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Judge: query 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.

U.S. Judge Tanya Walton Pratt upheld three other questions 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 Sept. 20, less than a month after she heard arguments in the two-year-old case.

The lawsuit boils down to accusations that four 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 those specific questions, applicants are required to fill out a different form that sparks a more individualized review by the BLE and Judges and Lawyers Assistance Program.

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

The BLE argued that by simply asking these questions, the state is doing nothing wrong and is 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 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.

In her ruling, Judge Pratt began by noting the important context of the case: how mental illness is pervasive in society, disproportionally affects lawyers nearly at four times the rate of the general public, and how a social stigma does exist for those dealing with these issues. She looked at Questions 22 through 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 and mental and psychological conditions 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 have had from age 16 to the present.

The judge found the question is too open-ended, and could be confusing to bar applicants – such as a 1L who might have to disclose that he or she sought counseling to help relax because of one-time anxiety about an upcoming exam. She cited statistics that only 17 of the 94 applicants who answered Question 23 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 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.”

American Civil Liberties Union of Indiana legal director Ken Falk said he isn’t sure what comes next, but he’s pleased the court acknowledged Question 23 was too broad because that impacted the most applicants. Indianapolis attorney Jon Laramore, who chairs the BLE, said the judge’s ruling fits with mainstream caselaw that’s been established in about a dozen jurisdictions nationwide on this topic. The state might remove that question and determine how other questions could be revised to be a little more specific, he said.

“We try to make this process as unintrusive as possible, and the board’s view is that we can still fulfill our core function without that broad question,” he said.•

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  2. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  3. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  4. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

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