Constitutional Limitations on State-Imposed Continuing Competency Requirements for Licensed Professionals

The movement toward increased regulation of the professions continues. As states impose new requirements, legal challenges will follow. This Article advocates that states use caution and restraint in evaluating the need for additional regulation. Further, the Article recommends that the courts assume a more active role in reviewing constitutional challenges to occupational regulation.
Title VII jurisprudence has revised our concept of reasonableness by requiring job-related rationales for barriers to employment that have an adverse impact on minorities. These standards provide a workable and apt means of reducing the opportunity for discrimination or errors in state competency measures. As prerequisites to professional employment, licensing measures should not be exempt from this enlightened, equitable approach.
Professional incompetence is a serious social problem. The solution, however, is not to impose unreasonable or anticompetitive requirements that produce no demonstrable benefits. Courts should scrutinize closely the substance of new continuing competency measures, and ensure that the measures incorporate adequate procedural safeguards.

Toni M. Massaro and Thomas L. O’Brien

William and Mary Law Review

1983

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