“With Dignity And Respect”
Today the Tennessee Supreme Court addressed public findings from the United States Department of Justice (DOJ) claiming that the Tennessee Board of Law Examiners (TBLE) and the Tennessee Lawyers Assistance Program (TLAP), which operate under the authority of the Tennessee Supreme Court, violated the ADA by discriminating against two bar applicants “due to a substance use disorder or mental health disorder.”
The Court strongly disagrees with DOJ’s assertion that either TBLE or TLAP discriminated against the applicants based on health status or disability. Both TBLE and TLAP follow well-established administrative processes that are designed to avoid discrimination against any applicant. The Court, TBLE, and TLAP have been and remain committed to treating persons with disabilities, including bar applicants with disabilities, with dignity and respect, and in compliance with all legal rights afforded to such applicants.
From the Department of Justice letter of findings
TBLE and TLAP discriminated against D.S. in Tennessee’s attorney licensing program on the basis of his disability when they subjected him to additional, burdensome examinations based on his use of lawfully prescribed medication for his [Opioid Use Disorder] and forced him to choose between his law license or continued treatment as prescribed as necessary by his treating physician. These conditions were imposed on D.S., even though there was no evidence that his OUD or his use of buprenorphine to treat his OUD in any way impaired his ability to practice law. Indeed, D.S.’s treating physician relayed that he had been successfully treating D.S. for years with buprenorphine, that D.S. had been compliant with his treatment program, that D.S. had never demonstrated any behavior that would indicate a functionally problematic psychiatric or personality disorder, and that D.S. was not physically or psychologically impaired by taking buprenorphine as part of his medication-assisted treatment for OUD. TBLE and TLAP persisted in imposing these conditions even though the entities conducting the required evaluations concluded that D.S. was not using drugs other than his prescribed medication, that there were no signs of cognitive impairment or decreased concentration, and that he had been successful on his prescribed therapy with no legal, educational, or occupational deficiencies or consequences. Because the withholding of a law license was based on D.S.’s disability and his treatment for his disability, TBLE and TLAP discriminated against him in violation of the ADA. Ellen S. v. Florida Bd. of Bar Examiners, 859 F. Supp. 1489, 1494 (S.D. Fla. 1994) (a licensing entity discriminates against qualified disabled applicants by placing additional unnecessary burdens on them and this discrimination can occur even if these applicants are subsequently granted licenses).
C.B. was similarly subjected to restrictions and conditions on his ability to obtain a law license, due to his disability, even though there was no evidence that he was unable to meet the bar admission standards. Even though the TBLE interviewer recommended C.B. for bar admission and indicated that she did not have any concerns regarding C.B.’s honesty and good judgment, ability to conduct himself in accordance with the law and rules of professional conduct, or ability to conduct himself with a high degree of professionalism, honesty and integrity, C.B. was subjected to costly and unnecessary examinations and his law license was subjected to a burdensome 5-year monitoring contract. As a result, C.B. lost his job, and his therapist. TBLE and TLAP persisted in these restrictions even after their own approved evaluator concluded C.B. was fit to practice law to a reasonable degree of medical certainty. Because the restrictions on C.B.’s law license were based on his actual or perceived substance use disorder and not on any current inability to meet the bar’s admissions standards, TBLE and TLAP discriminated against C.B. in violation of the ADA.
(Mike Frisch)