Last week, Richard Bernstein, the newest member of the Michigan Supreme Court, visited Harvard Law School to give a lunchtime speech entitled, “Justice Is Blind.” Bernstein, the only blind Justice ever elected to the Michigan Supreme Court, reflected on how that hardship shaped his character, giving him the empathy he believes is necessary for strong judicial decisions.
Yet there is one needless hurdle he believes visually impaired students face: the Law School Admission Test. Speaking to a room full of students intimately familiar with this exam, he claimed the LSAT violates the Americans with Disabilities Act of 1990 by discriminating against the visually impaired. In particular, the Logic Games section of the exam proved especially challenging for him, because of its visual nature. As shown in the image below, the official instructions even encourage test-takers to diagram in the blank space, implying the questions rely on visual illustrations. Bernstein refused to take the exam and petitioned law schools to accept his application without an LSAT score. Northwestern University School of Law waived the LSAT requirement for Bernstein and admitted him solely based on his other academic credentials.
However, Bernstein claims that the American Bar Association, which accredits law schools, threatened to withdraw accreditation from law schools that waive the LSAT requirement (based on ABA Standard 503, which requires that law schools use a valid and reliable admission test and particularly supports the LSAT). When Angelo Binno, a blind Michigan student, was rejected from several schools after receiving a low LSAT score, he brought his case to Bernstein, who agreed to become his lawyer. In 2011, Binno sued the American Bar Association, alleging that Standard 503 prevented law schools from trying to waive the LSAT score for visually impaired applicants. They decided to sue the ABA, rather than the individual law schools Binno applied to, in order to deal with this on a systemic level. However, the 6th Circuit dismissed the case. It found that the ABA did not cause Binno’s injuries because (1) law schools could still have relied upon LSAT scores without Standard 503, and (2) the ABA did not administer or control the LSAT format.
Even though he lost that fight, Bernstein still hopes that law schools can influence the ABA. But he has a tough road ahead of him. While the threat of disaccreditation is already powerful, law schools also risk their U.S. News and World Reports rankings. According to Bernstein (and many others knowledgeable with this field), “Law schools live and die off the U.S. News and World Report ranking, which is based on LSAT scores.” But while the LSAT prides itself on testing required skills for lawyers, it is not accurately testing the skills necessary for strong lawyering, as Bernstein’s success demonstrates.
While speaking to Harvard Law students last week, he urged Harvard to take a stand. He said that if this school took leadership on disability rights and waived the LSAT requirement for visually impaired students, other law schools would listen, which could erode the ABA’s discriminatory standard.
He also encouraged the students in the audience to draw upon their own experiences and hardships when finding their career path. His passion for disability rights was fueled by his own challenges, and he expressed hope that other law students would continue that fight. A quote from the time of the Binno v. ABA case highlights his vision for this cause: “The only way to have more disability rights in this country is to have more disabled attorneys taking on these cases. We have to win this case for the greater civil rights movement.”