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Federal judge: 1 bar exam application question goes too far

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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.
 

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  • 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.

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          1. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

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          4. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

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