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The tests “disproportionately screened out female applicants, resulting in a disparate impact against those applicants.” Officers who are highly fit have more options in a situation where force is required — subduing a suspect without resort to a gun, for example. Still, courts have often gone along with demands to weaken tests and standards. [DoJ press release] More: TV and Treadmills (FBI uses higher standards than the ones DoJ is suing over).


Law schools roundup

by Walter Olson on May 22, 2014

  • Under DoJ gun, LSAT agrees to end flagging of test scores taken with disabled accommodation, cough up more than $7 million [Justice press release, Caron/TaxProf roundup coverage]
  • “Things law school trustees probably should not do: subpoena their own school’s students for criticizing them” [@petersterne; Danielle Tcholakian, DNAInfo]
  • Should law students graduate without studying the First Amendment? And other thoughts from Justice Scalia’s William & Mary commencement speech [text via Will Baude]
  • “Rank ordering the likelihood of law school reforms” [Prof. Bainbridge] ABA moves forward with law school accreditation changes; tenure, among other institutions, likely to remain sacrosanct [Caron/TaxProf, Fortune]
  • Paul Horwitz reviews James R. Hackney Jr. book on contemporary legal academy [Journal of Legal Education via Prawfs]
  • Alex Acosta dean case: should conservative legal academics steer clear of Florida? [Bainbridge]
  • Orin Kerr vs. Erwin Chemerinsky and Carrie Menkel-Meadow on curricular reform [Volokh Conspiracy]


Disabled rights roundup

by Walter Olson on January 13, 2014

  • “US Airways has agreed to pay $1.2 million in fines because it provided inadequate wheelchair service at the Charlotte and Philadelphia airports” [Charlotte Observer, USA Today; on abuses of the right to request wheelchair service at airports, see links in our post last May] Support animals on airplanes, cont’d [NYT]
  • In New York, indefinite leave of absence may be deemed a reasonable accommodation that employer is obliged to grant [Erin McPhail Wetty, Seyfarth] Per Second Circuit in NYC case, timely attendance not essential job function [Mark Kittaka, Barnes & Thornburg]
  • US disability rate fell 25 percent between 1977-87, then more than doubled [Tad DeHaven, Cato via Bryan Caplan] Has a Kentucky attorney found holes in the SSDI system? [Jillian Kay Melchior]
  • Per EEOC, employer may be obliged to grant employee’s request to work from home as reasonable accommodation [Johanna Wise, Seyfarth]
  • Lawprof suspended for allegedly yelling at subordinates sues under ADA [Althouse, Above the Law]
  • “None of the people who complained had even been into the store” [San Diego Reader]
  • And yet more from EEOC: employer “integrity testing” meant to assess applicants’ honesty, trustworthiness and dependability can run afoul of disabled-rights law [link]
  • Great moments in union contracts: “Many Suburban Cops Allowed To Work ‘Half Drunk'” [NBC Chicago]
  • California high court imposes arbitrary damage-splitting rule on mixed-motive firings [Cheryl Miller, The Recorder]
  • More tales of much-forgiven Broward County bus drivers [Sun-Sentinel, background]
  • Sixth Circuit: SEIU robocalls to harass hospital CEO don’t violate TCPA [Littler]
  • Judge rejects EEOC position against alcohol testing of steelworkers in safety-sensitive posts [Paul Mirengoff, PowerLine, Reuters]
  • “NYFD made written test impossible to fail, but diversity recruits in Academy can’t meet physical standards either.” [Ted Frank/PoL]
  • “The March Toward a Bullying Cause of Action Continues” [Michael Fox, Employer's Lawyer;]
  • T’wasn’t easy for White House to find a new Labor Secretary to the left of Hilda Solis, but meet Tom Perez [WaPo]


Schools roundup

by Walter Olson on October 10, 2012

  • “Background Checks for School Volunteers: Helpful or The Opposite?” [Lenore Skenazy, Free-Range Kids] And Kennedy interviews anti-helicopter mom Skenazy at;
  • NAACP asks Department of Education to strike down entrance exam used by NYC for selective high schools [Roger Clegg, NRO]
  • Even as feds restrict school lunch calories, they pump up new breakfast program. Both ways their power grows [James Bovard/USA Today, Ira Stoll] And here comes an expanded federal program of afterschool, weekend and holiday meals, relieving parents even further of responsibility [FRAC]
  • If fiscal stringency is destroying U. Calif., you’d never guess from the diversity end of it [Heather Mac Donald, City Journal] Ilya Shapiro op-ed on Fisher v. University of Texas [Jurist, background] Why not let universities run themselves? [Richard Epstein]
  • NYC: “Interesting that this all happened at the High School for *Legal Studies*.” [Ann Althouse]
  • Bill vetoed by California Gov. Brown would require state university professors seeking tenure to engage in “service.” Research, teaching don’t count? [John Leo, Minding the Campus; history]
  • After Tucson’s ethnic “solidarity” curriculum [New York Times via @NealMcCluskey]


The U.S. Department of Justice is taking the position that it violates the Americans with Disabilities Act for the Law School Admission Council to inform law schools that test-takers got extra time or other accommodations after lodging demands under the ADA. The ABA is siding with disabled-rights activists in calling for an end to test score flagging. [ABA Journal]


Disabled rights roundup

by Walter Olson on August 8, 2012

  • Lawprof’s classic argument: you thought I was capable of going on a workplace rampage with a gun, and though that isn’t true, it means you perceived me as mentally disabled so when you fired me you broke the ADA [Above the Law, ABA Journal, NLJ]
  • “Fragrance-induced disabilities”: “The most frequent MCS [Multiple Chemical Sensitivity] accommodation involves implementing a fragrance-free workplace [or workzone] policy” [Katie Carder McCoy, Washington Workplace Law, earlier here, etc.]
  • Netflix seeks permission to appeal order in captioning accommodation case [NLJ, Social Media Law via Disabilities Law, earlier here, here and here]
  • EEOC presses harder on ADA coverage for obesity [PoL, earlier here, here, here, etc.]
  • Disability groups seek class action: “ADA Suit Claims Wal-Mart Checkout Terminals Are Too High for Wheelchair Users” [ABA Journal, Recorder]
  • Crunch postponed until after election: “Despite delays, chair lifts coming to public pools” [NPR Morning Edition, earlier here, here, here, etc.] Punished for advocacy: disabled groups organize boycotts of “hotels whose leaders, they say, have participated in efforts to delay regulations.” [USA Today]
  • Disabled student sues St. Louis U. med school over failure to provide more time on tests [St. L. P-D]


When the topic of testing accommodations comes up in the Disability Law classes he teaches, Sam Bagenstos is struck at the vigor with which his students push back, finding it unfair that so many of their colleagues request and obtain extra time on exams as an accommodation to learning disabilities or other intellectual disabilities, and expressing concern about the danger that some families will be better than others at playing the system. “I believe that the solution is to give all students more time. For this reason, I give take-home exams wherever possible.” Scott Greenfield isn’t satisfied by this answer at all:

…when it comes to being a lawyer, the desirability of providing accommodations is trumped by the ability to fully, competently and ethically serve clients….

Yes, there are things that lawyers do which don’t require speedy processing, but as long as a lawyer is just as entitled to try a case as write a contract, he must be capable of doing both.

More: Paul Horwitz.


Schools roundup

by Walter Olson on December 21, 2011

  • Students respond to L.A.’s “healthful” school lunch initiative with a loud “yuck” [L.A. Times, Michelle Malkin/NRO]
  • L.I.: School suspends students for “Tebow” kneeling in hallway [Newsday]
  • “Growing number of college students asking for wiggle room with their academic workloads due to mental health issues.” [WSJ]
  • Proposal to address “learning disability” tangle: give all test-takers extra time [Ruth Colker, SSRN, see p. 126] A.D.H.D. diagnosis and the academic struggle for advantage [Melana Zyla Vickers, NYT "Room for Debate"] “Pediatrician Group Seeks to Boost ADHD Diagnoses” [Sullum]
  • Will distance technology defeat the teachers’ union? [Larry Sand, City Journal]
  • Time to repeal Maryland’s awful “maintenance of effort” law on school funding [WaPo, Baltimore Sun] Contra: MSEA, PDF.
  • French-language cops: “Montreal schools move to scan playground chatter” [Ottawa Citizen]


“The [U.S. Department of Justice] has forced other police departments across the country to lower testing standards” on the grounds “that not enough black candidates were passing.” [WKEF (auto-plays video) via Perry]


May 26 roundup

by Walter Olson on May 26, 2010

  • Oh dear: Elena Kagan praised as “my judicial hero” Aharon Barak, ultra-activist Israeli jurist flayed by Posner as lawless [Stuart Taylor, Jr./Newsweek] Kagan and executive power [Root, Reason]
  • More on efforts to get feds to redesign hot dogs and other choking-risk foods [NYT, earlier]
  • Amid brouhaha over Rand Paul views, Chicago firefighter-test case provides reminder of how discrimination law actually plays out in courts today [Tabarrok, MargRev]
  • So please, Ken, tell us what you really think of this Mr. Francis (“Girls Gone Wild”) and his nastygrams [Popehat]
  • More on SEIU’s tactic of sending mob to banker’s home in suburban Maryland [Volokh and more, earlier]
  • “Intensive Parenting Enforced: Parents Criminal Liability for Children Skipping School” [Gaia Bernstein, ConcurOp on a California bill]
  • Julian Ku unimpressed with United Nations officials’ claims that Arizona immigration statute violates international civil rights law [Opinio Juris] Plus, a complaint to the Inter-American Commission on Human Rights [Kopel, Volokh] Ilya Shapiro analyzes statute’s constitutionality [Cato]
  • Bill moving through Congress would force states, localities to accept unionization, arbitration for public safety workforces [Fox, Jottings] And here comes the giant federal bailout of union pension funds [Megan McArdle]


“A prospective law school student who alleges he has a disability filed a suit in U.S. District Court in the Western District of Texas, seeking a court order to force the Law School Admissions Council to provide him with accommodations under the Americans with Disabilities Act for the Law School Admissions Test.” [Texas Lawyer via ABA Journal]


So asks Charlie Roberts, who ran the testing division for the Chicago Police Department from 1995 to 1999, upon learning that the city is simply going to give up on testing because of the threat of lawsuits. (Fran Spielman and Frank Main, “Police may scrap entrance exam”, Chicago Sun-Times, Jan. 6.) The problem is exacerbated by the EEOC’s Four-Fifths Rule—of dubious constitutionality after Ricci—which holds that any selection process that results in a selection rate for any race, sex, or ethnic group less than four-fifths of the most successful group is “adverse impact” that “constitutes discrimination unless justified.” 41 CFR § 60-3.


A suit against Princeton is the latest in a long succession to make headlines. [Kerr, Volokh]


The U.S. Department of Justice is ramping up its “disparate-impact” enforcement in an action against the Massachusetts Department of Corrections, according to Roger Clegg at NRO.

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We’ve often touched on the subject of lab testing and defensive medicine, but as Happy Hospitalist points out [Oct. 11], ordering needless testing is by no means the only way the various parties endeavor to avoid liability. Another is the superfluous communication of not-really-urgent abnormal test results, sometimes on a doctor’s pager at 4 a.m.:

Unfortunately, patient safety is rarely an issue. It’s a giant game of shifting liability. The lab documents they notified the nurse–>lab off the hook if something bad happens. The nurse notifies the doctor —> nurse off the hook if something bad happens. Doctor is left with a critical value called 10 or 20 times a day, interrupting the entire flow of patient evaluations and discharges. Every time, I must stop what I’m doing and answer a page for a critical lab value, I lose valuable face time with patients. And it all adds up over the course of a day. I wouldn’t have a problem with the system, except that critical thinking has been removed from the equation. The nurse is not allowed to make judgments as to whether a phone call is warranted or not.

As a default protocol of calling all critical lab values, the liability is shifted up the educational food chain, landing ultimately on the physician’s lap. Often times a nurse is not allowed to not call a critical lab value. The problem is, what the hospital has defined as critical, does not apply to the vast majority of critical lab values reported. What’s considered critical by hospital standards, is a normal or chronic value for [that particular] patient.

Whole thing here.


“Naomi Gadian, 21, from Manchester, claims that multiple choice testing discriminates against people with dyslexia” and is suing Britain’s General Medical Council and her college, the Peninsula College of Medicine and Dentistry in Plymouth, under the Disability Discrimination Act 1995, the U.K. equivalent of the Americans with Disabilities Act. (“Dyslexic medical student takes legal action against multiple choice exams”, Plymouth Herald, Jul. 30).