BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 2122| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: AB 2122 Author: Lara (D) Amended: 8/29/12 in Senate Vote: 21 SENATE EDUCATION COMMITTEE : 7-2, 6/20/12 AYES: Lowenthal, Alquist, Hancock, Liu, Price, Simitian, Vargas NOES: Blakeslee, Huff NO VOTE RECORDED: Runner, Vacancy ASSEMBLY FLOOR : 65-6, 4/19/12 - See last page for vote SUBJECT : Law School Admission Test: accommodations SOURCE : Author DIGEST : This bill requires the test sponsor of the Law School Admission Test (LSAT) to provide testing accommodations to a disabled test subject, as specified. This bill prohibits that test sponsor from notifying a test score recipient that the score of any test subject was obtained by a subject who received an accommodation, and prohibits the test sponsor of the LSAT from withholding any information that would lead a test score recipient to deduce that a score was earned by a subject who received an accommodation. Senate Floor Amendments of 8/29/12 strike a reference to the Law School Admission Council (LSAC) and instead CONTINUED AB 2122 Page 2 reference the test sponsor of the LSAT, which is consistent with all other provisions of this bill. Senate Floor Amendments of 8/24/12 (1) delete the requirement that the test sponsor provide accommodations, and instead require the test sponsor to give considerable weight to documentation of past modifications, accommodations or auxiliary aids or services the test subject received in similar testing situations; (2) prohibit the LSAC from withholding any information that would lead a test score recipient to deduce that a score was earned by a subject who received an accommodation. This amendment may seem counter-intuitive, but is meant to prevent situations where the test sponsor forwards to law schools the names of the top candidates while excluding students who received accommodations; and (3) state that some provisions of this bill do not constitute a change in existing law, but are declaratory of existing law. The amendments state that this bill does not provide greater protections to people with disabilities than those provided by the Civil Code. ANALYSIS : Existing law: 1. Defines "test sponsor" as any individual, partnership, corporation, association, company, firm, institution, society, trust, or joint stock company which develops, sponsors, or administers standardized tests. (Education Code (ED) Section 99151) 2. Establishes various requirements and procedures for test sponsors to follow in administering standardized tests for admission to, or placement in, postsecondary educational institutions, such as reporting data to the California Postsecondary Education Commission. (ED Section 99152-99164) 3. Provides that any test sponsor who intentionally violates the requirements or procedures of administering standardized tests is subject to a civil penalty of up to $750 per violation. (ED Section 99163) CONTINUED AB 2122 Page 3 Existing federal law requires entities that offer examinations relating to applications for postsecondary education to offer examinations in a place and manner accessible to persons with disabilities, including providing modifications to the examination and appropriate auxiliary aids or services for persons with disabilities to assure that the examination is selected and administered to best ensure that the examination results accurately reflect the individual's aptitude or achievement level. Test sponsors are authorized to request appropriate documentation related to requests for testing accommodations, modifications or auxiliary aids. Federal and state laws define a disability as a mental or physical disorder or condition that limits a major life activity. Enforcement of federal laws and regulations governing testing accommodations is largely complaint-driven and involves multiple agencies. While the Department of Justice has overall responsibility for enforcing compliance under the Americans with Disabilities Act, the Department of Education and Department of Health and Human Services have enforcement responsibilities under the Rehabilitation Act for testing companies that receive federal financial assistance from those agencies. The test sponsor of the LSAT is the LSAC. This bill requires the test sponsor of the LSAT to provide testing accommodations, a timely appeals process and prohibits the flagging of test scores obtained using accommodations. Specifically, this bill: 1. Requires the test sponsor of the LSAT to provide testing accommodations to a test subject with a disability who makes a timely request to ensure that the LSAT accurately reflects the aptitude, achievement levels, or other factors that the test purports to measure and does not reflect the test subject's disability. 2. Requires the test sponsor to provide accommodations to a test subject who has received formal testing accommodations from a postsecondary educational CONTINUED AB 2122 Page 4 institution for a disability. 3. Prohibits the test sponsor from notifying a test score recipient (law schools) that the score of any test subject was obtained by a person who received accommodations. 4. Requires the process for determining whether to grant an accommodation pursuant to #1 to be made public, and the decision to be conveyed to the requester within a reasonable amount of time. 5. Requires the test sponsor, if it denies a request for accommodation, to provide to the requestor the reasons for the denial in writing. 6. Requires the test sponsor to establish a timely appeals process for a test taker who has been denied an accommodation request. The test sponsor must clearly post on the LSAT website information regarding refund policies for people whose requests for accommodation are denied. 7. Provides that this bill is not to be construed to limit or replace any other right or remedy that exists under state or federal law. Comments Current practice . There are numerous test sponsors conducting testing services in California. While all test sponsors have established testing accommodations procedures, as required by the federal Americans with Disabilities Act, the process for test subjects to receive formal testing accommodations and the requirements for verifying disabilities and granting accommodations varies significantly among test sponsors, including: 1. Educational Testing Service (ETS), which administers the Graduate Record Examinations, requires test subjects to submit requests for accommodations, including current documentation from a qualified professional supporting each testing accommodation requested, by the specified registration deadline. Recognizing the costs associated CONTINUED AB 2122 Page 5 with obtaining current documentation, ETS grants basic accommodations to applicants with long-standing learning disabilities, such as time-and-a-half and rest breaks, without requiring diagnostic reevaluation. 2. College Board, which administers the Scholastic Aptitude/Assessment Test, requires accommodation requests to be approved by College Board's Services for Students with Disabilities. Documentation must be provided showing that the student has a disability, that the disability causes a functional limitation that affects participation in tests, and that the requested accommodations are appropriate. Students generally work through their high school disability services office to receive accommodations from College Board. 3. The LSAC, which administers the LSAT, requires applicants seeking accommodations to first register to take the examination and then to complete and submit for review an extensive Accommodations Request Packet. The Accommodations Request Packet requires, among other items, copies of accommodations provided for prior related testing and coursework and an Evaluator Form completed by a qualified professional verifying the disability and need for accommodations. LSAC indicates initial responses to requests for accommodations occur within 14 days of receipt. However, depending on the nature of the request and documentation submitted, as well as timing, LSAC indicates the process for approval may take longer. Testing accommodations . This bill requires the LSAT test sponsor to provide accommodations to people who received formal testing accommodations from a postsecondary educational institution. According to the author's office, an individual may have a well-documented history of accommodations, yet LSAC will only consider prior postsecondary testing accommodations, among other factors. The LSAC argues that no single factor should be used in determining the need for an accommodation and that other objective and credible evidence, in addition to prior academic use of accommodations, should be evaluated. While this bill does not specify what type of documentation CONTINUED AB 2122 Page 6 a person who received accommodations from a postsecondary educational institution must provide to the LSAC, registration procedures for the Graduate Records Examination, the Test of English as a Foreign Language and Praxis Series indicate that a person requesting accommodations that were provided by a postsecondary educational institution may submit a Certification of Eligibility that appears to be less extensive than the documentation required by LSAC. Flagging test scores . This bill prohibits the LSAC from notifying test score recipients (law schools) if a person received testing accommodations, a practice commonly referred to as "flagging" a score. The author's office contends that there is no way to determine the comparability of the scores earned under non-standard conditions (when extra time is given) and standard conditions. However, the LSAC indicates that test scores are only flagged if extra time is provided as an accommodation and that evidence demonstrates that standard and nonstandard-time scores are not comparable. Further, LSAC maintains that it has an obligation to provide accurate score-interpretation information to law schools. ETS and College Board apparently no longer flag scores of people who took exams with accommodations due to litigation. FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local: No SUPPORT : (Verified 8/30/12) American Bar Association Bar Association of San Francisco California Association for Postsecondary Education and Disability Children and Adults with Attention-Deficit/Hyperactivity Disorder Disability Rights California Edge Foundation Learning Disabilities Association of California National Association of Law Students with Disabilities Project Eye to Eye CONTINUED AB 2122 Page 7 OPPOSITION : (Verified 8/30/12) Law School Admission Council ARGUMENTS IN SUPPORT : According to the author, "Unlike the Law School Admission Test, students requesting accommodations for high stakes exams such as the Graduate Record Examinations, which is sponsored by the Educational Testing Service, can easily submit a completed Certification of Eligibility in lieu of disability documentation. Clearly, the Law School Admission Council's (LSAC) stringent documentation policies create a gap between individuals who can afford the expensive assessment and those who cannot. Additionally, under LSAC's policies, when a student obtains extra time based on a cognitive or physical disability, his or her score is identified and a letter is sent to law schools notifying that an accommodation was granted and advising that the score should be interpreted with great sensitivity. This practice is referred to as 'flagging' and it creates a chilling effect that discourages individuals from requesting testing accommodations." ARGUMENTS IN OPPOSITION : The opponents argue, "If adopted, AB 2122 would unnecessarily regulate the process that LSAC uses in providing reasonable accommodations on the Law School Admission Test (LSAT) for test-takers with documented disabilities. LSAC's process for reviewing and granting accommodation requests already is subject to Title II of the Americans with Disabilities Act, with which LSAC is compliant. Further, AB 2122 is unnecessary because it would require processes in which LSAC already engages. AB 2122 appears to be a solution in search of a problem." ASSEMBLY FLOOR : 65-6, 4/19/12 AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Bill Berryhill, Blumenfield, Bonilla, Bradford, Brownley, Buchanan, Butler, Charles Calderon, Campos, Carter, Chesbro, Cook, Davis, Dickinson, Eng, Feuer, Fong, Fuentes, Beth Gaines, Galgiani, Garrick, Gatto, Gordon, Gorell, Grove, Hagman, Halderman, Hall, Hayashi, Roger Hernández, Hill, Huber, Hueso, Huffman, Jeffries, Lara, CONTINUED AB 2122 Page 8 Logue, Bonnie Lowenthal, Ma, Mendoza, Miller, Mitchell, Monning, Nestande, Nielsen, Olsen, Pan, Perea, V. Manuel Pérez, Portantino, Silva, Skinner, Smyth, Solorio, Swanson, Torres, Valadao, Wieckowski, Williams, Yamada NOES: Conway, Donnelly, Jones, Knight, Norby, Wagner NO VOTE RECORDED: Beall, Block, Cedillo, Fletcher, Furutani, Harkey, Mansoor, Morrell, John A. Pérez PQ:k 8/30/12 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED