Propose research, by way of FOIA requests to the Justice Department, for now

What I have done, and what I propose others similarly situated should do in their own states, is basic research to determine whether information exists that would support a claim of discrimination against a class of Bar applicants with certain mental or psychological conditions (or who are incorrectly believed to have such conditions). I am doing so at present by means of a Freedom of Information Act request to the Civil Rights Division of the U.S. Department of Justice, seeking name-redacted copies of all documents regarding complaints and inquiries against the Kansas Supreme Court and the Kansas Board of Law Examiners involving alleged violations of the ADA in the administration of the attorney licensure program in this state. If the documents show the possibility of systemic discrimination against certain conditions, this will open the way to various other approaches. The least confrontational of these approaches would be a simple scholarly paper, to be submitted to a legal periodical for publication, thus openly drawing the attention of the profession to the problem. However, I assume that, in order to take this approach, I will need to recruit a "properly qualified" lead author--an academic or a practicing, licensed attorney--and accept the status of co-author. I am entirely ready to do this.

Academic publication, leading to further research by others and willing change within the profession, is really my first choice. However, if the evidence shows a discriminatory pattern and I am not able to obtain the help of a "properly qualified" lead author, several more confrontational approaches are possible. These include an administrative complaint of classwide discrimination, a renewed request for rulemaking, or a class action suit.

Incidentally, I have done some research to determine whether anyone has published on this subject before. No one has. I have also sent e-mails to a number of law professors who have published or spoken on issues involving ADA compliance in Bar application forms or on accommodations to physical impairments and learning disabilities at Bar examinations, asking them if they know of any published research on how Boards of Bar Examiners actually treat mental illnesses that their application forms require to be disclosed. The specific questions I asked the professors were:

The question I'm trying to answer, thus far unsuccessfully, is this: what is the actual practice of the boards and courts that license attorneys around the U.S. when presented with applicants who have a record of a "major" or "chronic" mental illness that is still under treatment? Does objective medical evidence of the actual risk usually control their decisions? Or does the public's fear of mental illness usually overwhelm contrary objective evidence? And has the Americans with Disabilities Act affected the usual outcome of these cases at all?

I have been able to find numerous published articles on the question of what questions a state attorney licensing authority may lawfully ask in its application forms. I have also been able to find a few published articles on the normative question what a licensing authority should ask in its application forms, balancing the rights of applicants against the "protection of the public." And there are now quite a few articles on the incidence of mental health issues among lawyers and law students.

But I have been able to find NO ARTICLES WHATEVER that discuss the issue of what happens AFTER an applicant is required to disclose a history of mental illness or mental health treatment. If the applicant has a condition, or a mental health background, which the licensing authority has decided it may lawfully require him or her to divulge, do state licensing authorities treat the ADA as having any application beyond that point? Or does ADA only regulate the text of the application forms but leave the licensing authorities free to discriminate however they feel appropriate based on the information disclosed in a properly-worded application form? Do you know of any information sources on this issue that I have missed?

The two professors who responded, briefly, to my request agreed with me that NO articles have been published dealing with these questions. One of them also indicated that reliable information from which such questions might be answered is very difficult to find. But I am making an attempt to find it with my FOIA request to the Justice Department.

It will be interesting to see whether the Justice Department tries to fit all of the information I have requested within a FOIA exception!


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