Have You Ever...? How State Bar Association Inquiries into Mental Health Violate the Americans with Disabilities Act

66 Pages Posted: 10 Aug 2015

See all articles by Alyssa Dragnich

Alyssa Dragnich

Arizona State University Sandra Day O'Connor School of Law

Date Written: August 1, 2015

Abstract

If a law student applies for bar admission in one of fourteen states, she is required to provide intimate details of all past mental health treatment or diagnoses. Bar examiners — lay people with no training in psychology or psychiatry — then make an evaluation as to whether the student’s mental health precludes her bar admission.

However, this Article shows that such inquiries violate the Americans with Disabilities Act. Under the ADA, questions about a bar applicant’s mental health are only permitted if those questions are “necessary” to protect the public from unfit attorneys, and bar examiners bear the burden of proving this necessity. But statistical data reveals that there is no connection between bar application questions about mental health and the number of attorneys committing misconduct. Because bar examiners cannot show that asking about an applicant’s mental health history is effective in protecting the public from unfit attorneys, the questions fail the “necessary” test and are impermissible under the ADA.

After demonstrating this failure, the Article reviews specific questions used by various states across the country, analyzing which comply with the ADA and which do not. This includes a discussion of the August 2014 settlement between the Department of Justice and Louisiana, where Louisiana agreed to eliminate mental health questions from its bar application, made radical changes to its conditional admission program, and agreed to pay $200,000 for its past discrimination against bar applicants with disabilities. It tracks the evolution of the case law and analyzes why bar associations have resisted bringing their applications into compliance with the ADA. It concludes with recommendations for bar associations and law schools.

Suggested Citation

Dragnich, Alyssa, Have You Ever...? How State Bar Association Inquiries into Mental Health Violate the Americans with Disabilities Act (August 1, 2015). Brooklyn Law Review, Vol. 80, p. 677, 2015. Available at SSRN: https://ssrn.com/abstract=2641913

Alyssa Dragnich (Contact Author)

Arizona State University Sandra Day O'Connor School of Law ( email )

111 East Taylor Street
Phoenix, AZ 85004
United States

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