Have others been denied Bar admission because of disabilities?
Topic: legal matters
I'm looking for others who have been denied licensure as attorneys because of conditions that qualify as disabilities under the Americans with Disabilities Act, as it was amended and substantially broadened by the ADA Amendments Act of 2008. I suspect that, if we work together--or even if we start approaching the U.S. Justice Department and the federal courts independently NOW, with an appearance of a mass movement--we can get discriminatory state court policies (most of which are unwritten, understood policies) changed. My full reasoning for this effort, and my suggested approaches to the problem, are posted on the web page on the Hidden Issue of Disability Discrimination in Attorney Licensure.
Abbreviated, my reasoning is as follows:
1. One of the primary traditional functions of any professional licensing regime--whether for lawyers, doctors, architects, or barbers--is to ENFORCE society's fears and stereotypes for the benefit of the licensed occupation's public image by excluding any applicant who has a socially stigmatized condition. This traditional purpose of occupational licensing is in direct tension with the main purpose of the ADA, which is to insure that the diabled are judged on their individual merits in employment and in the administration of public proograms, and tht society's accumulated fears and stereotypes are not considered.
2. I know that, in my own case, I was denied admission to the Kansas Bar in 1993 in large part because I had a history of bipolar disorder for which I was still receiving successful treatment. I applied again in 2006, after 13 more years of successful treatment, no manic relapses, and a change in my primary diagnosis to Asperger's Disorder (my treating psychiatrist testified that he now believed the bipolar diagnosis had simply been wrong). Nevertheless, I was denied admission again, on the grounds that I had previously been denied admission in 1993 and had not proven that I had been "rehabilitated" from my mental illness, as required by Kansas Supreme Court Rule 704(k). The Court believed I had not shown rehabilitation becuase I was still receiving treatment and the testifying doctors couldn't swear that I would never break under any pressure, no matter how extreme. I thoroughly briefed the ADA, but neither the Kansas Board of Law Examiners nor the Court mentioned it in their decisions in my case, in either year.
3. Many other otherwise qualified applicants with stigmatized mental, emotional and/or developmental disabilities must have applied and been denied admission nationwide since the ADA became effective in 1991. (Note that I'm not singling out Kansas, the problem appears to have nationwide scope). Yet there are NO published cases whatever, anywhere, either applying ADA to individual attorney character and fitness determinations or holding that ADA does not apply to these determinations. This lack of any case law addressing a situation that must have arisen numerous times strongly suggests that the courts are consciously ignoring the ADA in this context, hoping it will go away if it is never mentioned.
4. The ADA was clarified and greatly expanded in scope on September 25, 2008, by the enactment of the ADA Amendments Act of 2008. Because of the clarification made to the definition of a "disability," Title II of the ADA now clearly protects people with mental, emotional and developmental disabilties when official action is taken against them on the basis of those disabilities.
5. It is now also clear, as it wasn't until 2004, that Title II of the ADA is valid legislation enforcing the Fourteenth Amendment. See, Tennessee v. Lane, 541 U.S. 509 (2004). As such, individuals discriminated against on the basis of a disability in the administration of a public program (which includes licensing programs) may bring suits for both money damages and equitable relief. Thus, if numbers of applicants rejected in the past on the basis of a disability start to move with even an appearance of a coordinated effort, we will present a credible threat and may obtain some action.
NOW ABOUT MY MOTIVATION:
I believe, reasonably I think, that my own cause is permanently lost. Kansas will never admit me, no matter what I prove. If I could make any proof that would be enough, my showing in 2006 would be enough. I also don't have the funds to quit my prsent job, move to another state, and try again there, and suspect that any state I might move to would simply automatically reject me out of comity with the Kansas courts. So I'm not launching this effort for my own benefit. There appears to be little chance that it will ever financially benefit me.
Instead, I want the vindication of seeing the rules that have permanently blocked me changed for the benefit of others. I want to see the courts recognize that they are bound to the policy underlying the ADA, just like the rest of us, even though this change will come too late to benefit me.
It may be asked why I can't just privately recognize my defeat, mourn my loss, and go on with my life. The reason is that I'm not allowed to forget my exclusion from the Bar. Once a month, I receive a bill from the agency that holds my student loan from law school. The required payments are a sizable part of my disposable income. I have been paying on this loan for more than 20 years, have already paid considerably more than the original principal, and am nevertheless still less than one third paid off. It has taken so long because, when the lender assumed I would be establishing my practice and would be able to increase my payments on schedule, such was not the case--because I kept being denied a license. The student loan bill reminds me of my loss every month. I have not yet found the grace to let go of my loss as long as I have this monthly, rude reminder of it. I might be able to let go and move on, if the student loan were gone. But this is not to be.
So, instead I'm seeking the vindication of knowing that I participated in starting the effort that changed the rules.
Posted by ian_j_site2
at 12:02 AM EST
Updated: Saturday, 7 February 2009 12:03 AM EST