DRW launches “Questions of Discrimination”
“Questions of Discrimination”, a new documentary by Disability Rights Washington (DRW) reveals the mental health bias and stigma inherent in the process used to decide who is fit to become a lawyer. In Washington State as in many other states, there are several bar application questions and rules that call into question an individual’s “character and fitness” to practice law if they have a mental health disability.
"WSBA asks a question that's trying to identify whether or not a lawyer is going to be a problem from a character standpoint. They take kind of a wholesale question like, ‘have you ever been treated for mental health’, that has a built-in assumption that anybody who has ever seen a therapist has a character flaw that might be a problem with them being an attorney. And that’s not borne out by science," says Andy Imparato, Executive Director of the National Association of University Centers on Disabilities.
Emily Cooper, the director of “Questions of Discrimination,” is both an attorney at DRW and a person with a mental health disability. “As an attorney who believes my character and fitness has been enhanced by having the insight to seek mental health treatment, I found these questions to be wholly out of line with WSBA’s commitment to diversity. If my bar association is a true steward of social justice, understanding the value of a diverse bar and the laws that protected individuals with disabilities is a necessity.”
Individuals seek treatment for reasons that have nothing to do with their character or fitness to practice law. For example, some individuals may need assistance handling the stress of law school, or some could have experienced violence or other traumatic events. Singling out these individuals and treating them differently simply based on their status as someone who has sought treatment is not how we should define character and fitness to practice law.
Instead, the application process should focus on an applicant's conduct and capabilities to practice law. If the applicant has graduated law school, passed the WSBA exam, and past conduct provides no basis for concern, there is no legitimate reason to inquire into the applicant's mental health disability or treatment.
Recently, the Department of Justice, the federal agency in charge of enforcing the Americans with Disabilities Act, reviewed similar questions in two other states and found them discriminatory. In particular, the Department of Justice stated that singling out applicants based on their status of having a mental health disability, rather than the applicant’s conduct, assumes the worst case scenario and appears rooted in unfounded stereotypes. The Department of Justice also stated, “Questions that dissuade applicants from seeking needed mental health treatment fail to serve the Court’s interest in ensuring that licensed attorneys are fit to practice.”
DRW began looking into this issue after it raised was by a professor at a local law school who was struggling to advise students how to answer these discriminatory questions.
DRW also spoke with several law students, who asked to remain anonymous due to their concerns about being singled out when they take the bar exam. The law students shared their struggles in answering these questions because they felt like they were being forced to choose between their rights and their ability to practice law. One such student had the courage to be the narrator in “Questions of Discrimination.”
“We were stunned to learn that individuals who went through the rigors of graduating law school and passing the bar exam were being subjected to such apparent and unchecked discrimination simply based on the bias associated with having a mental health diagnosis,” says Mark Stroh, DRW’s Executive Director.
DRW is launching this public awareness campaign so that collective action can be taken to address these questions of discrimination.
"Let Lawyers and judges and all paralegals, others within the legal profession, work to abolish these questions, which are stigmatizing. Then, let's create law school classes and include in our law school classes students with all kinds of disabilities so that they can feel safe to be here in law school and then ultimately to practice law," according to Arlene Kanter, Director, Syracuse College of Law Disability Law and Policy Program.
You can read more about the issue, view the video, and learn about ways people can take action.