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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. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

          2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

          3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

          4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

          5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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