canadians are not required to

take the SAT as part of the post-secondary admission process.

Second, LSAC should create a simplified process for applicants with disabilities who have been or are currently being

accommodated for tests at Canadian post-secondary institutions.95

In Cohen v. Law School Admission Council, Ruth Carey states:

[T]he primary purpose of accommodating disabilities [in the schooling environment] is to maximize the

student’s learning. In that context, educators, students, and advocates [ ... ] all want as many

accommodations as possible because that is the best way to go about achieving the overal goal of

learning. In contrast, the purpose of granting accommodations to test takers in the LSAT is most certainly

not to help them do the best they can do; it is designed to equalize the competition.96

*92 I agree that the purpose of providing disability accommodations in school classroom environments and in LSAT

environments may differ. However, I argue that the purpose of accommodating individuals with disabilities in school testing

environments versus on the LSAT do not differ. In either testing context, the purpose of accommodating an individual is to

equalize the competition and obtain a score that accurately reflects the test taker’s aptitude, rather than his or her disability.

Testing accommodations do not serve to guarantee a “best” score, or to provide an unfair advantage.97 Testing

accommodations serve to prevent and remove individual and systemic barriers. Therefore, accommodations permitted in one

testing context can be used to support a request for accommodations in the other.

The LSAC Reform Panel review suggests:

LSAC staff does not give adequate weight to prior testing accommodations received by a candidate if the

candidate was not previously provided testing accommodations on standardized examinations. [P]rior

testing accommodations, such as extra time on university examinations, may have been in a somewhat

different context or even for a somewhat different purpose. Nonetheless, [ ... ] an established history of

testing accommodations shall presumptively support the request for the provision of similar testing

accommodations on the LSAT. It shall be the role of the LSAC reviewer(s) to look for evidence that

supports the candidate’s request [ ... ] rather than to look for evidence that denies the candidate’s

request.98

Third, LSAC should conduct access audits in partnership with disability experts in Canada to identify barriers that Canadians

may experience in the accommodation process.99 For instance, applicants with disabilities may instantly feel undesired

because, unlike other minority groups, LSAC does not include “applicants with disabilities” under the “Welcome” diversity

in law school page.100 Also, LSAC does not provide information on disability friendly law schools, lawyers with disabilities

success stories, or disclosure of disability and accommodations information, despite comparable information being provided

to other applicants.101 Inclusion concerns present an attitudinal barrier for individuals with disabilities.

Fourth, like the Association of American Medical Colleges, which organizes the MCAT, LSAC should adopt a financial

assistance program to reduce *93 barriers that individuals seeking disability accommodations may experience in meeting

documentation requirements.102 Financial assistance is offered to qualified individuals who need updated psychoeducational

or medical evaluations.

(e) The Appeal Procedure

(i) Jurisdiction



Applicants in Canada denied accommodations on the LSAT may file a complaint with their provincial human rights

commission. However, incorporated and located in the United States, LSAC has a history of alleging that it does not fall

within the jurisdiction of Canadian government bodies or Canadian human rights legislation. For example, in 2003, LSAC

refused to file a Response to Complaint Form in Carlisle v. Law School Admissions Council, stating: “LSAC does not intend

by this or any future response to submit to the jurisdiction of the British Columbia Human Rights Commission.”103 The

Tribunal disagreed with LSAC’s assertion because LSAC’s decisions, even though made in the United States, were

implemented in British Columbia, alleged denial of disability accommodations was with respect to a test to be administered

in British Columbia, and the impact of that denial was felt in British Columbia. The Tribunal held: “It is not the location of

the Respondent, but rather the location of the incidents giving rise to the Complaint, that will determine the Tribunal’s

jurisdiction.”104

Nevertheless, LSAC has raised jurisdiction as an issue in subsequent cases. For example, in 2008, a complaint was brought

forward against LSAC for requiring Canadian students to provide a thumb/finger print in order to take the LSAT. The

Canada Privacy Commissioner deemed the complaint to be “well-founded” and held that the policy contravened the Personal

Information Protection and Electronic Documents Act.105 Regarding the jurisdictional issue, Commissioner Jennifer Stoddart

explained that, “A statute may apply to persons, property or transactions physically located outside the enacting body’s

jurisdiction [ ... ] [A] real and substantial connection exists between LSAC and Canada sufficient to bring the subject matter

within jurisdiction of the Act.”106 LSAC responded that,

*94 without acquiescing to the jurisdiction of your office or the Act, and while respectfully disagreeing with your preliminary

analysis and finding, LSAC will [ ... ] voluntarily suspend its policy [ .... ] This step is without prejudice to LSAC’s abil ity to

reinstitute its thumbprint policy at some future date and does not waive any ability LSAC may have to contest the jurisdiction

of your office or the Act in future legal proceedings.107

Although the complaint was resolved, Commissioner Stoddart illuminated, “I am concerned by LSAC’s assertion [ .... ] I

firmly believe that its thumbprint policy is not reasonable for the stated purposes and contravenes Principle 4.4. As LSAC

maintains that it can reinstitute this policy] whenever it deems it to be necessary, I cannot conclude that the complaint is

resolved.”108 In 2010 and 2011, LSAC again raised jurisdiction as an issue, arguing unsuccessfully that the Ontario Human

Rights Tribunal lacked jurisdiction to hear disability discrimination allegations regarding the LSAT accommodation

administration.109 LSAC’s failure to resolve the jurisdictional issue, while recurrently raising jurisdiction as an issue in legal

proceedings, despite repeated rejections by Canada’s Commissions, is an intentional delay of proceedings that detriments

Canadian complainants. As Edward Dunn states, “disabled applicants [wishing to appeal LSAC’s disability accommodation

judgment] must resort to the expensive and time consuming judicial process, an inequity that pits them against a corporation

with vast resources.”110

(f) Recommendations Related to the Appeal Procedure

LSAC should either concede that Canadian human rights legislation applies to the administration of the LSAT within

Canada, or address the jurisdictional issue with finality. Meanwhile, if future discrimination allegations arise, complainants

should pre-emptively raise the history of successful jurisdictional challenges in Canada against LSAC.

Moreover, LSAC does not presently have a formal process for applicants to appeal a LSAT accommodation request.111 In

contrast, LSAC does have a formal process for applicants to appeal a test question. LSAC concedes that, *95 despite careful

review by staff, errors sometimes occur in the test-making process.112 Just as errors can arise in the test-making process,

errors can also be anticipated in the accommodation review process, particularly if reviewing excessive documentation.113

Like its test question appeal process, LSAC should implement a formal and impartial accommodation appeal process that

respects applicants by allowing them to voice their concerns, without requiring new substantive documentation from a

third-party. By comparison, LSUC has a formal appeal process for disability accommodation requests that allows candidates

to appeal, up to three times, and discuss their requests with assigned staff.114 LSUC also provides candidates with information

on their statutory rights.

3. ISSUES WITH THE LSAT

Discrimination can result from neutral treatment that adversely, differentially impacts persons with disabilities.115 Arguably,



the LSAT itself adversely impacts persons with disabilities both through its format and predictive accuracy.

(a) Format

According to Reach Canada, a non-profit organization that offers educational workshops and lawyer referral services for

persons with disabilities, “many Canadian law students and lawyers have said that their performance on the LSAT was

hindered by their disability and/or by inadequate consideration of their special needs during the testing process.”116 The

current format arguably makes the LSAT more difficult for, or biased against, individuals with disabilities. For example,

LSAC senior test developer James Loriédescribes the three-and-a-half hour long LSAT as “a grueling testing session. That’s

a long time to be sitting and taking a test.”117 Although challenging for anyone, the LSAT format differentially impacts

persons with disabilities who may find sitting and focusing for such an extended period, with only one break, painful or

exceptionally difficult. Loriéconcedes that, despite *96 LSAC’s attempts, “it is true unfortunately that certain minority

groups don’t perform as well on average on the test as other groups do,” which can indicate an inherent bias in the LSAT.118

The LSAT format could be made more accommodating by:

• Providing test-takers more breaks. GMAT test-takers have two optional breaks, and MCAT test-takers have optional breaks

after all three mandatory sections.119

• Having optional test sections, which can reduce exam length. In 2016, the SAT essay section will become optional.120

• Offering exams in multiple formats. The GRE is available in paper or digital format.121

• Allowing some flexibility to all test-takers, irrespective of disability. All MCAT test takers can automatically use earplugs,

without prior approval.122 GMAT test-takers can also use earplugs or headphones to block noise and even adjustable-height

chairs and workstations, if available at the test-takers writing centre.123 LSAC requires accommodation requests for such

adjustments. For example, in Cohen v. Law School Admission Council, a complainant with ADHD engaged in five years of

litigation after being denied LSAT disability accommodations, one requested accommodation being the use of earplugs.

Admittedly, the complainant failed to submit all requested documentation--because of financial concerns and difficulty

finding a suitable evaluator who offered all of the tests required by LSAC--and the complainant reacted emotionally in

response to the accommodation denial. For example, during one LSAT sitting, the complainant put tissue paper in his ears in

an attempt to block noise.124 However, the earplug accommodation request, and aftermath related to its denial, may have been

prevented with a more accessible LSAT format.

*97 (b) Predictive Accuracy

It is unclear if the LSAT is an accurate predictor for students with disabilities (and students in general) of success, not just in

law school, but in the legal profession. Prior to the 2014 settlement, LSAC flagged LSAT scores for students accommodated

with extra testing time stating that such scores were “not comparable to LSAT scores earned under standard-time conditions,

as evidenced by a tendency of the former to overpredict [first-year law school performance].”125 In contrast, LSAC reports

“some slight underprediction of first-year law school performance” for LSAT scores obtained under accommodated,

standard-time conditions.126

LSAC’s research may not be ideal because:

• Data collected from American participants may not be reliable in Canada’s unique social, cultural, and educational

context.127 For example, in LSAC’s two most recent “National” Summaries of Predictive Validity of the LSAT, for 2009 to

2020, “Canadian schools were excluded because they did not participate in LSAC’s Credential Assembly Service.”128 LSAC

reports that test takers in Canada perform slightly differently than test takers in the United States.129

• Heterogeneous individuals are grouped into homogenous groups. Accommodation requests must be assessed on a

case-by-case basis because each individual and disability is unique; however, when conducting research, LSAC groups

individuals into categories based on their disability label, irrespective of factors such as symptom severity or amount of

accommodated extra time. Mandinach, Cahalan and Camara state:

[Combining test-takers with similar disabilities into large groups] may be combining persons with somewhat different types

of disabilities or differing levels of severity of disabilities, reducing the validity of any findings. This problem seriously calls

into question *98 the ability to conduct valid research that will be accepted by the legal, disability, and research



communities.130

• LSAC study participants are not drawn at random.131 Unique characteristics of persons with disabilities may introduce

external variables. For example, the 1991 study by Ragosta, Braun, and Kaplan “observed a slight overprediction of overall

UGPA for learning disabled test takers, regardless of whether or not they tested with accommodations.”132 LSAC’s study

only included full-time students, even though students with disabilities may be part-time or take academic medical leaves,

and only select law schools chose to participate.

• External variables in the law school or university culture may substantially vary the findings. Individuals with disabilities,

particularly those who require additional time accommodations, encounter unique barriers in law school that may exacerbate

their condition, and impact FYGs.133

Assuming that the LSAT does have different predictive validity for individuals who are accommodated as opposed to those

who are not, the findings could be interpreted to mean that the LSAT is not a valid assessment tool for individuals with

disabilities. Reach Canada reports that “many Canadian law students and lawyers [ ... ] did not regard their LSAT results as

an accurate indication of their ability to succeed in legal studies.”134

LSAC asserts that “[t]he LSAT, like any admission test, is not a perfect predictor of law school performance [ ... ] [A] test

score should be regarded as a useful but approximate measure of a test taker’s abilities [ ... ] not as an exact determination of

his or her abilities.”135 LSAT scores “do not measure, nor are they intended to measure, all the elements important to success

at individual *99 institutions.”136 The LSAT does not measure success in law school overall (e.g., upper-year performance,

cumulative law school performance, awards, mooting success), or success in the legal profession (e.g., professional income,

appointments, or honours).137 Law school alumni who would likely not have gained admission to law school based on their

UGPA and LSAT scores alone can work as successful lawyers.138

(c) Recommendations Related to the LSAT

LSAC should explore ways to make the LSAT more accessible and a better assessor of what it purports to measure. Reducing

the time constraint for all applicants could make the LSAT more accessible and a better assessor of what it truly seeks to

measure, which should not be reading or processing speed. “Speededness”--the frequency with which test takers can

complete an exam in the allotted time--has been described as a potential source of LSAT test bias that negatively and

differentially impacts women and racial minorities, and further disadvantages individuals with disabilities who belong to

these intersecting groups.139 Ruth Colker urges LSAC to reduce its emphasis on speededness to try to make the LSAT fairer

for all test takers.140 After all reading and processing speed is not necessarily telling of the variables that the LSAC seeks to

measure--reading comprehension, logical reasoning, and analytical reasoning. Individuals described as slow readers, for

reasons such as English being a second language or because of a disability, can still excel as lawyers. For example, David

Boies, an individual with dyslexia, described as a slow reader, was the lead counsel for former Vice-President Al Gore

(1998-2000), and recipient of various recognitions including “Lawyer of the Year” by the National Law Journal (2000), “one

of the 100 Most Influential People in the World” by Time Magazine (2010), and “Litigator of the Year” by Who’s Who Legal

(an unprecedented seven times, including in 2013).141

Other examples of how the LSAT could be made more accommodating to all test-takers include permitting earplugs or

reducing the length of the LSAT, possible by making the experimental section, or the writing section, which is *100

sometimes not even considered by law schools, optional.142 Making the LSAT more accommodating to all test-takers could

save LSAC resources spent on avoidable accommodation requests and litigation, and most importantly, reduce the

differential, adverse impact on individuals with disabilities. Modernizing the LSAT is consistent with the modernization of

other standardized tests.143

If LSAC’s accommodation processes continue to raise concerns of a violation of the ADA, the possibility exists for further

United States litigation. A Canadian lawsuit could also be brought forward by one of the Human Rights Commissions. For

instance, if it believes that the LSAT accommodation process indicates a pattern of unjustified systemic discrimination,

contrary to the public interest, the OHRC may apply to the Tribunal for an order to comply with the Ontario Human Rights

Code.144 If the LSAT continues to raise discrimination concerns, the possibility also exists that an action could be brought

forward against Canadian law schools for using a discriminatory product or participating in a discriminatory process.145

4. RECOMMENDATIONS FOR CANADIAN LAW SCHOOLS



Reliance on the LSAT by Canadian law schools in making admission decisions is of concern given the history of systemic

discrimination against minority groups in the context of race, ethnicity, gender, and, of course, disability.146 The Rules of

Professional Conduct require lawyers to “encourage *101 public respect for and try to improve the administration of

justice.”147 For the public, specifically individuals with disabilities, to respect the administration of justice, Canadian law

schools should lead and teach by example that, although administration of the LSAT may simplify the admission process for

law schools, convenience should not justify a potentially discriminatory process that adversely impacts minority groups

protected under the Charter and provincial human rights legislation. Below are five recommendations for Canadian law

schools with respect to the admission process.

(a) Investigate Barriers in the Law School Admission Process

It is disconcerting that systemic LSAT discrimination concerns in the United States have gone unresolved for so long, and

that they have yet to be fully addressed in the Canadian context. Law schools in Canada should conduct research to identify

and remove barriers that individuals with disabilities experience in the law school admission and participation process.148

(b) End Use of the LSAT

Given that LSAC has a history of acting contrary to Canadian disability law or practice, Canadian law schools should end

their use of the LSAT, especially until LSAC’s disability accommodation problems are resolved.149 Law schools did not

always use the LSAT.150 Currently, English common law programs in Canada require applicants to take the LSAT. However,

French as well as combined English and French civil law and common law programs in Canada demonstrate that the LSAT is

unnecessary.151 Removing the LSAT requirement *102 invites a diverse applicant pool that may otherwise have been

prevented or deterred from applying to law schools.

Alternatively, law schools could make the LSAT optional for students; however, this is not ideal because applicants may still

feel pressured to complete the LSAT and deal with its adverse impacts.152

(c) Explore an Alternative to the LSAT

Admittedly, law schools in Canada may still desire a way to quantitatively compare applicants to one another. If a

standardized test is desirable, law schools can pursue the possibility of either administering an exam individually to

prospective applicants, or of collaborating to establish a novel standardized test administered by a provincial or Canadian

organization.

(d) Increase Focus on Qualitative, Individualized Assessment

Standardized testing fails to consider personal and environmental factors that can impact test scores.153 Rather than focus on

LSAT scores, law schools should focus more on individualized assessments of candidates. Most, if not all, Canadian law

schools require information from applicants, such as reference letters, statements of interests, and history of extracurricular or

work experience. However, universities place different, sometimes negligible, emphasis on qualitative factors. For example,

letters of recommendation submitted to the University of Toronto Faculty Of Law “will not form part of [an] applicant’s

file.”154 Most Canadian law schools do not conduct interviews.155

(e) Investigate the Validity of the LSAT in Canada

Canadian law schools should be able to demonstrate that the LSAT is a justifiably accurate predictive tool of law school

success. Although LSAC itself urges Canadian law schools to regularly evaluate the predictive validity of the LSAT “[i]n

order to assist in assuring that there is a demonstrated relationship between quantitative data used in the selection process and

actual performance in *103 [their] law school,”156 it is unclear if Canadian law schools do so.157 To truly understand the

validity of the LSAT for Canadian law schools, it is vital that any validity research be based on data from law schools in

Canada, as opposed to law schools from other countries.

CONCLUSION



David Lepofsky states, “Most barriers confronting disabled persons can be readily eradicated if sufficient attention and

imagination is applied to the problem.”158 With the recommendations provided above, it is possible to identify and remove

barriers that individuals with disabilities experience when pursuing admission to law school, and by extension, the legal

profession. As far back as 1999, Tong & Pue stated that Canadian law schools “are now in the habit of relying on a foreign

I.Q. test to guard the portals of the Canadian legal profession. It is time to re-evaluate our assumptions and our practices. We

are morally bound to do so.”159 The conveniences involved in using the LSAT in Canada do not outweigh the inconveniences

that Canadians with disabilities experience in pursuing law school admission. The time to address LSAT’s issues in the

Canadian context is long overdue. The time is now.

Footnotes

a1 Maria Nunez is a J.D. student in the Faculty of Law at Queen’s University. Prior to law school, she obtained a B.A. First-class

Honours in psychology from the University of Calgary. Maria worked as an aid for youth and adults with disabilities, and

volunteered for various organizations including Calgary Legal Guidance, the Calgary Counselling Centre, and the Calgary Distress

Centre. In 2012, she received the Aird & Berlis LLP / Women’s Law Association of Ontario Advocacy Award. In 2014, Maria

completed an externship with the Ontario Human Rights Commission and was a summer research student for the Law Commission

of Ontario. The author would like to thank Professor Beverley Baines for her invaluable mentorship and Brian Petersen for his

boundless support. Thanks also to the many advocates and every-day heroes, in a list too long to mention, who walk the equity talk.

1 Office of Public Affairs, Justice Department Intervenes in Lawsuit Against Law School Admission Council on Behalf of Test

Takers with Disabilities Nationwide (18 October, 2012), online: U.S. Department of Justice <

http://www.justice.gov/opa/pr/2012/October/12-crt-1261.html> [Department of Justice, 2012]; Americans with Disabilities Act,

USC, tit III §§ 12182, 12189 (1990) [ADA].

2 Office of Public Affairs, Law School Admission Council Agrees to Systemic Reforms and $7.73 Million Payment to Settle Justice

Department’s Nationwide Disability Discrimination Lawsuit (May 20, 2014), online: U.S. Department of Justice, < http://www.justice.gov/opa/pr/law-school-admission-council-agrees-systemic-reforms-and-773-million-payment-settle-justice>.

3 Individuals in Canada may bring discrimination complaints forward to their provincial human rights tribunal.

4 Law School Admission Council, “About the LSAT” (2015), online: LSAC < http://www.lsac.org>. Wendy Margolis & Bonnie

Gordon, eds, LSAC Report, NO. 2013-1 (Newtown, PA: Law School Admission Council, May 2013) at 8. Other foreign countries

may also have different human rights disability accommodation practices from the United States; however, this article focuses on the Canadian context.

5 Law School Admission Council, “LSAT Scores As Predictors of Law School Performance” (2015), online: LSAC <

http://www.lsac.org/jd/lsat/your-score/lawschool-performance> [LSAC, “LSAT predictors”]. See also Law School Admission

Council, “Score Bands” (2014), online: LSAC < http://www.lsac.org>. (Test-takersraw scores--the number of questions answered

correctly--are converted into LSAT scores ranging from 120, the lowest possible score, to 180, the best possible score. LSAT

scores are then reported with a score band “designed to include the test taker’s actual proficiency level in approximately 68 percent of cases”).

6 Ibid. LSAC, “LSAT predictors”, supra note 5.

7 Ibid. A correlation coefficient close to 0.0 has little to no predictive validity. The closer a coefficient is to 1.0, the higher its

predictive validity. LSAC’s 2010 study of 189 law schools found that the correlations between FYGs and LSAT scores ranged



from .12 to .56 (median .36), correlations between FYGs and UGPA ranged from .09 to .45 (median .28), and correlations between FYGs and LSAT scores combined with UGPA ranged from .30 to .62 (median .48).

8 See e.g. Ian Weinstein, “Testing Multiple Intelligences: Comparing Evaluation by Simulation and Written Exam” (2001) 8:1

Clinical L Rev 247: “The LSAT is the most important factor in law school admissions”; Law School Admission Council, “How

Law Schools Select Applicants” (2014), online: LSAC < http://www.lsac.org> [LSAC, “How schools select”]: “low LSAT scores will hamper your chances for admission, particularly at the most competitive schools.”

9 Dawna Tong & W Wesley Pue, “The Best and the Brightest?: Canadian Law School Admissions” (1999) 37:4 Osgoode Hall LJ

843 at 849-850 (Special Access programs still place emphasis on LSAT scores).

10 Andrews v. Law Society (British Columbia), [1989] 1 S.C.R. 143, 56 D.L.R. (4th) 1 (S.C.C.) at para 31.

11 Law School Admission Council, “Policy on Prior Testing Accommodations” (2014), online: LSAC < http://www.lsac.org>

[LSAC, “Prior Testing”]. But see Loring C Brinckerhoff & Manju Banerjee, “Misconceptions Regarding Accommodations on

High-Stakes Tests: Recommendations for Preparing Disability Documentation for Test Takers with Learning Disabilities” (2007)

22:4 Learning Disabilities Research&Practice 246 at 253 (an accommodation process may be daunting if “a history of

accommodations on a high-stakes test [ ... ] does not guarantee that the same accommodation will be granted on another

high-stakes test”).

12 LSAC, “Prior Testing”, supra note 11.

13 Law School Admission Council, “Checklist for Documenting Accommodations Requests (no prior accommodations)” (2014),

online: LSAC < http://www.lsac.org>; Law School Admission Council, “Candidate Form” (2014), online: LSAC <

http://www.lsac.org> [LSAC, “Candidate Form”]; Law School Admission Council, “Eva-luator Form” (2014), online: LSAC <

http://www.lsac.org> [LSAC, “Evaluator Form”]; Law School Admission Council, “Guidelines for Documentation of Cognitive Impairments” (2014), online: LSAC < http://www.lsac.org>.

14 Ontario Human Rights Commission, Minds that Matter: Report on the Consultation on Human Rights, Mental Health and Addictions (Toronto: OHRC, 2012) at 6 [OHRC, Minds that Matter].

15 Allan McChesney et al. “Navigating Law School and Beyond: A Practical Guide for Students Who Have Disabilities” (Ottawa: Reach Canada, 2000) at 15.

16 Law School Admission Council, “Accommodations For Persons With Disabilities” (2015), online: LSAC < http://www.lsac.org>.

See ADA, supra note 1 at § 12102 fully defines disability as “(A) a physical or mental impairment that substantially limits one or

more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an

impairment.” ADA examples of “major life activities include, but are not limited to, caring for oneself, performing manual tasks,

seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working [and the operation of major bodily functions].”

17 Service Canada, “What we mean by ‘disability”’ (2013), online: <

http://www.servicecanada.gc.ca/eng/services/pensions/cpp/disability/definition.shtml>.

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18 Admittedly, the Ontario Disability Support Program Act, SO 1997, c 25, Schedule B, s 4(1) states that a person has “a disability

for the purposes of this Part if, (a) the person has a substantial physical or mental impairment that is continuous or recurrent and

expected to last one year or more; (b) [the impairment] results in a substantial restriction in [daily living activities].” Also, to

qualify for the Canada Pension Plan disability benefit, a disability must be “severe” and “prolonged” (Service Canada, supra note

17). However, these services involve distributing finances, in contrast to the ADA, which purports to eliminate discrimination against individuals with disabilities (ADA, supra note 1 at § 12101(b)), consistent with Canadian human rights legislation.

19 Human Rights Code, RSO 1990, c H 19, s 10(1) [Ontario Human Rights Code]; Accessibility for Ontarians with Disabilities Act,

2005, SO 2005, c 11, s 2, Ontarians with Disabilities Act, 2001, SO 2001, c 32, s 2(1); Human Rights Act, SNWT 2002, c 18, s 1

[emphasis added]. Similarly, Human Rights Act, RSNB 2011, c 171, s 2 defines “physical disability” as “any degree of disability,

infirmity, malformation or disfigurement of a physical nature caused by bodily injury, illness or birth defect ...” and “mental

disability” as “(a) a condition of mental retardation or impairment, (b) a learning disability, or dysfunction in one or more of the mental processes involved in the comprehension or use of symbols or spoken language, or (c) a mental disorder.”

20 The Saskatchewan Human Rights Code, SS 1979, c S-24.1, s 2 (d.1) [emphasis added].

21 Alberta Human Rights Act, RSA 2000, c A-25.5, s 44 (1)(l); Human Rights Act,RSY2002, c 116, s 37 [emphasis added].

22 Ibid. Alberta Human Rights Act, RSA 2000, c A-25.5, s 44 (1)(h) [emphasis added].

23 Human Rights Act, 2010, SNL 2010, c H-13.1, s 2. See also Human Rights Act, RSPEI 1988, c H-12, s 1 defines “disability” as “a

previous or existing disability, infirmity, malformation or disfigurement, whether of a physical, mental or intellectual nature, that is

caused by injury, birth defect or illness”; Human Rights Act, RSNS 1989, c 214, s 3 (l) defines “physical disability or mental

disability” as “an actual or perceived (i) loss or abnormality of psychological, physiological or anatomical structure or function, (ii)

restriction or lack of ability to perform an activity, (iii) physical disability, infirmity, malformation or disfigurement ..., (iv)

learning disability or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken

language, (v) condition of being mentally impaired, (vi) mental disorder, or (vii) dependency on drugs or alcohol.” Neither the

Human Rights Code, RSBC 1996, c 210, s 1, The Human Rights Code, CCSM c H175, s 1, or the Charter of Human Rights and

Freedoms, CQLR c C-12 define “disability” or “handicap.”

24 See e.g. Sarah Triano, “‘I’ll Believe It When I See It’: People with Non-Apparent Disabilities Living In-Between the

Able/Disabled Divide” (2004), online: World Institute on Disability <

http://wid.org/center-on-economic-growth/programs-of-the-center-on-economic-growth/access-to-assets/equity/equity-e-newsletter

-october-2004/ill-believe-it-when-i-see-it-people-with-non-apparent-disabilities-living-in-between-the-able-disabled-divide>

(individuals with non-evident disabilities may feel caught “living in-between two worlds”, fearing rejection from the disabled

community as “not disabled enough” and rejection in the non-disabled community as “disabled”).

25 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK),

1982, c 11, s 15(1): “Every individual is equal before and under the law and has the right to the equal protection and equal benefit

of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour,

religion, sex, age or mental or physical disability” [Charter]. Law Society of Upper Canada, Students and Lawyers with Disabilities

- Increasing Access to the Legal Profession, Report of the Disability Working Group (December 2005) at 13-17 [LSUC,

“Increasing Access”]. See Peter W Hogg, Constitutional Law of Canada, student ed (Toronto: Thomson Reuters Canada, 2013) at 55.19: “Unlike the other grounds of discrimination, mental or physical disability is, by definition, an impairment in ability.”



26 Québec (Commission des droits de la personne & des droits de la jeunesse) c. Montréal (Ville), 2000SCC27, [2000] 1 S.C.R. 665

(S.C.C.) at paras. 34, 71-76 [Montreal]. The case examined the definition of “handicap” used in the Quebec Charter of Human Rights and Freedoms, instead of the term “disability”; however, “handicap” is used less frequently in English.

27 Ibid at paras 76, 82.

28 ADA, supra note 1 at § 12102(4)(a).

29 See e.g. Rothberg v. Law School Admission Council, Inc., 300 F.Supp.2d 1093 (D. Colo., 2004) (Rothberg v. Law School

Admission Council, Inc., 2004 U.S. App. LEXIS 11824 (10th Cir., 2004)), reversed by Rothberg v. Law School Admission

Council, Inc. 102 Fed.Appx. 122 (10th Circ. Colo., 2004) [Rothberg] (LSAC denied the complainant accommodations three times.

Despite a history of accommodations since childhood and evaluations from learning disability experts concluding that the

complainant had a learning disability, which substantially limited her ability to read and write, LSAC nevertheless deemed her

impairment unsubstantial).

30 Edward Dunn, “An Opportunity to Be Heard: A Call for Impartiality in the Law School Admission Council’s Disability

Accommodation Review Process” (2013) 33:1 Boston College Journal of Law & Social Justice 183 at 188: “ambiguity over what

constitutes a substantial limitation creates uncertainty as to which line of reasoning a court might adopt in a given case and leaves individuals [ ... ] in the difficult position of choosing between rolling the dice with litigation or simply moving on.”

31 ADA, supra note 1 at §§ 12101(a)(8), 12101(b)(5)-(6).

32 Ibid at § 12101(b)(4).

33 See e.g. Rothberg, supra note 29 at para 21, citing 29 C.F.R. § 1630.2(j)(1)(ii).

34 Katharina Kovacs Burns & Gary L Gordon “Analyzing the Impact of Disability Legislation in Canada and the United States”

(2010) 20:4 Journal of Disability Policy Studies 205 at 210.

35 Michael J Prince “What about a Disability Rights Act for Canada? Practices and Lessons from America, Australia, and the United

Kingdom” (2010) 36:2 Can Pub Pol’y 199 at 202-243.

36 OHRC, Minds that Matter, supra note 14 at 22.

37 Carolyn Tyjewski, “Ghosts in the Machine: Civil Rights Laws and the Hybrid ‘Invisible Other”’ in Dianne Pothier & Richard

Devlin, eds, Critical Disability Theory: Essays in Philosophy, Politics, Policy, and Law (Vancouver: UBC Press, 2006) 106 at 122:

“[S]tereotyping of the ‘truly’ disabled [makes individuals] both legally non-disabled and discriminated against because of disability.”

38 Prince, supra note 34 at 203-04.



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39 ADA, supra note 1 at § 12101(a)(5) [emphasis added].

40 Law Commission of Ontario, A Framework for the Law as It Affects Persons with Disabilities: Advancing Substantive Equality for

Persons with Disabilities through Law, Policy and Practice (Toronto: September 2012) at 19.

41 Montreal, supra note 26 at paras 34, 36, 71-76.

42 Burns & Gordon, supra note 34 at 205.

43 Ibid at 214.

44 Prince, supra note 35 at 200.

45 See e.g. Quebec (Attorney General) v. A., 2013 SCC 5, 354 D.L.R. (4th) 191 (S.C.C.), wherein Abella J. emphasizes that it is

necessary to look at the discriminatory impact and conduct, rather than a discriminatory attitude. Accord Withler v. Canada

(Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396 (S.C.C.); R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483 (S.C.C.) at para 17.

46 Moore v. British Columbia (Ministry of Education), 2012 SCC 61, [2012] 3 S.C.R. 360 (S.C.C.) at para 49 [Moore]. Accord

British Columbia (Public Service Employee Relations Commission) v. B.C.G.E.U., (sub nom. British Columbia (Public Service Employee Relations Commission) v. BCGSEU) [1999] 3 S.C.R. 3 (S.C.C.) at para 38.

47 Ontario Human Rights Commission, Policy and Guidelines on Disability and the Duty to Accommodate (Toronto: OHRC, 2000) at 12 [OHRC, Policy on Disability].

48 Law Commission of Ontario, supra note 40 at 19. See LSUC, “Increasing Access”, supra note 25 at 67, wherein “it was decided that the consultation would proceed without a fixed definition [of disability].”

49 See e.g. OHRC, Policy on Disability, supra note 47 at 22-33; ADA, supra note 1 at § 12111(10).

50 William Shakespeare, Romeo and Juliet. Atragedy (Edinburgh: Martin & Wotherspoon, 1768), at British Library, Microfeel #: Eighteenth Century Collections Online: Range 8711, at Act II Scene II.

51 Triano, supra note 40 (“you’re not disabled enough” is a stereotypical reaction that individuals with non-apparent disabilities experience).

52 Americans with Disabilities Act Title III Regulations, 28 CFR § 36.309 (b)(1)(iv) (2010).









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53 See e.g. Moore, supra note 46 (a student with a learning disability did not have meaningful access to education); Eldridge v.

British Columbia (Attorney General), [1997] 3 S.C.R. 624, 151 D.L.R. (4th) 577 (S.C.C.) at para. 71 (deaf individuals, not

provided with sign language interpreters, did not have meaningful access to medical care); Berg v. University of British Columbia,

(sub nom. University of British Columbia v. Berg) [1993] 2 S.C.R. 353, 102 D.L.R. (4th) 665 (S.C.C.) at pp. 381-382 [S.C.R.],

additional reasons 1993 Carswell BC 2964 (S.C.C.) (a student with a disability unjustifiably denied access to university accommodations, facilities, and services did not have meaningful access to a university education).

54 Law School Admission Council, “Frequently Asked Questions” (2015), online: LSAC < http://www.lsac.org [LSAC, “FAQ”].

55 Teri Hibbs & Dianne Pothier, “Post-Secondary Education and Disabled Students: Mining a Level Playing Field or Playing in a

Minefield?” in Pothier & Devlin, eds, Critical Disability Theory: Essays in Philosophy, Politics, and Law (Vancouver: UBC Press, 2005) 106 at 209: “for a permanent condition, why is current documentation necessary?”

56 LSAC, “FAQ”, supra note 54 at 1.

57 LSAC, “Candidate Form”, supra note 13 at 2.

58 Rothberg, supra note 29 at footnote 1 [emphasis added].

59 For an alternate list of factors that can delay the identification of a disability, see Ruth Colker et al., Final Report of the “Best

Practices” Panel (2015), online: LSAC < http://www.lsac.org>.

60 See e.g. Ruffolo v. York University, 2009 HRTO 1086, [2009] O.H.R.T.D. No. 1061 (Ont. Human Rights Trib.) [Ruffolo].

61 Paul L Morgan et al. “Are Minority Children Disproportionately Represented in Early Intervention and Early Childhood Special

Education?” (2012) 41:9 Educational Researcher 339; World Health Organization, World Report on Disability (Geneva: WHO,

2011) at 262: “children from poorer households and those in ethnic minority groups are at significantly higher risk of disability than other children.”

62 Candice Daiken, “The Voice of Young Adults with Learning Disabilities: Their Perceptions of Elementary and Secondary

Schooling” (Canadian thesis, Queen’s University, 14 August 2012) at 9-19, 114-16: “Often parents have little or no knowledge

about [a learning disability] before their child becomes identified.”

63 Ibid at 22-30; Hazel Denhart, “Deconstructing Barriers: Perceptions of Students Labeled With Learning Disabilities in Higher

Education” (2008) 41:6 Journal of Learning Disabilities 483 at 492-94.

64 Ibid at 485, 491, 493; Brinckerhoff & Banerjee, supra note 11 at 251 (gifted individuals with learning disabilities often do not

experience difficulties until later in their academic careers when learning tasks become more challenging).










65 See e.g. Bartlett v. New York State Bd. of Law Examiners, 2001 WL 930792 (S.D. N.Y.), wherein Sotomayor J. said: “A

definition of disability based on [test] outcomes alone, particularly in the context of learning disabilities, would prevent a court

from finding a disability in the case of any individual like Dr. Bartlett who is extremely bright and hardworking, and who uses

alternative routes to achieve academic success .... [T]est scores alone are insufficient for diagnosing learning disabilities”;

Rothberg, supra note 29 at para 31: “Plaintiff’s ability to compensate for her deficiencies does not support a finding that Plaintiff is

not substantially impaired, and I will not penalize Plaintiff for her compensation” (the complainant allegedly compensated her learning disability by randomly guessing on about one third of the LSAT when written without accommodations).

66 Law Commission of Ontario, supra note 40 at 11.

67 See e.g. LSAC, “FAQ”, supra note 54 at 1.

68 See e.g. LSAC, “FAQ”, supra note 54. Dunn, supra note 29 at 202: “LSAC’s requirements concerning documentation are clearly

enumerated and legally supported; however, LSAC’s process of review [ ... ] is much less clear.”

69 Department of Justice, 2012, supra note 1.

70 Letter from Claudia Center, Director of the Disability Rights Program at the Legal Aid Society - Employment Law Center, to The

Honourable David I Brown (January 24, 2013) at 2, online: National Association of Law Students with Disabilities < http://www.nalswd.org/uploads/2/6/4/3/2643655/00304023.pdf>.

71 Laura A Lauth, Andrea Thorton Sweeney & Lynda M Reese, Accommodated Test-Takers Trends and Performance for the June

2007 Through February 2012 LSAT Administrations (Newtown, PA: Law School Admission Council, 2012) at 1, 5.

72 The Department of Fair Employment and Housing v. Law School Admission Council, Consent Decree, Case No. CV

12-1830-EMC (N.D. Cal., 2014), online: < http://www.ada.gov/lsac_consentdecree.htm#_ftnref3>.

73 Colker et al., supra note 59.

74 Ibid. Refer to the Final Report for information about the Panel’s recommendations dealing with excessive documentation.

75 Love v. Law School Admission Council, Inc., 513 F.Supp.2d 206 (E.D. Pa., 2007) at I.A. and footnote 4: “Within LSAC, Dr.

Dempsey is solely responsible for making the decision as to whether an individual qualifies for an accommodation. She is not a licensed psychologist.”

76 Settlement Agreement Between The United States of America and The Law School Admission Council, Inc., Department of

Justice Complaint Nos. DJ 202-62-34; 55; 56;62;79 (2002), online: < http://www.ada.gov/lsac_2002.htm>.

77 Colker et al., supra note 59: “Despite this [ADA] Guidance, LSAC has rejected requests for testing accommodations even in cases

where there is a clear history of the existence of a disability and the provision of prior testing accommodations.”





78 Robert D Wilton, “Working at the Margins: Disabled People and the Growth of Precarious Employment” in Pothier & Devlin, supra note 55 at 132, 142.

79 Arlene Amodeo et al. Predictive Validity of Accommodated LSAT Scores for the 2002-2006 Entering Law School Classes, LSAT Technical Report 09-01 (Newtown, PA: Law School Admission Council, March 2009) at 5-6.

80 Ruffolo, supra note 60.

81 See e.g. Ellen B Mandinach, Cara Cahalan & Wayne J Camara, The Impact of Flagging on the Admission Process: Policies,

Practices, and Implications, Research Report No. 2002-2 (New York: College Board, 2002) at 15, wherein a disability service

provider said: “I worry deeply that those without the money and means to secure such letters of diagnosis and who have bona fide

disabilities are being shut out from opportunities while some without a bona fide disability, but the political and financial clout are getting accommodations.”

82 See e.g. Oxford Seminars “How to Register” (2015), online: < http://www.oxfordseminars.ca/LSAT/lsat_how_to_register.php> (a

48-hour course costs almost $1,000); Macleans, “Law school in Canada: what will it cost?” (2014), online: <

http://www.macleans.ca/education/university/law-school-in-canada-what-will-it-cost/> (tuition costs at Canadian law schools

range from around $3,000 to $30,000, excluding other compulsory fees).

83 Rothberg, supra note 29 at para 44.

84 Cohen v. Law School Admission Council, 2014 HRTO 537, [2014] O.H.R.T.D. No. 547 (Ont. Human Rights Trib.) at paras. 115-123 [Cohen, 2014].

85 Fisher v. York University, 2011HRTO1229, [2011] O.H.R.T.D. No. 1241 (Ont. Human Rights Trib.) at para. 43.

86 Hibbs & Pothier, supra note 55 at 209 assert that “rigid documentation requirements are an overreaction that will work hardship on many disabled students.”

87 Ibid at 211.

88 College Board, “Providing Documentation” (2015), online: <

https://www.collegeboard.org/students-with-disabilities/documentation-guidelines>.

89 Educational Testing Service, “Bulletin Supplement for Test Takers with Disabilities or Health-Related Needs” (2015) at 9, 18, online: ETS < http://www.ets.org/s/disabilities/pdf/bulletin_supplement_test_takers_with_disabilities_health_needs.pdf>.

90 Law Society of Upper Canada, “Policy and Procedures for Accommodations for Candidates in the Lawyer Licensing Process”





(2014), online: LSUC < http://www.lsuc.on.ca> [LSUC, “Accommodations Policy”].

91 Law Society of Upper Canada, “Special Needs Accommodation” (2014), online: LSUC <

http://www.lsuc.on.ca/SpecialNeedsAccommodation>.

92 Law School Admission Council, “About LSAC” (2015), online: LSAC < http://www.lsac.org>.

93 LSUC, “Accommodations Policy”, supra note 90; OHRC,Minds that Matter, supra note 14 at 42, citing Andrea Davis, “DM

Diagnostic” (1 March 2006), online: Benefits Canada <www.benefitscanada.com/news/dm-diagnostic-8220>, retrieved May 3, 2012; David Brown, CIBC’s Disability Management Principles [unpublished slide presentation].

94 Charter, supra note 25, s 11(d): “Any person charged with an offence has the right [ ... ] to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.”

95 See e.g. Carlisle v. Law School Admissions Council, 2003 BCHRT 152, [2003] B.C.H.R.T.D. No. 152 (B.C. Human Rights Trib.)

[Carlisle, 2003] (the complainant alleged discrimination after LSAC denied his request for disability accommodations, which he

was presently receiving in university).

96 Cohen, 2014, supra note 84 at para 129.

97 ARCH Disability Law Centre, “Your Rights in Post-Secondary Education” (28 March 2013) (Power Point) at 7.


99 World Health Organization, supra note 61 at 269.

100 Law School Admission Council, “Welcome” (2015), online: LSAC < http://www.lsac.org>. LSAC’s “Diversity in Law School”

section contains information for “Racial/Ethnic Minority Applicants” and “LGBT Applicants”.

101 See e.g. Law School Admission Council, “LGBT Applicants” (2015), online: LSAC < http://www.lsac.org>.

102 Association of American Medical Colleges, “Financial Assistance for Psychoeducational or Medical Re-evaluations” (2015),

online: AAMC < https://www.aamc.org/students/applying/mcat/accommodations/financial/>.

103 Carlisle, 2003, supra note 95 at para 3. See also Carlisle v. Law School Admission Council, 2004 BCHRT353, [2004]

B.C.H.R.T.D. No. 377 (B.C. Human Rights Trib.) at para. 9.

104 Carlisle, 2003, supra note 95 at para 10.






105 PIPEDA Case Summary No. 2008-389, Re 2008 Carswell Nat 6820 (Can. Privacy Commr.) at paras 60, 75-76 [PIPEDA].

106 Ibid at paras 41-45.

107 Ibid at para 61.

108 Ibid at para 75.

109 See e.g. Arenson v. Law School Admission Council Inc., 2010 HRTO 38, [2010] O.H.R.T.D. No. 46 (Ont. Human Rights Trib.) at

para. 17 (The Ontario Human Rights Tribunal concurred with Carlisle: “There is ... clearly a strong connection between the

applicant and Ontario, as well as some connection between the respondent and Ontario, and, given the fact that the applicant has no

connection to Pennsylvania, the unfairness to the applicant in not assuming jurisdiction outweighs any unfairness to the

respondent”); Cohen v. Law School Admission Council, 2011 HRTO 703, [2011] O.H.R.T.D. No. 707 (Ont. Human Rights Trib.)

at paras. 10-15.

110 Dunn, supra note 30 at 188-89.


112 Law School Admission Council, “Policies and Procedures Governing Challenges to LSAT Questions” (2015), online: LSAC < http://www.lsac.org/>: “Despite these precautions, on rare occasions, an error or ambiguity may be found [ ... ] by a test taker”.

113 Dunn, supra note 30 at 213: “LSAC has denied accommodations to individuals with cognizable disabilities, showing that its process suffers from inconsistency and human error.”

114 LSUC, “Accommodations Policy”, supra note 103.


116 McChesney et al, supra note 15 at 15.

117 Law School Admission Council, “About the LSAT video” at 45 seconds (2014), online: LSAC <

http://www.lsac.org/jd/choosing-a-law-school/law-school-recruitment-forums-aboutlsatvideo>.

118 Ibid at 17:30 min.






119 Graduate Management Admission Council, “GMAT Exam Administration Rules” (2015), online:GMAC<

http://www.mba.com/global/the-gmat-exam/prepare-for-thegmat-exam/plan-for-test-day/gmat-administration-rules.aspx>;

Association of American Medical Colleges, “The MCAT Essentials for Testing Year 2015” (2015) at 6, online: AAMC < https://www.aamc.org/students/download/63060/data/mcatessentials.pdf> [AAMC, “The MCAT”].

120 College Board, “SAT Suit of Assessments” (2015), online: < https://collegereadiness.-collegeboard.org/sat/test-design>.

121 Educational Testing Service, “Test Content and Structure” (2015), online: ETS <

http://www.ets.org/gre/revised_general/about/content/>.

122 AAMC, “The MCAT”, supra note 119 at 25-26.

123 Graduate Management Admission Council, GMAT Handbook Supplement for Test Takers with Disabilities (Reston, VA: GMAC,

2014) at 4.


125 Amodeo et al, supra note 77 at 1.

126 Ibid at 32.

127 Tong & Pue, supra note 9 at 857.

128 Lisa C Anthony, Susan P Dalessandro, & Lynda M Reese, Predictive Validity of the LSAT: A National Summary of the 2011 and

2012 LSAT Correlation Studies, LSAT Technical Report 13-03 (Newtown, PA: Law School Admission Council, November 2013)

at 1; Lisa Anthony Stilwell, Susan P Dalessandro, & Lynda M Reese, Predictive Validity of the LSAT: A National Summary of the

2009 and 2010 LSAT Correlation Studies, LSAT Technical Report 11-02 (Newtown, PA: Law School Admission Council, October 2011) at 1.

129 Susan P Dalessandro, Lisa C Anthony & Lynda M Reese, LSAT Performance with Regional, Gender, and Racial/Ethnic

Breakdowns: 2005-2006 Through 2011-2012 Testing Years, LSAT Technical Report 12-03 (Newtown, PA: Law School

Admission Council, October 2012) at 2: “Canadian and foreign test takers had slightly higher mean LSAT scores than test takers

from the United States”.

130 Mandinach, Cahalan & Camara, supra note 81 at 8.

131 Amodeo et al, supra note 79 at 24-25.

132 Ibid at 2.



133 Students with disabilities continue to face systemic barriers, prejudice, and disability stereotypes, even within law faculties. See

e.g. LSUC, “Increasing Access”, supra note 18 at 73 (law schools may offer inadequate accommodations, or grant

accommodations in a non-timely fashion that affects the student in need or exacerbates their symptoms); McChesney et al, supra

note 15 at ch 5-6, 9, 12, 15 (Accommodation confidentiality may be violated, resulting in fear to request future help, and

accommodations may be perceived as lowering the standards or favouritism. For instance, a deaf law graduate reported

experiencing prejudice when two professors deemed note taking assistance to be an unfair advantage); Hibbs & Pothier, supra note

55 at 200-15 (the accommodation process in university settings raises concerns of surveillance and power imbalances; OHRC, Minds that Matter, supra note 14 at 33 (power imbalances can create fear of complaining about mistreatment).

134 McChesney et al, supra note 15 at 15.

135 LSAC, “LSAT predictors”, supra note 5.

136 Law School Admission Council, “LSAT Fairness Procedures” (2015), online: LSAC < http://www.lsac.org> [LSAC, “Fairness

Procedures”].

137 Tong & Pue, supra note 9 at 866.

138 Dolores J Blonde et al, “The Impact of Law School Admission Criteria: Evaluating the Broad-Based Admission Policy at the University of Windsor Faculty of Law” (1998) 61:2 Sask L Rev 529 at 556.

139 William C Kidder, “Portia Denied: Unmasking Gender Bias on the LSAT and Its Relationship to Racial Diversity in Legal Education” (2000) 12:1 Yale JL & Feminism 1 at 29 [Kidder, “Portia Denied”].

140 Ruth Colker, “Extra Time as an Accommodation” (2008) 69:3 U Pitt L Rev 413 at 419.

141 The Yale Center for Dyslexia & Creativity, “David Boies, Attorney” (2015), online: < http://dyslexia.yale.edu/boies.html> Boies, Schiller & Flexner LLP, “David Boies” (2015), online: < http://www.bsfllp.com/lawyers/data/0001>.

142 Pre-Law Advising, “Survey on LSAT Unscored Writing Sample” (January 29, 2007), online: University at Buffalo <

http://blogs.prelaw.buffalo.edu/advising/survey-onlsat-unscored-writing-sample-2/> (in 2006, LSAC found that of 157 North

American law schools, 25.3% “seldom” and 6.8% “never” use the LSAT writing sample to evaluate a candidate).

143 See e.g. College Board, “Key Content Changes” (2015), online: <

https://collegereadiness.collegeboard.org/sat/test-design/key-changes> (the SAT format will change in 2016); Association of

American Medical Colleges, “Changing the MCAT Exam” (2015), online: <

https://www.aamc.org/students/applying/mcat/about/422306/changing-themcat-exam.html> (Last revised in 1991, the MCAT format was changed in 2015).

144 Ontario Human Rights Code, supra note 19, ss 35(1), 45.3.



145 See e.g. Carlisle v. University of Victoria, 2009 BCHRT 352, [2009] B.C.H.R.T.D. No. 352 (B.C. Human Rights Trib.) (in this

case, the complainant brought a series of complaints against the university, alleging that he was denied admission because of his

disability. The ultimate complaint was dismissed as having no reasonable prospect of success because the complainant did not file

material that could support his assertion. However, the complainant did not “challenge the validity or usefulness of [ ... ] LSAT

scores as predictors of [potential success in law school]”, leaving this as something that could potentially be explored in future litigation).

146 See e.g. Kidder, “Portia Denied”, supra note 139; William C Kidder, “Does the LSAT Mirror or Magnify Racial and Ethnic

Differences in Educational Attainment?: A Study of Equally Achieving ‘Elite’ College Students” (2001) 89:4 Cal L Rev 1055.

147 Law Society of Upper Canada, Rules of Professional Conduct, effective October 1, 2014, s 5.6-1.

148 World Health Organization, supra note 61 at 269.

149 Richard Delgado, “Official Elitism or Institutional Self-Interest? 10 Reasons Why UC Davis Should Abandon the LSAT (and Why

Other Good Law Schools Should Follow Suit)” (2001) 34:3 UC Davis L Rev 593.

150 Interview with Arthur Braid and Cameron Harvey (2 October 1998), cited in Tong & Pue, supra note 9 at 852 (in 1968, the

University of Manitoba was the first law school in Canada to incorporate the LSAT score into its admissions criteria). See also

Christopher Guly, “Ths history of law schools in Canada” (September 24 2010), online: Lawyers Weekly <

http://canadian-lawyers.ca/Legal-Help-and-Resources/The-History-of-Law-Schools-in-Canada.html>.

151 For example, the LSAT is not required at McGill University or the French Common Law programs at the University of Ottawa or

Moncton University. See McGill University, “Law School Admission Test (LSAT)” (2015), online: McGill <

http://www.mcgill.ca/law-admissions/undergraduates/admissions/lsat>; Universitéd’Ottawa, Registrar Bulletin, Décembre 2012,

3e édition, 2e numéro (2012) at 3, online: uOttawa <

http://www.registraire.uottawa.ca/Portals/43/Registrar/Bulletin_ON_-Dec2012-final.pdf>; Universitéde Moncton, “French

Immersion Students” (2014), online: U de M < http://www.umoncton.ca/umcm-droit/node/88>.

152 Re-considering the use of standardized testing is a progressive move to adapt to changing times. See e.g. Rachel Giese & Caroline

Alphonso, “The debate over standardized testing in schools is as divisive as ever” (May 31, 2013), online: Globe and Mail <

http://www.theglobeandmail.com/news/national/education/the-debate-over-standardizedtesting-in-schools-is-as-divisive-as-ever/ar

ticle12299369/?page=all>: “[In 2014, Alberta began] to phase out its renowned Provincial Achievement Tests (PATs), one of the older and more comprehensive of the exams conducted in Canada.”

153 Dr. John Poulsen & Kurtis Hewson, “Standardized Testing: Fair or Not?” (2014), online: University of Lethbridge <

http://www.uleth.ca/teachingcentre/standardizedtesting-fair-or-not>.

154 University of Toronto Faculty of Law, “Application Procedure” (2015), online: U of T <

http://www.law.utoronto.ca/admissions/jd-admissions/application-procedure>.




155 LSAC, “How schools select”, supra note 8.

156 LSAC, “Fairness Procedures”, supra note 136.

157 Tong & Pue, supra note 9 at 852-57.

158 M. David Lepofsky, “Disabled Persons and Canadian Law Schools: The Right to the Equal Benefit of the Law School” (1991)

36:2 McGill LJ 636 at 639.

159 Tong & Pue, supra note 9 at 875-76.

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