The Supreme Court of the United States has made it clear that states may regulate professions through licensing systems. (1) The Court, confirming this power for bar examiners in Schware v. Board of Bar Examiners, concluded that a state may "require high standards of qualification, such as good moral character or proficiency in its law." (2) Frequently, the licensing process includes at least one question about an applicant's past and current mental health. (3) Mental health advocates have argued that inquiries into mental health history violate an applicant's right to privacy and due process of law. (4) However, whether they apply strict or intermediate scrutiny, courts have rejected these challenges and held that the interest in admitting only those who are fit to practice outweighs an applicant's constitutional rights. (5)
The enactment of the Americans with Disabilities Act (ADA) in 1990 gave mental health advocates new grounds to argue for the elimination of these inquiries from any professional licensing applications that ascertain an applicant's character as prerequisite for admission into a profession. Since then, bar examiners nationwide have been reevaluating the wording and scope of such questions. This essay will first describe different varieties of mental health questions, their success in the courts, and their viability under the ADA. The analysis in this part is based on the type and scope of the question. The discussion will then examine how bar examiners can comply with the ADA while fulfilling their duty to admit only those applicants who are competent to practice law.
Mental Health Inquiries and Current Case Law
Section 12132 of the ADA states that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." (6) Title II defines a qualified individual with a disability as one who can "with reasonable modifications" meet "essential eligibility requirements" necessary to obtain a professional license. Although it is difficult to define "essential functions" for a profession, a licensing board has the burden to prove that inquiries into mental health are job-related and consistent with business necessity. Thus, the issue is whether mental health inquiries on professional licensing applications are discriminatory and if so, whether they are justifiable burdens under the ADA.
Eight states obviously comply with the ADA because they do not require their applicants to submit any information about their mental health. (7) However, the ADA does not eliminate a state's duty to its citizens to admit only fit attorneys. To fulfill this obligation, most states have decided to ask some type of mental health question on their bar applications.
Eighteen states ask questions that are unlimited in scope or time, such as these: (8)
(a) Have you ever consulted a psychiatrist, psychologist, mental health counselor or medical practitioner for any mental, nervous, emotional condition or drug or alcohol use?
(b) Have you ever been diagnosed as having a nervous, mental, emotional condition or drug or alcohol problem?
An applicant answering affirmatively to either question must submit the name and address of any treating professional. Bar examiners justify these unrestricted, particularly invasive questions on the grounds that they must protect the public from "unfit" attorneys. They argue that more narrowly tailored questions allow applicants to exclude possibly relevant information and provide only answers placing the applicant in the most favorable light. Such arguments have successfully defeated constitutional attacks on mental health questions. (9)
In the context of ADA litigation, proponents of limitless questions argue that Title II's general anti-discrimination language does not apply to bar examiners' regulation of attorneys. …