IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division JULIE ANN CLARK : : Plaintiff, : : C.A. # 94-211-A v. : : VIRGINIA BOARD OF BAR EXAMINERS : : Defendant. : : RECOMMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW OF THE UNITED STATES AS AMICUS CURIAE 01-07450 TABLE OF CONTENTS TABLE OF AUTHORITIES..................................................... ii I. INTRODUCTION...................................................... 1 II. PROPOSED FINDINGS OF FACT......................................... 3 III. PROPOSED CONCLUSIONS OF LAW...................................... 13 IV. CONCLUSION....................................................... 27 i 01-07451 TABLE OF AUTHORITIES CASES: Addington v. Texas, 441 U.S. 418 (1979).............................................. 21 Applicants v. Texas State Bd. of Law Examiners, 93 CA 740 SS (W.D. Tex. Oct. 10, 1994)............................ 2 In re Applications of Anne Underwood and Judith Ann Plano, No. BAR 93-21, 1993 WL 649283 at *2 (Me. Dec. 7, 1993)........................... 2 Arizona Governing Comm. for Tax Deferred Annuity and Deferred Compensation Plans v. Norris, 463 U.S. 1073 (1983)............................................. 22 Chevron, U.S., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)........................................ 14 City of Los Angeles v. Manhart, 435 U.S. 702 (1978).............................................. 22 Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985).............................................. 21 Connecticut v. Teal, 457 U.S. 440 (1982).............................................. 22 District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).............................................. 26 Ellen S. v. Florida Bd. of Bar Examiners, 859 F. Supp. 1489 (S.D. Fla 1994)...................... 2, 18-19, 24 Fiedler v. American Multi-Cinema, Inc., CIV A-92-486 (TPJ), 1994 WL 709588 (D.D.C. Dec. 16, 1994)............................ 15 In re John Ballay, 482 F.2d 648 (D.C. Cir. 1973).................................... 21 Lyng v. Payne, 476 U.S. 926 (1986).................................... 14-15 Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144 (1991).............................................. 14 Medical Society of New Jersey v. Jacobs, 1993 WL 413016 (D.N.J. Oct. 5, 1993).................... 2, 1-19, 25 ii 01-07452 Pandazides v. Virginia Bd. of Educ., 946 F.2d 345 (4th Cir. 1991) .................................... 18 Parham v. J.R., 442 U.S. 584 (1979) ............................................. 21 Petersen v. University of Wis. Bd. Regents, 818 F. Supp. 1276 (W.D. Wis. 1993) .............................. 14 In re Petition of Frickey, 515 N.W.2d 741 (Minn. Apr. 28, 1994) ...................... 2, 7, 25 Sandford v. R.L. Coleman Realty Co., 573 F.2d 173 (4th Cir. 1978) ............................................ 26 School Bd. of Nassau County v. Arline, 480 U.S. 273 (1987) ..................................... 16, 18, 21 Smith v. Schlesinger, 513 F.2d 462 (D.C. Cir. 1975) ................................... 21 Stinson v. United States, 113 S. Ct. 1913 (1993) ........................ 14 Thomas v. Washington County School Bd., 915 F.2d 922 (4th Cir. 1990) .................................... 26 Udall v. Tallman, 380 U.S. 1 (1965) ..................................... 15 United States v. Larionoff, 431 U.S. 864 (1977) ......................... 15 Woodard v. Virginia Bd. of Bar Examiners, 454 F. Supp. 4 (E.D. Va 1978), aff'd, 598 F.2d 1345 (4th Cir. 1979) ............................ 26 STATUTES AND REGULATIONS: 42 U.S.C. 12101-12213 (Supp. II 1990) .................................... 1 42 U.S.C. 12101(a)(7) ................................................... 22 42 U.S.C. 12102(2) ...................................................... 14 42 U.S.C. 12131(1)(B) ................................................... 14 42 U.S.C. 12131(2) ...................................................... 17 42 U.S.C. 12132 ......................................................... 13 42 U.S.C. 12134(b) ...................................................... 20 42 U.S.C. 12182 (b) (2) (A) (i) ......................................... 20 28 C.F.R. 35, App. A (1993) .......................................... 17-19 28 C.F.R. 35.102 ........................................................ 14 28 C.F.R. 35.104 ................................................. 14-15, 17 28 C.F.R. 35.130(b) (3) (i) ............................................. 18 28 C.F.R. 35.130(b)(6) .................................................. 18 28 C.F.R. 35.130 (b) (8) ............................................. 19-20 28 C.F.R. 36, App. B (1994) ............................................. 20 iii 01-07453 28 C.F.R. 36.301(a) ..................................................... 20 LEGISLATIVE MATERIALS: H.R. Rep. No. 485, 101st Cong., 2d Sess., pt II (1990) .................................... 15-16, 20-21, 23 H.R. Rep. No. 485, 101st Cong., 2d Sess., pt III (1990) .......................................... 20-21, 23 S. Rep. No. 116, 101st Cong., 1st Sess. (1989) ............................. 15-16, 20-21, 23 MISCELLANEOUS: American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1987), (DSM-IV) ................................................. 3 Association of American Law Schools, Report of the AALS Special Committee on Problems of Substance Abuse in the Law Schools, 44 Journal of Legal Education (1994) ................................................... 6 Bruce J. Ennis & Thomas R. Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62 Cal. L. Rev. 693 (1974) ............................... 10 Stephen T. Maher and Lori Blum, Strategy for Increasing Mental and Emotional Fitness of Bar Applicants, 23 Ind. L. Rev. 821 (1990) ................................... 7 Reishel, The Constitution, the Disability Act, and Questions about Alcoholism, Addiction, and Mental Health, 61 The Bar Examiner 10 (1992) ........................................... 10 U.S. Department of Justice, The Americans with Disabilities Act -- Title II Technical Assistance Manual (1992 & Supp. 1993) .......................................... 21, 24 7A Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure S 1771 (1986) ............................ 26 Jay Ziskin, Coping with Psychiatric and Psychological Testimony (3d ed. 1981) ................................... 10 iv 01-07454 I. INTRODUCTION The United States submits this memorandum as amicus curiae to address the factual and legal issues presented to the Court at trial and to urge this Court to enter judgment for plaintiff Julie Ann Clark. Question 20(b) of the application of the Virginia Board of Bar Examiners ("Board") currently asks, Have you within the past five (5) years been treated or counseled for any mental, emotional, or nervous disorder? Applicants who answer in the affirmative must provide additional information concerning their diagnosis, course of treatment, and prognosis, identify any treating physician or counselor, and authorize the release of their records. In previous briefs submitted to this Court, the United States has argued that Question 20(b) violates title II of the Americans with Disabilities Act (ADA), 42 U.S.C. SS 12101-12213 (Supp. II 1990). The evidence presented at trial fully supports this conclusion. The United States recognizes the importance of the Board's function of ensuring that attorneys admitted to practice law in the Commonwealth meet a high standard of competency and integrity. The evidence presented at trial demonstrates, however, that one of the means used by the Board to accomplish that end impermissibly discriminates against persons with - 1 - 01-07455 disabilities. Question 20(b) targets persons with mental disabilities or histories of mental disabilities for additional burdens not imposed on others -- namely, disclosure of very personal information regarding details about the applicant's treatment for such disabilities. Further, because the inquiry does not accurately assess current fitness to practice and is less predictive of future behavior than available alternatives, Question 20(b)'s broad inquiry into an applicant's mental health history is not necessary to the Board's purpose of licensing only fit practitioners. Every court that has examined challenges to mental health questions in professional licensing under the ADA has concluded that broad-based inquiries, such as the Board's Question 20(b), violate or are likely to violate title II of the ADA. See Ellen S. v. Florida Bd. of Bar Examiners, 859 F. Supp. 1489, 1493 (S.D. Fla. 1994); Medical Society of New Jersey v. Jacobs, 1993 WL 413016, at *7 (D.N.J., Oct. 5, 1993); In re Applications of Anne Underwood and Judith Ann Plano, 1993 WL 649283, at *2 (Me. Dec. 7, 1993); see also Applicants v. Texas State Bd. of Law Examiners, 93 CA 740 SS at 20 (W.D. Tex. Oct. 10, 1994) ("such a broad-based inquiry violates the ADA."); cf. In re Petition of Frickey, et al., 515 N.W.2d 741 (Minn. April 28, 1994). The evidence presented at trial fully supports a similar decision by this Court. - 2 - 01-07456 II. PROPOSED FINDINGS OF FACT 1. In 1993, Julie Clark graduated from George Mason University Law School and applied for membership to the Virginia bar by filing her application with the defendant, the Virginia Board of Bar Examiners. In her application, however, she refused to answer Question 20(b). Julie Clark has passed the Virginia bar examination, which she took in February 1994, and, aside from her refusal to answer Question 20(b), has fulfilled all of the requirements for receiving a license to practice law in the Commonwealth of Virginia.1 2. Julie Clark is a person with a disability. Ms. Clark had been diagnosed with "major depression, recurrent," a diagnosis recognized in the psychiatric field.2 Because of her illness, Julie Clark suffered from an inability to concentrate, act decisively, sleep properly, orient herself, or maintain ordinary social relationships, over a period of at least thirteen months.3 This evidence, together with the supplemental declaration of Julie Clark filed under seal with the Court, establishes that Ms. Clark is a person with record of a _______________________ 1 Plaintiff's Exhibit 68(a) and Record at 101-102. 2 See Plaintiff's Exhibit 68(a) and American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 339 (4th ed., American Psychiatric Association 1994)(DSM-IV). 3 Plaintiff's Exhibit 68(a). - 3 - 01-07457 disability.4 Ms. Clark, like other bar applicants who have been diagnosed, counseled, or treated for mental or emotional illnesses, is also regarded as disabled by the Board. Question 20(b) singles out persons with histories of treatment for mental, emotional, or nervous disorders and subjects them to additional inquiries. 3. The Virginia Board of Bar Examiners is responsible for licensing attorneys in the Commonwealth of Virginia. Among its other duties, the Board is responsible for ensuring that applicants have passed the bar examination, filed the appropriate forms, paid all necessary fees, and fulfilled the academic and character requirements for admission. (Defendant's Exhibit 4). Mr. Scott Street, Secretary and Treasurer of the Board, testified that initially the applications are reviewed quickly by the Board, then sent to the National Conference of Bar Examiners for further review, and finally are reviewed again by the Board to determine which applications required further investigation.5 On two occasions,6 where the applicants were manic-depressive and were either hospitalized or displayed financially irresponsible ______________________ 4 This Court previously found that plaintiff's supplemental declaration (Plaintiff's Exhibit 68(b)) alleged facts sufficient to defeat a motion for summary judgment on the issue of standing. While the United States believes that the evidence presented in this declaration will be useful to the Court, we shall refrain from comment regarding the weight to be given this evidence, as it was filed with the Court under seal. 5 Record at 107-115. Record at 107-115. 6 Mr. Street testified that, in 1992 and 1993, applicants from outside the Commonwealth of Virginia were required to answer mental health inquiries. (Record at 114). - 4 - 01-07458 behavior, the Board went further and requested a letter from each applicant's treating physician indicating that the person was capable of engaging in the unsupervised practice of law.7 On both occasions, these letters were dispositive of the Board's investigation.8 None of the members of the Board have any formal training or background in psychiatry or psychology.9 4. Question 20(b) of the application used by the Board in its licensing process asks: Have you within the past five (5) years been treated or counseled for any mental, emotional, or nervous disorder? 5. Question 20(b) and its attendant disclosure requirements burden persons with histories of mental disabilities to a much greater extent than other applicants. All candidates are required to state whether, within the past five years, they have been treated or counseled for any mental, emotional, or nervous disorder. (Plaintiff's Exhibit 1, p. 22). Only those applicants who answer affirmatively are then required to identify and provide the complete address of each individual consulted for the condition and record the beginning and ending dates of consultation. (Plaintiff's Exhibit 1, p. 22). By signing their applications, candidates also waive their rights of confidentiality to and authorize release of their treatment or consultation records. (Plaintiff's Exhibit 1, p. 25). This _______________________ 7 Record at 112-115. 8 Record at 115. 9 Record at 135-136. - 5 - 01-07459 process is invasive because it requires only those persons who answer affirmatively to provide information about mental health treatment -- treatment that is often bound up with intensely personal issues such as family relationships and bereavement. 6. Question 20(b) also deters persons with mental disabilities from counseling. Dean Paul Marcus of William and Mary Law School testified that, in his experience, a significant number of law students suffering from mental illness would forgo counseling or treatment because of possible revelation to the Board. (Plaintiff's Exhibit 71). Plaintiff's expert witness, Dr. Howard Zonana, also testified that revealing mental treatment or diagnoses to a licensing board would deter treatment or counseling. (Record at 43-44, 75-75). Even the defendant's expert witness, Dr. Charles Mutter, recalled being advised by at least one law school professor and dean that broad mental health inquiries would have a chilling effect on students who might otherwise seek counseling for mental, emotional, or nervous disorders. (Record at 232-33).10 The fact that concern over bar ___________________ 10 This testimony is supported by a recent survey of over 13,000 law students: 41 percent responded that they would seek assistance for a substance abuse problem if they were assured that bar officials would not have access to the information. As to whether they would refer a friend who had a substance abuse problem, 47 percent responded that they would if bar officials would not have access to the information. Association of American Law Schools, Report of the AALS Special Committee on Problems of Substance Abuse in the Law Schools, 44 Journal of Legal Education 35, 55 (1994). It can reasonably be inferred that similar results would obtain regarding treatment for mental health problems. (continued...) - 6 - 01-07460 examiners, inquiries into diagnosis and treatment for mental illness deters law students and other applicants from seeking counseling for mental or emotional problems is also evident from the Frickey decision, in which the Minnesota Supreme Court struck down mental health inquiries on the Minnesota bar application, specifically citing the deterrence effect of such inquiries. In re Petition of Frickey, C5-84-2139 (Minn., Apr. 28, 1994)(Plaintiff's Exhibit 15).11 7. Question 20(b) also creates additional burdens for persons with histories of mental disabilities because of the stigma that still attaches to treatment for mental or emotional illness. Dr. Zonana noted that treatment for such disabilities is often equated by bar examiners with such factors as having been disbarred or having engaged in other behavior that truly reflects upon character. Dr. Zonana concluded, that, "the clear implication is, if you have [a mental] disability, that that's an indication that that's a significant problem ... " (Record at 44). 8. At the heart of the Virginia Board of Bar Examiner's case is a belief that inquiries into treatment, counseling, or diagnoses of any mental illness will yield information that will _________________________ 10 ( ... continued) Furthermore, even when treatment is sought, its effectiveness may be compromised because knowledge of the possible revelation to a licensing board may undermine the trust and frank disclosure upon which successful counseling depends. See Stephen T. Maher & Lori Blum, A Strategy for Increasing the Mental and Emotional Fitness of Bar Applicants, 23 Ind. L. Rev. 821, 824, 833-46 (1990). 11 See Maher & Blum, supra, at 830-33. - 7 - 01-07461 predict an attorney's inability to practice law. While the Board asserts that it has not and will not deny a license solely on the basis of an affirmative response to Question 20(b), it cannot be disputed that Question 20(b)'s broad inquiry into the applicant's mental health history reflects an assumption that past diagnosis of or treatment for mental or emotional conditions renders the applicant more likely than other candidates to be substantially impaired in his or her ability to perform as a lawyer.12 9. The Board's underlying assumption about the utility of making mental health inquiries is in error. Question 20(b) is not necessary to determine fitness to practice law. Past diagnosis or treatment for any mental, emotional, or nervous disorder cannot accurately predict future behavior. Neither Dr. Zonana nor Dr. Mutter recalled any studies indicating that a diagnosis for a mental illness had any predictive value in determining functional ability or future behavior. (Record at 36- 38, 220-21). Indeed, Dr. Zonana pointed out that focusing on treatment or counseling was widely recognized as having very low predictive value (Record at 85-87) and has rarely provided _________________________ s from any type of disorder whatsoever that might be a danger to the public." (Record at 184). This testimony reflects the key assumption underlying the Board's inquiry: namely, that persons with any history of mental or emotional treatment or counseling are more likely than other candidates to be substantially impaired in their ability to function as an attorney. The evidence in this case demonstrates, however, that this assumption is incorrect. - 8 - 01-07462 additional information not obtainable through other means.13 Dr. Zonana testified that, Q And, again, is there data regarding this matter arising exclusively out of the fact that someone has a diagnosis for a mental illness, again in the absence of behavioral indicia. _________________________ 13 The dialogue between Dr. Zonana and counsel for the defendant on recross examination illustrates both the need to focus on past behavior and the Board's misplaced efforts of using diagnoses of mental illness to determine current fitness to practice. A Well ... the notion here is you are not on an expedition to ferret out who has a mental disorder and who might be hiding a symptom that nobody else knows about. The notion here is to find out only those disorders which have some intrusion or very likely to have some intrusion on somebody's ability to function or work. So we are not out on an expedition to diagnose anybody who might have a mental disorder, whether they are aware of it or not. You are trying to find out those people where a mental disorder is present and has intruded in some way that is likely to affect their ability to function as a professional, at least that's my -- Q But can the behaviors that will be manifested by people who are suffering from these debilitating conditions, can they be divided into two categories, one set of behaviors that applies to people whose ability to work is impaired and another set of behaviors to a class of people whose ability to work is not? A In general, it seems to me your hit rate is going to go way up if you do it related to behavior and functional capacities. You do this broad screening and, by and large, you come up with nothing, and that's true with most bar examiners across the board. That's why so many states have been willing to drop it, because most people don't see it as producing anything that is useful or that gives any criteria on which you can either deny or make any other judgments about. So you end up collecting all this data that's not useful. (Record at 84-86). - 9 - 01-07463 A No, I think that's one of the major stigmatizations that goes along with mental illness, that somehow a diagnosis, per se, relates to functional capacity; it doesn't. (Record, p. 36). Furthermore, results of one study discussed by Dr. Zonana showed that psychiatric evaluations were poor predictors of functional ability (Record at 37).14 In his testimony, Dr. Zonana also referenced a recent District of Columbia study,15 which concluded that information obtained through mental health inquiries had, according to the author, "rarely, if ever, brought to light a serious fitness question that was not highlighted by other information (concerning litigation, employment, encounters with legal authorities, academic or bar discipline, etc.)". Reishel, The Constitution, the Disability Act, and Questions about Alcoholism, Addiction, and Mental Health, 61 The Bar Examiner 10, 20 (1992).16 10. Question 20(b) simply does not work. Dr. Zonana noted that, even where an applicant possessed a "serious" mental illness, that illness would not preclude an individual from being _____________________ 14 See generally Jay Ziskin, Coping with Psychiatric and Psychological Testimony 1-63 (3d ed. 1981); Bruce J. Ennis & Thomas R. Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62 Cal. L. Rev. 693 (1974) (both articles citing extensive authority establishing the inability of mental health professionals to make reliable predictions of future behavior). 15 Record at 86. 16 Although the Board insists that Question 20(b) is necessary to determining candidates' fitness to practice law, it did not make mental health inquiries before 1992 and only required non-residents to answer such inquiries in 1992 and 1993. (Record at 125-134). - 10 - 01-07464 fit to practice law. (Record at 47-52, 72-73). Even if one incorrectly assumed that serious mental conditions could predict behavior or fitness to practice law, Question 20(b) remains unnecessary because it does not reliably identify persons with such disorders. Dr. Zonana testified that, among persons with serious mental disorders such as schizophrenia and manic depression, approximately forty percent do not ever seek counseling or treatment. (Record at 29-34 and Plaintiff's Exhibit 72) (epidemiologic study cited by Dr. Zonana). Obviously, Question 20(b) -- which uses counseling or treatment as the trigger for further disclosure requirements -- would not identify such applicants. 11. Question 20(b) is also unnecessary because questions relating to relevant conduct and behavior, which are permissible under the ADA, are far better predictors of functional ability. Scott Street, Secretary and Treasurer for the Board, testified that the focus of the admissions process is to determine whether an applicant has demonstrated "a current fitness to engage in basically the unsupervised practice of law." (Record at 107). As Dr. Zonana testified at trial, however, research data indicates that the best predictor of functional ability and future behavior is past behavior. (Record at 38-40). Dr. Zonana admitted that also asking about treatment or counseling may turn up extremely rare instances of persons unfit to practice law, but the - 11 - 01-07465 likelihood of such an occurrence was very remote. (Record at 40).17 Even the Board's expert witness noted that serious mental illness is generally reflected in behavior. (Record at 224-226).18 Because Question 20(b) uses treatment or counseling for mental, emotional, or nervous disorders as a trigger for additional burdens, it is unnecessary.19 _______________________ 12. Question 20(b) is also unnecessary because it is overbroad. On direct examination, Scott Street testified that the Board does not further evaluate applicants reporting mental disorders that the Board does not consider serious. (Record at 119-120). Thus, the Board concedes that it is actually only interested in disorders that are "serious"--- despite the fact that the plain wording of Question 20(b) clearly encompasses 17 This conclusion is also supported by the Board's record of investigating applicants who answer the mental health treatment question in the affirmative. As counsel for the defendant noted at trial, since the Board started using mental health inquiries similar to Question 20(b), the Board has only conducted further investigations in only two cases on the basis of affirmative answers to mental health inquiries. (Record at 12). 18 The defendant's expert witness, Dr. Mutter, believes that a broad inquiry, such as Question 20(b), assists the Board in developing the fullest possible picture of an applicant. (Record at 204-205). Unfortunately, Dr. Mutter's recommended examination is without practical limitation as he would require disclosure of any consultation with psychiatrists, psychologists, therapists, or even ministers. (Record at 182-184). In addition, Dr. Mutter would include stockbrokers, policemen, firefighters, and even law students within the ambit of heightened scrutiny. (Record at 190-93, 199-200). 19 Dr. Zonana stated that, for purposes of a psychiatric evaluation, it is useful to inquire into past mental health treatment. (Record at 60-62). As Dr. Zonana pointed out, however, a psychiatric evaluation is not necessary where there is no evidence of behavioral problems. (Record at 38-40, 82-84). - 12 - 01-07466 disclosure of all counseling, treatment, or diagnoses.20 The Board's admitted disregard of information it receives about disorders that are not "serious" substantially undercuts Dr. Mutter's statements regarding the import of receiving information regarding all counseling to determine an applicant's fitness to practice. (Record at 182-184). Dr. Zonana also testified that Question 20(b) would require disclosure of many mental, emotional, or nervous disorders that may lead a person to seek counseling or treatment, despite the fact that these conditions had no bearing on an applicant's ability to practice. Included in this category are various phobias and bereavement or rape counseling.21 III. PROPOSED CONCLUSIONS OF LAW 1. Title II contains a sweeping prohibition of practices by public entities that discriminate against persons with disabilities. Section 202 of the Act, 42 U.S.C. S 12132, provides, Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. __________________________ 20 Street testified that this process allowed the Board to get "as complete a picture of the individual" (Record at 121) and that the Board actually views an applicant's receipt of treatment as something favorable (Record at 117). 21 Record at 34-35. - 13 - 01-07467 2. A "public entity" is defined in title II to include "any department, agency ... or other instrumentality of a State ... or local government." 42 U.S.C. S 12131 (1)(B). The Board falls within this definition as it is the State governmental agency responsible for licensing attorneys in the Commonwealth of Virginia. 3. Title II of the ADA and its implementing regulation define "disability" as: (A) a physical or mental impairment that substantially limits one or more major life activities... (B) a record of such impairment; or (C) being regarded as having such an impairment. 42 U.S.C. S 12102 (2); 28 C.F.R. S 35.102 (1992). The title II regulation provides that a "physical or mental impairment" includes [a]ny mental or psychological disorder such as...emotional or mental illness...." 28 C.F.R. S 35.104 (1992) (emphasis added).22 Title II defines "major life activities" by _________________________ 22 Where, as here, Congress expressly delegates authority to an agency to issue legislative regulations, the regulations "are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute." Chevron Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984). See also Petersen v. University of Wis. Bd. Regents, 818 F. Supp. 1276, 1279 (W.D. Wis. 1993) (applying Chevron to give controlling weight to Department of Justice interpretations of title II of the ADA). An agency's interpretation of its own regulations should also be given controlling weight, unless plainly erroneous, inconsistent with the regulation, or in violation of the Constitution or federal statute. Stinson v. United States, 113 S. Ct., 1913, 1919 (1993); Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 150 (1991); see Lyng v. (continued...) - 14 - 01-07468 listing functions "such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 28 C.F.R. S 35.104 (emphasis added).23 4. Julie Clark is a person with a disability within the meaning of the ADA. At least for some period of time, Ms. Clark was impaired in a major life activity. Her inability to concentrate, act decisively, sleep properly, orient herself, or maintain ordinary social relationships, are activities well within the scope of the term "major life activities" as defined under the ADA. Thus, Ms. Clark is a person with a record of a disability within the second prong of title II's definition of disability. 5. Ms. Clark also falls within the statutory definition of person with a disability because she, like other applicants who have been diagnosed, counseled, or treated for mental or __________________________ 22(...continued) Payne, 476 U.S. 926, 939 (1986); United States v. Larionoff, 431 U.S. 864, 872-873 (1977); Udall v. Tallman, 380 U.S. 1, 16-17 (1965). Indeed, as the author of the regulations, the Department of Justice has been deemed, "the principal arbiter" of its ADA regulations. Fiedler v. American Multi-Cinema, Inc., CIV A-92- 486 (TPJ), 1994 WL 709588, at *4 (D.D.C. Dec. 16, 1994). This deference has also been extended to the Department's technical assistance literature, including its technical assistance manuals, as providing, "controlling weight as to the meaning of the [regulations]." Id., at *6 n. 4. 23 The use of the term "such as" in the regulation reflects Congressional intent not to provide an exhaustive list. The regulation's language is identical to the language used in the Senate and House Committee reports regarding the definition of a major life activity. See H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. II at 52 (1990) [hereinafter cited as Education and Labor Report]; S. Rep. No. 116, 101st Cong., 1st Sess. at 23 (1989) [hereinafter cited as Senate Report]. - 15 - 01-07469 emotional illnesses, is "regarded as" disabled by the Board because she and other persons with histories of treatment for mental, emotional, or nervous disorders are subjected to additional inquiries. Individuals who have sought mental health treatment are often regarded as emotionally disabled or mentally ill even though their past and/or current capability or stability might not be affected. School Bd. of Nassau County v. Arline, 480 U.S. 273, 284 (1987) ("society's accumulated myths and fears about disability...are as handicapping as are the physical limitations that flow from actual impairment"). Congress was particularly aware of the needs of persons with mental disabilities and intended the ADA to extend particular protection to individuals with a record of mental or emotional illness. Indeed, the legislative history indicates that the second prong of the definition of disability was included in the law, in part to protect individuals who have recovered from a physical or mental impairment which previously substantially limited them in a major life activity. Discrimination on the basis of such a past impairment would be prohibited under this legislation. Frequently occurring examples of [this] group...are persons with histories of mental or emotional illness...24 ______________________________ 24 Education and Labor Report at 52 (emphasis added); Senate Report at 22. - 16 - 01-07470 6. Julie Clark has standing to challenge Question 20(b) as she is a person with a disability and is injured by the Board's inquiries.25 7. Title II prohibits a public entity from discriminating against a "qualified individual with a disability," which is defined in title II of the ADA and section 35.104 of the title II regulation to mean, an individual with a disability who, with or without reasonable modifications to rules, policies or practices ... meets the essential eligibility requirements for the receipt of services or the participation in the programs or activities provided by a public entity. 42 U.S.C. S 12131(2); 28 C.F.R. S 35.104 (emphasis added). A person is a "qualified individual with a disability" with respect to licensing or certification if he or she can meet the essential eligibility requirements for receiving the license or certification. 28 C.F.R. pt. 35, app. A at 451 (July 1, 1993).26 _____________________ 25 This Court's Order of August 31, 1994, which reversed a previous decision granting summary judgment in favor of defendants, held that it was premature to conclude that Ms. Clark was not a person with a disability. The uncontested evidence presented at trial, however, establishes that Ms. Clark is a person with a disability and has standing to bring this case. Furthermore, while the evidence amply demonstrates that Ms. Clark both has a record of a disability and is regarded by the Board as being disabled, she would have standing to challenge Question 20(b) regardless of whether she is disabled or not. See Memorandum of the United States as Amicus Curiae in Support of Plaintiff's Notice and Motion to Alter Judgment, at 9-15 (Aug. 9, 1994). 26 Cases decided under Section 504 have shaped the factors used in determining what constitutes "essential eligibility requirements." 28 C.F.R. pt. 35, app. A at 451. This determination requires a careful analysis behind the (continued...) - 17 - 01-07471 Where, as here, public safety may be affected, a determination of whether a candidate meets the "essential eligibility requirements" may include consideration of whether the individual with a disability poses a direct threat to the health and safety of others.27 So long as the candidate does not pose a direct threat and meets the essential eligibility criteria, he or she is protected against discrimination on the basis of disability. 8. This case does not involve a Board decision to deny a license based on disability. Title II and its implementing regulations, however, proscribe more than total exclusion on the basis of disability.28 As a licensing entity, the Board must comply with section 35.130(b)(6) of the regulation, which prohibits administering a licensing program "in a manner that subjects qualified persons with disabilities to discrimination." Similarly, section 35.130(b)(3)(i) prohibits use of "methods of ___________________ 26 ( ... continued) qualifications used to determine the actual criteria that a position requires. School Bd. of Nassau County v. Arline, 480 U.S. 273, 287-288 (1987); Pandazides v. Virginia Bd. of Educ., 946 F.2d 345, 349-50 (4th Cir. 1991). 27 As noted in the Department of Justice's title II analysis accompanying section 35.104, A "direct threat" is a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services. 28 C.F.R. pt. 35, app. A at 448 (1993). 28 See e.g., Ellen S. v. Florida Bd. of Bar Examiners, 859 F. Supp. 1489, 1493-94 (S.D. Fla. 1994); Medical Society of New Jersey v. Jacobs, 1993 WL 413016, at *7 (D.N.J. Oct. 5, 1993). - 18 - 01-07472 administration" that have a discriminatory effect. Finally, section 35.130(b)(8) prohibits the Board from imposing unnecessary eligibility criteria that screen out, or tend to screen out, persons with disabilities. Section 35.130(b)(8) prohibits any policy that unnecessarily imposes requirements or burdens on individuals with disabilities that are greater than those placed on others. 28 C.F.R. pt. 35, app. A at 453-54 (1993); see Ellen S., 859 F. Supp. at 1494; Medical Society, 1993 WL at *7. 9. Ms. Clark is challenging the Board's procedure of asking Question 20(b) and this Court is not called upon to determine her ultimate fitness to practice law. At this stage of her application, for purposes of challenging the Board's procedures and demanding that the Board process her application absent Question 20(b), Ms. Clark need only have satisfied all the other requirements to apply for membership to the bar in order to be "qualified individual with a disability." It is uncontested that Ms. Clark has satisfied all of these requirements (See Findings of Fact P 1). Therefore, Ms. Clark is a qualified individual with a disability for purposes of challenging the Board's procedures.29 ___________________________ 29 The following example further illustrates this point. A person who uses a wheelchair is "eligible" to apply for food stamps and is a victim of discrimination if the office that takes applications is accessible only by stairs. He need not prove that he is "eligible" to receive food stamps in order to challenge the denial of access. Similarly, Ms. Clark need not prove that she is ultimately qualified for a license to practice law in order to challenge the discriminatory application process. - 19 - 01-07473 10. Title II also prohibits unnecessary inquiries into disability. Section 35.130(b)(8) of the regulation provides, A public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered. 28 C.F.R. S 35.130(b)(8)(emphasis added). This section is identical in substance to a statutory provision in title III, 42 U.S.C. S 12182(b)(2)(A)(i), and the title III regulation, 28 C.F.R. 36.301(a).30 The legislative history of the analogous title III provision makes clear that Congress intended to prohibit unnecessary inquiries into disability. It also would be a violation for [a public accommodation] to invade such people's privacy by trying to identify unnecessarily the existence of a disability, as, for example, if the credit application of a department store were to inquire whether an individual has epilepsy, has ever ... been hospitalized for mental illness, or has other disability.31 ____________________________ 30 Section 204 of the ADA provides that the title II regulation shall incorporate this concept insofar as it requires the title II regulation to be consistent with the ADA generally. 42 U.S.C. S 12134(b); H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. III at 51 (1990) [hereinafter cited as Judiciary Report]; Education and Labor Report at 84; 28 C.F.R. pt. 35, app. A at 440. 31 Senate Report at 62 (emphasis added); see also Education and Labor Report at 105; Judiciary Report at 58. The analysis accompanying the title III regulations also reflects this Congressional intent. 28 C.F.R. pt. 36, app. B at 590. - 20 - 01-07474 The title II Technical Assistance Manual states that title II similarly prohibits unnecessary inquiries into disability. 32 11. The stigma that attaches to being required to disclose a history of mental health treatment is a harm the Supreme Court has recognized. See Parham v. J.R., 442 U.S. 584, 600 (1979) (finding a substantial liberty interest under the Due Process Clause of the Constitution in avoiding being known to have been treated for such illness); Addington v. Texas, 441 U.S. 418, 426 (1979); Smith v. Schlesinger, 513 F.2d 462, 477 (D.C. Cir. 1975); see also In Re John Ballay, 482 F.2d 648, 668-69 (D.C. Cir. 1973) (noting that "even the most enlightened persons may unwittingly harbor views" associated with the stigma of mental illness). 12. The ADA is a civil rights law intended to protect individuals with disabilities against stereotypes or generalizations. Congress found that these stereotypes "are not truly indicative of the individual ability of [persons with disabilities] to participate in, and contribute to, society." 42 U.S.C. S 12101(a)(7)(emphasis added).33 The Supreme Court has repeatedly cautioned against relying upon negative attitudes or stereotypes of the potential dangers posed by disabilities. School Bd. of Nassau County v. Arline, 480 U.S. 273, 285 (1987); Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 448 (1985). __________________________ 32 Title II Technical Assistance Manual S II-3.5300. 33 See Education and Labor Report at 30, 33, 40, 41; Judiciary Report at 25; Senate Report at 7, 9, 15. - 21 - 01-07475 13. Furthermore, even where generalizations about an individual's class are statistically true, civil rights law require focusing on individuals rather than classes. In City of Los Angeles v. Manhart, 435 U.S. 702 (1978), the Court held a pension plan that required female employees to make larger contributions than male employees violated Title VII of the Civil Rights Act of 1964, even though it was undisputed that women, as a class, live longer than men. The Court held that, Even if statutory language were less clear, the basic policy of the statute requires that we focus on fairness to individuals rather than fairness to classes. Practices that classify employees in terms of religion, race, or sex tend to preserve assumptions about groups rather than thoughtful scrutiny of individuals. Id., at 708, 709; Arizona Governing Comm. for Tax Deferred Annuity and Deferred Compensation Plans v. Norris, 463 U.S. 1073 (1983); Connecticut v. Teal, 457 U.S. 440 (1982). The ADA similarly was intended to combat generalizations based on a person's class -- in this case, a person's status based on disability. This congressional intent is reflected in the Congressional findings supporting the ADA: [I]ndividuals with disabilities are a discrete and insular minority who have been ... subjected to a history of purposeful unequal treatment... resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society. 42 U.S.C. S 12101(a)(7)(emphasis added). The legislative history also reveals that Congress recognized the need to combat the - 22 - 01-07476 "false presumptions, generalizations, misperceptions, patronizing attitudes, ignorance, irrational fears, and pernicious mythologies"34 surrounding disability and the need for a more enlightened view towards persons with disabilities.35 Thus, unnecessary classifications based on disability are not permitted because of the ADA's requirement that public entities focus on the abilities of individuals rather than class generalizations.36 14. Question 20(b) reflects an impermissible generalization and classification based on disability. By inquiring into the existence of mental disabilities, the Board uses this impermissible stereotype as a trigger for disclosure requirements that are not imposed on others. The genesis of inquiries such as Question 20(b) is a presumption, not supported by the record, that a person's ability to practice law is likely to be adversely affected by having had treatment for any of a broad range of mental disabilities in the past, even though these disabilities _________________________ 34 Senate Report, at 7; Education and Labor Report, at 30. 35 Judiciary Report, at 25. 36 Even if it could be shown that, as a class, persons with certain mental disabilities are more likely to become impaired in their ability to practice law, the ADA prohibits unnecessary classifications based on those disabilities, including classifications that require unnecessary disclosure of disabilities or intrusive reporting requirements that are not imposed on others. Of course, if a disability could perfectly predict future behavior of all persons with that disability, then it rises above being a mere generalization. However, even the defendant does not assert and the record clearly does not show that any past treatment for mental disability is perfectly predictive of current or future fitness to practice law. - 23 - 01-07477 may have never affected that person's judgment, integrity, responsibility, or abilities as a professional. 15. The Board's use of Question 20(b) in its licensing process violates title II of the ADA because Question 20(b) imposes burdens on individuals with disabilities (Findings of Fact P P 5-7) and use of the question is not necessary to the Board's function of determining a candidate's fitness to practice law (Findings of Fact P P 8-12). Even though the Board has infrequently conducted follow-up investigations of applicants who answer Question 20(b) affirmatively, just making this intrusive inquiry violates title II. Indeed, in Ellen S., the court was careful to emphasize its conclusion that asking the question itself independently violates title II, without regard to whether a follow-up investigation ensues. Id., at 10, n.7. 16. The Board's purposes are better served by questions that focus directly on conduct and behavior, including those that may be associated with mental illness.37 Thus, if the Board _________________________ 37 Indeed, the Title II Technical Assistance Manual states that: [p]ublic entities may not discriminate against qualified individuals with disabilities who apply for licenses, but may consider factors related to the disability in determining whether the individual is "qualified." Title II Technical Assistance Manual, at II-3.7200 (emphasis added). One permissible "factor related to the disability" is any inappropriate behavior associated with that disability that legitimately reflects on fitness to practice. Relying on behavior provides a sound basis to determine fitness to practice law without intruding on an applicant's diagnosis or treatment history. - 24 - 01-07478 wants to assess accurately the likelihood of improper behavior, the Board can and should inquire about credit history, financial or legal problems, criminal records, leaves of absence, disciplinary actions, suspensions, or terminations from school or jobs in the past. Many of these inquiries are currently used by the Board. (Plaintiff's Exhibit 1). The Board may also develop additional questions pertaining to relevant behavior that may indicate an inability to handle professional responsibilities. The Board may also ask references, colleagues, and business associates as well as the applicant whether there is anything that would currently impair the applicant's ability to carry out the duties and responsibilities of an attorney in a manner consistent with the standards of conduct for an attorney admitted to practice in the Commonwealth of Virginia. This broad range of permissible questions provides a sound and comprehensive basis for drawing inferences about an individual's fitness for the practice of law without resort to mental health history. See Medical Society, 1993 WL at *7; In re Petition of Frickey, et al., 515 N.W.2d 741 (Minn. April 28, 1994). This conclusion is supported by the evidence presented at trial, which clearly indicates that behavior more accurately predicts current fitness to practice than the information sought through mental health inquiries like Question 20(b) (Findings of Fact P 11). 17. Plaintiff's complaint seeks an injunction requiring the Board to grant her a license, an injunction preventing the Board from using Question 20(b), a declaration that Question 20(b) - 25 - 01-07479 violates the ADA, and attorney's fees. This Court is prohibited from requiring the Board to grant Ms. Clark a license. District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983); Woodard v. Virginia Bd. of Bar Examiners, 454 F. Supp. 4 (E.D. Va. 1978), aff'd, 598 F.2d 1345 (4th Cir. 1979).38 As to the other claims for relief, however, this Court has previously held that it has jurisdiction.39 Furthermore, as Ms. Clark's complaint is based on a civil rights statute and her requested relief will benefit other persons applying to the Virginia bar who have sought mental health treatment, she is entitled to injunctive relief prohibiting the Board from asking Question 20(b) of any applicant. Thomas v. Washington County School Bd., 915 F.2d 922, 926 (4th Cir. 1990)(individual plaintiff in employment discrimination case entitled to enjoin general discriminatory hiring practices of school board); Sandford v. R.L. Coleman Realty Co., 573 F.2d 173, 178 (4th Cir. 1978)(holding class certification unnecessary in housing discrimination case seeking injunctive relief to current landlord's discriminatory policies); 7A Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure S 1771 (1986). ________________________ 38 This portion of Ms. Clark's complaint was stricken by the Court's Order of August 31, 1994. 39 Order of August 31, 1994, p. 4. - 26 - 01-07480 IV. CONCLUSION For the foregoing reasons, the Court should enter judgment in favor of the plaintiff. The Board's continued use of Question 20(b) should be permanently enjoined and the Board should be directed to take immediate steps to reach its decision on Ms. Clark's application without requiring a response to Question 20(b). In addition, Ms. Clark should be awarded attorney's fees and such other relief as this Court finds appropriate. Respectfully submitted, DEVAL L. PATRICK Assistant Attorney General Civil Rights Division JOHN L. WODATCH JOAN A. MAGAGNA PHILIP L. BREEN SHEILA M. FORAN KEN S. NAKATA Attorneys U.S. Department of Justice Civil Rights Division Public Access Section P.O. Box 66738 Washington, D.C. 20035-6738 Tel: (202) 307-2232 RICHARD PARKER Assistant United States Attorney Appearing Per 28 U.S.C. S 517 1101 King Street, Suite 502 Alexandria, VA 22304 Tel: (703) 706-3700 February 10, 1995 Alexandria, Virginia - 27 - 01-07481 CERTIFICATE OF SERVICE I, the undersigned, attorney for the United States of America, do hereby certify that I have this date served upon the persons listed below by overnight delivery true and correct copies of the foregoing Recommended Findings of Fact and Conclusions of Law of the United States as Amicus Curiae. Victor M. Glasberg, Esq. Victor M. Glasberg & Associates 121 S. Columbus Street Alexandria, VA 22314 Peter R. Messitt Assistant Attorney General Office of the Attorney General 101 North Eighth Street Richmond, VA 23219 SO CERTIFIED this 10th day of February, 1995. KEN S. NAKATA Trial Attorney United States Department of Justice Civil Rights Division Public Access Section P.O. Box 66738 Washington, D.C. 20035-6738 (202) 307-2232 01-07482 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division JULIE ANN CLARK : : Plaintiff, : : C.A. # 94-211-A v. : : VIRGINIA BOARD OF BAR EXAMINERS : : Defendant. : : MEMORANDUM OF LAW OF THE UNITED STATES AS AMICUS CURIAE 01-07483 TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................... ii I. INTRODUCTION ..................................................... 1 II. ARGUMENT ......................................................... 2 A. TITLE II PROHIBITS CLASSIFICATIONS BASED ON DISABILITY THAT DO NOT ACCURATELY PREDICT INDIVIDUAL ABILITIES .................. 2 B. TITLE II PROHIBITS DISCRIMINATION AGAINST QUALIFIED INDIVIDUALS WITH DISABILITIES ........................................ 8 1. LICENSING BOARD INQUIRIES INTO TREATMENT OR COUNSELING FOR MENTAL DISABILITIES IMPOSE UNNECESSARY BURDENS ON PERSONS WITH DISABILITIES ....................... 11 2. QUESTION 20(B) IS UNNECESSARY TO DETERMINING FITNESS TO PRACTICE LAW .......... 15 III. CONCLUSION ...................................................... 22 i 01-07484 TABLE OF AUTHORITIES CASES: Addington v. Texas, 441 U.S. 418 (1979) ..................................................... 12 Applicants v. Texas State Board of Law Examiners, 93 CA 740 SS (W.D. Tex. Oct. 10, 1994) ........................ 7, 8, 19, 20 In re Applications of Anne Underwood and Judith Ann Plano, No. BAR 93-21, 1993 WL 649283 at *2 (Me. Dec. 7, 1993) ............................... 6, 7 Arizona Governing Comm. for Tax Deferred Annuity and Deferred Compensation Plans v. Norris, 463 U.S. 1073 (1983) ..................................................... 4 City of Los Angeles v. Manhart, 435 U.S. 702 (1978) ............................................. 4, 5, 6, 7 Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) ...................................................... 3 Connecticut v. Teal, 457 U.S. 440 (1982) ...................................................... 4 Doe v. Syracuse School Dist., 508 F. Supp. 333 (N.D.N.Y. 1981) ..................................... 9, 18 Ellen S. v. Florida Board of Bar Examiners, 859 F. Supp. 1489 (S.D. Fla. 1994) ........................... 6, 10, 11, 16 In Re John Ballay, 482 F.2d 648 (D.C. Cir. 1973) ........................................... 13 Medical Society of New Jersey v. Jacobs, 1993 WL 413016 (D.N.J. 1993) ................................. 6, 10, 11, 19 Pandazides v. Virginia Bd. of Educ., 946 F.2d 345 (4th Cir. 1991) ............................................. 9 Parham v. J.R., 442 U.S. 584 (1979) ..................................................... 12 In re Petition of Frickey, et al., 515 N.W.2d 741 (Minn. Apr. 28, 1994) ............................. 7, 14, 19 School Board of Nassau County v. Arline, 480 U.S. 273 (1986) ........................................... 3, 9, 13, 14 ii 01-07485 Smith v. Schlesinger, 513 F.2d 462 (D.C. Cir. 1975) ........................................... 12 Strathie v. Department of Transp., 716 F.2d 227 (3d Cir. 1983) .............................................. 9 STATUTES AND REGULATIONS: 29 U.S.C. S 794 .......................................................... 9 42 U.S.C. SS 12101-12213 ................................................. 1 42 U.S.C. S 12101(a)(7) .................................................. 2 42 U.S.C. S 12102(2)(B) ................................................. 13 42 U.S.C. S 12102(2)(C) ................................................. 13 42 U.S.C. S 12110(a) .................................................... 18 42 U.S.C. S 12131(1)(B) ................................................. 10 42 U.S.C. S 12131(2) ..................................................... 8 42 U.S.C. S 12132 ....................................................... 10 42 U.S.C. S 12134(b) .................................................... 15 42 U.S.C. S 12182(b)(2)(A)(i) ........................................... 15 42 U.S.C. S 12206(c)(3) & (d) ........................................... 16 28 C.F.R. S 35.104 ................................................ 8, 9, 13 28 C.F.R. S 35.130(b)(3)(i) ............................................. 10 28 C.F.R. S 35.130(b)(6) ................................................ 10 28 C.F.R. S 35.130(b)(8) ............................................ 10, 15 28 C.F.R. pt. 35, app. A ............................................. 9, 11 28 C.F.R. S 36.301(a) ................................................... 15 28 C.F.R. pt. 36, app. B ................................................ 15 LEGISLATIVE MATERIALS: H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. II (1990)......................................... 2, 3, 5, 15 H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. III (1990) .......................................... 2, 6, 15 S. Rep. No. 116, 101st Cong., 1st Sess. (1989) ............................................... 2, 3, 5, 15 MISCELLANEOUS: American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (3d ed. 1987), (DSM III-R) .............................................. 17 American Psychiatric Association, Recommended Guidelines Concerning Disclosure and Confidentiality, Work Group on Disclosure (Dec. 12, 1992) ................................ 19 iii 01-07486 Association of American Law Schools, Report of the AALS Special Committee on Problems of Substance Abuse in the Law Schools, 44 Journal of Legal Education 35 (1994) ............................................... 14 Gabrielle A. Carlson, Yolande B. Davenport & Kay R. Jamison, A Comparison of Outcome in Adolescent- and Late-Onset Bipolar Manic-Depressive Illness, 134 Am. J. of Psychiatry 919 (1977) ..................................... 17 Bruce J. Ennis & Thomas R. Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62 Cal. L. Rev. 693 (1974) ............................... 16 Frederick K. Goodwin & Kay R. Jamison, Manic-Depressive Illness (1990) ......................................... 17 Stephen T. Maher & Lori Blum, A Strategy for Increasing the Mental and Emotional Fitness of Bar Applicants, 23 Ind. L. Rev. 821 (1990) .............................................. 14 Reishel, The Constitution, the Disability Act, and Questions about Alcoholism, Addiction, and Mental Health, 61 The Bar Examiner 10 (1992) ....................................... 20, 21 Deborah L. Rhode, Moral Character as a Professional Credential, 94 Yale L.J. 491 (1985) ......................... 3 U.S. Department of Justice, The Americans with Disabilities Act -- Title II Technical Assistance Manual (1992 & Supp. 1993) ....................................... 2, 16, 17 Jay Ziskin, Coping with Psychiatric and Psychological Testimony (3d ed. 1981) ................................... 16 iv 01-07487 I. INTRODUCTION The United States submits this memorandum as amicus curiae to address the issues expected to arise in the trial of this case, which is scheduled to begin on November 22, 1994. Although she has successfully passed the Virginia Bar examination and has satisfied all of the other requirements of the character and fitness review of the Virginia Board of Bar Examiners ("Board"), plaintiff Julie Ann Clark has refused to answer question 20(b) of the Board's application, which asks, Have you within the past five (5) years been treated or counseled for any mental, emotional, or nervous disorder? Ms. Clark asserts that the Board violates title II of the Americans with Disabilities Act (ADA), 42 U.S.C. SS 12101-12213 (Supp. II 1990) by asking question 20(b) because it is an unnecessary and burdensome inquiry into mental disabilities. The United States recognizes the great responsibility placed on the Board to ensure that attorneys licensed to practice in the Commonwealth are mentally fit and professionally competent. However, Congress enacted title II of the ADA to prohibit policies or procedures that assess an individual's ability on generalizations or stereotypes based on disability. The United States believes that Ms. Clark should prevail in this case because question 20(b) discriminates against persons with disabilities. It targets persons with disabilities for additional burdens and disclosure requirements, and this broad inquiry into an applicant's mental health history is not - 1 - 01-07488 necessary to determining fitness to practice law. Requiring applicants to answer question 20(b) is an unnecessary eligibility criteria that violates title II of the ADA regardless of whether individuals who answer question 20(b) affirmatively are ultimately granted a license to practice law. II. ARGUMENT A. TITLE II PROHIBITS CLASSIFICATIONS BASED ON DISABILITY THAT DO NOT ACCURATELY PREDICT INDIVIDUAL ABILITIES The ADA is a civil rights law intended to protect individuals with disabilities against the stereotypes or generalizations that are commonly associated with those disabilities. As stated in the ADA itself, Congress found these stereotypes "are not truly indicative of the individual ability of [persons with disabilities] to participate in, and contribute to, society." 42 U.S.C. S 12101(a)(7) (emphasis added).1 By inquiring into the existence of mental disabilities, licensing organizations act on the basis of this impermissible stereotype. _____________________ 1 See H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. II at 30, 33, 40, 41 (1990) [hereinafter cited as Education and Labor Report]; H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. III at 25 (1990) [hereinafter cited as Judiciary Report]; S. Rep. No. 116, 101st Cong., 1st Sess. at 7, 9, and 15 (1989) [hereinafter cited as Senate Report]; see, e.g., U.S. Department of Justice, The Americans with Disabilities Act -- Title II Technical Assistance Manual 12 (1992 & Supp. 1993) [hereinafter, "Title II Technical Assistance Manual"] ("A public entity may impose legitimate safety requirements necessary for the safe operation of its services, programs, or activities. However the public entity must ensure that its safety requirements are based on real risks, not on speculation, stereotypes, or generalizations about individuals with disabilities") (emphasis added). - 2 - 01-07489 These inquiries start from a presumption that a person's ability to practice law is likely to be adversely affected by having had treatment for any of a broad range of mental disabilities in the past, even though they may have never affected that person's judgment, integrity, responsibility, or abilities as a professional.2 The Supreme Court has cautioned against relying upon negative attitudes or stereotypes of the potential dangers posed by disabilities. School Board of Nassau County v. Arline, 480 U.S. 273, 285 (1986)(person with disabilities are often "vulnerable to discrimination on the basis of mythology");3 Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 448 (1985)("mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for treating a home for the mentally retarded differently from apartment houses, multiple dwelling, and the like."). __________________________ 2 Bar examiners are not usually professionals trained in the fields of psychiatry or psychology. [W]hile mental stability is obviously relevant to practice, current certification standards license untrained examiners to draw inferences that the mental health community would find highly dubious...Even trained clinicians cannot accurately predict psychological incapacities based on past treatment in most individual cases. Deborah L. Rhode, Moral Character as a Professional Credential, 94 Yale L.J. 491, 581-82 (1985). 3 The legislative history of the ADA includes numerous approving references to Arline's interpretation of the law. See Senate Report at 21-24; Education and Labor Report at 50-53. - 3 - 01-07490 Even where generalizations about an individual's class are statistically true, civil rights law require focus on individuals rather than classes. In City of Los Angeles v. Manhart, 435 U.S. 702 (1978), the Court considered whether a pension plan that required female employees to make larger contributions than male employees violated Title VII of the Civil Rights Act of 1964. Although both parties conceded that statistical and actuarial data confirmed that women, as a class, live longer than men, the Court held that the plan violated Title VII. The Court concluded that Congress had intended unnecessary classifications based on gender to be unlawful, despite statistical or actuarial analysis. Id. at 707-709. Noting that there was "no assurance that any individual woman ... will actually fit the generalization" upon which the plan was based, the Court held that Title VII required an analysis of the individual instead of the class: Even if statutory language were less clear, the basic policy of the statute requires that we focus on fairness to individuals rather than fairness to classes. Practices that classify employees in terms of religion, race, or sex tend to preserve assumptions about groups rather than thoughtful scrutiny of individuals. Id., at 708, 709.4 ____________________________ 4 See also Arizona Governing Comm. for Tax Deferred Annuity and Deferred Compensation Plans v. Norris, 463 U.S. 1073 (1983)(holding that pension plans that pay lower monthly benefits to female contributors violate title VII); Connecticut v. Teal, 457 U.S. 440 (1982)(holding that an individual may sustain a "disparate impact" claim under Title VII, even if an employer ultimately favors plaintiff's racial group). - 4 - 01-07491 Like Title VII of the 1964 Civil Rights Act,5 the ADA was intended to combat generalizations based on a person's class--- in this case, a person's status based on disability. This congressional intent is reflected in the findings supporting the ADA, where Congress found that, individuals with disabilities are a discrete and insular minority who have been ... subjected to a history of purposeful unequal treatment... resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society. 42 U.S.C. S 12101(a)(7). The legislative history also reveals that Congress recognized the need to combat the "false presumptions, generalizations, misperceptions, patronizing attitudes, ignorance, irrational fears, and pernicious mythologies"6 surrounding disability and the need for a more enlightened view towards persons with disabilities: Gradually public policy affecting persons with disabilities recognized that many of the problems faced by disabled people are not inevitable, but instead are the result of discriminatory policies based on unfounded, outmoded stereotypes and perceptions, and deeply imbedded prejudices towards people with disabilities. These discriminatory policies and practices affect people with disabilities in every aspect of their lives, from securing employment, to ______________________ 5 Unlike title II, section 703(a)(1) of the Civil Rights Act of 1964, which was at the heart of the Manhart decision, does not explicitly include an exception for necessary eligibility criteria. In Manhart, several amici suggested that a gender based distinction was justified by business necessity. The Court held, however, that these distinctions were not shown to be "reasonably necessary to the normal operation of the Department's retirement plan." 435 U.S. at 716 n. 30. 6 Senate Report, at 7; Education and Labor Report, at 30. - 5 - 01-07492 participating fully in community life,... to enjoying all the rights that Americans take for granted. Judiciary Report, at 25. As in Manhart, unnecessary classifications based on disability are not permitted because of the ADA's requirement that public entities focus on the abilities of individuals rather than class generalizations. Even if it could be shown that, as a class, persons with certain mental disabilities are more likely to become impaired in their ability to practice law in the future,7 the ADA prohibits unnecessary inquiries into disabilities.8 All of the courts that have considered challenges to mental health questions in professional licensing have concluded that a broad-based inquiry, such as the Board's question 20(b), violates title II of the ADA. Ellen S. v. Florida Board of Bar Examiners, 859 F. Supp. 1489 (S.D. Fla. 1994)(a licensing board violates title II by asking applicants about any counseling or diagnosis for any nervous, mental, or emotional condition); Medical Society of New Jersey v. Jacobs, 1993 WL 413016 (D.N.J. 1993)(a licensing board's inquiry of "have you ever suffered or been treated for any mental illness or psychiatric problem" violates title II); In re Applications of ________________________ 7 The United States does not concede and the record does not support the position that persons answering question 20(b) are more likely to become impaired in the ability to practice law in the future than other applicants. 8 Of course, if a disability could perfectly predict future behavior of all persons with that disability, then it rises above being a mere generalization. However, even the defendant does not assert and the record clearly does not show that any past treatment for mental disability is perfectly predictive of current or future fitness to practice law. - 6 - 01-07493 Anne Underwood and Judith Ann Plano, No. BAR 93-21, 1993 WL 649283 at *2 (Me. Dec. 7, 1993) ("The Board's requirement that applicants answer questions 29 and 30 [regarding diagnosis of and treatment for emotional, nervous or mental disorders], and that they sign a broad medical authorization violates the ADA because it discriminates on the basis of disability and imposes eligibility criteria that unnecessarily screen out individuals with disabilities."); cf. In re Petition of Frickey, et al., 515 N.W.2d 741 (Minn. April 28, 1994), (while not decided on the basis of the ADA, finding that similar inquiries regarding mental health history on Minnesota's bar admissions application were unnecessary and deterred students from obtaining necessary counseling); see also Applicants v. Texas State Board of Law Examiners, 93 CA 740 SS (W.D. Tex. Oct. 10, 1994)(broad-based inquiries into an applicant's mental health history violate title II of the ADA).9 _________________________ 9 The United States believes that, to the extent that it permitted even limited inquiries into "severe" mental disabilities, the court's opinion in Texas State Board of Law Examiners, 93 CA 740 SS (Oct. 10, 1994), was incorrectly decided because these inquiries are unnecessary classifications that violate title II and the principles of Manhart. In Texas State Board of Law Examiners, the court based its decision on the premise that a licensing board can inquire into an applicant's mental health in order to determine if he or she has the mental and emotional fitness to fulfill a lawyer's legal, ethical, and moral responsibilities. Singling out persons solely on the basis of their histories of treatment or counselling for certain mental disabilities, however, does not further that end. The court in Texas State Board of Law Examiners stated, (continued...) - 7 - 01-07494 B. TITLE II PROHIBITS DISCRIMINATION AGAINST QUALIFIED INDIVIDUALS WITH DISABILITIES Title II prohibits a public entity from discriminating against a "qualified individual with a disability," which is defined in title II of the ADA and section 35.104 of the title II regulation to mean, an individual with a disability who, with or without reasonable modifications to rules, policies or practices ... meets the essential eligibility requirements for the receipt of services or the participation in the programs or activities provided by a public entity. 42 U.S.C. S 12131(2); 28 C.F.R. S 35.104 (emphasis added). A person is a "qualified individual with a disability" with respect to licensing or certification if he or she can meet the essential eligibility requirements for receiving the license or _________________________ 9 (...continued) Bipolar disorder, schizophrenia, paranoia, and psychotic disorders are serious mental illnesses that may affect a person's ability to practice law. People suffering from these illnesses may suffer debilitating symptoms that inhibit their ability to function normally. The fact that a person may have experienced an episode of one of these mental illnesses in the past but is not currently experiencing symptoms does not mean that the person will not experience another episode in the future or that the person is currently fit to practice law. Id., at 7-8 (emphasis added). This analysis is fundamentally flawed. For those individuals who demonstrate symptoms that would inhibit their ability to practice law, an inquiry into an applicant's behavior would identify those candidates unfit to practice law. On the other hand, if an applicant is not demonstrating symptoms that would inhibit their ability to practice law, then he or she would be currently fit to practice law and cannot lawfully be denied a license to practice on the basis of disability. - 8 - 01-07495 certification. 28 C.F.R. pt. 35, app. A at 453 (July 1, 1993).10 Where public safety may be affected, a determination of whether a candidate meets the "essential eligibility requirements" may include consideration of whether the individual with a disability poses a direct threat to the health and safety of others.11 So long as the candidate does not pose a direct threat and meets the __________________________ 10 The section-by-section analysis also indicates that determining what constitutes "essential eligibility requirements" has been shaped by cases decided under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. S 794. 28 C.F.R. pt. 35, app. A at 451. These cases have demanded a careful analysis behind the qualifications used to determine the actual criteria that a position requires. School Bd. v. Arline, 480 U.S. 273, 287-288 (1986)(requiring an individualized analysis based on facts, instead of generalizations based on unfounded stereotype); Pandazides v. Virginia Bd. of Educ., 946 F.2d 345, 349-50 (4th Cir. 1991)(noting that "defendants cannot merely mechanically invoke any set of requirements and pronounce the handicapped applicant or prospective employee not otherwise qualified. The district court must look behind the qualifications."); Doe v. Syracuse School Dist., 508 F. Supp. 333, 337 (N.D.N.Y. 1981) (requiring analysis behind "perceived limitations"). See also Strathie v. Department of Transp., 716 F.2d 227, 231 (3d Cir. 1983) (finding State's characterization of essential nature of program to license bus drivers overbroad, and requiring a "factual basis reasonably demonstrating" that accommodating the individual would modify the essential nature of the program). 11 As noted in the Department's title II analysis accompanying section 35.104, A "direct threat" is a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services.... Although persons with disabilities are generally entitled to the protection of this part, a person who poses a significant risk to others will not be "qualified," if reasonable modifications to the public entity's policies, practices, or procedures will not eliminate that risk. 28 C.F.R. pt. 35, app. A at 448 (1993). - 9 - 01-07496 essential eligibility criteria, he or she is protected against discrimination on the basis of disability. This case does not involve a final decision to deny a license based on disability. However, title II and its implementing regulations proscribe more than total exclusion on the basis of disability.12 Title II contains a sweeping prohibition of practices by public entities that discriminate against persons with disabilities. Section 202 of the Act, 42 U.S.C. S 12132, provides, Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. As a public entity13 responsible for licensing, the Board must comply with section 35.130(b)(6), which prohibits administering a licensing program "in a manner that subjects qualified persons with disabilities to discrimination." Similarly, section 35.130(b)(3)(i) prohibits use of "methods of administration" that have a discriminatory effect. Finally, section 35.130(b)(8) prohibits the Board from imposing unnecessary eligibility __________________________ 12 See e.g., Ellen S. v. Florida Board of Bar Examiners, 859 F. Supp. 1489, 1493-94 (S.D. Fla. 1994); Medical Society of New Jersey v. Jacobs, 1993 WL 413016 (D.N.J.), at *7. 13 A "public entity" is defined in title II to include "any department, agency ... or other instrumentality of a State ... or local government." 42 U.S.C. S 12131(1)(B). The Board falls within this definition as it is the State governmental agency responsible for licensing attorneys in the Commonwealth of Virginia. - 10 - 01-07497 criteria that screen out, or tend to screen out, persons with disabilities. Two conclusions follow from analyzing title II and the regulation. First, section 35.130(b)(8) prohibits any policy that unnecessarily imposes requirements or burdens on individuals with disabilities that are greater than those placed on others. 28 C.F.R. pt. 35, app. A at 453-54 (1993); see Ellen S. at 1494; Medical Society at *7. Second, unnecessary inquiries into disabilities are prohibited. 1. LICENSING BOARD INQUIRIES INTO TREATMENT OR COUNSELING FOR MENTAL DISABILITIES IMPOSE UNNECESSARY BURDENS ON PERSONS WITH DISABILITIES Title II prohibits a licensing board from imposing unnecessary burdens on persons with disabilities at all stages of the licensing process, regardless of whether a license is eventually granted. Ellen S., at 1494; Medical Society, at *6-8. The Board's inquiries and reporting requirements concerning diagnosis and treatment for mental illness impose requirements on persons with histories of disabilities that are greater than those imposed on other applicants. Applicants are required to state whether, within the past five years, they have been treated or counseled for any mental, emotional, or nervous disorder. Only those applicants who answer affirmatively are then required to identify and provide the complete address of each individual consulted for the condition and record the beginning and ending dates of consultation. By signing their applications, candidates also waive their rights of confidentiality to and authorize - 11 - 01-07498 release of their treatment or consultation records. This process is invasive because it requires only those persons who answer affirmatively to provide information about mental health treatment -- treatment that is often bound up with intensely personal issues such as family relationships and bereavement. The inquiries are also burdensome because of the stigma that attaches to treatment for mental or emotional illness. As the Supreme Court has recognized, there is a substantial liberty interest under the Due Process Clause of the Constitution in avoiding the social stigma of being known to have been treated for a mental illness. Parham v. J.R., 442 U.S. 584, 600 (1979); Addington v. Texas, 441 U.S. 418, 426 (1979).14 See also Smith v. Schlesinger, 513 F.2d 462, 477 (D.C. Cir. 1975) ("[m]ental illness is unfortunately seen as a stigma. The enlightened view is that mental illness is a disease...but we cannot blind ourselves to the fact that at present, despite lip service to the contrary, this enlightened view is not always observed in practice") (ordering Department of Defense to present ______________________ 14 In Parham, the Court found that a person's liberty is "substantially affected" by the stigma attached to treatment in a mental hospital: "The fact that such a stigma may be unjustified does not mean it does not exist. Nor does the fact that public reaction to past commitment may be less than the public reaction to aberrant behavior detract from this assessment. The aberrant behavior may disappear, while the fact of past institutionaliza- tion lasts forever." Parham v. J.R., 442 U.S. 584, 622, n.3 (1979) (Stewart, J., concurring in judgment). - 12 - 01-07499 investigative file on plaintiff, whose security clearance had been revoked.)15 The ADA's definition of disability also recognizes the potential stigma attaching to treatment for mental illness. Persons who have been diagnosed or received treatment for a mental condition may be covered by the third prong of the "disability" definition, regardless of whether they have ever suffered from an actual substantial impairment of a major life activity, 42 U.S.C. S 12102(2)(C).16 Unfortunately, persons who have sought treatment for mental health problems in the past are often seen as emotionally disabled even if their past or current capability or stability may not be affected. See discussion infra.17 As the Supreme Court observed in School Board of Nassau ________________________ 15 See also In Re John Ballay, 482 F.2d 648, 668-69 (D.C. Cir. 1973) ("[d]ischarged patients must not only cope with stigma of having once been hospitalized, but must often continue to cope with the 'mental illness' label itself....Even the most enlightened persons may unwittingly harbor views associated with this stigma."). 16 The title II regulation defines this prong to include persons who have "a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such an impairment . . . ." 28 C.F.R. S 35.104 (1992). 17 Of course, persons with histories of treatment or counselling for a mental condition may also be covered by the second prong of the "disability" definition, which protects persons with a "record" of a disability, regardless of whether they are not currently impaired in a major life activity. 42 U.S.C. S 12102(2)(B). The title II regulation defines this prong to include persons who have "a history of, or [have] been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities." 28 C.F.R. S 35.104 (1992). - 13 - 01-07500 County v. Arline, 480 U.S. 273 (1987), Congress, in enacting the "regarded as" provision, "acknowledged that society's accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment." Id., at 284.18 _______________________ 18 The Board's inquiries into an individual's history of disabilities also has a more insidious discriminatory effect. Concern over the Board's inquiries about diagnosis and treatment for mental illness deters law students and other applicants from seeking counseling for mental or emotional problems. See Stephen T. Maher & Lori Blum, A Strategy for Increasing the Mental and Emotional Fitness of Bar Applicants, 23 Ind. L. Rev. 821, 830-33 (1990) (detailed discussion of how such inquiries have deterrent effect). Indeed, this deterrence factor was part of the basis for the State of Minnesota Supreme Court's order in In re Petition of Frickey, et al., 515 N.W.2d 741 (Minn. Apr. 28, 1994) (deleting questions regarding mental health history from bar admissions application on grounds that the questions deterred law students from seeking needed counseling). This conclusion is supported by studies suggesting that law students may decide against seeking treatment because they are afraid that it might disqualify them from admission to the bar. In a recent survey of over 13,000 law students, 41 percent responded that they would seek assistance for a substance abuse problem if they were assured that bar officials would not have access to the information. As to whether they would refer a friend who had a substance abuse problem, 47 percent responded that they would if bar officials would not have access to the information. Association of American Law Schools, Report of the AALS Special Committee on Problems of Substance Abuse in the Law Schools, 44 Journal of Legal Education 35, 55 (1994) It can be reasonably assumed that a study asking the same questions about mental health problems would show similar findings. Furthermore, even when treatment is sought, its effectiveness may be compromised, because knowledge of the Board's potential investigation of issues surrounding treatment is likely to undermine the trust and frank disclosure on which successful counseling depends. See Maher & Blum, supra, at 824, 833-46. - 14 - 01-07501 2. QUESTION 20(B) IS UNNECESSARY TO DETERMINING FITNESS TO PRACTICE LAW The burdens created by question 20(b) are unnecessary because question 20(b) is an unnecessary eligibility criteria. Section 35.130(b)(8) provides, A public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered. 28 C.F.R. S 35.130(b)(8)(emphasis added). This section is identical in substance to a statutory provision in title III, 42 U.S.C. S 12182(b)(2)(A)(i), and the title III regulation, 28 C.F.R. 36.301(a).19 The legislative history of the analogous title III provision makes clear that Congress intended to prohibit unnecessary inquiries into disability. It also would be a violation for [a public accommodation] to invade such people's privacy by trying to identify unnecessarily the existence of a disability, as, for example, if the credit application of a department store were to inquire whether an individual has epilepsy, has ever ... been hospitalized for mental illness, or has other disability.20 _________________________ 19 Section 204 of the ADA provides that the title II regulation shall incorporate this concept insofar as it requires the title II regulation to be consistent with the ADA generally. 42 U.S.C. S 12134(b); Judiciary Report at 51; Education and Labor Report at 84; 28 C.F.R. pt. 35, app. A at 440. 20 Senate Report at 62; see also Education and Labor Report at 105; Judiciary Report at 58. The analysis accompanying the title III regulations also reflects this Congressional intent. 28 C.F.R. pt. 36, app. B at 590. - 15 - 01-07502 The title II Technical Assistance Manual, published by the Attorney General pursuant to statutory mandate,21 states that Attorney General pursuant to statutory mandate, states that title II similarly prohibits unnecessary inquiries into disability.22 This same conclusion was also reached in Ellen S., where the court held that merely asking for the type of information called for by question 20(b) would violate title II of the ADA. The court noted that, "as the Title II regulations make clear, question 29 and the subsequent inquiries discriminate against Plaintiffs by subjecting them to additional burdens based on their disability." Id., at 1493-94. The court was careful to note that asking the question itself independently violates title II, without regard to whether an ensuing investigation is conducted. Id., at 10, n. 7. Inquiries like the Board's question 20(b) are unnecessary because diagnosis or treatment for any mental, emotional, or nervous disorder provides an uncertain basis for predicting future behavior 23 and because the Board may ask questions focusing directly on conduct and behavior, including those that may be associated with mental illness. The Title II Technical ________________________ 21 42 U.S.C. SS 12206(c)(3) & (d) (Supp. II 1990). 22 Title II Technical Assistance Manual S II-3.5300. 23 See generally Jay Ziskin, Coping with Psychiatric and Psychological Testimony 1-63 (3d ed. 1981); Bruce J. Ennis & Thomas R. Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62 Cal. L. Rev. 693 (1974) (both articles citing extensive authority establishing the inability of mental health professionals to make reliable predictions of future behavior). - 16 - 01-07503 Assistance Manual states that, [p]ublic entities may not discriminate against qualified individuals with disabilities who apply for licenses, but may consider factors related to the disability in determining whether the individual is "qualified." Title II Technical Assistance Manual, at II-3.7200 (emphasis added). Such a permissible "factor related to the disability" is any inappropriate behavior associated with that disability that legitimately reflects on fitness to practice. Such conduct or behavior, whether it results from mental illness, substance dependency, or other factors (such as irresponsibility or bad moral character), provides a basis to determine fitness to practice law without relying on an applicant's diagnosis or treatment history.24 Thus, if the Board wants to assess accurately the likelihood of improper behavior, the Board can and should inquire about credit history, financial or legal problems, criminal records, leaves of absence, disciplinary actions, ____________________________ 24 Indeed, inquiring into mental health treatment history may be ineffective. Diagnoses of some mental disabilities such as bipolar disorder or manic-depression often do not arise until the late-twenties or significantly later -- well after many bar applicants are asked to answer question 20(b). American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 213-228 (3d ed. 1987), (DSM III-R); Frederick K. Goodwin & Kay R. Jamison, Manic-Depressive Illness 127-156 (1990). Interestingly, the age when symptoms or behaviors associated with these disabilities first appear is generally younger than the age when treatment is first sought. Frederick K. Goodwin & Kay R. Jamison, Manic-Depressive Illness 128 (1990). The likelihood of episodes of aberrant behavior is not significantly related to the age of onset of symptoms associated with these disorders. Gabrielle A. Carlson, Yolande B. Davenport & Kay R. Jamison, A Comparison of Outcome in Adolescent- and Late-Onset Bipolar Manic-Depressive Illness, 134 Am. J. of Psychiatry 919 (1977). Therefore, making direct inquiries about behavior will better serve the Board's purposes. - 17 - 01-07504 suspensions, or terminations from school or jobs in the past, but may not focus the inquiry only on such events or problems occasioned by physical or psychiatric illnesses or conditions. Similarly, the Board may also inquire about personal behavior, including whether the applicant uses illegal drugs and the frequency of use.25 The Board may also ask applicants, references, colleagues, and business associates whether there is anything that would currently impair their ability to carry out the duties and responsibilities of an attorney in a manner consistent with the standards of conduct for an attorney admitted to practice in the Commonwealth of Virginia.26 Indeed, addressing the area of physician licensure, the American Psychiatric Association guidelines state, The salient concern is always the individual's current capacity and/or current impairment. Only information about current impairing disorder affecting the capacity to function as a physician, and which is ____________________________ 25 Under the ADA, "the term 'individual with a disability' does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use." 42 U.S.C. S 12110(a). 26 For instance, in Doe v. Syracuse School District, 508 F. Supp. 333 (N.D.N.Y. 1981), the court held that a question on a job application form asking whether the applicant had ever experienced a nervous breakdown or undergone psychiatric treatment was illegal under the Rehabilitation Act and its implementing regulations. The district court noted that, "if defendant sincerely wanted to employ persons that were capable of performing their jobs, all it had to ask was whether the applicant was capable of dealing with various emotionally demanding situations." Id. at 337. - 18 - 01-07505 relevant to present practice, should be disclosed.27 Other questions already on the bar application elicit a wealth of information to illuminate an individual's past behavior. These inquiries -- which require full disclosure of employment history, educational background, financial history, military service, and criminal record -- provide a sound and comprehensive basis for drawing inferences about an individual's fitness for the practice of law without resort to the mental health history. See Medical Society of New Jersey v. Jacobs, 1993 WL 413016, at *7 (questions regarding applicants' diagnosis of and treatment for psychiatric illness or condition are unnecessary, where the medical examiners could "formulate a set of effective questions that screen out applicants based only on their behavior and capabilities"); In re Petition of Frickey, et al., 515 N.W.2d 741 (Minn. April 28, 1994), (order removing similar questions from Minnesota bar admissions application, finding that "questions relating to conduct can, for the most part, elicit the information necessary for the Board of Law Examiners to enable the Court to protect the public from unfit practitioners").28 Indeed, a recent _________________________ 27 American Psychiatric Association, Recommended Guidelines Concerning Disclosure and Confidentiality, Work Group on Disclosure (Dec. 12, 1992) at 1. 28 Related to the fact that question 20(b) is unnecessary, question 20(b) also suffers from being overbroad. While the United States does not endorse its opinion, see supra, the court in Texas Board of Law Examiners found that even an inquiry into mental disabilities that was much narrower than question 20(b) would violate the ADA. The court rejected a question which asked, (continued...) - 19 - 01-07506 District of Columbia study determined that information obtained pursuant to inquiries about treatment for mental health problems has "rarely, if ever, brought to light a serious fitness question that was not highlighted by other information (concerning litigation, employment, encounters with legal authorities, academic or bar discipline, etc.)". Reishel, The Constitution, the Disability Act, and Questions about Alcoholism, Addiction, and Mental Health, 61 The Bar Examiner 10, 20 (1992).29 ___________________________ 28 (...continued) a) Have you, within the last ten (10) years, been treated for any mental illness? b) Have you, within the last ten (10) years, been admitted to any hospital or other facility for the treatment of any mental illness? Section 571.033, Texas Health and Safety Code, defines mental illness, as follows: "Mental illness" means an illness, disease, or condition other an epilepsy, senility, alcoholism, or mental deficiency, that: (A) substantially impairs a person's thought, perception of reality, emotional process, or judgment; or (B) grossly impairs behavior as demonstrated by recent disturbed behavior. The court observed that, "such a broad-based inquiry violates the ADA." Id. at 20 (emphasis added). The boundless definition of "disorder" in defendant's question 20(b), which is much broader than the question rejected in Texas State Board of Law Examiners, would violate the ADA under the same reasoning. 29 The article states, The vast bulk of such responses [to the mental health treatment inquiry] have concerned counseling, most frequently marriage counseling, with no relevance to fitness to practice. Almost always more serious mental health problems have been signalled by responses to (continued...) - 20 - 01-07507 In enacting title II of the ADA, Congress sought to abolish unnecessary classifications based on disability. Nowhere was this need greater than in protecting the rights of persons with mental disabilities. The ADA outlaws these classifications and seeks to abolish attendant stereotypes. It is possible that the Virginia Board of Bar Examiners may find its task of identifying applicants unfit to practice law more time-consuming and labor- intensive if required to look at an applicant's individual ability and individual record of behavior, rather than using disability as a "red flag" to separate out applicants for further investigation. The ADA, however, requires no less. __________________________ 29 (... continued) other questions (about arrests, crimes, debt, litigation, discipline, etc.). Indeed, since mental health information is only relevant to a fitness inquiry because it might show a risk to job performance, arguably the only evidence that is material is that the applicant's mental condition has interfered with the applicant's job, school, or analogous activities. Any such significant interference should be, and almost invariably has been, reflected in the other information the committee seeks. Responses of about 20,000 applicants to mental health inquiries over a period of seven years never resulted in a applicant's noncertification for admission to the District of Columbia bar. Reishel, The Constitution, the Disability Act, and Questions about Alcoholism, Addiction, and Mental Health, 61 The Bar Examiner 10, 20 (1992). - 21 - 01-07508 III. CONCLUSION For the foregone reasons, the Court should find in favor of plaintiff. Respectfully submitted, DEVAL L. PATRICK Assistant Attorney General Civil Rights Division JOHN L. WODATH JOAN A. MAGAGNA SHEILA M. FORAN KEN S. NAKATA Attorneys U.S. Department of Justice Civil Rights Division Public Access Section P.O. Box 66738 Washington, D. C. 20035-6738 Tel: (202) 307-6309 RICHARD PARKER Assistant United States Attorney Appearing Per 28 U.S.C. S 517 1101 King Street, Suite 502 Alexandria, VA 22304 Tel: (703) 706-3700 November 21, 1994 Alexandria, Virginia - 22 - 01-07509 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division JULIE ANN CLARK : : Plaintiff, : : v. : : VIRGINIA BOARD OF BAR EXAMINERS : : C.A. # 94-211-A and : : W. SCOTT STREET, III, Secretary : Virginia Board of Bar Examiners : : Defendants. : : MEMORANDUM OF THE UNITED STATES AS AMICUS CURIAE IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT Julie Ann Clark brought this action seeking declaratory and injunctive relief against the Virginia Board of Bar Examiners ("Board"). Although she has successfully passed the Virginia Bar examination and has satisfied all of the other requirements of the Board's character and fitness review, she has refused to answer question 20(b) of the Board's application, which asks, Have you within the past five (5) years been treated or counseled for any mental, emotional, or nervous disorder? Ms. Clark's lawsuit seeks a declaration that the Board violated title II of the Americans with Disabilities Act (ADA), 42 U.S.C. SS 12101-12213 (Supp. II 1990) by asking question 20(b). Ms. Clark also seeks a permanent injunction barring the Board from inquiring into her mental health history and the mental health history of other bar applicants. 01-07510 Earlier in this litigation, this Court denied both defendants' motion and the plaintiff's cross-motion for summary judgment. The defendants are now moving this Court again for summary judgment on arguments substantially similar to those raised in its prior motion because of their continuing belief that question 20(b), as currently written, does not violate title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. SS 12131-12180. The United States, as amicus curiae, urges this Court to deny the defendants' motion. ARGUMENT I. THE BOARD'S LICENSING PROCEDURES ARE SUBJECT TO TITLE II OF THE ADA Title II contains a sweeping prohibition of practices by public entities that discriminate against persons with disabilities. Section 202 of the Act, 42 U.S.C. S 12132, provides, Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. A "public entity" is defined in title II to include "any department, agency ... or other instrumentality of a State ... or local government." 42 U.S.C. S 12131(1)(B). The Board falls within this definition as it is the State governmental agency responsible for licensing attorneys in the Commonwealth of - 2 - 01-07611 Virginia. As a public entity, the Board may not discriminate on the basis of disability in conducting its licensing activities. Several provisions of the title II regulation prohibit policies that unnecessarily impose greater requirements or burdens on individuals with disabilities than those imposed on others. As a State licensing entity, the Board must comply with section 35.130(b)(6), which states, A public entity may not administer a licensing or certification program in a manner that subjects qualified individuals with disabilities to discrimination on the basis of disability * * *. 28 C.F.R. S 35.130(b)(6). Section 35.130(b)(3)(i) further provides, A public entity may not, directly or through contractual or other arrangements, utilize criteria or methods of administration ... that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability. 28 C.F.R. S 35.130(b)(3)(i). Also applicable is the regulatory provision prohibiting discriminatory eligibility criteria which states: A public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered. 28 C.F.R. S 35.150(b)(8) (emphasis added). This provision means that the Board cannot require applicants to answer question 20(b) as a condition for licensure unless the Board can demonstrate that this question is necessary to determining fitness to - 3 - 01-07512 practice law. As discussed further below, we do not believe that the Board can meet this burden. II. THE ADA PROVISIONS RELATING TO EMPLOYMENT-RELATED INQUIRIES ARE NOT APPLICABLE TO PROFESSIONAL LICENSING ACTIVITIES In support of its motion, the Board looks to title I of the ADA, which prohibits discrimination in employment on the basis of disability. 42 U.S.C. SS 12111 - 12117 (Supp. II 1990). Among the areas addressed by title I are medical inquiries during the application stage for employment. Title I explicitly prohibits an employer from inquiring into an applicant's disability before a prospective employee is offered a job. 42 U.S.C. S 12112 (c) (2). The Board interprets title I to allow an employer, once a conditional job offer is made, to then require the applicant to undergo a medical examination and respond to any medical inquiry so long as all applicants are similarly required to undergo this procedure. 42 U.S.C. S 12112 (c) (3). 1 The Board first asserts that it is entitled to ask question 20 (b) because, in contrast to title I's specific prohibitions, title II of the ADA contains no specific prohibition on inquiries into disability. This argument is incorrect because the concerns raised by discrimination in employment and state licensing are completely different. Furthermore, the legislative history of the ADA does not support the Board's statutory interpretation. _______________________ 1 It is not necessary here to determine whether this interpretation is correct, because title I is simply not applicable in these circumstances. - 4 - 01-07513 As noted by the court in Ellen S. v. Florida Board of Bar Examiners, 94-0429-CIV-KING (Aug. 1, 1994), at 8: [T]he legislative history reveals that Congress deliberately chose 'not to list all the types of actions that are included within the term 'discrimination', as was done in titles I and III.' H.R. Rep. No. 485(II), 101st Cong., 2d Sess. 84 (1990), -reprinted in- 1990 U.S.C.C.A.N. 303, 367. Congress chose instead to direct the Department of Justice to promulgate regulations. Id., n.6 (citing Kinney v. Yerusalim, 812 F. Supp. 546, 548 (E.D. Pa.), aff'd, 9 F.3d 1067 (3rd Cir. 1993), cert. denied, 114 S. Ct. 1545 (1994)). As the Ellen S. court found, the title II regulation prohibit bar examiners from inquiring into the mental health history of applicants. Id. at 10. The Board also argues -- by analogizing to title I -- that it should be permitted to make medical inquiries, as it is in a posture comparable to an employer who has made a conditional job offer. This argument is flawed in two respects. First, title I's division between "pre-offer" and "post- offer" medical inquiries has no application to the entirely separate area of professional licensing covered by title II. In title I, Congress created very detailed procedures and requirements in order to protect the rights of prospective employees with disabilities. This careful construct, because it was designed for a very specific transaction -- hiring of employees -- is unworkable when it is superimposed over a very different kind of transaction -- licensing of professionals. Title II, on the other hand, specifically applies to state - 5 - 01-07514 licensing processes, 28 C.F.R. 35.130(b)(6), and permits the Board to perform its very important function of assessing the competency of aspiring attorneys and imposing eligibility requirements that are "necessary" for this purpose, 28 C.F.R. 35.130(b)(8). Furthermore, the court in Medical Society of New Jersey v. Jacobs, 1993 WL 413016 (D.N.J. 1993), rejected an argument similar to the one raised by the Board. The court examined the legislative history of both titles I and II of the ADA and concluded that, to the extent title I was to be incorporated in title II, it was to be done through the title II regulations, which the Court held, "are clear" and "invalidate the Board's procedure of placing extra burdens on disabled applicants." Id. at *9. Second, even if title I were applicable to the Board's licensing procedures, the use of Question 20(b) would not be permissible. Just as title I allows certain "post-offer" medical inquiries, it just as clearly prohibits "pre-offer" inquiries into an applicant's disability. As the Board concedes, the license application procedure is not a "two-step" process (Defendant's Brief, p. 7). Yet, relying on title I would more logically prohibit the defendants from inquiring at all into any disability because prospective licensees to practice law never reach a "post offer" stage in the licensing process.2 A license _________________________ 2 As the Court in Medical Society observed, "[t]he Board ... acknowledges in making this argument that, by analogy to (continued...) - 6 - 01-07515 is either granted or not; conditional licenses are not offered to applicants with medical examinations of all then being required. Rather, the Board makes pre-license medical inquiries of all applicants, and follow-up medical questions, not of all applicants, but only of those who answer "yes" to question 20(b). III. QUESTION 20(B) IS OVERBROAD, UNNECESSARY, AND IMPOSES NEEDLESS BURDENS A core purpose of the ADA is the elimination of barriers caused by the use of stereotyped assumptions "that are not truly indicative of the individual ability of [persons with disabilities] to participate in, and contribute to, society." 42 U.S.C. S 12101(a)(7).3 The ADA does not permit unnecessary inquiries into the existence of disabilities and prohibits policies that impose greater requirements or burdens on individuals with disabilities than those imposed on others. While the ultimate goal of the Board -- to ensure that persons admitted to the Virginia bar have the requisite moral character and fitness to practice law -- is certainly lawful, the means used by the Board to achieve that goal is not. By unnecessarily imposing additional burdens, including disclosures and the ______________________ 2 (...continued) Title I ..., it is technically prohibited from asking the challenged questions before it issues licenses." Id., at *9. 3 See H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. II at 30, 33, 40, 41 (1990) [hereinafter cited as Education and Labor Report]; H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. III at 25 (1990) [hereinafter cited as Judiciary Report]; S. Rep. No. 116, 101st Cong., 1st Sess. at 7, 9, and 15 (1989) [hereinafter cited as Senate Report]. - 7 - 01-07516 possibility of follow-up investigations, on those individuals who have any history of treatment, diagnoses, or counselling for mental or psychiatric conditions, the Board is engaging in precisely the kind of impermissible stereotyping that the ADA proscribes. This case does not present a situation where an individual has been denied admission to the bar based on disability. However, title II and its implementing regulations proscribe more than total exclusion on the basis of disability. See e.g., Ellen S. v. Florida Board of Bar Examiners, 94-0429-CIV-KING at 9 (S.D. Fla. Aug. 1, 1994); Medical Society of New Jersey, 1993 WL 413016, at *7. Section 35.130(b)(6) prohibits administering a licensing program "in a manner that subjects qualified persons with disabilities to discrimination." Similarly, section 35.130(b)(3)(i) prohibits use of "methods of administration" that have a discriminatory effect. Finally, as pointed out in the interpretative guidance accompanying the regulation, section 35.130(b)(8) not only outlaws overt denials of equal treatment of individuals with disabilities, it prohibits policies that unnecessarily impose requirements or burdens on individuals with disabilities greater than those placed on others. 28 C.F.R. pt. 35, app. A at 453-54 (1993); see Ellen S. at 10; Medical Society at *7. It also prohibits unnecessary inquiries into disability. Ellen S. at 9, 10, n. 7. In Ellen S. v. Florida Board of Bar Examiners, 94-0429-CIV- KING (S.D. Fla. Aug. 1, 1994), the court held that simply asking - 8 - 01-07517 for the type of information called for by question 20(b) violated title II of the ADA. In that case, plaintiffs challenged a question that is substantially identical in scope to Question 20(b) of the Virginia application.4 The court noted that, "as the Title II regulations make clear, question 29 and the subsequent inquiries discriminate against Plaintiffs by subjecting them to additional burdens based on their disability." Id., at 9. The court further held that, even apart from the ensuing investigation, the question itself independently violated title II. Id., at 10, n. 7. __________________________ 4 Question 29 of the application to the Florida bar reads as, 29. Consultation with Psychiatrist, Psychologist, Mental Health Counsellor or Medical Practitioner. a. Yes No Have you ever consulted a psychiatrist, psychologist, mental health counselor or medical practitioner for any mental, nervous or emotional condition, drug or alcohol use? If yes, state the name and complete address of each individual you consulted and the beginning and ending dates of each consultation. b. Yes No Have you ever been diagnosed as having a nervous, mental or emotional condition, drug or alcohol problem? If yes, state the name and complete address of each individual who made each diagnosis. c. Yes No Have you ever been prescribed psychotropic medication? If yes, state the name of each medication and the name and complete address of each prescribing physician. Psychotropic medication shall mean any prescription drug or compound effecting the mind, behavior, intellectual functions, perceptions, moods, or emotions, and includes anti-psychotic, anti-depressant, anti-manic and anti-anxiety medications. - 9 - 01-07518 Similarly, question 20(b) of the Virginia application also is overbroad, unnecessary, and imposes needless burdens on persons with disabilities. A. Question 20(b) Violates Title II Because It Is Overbroad and Unnecessary ] Unnecessary inquiries into disabilities are barred by the title II regulation, 28 C.F.R. S 35.130(b)(8), which is identical in substance to a statutory provision in title III, 42 U.S.C. S 12182(b)(2)(A)(i), and the title III regulation, 28 C.F.R. 36.301(a).5 The legislative history of the title III statutory provision makes clear that Congress intended to prohibit unnecessary inquiries into disability. It also would be a violation for [a public accommodation] to invade such people's privacy by trying to identify unnecessarily the existence of a disability, as, for example, if the credit application of a department store were to inquire whether an individual has epilepsy, has ever ... been hospitalized for mental illness, or has other disability. Senate Report at 62; see also Education and Labor Report at 105; Judiciary Report at 58. The Department of Justice emphasized this Congressional intention in the analysis accompanying its title III regulation, 28 C.F.R. pt. 36, app. B at 590. The title II Technical Assistance Manual, published by the Attorney General pursuant to statutory mandate,6 reiterates that title II ____________________ 5 Section 204 of the ADA provides that the title II regulation shall incorporate this concept insofar as it requires the title II regulation to be consistent with the ADA generally. 42 U.S.C. S 12134(b); Judiciary Report at 51; Education and Labor Report at 84; 28 C.F.R. pt. 35, app. A at 440. 6 42 U.S.C. SS 12206(c)(3) & (d) (Supp. II 1990). - 10 - 01-07519 prohibits unnecessary inquiries into disability. U.S. Department of Justice, The Americans with Disabilities Act -- Title II Technical Assistance Manual S II-3.5300 (1992 & Supp. 1993) ("Technical Assistance Manual"). Thus, question 20(b) can lawfully be used by the Board only if it is necessary to the Board's licensing function. Title II prohibits a public entity from discriminating against a "qualified individual with a disability," which is defined in title II of the ADA and section 35.104 of the title II regulation to mean: an individual with a disability who, with or without reasonable modifications to rules, policies or practices ... meets the essential eligibility requirements for the receipt of services or the participation in the programs or activities provided by a public entity. 42 U.S.C. S 12131(2); 28 C.F.R. S 35.104 (emphasis added). Similarly, as noted in the analysis accompanying section 35.130(b)(6), a person is a "qualified individual with a disability" with respect to licensing or certification if he or she can meet the essential eligibility requirements for receiving the license or certification. 28 C.F.R. pt. 35, app. A at 453 (July 1, 1993).7 Where, as here, public safety may be affected, _____