Tiffany Lemberg v. Law School Admissions Council & University of Cincinnati

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
TIFFANY LEMBERG
Complainant 	Complaint #8468
(CIN) K5011298 (26976) 031798
and
LAW SCHOOL ADMISSIONS COUNCIL
AND UNIVERSITY OF CINCINNATI
Respondents
HEARING EXAMINER'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATION
ON RESPONDENTS’ MOTIONS TO DISMISS (RE: JURISDICTION)
BETTY D. MONTGOMERY 	BETTY D. MONTGOMERY
ATTORNEY GENERAL 	ATTORNEY GENERAL
Barbara J. Morsa, Esq. 	Susan C. Walker, Esq.
Assistant Attorney General 	Assistant Attorney General
Civil Rights Section 	Education Section
1600 Carew Tower 	State Office Tower, 15th Floor
441 Vine Street 	30 East Broad Street
Cincinnati, OH 	45202-2809 	Columbus, OH 	43215-3428
(513) 852-3497 	(614) 644-7250
Counsel for the Commission 	Counsel for University of Cincinnati
Joan E. Van Tol, Esq. 	Tiffany Lemberg
Corporate Counsel 	321 Jefferson Avenue
Law School Admission Council 	Cincinnati, OH 	45215
661 Penn Street
Newton, PA 	18940 	Complainant
(215) 968-1137
Counsel for LSAC
HEARING EXAMINER'S REPORT BY:
Franklin A. Martens, Esq.
Chief Hearing Examiner
Ohio Civil Rights Commission
1111 East Broad Street, Suite 301
Columbus, OH 	43205-1379
(614) 466-6684

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INTRODUCTION AND PROCEDURAL HISTORY
The Ohio Civil Rights Commission (Commission) issued Complaint
#8468 on January 7, 1999. 	The Complaint alleged that Complainant
requested an accommodation from the Law School Admissions Council for the
Law School Admissions Test (LSAT) which was scheduled to be held at the
University of Cincinnati on February 15, 1998. 	The Complaint alleged that
her accommodation request was denied.
Respondent Law School Admissions Council (LSAC) filed an Answer to
the Complaint and a Motion to Dismiss on February 9, 1999. 	In the Motion to
Dismiss, LSAC argued that it was an entity that was not covered under
Chapter 4112. 	Therefore, the Commission had no jurisdiction to issue a
complaint against it.
Respondent University of Cincinnati (UC) filed a Motion to Dismiss on
April 19, 1999. 	In its Motion to Dismiss, UC argued the Commission did not
have jurisdiction to proceed against UC because it was not a proper party.
UC argued that it was neither an agent of LSAC nor had any authority to make

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any determinations regarding accommodation requests. 	Further, UC argued
that 	Complainant 	never 	directed 	a 	request 	for 	accommodation 	to 	the
University. Complainant requested accommodation from LSAC, but it did not
involve access to the testing facility.
The Commission did not file a response to either Motion. 	Instead, the
Commission and both Respondents filed Joint Stipulations with the Hearing
Examiner on September 16, 1999. 	Therefore, this matter is now before the
Hearing Examiner on Respondents’ Motions to Dismiss.
FINDINGS OF FACT
The following Findings of Fact are based on the Joint Stipulations
submitted by the Commission and the Respondents. 	The Findings of Fact
are not findings of fact on the merits of the Commission’s Complaint. 	The
Findings of Fact are limited to Findings of Fact which relate to the issues
raised in the Motions to Dismiss.

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UC’S MOTION TO DISMISS
UC entered into an agreement with LSAC on October 8, 1996 to serve
as a test site for LSAT during the 1997-98 test year. 	The agreement between
LSAC and UC provided that UC would operate the test center in such a
manner as to assure equal access to all persons.
UC did not have any authority under the agreement or otherwise to
make any determinations about whether an accommodation should be given
to a student who requests an accommodation.
Complainant never made a request for accommodation to UC, nor did
the request for an accommodation that she made to LSAC involve access to
the testing facility itself.

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LSAC’S MOTION TO DISMISS
LSAC is a private Delaware corporation headquartered in Newtown,
Pennsylvania.
LSAC is not a place of public accommodation as set out in Ohio Revised
Code § 4112.01(A)(9).
LSAC has no employees within the state of Ohio, nor does it operate a
place of business in Ohio.
LSAC is not an educational institution, as defined under Revised Code §
4112.022.

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CONCLUSIONS OF LAW AND DISCUSSION
UNIVERSITY OF CINCINNATI
Based on the foregoing Findings of Fact, it is clear that UC had no
authority to allow Complainant to have extra time to complete the LSAT per
her accommodation request. 	It is also clear that UC was not asked to provide
her with any accommodation within its jurisdiction, access to the facilities.
The facilities were accessible to the disabled. 	It is also clear that LSAC was
not an agent of UC. 	If anything, UC was an agent of LSAC for purposes of
administering the test. 	However, LSAC did not give UC the authority to grant
the type of accommodation that was requested by Complainant. 	Even if UC
could grant this accommodation, Complainant did not apply to UC for such an
accommodation.
I am not aware of any legal theory under which UC could be held liable
for a violation of Chapter 4112 committed by LSAC. The Commission did not
offer any legal arguments on this issue. Therefore, I am recommending that
UC’s Motion to Dismiss be granted.

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LAW SCHOOL ADMISSIONS COUNCIL
LSAC is not an agent of UC. 	Therefore, it is difficult to conclude that
the Commission has jurisdiction over LSAC, since LSAC does not have four or
more employees within the state of Ohio. 	(See R.C. § 4112.01(A)(2), which
defines an employer as a person employing four or more persons within the
state)
Nor does LSAC fit the definition of a place of public accommodation.
(See R.C. § 4112.01(A)(9)) 	Likewise, LSAC is not an educational institution
as it is defined under R.C. § 4112.022.
Thus, it appears that an organization such as LSAC, which does
business in Ohio without actually having a presence in Ohio, is not subject to
Ohio’s Laws Against Discrimination.
In any event, based on the Joint Stipulations that were submitted,
Complainant’s request for more time to take the LSAT was denied because
she did not submit the appropriate documentation within a reasonable time

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prior to the February 1998 LSAT. 	This would appear to be a legitimate,
nondiscriminatory reason for denying her request for accommodation.
CONCLUSION
Having considered the Joint Stipulations and arguments put forth by the
Respondents in the Memorandums in Support of their Motions to Dismiss and
having heard no counter arguments from the Commission, the Hearing
Examiner is recommending that Complaint #8468 be dismissed because the
Commission has no jurisdiction over LSAC and UC is not a proper party.

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RECOMMENDATION
For all the foregoing reasons, it is recommended that the Commission
issue a Dismissal Order in Complaint #8468.
FRANKLIN A. MARTENS
CHIEF HEARING EXAMINER
October 12, 1999