Tennessee Removes Discriminatory Questions from Attorney Licensure Application

  • March 17, 2014

Questions about Mental Health Diagnoses Violated ADA

By MARTHA M. LAFFERTY

Overview
There are many steps to become an attorney.  A person has to graduate from law school.  She also has to take the bar exam.  In addition, she has to apply for a law license.  Tennessee used to ask about a person’s mental health.  Now Tennessee does not ask about mental health.  A person with a mental health diagnosis can keep that private. She does not have to share that information to become an attorney. 

There are several steps to becoming a licensed Tennessee attorney. Those include graduating from law school, passing the Tennessee bar examination, and applying to the Tennessee Supreme Court for a license to practice law. The Tennessee Board of Law Examiners (TNBLE) administers Tennessee’s bar examination and licensure process. The Tennessee Supreme Court issues a law license to an applicant only upon the Certificate of the TNBLE. All applicants for a law license complete a detailed licensure application which includes numerous questions about conduct that could impact a person’s ability to practice law. These questions run the gamut from speeding tickets to disciplinary issues in college/law school to issues with employers. 

Until recently, law school graduates with a mental health diagnosis have faced unnecessary barriers to getting a Tennessee law license. That is because the character and fitness application used by TNBLE included three additional questions which focused solely on an applicant’s diagnosis with a mental health condition. If an individual answered any of those three questions in the affirmative, the application then required him to release his mental health records. In addition, applicants with mental health diagnoses were generally subjected to a heightened level of scrutiny throughout the remainder of the licensure process. Keep in mind these were individuals who had demonstrated the ability to graduate from law school and pass the bar exam.  In addition, these individuals were self-aware enough to seek treatment during or prior to law school. So, in effect, people with mental health diagnoses who wanted to practice law in Tennessee were being scrutinized for taking care of their own mental health. 

Disability Law & Advocacy Center of Tennessee (DLAC) has long taken the position that the three questions discriminated against people with mental illness and deterred college and law students from seeking mental health treatment. In addition, DLAC has engaged in numerous efforts to educate the Tennessee Board of Law Examiners and the Tennessee Supreme Court about our concerns that these questions violated the unnecessary inquiry provisions of the Americans with Disabilities Act (ADA)1. The United States Department of Justice (DOJ) recently issued two opinion letters regarding the use of similar questions by Louisiana and Vermont. In those letters, DOJ made clear that questions focusing on mental health diagnoses are discriminatory and violate the ADA.  

As a result of DOJ’s findings about the discriminatory nature of such questions and DLAC’s persistence in educating the State of Tennessee about this issue, we are pleased to announce that the TNBLE has now stopped using the discriminatory mental health questions2. Now individuals who want to become licensed Tennessee attorneys can now seek mental health treatment if needed without worrying that doing so will impact their licensure process.  Licensure applicants with mental health diagnoses can now keep that information private if they choose. Removing the stigma from seeking mental health care is a win for both licensure applicants and the State of Tennessee. 

DLAC congratulates the State of Tennessee and all of the current and future applicants for attorney licensure who will be positively impacted by this change!
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1For example, DLAC and our collaborators publicly raised concerns about these questions in a March 9, 2009 comment to the Tennessee Supreme Court regarding a proposed rule on conditional admission.

2Tennessee uses a national service to process character and fitness applications. That service is called the National Conference of Bar Examiners (NCBE). The NCBE continues to offer the three discriminatory questions to states who want to use them. Due to Tennessee's decision to remove these questions from its licensure process, those questions will no longer appear on the NCBE application accessed by applicants for licensure in Tennessee. 

Image Credit: law-schoolcoach.com

Disability Rights Tennessee (DRT) is a nonprofit legal services organization that provides free legal advocacy services to protect the rights of Tennesseans with disabilities.

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