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ACLU Files Legal Challenge to Questions Asked of State Bar Applicants

May 12, 1998

The American Civil Liberties Union of Colorado (ACLU) announced today that it has filed suit to challenge the State of Colorado’s practice of requiring that individuals seeking a license to practice law must answer broad-ranging questions about any past history of substance abuse, treatment for substance abuse, or any past history of treatment for mental or emotional disorders.

The suit, filed on behalf of law students who intend to apply to the Colorado bar, alleges that the Board of Law Examiners violates the Americans for Disabilities Act (ADA) and the constitutional right of privacy by demanding sensitive personal information that is not necessary to the Board’s job of determining whether applicants are currently fit to practice law.

One of the challenged questions asks if the applicant has ever been dependent on drugs or alcohol, or has ever been accused of being dependent. Another asks if the applicant has ever received treatment or consulted a doctor about use of drugs or alcohol at any time in the past ten years. The third asks about past history of hospitalization for emotional or mental health problems. Applicants who answer affirmatively must supply additional detailed information, including the names of treatment professionals. Applicants must also authorize the Board to obtain confidential medical information from these treatment professionals.

"Applicants with these past histories of treatment are protected by the ADA," said Steve Masciocchi, with the firm of Holland & Hart, who is serving as an ACLU cooperating attorney. "These questions violate the ADA because they unnecessarily force applicants to reveal private information about past treatment that is not relevant to their current fitness to practice law. The Board could do its job by substituting narrow questions that focus on conduct rather than past medical condition."

"By categorizing persons with disabilities or past history of treatment as potentially unfit to practice law and imposing additional burdens of investigation upon them," Masciocchi added, "the Board of Law Examiners perpetuates the impermissible stereotyping that the ADA prohibits."

"Forcing applicants to answer these questions not only violates the law, it is also bad public policy," said Mark Silverstein, ACLU Legal Director. "These questions deter law students from seeking counseling and therapy." Silverstein pointed out that the practice of law is stressful and that lawyers have one of the highest rates of alcoholism and drug abuse. "Instead of intimidating students with questions that pry into past history of treatment," Silverstein said, "we should be making it easier for them to seek therapy that could teach them healthy coping skills that would strengthen their ability to withstand the stress of law practice without resorting to alcohol and drugs."

Since the passage of the ADA in 1991, a number of state licensing boards have dropped similar questions from their applications, sometimes in response to court challenges and sometimes voluntarily after reviewing legal arguments advanced not only by the ACLU but by the United States Department of Justice as well. The Justice Department has filed friend of the court briefs arguing that inquiries into past history of treatment violate the ADA.

According to the complaint, the ACLU corresponded with the Colorado Board of Law Examiners in an effort to persuade it to eliminate the challenged questions. In that correspondence, the ACLU suggested the questions be revised to inquire about current impairments rather than past treatment and that they focus on conduct and behavior rather than the status of having been treated at some time in the past. The ACLU also provided the Board with model substitute questions drafted by the Justice Department.

Although the Board did approve some revisions, the proposed changes were not sufficient to resolve the dispute. "After reviewing our legal arguments, the Board decided that it would continue to require information about past history of treatment that we believe is not necessary to determining whether applicants are currently fit to practice law," Silverstein explained.

The lawsuit, "Doe v. Colorado Board of Law Examiners", was filed in Denver District Court and assigned to Chief Judge Connie Peterson. The plaintiffs include two law students who filed under pseudonyms to protect their privacy, and the student chapter of the ACLU at the University of Denver College of Law.

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