The Olmstead Decision: Failure to Launch

By Tom Dooling

Summer 2008

A little over nine years ago, the United States Supreme Court announced its decision in the case of Olmstead v. L.S. Tommy Olmstead, the petitioner, was the Georgia Commissioner of Human Resources, head of the department that ran several so-called “schools” for people with developmental disabilities.

“L.C.” and “E.W.” were two women who had lived for far too long in the Georgia Regional Hospital for Atlanta. Together, they sued the State of Georgia under the Americans with Disabilities Act, better known as the ADA. Among other things, the ADA forbids states who supply public services – such as hospitals – to discriminate against people with disabilities.

When the case was started, the ADA itself was a relatively new law. The ADA was passed by Congress in 1990 to remove barriers which made it hard for people with disabilities to live and move around in mainstream communities. The ADA requires ramps for wheelchairs and van accessible parking places in public parking lots.

The ADA requires employers to make “reasonable accommodations” for employees with disabilities, such as allowing companion animals in offices and putting Braille numbers on elevator buttons. The ADA also made it illegal for employers and businesses that serve the public to discriminate against people with disabilities.

Many people who care deeply about the rights of Americans with mental disabilities hoped that the ADA would help to make it possible for people living in institutions to move into the community. The idea is that it is wrong to force people with developmental disabilities or mental illness to live, for years or for a lifetime, segregated into an institution.

This is especially true if they can live in the community, near their families and friends, with support provided by the state. In fact, many experts who have studied the cost of keeping people in hospitals and state schools tell us that it is cheaper to support people in their own communities than to keep them in an institution.

The question the Supreme Court had to answer was just that: whether keeping people in institutions who could be served in the community was discrimination. The answer, the Court said, is yes, it is discrimination, but, unfortunately, a “qualified yes”— more “maybe.”

The Court doesn’t like to make broad decisions that produce huge changes, but what they call “narrow” decisions which make small improvements that aren’t going to have a lot of unexpected other results. So, the Court said, the state didn’t have to move everybody out into the community right away. If moving people from institutions to community-based treatment would create a “fundamental alteration” in the state’s developmental disabilities program, the state could raise that as a defense against accommodation.

As long as the state had a plan for moving people into the community, and a waiting list that moved at a “reasonable pace”, there was no violation of the ADA.

In 1999, the disability community and those of us who care deeply about the rights of people with disabilities, thought that the Olmstead decision would create great changes for the better. “Olmstead Committees” were set up in most states to plan for the new community services and the problems with shrinking state-run institutions.

Many of us thought that Olmstead would be for the disability community what Brown v. Board of Education had been for the broader civil rights movement. However, nine years after the Brown decision was announced, National Guard troops had been called out to protect black children in southern schools,

Martin Luther King had given his “I have a dream” speech, and segregation and the “Jim Crow” laws of the south were on their way out of America’s life. Nine years after Olmstead, the waiting list for community services isn’t shrinking. The number of home and community waiver funding plans is not substantially greater than it was years ago. The State of Montana is eligible for nearly twice as many waivers as it has applied for, and the federal dollars which would pour into the state if those waivers were funded would create hundreds of new service sector jobs for caregivers, and allow virtually everybody at MDC to move into community-based services.

Disability Rights Montana – formerly Montana Advocacy Program – has community integration of all people with disabilities as a core value. We have worked since the Olmstead case was decided to make its dream a reality, and will continue to do so. However, if the Olmstead dream is to become real, it will take a change in the political will of Montana and its government, which will happen only if every person with a disability, and every family member, and every person who cares passionately for social justice to tell the Legislature and the administration that this is what the people of Montana want, need and expect to have.

Tom Dooling is a former staff attorney for Disability Rights Montana.

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