LAW SCHOOL ADMISSION COUNCIL, INC., Plaintiff and Respondent, v. STATE OF CALIFORNIA et al., Defendants and Appellants.
No. C073187
Third Dist.
Jan. 13, 2014
222 Cal. App. 4th 1265
Kamala D. Harris, Attorney General, Julie Weng-Gutierrez, Assistant Attorney General, Ismael A. Castro, Christine M. Murphy and R. Matthew Wise, Deputy Attorneys General, for Defendants and Appellants.
Legal Aid Society-Employment Law Center and Claudia Center for Association on Higher Education and Disability, California Association for Postsecondary Education and Disability, Civil Rights Education and Enforcement Center, Council of Parent Attorneys and Advocates, Disability Rights Advocates, Disability Rights California, Disability Rights Education & Defense Fund, Disability Rights Legal Center, Edge Foundation, Everyone Reading, Inc., Legal Aid Society-Employment Law Center, National Association of Law Students with Disabilities, National Federation of the Blind, Marilyn J. Bartlett and Richard K. Neumann, Jr., as Amici Curiae on behalf of Defendants and Appellants.
Fulbright & Jaworski, Robert E. Darby and Robert A. Burgoyne for Plaintiff and Respondent.
OPINION
HOCH, J.—This case involves a constitutional challenge to
The State of California (the State) appeals from the issuance of a preliminary injunction ordering the State to refrain from enforcing section 99161.5 against LSAC pending trial.2 The trial court ruled LSAC demonstrated a likelihood of prevailing on its claim that section 99161.5 violates the equal protection clause of the California Constitution (
LSAC is a nonprofit corporation, the primary purpose of which is to assist its members—over 200 law schools in the United States, Canada, and Australia—in their admissions processes. In accordance with this purpose, LSAC prepares and administers the LSAT, a standardized test that is administered four times a year in California and other jurisdictions both inside and outside the United States.
According to James M. Vaseleck, Jr., former senior director of public affairs and deputy general counsel of LSAC, the LSAT “provides a standard measure of acquired reading and verbal reasoning skills, and measures skills that are considered essential for success in law school, including: the reading and comprehension of complex texts with accuracy and insight; the organization and management of information and the ability to draw reasonable inferences from that information; and the analysis and evaluation of the reasoning and arguments of others.” The declaration submitted by Vaseleck in support of the preliminary injunction continues: “As shown in numerous validity studies performed by LSAC, the LSAT is a strong predictor of first-year law school grades, and a combination of students’ LSAT scores and undergraduate grade point averages (GPAs) gives a better prediction of law school performance than either LSAT scores or GPAs alone.”4 Generally, after a prospective law student takes the LSAT, LSAC provides to its member law schools a “score report,” including “a percentile ranking and the score
The Americans with Disabilities Act of 1990 (ADA)
The ADA (
LSAC‘s Accommodations Procedures
Acknowledging LSAC is required to comply with federal law, Vaseleck states in his declaration: “LSAC makes reasonable testing accommodations available on the LSAT for individuals with documented disabilities who are unable to take the test under standard testing conditions, in accordance with the [ADA]. Accommodations have been requested based on a variety of impairments, including: hearing impairments; learning disorders; attention deficit disorders; neurological impairments; physical disabilities; psychological disabilities; visual impairments; and medical disabilities. In reviewing
LSAT applicants seeking an accommodation for a disability must submit a request to LSAC with supporting documentation. This request, which cannot be reviewed until the applicant is registered for the LSAT, must include the following: “(1) an LSAT Candidate Form, (2) an LSAT Evaluator Form completed by a qualified/licensed professional who is familiar with the impact of [the applicant‘s] disorder/condition on a major life activity that affects [the applicant‘s] ability to perform on the LSAT or other similar, timed, standardized admission tests, and (3) the relevant Cognitive, Psychological, Vision, or Physical Evaluation Report(s) and results of past standardized tests such as the SAT/ACT [Scholastic Assessment Test/formerly American College Test].” Vaseleck‘s declaration states LSAC “makes accommodation decisions within a reasonable amount of time after receiving completed applications and the requisite supporting documentation. Decisions are generally made within 14 days of LSAC‘s receipt of a complete application request, often sooner. When LSAC denies a request, it informs the applicant why the request was denied.” Upon denial of an accommodation request, the applicant may submit a request for reconsideration, which is reviewed after all initial accommodation requests have been processed.
When an accommodation request seeking additional testing time is granted, the score report LSAC sends to law schools does not include the percentile ranking, score band, average LSAT score, or predictive index because, as Vaseleck explains, “scores achieved with extra testing time . . . [¶] . . . [¶] . . . have been shown by LSAC‘s research not to be comparable to scores achieved with standard testing time.” According to LSAC‘s research, “scores achieved with extra testing time tend to over-predict how the examinee will perform in the first year of law school.” In addition to omitting the foregoing information from the score report, LSAC provides a letter to law schools receiving such a score report explaining the applicant took the LSAT “under nonstandard time conditions,” that “LSAC research indicates that scores earned under nonstandard time conditions do not have the same meaning as scores earned under standard time conditions,” and the “applicant‘s score should be interpreted with great sensitivity and flexibility.”
In September 2012, the Governor signed into law Assembly Bill No. 2122 (2011-2012 Reg. Sess.), which added section 99161.5 to the Education Code. (Stats. 2012, ch. 583, § 1.) This section, effective January 1, 2013, provides:
“(a)(1) The test sponsor of the [LSAT] shall provide testing accommodations to a test subject with a disability who makes a timely request to ensure that the [LSAT] accurately reflects the aptitude, achievement levels, or other factors that the test purports to measure and does not reflect the test subject‘s disability. This paragraph does not constitute a change in, but is declaratory of, existing law.
“(2) The process for determining whether to grant an accommodation under paragraph (1) shall be made public, and the decision whether or not to approve a request for an accommodation shall be conveyed to the requester within a reasonable amount of time. If the test sponsor of the [LSAT] does not approve a request for accommodation, the test sponsor shall state the reasons for the denial of the request to the requester in writing.
“(3) The test sponsor of the [LSAT] shall establish a timely appeals process for a test subject who is denied an accommodation request. The test sponsor of the [LSAT] shall clearly post on the [LSAT] Internet Web site information regarding refund policies for individuals whose requests for accommodation are denied.
“(b) Whenever a test subject has received formal testing accommodations from a postsecondary educational institution for a disability as defined in subdivision (j), (l), or (m) of Section 12926 of the Government Code, the test sponsor of the [LSAT] shall, consistent with existing law, give considerable weight to documentation of past modifications, accommodations, or auxiliary aids or services received by the test subject in similar testing situations when determining whether to grant an accommodation to the test subject.
“(c)(1) The test sponsor of the [LSAT] shall not notify a test score recipient that the score of any test subject was obtained by a subject who received an accommodation pursuant to this section.
“(2) The test sponsor of the [LSAT] shall not withhold any information that would lead a test score recipient to deduce that a score was earned by a subject who received an accommodation pursuant to this section.
“(3) This subdivision does not constitute a change in, but is declaratory of, existing law.
“(d) This section shall not be construed to limit or replace any other right or remedy that exists under state or federal law.
“(e) This section shall not provide greater protections to persons with disabilities than those provided by Section 51 of the Civil Code.”
(
The legislative history of Assembly Bill No. 2122 (2011-2012 Reg. Sess.) reveals section 99161.5 was directed exclusively toward the LSAT‘s test sponsor, rather than made to apply generally to the numerous test sponsors conducting testing services in California, because the Legislature viewed LSAC‘s testing accommodations procedures as more onerous than those of other test sponsors. The Assembly Committee on Higher Education‘s bill analysis notes that, according to the bill‘s author, former Assemblymember (now State Senator) Ricardo Lara, the bill “targets LSAC” rather than other test sponsors because “the process for test subjects to request and obtain accommodations when taking the LSAT creates significant barriers for persons with disabilities.” (Assem. Com. on Higher Education, Analysis of Assem. Bill No. 2122 (2011-2012 Reg. Sess.) as amended Mar. 21, 2012, pp. 4, 5.) The Senate Rules Committee, Office of Senate Floor Analyses, third reading analysis notes: “According to the author, ‘[u]nlike the [LSAT], students requesting accommodations for high stakes exams such as the Graduate Records Examinations, which is sponsored by the Educational Testing Service, can easily submit a completed Certification of Eligibility in lieu of disability documentation. Clearly, the [LSAC‘s] stringent documentation policies create a gap between individuals who can afford the expensive assessment and those who cannot. Additionally, under LSAC‘s policies, when a student obtains extra time based on a cognitive or physical disability, his or her score is identified and a letter is sent to law schools notifying that an accommodation was granted and advising that the score should be interpreted with great sensitivity. This practice is referred to as “flagging” and it creates a chilling effect that discourages individuals from requesting testing accommodations.’ ” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 2122 (2011-2012 Reg. Sess.) as amended Aug. 29, 2012, p. 7.)
We provide a more detailed account of the legislative history in the discussion portion of this opinion.
The Present Lawsuit
On January 10, 2013, LSAC filed a complaint for declaratory and injunctive relief challenging the constitutionality of section 99161.5 under the California Constitution. The complaint alleged the newly enacted statute (1)
On January 17, 2013, LSAC filed a motion for a preliminary injunction, arguing in support of the motion that LSAC was likely to succeed on the merits of its claims and it would suffer irreparable harm if “forced to send out score reports with incomplete and inaccurate information for scores obtained with extra time.” The bulk of the merits argument was directed toward the equal protection claim. LSAC argued it is similarly situated to other testing entities, such as Educational Testing Service (ETS), College Board, the Association of American Medical Colleges (AAMC), the American Osteopathic Board of Emergency Medicine, and the North American Board of Naturopathic Examiners (Naturopathic Board), and the Legislature had no rational basis for treating it differently by enacting a statute directed exclusively at LSAC. LSAC submitted evidence regarding the accommodations policies of these testing entities. For example, AAMC, which administers the Medical College Admission Test (MCAT), notes on its Web site: “For tests that are administered under non-standard conditions, primarily those that involve a change in the timing of the test, we do not know if the scores obtained will be comparable to scores obtained under standard testing conditions. Therefore, tests that are administered under non-standard conditions will be noted as non-standard on score reports. Score reports do not indicate the reason for the administration of a non-standard MCAT exam or the specific type of accommodation that was provided.” Similarly, Naturopathic Board, which administers the Naturopathic Physicians Licensing Examination (NPLEX), includes in the “report/transcript” sent to regulatory authorities a notation that the examination was administered “under non-standard testing conditions.”
In opposition, the State argued, “LSAC is not similarly situated to other testing entities in California, such as ETS or College Board, . . . because it ‘creates significant barriers for people with disabilities while other test sponsors no longer flag scores and have less burdensome requirements for requesting accommodations.’ ” The State also argued the Legislature had “a rational basis for focusing its attention on LSAC‘s accommodation practices” due to the fact “LSAC has distinguished itself among testing entities for its burdensome requirements for requesting accommodations and its policy of flagging scores under accommodated extended time conditions.” The State
On February 1, 2013, the trial court heard argument on the motion and issued the requested preliminary injunction. The trial court ruled LSAC demonstrated a likelihood of prevailing on its claim that section 99161.5 violated its right to equal protection because the statute “lacks a rational basis for directing its prohibitions to LSAC exclusively, and not to other testing entities.” The trial court explained: “The Legislature‘s legitimate interest in prohibiting discrimination is not in dispute. However, legislation that seeks to further this interest must not single out one particular entity for regulation without a rational basis for doing so. The reasons presented for limiting application of section 99161.5 to LSAC only, specifically, that LSAC engages in flagging while other testing entities do not, are simply not plausibly related to the stated goals of the statute. First, as noted above, other testing entities may change their practices to engage in flagging, and would be permitted to do so under section 99161.5, while LSAC would not. Second, LSAC presents evidence that other testing entities do report scores earned with extra time differently than standard scores. . . . Given that other testing entities would be permitted to engage in flagging under the statute, and that some other testing entities actually do engage in flagging, the anti-discrimination purposes of the statute are not rationally served by exclusively targeting LSAC for regulation.” The trial court also concluded that “the risk of infringement of [LSAC‘s] constitutional rights is sufficient harm to warrant injunctive relief.”
We issued a limited stay of the preliminary injunction order pending resolution of this appeal, specifically directing LSAC to comply with section 99161.5, subdivision (c). We now reverse.
I
The Grant and Review of Preliminary Injunctive Relief
“The general purpose of a preliminary injunction is to preserve the status quo pending a determination on the merits of the action. [Citation.] ‘“The granting or denial of a preliminary injunction does not amount to an adjudication of the ultimate rights in controversy. It merely determines that the court, balancing the respective equities of the parties, concludes that, pending a trial on the merits, the defendant should or . . . should not be restrained from exercising the right claimed by him [or her].“’ [Citation.]” (SB Liberty, LLC v. Isla Verde Assn., Inc. (2013) 217 Cal.App.4th 272, 280.)
“In deciding whether to issue a preliminary injunction, a trial court must evaluate two interrelated factors: (i) the likelihood that the party seeking the injunction will ultimately prevail on the merits of his [or her] claim, and (ii) the balance of harm presented, i.e., the comparative consequences of the issuance and nonissuance of the injunction. [Citations.]” (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 441-442, fn. omitted.) “The trial court‘s determination must be guided by a ‘mix’ of the potential-merit and interim-harm factors; the greater the plaintiff‘s showing on one, the less must be shown on the other to support an injunction. [Citation.]” (Butt v. State of California (1992) 4 Cal.4th 668, 678.) However, “[a] trial court may not grant a preliminary injunction, regardless of the balance of interim harm, unless there is some possibility that the plaintiff would ultimately prevail on the merits of the claim.” (Ibid.)
Ordinarily, appellate review is limited to whether the trial court abused its discretion in evaluating the foregoing factors. (Citizens to Save California v. California Fair Political Practices Com. (2006) 145 Cal.App.4th 736.) “Occasionally, however, the likelihood of prevailing on the merits depends upon a question of pure law rather than upon [the] evidence to be introduced at a subsequent full trial. This issue can arise, for example, when it is contended that an ordinance or statute is unconstitutional on its face and that no factual controversy remains to be tried. If such a question of pure law is presented, it can sometimes be determinative over the other factor, for example, when the defendant shows that the plaintiff‘s interpretation is wrong as a matter of law and thus the plaintiff has no possibility of success on the merits. [Citations.]” (Hunter v. City of Whittier (1989) 209 Cal.App.3d 588, 595-596; see, e.g., King v. Meese (1987) 43 Cal.3d 1217, 1235.) Of course, such questions of law are subject to de novo review. (Sahlolbei v. Providence Healthcare, Inc. (2003) 112 Cal.App.4th 1137, 1145-1146.)
II
Likelihood of Prevailing on the Merits
As mentioned, the trial court ruled LSAC demonstrated a likelihood of prevailing on its claim that section 99161.5 violates the equal protection clause of the California Constitution because it “lacks a rational basis for directing its prohibitions to LSAC exclusively, and not to other testing entities.” We disagree. As a matter of law, section 99161.5 does not violate LSAC‘s right to equal protection because LSAC is not similarly situated to other testing entities for purposes of the law. However, because “we review the correctness of the trial court‘s ruling, not its reasoning,” a principle that is “particularly applicable to rulings granting or denying preliminary injunctions” (Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1049), we must also determine whether it would have been an abuse of discretion for the trial court to have ruled LSAC demonstrated a likelihood of prevailing on its additional claims, i.e., section 99161.5 violates LSAC‘s right to freedom of speech, constitutes special legislation, or amounts to a bill of attainder. We address each ground of purported unconstitutionality below.
A.
Equal Protection
The California Constitution prohibits the denial of “equal protection of the laws.” (
“‘The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ [Citations.] This initial inquiry is not whether persons are similarly situated for all purposes,
Thus, in order to determine whether LSAC and other test sponsors, such as ETS and College Board, are similarly situated, we must first determine the purposes of section 99161.5. For this, we turn to the legislative history.
The Senate Rules Committee, Office of Senate Floor Analyses, third reading analysis of Assembly Bill No. 2122 (2011-2012 Reg. Sess.) notes: “[T]he requirements for verifying disabilities and granting accommodations varies significantly among test sponsors, including: [¶] 1. [ETS], which administers the [GRE], requires test subjects to submit requests for accommodations, including current documentation from a qualified professional supporting each testing accommodation requested, by the specified registration deadline. Recognizing the costs associated with obtaining current documentation, ETS grants basic accommodations to applicants with long-standing learning disabilities, such as time-and-a-half and rest breaks, without requiring diagnostic reevaluation. [¶] 2. College Board, which administers the [SAT], requires accommodation requests to be approved by College Board‘s Services for Students with Disabilities. Documentation must be provided showing that the student has a disability, that the disability causes a functional limitation that affects participation in tests, and that the requested accommodations are appropriate. Students generally work through their high school disability services office to receive accommodations from College Board. [¶] 3. The LSAC, which administers the LSAT, requires applicants seeking accommodations to first register to take the examination and then to complete and submit for review an extensive Accommodations Request Packet. The Accommodations Request Packet requires, among other items, copies of accommodations provided for prior related testing and coursework and an Evaluator Form completed by a qualified professional verifying the disability and need for accommodations. LSAC indicates initial responses to requests for accommodations occur within 14 days of receipt. However, depending on the nature of the request and documentation submitted, as well as timing, LSAC indicates the process for approval may take longer.” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 2122 (2011-2012 Reg. Sess.) as amended Aug. 29, 2012, pp. 4-5.)
This bill analysis notes the version of the bill passed in the Assembly would have “require[d] the LSAT test sponsor to provide accommodations to people who received formal testing accommodations from a postsecondary
The bill analysis also notes: “This bill prohibits the LSAC from notifying test score recipients (law schools) if a person received testing accommodations, a practice commonly referred to as ‘flagging’ a score. The author‘s office contends that there is no way to determine the comparability of the scores earned under non-standard conditions (when extra time is given) and standard conditions. However, the LSAC indicates that test scores are only flagged if extra time is provided as an accommodation and that evidence demonstrates that standard and nonstandard-time scores are not comparable. Further, LSAC maintains that it has an obligation to provide accurate score-interpretation information to law schools. [[]] ETS and College Board apparently no longer flag scores of people who took exams with accommodation due to litigation.” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 2122 (2011-2012 Reg. Sess.) as amended Aug. 29, 2012, p. 6.)
In support of the bill, its author, former Assemblymember Lara explained: “‘Unlike the [LSAT], students requesting accommodations for high stakes
Thus, the Legislature appears to have been concerned that LSAC‘s policies regarding accommodations, unlike those of other test sponsors, placed undue burdens on applicants with disabilities. Stated broadly, the purpose is to prevent discrimination. However, the Legislature also appears to have had a more narrow purpose, the prevention of discrimination in the law school admissions process. Throughout the legislative history, the support of the American Bar Association (ABA) is noted. A “Fact Sheet” prepared by former Assemblymember Lara explains: “In response to the small number of individuals with disabilities represented in the legal profession, the [ABA] Commission on Disability Rights recently passed a unanimous resolution urging entities who administer the LSAT to improve the way it handles accommodation requests from test-takers with disabilities. . . . [¶] A major contributing factor to the lack of representation of individuals with disabilities in the legal profession can be attributed to the barriers individuals face when taking the [LSAT].” The fact sheet then describes LSAC‘s objectionable policies, i.e., the “comprehensive assessment report” that “can cost an individual over $3,000” and the practice of “‘flagging‘” nonstandard test scores, and urges passage of Assembly Bill No. 2122 (2011-2012 Reg. Sess.) as a “Solution” to the problem. The ABA resolution6 and a report submitted
For purposes of preventing discrimination in the law school admissions process, LSAC is not similarly situated to ETS, College Board, AAMC, or any other standardized testing entity. The reason is simple. No other standardized testing entity sponsors a law school admissions test. We find this case to be analogous to the situation in which the Legislature chooses to “resolve identical problems with respect to different professions” in a different manner. (Kenneally v. Medical Board (1994) 27 Cal.App.4th 489, 499 [32 Cal.Rptr.2d 504]; see Griffiths v. Superior Court (2002) 96 Cal.App.4th 757, 776 [117 Cal.Rptr.2d 445].) For example, in Naismith Dental Corp. v. Board of Dental Examiners (1977) 68 Cal.App.3d 253 [137 Cal.Rptr. 133], Naismith challenged the constitutionality of a provision in the
Here, based in part on the concern that “the lack of representation of individuals with disabilities in the legal profession can be attributed to the barriers individuals face when taking the [LSAT],” the Legislature decided to regulate the LSAT‘s accommodations procedures differently than those of other admissions tests. Just as the Legislature “may regulate different professions differently” (Kenneally v. Medical Board, supra, 27 Cal.App.4th at p. 499), we conclude the Legislature may regulate differently the various admissions tests that operate as gatekeepers to the study of the professional disciplines.
Nevertheless, LSAC asserts this case is more akin to Walgreen, supra, 185 Cal.App.4th 424, with respect to the similarly situated requirement than it is to the professional regulation cases cited above. We disagree. There, Walgreens challenged a San Francisco (City) ordinance that “prohibit[ed] a Walgreens that contains a licensed pharmacy from selling tobacco products but impos[ed] no such limitation on a Safeway supermarket or a Costco big box store that contains a licensed pharmacy.” (Id. at p. 429.) The Court of Appeal accepted the City‘s concession that, “for purposes of the challenged ordinance, all retail establishments containing licensed pharmacies are similarly situated,” and moved on to determine whether the City had a rational basis for treating Walgreens differently than Safeway or Costco with respect to tobacco sales. (Id. at pp. 434-435.) Thus, the concession made it unnecessary for the court to address the similarly situated requirement. However, the ordinance was “premised on the notion that a retail store conveys tacit approval of tobacco use when it sells prescription drugs as well as tobacco products.” (Id. at p. 428.) For purposes of preventing the conveyance of such approval, we agree all retail establishments containing licensed pharmacies are similarly situated. Here, as we have explained, the purpose of
As a matter of law, LSAC‘s equal protection claim fails at the threshold because it and other testing entities (such as ETS, College Board, and AAMC) are not similarly situated for purposes of preventing disability discrimination in the law school admissions process.
B.
Liberty of Speech
1. Type of Speech
We must first determine the type of speech at issue in this case.
The United States Supreme Court has “long recognized that not all speech is of equal First Amendment importance. It is speech on ‘“matters of public concern“’ that is ‘at the heart of the First Amendment‘s protection.’ [Citation.] . . . ‘The First Amendment “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” [Citations.] “[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.” [Citation.] Accordingly, the Court has frequently reaffirmed that speech on public issues occupies the “‘highest rung of the hierarchy of First Amendment values,‘” and is entitled to special protection. [Citations.]‘” (Dun & Bradstreet, Inc. v. Greenmoss Builders (1985) 472 U.S. 749, 758-759 [86 L.Ed.2d 593, 105 S.Ct. 2939] (plur. opn. of Powell, J.), fn. omitted (Greenmoss).) At the lowest rung of the hierarchy are forms of expression that are accorded no First Amendment protection, such as obscenity (Miller v. California (1973) 413 U.S. 15 [37 L.Ed.2d 419, 93 S.Ct. 2607]) and speech calculated to provoke a fight (Chaplinsky v. New Hampshire (1942) 315 U.S. 568 [86 L.Ed. 1031, 62 S.Ct. 766]). In the middle, among other forms of expression, lies “commercial speech, that is, expression related solely to the economic interests of the speaker and its audience.” (Central Hudson Gas & Elec. v. Public Serv. Comm‘n (1980) 447 U.S. 557, 561 [65 L.Ed.2d 341, 100 S.Ct. 2343] (Central Hudson).) The First Amendment “protects commercial speech from unwarranted governmental regulation” because “[c]ommercial expression not only serves the economic interest of the speaker, but also assists consumers and furthers the societal interest in the fullest possible dissemination of information.” (Central Hudson, at pp. 561-562.) However, the federal Constitution “accords a lesser protection to commercial speech than to other constitutionally guaranteed expression.” (Central Hudson, at p. 563.)
Where speech is entitled to the full protection of the First Amendment, a content-based regulation “must be narrowly tailored to promote a compelling Government interest. [Citation.] If a less restrictive alternative would serve the Government‘s purpose, the legislature must use that alternative. [Citations.] To do otherwise would be to restrict speech without an adequate justification, a course the First Amendment does not permit.” (United States v. Playboy Entertainment Group, Inc. (2000) 529 U.S. 803, 813 [146 L.Ed.2d 865, 120 S.Ct. 1878].) “By contrast, regulation of commercial speech based on content is less problematic.” (Bolger v. Youngs Drug Products Corp. (1983) 463 U.S. 60, 65 [77 L.Ed.2d 469, 103 S.Ct. 2875].) Because the
The speech regulated by
In Kasky, supra, 27 Cal.4th 939, after reviewing the United States Supreme Court‘s commercial speech decisions, our Supreme Court considered three factors, “the speaker, the intended audience, and the content of the
The foregoing factors lead us to conclude the practice of flagging an LSAT score that was earned with additional testing time amounts to commercial speech. First, the speaker is LSAC. While LSAC is a nonprofit corporation, it nevertheless engages in commerce. Black‘s Law Dictionary defines “commerce” to mean: “The exchange of goods and services, esp. on a large scale involving transportation between cities, states, and nations.” (Black‘s Law Dict. (8th ed. 2004) p. 285, col. 1.) Citing United States Supreme Court and Ninth Circuit Court of Appeals decisions, our Supreme Court has explained that “the term ‘commercial’ embraces all phases of commercial activity, and need not be undertaken or motivated for profit.” (People v. Cochran (2002) 28 Cal.4th 396, 405 [121 Cal.Rptr.2d 595, 48 P.3d 1148], citing Jordan v. Tashiro (1928) 278 U.S. 123, 128 [73 L.Ed. 214, 49 S.Ct. 47] [“commerce” as used in treaty court “embraces every phase of commercial and business activity and intercourse“]; see Sun v. Taiwan (9th Cir. 2000) 201 F.3d 1105, 1107-1108 [profit motive irrelevant to determination of whether Taiwan‘s activities were commercial]; Siderman de Blake v. Republic of Argentina (9th Cir. 1992) 965 F.2d 699, 708 [“activity need not be
Second, the intended audience is each law school receiving the LSAT score of an applicant who received additional testing time as an accommodation. These law schools are actual customers of LSAC‘s services and potential providers of the legal education the applicants wish to purchase. While each of the United States Supreme Court‘s decisions involving commercial speech “concerned a speaker engaged in the sale or hire of products or services conveying a message to a person or persons likely to want, and be willing to pay for, that product or service” (Kasky, supra, 27 Cal.4th at p. 960), here, we have a speaker engaged in providing admissions services, including the administration of the LSAT and provision of LSAT scores to law schools, conveying a message to these law schools concerning the scores of certain applicants, who are themselves seeking to purchase a legal education from those very law schools.
Third, the content of the message, i.e., that a particular LSAT score was earned with additional testing time and therefore not comparable to scores earned under standard time conditions, also supports the conclusion the speech is commercial in nature. As LSAC acknowledges, an applicant‘s LSAT score is an important factor law schools use to determine whether to enter into a commercial transaction with the prospective student. Moreover, flagging can be viewed as a statement about LSAC‘s services since LSAC is the entity that granted the applicant additional testing time on the LSAT, administered and scored the test, and conducted the research indicating scores earned with additional time are not comparable to scores earned under standard time conditions.
Thus, we conclude
Noting these decisions, our colleagues in the Second District Court of Appeal assumed for purposes of discussion that a consumer credit report was commercial speech and applied the Central Hudson test to assess the constitutionality of a statute allowing California consumers to “freeze” their credit reports. (U.D. Registry, Inc. v. State of California (2006) 144 Cal.App.4th 405, 422 [50 Cal.Rptr.3d 647].) There, the plaintiff sold credit reports to its members, “landowners, property managers, and others,” who “consider[ed] the reports in deciding whether to lease real property to prospective tenants.” (Id. at p. 410.) The Court of Appeal explained these reports “benefit consumers by facilitating the extension of credit” and “benefit lessors by identifying potential lessees who are bad credit risks.” (Id. at p. 423.) Like a credit report, the LSAT score reports at issue in this case benefit applicants with high scores by facilitating the extension of an offer of acceptance, which ultimately leads to an economic transaction between the applicant and the law school. And like a bad credit score identifies credit risk, a lower LSAT score identifies applicants who are less likely to do well in
Finally, like a credit report, an LSAT score report “does not involve any matter of public concern, but consists of information of interest solely to the speaker and the client audience.” (Individual Reference Services Group, Inc. v. Federal Trade Com., supra, 145 F.Supp.2d at p. 41.) Thus, even if the information LSAC provides to law schools in connection with these score reports “is not commercial speech per se, it is entitled to the same level of protection.” (Ibid.)
2. Commercial Speech Analysis
“For commercial speech to come within [the First Amendment‘s protection], it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.” (Central Hudson, supra, 447 U.S. at p. 566.) However, “[t]he court has clarified that the last part of the test—determining whether the regulation is not more extensive than ‘necessary‘—does not require the government to adopt the least restrictive means, but instead requires only a ‘reasonable fit’ between the government‘s purpose and the means chosen to achieve it. [Citation.]” (Kasky, supra, 27 Cal.4th at p. 952.) The State bears the burden of justifying
The State asserts LSAC‘s practice of flagging the LSAT scores of applicants who were given additional time as an accommodation fails the first stage of the analysis because it “violates the ADA, in particular
In the third stage of the analysis, we consider whether
Based on the record developed on the preliminary injunction motion, we cannot conclude the State has carried this burden. However, nor can we conclude the State will be unable to do so at trial. As mentioned, in opposition to LSAC‘s preliminary injunction motion, the State submitted the report of the ABA‘s Commission on Disability Rights. With respect to flagging, the report concluded: “[W]hen an accommodated score is labeled as ‘nonstandard’ or when a testing agency tells the academic program that the score does not conform to the scores of students who were not given accommodations, the student with the accommodated score is placed at a serious disadvantage. There are serious policy, ethical, and social problems
Based on scientific, psychometric, and social evidence submitted by the parties, the blue ribbon panel concluded flagging SAT scores should be discontinued as discriminatory. (Gregg et al., The Flagging Test Scores of Individuals with Disabilities Who Are Granted the Accommodation of Extended Time: A Report of the Majority Opinion of the Blue Ribbon Panel on Flagging (2002) p. 2.) With respect to the scientific evidence, the panel found that “in order to be treated fairly and equally, and to have opportunities to pursue higher education, students with reading disabilities must have the accommodation of extra time. As there is strong scientific evidence that [reading] fluency is the core of the disability for the majority of students with learning disabilities, to require flagging of this needed accommodation and no other accommodation, discriminates against a specific group of individuals.” (Id. at pp. 3-4.) At the same time, based on the psychometric evidence, the panel found “no evidence to suggest that the magnitude of the overall difference in predictive validity between standard and extended time administration warrants a cautionary flag to be attached to the scores of students who took the test under the condition of extended time.” (Id. at p. 8.) Finally, with respect to the social evidence submitted by the parties, the panel concluded: “Many students are reluctant to request extended time on the [SAT] because the presence of the flag forces them to reveal a disability. Since the overwhelming majority of students who request extended time demonstrate learning disabilities, the presence of a flag denotes a specific personal characteristic of the examinee—a learning disability. The detrimental effect of such a designation is further supported by findings that students with learning disabilities with flagged scores are under admitted to colleges. Thus, flagging appears to single out and treat the group with learning disabilities unequally, to diminish fair chances for college admission, and to discourage the use of a mandated ADA accommodation; together, these scientific and ethical factors speak to the necessity of removing the flag.” (Id. at p. 10.)
Here, the State did not submit similar evidence showing the flagging of LSAT scores earned with additional testing time causes similar harm to prospective law students with disabilities, e.g., by discouraging such students from applying for additional testing time and depriving them of equal access to law school admission and future entry into the legal profession. However, while the State bears the burden of proving the harm caused by flagging at trial, on appeal from the grant of a preliminary injunction, the State need
Finally, there must be a “reasonable fit” between the State‘s interest and the means chosen to achieve it. (Board of Trustees, State Univ. of N. Y. v. Fox, supra, 492 U.S. at p. 480.) Stated differently, the fit must be “‘one whose scope is in proportion to the interest served.‘” (Greater New Orleans Broadcasting Assn., Inc. v. United States, supra, 527 U.S. at p. 188.) Assuming the State is able to demonstrate the harm caused by flagging is real, we conclude prohibiting LSAC from flagging LSAT scores earned with additional time is proportionate to the State‘s compelling interest in preventing disability discrimination in the law school admissions process.
LSAC disagrees, relying on Lorillard Tobacco Co. v. Reilly (2001) 533 U.S. 525 [150 L.Ed.2d 532, 121 S.Ct. 2404] (Lorillard). There, the United States Supreme Court held the “broad sweep” of Massachusetts regulations prohibiting the outdoor advertising of cigars and smokeless tobacco within a 1,000-foot radius of a school or playground indicated the Massachusetts Attorney General “did not ‘carefully calculate the costs and benefits associated with the burden on speech imposed’ by the regulations.” (Id. at p. 561.) The court explained the regulations would “prohibit advertising in a substantial portion of the major metropolitan areas of Massachusetts,” and in some areas “would constitute nearly a complete ban on the communication of truthful information about smokeless tobacco and cigars to adult consumers.” (Id. at p. 562.) The court concluded: “The State‘s interest in preventing underage tobacco use is substantial, and even compelling, but it is no less true that the sale and use of tobacco products by adults is a legal activity. We must consider that tobacco retailers and manufacturers have an interest in conveying truthful information about their products to adults, and adults have a corresponding interest in receiving truthful information about tobacco products. In a case involving indecent speech on the Internet we explained that ‘the governmental interest in protecting children from harmful materials . . . does not justify an unnecessarily broad suppression of speech addressed to adults.’ [Citations.] As the State protects children from tobacco advertisements, tobacco manufacturers and retailers and their adult consumers still have a protected interest in communication.” (Id. at p. 564.)
LSAC argues that, like the tobacco retailers and manufacturers in Lorillard, supra, 533 U.S. 525, it has an interest in conveying truthful information about the LSAT scores it reports to law schools, and these law schools, like
Based on the current record, we cannot hold as a matter of law that
C.
Special Legislation
“[A] law is a general one when it applies equally to all persons embraced in a class founded upon some natural, intrinsic, or constitutional distinction;
For the reasons expressed in the portion of this opinion addressing LSAC‘S claim that
D.
Bill of Attainder
“A bill of attainder is a legislative act that inflicts punishment without a judicial trial.” (7 Witkin, Summary of Cal. Law (10th ed. 2005) Constitutional Law, § 205, p. 343.) Such a law is prohibited by
“[L]egislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution.” (United States v. Lovett (1946) 328 U.S. 303, 315-316 [90 L.Ed. 1252, 66 S.Ct. 1073].) “In deciding whether a statute
LSAC argues
III
Balance of Interim Harm
As mentioned, a trial court‘s decision to grant a preliminary injunction “must be guided by a ‘mix’ of the potential-merit and interim-harm factors; the greater the plaintiff‘s showing on one, the less must be shown on the other to support an injunction. [Citation.]” (Butt v. State of California, supra, 4 Cal.4th at p. 678.) However, “[a] trial court may not grant a preliminary injunction, regardless of the balance of interim harm, unless there is some possibility that the plaintiff would ultimately prevail on the merits of the claim.” (Ibid.) Having concluded, as a matter of law, that
LSAC argues the trial court correctly determined “the risk of infringement of [LSAC‘s] constitutional rights is sufficient harm to warrant injunctive relief.” As mentioned, this determination was based on the
We also note the dependent nature of the interim-harm analysis, particularly in this case, where the question of whether
Because LSAC‘s likelihood of prevailing on the merits of its free speech claim is, at best, an uncertain proposition, and because the balance of interim harm favors law school applicants with disabilities, we conclude it was an abuse of the trial court‘s discretion to issue the preliminary injunction.
The order granting the preliminary injunction is reversed with directions to enter a new order denying the injunction. The stay granted by writ of supersedeas is dissolved. Each party shall bear its own costs on appeal.
Robie, Acting P. J., and Butz, J. concurred.
On February 11, 2014, the opinion was modified to read as printed above. Respondent‘s petition for review by the Supreme Court was denied April 16, 2014, S216650. Baxter, J., was of the opinion that the petition should be granted.