Binno v. The American Bar Association

Filing 17

MOTION to Dismiss Plaintiff's Amended Complaint Or, Alternatively, Motion For Summary Judgment by The American Bar Association. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A - Excerpt of ABA Standards and Rules of Procedure for Approval of Law Schools, # 3 Exhibit B - Declaration of Hulett H. Askew, # 4 Exhibit C - Elder v National Conf. of Bar Examiners, et al) (Miller, Allyson)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ANGELO BINNO,
Plaintiff,
-vs-

Hon. Denise Page Hood
Case No. 2:11-cv-12247

THE AMERICAN BAR ASSOCIATION,
Defendant.

THE SAM BERNSTEIN LAW FIRM
Richard H. Bernstein (P58551)
Michael J. Blau (34834)
31731 Northwestern Hwy., Ste. 333
Farmington Hills, MI 48334
Phone: [phone]
Email: [e-mail]
[e-mail]

DICKINSON WRIGHT PLLC
David R. Deromedi (P42093)
Allyson A. Miller (P71095)
500 Woodward Ave., Ste. 4000
Detroit, MI 48226
Phone : [phone]
Email: [e-mail]
[e-mail]

Attorneys for Plaintiff

Peter H. Webster (P48783)
2600 W. Big Beaver Rd., Ste. 300
Troy, MI 48084
Phone: [phone]
Email: [e-mail]
Attorneys for Defendant

DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT
OR, ALTERNATIVELY, MOTION FOR SUMMARY JUDGMENT

Defendant American Bar Association (“Defendant” or the “ABA”), by and through its
attorneys Dickinson Wright PLLC, respectfully moves to dismiss the claims in Plaintiff Angelo
Binno’s (“Plaintiff”) Amended Complaint under Rule 12(b)(1) or Rule 12(b)(6) and,
alternatively, moves for summary judgment of those claims under Rule 56.
In support of its motion, Defendant relies upon the law and argument set forth in the
attached brief in support and exhibits, as well as the pleadings on file with the Court.
Defendant’s counsel sought Plaintiff’s concurrence in the relief requested herein, but
such concurrence was not forthcoming.
WHEREFORE, Defendant respectfully requests that the Court grant its Motion to
Dismiss Plaintiff’s Amended Complaint Or, Alternatively, Motion for Summary Judgment, and
dismiss Plaintiff’s Amended Complaint in its entirety with prejudice.

Respectfully Submitted,
DICKINSON WRIGHT PLLC
By:
/s/Allyson A. Miller
David R. Deromedi (P42093)
Allyson A. Miller (P71095)
500 Woodward Ave., Ste. 4000
Detroit, MI 48226
Phone : [phone]
Email: [e-mail]
[e-mail]
Peter H. Webster (P48783)
2600 W. Big Beaver Rd., Ste. 300
Troy, MI 48084
Phone: [phone]
Email: [e-mail]
Attorneys for Defendant
Dated: September 19, 2011

1

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ANGELO BINNO,
Plaintiff,
-vs-

Hon. Denise Page Hood
Case No. 2:11-cv-12247

THE AMERICAN BAR ASSOCIATION,
Defendant.

THE SAM BERNSTEIN LAW FIRM
Richard H. Bernstein (P58551)
Michael J. Blau (34834)
31731 Northwestern Hwy., Ste. 333
Farmington Hills, MI 48334
Phone: [phone]
Email: [e-mail]
[e-mail]

DICKINSON WRIGHT PLLC
David R. Deromedi (P42093)
Allyson A. Miller (P71095)
500 Woodward Ave., Ste. 4000
Detroit, MI 48226
Phone : [phone]
Email: [e-mail]
[e-mail]

Attorneys for Plaintiff

Peter H. Webster (P48783)
2600 W. Big Beaver Rd., Ste. 300
Troy, MI 48084
Phone: [phone]
Email: [e-mail]
Attorneys for Defendant

BRIEF IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S
AMENDED COMPLAINT OR, ALTERNATIVELY,
MOTION FOR SUMMARY JUDGMENT

TABLE OF CONTENTS
Page
TABLE OF PRINCIPAL AUTHORITIES ................................................................................III
QUESTION PRESENTED ........................................................................................................ VI
CONTROLLING OR MOST APPROPRIATE AUTHORITY ............................................... VII
I.

INTRODUCTION ............................................................................................................1

II.

ALLEGATIONS OF PLAINTIFF’S AMENDED COMPLAINT ...................................2
A.
B.

The LSAT Allegedly Disadvantages Blind Or Visually Impaired Test
Takers Like Plaintiff. ............................................................................................3

C.

Plaintiff Was Denied Admission To At Least Three Law Schools In The
State Of Michigan Because Of His Poor Performance On The LSAT. ................3

D.

The ABA Allegedly “Offers” The LSAT. ............................................................3

E.

III.

The ABA Promulgates Standards And Rules Of Procedure For Approval
Of Law Schools.....................................................................................................2

Plaintiff Claims That The ABA’s Accreditation Standards Both
Discriminate Against Him And Other Blind Or Visually Impaired Law
School Applicants And Interfere With Their Rights Under The ADA By
Allegedly Requiring That All Applicants Take The LSAT. .................................3

STATEMENT OF ADDITIONAL FACTS .....................................................................4
A.

B.

The ABA Standards Allow Law Schools To Seek A Variance From The
Alleged Requirement That All Applicants Take The LSAT As a
Prerequisite to Admission. ....................................................................................4

C.
IV.

The ABA Standards Do Not Require Law Schools To Assign A Certain
Weight To An Applicant’s LSAT Or Other Test Score When Making An
Admission Decision. .............................................................................................4

The ABA Does Not Develop Or Administer The LSAT. .....................................5

ARGUMENT ....................................................................................................................5
A.

Standards Of Review ............................................................................................5

B.

Plaintiff Lacks Standing To Bring His Claims Against The ABA. ......................6

i

1.

2.

C.

Plaintiff’s alleged inability to gain admission to a law school is not
“fairly traceable” to the ABA’s alleged requirement that all
applicants take a valid and reliable test.....................................................7
It is merely speculative that Plaintiff’s alleged inability to gain
admission to a law school will be redressed by a favorable decision
in this case. ................................................................................................9

Plaintiff’s Title III Discrimination Claim Fails As A Matter Of Law. ...............10
1.
2.

Alternatively, the ABA is entitled to summary judgment of
Plaintiff’s Title III claim because the ABA does not “offer” the
LSAT such that it is a covered entity. .....................................................13

3.
D.

Plaintiff fails to state a claim under Title III because he does not
allege facts sufficient to establish that the ABA “offers” the LSAT. .....10

Plaintiff may not take discovery to search for facts to cure his
deficient pleadings. .................................................................................14

Plaintiff’s Title V Interference Claim Fails As A Matter Of Law. .....................16
1.
2.

V.

Plaintiff does not allege facts sufficient to establish that the ABA is
a covered entity under the ADA with respect to the LSAT. ...................16
Plaintiff does not allege that the ABA acted with discriminatory
animus. ....................................................................................................18

CONCLUSION ...............................................................................................................20

ii

TABLE OF PRINCIPAL AUTHORITIES
Cases
Agranoff v. Law Sch. Admission Council, Inc., 97 F.Supp. 2d 86 (D. Mass. 1999) ..................... 12
Allen v. Wright, 468 U.S. 737 (1984) ............................................................................................. 6
Andonian v. Auto Alliance Int’l, Inc., No. 01-cv-73918, 2003 U.S. Dist. LEXIS 26159
(E.D. Mich. Feb. 25, 2003) ............................................................................................... 17
ASARCO Inc. v. Kadish, 490 U.S. 605 (1989)................................................................................ 7
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) ....................................................................... 6, 15
Baer v. Nat’l Bd. of Med. Examiners, 392 F.Supp. 2d 42 (D. Mass. 2005).................................. 12
Baird v. Rose, 192 F.3d 462 (4th Cir. 1999) ................................................................................. 17
Barr v. Nat’l Conf. of Bar Examiners, Inc., No. 98-6216, 1999 U.S. App. LEXIS 9741
(10th Cir. May 20, 1999) .................................................................................................. 12
Bartlett v. N.Y. State Bd. of Law Examiners, 226 F.3d 69 (2d Cir. 2000) .................................... 12
Bell Atl. Corp, v. Twombly, 550 U.S. 544 (2007) ........................................................................... 6
Biank v. Nat’l Bd. of Med. Examiners, 130 F.Supp. 2d 986 (N.D. Ill. 2000) ............................... 13
Bonnette v. D.C. Court of Appeals, et al., No. 11-1053, 2011 U.S. Dist. LEXIS 75076 (D.
D.C. July 13, 2011) ........................................................................................................... 12
Brown v. City of Tucson, 336 F.3d 1181 (9th Cir. 2003).............................................................. 19
Cable v. Dep’t of Developmental Servs., 973 F. Supp. 937 (C.D. Cal. 1997) .............................. 17
Campbell v. Robb, 162 Fed. App’x 460 (6th Cir. Jan. 9, 2006) ................................................... 19
Copeland v. Machulis, 57 F.3d 476 (6th Cir. 1995) ....................................................................... 6
Cox v. Ky. Dept. of Transp., 53 F.3d 146 (6th Cir. 1995)............................................................... 6
D’Amico v. N.Y. State Bd. of Law Examiners, 813 F. Supp. 217 (W.D. N.Y. 1993) ................... 12
Doe v. Nat’l Bd. of Med. Examiners, 199 F.3d 146 (3d Cir. 1999) .............................................. 12
Elder v. Nat’l Conf. of Bar Examiners, et al., No. C 11-00199 SI, 2011 U.S. Dist. LEXIS
15787 (N. D. Cal. Feb. 16, 2011)................................................................................ 14, 15
Enyart v. Nat’l Conf. of Bar Examiners, Inc., 630 F.3d 1153 (9th Cir. 2011) ............................. 12

iii

Gonzales v. Nat’l Bd. of Med. Examiners, 225 F.3d 620 (6th Cir. 2000) ..................................... 12
Hiler v. Brown, 177 F.3d 542 (6th Cir. 1999)............................................................................... 17
Jackson v. City of Columbus, 194 F.3d 737 (6th Cir. 1999) ........................................................... 6
Jones v. Nat’l Conf. of Bar Examiners, No. 5:11-cv-174, 2011 U.S. Dist. LEXIS 85137
(D. Vt. Aug. 2, 2011) ........................................................................................................ 12
Love v. Law Sch. Admission Council, Inc., 513 F.Supp. 2d 206 (E.D. Pa. 2007) ........................ 12
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ............................................................. 6, 7, 9
Mich. Prot. & Advoc’y Serv. v. Babin, 18 F.3d 337 (6th Cir. 1994) ............................................ 19
New Albany Tractor v. Louisville Tractor, et al., __ F.3d __, 2011 U.S. App. LEXIS
12457 (6th Cir. June 21, 2011) ......................................................................................... 15
Northcross v. Bd. of Ed. of Memphis City Schs., 412 U.S. 427 (1973) ........................................ 19
Pazer v. N.Y. State Bd. of Law Examiners, 849 F. Supp. 284 (S.D. N.Y. 1994) ......................... 12
Price v. Nat’l Bd. of Med. Examiners, 966 F. Supp. 419 (S.D. W.V. 1997) ................................ 13
Rothberg v. Law Sch. Admission Council, 102 Fed. App’x 122 (10th Cir. June 16, 2004) ......... 12
Rumbin v. Ass’n of Am. Med. Colleges, No. 3:08-cv-983, 2011 U.S. Dist. LEXIS 28580
(D. Conn. March 21, 2011) ............................................................................................... 12
Rush v. Nat’l Bd. of Med. Examiners, 268 F.Supp. 2d 673 (N.D. Tex. 2003).............................. 13
Scheibe v. Nat’l Bd. of Med. Examiners, 424 F.Supp. 2d 1140 (W.D. Wis. 2006) ...................... 12
Shaywitz v. Am. Bd. of Psychiatry & Neurology, 675 F.Supp. 2d 376 (S.D. N.Y. 2009)............. 13
Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26 (1976) ................................... 8, 9
Stern v. Cal. State Archives, 982 F. Supp. 690 (E.D. Cal. 1997).................................................. 17
Van Hulle v. Pac. Telesis Corp., et al., 124 F.Supp. 2d 642 (N.D. Cal. 2000) ...................... 17, 18
Ware v. Wyoming Bd. of Law Examiners, 973 F. Supp. 1339 (D. Wyo. 1997)............................ 12
Warth v. Seldin, 422 U.S. 490 (1975) ......................................................................................... 5, 6
Weiner v. Klais & Co., 108 F.3d 86 (6th Cir. 1997) ....................................................................... 6
White v. United States, et al., 601 F.3d 545 (6th Cir. 2010) ........................................................... 5

iv

Youngblood v. Prudential Ins. Co., 706 F.Supp. 2d 831 (M.D. Tenn. 2010) ............................... 19
Statutes
42 U.S.C. § 12181(2) .................................................................................................................... 10
42 U.S.C. § 12181(7) .................................................................................................................... 10
42 U.S.C. § 12203 ......................................................................................................................... 16
42 U.S.C. § 12203(b) .................................................................................................................... 17
42 U.S.C. § 12203(c) .................................................................................................................... 17
42 U.S.C. §§ 12181-12189 ........................................................................................................... 10
Other Authorities
MERRIAM-WEBSTER DICTIONARY (2011) ..................................................................................... 11
Rules
FED. R. CIV. P. 12(b)(1) .................................................................................................................. 5
FED. R. CIV. P. 12(b)(6) .................................................................................................................. 5
FED. R. CIV. P. 12(d) ....................................................................................................................... 6
FED. R. CIV. P. 56(c) ....................................................................................................................... 6
Regulations
28 C.F.R. 36.102(a)....................................................................................................................... 10
28 C.F.R. 36.104 ........................................................................................................................... 10

v

QUESTION PRESENTED
1.

Should the Court dismiss Plaintiff Angelo Binno’s (“Plaintiff”) Amended Complaint
where Plaintiff lacks standing to bring his claim against Defendant American Bar
Association (the “ABA”) because his alleged inability to gain admission to a law school
is neither fairly traceable to the alleged ABA’s law school accreditation requirement that
all applicants take a valid and reliable test nor likely to be redressed by a favorable
decision in this case?
The ABA Answers: “YES”

2.

Should the Court dismiss Plaintiff’s claim for a violation of Title III of the Americans
with Disabilities Act (“ADA”) where the ABA is not an entity covered by Title III with
regard to Plaintiff’s claim because the ABA is not a “person” that “offers” the Law
School Admission Test (“LSAT”)?
The ABA Answers: “YES”

3.

Should the Court dismiss Plaintiff’s claim for a violation of Title V of the ADA because
the ABA is not a covered entity under the ADA with respect to the LSAT and Plaintiff
otherwise fails to allege that the ABA acted with discriminatory animus in allegedly
“interfering” with his rights protected by the ADA?
The ABA Answers: “YES”

vi

CONTROLLING OR MOST APPROPRIATE AUTHORITY
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.

FED. R. CIV. P. 12(b)(1)
FED. R. CIV. P. 12(b)(6)
FED. R. CIV. P. 56
42 U.S.C. § 12189
28 C.F.R. 36.309
42 U.S.C. § 12203
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)
Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26 (1976)
New Albany Tractor v. Louisville Tractor, et al., __ F.3d __, 2011 U.S. App.
LEXIS 12457 (6th Cir. June 21, 2011)
Van Hulle v. Pac. Telesis Corp., et al., 124 F.Supp. 2d 642 (N.D. Cal. 2000)
Youngblood v. Prudential Ins. Co., 706 F.Supp. 2d 831 (M.D. Tenn. 2010)
Brown v. City of Tucson, 336 F.3d 1181, 1191 (9th Cir. 2003)
Mich. Prot. & Advoc’y Serv. v. Babin, 18 F.3d 337, 347 (6th Cir. 1994)

vii

I.

INTRODUCTION

Plaintiff Angelo Binno (“Plaintiff”) is a legally blind person who was denied admission
to at least three law schools in the state of Michigan allegedly because of his poor performance
on the Law School Admission Test (“LSAT”). Plaintiff alleges that the LSAT significantly
disadvantages blind and visually impaired test takers, like himself, because one-fourth of the
questions on the exam are logic game questions that allegedly often require spatial reasoning and
diagramming for successful completion. Rather than suing the developer and administrator of
the LSAT -- the Law School Admissions Council (“LSAC”) -- or the law schools that denied
him admission, Plaintiff filed the present lawsuit against Defendant American Bar Association
(the “ABA”), claiming that its accreditation standards for law schools violate Titles III and V of
the Americans with Disabilities Act (“ADA”). Plaintiff alleges that the ABA’s accreditation
standards effectively require that all law school applicants take the LSAT as a prerequisite to
admission, which has the effect of denying blind and visually impaired students equal access to
educational opportunities at law schools in the United States, thus interfering with their rights
under the ADA.
Plaintiff has sued the wrong party, and the ADA’s testing provisions do not apply to the
ABA with respect to the LSAT. Plaintiff lacks standing to bring his claims against the ABA
because he cannot establish that his alleged inability to gain admission to law school is “fairly
traceable” to the ABA’s accreditation standard, and not the result of the independent decisionmaking processes of the law schools to which he applied. Plaintiff also lacks standing because it
is merely speculative that a favorable decision in this case would redress his alleged inability to
gain admission to law school, absent a showing that the law schools would not require applicants
to take the LSAT as a prerequisite to admission in the absence of the ABA’s accreditation
standard.
1

Moreover, even if Plaintiff could establish standing, the statutory provisions under which
he asserts his claims -- Title III and Title V of the ADA -- simply do not apply to the ABA with
regard to the LSAT. The ABA is not a public accommodation or commercial facility, and it does
not “offer” the LSAT such that it is an entity covered by Title III or Title V. Accordingly, the
Court should summarily dismiss Plaintiff’s Amended Complaint under Rule 12(b)(1) or Rule
12(b)(6) or, alternatively, grant Defendant summary judgment under Rule 56.
II.

ALLEGATIONS OF PLAINTIFF’S AMENDED COMPLAINT

Plaintiff’s Amended Complaint asserts claims against the ABA for violations of Title III
and Title V of the ADA. (See Dkt. Entry #15, ¶¶ 33-68). In support of those claims, Plaintiff
specifically alleges the following in his Amended Complaint:
A.

The ABA Promulgates Standards And Rules Of Procedure For
Approval Of Law Schools.

•

“The American Bar Association is a ‘private entity’ as defined by the ADA.” (Id. at ¶
37).

•

“The American Bar Association Council of the Section of Legal Education and
Admission to the Bar is the entity charged with accrediting law schools in the United
States.” (Id. at ¶ 9).

•

“The ABA Council of the Section promulgates the Standards and Rules of Procedure for
Approval of Law Schools with which law schools must comply in order to be ABAapproved.” (Id. at ¶ 11).

•

“Standard 503 of the ABA Standards for Approval of Law Schools states in pertinent part
that[,] ‘A law school shall require each applicant for admission as a first year J.D. student
to take a valid and reliable admission test to assist the school and the applicant in
assessing the applicant’s capability of satisfactorily completing the school’s educational
program.” (Id. at ¶ 13).

•

Interpretation 503-1 of the ABA Standards for Approval of Law Schools provides that,
“A law school that uses an admission test other than the Law School Admission Test
sponsored by the Law School Admission Council shall establish that such other test is a
valid and reliable test to assist the school is assessing an applicant’s capability to
satisfactorily complete the school’s educational program.” (Id. at ¶ 14).

2

•

“A law school that chooses to grant a waiver or exemption from the examination
requirement faces sanctions, up to and including, loss of accreditation under Rule 13 of
the ABA Rules of Procedure for the Approval of Law Schools.” (Dkt. Entry #15, ¶ 15).
B.

The LSAT Allegedly Disadvantages Blind Or Visually
Impaired Test Takers Like Plaintiff.

•

“The LSAT is a standardized test consisting of approximately 100 multiple choice
questions.” (Id. at ¶ 18).

•

“Approximately one-fourth of the questions on the exam are what is known as
“Analytical Reasoning Questions” or logic game questions[,] which require spatial
reasoning and diagramming of visual concepts for successful completion by most
applicants.” (Id. at ¶ 19).

•

“A blind or visually impaired applicant[, like Plaintiff,] is unable to conceive of spatial
relationships or diagram answers in the same manner as their sighted peers.” (Id. at ¶
20).
C.

•

“Despite repeated attempts, Plaintiff has been unable to attain admission to law school as
a result of his poor performance on the LSAT. Plaintiff has been denied admission to
three law schools in the Eastern District of Michigan….” (Id. at ¶ 24).1
D.

•

The ABA Allegedly “Offers” The LSAT.

“By promulgating [Standard 503 of] the ABA Standards for Approval of Law Schools
… [the ABA] has “offered” and continues to “offer” a discriminatory examination,
within the meaning of Title III of the Americans with Disabilities Act, as they [sic]
exercise control in the requirement that the exam be given, and play a central role in
reviewing the contents of the examination to deem it valid and reliable.” (Id. at ¶ 49).
E.

•

Plaintiff Was Denied Admission To At Least Three Law
Schools In The State Of Michigan Because Of His Poor
Performance On The LSAT.

Plaintiff Claims That The ABA’s Accreditation Standards
Both Discriminate Against Him And Other Blind Or Visually
Impaired Law School Applicants And Interfere With Their
Rights Under The ADA By Allegedly Requiring That All
Applicants Take The LSAT.

“By promulgating [Standard 503 of] the ABA Standards for Approval of Law Schools,
… [the ABA] has required all law school applicants to take the Law School Admission

1

Plaintiff admittedly scored 133 and 136 out of 180 on the LSAT, which would place his
performance in the bottom 4th and 7th percentile, respectively, of all applicants who took the
LSAT under standard testing conditions from June 2008 to February 2011.

3

Test which is an examination within the meaning of 28 CFR 36.309.” (Dkt. Entry #15, ¶
44).
•

“Standard 503 of the ABA Standards for Approval of Law Schools, and the
corresponding sanctions contained in Rule 13 of the Rules of Procedure for Approval of
Law Schools, directly discriminate against Plaintiff, and other qualified individuals with
disabilities, by mandating that the Plaintiff takes an inherently discriminatory
examination and disallowing any law school from waiving the examination as a
reasonable accommodation.” (Id. at ¶ 50).

•

“Standard 503 of the ABA [S]tandards for Approval of Law Schools thus ‘interferes’
with Plaintiff’s rights under the Americans with Disabilities Act, including but not
limited to, his right to pursue a legal education without being forced to take a
discriminatory examination prior to his admission to law school.” (Id. at 68).
III.
A.

STATEMENT OF ADDITIONAL FACTS

The ABA Standards Do Not Require Law Schools To Assign A
Certain Weight To An Applicant’s LSAT Or Other Test Score
When Making An Admission Decision.

Standard 503 of the ABA Standards for the Approval of Law Schools “does not prescribe
the particular weight that a law school should give an applicant’s admission test score in
deciding whether to admit or deny admission to the applicant.” (Exhibit A, ABA Standards,
Interpretation 503-2, p. 36).2 It only instructs law schools to “use the test results in a manner that
is consistent with the current guidelines regarding the proper use of the test results provided by
the agency that developed the test.” (Id., Standard 503, p. 36). “The ‘Cautionary Policies
Concerning LSAT Scores and Related Services’ published by the Law School Admission
Council is an example of the testing agency guidelines referred to in Standard 503.” (Id.,
Interpretation 503-4, p. 36; Appendix 2, p. 163-64).
B.

The ABA Standards Allow Law Schools To Seek A Variance
From The Alleged Requirement That All Applicants Take The
LSAT As a Prerequisite to Admission.

2

In ruling on the ABA’s motion, the Court may consider the ABA Standards for the
Approval of Law Schools to be a part of the pleadings because they are specifically referred to in
Plaintiff’s Amended Complaint and form the basis of Plaintiff’s claims. See Jackson v. City of
Columbus, 194 F.3d 737, 745 (6th Cir. 1999).

4

A law school may seek a variance from Standard 503’s admission test requirement under
Standard 802. (Id., Standard 802, p. 47). Standard 802 provides: “If the Council finds that [a
law school’s] propos[ed] [admission program is inconsistent with Standard 503, but] is
nevertheless consistent with the general purposes of the Standards, the Council may grant the
variance, may impose conditions, and shall impose time limits it considers appropriate.” (Id.).
C.

The ABA Does Not Develop Or Administer The LSAT.

The ABA does not develop or publish the LSAT. (Exhibit B, Declaration of Hulett H.
Askew, ¶¶ 9-10). The ABA is not involved in any way in processing applications to take the
LSAT or in administering the test. (Id. at ¶ 11). It does not select the place or manner in which
the LSAT is administered. (Id. at ¶ 12). The ABA has no authority to decide whether any given
test taker will receive a requested accommodation to the place or manner of the LSAT. (Id. at ¶
13). Nor does it evaluate any requests for accommodation. (Id.).
IV.
A.

ARGUMENT

Standards Of Review

A motion to dismiss for lack of standing challenges the Court’s subject matter
jurisdiction to hear the claims alleged. FED. R. CIV. P. 12(b)(1). In ruling on such a motion at
the pleading stage, the Court must accept as true all material allegations of Plaintiff’s Amended
Complaint. See Warth v. Seldin, 422 U.S. 490, 501 (1975). Plaintiff, however, still bears the
burden of alleging facts sufficient to persuade the Court that it, indeed, has subject matter
jurisdiction. See White v. United States, et al., 601 F.3d 545, 551-52 (6th Cir. 2010).
A motion to dismiss for failure to state a claim tests the legal sufficiency of the
allegations stated in the Complaint. FED. R. CIV. P. 12(b)(6). The Court must dismiss a
Complaint where the plaintiff has failed to offer factual allegations sufficient to render the
asserted claim “plausible on its face” by “rais[ing] a right to relief above the speculative level on
5

the assumption that all the allegations in the complaint are true.” See Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp, v. Twombly, 550 U.S. 544, 570 (2007)). This
presumption of truth does not apply to “conclusory allegations or legal conclusions
masquerading as factual allegations.”

Id.

Nor will the Court accept unwarranted factual

inferences. Id.
If the Court considers matters outside of the pleadings in ruling on a Rule 12(b)(6)
motion to dismiss, the motion is converted to one for summary judgment under Rule 56. FED. R.
CIV. P. 12(d). However, “[d]ocuments attached to a motion to dismiss are considered part of the
pleadings if they are referred to in the plaintiff’s complaint and are central to the plaintiff’s
claim.” Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999) (citing Weiner v. Klais
& Co., 108 F.3d 86, 89 (6th Cir. 1997)). A motion for summary judgment must be granted if the
record “show[s] that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c). The Court must view the
evidence in the light most favorable to Plaintiff and draw all reasonable inferences in his favor.
See Cox v. Ky. Dept. of Transp., 53 F.3d 146, 150 (6th Cir. 1995). However, Plaintiff cannot rest
upon his pleadings alone; he must present significant probative evidence on which the jury could
reasonably find for him. See Copeland v. Machulis, 57 F.3d 476, 478 (6th Cir. 1995).
B.

Plaintiff Lacks Standing To Bring His Claims Against The ABA.

“[T]he irreducible constitutional minimum of standing” has three elements: (i) injury in
fact, (ii) causation, and (iii) redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992). Where, as here, the plaintiff is not himself the object of the defendant’s challenged
action -- that is, his asserted injury arises indirectly from a restriction allegedly imposed by the
defendant upon a third party -- standing is “‘substantially more difficult’ to establish.” Id. at 562
(citing Allen v. Wright, 468 U.S. 737, 758 (1984); Warth, 422 U.S. at 505). This is because, in
6

those circumstances, both causation and redressability “depend[ ] on the unfettered choices made
by independent actors not before the courts and whose exercise of broad and legitimate
discretion the courts cannot presume either to control or to predict.” Id. (quoting ASARCO Inc.
v. Kadish, 490 U.S. 605, 615 (1989) (opinion of KENNEDY, J.)). Absent facts “showing that
those choices have been or will be made in such manner as to produce causation and permit
redressability of injury,” standing cannot be established.

Id.

Plaintiff lacks standing here

because his Complaint fails to allege such facts necessary to prove either causation or
redressability.
1.

Plaintiff’s alleged inability to gain admission to a
law school is not “fairly traceable” to the ABA’s
alleged requirement that all applicants take a
valid and reliable test.

To prove causation, Plaintiff must establish that his alleged injury is “fairly … traceable
to the challenged action of the defendant, and not … the result [of] the independent action of
some third party not before the court.” Lujan, 504 U.S. at 560-61. Here, Plaintiff’s alleged
injury is his inability to gain admission to an ABA-accredited law school. (Dkt. Entry #15, ¶¶
7(b), 24). Plaintiff alleges that he is unable to do so because of the ABA’s accreditation
standards for law schools that allegedly require that all law school applicants take the LSAT -- a
test that he believes discriminates against blind and visually impaired test takers like himself.
(Id. at ¶ 7(b), 24, 50-51). But Plaintiff’s alleged inability to gain admission to a law school is not
“fairly traceable” to the challenged action of the ABA because the adverse admissions decisions
were made by third parties who are not before this Court: the law schools to which Plaintiff
applied for admission.
Plaintiff does not allege -- because he cannot -- that the ABA’s accreditation standards
require law schools to assign a certain weight to an applicant’s LSAT or other valid and reliable

7

test score when making an admission decision. (See Exhibit A, ABA Standards, Interpretation
503-2, p. 36). The ABA’s accreditation standard is only that a law school require each applicant
“take” a valid and reliable admission test; the law schools to which Plaintiff applied were free to
weigh (or discount) Plaintiff’s LSAT score as they saw fit. (Id.; Dkt. Entry #15, ¶¶ 7(b), 13).
Moreover, the law schools could have sought a variance from the ABA’s admission test
requirement under Standard 802 for purposes of accreditation. (Exhibit A, ABA Standards,
Standard 802, p. 47). There is no allegation that any law school made such a request and was
denied by the ABA. Thus, the Court cannot reasonably infer from Plaintiff’s allegations that his
inability to gain admission to law school is “fairly traceable” to the challenged action of the
ABA, rather than the result of the independent action of the law schools to which he applied.
In this respect, Plaintiff’s deficient allegations are similar to those of Simon v. Eastern
Ky. Welfare Rights Organization, 426 U.S. 26, 42-43 (1976) -- a case in which the United States
Supreme Court reversed a district court’s denial of a motion to dismiss based on lack of standing.
Id. at 37 & n. 15. In Simon, the indigent patient-plaintiffs sued the Secretary of the Treasury and
the Commissioner of the Internal Revenue, claiming that the Internal Revenue Service’s (“IRS”)
policy of extending favorable tax treatment to non-profit hospitals that offered only emergencyroom services to indigents violated the Code by “encouraging” the hospitals to deny medical
services to the plaintiffs. Id. at 33-34. The Supreme Court held that the plaintiffs lacked
standing to bring their claim against the IRS defendants because “[i]t is purely speculative
whether the denials of service specified in the complaint fairly can be traced to [the IRS’]
‘encouragement’ or instead result from decisions made by the hospitals without regard to the tax
implications.” Id. at 42-43. Similarly, Plaintiff lacks standing here because “[s]peculative
inferences are necessary to connect [his] injury to the challenged actions” of the ABA. Id. at 45.

8

2.

It is merely speculative that Plaintiff’s alleged
inability to gain admission to a law school will be
redressed by a favorable decision in this case.

Plaintiff also lacks standing because it is merely “speculative” as opposed to “likely” that
Plaintiff’s alleged injury -- his inability to gain admission to law school because of his low LSAT
score -- would be “redressed by a favorable decision” in this case. See Lujan, 504 U.S. at 561.
Since the law schools to which Plaintiff has applied or intends to apply are not parties, the Court
can only afford Plaintiff relief against the ABA by enjoining the application of its accreditation
standard, which Plaintiff alleges requires all applicants to take the LSAT. But this alone would
not remedy Plaintiff’s alleged injury because the law schools would still be free to require that
their applicants take the LSAT as a prerequisite to admission. See, e.g., Lujan, 504 U.S. at 56871 (holding plaintiffs failed to establish redressability because, even if the court ordered the
Secretary to revise his regulation, this would not remedy the plaintiffs’ alleged injury unless the
non-party funding agencies were bound by the Secretary’s regulation); Simon, 426 U.S. at 42-43
(1976) (holding the relief sought by plaintiffs (withdrawal of a hospital’s tax exemption by the
IRS) would not likely redress the alleged injury (denial of hospital care to indigent patients),
since hospitals might restrict such care even if the exemption were removed). In his Amended
Complaint, Plaintiff still fails to allege that, in the absence of the ABA’s accreditation standard,
law schools would not require applicants to take the LSAT as a prerequisite to admission. He
did not do so because any such allegation would be speculative. Without such factual allegations,
Plaintiff cannot demonstrate that the relief he seeks against the ABA is likely to redress his
inability to gain admission to law school because of his low LSAT score. Therefore, Plaintiff’s
claim against the ABA should be dismissed for lack of standing.

9

C.

Plaintiff’s Title III Discrimination Claim Fails As A Matter Of Law.
1.

Plaintiff fails to state a claim under Title III
because he does not allege facts sufficient to
establish that the ABA “offers” the LSAT.

Plaintiff’s claim for a violation of Title III of the ADA must be dismissed for the
additional reason that Plaintiff fails to allege facts sufficient to establish an essential element of
his claim: that the ABA is a covered entity under Title III of the ADA. Unlike Title I (which
applies to employers) and Title II (which applies to state and local governments), Title III of the
ADA applies only to any (1) Public accommodation;3
(2) Commercial facility;4 or
(3) Private entity that offers examinations or courses related to
applications, licensing, certification, or credentialing for secondary
or postsecondary education, professional, or trade purposes.
28 C.F.R. 36.102(a) (emphasis added); see also 42 U.S.C. §§ 12181-12189. Title III of the ADA
and its accompanying regulations were designed to prohibit disability discrimination by public
accommodations and commercial facilities by removing barriers to the accessibility of such
places, including examinations and courses related to admission to professional schools. Id.
Plaintiff does not allege that the ABA is either a “public accommodation” or a
“commercial facility.” Plaintiff also failed to allege in his initial Complaint that the ABA is a
“person that offers examinations or courses” such that it would be covered by Section 309 of the
ADA. (See Dkt. Entry #1); 42 U.S.C. §12189. After the ABA highlighted this deficiency in its
3

“Public accommodations” are a private entities whose operations fall within one of the
twelve categories listed in Section 301 of the ADA, such as hotels, restaurants, theaters or stores.
See 42 U.S.C. § 12181(7); 28 C.F.R. 36.104.
4
“Commercial facilities” are facilities that are intended for non-residential use by a private
entity whose operations will affect commerce, but not aircraft, railroad cars, or facilities covered
or expressly exempted from coverage by the Fair Housing Act. See 42 U.S.C. § 12181(2); 28
C.F.R. 36.104.

10

motion to dismiss that Complaint, Plaintiff amended his Complaint to allege that, by
promulgating Standard 503 of the ABA Standards for Approval of Law Schools, the ABA
“offers” the LSAT within the meaning of Title III of the ADA because it “exercise[s] control in
the requirement that the exam be given, and play[s] a central role in reviewing the contents of the
examination to deem it valid and reliable” under Standard 503. (See Dkt. Entry #15, ¶¶ 47-49).
But Plaintiff’s amendments do not save his claim because he still does not plead facts
sufficient to establish that the ABA is actually covered by Section 309 with regard to the LSAT.
Section 309 of the ADA applies only to private entities that “offer” covered examinations and
obligates such entities to “offer” them in a place and manner accessible to persons with
disabilities:
Any person that offers examinations or courses related to
applications, licensing, certification, or credentialing for
secondary or post-secondary education, professional, or trade
purposes shall offer such examinations or courses in a place and
manner accessible to persons with disabilities or offer alternative
accessible arrangements for such individuals.
42 U.S.C. § 12189 (emphasis added). The plain meaning of the word “offer,” when used in this
context, is “to make available” or to “afford.” See MERRIAM-WEBSTER DICTIONARY (2011),
available at: http://www.merriam-webster.com/dictionary/offer.
Plaintiff does not allege -- because he cannot -- that the ABA “make[s] [the LSAT]
available” to applicants. Rather, he alleges that the ABA “exercise[s] control in the requirement
that the [LSAT] be given, and play[s] a central role in reviewing the contents of the examination
to deem it valid and reliable” under Standard 503. But, even assuming that this were true, it does
not show that the ABA “offers” the LSAT within the meaning of Title III of the ADA. Plaintiff
does not allege that the ABA has any control over the content or format of the test itself or the
place or manner in which it is offered. The ABA simply cannot be said to “offer” the LSAT or

11

“make [it] available” because, without such alleged control, it cannot fulfill Section 309’s
requirement to offer the test “in a place and manner accessible to persons with disabilities.” This
is why the only entities who have been sued under Section 309 are those with control over the
format or place or manner of a covered exam, such as the Law School Admissions Council
(develops and administers the LSAT);5 the National Conference of Bar Examiners, Inc.
(develops the Multistate Bar Exam (“MBE”) and the Multistate Professional Responsibility
Exam (“MPRE”));6 the state entities responsible for licensing attorneys (administer state bar
examinations, which often include the MBE);7 the Association of American Medical Colleges
(develops and administers the Medical College Admission Test (“MCAT”));8 the National Board
of Medical Examiners (develops and administers the United States Medical Licensing
Examination (“USMLE”));9 and the American Board of Psychiatry & Neurology (develops and
administers board certification exam for specialty).10

5

See, e.g., Love v. Law Sch. Admission Council, Inc., 513 F.Supp. 2d 206 (E.D. Pa. 2007);
Agranoff v. Law Sch. Admission Council, Inc., 97 F.Supp. 2d 86 (D. Mass. 1999); Rothberg v.
Law Sch. Admission Council, 102 Fed. App’x 122 (10th Cir. June 16, 2004) (unpublished).
6
See, e.g., Enyart v. Nat’l Conf. of Bar Examiners, Inc., 630 F.3d 1153 (9th Cir. 2011);
Barr v. Nat’l Conf. of Bar Examiners, Inc., No. 98-6216, 1999 U.S. App. LEXIS 9741 (10th Cir.
May 20, 1999) (unpublished); Jones v. Nat’l Conf. of Bar Examiners, No. 5:11-cv-174, 2011
U.S. Dist. LEXIS 85137 (D. Vt. Aug. 2, 2011) (unpublished); Bonnette v. D.C. Court of Appeals,
et al., No. 11-1053, 2011 U.S. Dist. LEXIS 75076 (D. D.C. July 13, 2011) (unpublished); Elder
v. Nat’l Conf. of Bar Examiners, et al., No. C 11-00199 SI, 2011 U.S. Dist. LEXIS 15787 (N. D.
Cal. Feb. 16, 2011) (unpublished).
7
See, e.g., Bartlett v. N.Y. State Bd. of Law Examiners, 226 F.3d 69 (2d Cir. 2000); Ware
v. Wyoming Bd. of Law Examiners, 973 F. Supp. 1339 (D. Wyo. 1997); Pazer v. N.Y. State Bd. of
Law Examiners, 849 F. Supp. 284 (S.D. N.Y. 1994); D’Amico v. N.Y. State Bd. of Law
Examiners, 813 F. Supp. 217 (W.D. N.Y. 1993); Bonnette, 2011 U.S. Dist. LEXIS 75076, supra;
Elder, 2011 U.S. Dist. LEXIS 15787, supra.
8
See, e.g., Rumbin v. Ass’n of Am. Med. Colleges, No. 3:08-cv-983, 2011 U.S. Dist.
LEXIS 28580 (D. Conn. March 21, 2011) (unpublished).
9
See, e.g., Gonzales v. Nat’l Bd. of Med. Examiners, 225 F.3d 620 (6th Cir. 2000); Doe v.
Nat’l Bd. of Med. Examiners, 199 F.3d 146 (3d Cir. 1999); Scheibe v. Nat’l Bd. of Med.
Examiners, 424 F.Supp. 2d 1140 (W.D. Wis. 2006); Baer v. Nat’l Bd. of Med. Examiners, 392
F.Supp. 2d 42 (D. Mass. 2005); Rush v. Nat’l Bd. of Med. Examiners, 268 F.Supp. 2d 673 (N.D.
Footnote continued on next page …

12

Plaintiff does not allege that the ABA develops or administers the LSAT. And Plaintiff’s
allegations that the ABA requires that the LSAT be taken and that the ABA has reviewed the
exam and deemed it valid and reliable under Standard 503 simply fail to “plausibly” show that
the ABA “offers” the LSAT within the plain meaning of that word. Accordingly, Plaintiff’s
Amended Complaint fails to allege sufficient facts to state a claim against the ABA for a
violation of Title III of the ADA, and the Court must dismiss it under Rule 12(b)(6).
2.

Alternatively, the ABA is entitled to summary
judgment of Plaintiff’s Title III claim because
the ABA does not “offer” the LSAT such that it
is a covered entity.

In any event, the ABA is entitled to summary judgment under Rule 56 because the
undisputable facts show that the ABA does not “offer” the LSAT such that it is a covered entity
under Title III of the ADA as a matter of law. As stated above, section 309 of the ADA applies
only to private entities that “offer” covered examinations. 42 U.S.C. § 12189 (emphasis added).
The ABA does not “offer” the LSAT because it in no way can be said “to make [the LSAT]
available” to applicants.

The ABA does not publish or create the LSAT.

(Exhibit B,

Declaration of Hulett H. Askew, ¶ 9). It is not involved in any way in processing applications to
take the LSAT, and it undertakes no review of, nor establishes any protocol in, the administration
or scoring of the LSAT. (Id. at ¶¶ 11-12). The ABA has no authority to either select the “place”
or “manner” in which the LSAT is offered (so as to be able to fulfill Section 309’s requirement
to offer the test “in a place and manner accessible to persons with disabilities”). (Id. at ¶ 12).
And it has no involvement in reviewing or granting requested accommodations (so as to be able
Footnote continued from previous page …

Tex. 2003); Biank v. Nat’l Bd. of Med. Examiners, 130 F.Supp. 2d 986 (N.D. Ill. 2000); Price v.
Nat’l Bd. of Med. Examiners, 966 F. Supp. 419 (S.D. W.V. 1997).
10
See, e.g., Shaywitz v. Am. Bd. of Psychiatry & Neurology, 675 F.Supp. 2d 376 (S.D. N.Y.
2009).

13

to fulfill Section 309’s requirement to “offer alternative accessible arrangements for such
individuals”). (Id. at ¶ 13). The ABA simply does not “offer” the LSAT within the plain
meaning of Section 309 of the ADA and, therefore, is unable to make it available in a place or
manner accessible to persons with disabilities. The ABA is thus entitled to summary judgment
of Plaintiff’s Title III claim under Rule 56 because the ABA is not a covered entity under Title
III of the ADA.
3.

Plaintiff may not take discovery to search for
facts to cure his deficient pleadings.

Plaintiff likely will cite to Elder v. Nat’l Conf. of Bar Examiners, et al., No. C 11-00199
SI, 2011 U.S. Dist. LEXIS 15787 (N.D. Cal. Feb. 16, 2011) (unpublished)11 (Exhibit C), for
support that he should be allowed to take discovery on the issue of whether the ABA “offers” the
LSAT to law school applicants within the meaning of Section 309 of the ADA. But Elder is
neither controlling nor persuasive to the Court’s resolution of this case on its pleadings.
In Elder, the plaintiff -- who was legally blind -- sued the National Conference of Bar
Examiners (“NCBE”) and the State Bar of California (“State Bar”) for a violation of the ADA
for failure to provide him with an accommodation in taking the California bar exam. Id. at *2.
The plaintiff alleged that although the State Bar had agreed to allow him to take two of the three
parts of the California bar exam using a computer equipped with JAWS screen access software,
it had denied his request with respect to the Multistate Bar Exam (“MBE”) part of the exam only
because the NCBE would not provide the electronic version of the MBE. Id. at *2. The NCBE
moved to dismiss or, in the alternative, for summary judgment, arguing that, because the State
Bar administers the MBE as part of the California bar exam and evaluates any accommodation

11

All other unpublished cases have been submitted separately to the Court in an Appendix,
which has been served upon Plaintiff’s counsel.

14

requests, the State Bar -- rather than the NCBE -- “offers” the MBE within the meaning of the
ADA. Id. at *9-10. The court denied the motion to dismiss because it could not say as a matter
of law that the NCBE did not “offer” the MBE in light of the plaintiff’s specific factual
allegations that the NCBE is the entity that develops the MBE and controls the format in which it
is offered and administered by the State Bar. Id. at *10-11. The court also denied the motion for
summary judgment as premature, finding that questions existed as to whether the NCBE actually
controls the accommodations to the format of the MBE that state bars may offer to disabled test
takers, whether the NCBE requires state bars to follow specific protocols in administering the
MBE in order to protect the integrity of its test, and whether the NCBE had allowed disabled test
takers to take the MBE in an electronic format in the past. Id. at *12-13. The court allowed the
plaintiff to take discovery on these issues, finding that, if true, they would tend to show that, “by
exercising total control over the format and conditions by which the MBE will be offered to
disabled as well as non-disabled test takers, as well as control over its scoring, it is [the] NCBE
which ‘offers’ the MBE under the meaning of Section [309].” Id. at *13.
Unlike in Elder with respect to the NCBE and the MBE, Plaintiff’s Amended Complaint
contains no allegation that the ABA develops the LSAT or exercises any control whatsoever over
the format in which it is administered. Without such alleged facts to support the conclusory legal
allegation that the ABA “offers” the LSAT, Plaintiff fails to state a “plausible” claim for a
violation of Title III of the ADA. According to a recent Sixth Circuit holding, Plaintiff may not
use the discovery process to search for facts to cure his deficient pleadings after filing suit. New
Albany Tractor v. Louisville Tractor, et al., __ F.3d __, 2011 U.S. App. LEXIS 12457, at *10
(6th Cir. June 21, 2011) (citing Iqbal, 129 S. Ct. at 1954). In any event, ordering discovery here
would be futile because, unlike the NCBE with regard to the MBE, the ABA has absolutely no

15

authority or control over the content or format of the LSAT. (Exhibit B, Declaration of Hulett
H. Askew, ¶¶ 9-10). It does not establish any protocols for its administration or scoring (Id. at ¶
12).

Nor does the ABA otherwise administer the LSAT. (Id.). Unlike in Elder, there is no

question here that the ABA does not “offer” the LSAT and, thus, is not a covered entity under
Title III of the ADA.
D.

Plaintiff’s Title V Interference Claim Fails As A Matter Of Law.
1.

Plaintiff does not allege facts sufficient to
establish that the ABA is a covered entity under
the ADA with respect to the LSAT.

Plaintiff’s “interference” claim under Title V of the ADA also fails as a matter of law.
Plaintiff alleges that Standard 503 of the ABA Standards for Approval of Law Schools
“interferes” with his rights under the ADA, including the “right to pursue a legal education
without being forced to take a discriminatory examination prior to his admission to law school.”
(Dkt. Entry #15, ¶ 68). But Plaintiff’s claim fails because he does not allege sufficient facts to
establish that the ABA is an entity even subject to Title V’s interference provision. A plaintiff
cannot maintain a Title V interference claim against an entity that is not otherwise subject to
Titles I, II, or III of the ADA. Because Plaintiff cannot establish that the ABA “offers” the
LSAT or is otherwise subject to Title III with respect to the LSAT, he cannot prove that the ABA
is subject to Title V, and his interference claim fails as a matter of law.
Title V of the ADA sets forth various “Miscellaneous Provisions,” including a
prohibition against retaliation and coercion or interference with rights protected by the ADA.
See 42 U.S.C. § 12203. Section 503, which prohibits interference, provides, in relevant part:
It shall be unlawful to coerce, intimidate, threaten, or interfere with
any individual in the exercise or enjoyment of, or on account of his
or her having exercised or enjoyed, or on account of his or her
having aided or encouraged any other individual in the exercise or
enjoyment of, any right granted or protected by this chapter.
16

42 U.S.C. § 12203(b). Section 503 has no remedies of its own, but rather refers a plaintiff
alleging unlawful interference to the remedial provisions of the Title that corresponds to the
conduct at issue:
The remedies and procedures available under sections 12117,
12133, and 12188 of this title shall be available to aggrieved
persons for violations of subsections (a) and (b) of this section,
with respect to subchapter12 I, subchapter II and subchapter III,
respectively.
42 U.S.C. § 12203(c). The language of Section 503 thus indicates that “[w]hich remedies a
plaintiff is afforded, [if any], depends on whether the alleged retaliation [or interference]
occurred with respect to employment, public services, or public accommodations.” Stern v. Cal.
State Archives, 982 F. Supp. 690, 693 (E.D. Cal. 1997). For this reason, a plaintiff cannot
maintain an ADA retaliation or interference claim under Section 503 against entities that are not
otherwise subject to Titles I, II, or III of the ADA -- notwithstanding Section 503’s use of the
term “person” to identify the entity regulated. Id.; see also Van Hulle v. Pac. Telesis Corp., et
al., 124 F.Supp. 2d 642, 644-47 (N.D. Cal. 2000); Andonian v. Auto Alliance Int’l, Inc., No. 01cv-73918, 2003 U.S. Dist. LEXIS 26159 (E.D. Mich. Feb. 25, 2003) (unpublished).13
In Van Hulle, the plaintiff sued Cigna, an entity that had contracted with his employer to
administer its employee health insurance benefits, alleging claims of discrimination under Title
12

The ADA was initially enacted as Public Law 101-336 and organized into Titles I
through V. When the ADA was codified as 42 U.S.C. § 12101, et seq., the “Titles” were
renamed “Subchapters.” Titles I, II, and III became Subchapters I, II, and III, respectively, and
Title V became Subchapter IV.
13
Virtually all of the courts, including the Sixth Circuit, who have addressed this issue in
the context of whether the term “person” in Section 503’s retaliation provision creates individual
liability in the employment context have held that a plaintiff cannot maintain an ADA retaliation
claim against individual defendants who do not otherwise satisfy the definition of “employer”
under Title I. See Hiler v. Brown, 177 F.3d 542 (6th Cir. 1999) (addressing question with
respect to the anti-retaliation provision of the Rehabilitation Act, which incorporates by
reference Section 503(a) of the ADA); Baird v. Rose, 192 F.3d 462 (4th Cir. 1999); Stern, 982 F.
Supp. 690; Cable v. Dep’t of Developmental Servs., 973 F. Supp. 937 (C.D. Cal. 1997).

17

III and retaliation under Title V of the ADA. 124 F.Supp. 2d at 642. The court dismissed both
claims on the pleadings because its finding that Cigna was neither an “employer” nor “public
accommodation” covered by Titles I or III precluded the plaintiff from asserting a retaliation
claim against Cigna under Title V. Id. at 646-47. In so holding, the court rejected the plaintiff’s
argument that the plain language of Section 503 expressly extends liability for retaliation to any
“person,” including individuals or entities not otherwise subject to the ADA. Id. at 645-46. The
court reasoned that the most reasonable inference to be drawn from the absence of a remedial
provision in Section 503 for situations in which the alleged retaliation did not occur with respect
to employment, public services, or public accommodations (as set forth in Titles I, II, and III,
respectively) is that Congress did not intend to create a cause of action in such cases. Id. at 646.
The court, therefore, concluded that “a plaintiff cannot maintain an ADA retaliation claim
against entities which are not otherwise subject to Subchapters I, II, and III of the ADA.” Id.
For this very reason, Plaintiff’s ADA interference claim likewise fails. As discussed
above, Plaintiff’s Amended Complaint fails to allege sufficient facts to establish that the ABA is
a private entity that “offers” the LSAT under Section 309 of the ADA. Plaintiff has not pled any
other basis for finding that the ABA is otherwise subject to Title III -- or any other Title, for that
matter -- with respect to the LSAT. As in Van Hulle, Plaintiff’s failure to sufficiently plead that
the ABA is a covered entity under Title III of the ADA precludes his interference claim under
Title V as a matter of law.
2.

Plaintiff does not allege that the ABA acted with
discriminatory animus.

Moreover, Plaintiff’s Title V interference claim fails for the additional reason that his
Amended Complaint does not allege that the ABA’s alleged interference was motivated by
discriminatory animus. See Youngblood v. Prudential Ins. Co., 706 F.Supp. 2d 831, 839-40

18

(M.D. Tenn. 2010) (holding that discriminatory animus is an essential element of an interference
claim under Section 503(b) of the ADA). Although the Sixth Circuit has never analyzed the
sufficiency of an interference claim under Section 503(b) of the ADA, the courts that have done
so have used the same analysis applicable to interference claims under the Fair Housing Act
(“FHA”). See Brown v. City of Tucson, 336 F.3d 1181, 1191 (9th Cir. 2003); Youngblood, 706
F.Supp. 2d at 839-40. Both the Brown and Youngblood courts applied this analysis because the
anti-interference provision of the FHA “was itself referenced in a Committee Report preceding
the passage of the ADA,” and the anti-interference provisions of the ADA and the FHA are not
merely similar, but identical, and “similarities between statutory provisions are an indication that
Congress intended the provision to be interpreted the same way.” See id. (citing H.R.Rep. No.
485(II), 101st Cong., 2d Sess. 138 (1990); Northcross v. Bd. of Ed. of Memphis City Schs., 412
U.S. 427, 428 (1973)); compare 42 U.S.C. § 12203(b) with 42 U.S.C. § 3617. As noted by the
Youngblood court in analyzing the sufficiency of an ADA interference claim, under wellestablished Sixth Circuit case law, interference with FHA-protected rights is actionable only if
the acts of interference were motivated by discriminatory animus. 706 F.Supp. 2d at 840 (citing
Mich. Prot. & Advoc’y Serv. v. Babin, 18 F.3d 337, 347 (6th Cir. 1994)).14
Applying that FHA analysis to the identical anti-interference provision of the ADA
allegedly violated here, for the actions of the ABA in promulgating Standard 503 to rise to the
level of actionable interference, Plaintiff must allege that they were taken because of his alleged
disability. See id. (denying leave to amend to add a claim for interference under Section 503(b)
of the ADA as futile because the proposed amended complaint failed to allege discriminatory
14

See also Campbell v. Robb, 162 Fed. App’x 460, 473-74 (6th Cir. Jan. 9, 2006)
(unpublished) (rejecting challenge to animus requirement based on plain language of § 3617 -which, like § 12203(b) only requires that the interference be “on account of” the exercise or
enjoyment of protected rights -- as contrary to the law of the circuit established in Babin).

19

animus). Plaintiff’s Amended Complaint contains no such allegation. Plaintiff’s allegation that
the ABA “has been, and continues to be aware of, the discriminatory effects of their
accreditation requirements and yet has taken no action to mitigate the effects of its policy,” (Dkt.
Entry #15, ¶ 65), falls short of alleging that the ABA promulgated (and continues to enforce)
Standard 503’s “valid and reliable” test requirement with the intent or motivation to discriminate
against Plaintiff and other visually impaired applicants based on their alleged disabilities.
Plaintiff notably does not allege that the ABA requires that the LSAT -- or any other “valid and
reliable” test -- include those logic game questions that he contends are discriminatory. Because
Plaintiff does not claim that the ABA’s alleged interference was motivated by discriminatory
animus, his Amended Complaint fails to state a claim against the ABA for a violation of Title V
of the ADA, and the Court must dismiss it under Rule 12(b)(6).
V.

CONCLUSION

For all of these reasons, the ABA respectfully requests that the Court grant its Motion to
Dismiss Under Rule 12(b)(1) or 12(b)(6) or, alternatively, grant it summary judgment under Rule
56, and dismiss Plaintiff’s Amended Complaint in its entirety with prejudice.
Respectfully Submitted,
DICKINSON WRIGHT PLLC
By:
/s/Allyson A. Miller
David R. Deromedi (P42093)
Allyson A. Miller (P71095)
500 Woodward Ave., Ste. 4000
Detroit, MI 48226
Phone : [phone]
Email: [e-mail]
[e-mail]
Peter H. Webster (P48783)
2600 W. Big Beaver Rd., Ste. 300
Troy, MI 48084
Phone: [phone]
Email: [e-mail]

Dated: September 19, 2011

Attorneys for Defendant
20

I hereby certify that on September 19, 2011, I electronically filed
the foregoing paper with the Clerk of the Court using the ECF
system, which will send notice of such filing to all counsel of
record.
/s/Allyson A. Miller (P71095)
DICKINSON WRIGHT PLLC
500 Woodward Avenue, Suite 4000
Detroit, Michigan 48226
[phone]
[e-mail]

DETROIT 50321-1 1218374v1

21