With the closure of Geocities, this site is moving to http://bardiscrimination.blogspot.com.

Seeking Information and Contacts on the Hidden Issue of Disability Discrimination in Attorney Licensure

Purpose of this Site

The purpose of this site is to oppose discrimination against persons with mental, emotional and developmental disabilities in attorney licensure, which I believe to be a common, though silent, practice of various states, including my own home state, Kansas. I will be giving examples out of my own struggle with the Kansas Supreme Court, which has now three times over a period of years refused without any explanation even to consider the application of the Americans with Disabilities Act ("ADA")to my case, even after one member of the Kansas Board of Law Examiners expressed in writing his opinion that the ADA should be applied in my favor. I make an example of my own case, secure in the knowledge that I am not alone—that other applicants in Kansas and nationwide have faced similar treatment. My reasons for asserting that I know this are stated below.

This site also proposes seven possible avenues others who have been affected by this practice may take to seek to change it. One of these suggested avenues (explained in more detail in the section immediately below) is limited to Kansas and other jurisdictions that have a court rule similar to Kansas Supreme Court Rule 704(k), while the other three are likely to be possible to attempt anywhere in the country. I say that I am presenting this information to encourage others to seek to change the practice because I recognize that my own case is futile. Kansas will never accept me, no matter what I prove, and I am unlikely to ever be able to afford to move anywhere else to try again there. However, if others with disabilities of the same general type as mine who are presently in law school, and others who have had applications rejected only once because of similar disabilities, learn that they are not alone and start working together, policies may be changed in some states.

I am also presenting the material on this site to give others similarly situated who plan to apply for the Kansas Bar evidence to use in their own cases, showing from documents in my case that there is a practice of discriminating against applicants with certain conditions by requiring proof of impossible levels of rehabilitation and also a practice of ignoring the ADA in attorney licensure proceedings. To this end, many documents out of my case have been posted on this site; you may find all of them linked at Documentation of Status.

I recognize that everything that happens during attorney licensure proceedings in Kansas is considered confidential. But that confidentiality is in place for my protection, not the Court's, and I lost most of that protection 14 years ago, when the United States District Court for the District of Kansas included the Kansas Board of Law Examiners' factual grounds for recommending against my admission in a published opinion, Johnson v. State of Kansas, Kansas Supreme Court, 888 F.Supp. 1073 (D. Kan. 1995). Now, I believe that publicizing the evidence of rehabilitation I presented in connection with my 2006 Bar application, as summarized in the Board of Law Examiners' 2007 Minority Dissenting Report, can only help me overcome the effects of the Federal court's 1995 opinion. Moreover, I believe that posting this information my tend to help change the policies of the Bar in Kansas, and in other states, to more nearly conform to the dictates and policy of the ADA.

(Official information about the ADA and ADA enforcement may be found at the Federal government's ADA website ADA.gov.)

The Seven Proposed Approaches to the Problem

1. The most obvious remedy to licensure policies and practices that discriminate is for the affected individuals to simply petition the licensing courts to change their ways. Affected past and potential future applicants, acting individually or in groups, could petition the courts in their own jurisdictions directly asking them to change their rules. The chief problem with this approach is that there is no procedural mechanism available for doing this in any jurisdiction I know of. Courts are not elected in most jurisdictions, and do not pay attention to citizen petitions, even in matters like attorney licensure over which elected state legislatures have no authority due to the constitutional separation of powers. So, from my own experience, courts will simply ignore our petitions. Only attorneys who are already licensed are believed to have any legitimate interest in court rules, and they are allowed some input into court rules generally through such mechanisms as Bar associations and bench-bar committees. We who are adversely affected by the operation of the attorney licensure rules aren't attorneys and have no legally recognized interest in the rules that preclude our careers. But this is only to be expected, given that a major purpose of the licensure regime itself is to exclude any applicant who might possibly injure the public perception of the profession as a whole. We outsiders just don't matter at all.
   
   
2. Given that licensed attorneys--people already "in the club,": so to speak—do have an officially-recognized interest in court rules and some limited avenues for requesting change in those rules, an obvious potential remedy for discriminatory rules is to lobby our attorney friends to ask for changes in the rules. However, this approach also seems unlikely to succeed for four reasons. One is that our attorney friends are very busy, and subject to inertia just like we are. They will have to be convinced that there is a serious problem before it will be worth the time and effort to do anything about it. A second reason this approach seems unlikely to succeed is that one of the justifications asserted for maintaining qualification standards that discriminate against certain mental and emotional conditions in an automatic fashion, regardless of the facts of individual cases, is that such action is necessary to maintain the public image of the profession. Thus, admitting applicants "tainted" by mental illness might be bad for business for the profession as a whole, regardless of what the objective facts say about the individual applicant's actual condition. The third reason is that lawyers are at least as sensitive to what they think others in their profession think about them as anyone else is. They do not want other lawyers to think they are stupid, or insensitive to danger, or unconcerned about the reputation of the profession. So vanity will tend to inhibit them from actively seeking to change discriminatory rules, even if they privately believe the discrimination to be wrong. (Recall how long it took for the profession to even recognize that it had a problem with racial and gender discrimination!) Finally, to lobby attorneys to ask for a change in the rules that keep us out, we must ask them to help us get licensed to compete with them. For all these reasons, this nonconfrontational approach seems unlikely to succeed, at least during our lifetimes.
   
   
3. An related approach which I am urging, for now, is to attempt research, by way mainly of Freedom of Information Act requests for past ADA complaints to the U.S. Department of Justice, seeking name-redacted copies of past ADA complaints against state Bar admission authorities. followed by academic publication of analyses of the results. The purpose of this would be to demonstrate to the Bar the existence of an actual ADA compliance problem. This approach is further set forth at Propose research, by way of FOIA requests to the Justice Department, for now.
   
   
4. Another possible approach to the problem would be for each affected person to make an individual complaint of discrimination to the U.S. Justice Department under Title II of the ADA. Title II of the ADA, regulating the activities of state and local governments, is generally administered by the Justice Department, which has issued regulations (28 C.F.R. pt. 35) implementing Title II. According to these regulations, the agency designated to receive complaints under Title II with regard to all state and local "programs, services, and regulatory activities relating to law enforcement, public safety, and the administration of justice, including courts..." is the Justice Department. The address listed for receipt of such complaints in the section on Complaints in the "ADA Title II Technical Assistance Manual" is Coordination and Review Section, P.O. Box 66118, Civil Rights Division, U.S. Department of Justice, Washington, D.C. 20035-6118. The ADA.gov website also posts a Title II Complaint Form which is to be submitted to a different address.
   
   Especially now that the ADAAA has been enacted, individual complaints just might work--particularly if the Justice Department were to receive a large number of them from different rejected applicants within a relatively short time. But my personal experience in the past has been that the Justice Department has ignored my complaints, not even bothering to read them carefully (my 2007 Title II complaint was dismissed with a form letter written for Title III complaints.) Moreover, the other Kansan who has recently contacted me, reporting being in a similar situation, also reported that they went to Washington in January--after the ADAAA was enacted--attempting to get the Justice Department interested in their case, and came away empty-handed. I urge all affected persons to file complaints with the Justice Department now that ADAAA is in place, as I did after the Kansas Supreme Court denied my motion to reconsider in the light of the encactment of the ADAAA in January of this year. However, I also sense that it will take many individual complaints to create any interest in the matter at the Justice Department.
   
   See the text of the e-mail Requesting a rulemaking proceeding to clarify the application of 28 CFR 35.130(b)(6)-(b)(8) that I sent to the Justice Department on March 28, 2009. Something like this e-mail, sent in hard copy with a number of signers, would be more effective!
   
   
5. A joint petition by a group of affected past and prospective licensure applicants from a single state, asking for an investigation of the policies and practices of that state with regard to applicants with mental illnesses, etc., or histories of such illnesses, and setting forth brief summaries of the facts of each petitioner's case. Such petitions should probably be addressed to the Attorney General, but show on their faces that copies were sent to the head of the Justice Department's Civil Rights Division and the President (to make it clear that a political and not merely an individual adjudicatory process is being invoked). The advantages of this approach over simply sending individual civil rights complaints are that a) each individual petitioner's facts will reinforce every other individual's facts in tending to show the actual existence of an (unwritten) general policy or practice that systematically disfavors applicants with these conditions by requiring them to provide impossible proof of a "cure" (a requirement that violates ADA); and b) by coming in a group, the petitioners will show that they have an organization and are not just a lone crackpot applicant who will "go away" if ignored long enough. I also suspect the joint complaint of many complainants, presented in the present environment, might fare better than individual complaints have in the past because the ADA Amendments Act of 2008 substantially broadened the definition of a "disability" under the ADA effective January 1, 2009 (this has occurred since my USDOJ complaint was rejected) and also because we have a new and much more liberal administration at the head of the Justice Department now, as of January 20, 2009; c) a joint petition will show that the problem is general, not limited to a few chronic complainers.
   
   This proposal and the next involve shifting the emphasis from seeking individual justice through an administrative complaint adjudicatory procedure to seeking policy change through a political process. In contrast to the Judicial Branch of government, the Executive Branch is a political branch of government. The Attorney General and the top several ranks of the Justice Department are appointed by the President, an elected officer, with the advice and consent of the Senate. The Executive Branch will receive, and make at least some response to, a citizen petition for change.
   
   
6. A mass petition, from affected applicants and any other citizens who are willing to sign, seeking a rulemaking proceeding to clarify the application of the ADA to fitness determinations in professional licensure (including Bar admissions) processes. The petitions, when sent to the President, Attorney General, and key members of Congress, should attach, but not include in their public-signed text, as many individual examples of the problem to be addressed as possible. To be successful, this effort will require a substantial organization, time and money. But it is also the most likely of any of the non-judicial approaches to ultimately succeed. One of the reasons for this is that it need not—indeed, should not—be limited simply to attorney licensure. Other professional licenses—e.g., medicine, accountancy, architecture, engineering—also generally include vague statutory "fitness" requirements administered by licensing boards that have almost total discretion. And there is evidence in the case law that, in other professions as in law, these licensing boards generally take the position that the ADA doesn't apply to professional "fitness" determinations and, therefore, impose impossible burdens on applicants with histories of mental, or related, illnesses. See, for instance, Hason v. Medical Board of California, 279 F.3d 1167 (9th Cir. 2002), in which the California Medical Board argued that the provision of professional licenses is not a "program or service" within the scope of Title II of the ADA, and that in any event an applicant with a mental disability could not prove that he was a "qualified individual with a disability" because he didn't meet the Board's fitness qualifications, but the Ninth Circuit held to the contrary on both points.
   
   
7. Individual ADA suits by rejected applicants might, at first, seem to be the most obvious approach. But in most cases it will not work, owing to the continuing, though limited, vitality of the Rooker-Feldman doctrine. This doctrine bars lower Federal courts from hearing what amount to appeals of a state court decision. Specifically, as applied to attorney licensure proceedings in District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), a rejected applicant may not bring a suit challenging the result in his or her individual case. Instead, lower Federal courts may hear only challenges to state Bar rules and policies under Federal law.
   
   However, this does not mean that no rejected applicant may ever accomplish anything by bringing an individual suit. First of all, some states, like my home state, Kansas, have formally promulgated, written rules that impose additional proof elements on subsequent applications by applicants who have previously been rejected. Courts considering ADA challenges to questions on application forms for admission to the Bar have held that application questions which place additional burdens on applicants with certain disabilities that are not placed on other applicants thereby "screen out" or "tend to screen out" applicants with those disabilities and are therefore prohibited by 42 U.S.C. sec. 12132 and 28 C.F.R sec. 28.130(b)(6) and (b)(8). Ellen S. v. Florida Board of Bar Examiners, 859 F.Supp. 1489, 1494 (S.D. Fla. 1994); Clark v. Virginia Board of Bar Examiners, 880 F.Supp. 430, 442 (E.D. Va. 1995); compare In re Petition and Questionnaire for Admission to the Rhode Island Bar, 683 A.2d 1333 (RI 1996). These holdings would likely also apply to published court rules that place additional burdens on applicants with disabilities. Kansas Supreme Court Rules 702 and 704(c) require all applicants to prove their good moral character and mental and emotional fitness by clear and convincing evidence. Kansas Supreme Court Rule 704(k) deals specifically with applicants who have been previously rejected. It adds to the ordinary burden of proving character and fitness the additional requirement that the applicant must prove that he or she "has been rehabilitated" since the prior rejection. For applicants who are rejected in part because of a medical or psychological condition, this means the applicant must prove that the condition that led to the initial rejection no longer exists and/or no longer poses any risk of creating problems. (This is amply demonstrated by the documents in my own case, as posted on this site). This is a burden not imposed on first-time applicants who do not have histories of stigmatized medical or psychological conditions, and it is imposed by a written rule that was promulgated in non-adjudicatory rulemaking proceedings.
   
   Where the cause, or one of the causes, of the previous rejection was a mental illness or developmental disability, and in light of the 2008 amendment to the "regarded as disabled" prong of the definition of a "disability," it should be possible to argue that the additional formal requirement to prove "rehabilitation" from such a condition is a discriminatory written policy over which the federal courts are able to take jurisdiction. See Why Rooker-Feldman would not bar a challenge to a published court rule providing a discriminatory consequence for a past rejection, explaining the limitation of Rooker-Feldman by Exxon-Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (2005).
   
   
8. In jurisdictions in which there is a rule like Kansas Supreme Court Rule 704(k), which potentially places a discriminatory burden of proof on a number of past applicants rejected because of a condition which is now (after the enactment of the ADAAA) clearly a "disability," a true class action suit may be the best of the litigation approaches. It may also be a good approach in jurisdictions in which several rejected past applicants are able to find each other, cooperate, and in so doing discover persuasive evidence of the operation of a discriminatory unwritten policy in the facts and official decisions in their individual cases. The primary advantages of a class action format are its ability to take full advantage of Lance v. Dennis, 126 S.Ct. 1198 (2006) in avoiding the Rooker-Feldman bar, its ability to make evidence from each individual class member's case admissible and available to all class members in proving the existence of discriminatory unwritten policies, and its ability to spread the burden of attorney fees and litigation costs. Other advantages and tips are discussed at How the Federal Suit Option Might Be Accomplished in Kansas through a True Class Action.
   
   In an appropriate case, either of the federal suit alternatives might include a claim for money damages and/or attorney's fees (see, Tennessee v. Lane, 541 U.S. 509 (2004)).

Contact me if you are interested in participating in this effort.

Congress specifically addressed the discrimination faced by the disabled at the hands of state and local governments in Title II of the ADA, 42 U.S.C. sec. 12131, et seq. (ADA). 42 U.S.C. sec. 12131(1)(A) and (B) bring within the coverage of the statute any "state" or "agency" or "instrumentality" of a "state." 42 U.S.C. sec. 12132 then provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." In 42 U.S.C. sec. 12134, the United States Department of Justice is authorized to promulgate regulations implementing Title II. Moreover, the Attorney General has adopted regulations implementing Title II of ADA pursuant to the power delegated by 42 U.S.C. sec 12134, which explicitly include licensing and certification programs within the range of public "programs" covered by Title II and which further prohibit eligibility criteria which tend to screen out individuals with disabilities unless those criteria are shown to be necessary for the provision of the program:

(6) A public entity may not administer a licensing or certification program in manner that subjects qualified individuals with disabilities to discrimination on the basis of disability, nor my a public entity establish requirements for the programs or activities of licensees or certified entities that subject qualified individuals with disabilities to discrimination on the basis of disability�

(7) A public entity shall make reasonable modifications in policies, practices or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program or activity.

(8) A public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from equally enjoying any service, program or activity unless such criteria can be shown to be shown to be necessary for the provision of the service, program or activity being offered.

28 C.F.R. secs. 35.130(b)(6), (7) and (8), relevant parts. The licensing of attorneys to practice law is unquestionably a "licensing program," to which Title II of the ADA would apply under the plain language of both the statutory section and the regulations quoted above.

Various courts have held Title II of the ADA to apply to attorney licensure programs and activities of state courts. See, e.g., Bartlett v. New York State Board of Law Examiners, 226 F.3d 69, 78 (2nd Cir. 2000); In re Petition and Questionnaire for Admission to the Rhode Island Bar, 683 A.2d 1333 (RI 1996); Petition of Rubenstein, 637 A.2d 1131 (Del Supr. 1994); Clark v. Virginia Board of Bar Examiners, 880 F. Supp. 430 (E.D.Va. 1995); Ellen S. v. Florida Board of Bar Examiners, 859 F. Supp. 1489 (S.D. Fla. 1994); McCready v. Michigan State Bar, 881 F.Supp. 300 (W.D. Mich. 1995). Indeed no court appears to have openly held to the contrary. However, in each of these cases in which the ADA was actually applied to the case before the court, the case involved a challenge to court rules, language on application forms, or testing accommodations to physical or learning disabilities at bar examinations. Although no court has ever held that the ADA has no application to attorney licensure, no court has ever reached in a published or publicly available opinion the question whether the ADA limits a licensing court's discretion in making a mental or emotional fitness determinations in individual cases.

However, the United States Court of Appeals in at least one Circuit has squarely held that the provision of professional licenses (a medical license, in that case)is a state "service" regulated by Title II, and that ADA standards therefore apply to the denial of such a license on the basis of a disabling mental illness. See, Hason v. Medical Board of California, 279 F.3d 1167 (9th Cir. 2002). Hason is still good law.

If all of the jurisdictions that license attorneys in this country are considered, the issue whether the ADA applies to individual character and fitness determinations where those determinations are affected by a mental, emotional or developmental impairment is an issue that must have been raised by numerous applicants since 1991. Nevertheless, there is absolutely no published or unpublished case law on this subject anywhere—the closest any of the cases come are Federal district court cases like one to which I was a party in 1995 (Johnson v. State of Kansas, 888 F.Supp. 1073 (D.Kan. 1995)), which avoid the issue of the applicability of the ADA by holding that the Rooker-Feldman doctrine denies lower Federal courts jurisdiction over challenges to individual state Bar admission determinations. I would submit that the absolute lack of any case law results in part from the determination of all of the state courts involved that they are simply going to studiously ignore the issue, secure in the knowledge that, if they don't mention the issue in their decisions, no federal court (not even the Supreme Court) will ever disagree with them. My reasoning is explained in the next three sections of this page.

The absence of case law also likely arises in part from the perception that no applicant who was able to complete law school can really be so impaired as to qualify as "disabled" under the very restrictive construction the United States Supreme Court has given that term since 1998. However, in September 2008, Congress massively amended the ADA with the express purpose of legislatively overruling the precedents that had narrowly limited the definition of a "disability." Congress declared its main purposes in the amendment to be the elimination of the two "catch-22s" upon which courts have relied in placing 98% of ADA plaintiffs outside its coverage, namely 1) "you're too impaired for this job (or this license), but not disabled enough to be protected by the law" and 2) "you'd be impaired enough to be protected if you went off your medication, but your medication controls your condition, so we can exclude you because you need medication." I have covered the relevant parts of the ADA Amedments Act of 2008 ("ADAAA") in detail on a separate page, my ADAAA Primer. Suffice it to say that, if the total case law drought continues, it will clearly be continuing because the courts have consciously decided to ignore the issue, not because the rejected applicants involved were not "disabled" within the meaning of the ADA, as now amended.

Technicalities of the ADA and of federal jurisdiction aside, I understand the underlying policy question involved.

On the one side of the public policy question is the one nt, underlying purpose of any professional licensing regime—that is, to reassure the public that the entire licensed profession is both competent and may safely be trusted. Stated another way, one of the major purposes of any professional or occupational licensing regime is to ensure that only such persons as those already practicing the occupation believe will be good for its public image are allowed to enter it. This is true whether the license involved is law, medicine, accounting, or plumbing. One element of assuring the public that the profession is safe is the need to assure the public that, when they deal with a licensed member of the profession, they will not be exposing themselves to anyone afflicted with a stigmatized medical or psychological condition that would cause them fear if they knew about it. The public at large (as a collective entity) can safely be assumed to be interested ONLY in its stereotypes about stigmatized individuals collectively and not in objective evidence of the real danger or safety of any individual's actual condition. Stated in the other way, anyone who has a stigmatized condition will be bad for the public image of the profession if admitted to it, by virtue of the stigma alone, regardless of the actual, objective danger posed by their individual condition. Therefore, in a very real sense, all professional and occupational licensing bodies have traditionally had as one of their major purposes the ENFORCEMENT of society's myths, fears and stereotypes about mental illnesses and developmental disorders, for the benefit of their licensed profession's public image.

Of course, on the other side of the public policy question is the policy that underlies the ADA—that is, that individuals with disabilities should be judged on their individual merits, on the basis of objective evidence, and not on the basis of myths, fears and stereotypes about their disabilities. Thus, the nt policy of enforcing society's myths, fears and stereotypes that underlies professional licensing appears to conflict with the policy of individual determinations based on objective evidence that underlies the ADA.

For the last 19 years, since the ADA was adopted, courts throughout this country have resolved this policy tension by first making changes in their attorney licensure application forms to publicly show that they were satisfying the demands of the ADA, and then by apparently privately ignoring ADA when making individual admission decisions involving applicants with histories of impairments feared by the public that still had to be disclosed on those forms. I used to think the changes many states, including Kansas, had made in their application forms were purely cosmetic. However, after more reading on the subject, I recognize that the changes in the application forms represented a very real and commendable, though insufficient, change in policy. Applicants are no longer required to disclose treatment for situational depression and other generally-recognized minor and/or transitory psychological conditions. An application will no longer even be "red flagged" for more investigation because of a mental condition that was transitory and is now completely gone. However, the forms still ask about treatment for the "major," "chronic" mental illnesses, and licensing courts still obviously (as my case demonstrates) believe they have absolute discretion to deny admission to applicants who have to disclose a mental illness but can't prove it is totally gone beyond any possible need for present or future treatment. Thus, in cases in which the amended application forms still require disclosure of an illness, the tension between the purpose of the ADA to overcome fears and stereotypes and the public relations functions of a licensing regime still exists, and the lack of any published case law strongly suggests the tension is being routinely resolved against the applicants and in the dark. All I am now asking is that the courts come out of their denial and resolve this policy tension openly, explaining plainly what they are doing and giving applicants rejected because of public fears regarding their medical or psychological diagnoses real opportunities to bring the issue before the United States Supreme Court for final determination. That failing, I ask those affected by the policy to start working together to bring the issue to the attention of the U.S. Justice Department and the lower federal courts in ways they will not be able to ignore.

Discrimination Happens--It happened to me

A brief summary of the facts of my own case will illustrate the problem. I note that all of the facts stated here are supported by documents posted elsewhere on this site. I applied for admission to the Kansas Bar in 1992. At the hearing on that 1992 application before the Kansas Board of Law Examiners, the only medical witness was my psychiatrist, who testified that my I had bipolar disorder (at least, that is what he believed at that time), that I had been seeing him for several years and was compliant with treatment and responded well to treatment, that my condition was "in remission," that he considered me "stable and reliable," and that there was little probability of a relapse leading to poor judgment or behavior that would affect the practice of law if I continued with the recommended treatment. (My psychiatrist's prediction that the probability of recurrence was low if appropriate treatment was continued has been proved true by the events of the subsequent sixteen years.) Nevertheless, the Board recommended rejection of my application on grounds that included my bipolar diagnosis, a psychiatric hospitalization in 1995 and the fact that I still required treatment. I raised the ADA in my pleadings before the Kansas Supreme Court responding to the Board's report and recommendation. Nevertheless, the Kansas Supreme Court made no response to the ADA argument, "noted" the Board's findings and adopted its recommendation without further comment.

I petitioned the United States Supreme Court for a writ of certiorari, challenging the Kansas court's decision. In its Brief in Opposition, counsel for the Kansas Supreme Court explained that it had not favorably considered my ADA arguments in determining my application for admission to the Bar i) because I had not raised the ADA issue until my Amended Exceptions to the Board of Law Examiners' report, which was considered an untimely attempt to raise the issue, and ii) because I had "offered no evidence to establish that I suffer[] from a physical or mental impairment that substantially limits one or more of the major life activities." (See Respondent's Brief in Opposition, Ian Bruce Johnson v. State Bar of Kansas, United States Supreme Court, Case No. 93-5408, pp. 19-22). The Petition for a Writ of Certiorari was denied.

I next applied for licensure in March 2006. At the Board of Law Examiners' hearing on my 2006 application, two medical experts testified: my treating psychiatrist (the same one who testified in 1992)and an independent psychologist who was appointed by the Court to examine me. My psychiatrist testified that, based on his observations since 1992 and changes in medical knowledge in that time, he now believed his 1992 diagnosis of bipolar disorder to have been incorrect. Instead, he now believed the correct diagnosis, in 1992 and presently, to be Asperger's Disorder. However, he went on to testify that he believed I had adapted successfully to the effects of this developmental disorder, and no posed no greater risk of the symptoms that led to my 1985 hospitalization than the average man in the street. The Board's expert testified that, based on his rather extensive tests, he agreed with my psychiatrist that my primary diagnosis should be Asperger's Disorder. However, he also noted a "history" of bipolar disorder, NOS, which he believed should be included. However, the Court's expert testified that my condition was in "full and stable remission" and had been thus for a long time. He also testified that my risk of a relapse or of dangerous behavior was "low," given continued maintenance treatment such I had been receiving for many years.

I raised the ADA issue on the face of my 2006 application. Subsequently, the ADA issue was fully briefed before the Board of Law Examiners. Nevertheless, in its formal report and recommendation to the Kansas Supreme Court, the Board's majority did not once mention the ADA. Instead, the Board recommended that my application be denied, on grounds that prominently included the denial of my 1992 application and the resulting enhanced burden of proof I bore under Kansas Supreme Court Rule 704(k), and fact findings that its expert still included a history of bipolar disorder in my diagnosis and still believed I needed ongoing maintenance treatment. However, the dissenting member of the Board filed a lengthy dissenting report in which he stated, among other things, his belief that the ADA ought to be applied to my case and that, if it were applied, I should be admitted.

I restated my ADA arguments in the exceptions I filed with the Kansas Supreme Court. However, in spite of both my arguments and those of the dissenting Board member, the Court adopted the Board's majority recommendation without comment. It never mentioned the ADA. A subsequent petition for a writ of Certiorari to the U.S. Supreme Court drew no response from the Kansas Bar and was denied.

Finally, in December 2008, I filed with the Kansas Supreme Court a motion to either waive that Court's Rule 704(k)when considering my next application or reconsider its decision regarding my 2006 application due to the enactment of the ADAAA. This motion was denied without further explanation on January 22, 2009, 21 days after the effective date of the ADAAA.

As previously noted, Title II of the ADA on its face prohibits state entities from discriminating against any qualified individual with a disability on the basis of disability, and 28 C.F.R. sec. 35.130(b)(6) interprets this prohibition to include licensing activities. A license to practice law is a professional "license," regardless of the traditional language that suggests it is more akin to being given membership in a very powerful private club. Therefore, if Congress had jurisdiction to reach state professional licensing activities, attorney licensure is regulated by the ADA. (The question of Congressional jurisdiction over state licensure activities is covered on a separate page.) The question then becomes, was I a "qualified individual with a disability" in 2006?

Even if my condition did not qualify as an ADA "disability" under the first prong of the definition (actual disability) contained in the former 42 U.S.C. sec 12102(2)(A), by 2006 my condition, and the response of the Kansas Supreme Court to my condition in 1993, clearly fell within the definition of being "regarded as having a disability" contained in the former 42 U.S.C. sec. 12102(2)(C). That Court, by its own actions, showed that it clearly regarded me as too impaired to be permitted to practice law. The practice of law, an entire licensed profession, is now and was in 2006 a "class of jobs" for purposes of the the major life activity of "working" under 28 C.F.R. sec. 35.104. Bartlett v. New York State Board of Law Examiners, 226 F.3d 69, 79-80, 82-84 (2nd Cir. 2000). Therefore, in 1993, when the Court found my condition (a recognized "impairment;") to disqualify me from the practice of law, it "regarded" me as disabled from a "class of jobs" by that impairment. That is, it regarded me as having an impairment that substantially limited me in the major life activity of "working." This state of being regarded as having a disqualifying impairment continued in existence at the time I filed my 2006 application, 13 years later—which is a very substantial period of time by any measure relevant to an ordinary human lifetime—and was explicitly cited against me as the grounds for applying the additional (and impossible) burden of proof under Supreme Court Rule 704(k) and denying my application. Thus, it is plain that, even under the ADA as it existed prior to the 2008 amendment, the third prong of the definition of a "disability"applied to my 2006 application for licensure. The questions that remain are whether I was a "qualified" individual with a disability and whether the Court complied with the Act.

The Justice Department explained in Appendix A to 28 C.F.R. sec. 35.130(b)(6) that a person with a disability who can meet the "essential eligibility requirements" of a licensing program is a "qualified individual with a disability," and that what is an "essential" requirement depends on the facts of the individual case, and that case law under the Rehabilitation Act is applicable:

Paragraph (b)(6) prohibits the public entity from discriminating against qualified individuals with disabilities on the basis of disability in granting of licenses or certification. A person is a "qualified individual with a disability" with respect to licensing or certification if he or she can meet the essential eligibility requirements for receiving the license or certification." The phrase "essential eligibility requirements," however, is taken from the definitions in the regulations implementing section 504 [of the Rehabilitation Act], so case law under section 504 will be applicable to its determination." Whether a particular requirement is "essential" will, of course, depend on the facts of the particular case.

28 C.F.R. sec. 35.130, Appendix A to sec. 35.130(b)(6).

While the determination of what constitutes an "essential eligibility requirement" is made on a case by case basis, there can be no reasonable argument that an alleged "eligibility requirement" which excludes an applicant under conditions in which an attorney already licensed would be permitted to continue practicing law is truly an "essential" requirement. Thus, if an attorney who has been diagnosed with bipolar disorder, or any other stigmatized mental illness, but whose condition has been in remission for more than 15 years would be allowed to continue practicing law, any stricter requirement applied to an applicant would plainly not be an "essential" requirement. Much less than 15 years in remission is required in many disciplinary cases. See, e.g., In re Herman, 254 Kan. 908, 869 P.2d 721 (1994), discharged from probation, 246 Kan. 497 (1999) (bipolar attorney was facing disciplinary charges for misconduct and merely under "successful" treatment when allowed to continue practicing on probation, and was undoubtedly still under treatment for his "lifetime" condition when discharged from probation); In re Ketter, 268 Kan. 146, 992 P.2d 205 (1999) discharged from probation 276 Kan. 2 (2003) (attorney with obsessive compulsive disorder and paraphilia, facing disciplinary charges after conviction for misdemeanor crimes, allowed to continue practice on probation on a showing of successful ongoing treatment).

Furthermore, according to the interpretative commentary supplied by the Attorney General in the Appendix to 28 C.F.R. pt. 35, 28 CFR sec 35.130(b)(8) (quoted above) was intended both to prohibit "overt denials of equal treatment of individuals with disabilities, or establishment of exclusive or segregative criteria that would bar individuals with disabilities from participation" and to prohibit "policies that unnecessarily impose requirements or burdens on individuals with disabilities that are not placed on others." 28 C.F.R. pt. 35, Appendix A, commenting on 28 C.F.R. sec. 35.130(b)(8). That interpretive commentary further clarifies that a public entity may not apply criteria which screen out, or tend to screen out, individuals with disabilities, unless those criteria can be shown to be necessary for the safe operation of the program, and that this showing must be made without relying upon speculation, stereotypes or generalizations in finding danger to exist:

Paragraph (b)(8)� prohibits the imposition or application of eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program or activity, unless such criteria can be shown to be necessary for the provision of the service, program or activity being offered. This prohibition is also a specific application of the general prohibition of discrimination and is based on section 302(b)(2)(A)(i) of the ADA. It prohibits overt denials of equal treatment of individuals with disabilities, or the establishment of exclusive or segregative criteria that would bar individuals with disabilities from participation in services, benefits or activities� In addition, paragraph (b)(8) prohibits the imposition of criteria that "tend to" screen out an individual with a disability. This concept, which is derived from current regulations under section 504 (see, e.g., 45 C.F.R. 84.13), makes it discriminatory to impose policies or criteria which, while not creating a direct bar to individuals with disabilities, indirectly prevent or limit their ability to participate� A public entity may, however, impose neutral rules and criteria that screen out, or tend to screen out, individuals with disabilities if the criteria are necessary for the safe operation of the program in question� Safety requirements must be based on actual risks and not on speculation, stereotypes, or generalizations about individuals with disabilities.

29 C.F.R. � 35.130, Appendix A to sec. 35.130(b)(8) (emphasis added).

Moreover, courts have held that, under Title II of the ADA, as implemented by 28 C.F.R. � 35.130(b)(8), in determining whether an individual is "qualified" to participate in a program of a state entity, a court may "not rest on the state�s characterization" of the program, "nor on the qualifications or eligibility criteria the state asserts as necessary, but instead must make an independent inquiry into the �essential nature� or the program." Guckenberger v. Boston University, 974 F.Supp. 106, 133-135 (D. Mass. 1997); citing and quoting Easley by Easley v. Snider, 841 F.Supp. 668, 673 (E.D. Pa. 1993), rev�d on other grounds, 36 F.3d 297 (3rd Cir. 1994); citing Pandazides v. Virginia Board of Education, 946 F.2d 345, 348-350 (4th Cir. 1992) (reaching the same conclusion in a teacher licensing case under the Rehabilitation Act). The two Kansas Supreme Court attorney discipline cases previously cited (and I could have cited some others to similar effect) show that the Court does not consider total freedom from major mental illnesses, or the ability to maintain these conditions in remission without maintenance treatment, to be necessary qualifications to practice law, at least for persons who don't manifest symptoms until after they are licensed. Licensed attorneys may sometimes commit disciplinary offenses under the influence of a major mental illness and not be instantly disbarred; indeed, those who can show that they have sought and are still receiving successful treatment are often shown mercy. Kansas Supreme Court Rule 206, pertaining to impaired lawyers and creating a program for informal supervision of impaired lawyers, also demonstrates that freedom from current treatment for major mental illnesses is not an "essential" requirement to continue practicing law. Indeed, licensed attorneys who recognize psychiatric symptoms before they turn into disciplinary charges are rightly encouraged to seek help, and, if necessary, supervision of their practices, informally. For a licensed attorney, manifestation of bipolar disorder, the very illness the Kansas Supreme Court holds against me, followed by ongoing, successful treatment, is not necessarily a career-ending event. Therefore, neither freedom from this illness nor the absence of ongoing treatment for it can possibly be "essential" eligibility requirements for purposes of the ADA.

The final point to be made with regard to the first prong of the definition of a "disability," as it read prior to the 2008 amendment, is that the Appendix to the definition of a "qualified individual with a disability" in 29 C.F.R. sec. 35.104 explains that whether an eligibility requirement that excludes an individual with a disability is an "essential" requirement depends upon whether the disabled individual�s participation in the program would pose a "direct threat" to others, when judged with "reasonable judgment" based on "current medical evidence or the best available objective evidence:"

The "essential eligibility requirements" for participation in some activities covered under this part may be minimal� For other activities, identification of the "essential eligibility requirements" may be more complex. Where questions of safety are involved, the principles established in sec. 36.208 of the Department�s regulation implementing title III of the A.D.A� will be applicable. That section implements section 302(b)(3) of the Act, which provides that a public accommodation is not required to permit an individual to participate� if that individual poses a direct threat to the health and safety of others. A "direct threat" is a significant risk to the health and safety of others that cannot be eliminated by a modification of policies, practices, or procedures or by the provision of auxiliary aids or services. In School Board of Nassau County v. Arline, 480 U.S. 273 (1987), the Supreme Court recognized that there is a need to balance the interests of people with disabilities against legitimate concerns for public safety. Although persons with disabilities are generally entitled to the protection of this part, a person who poses a significant risk to others will not be "qualified," if reasonable modification to the public entity�s policies, practices or procedures will not eliminate that risk. The determination that a person poses a direct threat to the health or safety of others may not be based on stereotypes about the effects of a particular disability. It must be based on an individualized assessment, based on reasonable judgment that relies on current medical evidence or the best available objective evidence, to determine: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices or procedures will mitigate the risk.

29 C.F.R. sec. 35.104, Appendix A to "qualified individual with a disability" (emphasis added).

Under the facts of my case, all of the medical evidence presented in both 1992 and 2006 was that I was compliant with treatment, had faithfully continued with my treatment for some years and presented little risk of a relapse leading to any danger if I continued with treatment. Moreover, by 2006 my psychiatrist's prediction in 1992 that there would be no dangerous relapses had proven true for 14 years. Even the Court's independent expert agreed with this. Nevertheless, the Court ignored the medical evidence presented to find an unacceptable risk of relapse, based on its own fears of what might happen in a worst-case scenario. The risk of a potential injury which all of the medical evidence showed to be very unlikely, and which would not have been sufficient to prevent an already-licensed attorney from retaining his license, was held sufficient to exclude me.

Even before the 2008 ADA amendments, my case should also have been approached through the third ("being regarded as having such an impairment") prong of the definition of a disability under the ADA. Before the 2008 amendment, this prong of the definition appled whenever " (1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities." Doebele v. Sprint/United Management Co., 342 F.3d 1117, 1132 (10th Cir. 2003), citing Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999). I was excluded from the Bar in 1993 based in large part on factual findings that I suffered from bipolar disorder—which is undeniably an "impairment" for purposes of the ADA—and that I still required treatment for this condition. I was denied a license in 2007 almost solely based upon findings that I had been denied licensure in 1993 and could not prove "rehabilitation" had occurred since 1993 because I still had bipolar disorder and was still under treatment—successful treatment, just like in 1993. Thus, regardless of whether my bipolar disorder was an actual "disability" under the first prong, the Kansas Supreme Court believed it rendered me unable to practice law, bringing the case within the third prong. The Department of Justice regulatory commentary to this definition under Title II is found in the Appendix to28 C.F.R. sec. 35.104, "Disability," "Test C—Being Regarded as Having Such an Impairment," which cites Arline for the proposition that that a disqualification from a public program because of "myths, fears and stereotypes" associated with an individual�s impairments was intended to be covered by this test:

The rationale for this third test, as used in the Rehabilitation Act of 1973, was articulated by the Supreme Court in Arline, 480 U.S. 273 (1987). The Court noted that although an individual may have an impairment that does not in fact substantially limit major life activity, the reaction of others may prove just as disabling. "Such an impairment might not diminish a person�s physical or mental capabilities, but could nevertheless substantially limit that person�s ability to work as a result of the negative reactions of others to the impairment." Id. at 283. The Court concluded that, by including this test in the Rehabilitation Act�s definition, "Congress acknowledged that society�s accumulated myths and fears about disability and diseases are as handicapping as are the physical limitations that flow from actual impairment." Id. at 284.

The person who is denied services or benefits by a public entity because of myths, fears, and stereotypes associated with disabilities would be covered under this third test whether or not the person�s physical or mental condition would be considered a disability under the first or second test in the definition.

If a person is refused admittance on the basis of an actual or perceived physical or mental condition, and the public entity can articulate no legitimate reason for the refusal (such as failure to meet eligibility criteria), a perceived concern about admitting persons with disabilities could be inferred and the individual would qualify for coverage under the "regarded as" test. A person who is covered because of being regarded as having an impairment is not required to show that the public entity�s perception is inaccurate (e.g., that he will be accepted by others) in order to receive benefits from the public entity.

28 C.F.R. � 35.104, Appendix �A,� �Disability,� �Test C� (emphasis added).

However, since 2007, the ADA has been clarified in favor of broader coverage under the first prong of the definition of a "disability" and much broader coverage under the third prong. In the ADA Amendments Act of 2008, Public Law 110-325, 122 Stat. 3553 ("ADAAA"), effective January 1, 2009, Congress expressly repudiated the line of judicial precedents that had required any person claiming coverage under the first prong to prove that his or her "impairment" was "substantially limiting"—that is, prevents or severely restricts the performance of a major life activity—in favor of a much less restrictive test. Congress also expressly included "working" and "thinking" in the definition of a "major life activity" and "neurological" and "brain" functions in a new list of "major bodily functions" that is incorporated into the definition of a "major life activity." Even more important to cases involving successfully treated mental illnesses, Congress legislatively overruled a line of judicial precedents that had held that, when determining whether an impairment is a "disability," courts must judge that disability in its mitigated state, after all medical treatment and other mitigating measures have been taken. After January 1, 2009, the clear rule under the first prong of the definition of a "disability" under ADA is that an impairment which would be "substantially limiting" (under the new and more liberal definition of that term) without treatment or other mitigating measures, is a "disability," even though treatment or other mitigating measures render it less disabling. Thus, the ADAAA clearly brings cases involving successfully treated mental illnesses, which would be substantially limiting if not treated, within the first prong of the definition.

Moreover, the third ("regarded as") prong of the definition of a "disability" was broadened by the ADAAA such that it now applies whenever a regulated entity took action against a person because of a perceived physical or mental impairment. Coverage under the third prong no longer depends upon whether the regulated entity perceived the individual's impairment to be "substantially limiting." Thus, at least in the future, any state court which denies attorney licensure to an applicant because it believes him or her to be impaired by mental illness will be covered by the ADA. This will require that court to apply reasonable judgment to current medical evidence or the best available objective evidence in assessing the risk actually posed by that individual's illness. Consideration of stereotypes and fears unsupported by the evidence will be prohibited.

I suspect that most state courts have refused either to openly apply the ADA in individual attorney licensure cases or in consideration of rules pertaining to character and fitness requirements, or to openly declare their belief that it does not apply to character and fitness determinations, because they have believed they could avoid the issue forever. How? By simply refusing to ever mention the issue, particularly in decisions in individual cases. By simply not mentioning ADA issues in opinions or orders finally deciding individual cases, the state courts effectively prevent the United States Supreme Court from reaching the issue, because generally that Court will only consider issues that were actually decided on the face of the immediate decision from which review is sought. See U.S. Supreme Court Rule 10. Simply the fact that the issue was argued at length in the briefs below, or was discussed in the decision or dissenting opinion in a lower tribunal (as the ADA was discussed in the Board of Law Examiners' Minority Dissenting Report, in my case) is usually not sufficient to show that the issue was actually decided and is available for review by the U.S. Supreme Court. On the other hand, under the Rooker-Feldman doctrine, the lower federal courts may not review the decisions of state courts in individual cases to determine whether they comply with federal law. Instead, only the United States Supreme Court has jurisdiction to review state court decisions. This doctrine applies most pointedly to attorney licensure decisions, the subject of one of the decisions from which the doctrine obtained its name, District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). Feldman held that, with regard to attorney licensure, lower federal courts only have jurisiction to hear claims that written court rules or other written materials promulgated in non-judicial proceedings violate federal law, but lack jurisdiction to hear any claim that any state court action taken in a judicial proceeding violates federal law. See the lengthy discussion of the Rooker-Feldman doctrine in my federal case, Johnson v. Kansas Supreme Court, 888 F.Supp. 1073 (D.Kan. 1995). Thus, by simply never mentioning the issue, the licensing state courts have been able to prevent any federal court from ever reaching it.

However, as I explain in my separate page on the Rooker-Feldman doctrine, the doctrine has been limited by two major Supreme Court precedents since 2005, and now appears to apply fairly narrowly to prevent "cases by state-court losers complaining of injuries caused by state-court judgments rendered before district court proceedings commenced and inviting district court review and rejection of those judgments." Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284 (2005). The doctrine would not preclude a separate claim that does not challenge a past judgment denying licensure, but insisting that the application of a written court rule like Kansas Supreme Court Rule 704 to that judgment would violate the ADA, as amended by the ADAAA.

Seeking Contact With Others in a Similar Situation

Contact me if you are interested in participating in this effort.

Disability Discrimination in Attorney Licensure, my blog on this subject. Comments are invited.

Warning to law students with mental illnesses on Facebook.

The original site posted here has moved to Really Cold Fusion:Notes on a Different Approach.