C. Michael Kamps, a certified public accountant in Texas, filed a lawsuit against Baylor Law School alleging that the school fails to adjust grade point averages of applicants who received undergraduate degrees many years before today’s practice of grade inflation, which began in the late 1970s. Kamps argued that this bias displayed by Baylor Law School admissions was in violation of the Age Discrimination Act (ADA) of 1975 (42 U.S.C. 6101 et seq.).

Kamps, 57, graduated from Texas A&M University in 1979 with a GPA of 3.2, placing him in the top quarter of his class. He also earned a score of 169 on the Law School Admissions Test. According to the lawsuit, Kamps consistently submitted applications to Baylor Law School over the course of several years, with no success. He was eventually wait-listed for Fall 2010, and then offered a seat for his credentials in Summer 2010, Spring 2011, and Spring 2012 classes. However, Kamps wished only to matriculate during one of the more competitive Fall classes. Therefore, his age discrimination claim was based not on the fact that the law school had rejected him altogether, but that it did not admit him for his preferred terms. Kamps’ final complaint is that the University denied him the chance to receive the merit-based Nance Scholarship in 2011 because of his age.

After the Department of Education received Kamps’ first formal complaint on October 27, 2011, Kamps believed the University retaliated against him by outright rejecting his most recent attempt to apply for the Fall 2012 class. Thus, Kamps brought disparate treatment, disparate impact, and retaliation claims against the University and its administrators in July 2012. Yet the U.S. District Court of the Western District of Texas and the New Orleans-based Fifth U.S. Circuit Court of Appeals both dismissed his lawsuit on all counts.

According to the court documents, it was dismissed first on the grounds that because Kamps missed his 180-day window to file his knowledge of the alleged discrimination—his DOE claim was made more than a year after Baylor Law School denied his initial 2010 application on February 17, 2010—Kamps did not exhaust his administrative remedies. Second, Kamps’ claim of disparate treatment, a fancy legal term for intentional discrimination, fell short because there is no evidence to show that Baylor used applicants’ GPAs to discriminate against any older applicants including Kamps. Kamps alleged that,

[Baylor] knew, or should have known, the effect that grade inflation would have when comparing GPAs earned in different eras.

The magistrate judge determined that knowing that GPA grade inflation disadvantages older applicants is not the same thing as using applicants’ GPAs in order to intentionally disadvantage older applicants.

Finally, unlike the Age Discrimination in Employment Act (ADEA) of 1967, the court decided that the ADA of 1975 does not prohibit either disparate impact policies or retaliation. The disparate impact theory is different from disparate treatment or intentional discrimination in that it prohibits employers from using policies that are facially neutral, but creates an unjustified adverse impact on members of any protected class (race, color, religion, gender, etc.). In other words, disparate impact is the name for unintentional discrimination. According to the decision,

The [ADEA] makes it unlawful to limit, segregate, or classify employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.

Nowhere in the ADA are the words “otherwise adversely affects,” nor is there a statutory prohibition against retaliation, meaning the ADA only prohibits against intentional discrimination. Title IX Education Amendments of 1972 state:

No person in the United States shall, on the basis of age, be excluded from participation, be denied the benefits of, or be subjected to discrimination under, any program or activity receiving Federal financial assistance.

On Monday, June 1, 2015, the U.S. Supreme Court agreed with the Fifth U.S. Circuit Court of Appeals’ 2014 decision to dismiss Kamps’ suit on all counts. Kamps told Texas Lawyer that while he thought he raised an interesting question for the Supreme Court, it is “the end of the road” for his journey to law school.

Although the Supreme Court seems to be justified in its decision regarding the legal language of the ADA, in practice, it does not seem justified that any law school should have the ability to  intentionally discriminate or unintentionally discriminate against older applicants. Only three words—“otherwise adversely affects”—are missing from the Age Discrimination Act of 1975 to place potentially hundreds or thousands of older applicants on a level playing field with younger applicants in the competition of law school admissions.

Jenifer Carter

Jenifer Carter is a member of the University of Virginia Class of 2016. Contact Jenifer at staff@LawStreetMedia.com.

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