Last week, LSAC agreed to pay $7.73 million in penalties and damages to some students who applied for special accommodations on the LSAT and to reform some of its allegedly discriminatory practices. Elie wrote about the story in a post entitled “The LSAT Can’t Discriminate Against the Disabled: So, Time For Everybody To Get ADD.”

I agree with some of LSAC’s past policies and am happy to see others, like the flagging of score reports, go. I think that it’s hard, though, to contribute much to this conversation by worrying about people faking their way through an ADD exam . . . without knowing what an “ADD exam” means in this setting. It’s hard to move the issue forward by insisting that LSAC discourage abuse without being unfair. . . without knowing what LSAC has done in the past and why.

I’ve worked as a clinician administering many of the tests used to assess learning disabilities and difficulties, and I’ve helped individuals whose tests show they need intervention. (My favorite may be the Woodcock – Johnson Battery, just because of its name.) I currently use cognitive science to study how people best learn in law school. I may not be an authority like Dick Woodcock, but you could do a lot worse than me on a legal blog. So, I’d like to fill out the picture in the LSAC story a bit more….

First, I’ll respond to some general skepticism about LSAT special accommodations.

“People shouldn’t get special treatment on the LSAT because they won’t get special treatment in the profession.”

No, they probably won’t. But most adults with learning disabilities are experts at self-accommodation. They find innumerable, often pretty clever, ways of working around their limitations on a day-to-day basis. The problem is that standard testing conditions don’t allow them to employ those adaptive work-arounds. Read about how acclaimed litigator David Boies describes his experience with dyslexia.

“People lie about this stuff all the time and get away with it.”

It’s actually pretty hard to fake your way through the battery of neuropsychological diagnostics used to properly assess most cognitive impairments. Researchers spend a lot of time studying malingering and symptom exaggeration, including deceptive tactics by older students on cognitive tests for conditions like ADHD. Diagnostic instruments are designed with this in mind. A trained, skilled, and ethical clinician knows to look out for tell-tale aberrations. It’s actually much easier in most cases to get an Adderall prescription from a family physician than to fake your way through neuropsych testing.

LSAC’s Guidelines for Documentation of Cognitive Impairments make clear that “Checklists and/or ADHD symptom rating scales [ . . . ] by themselves are not adequate to establish a diagnosis of ADHD.” (Read more about what objective data they require at the top of page 3 of the Guidelines.) It’s not as simple as reading a checklist of symptoms and then play-acting.

“Everybody’s on Adderall these days and now everyone is going to get extended time on the LSAT.”

Rather than helping someone get extended time or other accommodations on the LSAT, simply taking medication alone tends to reduce your chances of approval. If the only treatment you receive for your impairment is medication, LSAC figures that your meds take care of your symptoms and that you will experience those benefits while taking the LSAT. You can worry about the guy who is gobbling performance-enhancing Vyvanse, but he’s probably sitting next to you, without extended time.

Now let’s address some concerns from the other side, about how LSAC’s policies may have unreasonably burdened disabled students.

“If someone got accommodations for the SAT, that should be enough to get them on the LSAT.”

LSAC wanted to know if applicants received accommodations in the past, but that didn’t stop LSAC from asking for additional documentation. Under last week’s consent decree, LSAC must start “automatically granting most testing accommodations” that someone can show they received for past standardized tests. This change is unwise, but not simply because it makes it easier for abusers to game the system.

Neither learning disabilities nor testing accommodations are strictly binary concepts. Dyslexia, for example, is not like an amputated arm, where either it’s really there or it’s really not. It exists in degrees in those in whom it is present. The goal of a testing organization or school is to craft a particular set of special conditions that correspond to the degree of disability in an individual. Those special conditions can vary even among students with the same general diagnosis. They can vary across time in the same student. Achieving the right fit requires a reliable, nuanced picture of the type and severity of the student’s disability. You won’t get that picture by simply deferring to old evidence that may be a decade or more outdated. There is a genuine need for current diagnostic results even among students who indisputably have impairments.

“LSAC should not ask about what medications students might be taking.”

LSAC previously told applicants who needed to update their cognitive evaluations: “Please note that if you are currently taking medication, you should consider being evaluated while on your medication. Any deviation from this practice must be explained by your evaluator.” The problem for LSAC is that the Americans with Disabilities Act says that “the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as [ . . . ] medication.”

LSAC has told applicants in the past that “the diagnosis and documentation of an impairment does not entitle you to accommodation(s). Rather, the impact of your impairment on a major life activity that affects your ability to take the LSAT under standard conditions must be appropriately documented so that reasonable accommodations can be determined.” Basically, LSAC said that it wasn’t using meds as a way of determining whether someone had an impairment; it was using the meds as a way of determining what, if any, accommodations her impairment warranted while taking the LSAT. Hair-splitting, perhaps, but there is a difference.

LSAC should, indeed, know whether a student took her medication during diagnostic testing. Some clinicians ask clients to not take their meds on diagnostic days. Some ask clients to be sure to take their meds. LSAC ought to know which was the case for particular applicants so that it knows how to interpret the results and provide the applicant with the right amount of extended time or other accommodation.

“By demanding updated proof, LSAC caused unfair delays in processing applications.”

An applicant might submit an application for accommodations, hope that she included everything LSAC might want, wait, respond to vague requests for further documents, scramble to collect additional paperwork, or get new testing done, and wait some more — all with a pending LSAT test date, all without knowing what, if any, accommodations she might receive. Bear in mind that new diagnostic testing often last many hours at a time, sometimes several full days in a row. LSAC should reduce the delays the plaintiffs complained of. Automatically accepting old proof of disability is not the only way, though.

LSAC could minimize delays by making its application process more transparent from the start. Potential applicants could then begin assembling their documentation well in advance, with confidence that they are doing enough to build a strong application but not wasting their time or money. The opacity of the process is a big part of why deserving applicants face unfair delays.

Elie was right about at least one conclusion in his piece: “we have to keep thinking about how to achieve both fair treatment for disabled people and furious anger for abusers.” But that process doesn’t get very far with only cynical assumptions about how people actually receive or don’t receive special testing accommodations.

Earlier: The LSAT Can’t Discriminate Against The Disabled: So, Time For Everybody To Get ADD

Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at tabo.atl@gmail.com