Binno v. The American Bar Association

Filing 25

MOTION for Leave to File BRIEF AS AMICUS CURIAE by Bill Schuette. (Attachments: # 1 Exhibit Proposed Amicus Brief) (Neill, Brian)

Angelo Binno,

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Plaintiff,
No. 2:11-cv-12247

v

HON. DENISE PAGE HOOD

The American Bar Association,

MAG. MARK A. RANDON

Defendant.
Michael J. Blau
Richard H. Bernstein
Attorneys for Plaintiff
31731 Northwestern Highway, Suite 333
Farmington Hills, MI 48334-1669
248-737-8400
[e-mail]

Allyson A. Miller
David R. Deromedi
Peter H. Webster
Attorneys for Defendant
Dickinson, Wright
500 Woodward Ave, Ste 4000
Detroit, MI 48226
313-223-3500
[e-mail]

EXHIBIT 1
PROPOSED BRIEF OF AMICUS CURIAE
MICHIGAN ATTORNEY GENERAL BILL SCHUETTE

/

Angelo Binno,

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Plaintiff,
No. 2:11-cv-12247

v

HON. DENISE PAGE HOOD

The American Bar Association,

MAG. MARK A. RANDON

Defendant.
Michael J. Blau
Richard H. Bernstein
Attorneys for Plaintiff
31731 Northwestern Highway, Suite 333
Farmington Hills, MI 48334-1669
248-737-8400
[e-mail]

Allyson A. Miller
David R. Deromedi
Peter H. Webster
Attorneys for Defendant
Dickinson, Wright
500 Woodward Ave, Ste 4000
Detroit, MI 48226
313-223-3500
[e-mail]

PROPOSED BRIEF OF AMICUS CURIAE
MICHIGAN ATTORNEY GENERAL BILL SCHUETTE
Bill Schuette
Attorney General
John J. Bursch
Solicitor General
Brian O. Neill (P63511)
Assistant Attorney General
Attorney for Amicus Curiae
P.O. Box 30736
Lansing, Michigan 48909
517-241-0210
[e-mail]
[P63511]
Dated: November 2, 2011

/

TABLE OF CONTENTS
Page
Table of Contents ............................................................................................................ i 
Index of Authorities ....................................................................................................... ii 
Interest of Amicus Curiae.............................................................................................. 1 
Argument ....................................................................................................................... 3 
I. 

Mr. Binno’s amended complaint raises issues of significant
consequence and there is a reasonable likelihood that discovery will
uncover facts that could support his claims. ...................................................... 3 
A. 

Discovery could uncover facts related to whether the LSAT has a
discriminatory effect. ............................................................................... 6 

B. 

Discovery could uncover facts related to whether law schools are
effectively compelled to consider the LSAT............................................. 8 

C. 

Discovery could uncover facts related to whether ABA Standards
allow schools to waive the LSAT on a student-by-student basis.......... 11 

D. 

Discovery could lead to facts related to whether the ABA “offers”
the LSAT within the meaning of the ADA. ........................................... 13 

Conclusion and Relief Requested ................................................................................ 15 
Certificate of Service (e-file) ..................................... Error! Bookmark not defined. 

i

INDEX OF AUTHORITIES
Page

Cases 
Associated Builders & Contractors v. Perry,
115 F.3d 386 (6th Cir. 1997) ...................................................................................... 2
Bonnette v. D.C. Court of Appeals,
2011 U.S. Dist. LEXIS 75076 at *39 (D. of D.C. 2011) ........................................... 14
Communities for Equity v. Michigan High School Athletics Association, et al,
80 F. Supp. 2d 729 (W.D. Mich. 2000) ....................................................................... 9
Elder v. Nat’l Conference of Bar Examiners,
2011 U.S. Dist. LEXIS 15787 at *12 (N.D. Cal. 2011)............................................ 14
Grutter v. Bollinger,
539 U.S. 306 (2003) .................................................................................................... 3
Sweatt v. Painter,
339 U.S. 629 (1950) .................................................................................................... 3
Statutes 
42 U.S.C. § 12101(a)(5) .................................................................................................. 4
42 U.S.C. § 12101(a)(6) .................................................................................................. 4
42 U.S.C. § 12111 ........................................................................................................... 1
42 U.S.C. § 12131(1) .................................................................................................... 13
42 U.S.C. § 12181(6) .................................................................................................... 13
42 U.S.C. § 12203 ......................................................................................................... 13
Mich. Comp. Laws § 14.28 ............................................................................................. 2
Mich. Comp. Laws § 37.1401 ......................................................................................... 1
Mich. Comp. Laws § 37.1402(b) .................................................................................... 1

ii

Other Authorities 
ABA Commission on Mental and Physical Disability Law, 2010 Goal III
Report.......................................................................................................................... 3
LAW SCHOOL ADMISSION COUNCIL, ABOUT THE LSAT ................................................... 7
MICHIGAN DEPARTMENT OF CIVIL RIGHTS, DIVISION ON DEAF AND HARD OF
HEARING HISTORY (2011) ............................................................................................ 2
MICHIGAN DEPARTMENT OF CIVIL RIGHTS, MICHIGAN MILESTONES (2011) ................... 2
MICHIGAN DEPARTMENT OF LICENSING AND REGULATORY AFFAIRS, BRAILLE AND
TALKING BOOK LIBRARY HISTORY (2011) .................................................................... 2
MICHIGAN STATE UNIVERSITY COLLEGE OF LAW, APPLICATION TIMEFRAME AND
REQUIREMENTS (2011) ................................................................................................ 4
STATE OF MICHIGAN, BOARD OF LAW EXAMINERS, Rules, Statutes, and Policy
Statements, Rule 2 (2011) .......................................................................................... 6
THOMAS M. COOLEY LAW SCHOOL, FREQUENTLY ASKED QUESTIONS (2011) ................. 4
U.S. News Staff, Michigan Law School Slightly Reconsiders LSAT, U.S.
NEWS AND WORLD REPORT (Sept. 30, 2008) ............................................................. 12
UNIVERSITY OF DETROIT MERCY SCHOOL OF LAW, J.D. ADMISSION
REQUIREMENTS (2011) ................................................................................................ 4
UNIVERSITY OF MICHIGAN LAW SCHOOL, FREQUENTLY ASKED QUESTIONS (2011) .. 4, 12
WAYNE STATE UNIVERSITY LAW SCHOOL, LSAT/LSDAS REGISTRATION (2011)............ 4
Rules 
28 C.F.R. 36.309(b) .................................................................................................. 7, 13
28 C.F.R. 36.309(b)(1)(i) ................................................................................................ 6

iii

INTEREST OF AMICUS CURIAE
Plaintiff Angelo Binno alleges that every law school in Michigan is basing
admission in part on the results of a discriminatory examination in violation of the
Americans with Disabilities Act (ADA). 42 U.S.C. § 12111 et seq. Specifically, he
alleges that the Law School Admissions Test (LSAT) discriminates against blind
and visually-impaired students by needlessly requiring diagramming to assist with
answering questions. Further, Mr. Binno alleges that the accreditation standards of
the American Bar Association (ABA) effectively compel law schools to consider the
LSAT for admission.
If proven, these allegations would establish a violation of both the ADA and
Michigan Persons with Disabilities Civil Rights Act (MDCRA). Mich. Comp. Laws §
37.1401 et seq. Like the ADA, the MDCRA prohibits schools from limiting a
prospective student’s admission based on a disability that is unrelated to his or her
ability to utilize and benefit from that institution:
An educational facility shall not … [e]xclude, expel, limit, or otherwise
discriminate against an individual seeking admission as a student or
an individual enrolled as a student in the terms, conditions, and
privileges of the institution, because of a disability that is unrelated to
the individual’s ability to utilize and benefit from the institution, or
because of the use by an individual of adaptive devices or aids.
Mich. Comp. Laws § 37.1402(b).
The ABA’s accreditation standards, Mr. Binno alleges, compel Michigan law
schools to consider a discriminatory entrance examination because schools cannot

1

waive the requirement of an entrance examination and have no real alternative to
the LSAT.
As Attorney General for the State of Michigan, Bill Schuette is authorized to
intervene and appear on behalf of the people of Michigan in any cause or matter in
which the people may have an interest. Mich. Comp. Laws § 14.28. See also
Associated Builders & Contractors v. Perry, 115 F.3d 386, 390-92 (6th Cir. 1997).
The State of Michigan has a history of and interest in improving access to education
and employment for individuals with disabilities.1 In fact, the very issue raised in
Mr. Binno’s amended complaint was recognized by the Disabilities Committee of the
Michigan State Bar Open Justice Commission in 2002.2
Whether the LSAT is in fact discriminatory, and whether law schools in
Michigan are effectively required to consider a discriminatory examination, are
issues of substantial consequence to the people, universities, and government
agencies of Michigan. It could mean that Michigan’s blind and visually-impaired
residents are inhibited from obtaining a legal education and future employment as

See MICHIGAN DEPARTMENT OF CIVIL RIGHTS, DIVISION ON DEAF AND HARD OF
HEARING HISTORY (2011), http://www.michigan.gov/mdcr/0,4613,7-13858275_28545_28560-53360--,00.html; MICHIGAN DEPARTMENT OF LICENSING AND
REGULATORY AFFAIRS, BRAILLE AND TALKING BOOK LIBRARY HISTORY (2011),
http://www.michigan.gov/lara/0,4601,7-154-28077_54234_54256---,00.html;
MICHIGAN DEPARTMENT OF CIVIL RIGHTS, MICHIGAN MILESTONES (2011),
http://www.michigan.gov/mdcr/0,4613,7-13858275_28545_28560-14956--,00.html.
1

STATE BAR OF MICHIGAN, OPEN JUSTICE COMMISSION, DISABILITIES COMMITTEE,
LAW SCHOOL FORUM: SUMMARY OF GROUP DISCUSSION (Oct. 17, 2002) available at
http://www.michbar.org/programs/ATJ/pdfs/law_school.pdf.
2

2

attorneys. Discovery will assist in assessing the factual support for Mr. Binno’s
allegations and whether intervention by the Attorney General is necessary.
Accordingly, Attorney General Bill Schuette respectfully requests that this
Court deny summary dismissal and allow discovery.

ARGUMENT
I.

Mr. Binno’s amended complaint raises issues of significant
consequence and there is a reasonable likelihood that discovery will
uncover facts that could support his claims.
“Individuals with law degrees occupy roughly half the state governorships,

more than half the seats in the United States Senate, and more than a third of the
seats in the United States House of Representatives.” Grutter v. Bollinger, 539 U.S.
306, 332 (2003). As the training ground for our national leadership, law school
schools must be inclusive of all talented and qualified individuals. Id. Indeed, law
schools “cannot be effective in isolation from the individuals and institutions with
which the law interacts.” Sweatt v. Painter, 339 U.S. 629, 634 (1950).
Yet individuals with disabilities are disproportionately absent from the legal
profession. The ABA’s 2009 annual census of membership reflects that only 6.76%
of respondents reported having a disability, “[a] percentage far lower than one
would expect given the national statistics on the percentage of Americans with
disabilities.” ABA Commission on Mental and Physical Disability Law, 2010 Goal
III Report, at 6-7. A likely cause for this disparity, the ABA observed, is that
“relatively few college students with disabilities attend law school due to factors
ranging from lack of funds to problems with attaining accommodations for the Law
3

School Admissions Test.” Id. at 7. In fact, lack of funding is connected to the LSAT
since a high LSAT score often leads to scholarship opportunities.3
Access to education is a fundamental purpose of the ADA. Based on census
data, polling, and surveys, Congress found that individuals with disabilities are
“severely disadvantaged” in terms of educational opportunities. 42 U.S.C.
§ 12101(a)(6). This severe disadvantage, Congress concluded, is due in part to the
failure to modify existing practices and exclusionary qualification standards. 42
U.S.C. § 12101(a)(5). And that is the very heart of Mr. Binno’s amended complaint:
refusal to modify an existing qualification standard he alleges to be exclusionary.
The LSAT is a gatekeeper. It is recognized as the standard admissions test
for virtually every ABA accredited law school in the country. All five of Michigan’s
law schools are ABA accredited and specifically ask students to submit their LSAT
scores for admission.4 Statistical data on the LSAT scores of incoming students for

For example, the Thomas M. Cooley Law School website indicates that incoming
students with an LSAT score of 163 or higher qualify for an Honor’s Scholarship
covering 100% of tuition, http://www.cooley.edu/prospective/scholarships.html.
3

See THOMAS M. COOLEY LAW SCHOOL, FREQUENTLY ASKED QUESTIONS (2011),
http://www.cooley.edu/prospective/questions.html#takeLSAT; WAYNE STATE
UNIVERSITY LAW SCHOOL, LSAT/LSDAS REGISTRATION (2011),
http://law.wayne.edu/jd/apply/lsat-lsdas-registration.php; MICHIGAN STATE
UNIVERSITY COLLEGE OF LAW, APPLICATION TIMEFRAME AND REQUIREMENTS (2011),
http://www.law.msu.edu/admissions/timeframe-reqs.html; UNIVERSITY OF DETROIT
MERCY SCHOOL OF LAW, J.D. ADMISSION REQUIREMENTS (2011),
http://www.law.udmercy.edu/prospective/admission/index.php; UNIVERSITY OF
MICHIGAN LAW SCHOOL, FREQUENTLY ASKED QUESTIONS (2011),
http://www.law.umich.edu/prospectivestudents/admissions/Pages/faq.aspx.
4

4

each accredited school is gathered and reported.5 In addition to providing a
baseline for admission and scholarships, the LSAT is often used as a standardized
means to compare schools.
This uniform reliance on the LSAT derives from the ABA’s accreditation
standards. In considering prospective students, ABA Standard 503 provides that
law schools must require applicants to take a “valid and reliable admissions test” to
assist in assessing the applicant’s capability of completing the school’s educational
program. (R 17-2, p 14). Interpretation 503-1 of Standard 503 presumes the LSAT
meets this requirement, stating that a law school that uses a test other than the
LSAT must establish that the alternative test is valid and reliable. (R 17-2, p 14).
Instead of assisting law schools in selecting qualified candidates, however,
Mr. Binno alleges that the LSAT winnows out qualified blind and visually-impaired
students by needlessly asking questions that reflect their disabilities rather than
aptitude. (R 15, pp 2-6). Further, he alleges that the ABA’s accreditation standards
effectively require law schools to consider the LSAT because there is no way to
waive the entrance-exam requirement or consider an alternative to the LSAT on a
student-by-student basis. And failure to comply with ABA standards, he alleges,
can result in sanctions by the ABA, including loss of accreditation. (R 15, pp 2, 5).
Loss of accreditation would be a significant sanction indeed, impacting more
than a school’s reputation. A person may not even take the Bar Examination in

Official Guide to ABA-Approved Law Schools, available at
http://www.lsac.org/LSACResources/Publications/official-guide-archives.asp.

5

5

Michigan unless he or she possesses a law degree from a “reputable and qualified”
school, which ABA accredited schools are presumed to be.6 In other words, much
like ABA Standard 503 presumes the LSAT is valid and reliable, the State Bare
presumes that an ABA accredited school is reputable and qualified. Doubt over the
ability to sit the bar exam would certainly impact any student’s interest in
attending a specific school.
If proven, Mr. Binno’s allegations could establish a violation of both the ADA
and the MDCRA. Without discovery, however, it is difficult to assess Mr. Binno’s
allegations. Discovery is necessary to develop a full and complete record. For this
reason, the amicus curiae urge this Court to deny summary judgment and allow the
parties to proceed with discovery.

A.

Discovery could uncover facts related to whether the LSAT has
a discriminatory effect.

A school must not use an admission examination that needlessly reflects an
applicant’s disabilities. That basic principal is stated in 28 C.F.R. 36.309(b)(1)(i):
(1) Any private entity offering an examination covered by this section
must assure that-(i) The examination is selected . . . to best ensure that, when the
examination is administered to an individual with a disability that
impairs sensory . . . skills, the examination results accurately reflect
the individual’s aptitude or achievement level or whatever other factor
the examination purports to measure, rather than reflecting the

STATE OF MICHIGAN, BOARD OF LAW EXAMINERS, Rules, Statutes, and Policy
Statements, Rule 2 (2011). Available at
http://courts.michigan.gov/supremecourt/BdofLawExaminers/BLERules.pdf.
6

6

individual’s impaired sensory . . . skills (except where those skills are
the factors that the examination purports to measure).”
The LSAT is a standardized test consisting of three types of multiple choice
questions: reading comprehension, analytical reasoning, and logical reasoning.7
Additionally, there is an un-scored “variable” multiple choice section, as well as an
essay. Id. Mr. Binno alleges that the analytical reasoning section violates 28
C.F.R. 36.309(b) because it requires spatial reasoning and diagraming to assist in
reaching the correct answers. (R 15, p 11). There seems to be little if any dispute
that spatial reasoning and diagraming would at least assist students in answering
these questions. Indeed, the suggested approach to answering analytical-reasoning
questions on the LSAT set forth by the Law School Admission Council in “10 Actual
Official LSAT Prep Tests” is to practice diagramming:
In addition, it may prove very helpful to draw a diagram to assist you
in finding the solution to the problem.
In preparing for the test, you may wish to experiment with different
types of diagrams. For a scheduling problem, a calendar-like diagram
may be helpful. For a spatial relationship problem, a simple map can
be a useful device.
Even though some people find diagrams to be very helpful, other
people seldom use them. And among those who do regularly use
diagrams in solving these problems, there is by no means universal
agreement on which kind of diagram is best for which problem or in
which cases a diagram is most useful. Do not be concerned if a
particular problem in the test seems to be best approached without the
use of a diagram.
(10 Actual Official LSAT Prep Tests, © 2007 by Law Sch. Admissions Council, p. 3.)

LAW SCHOOL ADMISSION COUNCIL, ABOUT THE LSAT.
http://www.lsac.org/JD/LSAT/about-the-LSAT.asp.
7

7

Comprehending spatial relationships and drawing diagrams, Mr. Binno
asserts, reflect a blind or visually-impaired student’s disability rather than his or
her ability to succeed in law school. (R 15, p 13).
But without discovery, the average number of questions that require spatial
reasoning or diagraming, and the average impact of those questions on a student’s
score are unknown.8 Also, even if a blind or visually-impaired student scores well,
it is unknown whether the allegedly discriminatory questions prevented that
student from scoring better and, therefore, qualifying for admission into more
schools or more scholarships. Such factual information would be developed through
the discovery process.

B.

Discovery could uncover facts related to whether law schools
are effectively compelled to consider the LSAT.

Even assuming the analytical-reasoning section of the LSAT discriminates
against blind and visually-impaired students, the ABA asserts that Standard 503
does not require the LSAT, but simply a test that is “valid and reliable.” (R 17, p 8).
Using and considering the LSAT, the ABA contends, is an independent decision
made by the schools with no causal link to Standard 503. (R 17, p 8).
While the ability to ignore the ABA Standards is a factor to consider, it does
not conclusively establish the lack of any causal connection. Such a connection can

This is not to suggest that a small number of discriminatory questions would be
permissible, but rather, to determine whether actually discriminatory questions are
a persistent problem or isolated incident.

8

8

exist, for example, where there is no real alternative. In Communities for Equity v.
Michigan High School Athletics Association, et al, 80 F. Supp. 2d 729 (W.D. Mich.
2000), it was contended that the MHSAA did not have controlling authority over
interscholastic athletic programs at local schools because the school districts could
choose not to adopt MHSAA rules. The District Court concluded that a genuine
issue of material fact existed as to the degree of control MHSAA exerted through
the ability to impose sanctions and the lack of alternatives:
There is only one interscholastic athletic association in the state of
Michigan and that is the MHSAA. In a very real sense, the MHSAA
has a de facto monopoly over interscholastic sports. This is evidenced
by the fact that there is not a single high school in the state of Michigan, that is eligible for MHSAA membership, that is not a member.
While local school districts may have the power to disregard MHSAA
rules or policies, and the legal authority to leave the Association
altogether, these are not realistic options given the nature of interscholastic sports in Michigan. If a local school district were to
disregard MHSAA rules, or leave the MHSAA, it would subject itself to
MHSAA imposed sanctions (including possible expulsion), jeopardize
its ability to compete in statewide tournaments, find it difficult to
schedule opponents, and in general have problems providing
interscholastic athletic programs to its students.
Communities for Equity, 80 F. Supp. 2d at 738.
Like the MHSAA, the ABA has exclusive accrediting authority. (R 15, pp 45). Mr. Binno alleges that law schools are effectively compelled to consider the
LSAT by operation of the ABA’s accreditation standards. Specifically, he alleges
that Interpretation 503-1 presumes that the LSAT is a “valid and reliable” test in
amended compliance with Standard 503. (R 15, p 2; R 17-2, p 14). Since no other
test enjoys this same presumption of compliance, a law school seeking to base
admission on a different examination would bear the burden of establishing that
9

the alternate test is valid and reliable. (R 15, pp 13-17). Interpretation 503-1
provides that a law school using a test other than the LSAT must establish that test
is valid and reliable. According to the ABA Consultant’s Memorandum attached to
Mr. Binno’s complaint, “Interpretation 503-1 makes it clear that the burden is on
the law school to demonstrate the validity and reliability of any test or assessment
methodology, other than the LSAT, that is used for law school admission purposes.”
(R 15, Ex D).
Further, Mr. Binno alleges that failure to comply with Standard 503 could
affect a school’s ranking or lead to sanctions under ABA Rule 13, including the loss
of accreditation. (R 15, p 12). Thus, since schools cannot waive the requirement of
an entrance examination, a school considering admission of a single blind student
can either attempt to prove to the ABA that an alternate examination complies with
Standard 503, do so within an admissions cycle, and face sanctions if the student
was admitted in violation of Standard 503—or simply require that all students take
the LSAT.
If these allegations are true, there would certainly be a strong incentive—
perhaps an outright compulsion—for schools to require the LSAT. And given that
statistical data on the LSAT scores of incoming students is reported and used to
rank schools, the connection between the LSAT and admission is more than purely
speculative.9 But at the pleadings stage, there is insufficient information to draw

While it may be true that the ABA does not require a school to place any specific
weight on an applicant’s LSAT score, that score will affect data on the LSAT scores
9

10

conclusions. The extent of the burden placed on schools to establish an alternative
to the LSAT is unknown. The record is undeveloped as to whether any school has
tried to use an alternative test for a single applicant, whether the ABA has ever
approved such test, or whether the process could be completed within an admission
cycle. Nor is there any information as to whether any school has in fact ever been
sanctioned under Rule 13 for waiving the LSAT or basing admission on an alternate
test without ABA approval. According to the affidavit attached to the amended
complaint, at least one law school in Michigan considered waiving the LSAT for
blind and visually-impaired applicants but determined that Rule 503 prevented
them from doing so. (R 21, Ex A). Additional facts would be developed though
discovery.

C.

Discovery could uncover facts related to whether ABA
Standards allow schools to waive the LSAT on a student-bystudent basis.

Under ABA Standard 802, a school may request a variance from any other
ABA Standard, including Standard 503. Therefore, the ABA asserts, law schools
have the ability to offer a different test. (R 17, p 5). In fact, the ABA asserts, as
many as eight law schools are receiving a variance from the LSAT. (R 13, p 6).
Mr. Binno calls that assertion into question, suggesting that Standard 802
may not give schools the ability to provide an alternate test on a student-by-student

of incoming students for the school. Admitting too many students with low scores
would lower the average for incoming students, affecting the public perception and
reputation of the school.
11

basis, but rather, that Standard 802 applies only to admission programs. (R 15, p
11). In support, he points to an ABA Consultant’s Memo that appears to expressly
state that Standard 802 is limited to admission programs. (R 15, p 11; Ex D).
One example of a program-wide exception to the LSAT is the University of
Michigan Law School’s Wolverine program, under which a small number of
University of Michigan alumni may be admitted to the law school based on
undergraduate GPA.10 These sort of programs do not appear to give schools the
ability to waive the LSAT or provide an alternative for an individual student. The
University of Michigan Law School’s website still states that “[it] can’t review your
application without an LSAT score.”11
Here again, there is a lack of information that should be developed through
the discovery process. For example, whether Standard 802 has ever been used for
an individual student, or, as Mr. Binno asserts, is limited to admission programs;
how burdensome, if at all, the Standard 802 variance process is; and whether a
variance could be obtained within an admission cycle

See, e.g. U.S. News Staff, Michigan Law School Slightly Reconsiders LSAT, U.S.
NEWS AND WORLD REPORT (Sept. 30, 2008).
http://www.usnews.com/education/blogs/paper-trail/2008/09/30/michigan-law-schoolslightly-reconsiders-lsat.
10

UNIVERSITY OF MICHIGAN LAW SCHOOL, FREQUENTLY ASKED QUESTIONS (2011).
http://www.law.umich.edu/prospectivestudents/admissions/Pages/faq.aspx.
11

12

D.

Discovery could lead to facts related to whether the ABA
“offers” the LSAT within the meaning of the ADA.

Finally, the ABA asserts that Mr. Binno has sued the wrong party because it
does not “offer” the LSAT within the meaning of the ADA. (R 17, p 13). Offering,
the ABA asserts, refers to physical administration, such as choosing the place and
manner in which the test is administered. It is not clear, however, that the ADA is
so restrictive. As noted above, 28 C.F.R. 36.309(b) requires a private entity12 that is
“offering” an examination to ensure that the examination is “selected” in a way that
reflects a person’s aptitude rather than needlessly reflecting his or her disability.
Mr. Binno’s amended complaint raises the issue of whether the ABA has selected
the LSAT by presuming that it is valid and reliable in compliance with Standard
503. As discussed above, discovery would develop the record as to whether schools
have an independent choice or are effectively compelled to require the LSAT.
Other courts have identified the issue of what constitutes “offering” under the
ADA as one appropriate for further development through discovery. For example,
when a plaintiff alleged that the National Conference of Bar Examiners (NCBE)
offers the Multistate Bar Exam, the United States District Court for the Northern
District of California initially denied NCBE’s motion to dismiss or motion for
summary judgment, stating that “plaintiff should be allowed to take discovery and
develop a full factual record on the issue whether NCBE ‘offers’ the MBE within the

While Mr. Binno alleges that the ABA is a private entity for purposes of Title III
(R 15, p 10), he also raises a claim under Title V which is not limited to a private
entity. See 42 U.S.C. § 12181(6); § 12131(1); § 12203.

12

13

meaning of the ADA.” Elder v. Nat’l Conference of Bar Examiners, 2011 U.S. Dist.
LEXIS 15787 at *12 (N.D. Cal. 2011) (motion later granted on other grounds).
Similarly, the United States District Court for the District of Columbia addressed
the same issue, and it stated that “the question whether NCBE ‘offers’ the MBE is a
factual one not appropriate for resolution through Rule 12(b)(6).” Bonnette v. D.C.
Court of Appeals, 2011 U.S. Dist. LEXIS 75076 at *39 (D. of D.C. 2011).
Whether presuming the LSAT is valid and reliable amounts to selecting, and
therefore offering, for purposes of the ADA is an undeveloped legal issue that will
depend on facts uncovered during discovery. Further factual development on the
extent to which law schools are required to give the LSAT, how difficult it would be
to obtain a variance, and whether a variance is even available on a student-bystudent basis is necessary. It is also unknown whether the ABA has ever taken any
disciplinary action against schools that have waived the LSAT or relied on a
different admission examination.

14

CONCLUSION AND RELIEF REQUESTED
Whether Michigan law schools are effectively required to base admission in
part on the result of an examination, the LSAT, that discriminates against blind
and visually-impaired persons is a significant issue to the people, universities, and
government agencies of Michigan. The allegations merit further inquiry.
Accordingly, amicus curiae Michigan Attorney General Bill Schuette
respectfully urges this Court to deny summary judgment and allow discovery.
Respectfully submitted,
Bill Schuette
Attorney General
/s/ Brian O. Neill (P63511)
Assistant Attorney General
Attorneys for Amicus Curiae
P.O. Box 30736
Lansing, Michigan 48909
517-241-0210
[e-mail]
[P63511]
Dated: November 2, 2011

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