Federal judge: 1 bar exam application question goes too far

A federal judge has found that one of the Indiana bar exam application questions violates the Americans with Disabilities Act because it infringes on potential lawyers’ privacy rights.

But at the same time she struck down that one question in its current form, U.S. Judge Tanya Walton Pratt upheld three other inquiries about mental health and determined the Indiana Board of Law Examiners has the right to make those inquiries of people who want to practice law within the state.

The Southern District of Indiana judge released a 23-page ruling late Tuesday in ACLU-Indiana – Indiana University School of Law – Indianapolis Chapter, and Amanda Perdue, et al. v. The Individual Members of the Indiana State Board of Law Examiners, No. 1:09-CV-0842, granting and denying summary judgment motions from both sides less than a month after she heard arguments in the case.

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. By answering affirmatively on any of the specific questions at issue in this case, applicants are required to fill out a different form that sparks a more individualized review by the Judges and Lawyers Assistance Program.

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

Plaintiffs focus on four specific questions that they contend are too broad and go beyond what the state should be asking. 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.

In her ruling, Judge Pratt began by noting the important context of the case: how mental illness is pervasive in society, disproportionally affects lawyers, and how a social stigma does exist for those dealing with these issues. She looked at Questions 22-25 and asked whether those queries go too far.

Judge Pratt found specifically that Questions 22, 24, and 25 – all delving into specific medical history, mental and psychological conditions, and issues that might impact one’s current practice of law – do not violate the ADA and are permitted. The BLE presented sound evidence and background for asking those questions, she ruled.

But describing Question 23 as quite possibly the most expansive bar application question in the country, Judge Pratt found the state’s BLE violates the ADA by asking bar applicants to disclose any mental, emotional, or nervous disorders they might have had from age 16 to the present.

She cited statistics that only 17 of the 94 applicants who answered that question affirmatively in 2009 were referred to JLAP – showing that the inquiry produces false positives and that the time period in the question is arbitrary and not designed to capture “direct threats” to the state’s bar. The judge also determined that any information produced from that question can still be obtained from the other three questions.

“Perhaps no set of bar application questions could strike the perfect balance between detecting problematic bar applicants and respecting applicants’ privacy,” Judge Pratt wrote, noting that these types of reviews will also lead to some false positives and negatives in flagging problematic applicants. “While the Board has no doubt endeavored to strike the right balance, in the Court’s view, Question 23 simply goes too far and strays outside of the parameters of the ADA.”

Judge Pratt suggested in a footnote that a narrower version of that broad question might comply with the ADA, but she said the court’s job is to determine the lawfulness of that question as it’s written now and not to reformulate an inquiry that might comply.

Attorneys disagreed about what triggers an “injury” under Title II of the ADA, and Judge Pratt sided with the plaintiffs in making a determination that they are treated differently simply by answering questions about their mental health. She also found the American Civil Liberties Union of Indiana has standing to sue because it represents the interests of those who might take the bar exam in the future.

The lawyers have seven days to notify the court if they think the final judgment is appropriate, and if they agree then they’ll need to submit a mutually agreeable proposed final judgment on resolving the case.