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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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  1. 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.

  2. 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.

  3. 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)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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