The Impact of the Americans with Disabilities Act on State Bar Examiner's Inquiries Into the Psychological History of Bar Applicants

This Note argues that the use of any questions based upon an applicant's psychological history in the state bar application process violates the Americans with Disabilities Act. Part I demonstrates that Title II of the ADA applies to state boards of bar examiners, and that the ADA definition of a person with a disability includes a person who has sought or received psychological counseling. Part II applies the ADA and accompanying regulations to the psychological history inquiries currently used by state bar examiners and argues that such inquiries violate the ADA because they inquire specifically about disabled status. Part III argues that although Department of Justice regulations allow for a narrow necessity exception to the ADA, bar examiners' use of psychological background inquiries are not "necessary" because they are ineffective in determining applicants' fitness to practice law. Part IV asserts that the ADA permits questions relating to conduct and behavior, rather than past or present psychological status, and that such questions would adequately serve the bar examiners' purpose.