Number range CHAPTER

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

**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

**TABLE OF AUTHORITIES**

**CASES:** PAGE

[Addington v. Texas]{.underline}, 441 U.S. 418
(1979)\...\...\...\...\...\.... 11

[Arlington Heights v. Metropolis Housing Development Corp.]{.underline},

> 429 U.S. 252 (1977)\...\...\...\...\...\...\...\...\...\...\...\... 12

[Bailey v. Board of Law Examiners]{.underline}, 508 F. Supp. 106 (W.D.

> Tex. 1980)\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...
> 8

[Barnard v. Thorstenn]{.underline}, 489 U.S. 546
(1989)\...\...\...\...\..... 6

[Branch Bank and Trust Co. v. National Credit Union Admin.]{.underline}

> [Bd.]{.underline}, 786 F.2d 621 (4th Cir. 1986), [cert.
> denied]{.underline} 479

U.S. 1063 (1987)\...\...\...\...\...\...\...\...\...\...\...\...\... 14

[Boyett Coffee Co. v. United States]{.underline}, 775 F. Supp. 1001
(W.D.

> Tex. 1991)\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...
> 15

[Chesapeake and Potomac Telephone Company of Virginia v.]{.underline}

[United States]{.underline}, 830 F. Supp. 909 (E.D. Va. 1993)\..... 9,
12

[Chevron, U.S., Inc. v. Natural Resources Defense Council,]{.underline}

> [Inc.]{.underline}, 467 U.S. 837
> (1984)\...\...\...\...\...\...\...\...\...\... 16

[Clarke v. Securities Industry Ass\'n]{.underline}, 479 U.S. 388
(1987).. 14

[Clark v. Virginia Board of Bar Examiners]{.underline}, No. 94-211-A

> (E.D. Va. 1994), cited as \"Opinion\"\...\...\.... 3, 7, 17, 22

[District of Columbia Court of Appeals v. Feldman]{.underline},

> 460 U.S. 462 (1983)\...\...\...\...\...\...\...\...\...\.....
> [passim]{.underline}

[Doe v. New York University]{.underline}, 666 F.2d 761 (2nd Cir.

> 1981)\...\...\...\...\...\...\...\...\...\...\...\...\...\...\.... 18,
> 19

[Ellen S. v. Florida Board of Bar Examiners]{.underline},

> No. 94-0429-CIV-KING, (S.D. Fla.
>
> Aug. 1, 1994)\...\...\...\...\...\...\...\...\...\..... 5, 6, 10, 22

[Federal Sav. and Loan Ins. Corp. v. Heidrick]{.underline}, 774 F. Supp.

> 352 (D. Md. 1991)\...\...\...\...\...\...\...\...\...\...\...\...\...
> 15

[Forrisi v. Bowen]{.underline}, 794 F.2d 931 (4th Cir.
1986)\...\...\...\... 20

[Gladstone Realtors v. Village of Bellwood]{.underline}, 441 U.S. 91

> (1979)\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\....
> 14

[Guice-Mills v. Derwinksi]{.underline}, 772 F. Supp. 188 (S.D.N.Y.

> 1991)\...\...\...\...\...\...\...\...\...\...\...\...\...\...\.... 17,
> 21

[Hoffman v. Hunt]{.underline}, 845 F. Supp. 340 (W.D.N.C.
1994)\...\...\... 9

[In re Petition of Frickey]{.underline}, No. C5-84-2139 (Minn. Apr.

> 28, 1994)\...\...\...\...\...\...\...\...\...\...\...\...\...\...\....
> 12

[Lujan v. Defenders of Wildlife]{.underline}, 112 S.Ct 2130
(1992)\...\... 9

[Lyng v. Payne]{.underline}, 476 U.S. 926
(1986)\...\...\...\...\...\...\...\... 16

[Medical Society of New Jersey v. Jacobs]{.underline}, 1993 WL 413016

> (D.N.J. Oct. 5, 1993)\...\...\...\...\...\...\...\...\...\...\.... 10

[Nasser v. City of Homewood]{.underline}, 671 F.2d 434 (11th Cir. 1982).
13

[Nordgren v. Hafter]{.underline}, 789 F.2d 334 (5th Cir. 1986),
[cert.]{.underline}

> [denied]{.underline}, 479 U.S. 850
> (1986)\...\...\...\...\...\...\...\...\.... 4

[Parnham v. J.R.]{.underline}, 442 U.S. 584
(1979)\...\...\...\...\...\...\.... 11

[Perez v. Philadelphia Housing Authority]{.underline}, 677 F. Supp.

> 357 (E.D. Pa. 1987), [aff\'d]{.underline} 841 F. 2d 1120 (3rd Cir.
>
> 1988)\...\...\...\...\...\...\...\...\...\...\...\...\...\...\.... 19,
> 20

[Petersen v. University of Wis. Bd. Regents]{.underline}, 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]{.underline}, 586 F. Supp. 1332 (D. Vt.
1984)\...\.... 8

[School Board of Nassau County v. Arline]{.underline}, 480 U.S. 273

> (1987)\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\....
> 23

[Smith v. Schlesinger]{.underline}, 513 F.2d 462 (D.C. Cir.
1975)\...\.... 11

[Stinson v. United States]{.underline}, 113 S. Ct. 1913
(1993)\...\...\.... 16

[Thorstenn v. Barnard]{.underline}, 883 F.2d 217 (3rd Cir.
1989)\...\..... 6

[Trafficante v. Metropolitan Life Ins. Co.]{.underline}, 409 U.S. 205

> (1972)\...\...\...\...\...\...\...\...\...\...\...\...\...\...\... 13,
> 14

[Warth v. Seldin]{.underline}, 422 U.S. 490
(1975)\...\...\...\...\...\...\..... 9

[Woodward v. Viriginia Board of Bar Examiners]{.underline}, 454 F. Supp

> 4 (E.D. Va. 1978), [aff\'d]{.underline} 598 F. 2d 1345 (4th Cir
> 1979).. 5

[Udall v. Tallman]{.underline}, 380 U.S. 1
(1965)\...\...\...\...\...\...\..... 16

[United States v. Larionoff]{.underline}, 431 U.S. 864
(1977)\...\...\..... 16

[Younger v. Colorado State Board of Bar Examiners]{.underline}, 482 F.

> Supp. 1244 (D. Colo. 1980), [rev\'d on other grounds]{.underline},
>
> 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]{.underline}, 23 Ind. L. Rev. 821
(1990)\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...
12

**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 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]{.underline}, 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]{.underline}, 460 U.S. at
485 (quoting [Doe v. Pringle]{.underline}, 550 F.2d 596, 597 (10th Cir.
1976)). The United States agrees that the doctrine described in
[Feldman]{.underline} governs jurisdiction. The United States disagrees,
however, with the Court\'s application of [Feldman]{.underline}. Instead
of limiting jurisdiction, [Feldman]{.underline} supports it.

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
>
> \(5\) 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]{.underline}, 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]{.underline},
789 F.2d 334, 337 (5th Cir.)(quoting [Feldman]{.underline}, 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 [Feldman]{.underline}), [cert. denied]{.underline}, 479 U.S. 850
(1986), this Court has jurisdiction over plaintiff\'s claim.[^3]

In [Ellen S. v. Florida Board of Bar Examiners]{.underline}, the
District Court for the Southern District of Florida recently questioned
this Court\'s interpretation of [Feldman]{.underline} and its decision
regarding lack of jurisdiction over Ms. Clark\'s claims. The court held
that, although the facts of [Ellen S.]{.underline} and the case at
presently bar are similar, this Court\'s opinion was not persuasive.
Instead, the court, citing [Feldman]{.underline}, held that it
[had]{.underline} 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]

Jurisdiction to review bar admission rules for statutory or
constitutional violations has also been upheld by other courts. In
[Barnard v. Thorstenn]{.underline}, 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. § 1331. [Thorstenn v.
Barnard]{.underline}, 883 F.2d 217 (3rd Cir. 1989).[^5]

Similarly, the reasoning of the Court in [Younger v. Colorado State
Board of Bar Examiners]{.underline}, 482 F. Supp. 1244 (D. Colo. 1980),
[rev\'d on other grounds]{.underline}, 625 F.2d 372 (10th Cir. 1980),
strongly supports plaintiff\'s case. In [Younger]{.underline}, 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.]{.underline} 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 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

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]{.underline}

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]{.underline}, 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]{.underline}, 112 S.Ct 2130, 2136;
[Chesapeake and Potomac Telephone Company of Virginia v. United
States]{.underline}, 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]{.underline}, 422 U.S. at 499; [Hoffman v. Hunt]{.underline}, 845
F. Supp. 340 (W.D.N.C. 1994).

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]{.underline}, 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]{.underline}, 1993
WL 413016, \*7-8 (D.N.J. Oct. 5, 1993). The court in [Ellen
S.]{.underline}, citing [Jacobs]{.underline}, also held that inquiries
into the applicants\' mental health histories placed additional burdens
on the applicants. [Ellen S.]{.underline}, 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]{.underline}. at 10.[^7]

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.]{.underline}, 442 U.S. 584, 600 (1979); [Addington v.
Texas]{.underline}, 441 U.S. 418, 426 (1979); [see also]{.underline}
[Smith v. Schlesinger]{.underline}, 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\").[^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 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]{.underline}, 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.]{.underline}, 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 Court went
on to hold that the plaintiff had standing because he was denied the
opportunity for interracial association. [See also]{.underline}
[Gladstone Realtors v. Village of Bellwood]{.underline}, 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.]{.underline}, 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]{.underline}, 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, 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        ]{.underline}

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\...

\(B\) a record of such impairment; or

> \(C\) being regarded as having such an impairment.

42 U.S.C. § 12102 (2); 28 C.F.R. § 35.102 (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]{.underline}\....\" 28 C.F.R. § 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.

> a\. The Evidence Supports Ms. Clark\'s
>
> Claim That She Has A Record of a
>
> [Disability                       ]{.underline}

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]{.underline} caring for one\'s self,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working.\" 28 C.F.R. § 35.104 (emphasis added).[^14] This
list of major life activities is not intended to be exhaustive, but to
instead provide [examples]{.underline} 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 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]{.underline}, 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]{.underline}, 677 F. Supp. 357, 360 (E.D. Pa., 1987),
[aff\'d]{.underline} 841 F.2d 1120 (3rd Cir. 1988); [see
also]{.underline}, [Doe v. New York University]{.underline}, 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 cannot be accomplished merely
through abstract lists and categories of impairments.\" [Forrisi v.
Bowen]{.underline}, 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]{.underline}, 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]{.underline} with
[symptoms]{.underline} 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 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]

> b\. The Record Supports The Conclusion That
>
> [The Board Regards Ms. Clark As Disabled]{.underline}

This Court also concluded that the Board did not [regard]{.underline}
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.]{.underline} 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]{.underline} 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]

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]{.underline}, 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.

**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

[CERTIFICATE OF SERVICE]{.underline}

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]{.underline} 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

[^1]: ^?^ 42 U.S.C. §§ 12101-12213 (Supp. II 1990).

[^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]: ^?^ 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]{.underline} 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]{.underline}, 454 F. Supp. 4 (E.D. Va. 1978),
    [aff\'d]{.underline}, 598 F.2d 1345 (4th Cir. 1979), in support of
    its ruling. The plaintiff in [Woodard]{.underline}, 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]{.underline}, 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]{.underline} [S.]{.underline}, 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\...)

    ^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]{.underline}, 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]{.underline} asserted
    a violation of the Constitution and a federal statute\-\-- the
    Revised Organic Act, 48 U.S.C. § 1561, which extended the
    Constitution to the Virgin Islands.

[^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]{.underline}, 586 F. Supp. 1332, 1336 (D. Vt. 1984)(citing
    [Feldman]{.underline} 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]{.underline}, 508 F. Supp. 106, 108 (W.D.
    Tex. 1980)(quoting [Brown v. Board of Examiners]{.underline}, 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\").

[^7]: ^?^ In [Jacobs]{.underline}, 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]{.underline} at \* 7. The court in [Ellen S.]{.underline}
    broadened the [Jacobs]{.underline} ruling and held that the
    questions themselves were discriminatory because they automatically
    triggered subsequent questions and possible subsequent possible
    investigation. [Ellen S.]{.underline}, 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.

[^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]{.underline}, 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]{.underline} Stephen T. Maher and Lori Blum, [A Strategy for
    Increasing the Mental and Emotional Fitness of Bar
    Applicants]{.underline}, 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]{.underline}
    [id]{.underline}. 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.]{.underline}, 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]{.underline} [Chesapeake and Potomac Telephone Co. of Virginia
    v. United States]{.underline}, 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).

[^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]{.underline}, 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]{.underline} [Clarke v. Securities Industry
    Ass\'n]{.underline}, 479 U.S. 388 (1987), denying zone of interest
    and standing because plaintiff had goals contrary to those Congress
    sought to protect.

[^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 inferences which may be drawn from the
    undisputed facts.\" [Federal Sav. and Loan Ins. Corp. v.
    Heidrick]{.underline}, 774 F. Supp. 352, 356 (D. Md. 1991)(quoting
    [Steinberg v. Elkins]{.underline}, 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]{.underline}, 775 F. Supp 1001, 1002 (W.D. Tex
    1991).

[^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. § 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.]{.underline}, 467 U.S. 837, 844 (1984). [See also]{.underline}
    [Petersen v. University of Wis. Bd. Regents,]{.underline} 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]{.underline} 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]{.underline}, 113
    S. Ct., 1913, 1919 (1993) (quoting [Bowles v. Seminole Rock & Sand
    Co.]{.underline}, 325 U.S. 410, 414 (1945)). [See]{.underline} [Lyng
    v. Payne]{.underline}, 476 U.S. 926, 939 (1986); [United States v.
    Larionoff]{.underline}, 431 U.S. 864, 872-873 (1977); [Udall v.
    Tallman]{.underline}, 380 U.S. 1, 16-17 (1965).

[^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]{.underline} 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. §
    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]{.underline} 42 U.S.C. § 12202(a);
    Education and Labor Report at 84; 28 C.F.R. § 35.103(a) (1992).
    [See]{.underline} [also]{.underline} [Doe v. New York
    University]{.underline}, 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)).

[^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]{.underline} 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]{.underline} cannot qualify her as a person with a
    disability.

[^17]: ^?^ In [Guice-Mills v. Derwinski]{.underline}, 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]{.underline}, 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]{.underline}\...

    Education and Labor Report at 52; Senate Report at 23 (emphasis
    added).

[^19]: As the [Ellen S.]{.underline} 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.]{.underline} 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.