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15 Dev. Mental Health L. 1 (1995)

handle is hein.journals/dvmnhlt15 and id is 1 raw text is: Developments in
Mental Health Law
Institute of Law, Psychiatry and Public Policy, The University of Virginia
Volume 15, Number 1                                                   January-June 1995
Professional Licensure, Mental Health Inquiries
and the Americans with Disabilities Act
by Diane Long, JD.
The Supreme Court of the United States has made it clear that states may regulate professions
through licensing systems.' The Court, confirming this power for bar examiners in Schware v.
Board of Bar Examiners, concluded that a state may require high standards of qualification,
such as good moral character or proficiency in its law.2 Frequently, the licensing process
includes at least one question about an applicant's past and current mental health.' Mental health
advocates have argued that inquiries into mental health history violate an applicant's right to
privacy and due process of law.' However, whether they apply strict or intermediate scrutiny,
courts have rejected these challenges and held that the interest in admitting only those who are fit
to practice outweighs an applicant's constitutional rights.5
The enactment of the Americans with Disabilities Act (ADA) in 1990 gave mental health
advocates new grounds to argue for the elimination of these inquiries from any professional
licensing applications that ascertain an applicant's character as prerequisite for admission into a
profession. Since then, bar examiners nationwide have been reevaluating the wording and scope
of such questions. This essay will first describe different varieties of mental health questions,
their success in the courts, and their viability under the ADA. The analysis in this part is based
on the type and scope of the question. The discussion will then examine how bar examiners can
comply with the ADA while fulfilling their duty to admit only
those applicants who are competent to practice law.
Also in this issue:
Mental Health Inquiries and Current Case Law
In the Federal Courts..4
Section 12132 of the ADA states that no qualified individ-
In the Virginia Courts...  9
ual with a disability shall, by reason of such disability, be ex-
cluded from participation in or be denied the benefits of the  Cases from Other States... 1
services, programs, or activities of a public entity, or be sub-
jected to discrimination by any such entity.6 Title II defines a  Books...............20
Diane Long is a 1995 graduate of the University of Virginia School of Law.

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