March 31, 2014
Recently, the civil rights division of the Department of Justice (DOJ) sent a letter to the Louisiana Supreme Court stating that questions asked in the National Conference of Bar Examiners questionnaire about mental health diagnosis and treatment may violate the Americans with Disabilities Act (ADA). Here is an excerpt from the letter:
"In particular, we find that Louisiana’s attorney licensure system discriminates against bar applicants with disabilities by: (1) making discriminatory inquiries regarding bar applicants’ mental health diagnoses and treatment; (2) subjecting bar applicants to burdensome supplemental investigations triggered by their mental health status or treatment as revealed during the character and fitness screening process; (3) making discriminatory admissions recommendations based on stereotypes of persons with disabilities; (4) imposing additional financial burdens on people with disabilities; (5) failing to provide adequate confidentiality protections during the admissions process; and (6) implementing burdensome, intrusive, and unnecessary conditions on admission that are improperly based on individuals’ mental health diagnoses or treatment,"
The letter from the DOJ went on to say that an individual’s previous conduct, rather than mental health status is a better indicator of future competency as an attorney. The Scattergood Fellow on Stigma Reduction wholeheartedly agrees and wonders why it took so long for the DOJ to take action considering that the ADA has been on the books for over 20 years. Nonetheless, this is a very significant step that hopefully will eliminate flagrant and systematic discrimination that also occurs in other states’ licensure processes for attorneys.
However, one might argue that a diagnosis of schizophrenia or bipolar disorder should disqualify someone from practicing law because that person could be prone to delusional or disordered thinking that would interfere with the functions of the job. The counterpoint to this argument would be that, as the DOJ points out, past behavior should dictate interpretations of competence not a label, as most people with bipolar disorder or schizophrenia are not irrational or incompetent.
Of course there is a counterpoint to the above counterpoint, and other counterpoints to the original argument. So, what do you think? Has the DOJ taken long overdue measures, or could this lead to an influx of attorneys who are not well-suited to the demands of being a lawyer?