IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division JULIE ANN CLARK : : Plaintiff, : : C.A. # 94-211-A v. : : VIRGINIA BOARD OF BAR EXAMINERS : : Defendant. : : RECOMMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW OF THE UNITED STATES AS AMICUS CURIAE 01-07450 TABLE OF CONTENTS TABLE OF AUTHORITIES..................................................... ii I. INTRODUCTION...................................................... 1 II. PROPOSED FINDINGS OF FACT......................................... 3 III. PROPOSED CONCLUSIONS OF LAW...................................... 13 IV. CONCLUSION....................................................... 27 i 01-07451 TABLE OF AUTHORITIES CASES: Addington v. Texas, 441 U.S. 418 (1979).............................................. 21 Applicants v. Texas State Bd. of Law Examiners, 93 CA 740 SS (W.D. Tex. Oct. 10, 1994)............................ 2 In re Applications of Anne Underwood and Judith Ann Plano, No. BAR 93-21, 1993 WL 649283 at *2 (Me. Dec. 7, 1993)........................... 2 Arizona Governing Comm. for Tax Deferred Annuity and Deferred Compensation Plans v. Norris, 463 U.S. 1073 (1983)............................................. 22 Chevron, U.S., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)........................................ 14 City of Los Angeles v. Manhart, 435 U.S. 702 (1978).............................................. 22 Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985).............................................. 21 Connecticut v. Teal, 457 U.S. 440 (1982).............................................. 22 District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).............................................. 26 Ellen S. v. Florida Bd. of Bar Examiners, 859 F. Supp. 1489 (S.D. Fla 1994)...................... 2, 18-19, 24 Fiedler v. American Multi-Cinema, Inc., CIV A-92-486 (TPJ), 1994 WL 709588 (D.D.C. Dec. 16, 1994)............................ 15 In re John Ballay, 482 F.2d 648 (D.C. Cir. 1973).................................... 21 Lyng v. Payne, 476 U.S. 926 (1986).................................... 14-15 Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144 (1991).............................................. 14 Medical Society of New Jersey v. Jacobs, 1993 WL 413016 (D.N.J. Oct. 5, 1993).................... 2, 1-19, 25 ii 01-07452 Pandazides v. Virginia Bd. of Educ., 946 F.2d 345 (4th Cir. 1991) .................................... 18 Parham v. J.R., 442 U.S. 584 (1979) ............................................. 21 Petersen v. University of Wis. Bd. Regents, 818 F. Supp. 1276 (W.D. Wis. 1993) .............................. 14 In re Petition of Frickey, 515 N.W.2d 741 (Minn. Apr. 28, 1994) ...................... 2, 7, 25 Sandford v. R.L. Coleman Realty Co., 573 F.2d 173 (4th Cir. 1978) ............................................ 26 School Bd. of Nassau County v. Arline, 480 U.S. 273 (1987) ..................................... 16, 18, 21 Smith v. Schlesinger, 513 F.2d 462 (D.C. Cir. 1975) ................................... 21 Stinson v. United States, 113 S. Ct. 1913 (1993) ........................ 14 Thomas v. Washington County School Bd., 915 F.2d 922 (4th Cir. 1990) .................................... 26 Udall v. Tallman, 380 U.S. 1 (1965) ..................................... 15 United States v. Larionoff, 431 U.S. 864 (1977) ......................... 15 Woodard v. Virginia Bd. of Bar Examiners, 454 F. Supp. 4 (E.D. Va 1978), aff'd, 598 F.2d 1345 (4th Cir. 1979) ............................ 26 STATUTES AND REGULATIONS: 42 U.S.C. 12101-12213 (Supp. II 1990) .................................... 1 42 U.S.C. 12101(a)(7) ................................................... 22 42 U.S.C. 12102(2) ...................................................... 14 42 U.S.C. 12131(1)(B) ................................................... 14 42 U.S.C. 12131(2) ...................................................... 17 42 U.S.C. 12132 ......................................................... 13 42 U.S.C. 12134(b) ...................................................... 20 42 U.S.C. 12182 (b) (2) (A) (i) ......................................... 20 28 C.F.R. 35, App. A (1993) .......................................... 17-19 28 C.F.R. 35.102 ........................................................ 14 28 C.F.R. 35.104 ................................................. 14-15, 17 28 C.F.R. 35.130(b) (3) (i) ............................................. 18 28 C.F.R. 35.130(b)(6) .................................................. 18 28 C.F.R. 35.130 (b) (8) ............................................. 19-20 28 C.F.R. 36, App. B (1994) ............................................. 20 iii 01-07453 28 C.F.R. 36.301(a) ..................................................... 20 LEGISLATIVE MATERIALS: H.R. Rep. No. 485, 101st Cong., 2d Sess., pt II (1990) .................................... 15-16, 20-21, 23 H.R. Rep. No. 485, 101st Cong., 2d Sess., pt III (1990) .......................................... 20-21, 23 S. Rep. No. 116, 101st Cong., 1st Sess. (1989) ............................. 15-16, 20-21, 23 MISCELLANEOUS: American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1987), (DSM-IV) ................................................. 3 Association of American Law Schools, Report of the AALS Special Committee on Problems of Substance Abuse in the Law Schools, 44 Journal of Legal Education (1994) ................................................... 6 Bruce J. Ennis & Thomas R. Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62 Cal. L. Rev. 693 (1974) ............................... 10 Stephen T. Maher and Lori Blum, Strategy for Increasing Mental and Emotional Fitness of Bar Applicants, 23 Ind. L. Rev. 821 (1990) ................................... 7 Reishel, The Constitution, the Disability Act, and Questions about Alcoholism, Addiction, and Mental Health, 61 The Bar Examiner 10 (1992) ........................................... 10 U.S. Department of Justice, The Americans with Disabilities Act -- Title II Technical Assistance Manual (1992 & Supp. 1993) .......................................... 21, 24 7A Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure S 1771 (1986) ............................ 26 Jay Ziskin, Coping with Psychiatric and Psychological Testimony (3d ed. 1981) ................................... 10 iv 01-07454 I. INTRODUCTION The United States submits this memorandum as amicus curiae to address the factual and legal issues presented to the Court at trial and to urge this Court to enter judgment for plaintiff Julie Ann Clark. Question 20(b) of the application of the Virginia Board of Bar Examiners ("Board") currently asks, Have you within the past five (5) years been treated or counseled for any mental, emotional, or nervous disorder? Applicants who answer in the affirmative must provide additional information concerning their diagnosis, course of treatment, and prognosis, identify any treating physician or counselor, and authorize the release of their records. In previous briefs submitted to this Court, the United States has argued that Question 20(b) violates title II of the Americans with Disabilities Act (ADA), 42 U.S.C. SS 12101-12213 (Supp. II 1990). The evidence presented at trial fully supports this conclusion. The United States recognizes the importance of the Board's function of ensuring that attorneys admitted to practice law in the Commonwealth meet a high standard of competency and integrity. The evidence presented at trial demonstrates, however, that one of the means used by the Board to accomplish that end impermissibly discriminates against persons with - 1 - 01-07455 disabilities. Question 20(b) targets persons with mental disabilities or histories of mental disabilities for additional burdens not imposed on others -- namely, disclosure of very personal information regarding details about the applicant's treatment for such disabilities. Further, because the inquiry does not accurately assess current fitness to practice and is less predictive of future behavior than available alternatives, Question 20(b)'s broad inquiry into an applicant's mental health history is not necessary to the Board's purpose of licensing only fit practitioners. Every court that has examined challenges to mental health questions in professional licensing under the ADA has concluded that broad-based inquiries, such as the Board's Question 20(b), violate or are likely to violate title II of the ADA. See Ellen S. v. Florida Bd. of Bar Examiners, 859 F. Supp. 1489, 1493 (S.D. Fla. 1994); Medical Society of New Jersey v. Jacobs, 1993 WL 413016, at *7 (D.N.J., Oct. 5, 1993); In re Applications of Anne Underwood and Judith Ann Plano, 1993 WL 649283, at *2 (Me. Dec. 7, 1993); see also Applicants v. Texas State Bd. of Law Examiners, 93 CA 740 SS at 20 (W.D. Tex. Oct. 10, 1994) ("such a broad-based inquiry violates the ADA."); cf. In re Petition of Frickey, et al., 515 N.W.2d 741 (Minn. April 28, 1994). The evidence presented at trial fully supports a similar decision by this Court. - 2 - 01-07456 II. PROPOSED FINDINGS OF FACT 1. In 1993, Julie Clark graduated from George Mason University Law School and applied for membership to the Virginia bar by filing her application with the defendant, the Virginia Board of Bar Examiners. In her application, however, she refused to answer Question 20(b). Julie Clark has passed the Virginia bar examination, which she took in February 1994, and, aside from her refusal to answer Question 20(b), has fulfilled all of the requirements for receiving a license to practice law in the Commonwealth of Virginia.1 2. Julie Clark is a person with a disability. Ms. Clark had been diagnosed with "major depression, recurrent," a diagnosis recognized in the psychiatric field.2 Because of her illness, Julie Clark suffered from an inability to concentrate, act decisively, sleep properly, orient herself, or maintain ordinary social relationships, over a period of at least thirteen months.3 This evidence, together with the supplemental declaration of Julie Clark filed under seal with the Court, establishes that Ms. Clark is a person with record of a _______________________ 1 Plaintiff's Exhibit 68(a) and Record at 101-102. 2 See Plaintiff's Exhibit 68(a) and American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 339 (4th ed., American Psychiatric Association 1994)(DSM-IV). 3 Plaintiff's Exhibit 68(a). - 3 - 01-07457 disability.4 Ms. Clark, like other bar applicants who have been diagnosed, counseled, or treated for mental or emotional illnesses, is also regarded as disabled by the Board. Question 20(b) singles out persons with histories of treatment for mental, emotional, or nervous disorders and subjects them to additional inquiries. 3. The Virginia Board of Bar Examiners is responsible for licensing attorneys in the Commonwealth of Virginia. Among its other duties, the Board is responsible for ensuring that applicants have passed the bar examination, filed the appropriate forms, paid all necessary fees, and fulfilled the academic and character requirements for admission. (Defendant's Exhibit 4). Mr. Scott Street, Secretary and Treasurer of the Board, testified that initially the applications are reviewed quickly by the Board, then sent to the National Conference of Bar Examiners for further review, and finally are reviewed again by the Board to determine which applications required further investigation.5 On two occasions,6 where the applicants were manic-depressive and were either hospitalized or displayed financially irresponsible ______________________ 4 This Court previously found that plaintiff's supplemental declaration (Plaintiff's Exhibit 68(b)) alleged facts sufficient to defeat a motion for summary judgment on the issue of standing. While the United States believes that the evidence presented in this declaration will be useful to the Court, we shall refrain from comment regarding the weight to be given this evidence, as it was filed with the Court under seal. 5 Record at 107-115. Record at 107-115. 6 Mr. Street testified that, in 1992 and 1993, applicants from outside the Commonwealth of Virginia were required to answer mental health inquiries. (Record at 114). - 4 - 01-07458 behavior, the Board went further and requested a letter from each applicant's treating physician indicating that the person was capable of engaging in the unsupervised practice of law.7 On both occasions, these letters were dispositive of the Board's investigation.8 None of the members of the Board have any formal training or background in psychiatry or psychology.9 4. Question 20(b) of the application used by the Board in its licensing process asks: Have you within the past five (5) years been treated or counseled for any mental, emotional, or nervous disorder? 5. Question 20(b) and its attendant disclosure requirements burden persons with histories of mental disabilities to a much greater extent than other applicants. All candidates are required to state whether, within the past five years, they have been treated or counseled for any mental, emotional, or nervous disorder. (Plaintiff's Exhibit 1, p. 22). Only those applicants who answer affirmatively are then required to identify and provide the complete address of each individual consulted for the condition and record the beginning and ending dates of consultation. (Plaintiff's Exhibit 1, p. 22). By signing their applications, candidates also waive their rights of confidentiality to and authorize release of their treatment or consultation records. (Plaintiff's Exhibit 1, p. 25). This _______________________ 7 Record at 112-115. 8 Record at 115. 9 Record at 135-136. - 5 - 01-07459 process is invasive because it requires only those persons who answer affirmatively to provide information about mental health treatment -- treatment that is often bound up with intensely personal issues such as family relationships and bereavement. 6. Question 20(b) also deters persons with mental disabilities from counseling. Dean Paul Marcus of William and Mary Law School testified that, in his experience, a significant number of law students suffering from mental illness would forgo counseling or treatment because of possible revelation to the Board. (Plaintiff's Exhibit 71). Plaintiff's expert witness, Dr. Howard Zonana, also testified that revealing mental treatment or diagnoses to a licensing board would deter treatment or counseling. (Record at 43-44, 75-75). Even the defendant's expert witness, Dr. Charles Mutter, recalled being advised by at least one law school professor and dean that broad mental health inquiries would have a chilling effect on students who might otherwise seek counseling for mental, emotional, or nervous disorders. (Record at 232-33).10 The fact that concern over bar ___________________ 10 This testimony is supported by a recent survey of over 13,000 law students: 41 percent responded that they would seek assistance for a substance abuse problem if they were assured that bar officials would not have access to the information. As to whether they would refer a friend who had a substance abuse problem, 47 percent responded that they would if bar officials would not have access to the information. Association of American Law Schools, Report of the AALS Special Committee on Problems of Substance Abuse in the Law Schools, 44 Journal of Legal Education 35, 55 (1994). It can reasonably be inferred that similar results would obtain regarding treatment for mental health problems. (continued...) - 6 - 01-07460 examiners, inquiries into diagnosis and treatment for mental illness deters law students and other applicants from seeking counseling for mental or emotional problems is also evident from the Frickey decision, in which the Minnesota Supreme Court struck down mental health inquiries on the Minnesota bar application, specifically citing the deterrence effect of such inquiries. In re Petition of Frickey, C5-84-2139 (Minn., Apr. 28, 1994)(Plaintiff's Exhibit 15).11 7. Question 20(b) also creates additional burdens for persons with histories of mental disabilities because of the stigma that still attaches to treatment for mental or emotional illness. Dr. Zonana noted that treatment for such disabilities is often equated by bar examiners with such factors as having been disbarred or having engaged in other behavior that truly reflects upon character. Dr. Zonana concluded, that, "the clear implication is, if you have [a mental] disability, that that's an indication that that's a significant problem ... " (Record at 44). 8. At the heart of the Virginia Board of Bar Examiner's case is a belief that inquiries into treatment, counseling, or diagnoses of any mental illness will yield information that will _________________________ 10 ( ... continued) Furthermore, even when treatment is sought, its effectiveness may be compromised because knowledge of the possible revelation to a licensing board may undermine the trust and frank disclosure upon which successful counseling depends. See Stephen T. Maher & Lori Blum, A Strategy for Increasing the Mental and Emotional Fitness of Bar Applicants, 23 Ind. L. Rev. 821, 824, 833-46 (1990). 11 See Maher & Blum, supra, at 830-33. - 7 - 01-07461 predict an attorney's inability to practice law. While the Board asserts that it has not and will not deny a license solely on the basis of an affirmative response to Question 20(b), it cannot be disputed that Question 20(b)'s broad inquiry into the applicant's mental health history reflects an assumption that past diagnosis of or treatment for mental or emotional conditions renders the applicant more likely than other candidates to be substantially impaired in his or her ability to perform as a lawyer.12 9. The Board's underlying assumption about the utility of making mental health inquiries is in error. Question 20(b) is not necessary to determine fitness to practice law. Past diagnosis or treatment for any mental, emotional, or nervous disorder cannot accurately predict future behavior. Neither Dr. Zonana nor Dr. Mutter recalled any studies indicating that a diagnosis for a mental illness had any predictive value in determining functional ability or future behavior. (Record at 36- 38, 220-21). Indeed, Dr. Zonana pointed out that focusing on treatment or counseling was widely recognized as having very low predictive value (Record at 85-87) and has rarely provided _________________________ s from any type of disorder whatsoever that might be a danger to the public." (Record at 184). This testimony reflects the key assumption underlying the Board's inquiry: namely, that persons with any history of mental or emotional treatment or counseling are more likely than other candidates to be substantially impaired in their ability to function as an attorney. The evidence in this case demonstrates, however, that this assumption is incorrect. - 8 - 01-07462 additional information not obtainable through other means.13 Dr. Zonana testified that, Q And, again, is there data regarding this matter arising exclusively out of the fact that someone has a diagnosis for a mental illness, again in the absence of behavioral indicia. _________________________ 13 The dialogue between Dr. Zonana and counsel for the defendant on recross examination illustrates both the need to focus on past behavior and the Board's misplaced efforts of using diagnoses of mental illness to determine current fitness to practice. A Well ... the notion here is you are not on an expedition to ferret out who has a mental disorder and who might be hiding a symptom that nobody else knows about. The notion here is to find out only those disorders which have some intrusion or very likely to have some intrusion on somebody's ability to function or work. So we are not out on an expedition to diagnose anybody who might have a mental disorder, whether they are aware of it or not. You are trying to find out those people where a mental disorder is present and has intruded in some way that is likely to affect their ability to function as a professional, at least that's my -- Q But can the behaviors that will be manifested by people who are suffering from these debilitating conditions, can they be divided into two categories, one set of behaviors that applies to people whose ability to work is impaired and another set of behaviors to a class of people whose ability to work is not? A In general, it seems to me your hit rate is going to go way up if you do it related to behavior and functional capacities. You do this broad screening and, by and large, you come up with nothing, and that's true with most bar examiners across the board. That's why so many states have been willing to drop it, because most people don't see it as producing anything that is useful or that gives any criteria on which you can either deny or make any other judgments about. So you end up collecting all this data that's not useful. (Record at 84-86). - 9 - 01-07463 A No, I think that's one of the major stigmatizations that goes along with mental illness, that somehow a diagnosis, per se, relates to functional capacity; it doesn't. (Record, p. 36). Furthermore, results of one study discussed by Dr. Zonana showed that psychiatric evaluations were poor predictors of functional ability (Record at 37).14 In his testimony, Dr. Zonana also referenced a recent District of Columbia study,15 which concluded that information obtained through mental health inquiries had, according to the author, "rarely, if ever, brought to light a serious fitness question that was not highlighted by other information (concerning litigation, employment, encounters with legal authorities, academic or bar discipline, etc.)". Reishel, The Constitution, the Disability Act, and Questions about Alcoholism, Addiction, and Mental Health, 61 The Bar Examiner 10, 20 (1992).16 10. Question 20(b) simply does not work. Dr. Zonana noted that, even where an applicant possessed a "serious" mental illness, that illness would not preclude an individual from being _____________________ 14 See generally Jay Ziskin, Coping with Psychiatric and Psychological Testimony 1-63 (3d ed. 1981); Bruce J. Ennis & Thomas R. Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62 Cal. L. Rev. 693 (1974) (both articles citing extensive authority establishing the inability of mental health professionals to make reliable predictions of future behavior). 15 Record at 86. 16 Although the Board insists that Question 20(b) is necessary to determining candidates' fitness to practice law, it did not make mental health inquiries before 1992 and only required non-residents to answer such inquiries in 1992 and 1993. (Record at 125-134). - 10 - 01-07464 fit to practice law. (Record at 47-52, 72-73). Even if one incorrectly assumed that serious mental conditions could predict behavior or fitness to practice law, Question 20(b) remains unnecessary because it does not reliably identify persons with such disorders. Dr. Zonana testified that, among persons with serious mental disorders such as schizophrenia and manic depression, approximately forty percent do not ever seek counseling or treatment. (Record at 29-34 and Plaintiff's Exhibit 72) (epidemiologic study cited by Dr. Zonana). Obviously, Question 20(b) -- which uses counseling or treatment as the trigger for further disclosure requirements -- would not identify such applicants. 11. Question 20(b) is also unnecessary because questions relating to relevant conduct and behavior, which are permissible under the ADA, are far better predictors of functional ability. Scott Street, Secretary and Treasurer for the Board, testified that the focus of the admissions process is to determine whether an applicant has demonstrated "a current fitness to engage in basically the unsupervised practice of law." (Record at 107). As Dr. Zonana testified at trial, however, research data indicates that the best predictor of functional ability and future behavior is past behavior. (Record at 38-40). Dr. Zonana admitted that also asking about treatment or counseling may turn up extremely rare instances of persons unfit to practice law, but the - 11 - 01-07465 likelihood of such an occurrence was very remote. (Record at 40).17 Even the Board's expert witness noted that serious mental illness is generally reflected in behavior. (Record at 224-226).18 Because Question 20(b) uses treatment or counseling for mental, emotional, or nervous disorders as a trigger for additional burdens, it is unnecessary.19 _______________________ 12. Question 20(b) is also unnecessary because it is overbroad. On direct examination, Scott Street testified that the Board does not further evaluate applicants reporting mental disorders that the Board does not consider serious. (Record at 119-120). Thus, the Board concedes that it is actually only interested in disorders that are "serious"--- despite the fact that the plain wording of Question 20(b) clearly encompasses 17 This conclusion is also supported by the Board's record of investigating applicants who answer the mental health treatment question in the affirmative. As counsel for the defendant noted at trial, since the Board started using mental health inquiries similar to Question 20(b), the Board has only conducted further investigations in only two cases on the basis of affirmative answers to mental health inquiries. (Record at 12). 18 The defendant's expert witness, Dr. Mutter, believes that a broad inquiry, such as Question 20(b), assists the Board in developing the fullest possible picture of an applicant. (Record at 204-205). Unfortunately, Dr. Mutter's recommended examination is without practical limitation as he would require disclosure of any consultation with psychiatrists, psychologists, therapists, or even ministers. (Record at 182-184). In addition, Dr. Mutter would include stockbrokers, policemen, firefighters, and even law students within the ambit of heightened scrutiny. (Record at 190-93, 199-200). 19 Dr. Zonana stated that, for purposes of a psychiatric evaluation, it is useful to inquire into past mental health treatment. (Record at 60-62). As Dr. Zonana pointed out, however, a psychiatric evaluation is not necessary where there is no evidence of behavioral problems. (Record at 38-40, 82-84). - 12 - 01-07466 disclosure of all counseling, treatment, or diagnoses.20 The Board's admitted disregard of information it receives about disorders that are not "serious" substantially undercuts Dr. Mutter's statements regarding the import of receiving information regarding all counseling to determine an applicant's fitness to practice. (Record at 182-184). Dr. Zonana also testified that Question 20(b) would require disclosure of many mental, emotional, or nervous disorders that may lead a person to seek counseling or treatment, despite the fact that these conditions had no bearing on an applicant's ability to practice. Included in this category are various phobias and bereavement or rape counseling.21 III. PROPOSED CONCLUSIONS OF LAW 1. Title II contains a sweeping prohibition of practices by public entities that discriminate against persons with disabilities. Section 202 of the Act, 42 U.S.C. S 12132, provides, Subject to the provisions of this subchapter, 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. __________________________ 20 Street testified that this process allowed the Board to get "as complete a picture of the individual" (Record at 121) and that the Board actually views an applicant's receipt of treatment as something favorable (Record at 117). 21 Record at 34-35. - 13 - 01-07467 2. A "public entity" is defined in title II to include "any department, agency ... or other instrumentality of a State ... or local government." 42 U.S.C. S 12131 (1)(B). The Board falls within this definition as it is the State governmental agency responsible for licensing attorneys in the Commonwealth of Virginia. 3. Title II of the ADA and its implementing regulation define "disability" as: (A) a physical or mental impairment that substantially limits one or more major life activities... (B) a record of such impairment; or (C) being regarded as having such an impairment. 42 U.S.C. S 12102 (2); 28 C.F.R. S 35.102 (1992). The title II regulation provides that a "physical or mental impairment" includes [a]ny mental or psychological disorder such as...emotional or mental illness...." 28 C.F.R. S 35.104 (1992) (emphasis added).22 Title II defines "major life activities" by _________________________ 22 Where, as here, Congress expressly delegates authority to an agency to issue legislative regulations, the regulations "are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute." Chevron Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984). See also Petersen v. University of Wis. Bd. Regents, 818 F. Supp. 1276, 1279 (W.D. Wis. 1993) (applying Chevron to give controlling weight to Department of Justice interpretations of title II of the ADA). An agency's interpretation of its own regulations should also be given controlling weight, unless plainly erroneous, inconsistent with the regulation, or in violation of the Constitution or federal statute. Stinson v. United States, 113 S. Ct., 1913, 1919 (1993); Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 150 (1991); see Lyng v. (continued...) - 14 - 01-07468 listing functions "such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 28 C.F.R. S 35.104 (emphasis added).23 4. Julie Clark is a person with a disability within the meaning of the ADA. At least for some period of time, Ms. Clark was impaired in a major life activity. Her inability to concentrate, act decisively, sleep properly, orient herself, or maintain ordinary social relationships, are activities well within the scope of the term "major life activities" as defined under the ADA. Thus, Ms. Clark is a person with a record of a disability within the second prong of title II's definition of disability. 5. Ms. Clark also falls within the statutory definition of person with a disability because she, like other applicants who have been diagnosed, counseled, or treated for mental or __________________________ 22(...continued) Payne, 476 U.S. 926, 939 (1986); United States v. Larionoff, 431 U.S. 864, 872-873 (1977); Udall v. Tallman, 380 U.S. 1, 16-17 (1965). Indeed, as the author of the regulations, the Department of Justice has been deemed, "the principal arbiter" of its ADA regulations. Fiedler v. American Multi-Cinema, Inc., CIV A-92- 486 (TPJ), 1994 WL 709588, at *4 (D.D.C. Dec. 16, 1994). This deference has also been extended to the Department's technical assistance literature, including its technical assistance manuals, as providing, "controlling weight as to the meaning of the [regulations]." Id., at *6 n. 4. 23 The use of the term "such as" in the regulation reflects Congressional intent not to provide an exhaustive list. The regulation's language is identical to the language used in the Senate and House Committee reports regarding the definition of a major life activity. See H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. II at 52 (1990) [hereinafter cited as Education and Labor Report]; S. Rep. No. 116, 101st Cong., 1st Sess. at 23 (1989) [hereinafter cited as Senate Report]. - 15 - 01-07469 emotional illnesses, is "regarded as" disabled by the Board because she and other persons with histories of treatment for mental, emotional, or nervous disorders are subjected to additional inquiries. Individuals who have sought mental health treatment are often regarded as emotionally disabled or mentally ill even though their past and/or current capability or stability might not be affected. School Bd. of Nassau County v. Arline, 480 U.S. 273, 284 (1987) ("society's accumulated myths and fears about disability...are as handicapping as are the physical limitations that flow from actual impairment"). Congress was particularly aware of the needs of persons with mental disabilities and intended the ADA to extend particular protection to individuals with a record of mental or emotional illness. Indeed, the legislative history indicates that the second prong of the definition of disability was included in the law, in part to protect individuals who have recovered from a physical or mental impairment which previously substantially limited them in a major life activity. Discrimination on the basis of such a past impairment would be prohibited under this legislation. Frequently occurring examples of [this] group...are persons with histories of mental or emotional illness...24 ______________________________ 24 Education and Labor Report at 52 (emphasis added); Senate Report at 22. - 16 - 01-07470 6. Julie Clark has standing to challenge Question 20(b) as she is a person with a disability and is injured by the Board's inquiries.25 7. Title II prohibits a public entity from discriminating against a "qualified individual with a disability," which is defined in title II of the ADA and section 35.104 of the title II regulation to mean, an individual with a disability who, with or without reasonable modifications to rules, policies or practices ... meets the essential eligibility requirements for the receipt of services or the participation in the programs or activities provided by a public entity. 42 U.S.C. S 12131(2); 28 C.F.R. S 35.104 (emphasis added). A person is a "qualified individual with a disability" with respect to licensing or certification if he or she can meet the essential eligibility requirements for receiving the license or certification. 28 C.F.R. pt. 35, app. A at 451 (July 1, 1993).26 _____________________ 25 This Court's Order of August 31, 1994, which reversed a previous decision granting summary judgment in favor of defendants, held that it was premature to conclude that Ms. Clark was not a person with a disability. The uncontested evidence presented at trial, however, establishes that Ms. Clark is a person with a disability and has standing to bring this case. Furthermore, while the evidence amply demonstrates that Ms. Clark both has a record of a disability and is regarded by the Board as being disabled, she would have standing to challenge Question 20(b) regardless of whether she is disabled or not. See Memorandum of the United States as Amicus Curiae in Support of Plaintiff's Notice and Motion to Alter Judgment, at 9-15 (Aug. 9, 1994). 26 Cases decided under Section 504 have shaped the factors used in determining what constitutes "essential eligibility requirements." 28 C.F.R. pt. 35, app. A at 451. This determination requires a careful analysis behind the (continued...) - 17 - 01-07471 Where, as here, public safety may be affected, a determination of whether a candidate meets the "essential eligibility requirements" may include consideration of whether the individual with a disability poses a direct threat to the health and safety of others.27 So long as the candidate does not pose a direct threat and meets the essential eligibility criteria, he or she is protected against discrimination on the basis of disability. 8. This case does not involve a Board decision to deny a license based on disability. Title II and its implementing regulations, however, proscribe more than total exclusion on the basis of disability.28 As a licensing entity, the Board must comply with section 35.130(b)(6) of the regulation, which prohibits administering a licensing program "in a manner that subjects qualified persons with disabilities to discrimination." Similarly, section 35.130(b)(3)(i) prohibits use of "methods of ___________________ 26 ( ... continued) qualifications used to determine the actual criteria that a position requires. School Bd. of Nassau County v. Arline, 480 U.S. 273, 287-288 (1987); Pandazides v. Virginia Bd. of Educ., 946 F.2d 345, 349-50 (4th Cir. 1991). 27 As noted in the Department of Justice's title II analysis accompanying section 35.104, A "direct threat" is a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services. 28 C.F.R. pt. 35, app. A at 448 (1993). 28 See e.g., Ellen S. v. Florida Bd. of Bar Examiners, 859 F. Supp. 1489, 1493-94 (S.D. Fla. 1994); Medical Society of New Jersey v. Jacobs, 1993 WL 413016, at *7 (D.N.J. Oct. 5, 1993). - 18 - 01-07472 administration" that have a discriminatory effect. Finally, section 35.130(b)(8) prohibits the Board from imposing unnecessary eligibility criteria that screen out, or tend to screen out, persons with disabilities. Section 35.130(b)(8) prohibits any policy that unnecessarily imposes requirements or burdens on individuals with disabilities that are greater than those placed on others. 28 C.F.R. pt. 35, app. A at 453-54 (1993); see Ellen S., 859 F. Supp. at 1494; Medical Society, 1993 WL at *7. 9. Ms. Clark is challenging the Board's procedure of asking Question 20(b) and this Court is not called upon to determine her ultimate fitness to practice law. At this stage of her application, for purposes of challenging the Board's procedures and demanding that the Board process her application absent Question 20(b), Ms. Clark need only have satisfied all the other requirements to apply for membership to the bar in order to be "qualified individual with a disability." It is uncontested that Ms. Clark has satisfied all of these requirements (See Findings of Fact P 1). Therefore, Ms. Clark is a qualified individual with a disability for purposes of challenging the Board's procedures.29 ___________________________ 29 The following example further illustrates this point. A person who uses a wheelchair is "eligible" to apply for food stamps and is a victim of discrimination if the office that takes applications is accessible only by stairs. He need not prove that he is "eligible" to receive food stamps in order to challenge the denial of access. Similarly, Ms. Clark need not prove that she is ultimately qualified for a license to practice law in order to challenge the discriminatory application process. - 19 - 01-07473 10. Title II also prohibits unnecessary inquiries into disability. Section 35.130(b)(8) of the regulation provides, A public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered. 28 C.F.R. S 35.130(b)(8)(emphasis added). This section is identical in substance to a statutory provision in title III, 42 U.S.C. S 12182(b)(2)(A)(i), and the title III regulation, 28 C.F.R. 36.301(a).30 The legislative history of the analogous title III provision makes clear that Congress intended to prohibit unnecessary inquiries into disability. It also would be a violation for [a public accommodation] to invade such people's privacy by trying to identify unnecessarily the existence of a disability, as, for example, if the credit application of a department store were to inquire whether an individual has epilepsy, has ever ... been hospitalized for mental illness, or has other disability.31 ____________________________ 30 Section 204 of the ADA provides that the title II regulation shall incorporate this concept insofar as it requires the title II regulation to be consistent with the ADA generally. 42 U.S.C. S 12134(b); H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. III at 51 (1990) [hereinafter cited as Judiciary Report]; Education and Labor Report at 84; 28 C.F.R. pt. 35, app. A at 440. 31 Senate Report at 62 (emphasis added); see also Education and Labor Report at 105; Judiciary Report at 58. The analysis accompanying the title III regulations also reflects this Congressional intent. 28 C.F.R. pt. 36, app. B at 590. - 20 - 01-07474 The title II Technical Assistance Manual states that title II similarly prohibits unnecessary inquiries into disability. 32 11. The stigma that attaches to being required to disclose a history of mental health treatment is a harm the Supreme Court has recognized. See Parham v. J.R., 442 U.S. 584, 600 (1979) (finding a substantial liberty interest under the Due Process Clause of the Constitution in avoiding being known to have been treated for such illness); Addington v. Texas, 441 U.S. 418, 426 (1979); Smith v. Schlesinger, 513 F.2d 462, 477 (D.C. Cir. 1975); see also In Re John Ballay, 482 F.2d 648, 668-69 (D.C. Cir. 1973) (noting that "even the most enlightened persons may unwittingly harbor views" associated with the stigma of mental illness). 12. The ADA is a civil rights law intended to protect individuals with disabilities against stereotypes or generalizations. Congress found that these stereotypes "are not truly indicative of the individual ability of [persons with disabilities] to participate in, and contribute to, society." 42 U.S.C. S 12101(a)(7)(emphasis added).33 The Supreme Court has repeatedly cautioned against relying upon negative attitudes or stereotypes of the potential dangers posed by disabilities. School Bd. of Nassau County v. Arline, 480 U.S. 273, 285 (1987); Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 448 (1985). __________________________ 32 Title II Technical Assistance Manual S II-3.5300. 33 See Education and Labor Report at 30, 33, 40, 41; Judiciary Report at 25; Senate Report at 7, 9, 15. - 21 - 01-07475 13. Furthermore, even where generalizations about an individual's class are statistically true, civil rights law require focusing on individuals rather than classes. In City of Los Angeles v. Manhart, 435 U.S. 702 (1978), the Court held a pension plan that required female employees to make larger contributions than male employees violated Title VII of the Civil Rights Act of 1964, even though it was undisputed that women, as a class, live longer than men. The Court held that, Even if statutory language were less clear, the basic policy of the statute requires that we focus on fairness to individuals rather than fairness to classes. Practices that classify employees in terms of religion, race, or sex tend to preserve assumptions about groups rather than thoughtful scrutiny of individuals. Id., at 708, 709; Arizona Governing Comm. for Tax Deferred Annuity and Deferred Compensation Plans v. Norris, 463 U.S. 1073 (1983); Connecticut v. Teal, 457 U.S. 440 (1982). The ADA similarly was intended to combat generalizations based on a person's class -- in this case, a person's status based on disability. This congressional intent is reflected in the Congressional findings supporting the ADA: [I]ndividuals with disabilities are a discrete and insular minority who have been ... subjected to a history of purposeful unequal treatment... resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society. 42 U.S.C. S 12101(a)(7)(emphasis added). The legislative history also reveals that Congress recognized the need to combat the - 22 - 01-07476 "false presumptions, generalizations, misperceptions, patronizing attitudes, ignorance, irrational fears, and pernicious mythologies"34 surrounding disability and the need for a more enlightened view towards persons with disabilities.35 Thus, unnecessary classifications based on disability are not permitted because of the ADA's requirement that public entities focus on the abilities of individuals rather than class generalizations.36 14. Question 20(b) reflects an impermissible generalization and classification based on disability. By inquiring into the existence of mental disabilities, the Board uses this impermissible stereotype as a trigger for disclosure requirements that are not imposed on others. The genesis of inquiries such as Question 20(b) is a presumption, not supported by the record, that a person's ability to practice law is likely to be adversely affected by having had treatment for any of a broad range of mental disabilities in the past, even though these disabilities _________________________ 34 Senate Report, at 7; Education and Labor Report, at 30. 35 Judiciary Report, at 25. 36 Even if it could be shown that, as a class, persons with certain mental disabilities are more likely to become impaired in their ability to practice law, the ADA prohibits unnecessary classifications based on those disabilities, including classifications that require unnecessary disclosure of disabilities or intrusive reporting requirements that are not imposed on others. Of course, if a disability could perfectly predict future behavior of all persons with that disability, then it rises above being a mere generalization. However, even the defendant does not assert and the record clearly does not show that any past treatment for mental disability is perfectly predictive of current or future fitness to practice law. - 23 - 01-07477 may have never affected that person's judgment, integrity, responsibility, or abilities as a professional. 15. The Board's use of Question 20(b) in its licensing process violates title II of the ADA because Question 20(b) imposes burdens on individuals with disabilities (Findings of Fact P P 5-7) and use of the question is not necessary to the Board's function of determining a candidate's fitness to practice law (Findings of Fact P P 8-12). Even though the Board has infrequently conducted follow-up investigations of applicants who answer Question 20(b) affirmatively, just making this intrusive inquiry violates title II. Indeed, in Ellen S., the court was careful to emphasize its conclusion that asking the question itself independently violates title II, without regard to whether a follow-up investigation ensues. Id., at 10, n.7. 16. The Board's purposes are better served by questions that focus directly on conduct and behavior, including those that may be associated with mental illness.37 Thus, if the Board _________________________ 37 Indeed, the Title II Technical Assistance Manual states that: [p]ublic entities may not discriminate against qualified individuals with disabilities who apply for licenses, but may consider factors related to the disability in determining whether the individual is "qualified." Title II Technical Assistance Manual, at II-3.7200 (emphasis added). One permissible "factor related to the disability" is any inappropriate behavior associated with that disability that legitimately reflects on fitness to practice. Relying on behavior provides a sound basis to determine fitness to practice law without intruding on an applicant's diagnosis or treatment history. - 24 - 01-07478 wants to assess accurately the likelihood of improper behavior, the Board can and should inquire about credit history, financial or legal problems, criminal records, leaves of absence, disciplinary actions, suspensions, or terminations from school or jobs in the past. Many of these inquiries are currently used by the Board. (Plaintiff's Exhibit 1). The Board may also develop additional questions pertaining to relevant behavior that may indicate an inability to handle professional responsibilities. The Board may also ask references, colleagues, and business associates as well as the applicant whether there is anything that would currently impair the applicant's ability to carry out the duties and responsibilities of an attorney in a manner consistent with the standards of conduct for an attorney admitted to practice in the Commonwealth of Virginia. This broad range of permissible questions provides a sound and comprehensive basis for drawing inferences about an individual's fitness for the practice of law without resort to mental health history. See Medical Society, 1993 WL at *7; In re Petition of Frickey, et al., 515 N.W.2d 741 (Minn. April 28, 1994). This conclusion is supported by the evidence presented at trial, which clearly indicates that behavior more accurately predicts current fitness to practice than the information sought through mental health inquiries like Question 20(b) (Findings of Fact P 11). 17. Plaintiff's complaint seeks an injunction requiring the Board to grant her a license, an injunction preventing the Board from using Question 20(b), a declaration that Question 20(b) - 25 - 01-07479 violates the ADA, and attorney's fees. This Court is prohibited from requiring the Board to grant Ms. Clark a license. District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983); Woodard v. Virginia Bd. of Bar Examiners, 454 F. Supp. 4 (E.D. Va. 1978), aff'd, 598 F.2d 1345 (4th Cir. 1979).38 As to the other claims for relief, however, this Court has previously held that it has jurisdiction.39 Furthermore, as Ms. Clark's complaint is based on a civil rights statute and her requested relief will benefit other persons applying to the Virginia bar who have sought mental health treatment, she is entitled to injunctive relief prohibiting the Board from asking Question 20(b) of any applicant. Thomas v. Washington County School Bd., 915 F.2d 922, 926 (4th Cir. 1990)(individual plaintiff in employment discrimination case entitled to enjoin general discriminatory hiring practices of school board); Sandford v. R.L. Coleman Realty Co., 573 F.2d 173, 178 (4th Cir. 1978)(holding class certification unnecessary in housing discrimination case seeking injunctive relief to current landlord's discriminatory policies); 7A Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure S 1771 (1986). ________________________ 38 This portion of Ms. Clark's complaint was stricken by the Court's Order of August 31, 1994. 39 Order of August 31, 1994, p. 4. - 26 - 01-07480 IV. CONCLUSION For the foregoing reasons, the Court should enter judgment in favor of the plaintiff. The Board's continued use of Question 20(b) should be permanently enjoined and the Board should be directed to take immediate steps to reach its decision on Ms. Clark's application without requiring a response to Question 20(b). In addition, Ms. Clark should be awarded attorney's fees and such other relief as this Court finds appropriate. Respectfully submitted, DEVAL L. PATRICK Assistant Attorney General Civil Rights Division JOHN L. WODATCH JOAN A. MAGAGNA PHILIP L. BREEN SHEILA M. FORAN KEN S. NAKATA Attorneys U.S. Department of Justice Civil Rights Division Public Access Section P.O. Box 66738 Washington, D.C. 20035-6738 Tel: (202) 307-2232 RICHARD PARKER Assistant United States Attorney Appearing Per 28 U.S.C. S 517 1101 King Street, Suite 502 Alexandria, VA 22304 Tel: (703) 706-3700 February 10, 1995 Alexandria, Virginia - 27 - 01-07481 CERTIFICATE OF SERVICE I, the undersigned, attorney for the United States of America, do hereby certify that I have this date served upon the persons listed below by overnight delivery true and correct copies of the foregoing Recommended Findings of Fact and Conclusions of Law of the United States as Amicus Curiae. Victor M. Glasberg, Esq. Victor M. Glasberg & Associates 121 S. Columbus Street Alexandria, VA 22314 Peter R. Messitt Assistant Attorney General Office of the Attorney General 101 North Eighth Street Richmond, VA 23219 SO CERTIFIED this 10th day of February, 1995. KEN S. NAKATA Trial Attorney United States Department of Justice Civil Rights Division Public Access Section P.O. Box 66738 Washington, D.C. 20035-6738 (202) 307-2232 01-07482 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division JULIE ANN CLARK : : Plaintiff, : : C.A. # 94-211-A v. : : VIRGINIA BOARD OF BAR EXAMINERS : : Defendant. : : MEMORANDUM OF LAW OF THE UNITED STATES AS AMICUS CURIAE 01-07483 TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................... ii I. INTRODUCTION ..................................................... 1 II. ARGUMENT ......................................................... 2 A. TITLE II PROHIBITS CLASSIFICATIONS BASED ON DISABILITY THAT DO NOT ACCURATELY PREDICT INDIVIDUAL ABILITIES .................. 2 B. TITLE II PROHIBITS DISCRIMINATION AGAINST QUALIFIED INDIVIDUALS WITH DISABILITIES ........................................ 8 1. LICENSING BOARD INQUIRIES INTO TREATMENT OR COUNSELING FOR MENTAL DISABILITIES IMPOSE UNNECESSARY BURDENS ON PERSONS WITH DISABILITIES ....................... 11 2. QUESTION 20(B) IS UNNECESSARY TO DETERMINING FITNESS TO PRACTICE LAW .......... 15 III. CONCLUSION ...................................................... 22 i 01-07484 TABLE OF AUTHORITIES CASES: Addington v. Texas, 441 U.S. 418 (1979) ..................................................... 12 Applicants v. Texas State Board of Law Examiners, 93 CA 740 SS (W.D. Tex. Oct. 10, 1994) ........................ 7, 8, 19, 20 In re Applications of Anne Underwood and Judith Ann Plano, No. BAR 93-21, 1993 WL 649283 at *2 (Me. Dec. 7, 1993) ............................... 6, 7 Arizona Governing Comm. for Tax Deferred Annuity and Deferred Compensation Plans v. Norris, 463 U.S. 1073 (1983) ..................................................... 4 City of Los Angeles v. Manhart, 435 U.S. 702 (1978) ............................................. 4, 5, 6, 7 Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) ...................................................... 3 Connecticut v. Teal, 457 U.S. 440 (1982) ...................................................... 4 Doe v. Syracuse School Dist., 508 F. Supp. 333 (N.D.N.Y. 1981) ..................................... 9, 18 Ellen S. v. Florida Board of Bar Examiners, 859 F. Supp. 1489 (S.D. Fla. 1994) ........................... 6, 10, 11, 16 In Re John Ballay, 482 F.2d 648 (D.C. Cir. 1973) ........................................... 13 Medical Society of New Jersey v. Jacobs, 1993 WL 413016 (D.N.J. 1993) ................................. 6, 10, 11, 19 Pandazides v. Virginia Bd. of Educ., 946 F.2d 345 (4th Cir. 1991) ............................................. 9 Parham v. J.R., 442 U.S. 584 (1979) ..................................................... 12 In re Petition of Frickey, et al., 515 N.W.2d 741 (Minn. Apr. 28, 1994) ............................. 7, 14, 19 School Board of Nassau County v. Arline, 480 U.S. 273 (1986) ........................................... 3, 9, 13, 14 ii 01-07485 Smith v. Schlesinger, 513 F.2d 462 (D.C. Cir. 1975) ........................................... 12 Strathie v. Department of Transp., 716 F.2d 227 (3d Cir. 1983) .............................................. 9 STATUTES AND REGULATIONS: 29 U.S.C. S 794 .......................................................... 9 42 U.S.C. SS 12101-12213 ................................................. 1 42 U.S.C. S 12101(a)(7) .................................................. 2 42 U.S.C. S 12102(2)(B) ................................................. 13 42 U.S.C. S 12102(2)(C) ................................................. 13 42 U.S.C. S 12110(a) .................................................... 18 42 U.S.C. S 12131(1)(B) ................................................. 10 42 U.S.C. S 12131(2) ..................................................... 8 42 U.S.C. S 12132 ....................................................... 10 42 U.S.C. S 12134(b) .................................................... 15 42 U.S.C. S 12182(b)(2)(A)(i) ........................................... 15 42 U.S.C. S 12206(c)(3) & (d) ........................................... 16 28 C.F.R. S 35.104 ................................................ 8, 9, 13 28 C.F.R. S 35.130(b)(3)(i) ............................................. 10 28 C.F.R. S 35.130(b)(6) ................................................ 10 28 C.F.R. S 35.130(b)(8) ............................................ 10, 15 28 C.F.R. pt. 35, app. A ............................................. 9, 11 28 C.F.R. S 36.301(a) ................................................... 15 28 C.F.R. pt. 36, app. B ................................................ 15 LEGISLATIVE MATERIALS: H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. II (1990)......................................... 2, 3, 5, 15 H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. III (1990) .......................................... 2, 6, 15 S. Rep. No. 116, 101st Cong., 1st Sess. (1989) ............................................... 2, 3, 5, 15 MISCELLANEOUS: American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (3d ed. 1987), (DSM III-R) .............................................. 17 American Psychiatric Association, Recommended Guidelines Concerning Disclosure and Confidentiality, Work Group on Disclosure (Dec. 12, 1992) ................................ 19 iii 01-07486 Association of American Law Schools, Report of the AALS Special Committee on Problems of Substance Abuse in the Law Schools, 44 Journal of Legal Education 35 (1994) ............................................... 14 Gabrielle A. Carlson, Yolande B. Davenport & Kay R. Jamison, A Comparison of Outcome in Adolescent- and Late-Onset Bipolar Manic-Depressive Illness, 134 Am. J. of Psychiatry 919 (1977) ..................................... 17 Bruce J. Ennis & Thomas R. Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62 Cal. L. Rev. 693 (1974) ............................... 16 Frederick K. Goodwin & Kay R. Jamison, Manic-Depressive Illness (1990) ......................................... 17 Stephen T. Maher & Lori Blum, A Strategy for Increasing the Mental and Emotional Fitness of Bar Applicants, 23 Ind. L. Rev. 821 (1990) .............................................. 14 Reishel, The Constitution, the Disability Act, and Questions about Alcoholism, Addiction, and Mental Health, 61 The Bar Examiner 10 (1992) ....................................... 20, 21 Deborah L. Rhode, Moral Character as a Professional Credential, 94 Yale L.J. 491 (1985) ......................... 3 U.S. Department of Justice, The Americans with Disabilities Act -- Title II Technical Assistance Manual (1992 & Supp. 1993) ....................................... 2, 16, 17 Jay Ziskin, Coping with Psychiatric and Psychological Testimony (3d ed. 1981) ................................... 16 iv 01-07487 I. INTRODUCTION The United States submits this memorandum as amicus curiae to address the issues expected to arise in the trial of this case, which is scheduled to begin on November 22, 1994. Although she has successfully passed the Virginia Bar examination and has satisfied all of the other requirements of the character and fitness review of the Virginia Board of Bar Examiners ("Board"), plaintiff Julie Ann Clark has refused to answer question 20(b) of the Board's application, which asks, Have you within the past five (5) years been treated or counseled for any mental, emotional, or nervous disorder? Ms. Clark asserts that the Board violates title II of the Americans with Disabilities Act (ADA), 42 U.S.C. SS 12101-12213 (Supp. II 1990) by asking question 20(b) because it is an unnecessary and burdensome inquiry into mental disabilities. The United States recognizes the great responsibility placed on the Board to ensure that attorneys licensed to practice in the Commonwealth are mentally fit and professionally competent. However, Congress enacted title II of the ADA to prohibit policies or procedures that assess an individual's ability on generalizations or stereotypes based on disability. The United States believes that Ms. Clark should prevail in this case because question 20(b) discriminates against persons with disabilities. It targets persons with disabilities for additional burdens and disclosure requirements, and this broad inquiry into an applicant's mental health history is not - 1 - 01-07488 necessary to determining fitness to practice law. Requiring applicants to answer question 20(b) is an unnecessary eligibility criteria that violates title II of the ADA regardless of whether individuals who answer question 20(b) affirmatively are ultimately granted a license to practice law. II. ARGUMENT A. TITLE II PROHIBITS CLASSIFICATIONS BASED ON DISABILITY THAT DO NOT ACCURATELY PREDICT INDIVIDUAL ABILITIES The ADA is a civil rights law intended to protect individuals with disabilities against the stereotypes or generalizations that are commonly associated with those disabilities. As stated in the ADA itself, Congress found these stereotypes "are not truly indicative of the individual ability of [persons with disabilities] to participate in, and contribute to, society." 42 U.S.C. S 12101(a)(7) (emphasis added).1 By inquiring into the existence of mental disabilities, licensing organizations act on the basis of this impermissible stereotype. _____________________ 1 See H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. II at 30, 33, 40, 41 (1990) [hereinafter cited as Education and Labor Report]; H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. III at 25 (1990) [hereinafter cited as Judiciary Report]; S. Rep. No. 116, 101st Cong., 1st Sess. at 7, 9, and 15 (1989) [hereinafter cited as Senate Report]; see, e.g., U.S. Department of Justice, The Americans with Disabilities Act -- Title II Technical Assistance Manual 12 (1992 & Supp. 1993) [hereinafter, "Title II Technical Assistance Manual"] ("A public entity may impose legitimate safety requirements necessary for the safe operation of its services, programs, or activities. However the public entity must ensure that its safety requirements are based on real risks, not on speculation, stereotypes, or generalizations about individuals with disabilities") (emphasis added). - 2 - 01-07489 These inquiries start from a presumption that a person's ability to practice law is likely to be adversely affected by having had treatment for any of a broad range of mental disabilities in the past, even though they may have never affected that person's judgment, integrity, responsibility, or abilities as a professional.2 The Supreme Court has cautioned against relying upon negative attitudes or stereotypes of the potential dangers posed by disabilities. School Board of Nassau County v. Arline, 480 U.S. 273, 285 (1986)(person with disabilities are often "vulnerable to discrimination on the basis of mythology");3 Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 448 (1985)("mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for treating a home for the mentally retarded differently from apartment houses, multiple dwelling, and the like."). __________________________ 2 Bar examiners are not usually professionals trained in the fields of psychiatry or psychology. [W]hile mental stability is obviously relevant to practice, current certification standards license untrained examiners to draw inferences that the mental health community would find highly dubious...Even trained clinicians cannot accurately predict psychological incapacities based on past treatment in most individual cases. Deborah L. Rhode, Moral Character as a Professional Credential, 94 Yale L.J. 491, 581-82 (1985). 3 The legislative history of the ADA includes numerous approving references to Arline's interpretation of the law. See Senate Report at 21-24; Education and Labor Report at 50-53. - 3 - 01-07490 Even where generalizations about an individual's class are statistically true, civil rights law require focus on individuals rather than classes. In City of Los Angeles v. Manhart, 435 U.S. 702 (1978), the Court considered whether a pension plan that required female employees to make larger contributions than male employees violated Title VII of the Civil Rights Act of 1964. Although both parties conceded that statistical and actuarial data confirmed that women, as a class, live longer than men, the Court held that the plan violated Title VII. The Court concluded that Congress had intended unnecessary classifications based on gender to be unlawful, despite statistical or actuarial analysis. Id. at 707-709. Noting that there was "no assurance that any individual woman ... will actually fit the generalization" upon which the plan was based, the Court held that Title VII required an analysis of the individual instead of the class: Even if statutory language were less clear, the basic policy of the statute requires that we focus on fairness to individuals rather than fairness to classes. Practices that classify employees in terms of religion, race, or sex tend to preserve assumptions about groups rather than thoughtful scrutiny of individuals. Id., at 708, 709.4 ____________________________ 4 See also Arizona Governing Comm. for Tax Deferred Annuity and Deferred Compensation Plans v. Norris, 463 U.S. 1073 (1983)(holding that pension plans that pay lower monthly benefits to female contributors violate title VII); Connecticut v. Teal, 457 U.S. 440 (1982)(holding that an individual may sustain a "disparate impact" claim under Title VII, even if an employer ultimately favors plaintiff's racial group). - 4 - 01-07491 Like Title VII of the 1964 Civil Rights Act,5 the ADA was intended to combat generalizations based on a person's class--- in this case, a person's status based on disability. This congressional intent is reflected in the findings supporting the ADA, where Congress found that, individuals with disabilities are a discrete and insular minority who have been ... subjected to a history of purposeful unequal treatment... resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society. 42 U.S.C. S 12101(a)(7). The legislative history also reveals that Congress recognized the need to combat the "false presumptions, generalizations, misperceptions, patronizing attitudes, ignorance, irrational fears, and pernicious mythologies"6 surrounding disability and the need for a more enlightened view towards persons with disabilities: Gradually public policy affecting persons with disabilities recognized that many of the problems faced by disabled people are not inevitable, but instead are the result of discriminatory policies based on unfounded, outmoded stereotypes and perceptions, and deeply imbedded prejudices towards people with disabilities. These discriminatory policies and practices affect people with disabilities in every aspect of their lives, from securing employment, to ______________________ 5 Unlike title II, section 703(a)(1) of the Civil Rights Act of 1964, which was at the heart of the Manhart decision, does not explicitly include an exception for necessary eligibility criteria. In Manhart, several amici suggested that a gender based distinction was justified by business necessity. The Court held, however, that these distinctions were not shown to be "reasonably necessary to the normal operation of the Department's retirement plan." 435 U.S. at 716 n. 30. 6 Senate Report, at 7; Education and Labor Report, at 30. - 5 - 01-07492 participating fully in community life,... to enjoying all the rights that Americans take for granted. Judiciary Report, at 25. As in Manhart, unnecessary classifications based on disability are not permitted because of the ADA's requirement that public entities focus on the abilities of individuals rather than class generalizations. Even if it could be shown that, as a class, persons with certain mental disabilities are more likely to become impaired in their ability to practice law in the future,7 the ADA prohibits unnecessary inquiries into disabilities.8 All of the courts that have considered challenges to mental health questions in professional licensing have concluded that a broad-based inquiry, such as the Board's question 20(b), violates title II of the ADA. Ellen S. v. Florida Board of Bar Examiners, 859 F. Supp. 1489 (S.D. Fla. 1994)(a licensing board violates title II by asking applicants about any counseling or diagnosis for any nervous, mental, or emotional condition); Medical Society of New Jersey v. Jacobs, 1993 WL 413016 (D.N.J. 1993)(a licensing board's inquiry of "have you ever suffered or been treated for any mental illness or psychiatric problem" violates title II); In re Applications of ________________________ 7 The United States does not concede and the record does not support the position that persons answering question 20(b) are more likely to become impaired in the ability to practice law in the future than other applicants. 8 Of course, if a disability could perfectly predict future behavior of all persons with that disability, then it rises above being a mere generalization. However, even the defendant does not assert and the record clearly does not show that any past treatment for mental disability is perfectly predictive of current or future fitness to practice law. - 6 - 01-07493 Anne Underwood and Judith Ann Plano, No. BAR 93-21, 1993 WL 649283 at *2 (Me. Dec. 7, 1993) ("The Board's requirement that applicants answer questions 29 and 30 [regarding diagnosis of and treatment for emotional, nervous or mental disorders], and that they sign a broad medical authorization violates the ADA because it discriminates on the basis of disability and imposes eligibility criteria that unnecessarily screen out individuals with disabilities."); cf. In re Petition of Frickey, et al., 515 N.W.2d 741 (Minn. April 28, 1994), (while not decided on the basis of the ADA, finding that similar inquiries regarding mental health history on Minnesota's bar admissions application were unnecessary and deterred students from obtaining necessary counseling); see also Applicants v. Texas State Board of Law Examiners, 93 CA 740 SS (W.D. Tex. Oct. 10, 1994)(broad-based inquiries into an applicant's mental health history violate title II of the ADA).9 _________________________ 9 The United States believes that, to the extent that it permitted even limited inquiries into "severe" mental disabilities, the court's opinion in Texas State Board of Law Examiners, 93 CA 740 SS (Oct. 10, 1994), was incorrectly decided because these inquiries are unnecessary classifications that violate title II and the principles of Manhart. In Texas State Board of Law Examiners, the court based its decision on the premise that a licensing board can inquire into an applicant's mental health in order to determine if he or she has the mental and emotional fitness to fulfill a lawyer's legal, ethical, and moral responsibilities. Singling out persons solely on the basis of their histories of treatment or counselling for certain mental disabilities, however, does not further that end. The court in Texas State Board of Law Examiners stated, (continued...) - 7 - 01-07494 B. TITLE II PROHIBITS DISCRIMINATION AGAINST QUALIFIED INDIVIDUALS WITH DISABILITIES Title II prohibits a public entity from discriminating against a "qualified individual with a disability," which is defined in title II of the ADA and section 35.104 of the title II regulation to mean, an individual with a disability who, with or without reasonable modifications to rules, policies or practices ... meets the essential eligibility requirements for the receipt of services or the participation in the programs or activities provided by a public entity. 42 U.S.C. S 12131(2); 28 C.F.R. S 35.104 (emphasis added). A person is a "qualified individual with a disability" with respect to licensing or certification if he or she can meet the essential eligibility requirements for receiving the license or _________________________ 9 (...continued) Bipolar disorder, schizophrenia, paranoia, and psychotic disorders are serious mental illnesses that may affect a person's ability to practice law. People suffering from these illnesses may suffer debilitating symptoms that inhibit their ability to function normally. The fact that a person may have experienced an episode of one of these mental illnesses in the past but is not currently experiencing symptoms does not mean that the person will not experience another episode in the future or that the person is currently fit to practice law. Id., at 7-8 (emphasis added). This analysis is fundamentally flawed. For those individuals who demonstrate symptoms that would inhibit their ability to practice law, an inquiry into an applicant's behavior would identify those candidates unfit to practice law. On the other hand, if an applicant is not demonstrating symptoms that would inhibit their ability to practice law, then he or she would be currently fit to practice law and cannot lawfully be denied a license to practice on the basis of disability. - 8 - 01-07495 certification. 28 C.F.R. pt. 35, app. A at 453 (July 1, 1993).10 Where public safety may be affected, a determination of whether a candidate meets the "essential eligibility requirements" may include consideration of whether the individual with a disability poses a direct threat to the health and safety of others.11 So long as the candidate does not pose a direct threat and meets the __________________________ 10 The section-by-section analysis also indicates that determining what constitutes "essential eligibility requirements" has been shaped by cases decided under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. S 794. 28 C.F.R. pt. 35, app. A at 451. These cases have demanded a careful analysis behind the qualifications used to determine the actual criteria that a position requires. School Bd. v. Arline, 480 U.S. 273, 287-288 (1986)(requiring an individualized analysis based on facts, instead of generalizations based on unfounded stereotype); Pandazides v. Virginia Bd. of Educ., 946 F.2d 345, 349-50 (4th Cir. 1991)(noting that "defendants cannot merely mechanically invoke any set of requirements and pronounce the handicapped applicant or prospective employee not otherwise qualified. The district court must look behind the qualifications."); Doe v. Syracuse School Dist., 508 F. Supp. 333, 337 (N.D.N.Y. 1981) (requiring analysis behind "perceived limitations"). See also Strathie v. Department of Transp., 716 F.2d 227, 231 (3d Cir. 1983) (finding State's characterization of essential nature of program to license bus drivers overbroad, and requiring a "factual basis reasonably demonstrating" that accommodating the individual would modify the essential nature of the program). 11 As noted in the Department's title II analysis accompanying section 35.104, A "direct threat" is a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services.... Although persons with disabilities are generally entitled to the protection of this part, a person who poses a significant risk to others will not be "qualified," if reasonable modifications to the public entity's policies, practices, or procedures will not eliminate that risk. 28 C.F.R. pt. 35, app. A at 448 (1993). - 9 - 01-07496 essential eligibility criteria, he or she is protected against discrimination on the basis of disability. This case does not involve a final decision to deny a license based on disability. However, title II and its implementing regulations proscribe more than total exclusion on the basis of disability.12 Title II contains a sweeping prohibition of practices by public entities that discriminate against persons with disabilities. Section 202 of the Act, 42 U.S.C. S 12132, provides, Subject to the provisions of this subchapter, 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. As a public entity13 responsible for licensing, the Board must comply with section 35.130(b)(6), which prohibits administering a licensing program "in a manner that subjects qualified persons with disabilities to discrimination." Similarly, section 35.130(b)(3)(i) prohibits use of "methods of administration" that have a discriminatory effect. Finally, section 35.130(b)(8) prohibits the Board from imposing unnecessary eligibility __________________________ 12 See e.g., Ellen S. v. Florida Board of Bar Examiners, 859 F. Supp. 1489, 1493-94 (S.D. Fla. 1994); Medical Society of New Jersey v. Jacobs, 1993 WL 413016 (D.N.J.), at *7. 13 A "public entity" is defined in title II to include "any department, agency ... or other instrumentality of a State ... or local government." 42 U.S.C. S 12131(1)(B). The Board falls within this definition as it is the State governmental agency responsible for licensing attorneys in the Commonwealth of Virginia. - 10 - 01-07497 criteria that screen out, or tend to screen out, persons with disabilities. Two conclusions follow from analyzing title II and the regulation. First, section 35.130(b)(8) prohibits any policy that unnecessarily imposes requirements or burdens on individuals with disabilities that are greater than those placed on others. 28 C.F.R. pt. 35, app. A at 453-54 (1993); see Ellen S. at 1494; Medical Society at *7. Second, unnecessary inquiries into disabilities are prohibited. 1. LICENSING BOARD INQUIRIES INTO TREATMENT OR COUNSELING FOR MENTAL DISABILITIES IMPOSE UNNECESSARY BURDENS ON PERSONS WITH DISABILITIES Title II prohibits a licensing board from imposing unnecessary burdens on persons with disabilities at all stages of the licensing process, regardless of whether a license is eventually granted. Ellen S., at 1494; Medical Society, at *6-8. The Board's inquiries and reporting requirements concerning diagnosis and treatment for mental illness impose requirements on persons with histories of disabilities that are greater than those imposed on other applicants. Applicants are required to state whether, within the past five years, they have been treated or counseled for any mental, emotional, or nervous disorder. Only those applicants who answer affirmatively are then required to identify and provide the complete address of each individual consulted for the condition and record the beginning and ending dates of consultation. By signing their applications, candidates also waive their rights of confidentiality to and authorize - 11 - 01-07498 release of their treatment or consultation records. This process is invasive because it requires only those persons who answer affirmatively to provide information about mental health treatment -- treatment that is often bound up with intensely personal issues such as family relationships and bereavement. The inquiries are also burdensome because of the stigma that attaches to treatment for mental or emotional illness. As the Supreme Court has recognized, there is a substantial liberty interest under the Due Process Clause of the Constitution in avoiding the social stigma of being known to have been treated for a mental illness. Parham v. J.R., 442 U.S. 584, 600 (1979); Addington v. Texas, 441 U.S. 418, 426 (1979).14 See also Smith v. Schlesinger, 513 F.2d 462, 477 (D.C. Cir. 1975) ("[m]ental illness is unfortunately seen as a stigma. The enlightened view is that mental illness is a disease...but we cannot blind ourselves to the fact that at present, despite lip service to the contrary, this enlightened view is not always observed in practice") (ordering Department of Defense to present ______________________ 14 In Parham, the Court found that a person's liberty is "substantially affected" by the stigma attached to treatment in a mental hospital: "The fact that such a stigma may be unjustified does not mean it does not exist. Nor does the fact that public reaction to past commitment may be less than the public reaction to aberrant behavior detract from this assessment. The aberrant behavior may disappear, while the fact of past institutionaliza- tion lasts forever." Parham v. J.R., 442 U.S. 584, 622, n.3 (1979) (Stewart, J., concurring in judgment). - 12 - 01-07499 investigative file on plaintiff, whose security clearance had been revoked.)15 The ADA's definition of disability also recognizes the potential stigma attaching to treatment for mental illness. Persons who have been diagnosed or received treatment for a mental condition may be covered by the third prong of the "disability" definition, regardless of whether they have ever suffered from an actual substantial impairment of a major life activity, 42 U.S.C. S 12102(2)(C).16 Unfortunately, persons who have sought treatment for mental health problems in the past are often seen as emotionally disabled even if their past or current capability or stability may not be affected. See discussion infra.17 As the Supreme Court observed in School Board of Nassau ________________________ 15 See also In Re John Ballay, 482 F.2d 648, 668-69 (D.C. Cir. 1973) ("[d]ischarged patients must not only cope with stigma of having once been hospitalized, but must often continue to cope with the 'mental illness' label itself....Even the most enlightened persons may unwittingly harbor views associated with this stigma."). 16 The title II regulation defines this prong to include persons who have "a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such an impairment . . . ." 28 C.F.R. S 35.104 (1992). 17 Of course, persons with histories of treatment or counselling for a mental condition may also be covered by the second prong of the "disability" definition, which protects persons with a "record" of a disability, regardless of whether they are not currently impaired in a major life activity. 42 U.S.C. S 12102(2)(B). The title II regulation defines this prong to include persons who have "a history of, or [have] been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities." 28 C.F.R. S 35.104 (1992). - 13 - 01-07500 County v. Arline, 480 U.S. 273 (1987), Congress, in enacting the "regarded as" provision, "acknowledged that society's accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment." Id., at 284.18 _______________________ 18 The Board's inquiries into an individual's history of disabilities also has a more insidious discriminatory effect. Concern over the Board's inquiries about diagnosis and treatment for mental illness deters law students and other applicants from seeking counseling for mental or emotional problems. See Stephen T. Maher & Lori Blum, A Strategy for Increasing the Mental and Emotional Fitness of Bar Applicants, 23 Ind. L. Rev. 821, 830-33 (1990) (detailed discussion of how such inquiries have deterrent effect). Indeed, this deterrence factor was part of the basis for the State of Minnesota Supreme Court's order in In re Petition of Frickey, et al., 515 N.W.2d 741 (Minn. Apr. 28, 1994) (deleting questions regarding mental health history from bar admissions application on grounds that the questions deterred law students from seeking needed counseling). This conclusion is supported by studies suggesting that law students may decide against seeking treatment because they are afraid that it might disqualify them from admission to the bar. In a recent survey of over 13,000 law students, 41 percent responded that they would seek assistance for a substance abuse problem if they were assured that bar officials would not have access to the information. As to whether they would refer a friend who had a substance abuse problem, 47 percent responded that they would if bar officials would not have access to the information. Association of American Law Schools, Report of the AALS Special Committee on Problems of Substance Abuse in the Law Schools, 44 Journal of Legal Education 35, 55 (1994) It can be reasonably assumed that a study asking the same questions about mental health problems would show similar findings. Furthermore, even when treatment is sought, its effectiveness may be compromised, because knowledge of the Board's potential investigation of issues surrounding treatment is likely to undermine the trust and frank disclosure on which successful counseling depends. See Maher & Blum, supra, at 824, 833-46. - 14 - 01-07501 2. QUESTION 20(B) IS UNNECESSARY TO DETERMINING FITNESS TO PRACTICE LAW The burdens created by question 20(b) are unnecessary because question 20(b) is an unnecessary eligibility criteria. Section 35.130(b)(8) provides, A public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered. 28 C.F.R. S 35.130(b)(8)(emphasis added). This section is identical in substance to a statutory provision in title III, 42 U.S.C. S 12182(b)(2)(A)(i), and the title III regulation, 28 C.F.R. 36.301(a).19 The legislative history of the analogous title III provision makes clear that Congress intended to prohibit unnecessary inquiries into disability. It also would be a violation for [a public accommodation] to invade such people's privacy by trying to identify unnecessarily the existence of a disability, as, for example, if the credit application of a department store were to inquire whether an individual has epilepsy, has ever ... been hospitalized for mental illness, or has other disability.20 _________________________ 19 Section 204 of the ADA provides that the title II regulation shall incorporate this concept insofar as it requires the title II regulation to be consistent with the ADA generally. 42 U.S.C. S 12134(b); Judiciary Report at 51; Education and Labor Report at 84; 28 C.F.R. pt. 35, app. A at 440. 20 Senate Report at 62; see also Education and Labor Report at 105; Judiciary Report at 58. The analysis accompanying the title III regulations also reflects this Congressional intent. 28 C.F.R. pt. 36, app. B at 590. - 15 - 01-07502 The title II Technical Assistance Manual, published by the Attorney General pursuant to statutory mandate,21 states that Attorney General pursuant to statutory mandate, states that title II similarly prohibits unnecessary inquiries into disability.22 This same conclusion was also reached in Ellen S., where the court held that merely asking for the type of information called for by question 20(b) would violate title II of the ADA. The court noted that, "as the Title II regulations make clear, question 29 and the subsequent inquiries discriminate against Plaintiffs by subjecting them to additional burdens based on their disability." Id., at 1493-94. The court was careful to note that asking the question itself independently violates title II, without regard to whether an ensuing investigation is conducted. Id., at 10, n. 7. Inquiries like the Board's question 20(b) are unnecessary because diagnosis or treatment for any mental, emotional, or nervous disorder provides an uncertain basis for predicting future behavior 23 and because the Board may ask questions focusing directly on conduct and behavior, including those that may be associated with mental illness. The Title II Technical ________________________ 21 42 U.S.C. SS 12206(c)(3) & (d) (Supp. II 1990). 22 Title II Technical Assistance Manual S II-3.5300. 23 See generally Jay Ziskin, Coping with Psychiatric and Psychological Testimony 1-63 (3d ed. 1981); Bruce J. Ennis & Thomas R. Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62 Cal. L. Rev. 693 (1974) (both articles citing extensive authority establishing the inability of mental health professionals to make reliable predictions of future behavior). - 16 - 01-07503 Assistance Manual states that, [p]ublic entities may not discriminate against qualified individuals with disabilities who apply for licenses, but may consider factors related to the disability in determining whether the individual is "qualified." Title II Technical Assistance Manual, at II-3.7200 (emphasis added). Such a permissible "factor related to the disability" is any inappropriate behavior associated with that disability that legitimately reflects on fitness to practice. Such conduct or behavior, whether it results from mental illness, substance dependency, or other factors (such as irresponsibility or bad moral character), provides a basis to determine fitness to practice law without relying on an applicant's diagnosis or treatment history.24 Thus, if the Board wants to assess accurately the likelihood of improper behavior, the Board can and should inquire about credit history, financial or legal problems, criminal records, leaves of absence, disciplinary actions, ____________________________ 24 Indeed, inquiring into mental health treatment history may be ineffective. Diagnoses of some mental disabilities such as bipolar disorder or manic-depression often do not arise until the late-twenties or significantly later -- well after many bar applicants are asked to answer question 20(b). American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 213-228 (3d ed. 1987), (DSM III-R); Frederick K. Goodwin & Kay R. Jamison, Manic-Depressive Illness 127-156 (1990). Interestingly, the age when symptoms or behaviors associated with these disabilities first appear is generally younger than the age when treatment is first sought. Frederick K. Goodwin & Kay R. Jamison, Manic-Depressive Illness 128 (1990). The likelihood of episodes of aberrant behavior is not significantly related to the age of onset of symptoms associated with these disorders. Gabrielle A. Carlson, Yolande B. Davenport & Kay R. Jamison, A Comparison of Outcome in Adolescent- and Late-Onset Bipolar Manic-Depressive Illness, 134 Am. J. of Psychiatry 919 (1977). Therefore, making direct inquiries about behavior will better serve the Board's purposes. - 17 - 01-07504 suspensions, or terminations from school or jobs in the past, but may not focus the inquiry only on such events or problems occasioned by physical or psychiatric illnesses or conditions. Similarly, the Board may also inquire about personal behavior, including whether the applicant uses illegal drugs and the frequency of use.25 The Board may also ask applicants, references, colleagues, and business associates whether there is anything that would currently impair their ability to carry out the duties and responsibilities of an attorney in a manner consistent with the standards of conduct for an attorney admitted to practice in the Commonwealth of Virginia.26 Indeed, addressing the area of physician licensure, the American Psychiatric Association guidelines state, The salient concern is always the individual's current capacity and/or current impairment. Only information about current impairing disorder affecting the capacity to function as a physician, and which is ____________________________ 25 Under the ADA, "the term 'individual with a disability' does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use." 42 U.S.C. S 12110(a). 26 For instance, in Doe v. Syracuse School District, 508 F. Supp. 333 (N.D.N.Y. 1981), the court held that a question on a job application form asking whether the applicant had ever experienced a nervous breakdown or undergone psychiatric treatment was illegal under the Rehabilitation Act and its implementing regulations. The district court noted that, "if defendant sincerely wanted to employ persons that were capable of performing their jobs, all it had to ask was whether the applicant was capable of dealing with various emotionally demanding situations." Id. at 337. - 18 - 01-07505 relevant to present practice, should be disclosed.27 Other questions already on the bar application elicit a wealth of information to illuminate an individual's past behavior. These inquiries -- which require full disclosure of employment history, educational background, financial history, military service, and criminal record -- provide a sound and comprehensive basis for drawing inferences about an individual's fitness for the practice of law without resort to the mental health history. See Medical Society of New Jersey v. Jacobs, 1993 WL 413016, at *7 (questions regarding applicants' diagnosis of and treatment for psychiatric illness or condition are unnecessary, where the medical examiners could "formulate a set of effective questions that screen out applicants based only on their behavior and capabilities"); In re Petition of Frickey, et al., 515 N.W.2d 741 (Minn. April 28, 1994), (order removing similar questions from Minnesota bar admissions application, finding that "questions relating to conduct can, for the most part, elicit the information necessary for the Board of Law Examiners to enable the Court to protect the public from unfit practitioners").28 Indeed, a recent _________________________ 27 American Psychiatric Association, Recommended Guidelines Concerning Disclosure and Confidentiality, Work Group on Disclosure (Dec. 12, 1992) at 1. 28 Related to the fact that question 20(b) is unnecessary, question 20(b) also suffers from being overbroad. While the United States does not endorse its opinion, see supra, the court in Texas Board of Law Examiners found that even an inquiry into mental disabilities that was much narrower than question 20(b) would violate the ADA. The court rejected a question which asked, (continued...) - 19 - 01-07506 District of Columbia study determined that information obtained pursuant to inquiries about treatment for mental health problems has "rarely, if ever, brought to light a serious fitness question that was not highlighted by other information (concerning litigation, employment, encounters with legal authorities, academic or bar discipline, etc.)". Reishel, The Constitution, the Disability Act, and Questions about Alcoholism, Addiction, and Mental Health, 61 The Bar Examiner 10, 20 (1992).29 ___________________________ 28 (...continued) a) Have you, within the last ten (10) years, been treated for any mental illness? b) Have you, within the last ten (10) years, been admitted to any hospital or other facility for the treatment of any mental illness? Section 571.033, Texas Health and Safety Code, defines mental illness, as follows: "Mental illness" means an illness, disease, or condition other an epilepsy, senility, alcoholism, or mental deficiency, that: (A) substantially impairs a person's thought, perception of reality, emotional process, or judgment; or (B) grossly impairs behavior as demonstrated by recent disturbed behavior. The court observed that, "such a broad-based inquiry violates the ADA." Id. at 20 (emphasis added). The boundless definition of "disorder" in defendant's question 20(b), which is much broader than the question rejected in Texas State Board of Law Examiners, would violate the ADA under the same reasoning. 29 The article states, The vast bulk of such responses [to the mental health treatment inquiry] have concerned counseling, most frequently marriage counseling, with no relevance to fitness to practice. Almost always more serious mental health problems have been signalled by responses to (continued...) - 20 - 01-07507 In enacting title II of the ADA, Congress sought to abolish unnecessary classifications based on disability. Nowhere was this need greater than in protecting the rights of persons with mental disabilities. The ADA outlaws these classifications and seeks to abolish attendant stereotypes. It is possible that the Virginia Board of Bar Examiners may find its task of identifying applicants unfit to practice law more time-consuming and labor- intensive if required to look at an applicant's individual ability and individual record of behavior, rather than using disability as a "red flag" to separate out applicants for further investigation. The ADA, however, requires no less. __________________________ 29 (... continued) other questions (about arrests, crimes, debt, litigation, discipline, etc.). Indeed, since mental health information is only relevant to a fitness inquiry because it might show a risk to job performance, arguably the only evidence that is material is that the applicant's mental condition has interfered with the applicant's job, school, or analogous activities. Any such significant interference should be, and almost invariably has been, reflected in the other information the committee seeks. Responses of about 20,000 applicants to mental health inquiries over a period of seven years never resulted in a applicant's noncertification for admission to the District of Columbia bar. Reishel, The Constitution, the Disability Act, and Questions about Alcoholism, Addiction, and Mental Health, 61 The Bar Examiner 10, 20 (1992). - 21 - 01-07508 III. CONCLUSION For the foregone reasons, the Court should find in favor of plaintiff. Respectfully submitted, DEVAL L. PATRICK Assistant Attorney General Civil Rights Division JOHN L. WODATH JOAN A. MAGAGNA SHEILA M. FORAN KEN S. NAKATA Attorneys U.S. Department of Justice Civil Rights Division Public Access Section P.O. Box 66738 Washington, D. C. 20035-6738 Tel: (202) 307-6309 RICHARD PARKER Assistant United States Attorney Appearing Per 28 U.S.C. S 517 1101 King Street, Suite 502 Alexandria, VA 22304 Tel: (703) 706-3700 November 21, 1994 Alexandria, Virginia - 22 - 01-07509 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division JULIE ANN CLARK : : Plaintiff, : : v. : : VIRGINIA BOARD OF BAR EXAMINERS : : C.A. # 94-211-A and : : W. SCOTT STREET, III, Secretary : Virginia Board of Bar Examiners : : Defendants. : : MEMORANDUM OF THE UNITED STATES AS AMICUS CURIAE IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT Julie Ann Clark brought this action seeking declaratory and injunctive relief against the Virginia Board of Bar Examiners ("Board"). Although she has successfully passed the Virginia Bar examination and has satisfied all of the other requirements of the Board's character and fitness review, she has refused to answer question 20(b) of the Board's application, which asks, Have you within the past five (5) years been treated or counseled for any mental, emotional, or nervous disorder? Ms. Clark's lawsuit seeks a declaration that the Board violated title II of the Americans with Disabilities Act (ADA), 42 U.S.C. SS 12101-12213 (Supp. II 1990) by asking question 20(b). Ms. Clark also seeks a permanent injunction barring the Board from inquiring into her mental health history and the mental health history of other bar applicants. 01-07510 Earlier in this litigation, this Court denied both defendants' motion and the plaintiff's cross-motion for summary judgment. The defendants are now moving this Court again for summary judgment on arguments substantially similar to those raised in its prior motion because of their continuing belief that question 20(b), as currently written, does not violate title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. SS 12131-12180. The United States, as amicus curiae, urges this Court to deny the defendants' motion. ARGUMENT I. THE BOARD'S LICENSING PROCEDURES ARE SUBJECT TO TITLE II OF THE ADA Title II contains a sweeping prohibition of practices by public entities that discriminate against persons with disabilities. Section 202 of the Act, 42 U.S.C. S 12132, provides, Subject to the provisions of this subchapter, 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. A "public entity" is defined in title II to include "any department, agency ... or other instrumentality of a State ... or local government." 42 U.S.C. S 12131(1)(B). The Board falls within this definition as it is the State governmental agency responsible for licensing attorneys in the Commonwealth of - 2 - 01-07611 Virginia. As a public entity, the Board may not discriminate on the basis of disability in conducting its licensing activities. Several provisions of the title II regulation prohibit policies that unnecessarily impose greater requirements or burdens on individuals with disabilities than those imposed on others. As a State licensing entity, the Board must comply with section 35.130(b)(6), which states, A public entity may not administer a licensing or certification program in a manner that subjects qualified individuals with disabilities to discrimination on the basis of disability * * *. 28 C.F.R. S 35.130(b)(6). Section 35.130(b)(3)(i) further provides, A public entity may not, directly or through contractual or other arrangements, utilize criteria or methods of administration ... that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability. 28 C.F.R. S 35.130(b)(3)(i). Also applicable is the regulatory provision prohibiting discriminatory eligibility criteria which states: A public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered. 28 C.F.R. S 35.150(b)(8) (emphasis added). This provision means that the Board cannot require applicants to answer question 20(b) as a condition for licensure unless the Board can demonstrate that this question is necessary to determining fitness to - 3 - 01-07512 practice law. As discussed further below, we do not believe that the Board can meet this burden. II. THE ADA PROVISIONS RELATING TO EMPLOYMENT-RELATED INQUIRIES ARE NOT APPLICABLE TO PROFESSIONAL LICENSING ACTIVITIES In support of its motion, the Board looks to title I of the ADA, which prohibits discrimination in employment on the basis of disability. 42 U.S.C. SS 12111 - 12117 (Supp. II 1990). Among the areas addressed by title I are medical inquiries during the application stage for employment. Title I explicitly prohibits an employer from inquiring into an applicant's disability before a prospective employee is offered a job. 42 U.S.C. S 12112 (c) (2). The Board interprets title I to allow an employer, once a conditional job offer is made, to then require the applicant to undergo a medical examination and respond to any medical inquiry so long as all applicants are similarly required to undergo this procedure. 42 U.S.C. S 12112 (c) (3). 1 The Board first asserts that it is entitled to ask question 20 (b) because, in contrast to title I's specific prohibitions, title II of the ADA contains no specific prohibition on inquiries into disability. This argument is incorrect because the concerns raised by discrimination in employment and state licensing are completely different. Furthermore, the legislative history of the ADA does not support the Board's statutory interpretation. _______________________ 1 It is not necessary here to determine whether this interpretation is correct, because title I is simply not applicable in these circumstances. - 4 - 01-07513 As noted by the court in Ellen S. v. Florida Board of Bar Examiners, 94-0429-CIV-KING (Aug. 1, 1994), at 8: [T]he legislative history reveals that Congress deliberately chose 'not to list all the types of actions that are included within the term 'discrimination', as was done in titles I and III.' H.R. Rep. No. 485(II), 101st Cong., 2d Sess. 84 (1990), -reprinted in- 1990 U.S.C.C.A.N. 303, 367. Congress chose instead to direct the Department of Justice to promulgate regulations. Id., n.6 (citing Kinney v. Yerusalim, 812 F. Supp. 546, 548 (E.D. Pa.), aff'd, 9 F.3d 1067 (3rd Cir. 1993), cert. denied, 114 S. Ct. 1545 (1994)). As the Ellen S. court found, the title II regulation prohibit bar examiners from inquiring into the mental health history of applicants. Id. at 10. The Board also argues -- by analogizing to title I -- that it should be permitted to make medical inquiries, as it is in a posture comparable to an employer who has made a conditional job offer. This argument is flawed in two respects. First, title I's division between "pre-offer" and "post- offer" medical inquiries has no application to the entirely separate area of professional licensing covered by title II. In title I, Congress created very detailed procedures and requirements in order to protect the rights of prospective employees with disabilities. This careful construct, because it was designed for a very specific transaction -- hiring of employees -- is unworkable when it is superimposed over a very different kind of transaction -- licensing of professionals. Title II, on the other hand, specifically applies to state - 5 - 01-07514 licensing processes, 28 C.F.R. 35.130(b)(6), and permits the Board to perform its very important function of assessing the competency of aspiring attorneys and imposing eligibility requirements that are "necessary" for this purpose, 28 C.F.R. 35.130(b)(8). Furthermore, the court in Medical Society of New Jersey v. Jacobs, 1993 WL 413016 (D.N.J. 1993), rejected an argument similar to the one raised by the Board. The court examined the legislative history of both titles I and II of the ADA and concluded that, to the extent title I was to be incorporated in title II, it was to be done through the title II regulations, which the Court held, "are clear" and "invalidate the Board's procedure of placing extra burdens on disabled applicants." Id. at *9. Second, even if title I were applicable to the Board's licensing procedures, the use of Question 20(b) would not be permissible. Just as title I allows certain "post-offer" medical inquiries, it just as clearly prohibits "pre-offer" inquiries into an applicant's disability. As the Board concedes, the license application procedure is not a "two-step" process (Defendant's Brief, p. 7). Yet, relying on title I would more logically prohibit the defendants from inquiring at all into any disability because prospective licensees to practice law never reach a "post offer" stage in the licensing process.2 A license _________________________ 2 As the Court in Medical Society observed, "[t]he Board ... acknowledges in making this argument that, by analogy to (continued...) - 6 - 01-07515 is either granted or not; conditional licenses are not offered to applicants with medical examinations of all then being required. Rather, the Board makes pre-license medical inquiries of all applicants, and follow-up medical questions, not of all applicants, but only of those who answer "yes" to question 20(b). III. QUESTION 20(B) IS OVERBROAD, UNNECESSARY, AND IMPOSES NEEDLESS BURDENS A core purpose of the ADA is the elimination of barriers caused by the use of stereotyped assumptions "that are not truly indicative of the individual ability of [persons with disabilities] to participate in, and contribute to, society." 42 U.S.C. S 12101(a)(7).3 The ADA does not permit unnecessary inquiries into the existence of disabilities and prohibits policies that impose greater requirements or burdens on individuals with disabilities than those imposed on others. While the ultimate goal of the Board -- to ensure that persons admitted to the Virginia bar have the requisite moral character and fitness to practice law -- is certainly lawful, the means used by the Board to achieve that goal is not. By unnecessarily imposing additional burdens, including disclosures and the ______________________ 2 (...continued) Title I ..., it is technically prohibited from asking the challenged questions before it issues licenses." Id., at *9. 3 See H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. II at 30, 33, 40, 41 (1990) [hereinafter cited as Education and Labor Report]; H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. III at 25 (1990) [hereinafter cited as Judiciary Report]; S. Rep. No. 116, 101st Cong., 1st Sess. at 7, 9, and 15 (1989) [hereinafter cited as Senate Report]. - 7 - 01-07516 possibility of follow-up investigations, on those individuals who have any history of treatment, diagnoses, or counselling for mental or psychiatric conditions, the Board is engaging in precisely the kind of impermissible stereotyping that the ADA proscribes. This case does not present a situation where an individual has been denied admission to the bar based on disability. However, title II and its implementing regulations proscribe more than total exclusion on the basis of disability. See e.g., Ellen S. v. Florida Board of Bar Examiners, 94-0429-CIV-KING at 9 (S.D. Fla. Aug. 1, 1994); Medical Society of New Jersey, 1993 WL 413016, at *7. Section 35.130(b)(6) prohibits administering a licensing program "in a manner that subjects qualified persons with disabilities to discrimination." Similarly, section 35.130(b)(3)(i) prohibits use of "methods of administration" that have a discriminatory effect. Finally, as pointed out in the interpretative guidance accompanying the regulation, section 35.130(b)(8) not only outlaws overt denials of equal treatment of individuals with disabilities, it prohibits policies that unnecessarily impose requirements or burdens on individuals with disabilities greater than those placed on others. 28 C.F.R. pt. 35, app. A at 453-54 (1993); see Ellen S. at 10; Medical Society at *7. It also prohibits unnecessary inquiries into disability. Ellen S. at 9, 10, n. 7. In Ellen S. v. Florida Board of Bar Examiners, 94-0429-CIV- KING (S.D. Fla. Aug. 1, 1994), the court held that simply asking - 8 - 01-07517 for the type of information called for by question 20(b) violated title II of the ADA. In that case, plaintiffs challenged a question that is substantially identical in scope to Question 20(b) of the Virginia application.4 The court noted that, "as the Title II regulations make clear, question 29 and the subsequent inquiries discriminate against Plaintiffs by subjecting them to additional burdens based on their disability." Id., at 9. The court further held that, even apart from the ensuing investigation, the question itself independently violated title II. Id., at 10, n. 7. __________________________ 4 Question 29 of the application to the Florida bar reads as, 29. Consultation with Psychiatrist, Psychologist, Mental Health Counsellor or Medical Practitioner. a. Yes No Have you ever consulted a psychiatrist, psychologist, mental health counselor or medical practitioner for any mental, nervous or emotional condition, drug or alcohol use? If yes, state the name and complete address of each individual you consulted and the beginning and ending dates of each consultation. b. Yes No Have you ever been diagnosed as having a nervous, mental or emotional condition, drug or alcohol problem? If yes, state the name and complete address of each individual who made each diagnosis. c. Yes No Have you ever been prescribed psychotropic medication? If yes, state the name of each medication and the name and complete address of each prescribing physician. Psychotropic medication shall mean any prescription drug or compound effecting the mind, behavior, intellectual functions, perceptions, moods, or emotions, and includes anti-psychotic, anti-depressant, anti-manic and anti-anxiety medications. - 9 - 01-07518 Similarly, question 20(b) of the Virginia application also is overbroad, unnecessary, and imposes needless burdens on persons with disabilities. A. Question 20(b) Violates Title II Because It Is Overbroad and Unnecessary ] Unnecessary inquiries into disabilities are barred by the title II regulation, 28 C.F.R. S 35.130(b)(8), which is identical in substance to a statutory provision in title III, 42 U.S.C. S 12182(b)(2)(A)(i), and the title III regulation, 28 C.F.R. 36.301(a).5 The legislative history of the title III statutory provision makes clear that Congress intended to prohibit unnecessary inquiries into disability. It also would be a violation for [a public accommodation] to invade such people's privacy by trying to identify unnecessarily the existence of a disability, as, for example, if the credit application of a department store were to inquire whether an individual has epilepsy, has ever ... been hospitalized for mental illness, or has other disability. Senate Report at 62; see also Education and Labor Report at 105; Judiciary Report at 58. The Department of Justice emphasized this Congressional intention in the analysis accompanying its title III regulation, 28 C.F.R. pt. 36, app. B at 590. The title II Technical Assistance Manual, published by the Attorney General pursuant to statutory mandate,6 reiterates that title II ____________________ 5 Section 204 of the ADA provides that the title II regulation shall incorporate this concept insofar as it requires the title II regulation to be consistent with the ADA generally. 42 U.S.C. S 12134(b); Judiciary Report at 51; Education and Labor Report at 84; 28 C.F.R. pt. 35, app. A at 440. 6 42 U.S.C. SS 12206(c)(3) & (d) (Supp. II 1990). - 10 - 01-07519 prohibits unnecessary inquiries into disability. U.S. Department of Justice, The Americans with Disabilities Act -- Title II Technical Assistance Manual S II-3.5300 (1992 & Supp. 1993) ("Technical Assistance Manual"). Thus, question 20(b) can lawfully be used by the Board only if it is necessary to the Board's licensing function. Title II prohibits a public entity from discriminating against a "qualified individual with a disability," which is defined in title II of the ADA and section 35.104 of the title II regulation to mean: an individual with a disability who, with or without reasonable modifications to rules, policies or practices ... meets the essential eligibility requirements for the receipt of services or the participation in the programs or activities provided by a public entity. 42 U.S.C. S 12131(2); 28 C.F.R. S 35.104 (emphasis added). Similarly, as noted in the analysis accompanying section 35.130(b)(6), a person is a "qualified individual with a disability" with respect to licensing or certification if he or she can meet the essential eligibility requirements for receiving the license or certification. 28 C.F.R. pt. 35, app. A at 453 (July 1, 1993).7 Where, as here, public safety may be affected, _________________________ 7 The section-by-section analysis also indicates that determining what constitutes "essential eligibility requirements" has been shaped by cases decided under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. S 794. 28 C.F.R. pt. 35, app. A at 451. These cases have demanded a careful analysis behind the qualifications used to determine the actual criteria that a position requires. School Bd. v. Arline, 480 U.S. 273, 287-288 (1986); Pandazides v. Virginia Bd. of Educ., 946 F.2d 345, 349-50 (4th Cir. 1991)(noting that "defendants cannot merely (continued...) - 11 - 01-07520 a determination of whether a candidate meets the "essential eligibility requirements" may include consideration of whether the individual with a disability poses a direct threat to the health and safety of others.8 ______________________ 7 (...continued) mechanically invoke any set of requirements and pronounce the handicapped applicant or prospective employee not otherwise qualified. The district court must look behind the qualifications"); Doe v. Syracuse School Dist., 508 F. Supp. 333, 337 (N.D.N.Y. 1981) (requiring analysis behind "perceived limitations"). See also Strathie v. Department of Transp., 716 F.2d 227, 231 (3d Cir. 1983) (finding State's characterization of essential nature of program to license bus drivers overbroad, and requiring a "factual basis reasonably demonstrating" that accommodating the individual would modify the essential nature of the program). 8 As noted in the Department's title II analysis accompanying section 35.104, Where questions of safety are involved, the principles established in S 36.208 of the Department's regulation implementing title III of the ADA, to be codified at 28 C.F.R. Part 36, will be applicable. That section implements section 302(b)(3) of the Act, which provides that a public accommodation is not required to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of the public accommodation, if that individual poses a direct threat to the health or safety of others. A "direct threat" is a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services.... Although persons with disabilities are generally entitled to the protection of this part, a person who poses a significant risk to others will not be "qualified," if reasonable modifications to the public entity's policies, practices, or procedures will not (continued...) - 12 - 01-07521 The purpose of the Board's licensure process is to determine whether individuals are capable of practicing law in a competent and ethical manner, i.e. whether such persons will satisfy the "essential eligibility requirements" for the practice of law. The inquiries and investigations at issue here are poorly crafted to achieve the Board's goal of identifying persons unfit to practice law. Asking about an applicant's history of diagnosis and treatment for any mental, emotional, or nervous disorder treats a person's status as an individual with a disability as if it were indicative of that individual's future behavior as an attorney.9 However, diagnosis or treatment for any mental, emotional, or nervous disorder provides an uncertain basis for assuming that these disabilities will affect behavior. See generally Jay Ziskin, Coping with Psychiatric and Psychological Testimony 1-63 (3d ed. 1981); Bruce J. Ennis & Thomas R. Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62 Cal. L. Rev. 693 (1974) (both articles citing extensive authority establishing the inability of mental health ______________________________ 8 (...continued) eliminate that risk. 28 C.F.R. pt. 35, app. A at 448 (1993). 9 The ADA prohibits discrimination based on stereotypical and unfounded fears and misconceptions over the perceived consequences of disabilities. See, e.g., Title II Technical Assistance Manual at 12 ("A public entity may impose legitimate safety requirements necessary for the safe operation of its services, programs, or activities. However the public entity must ensure that its safety requirements are based on real risks, not on speculation, stereotypes, or generalizations about individuals with disabilities") (emphasis added). - 13 - 01-07522 professionals to make reliable predictions of future behavior).10 By using broad questions intended to reveal any treatment or consultation for mental, emotional, or nervous disorders, the Board is using presumptions about mental illness that are simply not supported in fact. The Board's purposes are better served by questions that focus directly on conduct and behavior, including those that may be associated with mental illness. The Title II Technical Assistance Manual states that, [p]ublic entities may not discriminate against qualified individuals with disabilities who apply for licenses, but may consider factors related to the disability in determining whether the individual is "qualified." Technical Assistance Manual, at II-3.7200 (emphasis added). One permissible "factor related to the disability" is any inappropriate behavior associated with that disability. Thus, the Board may inquire generally about any leaves of absence, disciplinary actions, suspensions, or terminations from school or _________________________ 10 Of course this is even more true with respect to bar examiners, who are not usually professionals trained in the fields of psychiatry or psychology. [w]hile mental stability is obviously relevant to practice, current certification standards license untrained examiners to draw inference that the mental health community would find highly dubious...Even trained clinicians cannot accurately predict psychological incapacities based on past treatment in most individual cases. Deborah L. Rhode, Moral Character as a Professional Credential, 94 Yale L.J. 491, 581-82 (1985). - 14 - 01-07523 jobs in the past but may not focus the inquiry only on such events occasioned by physical or psychiatric illnesses or conditions. Similarly, the Board may inquire about personal behavior, including whether the applicant uses illegal drugs and the frequency of use.11 The Board may also ask applicants whether there is anything that would currently impair their ability to carry out the duties and responsibilities of an attorney in a manner consistent with the standards of conduct for an attorney admitted to practice in the Commonwealth of Virginia.12 Other questions already on the bar application elicit a wealth of information to illuminate an individual's past behavior. These inquiries require full disclosure of employment history, educational background, military service, and criminal record. These inquiries provide a sound and comprehensive basis for drawing inferences about an individual's fitness for the practice of law without resort to the mental health history. The caselaw also supports this conclusion. See Medical Society of _____________________________ 11 Under the ADA, "the term 'individual with a disability' does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use." 42 U.S.C. S 12110(a). 12 For instance, in Doe v. Syracuse School District, 508 F. Supp. 333 (N.D.N.Y. 1981), the court held that a question on a job application form asking whether the applicant had ever experienced a nervous breakdown or undergone psychiatric treatment was illegal under the Rehabilitation Act and its implementing regulations. The district court noted that, "if defendant sincerely wanted to employ persons that were capable of performing their jobs, all it had to ask was whether the applicant was capable of dealing with various emotionally demanding situations." Id. at 337. - 15 - 01-07524 New Jersey v. Jacobs, 1993 WL 413016, at *7 (questions regarding applicants' diagnosis of and treatment for psychiatric illness or condition are unnecessary, where the medical examiners could "formulate a set of effective questions that screen out applicants based only on their behavior and capabilities"); In re Petition of Frickey, et al., No. C5-84-2139, 1994 WL 183523 (Minn. April 28, 1994), (order removing similar questions from Minnesota bar admissions application, finding that "questions relating to conduct can, for the most part, elicit the information necessary for the Board of Law Examiners to enable the Court to protect the public from unfit practitioners"). Furthermore, even if the Board could show that certain mental, emotional, or nervous disorders are indicative of a person's ability to practice law, question 20(b) still suffers from the fatal defect of being unnecessarily overbroad. Concluding that there is no "perfect question" that it can ask to identify only people who have a present mental or emotional condition that impairs their ability to practice law (Defendant's Brief, p. 13), the Board asserts that it must be allowed to inquire freely into any treatment or counseling for any mental, emotional, or nervous disorder within the past five years. Yet, armed with the wealth of information that answers to question 20(b) have produced concerning applicants' treatment or counseling, the Board, by its own admission, has rarely chosen to pursue additional investigation. The Board notes that, "[a]s the preamble to the Board's mental health inquiry states, only severe - 16 - 01-07525 mental problems will trigger an investigation or impact the admission decision" (Defendant's Brief, p. 10)(emphasis added). Oddly, to isolate those applicants with "severe mental problems," the Board has chosen the broadest conceivable definition of "disorder." The Board's motion is premised on the belief that title II allows for such a broad inquiry to accomplish such a narrow task. In fact, exactly the opposite is true. In support of its motion, the Board cites to (and appended) Applicants v. Texas State Board of Bar Examiners, 93 CA 740 SS (Oct. 10, 1994). This case upheld a licensing board's use of a very narrow question regarding a few types of mental disabilities.13 While the United States does not agree with the court's holding that this type of question is permissible under _________________________ 13 Applicants to the Texas bar are required to answer the following: a) Within the last ten years, have you been diagnosed with or have you been treated for bipolar disorder, schizophrenia, paranoia, or any other psychotic disorder? b) Have you, since attaining the age of eighteen or within the last ten years, whichever period is shorter, been admitted to a hospital or other facility for the treatment of bi-polar disorder, schizophrenia, paranoia, or any other psychotic disorder? If you answered "YES" to any part of this question, please provide details on a Supplemental Form, including date(s) of diagnosis or treatment, and a description of your present condition. Include the name, current mailing address, and telephone number of each person who treated you, as well as each facility where you received treatment, and the reason for treatment. - 17 - 01-07526 the ADA, even the Texas State Board of Law Examiners opinion would disallow the Board's use of question 20(b). The Texas Board of Law Examiners court found that two previous formulations of the Texas questions would violate the ADA. The court rejected a question that was substantially similar to Virginia's question 20(b).14 Indeed, the court also rejected a question that was substantially narrower than question 20(b).15 The court _________________________ 14 Prior to April 1992, the Texas Board asked applicants: Have you, within the last ten (10) years: a) Been examined or treated for any mental, emotional or nervous conditions (You may exclude marriage counseling.) b) Been voluntarily or involuntarily admitted to a hospital or institution as a result of mental, emotional or nervous conditions? If you answered "YES" to 11a. or b., give details on the Supplemental Form. Include dates of treatment or confinement, name and current mailing address of the person(s) who treated you (or the facility where you received treatment), and the reason for treatment. 15 Between April 1992 and July 1993, the Texas Board significantly narrowed its original question and asked applicants: a) Have you, within the last ten (10) years, been treated for any mental illness? b) Have you, within the last ten (10) years, been admitted to any hospital or other facility for the treatment of any mental illness? Section 571.033, Texas Health and Safety Code, defines mental illness, as follows: "Mental illness" means an illness, disease, or condition other an epilepsy, senility, (continued...) - 18 - 01-07527 observed that these questions "intruded into an applicant's mental health history without focusing on only those mental illnesses that pose a potential threat to the applicant's present fitness to practice law. . . . [and] that such a broad-based inquiry violates the ADA." Id. at 20 (emphasis added). The Virginia Board of Bar Examiners, however, has chosen exactly such an improper broad-based approach. Its boundless definition of "disorder" in question 20(b) does not include any limitation on the types of disorders that may be included. The Board only makes assertions, without a factual basis, for its claim that the range of "disorders" encompassed within the broad ambit of question 20(b) have any bearing on an applicant's ability to practice law. Three other courts have rejected similar claims. Texas State Board of Law Examiners, supra; Ellen S., supra; and Medical Society, supra at pp. 8-10. B. Question 20(b) Violates Title II Because It Imposes Unnecessary Burdens The Board also argues that title II permits inquiries into mental disorders, so long as it does not deny a professional license to a person who, despite his or her mental disability, still has the ability to practice law (Defendant's Brief, p. 9). This argument was rejected by the Ellen S. and Medical Society ___________________________ 15 (...continued) alcoholism, or mental deficiency, that: (A) substantially impairs a person's thought, perception of reality, emotional process, or judgment; or (B) grossly impairs behavior as demonstrated by recent disturbed behavior. - 19 - 01-07528 courts. Ellen S., at 10; Medical Society, at *6-8. See discussion, infra. The Board's inquiries and reporting requirements concerning diagnosis and treatment for mental illness impose requirements on persons with histories of disabilities that are greater than those imposed on other applicants. The Board requires applicants to state whether, within the past five years, they have been treated or counseled for any mental, emotional, or nervous disorder. Affirmative answers automatically trigger a requirement that the applicant identify and provide the complete address of each individual consulted for the condition, and record the beginning and ending dates of consultation.16 Mental health treatment, however, is often bound up with intensely personal issues such as family relationships and bereavement. The Board's licensure inquiry is invasive not only because it requires persons who answer the questions in the affirmative to provide information about these issues, but because it also requires them to disclose details about what is arguably the most private part of human existence -- a person's inner mental and emotional state. The inquiries are also invasive and burdensome because of the stigma which still attaches to treatment for mental or emotional illness. The Supreme Court has recognized that individuals have a substantial liberty interest under the Due __________________ 16 By signing their applications, candidates also waive their rights of confidentiality to and authorize release of their treatment or consultation records. - 20 - 01-07529 Process Clause of the Constitution in avoiding the social stigma of being known to have been treated for a mental illness. Parham v. J.R., 442 U.S. 584, 600 (1979); Addington v. Texas, 441 U.S. 418, 426 (1979).17 See also Smith v. Schlesinger, 513 F.2d 462, 477 (D.C. Cir. 1975) ("[m]ental illness is unfortunately seen as a stigma. The enlightened view is that mental illness is a disease ... but we cannot blind ourselves to the fact that at present, despite lip service to the contrary, this enlightened view is not always observed in practice") (ordering Department of Defense to present investigative file on plaintiff, whose security clearance had been revoked.)18 ______________________________ 17 In Parham, the Court found that a person's liberty is "substantially affected" by the stigma attached to treatment in a mental hospital: "The fact that such a stigma may be unjustified does not mean it does not exist. Nor does the fact that public reaction to past commitment may be less than the public reaction to aberrant behavior detract from this assessment. The aberrant behavior may disappear, while the fact of past institutionaliza- tion lasts forever." Parham v. J.R., 442 U.S. 584, 622, n.3 (1979) (Stewart, J., concurring in judgment). 18 See also In Re John Ballay, 482 F.2d 648, 668-69 D.C. Cir. 1973) ("[d]ischarged patients must not only cope with stigma of having once been hospitalized, but must often continue to cope with the 'mental illness' label itself....Even the most enlightened persons may unwittingly harbor views associated with this stigma."), Estate of Roulet, 23 Cal.3d 219, 228-29 (1979) (finding that there is compelling evidence that society "still views the mentally ill with suspicion" and noting that: [i]n the ideal society, the mentally ill would be the subjects of understanding and compassion, rather than ignorance and aversion. But that enlightened view, unfortunately, does not yet prevail. The stigma borne by the mentally ill has frequently been identified in the literature: 'a former mental patient may suffer from the social opprobrium which attaches to treatment for mental illness and which may have more severe consequences than do the formally imposed disabilities. (continued...) - 21 - 01-07530 The ADA's definition of disability also recognizes the stigma which attaches to persons with histories of mental illness. Regardless of whether they have ever suffered from an actual substantial impairment of a major life activity, persons who have ever been diagnosed or treated for mental illness may be covered by the third prong of the "disability" definition -- "regarded as having such an impairment." 42 U.S.C. S 12102 (2)(C).19 Unfortunately, due to popular misconceptions concerning persons who have sought treatment for mental health problems in the past, such persons are often regarded as emotionally disabled or mentally ill although their past and/or current capability or stability may not be affected. See discussion infra. As the Supreme Court observed in School Board of Nassau County v. Arline, 480 U.S. 273, 284 (1987), Congress, in enacting the "regarded as" provision, "acknowledged that society's accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment." _______________________________ 18 (...continued) Many people have an irrational fear of the mentally ill.' The former mental patient is likely to be treated with distrust and even loathing; he may be socially ostracized and victimized by employment and educational discrimination. (citing People v. Burnick, 14 Cal.3d 306, 321 (1975)). 19 The title II regulation defines this prong to include persons who have "a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such an impairment . . . ." 28 C.F.R. S 35.104 (1992). - 22 - 01-07531 The Board's inquiries into an individual's history of disabilities also has a more insidious discriminatory effect. Concern over the Board's inquiries about diagnosis and treatment for mental illness deters law students and other applicants from seeking counseling for mental or emotional problems. See Stephen T. Maher & Lori Blum, A Strategy for Increasing the Mental and Emotional Fitness of Bar Applicants, 23 Ind. L. Rev. 821, 830-33 (1990) (detailed discussion of how such inquiries have deterrent effect). Indeed, this deterrence factor was part of the basis for the State of Minnesota Supreme Court's order in In re Petition of Frickey, et al., No. C5-84-2139 (Minn. Apr. 28, 1994) (deleting questions regarding mental health history from bar admissions application on grounds that the questions deterred law students from seeking needed counseling.)20 Even when treatment is sought, its effectiveness may be compromised, because knowledge of the Board's potential investigation of issues surrounding treatment is likely to undermine the trust and __________________________ 20 The court's conclusion is supported by studies suggesting that law students may decide against seeking treatment because they are afraid that it might disqualify them from admission to the bar. In a recent survey of over 13,000 law students, 41 percent responded that they would seek assistance for a substance abuse problem if they were assured that bar officials would not have access to the information. As to whether they would refer a friend who had a substance abuse problem, 47 percent responded that they would if bar officials would not have access to the information. Association of American Law Schools, Report of the AALS Special Committee on Problems of Substance Abuse in the Law Schools, 44 Journal of Legal Education 35, 55 (1994) It can be reasonably assumed that a study asking the same questions about mental health problems would show similar findings. - 23 - 01-07532 frank disclosure on which successful counseling depends. See Maher & Blum, supra, at 824, 833-46.21 The Board's motion is premised on the important role that it serves in protecting the public against attorneys unfit to practice in the Commonwealth of Virginia. The United States fully supports this laudable goal. As we have noted above, however, the means to this end, however, are not without limitation. In enacting the ADA, Congress sought to protect persons with mental disabilities against discrimination and the destructive stereotypes common in our society. This suit seeks to protect those rights. _______________________ 21 The chilling effect of the Board's practices runs completely counter to the goal ostensibly served by the inquiries -- ensuring that applicants will be fit practitioners. See Deborah L. Rhode, Moral Character as a Professional Credential, 94 Yale L.J. 491, 582 (1985). As Professor Maher and Dr. Blum state in their article, legal practice is a stressful enterprise, and many persons can benefit professionally from mental health counseling. [I]f there is any wisdom in the choice to inquire at the cost of discouraging treatment, it is penny-wise and pound-foolish because it discourages applicants from taking advantage of opportunities to develop their mental and emotional fitness before they are admitted to the bar. This is a mistake because law practice is stressful, and students need to prepare for the stress of practice, just as they need to prepare for its other demands. Through counseling, students can develop healthy coping strategies that will permit them to deal with the stress of practice. Without adequate preparation, they may resort to unhealthy coping strategies, such as drug or alcohol abuse. Maher & Blum, supra, at 824. - 24 - 01-07533 CONCLUSION For the foregone reasons, the Court should deny the defendants' motion for summary judgment. Respectfully submitted, DEVAL L. PATRICK Assistant Attorney General Civil Rights Division JOHN L. WODATCH JOAN A. MAGAGNA SHEILA M. FORAN KEN S. NAKATA Attorneys U.S. Department of Justice Civil Rights Division Public Access Section P.O. Box 66738 Washington, D.C. 20035-6738 Telephone: (202) 307-6309 RICHARD PARKER Assistant United States Attorney Appearing Per 28 U.S.C. S 517 1101 King Street, Suite 502 Alexandria, VA 22304 Telephone: (703) 706-3700 October 31, 1994 Alexandria, Virginia - 25 - 01-07534 CERTIFICATE OF SERVICE I, the undersigned, attorney for the United States of America, do hereby certify that I have this date served upon the persons listed below, by overnight delivery, true and correct copies of the foregoing Memorandum of the United States as Amicus Curiae in Opposition to Defendants' Motion for Summary Judgment. Victor M. Glasberg, Esq. Victor M. Glasberg & Associates 121 S. Columbus Street Alexandria, VA 22314 Peter R. Messitt Assistant Attorney General Office of the Attorney General 101 North Eighth Street Richmond, VA 23219 SO CERTIFIED this 31st day of October, 1994. KEN S. NAKATA Trial Attorney United States Department of Justice Civil Rights Division Public Access Section P.O. Box 66738 Washington, D.C. 20035-6738 (202) 307-2232 01-07535 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division JULIE ANN CLARK, ) ) Plaintiff, ) ) v. ) CIVIL ACTION NO. 94-211-A ) VIRGINIA BOARD OF BAR EXAMINERS, ) ) Defendant. ) O R D E R For the reasons put forth in the accompanying Memorandum Opinion, it is accordingly ORDERED: (1) that the Virginia Board of Bar Examiners is enjoined from requiring that applicants for admission to the Virginia bar answer Question 20(b) of its "Character and Fitness Questionnaire." The Clerk is directed to send copies of this Order to all counsel of record. February 23rd , 1995 Alexandria, Virginia UNITED STATES DISTRICT JUDGE 01-07536 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division JULIE ANN CLARK, ) ) ) Plaintiff, ) ) v. ) CIVIL ACTION NO. 94-211-A ) VIRGINIA BOARD OF BAR EXAMINERS, ) ) Defendant. ) MEMORANDUM OPINION The issue before the Court is whether a question appearing on the Virginia Board of Bar Examiners' "Applicant's Character and Fitness Questionnaire" addressing an applicant's history of mental or emotional disorders violates the Americans with Disabilities Act, 42 U.S.C. S S 12101 et seq. (1994). Following a preamble explaining that the Virginia Board of Bar Examiners is concerned only with "severe forms of mental or emotional problems," Question 20(b) asks: "Have you within the past five (5) years been treated or counselled for any mental, emotional or nervous disorders?" If Question 20(b) is answered affirmatively, applicants must then give specific treatment information pursuant to Question 21. For the reasons set forth below, the Court finds that Question 20(b) is framed too broadly and violates the Plaintiff's rights under the Americans with Disabilities Act. Accordingly, judgment is entered in favor of the Plaintiff and the Virginia Board of Bar Examiners is enjoined from requiring that future applicants answer Question 20(b). 01-07537 I. FINDINGS OF FACT Plaintiff Julie Ann Clark brings this action against the Virginia Board of Bar Examiners (the "Board") to have Question 20(b) stricken from the Board's "Applicant's Character and Fitness Questionnaire" (the "Questionnaire") because it violates the Americans with Disabilities Act (the "ADA"). The Board maintains that Question 20(b) is posed appropriately and is necessary to identify applicants with mental disabilities that would seriously impair their ability to practice law and protect their clients' interests. The Court, after reviewing the evidence, authorities and arguments of counsel, makes the following findings of fact.1 A. The Parties to the Case Plaintiff Julie Ann Clark, a resident of Virginia, graduated from George Mason University Law School in June of 1993. She is currently employed as a children's program specialist at the Bazelon Center for Mental Health Law. During law school, Ms. Clark worked as a law clerk for the National Senior Citizens' Law _________________ 1 The complicated procedural history of this case is worthy of a brief review: On July 11, 1994, the Court granted Defendants' motion for summary judgment after concluding that the Court lacked subject matter jurisdiction and that Plaintiff lacked standing to bring suit under the ADA. On August 31, 1994, pursuant to a motion to reconsider, the Court vacated the July 11 Order and held that jurisdiction and standing were proper in this case. At that time, the Court struck Plaintiff's request for an injunction requiring the Board to grant her a license to practice law. On November 3, 1994, the Court denied Defendants' second motion for summary judgment with respect to the Board, but granted summary judgment with respect to Defendant W. Scott Street, III. Because of a conflict with the Court's schedule, the case was continued from November 22, 1994 until January 18, 1995, at which time a two-day bench trial was held. 2 01-07538 Center, the American Bar Association Commission on Mental Disabilities, and the law firm of Landsman, Eakes & Laster. Additionally, Ms. Clark worked at various times as a paralegal for Legal Services of Northern Virginia and Virginia Legal Aid, and held several positions at the Loudon County Abused Women's Shelter. Ms. Clark suffers from a condition previously diagnosed as "major depression, recurrent". Plaintiff's Exhibit 68(a).2 Because the details of Ms. Clark's condition were disclosed in an affidavit filed under seal, they are not reviewed here. In an unsealed affidavit, Ms. Clark avers that, as a result of her condition, she "effectively lost much of [her] ability to concentrate, act decisively, sleep properly, orient [her]self, and maintain ordinary social relationships." Pl. Ex. 68(a). This condition, which occurred a few years ago, affected her for thirteen months. The Virginia Board of Bar Examiners, an entity created under the authority of Virginia Code S 54.1-1319 (1994), is responsible for the examination of applicants for licenses to practice law in Virginia. Under Va. Code S 54.1-3925.1(A), the Board must determine, prior to licensing, that each applicant is a "person of honest demeanor and good moral character, is over the age of eighteen and possesses the requisite fitness to perform the obligations and responsibilities of a practicing attorney at ______________________ 2 Herein, Plaintiff's Exhibits are referred to as Pl. Ex. and Defendant's Exhibits are referred to as Def. Ex. 3 01-07539 law." The Board makes this determination "from satisfactory evidence produced by the applicant in such form as the board may require." Id. As a precondition to licensure, the Board requires that applicants answer all of the questions contained in its Questionnaire, including Question 20(b). Pursuant to its authority under Va. Code S 54.1-3922, the Board promulgated rules governing the admission of bar applicants. Section III of these Rules, titled Character Requirements, explains that the burden is on the applicant to produce evidence satisfactory to the Board that he or she possesses the requisite fitness to perform the obligations of a practicing attorney. Def. Ex. 4. The stated purpose of the character and fitness review is to ensure the protection of the public and safeguard the system of justice. Id. The revelation or discovery of characteristics suggesting a lack of fitness to practice law, including evidence of mental or emotional instability, may be treated as cause for further inquiry by the Board.3 Id. The application does not, however, inquire into ________________________ 3 Rule III(2) lists sixteen factors which may be treated as cause for further inquiry by the board, including: (A) commission or conviction of a crime; (B) violation of the honor code of the applicant's college or university, law school, or other academic misconduct; (C) making false statements or omissions, including failing to provide complete and accurate information concerning the applicant's past; (D) misconduct in employment; (E) other than honorable discharge from any branch of the armed service; (F) acts involving dishonesty, fraud, deceit or misrepresentation; (G) abuse of legal process; (H) neglect of financial responsibility; (I) neglect of professional obligations; (J) violation of an order of a court; (K) evidence of mental or emotional instability; (L) evidence of an existing and untreated drug or alcohol dependency; (M) denial of admission to the bar in another jurisdiction on character and fitness grounds; (N) disciplinary action by a lawyer 4 01-07540 physical disabilities which may impair one's ability to practice law. B. Application for Admission to the Virginia State Bar On or about December 13, 1993, Plaintiff completed the Questionnaire and filed it with the Board. Plaintiff declined to answer Questions 20(b) and 21 of the Questionnaire on the grounds that they violated Title II of the ADA.4 Questions 20(b) and 21, and the preamble introducing these questions, read as follows: The Board is required to assess effectively the fitness of each applicant to perform the obligations and responsibilities of a practicing attorney at law. In this regard, a lawyer's chemical dependency or untreated or uncontrolled mental or emotional disorders may result in injury to the public. Questions 20 and 21 request information essential to the Board's assessment. The members of the Board recognize that stress of law school, as well as other life factors, frequently result in applicants seeking psychiatric or psychological counseling. The Board encourages you to obtain counseling or treatment if you believe that you may benefit from it. Because generally only severe forms of mental or emotional problems will trigger an investigation or impact on bar admission decisions, your decision to seek counseling should not be colored by your bar application. . . . disciplinary agency or other professional disciplinary agency of any jurisdiction, including pending, unresolved disciplinary complaints against the applicant; (O) commission of an act constituting the unauthorized practice of law, or unresolved complaints involving allegations of the unauthorized practice of law; (P) any other conduct which reflects adversely upon the character or fitness of an applicant. See Def. Ex. 4. The questions contained in the Questionnaire are designed to illuminate these other characterological factors. ______________________ 4 The parties' arguments are addressed primarily to the propriety of Question 20(b). Question 21 is deemed to violate the ADA only to the extent that it expands upon Question 20(b). Thus, whether Question 21 violates the ADA independently of Question 20(b) is not a question before the Court. Accordingly, the Court will address Questions 20(b) and 21 simultaneously and not as independent issues. 5 01-07541 * * * 20. (b) Have you within the past five (5) years, been treated or counselled for a mental, emotional or nervous disorders? * * * 21. If your answer to question 20 (a), (b) or (c) is yes, complete the following that apply: (a) Dates of treatment or counseling; (b) Name, address and telephone number of attending physician or counselor or other health care provider; (c) Name, address and telephone number of hospital or institution; (d) Describe completely the diagnosis and treatment and the prognosis and provide any other relevant facts. You may attach letters from your treating health professionals if you believe this would be helpful. See Pl. Ex. 1 (emphasis in original). On February 8, 1994, the Board advised Ms. Clark that her refusal to provide relevant information would prevent her from taking the bar examination. Pursuant to agreement of counsel, the Board subsequently agreed to allow Ms. Clark to sit for the February bar examination without answering Questions 20(b) and 21 of the Questionnaire. However, the Board indicated that it would not grant her a license until she completed the Questionnaire. Ms. Clark took the Virginia bar examination on February 22 and 23, 1994 and passed it. She completed all of the application procedures with the exception of answering Questions 20(b) and 21. The Board concedes that, but for her refusal to answer Questions 20(b), it has no reason to believe that Ms. Clark lacks the requisite character and fitness to practice law in Virginia. Pl. Ex. 6. As the only thing preventing Ms. Clark's licensure is 6 01-07542 her refusal to answer Question 20(b), the issue of whether Question 20(b) violates the ADA is properly framed for the Court. C. Application Procedures of the Virginia Board of Bar Examiners Prior to 1994, only non-resident applicants were required to provide mental health information as part of their application to the Virginia bar. These applicants completed the character and fitness questionnaire created by the National Conference of Bar Examiner's (the "NCBE"), which included a broad question on mental health.5 Conversely, resident applicants and those enrolled in Virginia law schools could obtain fitness certification from their local circuit court judge or their law school dean. See Pl. Ex. 5. The procedure for resident applicants included no required disclosure of or inquiry into mental health status or counseling history. For the February 1994 bar examination, the Board modified its practices to conform to Va. Code S 54.1-3925.1, which removed the ability of circuit court judges and law school deans to certify applicants' fitness to practice law. The Board developed a character and fitness questionnaire based in part on the NCBE's questionnaire. The Board modified the mental health question by explaining its purpose, in a preamble to Question 20, and by limiting the scope of inquiry to the last five years. _______________________ 5 Question 28 asked: "Have you ever been treated or counseled for any mental, emotional or nervous disorder or condition?" 7 01-07543 The Board reviews approximately 2,000 applications per year. Because it lacks the resources to review all of these applications in-depth, the Board relies on the self-reporting of verifiable facts to obtain relevant information about each applicant. The Board sends the applications to the NCBE, which prepares a character and fitness report on each applicant. The NCBE verifies all of the answers to the Questionnaire, including Question 20(b). To verify an affirmative answer to Question 20(b), the NCBE inquires from the health care professional disclosed in Question 21 whether the information disclosed is true. After preparation of the character and fitness report, the NCBE returns the applications and verifying information to the Board for reevaluation. Upon receipt from the NCBE, employees of the Board review and mark the applications for items that may be pertinent to applicants' character and fitness, such as convictions, unpaid debts, job terminations, drug or alcohol use, mental health counseling, and institutionalization. See also Footnote 3, supra. The Secretary-Treasurer of the Board, Mr. W. Scott Street, III, reviews the marked applications and decides which should be brought to the attention of the full Board for further examination. Although neither Mr. Street nor any member of the Board has any training in psychiatric or psychological problems, Pl. Ex. 9, the Board assesses the disclosed mental health information to determine whether further investigation is 8 01-07544 warranted. The Board has broad authority to conduct additional hearings to determine an applicant's fitness, and to subpoena witnesses and documents at such hearings. Va. Code SS 54.1- 3925.1 and 3925.3. In the twenty-three years Mr. Street has served as the Secretary-Treasurer, he has never brought to the attention of the Board an application disclosing the mere receipt of treatment or counseling for stress, depression, or marital or adjustment problems. Further, no applicant has been denied the right to sit for the bar examination based on their answer to Question 20(b). In the last five years, forty-seven applicants have answered "yes" to Questions 20(b) or its predecessor, Question 28 of the NCBE's questionnaire. Of these forty-seven applicants, only two cases warranted further inquiry by the Board. In those two cases, the Board asked each applicant to provide letters from current health care providers stating that they were fit to practice law.6 Both applicants provided the requested letters, but, because one applicant failed the bar examination, only one applicant was licensed by the Board. _____________________ 6 One applicant had a bipolar disorder, had attempted suicide, and was voluntarily hospitalized on numerous occasions. The applicant's refusal to take prescribed medications resulted in further institutionalization. Upon receipt of a letter from the health care provider stating that the applicant had gained insight into the nature of the disease, was in compliance with a plan of treatment, and was fit to engage in the practice of law, the applicant was licensed. The second applicant was diagnosed with a manic depressive disorder and refused to acknowledge the existence of the problem. Untreated, the applicant engaged in irrational behavior such as spending money wildly. Although the applicant provided the requested letter attesting to his mental fitness, the applicant failed the bar exam. 9 01-07545 Unlike the practice in some other states, the Board does not grant conditional licenses to practice law. Although licensed attorneys are subject to certain ethical constraints, the Board cannot impose requirements, such as continued counseling or treatment, as a condition to licensing. As the Board lacks any ability to ensure the mental fitness of applicants post- licensure, it must identify and screen out the unfit applicants prior to licensing. The Board avers that Question 20(b) is essential to the identification of such unfit applicants. D. Battle of the Experts Plaintiff maintains that Question 20(b) must be rejected because it is overbroad and is ineffectual in identifying those applicants unfit to practice law. Plaintiff offered the testimony of Dr. Howard V. Zonana, Director of the Law and Psychiatric Division and Professor of Clinical Psychology at the Yale University School of Medicine, to support its contention that there is no correlation between past mental health counseling and fitness to practice law. Dr. Zonana testified that Question 20(b) elicits information that, unlike evidence of past behavior, is unrelated to applicants' present ability to practice law and has little or no predictive value. According to Dr. Zonana, there is little evidence to support the ability of bar examiners, or even mental health professionals, to predict inappropriate or irresponsible future behavior based on a person's history of mental health treatment. Dr. Zonana believes that evidence of past behavior, as elicited by the Board's other 10 01-07546 "characterological" questions, provides the best indicator of an applicant's present ability to function and work.7 See Record at 84-87. The credibility of Dr. Zonana's position is supported by its consistency with the position of the American Psychiatric Association (the "APA"). According to the APA< psychiatric history should not be the subject of applicant inquiry because it is not an accurate predictor of fitness. The APA offers the following guidelines for mental health inquiry by licensing boards, regulatory agencies, and training programs: 1. Prior psychiatric treatment is, per se, not relevant to the question of current impairment. It is not appropriate or informative to ask about past psychiatric treatment except in the context of understanding current functioning. A past history of work impairment, but not simply of past treatment or leaves of absence, may be gathered. 2. The salient concern is always the individual's current capacity to function and/or current impairment. Only information about current impairing disorder affecting the capacity to function as a physician, and which is relevant to present practice, should be disclosed on application forms. Types of impairment may include emotional or mental difficulties, physical illness, or dependency upon alcohol or other drugs. 3. Applicants must be informed of the potential for public disclosure of any information they provide on applications. Pl. Ex. 16. The Guidelines' focus on current ability to _______________________ 7 Unlike mental health questions, "characterological" or "behavioral" questions are those questions which are designed to elicit information about applicants' character from evidence of past behavior (e.g. work experience, military service, academic achievements, etc.). Most of the questions on the Questionnaire are behavioral or characterological in nature. See Pl. Ex. 1. The Court uses the terms "characterological" and "behavioral" interchangeably. 11 01-07547 function, versus prior history of treatment or counseling, echoes the testimony offered by Dr. Zonana. Plaintiff contends that, unlike the guidelines offered by the APA, Question 20(b) is framed to identify mental or emotional illnesses that do not currently affect the applicant. In support of maintaining Question 20(b), the Board offered the testimony of Dr. Charles B. Mutter, a psychiatrist, assistant professor of Psychiatry and Family Medicine at the University of Miami School of Medicine, and member of the Florida Board of Bar Examiners from 1989 to 1993. Dr. Mutter, drafter of a question similar to Question 20(b) included in Florida's bar application, testified that Question 20(b) is appropriate as posed. He stated that attorneys, as protectors of clients' rights and assets, hold a special position of trust with the public which must be safeguarded with mental health pre-screening. Record at 171-72. Further, Dr. Mutter insisted that broad mental health questions are essential for collecting complete information regarding applicants' fitness to practice law. Narrower mental health questions, in Dr. Mutter's view, are inadequate because they allow applicants to filter their responses and provide self- promoting answers. Id. at 177. Dr. Mutter's immoderate position, however, is unsupported by objective evidence and is discordant with a contemporary understanding of mental health questions under the ADA. For one, Dr. Mutter was unable point to any evidence proving a correlation between mental health questions and an inability to practice law. 12 01-07548 Despite this absence of correlative evidence, Dr. Mutter expressed the view that broad psychological pre-screening should be used in other professions, such as medicine, banking, law enforcement, and firefighting. Record 192. Significantly, Dr. Mutter's somewhat extreme advocacy of mental health inquiry is controverted by the official position of the APA, a fact of which Dr. Mutter, an APA member, was unaware. Further, Dr. Mutter's position has been rejected by the Florida Board of Bar Examiners which, pursuant to a settlement agreement in Ellen S. v. Florida Board of Bar Examiners, et al., 94-0429-CIV-KING (S.D. Fla. 1994), struck the mental health question drafted by Dr. Mutter.8 Accordingly, the Court finds that, although both doctors have impressive curricula vitarum, Dr. Zonana's position is more credible and persuasive than that of Dr. Mutter. E. Need for Inquiry into Mental Health The Court accepts that an attorney's uncontrolled and untreated mental or emotional illness may result in injury to clients and the public. This conclusion is supported by the _______________________ 8 Question 29 of the Florida Bar, as drafted by Dr. Mutter, formerly read: a. Have you ever consulted a psychiatrist, psychologist, mental health counselor or medical practitioner for any mental, nervous or emotional condition, drug or alcohol use? b. Have you ever been diagnosed as having a nervous, mental or emotional condition, drug or alcohol problem? c. Have you ever been prescribed psychotropic medication? These inquiries were replaced by a narrower mental health question which is reviewed in footnote 15, infra. 13 01-07549 recent cases of acute mental disability among lawyers which have resulted in license suspensions by the Virginia State Bar. See Def. Ex. 8-15. Dr. Zonana acknowledged that there are many mental illnesses which may adversely affect, or even preclude, a person's ability to practice law. See Record at 48-58. He also indicated that, while responses to behavioral questions are better indicators of mental health, inquiry into an applicant's mental health is necessary for a complete evaluation of their fitness to practice law. Id. at 62-66.9 Thus, it is clear from the facts before the Court that, at some stage in the application proceeding, some form of mental health inquiry is appropriate.10 F. Efficiency of Question 20(b) Assuming that a mental health question is allowed under the ADA, the Court must determine whether Question 20(b) is a permissible mental health inquiry. Although characterological questions elicit useful information about past behaviors likely to shed light on applicants' fitness, the Board insists that it is necessary to probe applicants' mental health with Question ________________________ 9 According to Dr. Zonana, mental health inquiry may be appropriate as a second stage of the application proceedings. Dr. Zonana testified that an applicant's fitness to practice law should be assessed from other characterological inquiries first and, where the results suggest some mental disorder, should be followed up with a second stage of mental health inquiries. Record at 71. 10 While some would suggest that mental health questions might be stricken entirely from bar applications, see e.g. Mary Elizabeth Cisneros, Note, A Proposal to Eliminate Broad Mental Health Inquiries on Bar Examination Applications: Assessing an Applicant's Fitness to Practice Law by Alternate Means, 8 Geo. J. Legal Ethics 401-37 (1995), it is unnecessary for the Court to embrace this position for the disposition of this case. 14 01-07550 20(b). Conversely, Ms. Clark maintains that the question is objectionable because it is intrusive without being effective. According to testimony presented by both Plaintiff and Defendant, approximately twenty percent of the population suffers from some form of mental or emotional disorder at any given time. See Record at 30 and 213-214.11 However, despite reviewing some 2000 applications per year, the Board has received only forty- seven affirmative answers to its mental health questions in the past five years.12 This affirmative response rate, or "hit" rate, of less than one percent is far below the expected rate of twenty percent. The Board has presented no evidence to suggest, nor is there any reason to believe, that bar applicants are not reflective of the general population. Thus, the great discrepancy between the Board's hit rate and the reported percentage of persons suffering from mental impairment indicates ________________________ 11 Dr. Zonana, relying on a study by Drs. Darrel A. Regier and William E. Narrow, The de Facto U.S. Mental and Addictive Disorders Service System, 50 Arch. of Gen. Psych. 85-94 (1993), testified that approximately twenty-two percent of the population suffers from some form of mental or emotional disorder at any given time. Record at 30. Similarly, Dr. Mutter offered two estimates, placing the figure between seventeen and twenty-five percent. Id. at 213- 214. 12 Notwithstanding its receipt of 47 affirmative responses, the Board has never denied a license on the basis of prior mental health counseling. Plaintiff's Exhibit 5. Although the Virginia State Bar has suspended attorneys for mental disability, see Defendant's Exs. 8-15, the Board is unable to point to a single instance where an affirmative answer to Question 20(b) has prevented licensure. Thus, Question 20(b) has failed to serve its purpose of preventing the licensure of applicants lacking the fitness to practice law. 15 01-07551 that Question 20(b) is ineffective in identifying applicants suffering from mental illness. Notwithstanding its receipt of forty-seven affirmative responses, the Board has never denied a license on the basis of prior mental health counseling. Pl. Ex. 5. Although the Virginia State Bar has suspended attorneys for mental disability, see Def. Ex. 8-15, the Board is unable to point to a single instance where an affirmative answer to Question 20(b) has prevented licensure. Thus, based on the Board's own experience, Question 20(b) has failed to serve its purpose of preventing the licensure of applicants lacking the fitness to practice law. G. Deterrent Effect In addition to being ineffectual, Plaintiff argues that Question 20(b) has a deterrent effect which inhibits applicants from getting necessary mental health counseling or treatment. Plaintiff presented the deposition testimony of Dean Paul M. Marcus, Acting Dean and Professor of Law at the Marshall-Wythe School of Law at the College of William and Mary, and Philip P. Frickey, Professor of Law at the University of Minnesota Law School, on the deterrent effect of broad mental health questions, like Question 20(b). Drawing on his experience counseling law students as both a teacher and administrator, Dean Marcus concluded that questions such as Question 20(b) deter law students from seeking counseling or treatment from which they might otherwise benefit. Similarly, Professor Frickey stated that broad mental health questions like Question 20(b) have a 16 01-07552 strong negative effect upon many law students, often discouraging them from seeking beneficial mental health counseling. Pl. Ex. 69. The declarations of Messrs. Marcus and Frickey were echoed by the testimony of Drs. Zonana and Mutter, both of whom acknowledged the deterrent effect of broad mental health questions. Record at 43-44, 75, 232-33. The Board tacitly acknowledges this danger when, in its preamble to Question 20, it warns "your decision to seek counseling should not be colored by your bar application." While the Board's warning may be intended to assuage applicants' fears, it is uncertain that applicants, intimidated by the bar application process, heed such advice. Additionally, broad mental health questions may inhibit the treatment of applicants who do seek counseling. Faced with the knowledge that one's treating physician may be required to disclose diagnosis and treatment information, an applicant may be less than totally candid with their therapist.13 Without full disclosure of a patient's condition, physicians are restricted in their ability to accurately diagnose and treat the patient. Thus, it is possible that open-ended mental health inquiries may prevent the very treatment which, if given, would help control the applicant's condition and make the practice of law possible. _________________________ 13 The Court recognizes that the "Applicant's Character and Fitness and Questionnaire" remains confidential and is not available to the public. Va. Code S 54.1-108(2). However, as the Board is made up of practicing attorneys, applicants may be reluctant to disclose mental or emotional problems to a group who, at some level, comprise the applicants' peers and colleagues. 17 01-07553 H. Data from other Jurisdictions and Authorities 14 The imposition of mental health questions like Question 20(b) is not unique to Virginia. All fifty states and the District of Columbia have moral character qualifications which applicants are required to demonstrate as a condition of admission to the bar. Not all of these jurisdictions inquire into applicants' mental health, however, and many states inquire only into hospitalization or institutionalization for mental illness. The various approaches of the bar examiners in the other forty-nine states' can be broken down as follows: * Two (2) states, Arizona and Massachusetts ask no mental health questions; * Five (5) states have recently stricken their mental health questions. These include: Hawaii, Illinois, New Mexico, Pennsylvania and Utah.15 __________________ 14 The Court takes judicial notice of the information contained in this section. Although most of this data was supplied by the parties, some data was supplied by disinterested third- parties. This information is included merely to frame Question 20(b) vis-a-vis other states' mental health inquiries, and is not a factor in evaluating the propriety of Question 20(b). 15 These states formerly asked: Hawaii ("37. During the past ten (10) years, have you ever been treated for any mental, emotional or nervous disorders? 38. Have you ever been voluntarily or involuntarily committed to an institution for mental, emotional or nervous disorders?"); Illinois ("11.j. During the past ten years, have you been treated or counseled for any mental, emotional, nervous, or behavioral disorder or condition? 11.k. During the last ten years, have you voluntarily entered or been involuntarily admitted to an institution for treatment of a mental, emotional, nervous, or behavioral disorder or condition . . . ?"); New Mexico ("18. Have you ever been a patient in any sanitarium, hospital or mental institution for the treatment of a mental illness?"); Pennsylvania ("B. Mental Impairments: Mental Retardation, Emotional Illness, Specific Learning disabilities, other (specify). Describe your disability below. In addition, please provide documentation on the attached corresponding form from your treating physician(s) or therapist(s) 18 01-07554 * Ten (10) states and the District of Columbia ask only about hospitalization or institutionalization for mental impairment or illness. The states include: California, Georgia, Iowa, Kansas, Louisiana, Montana, New Hampshire, New Jersey, South Dakota, and Vermont.16 of your diagnosis and prognosis, date of onset, and current mental condition, based on an examination conducted within the past year."); and Utah ("15. Have you ever been a patient in any sanitarium, hospital or mental institution for the treatment of a mental illness? 21. Have you ever been adjudicated an incompetent person, an insane person or a lunatic by any court?"). _________________ 16 California ("13.8. In the last two years, have you ever voluntarily entered or been involuntarily admitted to an institution for treatment of a mental, emotional or nervous disorder/condition . . . ? 13.9. In the last two years, have you ever been adjudged an incompetent or a conservatee, or have any proceedings ever been brought against you for such purpose?"); District of Columbia ("26. During the past five years have you voluntarily entered or been involuntarily admitted to an institution for treatment of a mental, emotional, or nervous disorder or condition?"); Georgia ("30. Have you been admitted to a hospital or other health care facility for treatment of any mental or emotional illness within the last five years? 31. Have you ever been declared legally incompetent?"); Iowa ("38. Have you ever been adjudicated a mentally-ill, mentally-impaired, or mentally-incapacitated person, or been committed to a hospital or institution for treatment of a mental, emotional, or nervous disorder?"); Kansas ("15.c. Have you ever been hospitalized or institutionalized for reasons of mental health? 15.d. Have you ever been adjudged a mentally incapacitated or disabled person or placed under guardianship or conservatorship, or declared a ward of the Court, for any reason?"); Louisiana ("20. Have you ever been hospitalized in either a private or public institution because of any mental condition of disorder?"); Montana ("9. Have you ever been a patient in a sanitarium, hospital, or mental institution for the treatment of a mental illness?"); New Hampshire ("11. Are you now or have you ever been a party to any suit in equity, action at law, suit in bankruptcy or other statutory proceeding, matter in probate, incompetency, guardianship, or any other civil judicial or administrative proceeding of any kind?"); New Jersey ("XIV. Have you, since your last Statement to the Committee, been: Hospitalized or institutionalized for the treatment of emotional, mental or nervous disorders?"); South Dakota ("15.(b) Have you ever been declared a ward of any court, or adjudged an incompetent, or a conservatee, or have any proceedings ever been brought for such purposes, or have you ever been committed to any institution?"); and Vermont ("Have you ever been a voluntary or involuntary patient at a sanitarium, hospital or institution for the treatment of mental illness? Have you ever been adjudged to be insane or an 19 01-07555 * Thirty-two (32) states ask broad questions concerning treatment or counseling for mental and emotional disorder or illness. These thirty-two states are further divided into two groups: * One (1) state, Arkansas limits inquiry to continuous treatment for mental or emotional disorder.17 * Thirteen (13) states limit their question to specific diagnoses or ask applicants if they have any mental disorder which they believe will affect their ability to practice law. This group includes: Alabama, Alaska, Connecticut, Delaware, Florida, Idaho, Maine, Maryland, Minnesota, New York, Rhode Island, Texas, and Washington.18 incompetent person by any court?"). ___________________ 17 Arkansas ("9.(f). Are you now or have you ever suffered from or been treated for any mental illness which resulted in hospitalization or institutionalization, or required continuous treatment for a period of one (1) year or more?"). 18 Alabama ("43.(a) In the past 5 years, have you received treatment for a serious nervous, emotional or mental illness which would adversely impact upon your ability to practice law?"); Alaska ("18. Have you ever had any disability or undergone treatment for any health problem that may have a bearing on your fitness to practice law (e.g. alcoholism or mental illness)?"); Connecticut ("Since you became a law student, have you ever had an emotional disturbance, mental illness or physical illness which has impaired your ability to practice law or to function as a student of law?"); Delaware ("28.a. At any time during the last ten years have you been diagnosed as having, or received treatment for, any of the following: bipolar or major depressive mood disorder, schizophrenia, paranoia or other psychotic disorder, kleptomania, pathological or compulsive gambling, pedophilia or exhibitionism? b. Do you currently (as hereinafter defined) have a mental health condition (not reported above) which in any way impairs or limits, or if untreated could impair or limit, your ability to practice law in a competent and professional manner? . . . 'Currently' means any time which is recent enough that it could have an impact on your ability to function as an attorney."); Florida ("27.a. During the last ten (10) years, have you been hospitalized or have you consulted a professional or have you received treatment or a diagnosis from a professional for any of the following: Schizophrenia or any other psychotic disorder, Bipolar or Major Depressive mood disorder, Antisocial Personality disorder, drug or alcohol abuse, Kleptomania, Pathological or Compulsive Gambling, Pedophilia, Exhibitionism, Voyeurism? 27. b. Do you currently (as hereinafter defined) have a mental health condition (not reported above) which in any way impairs or limits, or if untreated could 20 01-07556 * Eighteen (18) states which ask broad mental health questions like Question 20(b). These include: Colorado, Indiana, Kentucky, Michigan, Mississippi, Missouri, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, Tennessee, West Virginia, Wisconsin and Wyoming.19 impair or limit, your ability to practice law in a competent and professional manner? . . . 'Currently' means recently enough so that the condition may have an ongoing impact on one's functioning as a licensed attorney."); Idaho ("32. Have you ever had any mental health condition which might impair your ability to engage in the practice of law?"); Maine ("32. Have you ever been diagnosed or treated for the following conditions or disorders, or do you currently suffer from any of the following conditions or disorders: A. Pedophilia, exhibitionism, or other sexual behavior disorder that may affect your interaction with the public; B. Compulsive gambling, kleptomania, or pyromania. . . ."); Maryland ("17. Have there been any circumstances or unfavorable incidents in your life, whether in school, college, law school, business or otherwise, which may have a bearing upon your character or your fitness to practice law, not called for by the questions contained in this questionnaire or disclosed in your answers? If so, give full details, including any assertions or implications of dishonesty, misconduct, misrepresentation, mental or emotional disability, financial irresponsibility, and disciplinary measures imposed (if any) by attaching a supplemental statement."); Minnesota ("4.28. Do you have, or have you had in the past 2 years, a mental illness, an emotional condition or a learning disability which in any way impairs or limits your ability to practice law?"); New York ("Attachment A. (1) Do you have any physical, mental or emotional condition that could adversely effect your capability to practice law?"); Rhode Island ("29(b) Are you now or have you within the past five (5) years been diagnosed as having or received treatment for an emotional disturbance, nervous or mental disorder, which condition would impair your ability to practice law?"); Texas ("11.a. Within the last ten (10) years, have you been diagnosed with or have you been treated for bi-polar disorder, schizophrenia, paranoia, or any other psychotic disorder?"); and Washington ("I. Have you ever experienced, or undergone treatment for any psychiatric problem, or for alcohol or drug dependency during the past five years, that would interfere with your ability to practice law?"). _____________________ 19 Colorado ("39. During the last ten years, have you ever received a diagnosis, or treatment for, a mental, emotional, or nervous disorder?"); Indiana ("25. From the age of 16 years to the present, have you been treated for any mental, emotional or nervous disorder?"); Kentucky ("21. Have you ever been diagnosed or received regular treatment for amnesia, emotional disturbance, nervous or mental disorder?"); Michigan ("51.a. Have you ever had 21 01-07557 In the wake of the passage of the ADA, which became effective for public entities in January 1992, the inclusion of mental health questions on bar applications has gained new a mental illness, meaning a substantial disorder of thought or mood which significantly impaired your judgment, behavior, capacity to recognize reality, or ability to cope with ordinary demands of life, to such an extent that you required care and treatment for your own welfare or the welfare of others or of the community?"); Mississippi ("27. Have you suffered any type of psychiatric or psychological disorder which required treatment including hospitalization and/or the prescription of anti-psychotic medication?"); Missouri ("24. During the last ten years or during the period since you attained age 18 (whichever time is shorter), have you ever been treated or counseled for any mental, emotional or nervous disorder or illness?"); Nebraska ("17. Have you ever been treated or counseled for any mental, emotional or nervous disorder or condition?"); Nevada ("44. Have you ever been treated for mental or emotional illness, disease, incapacity or disorder of any kind or nature, or have you ever been committed to any institution, sanatorium or hospital for the treatment of such condition?"); North Carolina ("24.a. Have you ever received diagnosis of amnesia, or any form of insanity, emotional disturbance, nervous or mental disorder? 24.b. Have you ever received REGULAR treatment for amnesia, or any form of insanity, emotional disturbance, nervous or mental disorder?"); North Dakota ("28. Have you ever been treated or counseled for any mental, emotional or nervous disorder or condition?"); Ohio ("20.b. Have you ever been treated or counseled for any mental, emotional or nervous disorders?"); Oklahoma ("24. Have you ever been diagnosed or received treatment for any form of mental disorder, suffered from any mental illness, or been declared incompetent?"); Oregon ("13.n. During the past 7 years, have you received mental health counseling or treatment for symptoms or a condition that affected your ability to function on a day-to-day basis?"); South Carolina ("19.d. Have you ever received treatment for amnesia, or any form of insanity, emotional disturbance, or mental disorder?"); Tennessee ("13.b. During the past ten (10) years, have you ever been treated for any mental, emotional or nervous disorder?"); West Virginia ("50.a. Have you ever had a mental illness, meaning a substantial disorder of thought or mood which significantly impaired your judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life, to such extent that you required care and treatment for your own welfare or the welfare of others or the community?"); Wisconsin ("29. Have you been treated for any mental illness or severe emotional disturbance during the past five years?"); and Wyoming ("28. Have you ever been treated or counseled for any mental, emotional or nervous disorder or condition?"). 22 01-07558 significance. At least eight states, including Connecticut, Florida, Maine, Minnesota, New York, Pennsylvania, Rhode Island and Texas, have recently altered their mental health questions in light of potential or actual litigation under the ADA. The changes in these states are reflected in similar adjustments in the policies of the American Bar Association ("ABA") and the NCBE, two leading national legal organizations. In August 1994, the House of Delegates of the American Bar Association ("ABA") adopted a recommendation that: when making character and fitness determinations for the purpose of bar admission, state and territorial bar examiners, in carrying out their responsibilities to the public to admit only qualified applicants worthy of the public trust, should consider the privacy concerns of bar admission applicants, tailor questions concerning mental health and treatment narrowly in order to elicit information about current fitness to practice law, and take steps to ensure that their processes do not discourage those who would benefit from seeking professional assistance with personal problems and issues of mental health from doing so. Proposal 110, A.B.A. House of Delegates (August 9, 1994). While not the most strongly worded admonition, the resolution represents an acknowledgement of the changing atmosphere under the ADA. Recently, the NCBE has acted to change the mental health questions on its character and fitness questionnaire. Formerly, questions 28 and 29 of the NCBE's character and fitness application asked, respectively: "Have you ever been treated or counseled for any mental, emotional or nervous disorder or condition?" and "Have you ever voluntarily entered or been involuntarily admitted to an institution for treatment of a 23 01-07559 mental, emotional or nervous disorder or condition?" These questions formed the basis for many states' mental health questions, including Virginia. As of February 17, 1995, the NCBE altered its mental health questions to limit their scope and to more sharply focus on chronic mental conditions which affect the ability to practice law.20 While the actions of the NCBE and ABA are not binding on the states, they signify the substantial impact the ADA is having on the formulation of mental health inquiries. II. CONCLUSIONS OF LAW Title II of the Americans with Disabilities Act prohibits discrimination against disabled persons by public entities. 42 U.S.C. SS 12101 et seq. (1994). It 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 subject to discrimination by such entity." 42 U.S.C. S 12132. A "public entity" is defined as "any department, agency . . . or other instrumentality of a State . . . government." 42 U.S.C. S 12131(B). The Virginia Board of Bar Examiners concedes that it is a public agency within this definition. A "qualified individual with a disability" is defined as "[a]n individual with a disability who, with or without ____________________ 20 Although NCBE President Erica Moeser indicated that these changes have been approved by the NCBE, the new questions were not available in final form at the time of this opinion. Ms. Moeser expected the NCBE to distribute the new questions in early March, 1995. 24 01-07560 reasonable modification to rules, policies, or practices . . . meets the essential eligibility requirements for the receipt of services or participation in programs or activities provided by the public entity." 42 U.S.C. S 12111(8). Under regulations promulgated by the Department of Justice, pursuant to 42 U.S.C. S 12134, "disability" is further defined as "a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such impairment; or being regarded as having such an impairment." 28 C.F.R. S 35.104. "Major life activities" include "functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." Id. The Court finds, based on the affidavit Plaintiff filed under seal, that Ms. Clark is a person with a disability or, alternatively, a person with a past record of impairment within the meaning of the ADA. 42 U.S.C. S 12102(2); 28 C.F.R. S 35.104. Further, Ms. Clark has shown that she can meet the essential eligibility requirements of practicing law and is "a qualified person with a disability" under the ADA. 42 U.S.C. S 12131(2); 28 C.F.R. S 35.104. While Defendant argues that Ms. Clark is not an "otherwise qualified individual" because she failed to answer Question 20(b), this argument begs the question of whether Question 20(b) must be answered at all. An applicant may not meet the essential eligibility requirements, however, where they "pose[} a direct threat to the health or safety of others." 28 C.F.R. pt. 35, app. A at 446. A 25 01-07561 determination that a person poses a "direct threat"21 must be based not on generalizations or stereotypes, but on: an individualized assessment, based on reasonable judgment that relies on current medical evidence or on the best available objective evidence to determine: the nature, duration, and severity of the risk; the probability that potential injury will actually occur; and whether reasonable modification of policies, practices and procedures will mitigate the risk. Id. at 446. The Board has presented no evidence to suggest that all or most of the applicants answering Question 20(b) affirmatively threaten the health or safety of the public. Nor is there any evidence that the Board engaged in any individualized assessment in formulating Question 20(b) as called for by 28 C.F.R. pt. 35, app. A at 446. Absent a showing that Ms. Clark would pose a direct threat to the health or safety of others, the Court finds that Ms. Clark meets all of the "essential eligibility requirements" for admission to the bar of the Commonwealth of Virginia. In addition to the general provisions of Title II, public entities are specifically prohibited from acting discriminatorily in administering licensing programs. 28 C.F.R. S 35.130(6). This regulation provides: A public entity may not administer a licensing or certification program in a manner that subjects qualified individuals with disabilities to discrimination on the basis of disability, nor may a public entity establish requirements for the programs or activities of licensees or certified entities that 21 Defined as a "significant risk to the health or safety of others that cannot be eliminated by modification of policies, practices, or procedures, or by the provision of auxiliary aids or services." 28 C.F.R. pt. 35, app. A at 446. 26 01-07562 subject qualified individuals with disabilities to discrimination on the basis of disability. . . . 28 C.F.R. S 35.130(6). Further, 28 C.F.R. S 35.130(8) forbids a public entity from: impos[ing] or apply[ing] eligibility criteria that screen out or tend to screen out any individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program or activity being offered. Id. As a public licensing agency, the Board must comply with the strict requirements of 28 C.F.R. SS 35.130(6) and (8) in probing applicants' mental health histories. In assessing the propriety of Question 20(b), the Court is faced with two issues: (1) whether the Board has established requirements or imposed eligibility criteria that subject qualified individuals to discrimination on the basis of their disability, and (2) whether such requirements or criteria are necessary to the Board's licensing function. A. Question 20(b) Subjects Qualified Individuals with a Disability to Discrimination on the Basis of that Disability To find a violation of the ADA, the Court first must determine whether the Board, in posing Question 20(b), subjects persons with disabilities to discrimination on the basis of their disability. While it not clear that Question 20(b) "screens out" potential applicants, it is clear that Question 20(b) imposes an additional burden on applicants with disabilities to satisfy additional eligibility criteria. See Ellen S. v. Florida Board of Bar Examiners, 859 F. Supp. 1489, 1494 (S.D. Fla. 1994) 27 01-07563 (Florida's mental health questions "discriminate against Plaintiffs by subjecting them to additional burdens based on their disability."); Medical Society of New Jersey v. Jacobs, 1993 WL 413016, *7 (D. N.J. 1993) (mental health questions imposed extra burdens on qualified persons with disabilities in violation of ADA); In re Applications of Underwood and Plano, No. BAR-93-21, 1993 WL 649283 at *2 (Me. Dec. 7, 1993) (requirement that applicants answer mental health questions discriminates on the bases of disability and imposes eligibility criteria that unnecessarily screen out individuals with disabilities). Unlike other applicants, those with mental disabilities are required to subject themselves to further inquiry and scrutiny. The Court finds that this additional burden discriminates against those with mental disabilities. Thus, to avoid violating the ADA, the Board must show that Question 20(b) is necessary to the performance of its licensing function. B. Necessity of Imposing Question 20(b) "The practice of law is not a matter of grace, but of right for one who is qualified by his learning and his moral character." Baird v. State Bar of Arizona, 401 U.S. 1, 8 (1971). It is generally accepted that a state can set high standards of qualification and, to this end, may investigate an applicant's character and fitness to practice law. See Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232, 239 (1957); Martin- Triona v. Underwood, 529 F.2d 33, 38 (7th Cir. 1975); Hawkins v. Moss, 503 F.2d 1171, 1175 (4th Cir. 1974). It is equally clear 28 01-07564 that all states have set qualifications of moral character as preconditions for admission to the practice of law, with the burden of demonstrating good character borne by the applicant. See Konigsberg v. State Bar of California, 366 U.S. 36, 41 n.4 (1961). While the Board's broad authority to set licensing qualifications is well established, such authority is subject to the requirements of the ADA. 1. Duty to assess the character and fitness of applicants The Board is charged with a statutory duty to find, prior to licensure, that each applicant has the "requisite fitness to perform the obligations and responsibilities of a practicing attorney at law." Va. Code S 54.1-3925.1. As part of this duty, the Board must identify those people who suffer from mental conditions which would severely affect or impair their ability to practice law. The Board contends that, in fulfilling this duty, it is necessary to ask Question 20(b) to uncover all of the skeletons hidden in each applicant's psychological closet. Further, the Board opines that its ability to investigate applicants' character and fitness is limited by inadequate resources and time constraints. According to the Board, Question 20(b) is necessary because it enables the Board to identify potentially unfit applicants with the limited resources and time available to it. While the Court recognizes that the Board has limited resources with which to discharge its duty under Va. Code S 54.1-3925.1, 29 01-07565 the Court finds such limitations do not make Question 20(b) "necessary" under the ADA. 2. Decisions in other jurisdictions Other courts, considering broad mental health questions similar to Question 20(b), have concluded that such inquiries would violate Title II of the ADA. See Ellen S., 859 F. Supp. at 1494 (court stated, in dicta, that licensing board's broad inquiry into applicants' mental health would violate Title II);22 Medical Society of New Jersey, 1993 WL 413016 (court concluded, in dicta, that licensing agency's question "have you ever suffered or been treated for any mental illness or psychiatric problem" violates ADA); Underwood, No. BAR-93-21, 1993 WL 649283 at *2 (bar examiner's inquiry into diagnosis and treatment for emotional, nervous or mental disorders, and accompanying medical authorization form, violates ADA).23 "Although it is certainly permissible for the Board of Bar Examiners to fashion other questions more directly related to behavior that can affect the practice of law without violating the ADA, the questions and __________________ 22 The Ellen S. court considered the mental health questions reviewed in footnote 8, supra. See 859 F. Supp. at 1491 n.1. These questions, originally drafted by Dr. Charles Mutter, were stricken by the Florida Board of Bar Examiners as part of a settlement of the Ellen S. litigation. Florida's revised mental health questions appear in footnote 18, supra. 23 The Underwood court considered questions 29 and 30 of the Maine bar application which asked, respectively: "Have you ever received diagnosis of an emotional, nervous or mental disorder?" and "Within the ten (10) year period prior to the date of this application, have you ever received treatment of emotional, nervous or mental disorder?" As a result of the Underwood litigation, the Maine Board of Bar Examiners revised its mental health inquiry. The new questions are reviewed at footnote 18, supra. 30 01-07566 medical authorization objected to here are contrary to the ADA" Underwood, 1993 WL 649283 at *2 (emphasis in original). While not binding authority, these cases offer persuasive guidance in the evaluation of Question 20(b) under the ADA. In support of maintaining Question 20(b), the Board relies on Applicants v. Texas State Board of Bar Examiners, No. 93 CA 74OSS (W.D. Tex. October 10, 1994), which upheld the right of the Texas Board of Bar Examiners to inquire into an applicant's mental history. Unlike Question 20(b), however, the questions considered in Texas State Board of Bar Examiners were addressed only to specific behavioral disorders found relevant to the practice of law.24 Further, the Texas State Board of Bar Examiners court noted that the mental health question used by the Texas Board of Bar Examiners before 1992, which asked "[h]ave you within the last ten (10) years . . . [b]een examined or treated for any mental, emotional or nervous conditions," was "revised . . . to comply with the ADA." Id. at 4. Hence, the Texas State ________________________ 24 The Texas State Board of Bar Examiners court reviewed question 11 of the bar application which asked: (a) Within the last ten years, have you been diagnosed with or have you been treated [for] bipolar disorder, schizophrenia, paranoia, or any other psychotic disorder? (b) Have you, since attaining the age or eighteen or within the last ten years, whichever is shorter, been admitted to a hospital or other facility for the treatment of bipolar disorder, schizophrenia, paranoia, or any other psychotic disorder? The Texas State Board of Bar Examiners court concluded that these inquiries did not violate the ADA because they narrowly addressed only those disorders relevant to the practice of law. Id. at 24. 31 01-07567 Board of Bar Examiners decision has limited application and does not support the breadth of inquiry posed by the Board.25 Hence, recent decisions in other jurisdictions support the conclusion that the ADA restricts licensing boards' freedom to inquire into mental health background. Even Texas State Board of Bar Examiners, which upheld the Texas bar examiners' mental health inquiry, indicates that a broader mental health inquiry might violate the ADA. Consequently, the Board's position that Question 20(b) is necessary to the performance of its licensing function is unsupported by any of the cases which have addressed this issue. 3. Other mental health questions insufficient The Board avers that Question 20(b) is necessary because a more restricted mental health question would be ineffective in identifying the characteristics necessary for a determination of applicant fitness. The Board maintains that a narrower question, however posed, would be underinclusive. According to the Board, a mental health question limited to certain listed diagnoses would be incomplete because it would fail to include non-diagnosed applicants or those with unlisted diagnoses. Further, a list-based question would be inadequate because of the impossibility of creating a comprehensive list of ______________________ 25 The United States, appearing before the Court as amicus curiae, argues that the Texas State Board of Law Examiners decision is wrong to the extent that it allowed even limited inquiry into "severe" mental disabilities. The United States argues that the diagnoses listed are unnecessary classifications that violate title II of the ADA. However, as this issue is not properly before the court, it is unnecessary to reach the merits of such an argument. 32 01-07568 diagnoses. See 28 C.F.R. pt. 35, App. A at 443 ("It is not possible to include a list of all of the specific conditions . . . that would constitute . . . mental impairments because of the difficulty of ensuring the comprehensiveness of such a list."); see also Record at 57-59, 68 (testimony of Dr. Zonana that more than thirty mental disorders exist and admitting that a question listing diagnoses would not be a good solution). Similarly, the Board objects to questions which yield to applicants the determination of whether a mental or emotional condition would affect their fitness to practice law.26 The Board argues that placing this determination with the applicant allows them to certify their own fitness. A broad mental health question, however, prevents the self-filtering or self-promotion applicants might otherwise exercise in answering such questions. Record at 177. Because a more limited question would be either incomplete or overly yielding, the Board insists that Question 20(b) is necessary to fulfill its duty of assessing applicants' fitness to practice law. The Defendant's argument, however, lacks objective support and does not justify the imposition of Question 20(b). As Question 20(b) has been unsuccessful in identifying applicants with mental disabilities, it is difficult to imagine other mental health questions, however posed, being more ineffectual. Even if _____________________ 26 For example, Alaska asks: "Have you ever had any disability or undergone treatment for any health problem that may have a bearing on your fitness to practice law? (e.g. alcoholism or mental illness)." See e.g. Footnote 18, supra. 33 01-07569 Question 20(b) were better at eliciting mental health information, a fact the Board fails to prove, this would not compel the Court to find that Question 20(b) is "necessary" under the ADA. Thus, the Board's argument can be rejected as unsupported factually and unpersuasive legally. 4. Deterrent and stigmatic effect Ms. Clark argues that Question 20(b) is objectionable because it is overinclusive and has adverse deterrent and stigmatic effects. According to Plaintiff, Question 20(b) is overbroad in that it burdens mentally disabled applicants without effectively identifying those applicants who are unfit to practice law. Further, the imposition of Question 20(b) has the adverse effect of deterring mental health treatment and stigmatizing those who do seek treatment. Plaintiff avers that Question 20(b), while burdening all mentally disabled applicants, offers no marginal utility over the other behavioral questions posed on the Questionnaire. Neither the Board nor its expert, Dr. Mutter, presented any evidence of correlation between positive answers to Question 20(b) and otherwise undisclosed mental illnesses. The extremely small number of applicants answering Question 20(b) affirmatively, compared with the comparatively large percentage of the population suffering from mental illnesses at any given time, attests to the practical ineffectiveness Question 20(b). The only corollary evidence presented by the Board was the "anecdotal study of applications which discussed issues 34 01-07570 pertaining to mental health" of Mr. James P. Newes, an employee of the Minnesota Board of Law Examiners. Newes Dep. at 9. Mr. Newes found nine cases in which positive answers to Minnesota's mental health question revealed information which otherwise would have remained hidden. However, the results of the Newes study alone cannot be extrapolated to provide substantive support for the effectiveness of Question 20(b). For one, much of the extreme behavior of the nine study cases would have been revealed by the characterological questions contained in the Board's Questionnaire.27 Further, Newes' survey pool is too small to support broad generalizations regarding the effectiveness of mental health questions. Hence, the Newes study offers little support for the proposition that, but for Question 20(b), the Board would be unable to identify applicants with mental disabilities so severe that they are unfit to practice law. Conversely, Plaintiff presented considerable evidence of the stigmatizing and inhibiting effect of broad mental health questions. The imposition of Question 20(b) both amplifies the stigmatization of disabled persons and, at the same time, deters the counseling and treatment from which such persons could benefit. Requiring applicants to answer Question 20(b), especially considered in relation to the preceding and succeeding ___________________ 27 Five of the applicants had been hospitalized or institutionalized because of mental problems or alcohol abuse; two suffered from alcohol or drug abuse; and one was involved in a shooting and spent time in jail as a result. This information would have been revealed by truthful answers to the characterological questions on the Board's Questionnaire, even excluding Question 20(b). 35 01-07571 questions regarding drug or alcohol addiction and hospitalization for mental illness, suggests that those answering affirmatively are somehow deficient or inferior applicants. Further, by the admission of Mr. Street, Question 20(b) may be overbroad in that it elicits unnecessary and unintended mental health information. Record at 165. In addition to being overbroad, there is ample support, from the testimony of Drs. Zonana and Mutter, Dean Marcus, and Professor Frickey, for the conclusion that Question 20(b) deters applicants from seeking mental health counseling from which they might otherwise benefit. Thus, it is apparent that the costs of administering Question 20(b) are not justified by the insignificant results it achieves. III. CONCLUSION On the basis of the record produced at trial, the Court easily reaches the conclusion that question 20(b) is too broad and should be rewritten to achieve the Board's objective of protecting the public. Question 20(b)'s broadly worded mental health question discriminates against disabled applicants by imposing additional eligibility criteria. While certain severe mental or emotional disorders may pose a direct threat to public safety, the Board has made no individualized finding that obtaining evidence of mental health counseling or treatment is effective in guarding against this threat. In fact, the Board presented no evidence of correlation between obtaining mental counseling and employment dysfunction. 36 01-07572 Question 20(b), while offering little marginal utility in identifying unfit applicants, has strong negative stigmatic and deterrent effects upon applicants. Both Drs. Zonana and Mutter acknowledged this deterrent effect and testified that past behavior is the best predictor of present and future mental fitness. Thus, the Board has failed to show that Question 20(b) is necessary to the performance of its duty to license only fit bar applicants. As the Court's job in this case is to decide whether 20(b) complies with the ADA, not to draft a question that would comply with the ADA, the Court will refran from offering any dictum guidance. The imposition of Question 20(b) by the Board violates the ADA. 42 U.S.C. S 12132; 28 C.F.R. SS 35.130(6) and (8). While the licensure of attorneys implicates issues of public safety, the Board has failed to show that Question 20(b), as posed, is necessary to the Board's performance of its licensing function. Accordingly, judgment is entered for the Plaintiff and the Virginia Board of Bar Examiners is enjoined from requiring that future applicants answer Question 20(b) of the Questionnaire. An appropriate Order shall issue. February 23rd, 1995 Alexandria, Virginia UNITED STATES DISTRICT JUDGE 37 01-07573 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Alexandria Division JULIE ANN CLARK : Plaintiff, : v. : VIRGINIA BOARD OF BAR EXAMINERS : : C.A. # 94-211-A and : W. SCOTT STREET, III, Secretary : Virginia Board of Bar Examiners : Defendants. : MEMORANDUM OF THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF'S NOTICE AND MOTION TO ALTER JUDGMENT 01-07574 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES...................................................... ii I. INTRODUCTION...................................................... 1 II. ARGUMENT: A. THIS COURT HAS JURISDICTION BECAUSE PLAINTIFF CLARK CHALLENGES GENERAL RULES AND REGULATIONS GOVERNING ADMISSION TO THE BAR...................................... 2 B. THIS CASE SHOULD NOT BE DISMISSED FOR LACK OF STANDING .......................................... 8 1. Ms. Clark Has Standing To Sue Even If She Does Not Have A Disability ........................................ 9 2. This Court Incorrectly Concluded That Ms. Clark Is Not A Person With A Disability ................................ 15 a. The Evidence Supports Ms. Clark's Claim That She Has A Record Of A Disability ............................... 17 b. The Record May Support The Conclusion That The Board Regards Ms. Clark As Disabled ................................. 22 III. CONCLUSION ....................................................... 24 -i- 01-07575 TABLE OF AUTHORITIES CASES: PAGE Addington v. Texas, 441 U.S. 418 (1979) ................................. 11 Arlington Heights v. Metropolis Housing Development Corp., 429 U.S. 252 (1977) ............................................. 12 Bailey v. Board of Law Examiners, 508 F. Supp. 106 (W.D. Tex. 1980) ....................................................... 8 Barnard v. Thorstenn, 489 U.S. 546 (1989) ................................ 6 Branch Bank and Trust Co. v. National Credit Union Admin. Bd., 786 F.2d 621 (4th Cir. 1986), cert. denied 479 U.S. 1063 (1987) ................................................ 14 Boyett Coffee Co. v. United States, 775 F. Supp. 1001 (W.D. Tex. 1991) ...................................................... 15 Chesapeake and Potomac Telephone Company of Virginia v. United States, 830 F. Supp. 909 (E.D. Va. 1993)............... 9, 12 Chevron, U.S., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) ....................................... 16 Clarke v. Securities Industry Ass'n, 479 U.S. 388 (1987)................. 14 Clark v. Virginia Board of Bar Examiners, No. 94-211-A (E.D. Va. 1994), cited as "Opinion" ................... 3, 7, 17, 22 District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983) ......................................... passim Doe v. New York University, 666 F.2d 761 (2nd Cir. 1981) ....................................................... 18, 19 Ellen S. v. Florida Board of Bar Examiners, No. 94-0429-CIV-KING, (S.D. Fla. Aug. 1, 1994) ......................................... 5, 6, 10, 22 Federal Sav. and Loan Ins. Corp. v. Heidrick, 774 F. Supp. 352 (D. Md. 1991) ............................................... 15 Forrisi v. Bowen, 794 F.2d 931 (4th Cir. 1986) .......................... 20 Gladstone Realtors v. Village of Bellwood, 441 U.S. 91 (1979) .......................................................... 14 Guice-Mills v. Derwinksi, 772 F. Supp. 188 (S.D.N.Y. 1991) ....................................................... 17, 21 ii 01-07576 Hoffman v. Hunt, 845 F. Supp. 340 (W.D.N.C. 1994) ........................ 9 In re Petition of Frickey, No. C5-84-2139 (Minn. Apr. 28, 1994) ....................................................... 12 Luian v. Defenders of Wildlife, 112 S.Ct 2130 (1992) ..................... 9 Lyng v. Payne, 476 U.S. 926 (1986) ...................................... 16 Medical Society of New Jersey v. Jacobs, 1993 WL 413016 (D.N.J. Oct. 5, 1993) ........................................... 10 Nasser v. City of Homewood, 671 F.2d 434 (11th Cir. 1982)................ 13 Nordgren v. Hafter, 789 F.2d 334 (5th Cir. 1986), cert. denied, 479 U.S. 850 (1986) ...................................... 4 Parnham v. J.R., 442 U.S. 584 (1979) .................................... 11 Perez v. Philadelphia Housing Authority, 677 F. Supp. 357 (E.D. Pa. 1987), aff'd 841 F. 2d 1120 (3rd Cir. 1988) ....................................................... 19, 20 Petersen v. University of Wis. Bd. Regents, No. 93-C-46-C, 2 Americans with Disabilities Act Cases (BNA) 735, 1993 U.S. Dist. LEXIS 5427 (W.D. Wis. Apr. 20, 1993) ................. 16 Rosenfeld v. Clark, 586 F. Supp. 1332 (D. Vt. 1984) ...................... 8 School Board of Nassau County v. Arline, 480 U.S. 273 (1987) .......................................................... 23 Smith v. Schlesinger, 513 F.2d 462 (D.C. Cir. 1975) ..................... 11 Stinson v. United States, 113 S. Ct. 1913 (1993) ........................ 16 Thorstenn v. Barnard, 883 F.2d 217 (3rd Cir. 1989) ....................... 6 Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972) ...................................................... 13, 14 Warth v. Seldin, 422 U.S. 490 (1975) ..................................... 9 Woodward v. Viriginia Board of Bar Examiners, 454 F. Supp 4 (E.D. Va. 1978), aff'd 598 F. 2d 1345 (4th Cir 1979)............ 5 Udall v. Tallman, 380 U.S. 1 (1965) ..................................... 16 United States v. Larionoff, 431 U.S. 864 (1977) ......................... 16 iii 01-07577 Younger v. Colorado State Board of Bar Examiners, 482 F. Supp. 1244 (D. Colo. 1980), rev'd on other grounds, 625 F.2d 372 (10th Cir. 1980) .................................... 7 STATUTES AND REGULATIONS: 28 U.S.C. 1331 ........................................................... 6 29 U.S.C. 794 ........................................................... 18 42 U.S.C. 12101-12213 (Supp. II 1990) .................................... 1 42 U.S.C. 12102 (2) ..................................................... 16 42 U.S.C. 12202 (a) ..................................................... 18 28 C.F.R. 35, App. A (1993) ......................................... 17, 20 28 C.F.R. 35.102 (1992) ................................................. 16 28 C.F.R. 35.103(a) (1992) .............................................. 18 28 C.F.R. 35.104 (1992) ............................................. 16, 17 LEGISLATIVE MATERIALS: H.R. Rep. No. 485, 101st Cong., 2d Sess. (1990) ..................... 18, 21 S. Rep. No. 116, 101st Cong., 1st Sess. (1989) ...................... 18, 21 MISCELLANEOUS Stephen T. Maher and Lori Blum, Strategy for Increasing Mental and Emotional Fitness of Bar Applicants, 23 Ind. L. Rev. 821 (1990) .................................................................. 12 iv 01-07578 I. Introduction This action was filed by Julie Ann Clark against the Virginia Board of Bar Examiners under title II of the Americans with Disabilities Act (ADA).1 Clark, an applicant to the Virginia bar with a history of treatment for a mental health condition, alleged that the Board violates the ADA by requiring applicants for admission to the bar to disclose information about their history of treatment for mental health conditions and by subjecting applicants who admit to such treatment to additional disclosure requirements and investigation not uniformly required of all applicants. Clark's suit sought two distinct and separate forms of relief. First, it sought an injunction requiring the Board to grant her a license. Second, it sought an order prohibiting the Board generally from inquiring into the mental health history of applicants unless there is evidence that an applicant has mental health problems which demonstrate he or she is unfit to practice law. The parties filed cross motions for summary judgment. On July 11, 1994, this Court denied plaintiff's motion, granted defendant's motion, and dismissed the case. The Court ruled that it lacked subject matter jurisdiction over all of plaintiff's claims--- including those seeking to prohibit the Board from making certain inquiries on the basis of disability. The Court _______________ 1 42 U.S.C. SS 12101-12213 (Supp. II 1990). - 1 - 01-07579 also stated that even if it did have jurisdiction, the plaintiff had no standing to bring suit "because she is not a disabled person within the meaning of the ADA." Opinion at 12. On July 25, 1994, plaintiff Clark filed a Notice and Motion to Alter Judgment, requesting that the Court reconsider its Order of July 11, 1994, granting summary judgment in favor of defendant bar examiners. The United States supports plaintiff's contention that the Court's decision of July 11 is in error and should be reconsidered and altered. II. Argument A. This Court Has Jurisdiction Because Plaintiff Clark Challenges General Rules And Regulations Governing Admission To The Bar In ruling that it lacked subject matter jurisdiction, the Court correctly cited the Supreme Court's decision in District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), for the proposition that federal courts have jurisdiction over challenges brought against a state bar's "general rules and regulations governing admission," but not "where review of a state court's adjudication of a particular application is sought." Feldman, 460 U.S. at 485 (quoting Doe v. Pringle, 550 F.2d 596, 597 (10th Cir. 1976)). The United States agrees that the doctrine described in Feldman governs jurisdiction. The United States disagrees, however, with the Court's application of Feldman. Instead of limiting jurisdiction, Feldman supports it. - 2 - 01-07580 Although the Court is correct in stating that, "[t]he Board has no general rule or regulation that prohibits a person with a mental disability from obtaining a license to practice law," Opinion at 8, the plaintiff alleges a different form of discrimination. The violation of title II of the ADA alleged is the Board's requirement that candidates answer Question 20(b) and the Board's subsequent screening out of persons who answer in the affirmative for additional burdens of disclosure and investigation.2 Specifically, Ms. Clark is challenging the following "general rules and regulations governing admissions" to the Virginia Bar: (1) the general rule requiring applicants to answer Question 20(b) regarding treatment or counseling received in the past five years for any mental, emotional or nervous disorders; (2) the general rule requiring all applicants who answer yes to Question 20(b) to provide information about dates of treatment, name and address of physician, counselor, or other health care provider, and name, address, and telephone number of hospital or institution; (3) the general rule requiring the applicant to "[d]escribe completely the diagnosis, the treatment, and the prognosis, and provide any other relevant facts" regarding such mental, emotional or nervous disorders; (4) the general rule requiring applicants to sign a form authorizing release of all medical records,- including all documents or records concerning advice, care or treatment for any mental, emotional or nervous disorders; and ____________________ 2 as discussed below, these additional burdens create distinct injuries to persons who have sought treatment for mental disorders, regardless of whether the injured party is granted a license to practice law. - 3 - 01-07581 (5) the general practice of subjecting applicants who answer Question 20(b) in the affirmative to more rigorous scrutiny than other applicants, including additional investigation in some cases. The fact that the plaintiff's challenge is to the general rules and regulations of the Virginia Board is also supported by the relief requested in her complaint: Wherefore, Ms. Clark seeks: ... (2) A declaration that the board's preliminary inquiry into the mental health history of bar applicants violates the ADA, (3) A permanent injunction barring defendants and their agents from inquiring into the mental health history of bar applicants, except when and to the extent occasioned by independent evidence of an applicant's having mental problems which fairly suggest unfitness to practice law. Complaint at 7, paragraphs 2 and 3. To hear this claim, the Court need not review a state court judicial decision. Plaintiff's complaint instead "asks the district court to assess the validity of the rule promulgated in a nonjudicial setting." Feldman, 460 U.S. at 486. Plaintiff is requesting that the statutory validity of question 20(b) be assessed and the defendants be barred from asking such discriminatory questions. Because this challenge to the Board's general rule is not "inextricably intertwined" with plaintiff's application to the Board, Nordgren v. Hafter, 789 F.2d 334, 337 (5th Cir.) (quoting Feldman, 460 U.S. at 483 n. 16 and holding that plaintiff's equal protection challenge to the state bar's rule not to admit graduates of out-of-state unaccredited law schools supported federal subject matter jurisdiction under - 4 - 01-07582 Feldman), cert. denied, 479 U.S. 850 (1986), this Court has jurisdiction over plaintiff's claim.3 In Ellen S. v. Florida Board of Bar Examiners, the District Court for the Southern District of Florida recently questioned this Court's interpretation of Feldman and its decision regarding lack of jurisdiction over Ms. Clark's claims. The court held that, although the facts of Ellen S. and the case at presently bar are similar, this Court's opinion was not persuasive. Instead, the court, citing Feldman, held that it had jurisdiction to hear a case under title II of the ADA challenging the rules of a state bar that are similar to those challenged in this case and found that the plaintiffs' challenges fell within this category.4 ______________________ 3 Plaintiff's complaint also requests that the Court order the Board to grant her a license to practice law. Complaint at 7, paragraph 1. While Feldman suggests that the Court may not have jurisdiction over that specific claim for relief, the Court improperly concluded that there exist no claims for relief over which the Court may exercise jurisdiction. The Court also cites Woodard v. Virginia Board of Bar Examiners, 454 F. Supp. 4 (E.D. Va. 1978), aff'd, 598 F.2d 1345 (4th Cir. 1979), in support of its ruling. The plaintiff in Woodard, however, was seeking to challenge the Virginia Board of Bar Examiners' denial of her admission to the bar for allegedly discriminatory reasons. In contrast, here -- as the Court itself points out -- "the Board has made no decision on Clark's fitness to practice law." Opinion at 8. Unlike Woodard, plaintiff's challenge to the Board's general rules does not require this Court to review a state court's adjudication of an applicant's fitness for the bar. 4 In Ellen S., the plaintiffs challenged general rules strikingly similar to those challenged in this case. 1) the general rule that all applicants must answer Question 29 in order for their applications to be processed; (continued...) - 5 - 01-07583 Jurisdiction to review bar admission rules for statutory or constitutional violations has also been upheld by other courts. In Barnard v. Thorstenn, 489 U.S. 546 (1989), the two plaintiffs, who resided in New York and New Jersey, applied for membership to the bar of the Virgin Islands. Their applications were denied because they failed to meet the bar's strict residency requirements. The Court held that these residency requirements were unconstitutional because they violated the Privileges and Immunities Clause of the Constitution. On remand, the Third Circuit noted that, because plaintiffs' challenge to the generally applied residency requirement raised a federal question, the district court had jurisdiction over the issue under 28 U.S.C. S 1331. Thorstenn v. Barnard, 883 F.2d 217 (3rd Cir. 1989).5 ________________ 4(...continued) 2) the general rule that law school deans and references will be asked about every applicant's mental health disability; 3) the universal practice of requiring all applicants answering yes to Question 29 to waive confidentiality of their treatment records and history, and 4) the universal followup inquiry of treatment professionals with multiple detailed questions about an applicant's treatment history. Ellen S. v. Florida Board of Bar Examiners, No. 94-0429-CIV-KING, slip op. at 14 n. 9 (S.D. Fla. Aug. 1, 1994) (order denying defendants' motion to dismiss) (quoting Pls.' Resp. Notice of Supplemental Authority at 2) (a copy of the opinion is attached to this memorandum as Exhibit A). 5 Specifically, the plaintiffs in Barnard asserted a violation of the Constitution and a federal statute--- the Revised Organic Act, 48 U.S.C. S 1561, which extended the Constitution to the Virgin Islands. - 6 - 01-07584 Similarly, the reasoning of the Court in Younger v. Colorado State Board of Bar Examiners, 482 F. Supp. 1244 (D. Colo. 1980), rev'd on other grounds, 625 F.2d 372 (10th Cir. 1980), strongly supports plaintiff's case. In Younger, the plaintiff failed the Colorado Bar Exam three times and was denied permission to take the exam again. The plaintiff argued that the state's rule prohibiting applicants from taking the bar exam more than three times without good cause violated the Equal Protection Clause of the Fourteenth Amendment. As in this case, the defendant state licensing authorities argued that plaintiff's claims of deprivations of federally protected rights could only be considered by the United States Supreme Court on appeal from the state court because the denial of plaintiff's application was a judicial act of the state supreme court. The Tenth Circuit held that, while the plaintiff was seeking individual relief, his challenge to a generally applicable rule could be heard by the district court. Specifically, the court noted that, [Plaintiff's] complaint challenges the validity of ... any ... limitation on the number of times an otherwise qualified applicant may attempt to pass the Colorado Bar Exam. The denial of his request for re-examination is the result of the application of that rule.... Accordingly, the plaintiff here is not seeking a review of the judicial determination made as to his application; he is contesting the Court's administrative act in adopting a rule limiting the opportunity for re-examination. Id. at 1246. Similarly, Ms. Clark's challenge to the Board's inquiries does not seek review of the Board's determination of her fitness to practice law; indeed, as the Court recognizes, the Board has never made such a determination. Therefore, although - 7 - 01-07585 the Court may lack "jurisdiction to interfere in the Board's proceedings to determine Clark's fitness to practice law," Opinion at 9, it does have jurisdiction to address the alleged discriminatory rules being challenged by the plaintiff prior to any judicial determination of her fitness to practice law.6 B. This Case Should Not Be Dismissed For Lack Of Standing In addition to improperly finding no subject matter jurisdiction over Ms. Clark's claims, this Court also held that she did not have a disability, as defined under title II of the ADA. Implicit within this holding is the Court's belief that Ms. Clark must actually have a disability in order to have standing to sue. Both the Court's holding and the premise upon which it is based are incorrect. Anyone forced to respond to the Board's inquiries about treatment for mental health conditions has standing to bring this case, regardless of whether they actually _________________________ 6 This distinction between general and "applicant- specific" challenges has also been used in other cases to establish subject matter jurisdiction over the review of state bar rules. Rosenfeld v. Clark, 586 F. Supp. 1332, 1336 (D. Vt. 1984) (citing Feldman for the holding that a district court had subject matter jurisdiction for reviewing alleged improprieties in the appeal process for bar admissions, although it lacked jurisdiction to review the merits of the Board's decision); Bailey v. Board of Law Examiners, 508 F. Supp. 106, 108 (W.D. Tex. 1980) (quoting Brown v. Board of Examiners, 623 F.2d 605, 609-10 (9th Cir. 1980) for the proposition that, although the district court did not have jurisdiction to review decisions by bar examiners on the plaintiff's test results, it did have jurisdiction to determine whether "generally applicable rules and procedures for admission to the Bar impinge upon constitutionally protected rights"). - 8 - 01-07586 have a disability. Furthermore, Ms. Clark's evidence clearly supports her claim that she has a disability. 1. Ms. Clark Has Standing To Sue Even If She Does Not Have A Disability Anyone who responds affirmatively to the Board's inquiries about a history of treatment for mental health conditions must provide detailed information about such treatment, authorize release of their private medical records, and be subjected to greater scrutiny than other applicants. In order to determine whether a party has standing, a court must examine constitutional and prudential considerations. Warth v. Seldin, 422 U.S. 490 (1975). At an "irreducible constitutional minimum," plaintiffs must show three elements. First, the plaintiff must have suffered an injury in fact, which is (a) concrete and particularized and (b) actual or imminent. Second, the injury must be traceable to the alleged unlawful conduct. Third, it must be likely that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 112 S.Ct 2130, 2136; Chesapeake and Potomac Telephone Company of Virginia v. United States, 830 F. Supp. 909, 916 (E.D. Va. 1993). Prudential considerations related to standing are (1) whether the asserted harm is particular to the plaintiff, rather than a generalized grievance shared by all or a large class of citizens and (2) whether plaintiffs are asserting their own rights or interests and not those of third parties. Warth, 422 U.S. at 499; Hoffman v. Hunt, 845 F. Supp. 340 (W.D.N.C. 1994). - 9 - 01-07587 Plaintiff has met the constitutional requirements for standing. She has suffered an injury in fact traceable to the defendants' inquiries because the additional burdens placed on applicants who answer question 20(b) affirmatively are substantial. In a similar case, Medical Society of New Jersey v. Jacobs, the court found that investigations into the mental health history of an applicant for a medical license constituted "invidious discrimination under title II regulations" because of the additional burden placed on those applicants. Medical Society of New Jersey v. Jacobs, 1993 WL 413016, *7-8 (D.N.J. Oct. 5, 1993). The court in Ellen S., citing Jacobs, also held that inquiries into the applicants' mental health histories placed additional burdens on the applicants. Ellen S., at 10. The court also found that the title II regulation makes clear that the question on the Florida Bar application asking about past mental health treatment in itself, as well as the subsequent investigations, "discriminate against plaintiffs by subjecting them to additional burdens based on their disability." Id. at 10.7 _______________________ 7 In Jacobs, the court held that the questions themselves were not discriminatory, but, in the context of the background investigations, were used "as a screening out device to decide on whom the Board will place additional burdens." Jacobs at * 7. The court in Ellen S. broadened the Jacobs ruling and held that the questions themselves were discriminatory because they automatically triggered subsequent questions and possible subsequent possible investigation. Ellen S., at 10 n. 7. Similarly, in this case, an affirmative answer to question 20(b) is discriminatory because it automatically triggers additional questions and possible investigations. - 10 - 01-07588 The Board's inquiry is burdensome and invasive not only because it requires persons who answer the question in the affirmative to provide detailed information, but because it also requires them to disclose details about what is arguably the most private part of human existence -- a person's inner mental and emotional state. Of potentially even more harm is the Board's attempt to obtain information about the person's fitness from other individuals; the Board's investigators may potentially engage in a full-fledged exploration of an applicant's condition with the person's physicians, counselors, colleagues, and associates and may ask questions regarding the person's diagnosis or treatment for mental, emotional or nervous disorders. It is not difficult to imagine the attendant potential damage to an individual's reputation. The inquiries are also injurious because of the stigma which still attaches to treatment for mental or emotional illness. The Supreme Court has recognized that individuals have a substantial liberty interest under the Due Process Clause of the Constitution in avoiding the social stigma of being known to have been treated for a mental illness. Parham v. J.R., 442 U.S. 584, 600 (1979); Addington v. Texas, 441 U.S. 418, 426 (1979); see also Smith v. Schlesinger, 513 F.2d 462, 477 (D.C. Cir. 1975) ("[m]ental illness is unfortunately seen as a stigma. The enlightened view is that mental illness is a disease ... but we cannot blind ourselves to the fact that at present, despite lip service to the - 11 - 01-07589 contrary, this enlightened view is not always observed in practice").8 Plaintiff's injury, which also includes the imminent denial of her bar application, may be redressed by the relief sought.9 Invalidating question 20(b) would allow Ms. Clark to continue in ________________________ 8 In addition, the Board's inquiries into a person's mental health treatment can have a more insidious discriminatory effect. Concern over the Board's inquiries about diagnosis and treatment for mental illness or substance dependency may deter law students or other applicants to the bar from seeking counseling for mental or emotional problems. In re Petition of Frickey, No. C5-84-2139 (Minn. Apr. 28, 1994) (Minnesota Supreme Court ordering deletion of questions regarding mental health history from bar admissions application on grounds that the questions deterred law students from seeking needed counseling); see Stephen T. Maher and Lori Blum, A Strategy for Increasing the Mental and Emotional Fitness of Bar Applicants, 23 Ind. L. Rev. 821, 830-33 (1990) (detailed discussion of how such inquiries have deterrent effect). Even when treatment is sought, its effectiveness may be compromised, because knowledge of the Board's potential investigation of issues surrounding treatment is likely to undermine the trust and frank disclosure on which successful counseling depends. See id. at 824, 833-46. Thus, rather than improving the quality of the character and fitness of members of the bar, the Board's inquiries may have the perverse effect of deterring those who could benefit from treatment from obtaining it, while penalizing those who enhance their ability to practice law by seeking counseling. 9 Aside from plaintiff's refusal to respond to question 20(b) and to cooperate with the consequent investigations into her mental health history, defendants have raised no other impediment to her admission to the bar. However, the possibility that plaintiff's application may be denied on other grounds does not diminish her standing here. It is not essential that the challenged question be the sole obstacle to plaintiffs' ultimate goal. Arlington Heights v. Metropolis Housing Development Corp., 429 U.S. 252, 261 (plaintiff had standing where challenged statute was "absolute barrier" to end goal, despite the fact that invalidation of the statute would not guarantee achievement of that goal); See also Chesapeake and Potomac Telephone Co. of Virginia v. United States, 830 F. Supp. at 916 (standing found where invalidation of statute in question would simply allow plaintiff to pursue regulatory approval of cable franchise on same footing as other applicants). - 12 - 01-07590 the bar application process, undistinguished from other applicants who have not sought mental health treatment in the past. It would relieve her of the additional burdens of investigation and would remove the mental illness stigma from the bar application. In addition to the basic constitutional requirements for standing, plaintiff has also satisfied the necessary prudential considerations. The burdens and attendant stigma described above, are particular to the plaintiff and the limited class of people who have sought previous mental health treatment. Question 20(b) is designed to screen out a relatively small class of individuals for different treatment, leaving the larger, generalized class of bar applicants unaffected. Finally, in determining standing, courts should also look into the policy underlying the statute to determine the scope of the statute's zone of interest. Nasser v. City of Homewood, 671 F.2d 434 (11th Cir. 1982). As with other civil rights statutes, standing under the ADA should be interpreted as broadly as permissible under the Constitution. In Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972), a white plaintiff alleged that he was injured by his landlord's racial discrimination against prospective minority tenants. Although the plaintiff was not directly a victim of the landlord's discrimination, the Court held that section 810 of the Civil Rights Act of 1968 (Fair Housing Act) should be broadly construed as a civil rights act to provide plaintiff with standing. The - 13 - 01-07591 Court went on to hold that the plaintiff had standing because he was denied the opportunity for interracial association. See also Gladstone Realtors v. Village of Bellwood, 441 U.S. 91 (1979).10 Similarly, in this case, Ms. Clark is being injured by discriminatory conduct that the ADA statute was intended to prevent. Even if the plaintiff did not have a disability, she still faces discrimination and is injured by the Board's intrusive inquiries. These injuries are indistinguishable from the types of injuries encountered by other persons whose mental impairments are severe enough to qualify them as persons with disabilities under title II. Any applicant who answers question 20(b) affirmatively, regardless of whether that person has a disability, is within the zone of interest of the ADA's protection and shares "common bonds" with the statute's intended protected class. Branch Bank and Trust Co. v. National Credit Union Admin. Bd., 786 F.2d 621 (4th Cir. 1986) (denying standing to a plaintiff whose interests were the opposite of those Congress was trying to protect), cert. denied, 479 U.S. 1063 (1987).11 In particular, bar applicants who do not have a disability, but who sought mental health treatment in the past, ____________________ 10 Under the ADA as under the Fair Housing Act, suits by "private attorney generals" are critical to successful enforcement of the law where federal enforcement resources are limited. Trafficante, 409 U.S. at 211 (fewer than 24 attorneys dedicated to Fair Housing Act enforcement). The Department of Justice currently has 20 attorneys responsible for ADA litigation. 11 See also Clarke v. Securities Industry Ass'n, 479 U.S. 388 (1987), denying zone of interest and standing because plaintiff had goals contrary to those Congress sought to protect. - 14 - 01-07592 may share the common goal of ridding the bar application process of inquiries into mental health status. Such an applicant, therefore, may be considered to be within the same zone of interest as someone with a mental disability. Therefore, Ms. Clark has standing to sue regardless of whether she has a disability. 2. This Court Incorrectly Concluded That Ms. Clark Is Not A Person With A Disability This Court erroneously concluded that plaintiff is not a person with a disability. The Court concluded that plaintiff's mental impairments did not substantially limit a major life activity and that the Board did not regard her as having a disability.12 Title II of the ADA and its implementing regulation define the term "disability" as: (A) a physical or mental impairment that substantially limits one or more major life activities... _______________________ 12 The United States agrees with plaintiff's contention that summary judgment in this case is premature. Obviously, there are genuine issues of material fact essential to the determination of the plaintiff's status as a person with a disability under the ADA. As the plaintiff asserts in her Notice and Motion to Alter Judgment, summary judgment is appropriate only where there is "no disagreement as to the interferences which may be drawn from the undisputed facts." Federal Sav. and Loan Ins. Corp. v. Heidrick, 774 F. Supp. 352, 356 (D. Md. 1991)(quoting Steinberg v. Elkins, 470 F. Supp. 1024, 1030 (D. Md. 1979)). Further, dispute over facts or inferences of facts must be resolved in favor of the non-moving party if there are any "reasonable doubts" concerning their existence. Boyett Coffee Co. v. United States, 775 F. Supp 1001, 1002 (W.D. Tex 1991). - 15 - 01-07593 (B) a record of such impairment; or (C) being regarded as having such an impairment. 42 U.S.C. S 12102 (2); 28 C.F.R. S 35.102 (1992). The title II regulation provides that a "physical or mental impairment" includes [a]ny mental or psychological disorder such as...emotional or mental illness...." 28 C.F.R. S 35.104 (1992) (emphasis added).13 The record raises triable issues under both the second and third prongs of the ADA's definition of disability. _________________________ 13 These regulations, which were published by United States Department of Justice, should be given substantial deference by the Court. Where, as here, Congress expressly delegates authority to an agency to issue legislative regulations, 42 U.S.C. S 12134, the regulations, "are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute." Chevron, U.S., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984). See also Petersen v. University of Wis. Bd. Regents, No. 93-C-46-C, 2 Americans with Disabilities Act Cases (BNA) 735, 738, 1993 U.S. Dist. LEXIS 5427 (W.D. Wis. Apr. 20, 1993) (applying Chevron to give controlling weight to Department of Justice interpretations of title II of the ADA). Agencies are also afforded substantial deference in interpreting their own regulations. The Supreme Court has stated that "provided that an agency's interpretation of its own regulations does not violate the Constitution of a federal statute, it must be given 'controlling weight unless it is plainly erroneous or inconsistent with the regulation.'" Stinson v. United States, 113 S. Ct., 1913, 1919 (1993) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). See Lyng v. Payne, 476 U.S. 926, 939 (1986); United States v. Larionoff, 431 U.S. 864, 872-873 (1977); Udall v. Tallman, 380 U.S. 1, 16-17 (1965). - 16 - 01-07594 a. The Evidence Supports Ms. Clark's Claim That She Has A Record of a Disability Plaintiff Clark had been diagnosed as having recurrent major depression. The Court acknowledged that this condition manifested itself in her losing "much of [her] ability to concentrate, act decisively, sleep correctly, orient [her]self, and maintain ordinary social relationships" over a period lasting approximately thirteen months. Opinion at 2. Nevertheless, the Court concluded that, because this diagnosed impairment did not substantially impair plaintiff Clark's ability to perform a major life function, she did not qualify as a person with a disability under the ADA. The evidence before this Court, however, supports plaintiff's claim that she had a mental impairment that substantially limited a major life activity. Ms. Clark had been diagnosed with "major depression, recurrent," which lasted for thirteen months. Because mental impairments are intended to broadly encompass many conditions and diagnoses, her condition may well fall within the scope of the ADA's coverage. These impairments may substantially limit one or more of Ms. Clark's "major life activities." The title II regulation describes major life activities as functions "such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 28 C.F.R. S 35.104 - 17 - 01-07595 (emphasis added).14 This list of major life activities is not intended to be exhaustive, but to instead provide examples of major life activities. The activities affected by Ms. Clark's disability are within the scope of the term "major life activities," as defined under the ADA and under Section 504 of the Rehabilitation Act of 1973 ("Section 504").15 At a minimum, sleeping and maintaining ordinary social relationships are major ________________________ 14 The use of the term "such as" in the regulation reflects Congressional intent not to provide an exhaustive list. The regulation utilizes verbatim the language used in the Senate and House Committee reports regarding the definition of a major life activity. See H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. II at 52 (1990) [hereinafter cited as Education and Labor Report]; S. Rep. No. 116, 101st Cong., 1st Sess. at 23 (1989)[hereinafter cited as Senate Report]. The Department's interpretive guidance accompanying the regulation further supports this interpretation by stating generally that a person satisfies the definition of disability "when the individual's important life activities are restricted as to the conditions, manner, or duration under which they can be performed in comparison to most people." 28 C.F.R. pt. 35, App. A, at 445 (1993). 15 Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. S 794, prohibits discrimination against individuals with handicaps in federal programs and in programs receiving federal financial assistance. In the ADA, Congress adopted a definition of "disability" that is essentially identical to the Section 504 definition of "handicap." Moreover, the ADA statute, legislative history, and Department of Justice regulations clearly indicate that title II of the ADA is intended to provide protections that are at least as broad those available under the Rehabilitation Act and its implementing regulations. See 42 U.S.C. S 12202(a); Education and Labor Report at 84; 28 C.F.R. S 35.103(a) (1992). See also Doe v. New York University, 666 F.2d 761, 775 (2nd Cir. 1981) (discussing the "wide scope" of the definition of disability under Section 504, and concluding that the legislative history indicated that "the definition is not be construed in a niggardly fashion.") (citing S.Rep. No. 93-1297, 93 Cong., 2d Sess. (1974)). - 18 - 01-07596 life activities similar to the types of activities listed as examples in the regulation. Courts have similarly construed the scope of major life activity not to be limited to the list of examples. In Perez v. Philadelphia Housing Authority, the court held that the plaintiff was a "handicapped" individual within the coverage of the Rehabilitation Act because the pain from her injury "not only affected her ability to work but also her ability to walk, sit, stand, drive, care for her home and child, and engage in leisure pastimes." Perez v. Philadelphia Housing Authority, 677 F. Supp. 357, 360 (E.D. Pa., 1987), aff'd 841 F.2d 1120 (3rd Cir. 1988); see also, Doe v. New York University, 666 F.2d 761 (2d Cir. 1981)(the ability to handle situations presented by plaintiff's work environment constituted major life activity). Individuals eligible for the protection of the ADA do not have to demonstrate an absolute inability to work or to lead a successful life in order to prove themselves individuals with disabilities. Ms. Clark's successful completion of law school and her career performance do not automatically disqualify her from being an individual with a disability. The Court also erred in equating Ms. Clark's condition to symptoms encountered by a large portion of law students without undertaking the kind of individualized assessment contemplated by the ADA, which requires that disability be evaluated on a case- by-case basis. Indeed the Fourth Circuit has found -- in a case cited in this Court's Opinion -- that this "definitional task - 19 - 01-07597 cannot be accomplished merely through abstract lists and categories of impairments." Forrisi v. Bowen, 794 F.2d 931, 932 (4th Cir. 1986) (stating that the determination of handicapped status under Section 504 should be made on a case-by-case basis); Perez v. Philadelphia Housing Authority, 677 F. Supp. at 360 (court noting that a case-by-case approach is essential to determining an individual's disability status). In holding that Ms. Clark's depression does not amount to a disability for ADA purposes without the benefit of additional information or discovery by the parties, the Court contravenes this mandate of case-by-case assessment. Without the facts that will be revealed through discovery, the Court is not able to accurately assess the severity of Ms. Clark's symptoms and their effect on her life. Instead, the Court equates her condition with symptoms of depression common to many law students.16 Ms. Clark, however, was diagnosed with "major depression, recurrent," a disorder classified in the American Psychiatric Association Diagnostic and ____________________ 16 The studies cited by the defendants that state that a large percentage of law students suffer from "significantly elevated depression levels," and "significant depression symptoms," are not pertinent to this case. Defendant's Ex. C, p. 46-47. As the Department's regulation makes clear, however, a person may have a disability while also displaying symptoms or traits that are relatively common. 28 C.F.R. pt. 35, App. A, at 445 (1993). The fact that a significant number of law students display symptoms of elevated depression does not mean that they automatically become persons with disabilities under the ADA. Conversely, the fact that many law students have elevated symptoms of depression does not automatically mean that Ms. Clark's condition cannot qualify her as a person with a disability. - 20 - 01-07598 Statistical Manual of Mental Disorders III-R.17 The plaintiff's condition did not involve merely minor, transient, or commonplace inconveniences. As discussed above, these mental impairments may have substantially limited her ability to perform several basic life activities. Such evidence raises issues of triable fact as to whether Ms. Clark has a record of being an individual with a disability under the ADA. Therefore, the granting of summary judgment to the defendants was in error.18 _______________________ 17 In Guice-Mills v. Derwinski, the court held that "a major depressive episode as described in the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders III-R constitutes a 'mental impairment' within the purview of [the Rehabilitation Act]." Guice-Mills v. Derwinski, 772 F. Supp. 188, 197 (S.D.N.Y. 1991). The American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders III-R classifies Major Depression, Single Episode (DSM-III 296.2x) and Major Depression, Recurrent (DSM-III 296.3x) as depressive disorders differentiated only by the frequency of their occurrence. 18 It should also be noted that the legislative history of the ADA also reveals Congress's intent that the law extend particular protection to individuals with a record of mental or emotional illness. The legislative history states that the second prong of the definition of disability was included in the law, in part to protect individuals who have recovered from a physical or mental impairment which previously substantially limited them in a major life activity. Discrimination on the basis of such a past impairment would be prohibited under this legislation. Frequently occurring examples of [this] group...are persons with histories of mental or emotional illness... Education and Labor Report at 52; Senate Report at 23 (emphasis added). - 21 - 01-07599 b. The Record Supports The Conclusion That The Board Regards Ms. Clark As Disabled This Court also concluded that the Board did not regard the plaintiff as being disabled, stating that, "[i]f the defendants regarded Julie Ann Clark as disabled and unable to practice law, they would have denied her application." Opinion at 12.19 We believe that, by singling out persons with histories of treatment for mental, emotional, or nervous disorders and subjecting them to special review and possible denial of professional licensure, the Board indeed is regarding such persons as having disabilities and discriminating against them on that basis. Ellen S. at 9-10. As discussed above, these inquiries into mental health treatment pose serious threats to an applicant's privacy and reputation. While the Board never made a determination of plaintiff Clark's fitness to practice law, it does subject her to the additional burdens and inquiries on the basis of her mental condition and not on any behavior or conduct suggesting an inability to practice law. As such, the Board's practice reflects exactly the sort of prejudices and stereotypes that the ADA was designed to combat.20 ______________________ 19 As the Ellen S. court recognized, however, a licensing board, "can discriminate against qualified disabled applicants by placing additional burdens on them and this discrimination can occur even if these applicants are subsequently granted licenses to practice law." Ellen S. at 10. 20 The ADA does not prevent the Board from disqualifying applicants on the more relevant basis of behavior that reflects their ability to practice law, even if the behavior results from a mental impairment. - 22 - 01-07600 Due to misconceptions concerning individuals who have sought mental health treatment, such persons are often regarded as emotionally disabled or mentally ill although their past and/or current capability or stability might not be affected. As the Supreme Court observed in School Board of Nassau County v. Arline, 480 U.S. 273, 284 (1987), in enacting the "regarded as" provision of the definition of handicap under the Rehabilitation Act (a similar definition to a person with a disability under title II of the ADA), Congress "acknowledged that society's accumulated myths and fears about disability...are as handicapping as are the physical limitations that flow from actual impairment." Here, the defendant's broad inquiries on the bar application form into the applicant's mental health history reflect an assumption that past diagnosis of or treatment for mental or emotional conditions renders the applicant more likely than other candidates to be substantially impaired in his or her ability to perform as a lawyer. Accordingly, granting summary judgment in favor of the defendants was in error. - 23 - 01-07601 III. Conclusion This Court should vacate its Order Granting Defendant's Motion for Summary Judgment. Dated: Washington, D.C. August 9, 1994 Respectfully submitted, DEVAL L. PATRICK Assistant Attorney General Civil Rights Division By: JOHN L. WODATCH JOAN A. MAGAGNA SHEILA K. DELANEY (Va. Bar No. 13757) SHEILA M. FORAN KEN S. NAKATA Attorneys U.S. Department of Justice Civil Rights Division Public Access Section P.O. Box 66738 Washington, D.C. 20035-6738 Tel: (202) 307-6309 - 24 - 01-07602 CERTIFICATE OF SERVICE I, the undersigned, attorney for the United States of America, do hereby certify that I have this date served upon the persons listed below, by overnight delivery, true and correct copies of the foregoing Memorandum of the United States as Amicus Curiae in Support of Plaintiff's Notice and Motion to Alter Judgment. Victor M. Glasberg, Esq. Victor M. Glasberg & Associates 121 S. Columbus Street Alexandria, VA 22314 Peter R. Messitt Assistant Attorney General Office of the Attorney General 101 North Eighth Street Richmond, VA 23219 SO CERTIFIED this 9th day of August, 1994. KEN S. NAKATA Trial Attorney United States Department of Justice Civil Rights Division Public Access Section P.O. Box 66738 Washington, D.C. 20035-6738 (202) 307-2232 01-07603