ILNews

Federal judge: 1 bar exam application question goes too far

Back to TopCommentsE-mailPrint

A federal judge has found that one of the Indiana bar exam application questions violates the Americans with Disabilities Act because it infringes on potential lawyers’ privacy rights.

But at the same time she struck down that one question in its current form, U.S. Judge Tanya Walton Pratt upheld three other inquiries about mental health and determined the Indiana Board of Law Examiners has the right to make those inquiries of people who want to practice law within the state.

The Southern District of Indiana judge released a 23-page ruling late Tuesday in ACLU-Indiana – Indiana University School of Law – Indianapolis Chapter, and Amanda Perdue, et al. v. The Individual Members of the Indiana State Board of Law Examiners, No. 1:09-CV-0842, granting and denying summary judgment motions from both sides less than a month after she heard arguments in the case.

The two-year-old class-action suit boils down to accusations that certain questions on the state’s bar exam application violate the ADA because those inquiries treat certain applicants differently based on their mental health history. By answering affirmatively on any of the specific questions at issue in this case, applicants are required to fill out a different form that sparks a more individualized review by the Judges and Lawyers Assistance Program.

Plaintiffs are students at Indiana University School of Law – Indianapolis who feel the questions are too intrusive, as well as a 2007 Valparaiso University School of Law graduate who lives in Indiana and wants to become a lawyer in her home state after practicing at a prestigious Chicago law firm.

Plaintiffs focus on four specific questions that they contend are too broad and go beyond what the state should be asking. The BLE argues that by simply asking these questions, the state is doing nothing wrong and not treating individuals differently; rather the process is gathering more information to determine if a potential concern exists that might impact a person’s ability to practice law.

In her ruling, Judge Pratt began by noting the important context of the case: how mental illness is pervasive in society, disproportionally affects lawyers, and how a social stigma does exist for those dealing with these issues. She looked at Questions 22-25 and asked whether those queries go too far.

Judge Pratt found specifically that Questions 22, 24, and 25 – all delving into specific medical history, mental and psychological conditions, and issues that might impact one’s current practice of law – do not violate the ADA and are permitted. The BLE presented sound evidence and background for asking those questions, she ruled.

But describing Question 23 as quite possibly the most expansive bar application question in the country, Judge Pratt found the state’s BLE violates the ADA by asking bar applicants to disclose any mental, emotional, or nervous disorders they might have had from age 16 to the present.

She cited statistics that only 17 of the 94 applicants who answered that question affirmatively in 2009 were referred to JLAP – showing that the inquiry produces false positives and that the time period in the question is arbitrary and not designed to capture “direct threats” to the state’s bar. The judge also determined that any information produced from that question can still be obtained from the other three questions.

“Perhaps no set of bar application questions could strike the perfect balance between detecting problematic bar applicants and respecting applicants’ privacy,” Judge Pratt wrote, noting that these types of reviews will also lead to some false positives and negatives in flagging problematic applicants. “While the Board has no doubt endeavored to strike the right balance, in the Court’s view, Question 23 simply goes too far and strays outside of the parameters of the ADA.”

Judge Pratt suggested in a footnote that a narrower version of that broad question might comply with the ADA, but she said the court’s job is to determine the lawfulness of that question as it’s written now and not to reformulate an inquiry that might comply.

Attorneys disagreed about what triggers an “injury” under Title II of the ADA, and Judge Pratt sided with the plaintiffs in making a determination that they are treated differently simply by answering questions about their mental health. She also found the American Civil Liberties Union of Indiana has standing to sue because it represents the interests of those who might take the bar exam in the future.

The lawyers have seven days to notify the court if they think the final judgment is appropriate, and if they agree then they’ll need to submit a mutually agreeable proposed final judgment on resolving the case.
 

ADVERTISEMENT

  • lawyers and drugs
    Personally i feel that attorneys should have to take a.drug test Rule.1.15 talks alot in the conduct of attorneys and how.the interest and final" voice of.a clients case rest with the client.yet how many attorneys are forcing,threatening to withdraw if you dont take some money and run?a million iof them.how many attorneys(lawyer word isnt real) come to depositions looking drugged.?a ton.ever call.a attorney and hear him/her slur? Maybe a aderol for focus today!point is some conduct of attorneys are.so "intentionally"-recklessly unprofessional,ontop of laws made by attorneys and legislature that insulates attorneys in fraud so deep that the maybe a "look/screening into their ability and competence to practce law is of vital importance to.soceity and public policy see holstein vs grossman sheldon vs people usa,see american ins vs statefarm.simple mistakes.costing a man freedom is no walk in the park Attorneys are.a."bullying neccessary evil.
  • Will the ACLU go on record
    Jane, will you review my appellate briefing and go on record here as to whether my rights were violated? The federal complaint is a verified affidavit, so their is the sworn testimony of an attorney in evidence. Details at www.archangelinstitute.org My money is on you ignoring this since I am a pro-life conservative and thus one who the "progressives" do want banned from the bar.
    • a just result but question of priorities
      Perhaps the ACLU places civil rights statutory entitlements ahead of constitutional freedoms at lest where its litigation agenda is concernead. You may think it asinine, perhaps it is, but it is my opinion of what they do. I am sorry that you are so angered by my opinion!

      Another example of this is where they have decided to support hate crime enhancements which penalize ideas rather than conduct. A person who utters a hateful word of a certain category while comitting a crime now can get a heavier sentence than someone who commits the same crime and doesnt utter the same naughty word. This is an example of ACLU coming down on the side of UNFREE speech.

      Here the issue is different, doesnt really concern speech at all, but professional licensing, and a choice of the ACLU to use its resources a certain way. That way is in the defense of a statutory entitlement.

      Personally, I agree with the notion that the bar questions about mental illness are too invasive of privacy and are really unnecessary, so if the ACLU is successful in this result, I think it will obtain a just result. I think these intrusive questions about common mental illness problems like depression and anxiety have no sginficant bearign on fitness to practice law and really will tend to discourage people with such garden variety problems from applying to law practice. That would be unfortunate. And worse yet they will hide their problems and not seek treatment. So I concur in the justice of this. Nevertheless, I think perhaps the ACLU misbrands itself in its fundraising when it presents as the foremost defender of free speech.

      Thanks Jane for your comments, what an interesting issue and converstation!
      • Poor judgment
        I sincerely hope you are not an attorney because your comment shows poor judgment and a general lack of ability to reason logically (or recognize the issue). Your contention that the ACLU is choosing to advocate rights under the ADA over or instead of free speech rights is asinine. Also, the 8% of Americans age 18-25 who have a serious mental illness (as defined by NIMH) would disagree that the ACLU should not "bother with this." If you researched the issue (and the ACLU has) you would find that the legality of similar questions on bar applications in other states is being litigated in almost every circuit.
        • JLAP nailed me to a cross
          The ACLU has shown no interest in my appeal now pending before CCA7. Oral argument has been set for Oct 20. JLAP stands in the docket, accused of being used as a tool against a politically incorrect (ie Magistrerium affirming Catholic.) Briefing at www.archangelinstitute.org
        • aclu hypocrites
          Why doesnt the ACLU get interested in the people who are being screened out for their politically incorrect beliefs ("character and fitness") ("ethical violations") instead of bothering with this? I can see the aclu is more concerned about "protecting people with disabilities" more so than "protecting free speech." Funny thing considering free speech is in the bill of rights and disability protection is a statutory matter. Oh I forgot-- the ACLU probably WANTS people with politically incorrect beliefs to be screend out anyways. Sad day for America when the law practice is more accomodating to people with disabilities than it is to people with impolitic political views.

          Post a comment to this story

          COMMENTS POLICY
          We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
           
          You are legally responsible for what you post and your anonymity is not guaranteed.
           
          Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
           
          No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
           
          We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
           

          Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

          Sponsored by

          facebook - twitter on Facebook & Twitter

          Indiana State Bar Association

          Indianapolis Bar Association

          Evansville Bar Association

          Allen County Bar Association

          Indiana Lawyer on Facebook

          facebook
          ADVERTISEMENT
          Subscribe to Indiana Lawyer
          1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

          2. This guy sounds like the classic molester/manipulator.

          3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

          4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

          5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

          ADVERTISEMENT