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Title II of the ADA applied to State and Local Professional Licensing

Lauren E. Chanatry and Jack Cronin*
July 2007 (Updated August 2017)

Prepared for:
Southeast Center on the Americans with Disabilities Act (Southeast ADA Center)
ADAsoutheast.org

I. Introduction

The Americans with Disabilities Act (ADA), signed into law on July 26, 1990 by President George H.W. Bush, is the most comprehensive civil rights statute aimed at eliminating discrimination against persons with physical or mental impairments.1. The ADA prohibits discrimination on the basis of disability in employment, transportation, and telecommunications. The Act also prohibits such discrimination by State and Local governments, and by public accommodations and other commercial facilities.2 At signing, President Bush stated that the ADA would signal the end of the segregation and exclusion of persons with disabilities from the mainstream of American life.3 Discrimination by state governments regulating entry into and membership in licensed professions falls under ADA Title II. Title II provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits, services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”4 It further requires state and local government agencies to operate programs so that they are “readily accessible to and usable by individuals with disabilities.”5

II. State Licensing Boards and the ADA

Licensing boards are authorized by state governments to control who may practice in a particular professional field. Consequently, these entities are charged with a duty to protect the public.6 Common boards are the state bar (law) and state medical boards (medicine). Other licensing boards regulate teaching, pharmacy, nursing, and other professions. Courts have concluded that licensing boards are Title II entities subject to the ADA because they are empowered by state governments to provide benefits, services, and programs.7 For instance, in Bartlett v. New York State Board of Bar Examiners (2nd Circuit), the board denied an applicant’s request for testing accommodations, such as extended time and alternative ways to answer questions.8 Bartlett filed suit after failing the test several times.9 The court concluded that if the applicant had a disability, she was entitled to the requested accommodations because the Board was subject to Title II of the ADA.10

On remand, the district court for the Southern District of New York concluded that the “plaintiff [was] substantially limited in the major life activity of reading…by her slow reading rate and by the fatigue caused by her inability to read with automaticity.”11 In the alternative, the court concluded the “plaintiff [was] substantially limited in the major life activity of working because the Board’s failure to accommodate her reading impairment was a substantial factor contributing to her failure to pass the bar.”12Accordingly, the court found the plaintiff was entitled to reasonable accommodations when taking the New York State Bar Examination.13

A 1995 Department of Justice settlement granted testing accommodations to a qualified individual with disabilities. A plumber with dyslexia filed a complaint against the Rockland County Board of Plumbing, Heating and Cooling Examiners, alleging Title II discrimination for refusing to provide accommodations to the written portion of the county’s plumber licensing exam.14 The individual had previously demonstrated forty-two years of competency as a plumber and businessperson.15 The settlement agreement required the Board to accommodate the plumber by providing a reader or an oral exam, and to adopt a policy of nondiscrimination subject to DOJ approval.16

Other cases against licensing boards alleging Title II discrimination have turned on the content of application questions. In Ellen S. v. Florida Board of Bar Examiners, an applicant for admission to the bar sued the Florida Board claiming that application questions pertaining to an emotional disorder violated the ADA.17 The district court for the Southern District of Florida held that a defendant need not have knowledge of the plaintiff’s disability in order to violate the ADA.18 The court further held that questioning the applicant as to whether she had ever sought treatment for a nervous, mental, or emotional disorder or had been diagnosed as having such a condition violated Title II.19

Similarly, in Clark v. Virginia Board of Bar Examiners, a federal district court held that a Virginia bar application question asking whether an applicant had been treated for mental illness or had obtained counseling in the past five years violated the ADA.20 The district court for the Eastern District of Virginia decided that, absent a showing the applicant would pose a direct threat to her clients, her failure to answer the open-ended mental health inquiry did not prevent her from becoming a member of the bar.21

Title II, however, has not consistently protected persons with disabilities seeking membership in board-regulated professions. In Applicants v. Texas State Board of Law Examiners, the bar application asked the following two-part question:

a) Within the last ten years, have you been diagnosed with or have you been treated for bi-polar disorder, schizophrenia, paranoia, or any other psychotic disorder?

b) Have you, since attaining the age of eighteen or within the last ten years, whichever period is shorter, been admitted to a hospital or other facility for the treatment of bi-polar disorder, schizophrenia, paranoia, or any other psychotic disorder?22

An affirmative answer to either part of this question required the applicant to provide a detailed description of the diagnosis or treatment, and to identify and provide the address of each individual who had treated the applicant.23 Answering affirmatively also required an applicant to sign a limited authorization for release of mental health records to those who had diagnosed or treated the applicant.24

The district court for the Western District of Texas upheld the question stating, “[b]ipolar disorder, schizophrenia, paranoia, and psychotic disorders are serious mental illnesses that may affect a person’s ability to practice law. People suffering from these illnesses may suffer debilitating symptoms that inhibit their ability to function normally.25

Some courts have shown reluctance to make a decision on discriminatory licensing issues. In Johnson v. State of Kansas,26 a Kansas bar applicant with chronic bipolar affective disorder sued the Kansas Supreme Court for violations of the ADA after it rejected his application. The federal district court for Kansas cited case law to support the proposition that it lacked jurisdiction to review a denial of membership to the bar.27 However, Johnson’s actual claim was a general challenge to allegedly discriminatory policies, patterns or established practices in the application of Kansas bar admission rules, rather than his specific rejection. By claiming it lacked jurisdiction, the court avoided hearing the main issue of discrimination. This decision appears erroneous because federal courts clearly have jurisdiction over ADA cases.28

State medical boards may have a greater obligation to protect the public from harm than State Bars. In Kirbens v. Wyoming State Board of Medicine, a physician diagnosed with bipolar affective disorder, narcissistic personality disorder, and who claimed his misconduct resulted from his disabilities, sought judicial review of the revocation of his license by the Board of Medicine after a contested case hearing.29 The Supreme Court of Wyoming held that a physician who poses a risk to the health or safety of patients was not a “qualified individual” with a disability within the meaning of the ADA. The Board therefore was not required to make an accommodation under the ADA by either accepting his resignation, or by placing him in a state-sponsored rehabilitation program (such as those authorized by state law for “doctors with an alcohol or drug dependence issue.”)30 In 2003, the Wyoming legislature amended the powers and duties of its state medical board to remove the requirement to assist doctors “exhibit[ing] disruptive behaviors, substance dependence or … physical or mental impairment” return to practice.31

III. Developments (2007-2017)

Within the last ten years, there have been few changes to the law in regard to ADA Title II and professional licensing.  Each of the cases cited in the section above are still in force; none have been overturned, or even questioned. One issue that has come up, however, is the question of whether states themselves can be sued for decisions made by licensing boards.  The 10th Circuit has twice confronted that issue.  It first came up in Guttman v. Khalsa.32 Guttman was a former doctor with a history of depression and post-traumatic stress disorder who had his medical license revoked by the New Mexico Board of Medical Examiners.  The Board found that Guttman posed a danger to his patients prior to this revocation.  Guttman sued both the state of New Mexico and the members of the board individually, raising several constitutional claims and title II of the ADA.  The 10th Circuit held that the state had sovereign immunity from title II claims. 

The doctrine of sovereign immunity is the idea that states cannot be sued by citizens unless either (1) they consent to be sued, or (2) a federal law creates the ability for citizens to sue them. In this instance, as the court describes, the 14th amendment’s due process clause allows citizens to sue only when a “fundamental right” is at stake.  Generally, fundamental rights are drawn from the constitution, either directly, as in the Bill of Rights, or implicitly, as in the rights to marriage and privacy.  Here, the 10th Circuit determines that the ability to perform a certain profession is not a fundamental right. Thus, people with disabilities cannot sue the state government to secure rights associated with professional licensing under ADA Title II. Only the state has immunity on the grounds. however. Guttman’s claims against the board members were allowed to proceed. 

The 10th Circuit affirmed the holding from Guttman when they decided Turner v National Council of State Boards of Nursing, Inc.33, two years later.  Turner was a nursing candidate with dyslexia who was denied extra time for a nursing examination.  Turner, like Guttman, sued both the state and the members of the board.  Although this case related to the examination process and granting a license rather than revoking one, the 10th Circuit’s analysis was largely the same.  They held that sovereign immunity once again barred the suit against the state. The core question was whether professional licensing was a “fundamental right,” regardless of at what point in the licensing process that the title II claim arose.  And because professional licensing was still not a “fundamental right,” the title II claim against the state was barred by sovereign immunity.  Outside of the issue of sovereign immunity, there has been very little activity.  One case, Bonnette v. D.C. Court of Appeals,34 involved the use of technology as an accommodation.  Bonnette was a law school graduate who was legally blind.  After being denied the use of Job Access With Speech (JAWS), a text to speech software, for the Bar Examination, Bonnette sued the D.C. Court of Appeals in the D.C. District Court.  The District Court held that the “examination” portion of title II of the ADA, which requires any person offering examinations related to licensing to provide accessible accommodations to people with disabilities, applied to both public and private examination providers equally.  Because the D.C. Court of Appeals administered the Bar Examination, they were within the meaning of “person,” and the District Court required that they provide the Bar Exam to Bonnette with the JAWS technology.  The difference between this case and Turner is that Bonnette sued the actual entity that administered the test, and not the state.

IV. Conclusion

Employers generally assume a candidate meets essential qualifications if board-certified. Thus, Title II litigation against state boards largely focuses on subjective decisions boards make when balancing their duty to protect the public with the rights of individuals seeking membership into the profession. Much of the law regarding licensing has been settled since the mid-1990s;35 however, district courts continue to interpret and clarify acceptable application questions. Boards may ask questions concerning disabilities, although prudential concerns limit the scope of these questions. For example, an impairment actually must limit the applicant’s ability to perform the specific task or job.

Broad questions about mental illness are not allowed. To satisfy judicial scrutiny, questions about mental illness must specifically address presently occurring illness. A question probes too far into the past when the value of the question to demonstrate current impairments is substantially reduced by the lapse of time.36 Also, boards must be able to justify their questions as a reasonable measure to protect the public. Successful questions often ask the applicant for a subjective answer to whether their disability would affect their job.

Footnotes

* Ms. Chanatry was a 2009 Juris Doctor candidate at the Syracuse University (SU) College of Law, and Mr. Cronin is a 2018 Juris Doctor candidate at the SU College of Law working under the direction of William N. Myhill, M.Ed., J.D., Director of Legal Research & Writing at the Burton Blatt Institute (BBI) and Adjunct Professor of Law at SU; 900 S. Crouse Ave., Crouse-Hinds Hall, Suite 300, Syracuse, New York 13244. For additional information on related law and policy issues, see bbi.syr.edu.

  1. 42 U.S.C. § 12180 (2000); Signing Statement, President Bush on the ADA, July 26, 1990, available at www.presidency.ucsb.edu/ws/print.php?pid=18712
  2. 42 U.S.C. § 12112
  3. Signing Statement, President Bush on the ADA, supra note 1.
  4. 42 U.S.C. § 12132
  5. 42 U.S.C. § 12148(a)(1).
  6. See e.g., N.C. GEN. STAT. § 87-42 (2006) (electrical contracting); ARK. CODE ANN. § 17-103-102 (2007) (social work); COLO. REV. STAT. ANN. § 12-36-201(1) (2007) (medicine).
  7. See, e.g., Theriault v. Flynn, 162 F.3d 46 (1st Cir. 1998); Burke v. State Bar of Cal., No. C 06-06950 WHA , 2007 WL 39397 (N.D. Cal., Jan. 4, 2007).
  8. 226 F.3d 69 (2d Cir. 2000). “Bartlett sought unlimited or extended time to take the test and permission to tape record her essays and to circle her multiple choice answers in the test booklet rather than completing the answer sheet.” Id. at 75.
  9. Id.
  10. Id. at 86.
  11. Bartlett v. N.Y. State Bd. of Law Exam’rs, No. 93 CIV. 4986(SS), 2001 WL 930792, at *3 (S.D.N.Y., Aug. 15, 2001).
  12. Id.
  13. Id.
  14. Department of Justice, Enforcing the ADA: A Status Report from the Department of Justice (Apr.-Sep., 1995), available at www.usdoj.gov/crt/ada/pubs/sep95.txt
  15. Id.
  16. Id.
  17. 859 F.Supp. 1489 (S.D. Fla., 1994).
  18. Id. at 1491.
  19. Id. at 1494.
  20. 880 F.Supp. 430, 433 (E.D. Va., 1995).
  21. Id. at 446.
  22. No. A93 CA 740SS, 1994 WL 776693, at *2 (W.D. Tex. Oct. 11, 1994) (quoting question # 11).
  23. Id.
  24. Id.
  25. Id. at *3.
  26. 888 F.Supp. 1073, (D. Kan. 1995).
  27. Id. at 1079.
  28. Kleiber v. Honda of America Mfg., Inc., No. 06-3490 (6th Cir. May 03, 2007).
  29. 992 P.2d 1056, 1060 (Wyo. 1999).
  30. Id. at 1064.
  31. Wyo. Stat. Ann. § 33-26-202(b)(xii) (1987), amended by 2003 Wyo. Sess. Laws Ch. 190 (Mar. 7, 2003).
  32. Guttman v. Khalsa, 669 F.3d 1101, 1101 (10th Cir. 2012).
  33. Turner v. Nat’l Council of State Bds. of Nursing, Inc., 561 Fed. Appx. 661, 661 (10th Cir. 2014).
  34. Bonnette v. D.C. Court of Appeals, 796 F. Supp. 2d 164 (D.D.C., 2011).
  35. Stanley S. Herr, Questioning the Questionnaires: Bar Admissions and Candidates with Disabilities, 42 VILL. L. REV. 635, 680 (1997).
  36. See Mariam Alikhan, The ADA is Narrowing Mental Health Inquiries on Bar Applications: Looking to the Medical Profession to Decide Where to go From Here, 14 GEO. J. LEGAL ETHICS 159, 163-67 (2000); Herr, supra note 32, at 640-46.

Disclaimer

These materials do not constitute legal advice and should not be relied upon in any individual case. Please consult an attorney licensed in your state for legal advice and/or representation. These materials were prepared by the legal research staff of the Burton Blatt Institute (BBI) at Syracuse University in partnership with the Southeast ADA Center to highlight legal and policy developments relevant to civil rights protections and the impact of court decisions in the Southeast Region under the Americans with Disabilities Act (ADA). These materials are based on federal disability rights laws and court decisions in effect at the time of publication. Federal and state disability rights law can change at any time. In addition, state and local laws and regulations may provide different or additional protections. Materials are intended solely as informal guidance, and are neither a determination of your legal rights nor responsibilities under the ADA or other federal, state, and local laws, nor binding on any agency with enforcement responsibility under the ADA. The accuracy of any information contained herein is not warranted. Any links to external websites are provided as a courtesy and are not intended to nor do they constitute an endorsement of the linked materials.

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