IN THE UNITED STATES DISTRICT COURT
                      FOR THE SOUTHERN DISTRICT OF FLORIDA
                                MIAMI DIVISION
                                        )
ELLEN S., ANNABEL R.,                   )
KATHERINE F. and SALLY M.,              )
                                        )
                Plaintiffs,             )
                                        )
                v.                      )
                                        )
THE FLORIDA BOARD OF BAR EXAMINERS      )       Case No. 94-0429-CIV-KING
JOHN MOORE, EXECUTIVE DIRECTOR          )
OF THE FLORIDA BOARD OF                 )
BAR EXAMINERS,                          )
in his official capacity,               )
and THE FLORIDA SUPREME COURT,          )
in its capacity as a rule-making        )
body for the Florida Bar,               )
                                        )
Defendants.                             )
                                        )
                                        )
                                        )
                        MEMORANDUM OF THE UNITED STATES
                                AS AMICUS CURIAE
KENDALL COFFEY                                      DEVAL L. PATRICK
United States Attorney                              Assistant Attorney
for the Southern District                           General
of Florida                                          Civil Rights Division
VERONICA HARRELL-JAMES                              JOHN L. WODATCH
Assistant United States                             JOAN A. MAGAGNA
Attorney                                            SHEILA M. FORAN
U.S. Attorney's Office                              Attorneys
Federal Justice Building                            U.S. Department of Justice
99 N.E. 4th Street                                  Civil Rights Division
Miami, Florida                                      Public Access Section
Tel: (305) 536-4109                                 P.O. Box 66738
                                                    Washington, D.C. 20035-6738
                                                    Tel: (202) 307-0663
01-04710
                                TABLE OF CONTENTS
TABLE OF AUTHORITIES.......................................................ii
I. INTRODUCTION............................................................1
II. ARGUMENT: THE BOARD'S USE OF THE CHALLENGED
              INQUIRIES IN ITS LICENSING PROGRAM
              DISCRIMINATES ON THE BASIS OF DISABILITY.....................5
        A. The Board's Inquiries Are Contrary
           To The Purpose of The ADA.......................................5
        B. The Board Is Subject To The
           Nondiscrimination Provisions of Title II........................7
        C. Title II is Constitutional in its
           Application to State's Licensing of Attorneys...................8
        D. The Board's Inquiries Target
           Persons With Disabilities.......................................11
        E. The Inquiry Into Past Treatment For
           Mental Health Is An Unnecessary
           Eligibility Requirement.........................................15
                a. Unnecessary Inquiries Into Disability Are
                   Prohibited By Title II..................................15
                b. The Board Cannot Establish That Its
                   Inquiries Are Necessary For Determining Whether
                   Individuals Are Fit To Practice Law.....................17
                c. The Board's Inquiries Unnecessarily
                   Impose Burdens On Individuals With
                   Disabilities............................................25
III. CONCLUSION............................................................35
                                        i
01-04711

                                TABLE OF AUTHORITIES
CASES:
Addington v. Texas, 441 U.S. 418 (1979) . . . . . . . . . . . . . . . . . .30
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) . . . . . . . . . .12
Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . . 12
Doe v. Syracuse School Dist., 508 F. Supp. 333
(N.D.N.Y. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18,22
Easley by Easley v. Snyder, 841 F. Supp. 668
(E.D. Pa. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
EEOC v. Massachusetts, 987 F.2d 64 (1st Cir. 1993) . . . . . . . . . . . . 33
Estate of Roulet, 23 Cal.3d 219 (1979) . . . . . . . . . . . . . . . . . . 31
Florida Bd. of Bar Examiners v. Applicant, 443 So.2d 71
(Fla. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Florida Bd. of Bar Examiners v. G.W.L., 364 So.2d 454
(Fla. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Haitian Refugee Center, Inc. v. Nelson, 872 F.2d 1555
(11th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
In Re Applications of Anne Underwood and Judith Ann Plano,
No. BAR 93-21, 1993 WL 649283 (Me. Dec. 8, 1993) . . . . . . . . . . . . .6,7
In Re Applicant Mort, 560 N.E.2d 204 (Ohio 1990) . . . . . . . . . . . . . .7
In Re John Ballay, 482 F.2d 648 (D.C. Cir. 1973) . . . . . . . . . . . . . 31
In Re Petition of Frickey, et al., No. C5-84-2139
(Minn. Apr. 28, 1994) . . . . . . . . . . . . . . . . . . . . . . . 6,7,23,32
Johnson v. Department of Agriculture, 734 F.2d 774
(11th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
Kinney v. Yerusalim, 812 F. Supp. 547 (E.D. Pa. 1993),
aff'd, 9 F.3d 1067 (3d Cir. 1993) . . . . . . . . . . . . . . . . . . . . .11
Konigsberg v. State Bar of California, 366 U.S. 36 (1961) . . . . . . . . . 7
Lyng v. Payne, 476 U.S. 926 (1986) . . . . . . . . . . . . . . . . . . . . 12
                                        ii
01-04712

McNary v. Haitian Refugee Center, 489 U.S. 479 (1991) . . . . . . . . . . . 5
Los Angeles Dep't of Water and Power v. Manhart, 435 U.S.
702 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Matter of Ronwin, 680 P.2d 107 (Az. 1983) . . . . . . . . . . . . . . . . . 7
Martin-Trigona v. Underwood, 529 F.2d 33 (7th Cir. 1975) . . . . . . . . . .7
Medical Society of New Jersey v. Jacobs, No. 93-3670,
1993 WL 413016 (D.N.J. Oct. 5, 1993) . . . . . . . . . .6,7,15,22,25,26,29,34
Pandazides v. Virginia Bd. of Educ., 946 F.2d 345
(4th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
Parham v. J.R., 442 U.S. 584 (1979) . . . . . . . . . . . . . . . . . . . .30
Pennhurst State sch. & Hospital v. Halderman, 451 U.S. 1
(1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
People v. Burnick, 14 Cal.3d 306 (1975) . . . . . . . . . . . . . . . . . .31
Petersen v. University of Wis. Bd. of Regents, No.
93-C-46-C, 2 Americans with Disabilities Act Cases (BNA),
1993 U.S. Dist. LEXIS 5427 (W.D. Wis. Apr 20, 1993) . . . . . . . . . . . .12
School Bd. of Nassau County v. Arline, 480 U.S. 273
(1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14,18
Smith v. Schlesinger, 513 F.2d 462 (D.C. Cir. 1975) . . . . . . . . . . . .30
Stinson v. United States, 113 S. Ct. 1913 (1993) . . . . . . . . . . . . . 12
Strathie v. Department of Transp., 716 F.2d 227
(3d Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Udall v. Tallman, 380 U.S. 1 (1965) . . . . . . . . . . . . . . . . . . . .12
United States v. Larionoff, 431 U.S. 864 (1977) . . . . . . . . . . . . . .12
Washington v. Davis, 426 U.S. 229 (1976) . . . . . . . . . . . . . . . . . .7
STATUTES:
Americans with Disabilities Act of 1990, 42 U.S.C.
 12101-12213 ("ADA") . . . . . . . . . . . . . . . . . . . . . . . . passim
Rehabilitation Act of 1973, 29 U.S.C.  794 (1973) . . . . . . . . . .8,14,17
Fla. Stat.  454.021 (1991) . . . . . . . . . . . . . . . . . . . . . . . . 8
Florida State Constitution, Atr. III, Sec. 2 (B) . . . . . . . . . . . .19,21
                                        iii
01-04713

REGULATIONS:
28 C.F.R. pt. 35 (1991) . . . . . . . . . . . . . . . . . . . . . . . .passim
28 C.F.R. pt. 36 (1991) . . . . . . . . . . . . . . . . . . . . . . . .passim
LEGISLATIVE HISTORY
H.R. Rep. No. 485, 101st Cong., 2d Sess.,
pts. II, III (1990) . . . . . . . . . . . . . . . . . . . . . . 5,11,13,14,16
S. Rep. No. 116, 101st Cong., 1st Sess. (1989) . . . . . . . . . . 5,13,14,16
MISCELLANEOUS
Association or American Law Schools, Report of the AALS Special
Committee on Problems of Substance Abuse in the Law Schools,
44 Journal of Legal Education 35 (1994) . . . . . . . . . . . . . . . . . .32
Bruce J. Ennis & Thomas R. Litwack, Psychiatry and the
Presumption of Expertise: Flipping Coins in the Courtroom, 62
Cal. L. Rev. 693 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . .20
Stephen T. Maher & Lori Blum, A Strategy for Increasing the
Mental and Emotional Fitness of Bar Applicants, 23 Ind. L. Rev.
821 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31,32
Reishel, The Constitution, the Disability Act, and Questions
about Alcoholism, Addiction, and Mental Health, 61 The Bar
Examiner 10 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Deborah L. Rhode, Moral Character as Professional Credential,
94 Yale L.J. 491 (1985) . . . . . . . . . . . . . . . . . . . . . . . . 20,32
U.S. Department of Justice, The Americans with
Disabilities Act -- Title II Technical Assistance Manual
(1992 & Supp. 1993) . . . . . . . . . . . . . . . . . . . . . . . . .16,20,22
1 Jay Ziskin, Coping with Psychiatric and Psychological Testimony
(3d ed. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
                                        iv
01-04714

                                    Introduction
        Plaintiffs -- three law students and a lawyer who wish to be
admitted to the Florida Bar -- have brought this action alleging
that the Florida Board of Bar Examiners' inquiries and
investigations into applicants' histories of seeking mental
health treatment discriminate on the basis of disability in
violation of title II of the Americans with Disabilities Act
(ADA), 42 U.S.C.  12101-12213 (Supp. II 1990). Defendants are
the Florida Board of Bar Examiners, John Moore, its Executive
Director, and the Florida Supreme Court, referred to collectively
throughout as "defendants" or "the Board."
        The challenged inquiries and investigations include:
        (1)   Question 29 on the application to the Florida bar,
              which asks whether an applicant has ever sought
              treatment for a nervous, mental or emotional condition,
              has ever been diagnosed as having such a condition, or
              has ever taken any psychotropic drugs;
        (2)   the consent form on the application requiring that
              applicants authorize release of any and all mental
              health records;
        (3)   the letter of inquiry by the Board of Bar Examiners to
              all past treatment professionals; and
        (4)   follow-up investigations and hearings.1
        1 See Florida bar application at Exhibit A to Plaintiffs'
Complaint.
                                                                (continued...)
                                        - 1 -
01-04715

        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
        1(...continued)
     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;
                                                                (continued...)
                                      - 2 -
01-04716

        Plaintiffs contend that these inquiries and investigations
violate the ADA's prohibition of discrimination against
individuals on the basis of mental disability, a history of
mental disability, or perceived mental disability. The United
States, as amicus curiae, supports plaintiffs' position that the
inquiries and investigations used by the Florida Board of Bar
Examiners in the bar admissions process violate the ADA.
        This Court should deny the Board's motion to dismiss. The
Board's central argument is that no discrimination can occur
until an individual is denied admission to the bar for
discriminatory reasons. However, as the United States
establishes below, title II prohibits unnecessary inquiries into
disability status as well as the placement of additional burdens
on individuals with disabilities in the course of the admission
process. Plaintiffs' challenge to these aspects of the admission
process states a claim upon which relief may be granted.
        Also pending before the Court is plaintiffs' motion for a
preliminary injunction. To grant a preliminary injunction the
        2(...continued)
        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-
01-04717

Court must be satisfied that four criteria are met: (1) that
plaintiffs are likely to succeed on the merits of their claim;
(2) that plaintiffs will suffer irreparable harm if no injunction
issues; (3) that such harm outweighs any harm to defendants
caused by granting an injunction; and (4) that granting an
injunction will serve the public interest. Haitian Refugee
Center, Inc. v. Nelson, 872 F.2d 1555, 1561-62 (11th Cir. 1989)
aff'd sub nom. McNary v. Haitian Refugee Center, 498 U.S. 479
(1991); Johnson v. Department of Agriculture, 734 F.2d 774, 781
(11th Cir. 1984). All four criteria are satisfied here and the
preliminary injunction should be granted.
        For the reasons stated herein, plaintiffs are likely to
succeed on the merits of their claim that the procedures sought
to be enjoined violate the ADA. The two plaintiffs seeking a
preliminary injunction have asserted facts sufficient to
establish irreparable harm. If no injunction issues, both must
choose between losing important professional employment
opportunities or subjecting themselves to the unlawful inquiries
and investigation of the Board. As discussed, the Board's
procedures inquire into very personal matters and additionally
require plaintiffs to waive confidentiality of private medical
and counseling records. Once such inquiries are conducted, it is
not possible to remedy the harm caused by them.
     The injunction plaintiffs seek will not harm defendants
because, as the United States demonstrates below, the inquiries
sought to be enjoined are not necessary to the Board's important
                                      -4-
01-04718

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
        3       See H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. II at
30, 33, 40, 41 (1990) [hereinafter cited as Education and Labor
Report]; H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. III at 25
(1990) [hereinafter cited as Judiciary Report]; S. Rep. No. 116,
101st Cong., 1st Sess. at 7, 9, and 15 (1989) [hereinafter cited
as Senate Report].
                                       - 5 -
01-04719

imposing additional burdens of investigation upon them, the Board
is not only ignoring its own statutory mandate -- which requires
it to determine whether an applicant's record of conduct
justifies the trust of clients, adversaries, courts, and others
with respect to the professional duties owed to them -- it is
also engaging in precisely the kind of impermissible stereotyping
that the ADA proscribes.
        The only courts to address similar issues under the ADA have
concluded that the types of questions and inquiries utilized by
the Board here are unlawful. See Medical Society of New Jersey
v. Jacobs, No. 93-3670, 1993 WL 413016 (D.N.J. Oct. 5, 1993)
(mental health history inquiries and screening procedures in the
context of medical licensing impose additional burdens on
applicants with disabilities and constitute a violation of title
II of the ADA); In re Applications of Anne Underwood and Judith
Ann Plano, No. BAR 93-21, 1993 WL 649283 at *2 (Me. Dec. 8, 1993)
("The Board's requirement that applicants answer questions 29 and
30 [regarding diagnosis of and treatment for emotional, nervous
or mental disorders], and that they sign a broad medical
authorization violates the ADA because it discriminates on the
basis of disability and imposes eligibility criteria that
unnecessarily screen out individuals with disabilities.") See
also In re Petition of Frickey, et al., No. C5-84-2139 (Minn.
April 28, 1994), (while not decided on the basis of the ADA,
finding that similar inquiries regarding mental health history on
                                       - 6 -
01-04720

Minnesota's bar admissions application were unnecessary and
deterred students from obtaining necessary counseling.4
        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, 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 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., Washington v. Davis, 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, Jacobs, and Frickey 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., 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, 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 Martin-Trigona v. Underwood, 529
F.2d 33 (7th Cir. 1975), In Re Applicant Mort, 560 N.E.2d 204
(Ohio 1990), cert. denied 498 U.S. 1072 (1991), Matter of Ronwin,
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.)
                                       - 7 -
01-04721
                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
        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 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 Fla. Stat.
 454.021 (1991).
                                       -8-
01-04722

                C.   Title II Is Constitutional In Its Application To
                     State's Licensing Of Attorneys
        In enacting the ADA, Congress explicitly invoked its broad
powers under the Fourteenth Amendment. See 42 U.S.C. 
12102(b)(4) (purpose of the ADA "to invoke the sweep of
congressional authority, including the power to enforce the
Fourteenth Amendment ... in order to address major areas of
discrimination faced day-to-day by people with disabilities").7
The Board concedes that the ADA is "most likely a valid exercise"
of Congress' power under the Fourteenth Amendment.8 However, it
challenges the applicability of title II to the State's conduct
in licensing and regulating attorneys, claiming this to be a
sovereign function outside the scope of federal regulation absent
clear congressional intent to reach such conduct.
        Even if the Board's constitutional theory is sound, no issue
arises here because Congress' intent to cover all activities of
states could not be clearer.9   Title II proscribes discrimination
        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, 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 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 42 U.S.C. 
                                                                (continued...)
                                       -9-
01-04723

by public entities, including States, and "any department,
agency, special purpose district, or other instrumentality of a
state." 42 U.S.C.  12131. Title II proscribes the
discriminatory denial of benefits or exclusion from participation
in all "services, programs, or activities" of public entities.
42 U.S.C.  12132. The Board relies on this language to suggest
that "governments do not offer services, programs or activities
within or as part of their sovereign capacity." Supplemental
Motion at 8. To accept this argument requires the Court to
reject the plain meaning of the statutory terms. Licensing of
attorneys is unquestionably an activity and/or program of the
Board, an agency or instrumentality of the State. Nothing in the
statute or legislative history suggests that only some
activities, programs and services of covered entities are to be
covered by title II.
        Beyond services, programs and activities, title II also
provides that no "qualified individual with a disability shall
.. be subjected to discrimination by any [public] entity." 42
U.S.C.  12132. This language admits of no exception; it
prohibits a public entity from discriminating on the basis of
disability in any manner, whether through licensing professionals
or any other official activity. The Board suggests, however,
that if Congress meant to restrict licensing entities from
inquiring into disability, it should have enacted a specific
        9(...continued)
12202. This supports the view that Congress understood the Act
to reach the states as sovereigns.
                                       -10-
01-04724

provision doing so. As reflected in the legislative history,
such specificity is unnecessary where the intent is to cover all
activities of States and local governments. Emphasizing title
II's link to section 504 of the Rehabilitation Act, the House
Report explains that
        [t]he Committee has chosen not to list all the types of
        actions that are included within the term
        'discrimination'. because this title essentially
        simply extends the antidiscrimination prohibition
        embodied in section 504 to all actions of state and
        local governments.
        Education and Labor Report at 84 (emphasis added).
Elsewhere the report states that
        Title II . . . makes all activities of state and local
        governments subject to the types of prohibitions
        against discrimination against a qualified individual
        with a disability included in section 504
        (nondiscrimination).
Id. at 151 (emphasis added).
        Indeed, to allow discrimination on the basis of disability
in any area of government functioning denies persons with
disabilities equal opportunity to benefit from those government
functions, in direct contravention to the ADA's stated goal to
"provide a clear and comprehensive national mandate for the
elimination of discrimination against individuals with
disabilities." 42 U.S.C. 12101(b)(1).10
        10      As a remedial statute, the ADA "must be broadly construed
to effectuate its purposes." Kinney v. Yerusalim, 812 F. Supp.
547, 551 (E.D. Pa. 1993), aff'd, 9 F.3d 1067 (3d Cir. 1993).
                                       - 11 -
01-04725
                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
        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.,
467 U.S. 837, 844 (1984). See also Petersen v. University of
Wis. Bd. of Regents, No. 93-C-46-C, 2 Americans With Disabilities
Act Cases (BNA) 735, 738, 1993 U.S. Dist. LEXIS 5427 (W.D. Wis.
Apr. 20, 1993) (applying Chevron to give controlling weight to
Department of Justice interpretations of title II of the ADA).
        Agencies are also afforded substantial deference in
interpreting their own regulations. The Supreme Court has stated
that "provided that an agency's interpretation of its own
regulations does not violate the Constitution or a federal
statute, it must be given 'controlling weight unless it is
plainly erroneous or inconsistent with the regulation.'" Stinson
v. United States, 113 S. Ct. 1913, 1919 (1993) (quoting Bowles v.
Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). See Lyng v.
Payne, 476 U.S. 926, 939 (1986); United States v. Larionoff, 431
U.S. 864, 872-873 (1977); Udall v. Tallman, 380 U.S. 1, 16-17
(1965).
                                       - 12 -
01-04726
        Individuals not currently impaired but who have a history of
mental illness or emotional disorder may fit into the second or
third prongs of the statutory definition. Many persons diagnosed
or treated for mental illness have at some time experienced
substantial limitations in major life activities such as working,
learning, caring for oneself, eating or sleeping.12 The
legislative history of the ADA notes that the "record of . . .
impairment" prong of the definition was included in the law
        in part to protect individuals who have recovered from
        a physical or mental impairment which previously
        substantially limited them in a major life activity.
        Discrimination on the basis of such a past impairment
        would be prohibited under this legislation. Frequently
        occurring examples of [this] group . . . are persons
        with histories of mental or emotional illness . . . .13
        Regardless of whether they have ever suffered from an actual
substantial impairment of a major life activity, however, persons
who have ever been diagnosed or treated for mental illness may be
covered by the third prong of the "disability" definition --
"regarded as having such an impairment." 42 U.S.C.  12102
        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).
                                       -13-
01-04727

(2)(C).14   Unfortunately, due to popular misconceptions
concerning persons who have sought treatment for mental health
problems in the past, such persons are often regarded as
emotionally disabled or mentally ill although their past and/or
current capability or stability may not be affected. See
discussion infra. As the Supreme Court observed in School Board
of Nassau County v. Arline, 480 U.S. 273, 284 (1987), Congress,
in enacting the "regarded as" provision, "acknowledged that
society's accumulated myths and fears about disability and
disease are as handicapping as are the physical limitations that
flow from actual impairment."15
        Here, the Board's sweeping inquiries reflect an assumption
that any past diagnosis or treatment for mental or emotional
condition or disorder is evidence of an impairment that is
        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 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. The legislative history of the ADA
includes numerous approving references to Arline's interpretation
of the law. See 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 42 U.S.C.  12202(a); Education
and Labor Report at 84; 28 C.F.R.  35.103(a) (1992).
                                       - 14 -
01-04728

relevant to an applicant's ability to work as a lawyer.16   The
Board here is thus "regarding" persons with past histories of
mental health treatment as persons likely to be currently
impaired.
                E.   The Inquiry Into Past Treatment For Mental Health
                     Is An Unnecessary Eligibility Requirement
        The central issue of this case is whether Question 29 and
the followup inquiries are necessary to the Board in its
determinations of whether applicants are fit to practice law. If
so, there is no violation of title II. However, as we
demonstrate below, the Board's conduct does violate title II
because Question 29 and the resulting inquiries are not necessary
to the Board in making its determinations of whether individuals
are qualified to practice law. As the court in Medical Society
of New Jersey v. Jacobs, 1993 WL 413016, at *7, concluded, "The
essential problem with the present questions is that they
substitute an impermissible inquiry into the status of disabled
applicants for the proper, indeed necessary, inquiry into the
applicants' behavior."
                a.   Unnecessary Inquiries Into Disability Are
                     Prohibited By Title II
        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.
                                       - 15 -
01-04729

        Title II does not permit inquiries into disabilities where
they are not necessary to achieve the objective of determining
whether individuals are fit to practice law. Unnecessary
inquiries are barred by 28 C.F.R.  35.130(b)(8),17  which is
identical in substance to a statutory provision in title III, 42
U.S.C.  12182 (b)(2)(A) i), and the title III regulation, 28
C.F.R. 36.301(a). The legislative history of the title III
statutory provision makes clear that Congress intended to
prohibit unnecessary inquiries into disability.
        It also would be a violation for [a public accommodation] to
        invade such people's privacy by trying to identify
        unnecessarily the existence of a disability, as, for
        example, if the credit application of a department store
        were to inquire whether an individual has epilepsy, has ever
        ... been hospitalized for mental illness, or has other
        disability.
Senate Report at 62. See also Education and Labor Report at 105;
Judiciary Report at 58. The Department of Justice emphasized
this Congressional intention in the accompanying analysis to its
title III regulation, 28 C.F.R. pt. 36, app. B at 590. The Title
II Technical Assistance Manual, published by the Attorney General
pursuant to statutory mandate, reiterates that title II prohibits
unnecessary inquiries into disability. 42 U.S.C.  12206(c)(3)
        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.
        (Emphasis added.)
                                       -16-
01-04730
& (d) (Supp. II 1990); U.S. Department of Justice, The Americans
with Disabilities Act -- Title II Technical Assistance Manual
(1992 & Supp. 1993) ("Technical Assistance Manual"). Section 204
of the ADA provides that the title II regulation shall
incorporate this concept. 42 U.S.C.  12134 (b); Judiciary Report
at 51; Education and Labor Report at 84; 28 C.F.R. pt. 35, app. A
at 430.18
                b.   The Board Cannot Establish That Its Inquiries Are
                     Necessary For Determining Whether Individuals Are
                     Fit To Practice Law
        Title II prohibits a public entity from discriminating
against a "qualified individual with a disability," which is
defined in title II of the ADA and section 35.104 of the title II
regulation to mean:
        an individual with a disability who, with or without
        reasonable modifications to rules, policies or
        practices ... meets the essential eligibility
        requirements for the receipt of services or the
        participation in the programs or activities provided by
        a public entity.
42 U.S.C.  12131(2); 28 C.F.R.  35.104 (emphasis added).
Similarly, as noted in the analysis accompanying section
35.130(b)(6), a person is a "qualified individual with a
disability" with respect to licensing or certification if he or
she can meet the essential eligibility requirements for receiving
the license or certification. 28 C.F.R. pt. 35, app. A at 453
        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.
                                       -17-
01-04731

(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
        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, 480 U.S. 273, 287-288 (1986); Pandazides v.
Virginia Bd. of Educ., 946 F.2d 345, 349-50 (4th Cir.
1991) (noting that "defendants cannot merely mechanically invoke
any set of requirements and pronounce the handicapped applicant
or prospective employee not otherwise qualified. The district
court must look behind the qualifications"); Doe v. Syracuse
School Dist., 508 F. Supp. 333, 337 (N.D.N.Y. 1981) (requiring
analysis behind "perceived limitations"). See also Strathie v.
Department of Transp., 716 F.2d 227, 231 (3d Cir. 1983) (finding
State's characterization of essential nature of program to
license bus drivers overbroad, and requiring a "factual basis
reasonably demonstrating" that accommodating the individual would
modify the essential nature of the program); Easley by Easley v.
Snider, 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
                                                                (continued...)
                                       -18-
01-04732

        The purpose of the Board's licensure process is to determine
whether individuals are capable of practicing law in a competent
and ethical manner, i.e. whether such persons will satisfy the
"essential eligibility requirements" for the practice of law.21
The inquiries and investigations at issue here are poorly crafted
to achieve the Board's goal of identifying persons unfit to
practice law. Asking about an applicant's history of diagnosis
and treatment for mental disorders treats a person's status as an
        20(...continued)
                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).
                                       -19-
01-04733

individual with a disability as if it were indicative of that
individual's future behavior as an attorney.22 However,
diagnosis or treatment for a mental disorder provides no basis
for assuming that these disabilities will affect behavior. See
generally 1 Jay Ziskin, Coping with Psychiatric and Psychological
Testimony 1-63 (3d ed. 1981); Bruce J. Ennis & Thomas R. Litwack,
Psychiatry and the Presumption of Expertise: Flipping Coins in
the Courtroom, 62 Cal. L. Rev. 693 (1974) (both articles citing
extensive authority establishing the inability of mental health
professionals to make reliable predictions of future behavior).23
        Questions that focus on conduct and character rather than
the status of having a disability, are better indicators of an
        22      The ADA prohibits discrimination based on stereotypical
and unfounded fears and misconceptions over the perceived
consequences of disabilities. See, e.g., Title II Technical
Assistance Manual at 12 ("A public entity may impose legitimate
safety requirements necessary for the safe operation of its
services, programs, or activities. However the public entity
must ensure that its safety requirements are based on real risks,
not on speculation, stereotypes, or generalizations about
individuals with disabilities") (emphasis added).
        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,
94 Yale L.J. 491, 581-82 (1985).
                                       -20-
01-04734

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 injury:
                An attorney should be one whose record of
                conduct justifies the trust of clients,
                adversaries, courts, and others with respect
                to the professional duties owed to them. A
                record manifesting a deficiency in the
                honesty, trustworthiness, diligence or
                reliability of an applicant may constitute a
                basis for denial of admission.
Rules of the Supreme Court Relating to Admissions to the Bar,
Article III, Section 2 (b) (emphasis added). While the Board
acknowledges that conduct is the proper focus of its inquiries,
it nevertheless asserts that a record of treatment for mental
illness will expose conduct that poses a risk for the practice of
law.24 This argument, however, is based on presumptions about
mental illness that are simply not borne out in fact, as the
authorities discussed above have concluded.
        The Board's purposes are better served by questions that
focus directly on conduct and behavior, including those that may
be associated with mental illness. The Title II Technical
Assistance Manual states that,
        24      See 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 or behavior 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."
                                       -21-
01-04735

                [p]ublic entities may not discriminate against
                qualified individuals with disabilities who apply for
                licenses, but may consider factors related to the
                disability in determining whether the individual is
                "qualified."
Technical Assistance Manual, at II-3.7200 (emphasis added). One
permissible "factor related to the disability" is any
inappropriate behavior associated with that disability. Thus,
the Board may inquire generally about any leaves of absence or
terminations from employment in the past but may not focus the
inquiry only on those leaves of absence and terminations
occasioned by physical or psychiatric illnesses or conditions.
Similarly, the Board may inquire about personal behavior,
including whether the applicant uses illegal drugs and the
frequency of use.25 The Board may also ask applicants whether
there is anything that would currently impair their ability to
carry out the duties and responsibilities of an attorney in a
manner consistent with the Rules of the Florida Supreme Court
Relating to Admissions to the Bar.26
        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, 508
F. Supp. 333 (N.D.N.Y. 1981), the court held that a question on a
job application form asking whether the applicant had ever
experienced a nervous breakdown or undergone psychiatric
treatment was illegal under the Rehabilitation Act and its
implementing regulations. The district court noted that, "if
defendant sincerely wanted to employ persons that were capable of
performing their jobs, all it had to ask was whether the
applicant was capable of dealing with various emotionally
demanding situations." Id. at 337.
                                       - 22 -
01-04736
        The inquiries and investigations regarding mental health
history are also unnecessary because other questions on the
Florida bar applications elicit a wealth of information to
illuminate an individual's past behavior. These inquiries
require full disclosure of employment history, educational
background, military service, criminal record, illegal drug use,
fiscal responsibility, residential history, and identification of
family members. These inquiries provide a sound and
comprehensive basis for drawing inferences about an individual's
fitness for the practice of law without resort to the mental
health history.
        Other courts concur in this conclusion. See In re Petition
of Frickey, et al., No. C5-84-2139, 1994 WL 183523 (Minn.
April 28, 1994), (order removing similar questions from Minnesota
bar admissions application, finding that "questions relating to
conduct can, for the most part, elicit the information necessary
for the Board of Law Examiners to enable the Court to protect the
public from unfit practitioners"); and Medical Society of New
Jersey v. Jacobs, 1993 WL 413016, at *7 (questions regarding
applicants' diagnosis of and treatment for psychiatric illness or
condition are unnecessary, where the medical examiners could
"formulate a set of effective questions that screen out
applicants based only on their behavior and capabilities").
     A recent District of Columbia study determined that
information obtained pursuant to inquiries about treatment for
mental health problems has "rarely, if ever, brought to light a
                                       -23-
01-04737
serious fitness question that was not highlighted by other
information (concerning litigation, employment, encounters with
legal authorities, academic or bar discipline, etc.)". Reishel,
The Constitution, the Disability Act, and Questions about
Alcoholism, Addiction, and Mental Health, 61 The Bar Examiner 10,
20 (1992).27
\
\
\
\
\
        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 resulted in a
applicant's noncertification for admission to the District of
Columbia bar. Reishel, The Constitution, the Disability Act, and
Questions about Alcoholism, Addiction, and Mental Health, 61 The
Bar Examiner 10, 20 (1992).
                                       -24-
01-04738
                c.   The Board's Inquiries Unnecessarily Impose Burdens
                     On Individuals With Disabilities 28
        In this case, an applicant's status as a person with a
history of a disability is the sole criterion used by the Board
to trigger a requirement for submitting an additional detailed
description of facts about the disability beyond that required by
the application form, and in many cases, further investigation.
The questionnaire is thus used as a screening device to identify
persons who will be subject to further inquiry and investigation.
See Medical Society of New Jersey v. Jacobs 1993 WL 413016, at
*7.
        Several provisions of the title II regulation prohibit
policies that unnecessarily impose greater requirements or
burdens on individuals with disabilities than those imposed on
others. As a State licensing entity, the Board must comply with
section 35.130(b)(6), which states,
     A public entity may not administer a licensing or
     certification program in a manner that subjects
        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 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.
                                       -25-
01-04739
        qualified individuals with disabilities to
        discrimination on the basis of disability * * *.
28 C.F.R.  35.130(b)(6). Section 35.130(b)(3)(i) further
provides,
        A public entity may not, directly or through
        contractual or other arrangements, utilize criteria or
        methods of administration ... that have the effect of
        subjecting qualified individuals with disabilities to
        discrimination on the basis of disability.
28 C.F.R.  35.130(b)(3)(i).
        Also applicable is the regulatory provision prohibiting
discriminatory eligibility criteria which states:
        A public entity shall not impose or apply eligibility
        criteria that screen out or tend to screen out an individual
        with a disability or any class of individuals with
        disabilities from fully and equally enjoying any service,
        program, or activity, unless such criteria can be shown to
        be necessary for the provision of the service, program, or
        activity being offered.
28 C.F.R.  35.150(b)(8).29
        This case does not present a situation where an individual
has been denied admission to the bar based on disability.
However, title II and its implementing regulations proscribe more
than total exclusion on the basis of disability. See e.g.,
Medical Society of New Jersey, 1993 WL 413016, at *7. Section
35.130(b)(6) prohibits administering a licensing program "in a
manner that subjects qualified persons with disabilities to
discrimination." Similarly, section 35.130(b)(3)(i) prohibits
        29      See also 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).
                                       - 26 -
01-04740
use of "methods of administration" that have a discriminatory
effect. Finally, as pointed out in the interpretative guidance
accompanying the regulation, section 35.130(b)(8) not only
outlaws overt denials of equal treatment of individuals with
disabilities, it prohibits policies that unnecessarily impose
requirements or burdens on individuals with disabilities greater
than those placed on others. 28 C.F.R. pt. 35, app. A at 453-54
(1993). It also prohibits unnecessary inquiries into disability
as discussed above.
        The Florida Board of Bar Examiners' inquiries and reporting
requirements concerning diagnosis and treatment for mental
illness impose requirements on persons with histories of
disabilities that are greater than those imposed on other
applicants. The Board requires applicants to state (1) whether
they have ever consulted a mental health professional or any
other medical practitioner for any mental, nervous or emotional
condition, or drug or alcohol use; (2) whether they have ever
been diagnosed as having a nervous, mental or emotional
condition, drug or alcohol problem; and (3) whether they have
ever been prescribed psychotropic medication.
     Affirmative answers automatically trigger a requirement that
the applicant identify and provide the complete address of each
individual consulted for the condition, and record the beginning
and ending dates of consultation. Letters are then sent to the
named professionals, asking very broad and detailed questions
about the applicant's treatment history, regarding, inter alia,
                                       - 27 -
01-04741

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
                                       - 28 -
01-04742
response of the Board of Bar Examiners if an applicant refuses to
answer Question 29.
        The facts here are thus markedly different than those in
Medical Society of New Jersey, supra, where the court found that
the challenged questions operated as an unlawful screening
device, but declined to issue an injunction because plaintiffs
were already licensed to practice medicine and the Board had no
plans to conduct investigations based on the challenged
questions. Here, plaintiffs cannot obtain professional licenses
until the full inquiries are concluded.30
        Mental health treatment is often bound up with intensely
personal issues such as family relationships and bereavement.
The Board's licensure inquiry is invasive not only because it
requires persons who answer the questions in the affirmative to
provide information about these issues, but because it also
requires them to disclose details about what is arguably the most
private part of human existence -- a person's inner mental and
emotional state. Of potentially even more harm is the Board's
        30      As the court in the Medical Society of New Jersey
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, 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 court's view that asking the questions, so long
as they are not acted upon, does not violate title II. See Part
D., supra.
                                       - 29 -
01-04743
attempt to obtain information about the person's fitness from
others; the Board's investigators apparently may engage in a
full-fledged exploration of an applicant's condition with the
person's colleagues and supervisors, asking questions regarding
the person's diagnosis or treatment for mental, emotional or
nervous disorders. It is not difficult to imagine the attendant
potential damage to an individual's reputation.
        The inquiries are also invasive and burdensome because of
the stigma which still attaches to treatment for mental or
emotional illness. The Supreme Court has recognized that
individuals have a substantial liberty interest under the Due
Process Clause of the Constitution in avoiding the social stigma
of being known to have been treated for a mental illness. Parham
v. J.R., 442 U.S. 584, 600 (1979); Addington v. Texas, 441 U.S.
418, 426 (1979).31 See also Smith v. Schlesinger, 513 F.2d 462,
477 (D.C. Cir. 1975) ("[m]ental illness is unfortunately seen as
a stigma. The enlightened view is that mental illness is a
disease...but we cannot blind ourselves to the fact that at
present, despite lip service to the contrary, this enlightened
view is not always observed in practice") (ordering Department of
        31      In Parham, the Court found that a person's liberty is
"substantially affected" by the stigma attached to treatment in a
mental hospital: "The fact that such a stigma may be unjustified
does not mean it does not exist. Nor does the fact that public
reaction to past commitment may be less than the public reaction
to aberrant behavior detract from this assessment. The aberrant
behavior may disappear, while the fact of past institutionaliza-
tion last forever." Parham v. J.R., 442 U.S. 584, 622, n.3
(1979) (Stewart, J., concurring in judgment).
                                       - 30 -
01-04744
Defense to present investigative file on plaintiff, whose
security clearance had been revoked.)32
        In light of these cases, defendants' characterization of the
questions at issue here as a mere "inconvenience" for persons
with histories of mental disability, Motion to Dismiss at 7, is
puzzling at best. But the Board's inquiries into an individual's
history of disabilities, also has a more insidious discriminatory
effect. Concern over the Board's inquiries about diagnosis and
treatment for mental illness deters law students and other
applicants from seeking counseling for mental or emotional
problems. See Stephen T. Maher & Lori Blum, A Strategy for
Increasing the Mental and Emotional Fitness of Bar Applicants, 23
Ind. L. Rev. 821, 830-33 (1990) (detailed discussion of how such
        32      See also In Re John Ballay, 482 F.2d 648, 668-69 (D.C.
Cir, 1973) ("[d]ischarged patients must not only cope with stigma
of having once been hospitalized, but must often continue to cope
with the 'mental illness' label itself....Even the most
enlightened persons may unwittingly harbor views associated with
this stigma."), Estate of Roulet, 23 Cal. 3d 219, 228-29 (1979)
(finding that there is compelling evidence that society "still
views the mentally ill with suspicion" and noting that:
        [i]n the ideal society, the mentally ill would be the
        subjects of understanding and compassion, rather than
        ignorance and aversion. But that enlightened view,
        unfortunately, does not yet prevail. The stigma borne
        by the mentally ill has frequently been identified in
        the literature: 'a former mental patient may suffer
        from the social opprobrium which attaches to treatment
        for mental illness and which may have more severe
        consequences than do the formally imposed disabilities.
        Many people have an irrational fear of the mentally
        ill.' The former mental patient is likely to be
        treated with distrust and even loathing; he may be
        socially ostracized and victimized by employment and
        educational discrimination.
(citing People v. Burnick, 14 Cal.3d 306, 321 (1975)).
                                       - 31 -
01-04745
inquiries have deterrent effect). Indeed, this deterrence factor
was part of the basis for the State of Minnesota Supreme Court's
order in In re Petition of Frickey, et al., No. C5-84-2139 (Minn.
Apr. 28, 1994) (deleting questions regarding mental health
history from bar admissions application on grounds that the
questions deterred law students from seeking needed
counseling.)33
        Even when treatment is sought, its effectiveness may be
compromised, because knowledge of the Board's potential
investigation of issues surrounding treatment is likely to
undermine the trust and frank disclosure on which successful
counseling depends. See Maher & Blum, supra, at 824, 833-46.34
        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, 44 Journal of
Legal Education 35, 55 (1994) It can be reasonably assumed that
a study asking the same questions about mental health problems
would show similar findings.
        34      The chilling effect of the Boards practices runs
completely counter to the goal ostensibly served by the inquiries -- ensuring
that applicants will be fit practitioners. See
Deborah L. Rhode, Moral Character as a Professional Credential,
94 Yale L.J. 491, 582 (1985). 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:
                                                                (continued...)
                                       - 32 -
01-04746
Thus, rather than improving the quality of attorneys in the
State, the Board's inquiries may have the perverse effect of
deterring those who could benefit from treatment from obtaining
it, while penalizing those who enhance their ability to perform
successfully as attorneys by seeking counseling.
        A recent court of appeals decision confirms that requiring
persons to undergo medical scrutiny solely on the basis of their
status as a member of a protected class violates anti-
discrimination laws. In EEOC v. Massachusetts, 987 F.2d 64 (1st
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
        34 (... continued)
                [I]f there is any wisdom in the choice to inquire at
                the cost of discouraging treatment, it is penny-wise
                and pound-foolish because it discourages applicants
                from taking advantage of opportunities to develop their
                mental and emotional fitness before they are admitted
                to the bar. This is a mistake because law practice is
                stressful, and students need to prepare for the stress
                of practice, just as they need to prepare for its other
                demands. Through counseling, students can develop
                healthy coping strategies that will permit them to deal
                with the stress of practice. Without adequate
                preparation, they may resort to unhealthy coping
                strategies, such as drug or alcohol abuse.
Maher & Blum, supra, at 824.
                                       - 33 -
01-04747
"strikes at the heart of the ADEA [whose] entire point ... is to
abandon previous stereotypes about the abilities and capacities
of older workers." 987 F.2d at 71. See also Medical Society of
New Jersey 1993 WL 413016, at *7 ("In the context of other anti-
discrimination statutes, it has been held to be fundamental that
an individual's status cannot be used to make generalizations
about that individual's behavior.") (citing Los Angeles Dep't of
Water and Power v. Manhart, 435 U.S. 702 (1978)).
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01-04748

                                   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 29, 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: (signature of Foran)
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
                                       -35-
01-04749
                              CERTIFICATE OF SERVICE
        I, the undersigned, attorney for the United States of
America, do hereby certify that I have this date served upon the
persons listed below, by overnight delivery, true and correct
copies of the foregoing Memorandum of the United States as Amicus
Curiae:
                        JAMES K. GREEN
                        One Clearlake Centre, Suite 1503
                        250 Australian Avenue South
                        West Palm Beach, FL 33401
                         (Attorney for Plaintiffs)
                        SUSAN STEFAN (via regular mail)
                        University of Miami, School of Law
                        P.O. Box 248087
                        Coral Gables, FL 33124
                         (Attorney for Plaintiffs)
                        NINA VINIK
                        American Civil Liberties Union
                        225 N.E. 34th Street, Suite 102
                        Miami, FL 33137
                         (Attorney for Plaintiffs)
                        LYNDA QUILLEN
                        Office of Attorney General
                        PL 01 - The Capitol
                        Tallahassee, FL 32399-1050
                         (Attorney for Defendants)
                        PETER ZINOBER
                        Zinober & McCrea, P.A.
                        201 E. Kennedy Blvd.
                        Tampa, FL 33602
                         (Attorney for Defendants)
SO CERTIFIED this 29th day of June, 1994.
                                  (Signature)
                                        SHEILA M. FORAN
                                        Attorney
                                        United States Department of Justice
                                        Civil Rights Division
                                        Public Access Section
                                        P.O. Box 66738
                                        Washington, D.C. 20035-6738
                                        (202) 307-0663
01-04750