Number range CHAPTER

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

JULIE ANN CLARK :

:

Plaintiff, :

: C.A. \# 94-211-A

v\. :

:

VIRGINIA BOARD OF BAR EXAMINERS :

:

Defendant. :

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_:

**MEMORANDUM OF LAW OF THE UNITED STATES AS AMICUS CURIAE**

[TABLE OF CONTENTS]{.underline}

TABLE OF AUTHORITIES ii

I. INTRODUCTION 1

II\. ARGUMENT 2

A. TITLE II PROHIBITS CLASSIFICATIONS

> BASED ON DISABILITY THAT DO NOT

ACCURATELY PREDICT INDIVIDUAL ABILITIES 2

B. TITLE II PROHIBITS DISCRIMINATION

AGAINST QUALIFIED INDIVIDUALS

WITH DISABILITIES 8

1\. LICENSING BOARD INQUIRIES INTO TREATMENT

OR COUNSELING FOR MENTAL DISABILITIES

IMPOSE UNNECESSARY BURDENS ON

PERSONS WITH DISABILITIES 11

2\. QUESTION 20(B) IS UNNECESSARY

> TO DETERMINING FITNESS TO PRACTICE LAW 15

III\. CONCLUSION 22

[TABLE OF AUTHORITIES]{.underline}

**CASES:**

[Addington v. Texas]{.underline},

441 U.S. 418 (1979) 12

[Applicants v. Texas State Board of Law Examiners]{.underline},

93 CA 740 SS (W.D. Tex. Oct. 10, 1994) 7, 8, 19, 20

[In re Applications of Anne Underwood and]{.underline}

[Judith Ann Plano]{.underline}, No. BAR 93-21,

1993 WL 649283 at \*2 (Me. Dec. 7, 1993) 6, 7

[Arizona Governing Comm. for Tax Deferred]{.underline}

[Annuity and Deferred Compensation Plans v. Norris]{.underline},

463 U.S. 1073 (1983) 4

[City of Los Angeles v. Manhart]{.underline},

435 U.S. 702 (1978) 4, 5, 6, 7

[Cleburne v. Cleburne Living Center, Inc.]{.underline},

473 U.S. 432 (1985) 3

[Connecticut v. Teal]{.underline},

457 U.S. 440 (1982) 4

[Doe v. Syracuse School Dist.]{.underline},

508 F. Supp. 333 (N.D.N.Y. 1981) 9, 18

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

859 F. Supp. 1489 (S.D. Fla. 1994) 6, 10, 11, 16

[In Re John Ballay]{.underline},

482 F.2d 648 (D.C. Cir. 1973) 13

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

1993 WL 413016 (D.N.J. 1993) 6, 10, 11, 19

[Pandazides v. Virginia Bd. of Educ.]{.underline},

946 F.2d 345 (4th Cir. 1991) 9

[Parham v. J.R.]{.underline},

442 U.S. 584 (1979) 12

[In re Petition of Frickey, et al.]{.underline},

515 N.W.2d 741 (Minn. Apr. 28, 1994) 7, 14, 19

[School Board of Nassau County v. Arline]{.underline},

480 U.S. 273 (1986) 3, 9, 13, 14

[Smith v. Schlesinger]{.underline},

513 F.2d 462 (D.C. Cir. 1975) 12

[Strathie v. Department of Transp.]{.underline},

716 F.2d 227 (3d Cir. 1983) 9

**STATUTES AND REGULATIONS:**

29 U.S.C. § 794 9

42 U.S.C. §§ 12101-12213 1

42 U.S.C. § 12101(a)(7) 2

42 U.S.C. § 12102(2)(B) 13

42 U.S.C. § 12102(2)(C) 13

42 U.S.C. § 12110(a) 18

42 U.S.C. § 12131(1)(B) 10

42 U.S.C. § 12131(2) 8

42 U.S.C. § 12132 10

42 U.S.C. § 12134(b) 15

42 U.S.C. § 12182(b)(2)(A)(i) 15

42 U.S.C. § 12206(c)(3) & (d) 16

28 C.F.R. § 35.104 8, 9, 13

28 C.F.R. § 35.130(b)(3)(i) 10

28 C.F.R. § 35.130(b)(6) 10

28 C.F.R. § 35.130(b)(8) 10, 15

28 C.F.R. pt. 35, app. A 9, 11

28 C.F.R. § 36.301(a) 15

28 C.F.R. pt. 36, app. B 15

**LEGISLATIVE MATERIALS:**

H.R. Rep. No. 485, 101st Cong.,

2d Sess., pt. II (1990) 2, 3, 5, 15

H.R. Rep. No. 485, 101st Cong.,

2d Sess., pt. III (1990) 2, 6, 15

S. Rep. No. 116, 101st Cong.,

1st Sess. (1989) 2, 3, 5, 15

**MISCELLANEOUS:**

American Psychiatric Association, [Diagnostic]{.underline}

[and Statistical Manual of Mental Disorders]{.underline}

(3d ed. 1987), (DSM III-R) 17

American Psychiatric Association, [Recommended]{.underline}

[Guidelines Concerning Disclosure and Confidentiality]{.underline},

Work Group on Disclosure (Dec. 12, 1992) 19

Association of American Law Schools, [Report of]{.underline}

[the AALS Special Committee on Problems of Substance]{.underline}

[Abuse in the Law Schools]{.underline}, 44 [Journal of]{.underline}

[Legal Education]{.underline} 35 (1994) 14

Gabrielle A. Carlson, Yolande B. Davenport &

Kay R. Jamison, [A Comparison of Outcome in Adolescent-]{.underline}

[and Late-Onset Bipolar Manic-Depressive Illness]{.underline},

134 Am. J. of Psychiatry 919 (1977) 17

Bruce J. Ennis & Thomas R. Litwack, [Psychiatry and]{.underline}

[the Presumption of Expertise: Flipping Coins in]{.underline}

[the Courtroom]{.underline}, 62 Cal. L. Rev. 693 (1974) 16

Frederick K. Goodwin & Kay R. Jamison,

[Manic-Depressive Illness]{.underline} (1990) 17

Stephen T. Maher & Lori Blum, [A Strategy for Increasing]{.underline}

[the Mental and Emotional Fitness of Bar Applicants]{.underline},

23 Ind. L. Rev. 821 (1990) 14

Reishel, [The Constitution, the Disability Act, and]{.underline}

[Questions about Alcoholism, Addiction, and Mental Health]{.underline},

61 The Bar Examiner 10 (1992) 20, 21

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

[Professional Credential]{.underline}, 94 Yale L.J. 491 (1985) 3

U.S. Department of Justice, [The Americans with]{.underline}

[Disabilities Act \-- Title II Technical Assistance]{.underline}

[Manual]{.underline} (1992 & Supp. 1993) 2, 16, 17

Jay Ziskin, [Coping with Psychiatric and]{.underline}

[Psychological Testimony]{.underline} (3d ed. 1981) 16

[I. INTRODUCTION]{.underline}

The United States submits this memorandum as [amicus curiae]{.underline}
to address the issues expected to arise in the trial of this case, which
is scheduled to begin on November 22, 1994.

Although she has successfully passed the Virginia Bar examination and
has satisfied all of the other requirements of the character and fitness
review of the Virginia Board of Bar Examiners (\"Board\"), plaintiff
Julie Ann Clark has refused to answer question 20(b) of the Board\'s
application, which asks,

> Have you within the past five (5) years been treated or counseled for
> any mental, emotional, or nervous disorder?

Ms. Clark asserts that the Board violates title II of the Americans with
Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213 (Supp. II 1990) by
asking question 20(b) because it is an unnecessary and burdensome
inquiry into mental disabilities.

The United States recognizes the great responsibility placed on the
Board to ensure that attorneys licensed to practice in the Commonwealth
are mentally fit and professionally competent. However, Congress enacted
title II of the ADA to prohibit policies or procedures that assess an
individual\'s ability on generalizations or stereotypes based on
disability. The United States believes that Ms. Clark should prevail in
this case because question 20(b) discriminates against persons with
disabilities. It targets persons with disabilities for additional
burdens and disclosure requirements, and this broad inquiry into an
applicant\'s mental health history is not necessary to determining
fitness to practice law. Requiring applicants to answer question 20(b)
is an unnecessary eligibility criteria that violates title II of the ADA
regardless of whether individuals who answer question 20(b)
affirmatively are ultimately granted a license to practice law.

# II. ARGUMENT

A. TITLE II PROHIBITS CLASSIFICATIONS\
BASED ON DISABILITY THAT DO NOT\
[ACCURATELY PREDICT INDIVIDUAL ABILITIES]{.underline}

The ADA is a civil rights law intended to protect
[individuals]{.underline} with disabilities against the stereotypes or
generalizations that are commonly associated with those disabilities. As
stated in the ADA itself, Congress found these stereotypes \"are not
truly indicative of the [individual ability]{.underline} of \[persons
with disabilities\] to participate in, and contribute to, society.\" 42
U.S.C. §12101(a)(7)(emphasis added).[^1] By inquiring into the existence
of mental disabilities, licensing organizations act on the basis of this
impermissible stereotype. These inquiries start from a presumption that
a person\'s ability to practice law is likely to be adversely affected
by having had treatment for any of a broad range of mental disabilities
in the past, even though they may have never affected that person\'s
judgment, integrity, responsibility, or abilities as a professional.[^2]

The Supreme Court has cautioned against relying upon negative attitudes
or stereotypes of the potential dangers posed by disabilities. [School
Board of Nassau County v. Arline]{.underline}, 480 U.S. 273, 285
(1986)(person with disabilities are often \"vulnerable to discrimination
on the basis of mythology\");[^3] [Cleburne v. Cleburne Living Center,
Inc.]{.underline}, 473 U.S. 432, 448 (1985)(\"mere negative attitudes,
or fear, unsubstantiated by factors which are properly cognizable in a
zoning proceeding, are not permissible bases for treating a home for the
mentally retarded differently from apartment houses, multiple dwelling,
and the like.\").

Even where generalizations about an individual\'s class are
statistically true, civil rights law require focus on individuals rather
than classes. In [City of Los Angeles v. Manhart]{.underline}, 435 U.S.
702 (1978), the Court considered whether a pension plan that required
female employees to make larger contributions than male employees
violated Title VII of the Civil Rights Act of 1964. Although both
parties conceded that statistical and actuarial data confirmed that
women, as a class, live longer than men, the Court held that the plan
violated Title VII. The Court concluded that Congress had intended
unnecessary classifications based on gender to be unlawful, despite
statistical or actuarial analysis. [Id.]{.underline} at 707-709. Noting
that there was \"no assurance that any individual woman \... will
actually fit the generalization\" upon which the plan was based, the
Court held that Title VII required an analysis of the individual instead
of the class:

> Even if statutory language were less clear, the basic policy of the
> statute requires that we focus on fairness to individuals rather than
> fairness to classes. Practices that classify employees in terms of
> religion, race, or sex tend to preserve assumptions about groups
> rather than thoughtful scrutiny of individuals.

[Id.]{.underline}, at 708, 709.[^4]

Like Title VII of the 1964 Civil Rights Act,[^5] the ADA was intended to
combat generalizations based on a person\'s class\-\-- in this case, a
person\'s status based on disability. This congressional intent is
reflected in the findings supporting the ADA, where Congress found that,

> individuals with disabilities are a discrete and insular minority who
> have been \... subjected to a history of purposeful unequal
> treatment\... resulting from stereotypic assumptions not truly
> indicative of the individual ability of such individuals to
> participate in, and contribute to, society.

42 U.S.C. § 12101(a)(7). The legislative history also reveals that
Congress recognized the need to combat the \"false presumptions,
generalizations, misperceptions, patronizing attitudes, ignorance,
irrational fears, and pernicious mythologies\"[^6] surrounding
disability and the need for a more enlightened view towards persons with
disabilities:

> Gradually public policy affecting persons with disabilities recognized
> that many of the problems faced by disabled people are not inevitable,
> but instead are the result of discriminatory policies based on
> unfounded, outmoded stereotypes and perceptions, and deeply imbedded
> prejudices towards people with disabilities. These discriminatory
> policies and practices affect people with disabilities in every aspect
> of their lives, from securing employment, to
>
> participating fully in community life,\... to enjoying all the rights
> that Americans take for granted.

Judiciary Report, at 25. As in [Manhart]{.underline}, unnecessary
classifications based on disability are not permitted because of the
ADA\'s requirement that public entities focus on the abilities of
individuals rather than class generalizations.

Even if it could be shown that, as a class, persons with certain mental
disabilities are more likely to become impaired in their ability to
practice law in the future,[^7] the ADA prohibits unnecessary inquiries
into disabilities.[^8] All of the courts that have considered challenges
to mental health questions in professional licensing have concluded that
a broad-based inquiry, such as the Board\'s question 20(b), violates
title II of the ADA. [Ellen S. v. Florida Board of Bar
Examiners]{.underline}, 859 F. Supp. 1489 (S.D. Fla. 1994)(a licensing
board violates title II by asking applicants about any counseling or
diagnosis for any nervous, mental, or emotional condition); [Medical
Society of New Jersey v. Jacobs]{.underline}, 1993 WL 413016 (D.N.J.
1993)(a licensing board\'s inquiry of \"have you ever suffered or been
treated for any mental illness or psychiatric problem\" violates title
II); [In re Applications of]{.underline}

[Anne Underwood and Judith Ann Plano]{.underline}, No. BAR 93-21, 1993
WL 649283 at \*2 (Me. Dec. 7, 1993) (\"The Board\'s requirement that
applicants answer questions 29 and 30 \[regarding diagnosis of and
treatment for emotional, nervous or mental disorders\], and that they
sign a broad medical authorization violates the ADA because it
discriminates on the basis of disability and imposes eligibility
criteria that unnecessarily screen out individuals with
disabilities.\"); [cf.]{.underline} [In re Petition of Frickey, et
al.]{.underline}, 515 N.W.2d 741 (Minn. April 28, 1994), (while not
decided on the basis of the ADA, finding that similar inquiries
regarding mental health history on Minnesota\'s bar admissions
application were unnecessary and deterred students from obtaining
necessary counseling); [see also]{.underline} [Applicants v. Texas State
Board of Law Examiners]{.underline}, 93 CA 740 SS (W.D. Tex. Oct. 10,
1994)(broad-based inquiries into an applicant\'s mental health history
violate title II of the ADA).[^9]

B. TITLE II PROHIBITS DISCRIMINATION\
[AGAINST QUALIFIED INDIVIDUALS WITH DISABILITIES]{.underline}

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). 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).[^10] Where public safety may be
affected, a determination of whether a candidate meets the \"essential
eligibility requirements\" may include consideration of whether the
individual with a disability poses a direct threat to the health and
safety of others.[^11] So long as the candidate does not pose a direct
threat and meets the essential eligibility criteria, he or she is
protected against discrimination on the basis of disability.

This case does not involve a final decision to deny a license based on
disability. However, title II and its implementing regulations proscribe
more than total exclusion on the basis of disability.[^12] Title II
contains a sweeping prohibition of practices by public entities that
discriminate against persons with disabilities. Section 202 of the Act,
42 U.S.C. § 12132, provides,

> Subject to the provisions of this subchapter, no qualified individual
> with a disability shall, by reason of such disability, be excluded
> from participation in or be denied the benefits of the services,
> programs, or activities of a public entity, or be subjected to
> discrimination by any such entity.

As a public entity[^13] responsible for licensing, the Board must comply
with section 35.130(b)(6), which prohibits administering a licensing
program \"in a manner that subjects qualified persons with disabilities
to discrimination.\" Similarly, section 35.130(b)(3)(i) prohibits use of
\"methods of administration\" that have a discriminatory effect.
Finally, section 35.130(b)(8) prohibits the Board from imposing
unnecessary eligibility criteria that screen out, or tend to screen out,
persons with disabilities.

Two conclusions follow from analyzing title II and the regulation.
First, section 35.130(b)(8) prohibits any policy that unnecessarily
imposes requirements or burdens on individuals with disabilities that
are greater than those placed on others. 28 C.F.R. pt. 35, app. A at
453-54 (1993); see Ellen S. at 1494; Medical Society at \*7. Second,
unnecessary inquiries into disabilities are prohibited.

1.  LICENSING BOARD INQUIRIES INTO TREATMENT OR\
    COUNSELING FOR MENTAL DISABILITIES IMPOSE\
    [UNNECESSARY BURDENS ON PERSONS WITH DISABILITIES]{.underline}

Title II prohibits a licensing board from imposing unnecessary burdens
on persons with disabilities at all stages of the licensing process,
regardless of whether a license is eventually granted. [Ellen
S.]{.underline}, at 1494; [Medical Society]{.underline}, at \*6-8. The
Board\'s inquiries and reporting requirements concerning diagnosis and
treatment for mental illness impose requirements on persons with
histories of disabilities that are greater than those imposed on other
applicants. Applicants are required to state whether, within the past
five years, they have been treated or counseled for any mental,
emotional, or nervous disorder. Only those applicants who answer
affirmatively are then required to identify and provide the complete
address of each individual consulted for the condition and record the
beginning and ending dates of consultation. By signing their
applications, candidates also waive their rights of confidentiality to
and authorize release of their treatment or consultation records. This
process is invasive because it requires only those persons who answer
affirmatively to provide information about mental health treatment \--
treatment that is often bound up with intensely personal issues such as
family relationships and bereavement.

The inquiries are also burdensome because of the stigma that attaches to
treatment for mental or emotional illness. As the Supreme Court has
recognized, there is a substantial liberty interest under the Due
Process Clause of the Constitution in avoiding the social stigma of
being known to have been treated for a mental illness. [Parham v.
J.R.]{.underline}, 442 U.S. 584, 600 (1979); [Addington v.
Texas]{.underline}, 441 U.S. 418, 426 (1979).[^14] [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.)[^15]

The ADA\'s definition of disability also recognizes the potential stigma
attaching to treatment for mental illness. Persons who have been
diagnosed or received treatment for a mental condition may be covered by
the third prong of the \"disability\" definition, regardless of whether
they have ever suffered from an actual substantial impairment of a major
life activity, 42 U.S.C. § 12102(2)(C).[^16] Unfortunately, persons who
have sought treatment for mental health problems in the past are often
seen as emotionally disabled even if their past or current capability or
stability may not be affected. [See]{.underline} discussion infra.[^17]
As the Supreme Court observed in [School Board of Nassau]{.underline}

[County v. Arline]{.underline}, 480 U.S. 273 (1987), Congress, in
enacting the \"regarded as\" provision, \"acknowledged that society\'s
accumulated myths and fears about disability and disease are as
handicapping as are the physical limitations that flow from actual
impairment.\" [Id.]{.underline}, at 284.[^18]

2.  QUESTION 20(B) IS UNNECESSARY\
    [TO DETERMINING FITNESS TO PRACTICE LAW]{.underline}

The burdens created by question 20(b) are unnecessary because question
20(b) is an unnecessary eligibility criteria. Section 35.130(b)(8)
provides,

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

28 C.F.R. § 35.130(b)(8)(emphasis added). This section 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).[^19] The legislative history of the analogous title III
provision makes clear that Congress intended to prohibit unnecessary
inquiries into disability.

> It also would be a violation for \[a public accommodation\] to invade
> such people\'s privacy by trying to identify unnecessarily the
> existence of a disability, as, for example, if the credit application
> of a department store were to inquire whether an individual has
> epilepsy, has ever \... been hospitalized for mental illness, or has
> other disability.[^20]

The title II Technical Assistance Manual, published by the Attorney
General pursuant to statutory mandate,[^21] states that title II
similarly prohibits unnecessary inquiries into disability.[^22] This
same conclusion was also reached in Ellen S., where the court held that
merely asking for the type of information called for by question 20(b)
would violate title II of the ADA. The court noted that, \"as the Title
II regulations make clear, question 29 and the subsequent inquiries
discriminate against Plaintiffs by subjecting them to additional burdens
based on their disability.\" [Id.]{.underline}, at 1493-94. The court
was careful to note that asking the question itself independently
violates title II, without regard to whether an ensuing investigation is
conducted. [Id.]{.underline}, at 10, n. 7.

Inquiries like the Board\'s question 20(b) are unnecessary because
diagnosis or treatment for any mental, emotional, or nervous disorder
provides an uncertain basis for predicting future behavior[^23] and
because the Board may ask questions focusing directly on conduct and
behavior, including those that may be associated with mental illness.
The Title II Technical

Assistance Manual states that,

> [\[]{.underline}p\]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.\"

Title II Technical Assistance Manual, at II-3.7200 (emphasis added).
Such a permissible \"factor related to the disability\" is any
inappropriate [behavior]{.underline} associated with that disability
that legitimately reflects on fitness to practice. Such conduct or
behavior, whether it results from mental illness, substance dependency,
or other factors (such as irresponsibility or bad moral character),
provides a basis to determine fitness to practice law without relying on
an applicant\'s diagnosis or treatment history.[^24] Thus, if the Board
wants to assess accurately the likelihood of improper behavior, the
Board can and should inquire about credit history, financial or legal
problems, criminal records, leaves of absence, disciplinary actions,

suspensions, or terminations from school or jobs in the past, but may
not focus the inquiry only on such events or problems occasioned by
physical or psychiatric illnesses or conditions. Similarly, the Board
may also inquire about personal behavior, including whether the
applicant uses illegal drugs and the frequency of use.[^25] The Board
may also ask applicants, references, colleagues, and business associates
whether there is anything that would currently impair their ability to
carry out the duties and responsibilities of an attorney in a manner
consistent with the standards of conduct for an attorney admitted to
practice in the Commonwealth of Virginia.[^26] Indeed, addressing the
area of physician licensure, the American Psychiatric Association
guidelines state,

> The salient concern is always the individual\'s current capacity
> and/or current impairment. Only information about current impairing
> disorder affecting the capacity to function as a physician, and which
> is
>
> relevant to present practice, should be disclosed.[^27]

Other questions already on the bar application elicit a wealth of
information to illuminate an individual\'s past behavior. These
inquiries \-- which require full disclosure of employment history,
educational background, financial history, military service, and
criminal record \-- provide a sound and comprehensive basis for drawing
inferences about an individual\'s fitness for the practice of law
without resort to the mental health history. See Medical Society of New
Jersey v. Jacobs, 1993 WL 413016, at \*7 (questions regarding
applicants\' diagnosis of and treatment for psychiatric illness or
condition are unnecessary, where the medical examiners could \"formulate
a set of effective questions that screen out applicants based only on
their behavior and capabilities\"); [In re Petition of Frickey, et
al.]{.underline}, 515 N.W.2d 741 (Minn. April 28, 1994), (order removing
similar questions from Minnesota bar admissions application, finding
that \"questions relating to conduct can, for the most part, elicit the
information necessary for the Board of Law Examiners to enable the Court
to protect the public from unfit practitioners\").[^28] Indeed, a recent
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]{.underline} [Health]{.underline}, 61
The Bar Examiner 10, 20 (1992).[^29]

In enacting title II of the ADA, Congress sought to abolish unnecessary
classifications based on disability. Nowhere was this need greater than
in protecting the rights of persons with mental disabilities. The ADA
outlaws these classifications and seeks to abolish attendant
stereotypes. It is possible that the Virginia Board of Bar Examiners may
find its task of identifying applicants unfit to practice law more
time-consuming and labor-intensive if required to look at an
applicant\'s individual ability and individual record of behavior,
rather than using disability as a \"red flag\" to separate out
applicants for further investigation. The ADA, however, requires no
less.

[III. CONCLUSION]{.underline}

For the foregone reasons, the Court should find in favor of plaintiff.

> Respectfully submitted,
>
> DEVAL L. PATRICK
>
> Assistant Attorney
>
> General
>
> Civil Rights Division
>
> JOHN L. WODATCH
>
> JOAN A. MAGAGNA
>
> SHEILA M. FORAN
>
> KEN S. NAKATA
>
> Attorneys
>
> U.S. Department of Justice
>
> Civil Rights Division
>
> Public Access Section
>
> P.O. Box 66738
>
> Washington, D.C. 20035-6738
>
> Tel: (202) 307-6309
>
> RICHARD PARKER
>
> Assistant United States Attorney
>
> Appearing Per 28 U.S.C. § 517
>
> 1101 King Street, Suite 502
>
> Alexandria, VA 22304
>
> Tel: (703) 706-3700

November 21, 1994

Alexandria, Virginia

# CERTIFICATE OF SERVICE

I, the undersigned, attorney for the United States of America, do hereby
certify that I have this date served upon the persons listed below, by
overnight delivery and electronic fascimile, true and correct copies of
the foregoing Memorandum of the United States as [Amicus
Curiae]{.underline}.

> 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 21st day of November, 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]: ^?^ [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) \[hereinafter
    cited as Senate Report\]; [see, e.g.]{.underline}, U.S. Department
    of Justice, [The Americans with Disabilities Act \-- Title II
    Technical Assistance Manual]{.underline} 12 (1992 & Supp.
    1993)\[hereinafter, \"Title II Technical Assistance Manual\"\](\"A
    public entity may impose legitimate safety requirements necessary
    for the safe operation of its services, programs, or activities.
    However the public entity must ensure that its safety requirements
    [are based on real risks, not on speculation, stereotypes, or
    generalizations about individuals with disabilities]{.underline}\")
    (emphasis added).

[^2]: ^?^ Bar examiners are not usually professionals trained in the
    fields of psychiatry or psychology.

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

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

[^3]: ^?^ 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; Education and Labor Report
    at 50-53.

[^4]: ^?^ [See also]{.underline} [Arizona Governing Comm. for Tax
    Deferred Annuity and Deferred Compensation Plans v.
    Norris]{.underline}, 463 U.S. 1073 (1983)(holding that pension plans
    that pay lower monthly benefits to female contributors violate title
    VII); [Connecticut v. Teal]{.underline}, 457 U.S. 440 (1982)(holding
    that an individual may sustain a \"disparate impact\" claim under
    Title VII, even if an employer ultimately favors plaintiff\'s racial
    group).

[^5]: ^?^ Unlike title II, section 703(a)(1) of the Civil Rights

    Act of 1964, which was at the heart of the [Manhart]{.underline}
    decision, does not explicitly include an exception for necessary
    eligibility criteria. In [Manhart]{.underline}, several amici
    suggested that a gender based distinction was justified by business
    necessity. The Court held, however, that these distinctions were not
    shown to be \"reasonably necessary to the normal operation of the
    Department\'s retirement plan.\" 435 U.S. at 716 n. 30.

[^6]: ^?^ Senate Report, at 7; Education and Labor Report, at 30.

[^7]: ^?^ The United States does not concede and the record does

    not support the position that persons answering question 20(b) are
    more likely to become impaired in the ability to practice law in the
    future than other applicants.

[^8]: ^?^ Of course, if a disability could perfectly predict

    future behavior of [all]{.underline} persons with that disability,
    then it rises above being a mere generalization. However, even the
    defendant does not assert and the record clearly does not show that
    [any]{.underline} past treatment for mental disability is perfectly
    predictive of current or future fitness to practice law.

[^9]: ^?^ The United States believes that, to the extent that it

    permitted even limited inquiries into \"severe\" mental
    disabilities, the court\'s opinion in [Texas State Board of Law
    Examiners]{.underline}, 93 CA 740 SS (Oct. 10, 1994), was
    incorrectly decided because these inquiries are unnecessary
    classifications that violate title II and the principles of
    [Manhart]{.underline}.

    In [Texas State Board of Law Examiners]{.underline}, the court based
    its decision on the premise that a licensing board can inquire into
    an applicant\'s mental health in order to determine if he or she has
    the mental and emotional fitness to fulfill a lawyer\'s legal,
    ethical, and moral responsibilities. Singling out persons solely on
    the basis of their histories of treatment or counselling for certain
    mental disabilities, however, does not further that end. The court
    in [Texas State Board of Law Examiners]{.underline} stated,

    > Bipolar disorder, schizophrenia, paranoia, and psychotic disorders
    > are serious mental illnesses that may affect a person\'s ability
    > to practice law. People suffering from these illnesses may suffer
    > debilitating [symptoms]{.underline} that inhibit their ability to
    > function normally. The fact that a person may have experienced an
    > episode of one of these mental illnesses in the past but is not
    > currently experiencing symptoms does not mean that the person will
    > not experience another episode in the future or that the person is
    > currently fit to practice law.

    [Id.]{.underline}, at 7-8 (emphasis added). This analysis is
    fundamentally flawed. For those individuals who demonstrate symptoms
    that would inhibit their ability to practice law, an inquiry into an
    applicant\'s behavior would identify those candidates unfit to
    practice law. On the other hand, if an applicant is not
    demonstrating symptoms that would inhibit their ability to practice
    law, then he or she would be currently fit to practice law and
    cannot lawfully be denied a license to practice on the basis of
    disability.

[^10]: ^?^ The section-by-section analysis also indicates that
    determining what constitutes \"essential eligibility requirements\"
    has been shaped by cases decided under section 504 of the
    Rehabilitation Act of 1973, 29 U.S.C. § 794. 28 C.F.R. pt. 35, app.
    A at 451. These cases have demanded a careful analysis behind the
    qualifications used to determine the actual criteria that a position
    requires. [School Bd. v. Arline]{.underline}, 480 U.S. 273, 287-288
    (1986)(requiring an individualized analysis based on facts, instead
    of generalizations based on unfounded stereotype); [Pandazides v.
    Virginia Bd. of Educ.]{.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).

[^11]: ^?^ As noted in the Department\'s title II analysis

    accompanying section 35.104,

    > A \"direct threat\" is a significant risk to the health or safety
    > of others that cannot be eliminated by a modification of policies,
    > practices, or procedures, or by the provision of auxiliary aids or
    > services\.... Although persons with disabilities are generally
    > entitled to the protection of this part, a person who poses a
    > significant risk to others will not be \"qualified,\" if
    > reasonable modifications to the public entity\'s policies,
    > practices, or procedures will not eliminate that risk.

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

[^12]: ^?^ [See]{.underline} [e.g.,]{.underline} [Ellen S. v. Florida
    Board of Bar Examiners]{.underline}, 859 F. Supp. 1489, 1493-94
    (S.D. Fla. 1994); [Medical Society of New Jersey v.
    Jacobs]{.underline}, 1993 WL 413016 (D.N.J.), at \*7.

[^13]: ^?^ A \"public entity\" is defined in title II to include \"any
    department, agency \... or other instrumentality of a State \... or
    local government.\" 42 U.S.C. § 12131(1)(B). The Board falls within
    this definition as it is the State governmental agency responsible
    for licensing attorneys in the Commonwealth of Virginia.

[^14]: ^?^ 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).

[^15]: ^?^ [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.\").

[^16]: ^?^ The title II regulation defines this prong to include persons
    who have \"a physical or mental impairment that substantially limits
    major life activities only as a result of the attitudes of others
    toward such an impairment . . . .\" 28 C.F.R. § 35.104 (1992).

[^17]: ^?^ Of course, persons with histories of treatment or counselling
    for a mental condition may also be covered by the second prong of
    the \"disability\" definition, which protects persons with a
    \"record\" of a disability, regardless of whether they are not
    currently impaired in a major life activity. 42 U.S.C. §
    12102(2)(B). The title II regulation defines this prong to include
    persons who have \"a history of, or \[have\] been misclassified as
    having, a mental or physical impairment that substantially limits
    one or more major life activities.\" 28 C.F.R. § 35.104 (1992).

[^18]: ^?^ The Board\'s inquiries into an individual\'s history of
    disabilities also has a more insidious discriminatory effect.
    Concern over the Board\'s inquiries about diagnosis and treatment
    for mental illness deters law students and other applicants from
    seeking counseling for mental or emotional problems.
    [See]{.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}, 515 N.W.2d 741 (Minn. Apr. 28, 1994) (deleting
    questions regarding mental health history from bar admissions
    application on grounds that the questions deterred law students from
    seeking needed counseling).

    This conclusion is supported by studies suggesting that law students
    may decide against seeking treatment because they are afraid that it
    might disqualify them from admission to the bar. In a recent survey
    of over 13,000 law students, 41 percent responded that they would
    seek assistance for a substance abuse problem if they were assured
    that bar officials would not have access to the information. As to
    whether they would refer a friend who had a substance abuse problem,
    47 percent responded that they would if bar officials would not have
    access to the information. Association of American Law Schools,
    [Report of the AALS Special Committee on Problems of Substance Abuse
    in the Law Schools]{.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.

    Furthermore, even when treatment is sought, its effectiveness may be
    compromised, because knowledge of the Board\'s potential
    investigation of issues surrounding treatment is likely to undermine
    the trust and frank disclosure on which successful counseling
    depends. [See]{.underline} Maher & Blum, [supra]{.underline}, at
    824, 833-46.

[^19]: ^?^ Section 204 of the ADA provides that the title II

    regulation shall incorporate this concept insofar as it requires the
    title II regulation to be consistent with the ADA generally. 42
    U.S.C. § 12134(b); Judiciary Report at 51; Education and Labor
    Report at 84; 28 C.F.R. pt. 35, app. A at 440.

[^20]: ^?^ Senate Report at 62; [see also]{.underline} Education and
    Labor

    Report at 105; Judiciary Report at 58. The analysis accompanying the
    title III regulations also reflects this Congressional intent. 28
    C.F.R. pt. 36, app. B at 590.

[^21]: ^?^ 42 U.S.C. §§ 12206(c)(3) & (d) (Supp. II 1990).

[^22]: ^?^ Title II Technical Assistance Manual § II-3.5300.

[^23]: ^?^ [See generally]{.underline} Jay Ziskin, [Coping
    with]{.underline} [Psychiatric and]{.underline}

    [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).

[^24]: ^?^ Indeed, inquiring into mental health treatment history may be
    ineffective. Diagnoses of some mental disabilities such as bipolar
    disorder or manic-depression often do not arise until the
    late-twenties or significantly later \-- well after many bar
    applicants are asked to answer question 20(b). American Psychiatric
    Association, [Diagnostic and Statistical Manual of Mental
    Disorders]{.underline} 213-228 (3d ed. 1987), (DSM III-R); Frederick
    K. Goodwin & Kay R. Jamison, [Manic-Depressive Illness]{.underline}
    127-156 (1990). Interestingly, the age when [symptoms]{.underline}
    or [behaviors]{.underline} associated with these disabilities first
    appear is generally younger than the age when treatment is first
    sought. Frederick K. Goodwin & Kay R. Jamison, [Manic-Depressive
    Illness]{.underline} 128 (1990). The likelihood of episodes of
    aberrant behavior is not significantly related to the age of onset
    of symptoms associated with these disorders. Gabrielle A. Carlson,
    Yolande B. Davenport & Kay R. Jamison, [A Comparison of Outcome in
    Adolescent- and Late-Onset Bipolar Manic-Depressive
    Illness]{.underline}, 134 Am. J. of Psychiatry 919 (1977).
    Therefore, making direct inquiries about behavior will better serve
    the Board\'s purposes.

[^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]: ^?^ American Psychiatric Association, [Recommended Guidelines
    Concerning Disclosure and Confidentiality]{.underline}, Work Group
    on Disclosure (Dec. 12, 1992) at 1.

[^28]: ^?^ Related to the fact that question 20(b) is unnecessary,

    question 20(b) also suffers from being overbroad. While the United
    States does not endorse its opinion, [see supra]{.underline}, the
    court in [Texas Board of Law Examiners]{.underline} found that even
    an inquiry into mental disabilities that was much narrower than
    question 20(b) would violate the ADA. The court rejected a question
    which asked,

    a\) Have you, within the last ten (10) years, been treated for any
    mental illness?

    > b\) Have you, within the last ten (10) years, been admitted to any
    > hospital or other facility for the treatment of any mental
    > illness?
    >
    > Section 571.033, Texas Health and Safety Code, defines mental
    > illness, as follows:
    >
    > \"Mental illness\" means an illness, disease, or condition other
    > an epilepsy, senility, alcoholism, or mental deficiency, that:
    >
    > \(A\) substantially impairs a person\'s thought, perception of
    > reality, emotional process, or judgment; or
    >
    > \(B\) grossly impairs behavior as demonstrated by recent disturbed
    > behavior.

    The court observed that, \"such a broad-based inquiry violates the
    ADA.\" [Id.]{.underline} at 20 (emphasis added). The boundless
    definition of \"disorder\" in defendant\'s question 20(b), which is
    much broader than the question rejected in [Texas State Board of Law
    Examiners]{.underline}, would violate the ADA under the same
    reasoning.

[^29]: ^?^ The article states,

    > The vast bulk of such responses \[to the mental health treatment
    > inquiry\] have concerned counseling, most frequently marriage
    > counseling, with no relevance to fitness to practice. Almost
    > always more serious mental health problems have been signalled by
    > responses to 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).