U.S. Department of Justice Civil Rights Division Coordination and Review Section PO Box 66118 Washington, D.C.

20035-6118 NOV 7 1994 Mr. Stephen C. Villarreal Chairman Committee on Character and Fitness Supreme Court, State of Arizona 111 W. Monroe Phoenix, Arizona 85003-1742 RE: Complaint Number XX Dear Mr. Villarreal: This letter constitutes the Department of Justice's (the Department) Letter of Findings with respect to the allegations received by this office concerning violations of Title II of the Americans with Disabilities Act of 1990 (ADA) by the Committee on Character and Fitness of the Arizona Supreme Court (the Committee). Title II prohibits discrimination against qualified individuals with disabilities on the basis of disability by State and local governments. The allegations concern two sets of inquiries made on the application a candidate must complete prior to taking the State Bar examination. The Coordination and Review Section of the Civil Rights Division is responsible for investigation and resolution of administrative complaints alleging violations of Title II by components of State and local governments in the area of the administration of justice, including courts. 28 C.F.R. 35.190 (b)(6). The Department of Justice has authority to conduct investigations when it receives a complaint or when it has reason to believe that a public entity subject to its jurisdiction is violating Title II. As explained below, we find that the Committee is now in compliance with Title II because it has corrected violations that were found. FINDINGS OF FACT At issue in this case are two sets of three questions on the Arizona State Bar examination application. For the February 1992, July 1992, and February 1993 Bar examinations, the Bar examination application included these questions: 01-00209

-2(4) Do you have any physical, mental, or emotional impairment which might affect your ability to engage in the continuous practice of law? If your answer is yes, explain fully.1 (12) Are you now, or at any time in the past have you been addicted to the use of, or engaged in the excessive use of, drugs, narcotics or alcohol, or have you ever undergone treatment for the excessive use of drugs, narcotics, or alcohol? If your answer is yes, explain in detail. (13a) Have you ever been adjudged an incompetent, or a conservatee or protected person, or have any proceedings ever been brought for such purposes, or have you ever been treated or confined for mental or emotional disorders? If your answer is yes, give full details, including but not limited to the name and locality of the court, if any, the date of proceeding, if any, the name and address of the institution, if any, and, if applicable, the name and address of the physician, the inclusive dates you were adjudged either an incompetent or conservatee or protected person, or committed to any institution. For the July 1993 and February 1994 examinations, the Committee contracted with the National Conference of Bar Examiners (NCBE) to provide the application forms and to conduct background investigations. The NCBE application form included the following questions: (31) Have you ever been addicted to the use of alcohol, illegal drugs or prescription drugs? Have you used illegal drugs or narcotics during the last five years? As a result, have you ever undergone treatment? If you answered yes, to 31, 32, or 33, complete ____________________________________________________________ 1 This question is problematic because its emphasis on the "continuous" practice of law unnecessarily excludes those who practice law less than full-time. Furthermore, the Committee conceded that few lawyers engaged in the "continuous" practice of law. 01-00210

-3FORMS 16 and 17. Make as many copies of FORMS 16 and 17 as you need to describe the event. (32) Have you ever been treated or counseled for any mental, emotional, or nervous disorder or condition? If you answered yes, to 31, 32, or 33, complete FORMS 16 and 17. Make as many copies of FORMS 16 and 17 as you need to describe the event. (33) Have you ever voluntarily entered or been involuntarily admitted to an institution for treatment of a mental, emotional or nervous disorder or condition? If you answered yes, to 31, 32, or 33, complete FORMS 16 and 17. Make as many copies of FORMS 16 and 17 as you need to describe the event. As discussed in detail below, the Department finds that the Committee's inquiries regarding a history of mental, emotional, or nervous disorders and its inquiries regarding treatment for excessive use of alcohol or drugs violate the ADA. This finding applies to the questions used by the Committee from February 1992 through February 1993 and to the Committee's use of the questions provided by the National Conference of Bar Examiners subsequent to February 1993. The Committee provided, for the Department's review, copies of applications filed since the effective date of Title II that included affirmative answers to one or more of the questions at issue, and the Department found no evidence that the information obtained in response to these questions was improperly used to delay or deny admission to any applicant. APPLICABLE LEGAL STANDARDS As an agency of the Arizona Supreme Court, the Committee on Character and Fitness of the Arizona Supreme Court is a public entity and its activities in reviewing applicants for admission to the Arizona State Bar are services, programs, or activities provided or made available by a public entity. As such, it is required to comply with Title II of the ADA and the Department of Justice's Title II regulation. 42 U.S.C. 12131; 28 C.F.R. Part 35. All applications or admissions after January 26, 1992, are covered by Title II. Section 202 of the ADA (42 U.S.C. S 12132) provides that -Subject to the provisions of this title, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied 01-00211 -4-

the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. Section 201 defines a "qualified individual with a disability" as -an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity. 42 U.S.C. S 12131 (2). With respect to licensing, a "qualified" individual with a disability is one who meets the "essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." 28 C.F.R. ​ 35.104. Section 35.130(a) of the Department of Justice's regulation implementing Title II (28 C.F.R. pt. 35) restates the general requirement of Section 202 of the statute. The specific requirements of the regulation apply this general principle to particular situations. Section 35.130(b)(6) provides that a public entity may not administer a licensing or certification program in a manner that subjects qualified individuals with disabilities to discrimination on the basis of disability. Thus, the nondiscrimination obligations are specifically applied to the Committee's function of licensing attorneys. A core purpose of the ADA is the elimination of barriers caused by the use of stereotypic assumptions "that are not truly indicative of the individual ability of [persons with disabilities] to participate in, and contribute to, society." 42 U.S.C. 12101(a)(7). The ADA does not permit unnecessary inquiries into the existence of disabilities, and prohibits policies that impose greater requirements or burdens on individuals with disabilities than those imposed on others. The Committee's use of the questions at issue unnecessarily targets for further investigation those individuals who have histories or diagnoses of disabilities and imposes additional burdens of investigation upon them. Title II of the ADA does not permit inquiries into disabilities where they are not necessary to achieve the objective of determining whether individuals are fit to practice law. Unnecessary inquiries are barred by 28 C.F.R. 01-00212 -5-

​ 35.130(b)(8), which states that a public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered. The inquiries at issue are not necessary to the Committee in making its determinations of whether individuals are qualified to practice law, because they "substitute an impermissible inquiry into the status of disabled applicants for the proper, indeed necessary, inquiry into the applicants' behavior." Medical Society of New Jersey v. Jacobs, Civ. A. No. 93-3670 (WGB), 1993 WL 413016, at *7 (D. N.J. Oct. 5, 1993). The Committee's inquiries discriminate against qualified individuals with disabilities because the Committee utilizes these inquiries to identify individuals for further investigation on the basis of disability. In order to receive a license to practice law in Arizona, the Committee requires applicants to answer all questions on the application, including those regarding emotional, mental, and nervous disorders, and questions regarding alcohol and drug use. Based on the answers, further investigation may be undertaken. This investigative process violates the ADA because it places greater burdens on applicants with disabilities than those placed on other applicants. See Medical Society of New Jersey v. Jacobs, 1993 WL 413016, at *14. ("Taken together, these [Title II] regulations prohibit the imposition of extra burdens on qualified individuals with disabilities when those burdens are unnecessary. Yet this is exactly what the Board is doing.") Furthermore, such questions violate the ADA even if the Bar neither denies an applicant's admission to the Bar nor possessed actual knowledge of the applicant's disabilities. Ellen S. v. The Florida Board of Bar Examiners, et al., 94-0429-CIV-KING (S.D. Fla., August 1, 1994).2 REMEDIES After extensive negotiations between the Department and the Committee, the Committee has agreed to eliminate the questions at issue from applications to be used in the future, and has proposed to use the following questions, which focus on behavior rather than status, in their place: _______________________________________________________________ 2 See also In re Applications of Anne Underwood and Judith Ann Plano, 1994 WL 649283 (Me.) (Board's inquiries into Bar applicants' mental health histories discriminate on the basis of disability and impose eligibility criteria that unnecessarily screen out individuals with disabilities.) 01-00213 -6-

1. In the past year, have you illegally used drugs? If yes, provide details. (Illegal use of drugs means the unlawful use of one or more drugs and/or the unlawful possession or distribution of drugs. It does not include the use of drugs taken under supervision of a licensed health care professional, or other uses authorized by federal law provisions.) 2. In the past year, have you ever been reprimanded, demoted, disciplined, terminated or cautioned by an employer as a result of your alleged consumption of alcohol, prescription drugs, or illegal use of drugs? If so, please state the circumstances under which such action was taken, the date(s) such action was taken, the name(s) of persons who took such action and the background and resolution of such action. 3. Since the age of 18, or within the last five years (whichever period is shorter), have you ever been reprimanded, demoted, disciplined, cautioned or terminated by an employer for alleged tardiness, absenteeism or unsatisfactory job performance in your employment? If so, please state the circumstances under which such action was taken, the date(s) such action was taken, the name(s) of persons who took such action and the background and resolution of such action. 4. Have you ever been accused of mishandling, mismanaging, or misappropriating the money or property of others? If so, please state the date of such accusations, the person(s) making such accusations, the specific accusations made, and the background and resolution of such accusations. 5. Have you ever refused to submit to a test to determine whether you had consumed and/or were under the influence of alcohol or drugs? If so, please state the date you were requested to submit to such a test, type of test requested, the name of the entity requesting that you submit to the test, the outcome of your refusal, and the reason why you refused to submit to such a test. 6. In the past year, have you suffered memory loss or impaired judgment for any reason? If so, please explain in full. 7. In the past year, have you failed to meet any personal or business related deadlines for any reason? If so, please explain in full. 01-00214 -7-

The Department finds that the new questions proposed by the Committee do not on their face violate Title II of the ADA. As stated above at page 3, we found no evidence that the Committee improperly used the information obtained in response to the questions at issue to delay or deny admission to an applicant. The Committee is reminded, however, that it cannot avoid responsibility if it adopts another jurisdiction's decision to deny admission to an applicant, if that jurisdiction based its decision on information obtained in response to questions which are identical or similar to those at issue. In view of the steps taken by the Committee to ensure that its new State Bar application questions do not discriminate against qualified individuals with disabilities, we have determined that the violations of Title II have been corrected and, therefore, the Committee is now in compliance with the ADA. Therefore, we are closing our files on this case. Under the Freedom of Information Act, it may be necessary to release this document and related correspondence and records upon request. In the event that we receive such a request, we will seek to protect, to the extent provided by law, personal information which, if released, could constitute an unwarranted invasion of privacy. If you have any questions concerning this letter, please feel free to contact Steven Harris, the investigator assigned to this case, at (202) 307-2248 (voice) or (202) 307-2678 (TDD), or Sara Kaltenborn, the attorney assigned to this case, at (202) 307-2235 (voice) (these are not toll-free numbers). Sincerely,

Merrily A. Friedlander Acting Chief Coordination and Review Section Civil Rights Division

01-00215

US DEPARTMENT OF JUSTICE Civil Rights Division

Coordination and Review Section PO BOX 6118 Washington, D.C. 20035-6118 NOV 7 1994 XXX XXX XXX RE: Complaint Number XX Dear Professor XX : This letter constitutes the Department of Justice's (the Department) Letter of Findings with respect to your complaint alleging violations of Title II of the Americans with Disabilities Act of 1990 (ADA) by the Committee on Character and Fitness of the Arizona Supreme Court (the Committee). Title II prohibits discrimination against qualified individuals with disabilities on the basis of disability by State and local governments. As explained below, we find that the Committee is now in compliance with Title II because it has corrected violations that were found. Specifically, you allege that two sets of inquiries made on the application a candidate must complete prior to taking the State Bar examination violate the ADA. These questions are: (4) Do you have any physical, mental, or emotional impairment which might affect your ability to engage in the continuous practice of law? If your answer is yes, explain fully.1 (12) Are you now, or at any time in the past have you been addicted to the use of, or engaged in the excessive use of, drugs, narcotics or alcohol, or have you ever undergone treatment for the excessive use of drugs, narcotics, or alcohol? If your answer is yes, explain in detail. ______________________________________________________ 1 This question is problematic because its emphasis on the "continuous" practice of law unnecessarily excludes those who practice law less than full-time. Furthermore, the Committee conceded that few lawyers engaged in the "continuous" practice of law. 01-00216 -2(13a) Have you ever been adjudged an incompetent, or a

conservatee or protected person, or have any proceedings ever been brought for such purposes, or have you ever been treated or confined for mental or emotional disorders? If your answer is yes, give full details, including but not limited to the name and locality of the court, if any, the date of proceeding, if any, the name and address of the institution, if any, and, if applicable, the name and address of the physician, the inclusive dates you were adjudged either an incompetent or conservatee or protected person, or committed to any institution. For the July 1993 and February 1994 examinations, the Committee contracted with the National Conference of Bar Examiners (NCBE) to provide the application forms and to conduct background investigations. The NCBE application form included the following questions: (31) Have you ever been addicted to the use of alcohol, illegal drugs or prescription drugs? Have you used illegal drugs or narcotics during the last five years? As a result, have you ever undergone treatment? If you answered yes, to 31, 32, or 33, complete FORMS 16 and 17. Make as many copies of FORMS 16 and 17 as you need to describe the event. (32) Have you ever been treated or counseled for a mental, emotional, or nervous disorder or condition? If you answered yes, to 31, 32, or 33, complete FORMS 16 and 17. Make as many copies of FORMS 16 and 17 as you need to describe the event. (33) Have you ever voluntarily entered or been involuntarily admitted to an institution for treatment of a mental, emotional or nervous disorder or condition? If you answered yes, to 31, 32, or 33, complete FORMS 16 and 17. Make as many copies of FORMS 16 and 17 as you need to describe the event. As discussed in detail below, the Department finds that the Committee's inquiries regarding a history of mental, emotional, 01-00217 -3or nervous disorders and its inquiries regarding treatment for

excessive use of alcohol or drugs violate the ADA. This finding applies to the questions used by the Committee from February 1992 through February 1993 and to the Committee's use of the questions provided by the National Conference of Bar Examiners subsequent to February 1993. The Committee provided, for the Department's review, copies of applications filed since the effective date of Title II that included affirmative answers to one or more of the questions at issue, and the Department found no evidence that the information obtained in response to these questions was improperly used to delay or deny admission to any applicant. As an agency of the Arizona Supreme Court, the Committee on Character and Fitness of the Arizona Supreme Court is a public entity and its activities in reviewing applicants for admission to the Arizona State Bar are services, programs, or activities provided or made available by a public entity. As such, it is required to comply with Title II of the ADA and the Department of Justice's Title II regulation. 42 U.S.C. 12131; 28 C.F.R. Part 35. All applications or admissions after January 26, 1992, are covered by Title II. Section 202 of the ADA (42 U.S.C. S 12132) provides that -Subject to the provisions of this title, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. Section 201 defines a "qualified individual with a disability" as -an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity. 42 U.S.C. 12131 (2). With respect to licensing, a "qualified" individual with a disability is one who meets the "essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." 28 C.F.R. 35.104. 01-00218 -4Section 35.130(a) of the Department of Justice's regulation

implementing Title II (28 C.F.R. pt. 35) restates the general requirement of Section 202 of the statute. The specific requirements of the regulation apply this general principle to particular situations. Section 35.130(b)(6) provides that a public entity may not administer a licensing or certification program in a manner that subjects qualified individuals with disabilities to discrimination on the basis of disability. Thus, the nondiscrimination obligations are specifically applied to the Committee's function of licensing attorneys. A core purpose of the ADA is the elimination of barriers caused by the use of stereotypic assumptions "that are not truly indicative of the individual ability of [persons with disabilities] to participate in, and contribute to, society." 42 U.S.C. 12101(a)(7). The ADA does not permit unnecessary inquiries into the existence of disabilities, and prohibits policies that impose greater requirements or burdens on individuals with disabilities than those imposed on others. The Committee's use of the questions at issue unnecessarily targets for further investigation those individuals who have histories or diagnoses of disabilities and imposes additional burdens of investigation upon them. Title II of the ADA does not permit inquiries into disabilities where they are not necessary to achieve the objective of determining whether individuals are fit to practice law. Unnecessary inquiries are barred by 28 C.F.R. ​ 35.130(b)(8), which states that a public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered. The inquiries at issue are not necessary to the Committee in making its determinations of whether individuals are qualified to practice law, because they "substitute an impermissible inquiry into the status of disabled applicants for the proper, indeed necessary, inquiry into the applicants' behavior." Medical Society of New Jersey v. Jacobs, Civ. A. No. 93-3670 (WGB), 1993 WL 413016, at *7 (D. N.J. Oct. 5, 1993). The Committee's inquiries discriminate against qualified individuals with disabilities because the Committee utilizes these inquiries to identify individuals for further investigation on the basis of disability. In order to receive a license to practice law in Arizona, the Committee requires applicants to answer all questions an the application, including those regarding emotional, mental, and nervous disorders, and questions regarding alcohol and drug use. Based on the answers, further investigation may be undertaken. 01-00219 -5-

This investigative process violates the ADA because it places greater burdens on applicants with disabilities than those placed on other applicants. See Medical Society of New Jersey v. Jacobs, Civ. A. No. 93-3670 (WGB), 1993 WL 413016, *14 (D. N.J. Oct. 5, 1993) ("Taken together, these [Title 11] regulations prohibit the imposition of extra burdens an qualified individuals with disabilities when those burdens are unnecessary. Yet this is exactly what the Board is doing.") Furthermore, such questions violate the ADA even if the Bar neither denies an applicant's admission to the Bar nor possessed actual knowledge of the applicant's disabilities. Ellen S. v. The Florida Board of Bar Examiners. et al., 94-0429-CIV-KING (S.D. Fla., August 1, 1994).2 After extensive negotiations between the Department and the Committee, the Committee has agreed to eliminate the questions at issue from applications to be used in the future, and has proposed to use the following questions, which focus on behavior rather than status, in their place: 1. In the past year, have you illegally used drugs? If yes, provide details. (Illegal use of drugs means the unlawful use of one or more drugs and/or the unlawful possession or distribution of drugs. It does not include the use of drugs taken under supervision of a licensed health care professional, or other uses authorized by federal law provisions.) 2. In the past year, have you ever been reprimanded, demoted, disciplined, terminated or cautioned by an employer as a result of your alleged consumption of alcohol, prescription drugs, or illegal use of drugs? If so, please state the circumstances under which such action was taken, the date(s) such action was taken, the name(s) of persons who took such action and the background and resolution of such action. 3. Since the age of 18, or within the last five years (whichever period is shorter), have you ever been reprimanded, demoted, disciplined, cautioned or terminated by an employer for alleged tardiness, absenteeism or unsatisfactory job performance in your employment? If so, please state the circumstances under which such action was taken, the date(s) such ____________________________________________________________________________ 2 See also In re Applications of Anne Underwood and Judith Ann Plano, 1994 WL 649283 (Me.) (Board's inquiries into Bar applicants' mental health histories discriminate on the basis of disability and impose eligibility criteria that unnecessarily screen out individuals with disabilities.) 01-00220 -6-

action was taken, the name(s) of persons who took such action and the background and resolution of such action. 4. Have you ever been accused of mishandling, mismanaging, or misappropriating the money or property of others? If so, please state the date of such accusations, the person(s) making such accusations, the specific accusations made, and the background and resolution of such accusations. 5. Have you ever refused to submit to a test to determine whether you had consumed and/or were under the influence of alcohol or drugs? If so, please state the date you were requested to submit to such a test, type of test requested, the name of the entity requesting that you submit to the test, the outcome of your refusal, and the reason why you refused to submit to such a test. 6. In the past year, have you suffered memory loss or impaired judgment for any reason? If so, please explain in full. 7. In the past year, have you failed to meet any personal or business related deadlines for any reason? If so, please explain in full. The Department finds that the new questions proposed by the Committee do not on their face violate Title II of the ADA. As stated above at page 3, we found no evidence that the Committee improperly used the information obtained in response to the questions at issue to delay or deny admission to an applicant. The Committee is reminded, however, that it cannot avoid responsibility if it adopts another jurisdiction's decision to deny admission to an applicant, if that jurisdiction based its decision on information obtained in response to questions which are identical or similar to those at issue. In view of the steps taken by the Committee to ensure that its new State Bar application questions do not discriminate against qualified individuals with disabilities, we have determined that the violations of Title II have been corrected and, therefore, the committee is now in compliance with the ADA. Therefore, we are closing our files on this case. This letter contains our determination with respect to the allegations of discrimination in your administrative complaint. If you are dissatisfied with our determination, you may file a complaint presenting your allegations of discrimination in an 01-00221

-7appropriate United States District Court under Title II of the ADA. You should be aware that no one may intimidate, threaten, coerce, or engage in other discriminatory conduct against anyone because he or she has either taken action or participated in an action to secure rights protected by the ADA. Any individual alleging such harassment or intimidation may file a complaint with the Department of Justice. We would investigate such a complaint if the situation warrants. Under the Freedom of Information Act, it may be necessary to release this document and related correspondence and records upon request. In the event that we receive such a request, we will seek to protect, to the extent provided by law, personal information which, if released, could constitute an unwarranted invasion of privacy. If you have any questions concerning this letter, please feel free to call Steven Harris, the investigator assigned to this case, at (202) 307-2248 (voice) or (202) 307-2678 (TDD), or Sara Kaltenborn, the attorney assigned to this case, at (202) 307-2235 (voice) (these are not toll-free numbers). Sincerely,

Merrily A. Friedlander Acting Chief Coordination and Review Section Civil Rights Division 01-00222