Law School Admissions Council

Introduction:

The following article was written by an attorney and legal intern of the Bennett Law Firm, following our representation of a young man against the Law School Admission Council (LSAC).  Creative license has been taken with the actual case.  However, while our client’s case ultimately resulted in his acceptance to a top Texas law school, the article should serve as a useful tool for any college graduate faced with similar action by the LSAC for any allegation of misconduct or irregularity in the law school admissions process.

 The Law School Admissions Council: What Happens When Things Go Wrong?
By Romana Sirajuddin, Summer Law Clerk – The Bennett Law Firm and
Sherri Katz, Contract Attorney – The Bennett Law Firm

Act 1

It’s a brilliant day as a young boy begins his undergraduate studies, complete with all the highest aspirations and soaring dreams for his prospective future.  Some time into the school year, the excitement and inspiration begins to wear down, replaced by nostalgia for the safe and comfortable atmosphere that a child would feel for his maternal home. That young boy, who was at one point enthralled to begin the first step towards his future, slowly begins to close his shell around him, his shyness getting the best of him as he pulls away from society. Unable to deal with the “fearful paralysis” developing out of any interaction with college mates, he stops attending classes, and because of his poor grades, is eventually placed on probation.

After a year of hiding within his isolation bubble with no friends, family, or peers to speak to, the boy moves back to his parents’ home. Over time however, a transformation occurs and that same meek, socially-unsure boy finally breaks out of his cocoon as a strong, confident-driven young man. He fights with his deepest difficulty of dealing with people in order to bounce back, ending his undergraduate career with a degree in sociology and a power house of goals to attribute to his name. He applies and receives admittance to graduate school. With a decision to reach for the stars that he has always envisioned, he begins his law school admissions process.

When completing his law school application with the Law School Admission Council (LSAC), the young man provides all the requested information, unfortunately slightly altered from the straight jacket requirements set forth by the council. A question specifically stated in the application: “Have you ever been disciplined in any way for any matter by any college, university, law school or other institution of higher learning, or by any professor, administrator, employee or entity representing any college, university, law school or other institution of higher learning, or have you ever been allowed to withdraw from such an institution to avoid such discipline, whether or not the record of such action was retained in your file?” An applicant with a list of tasks to finish within an allotted time, that young man quickly answers “no.” However, no misrepresentation was intended because that same applicant proceeded to write his admissions essay about his social ineptitude and the resulting probation after his first year of undergraduate school. 

Second, under the “Education” section of the application, he failed to disclose that first undergraduate school that he attended for a year along with a community college where he took a small number of classes. However, his LSDAS report included transcripts for both of these institutions because he never intended to “hide” any of his information, but only did not list in the “Education” portion as he misunderstood the application to only include universities from which he actually received a degree.

The LSAC however, does not include “intent” as an element in determining if a misconduct or irregularity existed in that application. So, that unsuspecting young man receives a letter from the LSAC notifying him that “your academic record and your academic history may have been misrepresented on your law school application.” Whether intentional misrepresentation of material or accidental oversight, he is now being held to the suggestion that misconduct has occurred. This could mean a permanent mark on his record by the LSAC, a prime authority in the legal circle. If he responds to this letter, his case will be referred to a representative of the LSAC Misconduct and Irregularities in the Admission Process Subcommittee at which point he will be allowed to obtain a hearing in accordance to hearing procedures set forth in Section 10 of the Rules Governing Misconduct and Irregularities in the Admission Process. Choose not to respond and the case will be determined by the chair of the subcommittee without a right to appeal.

With the LSAC’s allegation of misconduct and irregularity, the young man’s life now hangs in a precarious balance. His law school admission, reputation, and future are all in stake, a high price to pay for an unintentional error. If his file as a whole were to be considered, he did thoroughly disclose his academic record. However, placed within LSAC’s standard of misconduct without a consideration of intent, the young man stands to lose what could be his entire future.
 
An Interlude: The Law School Admission Council

The Law School Admission Council (LSAC), a non-profit corporation, provides services to law schools relating to admissions, and have the ultimate responsibility for carrying on testing programs used for admission to law schools. Over 200 law schools are currently members of the LSAC. Its nearly all ABA-approved law schools and many non-ABA approved law schools require the use of LSAC’s Credential Assembly Service (LSDAS). The LSAC’s goal is to “provide the highest quality admission-related services for legal education institutions and their applicants throughout the world.” Services provided include the Law School Admission Test (LSAT), credential assembly services encompassing letters of recommendation, electronic applications, domestic and international transcript processing for JD and graduate law degrees, the Candidate Referral Service (CRS), admission office systems and software, research and statistical reports, websites for law schools, applicants, prelaw advisors, and undergraduates from minority groups underrepresented in law school and the legal profession, testing and admission-related consultations with legal educators worldwide, and various publications, videos, and LSAT preparation tools.1

The LSAC defines “Misconduct and Irregularity” as “the submission, as part of the law school admission process, including, but not limited to, regular, transfer and visiting applications, of any information that is false, inconsistent, or misleading, or the omission of information that may result in a false or misleading conclusion, or the violation of any regulation governing the law school admission process, including any violation of LSAT test center regulations.”2 Under the Rules Governing Misconduct and Irregularities in the Admission Process, the LSAC “assumes responsibility to prevent compromise of Law School Admission Test (LSAT) materials and to provide law schools only accurate and authentic data about candidates.”3

Examples of misconduct and irregularities include, but are not limited to:

• submission of false, inconsistent, or misleading statements or omission of information requested online or on forms as part of registering for the LSAT or using LSAC's credential assembly services, or on individual law school application forms;
• submission of an altered or a non-authentic transcript;
• submission of an application containing false, inconsistent, or misleading information;
• submission of an altered, non-authentic, or unauthorized letter of recommendation;
• falsification of records;
• impersonation of another in taking the LSAT;
• switching of LSAT answer sheets with another;
• taking the LSAT for purposes other than applying to law school;
• copying on, or other forms of cheating on, the LSAT;
• obtaining advance access to test materials;
• theft of test materials;
• working on, marking, erasing, reading, or turning pages on sections of the LSAT during unauthorized times;
• bringing prohibited items into the test room;
• falsification of transcript information, school attendance, honors, awards, or employment;
• providing false, inconsistent, or misleading information in the admission and financial aid/scholarship application process; or
• attempt at any of the above.4

Failure to comply with LSAC’s ethical standards can result in sanctions, notifications being sent to involved institutions, and possibly result in being barred from law school. The Council has established investigative standards in the case of any alleged misconduct or irregularities in the admission process. Intent is not an element of a finding of misconduct or irregularity.5 LSAC’s official website explains the procedure used in a determination of misconduct:
“A subcommittee representative will determine whether misconduct or an irregularity has occurred. If the subcommittee representative determines that a preponderance of the evidence shows misconduct or irregularity, then a report of the determination is sent to all law schools to which the individual has applied, subsequently applies, or has matriculated. Notation that a misconduct or irregularity report is on file is also included on LSAT and credential assembly service reports to law schools. Such reports are retained indefinitely.”6

To obtain a determination, you may choose to have a telephonic hearing under Section 9 of the Rules. Administered by the Hearing Officer, an LSAC staff member, this type of a hearing is considered an “informal procedure” not governed by formal rules of evidence. As per Section 10 of the Rules, the purpose of such a hearing is “to allow the candidate to explain or submit relevant information that may relate to whether a preponderance of evidence indicates that misconduct or an irregularity has occurred in the admission process.” Such a hearing will include:

• An introduction of all parties
• Opening remarks
• Remarks about the purpose of the hearing and the role of the LSAC
• Opening statement of the candidate
• Question and Answer Period
• Closing Statement of the Candidate
• Adjournment

Following the hearing, if the Subcommittee Representative determines by a preponderance of evidence that misconduct or irregularity occurred, the case determination will be sent by the LSAC to all law schools to which you have or will apply after the expiration of a 15-day appeal period. What happens in the case that you find that the hearing was not conducted as necessitated by the LSAC’s self prescribed procedures? How do you argue that the LSAC, a private entity, has violated certain due process standards?

Act II

Now returns to stage that same young man, faced with a letter from the LSAC alleging misconduct and irregularities in his law school application. He has chosen to hire an attorney to aid in his hearing with the Council. A telephonic hearing with the LSAC Hearing Officer, counsels, and the applicant commences. Thus begins the sole opportunity for the student to proclaim his innocence. The hearing however, goes horribly awry.

The Hearing Officer for the council, a director of college admissions at a Midwestern university,  claims that she “will continue to follow the natural progress of the hearing…which is to again ask specifically [the applicant] if he would like to amend the record or add any additional clarifying information to guide me or to help me understand the matter as we make the determination. Any additional information is welcome to be added at this time.” When the young man’s attorney attempts to ask questions about the procedure of the hearing, the LSAC’s General Counsel refuses to respond, stating “I’m not going to respond to your question because I think I’ve responded to it before and you have turned this matter into an inquisitorial matter. It is not intended to be that. It is intended for you or your client to supplement the record in any way you wish, not to examine the evidence.”

Even though a question and answer period was clearly dictated within the hearing guidelines, the argument is made that “the purpose of this hearing is not to examine witnesses or evidence. It’s to supplement the record. And that’s why I’m trying to stay silent when you ask these questions. I think the best thing to do is if you have these questions go ahead and put them on the record. I probably won’t answer them because it’s not appropriate, but [the hearing officer] can make her decision based on her understanding of your implied or explicit argument.” The attorney for the applicant’s questions go unanswered. The LSAC just proceeds in an argumentative fashion, choosing to sidestep the questions presented by the applicant’s attorney and the hearing officer holds only a façade of actually having any control over the situation as a whole.

As explained by the LSAC, a proper hearing is to consist of a question and answer period in which the participants will be allowed to ask questions. However, no such valid question and answer period occurred in which the applicant or his attorney could ask questions. A fair opportunity at a hearing would constitute the opportunity to show that “he did not violate the conditions” or that there was “a justifiable excuse” for any violation.7 The procedural due process right to a fair and proper hearing is instilled in the federal and state law. By not allowing for a satisfactory telephonic hearing, our young man was denied the right to a fair hearing, and a due process violation occurred.

If a court were to weigh this situation under the four prong test determined by the Supreme Court, it would find that the private interest affected by LSAC’s violation of its own hearing procedures is high for a law school applicant who risks his reputation and entire future career in law. The risk of erroneous deprivation of that interest through the procedures used is also high. Because of the argumentative nature of the counsel in the telephonic hearing and because of the hearing officer’s lack of control over the situation in order to allow for questions to be properly asked and answered, there is a great chance that our young man could be deprived of his fundamental right to a fair hearing.

Value of additional procedural safeguards is also high as the LSAC could avoid unfair hearings such as the one conducted for the student by fulfilling its own duty of conducting a telephonic hearing.  Each side should be permitted to completely state their claim and properly ask questions as is specified in the procedures adapted by the LSAC. Finally the government interest involved is also high in the case of the LSAC, the argument for which is seen in the analysis above that the majority of the LSAC’s member school are public universities in the United States and that the LSAC is a recognized and monopolistic entity throughout the nation.

Alternatively, by creating its own hearing procedure standards, LSAC had subjected itself to a certain contractual obligation, one which should have been satisfied without interference. However, the hearing was not conducted as necessitated by the LSAC’s self prescribed procedures. If, after the unfair hearing, it is found that misconduct occurred, should our young man be unfairly subjected to a permanent mark on his record? Is it appropriate to allow for a determination made under a hostile, inappropriate and inefficient environment?

Create your own Ending

Because the LSAC is a private entity, it has been evident over time that holding the LSAC accountable through federal constitutional standards is not a simple cookie-cutter formula. To an extent, the council has deemed to be somewhat unreachable. However, the organization is deeply delved within the public through their active and major involvement in the law school admissions process. How then would one deal with the Council if litigation against the LSAC becomes necessary? What would become of our young man?

In 1934, the U.S. Supreme Court held that due process is violated "if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental". A basic, three-part test is applied to determine whether or not procedural due process has been violated: (1) Has there been a deprivation; (2) of life, liberty or property, (3) without due process of law?8 Questions of procedural due process require an analysis of (1) whether the plaintiff has a constitutionally protected property or liberty interest at stake, and (2) if so, what process is due to sufficiently protect that interest.9 The due process clause in the Texas constitution requires the same level of due process as the federal constitution.10

When considering the options through which a public entity can be deemed a state actor, the argument can be made that LSAC has been granted a monopoly over the initial foundations of the law school admissions process and should be subject to the constitutional due process standards because it is, in essence, receiving substantial state encouragement. Obtaining LSAC reports that analyze an applicant’s academic history are mandatory by many accredited law schools, and the LSAT, developed by the LSAC is the sole law school admissions examination. Both public and private law school throughout the nation recognize LSAC as the council for law school admissions. The LSAC has established itself as the sole entity at the basis of the admissions process.

The LSAC performs what can be identified as a quasi governmental function as the government has acknowledged and accepted the LSAT as a necessary examination and the LSAC’s reports as substantial and legitimate authority when dealing with a law school admission. In fact, LSAT scores are recognized and rated as one of the most important criteria to not only admissions but also to the ranking of the school itself within the U.S. World News Report. Further, in 1968, the Law School Admission Test Council, ancestor to the LSAC, was incorporated under New York education law.11 In 1979, Law School Admissions Services, Inc. created as a Delaware non stock corporation, assumed responsibility for most of the Council’s operations.12 Because the LSAC is established as a nonprofit corporation, recognized by numerous states, the argument can be made that as a corporation, it has a quasi governmental function. As the government has authorized its existence and allowed it to possess monopolistic power, the standard due process rules should be applied, mentioned above.

However, the major setback within the argument that LSAC is a state actor is the fact that LSAC does not receive any government funding. In Scher v. NASD, where the NASD, a private corporation received no federal or state funding, its creation was not mandated by statute, nor did the government appoint its members or serve on any NASD board or committee, the court ruled that NASD’s actions could not be imputed to the government nor could its agents bind the government.13 It may also be difficult to hold LSAC to governmental due process standards if is considered to be similar to other private nonprofit organizations such as the NCAA. The Supreme Court ruled in NCAA v. Tarkanian that the NCAA was not a state actor because it was comprised of both private and public schools from multiple different states and government entities.14 Further, courts have held that the administration of standardized tests for law school admission is not a function that is “traditionally the exclusive prerogative of the state.”15 Because of LSAC’s status as a private entity with no government funding and its own privately run Board of Trustees, attempting to apply constitutional due process standards to the LSAC is difficult.

While courts have not specifically ruled on whether the LSAC is a state actor, courts have found that the ETS, also a private entity that works closely with the LSAC to administer tests, is not a state actor.16   Similar to the LSAC, ETS is governed by a self-perpetuating Board of Trustees, and satisfactory performance in the ETS-administered test was only one requirement of several, just as the LSAT is only one requirement of several in the law school admissions process. The one difference is that, “while ETS does provide a valuable service to members of the LSAC, less than one-half of those members are public institutions; there is no indication that public institutions provide the "vast majority" of ETS's capital or that state instrumentalities are a dominant force in determining its policy and dictating its actions.” The LSAC on the other hand, is composed of a substantial number of public schools and schools such as the University of Michigan law school collaborated and funded the research and development of the LSAT.17

However, in the absence of state action, the only requirement would be a contractual obligation, which would bind the LSAC to the procedures they have specifically published for all member schools. It is within the rights of the “fundamental fairness” vision of due process that this applicant be granted a fair and proper hearing by the LSAC, regardless of the Council’s status as a private entity.18 When the hearing officer and LSAC General Counsel failed to allow a fair and proper question and answer period to the applicant, a contractual obligation was breached and they violated their own published procedures. In the case of such an obligation being breached by interference in the stated procedures, “such interference to be actionable must be intentional and without justification.”19

Scriptwriter’s Note: Get an Attorney
Making the argument that LSAC is a state actor or that it should be subject to constitutional due process standards is an argument that may be difficult to make given LSAC’s long standing identity as a non profit, private organization funded and governed privately and without government involvement. However, when faced with dealing with the LSAC, some remedy or recourse must be searched for. Just because the LSAC is a private entity does not grant it unlimited and unobstructed authority to conduct matters as they choose. In fact, by setting up its own rules and procedural standards, as a matter of a contractual obligation, LSAC must adhere to its proper hearing policies and methods. It thus becomes vital that you consider hiring an attorney who can understand the situation and better prepare you for dealing with the powerful LSAC.

By obtaining an attorney who is well versed in administrative law litigation, you have the opportunity to take advantage of their expertise and prepare yourself for litigating with an entity that holds high regard in the legal world. Remember, the basic “fundamental fairness” vision set forth by our Supreme Court requires that any hearing, as a matter of justice to the student applying to law school, be fair and proper. It cannot be ignored that a determination by the LSAC is one that could potentially hold substantial weight in the eyes of any law school.  In addition, once that mark has been made on a law student’s record, could prove to be problematic when filing your Intent to Practice Law with the Board of Law Examiners, should you actually get into a law school, graduate, sit for a state bar, and apply for a state bar admission.

Litigating against the LSAC is not a matter to take lightly nor is it one to be threatened by. Today the LSAC faces several types of litigation and yet is seemingly holding tight to its “holier than thou” image. What is needed is for the legal community to come to terms with the situation and take a stand that would require the Council to answer to its members. No more should we allow for unfair discriminatory tactics or improper hearing standards that would subject the applicants to a potential of erroneous deprivation from a rightful, fair and reasonable interaction with one of the largest and most powerful groups in the legal field.

1. http://www.lsac.org/AboutLSAC/about-lsac.asp
2. “Misconduct and Irregularities.” http://www.lsac.org/Applying/misconduct-and-irregularities.asp
3. Rules Governing Misconduct and Irregularities in the Admission Process
4. “Misconduct and Irregularities.” http://www.lsac.org/Applying/misconduct-and-irregularities.asp
5. Id.
6. Id.
7. Black v. Romano, 471 U.S. 606, 612 (1985)
8. Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)
9. Board of Regents of State Colls. v. Roth, 408 U.S. 564 (1972); Hartford Casualty Ins. Co. v. State, 159 S.W.3d 212 (Tex. App.—Austin 2005, pet. denied).
10. University of Tex. Med. Sch. at Houston v. Than, 901 S.W.2d 926, 929, 38 Tex. Sup. Ct. J. 910 (Tex. 1995). (Stating that in matters of procedural due process, Texas courts traditionally follow federal due process interpretations and consider federal decisions on these matters persuasive authority)
11. William P. LaPiana, “A History of the Law School Admission Council and the LSAT.” 1998 LSAC Annual Meeting.
12. Id.
13. Scher v. NASD, 386 F. Supp. 2d 402 (S.D.N.Y 2005)
14. NCAA v. Tarkanian, 511 U.S. 1033 (1994)
15. Blum v. Yaretsky, 457 U.S. 991, 1005 (1982)
16. Johnson v. Educ. Testing Service, Inc., 615 F. Supp. 633 (Mass. 1984)
17. William P. LaPiana, “A History of the Law School Admission Council and the LSAT.” 1998 LSAC Annual Meeting
18. Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)
19. Johnson v. Educational Testing Service, Inc., 615 F. Supp. 633, 639 (Mass. 1984)