IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

)

ELLEN S., ANNABEL R.,	)

KATHERINE F. and SALLY M.,	)

)

Plaintiffs,	)

)

v.	)

)

THE FLORIDA BOARD OF BAR EXAMINERS	)	Case No. 94-0429-CIV-KING

JOHN MOORE, EXECUTIVE DIRECTOR	)

OF THE FLORIDA BOARD OF	)

BAR EXAMINERS,	)

in his official capacity,	)

and THE FLORIDA SUPREME COURT,	)

in its capacity as a rule-making	)

body for the Florida Bar,	)

)

Defendants.	)

)

)

)

MEMORANDUM OF THE UNITED STATES

AS AMICUS CURIAE

KENDALL COFFEY	DEVAL L. PATRICK

United States Attorney	Assistant Attorney

for the Southern District	General

of Florida	Civil Rights Division

VERONICA HARRELL-JAMES	JOHN L. WODATCH

Assistant United States	JOAN A. MAGAGNA

Attorney	SHEILA M. FORAN

U.S. Attorney's Office	Attorneys

Federal Justice Building	U.S. Department of Justice

99 N.E. 4th Street	Civil Rights Division

Miami, Florida	Public Access Section

Tel: (305) 536-4109	P.O. Box 66738

Washington, D.C. 20035-6738

Tel: (202) 307-0663

TABLE OF CONTENTS

TABLE OF AUTHORITIES	ii

I.	INTRODUCTION	1

II.	ARGUMENT:THE BOARD'S USE OF THE CHALLENGED
INQUIRIES IN ITS LICENSING PROGRAM
DISCRIMINATES ON THE BASIS OF DISABILITY	5

A.	The Board's Inquiries Are Contrary
To The Purpose of The ADA	5

B.	The Board Is Subject To The
Nondiscrimination Provisions of Title II	7

C.	Title II is Constitutional in its
Application to State's Licensing of Attorneys	8

D.	The Board's Inquiries Target
Persons With Disabilities	11

E.	The Inquiry Into Past Treatment For
Mental Health Is An Unnecessary
Eligibility Requirement	15

a.	Unnecessary Inquiries Into Disability Are
Prohibited By Title II	15

b.	The Board Cannot Establish That Its
Inquiries Are Necessary For Determining Whether
Individuals Are Fit To Practice Law	17

c.	The Board's Inquiries Unnecessarily
Impose Burdens On Individuals With
Disabilities	25

III.	CONCLUSION	35

TABLE OF AUTHORITIES

CASES:

Addington v. Texas, 441 U.S. 418 (1979)	30

Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945)	12

Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984)	12

Doe v. Syracuse School Dist., 508 F. Supp. 333

(N.D.N.Y. 1981)	18,22

Easley by Easley v. Snyder, 841 F. Supp. 668

(E.D. Pa. 1993)	18

EEOC v. Massachusetts, 987 F.2d 64 (1st Cir. 1993)	33

Estate of Roulet, 23 Cal.3d 219 (1979)	31

Florida Bd. of Bar Examiners v. Applicant, 443 So.2d 71

(Fla. 1983)	7

Florida Bd. of Bar Examiners v. G.W.L., 364 So.2d 454

(Fla. 1978)	7

Haitian Refugee Center, Inc. v. Nelson, 872 F.2d 1555

(11th Cir. 1989)	5

In Re Applications of Anne Underwood and Judith Ann Plano,

No. BAR 93-21, 1993 WL 649283 (Me. Dec. 8, 1993)	6,7

In Re Applicant Mort, 560 N.E.2d 204 (Ohio 1990)	7

In Re John Ballay, 482 F.2d 648 (D.C. Cir. 1973)	31

In Re Petition of Frickey, et al., No. C5-84-2139

(Minn. Apr. 28, 1994)	6,7,23,32

Johnson v. Department of Agriculture, 734 F.2d 774

(11th Cir. 1984)	5

Kinney v. Yerusalim, 812 F. Supp. 547 (E.D. Pa. 1993),

aff'd, 9 F.3d 1067 (3d Cir. 1993)	11

Konigsberg v. State Bar of California, 366 U.S. 36 (1961)	7

Lyng v. Payne, 476 U.S. 926 (1986)	12

McNary v. Haitian Refugee Center, 489 U.S. 479 (1991)	5

Los Angeles Dep't of Water and Power v. Manhart, 435 U.S.

702 (1978)	34

Matter of Ronwin, 680 P.2d 107 (Az. 1983)	7

Martin-Trigona v. Underwood, 529 F.2d 33 (7th Cir. 1975)	7

Medical Society of New Jersey v. Jacobs, No. 93-3670,

1993 WL 413016 (D.N.J. Oct. 5, 1993)	6,7,15,22,25,26,29,34

Pandazides v. Virginia Bd. of Educ., 946 F.2d 345

(4th Cir. 1991)	18

Parham v. J.R., 442 U.S. 584 (1979)	30

Pennhurst State sch. & Hospital v. Halderman, 451 U.S. 1

(1981)	9

People v. Burnick, 14 Cal.3d 306 (1975)	31

Petersen v. University of Wis. Bd. of Regents, No.

93-C-46-C, 2 Americans with Disabilities Act Cases (BNA),

1993 U.S. Dist. LEXIS 5427 (W.D. Wis. Apr 20, 1993)	12

School Bd. of Nassau County v. Arline, 480 U.S. 273

(1986)	14,18

Smith v. Schlesinger, 513 F.2d 462 (D.C. Cir. 1975)	30

Stinson v. United States, 113 S. Ct. 1913 (1993)	12

Strathie v. Department of Transp., 716 F.2d 227

(3d Cir. 1983)	18

Udall v. Tallman, 380 U.S. 1 (1965)	12

United States v. Larionoff, 431 U.S. 864 (1977)	12

Washington v. Davis, 426 U.S. 229 (1976)	7

STATUTES:

Americans with Disabilities Act of 1990, 42 U.S.C.

§§ 12101-12213 ("ADA")	passim

Rehabilitation Act of 1973, 29 U.S.C. § 794 (1973)	8,14,17

Fla. Stat. § 454.021 (1991)	8

Florida State Constitution, Atr. III, Sec. 2 (B)	19,21

REGULATIONS:

28 C.F.R. pt. 35 (1991)	passim

28 C.F.R. pt. 36 (1991)	passim

LEGISLATIVE HISTORY

H.R. Rep. No. 485, 101st Cong., 2d Sess.,

pts. II, III (1990)	5,11,13,14,16

S. Rep. No. 116, 101st Cong., 1st Sess. (1989)	5,13,14,16

MISCELLANEOUS

Association or 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)	32

Bruce J. Ennis & Thomas R. Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62 Cal. L. Rev. 693 (1974)	20

Stephen T. Maher & Lori Blum, A Strategy for Increasing the Mental and Emotional Fitness of Bar Applicants, 23 Ind. L. Rev. 821 (1990)	31,32

Reishel, The Constitution, the Disability Act, and Questions about Alcoholism, Addiction, and Mental Health, 61 The Bar Examiner 10 (1992)	24

Deborah L. Rhode, Moral Character as Professional Credential,

94 Yale L.J. 491 (1985)	20,32

U.S. Department of Justice, The Americans with

Disabilities Act -- Title II Technical Assistance Manual

(1992 & Supp. 1993)	16,20,22

1 Jay Ziskin, Coping with Psychiatric and Psychological Testimony (3d ed. 1981)	20

Introduction

Plaintiffs -- three law students and a lawyer who wish to be admitted to the Florida Bar -- have brought this action alleging that the Florida Board of Bar Examiners' inquiries and investigations into applicants' histories of seeking mental health treatment discriminate on the basis of disability in violation of title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213 (Supp. II 1990). Defendants are the Florida Board of Bar Examiners, John Moore, its Executive Director, and the Florida Supreme Court, referred to collectively throughout as "defendants" or "the Board."

The challenged inquiries and investigations include:

(1)	Question 29 on the application to the Florida bar, which asks whether an applicant has ever sought treatment for a nervous, mental or emotional condition, has ever been diagnosed as having such a condition, or has ever taken any psychotropic drugs;

(2)	the consent form on the application requiring that applicants authorize release of any and all mental health records;

(3)	the letter of inquiry by the Board of Bar Examiners to all past treatment professionals; and

(4)	follow-up investigations and hearings.1

All plaintiffs seek to permanently enjoin the Board from continuing to require answers to Question 29 and to make the additional inquiries in the course of its fitness evaluations of bar applicants. Two of the plaintiffs, Ellen S. and Annabel R., also seek a preliminary injunction.2

Plaintiffs contend that these inquiries and investigations violate the ADA's prohibition of discrimination against individuals on the basis of mental disability, a history of mental disability, or perceived mental disability. The United States, as amicus curiae, supports plaintiffs' position that the inquiries and investigations used by the Florida Board of Bar Examiners in the bar admissions process violate the ADA.

This Court should deny the Board's motion to dismiss. The Board's central argument is that no discrimination can occur until an individual is denied admission to the bar for discriminatory reasons. However, as the United States establishes below, title II prohibits unnecessary inquiries into disability status as well as the placement of additional burdens on individuals with disabilities in the course of the admission process. Plaintiffs' challenge to these aspects of the admission process states a claim upon which relief may be granted.

Also pending before the Court is plaintiffs' motion for a preliminary injunction. To grant a preliminary injunction the Court must be satisfied that four criteria are met: (1) that plaintiffs are likely to succeed on the merits of their claim; (2) that plaintiffs will suffer irreparable harm if no injunction issues; (3) that such harm outweighs any harm to defendants caused by granting an injunction; and (4) that granting an injunction will serve the public interest. Haitian Refugee Center, Inc. v. Nelson, 872 F.2d 1555, 1561-62 (11th Cir. 1989) aff'd sub nom. McNary v. Haitian Refugee Center, 498 U.S. 479 (1991); Johnson v. Department of Agriculture, 734 F.2d 774, 781 (11th Cir. 1984). All four criteria are satisfied here and the preliminary injunction should be granted.

For the reasons stated herein, plaintiffs are likely to succeed on the merits of their claim that the procedures sought to be enjoined violate the ADA. The two plaintiffs seeking a preliminary injunction have asserted facts sufficient to establish irreparable harm. If no injunction issues, both must choose between losing important professional employment opportunities or subjecting themselves to the unlawful inquiries and investigation of the Board. As discussed, the Board's procedures inquire into very personal matters and additionally require plaintiffs to waive confidentiality of private medical and counseling records. Once such inquiries are conducted, it is not possible to remedy the harm caused by them.

The injunction plaintiffs seek will not harm defendants because, as the United States demonstrates below, the inquiries sought to be enjoined are not necessary to the Board's important mission of determining whether applicants are fit to practice law. Finally, granting the injunction serves the public interest by upholding the important rights Congress sought to safeguard by enacting the ADA.

II.	Argument: The Board's Use Of The Challenged
Inquiries In Its Licensing Program
Discriminates On The Basis Of Disability

A.	The Board's Inquiries Are Contrary To The Purpose
of The ADA

A core purpose of the ADA is the elimination of barriers caused by the use of stereotypic 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. §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 Florida 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 targeting for further investigation those individuals who have histories or diagnoses of disabilities and imposing additional burdens of investigation upon them, the Board is not only ignoring its own statutory mandate -- which requires it to determine whether an applicant's record of conduct justifies the trust of clients, adversaries, courts, and others with respect to the professional duties owed to them -- it is also engaging in precisely the kind of impermissible stereotyping that the ADA proscribes.

The only courts to address similar issues under the ADA have concluded that the types of questions and inquiries utilized by the Board here are unlawful. See Medical Society of New Jersey v. Jacobs, No. 93-3670, 1993 WL 413016 (D.N.J. Oct. 5, 1993) (mental health history inquiries and screening procedures in the context of medical licensing impose additional burdens on applicants with disabilities and constitute a violation of title II of the ADA); In re Applications of Anne Underwood and Judith Ann Plano, No. BAR 93-21, 1993 WL 649283 at *2 (Me. Dec. 8, 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.") See also In re Petition of Frickey, et al., No. C5-84-2139 (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.4

B.	The Board Is Subject To The Nondiscrimination Provisions Of Title II

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. § 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.5

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. § 12131(1)(B). The Board falls within this definition as it is the State governmental agency responsible for licensing attorneys in the State of Florida.6

C.	Title II Is Constitutional In Its Application To State's Licensing Of Attorneys

In enacting the ADA, Congress explicitly invoked its broad powers under the Fourteenth Amendment. See 42 U.S.C. § 12102(b)(4) (purpose of the ADA "to invoke the sweep of congressional authority, including the power to enforce the Fourteenth Amendment . . . in order to address major areas of discrimination faced day-to-day by people with disabilities").7 The Board concedes that the ADA is "most likely a valid exercise" of Congress' power under the Fourteenth Amendment.8 However, it challenges the applicability of title II to the State's conduct in licensing and regulating attorneys, claiming this to be a sovereign function outside the scope of federal regulation absent clear congressional intent to reach such conduct.

Even if the Board's constitutional theory is sound, no issue arises here because Congress' intent to cover all activities of states could not be clearer.9 Title II proscribes discrimination by public entities, including States, and "any department, agency, special purpose district, or other instrumentality of a state." 42 U.S.C. § 12131. Title II proscribes the discriminatory denial of benefits or exclusion from participation in all "services, programs, or activities" of public entities. 42 U.S.C. § 12132. The Board relies on this language to suggest that "governments do not offer services, programs or activities within or as part of their sovereign capacity." Supplemental Motion at 8. To accept this argument requires the Court to reject the plain meaning of the statutory terms. Licensing of attorneys is unquestionably an activity and/or program of the Board, an agency or instrumentality of the State. Nothing in the statute or legislative history suggests that only some activities, programs and services of covered entities are to be covered by title II.

Beyond services, programs and activities, title II also provides that no "qualified individual with a disability shall . . . be subjected to discrimination by any [public] entity." 42 U.S.C. § 12132. This language admits of no exception; it prohibits a public entity from discriminating on the basis of disability in any manner, whether through licensing professionals or any other official activity. The Board suggests, however, that if Congress meant to restrict licensing entities from inquiring into disability, it should have enacted a specific provision doing so. As reflected in the legislative history, such specificity is unnecessary where the intent is to cover all activities of States and local governments. Emphasizing title II's link to section 504 of the Rehabilitation Act, the House Report explains that

[t]he Committee has chosen not to list all the types of actions that are included within the term 'discrimination' . . . because this title essentially simply extends the antidiscrimination prohibition embodied in section 504 to all actions of state and local governments.

Education and Labor Report at 84 (emphasis added). Elsewhere the report states that

Title II . . . makes all activities of state and local governments subject to the types of prohibitions against discrimination against a qualified individual with a disability included in section 504 (nondiscrimination).

Id. at 151 (emphasis added).

Indeed, to allow discrimination on the basis of disability in any area of government functioning denies persons with disabilities equal opportunity to benefit from those government functions, in direct contravention to the ADA's stated goal to "provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. 12101(b)(1).10

D. The Board's Inquiries Target Persons With Disabilities

Under title II and the title II regulation, the term "disability" means:

(A) a physical or mental impairment that substantially
limits one or more of the major life activities of such
individual;

(B) a record of such impairment; or

(C) being regarded as having such an impairment.

42 U.S.C. § 12102 (2); 28 C.F.R. § 35.104 (1992).

The title II regulation states that "physical or mental impairment" includes "[a]ny mental or psychological disorder such as . . . emotional or mental illness . . . ." 28 C.F.R. § 35.104 (1992).11

Individuals not currently impaired but who have a history of mental illness or emotional disorder may fit into the second or third prongs of the statutory definition. Many persons diagnosed or treated for mental illness have at some time experienced substantial limitations in major life activities such as working, learning, caring for oneself, eating or sleeping.12 The legislative history of the ADA notes that the "record of . . . impairment" prong of the definition 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 . . . .13

Regardless of whether they have ever suffered from an actual substantial impairment of a major life activity, however, 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. § 12102 (2)(C).14 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."15

Here, the Board's sweeping inquiries reflect an assumption that any past diagnosis or treatment for mental or emotional condition or disorder is evidence of an impairment that is relevant to an applicant's ability to work as a lawyer.16 The Board here is thus "regarding" persons with past histories of mental health treatment as persons likely to be currently impaired.

E.	The Inquiry Into Past Treatment For Mental Health Is An Unnecessary Eligibility Requirement

The central issue of this case is whether Question 29 and the followup inquiries are necessary to the Board in its determinations of whether applicants are fit to practice law. If so, there is no violation of title II. However, as we demonstrate below, the Board's conduct does violate title II because Question 29 and the resulting inquiries are not necessary to the Board in making its determinations of whether individuals are qualified to practice law. As the court in Medical Society of New Jersey v. Jacobs, 1993 WL 413016, at *7, concluded, "The essential problem with the present questions is that they substitute an impermissible inquiry into the status of disabled applicants for the proper, indeed necessary, inquiry into the applicants' behavior."

a.	Unnecessary Inquiries Into Disability Are
Prohibited By Title II

Title II does not permit inquiries into disabilities where they are not necessary to achieve the objective of determining whether individuals are fit to practice law. Unnecessary inquiries are barred by 28 C.F.R. § 35.130(b)(8),17 which is identical in substance to a statutory provision in title III, 42 U.S.C. § 12182(b)(2)(A)(i), and the title III regulation, 28 C.F.R. 36.301(a). 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 accompanying analysis to 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, reiterates that title II prohibits unnecessary inquiries into disability. 42 U.S.C. §§ 12206(c)(3) & (d) (Supp. II 1990); U.S. Department of Justice, The Americans with Disabilities Act -- Title II Technical Assistance Manual (1992 & Supp. 1993)("Technical Assistance Manual"). Section 204 of the ADA provides that the title II regulation shall incorporate this concept. 42 U.S.C. § 12134(b); Judiciary Report at 51; Education and Labor Report at 84; 28 C.F.R. pt. 35, app. A at 430.18

b.	The Board Cannot Establish That Its Inquiries Are Necessary For Determining Whether Individuals Are Fit To Practice Law

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. § 12131(2); 28 C.F.R. § 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).19 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.20

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.21
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 mental disorders 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.22 However, diagnosis or treatment for a mental disorder provides no basis for assuming that these disabilities will affect behavior. See generally 1 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).23

Questions that focus on conduct and character rather than the status of having a disability, are better indicators of an applicant's fitness to practice law. Indeed, the Board's own Rules identify "record of conduct" as the key element of the Board's character and fitness inquiry:

An attorney should be one whose record of conduct justifies the trust of clients, adversaries, courts, and others with respect to the professional duties owed to them. A record manifesting a deficiency in the honesty, trustworthiness, diligence or reliability of an applicant may constitute a basis for denial of admission.

Rules of the Supreme Court Relating to Admissions to the Bar, Article III, Section 2 (b) (emphasis added). While the Board acknowledges that conduct is the proper focus of its inquiries, it nevertheless asserts that a record of treatment for mental illness will expose conduct that poses a risk for the practice of law.24 This argument, however, is based on presumptions about mental illness that are simply not borne out in fact, as the authorities discussed above have concluded.

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 or terminations from employment in the past but may not focus the inquiry only on those leaves of absence and terminations 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.25 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 Rules of the Florida Supreme Court Relating to Admissions to the Bar.26

The inquiries and investigations regarding mental health history are also unnecessary because other questions on the Florida bar applications elicit a wealth of information to illuminate an individual's past behavior. These inquiries require full disclosure of employment history, educational background, military service, criminal record, illegal drug use, fiscal responsibility, residential history, and identification of family members. 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.

Other courts concur in this conclusion. See 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"); and 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").

A recent 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).27

\

\

\

\

\

c.	The Board's Inquiries Unnecessarily Impose Burdens On Individuals With Disabilities 28

In this case, an applicant's status as a person with a history of a disability is the sole criterion used by the Board to trigger a requirement for submitting an additional detailed description of facts about the disability beyond that required by the application form, and in many cases, further investigation. The questionnaire is thus used as a screening device to identify persons who will be subject to further inquiry and investigation. See Medical Society of New Jersey v. Jacobs 1993 WL 413016, at *7.

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. § 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. § 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. § 35.150(b)(8).29

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., 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). It also prohibits unnecessary inquiries into disability as discussed above.

The Florida Board of Bar Examiners' 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 (1) whether they have ever consulted a mental health professional or any other medical practitioner for any mental, nervous or emotional condition, or drug or alcohol use; (2) whether they have ever been diagnosed as having a nervous, mental or emotional condition, drug or alcohol problem; and (3) whether they have ever been prescribed psychotropic medication.

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. Letters are then sent to the named professionals, asking very broad and detailed questions about the applicant's treatment history, regarding, inter alia, diagnosis, whether treatment goals have been achieved, results of any psychological testing, etc.

The Board of Bar Examiners also requires the applicant to release all records and to give up all rights to confidentiality with his or her treatment professional. If this is not done, the application will not be processed. The Board may investigate information received about an applicant's history of treatment beyond the letter to the treatment professional. It may in its discretion hold a hearing and require the applicant to attend and respond to further questions about his or her history of mental health treatment.

Neither Ellen S. nor Annabel R., the two plaintiffs seeking preliminary injunction, nor any other applicant to the Florida bar who has ever consulted any psychiatrist, psychologist, mental health counsellor, or medical practitioner for any "nervous, mental or emotional condition" may practice law in Florida without agreeing to reveal to the Board the fact of that consultation and any and all details of such consultation that the Board deems appropriate. On December 7, 1993, plaintiff Ellen S. received a letter from John Moore, Executive Director of the Board of Bar Examiners. It stated that her entire application would be terminated if she did not answer Question 29. Termination of her application would require her to retake the bar examination and submit an entirely new application, along with the necessary fees. This is apparently the standard response of the Board of Bar Examiners if an applicant refuses to answer Question 29.

The facts here are thus markedly different than those in Medical Society of New Jersey, supra, where the court found that the challenged questions operated as an unlawful screening device, but declined to issue an injunction because plaintiffs were already licensed to practice medicine and the Board had no plans to conduct investigations based on the challenged questions. Here, plaintiffs cannot obtain professional licenses until the full inquiries are concluded.30

Mental health treatment 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. Of potentially even more harm is the Board's attempt to obtain information about the person's fitness from others; the Board's investigators apparently may engage in a full-fledged exploration of an applicant's condition with the person's colleagues and supervisors, asking 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 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 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).31 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.)32

In light of these cases, defendants' characterization of the questions at issue here as a mere "inconvenience" for persons with histories of mental disability, Motion to Dismiss at 7, is puzzling at best. But 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.)33

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, 833-46.34 Thus, rather than improving the quality of attorneys in the State, 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 perform successfully as attorneys by seeking counseling.

A recent court of appeals decision confirms that requiring persons to undergo medical scrutiny solely on the basis of their status as a member of a protected class violates anti-
discrimination laws. In EEOC v. Massachusetts, 987 F.2d 64 (lst Cir. 1993), the Court of Appeals for the First Circuit addressed whether a Massachusetts statute, requiring that employees 70 or older pass an annual medical examination as a condition of continued employment, violated the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (1986). The court found the state law to be facially discriminatory because it "allows age to be the determinant as to when an employee's deterioration will be so significant that it requires special treatment" and thereby "strikes at the heart of the ADEA [whose] entire point ... is to abandon previous stereotypes about the abilities and capacities of older workers." 987 F.2d at 71. See also Medical Society of New Jersey 1993 WL 413016, at *7 ("In the context of other anti-
discrimination statutes, it has been held to be fundamental that an individual's status cannot be used to make generalizations about that individual's behavior.") (citing Los Angeles Dep't of Water and Power v. Manhart, 435 U.S. 702 (1978)).

\

\

\

\

\

\

\

\

\

\

\

\

\

\

\

\

III. Conclusion

For the foregoing reasons, the United States urges the Court to conclude that the Board's use of the challenged inquiries violates title II of the ADA. Accordingly, Defendants' motion to dismiss should be denied and Plaintiffs' motion for preliminary injunction should be granted.

Dated:	Washington, D.C.

June ___, 1994

Respectfully submitted,

KENDALL COFFEY	DEVAL L. PATRICK

United States Attorney	Assistant Attorney

for the Southern District	General

of Florida	Civil Rights Division

By: VERONICA HARRELL-JAMES	By:

Assistant United States	JOHN L. WODATCH

Attorney	JOAN A. MAGAGNA

Florida Bar No. 644791	SHEILA M. FORAN

Attorneys

U.S. Department of Justice

Civil Rights Division

Public Access Section

P.O. Box 66738

Washington, D.C. 20035-6738

Tel: (202) 307-0663