Test of Wills: Attorney Richard Bernstein has sued ABA, claiming LSAT discriminates against blind applicants

By Jo Mathis

Legal News

Richard Bernstein may be a proud University of Michigan graduate who teaches a political science course in social activism at U-M.

But that didn't stop him from representing the Paralyzed Veterans of America in an action against U-M's plans for disabled seating in Michigan Stadium.

He may be a member of the American Bar Association.

But that didn't stop him from filing a suit against the ABA for requiring that law school candidates take the Law School Admission Test (LSAT), which Bernstein argues is inherently discriminatory against the blind.

For this diehard Michigan man and attorney, nothing comes before advocating for persons with disabilities.

Blind since birth, Bernstein understands what it's like to navigate with a big strike against him.

And so he's dedicated his life to helping the disabled -- whether that's by traveling to third world countries to meet parents who keep their blind children hidden from society, or by running marathons to remind people not to underestimate those with disabilities, or by taking on yet another pro bono case for the disabled that no other attorney would touch.

The case that most excites him right now -- and the one he believes is the most important case he'll ever try -- is the one against the ABA. He believes the ABA has failed to comply with the Americans with Disabilities Act of 1990 by denying the blind and visually impaired access to a legal education by requiring applicants to take the LSAT.

Bernstein wants the ABA to allow a law school to waive the LSAT requirement for the blind and visually impaired because the LSAT includes a section that requires drawing.

"What the ABA has done has cost us an entire generation of civil rights," said Bernstein, 37, an attorney with the Sam Bernstein Law Firm in Farmington Hills. "Their behavior is so disruptive to the blind. They are sinister."

Bernstein is representing Angelo Binno, 28, who has also been blind since birth. The West Bloomfield resident has twice done poorly on the section of the LSAT that requires perceiving spatial relationships and drawing diagrams.

Binno, who scored 133 and 136 out of 180 on the LSAT, has been denied admittance to the University of Detroit-Mercy Law School three times and the WSU Law School and Thomas Cooley Law School once each.

Binno believes he can excel at a top ranking law school in Michigan -- if he could only get admitted.

"I should have been in law school five years ago," said Binno, who has wanted to be a lawyer helping those with disabilities since he was a child. "I should be done with law school."

"The only way to have more disability rights in this country is to have more disabled attorneys taking on these cases," said Bernstein. "We have to win this case for the greater civil rights movement."

Contacted by the Legal News, the ABA responded with a two-page defense of its position, and noted that an ABA-approved law school may use another valid and reliable test for law school admissions purposes.

The letter also said that the ABA Standards and Rules of Procedure for the Approval of Law Schools require ABA-accredited schools to operate their programs, including their admissions processes, in conformity with the Americans with Disabilities Act and other federal laws which prohibit discrimination against the disabled.

The Law School Admissions Council, which develops and administers the LSAT and is independent of the ABA, regularly grants accommodations for visually-impaired test takers. The test is available in large, 18-point-type print and in braille. LSAC also offers the use of a scribe to assist the examinee with diagramming or using tactile devices to substitute for diagramming.

But Bernstein says that once the ABA is challenged, its "house of cards comes tumbling down."

"They'll respond, 'We're not telling law schools how much weight they have to put on the exam.' But that's disingenuous. Law schools live and die off the U.S. News and World Report ranking, which is based on LSAT scores."

The question of whether the ABA does or does not require the LSAT is nuanced, said David Moss, a faculty member at Wayne State Law School and former member of its admissions committee.

A law school that wants to use an alternative test on a widespread basis or for particular applicants such as the blind would have to justify to the ABA why that test is valid and reliable, and the amount of statistical data needed to prove that would be difficult to obtain, said Moss.

Moss said the problem is not the ABA, but the makers of the LSAT.

"The Law School Admissions Council has created a test that inarguably discriminates against blind applicants," he said, adding that even with the accommodations, the design and the administration of the test does not provide a level playing field for anyone with a disability.

The ABA does not tell law schools what weight they should give to test results, Moss said.

When he was on the admissions committee and a blind applicant scored poorly on the LSAT, Moss said, the test wouldn't be a major factor in deciding whether or not to admit that student.

"We would look much more carefully at the student's undergraduate record, where they went to school, how they did at that school, what their work experience has been both while in college and post-college if they have any," he said.

Eight law schools, including the University of Michigan and Northwestern, have waivers that permit them to use a test other than the LSAT, according to ABA spokeswoman Anne Nicholas.

When Bernstein applied to law school at Northwestern University Law School in 1996, the LSAT was waived, and he was admitted based on his grades, extracurricular activities, and overall ability.

After that, the ABA threatened to withdraw accreditation of any law school that admitted a student who hadn't taken the LSAT, Bernstein claims.

The ABA refutes that.

But Bernstein says no one from the ABA has responded to the suit, which was filed more than 60 days ago.

"If they've changed their policy in the last 60 days, then we won," he said. "We'll enter into a consent decree right away if the LSAT is not required for admission. If they're allowing other exams, I want to know what they are. I haven't heard a word from them."

--Seeking a level playing field--

Angelo Binno graduated in 2000 from West Bloomfield High School after just three years. He got a year-long internship with Richard Bernstein's father, Sam, and has also worked for attorney Marie Garian of Royal Oak, who said Binno has what it takes to be an exceptional attorney.

"He has a great analytic mind and his memory is fantastic -- almost to the point of unbelievable," Garian said. "I've been extremely impressed with his demeanor, his articulation, and his ability to see right to the core of the problem."

Garian said she hopes a solution is found soon so Binno can do what she's encouraged him to do for years: attend law school.

"He is more than qualified, and would be a fine addition to the profession," she said.

Binno said graduating from Wayne State University with a degree in political science wasn't a problem because he taped lectures, and took his speech-activated laptop to class.

After college, Binno got a job in the immigration section of U. S. Department of Homeland Security in downtown Detroit. He was laid off in April of 2008, and has been unable to find work since then. He lives with his father and brothers.

Bernstein took his case pro bono after he was rejected by other lawyers who encouraged him to keep taking the LSAT.

"I believe God sent me an angel," he said of Bernstein. "He's an amazing person who's making the world a better place for disabled people."

Like Bernstein, he wants to be a lawyer fighting for inclusion and the rights of people with disabilities.

"My whole life, I've been at a disadvantage," Binno said. "I understand the pain. I understand the agony a disabled person goes through when things are not right for them."

"This is a necessary case," he adde. "I won't accept a settlement. I won't accept a compromise. I'm going to keep fighting until the ABA gets it right. I'm just asking for a level playing field."

--Advocate for the disabled--

Because he relies so much on others and doesn't have the option to be a loner, Bernstein said it's a blessing that he genuinely likes people.

"If I don't connect with people, I don't function," he said.

Much of his career has focused on fighting for the rights of the disabled in the United States. At the same time, he's been shocked again and again by how poorly the disabled are treated in other countries.

Last October, Bernstein was asked by the government of Ecuador to visit the country to help develop rights for the disabled. When he got there, he realized that not only were those with disabilities not supported, they were viewed as cursed.

So he traveled the country, speaking about how he's completed 13 marathons and one Iron Man triathlon despite his disability. He also agreed to compete in an upcoming triathlon in the Galapagos Islands.

Bernstein has also met with survivors of terrorist attacks in Jerusalem, where he talked about how they can still reach their potential, and where he talked about his advocacy work for the disabled.

As he spoke with a reporter recently, Bernstein was jet-lagged following a 14-hour flight from Africa. He'd just spent 10 days visiting third world countries to show parents of blind children -- who sometimes believe the disability is a punishment -- that it's possible for them to live full lives.

"They're absolutely shocked," he said. "For the most part, they've never seen a blind person doing anything ... and then to see one very enthusiastic and energetic and upbeat and talking about making this and that happen ... They can't believe it."

When he gets calls from distraught parents who've just given birth to a blind baby, he agrees that their child's life will not be ordinary, but, rather, extraordinary.

Bernstein sees his challenges as a blessing and a curse. Though everything is more work, success is that much sweeter, he said. Bernstein said it's important for the blind to keep the right perspective in the face of challenges, and to accept that they'll have to work harder than everyone else, and be an expert planner and organizer.

Bernstein would love to be married, and says when he does find someone willing to take on the extra challenge of his disability, he'll know he's found someone exceptional.

"Like everything else, you have to work harder, you have to overcome stereotypes and prejudice and all that," he said of dating. "That's the curse. The blessing is that when the time is right, and you finally find that person, you get the most loving, kind, compassionate person."

He takes on cases for the disabled on a pro bono basis, and wants nothing more than to know that more and more people with disabilities are reaching their potential.

"I live, breathe and eat this stuff," he said, "because I really do believe we can change the world."

Published: Wed, Aug 3, 2011