Every law student in the county — myself included — who wants to become a licensed attorney needs to be admitted to the bar of the state where they want to practice law. And to do that, students must undergo an evaluation of their character and fitness to practice law. As it currently exists, however, Wisconsin’s scheme of evaluating bar applicants’ character and fitness violates Title II of the Americans with Disabilities Act (ADA).

In conducting evaluations of bar applicants, many states require applicants to answer intrusive questions regarding their mental health. Many, if not most of these questions — depending on how they are worded — violate Title II of the ADA. A common and illustrative question states require bar applicants to answer is, “Do you currently have any condition or impairment (including, but not limited to, substance abuse, alcohol abuse or a mental, emotional or nervous disorder or condition) which in any way currently affects, or if untreated  could affect, your ability to practice law in a competent and professional manner?”

The Wisconsin Board of Bar Examiners — the institution responsible for ensuring that Wisconsin bar applicants possess the requisite character and fitness to practice law — currently requires bar applicants to answer this question. This question, among others the Board requires applicants to answer, violates the ADA.

In response to a number of complaints regarding Louisiana’s attorney licensure system, a U.S. Department of Justice investigation found the Louisiana Supreme Court’s “process for evaluating applicants to the Louisiana bar who have mental health diagnoses discriminates against qualified individuals with disabilities in violation of the ADA.”

The DOJ specifically concluded that one of Louisiana’s questions — the illustrative question I mentioned previously — in its current form “is discriminatory because inquiring about the effect of an applicant’s health condition when it is untreated seeks information about an applicant’s diagnosis, not its actual effect on his or her current fitness to practice law.” The DOJ also concluded that the question was “unnecessary and improper” because it “considers an applicant’s disability in a hypothetical future untreated form, which does not inform an assessment of how the disability affects an applicant’s current fitness to practice law.” Furthermore, the DOJ noted that the question “appears rooted in unfounded stereotypes about individuals” with mental health diagnoses, in contravention of the ADA.

In determining that the question Louisiana required applicants to answer — among other questions — violated the ADA, the DOJ also found that the question was “not necessary to determine whether applicants will be able to fulfill their professional responsibilities as attorneys because a history of mental health diagnosis or treatment does not provide an accurate basis for predicting future misconduct.” Instead, the DOJ wrote that Louisiana should focus on the conduct of bar applicants because “past behavior is the best predictor of present and future mental fitness.”

After the DOJ wrote the Louisiana Supreme Court regarding the findings of its investigation, the court settled with the DOJ. The court agreed to change the questions it required bar applicants to answer regarding their mental health and also agreed to pay $200,000 to seven individuals whose rights were violated under the ADA.

The criticism of the mental health questions states require bar applicants to answer — including the DOJ’s recent criticism of Louisiana’s questions — is not a particularly new phenomenon; there is a fair — but not substantial — amount of academic literature addressing whether these types of questions violate the ADA. For the most part, the academic field takes a negative view of these questions, as they should. Additionally, there was a fair amount of litigation in the early 1990s by bar applicants challenging the legality of mental health questions. For the most part (except for a Texas case), the courts held that mental health questions violated the ADA, as is exemplified by Clark v. Virginia Bd. of Bar Examiners, a case heard by a federal district court in Virginia.

Given all of these developments, it is likely that the Wisconsin Board of Bar Examiners today is cognizant of the fact that the questions relating to mental health it currently requires applicants to answer may violate the ADA. In fact, the Board was sued in 2006 under the ADA for requiring a bar applicant to pay for a mental examination, although the Board ended up settling with the applicant and did not require her to undergo an examination. Thus, one wonders why the Board continues to employ questions relating to mental health that are of dubious legality under the ADA.

While Louisiana changed its method of evaluating bar applicants’ character and fitness to come into compliance with Title II of the ADA, many states still illegally discriminate against bar applicants with mental health disabilities, including Wisconsin. Hopefully, the Wisconsin Board of Bar Examiners comes into compliance with Title II of the ADA on its own accord. If not, the only thing that might bring the Board into compliance with the ADA is a DOJ investigation, but only time will tell.

Aaron Loudenslager ([email protected]) is a third year law student.