Number range CHAPTER IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

[                                                                                   ]{.underline}

)

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. )

)

)

[                                                                                   ]{.underline}
)

[                                                                 ]{.underline}

MEMORANDUM OF THE UNITED STATES

AS [AMICUS CURIAE]{.underline}

[                                                                 ]{.underline}

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]{.underline}

**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]{.underline}

**CASES:**

[Addington v. Texas]{.underline}, 441 U.S. 418 (1979) 30

[Bowles v. Seminole Rock & Sand Co.]{.underline}, 325 U.S. 410 (1945) 12

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

[Council, Inc.]{.underline}, 467 U.S. 837 (1984) 12

[Doe v. Syracuse School Dist.]{.underline}, 508 F. Supp. 333

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

[Easley by Easley v. Snyder]{.underline}, 841 F. Supp. 668

(E.D. Pa. 1993) 18

[EEOC v. Massachusetts]{.underline}, 987 F.2d 64 (1st Cir. 1993) 33

[Estate of Roulet]{.underline}, 23 Cal.3d 219 (1979) 31

[Florida Bd. of Bar Examiners v. Applicant]{.underline}, 443 So.2d 71

(Fla. 1983) 7

[Florida Bd. of Bar Examiners v. G.W.L.]{.underline}, 364 So.2d 454

(Fla. 1978) 7

[Haitian Refugee Center, Inc. v. Nelson]{.underline}, 872 F.2d 1555

(11th Cir. 1989) 5

[In Re Applications of Anne Underwood and Judith Ann Plano]{.underline},

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

[In Re Applicant Mort]{.underline}, 560 N.E.2d 204 (Ohio 1990) 7

[In Re John Ballay]{.underline}, 482 F.2d 648 (D.C. Cir. 1973) 31

[In Re Petition of Frickey, et al.]{.underline}, No. C5-84-2139

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

[Johnson v. Department of Agriculture]{.underline}, 734 F.2d 774

(11th Cir. 1984) 5

[Kinney v. Yerusalim]{.underline}, 812 F. Supp. 547 (E.D. Pa. 1993),

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

[Konigsberg v. State Bar of California]{.underline}, 366 U.S. 36 (1961)
7

[Lyng v. Payne]{.underline}, 476 U.S. 926 (1986) 12

[McNary v. Haitian Refugee Center]{.underline}, 489 U.S. 479 (1991) 5

[Los Angeles Dep\'t of Water and Power v. Manhart]{.underline}, 435 U.S.

702 (1978) 34

[Matter of Ronwin]{.underline}, 680 P.2d 107 (Az. 1983) 7

[Martin-Trigona v. Underwood]{.underline}, 529 F.2d 33 (7th Cir. 1975) 7

[Medical Society of New Jersey v. Jacobs]{.underline}, 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.]{.underline}, 946 F.2d 345

(4th Cir. 1991) 18

[Parham v. J.R.]{.underline}, 442 U.S. 584 (1979) 30

[Pennhurst State sch. & Hospital v. Halderman]{.underline}, 451 U.S. 1

\(1981\) 9

[People v. Burnick]{.underline}, 14 Cal.3d 306 (1975) 31

[Petersen v. University of Wis. Bd. of Regents]{.underline}, 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]{.underline}, 480 U.S. 273

\(1986\) 14,18

[Smith v. Schlesinger]{.underline}, 513 F.2d 462 (D.C. Cir. 1975) 30

[Stinson v. United States]{.underline}, 113 S. Ct. 1913 (1993) 12

[Strathie v. Department of Transp.]{.underline}, 716 F.2d 227

(3d Cir. 1983) 18

[Udall v. Tallman]{.underline}, 380 U.S. 1 (1965) 12

[United States v. Larionoff]{.underline}, 431 U.S. 864 (1977) 12

[Washington v. Davis]{.underline}, 426 U.S. 229 (1976) 7

**STATUTES:**

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

§§ 12101-12213 (\"ADA\") [passim]{.underline}

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]{.underline}

28 C.F.R. pt. 36 (1991) [passim]{.underline}

**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]{.underline},

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]{.underline}, 62 Cal. L. Rev.
693 (1974) 20

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

Reishel, [The Constitution, the Disability Act, and Questions about
Alcoholism, Addiction, and Mental Health]{.underline}, 61 The Bar
Examiner 10 (1992) 24

Deborah L. Rhode, [Moral Character as Professional
Credential]{.underline},

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]{.underline} (3d ed. 1981) 20

[Introduction]{.underline}

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]{.underline}
[curiae]{.underline}, 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]{.underline}, 872 F.2d 1555, 1561-62 (11th Cir.
1989) [aff\'d sub nom.]{.underline} [McNary v. Haitian Refugee
Center]{.underline}, 498 U.S. 479 (1991); [Johnson v. Department of
Agriculture]{.underline}, 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]{.underline} 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]{.underline} [Medical Society of New Jersey v.
Jacobs]{.underline}, 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]{.underline}, 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]{.underline} [also]{.underline} [In re Petition of
Frickey, et al.]{.underline}, 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]{.underline} 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]{.underline} 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]{.underline} 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]{.underline} 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]{.underline}.

Education and Labor Report at 84 (emphasis added).

Elsewhere the report states that

> Title II . . . makes [all activities]{.underline} 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.]{.underline} 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]{.underline} . . . .[^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]{.underline}
discussion [infra]{.underline}. As the Supreme Court observed in [School
Board of Nassau County v. Arline]{.underline}, 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]{.underline} 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]{.underline}, 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]{.underline} 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]{.underline} 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.]{.underline} 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]{.underline} as an individual with
a disability as if it were indicative of that individual\'s future
[behavior]{.underline} 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]{.underline} 1
Jay Ziskin, [Coping with]{.underline} [Psychiatric and Psychological
Testimony]{.underline} 1-63 (3d ed. 1981); Bruce J. Ennis & Thomas R.
Litwack, [Psychiatry and the Presumption of Expertise: Flipping Coins in
the Courtroom]{.underline}, 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]{.underline}
> 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]{.underline} 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]{.underline} 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]{.underline} [In re
Petition of Frickey, et al.]{.underline}, 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]{.underline}, 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]{.underline}, 61 The Bar
Examiner 10, 20 (1992).[^27]

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> **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]{.underline} [Medical Society of New
Jersey v. Jacobs]{.underline} 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]{.underline} [e.g.,]{.underline} [Medical
Society of New Jersey]{.underline}, 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]{.underline} [alia]{.underline},
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]{.underline}, [supra]{.underline}, 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.]{.underline}, 442 U.S. 584, 600 (1979);
[Addington v. Texas]{.underline}, 441 U.S. 418, 426 (1979).[^31] [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\") (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]{.underline} Stephen T. Maher & 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). 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.]{.underline}, 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]{.underline}
Maher & Blum, [supra]{.underline}, 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]{.underline}, 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]{.underline} [also]{.underline} [Medical
Society of New Jersey]{.underline} 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]{.underline}, 435 U.S. 702
(1978)).

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**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: [                  ]{.underline}

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

[^1]: ^?^ [See]{.underline} Florida bar application at Exhibit A to
    Plaintiffs\' Complaint.

    The plaintiffs, Ellen S., Annabel R., Katherine F. and Sally M., are
    citizens of the United States and are residents of Florida. All four
    plaintiffs have received mental health services at some point in
    their lives.

    Ellen S. is an attorney who is licensed to practice in the State of
    New York. She has been practicing disability law for the last six
    years, including serving as lead counsel in a class action and
    representing disabled clients in a variety of complex litigation.
    She has taken and passed the Florida bar examination, and has filled
    out an application for the Florida bar.

    Plaintiff Annabel R. graduated in May 1994 from the University of
    Miami School of Law in Coral Gables, Florida, and has filled out the
    application for the Florida bar. She is past President of the School
    of Law\'s Forum for Women and the Law, past chairman of the most
    successful Public Interest Law Grant fundraising campaign to date,
    and one of the first students elected to serve as a student
    representative on the Law School\'s Disability Issues Committee.

    Plaintiff Katherine F. is a second-year law student in good standing
    at the University of Miami School of Law. She has filled out the
    application for the Florida Bar, and expects to graduate in May 1995
    and take the Florida bar examination in July 1995. She has not yet
    sent in the application for the Florida bar but intends to do so
    within the next several months.

    Plaintiff Sally M. is a first-year law student in good standing at
    the University of Miami School of Law. She worked as a counselor for
    women who had been subject to violence and abuse prior to coming to
    law school.

[^2]: ^?^ Ellen S. and Annabel R. seek a preliminary injunction
    prohibiting defendants from:

    1\) compelling plaintiffs to answer Question 29 as a condition of
    practicing law in the State of Florida;

    2\) using the authorization forms signed by plaintiffs to make any
    inquiry of any of plaintiffs\' treatment professionals as a
    condition of practicing law in the State of Florida;

    3\) conducting any investigation or screening arising solely from an
    applicant\'s seeking health treatment rather than any conduct
    reflecting unfitness or inability to practice law.

    The Board of Bar Examiners has agreed not to terminate the
    application of Ellen S. pending resolution of this litigation.
    However, the Board has stated that it will not admit her to the
    Florida bar without answering this question unless ordered to do so
    by this Court.

[^3]: ^?^ [See]{.underline} H.R. Rep. No. 485, 101st Cong., 2d Sess.,
    pt. II at 30, 33, 40, 41 (1990) \[hereinafter cited as Education and
    Labor Report\]; H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. III at
    25 (1990) \[hereinafter cited as Judiciary Report\]; S. Rep. No.
    116, 101st Cong., 1st Sess. at 7, 9, and 15 (1989) \[hereinafter
    cited as Senate Report\].

[^4]: ^?^ In arguing that the challenged inquiries do not discriminate
    on the basis of disability, the Board relies heavily on [Florida
    Board of Bar Examiners v. Applicant]{.underline}, 443 So.2d 71 (Fla.
    1983), which rejected a challenge to similar mental health
    inquiries. The Board mistakenly asserts in its Motion to Dismiss at
    6 that the case was decided under Section 504 of the Rehabilitation
    Act of 1973, which in fact was never raised in the case. The
    [Florida Board of Bar Examiners]{.underline} case addressed state
    and federal constitutional claims, none of which are at issue here.
    Federal civil rights statutes may, of course, provide greater or
    different protection for individuals than do Federal and State
    constitutions. [See e.g.]{.underline}, [Washington v.
    Davis]{.underline}, 426 U.S. 229 (1976). This is precisely what the
    ADA accomplishes with respect to persons with disabilities.

    Although defendants are correct in stating that the courts in
    [Underwood and Plano]{.underline}, [Jacobs]{.underline}, and
    [Frickey]{.underline} are not the only ones to examine the issue of
    mental health inquiries on license applications, these are the only
    cases to be decided under the ADA. None of the cases cited in
    defendants\' Motion to Dismiss at 6-7 raise or address the ADA or
    the Rehabilitation Act of 1973, the statutes that prohibit
    discrimination on the basis of disability. For example, [Florida
    Board of Bar Examiners v. G.W.L.]{.underline}, 364 So.2d 454 (Fla.
    1978), concerned an applicant to the bar who sought to avoid
    repaying his student loans by filing for bankruptcy protection. He
    had not attempted to find a job, nor did he contact his creditors to
    try to reschedule his payments. The court held that the Board could
    consider his (albeit legal) activities as evidence of \"bad moral
    character.\" In [Konigsberg v. State Bar of California]{.underline},
    366 U.S. 36 (1961), the applicant refused to answer a question on
    his Bar application about whether or not he had ever been a member
    of the Communist Party. The Court addressed this as a 14th Amendment
    issue and held that the question must have a \"substantial relevance
    to his qualifications \[for the Bar\].\" The Court held that this
    question was not arbitrary or discriminatory and was substantially
    related to the qualifications needed. [See also]{.underline}
    [Martin-Trigona v. Underwood]{.underline}, 529 F.2d 33 (7th Cir.
    1975), [In Re Applicant Mort]{.underline}, 560 N.E.2d 204 (Ohio
    1990), cert. denied 498 U.S. 1072 (1991), [Matter of
    Ronwin]{.underline}, 680 P.2d 107 (Az. 1983), cert. denied 464 U.S.
    977 (1983), (none of which raise or address the ADA or
    Rehabilitation Act of 1973.)

[^5]: ^?^ Prior to the passage of the ADA in 1990, similar protections
    had been provided by section 504 of the Rehabilitation Act of 1973,
    29 U.S.C. § 794, but only in programs or activities receiving
    federal financial assistance (including assisted programs of State
    and local governments). In language that is substantively similar to
    that of section 504, title II expanded this prohibition to all
    programs, services, and activities of State and local governments,
    not just to those aided by federal funds. [See]{.underline}
    Education and Labor Report at 84.

[^6]: ^?^ The Board is an administrative body of the Florida judiciary.
    The legislature has declared admissions of attorneys to be a
    judicial function governed by the Supreme Court of Florida. The
    Board is charged with conducting a basic character and fitness
    investigation of each applicant. [See]{.underline} Fla. Stat.
    § 454.021 (1991).

[^7]: ^?^ The Board apparently overlooked this statutory language, for
    it erroneously states that the ADA contains no explicit mention of
    the Fourteenth Amendment. Supplemental Motion to Dismiss or in the
    Alternative for Summary Judgement at 5. Thus the Board\'s reliance
    on [Pennhurst State Sch. & Hospital v. Halderman]{.underline}, 451
    U.S. 1 (1981), is inapposite.

[^8]: ^?^ Supplemental Motion at 5-6.

[^9]: ^?^ Whether licensing of attorneys is a \"sovereign function\" of
    the states, and, if so, whether this is of any constitutional
    significance, need not be decided by this court because
    [all]{.underline} state activities are covered by title II,
    regardless of how they are characterized. We note, however, that the
    ADA expressly abrogates state sovereign immunity. [See]{.underline}
    42 U.S.C. § 12202. This supports the view that Congress understood
    the Act to reach the states as sovereigns.

[^10]: ^?^ As a remedial statute, the ADA \"must be broadly construed to
    effectuate its purposes.\" [Kinney v. Yerusalim]{.underline}, 812 F.
    Supp. 547, 551 (E.D. Pa. 1993), [aff\'d]{.underline}, 9 F.3d 1067
    (3d Cir. 1993).

[^11]: ^?^ The United States relies heavily throughout on the title II
    regulation promulgated by the Department of Justice. 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.A., Inc. v.
    Natural Resources Defense Council, Inc.]{.underline}, 467 U.S. 837,
    844 (1984). [See also]{.underline} [Petersen v. University of Wis.
    Bd. of 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 or 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).

[^12]: ^?^ The title II regulation describes \"major life activities\"
    to include \"functions such as caring for one\'s self, performing
    manual tasks, walking, seeing, hearing, speaking, breathing,
    learning, and working.\" 28 C.F.R. § 35.104. The phrase \"such as\"
    indicates that the list is not meant to be exclusive.

[^13]: ^?^ Education and Labor Report at 52; Senate Report at 23
    (emphasis added). Individuals who have been diagnosed or treated for
    mental or emotional disorders face substantial obstacles in pursuing
    major life activities such as working because mental illness still
    carries a stigma in our society. A history of mental illness is the
    classic case of an \"impairment that substantially limits major life
    activities . . . as a result of the attitude of others towards such
    an impairment.\" 28 C.F.R. § 35.104 (1992).

[^14]: ^?^ The title II regulation defines this prong to include persons
    who have \"a physical or mental impairment that substantially limits
    major life activities only as a result of the attitudes of others
    toward such an impairment . . . .\" 28 C.F.R. § 35.104 (1992).

[^15]: ^?^ The [Arline]{.underline} case was decided under Section 504
    of the Rehabilitation Act, 29 U.S.C. § 794, which prohibits
    discrimination against individuals with handicaps by programs
    receiving federal financial assistance. In the ADA, Congress adopted
    a definition of \"disability\" essentially identical to the Section
    504 definition of \"handicap\" that was considered by the Supreme
    Court in [Arline]{.underline}. The legislative history of the ADA
    includes numerous approving references to [Arline\'s]{.underline}
    interpretation of the law. [See]{.underline} Senate Report at 21-24
    (1989); Education and Labor Report at 50-53. Moreover, the statute,
    legislative history and Department of Justice regulations make it
    clear that title II of the ADA is intended to provide protection at
    least as broad as 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).

[^16]: ^?^ Indeed, Defendants\' Motion to Dismiss states:

    > It is of the utmost importance that the information sought by the
    > defendants regarding an applicant\'s mental health is discovered
    > prior to his being admitted to the Bar. If the defendants were to
    > sit idle and wait for conduct related to a lawyer\'s impaired
    > mental health to occur then great harm could come to those who
    > have put their trust in that lawyer.

    Motion to Dismiss at 5.

[^17]: ^?^ 28 C.F.R. § 35.130(b)(8) provides:

    > A public entity shall not impose or apply eligibility criteria
    > that screen out or tend to screen out an individual with a
    > disability or any class of individuals with disabilities from
    > fully and equally enjoying any service, program, or activity,
    > [unless such criteria can be shown to be necessary for the
    > provision of the service, program, or activity being
    > offered]{.underline}.\
    > (Emphasis added.)

[^18]: ^?^ The Board is thus incorrect that unnecessary inquiries into
    disabilities are prohibited only by title I of the ADA, which
    prohibits employment discrimination on the basis of disability.

[^19]: ^?^ The commentary to the regulation also indicates that
    determining what constitutes \"essential eligibility requirements\"
    has been shaped by cases decided under section 504 of the
    Rehabilitation Act of 1973. 29 U.S.C. § 794. These cases have
    demanded a careful analysis behind the qualifications used to
    determine the actual criteria that a position requires. [School Bd.
    v. Arline]{.underline}, 480 U.S. 273, 287-288 (1986); [Pandazides v.
    Virginia Bd. of Educ.]{.underline}, 946 F.2d 345, 349-50 (4th Cir.
    1991)(noting that \"defendants cannot merely mechanically invoke any
    set of requirements and pronounce the handicapped applicant or
    prospective employee not otherwise qualified. The district court
    must look behind the qualifications\"); [Doe v. Syracuse School
    Dist.]{.underline}, 508 F. Supp. 333, 337 (N.D.N.Y. 1981) (requiring
    analysis behind \"perceived limitations\"). [See also]{.underline}
    [Strathie v. Department of Transp.]{.underline}, 716 F.2d 227, 231
    (3d Cir. 1983) (finding State\'s characterization of essential
    nature of program to license bus drivers overbroad, and requiring a
    \"factual basis reasonably demonstrating\" that accommodating the
    individual would modify the essential nature of the program);
    [Easley by Easley v. Snider]{.underline}, 841 F. Supp. 668, 673
    (E.D. Pa. 1993) (finding a violation of the ADA where health
    maintenance program used improper eligibility criterion to screen
    out disabled individuals, and requiring the court to \"make an
    independent inquiry into the essential nature of the program.\").

[^20]: ^?^ As noted in the Department\'s title II analysis accompanying
    section 35.104,

    > Where questions of safety are involved, the principles established
    > in §36.208 of the Department\'s regulation implementing title III
    > of the ADA, to be codified at 28 C.F.R. Part 36, will be
    > applicable. That section implements section 302(b)(3) of the Act,
    > which provides that a public accommodation is not required to
    > permit an individual to participate in or benefit from the goods,
    > services, facilities, privileges, advantages and accommodations of
    > the public accommodation, if that individual poses a direct threat
    > to the health or safety of others.
    >
    > A \"direct threat\" is a significant risk to the health or safety
    > of others that cannot be eliminated by a modification of policies,
    > practices, or procedures, or by the provision of auxiliary aids or
    > services\.... Although persons with disabilities are generally
    > entitled to the protection of this part, a person who poses a
    > significant risk to others will not be \"qualified,\" if
    > reasonable modifications to the public entity\'s policies,
    > practices, or procedures will not eliminate that risk.

    28 C.F.R. pt. 35, app. A at 448 (1993).

[^21]: ^?^ According to the Rules of the Florida Supreme Court Relating
    to Admissions to the Bar:

    > \[t\]he primary purposes of character and fitness screening before
    > admission to The Florida Bar are to assure the protection of the
    > public and safeguard the justice system. 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.

    Article III, Section 2 (b).

[^22]: ^?^ The ADA prohibits discrimination based on stereotypical and
    unfounded fears and misconceptions over the perceived consequences
    of disabilities. [See, e.g.]{.underline}, Title II Technical
    Assistance Manual at 12 (\"A public entity may impose legitimate
    safety requirements necessary for the safe operation of its
    services, programs, or activities. However the public entity must
    ensure that its safety requirements [are based on real risks, not on
    speculation, stereotypes, or generalizations about individuals with
    disabilities]{.underline}\") (emphasis added).

[^23]: ^?^ Of course this is even more true with respect to bar
    examiners, who are not usually professionals trained in the fields
    of psychiatry or psychology.

    > \[w\]hile mental stability is obviously relevant to practice,
    > current certification standards license untrained examiners to
    > draw inference that the mental health community would find highly
    > dubious\...Even trained clinicians cannot accurately predict
    > psychological incapacities based on past treatment in most
    > individual cases.

    Deborah L. Rhode, [Moral Character as a Professional
    Credential]{.underline}, 94 Yale L.J. 491, 581-82 (1985).

[^24]: ^?^ [See]{.underline} Defendants\' Reply to Plaintiffs\'
    Memorandum in Opposition to Defendants\' Motion to Dismiss at 9:
    \"\[I\]t is absolutely clear that the purpose of such questions
    \[regarding mental health history\] is not to ascertain the
    \'status\' of applicants, but rather to determine whether a
    person\'s psychological history or condition has resulted in certain
    [conduct]{.underline} or [behavior]{.underline} in the past which
    might reflect on the applicant\'s qualifications to function in a
    fiduciary capacity with respect to members of the public in the
    practice of law in Florida.\"

[^25]: ^?^ Under the ADA, \"the term \'individual with a disability\'
    does not include an individual who is currently engaging in the
    illegal use of drugs, when the covered entity acts on the basis of
    such use.\" 42 U.S.C. § 12110(a).

[^26]: ^?^ For instance, in [Doe v. Syracuse School
    District]{.underline}, 508 F. Supp. 333 (N.D.N.Y. 1981), the court
    held that a question on a job application form asking whether the
    applicant had ever experienced a nervous breakdown or undergone
    psychiatric treatment was illegal under the Rehabilitation Act and
    its implementing regulations. The district court noted that, \"if
    defendant sincerely wanted to employ persons that were capable of
    performing their jobs, all it had to ask was whether the applicant
    was capable of dealing with various emotionally demanding
    situations.\" [Id.]{.underline} at 337.

[^27]: ^?^ The article states:

    > The vast bulk of such responses \[to the mental health treatment
    > inquiry\] have concerned counseling, most frequently marriage
    > counseling, with no relevance to fitness to practice. Almost
    > always more serious mental health problems have been signalled by
    > responses to other questions (about arrests, crimes, debt,
    > litigation, discipline, etc.). Indeed, since mental health
    > information is only relevant to a fitness inquiry because it might
    > show a risk to job performance, arguably the only evidence that is
    > material is that the applicant\'s mental condition has interfered
    > with the applicant\'s job, school, or analogous activities. Any
    > such significant interference should be, and almost invariably has
    > been, reflected in the other information the committee seeks.

    Responses of about 20,000 applicants to mental health inquiries over
    a period of seven years [never]{.underline} resulted in a
    applicant\'s noncertification for admission to the District of
    Columbia bar. Reishel, [The Constitution, the Disability Act, and
    Questions about Alcoholism, Addiction, and Mental
    Health]{.underline}, 61 The Bar Examiner 10, 20 (1992).

[^28]: ^?^ Defendants\' Motion to Dismiss is predicated on the
    proposition that \"the mere presence of question number 29\" on the
    application for admission to the Florida bar does not state a claim
    under title II of the ADA. Defendants\' argument misstates
    plaintiffs\' case. The Board will not process the application of nor
    license any person, including plaintiffs, who fail to answer
    Question 29. An affirmative answer to Question 29 automatically
    triggers additional burdens, further investigation, and more
    rigorous scrutiny. [See]{.underline} Question 29 (a), (b) and (c) of
    the application to the Florida Bar (requiring names and complete
    addresses of any treating professionals, as well as beginning and
    ending dates of each consultation.) An affirmative answer also
    requires the applicant to sign nine \"Authorization and Release
    Forms,\" authorizing the treating professionals to answer any
    inquiries, questions, or interrogatories that the Board may have,
    and allowing the Board to copy any documents, including medical
    reports or clinical abstracts.

[^29]: ^?^ [See also]{.underline} 28 C.F.R. § 35.130(b)(1)(ii) and (iii)
    (prohibiting title II entities from providing qualified individuals
    with disabilities with a benefit or service that is not equal to
    that afforded others and not as effective in providing an equal
    opportunity to gain the same benefit afforded to others).

[^30]: ^?^ As the court in the [Medical Society of New
    Jersey]{.underline} stated: \"With regard to the renewal
    applications, the Board has asserted, and its assertion is
    unchallenged, that all licensees who complete their applications
    will be issued renewal licenses, regardless of their responses to
    the challenged questions.\" 1993 WL 413016 at \*11. The Board in
    this case has never offered to abandon further inquiries if
    plaintiffs answer Question 29, however. In this case, in contrast to
    the [Medical Society of New Jersey]{.underline}, the Board is
    clearly pursuing investigations and/or further inquiries of persons
    who answer Question 29 in the affirmative. In any event, the United
    States disagrees with the [Medical Society]{.underline} court\'s
    view that asking the questions, so long as they are not acted upon,
    does not violate title II. See Part D., [supra]{.underline}.

[^31]: ^?^ In [Parham]{.underline}, the Court found that a person\'s
    liberty is \"substantially affected\" by the stigma attached to
    treatment in a mental hospital: \"The fact that such a stigma may be
    unjustified does not mean it does not exist. Nor does the fact that
    public reaction to past commitment may be less than the public
    reaction to aberrant behavior detract from this assessment. The
    aberrant behavior may disappear, while the fact of past
    institutionaliza-tion lasts forever.\" [Parham v. J.R.]{.underline},
    442 U.S. 584, 622, n.3 (1979) (Stewart, J., concurring in judgment).

[^32]: ^?^ [See also]{.underline} [In Re John Ballay]{.underline}, 482
    F.2d 648, 668-69 (D.C. Cir. 1973) (\"\[d\]ischarged patients must
    not only cope with stigma of having once been hospitalized, but must
    often continue to cope with the \'mental illness\' label
    itself\....Even the most enlightened persons may unwittingly harbor
    views associated with this stigma.\"), [Estate of
    Roulet]{.underline}, 23 Cal.3d 219, 228-29 (1979) (finding that
    there is compelling evidence that society \"still views the mentally
    ill with suspicion\" and noting that:

    > \[i\]n the ideal society, the mentally ill would be the subjects
    > of understanding and compassion, rather than ignorance and
    > aversion. But that enlightened view, unfortunately, does not yet
    > prevail. The stigma borne by the mentally ill has frequently been
    > identified in the literature: \'a former mental patient may suffer
    > from the social opprobrium which attaches to treatment for mental
    > illness and which may have more severe consequences than do the
    > formally imposed disabilities. Many people have an irrational fear
    > of the mentally ill.\' The former mental patient is likely to be
    > treated with distrust and even loathing; he may be socially
    > ostracized and victimized by employment and educational
    > discrimination.

    (citing [People v. Burnick]{.underline}, 14 Cal.3d 306, 321 (1975)).

[^33]: ^?^ The court\'s conclusion is supported by studies suggesting
    that law students may decide against seeking treatment because they
    are afraid that it might disqualify them from admission to the bar.
    In a recent survey of over 13,000 law students, 41 percent responded
    that they would seek assistance for a substance abuse problem if
    they were assured that bar officials would not have access to the
    information. As to whether they would refer a friend who had a
    substance abuse problem, 47 percent responded that they would if bar
    officials would not have access to the information. Association of
    American Law Schools, [Report of the AALS Special Committee on
    Problems of Substance Abuse in the Law Schools]{.underline}, 44
    [Journal of Legal Education]{.underline} 35, 55 (1994) It can be
    reasonably assumed that a study asking the same questions about
    mental health problems would show similar findings.

[^34]: ^?^ The chilling effect of the Board\'s practices runs completely
    counter to the goal ostensibly served by the inquiries \-- ensuring
    that applicants will be fit practitioners. [See]{.underline} Deborah
    L. Rhode, [Moral Character as a Professional
    Credential]{.underline}, 94 Yale L.J. 491, 582 (1985). Medical
    practice is a highly stressful enterprise, and many persons can
    benefit from mental health counseling as physicians. As Professor
    Maher and Dr. Blum state in their article regarding the use of
    analogous questions in the licensure process for attorneys:

    > \[I\]f there is any wisdom in the choice to inquire at the cost of
    > discouraging treatment, it is penny-wise and pound-foolish because
    > it discourages applicants from taking advantage of opportunities
    > to develop their mental and emotional fitness before they are
    > admitted to the bar. This is a mistake because law practice is
    > stressful, and students need to prepare for the stress of
    > practice, just as they need to prepare for its other demands.
    > Through counseling, students can develop healthy coping strategies
    > that will permit them to deal with the stress of practice. Without
    > adequate preparation, they may resort to unhealthy coping
    > strategies, such as drug or alcohol abuse.

    Maher & Blum, [supra]{.underline}, at 824.