BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      



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          |SENATE RULES COMMITTEE            |                  AB 2122|
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                                 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 
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          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)


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          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 

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             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 

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             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 

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          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

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           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, 

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            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

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