Angelo Binno v. The American Bar Association , 826 F.3d 338 ( 2016 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0140p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
ANGELO BINNO, ┐
Plaintiff-Appellant, │
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│
v. > No. 12-2263
│
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THE AMERICAN BAR ASSOCIATION, │
Defendant-Appellee. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:11-cv-12247—Denise Page Hood, Chief District Judge.
Argued: October 8, 2015
Decided and Filed: June 16, 2016
Before: MERRITT, DAUGHTREY, and GRIFFIN, Circuit Judges.
_________________
COUNSEL
ARGUED: Jason Marc Turkish, NYMAN TURKISH PC, Southfield, Michigan, for Appellant.
Anne E. Rea, SIDLEY AUSTIN LLP, Chicago, Illinois, for Appellee. Ann M. Sherman,
OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Amicus
Curiae. ON BRIEF: Jason Marc Turkish, NYMAN TURKISH PC, Southfield, Michigan,
Melissa M. Nyman, Rocklin, California, Richard H. Bernstein, THE SAM BERNSTEIN LAW
FIRM, Farmington Hills, Michigan, for Appellant. Anne E. Rea, Tacy F. Flint, John M. Skakun
III, Steven J. Horowitz, SIDLEY AUSTIN LLP, Chicago, Illinois, for Appellee. Ann M.
Sherman, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for
Amicus Curiae.
DAUGHTREY, J., delivered the opinion of the court in which MERRITT, J., joined and
GRIFFIN, J., joined in the result. GRIFFIN, J. (pp. 13–20), delivered a separate opinion
concurring in the judgment.
1
No. 12-2263 Binno v. Am. Bar Ass’n Page 2
_________________
OPINION
_________________
MARTHA CRAIG DAUGHTREY, Circuit Judge. Plaintiff Angelo Binno is a legally
blind individual who applied for admission to several law schools, unsuccessfully, and thereafter
filed an action against the American Bar Association (ABA), under the Americans with
Disabilities Act (ADA), claiming that his lack of success was due to a discriminatory admissions
test “mandated” by the ABA. The admissions examination in question, utilized by nearly all law
schools in the United States, is the Law School Admissions Test (LSAT). Binno contends that
the questions on the LSAT have a discriminatory effect on the blind and visually impaired
because a quarter of those questions “require spatial reasoning and visual diagramming for
successful completion.” He alleges that his poor performance on the LSAT has prevented him
from being admitted to accredited law schools, in violation of Titles III and V of the ADA. The
district court granted the ABA’s motion to dismiss, finding that plaintiff Binno lacked standing
to sue the ABA and, alternatively, that his amended complaint failed to state a claim for relief
under either Title III or Title V of the ADA as a matter of law. We affirm, concluding that Binno
does not have standing to sue the ABA because his injury was not caused by the ABA and
because it is unlikely that his injury would be redressed by a favorable decision against the ABA.
Moreover, even if Binno could establish standing, the district court correctly dismissed his Title
III and Title V claims for failure to state claims for which relief may be granted.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant ABA is a voluntary professional organization that, among other things, is
certified by the federal Department of Education as the national legal-education accreditation
agency in the United States.1 A majority of state high courts rely on the ABA’s approval of a
law school to determine whether that state’s legal-education requirement for admission to the bar
is satisfied. The ABA promulgates standards that are binding on law schools in order to gain and
1
As a technical matter, the actual accrediting agent is the Council of the ABA’s Section on Legal Education
and Admission to the Bar, which, on matters of accreditation, maintains independence from its parent organization.
Whether graduates of a non-ABA-approved school may be licensed to practice law in a given jurisdiction is a
decision made by that jurisdiction’s bar admission authority and not by the Council or the ABA.
No. 12-2263 Binno v. Am. Bar Ass’n Page 3
maintain accreditation. Noncompliance with the ABA Standards may result in sanctions,
including loss of a law school’s ABA-accreditation status. Relevant to this litigation, ABA
Standard 503 provides, in relevant part, “A law school shall require each applicant for admission
as a first-year J.D. degree student to take a valid and reliable admission test to assist the school
and the applicant in assessing the applicant’s capability of satisfactorily completing the school’s
program of legal admission.”
In their admissions process, most American law schools utilize the LSAT as an
admissions test, which is the only one that the ABA presumes to be “valid and reliable” under its
interpretation of Standard 503.2 The LSAT currently has sections that test analytical reasoning,
reading comprehension, and logical reasoning, and it requires a writing sample. The questions in
the analytical-reasoning section also are known as “logic games,” which, according to Binno’s
complaint, “require spatial reasoning and diagramming of visual concepts.”3 Binno alleges that
because he is blind, he is “incapable of perceiving spatial relationships or performing the
necessary diagramming to successfully complete the logic-games questions on the LSAT at a
competitive level.” He alleges that the analytical-reasoning section thus caused him “substantial
embarrassment, emotional distress, and mental anguish during the exam,” which negatively
impacted his overall performance on the exam. By “offering” such a discriminatory admissions
2
Law schools proposing a program inconsistent with an ABA Standard may apply for a variance from that
standard under Standard 803. A law school seeking a variance bears the burden of demonstrating that the variance
should be granted. An August 2009 ABA Consultant’s Memo notes five law school programs that successfully
received variances from Standard 503. The Memo also indicates that the ABA has found one law school that does
not use the LSAT to be compliant with Standard 503. According to recent news reports, several law schools are
considering seeking authorization to substitute the Graduate Record Examination (GRE) for the LSAT. See, e.g.,
Karen Sloan, University of Arizona Law School's Use of GRE Scores Creates LSAT Trouble, NAT’L L. J., May 2,
2016, available at http://www.nationallawjournal.com/id=1202756501823/University-of-Arizona-Law-Schools-
Use-of-GRE-Scores-Creates-LSAT-Trouble?slreturn=20160509101934; see also Sara Randazzo, LSAT’s Grip on
Law-School Admissions Loosens, WALL ST. J., Feb. 21, 2016, available at http://www.wsj.com/articles/lsats-grip-
on-law-school-admissions-loosens-1455964203?cb=logged0.08788420751644987. The GRE is an admissions
requirement for most graduate schools in this country.
3
A sample LSAT question attached as Exhibit B to the amended complaint does not “require” a diagram
but merely suggests that “[i]n answering some of the questions [in Section 1], it may be useful to draw a rough
diagram.” Although the standard of review on motion to dismiss for lack of standing requires that the district court,
as well as the reviewing court, accept the material allegations of the complaint as true, see Warth v. Seldin, 422 U.S.
490, 501 (1975), the plaintiff’s allegation that the ABA “forces” a blind applicant “to draw pictures as a condition of
applying to law school” is an obvious exaggeration that we need not “construe in favor of the complaining party.”
Id.
No. 12-2263 Binno v. Am. Bar Ass’n Page 4
test, Binno, alleges, the ABA has caused “significant injury and irreparable harm to the Plaintiff,
and others with disabilities, in violation of the ADA.
The ABA responds that although it accepts the LSAT as “valid and reliable,” the test is
not an ABA product. Instead, the LSAT is written, administered, and scored by the Law School
Admission Council (LSAC), an entity that is not part of the ABA. The LSAC provides
accommodations for persons with disabilities who wish to take the LSAT. These
accommodations include, but are not limited to, additional time to complete the test and the use
of a reader during the examination. ABA Interpretation 503-1 allows a law school to “use[] an
admission exam other than the [LSAT]” but requires the school to establish that the other test is
“valid and reliable.” ABA Interpretation 503-2 provides that Standard 503 “does not prescribe
the particular weight that a law school should give to an applicant’s admission test score in
deciding whether to admit or deny admission to the applicant.”4
Without relevant documentation, but nevertheless convinced that he had been denied
admission to three law schools in Michigan because of poor LSAT scores that were the result of
discriminatory testing, Binno sued the ABA, alleging violation of Section 309 of the ADA’s
Title III, 42 U.S.C. § 12189, and Section 503 of Title V, 42 U.S.C. § 12203(b). In his amended
complaint, Binno claimed that the ABA “has ‘offered’ and continues to ‘offer’ a discriminatory
examination” in violation of Title III of the ADA. In the alternative, Binno alleged that ABA
Standard 503 “interferes” with his ADA rights in violation of Title V of the ADA. Binno
requested only equitable relief: (1) a declaration that the ABA has violated Binno’s rights under
the ADA; (2) an injunction preventing the ABA from accrediting law schools until the ABA
“ceases its implementation of Standard 503”; (3) an injunction preventing the ABA from
applying Standard 503 to Binno and other legally blind or visually impaired individuals; and
(4) an injunction “restraining the [ABA] from discriminating against individuals with
disabilities” and requiring that the ABA “provide individuals with disabilities with full and equal
access to the programs and services” of law schools.
4
The concurring opinion charges that Standard 503 has a “rigid requirement that law schools require each
applicant to submit an LSAT score or else face sanctions or loss of accreditation.” However, the record indicates
that sanctions are imposed only for “[s]ubstantial or persistent noncompliance with one or more of the Standards”
and may take a variety of forms, including a monetary penalty, private or public censure, probation, or “removal
from the list of approved law schools.”
No. 12-2263 Binno v. Am. Bar Ass’n Page 5
The ABA moved to dismiss Binno’s complaint or, alternatively, for summary judgment.
The district court judge granted the ABA’s motion to dismiss, holding that Binno had sued the
wrong party, that he lacked standing to bring his action, and that if he did have standing, Binno
failed to state claims for relief under Title III and Title V of the ADA. Binno now appeals,
challenging those determinations.
II. DISCUSSION
A. Standing
Binno argues that the district court erred in dismissing his case for lack of standing under
Article III of the United States Constitution. Standing is, of course, a threshold requirement for
federal jurisdiction. If a party does not have standing to bring an action, then the court has no
authority to hear the matter and must dismiss the case. Imhoff Inv., L.L.C. v. Alfoccino, Inc.,
792 F.3d 627, 631 (6th Cir. 2015). To establish Article III standing, the plaintiff must allege
that: (1) he has suffered an injury-in-fact that is both “(a) concrete and particularized, and
(b) actual or imminent, not conjectural or hypothetical”; (2) the injury is fairly traceable to the
defendant’s conduct; and (3) it is likely that the injury will be redressed by a favorable decision.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Coyne v. Am. Tobacco Co.,
183 F.3d 488, 494 (6th Cir. 1999). In the case of a plaintiff seeking equitable relief, as Binno
does here, the claimant must allege “actual present harm or a significant possibility of future
harm in order to demonstrate the need for pre-enforcement review.” Daubenmire v. City of
Columbus, 507 F.3d 383, 388 (6th Cir. 2007) (internal quotation marks and citation omitted).
“The party seeking to invoke federal jurisdiction bears the burden to demonstrate standing and he
‘must plead its components with specificity.’” Id. (quoting Coyne, 183 F.3d at 494).
We review de novo a district court’s determination of Article III standing. Murray v.
U.S. Dep’t of Treasury, 681 F.3d 744, 748 (6th Cir. 2012). In reviewing a challenge to standing,
we may consider the complaint and any accompanying materials. Id. In evaluating a motion to
dismiss, “both the trial and reviewing courts must accept as true all material allegations of the
complaint, and must construe the complaint in favor of the complaining party.” Warth, 422 U.S.
at 501.
No. 12-2263 Binno v. Am. Bar Ass’n Page 6
1. Injury-In-Fact
To establish Article III standing, a plaintiff first must demonstrate that he has suffered an
injury-in-fact that is both “concrete and particularized” and “actual or imminent,” Lujan,
504 U.S. at 560-61, based on facts that are both “specific” and “concrete.” Warth, 422 U.S. at
508. Conclusory allegations do not satisfy the requirements of Article III. See id.
In terms of injury, Binno alleges that he is “forced to take an examination [that]
discriminates against blind and visually impaired persons” because it includes analytical
questions that he cannot answer competitively, i.e., on equal footing with other law school
applicants, which in turn causes him emotional distress that affects his performance on the rest of
the test. Because the ABA does not appear to contest that Binno has a legally cognizable injury-
in-fact, we move on to consider the remaining two standing factors, the existence of which the
ABA does dispute.
2. Causation
To establish Article III standing, Binno also must demonstrate a causal connection
between his injury and the defendant’s conduct. Lujan, 504 U.S. at 560-61. Binno argues that
his injury is fairly traceable to the actions of the ABA because ABA Standard 503 effectively
compels law schools to require the LSAT. In response, the ABA argues that because it is neither
responsible for the content of the LSAT nor for law schools’ use of the LSAT in law school
admissions, Binno’s injury is not caused by the ABA’s actions. The district court found that
Binno did not establish causation because the “facts set forth in the Amended Complaint allege
that Binno’s injuries are from the questions posed on the LSAT, not [from] the ABA Standard
503.” We agree with this assessment.
Binno contends that his injury is traceable to the ABA because ABA Standard 503
compels law schools to require the LSAT in law school admissions. However, this argument is
not supported by the record, including allegations in the amended complaint. Under Standard
503, a “valid and reliable” admission test must be taken by all law school applicants as a
requirement for a school’s accreditation, and in Interpretation 503-1, the ABA does accord the
LSAT presumptive validity. But that policy explicitly allows law schools to use an admission
No. 12-2263 Binno v. Am. Bar Ass’n Page 7
exam other than the LSAT and, most significant in terms of Binno’s plight, Interpretation 503-2
provides that the weight given an individual applicant’s exam score is to be determined at the
discretion of the law school. It is thus clear that the ABA does not actually “mandate” use of the
LSAT and, moreover, nothing in the standards gives the ABA authority to prescribe its content.
In that sense, the district court correctly noted that Binno had sued the wrong party. The law
schools to which he applied, not the ABA, determine what weight, if any, to give Binno’s LSAT
score, and the entity in control of the LSAT’s content and format is not the ABA but the LSAC.
As the district court found, “There are no allegations that the ABA, itself, directed these
questions to be included on the LSAT.”
3. Redressability
The third prong of an Article III standing analysis considers whether it is likely that the
plaintiff’s injury will be redressed by a favorable decision. Lujan, 504 U.S. at 560. Binno fails
to establish redressability for many of the same reasons that he cannot demonstrate causation.
Even if we were to grant Binno’s requested relief by somehow making Standard 503 optional,
law schools still could choose to require the LSAT in their admissions process. Because Binno’s
relief depends on action by the law schools—third parties that are not before the court—a
favorable decision by this court is not likely to redress Binno’s injury. See id.
Thus, even if we accept the unchallenged proposition that Binno has demonstrated injury-
in-fact, we nevertheless must conclude that he has failed to establish the required causation and
redressability that would support his standing to bring this action against the ABA. Moreover,
even if we could find that Binno has standing, our review of the statutory bases he proposes
would lead us to affirm the district court's decision to dismiss.
B. The ADA Claims
1. Title III
To survive a motion to dismiss, a plaintiff must allege facts with sufficient specificity to
state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678-79
(2009). The plausibility standard “asks for more than a sheer possibility that a defendant has
No. 12-2263 Binno v. Am. Bar Ass’n Page 8
acted unlawfully,” id., and instead “calls for enough fact to raise a reasonable expectation that
discovery will reveal evidence of [unlawful conduct].” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 556 (2007). Under the standard set out in Iqbal and Twombly, a court accepts as true all
factual allegations, but the court does not apply this presumption of truth to conclusory or legal
assertions. Iqbal, 556 at 678-79. If the plaintiff’s facts, accepted as true, do not state a claim that
has facial plausibility, the plaintiff has not satisfied the pleading requirements under Rule 8, and
the complaint will be dismissed. We review the district court’s ruling on a motion to dismiss de
novo. In re NM Holdings Co., 622 F.3d 613, 618 (6th Cir. 2010).
Here, Binno first argues that the district court incorrectly dismissed his claim brought
pursuant to the provisions of Title III of the ADA. Title III requires a private entity that “offers”
admissions examinations to provide such examinations “in a place and manner accessible to
persons with disabilities” or to offer alternative accommodations for such persons. 42 U.S.C.
§ 12189.5 Binno contends that, consistent with the remedial purpose of the ADA, the term
“offer” should be interpreted broadly to mean that the ABA “offers” the LSAT, because pursuant
to accreditation Standard 503, the ABA “fully reviews, verifies, and mandates the LSAT” in law
school admissions. In response, the ABA points out that the it cannot be said to offer the LSAT
because it does not make the examination available to test-takers, nor does it exert any control
over the “place and manner” of the test’s administration. The district court found that because
Binno had not pleaded facts to indicate that the ABA administered, developed, or controlled the
format of the LSAT, he had failed to state a claim under Title III of the ADA.
In interpreting a statute, we begin with its text. BedRoc Ltd. v. United States, 541 U.S.
176, 183 (2004) (“[O]ur inquiry begins with the statutory text, and ends there as well if the text is
unambiguous.”). If a term in a statute is undefined, it is interpreted using its ordinary meaning.
F.D.I.C. v. Meyer, 510 U.S. 471, 476 (1994). If a term is used multiple times in the same statute,
we presume that it has the same meaning wherever it is used in the statute. Util. Air Regulatory
Grp. v. E.P.A., 134 S. Ct. 2427, 2441 (2014) (“One ordinarily assumes that identical words used
5
Section 309 of Title III states: “Any [private entity] that offers examinations or courses related to
applications, licensing, certification, or credentialing for secondary or post-secondary education, professional, or
trade purposes shall offer such examinations or courses in a place and manner accessible to persons with disabilities
or offer alternative accessible arrangements for such individuals.” 42 U.S.C. § 12189.
No. 12-2263 Binno v. Am. Bar Ass’n Page 9
in different parts of the same act are intended to have the same meaning.”) (internal citation and
quotation marksomitted)). “Analysis of the statutory text, aided by established principles of
interpretation, controls.” POM Wonderful LLC v. Coca-Cola Co., 134 S. Ct. 2228, 2236 (2014).
The term “offer” is not defined in Section 309, nor is it defined elsewhere in the ADA.
However, the term is used three times within Section 309: “Any [private entity] that offers
examinations . . . shall offer such examinations or courses in a place and manner accessible to
persons with disabilities or offer alternative accessible arrangements for such individuals.”
42 U.S.C. § 12189 (emphasis added). The context indicates that an entity that “offers
examinations” under this provision must be able to provide an accessible “place and manner” for
administration of the tests, or arrange for alternative, accessible accommodations.
The regulations that implement Section 309 discuss the administration of the exam and,
accordingly, support the interpretation that an entity offering the exam must have significant
control over its administration or accommodation.6 Binno argues that because the word
“selected” is used within the implementing regulations,7 an entity that “selects” the exam also
“offers” it. However, in doing so, he ignores the fact that the term “selects” refers only to
entities that “offer” an examination under Section 309.
Binno also insists that an entity that “reviews, verifies, and mandates the LSAT” must be
held to offer the exam for the purposes of Section 309, but this argument is not supported by
either the text of the statute or the cases interpreting the statute. Even if we construe it broadly
because of the remedial nature of the statute at issue, see, e.g., Tcherepnin v. Knight, 389 U.S.
332, 336 (1967), the term “offer” nevertheless must be interpreted so that Section 309 is not
meaningless. Because the statute states that an entity that “offers” exams must do so “in a place
and manner accessible” to disabled persons or else offer alternative accommodations, the entity
6
For example, the regulations implementing Section 309 discuss “alternative accessible arrangements” with
respect to how the exam is administered. See, e.g., 28 C.F.R. § 36.309(b)(4) (“alternative accessible arrangements
may include, for example, provision of examination at an individual’s home with a proctor”).
7
The relevant regulation states: “Any private entity offering an examination covered by this section must
assure that [t]he examination is selected and administered so as to best ensure that, when the examination is
administered to an individual with a disability that impairs sensory, manual, or speaking skills, the examination
results accurately reflect the individual's aptitude or achievement level or whatever other factor the examination
purports to measure, rather than reflecting the individual's impaired sensory, manual, or speaking skills (except
where those skills are the factors that the examination purports to measure).” 28 C.F.R. § 36.309(b)(1)(i).
No. 12-2263 Binno v. Am. Bar Ass’n Page 10
must have some ability to grant those accommodations in the administration of the exam. An
entity without the authority to grant such accommodations would not be able to effectuate the
purpose of Section 309.8
Indeed, Binno apparently concedes that the ABA is subject to Section 309 only “to the
extent that [the ABA] exercises control over the manner in which the examination is given,” but
he then fails to allege the manner in which that control is actually exercised by the ABA. Binno
cites Bonnette v. D.C. Court of Appeals, 796 F. Supp. 2d 164 (D.D.C. 2011), and Elder v. Nat’l
Conference of Bar Exam’rs, C-11-00199-SI, 2011 WL 672662 (N.D. Cal. Feb 16, 2011), to
argue that Title III claims may be asserted against entities that do not administer an exam.
However, in both these cases, defendant National Conference of Bar Examiners developed the
content and format of the examination in question and had the actual ability to influence the
manner and administration of the exam.
In sum, Binno has not pleaded any facts in his complaint that demonstrate that Standard
503 gives the ABA authority over the manner and administration of the LSAT. Nor has he
pleaded any facts that show that the ABA has authority to grant accommodations or make other
arrangements in connection with the exam. Indeed, Binno undoubtedly cannot plead such facts,
because it is the LSAC, and not the ABA, that develops and administers the LSAT and grants
accommodations in the testing format. Because Binno has not pleaded facts to support a facially
plausible claim, his Title III claim against the ABA fails as a matter of law.
2. Title V
Binno next argues that the district court erred in dismissing his claim brought pursuant to
Title V of the ADA, which prohibits, among other things, “interference” with rights granted or
8
The legislative history of Section 309 also supports the interpretation that an entity “offers” an exam if it
can exert control over the administration, accessibility, or accommodation of that exam. That history indicates that
Section 309 “was adopted to assure that persons with disabilities are not foreclosed from educational, professional,
or trade opportunities because an examination or course is conducted in an inaccessible site or without an
accommodation.” H.R. REP. No. 101–485(III), at 68–69 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 491–92
(emphasis added). The legislative history also notes that “accessible to persons with disabilities . . . includes
physical access as well as accommodations in the way the test is administered, e.g. extended time or assistance of a
reader.” Id. The purpose of the statute is to ensure that the exam is accessible to persons with disabilities in the
exam’s administration and accommodations.
No. 12-2263 Binno v. Am. Bar Ass’n Page 11
protected under Title III.9 He alleges that the ABA violated Title V of the ADA because
Standard 503 “interferes” with Binno’s right to take an exam that is accessible to him or
otherwise accommodates his disability. The district court dismissed that claim outright,
reasoning that because Binno had failed to allege a violation of his rights under Title III of the
ADA, he could not claim interference with the exercise of those rights under Title V of the ADA.
Although that logic is superficially appealing, we can envision, at least hypothetically, that there
could be interference with the rights of a disabled individual by a third party. However, to plead
a Title V violation successfully, Binno would have to allege facts to demonstrate that the ABA
had interfered with the offering of the LSAT, i.e., the administration of the test in a place and
manner accessible to persons with disabilities or the provision of alternative accessible
arrangements. We already have held that Standard 503 does not violate Title III, and the
allegations in Binno’s complaint are not sufficient to establish a claim of interference under Title
V.
III. CONCLUSION
For the reasons set out above, we AFFIRM the judgment of the district court. In doing
so, however, we are left puzzled by Binno’s failure to litigate against the LSAC, rather than the
ABA. His amended complaint, filed in August 2011, followed by over four years the ruling in
Love v. Law Sch. Admission Council, Inc., 513 F. Supp. 2d 206, 223 (E.D. Pa. 2007), that the
LSAC is “a covered entity under the [ADA],” and by over a decade similar litigation in Agranoff
v. LSAC, Inc., 97 F. Supp. 2d 86, 87 (D. Mass. 1999). Indeed, in Love, the LSAC conceded that
it was subject to Title III. Love, 513 F. Supp. 2d at 223. By contrast, we have been pointed to no
cases in which a Title III or Title V claim has been brought against the ABA, successfully or
otherwise.
In addition to other, prior litigation against the LSAC, there is now pending the ongoing
administration of a nationwide consent decree in a class-action suit brought against the LSAC by
the California Department of Fair Employment and Housing (DFEH) and joined by the United
9
Section 503(b) of Title V provides, in relevant part: “It shall be unlawful to coerce, intimidate, threaten,
or interfere with any individual in the exercise or enjoyment of . . . any right granted or protected by this chapter.”
42 U.S.C. § 12203(b) (emphasis added).
No. 12-2263 Binno v. Am. Bar Ass’n Page 12
States Department of Justice (USDOJ). The original action sought damages and injunctive relief
stemming from alleged failures of the LSAC to provide reasonable accommodations to impaired
test-takers of the LSAT, in violation of the ADA. See Dep’t of Fair Emp’t & Hous. v. Law Sch.
Admissions Council, Inc., No. 12-cv-01830-JCS, 2015 WL 4719613 (N.D. Cal. Aug. 7, 2015);
see also Dep’t of Fair Emp’t & Hous. v. Law Sch. Admission Council Inc., 896 F. Supp. 2d 849
(N.D. Cal. 2012). In its most recent opinion, the district court considered and approved
recommendations from a panel of five experts concerning how the LSAC should accommodate
individuals with visual impairments in the “analytical reasoning section of the LSAT exam
because of its reliance on visual-spatial abilities.” 2015 WL 4719613 at *12. Unless Binno is
seeking to be relieved altogether of the obligation of taking the LSAT, a more practical approach
to achieving admission to law school than years of fruitless litigation against a remote
accrediting body might well be to take advantage of the consent decree that the DFEH and the
USDOJ have entered with LSAC.
No. 12-2263 Binno v. Am. Bar Ass’n Page 13
_____________________________________
CONCURRENCE IN THE JUDGMENT
_____________________________________
GRIFFIN, Circuit Judge, concurring in the judgment. Plaintiff alleges that the American
Bar Association (ABA) has monopolized the law school entrance exam market. As the entity
that controls the accreditation of every law school in this country, the ABA compels every law
school applicant to take a “valid and reliable” entrance exam, while at the same time conferring
the “valid and reliable” label to one test, and one test only—the LSAT. Unfortunately, it appears
that a portion of the LSAT is unfairly discriminatory toward the blind and visually impaired.
That puts plaintiff and all other blind people seeking to attend law school at a distinct
disadvantage, both while taking the test and while competing with other applicants in the
admissions process. Plaintiff has asked law schools to waive the requirement that he take the
LSAT and submit his score as part of his application; they have refused, plaintiff claims, for fear
the ABA would revoke their accreditation. This is the sum and substance of the allegations in
plaintiff’s complaint.
Contrary to the majority’s ruling, I conclude that taken together these allegations form the
necessary elements of Article III standing for plaintiff’s claims against the ABA. Being required
to take an unfairly discriminatory exam and submit it as part of a law school application is a
judicially cognizable injury; that injury is fairly traceable to the ABA, which compels, without
exception, that law schools require applicants to submit that exam score; and that injury is likely
to be redressed through a judicial decision holding the entity’s requirement unlawful. Because
the majority concludes otherwise, I respectfully disagree with Section II.A of the majority
opinion.
The standing issue aside, I agree with my colleagues that plaintiff’s allegations do not
state a claim for relief under Titles III and V of the Americans with Disabilities Act. Therefore, I
join Section II.B of the majority opinion and concur in the judgment.
No. 12-2263 Binno v. Am. Bar Ass’n Page 14
I.
The ABA governs the accreditation of law schools in this country. To become and
remain accredited, law schools must comply with certain standards promulgated by the ABA.
One of those standards is Standard 503. It states that “[a] law school shall require each applicant
for admission as a first year J.D. student to take a valid and reliable admission test to assist the
school and the applicant in assessing the applicant’s capability of satisfactorily completing the
school’s educational program.” According to the ABA, only one test is presumptively “valid and
reliable” for purposes of Standard 503—the Law School Admission Test (LSAT). Law schools
that wish to use a different test must persuade the ABA that it is “valid and reliable.” However,
that option (known as a “variance”) is only available on a programmatic basis, not for individual
applicants. Law schools are free to give whatever weight they choose to an individual
applicant’s LSAT score, but they are prohibited from waiving the examination requirement for
any applicant. The net result of the ABA’s standards is this: virtually every American law
school—though they may give whatever weight they choose to an individual’s score—requires
each applicant to submit an LSAT score as part of his or her application.
The LSAT contains a significant number of questions that require spatial reasoning and
encourage diagramming of visual concepts. As a blind person, plaintiff is unable to conceive of
spatial relationships. He is therefore at a distinct disadvantage in taking this portion of the test.
Plaintiff alleges that his experience answering these discriminatory questions also negatively
affects his performance on the remainder of the exam. Plaintiff has applied to three law schools,
but has been denied admission as a result of his poor LSAT performance. In at least one
instance, he tried to obtain an LSAT waiver, but could not “as a result of Standard 503.”
In response, plaintiff brought this action against the ABA, alleging that Standard 503’s
prohibition on individual exam waivers violates Titles III and V of the Americans with
Disabilities Act (ADA), 42 U.S.C. §§ 12189 and 12203(b), respectively. The district court
dismissed plaintiff’s complaint on two alternative grounds: (1) failure to establish Article III
standing, and (2) failure to state a claim for relief. I agree with the majority that the district court
properly dismissed plaintiff’s complaint for failure to state a claim. However, for the reasons
that follow, I cannot join its conclusion that plaintiff lacks standing.
No. 12-2263 Binno v. Am. Bar Ass’n Page 15
II.
The irreducible minimum of Article III standing has three elements. Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992). First, the plaintiff must have suffered a concrete and
particularized injury-in-fact that is either actual or imminent, as opposed to conjectural or
hypothetical. Fieger v. Michigan Supreme Court, 553 F.3d 955, 962 (6th Cir. 2009). Second,
the plaintiff’s injury must be “fairly traceable” to the challenged action of the defendant. Id.
And third, it must be likely, as opposed to merely speculative, that the injury will be redressed by
a favorable decision. Id.
In evaluating plaintiff’s standing at the pleading stage, we must confine ourselves to the
four corners of the complaint, Parsons v. U.S. Dep’t of Justice, 801 F.3d 701, 706 (6th Cir.
2015), we must accept as true all material allegations relating to the elements of standing,
Kardules v. City of Columbus, 95 F.3d 1335, 1346 (6th Cir. 1996), and we must construe the
complaint in plaintiff’s favor, Warth v. Seldin, 422 U.S. 490, 501 (1975). My basic disagreement
with the majority is that it fails to observe this standard of review and, in so doing, misapplies the
second and third elements of standing.
A.
The injury-in-fact prong of the standing doctrine requires that a judicially cognizable
harm have already occurred or be likely to occur “imminently.” Parsons, 801 F.3d 710. “At the
pleading stage, general factual allegations of injury resulting from the defendant’s conduct may
suffice, for on a motion to dismiss we presume that general allegations embrace those specific
facts that are necessary to support the claim.” Defs. of Wildlife, 504 U.S. at 561 (internal
quotation marks and brackets omitted).
Plaintiff’s legal theory is that the ABA discriminates against blind law school applicants
by compelling law schools to require all applicants submit an LSAT score, without the option of
waiving the requirement for certain individual applicants. Plaintiff alleges that he is harmed by
having to sit through a discriminatory examination and by having to submit the results as part of
his law school application. These are particularized injuries judicially cognizable under our
standing jurisprudence. See, e.g., Gratz v. Bollinger, 539 U.S. 244, 262 (2003) (inability to
No. 12-2263 Binno v. Am. Bar Ass’n Page 16
compete on equal footing with other applicants a cognizable injury-in-fact); Allen v. Wright,
468 U.S. 737, 757 n.22 (1984) (“[S]tigmatic injury . . . is judicially cognizable to the extent that
[the plaintiff is] personally subject to discriminatory treatment.”). Plaintiff also alleges that he
wishes to reapply to law school free of the requirement that he submit an LSAT score, thereby
establishing an “imminent” harm for purposes of seeking prospective relief. See Gratz, 539 U.S.
at 262 (holding that allegation that applicant is “able and ready” to reapply is sufficient to
establish standing to seek prospective relief); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 184 (2000) (rejecting the proposition that the plaintiff’s conditional
averments were “speculative ‘some day’ intentions”). Therefore, as the majority appears to
agree, plaintiff has satisfied the first element of standing.
B.
The second element of standing—the so-called “causation” element—requires a plaintiff
to show that his injury is “fairly traceable” to the defendant’s challenged action. Fieger,
553 F.3d at 962. In cases in which a plaintiff is harmed by the regulation of a third party, where
causation will “hinge on the response of the regulated (or regulable) third party,” he or she must
“adduce facts showing that those choices have been or will be made in such manner as to
produce causation . . . .” Defs. of Wildlife, 504 U.S. at 562.
Plaintiff’s two-fold injury is that he must sit through a discriminatory test and must apply
to law schools at a competitive disadvantage because he is required to submit the results of a test
that is inherently discriminatory toward blind people. In order to establish that these injuries are
traceable to the ABA, plaintiff’s complaint must allege that he requested an LSAT waiver from a
law school, but that the school denied his request because of Standard 503. Paragraph 25 of his
complaint does just that:
Plaintiff has endeavored in the past to obtain an LSAT waiver from one or more
law schools to which he has applied but to date has been unable to secure a waiver
as a result of Standard 503 promulgated by the American Bar Association.
Even more to the point, Paragraph 27 alleges:
As a direct and proximate result of the Defendant’s actions in implementing
Standard 503, the Plaintiff is unable to request a reasonable accommodation in the
No. 12-2263 Binno v. Am. Bar Ass’n Page 17
form of an LSAT exemption or waiver, and instead will continue to be damaged
by the Defendant’s requirement that he take a discriminatory exam.
These allegations are more than sufficient to satisfy the second element of the standing inquiry,
as they draw a connection between plaintiff’s injury—being required to take a discriminatory
exam and submit the results as part of his application—and defendant’s challenged conduct—
Standard 503’s rigid requirement that law schools require each applicant to submit an LSAT
score or else face sanctions or loss of accreditation.
The ABA counters that, because Standard 503 refers only to “a valid and reliable test,” it
does not compel any law school to require the LSAT, per se. This is sophistry. The ABA’s own
Interpretation 503-1 confers presumptive validity and reliability to the LSAT only, and it
requires schools to prove the efficacy of any alternative test. Moreover, to use an alternative test,
law schools must seek a “variance,” which is only available on a programmatic basis. Thus, for
purposes of plaintiff’s claim regarding individual waivers, Standard 503 effectively compels law
schools to require the LSAT.
The ABA also argues that Standard 503 does not dictate how much weight law schools
must give to an applicant’s LSAT score, and therefore law schools can give it no weight at all,
amounting to a de facto individual waiver. This misperceives plaintiff’s injury, which is being
required to take the LSAT in the first place. Furthermore, plaintiff is still at a competitive
disadvantage in having to submit his results, as law schools are required to report each admitted
applicant’s score, regardless of the weight attributed to it, for purposes of admissions statistics
and rankings.
The majority takes a tack similar to the ABA. It reasons that plaintiff cannot establish
causation against the ABA because his injuries are more attributable to the law schools and the
creator of the LSAT, the Law School Admission Council (LSAC). It is certainly true that the
LSAC and law schools play a role in plaintiff’s admission process. But standing is not a zero-
sum game. Nor is it limited to the first link in the chain of causation. Lexmark Int’l, Inc. v.
Static Control Components, Inc., 134 S. Ct. 1377, 1391 n.6 (2014) (stating that standing is not a
question of proximate cause). The ABA may not be solely responsible for plaintiff’s injuries,
No. 12-2263 Binno v. Am. Bar Ass’n Page 18
but constitutional standing requires only that an injury be “fairly traceable,” not “solely
traceable,” to the defendant’s challenged action.
The majority’s “solely traceable” approach to causation is out of sync with our standing
jurisprudence. Perhaps the starkest example of this incongruity is our recent decision in Parsons,
801 F.3d 701. In that case, a group of plaintiffs challenged the Department of Justice’s (DOJ’s)
designation of them as a “hybrid gang” in a report disseminated to local law enforcement
agencies. Id. at 707. The plaintiffs sued the DOJ, alleging that local law enforcement interfered
with their constitutional rights in the wake of the DOJ’s designation. The district court dismissed
the case for lack of standing, holding that plaintiffs could not establish causation because the
local law enforcement officials “exercised independent judgment in committing the alleged
injuries.” Id. at 713. This court reversed. We observed that the plaintiffs had alleged that local
law enforcement officials took adverse actions against them “based on” the DOJ’s designation.
Id. at 713–14. We held that “by stating that the law enforcement officials themselves
acknowledged that the DOJ gang designation had caused them to take the actions in question,”
the plaintiffs had sufficiently traced their injuries to the DOJ’s designation. Id. at 714.
This case is indistinguishable from Parsons. The connection between the ABA and
plaintiff’s injuries may be indirect, much like the connection in Parsons. But, “the fact that an
injury is indirect does not destroy standing as a matter of course.” Id. at 713. Parsons makes
clear that causation will lie so long as the plaintiff can connect his injury to the challenged action
of the defendant. The plaintiffs in Parsons did that by alleging that local law enforcement
officials acted “based on” the DOJ’s designation. So, too, plaintiff has alleged that law schools
will not grant an individual waiver “as a result of Standard 503.” Accepting that allegation as
true (as we must), plaintiff has demonstrated that his injuries are fairly traceable to the ABA’s
rule compelling law schools to require the LSAT without the option of individual waivers.
C.
The third element of constitutional standing is whether “it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.” Fieger, 553 F.3d at 962.
The majority concludes that plaintiff’s injury is not likely to be redressed because, even if the
No. 12-2263 Binno v. Am. Bar Ass’n Page 19
court struck down Standard 503, “law schools could still choose to require the LSAT in their
admissions process.” The Supreme Court rejected precisely this line of reasoning in Federal
Election Commission v. Akins, 524 U.S. 11 (1998).
In Akins, the plaintiffs filed a complaint with the Federal Election Commission (FEC),
alleging that the American Israel Public Affairs Committee (AIPAC) was a “political committee”
and requesting the FEC to initiate enforcement proceedings against AIPAC. Id. at 13, 16. The
FEC dismissed the complaint on the basis that AIPAC did not meet the statutory definition of
“political committee.” Id. at 18. The plaintiffs sued and the FEC challenged their standing,
arguing that, even if it agreed with the plaintiffs that AIPAC was a “political committee,” it still
retained the discretionary authority not to initiate proceedings against AIPAC. Id. at 25. The
Supreme Court rejected this argument: “[E]ven though the FEC might [have] reach[ed] the same
result exercising its discretionary powers lawfully,” the plaintiffs’ injury was still fairly traceable
to the FEC’s decision to dismiss the complaint based on a purportedly incorrect reading of the
statute, “for we cannot know that the FEC would have exercised its prosecutorial discretion in
this way.” Id. “For similar reasons,” the Court said, “the courts . . . can ‘redress’ [the plaintiffs’]
‘injury in fact.’” Id.
Akins’ holding is equally applicable here: although a law school may retain the
discretionary power to require the LSAT or deny plaintiff admission, “we cannot know that [it]
would have exercised its . . . discretion in this way.” Id. The fact that law schools may deny him
a waiver in their discretion does not mean plaintiff’s present injury—the unavailability of
waivers altogether—is not redressable by holding Standard 503 unlawful.
In any event, according to plaintiff’s complaint, the majority’s prediction is likely wrong.
Plaintiff has alleged that at least one law school to which he has applied denied him a waiver “as
a result of Standard 503.” Construing this allegation in plaintiff’s favor, we must accept that law
schools are willing to waive the LSAT score, but are fettered by Standard 503. In other words,
plaintiff has alleged that, “absent [Standard 503], there is a substantial probability that . . . if the
court affords the relief requested, the asserted [injury (the unavailability of waivers)] will be
removed.” Warth, 422 U.S. at 504. That is all that is required to satisfy the redressability
requirement of Article III standing.
No. 12-2263 Binno v. Am. Bar Ass’n Page 20
The basic thrust of the argument against plaintiff having standing is the notion that
plaintiff has somehow sued the wrong party. This is the basis for the majority’s parting legal
advice about pursuing other, “more practical” legal remedies against the LSAC. The argument
and advice expose the fundamental flaw in the majority’s decision. By repackaging plaintiff’s
factual allegations into a new legal theory for him, the majority flips the construe-all-allegations-
in-plaintiff’s-favor standard on its head. See id. at 501. Indeed, the majority assumes “Binno is
[not] seeking to be relieved altogether of the obligation of taking the LSAT,” yet this is precisely
the outcome plaintiff wants. Furthermore, it overlooks a critical allegation in plaintiff’s
complaint—the ABA used to allow law schools to give individual LSAT waivers. This fact
dispels the myth that the ABA is not responsible for plaintiff’s injuries. It also confirms what the
foregoing discussion sought to show: that plaintiff’s injury (the unavailability of LSAT waivers)
is fairly traceable to Standard 503 and can be redressed through a judicial decision holding it
unlawful.
III.
For these reasons, I would hold that plaintiff has established Article III standing to sue
the ABA. I therefore respectfully disagree with the majority’s ruling regarding standing. That
said, whether plaintiff has Article III standing is a separate question from whether the
unavailability of a waiver under Standard 503 violates the ADA. Id. at 500. On the latter
question, I agree with the majority’s analysis of the Title III and Title V claims. I therefore join
Section II.B of the majority opinion and concur in the judgment.