Judge: query 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.

U.S. Judge Tanya Walton Pratt upheld three other questions about mental health and determined the Indiana Board of Law Examiners has the right to make those inquiries of people who want to practice law within the state.

The Southern District of Indiana judge released a 23-page ruling Sept. 20, less than a month after she heard arguments in the two-year-old case.

The lawsuit boils down to accusations that four questions on the state’s bar exam application violate the ADA because those inquiries treat certain applicants differently based on their mental health history. By answering affirmatively on any of those specific questions, applicants are required to fill out a different form that sparks a more individualized review by the BLE and Judges and Lawyers Assistance Program.

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

The BLE argued that by simply asking these questions, the state is doing nothing wrong and is not treating individuals differently; rather the process is gathering more information to determine if a potential concern exists that might impact a person’s ability to practice law.

Attorneys disagreed about what triggers an “injury” under Title II of the ADA, and Judge Pratt sided with the plaintiffs in making a determination that they are treated differently simply by answering questions about their mental health.

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

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

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

The judge found the question is too open-ended, and could be confusing to bar applicants – such as a 1L who might have to disclose that he or she sought counseling to help relax because of one-time anxiety about an upcoming exam. She cited statistics that only 17 of the 94 applicants who answered Question 23 affirmatively in 2009 were referred to JLAP – showing that the inquiry produces false positives and that the time period in the question is arbitrary and not designed to capture “direct threats” to the state’s bar. The judge also determined that any information produced from that question can be obtained from the other three questions.

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

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

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