Judge hears arguments on bar exam application suit

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How far the Indiana Board of Law Examiners can go in asking potential lawyers about their mental-health history was the subject of a federal court hearing Wednesday, where attorneys explored the scope of the Americans with Disabilities Act and what might be reasonable in determining someone’s potential fitness to practice law.

Attorneys for the American Civil Liberties Union of Indiana and the state’s BLE both appeared before U.S. Judge Tanya Walton Pratt in Indianapolis in the case of Amanda Perdue, et al. v. The Individual Members of the Indiana State Board of Law Examiners, No. 1:09-CV-0842. 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.

The plaintiffs are an Indiana woman who is admitted to practice in Illinois but wants to practice in her home state, as well as the student ACLU chapter at Indiana University School of Law – Indianapolis where some law students say the could be impacted by the controversial questions.

This hearing had been continued from earlier in the summer, and Judge Pratt is determining whether to grant summary judgment for either side or if the case should proceed.

On one side, the plaintiffs focus on four specific questions that they contend are too broad and go beyond what the state should be asking about mental-health history as far as their childhood when only their current states should be considered in the context of conduct and character in practicing law. But 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.

Attorneys on each side disagree about key points in the case, from what the evidence proves about bar exam applicants’ impact from these types of questions to how the ADA sections apply or don’t allow the questions, and even whether someone can be injured simply by an entity asking about his or her mental illness. The lawyers also disagree on what caselaw from courts nationwide have decided on these issues.

“These questions go way too far and are invalid in all situations,” said the ACLU of Indiana’s legal director Ken Falk. “No jurisdiction in America has temporally open questions like these that Indiana demands answered by those who want to take the exam. And there is no case anywhere that upholds questions as broad and intrusive as this, and multiple ones that strike them down.”

Tony Overholt with Frost Brown Todd represents the BLE and told the judge that Title II of the ADA, which governs public agencies on these issues, allows the mental-health questions to be asked. Although Title I puts limitations on what can be asked by employers and doesn’t allow criteria or different procedures for those who might be disabled, Overholt said Title II doesn’t contain those same restrictions and only prohibits any specific discrimination based on a person’s disability. That is not happening here, he said.

Plaintiffs are mistaken in trying to claim that an actual injury occurs because of the questions being asked, and that only a flat-out rejection of someone who answers affirmatively on those questions would be an ADA violation, he said. Once a potential lawyer answers a question affirmatively, that person fills out a separate form detailing his or her mental-health history so that the BLE can do an individualized-assessment to determine if any possible concern is warranted.

No one has been denied application because of answering the question affirmatively, although the ACLU has included discovery showing that some applicants withdrew their names or didn’t take the bar exam as a result of these questions being asked. The lawyers on the case disagree about what the discovery shows – one side says it proves the questions are ADA violations because it’s restricting, while the other side contends it shows there’s a need to ask them and it’s not rejecting anyone based on their answers.

They disagree on what triggers an “injury” under the ADA, and they have different views on what’s considered reasonable and appropriate questions.

“Unless we categorically deny people based on their disability, we aren’t violating the ADA,” Overholt said. “When someone answers affirmatively, we do what the ADA tells us to and conduct an individualized assessment. No one is treating them as having a disability, we’re just seeking information and starting an interactive dialogue on this.”

Falk said that argument ignores the injury and belittles those who’ve experienced these “scary and demoralizing” mental-health issues and what they must go through just by disclosing these circumstances from their past.

“It is a big deal, and it’s not allowed by the ADA,” he said.

The ACLU wants the judge to declare that these questions violate the ADA, enjoin them from being asked on applications, and leave it open for the BLE to craft more narrow questions based on the various templates that exist nationwide. The state is arguing for summary judgment on the basis that these questions are necessary and reasonable.

Judge Pratt told the attorneys to expect a ruling on the summary judgment motions by the end of September. The previously-scheduled trial dates for November have been vacated.



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  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

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  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.