When I was young, people like my kid were institutionalized. Access to community, either in their residence or their daily activities, was limited. Which is a nice way of saying, a lot of people never saw the outside of an institution.
I don’t want to go back. I don’t want to think that after I am gone, the state will warehouse my kid. My kid is a human with rights and dignity.
It looks like the Trump administration would like to take us a step closer to the bad old days. The Trump Department of Justice (DOJ) has issued a memo that states we’ve been interpreting the ADA wrong this whole time. It would weaken the legal protections that have helped people with disabilities live in their communities rather than in institutions.
While this memo isn’t binding, it does tell us (a) that the Trump administration may move forward on more binding actions and (b) they aren’t going to defend the rights of people with disabilities strongly.
Let’s look at this a bit deeper. Starting with a bit of history.
One example of the old approach is a story from 1972 in the New York Times: Forurn School at Waldwick Offers ‘Attic Children’ Hope. While the story focuses on school-aged children, the term “attic children” makes the point clear.
The “attic children”—called so because they often have been kept hidden, damaged to life without hope—are finding new hope.
They are children with severe emotional disturbances, childhood schizophrenia, or autism.
Two reasons why we no longer have big institutions and “attic” people is the Americans with Disabilities Act (the ADA) and a Supreme Court decision based on it. The term “landmark decision” may be over used sometimes, but not in the case of the Supreme Court’s landmark decision Olmsted v. L.C.. The Olmstead decision established that unjustified institutional isolation can be disability discrimination and strongly favored providing services in community settings when certain conditions are met.
The Olmsted decision requires states to provide services in community settings. The requirement isn’t absolute. Community based services are are the default when:
(1) treatment professionals determine community placement is appropriate,
(2) the individual does not oppose the move,
and (3) the placement can be reasonably accommodated given the state’s available resources and responsibilities to others.
The Trump administration would like to change that. The Trump Department of Justice has published a memo: Application of the Rehabilitation Act and Americans with Disabilities Act to State Institutionalization of Patients with Severe Mental Illness or Disabilities. In it, they argue:
Neither §504 of the Rehabilitation Act nor Title II of the ADA imposes a federal “integration mandate” requiring states to provide treatment in the most integrated setting possible, and federal agencies (DOJ/HHS) lack authority to impose such a mandate through regulation.
Basically, the memo says the Supreme Court only held that “unjustified institutional isolation” can be discrimination, not that states are required to place people in the most integrated setting possible.
Looking only to those aspects of the opinion that represent the law, we conclude that Olmstead did not hold that Title II requires maximal integration for patients with mental disabilities receiving state treatment. Rather, it held only that a state cannot institutionalize such patients without justification. See 527 U.S. at 600 (majority opinion). What counts as adequate justification remains an open question.
Let’s repeat that last line for emphasis, shall we? What counts as adequate justification remains an open question. Access to community can be taken away “with justification”, but that justification is “an open question”.
When I am on my deathbed, I don’t want to be thinking my kid’s freedom can be taken away based on criteria that are “an open question”. More to the point, I don’t want to think the Department of Justice will sit on their hands if my state makes that move. I want my kid’s rights defended.
I hesitated to write this next section.
Years ago, I grew tired of hearing warnings about what could happen if anti-vaccine activists and grievance-parent groups gained political influence. We were told not to exaggerate the danger.
But we’re no longer talking about hypothetical futures.
Those movements have gained influence, and one of the long-standing concerns was that their dehumanizing rhetoric about people with disabilities would eventually lead to a rollback of disability rights.
That possibility no longer feels theoretical. We are here now. And yes, I believe those groups bear some responsibility.
But this post is not about assigning blame. It’s about being prepared to act.
Some states may decide to adopt the approach outlined in this memo. When that happens, people will need to push back. Most, maybe all, readers of this blog will never be the named plaintiff in a court case. But we can still support the people who are.
When those cases arise, make your voice heard.
If organizations are fighting to defend community integration, support them. If your state proposes changes that would weaken disability rights, speak up. If you can donate, donate.
Most importantly, do not accept this reinterpretation as inevitable.
We have spent decades moving away from the idea that people with disabilities should be hidden from society.
We cannot go back. We will not go back.
By Matt Carey
Left Brain Right Brain 
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