The impact of the Americans with Disabilities Act on state bar examiners' inquiries into the psychological history of bar applicants.

• Date: 01 October 1995
• Author: Banta, Carol J.

Introduction

Bar examiners, as the designated gatekeepers of the legal profession, are responsible for protecting the public from unfit attorneys. Because attorneys interact with and serve the public in a profession that requires responsibility and trustworthiness, bar applicants are subject to especially rigorous screening.(1) In determining the fitness of candidates for the practice of law, state boards of bar examiners follow a two-pronged approach, consisting of a written examination to test legal knowledge and a character and fitness assessment.(2) Bar examiners investigate applicants thoroughly, inquiring as to personal traits and background information that would not be as relevant for other positions.(3) As part of the fitness assessment, inquiries into the applicants' mental health histories are common.(4) Bar examining boards in forty-three states and the District of Columbia use some form of psychological history inquiry.(5)

Mental health questions take several possible forms, varying both in subject matter and in the scope of the time period about which they inquire. In terms of subject matter, the broadest type of question asks whether the applicant has received treatment or counseling from a medical professional for any psychological condition or substance abuse.(6) Some questions ask only whether the applicant has ever been dependent on drugs or alcohol, as distinguished from questions about treatment or diagnosis.(7) Other questions focus more narrowly on actual diagnosis of a psychological problem or on specified psychological problems, or on both.(8) With respect to the relevant time periods, state bars often place no time limit on the questions, asking whether applicants have "ever" received treatment, been institutionalized, and so on.(9) Some boards of bar examiners limit the time period subject to inquiry to a specific number of years.(10)

Since the enactment of the Americans with Disabilities Act of 1990 (ADA),(11) bar examiners across the nation have debated the Act's impact on the use of mental health inquiries in bar applications.(12) In some cases they have amended their questions to address concerns that such inquiries may violate the ADA.(13) For example, the District of Columbia Court of Appeals changed the D.C. bar application in February 1992, eliminating a question about past treatment for mental illness and putting a five-year limit on two questions about drug or alcohol treatment and about hospitalization for mental illness.(14) The New York State Bar took a different approach in changing its questions, eliminating a question regarding past commitment, institutionalization, or incompetence and replacing it with two questions: one asking about any condition that could adversely affect capability to practice and one asking about current use of illegal drugs.(15) An increasing number of lawsuits challenging the legality of psychological history inquiries(16) are forcing bar examiners and courts to consider the impact of the ADA and alternatives to mental health questions.

Two federal district courts have recently ruled on challenges to revised questions. In Applicants v. Texas State Board of Law Examiners,(17) the court rejected an ADA challenge to a question about diagnosis of or treatment for certain disorders within the previous ten years.(18) The court held that the inquiry was "necessary" for the investigation of bar applicants' fitness.(19) A few months later, the court in Clark v. Virginia Board of Bar Examiners(20) held that a question about treatment or counseling within the previous five years(21) did violate the ADA. The Virginia court also considered whether the question was "necessary," but held that the question was too broad and that its negative effects outweighed its utility.(22) Although it invalidated the Virginia Board's question, the court indicated that the ADA would permit some form of mental health inquiry.(23)

This Note disagrees with both of these cases and with the apparent trend toward revising psychological history inquiries to make them seem narrower while continuing to base them on mental health status. This Note argues that the use of any questions based upon an applicant's psychological history in the state bar application process violates the Americans with Disabilities Act. Part I demonstrates that Title II of the ADA(24) applies to state boards of bar examiners, and that the ADA definition of a person with a disability includes a person who has sought or received psychological counseling. Part II applies the ADA and accompanying regulations to the psychological history inquiries currently used by state bar examiners and argues that such inquiries violate the ADA because they inquire specifically about disabled status. Part III argues that although Department of Justice regulations allow for a narrow necessity exception to the ADA, bar examiners' use of psychological background inquiries are not "necessary" because they are ineffective in determining applicants' fitness to practice law. Part IV asserts that the ADA permits questions relating to conduct and behavior, rather than past or present psychological status, and that such questions would adequately serve the bar examiners' purpose.

1. Applicability of the ADA

   The Americans with Disabilities Act applies to state bar inquiries into applicants' psychological histories. Section I.A contends that state boards of bar examiners are public entities subject to the ADA, and that Title II of the ADA applies to their procedures and criteria. Section I.B argues that the ADA protects individuals who have sought or received psychological treatment, or who have been misclassified as or are regarded as having psychological disorders.

   1. Applicability to Bar Examiners' Inquiries

      State boards of bar examiners, as instrumentalities of state judicial branches, are public entities under the ADA and therefore subject to its provisions.(25) Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity."(26) The definition of "public entity" includes "any ... agency ... or other instrumentality of a State or States or local government."(27) The Department of Justice stated in its regulations implementing Title II(28) and stated that the regulations apply to all programs or activities provided by public entities.(29) The DOJ explained that the scope of Title II coverage includes not only executive agencies, but also "activities of the legislative and judicial branches of State and local governments."(30)

      Title II and the accompanying regulations explicitly apply to state licensing and certification bodies, and therefore to state boards of bar examiners. A DOJ regulation prohibits public entities under Title II from "administer[ing] a licensing or certification program in a manner that subjects qualified individuals with disabilities to discrimination on the basis of disability."(31)

      Title II of the ADA applies to state bar examiners' application and investigation procedures and criteria. Regulations implementing Title II prohibit public entities from applying criteria that have the effect of differentiating people on the basis of disability unless such criteria are "necessary."(32) Questions about and investigations into character and fitness are methods of administration that single out certain individuals on the basis of specified criteria, and therefore Title II applies to them.(33) As public entities engaged in professional licensing, therefore, state boards of bar examiners are necessarily subject to the provisions of Title II of the ADA.

   2. Psychological Disorders

      This section argues that the Americans with Disabilities Act prohibits discrimination on the basis of psychological disorders,(34) even in cases where such disorders do not rise to the level of a disability as defined by the Act.

      The ADA protection against discrimination extends to individuals with psychological disorders. The statute defines a disability as "a physical or mental impairment that substantially limits one or more of the major life activities of such an individual."(35) The Department of Justice further defined "mental impairment" to include any psychological disorder, or emotional or mental illness,(36) and has interpreted the definition to include drug addiction and alcoholism.(37)

      The ADA also protects individuals who have had psychological disorders in the past. The statutory definition of the term "disability" includes "a record of" a substantially limiting physical or mental impairment.(38) This definition applies both to people who have a history of an impairment and to those who have been misclassified as having an impairment.(39) In the preamble to its interpretive regulation, the DOJ explained that the definition seeks to protect people who have recovered from their previous impairments by prohibiting discrimination on the basis of those past impairments.(40) As common examples of individuals that the statute protects, the DOJ referred to people who have recovered from mental or emotional illness and people who have been misclassified as mentally ill.(41)

      Finally, the ADA protects even those with psychological disorders that would not qualify as disabilities. The statute defines "disability" to include "being regarded as having" a substantially limiting physical or mental impairment.(42) The DOJ regulation construes this language to apply to individuals who have an impairment that is not substantially limiting "but that is treated by a public entity as constituting such a limitation,"(43) and to individuals who have an impairment that is substantially limiting "only as a result of the attitudes of others."(44) The preamble to the regulation emphasizes the importance of "perception" to...