Abstract
During the decade since the Americans with Disabilities Act went into effect, mental health inquiries by bar examining committees have engendered intense controversy. Courts have reached no clear consensus as to what, if any, questions about mental illness or substance abuse may be posed by licensing agencies. The trend has been towards a form of "relaxed scrutiny" that authorizes inquiries as long as they are focused on serious conditions that may interfere with practice, and are reasonably tailored in scope and time. In this Article, Professor Jon Bauer examines the implications of allowing disability inquiries in the lawyer licensing process.
The Article begins with a case study of one jurisdiction's mental health screening, and the stories of three bar applicants with mental disabilities who have been affected by it. After analyzing the premises of different judicial approaches in applying Title II of the ADA to mental health inquiries, Professor Bauer examines whether the "narrow" mental health questions that many jurisdictions have adopted, focusing on conditions such as depression, bipolar disorder, schizophrenia, and substance abuse, can be justified. In a discussion that draws on the psychiatric literature concerning mental disorders and treatment, the author concludes that many of the questions currently in use cannot be justified under the ADA, even under the premises of "relaxed scrutiny."
The remainder of the Article addresses the need for changes in the bar admissions process if inquiries into applicants' disabilities are to be allowed. The ADA is concerned not only with outcomes, but also with the processes by which decisions are made. This can be seen most clearly in Title I of the ADA, which regulates employment. Title I allows employers to make certain disability-based inquiries, but only if the selection process is structured in a way that minimizes stigma and the risk of discriminatory treatment. Title II of the ADA is less explicit, but its concept of "discrimination" is properly understood to encompass similar process-based protections.
The bar admissions process, as currently structured, is ill-suited to handle disability information. A section of this Article is devoted to a close examination of how the structure, functions and history of bar admissions boards, combined with the particularly stigmatizing nature of the disabilities that have been singled out for scrutiny, create serious dangers of demeaning treatment in the bar admissions process. Even if only "narrow" disability questions are allowed, and nearly all applicants who answer "yes" are ultimately admitted, many applicants with disabilities will experience the process as discriminatory. Professor Bauer argues that the ADA should be construed to prohibit bar examining boards from asking any questions about disability unless the process is restructured in a way that minimizes stigma and the risk of discriminatory treatment. The final section of the Article proposes specific reforms to accomplish this goal.
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