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.                      :
                                        :
              RECOMMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW
                    OF THE UNITED STATES AS AMICUS CURIAE
01-07450
                               TABLE OF CONTENTS
TABLE OF AUTHORITIES..................................................... ii
I.      INTRODUCTION...................................................... 1
II.     PROPOSED FINDINGS OF FACT......................................... 3
III.    PROPOSED CONCLUSIONS OF LAW...................................... 13
IV.     CONCLUSION....................................................... 27
                                        i
01-07451
                              TABLE OF AUTHORITIES
CASES:
Addington v. Texas,
        441 U.S. 418 (1979).............................................. 21
Applicants v. Texas State Bd. of Law Examiners,
        93 CA 740 SS (W.D. Tex. Oct. 10, 1994)............................ 2
In re Applications of Anne Underwood and
Judith Ann Plano, No. BAR 93-21,
        1993 WL 649283 at *2 (Me. Dec. 7, 1993)........................... 2
Arizona Governing Comm. for Tax Deferred Annuity
        and Deferred Compensation Plans v. Norris,
        463 U.S. 1073 (1983)............................................. 22
Chevron, U.S., Inc. v. Natural Resources Defense Council,
        Inc., 467 U.S. 837 (1984)........................................ 14
City of Los Angeles v. Manhart,
        435 U.S. 702 (1978).............................................. 22
Cleburne v. Cleburne Living Center, Inc.,
        473 U.S. 432 (1985).............................................. 21
Connecticut v. Teal,
        457 U.S. 440 (1982).............................................. 22
District of Columbia Court of Appeals v. Feldman,
        460 U.S. 462 (1983).............................................. 26
Ellen S. v. Florida Bd. of Bar Examiners,
        859 F. Supp. 1489 (S.D. Fla 1994)...................... 2, 18-19, 24
Fiedler v. American Multi-Cinema, Inc., CIV A-92-486 (TPJ),
        1994 WL 709588 (D.D.C. Dec. 16, 1994)............................ 15
In re John Ballay,
        482 F.2d 648 (D.C. Cir. 1973).................................... 21
Lyng v. Payne, 476 U.S. 926 (1986).................................... 14-15
Martin v. Occupational Safety & Health Review Comm'n,
        499 U.S. 144 (1991).............................................. 14
Medical Society of New Jersey v. Jacobs,
        1993 WL 413016 (D.N.J. Oct. 5, 1993).................... 2, 1-19, 25
                                        ii
01-07452
Pandazides v. Virginia Bd. of Educ.,
        946 F.2d 345 (4th Cir. 1991) .................................... 18
Parham v. J.R.,
        442 U.S. 584 (1979) ............................................. 21
Petersen v. University of Wis. Bd. Regents,
        818 F. Supp. 1276 (W.D. Wis. 1993) .............................. 14
In re Petition of Frickey,
        515 N.W.2d 741 (Minn. Apr. 28, 1994) ...................... 2, 7, 25
Sandford v. R.L. Coleman Realty Co.,
573 F.2d 173 (4th Cir. 1978) ............................................ 26
School Bd. of Nassau County v. Arline,
        480 U.S. 273 (1987) ..................................... 16, 18, 21
Smith v. Schlesinger,
        513 F.2d 462 (D.C. Cir. 1975) ................................... 21
Stinson v. United States, 113 S. Ct. 1913 (1993) ........................ 14
Thomas v. Washington County School Bd.,
        915 F.2d 922 (4th Cir. 1990) .................................... 26
Udall v. Tallman, 380 U.S. 1 (1965) ..................................... 15
United States v. Larionoff, 431 U.S. 864 (1977) ......................... 15
Woodard v. Virginia Bd. of Bar Examiners,
        454 F. Supp. 4 (E.D. Va 1978),
        aff'd, 598 F.2d 1345 (4th Cir. 1979) ............................ 26

STATUTES AND REGULATIONS:

42 U.S.C. 12101-12213 (Supp. II 1990) .................................... 1
42 U.S.C. 12101(a)(7) ................................................... 22
42 U.S.C. 12102(2) ...................................................... 14
42 U.S.C. 12131(1)(B) ................................................... 14
42 U.S.C. 12131(2) ...................................................... 17
42 U.S.C. 12132 ......................................................... 13
42 U.S.C. 12134(b) ...................................................... 20
42 U.S.C. 12182 (b) (2) (A) (i) ......................................... 20
28 C.F.R. 35, App. A (1993) .......................................... 17-19
28 C.F.R. 35.102 ........................................................ 14
28 C.F.R. 35.104 ................................................. 14-15, 17
28 C.F.R. 35.130(b) (3) (i) ............................................. 18
28 C.F.R. 35.130(b)(6) .................................................. 18
28 C.F.R. 35.130 (b) (8) ............................................. 19-20
28 C.F.R. 36, App. B (1994) ............................................. 20
                                        iii
01-07453
28 C.F.R. 36.301(a) ..................................................... 20

LEGISLATIVE MATERIALS:

H.R. Rep. No. 485, 101st Cong.,
2d Sess., pt II (1990) .................................... 15-16, 20-21, 23
H.R. Rep. No. 485, 101st Cong.,
2d Sess., pt III (1990) .......................................... 20-21, 23
S. Rep. No. 116,
101st Cong., 1st Sess. (1989) ............................. 15-16, 20-21, 23

MISCELLANEOUS:

American Psychiatric Association, Diagnostic
and Statistical Manual of Mental Disorders
(4th ed. 1987), (DSM-IV) ................................................. 3
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 (1994) ................................................... 6
Bruce J. Ennis & Thomas R. Litwack, Psychiatry and
the Presumption of Expertise: Flipping Coins in
the Courtroom, 62 Cal. L. Rev. 693 (1974) ............................... 10
Stephen T. Maher and Lori Blum, Strategy for
Increasing Mental and Emotional Fitness of Bar
Applicants, 23 Ind. L. Rev. 821 (1990) ................................... 7
Reishel, The Constitution, the Disability Act, and
Questions about Alcoholism, Addiction, and Mental Health,
61 The Bar Examiner 10 (1992) ........................................... 10
U.S. Department of Justice, The Americans with
Disabilities Act -- Title II Technical Assistance
Manual (1992 & Supp. 1993) .......................................... 21, 24
7A Charles A. Wright, Arthur R. Miller & Mary K. Kane,
Federal Practice and Procedure S 1771 (1986) ............................ 26
Jay Ziskin, Coping with Psychiatric and
Psychological Testimony (3d ed. 1981) ................................... 10
                                       iv
01-07454
                                 I. INTRODUCTION

        The United States submits this memorandum as amicus curiae
to address the factual and legal issues presented to the Court at
trial and to urge this Court to enter judgment for plaintiff
Julie Ann Clark.
        Question 20(b) of the application of the Virginia Board of
Bar Examiners ("Board") currently asks,
                Have you within the past five (5) years been
                treated or counseled for any mental,
                emotional, or nervous disorder?
Applicants who answer in the affirmative must provide additional
information concerning their diagnosis, course of treatment, and
prognosis, identify any treating physician or counselor, and
authorize the release of their records.
        In previous briefs submitted to this Court, the United
States has argued that Question 20(b) violates title II of the
Americans with Disabilities Act (ADA), 42 U.S.C. SS 12101-12213
(Supp. II 1990). The evidence presented at trial fully supports
this conclusion.
        The United States recognizes the importance of the Board's
function of ensuring that attorneys admitted to practice law in
the Commonwealth meet a high standard of competency and
integrity. The evidence presented at trial demonstrates,
however, that one of the means used by the Board to accomplish
that end impermissibly discriminates against persons with
                                     - 1 -
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disabilities. Question 20(b) targets persons with mental
disabilities or histories of mental disabilities for additional
burdens not imposed on others -- namely, disclosure of very
personal information regarding details about the applicant's
treatment for such disabilities. Further, because the inquiry
does not accurately assess current fitness to practice and is
less predictive of future behavior than available alternatives,
Question 20(b)'s broad inquiry into an applicant's mental health
history is not necessary to the Board's purpose of licensing only
fit practitioners.
        Every court that has examined challenges to mental health
questions in professional licensing under the ADA has concluded
that broad-based inquiries, such as the Board's Question 20(b),
violate or are likely to violate title II of the ADA. See Ellen
S. v. Florida Bd. of Bar Examiners, 859 F. Supp. 1489, 1493 (S.D.
Fla. 1994); Medical Society of New Jersey v. Jacobs, 1993 WL
413016, at *7 (D.N.J., Oct. 5, 1993); In re Applications of Anne
Underwood and Judith Ann Plano, 1993 WL 649283, at *2 (Me. Dec.
7, 1993); see also Applicants v. Texas State Bd. of Law
Examiners, 93 CA 740 SS at 20 (W.D. Tex. Oct. 10, 1994) ("such a
broad-based inquiry violates the ADA."); cf. In re Petition of
Frickey, et al., 515 N.W.2d 741 (Minn. April 28, 1994). The
evidence presented at trial fully supports a similar decision by
this Court.
                                      - 2 -
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                         II. PROPOSED FINDINGS OF FACT

        1.      In 1993, Julie Clark graduated from George Mason
University Law School and applied for membership to the Virginia
bar by filing her application with the defendant, the Virginia
Board of Bar Examiners. In her application, however, she refused
to answer Question 20(b). Julie Clark has passed the Virginia
bar examination, which she took in February 1994, and, aside from
her refusal to answer Question 20(b), has fulfilled all of the
requirements for receiving a license to practice law in the
Commonwealth of Virginia.1
        2.      Julie Clark is a person with a disability. Ms. Clark
had been diagnosed with "major depression, recurrent," a
diagnosis recognized in the psychiatric field.2 Because of her
illness, Julie Clark suffered from an inability to concentrate,
act decisively, sleep properly, orient herself, or maintain
ordinary social relationships, over a period of at least thirteen
months.3 This evidence, together with the supplemental
declaration of Julie Clark filed under seal with the Court,
establishes that Ms. Clark is a person with record of a
_______________________

        1       Plaintiff's Exhibit 68(a) and Record at 101-102.
        2       See Plaintiff's Exhibit 68(a) and American Psychiatric
Association, Diagnostic and Statistical Manual of Mental
Disorders 339 (4th ed., American Psychiatric Association
1994)(DSM-IV).
        3       Plaintiff's Exhibit 68(a).
                                     - 3 -
01-07457
disability.4 Ms. Clark, like other bar applicants who have been
diagnosed, counseled, or treated for mental or emotional
illnesses, is also regarded as disabled by the Board. Question
20(b) singles out persons with histories of treatment for mental,
emotional, or nervous disorders and subjects them to additional
inquiries.
        3.      The Virginia Board of Bar Examiners is responsible for
licensing attorneys in the Commonwealth of Virginia. Among its
other duties, the Board is responsible for ensuring that
applicants have passed the bar examination, filed the appropriate
forms, paid all necessary fees, and fulfilled the academic and
character requirements for admission. (Defendant's Exhibit 4).
Mr. Scott Street, Secretary and Treasurer of the Board, testified
that initially the applications are reviewed quickly by the
Board, then sent to the National Conference of Bar Examiners for
further review, and finally are reviewed again by the Board to
determine which applications required further investigation.5 On
two occasions,6 where the applicants were manic-depressive and
were either hospitalized or displayed financially irresponsible
______________________

        4       This Court previously found that plaintiff's
supplemental declaration (Plaintiff's Exhibit 68(b)) alleged
facts sufficient to defeat a motion for summary judgment on the
issue of standing. While the United States believes that the
evidence presented in this declaration will be useful to the
Court, we shall refrain from comment regarding the weight to be
given this evidence, as it was filed with the Court under seal.
        5       Record at 107-115.
Record at 107-115.
        6       Mr. Street testified that, in 1992 and 1993, applicants
from outside the Commonwealth of Virginia were required to answer
mental health inquiries. (Record at 114).
                                     - 4 -
01-07458
behavior, the Board went further and requested a letter from each
applicant's treating physician indicating that the person was
capable of engaging in the unsupervised practice of law.7 On
both occasions, these letters were dispositive of the Board's
investigation.8 None of the members of the Board have any formal
training or background in psychiatry or psychology.9
        4.      Question 20(b) of the application used by the Board in
its licensing process asks:
        Have you within the past five (5) years been
        treated or counseled for any mental,
        emotional, or nervous disorder?
        5.      Question 20(b) and its attendant disclosure
requirements burden persons with histories of mental disabilities
to a much greater extent than other applicants. All candidates
are required to state whether, within the past five years, they
have been treated or counseled for any mental, emotional, or
nervous disorder. (Plaintiff's Exhibit 1, p. 22). 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. (Plaintiff's Exhibit 1, p. 22). By signing their
applications, candidates also waive their rights of
confidentiality to and authorize release of their treatment or
consultation records. (Plaintiff's Exhibit 1, p. 25). This
_______________________

        7       Record at 112-115.
        8       Record at 115.
        9       Record at 135-136.
                                     - 5 -
01-07459
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.
        6.      Question 20(b) also deters persons with mental
disabilities from counseling. Dean Paul Marcus of William and
Mary Law School testified that, in his experience, a significant
number of law students suffering from mental illness would forgo
counseling or treatment because of possible revelation to the
Board. (Plaintiff's Exhibit 71). Plaintiff's expert witness, Dr.
Howard Zonana, also testified that revealing mental treatment or
diagnoses to a licensing board would deter treatment or
counseling. (Record at 43-44, 75-75). Even the defendant's
expert witness, Dr. Charles Mutter, recalled being advised by at
least one law school professor and dean that broad mental health
inquiries would have a chilling effect on students who might
otherwise seek counseling for mental, emotional, or nervous
disorders. (Record at 232-33).10 The fact that concern over bar
___________________

        10      This testimony is supported by 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 reasonably be inferred
that similar results would obtain regarding treatment for mental
health problems.
                                                                (continued...)
                                     - 6 -
01-07460
examiners, inquiries into diagnosis and treatment for mental
illness deters law students and other applicants from seeking
counseling for mental or emotional problems is also evident from
the Frickey decision, in which the Minnesota Supreme Court struck
down mental health inquiries on the Minnesota bar application,
specifically citing the deterrence effect of such inquiries. In
re Petition of Frickey, C5-84-2139 (Minn., Apr. 28,
1994)(Plaintiff's Exhibit 15).11
        7.      Question 20(b) also creates additional burdens for
persons with histories of mental disabilities because of the
stigma that still attaches to treatment for mental or emotional
illness. Dr. Zonana noted that treatment for such disabilities
is often equated by bar examiners with such factors as having
been disbarred or having engaged in other behavior that truly
reflects upon character. Dr. Zonana concluded, that, "the clear
implication is, if you have [a mental] disability, that that's an
indication that that's a significant problem ... " (Record at 44).
        8.      At the heart of the Virginia Board of Bar Examiner's
case is a belief that inquiries into treatment, counseling, or
diagnoses of any mental illness will yield information that will
_________________________

        10 ( ... continued)
        Furthermore, even when treatment is sought, its
effectiveness may be compromised because knowledge of the
possible revelation to a licensing board may undermine the trust
and frank disclosure upon which successful counseling depends.
See Stephen T. Maher & Lori Blum, A Strategy for Increasing the
Mental and Emotional Fitness of Bar Applicants, 23 Ind. L. Rev.
821, 824, 833-46 (1990).
        11      See Maher & Blum, supra, at 830-33.
                                     - 7 -
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predict an attorney's inability to practice law. While the Board
asserts that it has not and will not deny a license solely on the
basis of an affirmative response to Question 20(b), it cannot be
disputed that Question 20(b)'s broad inquiry into the applicant's
mental health history reflects an assumption that past diagnosis
of or treatment for mental or emotional conditions renders the
applicant more likely than other candidates to be substantially
impaired in his or her ability to perform as a lawyer.12
        9.      The Board's underlying assumption about the utility of
making mental health inquiries is in error. Question 20(b) is
not necessary to determine fitness to practice law. Past
diagnosis or treatment for any mental, emotional, or nervous
disorder cannot accurately predict future behavior. Neither Dr.
Zonana nor Dr. Mutter recalled any studies indicating that a
diagnosis for a mental illness had any predictive value in
determining functional ability or future behavior. (Record at 36-
38, 220-21). Indeed, Dr. Zonana pointed out that focusing on
treatment or counseling was widely recognized as having very low
predictive value (Record at 85-87) and has rarely provided
_________________________

s from any type of disorder whatsoever that might be a danger to
the public." (Record at 184). This testimony reflects the key
assumption underlying the Board's inquiry: namely, that persons
with any history of mental or emotional treatment or counseling
are more likely than other candidates to be substantially
impaired in their ability to function as an attorney. The
evidence in this case demonstrates, however, that this assumption
is incorrect.
                                     - 8 -
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additional information not obtainable through other means.13 Dr.
Zonana testified that,
        Q       And, again, is there data regarding this matter
        arising exclusively out of the fact that someone has a
        diagnosis for a mental illness, again in the absence of
        behavioral indicia.
_________________________

        13      The dialogue between Dr. Zonana and counsel for the
defendant on recross examination illustrates both the need to
focus on past behavior and the Board's misplaced efforts of using
diagnoses of mental illness to determine current fitness to
practice.
           A       Well ... the notion here is you are not on an
        expedition to ferret out who has a mental disorder and
        who might be hiding a symptom that nobody else knows
        about. The notion here is to find out only those
        disorders which have some intrusion or very likely to
        have some intrusion on somebody's ability to function
        or work. So we are not out on an expedition to
        diagnose anybody who might have a mental disorder,
        whether they are aware of it or not. You are trying to
        find out those people where a mental disorder is
        present and has intruded in some way that is likely to
        affect their ability to function as a professional, at
        least that's my --
          Q     But can the behaviors that will be manifested
        by people who are suffering from these debilitating
        conditions, can they be divided into two categories,
        one set of behaviors that applies to people whose
        ability to work is impaired and another set of
        behaviors to a class of people whose ability to work is
        not?
          A     In general, it seems to me your hit rate is
        going to go way up if you do it related to behavior and
        functional capacities. You do this broad screening
        and, by and large, you come up with nothing, and that's
        true with most bar examiners across the board. That's
        why so many states have been willing to drop it,
        because most people don't see it as producing anything
        that is useful or that gives any criteria on which you
        can either deny or make any other judgments about. So
        you end up collecting all this data that's not useful.
(Record at 84-86).
                                     - 9 -
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        A       No, I think that's one of the major
        stigmatizations that goes along with mental illness,
        that somehow a diagnosis, per se, relates to functional
        capacity; it doesn't.

(Record, p. 36). Furthermore, results of one study discussed by
Dr. Zonana showed that psychiatric evaluations were poor
predictors of functional ability (Record at 37).14 In his
testimony, Dr. Zonana also referenced a recent District of
Columbia study,15 which concluded that information obtained
through mental health inquiries had, according to the author,
"rarely, if ever, brought to light a serious fitness question
that was not highlighted by other information (concerning
litigation, employment, encounters with legal authorities,
academic or bar discipline, etc.)". Reishel, The Constitution,
the Disability Act, and Questions about Alcoholism, Addiction,
and Mental Health, 61 The Bar Examiner 10, 20 (1992).16
        10.     Question 20(b) simply does not work. Dr. Zonana noted
that, even where an applicant possessed a "serious" mental
illness, that illness would not preclude an individual from being
_____________________

        14      See generally 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).
        15      Record at 86.
        16      Although the Board insists that Question 20(b) is
necessary to determining candidates' fitness to practice law, it
did not make mental health inquiries before 1992 and only
required non-residents to answer such inquiries in 1992 and 1993.
(Record at 125-134).
                                     - 10 -
01-07464
fit to practice law. (Record at 47-52, 72-73). Even if one
incorrectly assumed that serious mental conditions could predict
behavior or fitness to practice law, Question 20(b) remains
unnecessary because it does not reliably identify persons with
such disorders. Dr. Zonana testified that, among persons with
serious mental disorders such as schizophrenia and manic
depression, approximately forty percent do not ever seek
counseling or treatment. (Record at 29-34 and Plaintiff's Exhibit
72) (epidemiologic study cited by Dr. Zonana). Obviously,
Question 20(b) -- which uses counseling or treatment as the
trigger for further disclosure requirements -- would not identify
such applicants.
        11.     Question 20(b) is also unnecessary because questions
relating to relevant conduct and behavior, which are permissible
under the ADA, are far better predictors of functional ability.
Scott Street, Secretary and Treasurer for the Board, testified
that the focus of the admissions process is to determine whether
an applicant has demonstrated "a current fitness to engage in
basically the unsupervised practice of law." (Record at 107). As
Dr. Zonana testified at trial, however, research data indicates
that the best predictor of functional ability and future behavior
is past behavior. (Record at 38-40). Dr. Zonana admitted that
also asking about treatment or counseling may turn up extremely
rare instances of persons unfit to practice law, but the
                                     - 11 -
01-07465
likelihood of such an occurrence was very remote. (Record at
40).17 Even the Board's expert witness noted that serious
mental illness is generally reflected in behavior. (Record at
224-226).18 Because Question 20(b) uses treatment or counseling
for mental, emotional, or nervous disorders as a trigger for
additional burdens, it is unnecessary.19
_______________________

        12.     Question 20(b) is also unnecessary because it is
overbroad. On direct examination, Scott Street testified that
the Board does not further evaluate applicants reporting mental
disorders that the Board does not consider serious. (Record at
119-120). Thus, the Board concedes that it is actually only
interested in disorders that are "serious"--- despite the fact
that the plain wording of Question 20(b) clearly encompasses
        17      This conclusion is also supported by the Board's record
of investigating applicants who answer the mental health
treatment question in the affirmative. As counsel for the
defendant noted at trial, since the Board started using mental
health inquiries similar to Question 20(b), the Board has only
conducted further investigations in only two cases on the basis
of affirmative answers to mental health inquiries. (Record at
12).
        18      The defendant's expert witness, Dr. Mutter, believes
that a broad inquiry, such as Question 20(b), assists the Board
in developing the fullest possible picture of an applicant.
(Record at 204-205). Unfortunately, Dr. Mutter's recommended
examination is without practical limitation as he would require
disclosure of any consultation with psychiatrists, psychologists,
therapists, or even ministers. (Record at 182-184). In addition,
Dr. Mutter would include stockbrokers, policemen, firefighters,
and even law students within the ambit of heightened scrutiny.
(Record at 190-93, 199-200).
        19      Dr. Zonana stated that, for purposes of a psychiatric
evaluation, it is useful to inquire into past mental health
treatment. (Record at 60-62). As Dr. Zonana pointed out,
however, a psychiatric evaluation is not necessary where there is
no evidence of behavioral problems. (Record at 38-40, 82-84).
                                     - 12 -
01-07466
disclosure of all counseling, treatment, or diagnoses.20 The
Board's admitted disregard of information it receives about
disorders that are not "serious" substantially undercuts Dr.
Mutter's statements regarding the import of receiving information
regarding all counseling to determine an applicant's fitness to
practice. (Record at 182-184). Dr. Zonana also testified that
Question 20(b) would require disclosure of many mental,
emotional, or nervous disorders that may lead a person to seek
counseling or treatment, despite the fact that these conditions
had no bearing on an applicant's ability to practice. Included
in this category are various phobias and bereavement or rape
counseling.21
                        III. PROPOSED CONCLUSIONS OF LAW

        1.      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. S 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.
__________________________

        20      Street testified that this process allowed the Board to
get "as complete a picture of the individual" (Record at 121) and
that the Board actually views an applicant's receipt of treatment
as something favorable (Record at 117).
        21      Record at 34-35.
                                    - 13 -
01-07467
        2.      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. S 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.
        3.      Title II of the ADA and its implementing regulation
define "disability" as:
        (A)     a physical or mental impairment that substantially
                limits one or more major life activities...
        (B)     a record of such impairment; or
        (C)     being regarded as having such an impairment.
42 U.S.C. S 12102 (2); 28 C.F.R. S 35.102 (1992). The title II
regulation provides that a "physical or mental impairment"
includes [a]ny mental or psychological disorder such
as...emotional or mental illness...." 28 C.F.R. S 35.104 (1992)
(emphasis added).22 Title II defines "major life activities" by
_________________________

        22      Where, as here, Congress expressly delegates authority
to an agency to issue legislative regulations, the regulations
"are given controlling weight unless they are arbitrary,
capricious, or manifestly contrary to the statute." Chevron Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844
(1984). See also Petersen v. University of Wis. Bd. Regents, 818
F. Supp. 1276, 1279 (W.D. Wis. 1993) (applying Chevron to give
controlling weight to Department of Justice interpretations of
title II of the ADA).
                An agency's interpretation of its own regulations
should also be given controlling weight, unless plainly
erroneous, inconsistent with the regulation, or in violation of
the Constitution or federal statute. Stinson v. United States,
113 S. Ct., 1913, 1919 (1993); Martin v. Occupational Safety &
Health Review Comm'n, 499 U.S. 144, 150 (1991); see Lyng v.
                                                                (continued...)
                                    - 14 -
01-07468
listing functions "such as caring for one's self, performing
manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working." 28 C.F.R. S 35.104 (emphasis added).23
        4.      Julie Clark is a person with a disability within the
meaning of the ADA. At least for some period of time, Ms. Clark
was impaired in a major life activity. Her inability to
concentrate, act decisively, sleep properly, orient herself, or
maintain ordinary social relationships, are activities well
within the scope of the term "major life activities" as defined
under the ADA. Thus, Ms. Clark is a person with a record of a
disability within the second prong of title II's definition of
disability.
        5.      Ms. Clark also falls within the statutory definition of
person with a disability because she, like other applicants who
have been diagnosed, counseled, or treated for mental or
__________________________

        22(...continued)
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). Indeed, as the author of the regulations, the Department
of Justice has been deemed, "the principal arbiter" of its ADA
regulations. Fiedler v. American Multi-Cinema, Inc., CIV A-92-
486 (TPJ), 1994 WL 709588, at *4 (D.D.C. Dec. 16, 1994). This
deference has also been extended to the Department's technical
assistance literature, including its technical assistance
manuals, as providing, "controlling weight as to the meaning of
the [regulations]." Id., at *6 n. 4.
        23     The use of the term "such as" in the regulation
reflects Congressional intent not to provide an exhaustive list.
The regulation's language is identical to the language used in
the Senate and House Committee reports regarding the definition
of a major life activity. See H.R. Rep. No. 485, 101st Cong., 2d
Sess., pt. II at 52 (1990) [hereinafter cited as Education and
Labor Report]; S. Rep. No. 116, 101st Cong., 1st Sess. at 23
(1989) [hereinafter cited as Senate Report].
                                     - 15 -
01-07469
emotional illnesses, is "regarded as" disabled by the Board
because she and other persons with histories of treatment for
mental, emotional, or nervous disorders are subjected to
additional inquiries. Individuals who have sought mental health
treatment are often regarded as emotionally disabled or mentally
ill even though their past and/or current capability or stability
might not be affected. School Bd. of Nassau County v. Arline,
480 U.S. 273, 284 (1987) ("society's accumulated myths and fears
about disability...are as handicapping as are the physical
limitations that flow from actual impairment"). Congress was
particularly aware of the needs of persons with mental
disabilities and intended the ADA to extend particular protection
to individuals with a record of mental or emotional illness.
Indeed, the legislative history indicates that the second prong
of the definition of disability was included in the law,
                in part to protect individuals who have
                recovered from a physical or mental
                impairment which previously substantially
                limited them in a major life activity.
                Discrimination on the basis of such a past
                impairment would be prohibited under this
                legislation. Frequently occurring examples
                of [this] group...are persons with histories
                of mental or emotional illness...24
______________________________

        24      Education and Labor Report at 52 (emphasis added);
Senate Report at 22.
                                     - 16 -
01-07470
        6.      Julie Clark has standing to challenge Question 20(b) as
she is a person with a disability and is injured by the Board's
inquiries.25
        7.      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. S 12131(2); 28 C.F.R. S 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 451 (July 1, 1993).26
_____________________

        25      This Court's Order of August 31, 1994, which reversed a
previous decision granting summary judgment in favor of
defendants, held that it was premature to conclude that Ms. Clark
was not a person with a disability. The uncontested evidence
presented at trial, however, establishes that Ms. Clark is a
person with a disability and has standing to bring this case.
                Furthermore, while the evidence amply demonstrates that
Ms. Clark both has a record of a disability and is regarded by
the Board as being disabled, she would have standing to challenge
Question 20(b) regardless of whether she is disabled or not. See
Memorandum of the United States as Amicus Curiae in Support of
Plaintiff's Notice and Motion to Alter Judgment, at 9-15 (Aug. 9,
1994).
        26      Cases decided under Section 504 have shaped the factors
used in determining what constitutes "essential eligibility
requirements." 28 C.F.R. pt. 35, app. A at 451. This
determination requires a careful analysis behind the
                                                                (continued...)
                                     - 17 -
01-07471
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.27 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.
        8.      This case does not involve a Board decision to deny a
license based on disability. Title II and its implementing
regulations, however, proscribe more than total exclusion on the
basis of disability.28 As a licensing entity, the Board must
comply with section 35.130(b)(6) of the regulation, 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
___________________

        26      ( ... continued)
qualifications used to determine the actual criteria that a
position requires. School Bd. of Nassau County v. Arline, 480
U.S. 273, 287-288 (1987); Pandazides v. Virginia Bd. of Educ.,
946 F.2d 345, 349-50 (4th Cir. 1991).
        27      As noted in the Department of Justice'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.
28 C.F.R. pt. 35, app. A at 448 (1993).
28 See e.g., Ellen S. v. Florida Bd. of Bar Examiners, 859
F. Supp. 1489, 1493-94 (S.D. Fla. 1994); Medical Society of New
Jersey v. Jacobs, 1993 WL 413016, at *7 (D.N.J. Oct. 5, 1993).
                                     - 18 -
01-07472
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. 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., 859 F. Supp. at 1494; Medical Society, 1993
WL at *7.
        9.      Ms. Clark is challenging the Board's procedure of
asking Question 20(b) and this Court is not called upon to
determine her ultimate fitness to practice law. At this stage of
her application, for purposes of challenging the Board's
procedures and demanding that the Board process her application
absent Question 20(b), Ms. Clark need only have satisfied all the
other requirements to apply for membership to the bar in order to
be "qualified individual with a disability." It is uncontested
that Ms. Clark has satisfied all of these requirements (See
Findings of Fact P 1). Therefore, Ms. Clark is a qualified
individual with a disability for purposes of challenging the
Board's procedures.29
___________________________

        29      The following example further illustrates this point.
A person who uses a wheelchair is "eligible" to apply for food
stamps and is a victim of discrimination if the office that takes
applications is accessible only by stairs. He need not prove
that he is "eligible" to receive food stamps in order to
challenge the denial of access. Similarly, Ms. Clark need not
prove that she is ultimately qualified for a license to practice
law in order to challenge the discriminatory application process.
                                     - 19 -
01-07473
        10.     Title II also prohibits unnecessary inquiries into
        disability. Section 35.130(b)(8) of the regulation 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.
28 C.F.R. S 35.130(b)(8)(emphasis added). This section is
identical in substance to a statutory provision in title III, 42
U.S.C. S 12182(b)(2)(A)(i), and the title III regulation, 28
C.F.R. 36.301(a).30 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.31
____________________________

        30      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. S 12134(b); H.R. Rep. No. 485, 101st Cong., 2d Sess.,
pt. III at 51 (1990) [hereinafter cited as Judiciary Report];
Education and Labor Report at 84; 28 C.F.R. pt. 35, app. A at
440.
        31      Senate Report at 62 (emphasis added); see also
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.
                                     - 20 -
01-07474
The title II Technical Assistance Manual states that title II
similarly prohibits unnecessary inquiries into disability. 32
        11.     The stigma that attaches to being required to disclose
a history of mental health treatment is a harm the Supreme Court
has recognized. See Parham v. J.R., 442 U.S. 584, 600 (1979)
(finding a substantial liberty interest under the Due Process
Clause of the Constitution in avoiding being known to have been
treated for such illness); Addington v. Texas, 441 U.S. 418, 426
(1979); Smith v. Schlesinger, 513 F.2d 462, 477 (D.C. Cir. 1975);
see also In Re John Ballay, 482 F.2d 648, 668-69 (D.C. Cir. 1973)
(noting that "even the most enlightened persons may unwittingly
harbor views" associated with the stigma of mental illness).
        12.     The ADA is a civil rights law intended to protect
individuals with disabilities against stereotypes or
generalizations. Congress found that these stereotypes "are not
truly indicative of the individual ability of [persons with
disabilities] to participate in, and contribute to, society." 42
U.S.C. S 12101(a)(7)(emphasis added).33 The Supreme Court has
repeatedly cautioned against relying upon negative attitudes or
stereotypes of the potential dangers posed by disabilities.
School Bd. of Nassau County v. Arline, 480 U.S. 273, 285 (1987);
Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 448
(1985).
__________________________

        32      Title II Technical Assistance Manual S II-3.5300.
        33      See Education and Labor Report at 30, 33, 40, 41;
Judiciary Report at 25; Senate Report at 7, 9, 15.
                                     - 21 -
01-07475
        13.     Furthermore, even where generalizations about an
individual's class are statistically true, civil rights law
require focusing on individuals rather than classes. In City of
Los Angeles v. Manhart, 435 U.S. 702 (1978), the Court held a
pension plan that required female employees to make larger
contributions than male employees violated Title VII of the Civil
Rights Act of 1964, even though it was undisputed that women, as
a class, live longer than men. The Court held that,
                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., at 708, 709; Arizona Governing Comm. for Tax Deferred
Annuity and Deferred Compensation Plans v. Norris, 463 U.S. 1073
(1983); Connecticut v. Teal, 457 U.S. 440 (1982). The ADA
similarly 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
Congressional findings supporting the ADA:
                [I]ndividuals 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. S 12101(a)(7)(emphasis added). The legislative history
also reveals that Congress recognized the need to combat the
                                     - 22 -
01-07476
"false presumptions, generalizations, misperceptions, patronizing
attitudes, ignorance, irrational fears, and pernicious
mythologies"34 surrounding disability and the need for a more
enlightened view towards persons with disabilities.35 Thus,
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.36
        14.     Question 20(b) reflects an impermissible generalization
and classification based on disability. By inquiring into the
existence of mental disabilities, the Board uses this
impermissible stereotype as a trigger for disclosure requirements
that are not imposed on others. The genesis of inquiries such as
Question 20(b) is a presumption, not supported by the record,
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 these disabilities
_________________________

        34      Senate Report, at 7; Education and Labor Report, at 30.
        35      Judiciary Report, at 25.
        36      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, the ADA prohibits
unnecessary classifications based on those disabilities,
including classifications that require unnecessary disclosure of
disabilities or intrusive reporting requirements that are not
imposed on others. Of course, if a disability could perfectly
predict future behavior of all 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 past treatment for mental disability is perfectly
predictive of current or future fitness to practice law.
                                     - 23 -
01-07477
may have never affected that person's judgment, integrity,
responsibility, or abilities as a professional.
        15.     The Board's use of Question 20(b) in its licensing
process violates title II of the ADA because Question 20(b)
imposes burdens on individuals with disabilities (Findings of
Fact P P 5-7) and use of the question is not necessary to the
Board's function of determining a candidate's fitness to practice
law (Findings of Fact P P 8-12). Even though the Board has
infrequently conducted follow-up investigations of applicants who
answer Question 20(b) affirmatively, just making this intrusive
inquiry violates title II. Indeed, in Ellen S., the court was
careful to emphasize its conclusion that asking the question
itself independently violates title II, without regard to whether
a follow-up investigation ensues. Id., at 10, n.7.
        16.     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.37 Thus, if the Board
_________________________

        37      Indeed, the Title II Technical Assistance Manual states
that:
        [p]ublic entities may not discriminate against
        qualified individuals with disabilities who apply for
        licenses, but may consider factors related to the
        disability in determining whether the individual is
        "qualified."
Title II Technical Assistance Manual, at II-3.7200 (emphasis
added). One permissible "factor related to the disability" is
any inappropriate behavior associated with that disability that
legitimately reflects on fitness to practice. Relying on
behavior provides a sound basis to determine fitness to practice
law without intruding on an applicant's diagnosis or treatment
history.
                                     - 24 -
01-07478
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. Many of these inquiries are currently used by
the Board. (Plaintiff's Exhibit 1). The Board may also develop
additional questions pertaining to relevant behavior that may
indicate an inability to handle professional responsibilities.
The Board may also ask references, colleagues, and business
associates as well as the applicant whether there is anything
that would currently impair the applicant's 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. This broad range of
permissible questions provides a sound and comprehensive basis
for drawing inferences about an individual's fitness for the
practice of law without resort to mental health history. See
Medical Society, 1993 WL at *7; In re Petition of Frickey, et
al., 515 N.W.2d 741 (Minn. April 28, 1994). This conclusion is
supported by the evidence presented at trial, which clearly
indicates that behavior more accurately predicts current fitness
to practice than the information sought through mental health
inquiries like Question 20(b) (Findings of Fact P 11).
        17.     Plaintiff's complaint seeks an injunction requiring the
Board to grant her a license, an injunction preventing the Board
from using Question 20(b), a declaration that Question 20(b)
                                     - 25 -
01-07479
violates the ADA, and attorney's fees. This Court is prohibited
from requiring the Board to grant Ms. Clark a license. District
of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983);
Woodard v. Virginia Bd. of Bar Examiners, 454 F. Supp. 4 (E.D.
Va. 1978), aff'd, 598 F.2d 1345 (4th Cir. 1979).38 As to the
other claims for relief, however, this Court has previously held
that it has jurisdiction.39 Furthermore, as Ms. Clark's
complaint is based on a civil rights statute and her requested
relief will benefit other persons applying to the Virginia bar
who have sought mental health treatment, she is entitled to
injunctive relief prohibiting the Board from asking Question
20(b) of any applicant. Thomas v. Washington County School Bd.,
915 F.2d 922, 926 (4th Cir. 1990)(individual plaintiff in
employment discrimination case entitled to enjoin general
discriminatory hiring practices of school board); Sandford v.
R.L. Coleman Realty Co., 573 F.2d 173, 178 (4th Cir.
1978)(holding class certification unnecessary in housing
discrimination case seeking injunctive relief to current
landlord's discriminatory policies); 7A Charles A. Wright, Arthur
R. Miller & Mary K. Kane, Federal Practice and Procedure S 1771
(1986).
________________________

        38      This portion of Ms. Clark's complaint was stricken by
the Court's Order of August 31, 1994.
        39      Order of August 31, 1994, p. 4.
                                     - 26 -
01-07480
                                 IV. CONCLUSION

        For the foregoing reasons, the Court should enter judgment
in favor of the plaintiff. The Board's continued use of Question
20(b) should be permanently enjoined and the Board should be
directed to take immediate steps to reach its decision on Ms.
Clark's application without requiring a response to Question
20(b). In addition, Ms. Clark should be awarded attorney's fees
and such other relief as this Court finds appropriate.

                                Respectfully submitted,
                                DEVAL L. PATRICK
                                Assistant Attorney
                                  General
                                Civil Rights Division



                                JOHN L. WODATCH
                                JOAN A. MAGAGNA
                                PHILIP L. BREEN
                                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) 307-2232


                                RICHARD PARKER
                                Assistant United States Attorney
                                Appearing Per 28 U.S.C. S 517
                                1101 King Street, Suite 502
                                Alexandria, VA 22304
                                Tel: (703) 706-3700
February 10, 1995
Alexandria, Virginia
                                     - 27 -
01-07481
                            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 Recommended Findings of Fact and
Conclusions of Law of the United States as Amicus Curiae.

                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 10th day of February, 1995.



                                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
01-07482
                  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
01-07483
                               TABLE OF CONTENTS
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
                                        i
01-07484
                               TABLE OF AUTHORITIES
CASES:

Addington v. Texas,
441 U.S. 418 (1979) ..................................................... 12
Applicants v. Texas State Board of Law Examiners,
93 CA 740 SS (W.D. Tex. Oct. 10, 1994) ........................ 7, 8, 19, 20
In re Applications of Anne Underwood and
Judith Ann Plano, No. BAR 93-21,
1993 WL 649283 at *2 (Me. Dec. 7, 1993) ............................... 6, 7
Arizona Governing Comm. for Tax Deferred
Annuity and Deferred Compensation Plans v. Norris,
463 U.S. 1073 (1983) ..................................................... 4
City of Los Angeles v. Manhart,
435 U.S. 702 (1978) ............................................. 4, 5, 6, 7
Cleburne v. Cleburne Living Center, Inc.,
473 U.S. 432 (1985) ...................................................... 3
Connecticut v. Teal,
457 U.S. 440 (1982) ...................................................... 4
Doe v. Syracuse School Dist.,
508 F. Supp. 333 (N.D.N.Y. 1981) ..................................... 9, 18
Ellen S. v. Florida Board of Bar Examiners,
859 F. Supp. 1489 (S.D. Fla. 1994) ........................... 6, 10, 11, 16
In Re John Ballay,
482 F.2d 648 (D.C. Cir. 1973) ........................................... 13
Medical Society of New Jersey v. Jacobs,
1993 WL 413016 (D.N.J. 1993) ................................. 6, 10, 11, 19
Pandazides v. Virginia Bd. of Educ.,
946 F.2d 345 (4th Cir. 1991) ............................................. 9
Parham v. J.R.,
442 U.S. 584 (1979) ..................................................... 12
In re Petition of Frickey, et al.,
515 N.W.2d 741 (Minn. Apr. 28, 1994) ............................. 7, 14, 19
School Board of Nassau County v. Arline,
480 U.S. 273 (1986) ........................................... 3, 9, 13, 14
                                       ii
01-07485
Smith v. Schlesinger,
513 F.2d 462 (D.C. Cir. 1975) ........................................... 12
Strathie v. Department of Transp.,
716 F.2d 227 (3d Cir. 1983) .............................................. 9

STATUTES AND REGULATIONS:

29 U.S.C. S 794 .......................................................... 9
42 U.S.C. SS 12101-12213 ................................................. 1
42 U.S.C. S 12101(a)(7) .................................................. 2
42 U.S.C. S 12102(2)(B) ................................................. 13
42 U.S.C. S 12102(2)(C) ................................................. 13
42 U.S.C. S 12110(a) .................................................... 18
42 U.S.C. S 12131(1)(B) ................................................. 10
42 U.S.C. S 12131(2) ..................................................... 8
42 U.S.C. S 12132 ....................................................... 10
42 U.S.C. S 12134(b) .................................................... 15
42 U.S.C. S 12182(b)(2)(A)(i) ........................................... 15
42 U.S.C. S 12206(c)(3) & (d) ........................................... 16
28 C.F.R. S 35.104 ................................................ 8, 9, 13
28 C.F.R. S 35.130(b)(3)(i) ............................................. 10
28 C.F.R. S 35.130(b)(6) ................................................ 10
28 C.F.R. S 35.130(b)(8) ............................................ 10, 15
28 C.F.R. pt. 35, app. A ............................................. 9, 11
28 C.F.R. S 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
and Statistical Manual of Mental Disorders
(3d ed. 1987), (DSM III-R) .............................................. 17
American Psychiatric Association, Recommended
Guidelines Concerning Disclosure and Confidentiality,
Work Group on Disclosure (Dec. 12, 1992) ................................ 19
                                      iii
01-07486
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 (1994) ............................................... 14
Gabrielle A. Carlson, Yolande B. Davenport &
Kay R. Jamison, A Comparison of Outcome in Adolescent-
and Late-Onset Bipolar Manic-Depressive Illness,
134 Am. J. of Psychiatry 919 (1977) ..................................... 17
Bruce J. Ennis & Thomas R. Litwack, Psychiatry and
the Presumption of Expertise: Flipping Coins in
the Courtroom, 62 Cal. L. Rev. 693 (1974) ............................... 16
Frederick K. Goodwin & Kay R. Jamison,
Manic-Depressive Illness (1990) ......................................... 17
Stephen T. Maher & Lori Blum, A Strategy for Increasing
the Mental and Emotional Fitness of Bar Applicants,
23 Ind. L. Rev. 821 (1990) .............................................. 14
Reishel, The Constitution, the Disability Act, and
Questions about Alcoholism, Addiction, and Mental Health,
61 The Bar Examiner 10 (1992) ....................................... 20, 21
Deborah L. Rhode, Moral Character as a
Professional Credential, 94 Yale L.J. 491 (1985) ......................... 3
U.S. Department of Justice, The Americans with
Disabilities Act -- Title II Technical Assistance
Manual (1992 & Supp. 1993) ....................................... 2, 16, 17
Jay Ziskin, Coping with Psychiatric and
Psychological Testimony (3d ed. 1981) ................................... 16
                                       iv
01-07487
                                I. INTRODUCTION

        The United States submits this memorandum as amicus curiae
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. SS 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
                                     - 1 -
01-07488
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

        The ADA is a civil rights law intended to protect
individuals 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
of [persons with disabilities] to participate in, and contribute
to, society." 42 U.S.C. S 12101(a)(7) (emphasis added).1 By
inquiring into the existence of mental disabilities, licensing
organizations act on the basis of this impermissible stereotype.
_____________________

        1       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]; see, e.g., U.S. Department of Justice, The
Americans with Disabilities Act -- Title II Technical Assistance
Manual 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") (emphasis added).
                                     - 2 -
01-07489
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, 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., 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.").
__________________________

        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,
94 Yale L.J. 491, 581-82 (1985).
        3       The legislative history of the ADA includes numerous
approving references to Arline's interpretation of the law. See
Senate Report at 21-24; Education and Labor Report at 50-53.
                                     - 3 -
01-07490
        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, 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. 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., at 708, 709.4
____________________________

        4       See also Arizona Governing Comm. for Tax Deferred
Annuity and Deferred Compensation Plans v. Norris, 463 U.S. 1073
(1983)(holding that pension plans that pay lower monthly benefits
to female contributors violate title VII); Connecticut v. Teal,
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).
                                     - 4 -
01-07491
        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. S 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
______________________

        5       Unlike title II, section 703(a)(1) of the Civil Rights
Act of 1964, which was at the heart of the Manhart decision, does
not explicitly include an exception for necessary eligibility
criteria. In Manhart, 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.
                                     - 5 -
01-07492
        participating fully in community life,... to enjoying
        all the rights that Americans take for granted.
Judiciary Report, at 25. As in Manhart, 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, 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, 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
________________________

        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 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 past treatment for mental disability is perfectly
predictive of current or future fitness to practice law.
                                     - 6 -
01-07493
Anne Underwood and Judith Ann Plano, 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. In re Petition of Frickey, et al., 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 Applicants v. Texas State Board of Law
Examiners, 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
_________________________

        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, 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.
                In Texas State Board of Law Examiners, 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 stated,
                                                                (continued...)
                                     - 7 -
01-07494
B.      TITLE II PROHIBITS DISCRIMINATION
        AGAINST QUALIFIED INDIVIDUALS WITH DISABILITIES

        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. S 12131(2); 28 C.F.R. S 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
_________________________

        9 (...continued)
                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 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., 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.
                                     - 8 -
01-07495
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
__________________________

        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. S 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, 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., 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).
        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).
                                     - 9 -
01-07496
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. S 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 entity13 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
__________________________

        12      See e.g., Ellen S. v. Florida Board of Bar Examiners,
859 F. Supp. 1489, 1493-94 (S.D. Fla. 1994); Medical Society of
New Jersey v. Jacobs, 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. S 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.
                                     - 10 -
01-07497
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

        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., at 1494; Medical Society, 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
                                     - 11 -
01-07498
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., 442 U.S. 584, 600 (1979);
Addington v. Texas, 441 U.S. 418, 426 (1979).14 See also Smith
v. Schlesinger, 513 F.2d 462, 477 (D.C. Cir. 1975) ("[m]ental
illness is unfortunately seen as a stigma. The enlightened view
is that mental illness is a disease...but we cannot blind
ourselves to the fact that at present, despite lip service to the
contrary, this enlightened view is not always observed in
practice") (ordering Department of Defense to present
______________________

        14      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 lasts forever." Parham v. J.R., 442 U.S. 584, 622, n.3
(1979) (Stewart, J., concurring in judgment).
                                     - 12 -
01-07499
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. S 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 discussion
infra.17 As the Supreme Court observed in School Board of Nassau
________________________

        15      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.").
        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. S 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. S 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. S 35.104 (1992).
                                     - 13 -
01-07500
County v. Arline, 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., at 284.18
_______________________

        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 Stephen
T. Maher & Lori Blum, A Strategy for Increasing the Mental and
Emotional Fitness of Bar Applicants, 23 Ind. L. Rev. 821, 830-33
(1990) (detailed discussion of how such inquiries have deterrent
effect). Indeed, this deterrence factor was part of the basis
for the State of Minnesota Supreme Court's order in In re
Petition of Frickey, et al., 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, 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.
        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 Maher & Blum, supra, at 824,
833-46.
                                     - 14 -
01-07501
        2.      QUESTION 20(B) IS UNNECESSARY
                TO DETERMINING FITNESS TO PRACTICE LAW

        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 for the provision
        of the service, program, or activity being offered.
28 C.F.R. S 35.130(b)(8)(emphasis added). This section is
identical in substance to a statutory provision in title III, 42
U.S.C. S 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
_________________________

        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. S 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 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.
                                     - 15 -
01-07502
The title II Technical Assistance Manual, published by the
Attorney General pursuant to statutory mandate,21 states that
Attorney General pursuant to statutory mandate, 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., 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., 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
________________________

        21      42 U.S.C. SS 12206(c)(3) & (d) (Supp. II 1990).
        22      Title II Technical Assistance Manual S II-3.5300.
        23      See generally 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).
                                     - 16 -
01-07503
Assistance Manual states that,
        [p]ublic entities may not discriminate against
        qualified individuals with disabilities who apply for
        licenses, but may consider factors related to the
        disability in determining whether the individual is
        "qualified."
Title II Technical Assistance Manual, at II-3.7200 (emphasis
added). Such a permissible "factor related to the disability" is
any inappropriate behavior 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,
____________________________

        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 213-228 (3d ed. 1987), (DSM III-R); Frederick K.
Goodwin & Kay R. Jamison, Manic-Depressive Illness 127-156
(1990). Interestingly, the age when symptoms or behaviors
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 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, 134 Am. J. of
Psychiatry 919 (1977). Therefore, making direct inquiries about
behavior will better serve the Board's purposes.
                                     - 17 -
01-07504
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
____________________________

        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. S 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.
                                     - 18 -
01-07505
                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., 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
_________________________

        27      American Psychiatric Association, Recommended
Guidelines Concerning Disclosure and Confidentiality, 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, the court
in Texas Board of Law Examiners 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,
                                                                (continued...)
                                     - 19 -
01-07506
District of Columbia study determined that information obtained
pursuant to inquiries about treatment for mental health problems
has "rarely, if ever, brought to light a serious fitness question
that was not highlighted by other information (concerning
litigation, employment, encounters with legal authorities,
academic or bar discipline, etc.)". Reishel, The Constitution,
the Disability Act, and Questions about Alcoholism, Addiction,
and Mental Health, 61 The Bar Examiner 10, 20 (1992).29
___________________________

        28 (...continued)
                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. 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,
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
                                                                (continued...)
                                     - 20 -
01-07507
        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.
__________________________

        29 (... continued)
                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).
                                     - 21 -
01-07508
                                III. CONCLUSION

        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. WODATH
                                        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. S 517
                                        1101 King Street, Suite 502
                                        Alexandria, VA 22304
                                        Tel: (703) 706-3700
November 21, 1994
Alexandria, Virginia
                                     - 22 -
01-07509
                   IN THE UNITED STATES DISTRICT COURT FOR THE
                          EASTERN DISTRICT OF VIRGINIA
                               Alexandria Division
JULIE ANN CLARK                         :
                                        :
        Plaintiff,                      :
                                        :
v.                                      :
                                        :
VIRGINIA BOARD OF BAR EXAMINERS         :
                                        :       C.A. # 94-211-A
and                                     :
                                        :
W. SCOTT STREET, III, Secretary         :
Virginia Board of Bar Examiners         :
                                        :
        Defendants.                     :
                                        :
                 MEMORANDUM OF THE UNITED STATES AS AMICUS CURIAE
            IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

        Julie Ann Clark brought this action seeking declaratory and
injunctive relief against the Virginia Board of Bar Examiners
("Board"). Although she has successfully passed the Virginia Bar
examination and has satisfied all of the other requirements of
the Board's character and fitness review, she 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's lawsuit seeks a declaration that the Board violated
title II of the Americans with Disabilities Act (ADA), 42 U.S.C.
SS 12101-12213 (Supp. II 1990) by asking question 20(b). Ms.
Clark also seeks a permanent injunction barring the Board from
inquiring into her mental health history and the mental health
history of other bar applicants.
01-07510
        Earlier in this litigation, this Court denied both
defendants' motion and the plaintiff's cross-motion for summary
judgment. The defendants are now moving this Court again for
summary judgment on arguments substantially similar to those
raised in its prior motion because of their continuing belief
that question 20(b), as currently written, does not violate title
II of the Americans with Disabilities Act ("ADA"), 42 U.S.C.
SS 12131-12180.
        The United States, as amicus curiae, urges this Court to
deny the defendants' motion.

                                    ARGUMENT

I.              THE BOARD'S LICENSING PROCEDURES ARE
                SUBJECT TO TITLE II OF THE ADA

        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. S 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.
        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. S 12131(1)(B). The Board falls
within this definition as it is the State governmental agency
responsible for licensing attorneys in the Commonwealth of
                                     - 2 -
01-07611
Virginia. As a public entity, the Board may not discriminate on
the basis of disability in conducting its licensing activities.
        Several provisions of the title II regulation prohibit
policies that unnecessarily impose greater requirements or
burdens on individuals with disabilities than those imposed on
others. As a State licensing entity, the Board must comply with
section 35.130(b)(6), which states,
        A public entity may not administer a licensing or
        certification program in a manner that subjects
        qualified individuals with disabilities to
        discrimination on the basis of disability * * *.
28 C.F.R. S 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. S 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. S 35.150(b)(8) (emphasis added). This provision means
that the Board cannot require applicants to answer question 20(b)
as a condition for licensure unless the Board can demonstrate
that this question is necessary to determining fitness to
                                     - 3 -
01-07512
practice law. As discussed further below, we do not believe that
the Board can meet this burden.

II.             THE ADA PROVISIONS RELATING TO
                EMPLOYMENT-RELATED INQUIRIES ARE NOT
                APPLICABLE TO PROFESSIONAL LICENSING ACTIVITIES

        In support of its motion, the Board looks to title I of the
ADA, which prohibits discrimination in employment on the basis of
disability. 42 U.S.C. SS 12111 - 12117 (Supp. II 1990). Among
the areas addressed by title I are medical inquiries during the
application stage for employment. Title I explicitly prohibits
an employer from inquiring into an applicant's disability before
a prospective employee is offered a job. 42 U.S.C. S 12112 (c) (2).
        The Board interprets title I to allow an employer, once a
conditional job offer is made, to then require the applicant to
undergo a medical examination and respond to any medical inquiry
so long as all applicants are similarly required to undergo this
procedure. 42 U.S.C. S 12112 (c) (3). 1
The Board first asserts that it is entitled to ask question
20 (b) because, in contrast to title I's specific prohibitions,
title II of the ADA contains no specific prohibition on inquiries
into disability. This argument is incorrect because the concerns
raised by discrimination in employment and state licensing are
completely different. Furthermore, the legislative history of
the ADA does not support the Board's statutory interpretation.
_______________________

        1       It is not necessary here to determine whether this
interpretation is correct, because title I is simply not
applicable in these circumstances.
                                     - 4 -
01-07513
As noted by the court in Ellen S. v. Florida Board of Bar
Examiners, 94-0429-CIV-KING (Aug. 1, 1994), at 8:
        [T]he legislative history reveals that Congress
        deliberately chose 'not to list all the types of
        actions that are included within the term
        'discrimination', as was done in titles I and III.'
        H.R. Rep. No. 485(II), 101st Cong., 2d Sess. 84 (1990),
        -reprinted in- 1990 U.S.C.C.A.N. 303, 367.
Congress chose instead to direct the Department of Justice to
promulgate regulations. Id., n.6 (citing Kinney v. Yerusalim,
812 F. Supp. 546, 548 (E.D. Pa.), aff'd, 9 F.3d 1067 (3rd Cir.
1993), cert. denied, 114 S. Ct. 1545 (1994)). As the Ellen S.
court found, the title II regulation prohibit bar examiners from
inquiring into the mental health history of applicants. Id. at
10.
        The Board also argues -- by analogizing to title I -- that
it should be permitted to make medical inquiries, as it is in a
posture comparable to an employer who has made a conditional job
offer. This argument is flawed in two respects.
        First, title I's division between "pre-offer" and "post-
offer" medical inquiries has no application to the entirely
separate area of professional licensing covered by title II. In
title I, Congress created very detailed procedures and
requirements in order to protect the rights of prospective
employees with disabilities. This careful construct, because it
was designed for a very specific transaction -- hiring of
employees -- is unworkable when it is superimposed over a very
different kind of transaction -- licensing of professionals.
Title II, on the other hand, specifically applies to state
                                     - 5 -
01-07514
licensing processes, 28 C.F.R. 35.130(b)(6), and permits the
Board to perform its very important function of assessing the
competency of aspiring attorneys and imposing eligibility
requirements that are "necessary" for this purpose, 28 C.F.R.
35.130(b)(8).
        Furthermore, the court in Medical Society of New Jersey v.
Jacobs, 1993 WL 413016 (D.N.J. 1993), rejected an argument
similar to the one raised by the Board. The court examined the
legislative history of both titles I and II of the ADA and
concluded that, to the extent title I was to be incorporated in
title II, it was to be done through the title II regulations,
which the Court held, "are clear" and "invalidate the Board's
procedure of placing extra burdens on disabled applicants." Id.
at *9.
        Second, even if title I were applicable to the Board's
licensing procedures, the use of Question 20(b) would not be
permissible. Just as title I allows certain "post-offer" medical
inquiries, it just as clearly prohibits "pre-offer" inquiries
into an applicant's disability. As the Board concedes, the
license application procedure is not a "two-step" process
(Defendant's Brief, p. 7). Yet, relying on title I would more
logically prohibit the defendants from inquiring at all into any
disability because prospective licensees to practice law never
reach a "post offer" stage in the licensing process.2 A license
_________________________

2 As the Court in Medical Society observed, "[t]he Board
... acknowledges in making this argument that, by analogy to
                                                                (continued...)
                                     - 6 -
01-07515
is either granted or not; conditional licenses are not offered to
applicants with medical examinations of all then being required.
Rather, the Board makes pre-license medical inquiries of all
applicants, and follow-up medical questions, not of all
applicants, but only of those who answer "yes" to question 20(b).

III.            QUESTION 20(B) IS OVERBROAD, UNNECESSARY,
                AND IMPOSES NEEDLESS BURDENS

        A core purpose of the ADA is the elimination of barriers
caused by the use of stereotyped 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. S 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 Virginia 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
imposing additional burdens, including disclosures and the
______________________

        2 (...continued)
Title I ..., it is technically prohibited from asking the
challenged questions before it issues licenses." Id., at *9.
        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].
                                     - 7 -
01-07516
possibility of follow-up investigations, on those individuals who
have any history of treatment, diagnoses, or counselling for
mental or psychiatric conditions, the Board is engaging in
precisely the kind of impermissible stereotyping that the ADA
proscribes.
        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., Ellen
S. v. Florida Board of Bar Examiners, 94-0429-CIV-KING at 9 (S.D.
Fla. Aug. 1, 1994); Medical Society of New Jersey, 1993 WL
413016, at *7. Section 35.130(b)(6) prohibits administering a
licensing program "in a manner that subjects qualified persons
with disabilities to discrimination." Similarly, section
35.130(b)(3)(i) prohibits use of "methods of administration" that
have a discriminatory effect. Finally, as pointed out in the
interpretative guidance accompanying the regulation, section
35.130(b)(8) not only outlaws overt denials of equal treatment of
individuals with disabilities, it prohibits policies that
unnecessarily impose requirements or burdens on individuals with
disabilities greater than those placed on others. 28 C.F.R. pt.
35, app. A at 453-54 (1993); see Ellen S. at 10; Medical Society
at *7. It also prohibits unnecessary inquiries into disability.
Ellen S. at 9, 10, n. 7.
        In Ellen S. v. Florida Board of Bar Examiners, 94-0429-CIV-
KING (S.D. Fla. Aug. 1, 1994), the court held that simply asking
                                     - 8 -
01-07517
for the type of information called for by question 20(b) violated
title II of the ADA. In that case, plaintiffs challenged a
question that is substantially identical in scope to Question
20(b) of the Virginia application.4 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., at 9. The court further held that, even apart from the
ensuing investigation, the question itself independently violated
title II. Id., at 10, n. 7.
__________________________

        4       Question 29 of the application to the Florida bar reads as,
                29. Consultation with Psychiatrist, Psychologist,
                Mental Health Counsellor or Medical Practitioner.
                a. Yes No Have you ever
                consulted a psychiatrist, psychologist, mental
                health counselor or medical practitioner for any
                mental, nervous or emotional condition, drug or
                alcohol use? If yes, state the name and complete
                address of each individual you consulted and the
                beginning and ending dates of each consultation.
                b. Yes No Have you ever been
                diagnosed as having a nervous, mental or emotional
                condition, drug or alcohol problem? If yes, state
                the name and complete address of each individual
                who made each diagnosis.
                c. Yes No Have you ever been
                prescribed psychotropic medication? If yes, state
                the name of each medication and the name and
                complete address of each prescribing physician.
                Psychotropic medication shall mean any
                prescription drug or compound effecting the mind,
                behavior, intellectual functions, perceptions,
                moods, or emotions, and includes anti-psychotic,
                anti-depressant, anti-manic and anti-anxiety
                medications.
                                     - 9 -
01-07518
        Similarly, question 20(b) of the Virginia application also
is overbroad, unnecessary, and imposes needless burdens on
persons with disabilities.

        A.      Question 20(b) Violates Title II
                Because It Is Overbroad and Unnecessary
]
        Unnecessary inquiries into disabilities are barred by the
title II regulation, 28 C.F.R. S 35.130(b)(8), which is identical
in substance to a statutory provision in title III, 42 U.S.C.
S 12182(b)(2)(A)(i), and the title III regulation, 28 C.F.R.
36.301(a).5 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 analysis accompanying 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,6 reiterates that title II
____________________

        5       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. S 12134(b); Judiciary Report at 51; Education and Labor
Report at 84; 28 C.F.R. pt. 35, app. A at 440.
        6       42 U.S.C. SS 12206(c)(3) & (d) (Supp. II 1990).
                                     - 10 -
01-07519
prohibits unnecessary inquiries into disability. U.S. Department
of Justice, The Americans with Disabilities Act -- Title II
Technical Assistance Manual S II-3.5300 (1992 & Supp.
1993) ("Technical Assistance Manual"). Thus, question 20(b) can
lawfully be used by the Board only if it is necessary to the
Board's licensing function.
        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. S 12131(2); 28 C.F.R. S 35.104 (emphasis added).
Similarly, as noted in the analysis accompanying section
35.130(b)(6), a person is a "qualified individual with a
disability" with respect to licensing or certification if he or
she can meet the essential eligibility requirements for receiving
the license or certification. 28 C.F.R. pt. 35, app. A at 453
(July 1, 1993).7 Where, as here, public safety may be affected,
_________________________

        7       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. S 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, 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
                                                                (continued...)
                                     - 11 -
01-07520
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.8
______________________

        7 (...continued)
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).
        8       As noted in the Department's title II analysis
accompanying section 35.104,
                Where questions of safety are involved, the
                principles established in S 36.208 of the
                Department's regulation implementing title
                III of the ADA, to be codified at 28 C.F.R.
                Part 36, will be applicable. That section
                implements section 302(b)(3) of the Act,
                which provides that a public accommodation is
                not required to permit an individual to
                participate in or benefit from the goods,
                services, facilities, privileges, advantages
                and accommodations of the public
                accommodation, if that individual poses a
                direct threat to the health or safety of
                others.
                A "direct threat" is a significant risk to
                the health or safety of others that cannot be
                eliminated by a modification of policies,
                practices, or procedures, or by the provision
                of auxiliary aids or services.... Although
                persons with disabilities are generally
                entitled to the protection of this part, a
                person who poses a significant risk to others
                will not be "qualified," if reasonable
                modifications to the public entity's
                policies, practices, or procedures will not
                                                                (continued...)
                                     - 12 -
01-07521
        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.
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 any mental, emotional, or nervous disorder
treats a person's status as an individual with a disability as if
it were indicative of that individual's future behavior as an
attorney.9 However, diagnosis or treatment for any mental,
emotional, or nervous disorder provides an uncertain basis for
assuming that these disabilities will affect behavior. See
generally 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
______________________________

        8 (...continued)
                eliminate that risk.
28 C.F.R. pt. 35, app. A at 448 (1993).
        9       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).
                                     - 13 -
01-07522
professionals to make reliable predictions of future
behavior).10 By using broad questions intended to reveal any
treatment or consultation for mental, emotional, or nervous
disorders, the Board is using presumptions about mental illness
that are simply not supported in fact.
        The Board's purposes are better served by questions that
focus directly on conduct and behavior, including those that may
be associated with mental illness. The Title II Technical
Assistance Manual states that,
        [p]ublic entities may not discriminate against
        qualified individuals with disabilities who apply for
        licenses, but may consider factors related to the
        disability in determining whether the individual is
        "qualified."
Technical Assistance Manual, at II-3.7200 (emphasis added). One
permissible "factor related to the disability" is any
inappropriate behavior associated with that disability. Thus,
the Board may inquire generally about any leaves of absence,
disciplinary actions, suspensions, or terminations from school or
_________________________

        10      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).
                                     - 14 -
01-07523
jobs in the past but may not focus the inquiry only on such
events 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.11 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 standards of conduct for
an attorney admitted to practice in the Commonwealth of
Virginia.12
        Other questions already on the bar application elicit a
wealth of information to illuminate an individual's past
behavior. These inquiries require full disclosure of employment
history, educational background, military service, and criminal
record. 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. The
caselaw also supports this conclusion. See Medical Society of
_____________________________

        11      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. S 12110(a).
        12      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.
                                     - 15 -
01-07524
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., 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").
        Furthermore, even if the Board could show that certain
mental, emotional, or nervous disorders are indicative of a
person's ability to practice law, question 20(b) still suffers
from the fatal defect of being unnecessarily overbroad.
Concluding that there is no "perfect question" that it can ask to
identify only people who have a present mental or emotional
condition that impairs their ability to practice law (Defendant's
Brief, p. 13), the Board asserts that it must be allowed to
inquire freely into any treatment or counseling for any mental,
emotional, or nervous disorder within the past five years. Yet,
armed with the wealth of information that answers to question
20(b) have produced concerning applicants' treatment or
counseling, the Board, by its own admission, has rarely chosen to
pursue additional investigation. The Board notes that, "[a]s the
preamble to the Board's mental health inquiry states, only severe
                                     - 16 -
01-07525
mental problems will trigger an investigation or impact the
admission decision" (Defendant's Brief, p. 10)(emphasis added).
Oddly, to isolate those applicants with "severe mental problems,"
the Board has chosen the broadest conceivable definition of
"disorder." The Board's motion is premised on the belief that
title II allows for such a broad inquiry to accomplish such a
narrow task. In fact, exactly the opposite is true.
        In support of its motion, the Board cites to (and appended)
Applicants v. Texas State Board of Bar Examiners, 93 CA 740 SS
(Oct. 10, 1994). This case upheld a licensing board's use of a
very narrow question regarding a few types of mental
disabilities.13 While the United States does not agree with the
court's holding that this type of question is permissible under
_________________________

        13      Applicants to the Texas bar are required to answer the
following:
                a) Within the last ten years, have you been
                diagnosed with or have you been treated for
                bipolar disorder, schizophrenia, paranoia, or
                any other psychotic disorder?
                b) Have you, since attaining the age of
                eighteen or within the last ten years,
                whichever period is shorter, been admitted to
                a hospital or other facility for the
                treatment of bi-polar disorder,
                schizophrenia, paranoia, or any other
                psychotic disorder?
                If you answered "YES" to any part of this
                question, please provide details on a
                Supplemental Form, including date(s) of
                diagnosis or treatment, and a description of
                your present condition. Include the name,
                current mailing address, and telephone number
                of each person who treated you, as well as
                each facility where you received treatment,
                and the reason for treatment.
                                     - 17 -
01-07526
the ADA, even the Texas State Board of Law Examiners opinion
would disallow the Board's use of question 20(b). The Texas
Board of Law Examiners court found that two previous formulations
of the Texas questions would violate the ADA. The court rejected
a question that was substantially similar to Virginia's question
20(b).14 Indeed, the court also rejected a question that was
substantially narrower than question 20(b).15 The court
_________________________

        14      Prior to April 1992, the Texas Board asked applicants:
                Have you, within the last ten (10) years:
                a) Been examined or treated for any mental,
                emotional or nervous conditions (You may
                exclude marriage counseling.)
                b) Been voluntarily or involuntarily admitted
                to a hospital or institution as a result of
                mental, emotional or nervous conditions?
                If you answered "YES" to 11a. or b., give
                details on the Supplemental Form. Include
                dates of treatment or confinement, name and
                current mailing address of the person(s) who
                treated you (or the facility where you
                received treatment), and the reason for
                treatment.
        15      Between April 1992 and July 1993, the Texas Board
significantly narrowed its original question and asked
applicants:
                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,
                                                                (continued...)
                                     - 18 -
01-07527
observed that these questions "intruded into an applicant's
mental health history without focusing on only those mental
illnesses that pose a potential threat to the applicant's present
fitness to practice law. . . . [and] that such a broad-based
inquiry violates the ADA." Id. at 20 (emphasis added).
        The Virginia Board of Bar Examiners, however, has chosen
exactly such an improper broad-based approach. Its boundless
definition of "disorder" in question 20(b) does not include any
limitation on the types of disorders that may be included. The
Board only makes assertions, without a factual basis, for its
claim that the range of "disorders" encompassed within the broad
ambit of question 20(b) have any bearing on an applicant's
ability to practice law. Three other courts have rejected
similar claims. Texas State Board of Law Examiners, supra;
Ellen S., supra; and Medical Society, supra at pp. 8-10.

        B.      Question 20(b) Violates Title II
                Because It Imposes Unnecessary Burdens

        The Board also argues that title II permits inquiries into
mental disorders, so long as it does not deny a professional
license to a person who, despite his or her mental disability,
still has the ability to practice law (Defendant's Brief, p. 9).
This argument was rejected by the Ellen S. and Medical Society
___________________________

        15 (...continued)
                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.
                                     - 19 -
01-07528
courts. Ellen S., at 10; Medical Society, at *6-8. See
discussion, infra.
        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. The Board requires applicants
to state whether, within the past five years, they have been
treated or counseled for any mental, emotional, or nervous
disorder. 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.16
Mental health treatment, however, 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.
        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
__________________

        16      By signing their applications, candidates also waive
their rights of confidentiality to and authorize release of their
treatment or consultation records.
                                     - 20 -
01-07529
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).17 See also Smith v. Schlesinger, 513 F.2d
462, 477 (D.C. Cir. 1975) ("[m]ental illness is unfortunately
seen as a stigma. The enlightened view is that mental illness is
a disease ... but we cannot blind ourselves to the fact that at
present, despite lip service to the contrary, this enlightened
view is not always observed in practice") (ordering Department of
Defense to present investigative file on plaintiff, whose
security clearance had been revoked.)18
______________________________

        17      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 lasts forever." Parham v. J.R., 442 U.S. 584, 622, n.3
(1979) (Stewart, J., concurring in judgment).
        18      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.
                                                                (continued...)
                                    - 21 -
01-07530
        The ADA's definition of disability also recognizes the
stigma which attaches to persons with histories of mental
illness. Regardless of whether they have ever suffered from an
actual substantial impairment of a major life activity, 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. S 12102
(2)(C).19 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."
_______________________________

        18 (...continued)
        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)).
        19      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. S 35.104 (1992).
                                     - 22 -
01-07531
        The Board's inquiries into an individual's history of
disabilities also has a more insidious discriminatory effect.
Concern over the Board's inquiries about diagnosis and treatment
for mental illness deters law students and other applicants from
seeking counseling for mental or emotional problems. See Stephen
T. Maher & Lori Blum, A Strategy for Increasing the Mental and
Emotional Fitness of Bar Applicants, 23 Ind. L. Rev. 821, 830-33
(1990) (detailed discussion of how such inquiries have deterrent
effect). Indeed, this deterrence factor was part of the basis
for the State of Minnesota Supreme Court's order in In re
Petition of Frickey, et al., No. C5-84-2139 (Minn. Apr. 28, 1994)
(deleting questions regarding mental health history from bar
admissions application on grounds that the questions deterred law
students from seeking needed counseling.)20 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
__________________________

        20      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.
                                     - 23 -
01-07532
frank disclosure on which successful counseling depends. See
Maher & Blum, supra, at 824, 833-46.21
        The Board's motion is premised on the important role that it
serves in protecting the public against attorneys unfit to
practice in the Commonwealth of Virginia. The United States
fully supports this laudable goal. As we have noted above,
however, the means to this end, however, are not without
limitation. In enacting the ADA, Congress sought to protect
persons with mental disabilities against discrimination and the
destructive stereotypes common in our society. This suit seeks
to protect those rights.
_______________________

        21      The chilling effect of the Board's practices runs
completely counter to the goal ostensibly served by the inquiries
-- ensuring that applicants will be fit practitioners. See
Deborah L. Rhode, Moral Character as a Professional Credential,
94 Yale L.J. 491, 582 (1985). As Professor Maher and Dr. Blum
state in their article, legal practice is a stressful enterprise,
and many persons can benefit professionally from mental health
counseling.
                [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.
                                     - 24 -
01-07533
                                   CONCLUSION

        For the foregone reasons, the Court should deny the
defendants' motion for summary judgment.

                                        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
                                        Telephone: (202) 307-6309

                                        RICHARD PARKER
                                        Assistant United States Attorney
                                        Appearing Per 28 U.S.C. S 517
                                        1101 King Street, Suite 502
                                        Alexandria, VA 22304
                                        Telephone: (703) 706-3700
October 31, 1994
Alexandria, Virginia
                                     - 25 -
01-07534
                             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 in Opposition to Defendants' Motion for Summary Judgment.

                Victor M. Glasberg, Esq.
                Victor M. Glasberg & Associates
                121 S. Columbus Street
                Alexandria, VA 22314
                Peter R. Messitt
                Assistant Attorney General
                Office of the Attorney General
                101 North Eighth Street
                Richmond, VA 23219

        SO CERTIFIED this 31st day of October, 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
01-07535
                    IN THE UNITED STATES DISTRICT COURT FOR THE
                         EASTERN DISTRICT OF VIRGINIA
                             Alexandria Division
JULIE ANN CLARK,                        )
                                        )
        Plaintiff,                      )
                                        )
v.                                      )       CIVIL ACTION NO. 94-211-A
                                        )
VIRGINIA BOARD OF BAR EXAMINERS,        )
                                        )
        Defendant.                      )
                                    O R D E R

        For the reasons put forth in the accompanying Memorandum
Opinion, it is accordingly ORDERED:
        (1) that the Virginia Board of Bar Examiners is enjoined
from requiring that applicants for admission to the Virginia bar
answer Question 20(b) of its "Character and Fitness
Questionnaire."
        The Clerk is directed to send copies of this Order to all
counsel of record.


February 23rd , 1995
Alexandria, Virginia                    UNITED STATES DISTRICT JUDGE
01-07536
                    IN THE UNITED STATES DISTRICT COURT FOR THE
                           EASTERN DISTRICT OF VIRGINIA
                                 Alexandria Division
JULIE ANN CLARK,                        )
                                        )
                                        )
        Plaintiff,                      )
                                        )
v.                                      )       CIVIL ACTION NO. 94-211-A
                                        )
VIRGINIA BOARD OF BAR EXAMINERS,        )
                                        )
        Defendant.                      )
                                MEMORANDUM OPINION
        The issue before the Court is whether a question appearing
on the Virginia Board of Bar Examiners' "Applicant's Character
and Fitness Questionnaire" addressing an applicant's history of
mental or emotional disorders violates the Americans with
Disabilities Act, 42 U.S.C. S S 12101 et seq. (1994). Following a
preamble explaining that the Virginia Board of Bar Examiners is
concerned only with "severe forms of mental or emotional
problems," Question 20(b) asks: "Have you within the past five
(5) years been treated or counselled for any mental, emotional or
nervous disorders?" If Question 20(b) is answered affirmatively,
applicants must then give specific treatment information pursuant
to Question 21.
        For the reasons set forth below, the Court finds that
Question 20(b) is framed too broadly and violates the Plaintiff's
rights under the Americans with Disabilities Act. Accordingly,
judgment is entered in favor of the Plaintiff and the Virginia
Board of Bar Examiners is enjoined from requiring that future
applicants answer Question 20(b).
01-07537
                              I. FINDINGS OF FACT

        Plaintiff Julie Ann Clark brings this action against the
Virginia Board of Bar Examiners (the "Board") to have Question
20(b) stricken from the Board's "Applicant's Character and
Fitness Questionnaire" (the "Questionnaire") because it violates
the Americans with Disabilities Act (the "ADA"). The Board
maintains that Question 20(b) is posed appropriately and is
necessary to identify applicants with mental disabilities that
would seriously impair their ability to practice law and protect
their clients' interests. The Court, after reviewing the
evidence, authorities and arguments of counsel, makes the
following findings of fact.1

A.      The Parties to the Case

        Plaintiff Julie Ann Clark, a resident of Virginia, graduated
from George Mason University Law School in June of 1993. She is
currently employed as a children's program specialist at the
Bazelon Center for Mental Health Law. During law school, Ms.
Clark worked as a law clerk for the National Senior Citizens' Law
_________________

        1       The complicated procedural history of this case is worthy
of a brief review: On July 11, 1994, the Court granted Defendants'
motion for summary judgment after concluding that the Court lacked
subject matter jurisdiction and that Plaintiff lacked standing to
bring suit under the ADA. On August 31, 1994, pursuant to a motion
to reconsider, the Court vacated the July 11 Order and held that
jurisdiction and standing were proper in this case. At that time,
the Court struck Plaintiff's request for an injunction requiring
the Board to grant her a license to practice law. On November 3,
1994, the Court denied Defendants' second motion for summary
judgment with respect to the Board, but granted summary judgment
with respect to Defendant W. Scott Street, III. Because of a
conflict with the Court's schedule, the case was continued from
November 22, 1994 until January 18, 1995, at which time a two-day
bench trial was held.
                                        2
01-07538
Center, the American Bar Association Commission on Mental
Disabilities, and the law firm of Landsman, Eakes & Laster.
Additionally, Ms. Clark worked at various times as a paralegal
for Legal Services of Northern Virginia and Virginia Legal Aid,
and held several positions at the Loudon County Abused Women's
Shelter.
        Ms. Clark suffers from a condition previously diagnosed as
"major depression, recurrent". Plaintiff's Exhibit 68(a).2
Because the details of Ms. Clark's condition were disclosed in an
affidavit filed under seal, they are not reviewed here. In an
unsealed affidavit, Ms. Clark avers that, as a result of her
condition, she "effectively lost much of [her] ability to
concentrate, act decisively, sleep properly, orient [her]self,
and maintain ordinary social relationships." Pl. Ex. 68(a).
This condition, which occurred a few years ago, affected her for
thirteen months.
        The Virginia Board of Bar Examiners, an entity created under
the authority of Virginia Code S 54.1-1319 (1994), is responsible
for the examination of applicants for licenses to practice law in
Virginia. Under Va. Code S 54.1-3925.1(A), the Board must
determine, prior to licensing, that each applicant is a "person
of honest demeanor and good moral character, is over the age of
eighteen and possesses the requisite fitness to perform the
obligations and responsibilities of a practicing attorney at
______________________

        2       Herein, Plaintiff's Exhibits are referred to as Pl. Ex. and
Defendant's Exhibits are referred to as Def. Ex.
                                        3
01-07539
law." The Board makes this determination "from satisfactory
evidence produced by the applicant in such form as the board may
require." Id. As a precondition to licensure, the Board
requires that applicants answer all of the questions contained in
its Questionnaire, including Question 20(b).
        Pursuant to its authority under Va. Code S 54.1-3922, the
Board promulgated rules governing the admission of bar
applicants. Section III of these Rules, titled Character
Requirements, explains that the burden is on the applicant to
produce evidence satisfactory to the Board that he or she
possesses the requisite fitness to perform the obligations of a
practicing attorney. Def. Ex. 4. The stated purpose of the
character and fitness review is to ensure the protection of the
public and safeguard the system of justice. Id. The revelation
or discovery of characteristics suggesting a lack of fitness to
practice law, including evidence of mental or emotional
instability, may be treated as cause for further inquiry by the
Board.3 Id. The application does not, however, inquire into
________________________

        3       Rule III(2) lists sixteen factors which may be treated as
cause for further inquiry by the board, including: (A) commission
or conviction of a crime; (B) violation of the honor code of the
applicant's college or university, law school, or other academic
misconduct; (C) making false statements or omissions, including
failing to provide complete and accurate information concerning the
applicant's past; (D) misconduct in employment; (E) other than
honorable discharge from any branch of the armed service; (F) acts
involving dishonesty, fraud, deceit or misrepresentation; (G) abuse
of legal process; (H) neglect of financial responsibility; (I)
neglect of professional obligations; (J) violation of an order of
a court; (K) evidence of mental or emotional instability; (L)
evidence of an existing and untreated drug or alcohol dependency;
(M) denial of admission to the bar in another jurisdiction on
character and fitness grounds; (N) disciplinary action by a lawyer
                                        4
01-07540
physical disabilities which may impair one's ability to practice
law.

B.      Application for Admission to the Virginia State Bar

        On or about December 13, 1993, Plaintiff completed the
Questionnaire and filed it with the Board. Plaintiff declined to
answer Questions 20(b) and 21 of the Questionnaire on the grounds
that they violated Title II of the ADA.4 Questions 20(b) and 21,
and the preamble introducing these questions, read as follows:
        The Board is required to assess effectively the fitness
        of each applicant to perform the obligations and
        responsibilities of a practicing attorney at law. In
        this regard, a lawyer's chemical dependency or
        untreated or uncontrolled mental or emotional disorders
        may result in injury to the public. Questions 20 and
        21 request information essential to the Board's
        assessment. The members of the Board recognize that
        stress of law school, as well as other life factors,
        frequently result in applicants seeking psychiatric or
        psychological counseling. The Board encourages you to
        obtain counseling or treatment if you believe that you
        may benefit from it. Because generally only severe
        forms of mental or emotional problems will trigger an
        investigation or impact on bar admission decisions,
        your decision to seek counseling should not be colored
        by your bar application. . . .
disciplinary agency or other professional disciplinary agency of
any jurisdiction, including pending, unresolved disciplinary
complaints against the applicant; (O) commission of an act
constituting the unauthorized practice of law, or unresolved
complaints involving allegations of the unauthorized practice of
law; (P) any other conduct which reflects adversely upon the
character or fitness of an applicant. See Def. Ex. 4. The
questions contained in the Questionnaire are designed to illuminate
these other characterological factors.
______________________

        4       The parties' arguments are addressed primarily to the
propriety of Question 20(b). Question 21 is deemed to violate the
ADA only to the extent that it expands upon Question 20(b). Thus,
whether Question 21 violates the ADA independently of Question
20(b) is not a question before the Court. Accordingly, the Court
will address Questions 20(b) and 21 simultaneously and not as
independent issues.
                                        5
01-07541
                                      * * *
        20.     (b) Have you within the past five (5) years, been
                treated or counselled for a mental, emotional or
                nervous disorders?
                                      * * *
        21.     If your answer to question 20 (a), (b) or (c) is yes,
                complete the following that apply:
                (a) Dates of treatment or counseling;
                (b) Name, address and telephone number of
                    attending physician or counselor or other health
                    care provider;
                (c) Name, address and telephone number of hospital
                    or institution;
                (d) Describe completely the diagnosis and
                    treatment and the prognosis and provide any other
                    relevant facts. You may attach letters from your
                    treating health professionals if you believe this
                    would be helpful.
See Pl. Ex. 1 (emphasis in original).
        On February 8, 1994, the Board advised Ms. Clark that her
refusal to provide relevant information would prevent her from
taking the bar examination. Pursuant to agreement of counsel,
the Board subsequently agreed to allow Ms. Clark to sit for the
February bar examination without answering Questions 20(b) and 21
of the Questionnaire. However, the Board indicated that it would
not grant her a license until she completed the Questionnaire.
        Ms. Clark took the Virginia bar examination on February 22
and 23, 1994 and passed it. She completed all of the application
procedures with the exception of answering Questions 20(b) and
21. The Board concedes that, but for her refusal to answer
Questions 20(b), it has no reason to believe that Ms. Clark lacks
the requisite character and fitness to practice law in Virginia.
Pl. Ex. 6. As the only thing preventing Ms. Clark's licensure is
                                        6
01-07542
her refusal to answer Question 20(b), the issue of whether
Question 20(b) violates the ADA is properly framed for the Court.

C.      Application Procedures of the Virginia Board of Bar
        Examiners

        Prior to 1994, only non-resident applicants were required to
provide mental health information as part of their application to
the Virginia bar. These applicants completed the character and
fitness questionnaire created by the National Conference of Bar
Examiner's (the "NCBE"), which included a broad question on
mental health.5 Conversely, resident applicants and those
enrolled in Virginia law schools could obtain fitness
certification from their local circuit court judge or their law
school dean. See Pl. Ex. 5. The procedure for resident
applicants included no required disclosure of or inquiry into
mental health status or counseling history.
        For the February 1994 bar examination, the Board modified
its practices to conform to Va. Code S 54.1-3925.1, which removed
the ability of circuit court judges and law school deans to
certify applicants' fitness to practice law. The Board developed
a character and fitness questionnaire based in part on the NCBE's
questionnaire. The Board modified the mental health question by
explaining its purpose, in a preamble to Question 20, and by
limiting the scope of inquiry to the last five years.
_______________________

        5       Question 28 asked: "Have you ever been treated or counseled
for any mental, emotional or nervous disorder or condition?"
                                        7
01-07543
        The Board reviews approximately 2,000 applications per year.
Because it lacks the resources to review all of these
applications in-depth, the Board relies on the self-reporting of
verifiable facts to obtain relevant information about each
applicant. The Board sends the applications to the NCBE, which
prepares a character and fitness report on each applicant. The
NCBE verifies all of the answers to the Questionnaire, including
Question 20(b). To verify an affirmative answer to Question
20(b), the NCBE inquires from the health care professional
disclosed in Question 21 whether the information disclosed is
true.
        After preparation of the character and fitness report, the
NCBE returns the applications and verifying information to the
Board for reevaluation. Upon receipt from the NCBE, employees of
the Board review and mark the applications for items that may be
pertinent to applicants' character and fitness, such as
convictions, unpaid debts, job terminations, drug or alcohol use,
mental health counseling, and institutionalization. See also
Footnote 3, supra.
        The Secretary-Treasurer of the Board, Mr. W. Scott Street,
III, reviews the marked applications and decides which should be
brought to the attention of the full Board for further
examination. Although neither Mr. Street nor any member of the
Board has any training in psychiatric or psychological problems,
Pl. Ex. 9, the Board assesses the disclosed mental health
information to determine whether further investigation is
                                        8
01-07544
warranted. The Board has broad authority to conduct additional
hearings to determine an applicant's fitness, and to subpoena
witnesses and documents at such hearings. Va. Code SS 54.1-
3925.1 and 3925.3. In the twenty-three years Mr. Street has
served as the Secretary-Treasurer, he has never brought to the
attention of the Board an application disclosing the mere receipt
of treatment or counseling for stress, depression, or marital or
adjustment problems. Further, no applicant has been denied the
right to sit for the bar examination based on their answer to
Question 20(b).
        In the last five years, forty-seven applicants have answered
"yes" to Questions 20(b) or its predecessor, Question 28 of the
NCBE's questionnaire. Of these forty-seven applicants, only two
cases warranted further inquiry by the Board. In those two
cases, the Board asked each applicant to provide letters from
current health care providers stating that they were fit to
practice law.6 Both applicants provided the requested letters,
but, because one applicant failed the bar examination, only one
applicant was licensed by the Board.
_____________________

        6       One applicant had a bipolar disorder, had attempted suicide,
and was voluntarily hospitalized on numerous occasions. The
applicant's refusal to take prescribed medications resulted in
further institutionalization. Upon receipt of a letter from the
health care provider stating that the applicant had gained insight
into the nature of the disease, was in compliance with a plan of
treatment, and was fit to engage in the practice of law, the
applicant was licensed. The second applicant was diagnosed with a
manic depressive disorder and refused to acknowledge the existence
of the problem. Untreated, the applicant engaged in irrational
behavior such as spending money wildly. Although the applicant
provided the requested letter attesting to his mental fitness, the
applicant failed the bar exam.
                                        9
01-07545
        Unlike the practice in some other states, the Board does not
grant conditional licenses to practice law. Although licensed
attorneys are subject to certain ethical constraints, the Board
cannot impose requirements, such as continued counseling or
treatment, as a condition to licensing. As the Board lacks any
ability to ensure the mental fitness of applicants post-
licensure, it must identify and screen out the unfit applicants
prior to licensing. The Board avers that Question 20(b) is
essential to the identification of such unfit applicants.

D.       Battle of the Experts
        Plaintiff maintains that Question 20(b) must be rejected

because it is overbroad and is ineffectual in identifying those
applicants unfit to practice law. Plaintiff offered the
testimony of Dr. Howard V. Zonana, Director of the Law and
Psychiatric Division and Professor of Clinical Psychology at the
Yale University School of Medicine, to support its contention
that there is no correlation between past mental health
counseling and fitness to practice law. Dr. Zonana testified
that Question 20(b) elicits information that, unlike evidence of
past behavior, is unrelated to applicants' present ability to
practice law and has little or no predictive value. According to
Dr. Zonana, there is little evidence to support the ability of
bar examiners, or even mental health professionals, to predict
inappropriate or irresponsible future behavior based on a
person's history of mental health treatment. Dr. Zonana believes
that evidence of past behavior, as elicited by the Board's other
                                      10
01-07546
"characterological" questions, provides the best indicator of an
applicant's present ability to function and work.7 See Record at
84-87.
        The credibility of Dr. Zonana's position is supported by its
consistency with the position of the American Psychiatric
Association (the "APA"). According to the APA< psychiatric
history should not be the subject of applicant inquiry because it
is not an accurate predictor of fitness. The APA offers the
following guidelines for mental health inquiry by licensing
boards, regulatory agencies, and training programs:
        1. Prior psychiatric treatment is, per se, not
        relevant to the question of current impairment. It is
        not appropriate or informative to ask about past
        psychiatric treatment except in the context of
        understanding current functioning. A past history of
        work impairment, but not simply of past treatment or
        leaves of absence, may be gathered.
        2. The salient concern is always the individual's
        current capacity to function 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 on application forms. Types of impairment
        may include emotional or mental difficulties, physical
        illness, or dependency upon alcohol or other drugs.
        3. Applicants must be informed of the potential for
        public disclosure of any information they provide on
        applications.
Pl. Ex. 16. The Guidelines' focus on current ability to
_______________________

        7       Unlike mental health questions, "characterological" or
"behavioral" questions are those questions which are designed to
elicit information about applicants' character from evidence of
past behavior (e.g. work experience, military service, academic
achievements, etc.). Most of the questions on the Questionnaire
are behavioral or characterological in nature. See Pl. Ex. 1. The
Court uses the terms "characterological" and "behavioral"
interchangeably.
                                       11
01-07547
function, versus prior history of treatment or counseling, echoes
the testimony offered by Dr. Zonana. Plaintiff contends that,
unlike the guidelines offered by the APA, Question 20(b) is
framed to identify mental or emotional illnesses that do not
currently affect the applicant.
        In support of maintaining Question 20(b), the Board offered
the testimony of Dr. Charles B. Mutter, a psychiatrist, assistant
professor of Psychiatry and Family Medicine at the University of
Miami School of Medicine, and member of the Florida Board of Bar
Examiners from 1989 to 1993. Dr. Mutter, drafter of a question
similar to Question 20(b) included in Florida's bar application,
testified that Question 20(b) is appropriate as posed. He stated
that attorneys, as protectors of clients' rights and assets, hold
a special position of trust with the public which must be
safeguarded with mental health pre-screening. Record at 171-72.
Further, Dr. Mutter insisted that broad mental health questions
are essential for collecting complete information regarding
applicants' fitness to practice law. Narrower mental health
questions, in Dr. Mutter's view, are inadequate because they
allow applicants to filter their responses and provide self-
promoting answers. Id. at 177.
        Dr. Mutter's immoderate position, however, is unsupported by
objective evidence and is discordant with a contemporary
understanding of mental health questions under the ADA. For one,
Dr. Mutter was unable point to any evidence proving a correlation
between mental health questions and an inability to practice law.
                                      12
01-07548
Despite this absence of correlative evidence, Dr. Mutter
expressed the view that broad psychological pre-screening should
be used in other professions, such as medicine, banking, law
enforcement, and firefighting. Record 192. Significantly, Dr.
Mutter's somewhat extreme advocacy of mental health inquiry is
controverted by the official position of the APA, a fact of which
Dr. Mutter, an APA member, was unaware. Further, Dr. Mutter's
position has been rejected by the Florida Board of Bar Examiners
which, pursuant to a settlement agreement in Ellen S. v. Florida
Board of Bar Examiners, et al., 94-0429-CIV-KING (S.D. Fla.
1994), struck the mental health question drafted by Dr. Mutter.8
Accordingly, the Court finds that, although both doctors have
impressive curricula vitarum, Dr. Zonana's position is more
credible and persuasive than that of Dr. Mutter.

E.      Need for Inquiry into Mental Health

        The Court accepts that an attorney's uncontrolled and
untreated mental or emotional illness may result in injury to
clients and the public. This conclusion is supported by the
_______________________

        8       Question 29 of the Florida Bar, as drafted by Dr. Mutter,
formerly read:
        a. Have you ever consulted a psychiatrist, psychologist,
        mental health counselor or medical practitioner for any
        mental, nervous or emotional condition, drug or alcohol
        use?
        b. Have you ever been diagnosed as having a nervous,
        mental or emotional condition, drug or alcohol problem?
        c. Have you ever been prescribed psychotropic medication?
These inquiries were replaced by a narrower mental health question
which is reviewed in footnote 15, infra.
                                       13
01-07549
recent cases of acute mental disability among lawyers which have
resulted in license suspensions by the Virginia State Bar. See
Def. Ex. 8-15. Dr. Zonana acknowledged that there are many
mental illnesses which may adversely affect, or even preclude, a
person's ability to practice law. See Record at 48-58. He also
indicated that, while responses to behavioral questions are
better indicators of mental health, inquiry into an applicant's
mental health is necessary for a complete evaluation of their
fitness to practice law. Id. at 62-66.9 Thus, it is clear from
the facts before the Court that, at some stage in the application
proceeding, some form of mental health inquiry is appropriate.10

F.      Efficiency of Question 20(b)

        Assuming that a mental health question is allowed under the
ADA, the Court must determine whether Question 20(b) is a
permissible mental health inquiry. Although characterological
questions elicit useful information about past behaviors likely
to shed light on applicants' fitness, the Board insists that it
is necessary to probe applicants' mental health with Question
________________________

        9       According to Dr. Zonana, mental health inquiry may be
appropriate as a second stage of the application proceedings. Dr.
Zonana testified that an applicant's fitness to practice law should
be assessed from other characterological inquiries first and, where
the results suggest some mental disorder, should be followed up
with a second stage of mental health inquiries. Record at 71.
        10      While some would suggest that mental health questions might
be stricken entirely from bar applications, see e.g. Mary Elizabeth
Cisneros, Note, A Proposal to Eliminate Broad Mental Health
Inquiries on Bar Examination Applications: Assessing an Applicant's
Fitness to Practice Law by Alternate Means, 8 Geo. J. Legal Ethics
401-37 (1995), it is unnecessary for the Court to embrace this
position for the disposition of this case.
                                       14
01-07550
20(b). Conversely, Ms. Clark maintains that the question is
objectionable because it is intrusive without being effective.
        According to testimony presented by both Plaintiff and
Defendant, approximately twenty percent of the population suffers
from some form of mental or emotional disorder at any given time.
See Record at 30 and 213-214.11 However, despite reviewing some
2000 applications per year, the Board has received only forty-
seven affirmative answers to its mental health questions in the
past five years.12 This affirmative response rate, or "hit"
rate, of less than one percent is far below the expected rate of
twenty percent. The Board has presented no evidence to suggest,
nor is there any reason to believe, that bar applicants are not
reflective of the general population. Thus, the great
discrepancy between the Board's hit rate and the reported
percentage of persons suffering from mental impairment indicates
________________________

        11      Dr. Zonana, relying on a study by Drs. Darrel A. Regier and
William E. Narrow, The de Facto U.S. Mental and Addictive Disorders
Service System, 50 Arch. of Gen. Psych. 85-94 (1993), testified
that approximately twenty-two percent of the population suffers
from some form of mental or emotional disorder at any given time.
Record at 30. Similarly, Dr. Mutter offered two estimates, placing
the figure between seventeen and twenty-five percent. Id. at 213-
214.
        12      Notwithstanding its receipt of 47 affirmative responses,
the Board has never denied a license on the basis of prior mental
health counseling. Plaintiff's Exhibit 5. Although the Virginia
State Bar has suspended attorneys for mental disability, see
Defendant's Exs. 8-15, the Board is unable to point to a single
instance where an affirmative answer to Question 20(b) has
prevented licensure. Thus, Question 20(b) has failed to serve its
purpose of preventing the licensure of applicants lacking the
fitness to practice law.
                                       15
01-07551
that Question 20(b) is ineffective in identifying applicants
suffering from mental illness.
        Notwithstanding its receipt of forty-seven affirmative
responses, the Board has never denied a license on the basis of
prior mental health counseling. Pl. Ex. 5. Although the
Virginia State Bar has suspended attorneys for mental disability,
see Def. Ex. 8-15, the Board is unable to point to a single
instance where an affirmative answer to Question 20(b) has
prevented licensure. Thus, based on the Board's own experience,
Question 20(b) has failed to serve its purpose of preventing the
licensure of applicants lacking the fitness to practice law.

G.      Deterrent Effect

        In addition to being ineffectual, Plaintiff argues that
Question 20(b) has a deterrent effect which inhibits applicants
from getting necessary mental health counseling or treatment.
Plaintiff presented the deposition testimony of Dean Paul M.
Marcus, Acting Dean and Professor of Law at the Marshall-Wythe
School of Law at the College of William and Mary, and Philip P.
Frickey, Professor of Law at the University of Minnesota Law
School, on the deterrent effect of broad mental health questions,
like Question 20(b). Drawing on his experience counseling law
students as both a teacher and administrator, Dean Marcus
concluded that questions such as Question 20(b) deter law
students from seeking counseling or treatment from which they
might otherwise benefit. Similarly, Professor Frickey stated
that broad mental health questions like Question 20(b) have a
                                       16
01-07552
strong negative effect upon many law students, often discouraging
them from seeking beneficial mental health counseling. Pl. Ex.
69.
        The declarations of Messrs. Marcus and Frickey were echoed
by the testimony of Drs. Zonana and Mutter, both of whom
acknowledged the deterrent effect of broad mental health
questions. Record at 43-44, 75, 232-33. The Board tacitly
acknowledges this danger when, in its preamble to Question 20, it
warns "your decision to seek counseling should not be colored by
your bar application." While the Board's warning may be intended
to assuage applicants' fears, it is uncertain that applicants,
intimidated by the bar application process, heed such advice.
        Additionally, broad mental health questions may inhibit the
treatment of applicants who do seek counseling. Faced with the
knowledge that one's treating physician may be required to
disclose diagnosis and treatment information, an applicant may be
less than totally candid with their therapist.13 Without full
disclosure of a patient's condition, physicians are restricted in
their ability to accurately diagnose and treat the patient.
Thus, it is possible that open-ended mental health inquiries may
prevent the very treatment which, if given, would help control
the applicant's condition and make the practice of law possible.
_________________________

        13      The Court recognizes that the "Applicant's Character and
Fitness and Questionnaire" remains confidential and is not
available to the public. Va. Code S 54.1-108(2). However, as the
Board is made up of practicing attorneys, applicants may be
reluctant to disclose mental or emotional problems to a group who,
at some level, comprise the applicants' peers and colleagues.
                                       17
01-07553
H.      Data from other Jurisdictions and Authorities 14

        The imposition of mental health questions like Question
20(b) is not unique to Virginia. All fifty states and the
District of Columbia have moral character qualifications which
applicants are required to demonstrate as a condition of
admission to the bar. Not all of these jurisdictions inquire
into applicants' mental health, however, and many states inquire
only into hospitalization or institutionalization for mental
illness. The various approaches of the bar examiners in the
other forty-nine states' can be broken down as follows:
*       Two (2) states, Arizona and Massachusetts ask no mental
        health questions;
*       Five (5) states have recently stricken their mental health
        questions. These include: Hawaii, Illinois, New Mexico,
        Pennsylvania and Utah.15
__________________

        14      The Court takes judicial notice of the information
contained in this section. Although most of this data was supplied
by the parties, some data was supplied by disinterested third-
parties. This information is included merely to frame Question
20(b) vis-a-vis other states' mental health inquiries, and is not
a factor in evaluating the propriety of Question 20(b).
        15      These states formerly asked: Hawaii ("37. During the past
ten (10) years, have you ever been treated for any mental,
emotional or nervous disorders? 38. Have you ever been voluntarily
or involuntarily committed to an institution for mental, emotional
or nervous disorders?"); Illinois ("11.j. During the past ten
years, have you been treated or counseled for any mental,
emotional, nervous, or behavioral disorder or condition? 11.k.
During the last ten years, have you voluntarily entered or been
involuntarily admitted to an institution for treatment of a mental,
emotional, nervous, or behavioral disorder or condition . . . ?");
New Mexico ("18. Have you ever been a patient in any sanitarium,
hospital or mental institution for the treatment of a mental
illness?"); Pennsylvania ("B. Mental Impairments: Mental
Retardation, Emotional Illness, Specific Learning
disabilities, other (specify). Describe your disability below.
In addition, please provide documentation on the attached
corresponding form from your treating physician(s) or therapist(s)
                                       18
01-07554
*       Ten (10) states and the District of Columbia ask only about
        hospitalization or institutionalization for mental
        impairment or illness. The states include: California,
        Georgia, Iowa, Kansas, Louisiana, Montana, New Hampshire,
        New Jersey, South Dakota, and Vermont.16
of your diagnosis and prognosis, date of onset, and current mental
condition, based on an examination conducted within the past
year."); and Utah ("15. Have you ever been a patient in any
sanitarium, hospital or mental institution for the treatment of a
mental illness? 21. Have you ever been adjudicated an incompetent
person, an insane person or a lunatic by any court?").
_________________

        16      California ("13.8. In the last two years, have you ever
voluntarily entered or been involuntarily admitted to an
institution for treatment of a mental, emotional or nervous
disorder/condition . . . ? 13.9. In the last two years, have you
ever been adjudged an incompetent or a conservatee, or have any
proceedings ever been brought against you for such purpose?");
District of Columbia ("26. During the past five years have you
voluntarily entered or been involuntarily admitted to an
institution for treatment of a mental, emotional, or nervous
disorder or condition?"); Georgia ("30. Have you been admitted to
a hospital or other health care facility for treatment of any
mental or emotional illness within the last five years? 31. Have
you ever been declared legally incompetent?"); Iowa ("38. Have you
ever been adjudicated a mentally-ill, mentally-impaired, or
mentally-incapacitated person, or been committed to a hospital or
institution for treatment of a mental, emotional, or nervous
disorder?"); Kansas ("15.c. Have you ever been hospitalized or
institutionalized for reasons of mental health? 15.d. Have you
ever been adjudged a mentally incapacitated or disabled person or
placed under guardianship or conservatorship, or declared a ward of
the Court, for any reason?"); Louisiana ("20. Have you ever been
hospitalized in either a private or public institution because of
any mental condition of disorder?"); Montana ("9. Have you ever
been a patient in a sanitarium, hospital, or mental institution for
the treatment of a mental illness?"); New Hampshire ("11. Are you
now or have you ever been a party to any suit in equity, action at
law, suit in bankruptcy or other statutory proceeding, matter in
probate, incompetency, guardianship, or any other civil judicial or
administrative proceeding of any kind?"); New Jersey ("XIV. Have
you, since your last Statement to the Committee, been: Hospitalized
or institutionalized for the treatment of emotional, mental or
nervous disorders?"); South Dakota ("15.(b) Have you ever been
declared a ward of any court, or adjudged an incompetent, or a
conservatee, or have any proceedings ever been brought for such
purposes, or have you ever been committed to any institution?");
and Vermont ("Have you ever been a voluntary or involuntary patient
at a sanitarium, hospital or institution for the treatment of
mental illness? Have you ever been adjudged to be insane or an
                                       19
01-07555
*       Thirty-two (32) states ask broad questions concerning
        treatment or counseling for mental and emotional disorder or
        illness. These thirty-two states are further divided into
        two groups:
        *       One (1) state, Arkansas limits inquiry to continuous
                treatment for mental or emotional disorder.17
        *       Thirteen (13) states limit their question to specific
                diagnoses or ask applicants if they have any mental
                disorder which they believe will affect their ability
                to practice law. This group includes: Alabama, Alaska,
                Connecticut, Delaware, Florida, Idaho, Maine, Maryland,
                Minnesota, New York, Rhode Island, Texas, and Washington.18
incompetent person by any court?").
___________________

        17      Arkansas ("9.(f). Are you now or have you ever suffered
from or been treated for any mental illness which resulted in
hospitalization or institutionalization, or required continuous
treatment for a period of one (1) year or more?").
        18      Alabama ("43.(a) In the past 5 years, have you received
treatment for a serious nervous, emotional or mental illness which
would adversely impact upon your ability to practice law?");
Alaska ("18. Have you ever had any disability or undergone
treatment for any health problem that may have a bearing on your
fitness to practice law (e.g. alcoholism or mental illness)?");
Connecticut ("Since you became a law student, have you ever had an
emotional disturbance, mental illness or physical illness which has
impaired your ability to practice law or to function as a student of
law?"); Delaware ("28.a. At any time during the last ten years
have you been diagnosed as having, or received treatment for, any
of the following: bipolar or major depressive mood disorder,
schizophrenia, paranoia or other psychotic disorder, kleptomania,
pathological or compulsive gambling, pedophilia or exhibitionism?
b. Do you currently (as hereinafter defined) have a mental health
condition (not reported above) which in any way impairs or limits,
or if untreated could impair or limit, your ability to practice law
in a competent and professional manner? . . . 'Currently' means any
time which is recent enough that it could have an impact on your
ability to function as an attorney."); Florida ("27.a. During the
last ten (10) years, have you been hospitalized or have you
consulted a professional or have you received treatment or a
diagnosis from a professional for any of the following:
Schizophrenia or any other psychotic disorder, Bipolar or Major
Depressive mood disorder, Antisocial Personality disorder, drug or
alcohol abuse, Kleptomania, Pathological or Compulsive Gambling,
Pedophilia, Exhibitionism, Voyeurism? 27. b. Do you currently (as
hereinafter defined) have a mental health condition (not reported
above) which in any way impairs or limits, or if untreated could
                                       20
01-07556
        *       Eighteen (18) states which ask broad mental health
                questions like Question 20(b). These include:
                Colorado, Indiana, Kentucky, Michigan, Mississippi,
                Missouri, Nebraska, Nevada, North Carolina, North
                Dakota, Ohio, Oklahoma, Oregon, South Carolina,
                Tennessee, West Virginia, Wisconsin and Wyoming.19
impair or limit, your ability to practice law in a competent and
professional manner? . . . 'Currently' means recently enough so
that the condition may have an ongoing impact on one's functioning
as a licensed attorney."); Idaho ("32. Have you ever had any
mental health condition which might impair your ability to engage
in the practice of law?"); Maine ("32. Have you ever been
diagnosed or treated for the following conditions or disorders, or
do you currently suffer from any of the following conditions or
disorders: A. Pedophilia, exhibitionism, or other sexual behavior
disorder that may affect your interaction with the public; B.
Compulsive gambling, kleptomania, or pyromania. . . ."); Maryland
("17. Have there been any circumstances or unfavorable incidents
in your life, whether in school, college, law school, business or
otherwise, which may have a bearing upon your character or your
fitness to practice law, not called for by the questions contained
in this questionnaire or disclosed in your answers? If so, give
full details, including any assertions or implications of
dishonesty, misconduct, misrepresentation, mental or emotional
disability, financial irresponsibility, and disciplinary measures
imposed (if any) by attaching a supplemental statement.");
Minnesota ("4.28. Do you have, or have you had in the past 2 years,
a mental illness, an emotional condition or a learning disability
which in any way impairs or limits your ability to practice law?");
New York ("Attachment A. (1) Do you have any physical, mental or
emotional condition that could adversely effect your capability to
practice law?"); Rhode Island ("29(b) Are you now or have you
within the past five (5) years been diagnosed as having or received
treatment for an emotional disturbance, nervous or mental disorder,
which condition would impair your ability to practice law?");
Texas ("11.a. Within the last ten (10) years, have you been
diagnosed with or have you been treated for bi-polar disorder,
schizophrenia, paranoia, or any other psychotic disorder?"); and
Washington ("I. Have you ever experienced, or undergone treatment
for any psychiatric problem, or for alcohol or drug dependency
during the past five years, that would interfere with your ability
to practice law?").
_____________________

        19      Colorado ("39. During the last ten years, have you ever
received a diagnosis, or treatment for, a mental, emotional, or
nervous disorder?"); Indiana ("25. From the age of 16 years to the
present, have you been treated for any mental, emotional or nervous
disorder?"); Kentucky ("21. Have you ever been diagnosed or
received regular treatment for amnesia, emotional disturbance,
nervous or mental disorder?"); Michigan ("51.a. Have you ever had
                                       21
01-07557
        In the wake of the passage of the ADA, which became
effective for public entities in January 1992, the inclusion of
mental health questions on bar applications has gained new
a mental illness, meaning a substantial disorder of thought or mood
which significantly impaired your judgment, behavior, capacity to
recognize reality, or ability to cope with ordinary demands of
life, to such an extent that you required care and treatment for
your own welfare or the welfare of others or of the community?");
Mississippi ("27. Have you suffered any type of psychiatric or
psychological disorder which required treatment including
hospitalization and/or the prescription of anti-psychotic
medication?"); Missouri ("24. During the last ten years or during
the period since you attained age 18 (whichever time is shorter),
have you ever been treated or counseled for any mental, emotional
or nervous disorder or illness?"); Nebraska ("17. Have you ever
been treated or counseled for any mental, emotional or nervous
disorder or condition?"); Nevada ("44. Have you ever been treated
for mental or emotional illness, disease, incapacity or disorder of
any kind or nature, or have you ever been committed to any
institution, sanatorium or hospital for the treatment of such
condition?"); North Carolina ("24.a. Have you ever received
diagnosis of amnesia, or any form of insanity, emotional
disturbance, nervous or mental disorder? 24.b. Have you ever
received REGULAR treatment for amnesia, or any form of insanity,
emotional disturbance, nervous or mental disorder?"); North Dakota
("28. Have you ever been treated or counseled for any mental,
emotional or nervous disorder or condition?"); Ohio ("20.b. Have
you ever been treated or counseled for any mental, emotional or
nervous disorders?"); Oklahoma ("24. Have you ever been diagnosed
or received treatment for any form of mental disorder, suffered
from any mental illness, or been declared incompetent?"); Oregon
("13.n. During the past 7 years, have you received mental health
counseling or treatment for symptoms or a condition that affected
your ability to function on a day-to-day basis?"); South Carolina
("19.d. Have you ever received treatment for amnesia, or any form
of insanity, emotional disturbance, or mental disorder?");
Tennessee ("13.b. During the past ten (10) years, have you ever
been treated for any mental, emotional or nervous disorder?");
West Virginia ("50.a. Have you ever had a mental illness, meaning
a substantial disorder of thought or mood which significantly
impaired your judgment, behavior, capacity to recognize reality, or
ability to cope with the ordinary demands of life, to such extent
that you required care and treatment for your own welfare or the
welfare of others or the community?"); Wisconsin ("29. Have you
been treated for any mental illness or severe emotional disturbance
during the past five years?"); and Wyoming ("28. Have you ever
been treated or counseled for any mental, emotional or nervous
disorder or condition?").
                                       22
01-07558
significance. At least eight states, including Connecticut,
Florida, Maine, Minnesota, New York, Pennsylvania, Rhode Island
and Texas, have recently altered their mental health questions in
light of potential or actual litigation under the ADA.
        The changes in these states are reflected in similar
adjustments in the policies of the American Bar Association
("ABA") and the NCBE, two leading national legal organizations.
In August 1994, the House of Delegates of the American Bar
Association ("ABA") adopted a recommendation that:
        when making character and fitness determinations for
        the purpose of bar admission, state and territorial bar
        examiners, in carrying out their responsibilities to
        the public to admit only qualified applicants worthy of
        the public trust, should consider the privacy concerns
        of bar admission applicants, tailor questions
        concerning mental health and treatment narrowly in
        order to elicit information about current fitness to
        practice law, and take steps to ensure that their
        processes do not discourage those who would benefit
        from seeking professional assistance with personal
        problems and issues of mental health from doing so.
Proposal 110, A.B.A. House of Delegates (August 9, 1994). While
not the most strongly worded admonition, the resolution
represents an acknowledgement of the changing atmosphere under
the ADA.
        Recently, the NCBE has acted to change the mental health
questions on its character and fitness questionnaire. Formerly,
questions 28 and 29 of the NCBE's character and fitness
application asked, respectively: "Have you ever been treated or
counseled for any mental, emotional or nervous disorder or
condition?" and "Have you ever voluntarily entered or been
involuntarily admitted to an institution for treatment of a
                                       23
01-07559
mental, emotional or nervous disorder or condition?" These
questions formed the basis for many states' mental health
questions, including Virginia. As of February 17, 1995, the NCBE
altered its mental health questions to limit their scope and to
more sharply focus on chronic mental conditions which affect the
ability to practice law.20 While the actions of the NCBE and ABA
are not binding on the states, they signify the substantial
impact the ADA is having on the formulation of mental health
inquiries.

                             II. CONCLUSIONS OF LAW

        Title II of the Americans with Disabilities Act prohibits
discrimination against disabled persons by public entities. 42
U.S.C. SS 12101 et seq. (1994). It provides that "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
subject to discrimination by such entity." 42 U.S.C. S 12132. A
"public entity" is defined as "any department, agency . . . or
other instrumentality of a State . . . government." 42 U.S.C. S
12131(B). The Virginia Board of Bar Examiners concedes that it
is a public agency within this definition.
        A "qualified individual with a disability" is defined as
"[a]n individual with a disability who, with or without
____________________

        20      Although NCBE President Erica Moeser indicated that these
changes have been approved by the NCBE, the new questions were not
available in final form at the time of this opinion. Ms. Moeser
expected the NCBE to distribute the new questions in early March,
1995.
                                       24
01-07560
reasonable modification to rules, policies, or practices . . .
meets the essential eligibility requirements for the receipt of
services or participation in programs or activities provided by
the public entity." 42 U.S.C. S 12111(8). Under regulations
promulgated by the Department of Justice, pursuant to 42 U.S.C. S
12134, "disability" is further defined as "a physical or mental
impairment that substantially limits one or more of the major
life activities of such individual; a record of such impairment;
or being regarded as having such an impairment." 28 C.F.R. S
35.104. "Major life activities" include "functions such as
caring for one's self, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working." Id.
        The Court finds, based on the affidavit Plaintiff filed
under seal, that Ms. Clark is a person with a disability or,
alternatively, a person with a past record of impairment within
the meaning of the ADA. 42 U.S.C. S 12102(2); 28 C.F.R. S 35.104.
Further, Ms. Clark has shown that she can meet the essential
eligibility requirements of practicing law and is "a qualified
person with a disability" under the ADA. 42 U.S.C. S 12131(2); 28
C.F.R. S 35.104. While Defendant argues that Ms. Clark is not an
"otherwise qualified individual" because she failed to answer
Question 20(b), this argument begs the question of whether
Question 20(b) must be answered at all.
        An applicant may not meet the essential eligibility
requirements, however, where they "pose[} a direct threat to the
health or safety of others." 28 C.F.R. pt. 35, app. A at 446. A
                                       25
01-07561
determination that a person poses a "direct threat"21 must be
based not on generalizations or stereotypes, but on:
        an individualized assessment, based on reasonable
        judgment that relies on current medical evidence or on
        the best available objective evidence to determine: the
        nature, duration, and severity of the risk; the
        probability that potential injury will actually occur;
        and whether reasonable modification of policies,
        practices and procedures will mitigate the risk.
Id. at 446. The Board has presented no evidence to suggest that
all or most of the applicants answering Question 20(b)
affirmatively threaten the health or safety of the public. Nor
is there any evidence that the Board engaged in any
individualized assessment in formulating Question 20(b) as called
for by 28 C.F.R. pt. 35, app. A at 446. Absent a showing that
Ms. Clark would pose a direct threat to the health or safety of
others, the Court finds that Ms. Clark meets all of the
"essential eligibility requirements" for admission to the bar of
the Commonwealth of Virginia.
        In addition to the general provisions of Title II, public
entities are specifically prohibited from acting discriminatorily
in administering licensing programs. 28 C.F.R. S 35.130(6).
This regulation provides:
        A public entity may not administer a licensing or
        certification program in a manner that subjects
        qualified individuals with disabilities to
        discrimination on the basis of disability, nor may a
        public entity establish requirements for the programs
        or activities of licensees or certified entities that
        21      Defined as a "significant risk to the health or safety of
others that cannot be eliminated by modification of policies,
practices, or procedures, or by the provision of auxiliary aids or
services." 28 C.F.R. pt. 35, app. A at 446.
                                       26
01-07562
        subject qualified individuals with disabilities to
        discrimination on the basis of disability. . . .
28 C.F.R. S 35.130(6). Further, 28 C.F.R. S 35.130(8) forbids a
public entity from:
        impos[ing] or apply[ing] eligibility criteria that
        screen out or tend to screen out any 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.
Id. As a public licensing agency, the Board must comply with the
strict requirements of 28 C.F.R. SS 35.130(6) and (8) in probing
applicants' mental health histories.
In assessing the propriety of Question 20(b), the Court is
faced with two issues: (1) whether the Board has established
requirements or imposed eligibility criteria that subject
qualified individuals to discrimination on the basis of their
disability, and (2) whether such requirements or criteria are
necessary to the Board's licensing function.

A.      Question 20(b) Subjects Qualified Individuals with a
        Disability to Discrimination on the Basis of that Disability

        To find a violation of the ADA, the Court first must
determine whether the Board, in posing Question 20(b), subjects
persons with disabilities to discrimination on the basis of their
disability. While it not clear that Question 20(b) "screens out"
potential applicants, it is clear that Question 20(b) imposes an
additional burden on applicants with disabilities to satisfy
additional eligibility criteria. See Ellen S. v. Florida Board
of Bar Examiners, 859 F. Supp. 1489, 1494 (S.D. Fla. 1994)
                                       27
01-07563
(Florida's mental health questions "discriminate against
Plaintiffs by subjecting them to additional burdens based on
their disability."); Medical Society of New Jersey v. Jacobs,
1993 WL 413016, *7 (D. N.J. 1993) (mental health questions
imposed extra burdens on qualified persons with disabilities in
violation of ADA); In re Applications of Underwood and Plano, No.
BAR-93-21, 1993 WL 649283 at *2 (Me. Dec. 7, 1993) (requirement
that applicants answer mental health questions discriminates on
the bases of disability and imposes eligibility criteria that
unnecessarily screen out individuals with disabilities).
        Unlike other applicants, those with mental disabilities are
required to subject themselves to further inquiry and scrutiny.
The Court finds that this additional burden discriminates against
those with mental disabilities. Thus, to avoid violating the
ADA, the Board must show that Question 20(b) is necessary to the
performance of its licensing function.

B.      Necessity of Imposing Question 20(b)

        "The practice of law is not a matter of grace, but of right
for one who is qualified by his learning and his moral
character." Baird v. State Bar of Arizona, 401 U.S. 1, 8 (1971).
It is generally accepted that a state can set high standards of
qualification and, to this end, may investigate an applicant's
character and fitness to practice law. See Schware v. Board of
Bar Examiners of New Mexico, 353 U.S. 232, 239 (1957); Martin-
Triona v. Underwood, 529 F.2d 33, 38 (7th Cir. 1975); Hawkins v.
Moss, 503 F.2d 1171, 1175 (4th Cir. 1974). It is equally clear
                                       28
01-07564
that all states have set qualifications of moral character as
preconditions for admission to the practice of law, with the
burden of demonstrating good character borne by the applicant.
See Konigsberg v. State Bar of California, 366 U.S. 36, 41 n.4
(1961). While the Board's broad authority to set licensing
qualifications is well established, such authority is subject to
the requirements of the ADA.

        1.      Duty to assess the character and fitness of applicants

        The Board is charged with a statutory duty to find, prior to
licensure, that each applicant has the "requisite fitness to
perform the obligations and responsibilities of a practicing
attorney at law." Va. Code S 54.1-3925.1. As part of this duty,
the Board must identify those people who suffer from mental
conditions which would severely affect or impair their ability to
practice law.
        The Board contends that, in fulfilling this duty, it is
necessary to ask Question 20(b) to uncover all of the skeletons
hidden in each applicant's psychological closet. Further, the
Board opines that its ability to investigate applicants'
character and fitness is limited by inadequate resources and time
constraints. According to the Board, Question 20(b) is necessary
because it enables the Board to identify potentially unfit
applicants with the limited resources and time available to it.
While the Court recognizes that the Board has limited resources
with which to discharge its duty under Va. Code S 54.1-3925.1,
                                       29
01-07565
the Court finds such limitations do not make Question 20(b)
"necessary" under the ADA.

        2.      Decisions in other jurisdictions

        Other courts, considering broad mental health questions
similar to Question 20(b), have concluded that such inquiries
would violate Title II of the ADA. See Ellen S., 859 F. Supp. at
1494 (court stated, in dicta, that licensing board's broad
inquiry into applicants' mental health would violate Title II);22
Medical Society of New Jersey, 1993 WL 413016 (court concluded,
in dicta, that licensing agency's question "have you ever
suffered or been treated for any mental illness or psychiatric
problem" violates ADA); Underwood, No. BAR-93-21, 1993 WL 649283
at *2 (bar examiner's inquiry into diagnosis and treatment for
emotional, nervous or mental disorders, and accompanying medical
authorization form, violates ADA).23 "Although it is certainly
permissible for the Board of Bar Examiners to fashion other
questions more directly related to behavior that can affect the
practice of law without violating the ADA, the questions and
__________________

        22      The Ellen S. court considered the mental health questions
reviewed in footnote 8, supra. See 859 F. Supp. at 1491 n.1. These
questions, originally drafted by Dr. Charles Mutter, were stricken
by the Florida Board of Bar Examiners as part of a settlement of
the Ellen S. litigation. Florida's revised mental health questions
appear in footnote 18, supra.
        23      The Underwood court considered questions 29 and 30 of the
Maine bar application which asked, respectively: "Have you ever
received diagnosis of an emotional, nervous or mental disorder?"
and "Within the ten (10) year period prior to the date of this
application, have you ever received treatment of emotional, nervous
or mental disorder?" As a result of the Underwood litigation, the
Maine Board of Bar Examiners revised its mental health inquiry.
The new questions are reviewed at footnote 18, supra.
                                       30
01-07566
medical authorization objected to here are contrary to the ADA"
Underwood, 1993 WL 649283 at *2 (emphasis in original). While
not binding authority, these cases offer persuasive guidance in
the evaluation of Question 20(b) under the ADA.
        In support of maintaining Question 20(b), the Board relies
on Applicants v. Texas State Board of Bar Examiners, No. 93 CA
74OSS (W.D. Tex. October 10, 1994), which upheld the right of the
Texas Board of Bar Examiners to inquire into an applicant's
mental history. Unlike Question 20(b), however, the questions
considered in Texas State Board of Bar Examiners were addressed
only to specific behavioral disorders found relevant to the
practice of law.24 Further, the Texas State Board of Bar
Examiners court noted that the mental health question used by the
Texas Board of Bar Examiners before 1992, which asked "[h]ave you
within the last ten (10) years . . . [b]een examined or treated
for any mental, emotional or nervous conditions," was "revised .
. . to comply with the ADA." Id. at 4. Hence, the Texas State
________________________

        24      The Texas State Board of Bar Examiners court reviewed
question 11 of the bar application which asked:
        (a) Within the last ten years, have you been
        diagnosed with or have you been treated [for]
        bipolar disorder, schizophrenia, paranoia, or any
        other psychotic disorder?
        (b) Have you, since attaining the age or eighteen
        or within the last ten years, whichever is shorter,
        been admitted to a hospital or other facility for
        the treatment of bipolar disorder, schizophrenia,
        paranoia, or any other psychotic disorder?
The Texas State Board of Bar Examiners court concluded that these
inquiries did not violate the ADA because they narrowly addressed
only those disorders relevant to the practice of law. Id. at 24.
                                       31
01-07567
Board of Bar Examiners decision has limited application and does
not support the breadth of inquiry posed by the Board.25
        Hence, recent decisions in other jurisdictions support the
conclusion that the ADA restricts licensing boards' freedom to
inquire into mental health background. Even Texas State Board of
Bar Examiners, which upheld the Texas bar examiners' mental
health inquiry, indicates that a broader mental health inquiry
might violate the ADA. Consequently, the Board's position that
Question 20(b) is necessary to the performance of its licensing
function is unsupported by any of the cases which have addressed
this issue.

        3.      Other mental health questions insufficient

        The Board avers that Question 20(b) is necessary because a
more restricted mental health question would be ineffective in
identifying the characteristics necessary for a determination of
applicant fitness. The Board maintains that a narrower question,
however posed, would be underinclusive.
        According to the Board, a mental health question limited to
certain listed diagnoses would be incomplete because it would
fail to include non-diagnosed applicants or those with unlisted
diagnoses. Further, a list-based question would be inadequate
because of the impossibility of creating a comprehensive list of
______________________

        25      The United States, appearing before the Court as amicus
curiae, argues that the Texas State Board of Law Examiners decision
is wrong to the extent that it allowed even limited inquiry into
"severe" mental disabilities. The United States argues that the
diagnoses listed are unnecessary classifications that violate title
II of the ADA. However, as this issue is not properly before the
court, it is unnecessary to reach the merits of such an argument.
                                       32
01-07568
diagnoses. See 28 C.F.R. pt. 35, App. A at 443 ("It is not
possible to include a list of all of the specific conditions . .
. that would constitute . . . mental impairments because of the
difficulty of ensuring the comprehensiveness of such a list.");
see also Record at 57-59, 68 (testimony of Dr. Zonana that more
than thirty mental disorders exist and admitting that a question
listing diagnoses would not be a good solution).
        Similarly, the Board objects to questions which yield to
applicants the determination of whether a mental or emotional
condition would affect their fitness to practice law.26 The
Board argues that placing this determination with the applicant
allows them to certify their own fitness. A broad mental health
question, however, prevents the self-filtering or self-promotion
applicants might otherwise exercise in answering such questions.
Record at 177. Because a more limited question would be either
incomplete or overly yielding, the Board insists that Question
20(b) is necessary to fulfill its duty of assessing applicants'
fitness to practice law.
        The Defendant's argument, however, lacks objective support
and does not justify the imposition of Question 20(b). As
Question 20(b) has been unsuccessful in identifying applicants
with mental disabilities, it is difficult to imagine other mental
health questions, however posed, being more ineffectual. Even if
_____________________

        26      For example, Alaska asks: "Have you ever had any disability
or undergone treatment for any health problem that may have a
bearing on your fitness to practice law? (e.g. alcoholism or mental
illness)." See e.g. Footnote 18, supra.
                                       33
01-07569
Question 20(b) were better at eliciting mental health
information, a fact the Board fails to prove, this would not
compel the Court to find that Question 20(b) is "necessary" under
the ADA. Thus, the Board's argument can be rejected as
unsupported factually and unpersuasive legally.

        4.      Deterrent and stigmatic effect

        Ms. Clark argues that Question 20(b) is objectionable
because it is overinclusive and has adverse deterrent and
stigmatic effects. According to Plaintiff, Question 20(b) is
overbroad in that it burdens mentally disabled applicants without
effectively identifying those applicants who are unfit to
practice law. Further, the imposition of Question 20(b) has the
adverse effect of deterring mental health treatment and
stigmatizing those who do seek treatment.
        Plaintiff avers that Question 20(b), while burdening all
mentally disabled applicants, offers no marginal utility over the
other behavioral questions posed on the Questionnaire. Neither
the Board nor its expert, Dr. Mutter, presented any evidence of
correlation between positive answers to Question 20(b) and
otherwise undisclosed mental illnesses. The extremely small
number of applicants answering Question 20(b) affirmatively,
compared with the comparatively large percentage of the
population suffering from mental illnesses at any given time,
attests to the practical ineffectiveness Question 20(b).
        The only corollary evidence presented by the Board was the
"anecdotal study of applications which discussed issues
                                       34
01-07570
pertaining to mental health" of Mr. James P. Newes, an employee
of the Minnesota Board of Law Examiners. Newes Dep. at 9. Mr.
Newes found nine cases in which positive answers to Minnesota's
mental health question revealed information which otherwise would
have remained hidden. However, the results of the Newes study
alone cannot be extrapolated to provide substantive support for
the effectiveness of Question 20(b). For one, much of the
extreme behavior of the nine study cases would have been revealed
by the characterological questions contained in the Board's
Questionnaire.27 Further, Newes' survey pool is too small to
support broad generalizations regarding the effectiveness of
mental health questions. Hence, the Newes study offers little
support for the proposition that, but for Question 20(b), the
Board would be unable to identify applicants with mental
disabilities so severe that they are unfit to practice law.
        Conversely, Plaintiff presented considerable evidence of the
stigmatizing and inhibiting effect of broad mental health
questions. The imposition of Question 20(b) both amplifies the
stigmatization of disabled persons and, at the same time, deters
the counseling and treatment from which such persons could
benefit. Requiring applicants to answer Question 20(b),
especially considered in relation to the preceding and succeeding
___________________

        27      Five of the applicants had been hospitalized or
institutionalized because of mental problems or alcohol abuse; two
suffered from alcohol or drug abuse; and one was involved in a
shooting and spent time in jail as a result. This information
would have been revealed by truthful answers to the
characterological questions on the Board's Questionnaire, even
excluding Question 20(b).
                                       35
01-07571
questions regarding drug or alcohol addiction and hospitalization
for mental illness, suggests that those answering affirmatively
are somehow deficient or inferior applicants. Further, by the
admission of Mr. Street, Question 20(b) may be overbroad in that
it elicits unnecessary and unintended mental health information.
Record at 165.
        In addition to being overbroad, there is ample support, from
the testimony of Drs. Zonana and Mutter, Dean Marcus, and
Professor Frickey, for the conclusion that Question 20(b) deters
applicants from seeking mental health counseling from which they
might otherwise benefit. Thus, it is apparent that the costs of
administering Question 20(b) are not justified by the
insignificant results it achieves.

                                III. CONCLUSION

        On the basis of the record produced at trial, the Court
easily reaches the conclusion that question 20(b) is too broad
and should be rewritten to achieve the Board's objective of
protecting the public. Question 20(b)'s broadly worded mental
health question discriminates against disabled applicants by
imposing additional eligibility criteria. While certain severe
mental or emotional disorders may pose a direct threat to public
safety, the Board has made no individualized finding that
obtaining evidence of mental health counseling or treatment is
effective in guarding against this threat.
        In fact, the Board presented no evidence of correlation
between obtaining mental counseling and employment dysfunction.
                                       36
01-07572
Question 20(b), while offering little marginal utility in
identifying unfit applicants, has strong negative stigmatic and
deterrent effects upon applicants. Both Drs. Zonana and Mutter
acknowledged this deterrent effect and testified that past
behavior is the best predictor of present and future mental
fitness. Thus, the Board has failed to show that Question 20(b)
is necessary to the performance of its duty to license only fit
bar applicants.
        As the Court's job in this case is to decide whether 20(b)
complies with the ADA, not to draft a question that would comply
with the ADA, the Court will refran from offering any dictum
guidance. The imposition of Question 20(b) by the Board violates
the ADA. 42 U.S.C. S 12132; 28 C.F.R. SS 35.130(6) and (8).
While the licensure of attorneys implicates issues of public
safety, the Board has failed to show that Question 20(b), as
posed, is necessary to the Board's performance of its licensing
function. Accordingly, judgment is entered for the Plaintiff and
the Virginia Board of Bar Examiners is enjoined from requiring
that future applicants answer Question 20(b) of the
Questionnaire.
        An appropriate Order shall issue.


February 23rd, 1995
Alexandria, Virginia                    UNITED STATES DISTRICT JUDGE
                                       37
01-07573
                           UNITED STATES DISTRICT COURT
                           EASTERN DISTRICT OF VIRGINIA
                               Alexandria Division
JULIE ANN CLARK                         :
        Plaintiff,                      :
v.                                      :
VIRGINIA BOARD OF BAR EXAMINERS         :
                                        :       C.A. # 94-211-A
and                                     :
W. SCOTT STREET, III, Secretary         :
Virginia Board of Bar Examiners         :
        Defendants.                     :
                MEMORANDUM OF THE UNITED STATES AS AMICUS CURIAE
                  IN SUPPORT OF PLAINTIFF'S NOTICE AND MOTION
                                TO ALTER JUDGMENT
01-07574
                                TABLE OF CONTENTS
                                                                         PAGE
TABLE OF AUTHORITIES...................................................... ii
I.      INTRODUCTION......................................................  1
II.     ARGUMENT:
        A.      THIS COURT HAS JURISDICTION BECAUSE
                PLAINTIFF CLARK CHALLENGES GENERAL
                RULES AND REGULATIONS GOVERNING
                ADMISSION TO THE BAR......................................  2
        B.      THIS CASE SHOULD NOT BE DISMISSED FOR
                LACK OF STANDING .......................................... 8
                1.      Ms. Clark Has Standing To Sue
                        Even If She Does Not Have A
                        Disability ........................................ 9
                2.      This Court Incorrectly Concluded
                        That Ms. Clark Is Not A Person
                        With A Disability ................................ 15
                        a.      The Evidence Supports
                                Ms. Clark's Claim That She
                                Has A Record Of A
                                Disability ............................... 17
                        b.      The Record May Support The
                                Conclusion That The Board
                                Regards Ms. Clark As
                                Disabled ................................. 22
III.    CONCLUSION ....................................................... 24
                                       -i-
01-07575
                              TABLE OF AUTHORITIES
CASES:                                                                   PAGE
Addington v. Texas, 441 U.S. 418 (1979) ................................. 11
Arlington Heights v. Metropolis Housing Development Corp.,
        429 U.S. 252 (1977) ............................................. 12
Bailey v. Board of Law Examiners, 508 F. Supp. 106 (W.D.
        Tex. 1980) ....................................................... 8
Barnard v. Thorstenn, 489 U.S. 546 (1989) ................................ 6
Branch Bank and Trust Co. v. National Credit Union Admin.
        Bd., 786 F.2d 621 (4th Cir. 1986), cert. denied 479
        U.S. 1063 (1987) ................................................ 14
Boyett Coffee Co. v. United States, 775 F. Supp. 1001 (W.D.
        Tex. 1991) ...................................................... 15
Chesapeake and Potomac Telephone Company of Virginia v.
        United States, 830 F. Supp. 909 (E.D. Va. 1993)............... 9, 12
Chevron, U.S., Inc. v. Natural Resources Defense Council,
        Inc., 467 U.S. 837 (1984) ....................................... 16
Clarke v. Securities Industry Ass'n, 479 U.S. 388 (1987)................. 14
Clark v. Virginia Board of Bar Examiners, No. 94-211-A
        (E.D. Va. 1994), cited as "Opinion" ................... 3, 7, 17, 22
District of Columbia Court of Appeals v. Feldman,
        460 U.S. 462 (1983) ......................................... passim
Doe v. New York University, 666 F.2d 761 (2nd Cir.
        1981) ....................................................... 18, 19
Ellen S. v. Florida Board of Bar Examiners,
        No. 94-0429-CIV-KING, (S.D. Fla.
        Aug. 1, 1994) ......................................... 5, 6, 10, 22
Federal Sav. and Loan Ins. Corp. v. Heidrick, 774 F. Supp.
        352 (D. Md. 1991) ............................................... 15
Forrisi v. Bowen, 794 F.2d 931 (4th Cir. 1986) .......................... 20
Gladstone Realtors v. Village of Bellwood, 441 U.S. 91
        (1979) .......................................................... 14
Guice-Mills v. Derwinksi, 772 F. Supp. 188 (S.D.N.Y.
        1991) ....................................................... 17, 21
                                       ii
01-07576
Hoffman v. Hunt, 845 F. Supp. 340 (W.D.N.C. 1994) ........................ 9
In re Petition of Frickey, No. C5-84-2139 (Minn. Apr.
        28, 1994) ....................................................... 12
Luian v. Defenders of Wildlife, 112 S.Ct 2130 (1992) ..................... 9
Lyng v. Payne, 476 U.S. 926 (1986) ...................................... 16
Medical Society of New Jersey v. Jacobs, 1993 WL 413016
        (D.N.J. Oct. 5, 1993) ........................................... 10
Nasser v. City of Homewood, 671 F.2d 434 (11th Cir. 1982)................ 13
Nordgren v. Hafter, 789 F.2d 334 (5th Cir. 1986), cert.
        denied, 479 U.S. 850 (1986) ...................................... 4
Parnham v. J.R., 442 U.S. 584 (1979) .................................... 11
Perez v. Philadelphia Housing Authority, 677 F. Supp.
        357 (E.D. Pa. 1987), aff'd 841 F. 2d 1120 (3rd Cir.
        1988) ....................................................... 19, 20
Petersen v. University of Wis. Bd. Regents, No. 93-C-46-C,
        2 Americans with Disabilities Act Cases (BNA) 735, 1993
        U.S. Dist. LEXIS 5427 (W.D. Wis. Apr. 20, 1993) ................. 16
Rosenfeld v. Clark, 586 F. Supp. 1332 (D. Vt. 1984) ...................... 8
School Board of Nassau County v. Arline, 480 U.S. 273
        (1987) .......................................................... 23
Smith v. Schlesinger, 513 F.2d 462 (D.C. Cir. 1975) ..................... 11
Stinson v. United States, 113 S. Ct. 1913 (1993) ........................ 16
Thorstenn v. Barnard, 883 F.2d 217 (3rd Cir. 1989) ....................... 6
Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205
        (1972) ...................................................... 13, 14
Warth v. Seldin, 422 U.S. 490 (1975) ..................................... 9
Woodward v. Viriginia Board of Bar Examiners, 454 F. Supp
        4 (E.D. Va. 1978), aff'd 598 F. 2d 1345 (4th Cir 1979)............ 5
Udall v. Tallman, 380 U.S. 1 (1965) ..................................... 16
United States v. Larionoff, 431 U.S. 864 (1977) ......................... 16
                                      iii
01-07577
Younger v. Colorado State Board of Bar Examiners, 482 F.
        Supp. 1244 (D. Colo. 1980), rev'd on other grounds,
        625 F.2d 372 (10th Cir. 1980) .................................... 7
STATUTES AND REGULATIONS:
28 U.S.C. 1331 ........................................................... 6
29 U.S.C. 794 ........................................................... 18
42 U.S.C. 12101-12213 (Supp. II 1990) .................................... 1
42 U.S.C. 12102 (2) ..................................................... 16
42 U.S.C. 12202 (a) ..................................................... 18
28 C.F.R. 35, App. A (1993) ......................................... 17, 20
28 C.F.R. 35.102 (1992) ................................................. 16
28 C.F.R. 35.103(a) (1992) .............................................. 18
28 C.F.R. 35.104 (1992) ............................................. 16, 17
LEGISLATIVE MATERIALS:
H.R. Rep. No. 485, 101st Cong., 2d Sess. (1990) ..................... 18, 21
S. Rep. No. 116, 101st Cong., 1st Sess. (1989) ...................... 18, 21
MISCELLANEOUS
Stephen T. Maher and Lori Blum, Strategy for Increasing Mental
and Emotional Fitness of Bar Applicants, 23 Ind. L. Rev. 821
(1990) .................................................................. 12
                                        iv
01-07578
        I. Introduction

        This action was filed by Julie Ann Clark against the
Virginia Board of Bar Examiners under title II of the Americans
with Disabilities Act (ADA).1 Clark, an applicant to the
Virginia bar with a history of treatment for a mental health
condition, alleged that the Board violates the ADA by requiring
applicants for admission to the bar to disclose information about
their history of treatment for mental health conditions and by
subjecting applicants who admit to such treatment to additional
disclosure requirements and investigation not uniformly required
of all applicants.
        Clark's suit sought two distinct and separate forms of
relief. First, it sought an injunction requiring the Board to
grant her a license. Second, it sought an order prohibiting the
Board generally from inquiring into the mental health history of
applicants unless there is evidence that an applicant has mental
health problems which demonstrate he or she is unfit to practice
law.
        The parties filed cross motions for summary judgment. On
July 11, 1994, this Court denied plaintiff's motion, granted
defendant's motion, and dismissed the case. The Court ruled that
it lacked subject matter jurisdiction over all of plaintiff's
claims--- including those seeking to prohibit the Board from
making certain inquiries on the basis of disability. The Court
_______________
1 42 U.S.C. SS 12101-12213 (Supp. II 1990).
                                      - 1 -
01-07579
also stated that even if it did have jurisdiction, the plaintiff
had no standing to bring suit "because she is not a disabled
person within the meaning of the ADA." Opinion at 12.
        On July 25, 1994, plaintiff Clark filed a Notice and Motion
to Alter Judgment, requesting that the Court reconsider its Order
of July 11, 1994, granting summary judgment in favor of defendant
bar examiners. The United States supports plaintiff's contention
that the Court's decision of July 11 is in error and should be
reconsidered and altered.

II.     Argument

        A.      This Court Has Jurisdiction Because
                Plaintiff Clark Challenges
                General Rules And Regulations
                Governing Admission To The Bar

        In ruling that it lacked subject matter jurisdiction, the
Court correctly cited the Supreme Court's decision in District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), for
the proposition that federal courts have jurisdiction over
challenges brought against a state bar's "general rules and
regulations governing admission," but not "where review of a
state court's adjudication of a particular application is
sought." Feldman, 460 U.S. at 485 (quoting Doe v. Pringle, 550
F.2d 596, 597 (10th Cir. 1976)). The United States agrees that
the doctrine described in Feldman governs jurisdiction. The
United States disagrees, however, with the Court's application of
Feldman. Instead of limiting jurisdiction, Feldman supports it.
                                      - 2 -
01-07580
        Although the Court is correct in stating that, "[t]he Board
has no general rule or regulation that prohibits a person with a
mental disability from obtaining a license to practice law,"
Opinion at 8, the plaintiff alleges a different form of
discrimination. The violation of title II of the ADA alleged is
the Board's requirement that candidates answer Question 20(b) and
the Board's subsequent screening out of persons who answer in the
affirmative for additional burdens of disclosure and
investigation.2 Specifically, Ms. Clark is challenging the
following "general rules and regulations governing admissions" to
the Virginia Bar:
        (1) the general rule requiring applicants to answer
        Question 20(b) regarding treatment or counseling
        received in the past five years for any mental,
        emotional or nervous disorders;
        (2) the general rule requiring all applicants who
        answer yes to Question 20(b) to provide information
        about dates of treatment, name and address of
        physician, counselor, or other health care provider,
        and name, address, and telephone number of hospital or
        institution;
        (3) the general rule requiring the applicant to
        "[d]escribe completely the diagnosis, the treatment,
        and the prognosis, and provide any other relevant
        facts" regarding such mental, emotional or nervous
        disorders;
        (4) the general rule requiring applicants to sign a
        form authorizing release of all medical records,-
        including all documents or records concerning advice,
        care or treatment for any mental, emotional or nervous
        disorders; and
____________________

        2       as discussed below, these additional burdens create
distinct injuries to persons who have sought treatment for mental
disorders, regardless of whether the injured party is granted a
license to practice law.
                                     - 3 -
01-07581
        (5) the general practice of subjecting applicants who
        answer Question 20(b) in the affirmative to more
        rigorous scrutiny than other applicants, including
        additional investigation in some cases.
The fact that the plaintiff's challenge is to the general rules
and regulations of the Virginia Board is also supported by the
relief requested in her complaint:
        Wherefore, Ms. Clark seeks: ... (2) A declaration that
        the board's preliminary inquiry into the mental health
        history of bar applicants violates the ADA, (3) A
        permanent injunction barring defendants and their
        agents from inquiring into the mental health history of
        bar applicants, except when and to the extent
        occasioned by independent evidence of an applicant's
        having mental problems which fairly suggest unfitness
        to practice law.
Complaint at 7, paragraphs 2 and 3.
        To hear this claim, the Court need not review a state court
judicial decision. Plaintiff's complaint instead "asks the
district court to assess the validity of the rule promulgated in
a nonjudicial setting." Feldman, 460 U.S. at 486. Plaintiff is
requesting that the statutory validity of question 20(b) be
assessed and the defendants be barred from asking such
discriminatory questions. Because this challenge to the Board's
general rule is not "inextricably intertwined" with plaintiff's
application to the Board, Nordgren v. Hafter, 789 F.2d 334, 337
(5th Cir.) (quoting Feldman, 460 U.S. at 483 n. 16 and holding
that plaintiff's equal protection challenge to the state bar's
rule not to admit graduates of out-of-state unaccredited law
schools supported federal subject matter jurisdiction under
                                     - 4 -
01-07582
Feldman), cert. denied, 479 U.S. 850 (1986), this Court has
jurisdiction over plaintiff's claim.3
        In Ellen S. v. Florida Board of Bar Examiners, the District
Court for the Southern District of Florida recently questioned
this Court's interpretation of Feldman and its decision regarding
lack of jurisdiction over Ms. Clark's claims. The court held
that, although the facts of Ellen S. and the case at presently
bar are similar, this Court's opinion was not persuasive.
Instead, the court, citing Feldman, held that it had jurisdiction
to hear a case under title II of the ADA challenging the rules of
a state bar that are similar to those challenged in this case and
found that the plaintiffs' challenges fell within this category.4
______________________

        3       Plaintiff's complaint also requests that the Court
order the Board to grant her a license to practice law.
Complaint at 7, paragraph 1. While Feldman suggests that the
Court may not have jurisdiction over that specific claim for
relief, the Court improperly concluded that there exist no claims
for relief over which the Court may exercise jurisdiction.
The Court also cites Woodard v. Virginia Board of Bar
Examiners, 454 F. Supp. 4 (E.D. Va. 1978), aff'd, 598 F.2d 1345
(4th Cir. 1979), in support of its ruling. The plaintiff in
Woodard, however, was seeking to challenge the Virginia Board of
Bar Examiners' denial of her admission to the bar for allegedly
discriminatory reasons. In contrast, here -- as the Court itself
points out -- "the Board has made no decision on Clark's fitness
to practice law." Opinion at 8. Unlike Woodard, plaintiff's
challenge to the Board's general rules does not require this
Court to review a state court's adjudication of an applicant's
fitness for the bar.
        4       In Ellen S., the plaintiffs challenged general rules
strikingly similar to those challenged in this case.
        1) the general rule that all applicants must answer Question
        29 in order for their applications to be processed;
                                                                (continued...)
                                     - 5 -
01-07583
        Jurisdiction to review bar admission rules for statutory or
constitutional violations has also been upheld by other courts.
In Barnard v. Thorstenn, 489 U.S. 546 (1989), the two plaintiffs,
who resided in New York and New Jersey, applied for membership to
the bar of the Virgin Islands. Their applications were denied
because they failed to meet the bar's strict residency
requirements. The Court held that these residency requirements
were unconstitutional because they violated the Privileges and
Immunities Clause of the Constitution. On remand, the Third
Circuit noted that, because plaintiffs' challenge to the
generally applied residency requirement raised a federal
question, the district court had jurisdiction over the issue
under 28 U.S.C. S 1331. Thorstenn v. Barnard, 883 F.2d 217 (3rd
Cir. 1989).5
________________

        4(...continued)
        2) the general rule that law school deans and references
        will be asked about every applicant's mental health
        disability;
        3) the universal practice of requiring all applicants
        answering yes to Question 29 to waive confidentiality of
        their treatment records and history, and
        4) the universal followup inquiry of treatment professionals
        with multiple detailed questions about an applicant's
        treatment history.
Ellen S. v. Florida Board of Bar Examiners, No. 94-0429-CIV-KING,
slip op. at 14 n. 9 (S.D. Fla. Aug. 1, 1994) (order denying
defendants' motion to dismiss) (quoting Pls.' Resp. Notice of
Supplemental Authority at 2) (a copy of the opinion is attached to
this memorandum as Exhibit A).
        5       Specifically, the plaintiffs in Barnard asserted a
violation of the Constitution and a federal statute--- the
Revised Organic Act, 48 U.S.C. S 1561, which extended the
Constitution to the Virgin Islands.
                                       - 6 -
01-07584                            
        Similarly, the reasoning of the Court in Younger v. Colorado
State Board of Bar Examiners, 482 F. Supp. 1244 (D. Colo. 1980),
rev'd on other grounds, 625 F.2d 372 (10th Cir. 1980), strongly
supports plaintiff's case. In Younger, the plaintiff failed the
Colorado Bar Exam three times and was denied permission to take
the exam again. The plaintiff argued that the state's rule
prohibiting applicants from taking the bar exam more than three
times without good cause violated the Equal Protection Clause of
the Fourteenth Amendment. As in this case, the defendant state
licensing authorities argued that plaintiff's claims of
deprivations of federally protected rights could only be
considered by the United States Supreme Court on appeal from the
state court because the denial of plaintiff's application was a
judicial act of the state supreme court. The Tenth Circuit held
that, while the plaintiff was seeking individual relief, his
challenge to a generally applicable rule could be heard by the
district court. Specifically, the court noted that,
        [Plaintiff's] complaint challenges the validity of ...
        any ... limitation on the number of times an otherwise
        qualified applicant may attempt to pass the Colorado
        Bar Exam. The denial of his request for re-examination
        is the result of the application of that rule....
        Accordingly, the plaintiff here is not seeking a review
        of the judicial determination made as to his
        application; he is contesting the Court's
        administrative act in adopting a rule limiting the
        opportunity for re-examination.
Id. at 1246. Similarly, Ms. Clark's challenge to the Board's
inquiries does not seek review of the Board's determination of
her fitness to practice law; indeed, as the Court recognizes, the
Board has never made such a determination. Therefore, although
                                     - 7 -
01-07585
the Court may lack "jurisdiction to interfere in the Board's
proceedings to determine Clark's fitness to practice law,"
Opinion at 9, it does have jurisdiction to address the alleged
discriminatory rules being challenged by the plaintiff prior to
any judicial determination of her fitness to practice law.6

        B.      This Case Should Not Be Dismissed
                For Lack Of Standing

        In addition to improperly finding no subject matter
jurisdiction over Ms. Clark's claims, this Court also held that
she did not have a disability, as defined under title II of the
ADA. Implicit within this holding is the Court's belief that Ms.
Clark must actually have a disability in order to have standing
to sue. Both the Court's holding and the premise upon which it
is based are incorrect. Anyone forced to respond to the Board's
inquiries about treatment for mental health conditions has
standing to bring this case, regardless of whether they actually
_________________________

        6       This distinction between general and "applicant-
specific" challenges has also been used in other cases to
establish subject matter jurisdiction over the review of state
bar rules. Rosenfeld v. Clark, 586 F. Supp. 1332, 1336 (D. Vt.
1984) (citing Feldman for the holding that a district court had
subject matter jurisdiction for reviewing alleged improprieties
in the appeal process for bar admissions, although it lacked
jurisdiction to review the merits of the Board's decision);
Bailey v. Board of Law Examiners, 508 F. Supp. 106, 108 (W.D.
Tex. 1980) (quoting Brown v. Board of Examiners, 623 F.2d 605,
609-10 (9th Cir. 1980) for the proposition that, although the
district court did not have jurisdiction to review decisions by
bar examiners on the plaintiff's test results, it did have
jurisdiction to determine whether "generally applicable rules and
procedures for admission to the Bar impinge upon constitutionally
protected rights").
                                      - 8 -
01-07586
have a disability. Furthermore, Ms. Clark's evidence clearly
supports her claim that she has a disability.

                1.      Ms. Clark Has Standing To Sue
                        Even If She Does Not Have A Disability

        Anyone who responds affirmatively to the Board's inquiries
about a history of treatment for mental health conditions must
provide detailed information about such treatment, authorize
release of their private medical records, and be subjected to
greater scrutiny than other applicants.
        In order to determine whether a party has standing, a court
must examine constitutional and prudential considerations. Warth
v. Seldin, 422 U.S. 490 (1975). At an "irreducible
constitutional minimum," plaintiffs must show three elements.
First, the plaintiff must have suffered an injury in fact, which
is (a) concrete and particularized and (b) actual or imminent.
Second, the injury must be traceable to the alleged unlawful
conduct. Third, it must be likely that the injury will be
redressed by a favorable decision. Lujan v. Defenders of
Wildlife, 112 S.Ct 2130, 2136; Chesapeake and Potomac Telephone
Company of Virginia v. United States, 830 F. Supp. 909, 916 (E.D.
Va. 1993). Prudential considerations related to standing are (1)
whether the asserted harm is particular to the plaintiff, rather
than a generalized grievance shared by all or a large class of
citizens and (2) whether plaintiffs are asserting their own
rights or interests and not those of third parties. Warth, 422
U.S. at 499; Hoffman v. Hunt, 845 F. Supp. 340 (W.D.N.C. 1994).
                                     - 9 -
01-07587
        Plaintiff has met the constitutional requirements for
standing. She has suffered an injury in fact traceable to the
defendants' inquiries because the additional burdens placed on
applicants who answer question 20(b) affirmatively are
substantial. In a similar case, Medical Society of New Jersey v.
Jacobs, the court found that investigations into the mental
health history of an applicant for a medical license constituted
"invidious discrimination under title II regulations" because of
the additional burden placed on those applicants. Medical
Society of New Jersey v. Jacobs, 1993 WL 413016, *7-8 (D.N.J.
Oct. 5, 1993). The court in Ellen S., citing Jacobs, also held
that inquiries into the applicants' mental health histories
placed additional burdens on the applicants. Ellen S., at 10.
The court also found that the title II regulation makes clear
that the question on the Florida Bar application asking about
past mental health treatment in itself, as well as the subsequent
investigations, "discriminate against plaintiffs by subjecting
them to additional burdens based on their disability." Id. at
10.7
_______________________

        7       In Jacobs, the court held that the questions themselves
were not discriminatory, but, in the context of the background
investigations, were used "as a screening out device to decide on
whom the Board will place additional burdens." Jacobs at * 7.
The court in Ellen S. broadened the Jacobs ruling and held that
the questions themselves were discriminatory because they
automatically triggered subsequent questions and possible
subsequent possible investigation. Ellen S., at 10 n. 7.
                Similarly, in this case, an affirmative answer to
question 20(b) is discriminatory because it automatically
triggers additional questions and possible investigations.
                                     - 10 -
01-07588
        The Board's inquiry is burdensome and invasive not only
because it requires persons who answer the question in the
affirmative to provide detailed information, but because it also
requires them to disclose details about what is arguably the most
private part of human existence -- a person's inner mental and
emotional state. Of potentially even more harm is the Board's
attempt to obtain information about the person's fitness from
other individuals; the Board's investigators may potentially
engage in a full-fledged exploration of an applicant's condition
with the person's physicians, counselors, colleagues, and
associates and may ask questions regarding the person's diagnosis
or treatment for mental, emotional or nervous disorders. It is
not difficult to imagine the attendant potential damage to an
individual's reputation.
        The inquiries are also injurious because of the stigma which
still attaches to treatment for mental or emotional illness. The
Supreme Court has recognized that individuals have a substantial
liberty interest under the Due Process Clause of the Constitution
in avoiding the social stigma of being known to have been treated
for a mental illness. Parham v. J.R., 442 U.S. 584, 600 (1979);
Addington v. Texas, 441 U.S. 418, 426 (1979); 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
                                     - 11 -
01-07589
contrary, this enlightened view is not always observed in
practice").8
        Plaintiff's injury, which also includes the imminent denial
of her bar application, may be redressed by the relief sought.9
Invalidating question 20(b) would allow Ms. Clark to continue in
________________________

        8       In addition, the Board's inquiries into a person's
mental health treatment can have a more insidious discriminatory
effect. Concern over the Board's inquiries about diagnosis and
treatment for mental illness or substance dependency may deter
law students or other applicants to the bar from seeking
counseling for mental or emotional problems. In re Petition of
Frickey, No. C5-84-2139 (Minn. Apr. 28, 1994) (Minnesota Supreme
Court ordering deletion of questions regarding mental health
history from bar admissions application on grounds that the
questions deterred law students from seeking needed counseling);
see Stephen T. Maher and Lori Blum, A Strategy for Increasing the
Mental and Emotional Fitness of Bar Applicants, 23 Ind. L. Rev.
821, 830-33 (1990) (detailed discussion of how such inquiries have
deterrent effect). 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 id. at 824, 833-46. Thus,
rather than improving the quality of the character and fitness of
members of the bar, the Board's inquiries may have the perverse
effect of deterring those who could benefit from treatment from
obtaining it, while penalizing those who enhance their ability to
practice law by seeking counseling.
        9       Aside from plaintiff's refusal to respond to question
20(b) and to cooperate with the consequent investigations into
her mental health history, defendants have raised no other
impediment to her admission to the bar. However, the possibility
that plaintiff's application may be denied on other grounds does
not diminish her standing here. It is not essential that the
challenged question be the sole obstacle to plaintiffs' ultimate
goal. Arlington Heights v. Metropolis Housing Development Corp.,
429 U.S. 252, 261 (plaintiff had standing where challenged
statute was "absolute barrier" to end goal, despite the fact that
invalidation of the statute would not guarantee achievement of
that goal); See also Chesapeake and Potomac Telephone Co. of
Virginia v. United States, 830 F. Supp. at 916 (standing found
where invalidation of statute in question would simply allow
plaintiff to pursue regulatory approval of cable franchise on
same footing as other applicants).
                                      - 12 -
01-07590
the bar application process, undistinguished from other
applicants who have not sought mental health treatment in the
past. It would relieve her of the additional burdens of
investigation and would remove the mental illness stigma from the
bar application.
        In addition to the basic constitutional requirements for
standing, plaintiff has also satisfied the necessary prudential
considerations. The burdens and attendant stigma described
above, are particular to the plaintiff and the limited class of
people who have sought previous mental health treatment.
Question 20(b) is designed to screen out a relatively small class
of individuals for different treatment, leaving the larger,
generalized class of bar applicants unaffected.
        Finally, in determining standing, courts should also look
into the policy underlying the statute to determine the scope of
the statute's zone of interest. Nasser v. City of Homewood, 671
F.2d 434 (11th Cir. 1982). As with other civil rights statutes,
standing under the ADA should be interpreted as broadly as
permissible under the Constitution. In Trafficante v.
Metropolitan Life Ins. Co., 409 U.S. 205 (1972), a white
plaintiff alleged that he was injured by his landlord's racial
discrimination against prospective minority tenants. Although
the plaintiff was not directly a victim of the landlord's
discrimination, the Court held that section 810 of the Civil
Rights Act of 1968 (Fair Housing Act) should be broadly construed
as a civil rights act to provide plaintiff with standing. The
                                      - 13 -
01-07591
Court went on to hold that the plaintiff had standing because he
was denied the opportunity for interracial association. See also
Gladstone Realtors v. Village of Bellwood, 441 U.S. 91 (1979).10
        Similarly, in this case, Ms. Clark is being injured by
discriminatory conduct that the ADA statute was intended to
prevent. Even if the plaintiff did not have a disability, she
still faces discrimination and is injured by the Board's
intrusive inquiries. These injuries are indistinguishable from
the types of injuries encountered by other persons whose mental
impairments are severe enough to qualify them as persons with
disabilities under title II. Any applicant who answers question
20(b) affirmatively, regardless of whether that person has a
disability, is within the zone of interest of the ADA's
protection and shares "common bonds" with the statute's intended
protected class. Branch Bank and Trust Co. v. National Credit
Union Admin. Bd., 786 F.2d 621 (4th Cir. 1986) (denying standing
to a plaintiff whose interests were the opposite of those
Congress was trying to protect), cert. denied, 479 U.S. 1063
(1987).11 In particular, bar applicants who do not have a
disability, but who sought mental health treatment in the past,
____________________

        10      Under the ADA as under the Fair Housing Act, suits by
"private attorney generals" are critical to successful
enforcement of the law where federal enforcement resources are
limited. Trafficante, 409 U.S. at 211 (fewer than 24 attorneys
dedicated to Fair Housing Act enforcement). The Department of
Justice currently has 20 attorneys responsible for ADA
litigation.
        11      See also Clarke v. Securities Industry Ass'n, 479 U.S.
388 (1987), denying zone of interest and standing because
plaintiff had goals contrary to those Congress sought to protect.
                                     - 14 -
01-07592
may share the common goal of ridding the bar application process
of inquiries into mental health status. Such an applicant,
therefore, may be considered to be within the same zone of
interest as someone with a mental disability. Therefore, Ms.
Clark has standing to sue regardless of whether she has a
disability.

                2.      This Court Incorrectly Concluded
                        That Ms. Clark Is Not A
                        Person With A Disability

        This Court erroneously concluded that plaintiff is not a
person with a disability. The Court concluded that plaintiff's
mental impairments did not substantially limit a major life
activity and that the Board did not regard her as having a
disability.12
        Title II of the ADA and its implementing regulation define
the term "disability" as:
        (A)     a physical or mental impairment that substantially
                limits one or more major life activities...
_______________________

        12      The United States agrees with plaintiff's contention
that summary judgment in this case is premature. Obviously,
there are genuine issues of material fact essential to the
determination of the plaintiff's status as a person with a
disability under the ADA. As the plaintiff asserts in her Notice
and Motion to Alter Judgment, summary judgment is appropriate
only where there is "no disagreement as to the interferences which
may be drawn from the undisputed facts." Federal Sav. and Loan
Ins. Corp. v. Heidrick, 774 F. Supp. 352, 356 (D. Md.
1991)(quoting Steinberg v. Elkins, 470 F. Supp. 1024, 1030 (D.
Md. 1979)). Further, dispute over facts or inferences of facts
must be resolved in favor of the non-moving party if there are
any "reasonable doubts" concerning their existence. Boyett
Coffee Co. v. United States, 775 F. Supp 1001, 1002 (W.D. Tex
1991).
                                     - 15 -
01-07593
        (B)     a record of such impairment; or
        (C)     being regarded as having such an impairment.
42 U.S.C. S 12102 (2); 28 C.F.R. S 35.102 (1992). The title II
regulation provides that a "physical or mental impairment"
includes [a]ny mental or psychological disorder such
as...emotional or mental illness...." 28 C.F.R. S 35.104 (1992)
(emphasis added).13 The record raises triable issues under both
the second and third prongs of the ADA's definition of
disability.
_________________________

        13      These regulations, which were published by United
States Department of Justice, should be given substantial
deference by the Court. Where, as here, Congress expressly
delegates authority to an agency to issue legislative
regulations, 42 U.S.C. S 12134, the regulations, "are given
controlling weight unless they are arbitrary, capricious, or
manifestly contrary to the statute." Chevron, U.S., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 844
(1984). See also Petersen v. University of Wis. Bd. 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 of 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).
                                     - 16 -
01-07594
                a.      The Evidence Supports Ms. Clark's
                        Claim That She Has A Record of a
                        Disability

        Plaintiff Clark had been diagnosed as having recurrent major
depression. The Court acknowledged that this condition
manifested itself in her losing "much of [her] ability to
concentrate, act decisively, sleep correctly, orient [her]self,
and maintain ordinary social relationships" over a period lasting
approximately thirteen months. Opinion at 2. Nevertheless, the
Court concluded that, because this diagnosed impairment did not
substantially impair plaintiff Clark's ability to perform a major
life function, she did not qualify as a person with a disability
under the ADA.
        The evidence before this Court, however, supports
plaintiff's claim that she had a mental impairment that
substantially limited a major life activity. Ms. Clark had been
diagnosed with "major depression, recurrent," which lasted for
thirteen months. Because mental impairments are intended to
broadly encompass many conditions and diagnoses, her condition
may well fall within the scope of the ADA's coverage.
        These impairments may substantially limit one or more of Ms.
Clark's "major life activities." The title II regulation
describes major life activities as functions "such as caring for
one's self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working." 28 C.F.R. S 35.104
                                     - 17 -
01-07595
(emphasis added).14 This list of major life activities is not
intended to be exhaustive, but to instead provide examples of
major life activities. The activities affected by Ms. Clark's
disability are within the scope of the term "major life
activities," as defined under the ADA and under Section 504 of
the Rehabilitation Act of 1973 ("Section 504").15 At a minimum,
sleeping and maintaining ordinary social relationships are major
________________________

        14      The use of the term "such as" in the regulation
reflects Congressional intent not to provide an exhaustive list.
The regulation utilizes verbatim the language used in the Senate
and House Committee reports regarding the definition of a major
life activity. See H.R. Rep. No. 485, 101st Cong., 2d Sess., pt.
II at 52 (1990) [hereinafter cited as Education and Labor
Report]; S. Rep. No. 116, 101st Cong., 1st Sess. at 23
(1989)[hereinafter cited as Senate Report].
                The Department's interpretive guidance accompanying the
regulation further supports this interpretation by stating
generally that a person satisfies the definition of disability
"when the individual's important life activities are restricted
as to the conditions, manner, or duration under which they can be
performed in comparison to most people." 28 C.F.R. pt. 35, App.
A, at 445 (1993).
        15      Section 504 of the Rehabilitation Act of 1973, 29
U.S.C. S 794, prohibits discrimination against individuals with
handicaps in federal programs and in programs receiving federal
financial assistance. In the ADA, Congress adopted a definition
of "disability" that is essentially identical to the Section 504
definition of "handicap." Moreover, the ADA statute, legislative
history, and Department of Justice regulations clearly indicate
that title II of the ADA is intended to provide protections that
are at least as broad those available under the Rehabilitation
Act and its implementing regulations. See 42 U.S.C. S 12202(a);
Education and Labor Report at 84; 28 C.F.R. S 35.103(a) (1992).
See also Doe v. New York University, 666 F.2d 761, 775 (2nd Cir.
1981) (discussing the "wide scope" of the definition of
disability under Section 504, and concluding that the legislative
history indicated that "the definition is not be construed in a
niggardly fashion.") (citing S.Rep. No. 93-1297, 93 Cong., 2d
Sess. (1974)).
                                     - 18 -
01-07596
life activities similar to the types of activities listed as
examples in the regulation.
        Courts have similarly construed the scope of major life
activity not to be limited to the list of examples. In Perez v.
Philadelphia Housing Authority, the court held that the plaintiff
was a "handicapped" individual within the coverage of the
Rehabilitation Act because the pain from her injury "not only
affected her ability to work but also her ability to walk, sit,
stand, drive, care for her home and child, and engage in leisure
pastimes." Perez v. Philadelphia Housing Authority, 677 F. Supp.
357, 360 (E.D. Pa., 1987), aff'd 841 F.2d 1120 (3rd Cir. 1988);
see also, Doe v. New York University, 666 F.2d 761 (2d Cir.
1981)(the ability to handle situations presented by plaintiff's
work environment constituted major life activity).
        Individuals eligible for the protection of the ADA do not
have to demonstrate an absolute inability to work or to lead a
successful life in order to prove themselves individuals with
disabilities. Ms. Clark's successful completion of law school
and her career performance do not automatically disqualify her
from being an individual with a disability.
        The Court also erred in equating Ms. Clark's condition to
symptoms encountered by a large portion of law students without
undertaking the kind of individualized assessment contemplated by
the ADA, which requires that disability be evaluated on a case-
by-case basis. Indeed the Fourth Circuit has found -- in a case
cited in this Court's Opinion -- that this "definitional task
                                     - 19 -
01-07597
cannot be accomplished merely through abstract lists and
categories of impairments." Forrisi v. Bowen, 794 F.2d 931, 932
(4th Cir. 1986) (stating that the determination of handicapped
status under Section 504 should be made on a case-by-case basis);
Perez v. Philadelphia Housing Authority, 677 F. Supp. at 360
(court noting that a case-by-case approach is essential to
determining an individual's disability status). In holding that
Ms. Clark's depression does not amount to a disability for ADA
purposes without the benefit of additional information or
discovery by the parties, the Court contravenes this mandate of
case-by-case assessment. Without the facts that will be revealed
through discovery, the Court is not able to accurately assess the
severity of Ms. Clark's symptoms and their effect on her life.
Instead, the Court equates her condition with symptoms of
depression common to many law students.16 Ms. Clark, however,
was diagnosed with "major depression, recurrent," a disorder
classified in the American Psychiatric Association Diagnostic and
____________________

        16      The studies cited by the defendants that state that a
large percentage of law students suffer from "significantly
elevated depression levels," and "significant depression
symptoms," are not pertinent to this case. Defendant's Ex. C, p.
46-47.
                As the Department's regulation makes clear, however, a
person may have a disability while also displaying symptoms or
traits that are relatively common. 28 C.F.R. pt. 35, App. A, at
445 (1993). The fact that a significant number of law students
display symptoms of elevated depression does not mean that they
automatically become persons with disabilities under the ADA.
Conversely, the fact that many law students have elevated
symptoms of depression does not automatically mean that Ms.
Clark's condition cannot qualify her as a person with a
disability.
                                     - 20 -
01-07598
Statistical Manual of Mental Disorders III-R.17 The plaintiff's
condition did not involve merely minor, transient, or commonplace
inconveniences. As discussed above, these mental impairments may
have substantially limited her ability to perform several basic
life activities. Such evidence raises issues of triable fact as
to whether Ms. Clark has a record of being an individual with a
disability under the ADA. Therefore, the granting of summary
judgment to the defendants was in error.18
_______________________

        17      In Guice-Mills v. Derwinski, the court held that "a
major depressive episode as described in the American Psychiatric
Association Diagnostic and Statistical Manual of Mental Disorders
III-R constitutes a 'mental impairment' within the purview of
[the Rehabilitation Act]." Guice-Mills v. Derwinski, 772 F.
Supp. 188, 197 (S.D.N.Y. 1991). The American Psychiatric
Association Diagnostic and Statistical Manual of Mental Disorders
III-R classifies Major Depression, Single Episode (DSM-III
296.2x) and Major Depression, Recurrent (DSM-III 296.3x) as
depressive disorders differentiated only by the frequency of
their occurrence.
        18      It should also be noted that the legislative history of
the ADA also reveals Congress's intent that the law extend
particular protection to individuals with a record of mental or
emotional illness. The legislative history states that the
second prong of the definition of disability was included in the
law,
                in part to protect individuals who have
                recovered from a physical or mental
                impairment which previously substantially
                limited them in a major life activity.
                Discrimination on the basis of such a past
                impairment would be prohibited under this
                legislation. Frequently occurring examples
                of [this] group...are persons with histories
                of mental or emotional illness...
Education and Labor Report at 52; Senate Report at 23 (emphasis
added).
                                     - 21 -
01-07599
                b.      The Record Supports The Conclusion That
                        The Board Regards Ms. Clark As Disabled

        This Court also concluded that the Board did not regard the
plaintiff as being disabled, stating that, "[i]f the defendants
regarded Julie Ann Clark as disabled and unable to practice law,
they would have denied her application." Opinion at 12.19 We
believe that, by singling out persons with histories of treatment
for mental, emotional, or nervous disorders and subjecting them
to special review and possible denial of professional licensure,
the Board indeed is regarding such persons as having disabilities
and discriminating against them on that basis. Ellen S. at 9-10.
As discussed above, these inquiries into mental health treatment
pose serious threats to an applicant's privacy and reputation.
While the Board never made a determination of plaintiff Clark's
fitness to practice law, it does subject her to the additional
burdens and inquiries on the basis of her mental condition and
not on any behavior or conduct suggesting an inability to
practice law. As such, the Board's practice reflects exactly the
sort of prejudices and stereotypes that the ADA was designed to
combat.20
______________________

        19      As the Ellen S. court recognized, however, a licensing
board, "can discriminate against qualified disabled applicants by
placing additional burdens on them and this discrimination can
occur even if these applicants are subsequently granted licenses
to practice law." Ellen S. at 10.
        20      The ADA does not prevent the Board from disqualifying
applicants on the more relevant basis of behavior that reflects
their ability to practice law, even if the behavior results from
a mental impairment.
                                     - 22 -
01-07600
        Due to misconceptions concerning individuals who have sought
mental health treatment, such persons are often regarded as
emotionally disabled or mentally ill although their past and/or
current capability or stability might not be affected. As the
Supreme Court observed in School Board of Nassau County v.
Arline, 480 U.S. 273, 284 (1987), in enacting the "regarded as"
provision of the definition of handicap under the Rehabilitation
Act (a similar definition to a person with a disability under
title II of the ADA), Congress "acknowledged that society's
accumulated myths and fears about disability...are as
handicapping as are the physical limitations that flow from
actual impairment." Here, the defendant's broad inquiries on the
bar application form into the applicant's mental health history
reflect an assumption that past diagnosis of or treatment for
mental or emotional conditions renders the applicant more likely
than other candidates to be substantially impaired in his or her
ability to perform as a lawyer. Accordingly, granting summary
judgment in favor of the defendants was in error.
                                      - 23 -
01-07601
        III. Conclusion

        This Court should vacate its Order Granting Defendant's
Motion for Summary Judgment.

Dated:  Washington, D.C.
        August 9, 1994

                                Respectfully submitted,



                                DEVAL L. PATRICK
                                Assistant Attorney
                                   General
                                Civil Rights Division




                                By:
                                JOHN L. WODATCH
                                JOAN A. MAGAGNA
                                SHEILA K. DELANEY (Va. Bar No. 13757)
                                SHEILA M. FORAN
                                KEN S. NAKATA
                                Attorneys
                                U.S. Department of Justice
                                Civil Rights Division
                                Public Access Section
                                P.O. Box 66738
                                Washington, D.C. 20035-6738
                                Tel: (202) 307-6309
                                     - 24 -
01-07602
                            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 in Support of Plaintiff's Notice and Motion to Alter
Judgment.

                Victor M. Glasberg, Esq.
                Victor M. Glasberg & Associates
                121 S. Columbus Street
                Alexandria, VA 22314

                Peter R. Messitt
                Assistant Attorney General
                Office of the Attorney General
                101 North Eighth Street
                Richmond, VA 23219

        SO CERTIFIED this 9th day of August, 1994.

                                KEN S. NAKATA
                                Trial Attorney
                                United States Department of Justice
                                Civil Rights Division
                                Public Access Section
                                P.O. Box 66738
                                Washington, D.C. 20035-6738
                                (202) 307-2232
01-07603