Broad Mental Health Questions Used by the Wisconsin Board of Bar Examiners Continue to Violate the Americans with Disabilities Act

[Author’s Note: This essay was originally published with Kinja Blog on December 7, 2017. However, the link to the original post no longer works. Therefore, I repost the essay here in full.]

People with mental disorders have been stigmatized by society for a long time. As one academic paper notes, the stigma associated with having a mental disorder “existed long before psychiatry.” Unfortunately, that stigma continues today. Although the public is now more likely than in the past to view a person’s mental disorder as deriving from a biological condition, most of the public still continues to view people with mental disorders as violent to themselves or others. Additionally, a 2006 survey indicated most of the American public would not befriend someone with schizophrenia or clinical depression.

Stigmatizing people with mental disorders has negative effects. For instance, the United States Surgeon General stated in a 1999 report, “Stigma surrounding the receipt of mental health treatment is among the many barriers that discourage people from seeking treatment.” However, sometimes the government itself may perpetuate this stigma by invidiously discriminating against those with mental disorders — and thus, according to the 1999 report, discourage those with mental disorders from seeking the treatment they need.

For example, during character and fitness investigations some state bar examiners ask prospective lawyers intrusive questions regarding their mental health in contravention of the American with Disabilities Act. In some states, such as Wisconsin, a prospective lawyer’s affirmative answer to having a mental disorder, even if currently treated, triggers more scrutiny than other applicants — in the form of being required to describe the mental disorder and how it has been treated. In addition, as a condition of undergoing the character and fitness investigation, a prospective lawyer must permit the state bar examiners to have carta blance access to their confidential medical records, records of which could potentially contain notes from mental health providers memorializing intimate details of their life.

I was admitted into the Wisconsin State Bar in June 2015. During the character and fitness investigation, I was required to describe my three mental disorders — social anxiety, clinical depression, and complex post-traumatic stress disorder — and how they had been treated, simply because I had been diagnosed with these disorders in the past.

I thought about the impermissible question — Question 35 of the Wisconsin Bar Applicant Questionnaire and Affidavit — for months before I actually filled it out. I did not know of its illegality at that time, but I still had an unsettling feeling in my stomach. I was worried that by telling the truth, the Wisconsin Board of Bar Examiners — whose members are appointed by the Wisconsin Supreme Court — would have not only have access to my therapists’ notes (which contain very intimate, personal information), but would also use that access to view them, becoming involved in very intimate details of my life, some of which I don’t even disclose to those people who are closest to me. The preamble to the mental health questions did note the “Board seeks records sparingly and judiciously.” (Emphasis mine). However, this did not alleviate my concerns as the Board, not I, had the discretion of whether the Board would access my records which, again, by their very nature, contain intimate and personal information.

I eventually filled out the character and fitness questions, including Question 35, and submitted it to the Board. But later I stumbled upon the 2014 United States Department of Justice’s settlement with — and its letter to — the Louisiana Supreme Court and its state bar examiners regarding similar mental health questions. Soon after, I reviewed the seminal case law regarding mental health questions on bar applications and some law review articles on the subject. From there, I was certain Question 35 violated the ADA and its accompanying regulations.

With this information in hand, I wrote to the Board in April 2015, informing it that I was revoking my prior permission for the Board to access my confidential mental health care records and that any future access would require new approval from myself, citing the 2014 DOJ-Louisiana Supreme Court settlement I had discovered. Afterwards, the Board sent me a letter letting me know they wouldn’t access my records without my permission and would let me know if they would seek permission at a later time.

At around this same time, I wrote an op-ed in the Badger Herald arguing that Question 35 violated the ADA and its accompanying regulations, once again mainly citing the DOJ-Louisiana Supreme Court settlement. In that op-ed, I also pointed out the legal controversy regarding these type of questions wasn’t particularly new and, in fact, the Board had been sued in 2006 for requiring a bar applicant to pay for a mental health examination. Although that case eventually settled out of court, the federal district court issued an opinion prior to the settlement denying the Board’s motion for summary judgment because the Board had not demonstrated it was necessary to subject the bar applicant — who had an untreated mental disorder in the past — to a psychological examination in order for the Board to carry outs its licensing function. In other words, the Board had failed to demonstrate that its action was not based on generalizations and stereotypes about people with mental disorders.[1] Given these surrounding circumstances, I wondered “why the Board continue[d] to employ questions relating to mental health that are of dubious legality under the ADA.”

A few months after writing that op-ed, I was admitted into the Wisconsin State Bar. Still, I could not stop thinking about Question 35 and how it violates the ADA. I could not stop thinking about how, as the DOJ noted in its letter to the Louisiana Supreme Court, requiring bar applicants to answer intrusive questions such as Question 35 and requiring them to give state bar examiners broad access to their mental health records, on the sole basis of having a treated mental disorder, discourages law students (i.e., future bar applicants) from seeking mental health treatment.[2] I also could not stop thinking about how Question 35 reinforces the stigma against those with mental disorders, including myself, by sending the following message: solely because you have a history of having an untreated mental disorder(s), you are potentially dangerous or incompetent; it matters not whether your mental disorder(s) is currently treated.

I remained determined to see Wisconsin come into compliance with the ADA by removing or changing the wording of Question 35. However, in October 2015, the wording of Question 35 remained unchanged on the new applicant questionnaire and affidavit. Thus, I wrote another article. This one was published in the February 2016 edition of the Wisconsin Lawyer magazine and discussed, once again, whether Question 35 violates the ADA. I opined that the Wisconsin Board of Bar Examiners faced “the risk of being the subject of a DOJ investigation” if it did not change Question 35 in the near future.

According to the Board’s records, it “reviewed and noted” my article at its February 26, 2016 open session meeting. Yet, in October 2016, the wording of Question 3 remained exactly the same — and it remains the same today. Therefore, in September 2017, I again wrote the Board, asking it to seriously reconsider utilizing Question 35 in its current form, arguing that “[t]he rights — and dignity — of those with mental disorders depends on it.” The Board’s response indicates that no imminent change in the wording of Question 35 is forthcoming.

As a result, prospective lawyers with mental disorders who wish to be admitted to the Wisconsin State Bar must continue to endure impermissible and unlawful discrimination on the basis of having a mental disorder. This must stop — and it must stop now.

But writing, as the foregoing demonstrates, is not enough. I have learned that now. Therefore, I also have submitted a petition with the Wisconsin Supreme Court to amend the Board’s rules regulating “admissions to the bar.” If granted, this petition will bring Wisconsin’s character and fitness investigations into compliance with the ADA. For purposes of the immediate future, filing this petition seems to be the only remedy.[3]

Aaron Loudenslager is a lawyer currently living in Madison, Wisconsin. After graduating from the University of Wisconsin Law School, he was a judicial law clerk at the Sauk County Circuit Court for Judge James Evenson, Judge Guy Reynolds, and Judge Michael Screnock. Aaron subsequently served as a judicial law clerk for Wisconsin Court of Appeals Judge Mark A. Seidl. The views expressed in this essay are solely those of the author.

[1] The Americans with Disabilities Act’s regulations require that public entities not ground their decisions — regarding those with disabilities — on stereotypes or generalizations. See 28 C.F.R. § 35.130(h); cf. “[T]he perpetuation of stereotypes is one of many forms of invidious discrimination.” G.G. v. Gloucester Cty. Sch. Bd., №16–1733, slip op. at 2 (4th Cir. April 7, 2017) (Davis, J., concurring).

[2] The DOJ letter cited sources indicating people, including law students, are more likely to both seek treatment — and discuss their problems more fully in therapy — if they know the information they discuss in therapy is not going to be disseminated to others. See Letter from Jocelyn Samuels to C.J. Bernette & J. Johnson et al. 23–24 (Feb. 5, 2014).

[3] “It is unsurprising, of course, that the burden of confronting and remedying injustice falls on the shoulders of the oppressed.” G.G., №16–1733, slip op. at 3 (Davis, J., concurring).

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