Requesting rulemaking proceeding clarifying the application of 28 CFR 35.130(b)(6)-(b)(8) to professional licensure

Below is a copy of an e-mail I sent yesterday to the U.S. Justice Department at its general mailbox, AskDOJ@usdoj.gov, under the same subject line as this posting. The e-mail has been edited in one place to remove information relating to another individual.

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I hereby request that the Department of Justice begin proceedings to clarify the application of 28 CFR, section 35.130, paragraphs (b)(6) through (b)(8) to professional licensure in general and attorney licensure specifically. These regulations, or the official commentary to them, should be amended to clarify that they do apply to state government professional licensure activities and that they do require licensing boards to rely upon the objective evidence presented to them rather than upon myths, fears and stereotypes about specific disabilities in deciding the applications of applicants with disabilities. I have reason to think that this result often does not obtain in practice for at least four reasons, all of which are discussed below and, in greater detail, on my blog, http://bardiscrimination.blogspot.com/ .

First, I personally have been excluded from the Bar explicitly on the basis of a psychological diagnosis which is now, with the enactment of the ADA Amendments Act of 2008, clearly a protected disability. In rejecting me, the Kansas Board of Law Examiners and the Kansas Supreme Court ignored unanimous medical testimony that the condition posed no risk, or only low risk, given continued treatment, and passed judgment based on their fears of what might happen without treatment. At the same time, although I carefully and timely raised the ADA, both bodies ignored this law. A motion for reconsideration after the enactment of the ADA Amendments Act of 2008 was also denied without comment. Links to documentation of my situation may be found on a web page at http://www.geocities.com/guidesinexile/status.html . I mailed a formal Complaint regarding my individual situation under Title II of the ADA to the appropriate address at the Department of Justice two months ago; I present my documentation to you again in this e-mail merely as evidence that a clarification of your regulations is needed.

Second, since I posted my material, I have had contact with another disappointed applicant from Kansas... who has had a similar experience with the Kansas Board of Law Examiners...

Third, a number of states (not including Kansas) are now actively wrestling with the question of conditional admission of applicants with some kinds of mental illnesses and addictions--specifically, those that can be totally "remedied" within a fairly short probationary period. See my list of these states at http://bardiscrimination.blogspot.com/2009/03/states-with-conditional-admission-rules.html#links. The fact that these states (and the American Bar Association's Board of Governors, last year) are wrestling so hard with this question shows me that before the idea of conditional admission was actively raised applicants who presented with even fully remediable mental illnesses were routinely excluded until they could prove a "cure"—just as I have been excluded until I can prove a "cure." This has been happening in many states, not just Kansas.

Finally, the Ninth Circuit's opinion in Hason v. Medical Board of California, 279 F.3d 1167 (9th Cir. 2002), demonstrates that state licensing boards in professions other than law and in states other than Kansas have 1) taken a formal position that Title II of ADA does not regulate the character and fitness determination phase of professional licensing programs at all and 2) have routinely discriminated against applicants with certain mental illnesses on the basis of those illnesses alone.

You should be aware that one of the primary purposes of my website ( http://www.geocities.com/guidesinexile/ ) and blog ( http://bardiscrimination.blogspot.com/ ) is to encourage others who have met with similar kinds of discrimination in seeking professional licenses to write you seeking clarification of your regulations on this point. So, while this e-mail may be the first communication you have seen on this subject, if I am successful it will not be the last.