I believe that our first approach should be a petition, en masse, to the United States Department of Justice, as described on the main page of this site. The approach noted below should be tried only if a mass petition to USDOJ proves ineffective or impossible to execute.
How the Federal Suit Option might be Accomplished in Kansas through a True Class Action
The Proposal
On this page, I will suggest a true class action suit as the best litigation option for those who have been previously denied licensure in Kansas due, in whole or in part, to a condition that is now clearly a disability under the Americans with Disabilities Act, as amended in 2008. The defining properties of this class action suit should be:
- The case should focus on the written requirement of Kansas Supreme Court Rule 704(k) that applicants returning after a previous rejection must prove themselves to have been "rehabilitated" since their applications were rejected. In practice, as demonstrated by the documents in my case (and I'm sure in some other class members' cases), this means that an applicant rejected because of a mental or emotional disability must prove that the identified disability has completely vanished since the previous rejection.
- I should not be a named class representative. The fact that I have now been rejected more than once, my misdemeanor criminal convictions 24 plus years ago, and my clear (by now) persona non grata status would make me a weak and not very represenative class representative. I'm also completely out of funds to pay attorney's fees, and I doubt the ultimate outcome will benefit me personally at all, even if we win a judgment that Rule 704(k), as consistently applied, violates the ADA. However, I'm willing to cooperate in any way I can with a suit someone else initiates.
- The class definition should be broad enough to include me, in order to render the documents of my Bar admission case unquestionably relevant and admissible in the class action. A possible class definition would be "all applicants for licensure as attorneys in Kansas who have been rejected due to failure to prove the requisite character and fitness since [some date before September 2007] on grounds that included any medical condition, or any mental, emotional or developmental disorder or disability."
The Advantages of the Class Action Format
There are some advantages to the proposed class action format:
- Because a class is not the same party as an individual member of the class, a class that includes previously denied applicants should not be barred from suing under the Rooker-Feldman doctrine. See, Lance v. Dennis, 126 S.Ct. 1198 (2006).
- It would offer remedies that will reach all affected persons, not just one or a few named plaintiffs.
- It would avoid the need to find everyone affected before beginning the action—a task which would likely be impossible, owing to the confidentiality of Bar admission proceedings.
- It would render the official documents generated during multiple applicants' licensure proceedings available to the federal court and admissible to show the Kansas Supreme Court's customary interpretation of its rules. This would include documents obtained from, or concerning, any cooperating class member, not just the named representatives.
- It would reduce the federal court's felt need to publish the facts of the individual plaintiffs' application cases in announcing its decision. I'm well aware of the importance of this consideration because, in my previous case as an individual federal plaintiff, the United States District Court felt the gratuitous need to publish the negative details of my past and my diagnosis before it decided it lacked subject matter jurisdiction under the Rooker-Feldman doctrine. See, Johnson v. Kansas Supreme Court, 888 F.Supp. 1073 (D.Kan. 1995). Since then, the Rooker-Feldman doctrine has been limited in such a way as to clearly permit a suit challenging a written court rule that is alleged to be illegally disciminatory as customarily applied. However, there remains the possibility that future individual plaintiffs' lives will be published for all to read. The tempttion to do this will be much reduced in a class action, wherein individual plaintiffs' facts are relevant only to the degree they collectively tend to show the existence of a larger discriminatory policy.
- It would reduce the number of licensed attorneys we would need to involve in the effort from potentially many (one for each affected individual) to only one.
- It would make the costs of suit more bearable for all active participants. Although both money damages and attorney's fees are available in suits against states under Title II of the ADA, see Tennessee v. Lane, 541 U.S. 509 (2004). Nevertheless, there will be court costs and attorney fees to be borne getting there, and likely no rejected applicant has a lot of money to invest in this effect—or, at least, not a lot of money his or her student loan lender doesn't claim as its own. A true class action, with several named plaintiffs and several other plaintiffs participating in supporting only a single suit and a single attorney, would undoubtedly make these costs more attainable.
Return to the main page of this site The Hidden Issue of Disability Discrimination in Attorney Licensure.