The Law School Accommodations Racket

“In the fall of 2023, I took my first law school exam, a 13-page extravaganza replete with tortured fact patterns and endlessly subdividing short-answer questions. We had all of three hours to complete it. In a state of sustained panic, I macheted my way through the onslaught of pages, managing—just barely—to finish in the nick of time. The result was a piece of work product that, in any other legal context, would be career-ending: an unedited first draft, blurted out under conditions of extreme haste. Several students I spoke with had failed to complete the exam at all. Other students, however, had disability accommodations, which afforded them either one-and-a-half or double time—that is, they’d have four-and-a-half to six hours to complete a three-hour exam. According to the U.C. Berkeley Disabled Students’ Program (DSP) website, more than a third of Berkeley Law students—37.5 percent, according to the most recent numbers—receive disability accommodations. For reference, in 2021, 10 percent of U.C. Berkeley undergraduates and a mere 3 percent of the school’s graduate students claimed disability status. At our nation’s community colleges, this figure is 3 to 4 percent ; on the California Bar Exam, around 7 percent . At Berkeley Law, there are more disabled law students than there are male law students. --> At Berkeley Law, there are more disabled law students than there are male law students. By the end of the academic year, upwards of 40 percent of Berkeley Law students may be enrolled in the university’s DSP (the total increases throughout the year). Furthermore, data obtained from Berkeley’s DSP office reveal that 98 percent of disabled students have a primary or secondary diagnosis of “ADD/ADHD,” “anxiety,” or (somewhat less commonly) “depression.” Neither is Berkeley Law an anomaly: at other California schools , the proportion of students receiving accommodations is often roughly similar. When I spoke to Chelsea Yuan, Director of Student Academic Advising and Support Services, Accessible Education, she said that the number of students seeking accommodations has been increasing since the early 2000s. Are Berkeley Law students likely to be disabled in such high numbers? The answer, almost certainly, is “no.” In his landmark study of legal education and socioeconomic status, UCLA Professor Richard Sander demonstrated that students at elite law schools overwhelmingly tend to hail from the upper income brackets. Law students are also likely to be young and, by definition, highly educated. Each of these indices—affluence, youth, and education—is negatively correlated with disability status, whether or not those disabilities happen to be psychological. Yet we are asked to believe that students at elite law schools are significantly more likely to be disabled than our nation’s senior citizens, who claim disability status at a rate of about 24 percent . This is not how disabilities behave at the population level. We are asked to believe that students at elite law schools are significantly more likely to be disabled than our nation’s senior citizens --> Neither are students claiming to be disabled when they go on—as most Berkeley Law students do—to work at law firms. According to data compiled by the National Association for Law Placement (NALP), a mere 2 to 3 percent of firm lawyers, and only 3.75 percent of summer associates—that is, of current law students—claim disability status in what is a notoriously demanding and time-pressured job. Moreover, these figures represent the entire universe of disabilities, a fact that would require us to believe not just that nearly every disabled student is failing to claim disability status, but also that lawyers with disabilities other than “ADHD” and “anxiety” are essentially nonexistent. Further, at U.C. Berkeley, proportionally more women than men seek accommodations for ADHD — even though in the population at large, men are several times more likely to have this disorder. Thus, either many students are falsely claiming to be disabled, or the number of disabled students is truly staggering — to the point where disability status would in fact be the norm, and the exception would swallow the rule. Most large firms are hiring candidates based solely upon a single semester of grades. --> Why do students at elite schools like Berkeley Law claim to be disabled in such high numbers, relative to their counterparts in other educational contexts? The answer is that they have an incentive to do so. At elite law schools, career outcomes depend almost entirely on performance in first-year required courses, and that performance is typically determined by a single, brutally curved, exceedingly time-limited exam. Indeed, in recent years, recruiting practices have devolved to such a point of insanity that most large firms are hiring candidates based solely upon a single semester of grades. The Americans with Disabilities Act (ADA) requires schools to make “reasonable accommodations” for students who suffer from an “impairment” that “substantially limits a major life activity,” unless the accommodation in question would “fundamentally alter” a school’s programs or activities, or otherwise constitute an “undue burden.” Moreover, in 2008, Congress amended the ADA to be more permissive. Guidance issued by the Departments of Education and Justice specifies that extended exam time is generally a reasonable accommodation, and courts have tended to agree—although no case law governs the provision of extended time on law school exams specifically. In this legal environment, a school’s incentives are to grant accommodations requests as a matter of course: there is simply no downside to doing so, whereas the threat of ADA litigation is a very real one. In this legal environment, a school’s incentives are to grant accommodations requests as a matter of course. --> It is also easy to establish that a student has an “impairment” that “substantially limits a major life activity.” According to the DSP’s website, when making this determination, administrators look principally at whether a “qualified professional” has diagnosed a student with “ADHD” or “anxiety,” as they are defined in the most recent edition of the Diagnostic and Statistical Manual . In contrast, to claim that one has a “learning disability,” a student must comply with a significantly more onerous set of documentary requirements. As such, it is not surprising that, relative to the number of students with “ADHD” and “anxiety,” there are few students in the DSP with learning disabilities. Neither do the DSP administrators attempt to quantify the amount of time a disabled student will need to offset the supposed performance-delaying effects of their purported impairments. Indeed, there is not even a norm against which they might measure this. As it stands, on a three-hour exam, the DSP simply assumes that students with “ADHD” or “anxiety” may spend up to an hour and a half or two hours being distracted or otherwise unable to perform, and furnishes them with extra time accordingly. This one-size-fits-all practice is arguably contrary to regulatory policy, given the ADA’s mandate that administrators make “individualized determinations.” “ADHD” and “anxiety” are notoriously unreliable diagnoses—that is, doctors disagree as to whether they are present in a significant percentage of cases. Although this question is somewhat mooted in a world in which such diagnoses are proffered based upon self-reported symptoms on a checklist. When I spoke with the Dean of Berkeley Law, Erwin Chemerinsky, it was clear that this was not an issue he was keen to discuss. When I asked if the school’s accommodations program was a matter of concern or if the law school was exploring ways to reform the system, he said that the law school has no authority over accommodations, which are handled by the university’s DSP. The law school complies with the law, and that is all, he said. Yes, I have an agenda: I want to take fair law school exams. --> A person who seeks reform faces hostility on multiple fronts—particularly when nearly half of his fellow students will be bitterly opposed to his efforts, and particularly when he is confronted by an administration that is at once terrified of offending purportedly marginalized groups, and, perhaps, embarrassed by the sheer enormity of the fraud, the abuse, and the systematic unfairness they are obliged to countenance. Indeed, the Dean accused me, repeatedly, of “having an agenda.” Yes, I have an agenda: I want to take fair law school exams. Of course, there may be a charitable explanation for this phenomenon. The problem is that a charitable explanation of the overarching phenomenon would require an entire scaffolding of charitable explanations. Simply put, it is highly improbable that so many elite law students have “impairments” that “substantially limit major life activities” in ways that just happen to dramatically and negatively affect their ability to take tests. Neither a plain reading of the legal and regulatory language nor an understanding of how disabilities work at the population level can support this idea. Which is why we are in need of an iconoclast. President Trump could go a long way toward solving this problem. A single executive order, together with revised administrative guidance and a notice of proposed rulemaking, could change the incentive structure. The ADA and its implementing regulations do not preclude a more stringent accommodations process. And there’s no reason why schools are unable to act of their own accord: if the California State Bar can maintain relatively strict requirements, then schools can follow suit. The ADA has become a tool of the affluent classes for the perpetuation of their own power and privilege. It’s time we stripped them of it. Andrew Testerman is a recent graduate of Berkeley Law School and an incoming lawyer in the federal government. The post The Law School Accommodations Racket appeared first on The James G. Martin Center for Academic Renewal .

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