Judge hears arguments on bar exam application suit

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

Attorneys for the American Civil Liberties Union of Indiana and the state’s BLE both appeared before U.S. Judge Tanya Walton Pratt in Indianapolis in the case of Amanda Perdue, et al. v. The Individual Members of the Indiana State Board of Law Examiners, No. 1:09-CV-0842. The two-year-old class-action suit boils down to accusations that certain questions on the state’s bar exam application violate the ADA because those inquiries treat certain applicants differently based on their mental-health history.

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

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

On one side, the plaintiffs focus on four specific questions that they contend are too broad and go beyond what the state should be asking about mental-health history as far as their childhood when only their current states should be considered in the context of conduct and character in practicing law. But the BLE argues that by simply asking these questions, the state is doing nothing wrong and not treating individuals differently; rather the process is gathering more information to determine if a potential concern exists that might impact a person’s ability to practice law.

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

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

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

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

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

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

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

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

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

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

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