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Heim / Albúm / The Olmstead v. LC & EW Supreme Court Decision, June 22 1999 29
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[Headline] Pivotal Rulings Ahead for Law On Disabilities [Subheading] Supreme Court to Begin to Chart Protections By LINDA GREENHOUSE WASHINGTON, April 18 — Beginning on Wednesday with a case that some lawyers have labeled the Brown v. Board of Education of the disability rights movement, the Supreme Court is embarking on an unusually extensive review of a single Federal statute, the Americans With Disabilities Act. The Justices' decision to hear four disability act cases over a two-week period reflects the fact that the full dimensions of this far-reaching civil rights law remain uncharted even after nearly 10 years on the books. The law has become broadly familiar for removing physical barriers in public places and for opening the workplace to people with disabilities. Indeed, three of the cases do involve employment disputes, presenting the surprisingly unsettled is-sue of whether a physical problem that is kept in check through medication or compensated for by some-thing as simple as corrective lenses qualifies under the law, as a disability. The case scheduled for Wednesday, the first of the four, is different. There is no easy remedy at hand for the problems facing the plaintiffs, two Georgia women whose disabilities include mental retardation, mental illness and brain damage. In su-ing the state the two women, Lois Curtis and Elaine Wilson, sought not employment but a life outside the Georgia Regional Hospital in Atlanta, a large state institution. Both women spent many months in the hospital waiting for placement in a homelike environment that their doctors said would be medically and socially appropriate but for which there were long waiting lists. The question in the case, Olmstead v. Ldi.C., No. 98-536, is whether the Americans With Disabilities Act re-quires a state to offer such a setting, for example, a small, supervised group home, for people for whom such a setting is appropriate. The Federal appeals court in Atlanta ruled last.year that it does. In the four months since the Justices agreed to hear Georgia's appeal, the case has galvanized disability rights' advocates. It pits Georgia and a group of other states against the Clinton Administration, which is defending a regulation issued in the earliest days of the law, in the Administration of President George Bush, that endorses the principle of "integration" of people with disabilities into the wider population, to the greatest extent possible, in the provision of public services. At issue is Title II of the law, which applies to public services offered by state and local governments. It pro-vides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in" or "be subjected to discrimination" by a Government program or service. A 1991 regulation, issued by the Attorney General under a Congressional directive "to issue regulations setting forth the forms of discrimination prohibited," provides that services or programs shall be offered "in the most integrated setting appropriate to the needs" of people with dis-abilities. The regulation came to be known as the "integration mandate." In its decision in the Georgia case last year, the United States Court of Appeals for the 11th Circuit declared, "By definition where, as here, the state confines an individual with a disability in an institutionalized set-ting when a community placement is appropriate, the state has violated the core principle underlying the Americans With Disabilities Act's integration mandate." State budgetary restrictions were not a defense, the appeals court said, unless the cost of compliance was "so unreasonable given the demands of the state's mental health budget that it would fundamentally alter the service it provides." In ruling against the state, the 11th Circuit agreed with the one other Federal appeals court to have ad-dressed the question, in a case from Philadelphia that the Supreme Court declined to review four years ago. It is unusual for the Court to agree to hear a case on the meaning of a Federal law in the absence of conflicting opinions among the lower Federal courts. So disability rights' advocates were alarmed when the Court accepted Georgia's appeal, interpreting the action as a signal that the Justices were moved by the strong states' rights tone of Georgia's petition for review and were leaning toward overturning the appeals court's decision. Groups such as Adapt, a nation-wide organization of people with dis-abilities, lobbied and demonstrated in many of the 22 states that had formed a coalition in support of Georgia's appeal by signing a brief as friends of the Court. Four states later joined the coalition. But as a result of Adapt's lobbying efforts, more than half the states had dropped out of the coalition by the time Georgia filed its final brief, a highly unusual turn of events. Typical was a public statement by Michigan's Solicitor General, Thomas L. Casey, who said that after taking a "fresh look" at the case, his state had concluded that "Georgia's arguments are not consistent with the state of Michigan's position as a leader in community-based mental health care." Even after signing the final ver-sion of the multistate brief in support of Georgia's position, some states continued to have second thoughts, and several disavowed their position. Massachusetts Officials, for example [text breaks for a quote] [pulled quote] The Justices' decisions will help chart a wide-reaching act [text continues] said the state's signature on the brief "has been wrongly interpreted as a retreat by the Commonwealth from its long-standing support of dis-ability rights in general and deinstitutionalization in particular." The states now in Georgia's camp are Indiana, Tennessee, Mississippi, Hawaii, South Carolina, Montana, Nevada, Wyoming, Washington, Tex-as and Colorado. Along with Massachusetts, Minnesota and Louisiana withdrew their support after signing the final brief. In addition to Michigan, the states that initially supported Georgia but declined to sign the final brief were Alabama, California, Delaware, Florida, Maryland, Nebraska, New Hampshire, Pennsylvania, South Dakota, Utah and West Virginia. At the same time, 58 former state commissions and directors of mental health from 36 states, including New York, New Jersey, and Connecticut, filed a brief in their own names, supporting homelike care as more appropriate and effective and asking the Court not to accept Georgia's "alarmist claims" about the impact of the 11th Circuit's ruling. Georgia's basic argument, made in its brief to the court, is that the appeals court misapplied the integration regulation, which itself exceeds the scope of the statute. In enacting the Americans With Disabilities Act, the brief asserts, Congress did not make "a national value judgment that the 'least restrictive treatment' must be provided to psychiatric patients, to say nothing of imposing on the states the massive and indeterminate fiscal burdens that would follow such a decision." Simply "requiring a person to wait her turn for a community placement" is evidence of fiscal constraint but not of discrimination, the state says. Emphatic as the state is in making its argument, the other side speaks fervently of the case as the ultimate test of the statute's meaning and identity as a civil rights jaw, "the Brown v. Board of Education for disability rights," in the words of Stephen F. Gold, a lawyer represent-ing Adapt and other disability groups. In an interview, Mr. Gold, of the Public Interest Law Center of Philadelphia, said people with disabilities had long faced segregation reminiscent of the segregation , based on race. "If the Americans with Disabilities Act did not mean to end unnecessary segregation, then all the work we did in promulgating it as a civil rights statute is a sham," he said. "We're just trying to get people out of institutions who don't have to be there." The two plaintiffs, having won their lawsuit have been living successfully in the community, Ms. Curtis in a three-person group home and Ms. Wilson in an apartment of her own with supportive services. Both are planning to attend the Supreme Court argument. Before the month ends, the Court will hear the three other disability act cases, which all raise the question of how to define the disabilities that bring a person within the law's protection. The plaintiff in Murphy v. United Parcel Service, No. 9674992, to be argued on April 27, is a truck driver whose high blood pressure is controlled with medication. He sued under the disability law after his employer dismissed him, and is now appealing a ruling by the United States Court of Appeals for the 10th Circuit, in Denver. The court, view-ing his condition in its medicated state, concluded that he was not a person with a disability and was not entitled to sue. On April 28, the Court will hear Sutton v. United Air Lines, No. 97-1943, a similar case in which twin sisters, both nearsighted but with vision correctable to 20/20, were denied jobs as pilots because they did not meet the airline's requirement for uncorrected vision. The same appeals court in Denver held that they had no basis for a lawsuit because their correctable vision was not a disability. In both cases, the question is whether a disability should have to be assessed in its "mitigated" or uncorrected state. The final case, Albertsons v. Kirkengburg, No. 98-591, also scheduled for April 28, presents the somewhat different situation of a truck driver who sees out of only one eye but whose brain has compensated for the deficiency. The United States Court of Appeals for the Ninth Circuit, in San Francisco, concluding that he sees adequately but in a "different manner" from most other people found him to be disabled and therefore entitled to sue the employer that dismissed him. The employer is appealing.
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State of Indiana Office of the Attorney General [illegible address] Jeffrey A. Modisett Attorney General [illegible phone number] March 29, 1999 William K. Suter Clerk of Court Supreme Court of the United States [illegible address] Washington, D. C. 20543 RE: Tommy Olmstead et el v. L. C. and E. W. each by Jonathan Zimring Case No. 98-136 Dear Mr. Suter: This letter is to inform you that the State of Indiana is withdrawing its participation in the amicus case brief filed by the State of Nevada in the above-entitled matter. Sincerely, [signed] J Modisett [typed] Jeff Modisett Attorney general cc: Thubert A. Baker, Georgie Attorney General John C. Jones, Georgia Sr Assistant Attorney General Frankie Sue Del Papa, Nevada Attorney General Anne B. [illegible] Assistant Attorney General
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Bill Lockyer Attorney General State of California Department of Justice 1300 I Street Suite 125 P.O. Box 944253 Sacramento, CA 94244-2550 Public: (916) 324 3502 Facsimile: (916) 322 0206 (916) 323 7355 February 3, 1999 Stephanie A. Daniel Assistant Attorney General Office of the Attorney General State of Florida Civil Division/State Programs Section By TELEFAX ONLY-(850) 488 4872 Re: Olmstead v. L. C. U. S. Supreme Court No. 98-536 Dear Ms. Daniel [crossed out in pen, handwritten to say Stephanie--] This is to inform you that California will not be joining in the multi-state amicus brief Florida has prepared in the above-entitled case. Please do not hesitate to call me in you have any questions. Sincerely, [signed] Thomas F. Gede [typed] Thomas F. Gede Special Assistant Attorney General For Bill Lockyer Attorney General
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[title] ADAPT Attendant Services Victories (as of August, 1999) HCFA simplified the Medicaid waiver process to take about 60 days. The total number of Medicaid waiver slots has drastically increased. The Medicaid Personal Care Option now covers cognitive tasks, in addition to physical tasks. Under the Health Care Finance Administration, HCFA, rules for the Personal Care Option, people can self-direct their assistance; however states' rules may vary. This spring the Clinton Administration's budget included funding to allow the Personal Care Option to cover folks whose incomes are up to three times the SSI level (approximately $1,500). The "cold bed rule" which said states could only write Medicaid slots equal to or less than the number of empty beds in nursing homes. For two years finning, Health and Human Services has funded grants to states for transitioning people out of institutions. The elimination of the Boren Amendment. The University of California at San Francisco study of the institutional bias in Medicaid regulations, including hearings in five states and the recently released final report. Introduction of MiCASA and the hearing on FIR 2020. HCFA is now providing Medicaid Home and Community Based Services, HCBS, Primer and technical assistance and best practices assistance for the states. The Rehabilitation Services Administration requires Centers for Independent Living to report on efforts to assist people getting out of institutions. (Call your RSA regional office for results.) HHS Secretary Donna Shalala has agreed to meet with ADAPT twice a year. HHS has funded a Durable Medical Equipment pilot project with four Centers for Independent Living. ADAPT and HCFA have held round one of regional meetings.
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[title] "Don't Tread on the ADA" Rally May 12, 1999 I am proud to be with you today. Because I know I am with some of the greatest architects for civil rights and social justice in America today. I want to specifically acknowledge great leaders such as Dick Thornburgh, Justin Dart, Pat Wright, Mike Auberger, Paul Marchand and Stephanie Thomas, and all the other tremendous advocates gathered here today. With your ideas your energy and your commitment, you have torn down the walls of exclusion. You have broken down the barriers of segregation. And you've built stronger communities and a better America for ALL. When I look out at so many familiar faces, and many great friends, I'm reminded of our past shared struggles, our setbacks and our victories on the road to freedom for people with disabilities. I'm reminded of the power we have as an organized force in tearing down the barriers. And I am reminded of how proud I am to have been to be by your side as we passed the Americans with Disabilities Act. And , and then protected the ADA, IDEA, and our fragile network of community based services and supports from those who would attack them. But we are not here today to talk about yesterday. We're here to talk about tomorrow. We here to talk about the future. And we are here to say loud an clear: We aren't going back. We are going to keep moving forward. And the key to moving forward and building a better America for all is to keep saying yes.
Elaine Wilson (EW)
Close up of Elaine Wilson (EW) one of the plaintiffs in the Supreme Court Olmstead decision.
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DON'T TREAD ON THE ADA Civil Rights not States Rights [graphic of a foot print on the disability American flag. text surrounding it says Real Choice] [Heading] Integration not Segregation [Subheading] What is Olmstead v. LC & EW? On April 21, 1999, the Supreme Court heard oral arguements in a Georgia lawsuit known as Olmstead v. LC& EW. It involves two women with mental disabilities, who wanted to live in the community, not in a state institution. They sued Georgia and won in the 11th U.S. Circuit Court of Appeals, and now live free in the community with appropriate services. Tommy Olmstead, Georgia's Commissioner of Human Services has challenged this, and the lawsuit was argued on April 21 before the Supreme Court. The lawsuit has raised enormous concern in the disability community, because of its potential to strip the Americans with Disabilities Act(ADA) of a basic civil rights provision, known as the "integration mandate". [Subheading] Why is ADAPT at the Supreme Court? ADAPT, a national grassroots disability rights group, is holding a rally and march to the steps of the Supreme Court, to show support for the "integration mandate" of the ADA, and for plaintiffs Lois and Elaine. The ADA is a civil rights law, and it's fundamental purpose is integration. [Subheading] Title II of the ADA applies to public services offered by state and local governments. It says that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in" or "be subjected to discrimination" by a Government program or service. Integration NOT Segregation MAY 12.1999
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[graphic of a judge holding a gavel at his bench, next to an American flag. A banner on the bottom of the image reads Judgement Day] In Olmstead v. L, C, and E.W. the Supreme Court will determine if states have the right to lock their citizens away for the crime of having a disability. More than 2 million of those people are currently locked away. We are those people and we'd rather go to jail.
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ADAPT OF TEXAS 1208 MARSHALL LN AUSTIN TX 78703-4027 SEE ABLE'S PRODUCT & SERVICE GUIDE - STARTING PAGE 9 New York Able THE NEWSPAPER POSITIVELY FOR, BY & ABOUT THE DISABLED JUNE 1999 VOL. 5, NO. 1 [Headline] THOUSANDS RALLY IN DC [Subheading] Activists Gather as Supreme Court Examines ADA By T.K. Small A rally of more than 3,000 people with disabilities, committed to preserving the scope of the American with Disabilities Act, descended upon Washington in the shadow of the U.S. Capital on May 12. The rally was organized by American Disabled for Attendant Programs Today (ADAPT) and a broad coalition of national and local disability rights groups, including New York's Disabled in Action, who had 39 members travel down to Washington. The experience was empowering and eye opening for many members in our group," said Anthony Trocchia, an organizer of the New York City" contingent. The rally featured two noted politicians: Governor Richard Thornburg (R) of Pennsylvania and U.S. Senator Tom Harkins (D) Governor Thornburg began his re-marks by quoting what former President George Bush said as he signed , the American with Dis-abilities Act (ADA) "Let L3 the shameful wall of dis- i crimination come tum-bling down." Other speakers included Justin Dart, Bob Y. Kafka, Mike Auberger and civil rights leader Wade Henderson. "People have rights, not states," said Dart. "America stands for freedom — for all people...Distinguished Justices, listen to the heart of America. Free our people." The rally was prompted by a number of cases before the Supreme Court, most notably Olmstead v. L C. & E. W. The Supreme Court has been particularly active this term, reflecting the fact that the full dimensions of the ADA remain uncharted after nearly 10 years on the books. There have been five cases heard in all four of in which the court is being asked to determine the basic scope of how far the ADA can be used in protecting people from discrimination in employment. In the Olmstead case, the Supreme Court will address the _ states' responsibility for providing treatment in the most integrated setting, as required by Title II of the ADA, for two women from Georgia with mental retardation and mental illness. The case is seen as a potentially defining point in disability law because the State of Georgia is arguing they can simply ignore the integration requirements of the ADA because it is too expensive. "If the court can't recognize these basic human rights, we must continue to fight," said Stephanie Thomas, national Adapt organizer. "Victory will be ours." The case is part of the continuing struggle over the meaning of the sweeping yet vague dis-ability law Arguments given for the State of Georgia describes the Justice Department regulation as an unwelcome and unauthorized Federal intrusion into state prerogatives. People with disabilities have described the case as the Brown v. Board of Education of the disability rights movement. In addition to rallying in support of the ADA, the gathering marked the beginning phase of ADAPTs effort in getting the Medicaid Community Attendant Services & Supports Act (MiCASSA) introduced into the current session of Congress. The legislation, if approved, would give the individual the right to choose whether financial aid would be spent in an institution or unity-based set-ting. Copies of the revised legislation were given to everyone, and they were encouraged to speak to their elected officials. [image] [image caption] Disability advocates march in a "Don't Tread on the ADA" protest. [text continues] Sen. Harkin, who began his speech in sign language, inspired the audience with the message that the "time for MiCASSA is now! Don't take "No" for an answer." "The 'Don't Tread on the ADA' rally concluded with all participants marching in single file from the Capital building over the Supreme Court. Six people wearing black hats and carrying a coffin led the march. There was also a large wooden cross with a wheelchair hanging from it. When the thousands assembled at the Supreme Court, there was chanting and cheering for equal rights. Next came a heartfelt rendition of "We Shall Overcome," followed by a moment of silence for the 467 who die each day in institutions.
Original Olmstead organizing list 1
The original list used to track states that went on and came off the States' Olmstead Amicus brief (aka the Evil Empire Brief). A handwritten list of states, some crossed off. All listed originally signed onto the anti-disability brief; those crossed off were convinced by the disability community to come off the brief in the end. SIGNED ONTO STATES OLMSTEAD AMICUS FL (organized other states) [crossed off] AL [crossed off] CA [crossed off] CO DE [crossed off] HI LA [crossed off] MD [crossed off] MI [crossed off] MS [crossed off] MT NE [crossed off] NV (became new coordinator) NH [crossed off] PA [crossed off] SC [crossed off] SD [crossed off] TN TX UT [crossed off] WV [crossed off] WY NEW IN [crossed off] MA [crossed off] MN [crossed off] WA [crossed off] crossed off = came off brief Evil Empire Brief : NCLS, Council State Governments, NGA, Nat. Assn. Counties, US Conference of Mayors, Natl. League of Cities, Internat. Municipal Lawyers Assc., Internat. City/County Management Assn.